Posted by Eugene Volokh:
Contract Law and the First Amendment:
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228950237
Generally speaking, contracts between private entities are enforceable
even when they [1]restrict one party's speech; the right to free
speech, like most other rights, can be waived by contract. Likewise
when a contract obligates a person to do something that the person
later decides is against his religious beliefs. But there is one area
where the First Amendment may preclude enforcement of contracts: when
enforcing the contract requires religious decisionmaking, something
that secular courts are not allowed to do. [2]Friedlander v. Port
Jewish Center, decided Monday, offers a good example (some paragraph
breaks rearranged):
[Rabbi Ariel Friedlander] entered into a contract with the
Defendant in May of 2005 to serve as the Temple's rabbi for a
period of three years. The contract provided that the Plaintiff
would perform "all the customary and usual duties of rabbis of
Reform Congregations of the Union of Reform Judaism." In
particular, the contract specified that the Plaintiff was expected
to carry out various spiritual and administrative duties that
included holiday and worship services; life cycle events;
educational functions; pastoral functions; temple and other
community functions; membership functions; and administrative
functions.
The contract also provided that "the Rabbi shall have freedom of
the pulpit," and indicated that the Temple could terminate the
Plaintiff's contract only "for gross misconduct or willful neglect
of duty." ... On or about July 5, 2006, Sandy Ehrlich, the Temple
President, sent the Plaintiff an email cataloguing a list of
grievances ... includ[ing], among other issues, the congregants'
dissatisfaction with: (i) the Plaintiff's infrequent readings of
the Torah; (ii) the quantity and variety of liturgical music
selected for religious services; (iii) changes made to the Bar
Mitzvah and Bat Mitzvah services; (iv) the Plaintiff's funeral
service policies; (v) the Plaintiff's inability to work with
religious instructors and the Cantor; (vi) the Plaintiff's neglect
of her pastoral functions; (vii) the Temple's attrition rates under
her leadership; and (viii) the number of hours the Plaintiff
dedicated to administrative functions.... [O]n or about August 2,
2006, the Temple officially terminated her contract.
The Plaintiff argues that the Defendant's proffered reasons for her
firing did not constitute just cause under the contract because she
did not commit "gross misconduct" or "willful negligence". The
Plaintiff also asserts a common law claim that the Defendant's
breached the covenant of good faith and fair dealing by
"fabricat[ing] and exaggerat[ing] situations they thought would
constitute gross misconduct and willful neglect." ...
[T]he ministerial exception plainly does not create for religious
institutions a charmed existence free from liability for "their
torts and upon their valid contracts." ... The Plaintiff argues
instead that this is a purely secular contract case that would not
require the Court to entangle itself in religious doctrine.
The Court disagrees. "The Establishment Clause forbids 'excessive
government entanglement with religion.'" The Second Circuit teaches
that certain claims, regardless of their "emblemata," may
"inexorably entangle [the courts] in doctrinal disputes." In this
sense, the fact that the Plaintiff asserts causes of action
sounding in violations of state contract law does not alter the
Court's analysis.
Here, adjudicating the Plaintiff's claim would ... necessarily
require the Court to review the Plaintiff's performance of her
rabbinical duties. This is precisely the type of inquiry that the
First Amendment prohibits. The Plaintiff's duties included, among
other things, selecting readings from the Torah, and establishing
policies for funeral services as well as Bar Mitzvah and Bat
Mitzvah services. These are purely religious matters in which the
Court may not interfere....
Note, incidentally, that courts will generally enforce the decisions
of arbitral tribunals chosen by parties, even if those arbitrations
interpreted religious law. Had the contract, for instance, provided
for arbitration by a named religious tribunal, then that tribunal
could have decided whether the rabbi's actions constituted "gross
misconduct or willful neglect of duty," and any monetary judgment by
the tribunal would have been enforceable by a secular court. (I
suspect that an order that the congregation rehire the rabbi would
have been enforceable, too, though that might conceivably be a tougher
question.) But a secular court cannot itself decide whether a rabbi's
decisions about how often to read the Torah, what sort of liturgical
music to play, and so on constitute "gross misconduct or willful
neglect."
References
1.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=501&invol=663
2. http://volokh.com/files/friedlander.pdf
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