Is Church Discipline an Invasion of Privacy?: Recent Court Cases Force the Question

It has all the markings of a hollywood epic. In fact, rumors are that a movie will indeed be forthcoming on the saga of Marian Guinn and the Collinsville Church of Christ in Oklahoma. It ought to be an R-rated winner—for mature audiences only. It has sex, religion, and law all rolled up in a tense clash between church and state, complete with defiant sin and a nagging church.

News accounts have well told the central story. When the leaders of the Collinsville Church of Christ heard reports that Marian Guinn, a long-time church member, was having an affair with former town mayor Pat Sharp, they confronted her repeatedly and urged her to break off the relationship. Finally, they warned her in a letter dated September 21, 1981, that unless she publicly repented they would follow the mandate of Matthew 18 and “tell it to the church.”

Guinn did not deny any of their allegations, but insisted “it was none of their business.” On September 24, 1981, she wrote the church:

“I do not want my name mentioned before the church except to tell them I withdraw my membership immediately! I have never accepted your doctrine and never will. Anything I told was told in confidence and not meant for anyone else to hear. You have no right to get up and say anything against me in church.… I have no choice but … to attend another church, another denomination! Where men do not set themselves up as judges for God. He does his own judging.”

Nevertheless, the church proceeded, and three days later the congregation was read a letter asking them to contact Guinn about the “condition of her soul” and giving her a week (or until Oct. 4) to repent. On October 5, 1981, and in a subsequent letter to the congregation, the church was read Scriptures believed to have been violated by Guinn. The church removed her name from the rolls, and called on members to “continue to pray on her behalf and to contact her for purposes of encouragement and exhortation.” The letter was also sent to four sister congregations in the immediate vicinity.

Following American tradition, Guinn filed suit. She alleged the actions of the church were an “invasion of privacy” and “extreme and outrageous” conduct, which created emotional distress. She told the court, “What I do or do not do is between God and myself,” and said the elders had no right to “mess with someone else’s life.” Her attorney, Thomas Fraser, agreed, declaring in his closing arguments before the jury: “I demand the right, on behalf of Marian Guinn, to lead her life the way she chooses.” Fraser added in what surely was more a social and moral commentary than a legal comment: “He was a single man. She was a single lady. And this is America.” An Oklahoma jury apparently concurred, and awarded Guinn $390,000 ($205,000 actual damages and $185,000 punitive damages). Some jurors wanted even more.

The church was not intimidated, however. Elder Ron Witter declared: “Anytime God’s law conflicts with man’s law, we have to stick with God’s law.” The case is currently on appeal in Oklahoma state courts and may well go to the United States Supreme Court.

A Touchy Subject …

Church discipline is a touchy subject. It has multiple purposes as set forth in Scripture, including the encouragement of repentence, a warning to the faithful, and the maintaining of purity in the church. Which types of discipline most effectively accomplish these objectives and embody fairness, personal concern, and spiritual values are difficult questions, to be sure. But that the believing community must, in some sense, exercise such discipline can hardly be denied. In Guinn, a careful reading of the facts suggests that while not every act undertaken by the church may have been the most sensitive in style, the substance of their action was in keeping with not only the biblical admonitions regarding church discipline, but with a strong tradition of the nature and responsibility of the church toward its members.

As Sam Ericsson, director of the Washington, D.C., office of the Christian Legal Society, told those assembled at a church-state issues conference, the case is more a commentary on the church than the court. That the court and public should swallow the notion that it is none of the church’s business what people do in their private lives signals a victory for the privatization and irrelevancy of the church for much of life. Guinn’s attorney put it more bluntly: “It doesn’t matter if she was fornicating up and down the street. It doesn’t give [the church] the right to stick their nose in it.”

… A Trendy Issue

The tendency is to view Guinn as unique. However, it may actually symbolize the court’s own increasing tendency to intrude into the internal life of the church by applying secular perspectives and standards with little understanding or sympathy for the special character of the religious community. Indicative of this trend are two California cases subsequent to Guinn, raising similar claims and questions.

• John R. Kelly has brought suit against the Christian Community Church, its pastor, Ernest Gentile, and its board of elders—most especially one elder, Dr. Donald Phillips. Kelly alleged that Phillips, who undertook to counsel the plaintiff, “disclosed confidential, intimate, and embarrassing details of his sexual and marital life,” which ultimately lead to his being “publicly released” and “publicly excommunicated” in church services on April 24, 1983. The complaint alleges this conduct was professional malpractice, a breach of fiduciary duty, “outrageous conduct” causing emotional distress, reckless and careless negligence, and an invasion of privacy. The complaint even throws in a count for conspiracy. In keeping with the scope of the complaint, the suit calls for judgment in the amount of actual damages plus $5 million “exemplary and punitive damages.”

• In Santa Ana, a California woman was more modest, seeking only $3 million against officials of the Fairview Church of Christ in Garden Grove for publicly denouncing her divorce as “sinful behaviour.” Pastor Ken Dart read a letter on January 22, 1984, saying that “for so long as she refuses to repent, none of us should keep company or associate with her in any way that would suggest approval of these actions or her present position.” Dart and six elders are defendants in the Orange County Superior Court suit. Summonses were served on elders at the church on Easter Sunday. Both cases are pending.

Legal Implications: The Short And Long Of It

While the church must not succumb to the temptation of viewing these church discipline issues as primarily legal, it would be a serious error to ignore the long- and short-term legal implications of these and other cases. Guinn and its progeny do indeed reflect a trend—a tendency we ignore at our peril.

Of immediate concern is the issue of whether or not churches are legally invading a person’s privacy in situations such as those set forth in Guinn. (It should be noted here that while some commentators have mistakenly referred to these as libel cases, they really involve invasion of privacy questions. Libel and slander involve the publication of damaging and false stories. Truth is a defense in any libel action in U.S. law; and Marian Guinn said, “I’m not saying I wasn’t guilty. I was.”)

Courts have held that a right of privacy is invaded by “unreasonable publicity given to another’s private life.” Thus, one noted legal treatise declares: “one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) Would be highly offensive to a reasonable person, and (b) Is not of legitimate interest to the public (see Restatement of the Law of Torts, Section 652).

In Guinn, there may be no doubt about the privacy involved; and the disclosure was made. But was the church exempt of an invasion charge due to the spiritual implications of the transgression and its impact on the church?

The Collinsville church argued it was; noting that a privilege was in order because its community had a legitimate interest in these facts. However, the attorney for Guinn thought otherwise, allowing that even if a qualified privilege was granted, it would have disappeared when Guinn, prior to public disclosure, resigned from the church.

The relevance of the resignation must be examined from both a spiritual and legal perspective—no small agenda for a court confused over things “religious.” Spiritually, membership in Christ’s body is not merely a question of legal membership. One does not so easily break the bond of Christian community. (The church, in fact, claims that its very doctrines do not permit unilateral withdrawal of membership.) The Collinsville church was spiritually correct in claiming a continuing duty of ministry and pastoral care for Marian Guinn.

But what about the law? Could Guinn legally bar any church action on the fourth by resigning on the third? Certainly resigning from the bar association does not prevent the discipline of an errant attorney. A Boy Scout leader whose conduct is morally reprehensible cannot bar discussion of his conduct merely by quitting his post. Where the relationship has been close and recent, and the conduct complained of close in time and continuing to have an impact on the association, resignation should not bar proper disclosure to the affected body.

Thus, if the actions of Miss Guinn were several years old, or she had resigned years or many months earlier, the argument might be more persuasive; but from a spiritual and legal standpoint, it should fail.

Judging The Church

But perhaps the most critical dimension of Guinn involves the government review of, or intrusion into, the life of the church.

The Supreme Court has frequently noted the dangers of such intrusion. In Watson v. Jones, the Court noted the dangers of entanglement with internal church decisions: “All who unite themselves to such a body (general church) do so with an implied consent to (its) government, and are bound to submit to it.” In Serbian Orthodox Diocese v. Milivojevich, the Court similarly eschewed interference, declaring that “questions of church discipline are at the core of ecclesiastical concern,” thus rendering court interference unconstitutional entanglement.

However, recent, highly publicized cases such as the conviction of the Reverend Sun Myung Moon and Bob Jones University have all raised issues of government intrusion into internal and even doctrinal policy. In Nally v. Grace Community Church and John MacArthur, the California Appeals Court has just recently reversed a trial court and held that a jury might find the church liable for what amounts to “clergy malpractice” in a case arising from the suicide of a young man. The suit alleges, in part, that the church had a duty to refer clients to secular counseling, but negligently relied on spiritual counseling.

A common problem in each of these cases is, in part, the fact that the government (whether agency officials or judges) is often insensitive to the values and norms motivating religious communities, and hence runs roughshod over them in the interests of other state-chosen standards.

It was precisely to avoid such problems (and in recognition that the state is incompetent to assess doctrine or recognize the special values and interests of a religious community), that the free-exercise clause was included in the First Amendment. The same principle is further protected by the Supreme Court’s interpretation of the establishment clause as barring “excessive entanglement.”

To be sure, the free-exercise clause protections are not absolute, and one may well imagine religious practices so abhorrent as to warrant liability. But courts require “compelling state interests” before such intrusion.

Today, the danger increasingly is that “compelling” often seems to require little more than public policy or preference. The mere interests of a state agency are all too easily persuasive to a judge who has little understanding of the values or character of the church or religious community.

Further, there is a tendency for the interests and perspectives of the state to become self-authenticating, and therefore “compelling.” For example, a state develops—quite often legitimately—an interest in an arena (e.g., child care, education, hospital care, senior citizens) and consequently sets policies and standards. It is not long before structures begin to apply and promulgate such interests. Soon these guidelines become mandates, not only for state-operated programs but for private programs as well; and their advocates will insist they are essential and “compelling.”

Public education exemplifies this process. At one time, there was virtually no “state interest” in education. Schools were totally operated by private persons and organizations, with churches prominently involved. The state soon became concerned with education, however, and gradually subsidized and then operated its own schools Naturally, standards and policies developed for the schools, and were promoted by educational bureaucracies Eventually, nonstate schools began to be subjected to these adopted standards as well. Such was the case in Nebraska where the state’s interest in quality education as well as in licenses and certification processes were held to be compelling and resulted in the closing down of a church-operated school. Evidence of educational competence there was seen as irrelevant; and the arguable legitimate interest in educational quality had become transfigured into an interest in compliance with state systems. Means had replaced ends.

The dangers of losing free-exercise rights in a sea of compelling state interests is serious because the state does not, perhaps cannot, understand religious interests and values. This was demonstrated by the press and public comment, which seemed generally to side with Guinn, picturing the church as oppressive and intrusive. Letters to local newspapers reflected the attitude of many. One wrote, “I cannot believe four Church of Christ officials … have anointed themselves and set about to pass judgment on one of their members.

… Taking up worship time to slander and belittle a person in front of a Sunday congregation is worthy of discipline itself.” Another opined, “How a Christian lives his private life is between that person and God, not between that person and the elders of the church. Let these elders tend to more critical issues of their church.…”

The courts (as well as the state) are inclined to view religion almost exclusively in narrow and often institutional terms; that is, they see churches as little more than institutions, liturgies, clergy, and doctrines. In these areas, great deference will be paid. But the state does not understand the comprehensive character of religion, that it touches areas the state wishes to label “secular.” Thus when churches become involved in education, social services, counseling, and so on, the tendency is to suggest that now the church has moved outside of “religion” and must conform. Thus, free exercise is relegated to only those areas where the state has little if any interest (i.e., doctrine) and is left with little vitality when real tensions develop.

But if free exercise is to remain a vital legal doctrine and an assurance of the vitality of religion as a moral force in society (and often as a counterforce to the state), then it must not automatically give ground to supposed state interests. In the case of a private association such as a church, there is every reason for the state to exercise great restraint before subjecting that body to civil liability for the exercise of its religious principles and values. Free-exercise interests and entanglement problems ought to make courts wary of stepping into church discipline situations and rewarding aggrieved parties who have fallen out of favor. Only the highest claims ought to outweigh the liberty of the church.

On page 76, J. Carl Laney discusses what practical steps churches can take for reducing the chances of being sued for exercising biblical discipline.

Tim Stafford is a free-lance writer living in Santa Rosa, California. He is a distinguished contributor to several magazines. His latest book is Do You Sometimes Feel Like a Nobody? (Zondervan, 1980).

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