Separation of Church And State: Mark Fogarty Slander Lawsuit Response

By Mary

This article is is not intended to give legal advice. Should you need legal counsel, please contact a licensed attorney.

According to news articles, the defense for Driver vs. Fogarty stated, "We do not believe that the verdict is supported by the law or the facts, and in particular the law concerning the separation of church and state. We are considering with our client the various post-trial and appeal options that are available and think that further comment at this point would not be appropriate."

Many Americans might be surprised to learn the origin and meaning of the phrase "separation of church and state." Even more might be surprised to learn the phrase itself is not found either in the Bill of Rights or the US Constitution. The principles of it are there, but the phrase itself is not. The Bill of Rights states that we have freedom of religion. Historically, separation of church and state simply meant that people should be free to practice their faith without hindrance or persecution. Our rights and freedoms, however, should never interfere with someone else's rights and freedoms. There is a huge difference between the constitutional right to practice whatever religion a person feels is right and the perceived duty of some to interfere with others' right to practice a different religion, or even the same religion in a different way.

The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[i]" Freedom of speech has never been intended to protect those who issue slanderous, libelous or defamatory statements. The Establishment Clause, which states that the government will not make a law establishing a religion, prohibits state religions or statutorily forced participation in any religion. The Free Exercise Clause states that the government will allow people to choose for themselves how, where, or if they worship.

The actual phrase "separation of church and state" was first used by Thomas Jefferson in 1802, eleven years after the First Amendment was written. Seventy-five years later it was used in a case to determine the rights of Mormons to polygamy. It was determined in that case that although a person was allowed freedom of religion, the freedom to practice religion did not include polygamy. In 1947, Everson vs. Board of Education determined that the state and religion should remain completely separate as much as possible. After this determination was reached, the phrase "separation of church and state" was more often used in court. Today it has become a more common phrase in some circles than the original Amendment it was intended to define.

Guinn Vs. Church of Christ of Collinsville, 1989 OK 8, 775 P.2d 766

That difference was made clear in the case of Guinn vs. Church of Christ of Collinsville. In this often-cited case, Ms. Guinn filed for defamation regarding things said both before and after she withdrew membership. The original decision was awarded to the Plaintiff. Upon appeal, judgment was repealed and remanded (to be tried again) for only those things said after she withdrew membership. This case determined that while a person is a member of a church, they willingly submit to the religious doctrines and disciplinary actions of that church. For this reason, church decisions regarding members are protected under the First Amendment. However, when that person withdraws membership the church no longer has religious jurisdiction, and any actions taken are liable to state regulation and legal decisions. "When Parishioner withdrew her membership from the [church] and thereby withdrew her consent to participate in a spiritual relationship in which she had implicitly agreed to submit to ecclesiastical supervision, those disciplinary actions thereafter taken by the elders against Parishioner, which actively involved her in the church's will and command, were outside the purview of the First Amendment [775P.2d 778] protection and were the proper subject of state regulation."

The judgment also clarifies that the First Amendment gives the church autonomy, but not above the law of the land. "Conduct conforming to and motivated by one's religious beliefs is not always immune from governmental regulation: "[A] determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, [but] the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which [775 P.2d 779] society as a whole has important interests." In other words, freedom itself requires regulation. Without law, people cease to be truly free. Therefore, every body requires some form of governance in order to maintain the principles of liberty that the Constitution is founded on. "No real freedom to choose religion would exist in this land if under the shield of the First Amendment religious institutions could impose their will on the unwilling and claim immunity from secular judicature for their tortious acts."

A fine line must therefore be drawn on legal matters that involve a church. If a legal matter requires interpretation of church doctrine, religion, or faith, the court will not maintain jurisdiction or proclaim judgment unless the matter upsets peace, safety, or public order, or if the church oversteps its bounds of internal autonomy and attempts to force it's beliefs or doctrines on someone who is not a member. "The first amendment of the United States Constitution was designed to preserve freedom of worship by prohibiting the establishment or endorsement of any official religion. One of the fundamental purposes of the first amendment is to protect the people's right to worship as they choose. Implicit in the right to choose freely one's own form of worship is the right of unhindered and unimpeded withdrawal from the chosen form of worship." "Conduct conforming to and motivated by one's religious beliefs is not always immune from governmental regulation: "[A] determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, [but] the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which [775 P.2d 779] society as a whole has important interests."

Ms. Guinn had been a member of the Church of Christ of Collinsville. She resigned after disciplinary action had been started against her. The church said she could not resign; once she was a member she would always be a member, subject to the discipline of the church. In response, the appellate judgment stated, "[The local church], by denying the parishioner's right to disassociate herself from a particular form of religious belief is threatening to curtail her freedom of worship according to her choice. Unless the parishioner waived the constitutional right to withdraw her initial consent to be bound by [church] discipline and its governing elders, her resignation was a constitutionally protected right," and "Implicit in the right to choose freely one's own form of worship is the right of unhindered and unimpeded withdrawal from the chosen form of worship. In Engel it was the government that, by advocating one particular form of religious worship, threatened to limit freedom of choice."

The case was overturned on appeal not because of First Amendment rights, but because the original decision involved matters of defamation that occurred both before and after her resignation. The case was recommended for retrial, so that a decision could be reached solely on matters after her resignation. Rather than continue with a retrial, the parties settled out of court for an undisclosed amount.

Hadnot Vs. Shaw, 826 P.2d 978 (Okla. 1992)

In this case, also in Oklahoma, it was determined that a member could withdraw membership at any time. Until membership is severed, the church may discipline people under their First Amendment rights, without fear of state interference, but discipline of non-members does not fall under the same protection. "At the point when the church-member relationship is severed through an affirmative act of either a parishioner's withdrawal or excommunication by the ecclesiastical body, a different situation arises. In the event of withdrawal or of post-excommunication activity... the absolute privilege from tort liability no longer attaches."

Hester Vs. Barnett, 723 S.W.2d 544 (Mo. App. 1987)

In this case, the Plaintiffs had never been members of the Defendant's church. They claimed defamation after the minister visited them in their home and told them they could talk with him confidentially. They did so, discussing concerns about their children's behavior, among other things. Some of the things were not held in confidence as the minister had promised, however. The family sued the minister for defamation through both spoken and written means, for statements that the family stole, committed arson, and abused their children." The family also claimed that the minister falsely reported the abuse to the child abuse hotline.

The minister in this case also claimed First Amendment protection. The court ruled that the family could sue him as long as they were not members of his church. In the judgment, the court wrote, "The First Amendment forbids a court from any evaluation of the "correctness" of the content of religious sermons as expressions of belief or religious practice. The stricture of the free exercise clause is against "any governmental regulation of religious beliefs as such." It is competent, therefore, for a court to inquire whether the sermon declarations that the [family] stole, committed arson and abused their children were expressions of actual creed and practice, held and exercised in good faith, or were merely the religious occasion for the wholly secular purpose of intentional defamation and injury to reputation of persons not even communicants of the church." In other words, the court does not need to define doctrine or religious practice in order to determine whether such statements as the pastor made were part of religious instruction, and typical of that church, or whether they were deliberately defamatory in nature. The court also ruled that when a person is a member of a church, they consent to the practices of that church, including discipline. Therefore, they cannot claim damage against that church, while they are consenting members, unless they can prove that the church deliberately and intentionally intended to harm them or defame them. "The use of the pulpit not as the pretext for the practice of religion, but as the occasion for intentional defamation, therefore, is neither justified by privilege nor protected by the free exercise clause."

Other Judgments With Impact

Regarding Board of Education of Kiryas Joel Village School District vs. Grumet[iii], Justice David Souter, writing for the majority, concluded that "government should not prefer one religion to another, or religion to irreligion".

Driver Vs. Fogarty

Angela Driver left Fogarty's church in approximately March 2005. Within six weeks she became an upstanding member in another local church of the same denomination. Although her former pastor made statements about her to her new pastor, she did not claim defamation at that time. However, in July of 2006, over a year after she had left Fogarty's church, he made a public statement against her that not only accused her of things she (and her ex-husband) denied, but which also left open to conjecture of the congregation the possibility of illegal behavior on her part. Further, these statements were made just before an announcement of her ex-husband's "intimate relations" with Fogarty's own daughter, an announcement that according to his religious views should never have been made unless the allegations he made against Ms. Driver were proven true. As both she and her ex-husband denied the verity of the allegations in court, they are considered to be false. The court was at that point free to make a ruling concerning the case based on the facts that 1) Ms. Driver had not been a member at the time the statements against her were made, and 2) the statements themselves had been proven false by both her admission and her former husband's. The court in this case did not make a determination on religious dogma or doctrine, but on whether the intent of the statements made was deliberately harmful and defamatory to Ms. Driver. Based on the facts presented, the jury ruled that they were.

Traditionally the court has ruled that there must be a formal withdrawal of membership. Ms. Driver may or may not have sent a letter of withdrawal from membership, but testimony proved beyond the shadow of a doubt that it was common knowledge of both her former and her current pastor that she had withdrawn from membership at Fogarty's church the previous year. Further, UPC church by-laws often require frequent attendance to be considered members. Those who do not attend for a certain number of weeks are dropped from membership roles. If Fogarty's church follows these UPC tendencies, a quick glance at a membership or Sunday School roster will prove undeniably that Fogarty was well aware she was no longer a member and could not be treated as one. However, this case does not rest solely on membership. Ms. Driver was not being disciplined by the statements made on July 25th. The court determined that church discipline was not involved at all, but rather that Driver was deliberately defamed in order to promote the "intimate relations" of Fogarty's own daughter with Driver's former husband. This case clearly falls outside the bounds of the First Amendment simply for that fact alone.

After the trial, the defense stated to the press that "We do not believe that the verdict is supported by the law or the facts, and in particular the law concerning the separation of church and state. We are considering with our client the various post-trial and appeal options that are available and think that further comment at this point would not be appropriate." However, the facts laid out in the trial did support the verdict, and by the information above and by similar cases as well, the verdict was also fully supported by the Constitution and precedent of the courts. According to the current legal interpretation of separation of church and state, the church is free to operate, serve, and preach it's faith, but not to the hindrance of someone else's faith, and never to a point of interference with the governing forces. Unlike many other cases, Driver vs. Fogarty did not involve an incident that occurred between a member and a pastor. Fogarty was not Ms. Driver's pastor at the time of the statement in question, and had not been for over a year. In cases where a member sues a pastor or a pastor sues a board or other leadership, generally the court deems it cannot interfere in what might be considered church discipline, or involve itself in decisions of doctrinal debate. Fogarty, however, was not disciplining Ms. Driver. He made inferences about her based on what he states is his interpretation of scripture. The court was not asked to decide if those interpretations were correct or not. The court was simply asked to determine whether Fogarty had the right to infer things about Ms. Driver, as a non-member, especially when those things were proven to be false. He is welcome to his interpretation of scripture. The court simply stated he should not have called her name into question publicly for something that it could be proven she had not done, for what appears to be the purpose of using those false statements against her to publicly clearing her ex-husband to marry his daughter.

Conclusion

A pastor has the right to say what he wants in the pulpit, but only as long as it does not infringe on the rights of others, especially on the rights of those outside that church to life, liberty and the pursuit of happiness. Free speech is fine, but slander is not considered free speech because of the impact it has on others. Some lower courts have ruled on various cases that those who are "disciplined" within the church, even when publicly humiliated or verbally abused, are not considered to have been slandered because they chose to attend that church knowing the methods of 'discipline' taught there. Some courts-especially some lower state courts, tend not to interfere in these cases, and a few defamation judgments have been overturned due to this. (Llavona vs. Rios, Hiles vs. Episcopal Diocese of Massachusetts, 773 N.E.2d 929, 938 n. 13) However, when a non-member- either a former member or someone who has never joined a church- is disciplined and files suit, the courts appear to have much less reluctance to intervene. In these cases, the individual clearly does not fall under the jurisdiction or authority of the church, but solely under the law of the land, which law is sadly more gracious than some churches' authority.

I am not an attorney, and have no connection with any of the cases listed. However, after serious difficulties of my own regarding 'church discipline' and a pastor's attitude that he could say and do whatever he pleased, I formally withdrew membership. I've been told this was a mistake and that I should have retained membership even if I chose not to attend. This article is as much an answer to why I would formally withdraw membership as it is an analysis of the post trial statement of the attorney for the defense.

Articles Of Interest From Other Websites

Below are links to articles from outside this website that were helpful in compiling this article.

https://www.exmormon.org/mormon/mormon217.htm

https://church-discipline.blogspot.com/2007/02/mormon-alliance-home-page.html

https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=10494

https://web.archive.org/web/20100726005305/http://www.churchlawtoday.com/private/library/pcl/p04a.htm

https://church-discipline.blogspot.com/2008/12/why-not-to-keep-going-on-with.html

https://web.archive.org/web/20100112193006/http://www.tsc.state.tn.us/opinions/tca/PDF/071/WatchtowerOpn.pdf

https://www.allaboutpopularissues.org/separation-of-church-and-state.htm

https://web.archive.org/web/20160228191311/https://www.thisnation.com/question/024.html

This article is is not intended to give legal advice. Should you need legal counsel, please contact a licensed attorney.

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Posted August 1, 2010 - Links checked August 1, 2023 and those no longer available were removed

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