Present: All the Justices
DAVID M. BOWIE
OPINION BY
v. Record No. 050728 JUSTICE LAWRENCE L. KOONTZ, JR.
January 13, 2006
JAMES T. MURPHY, JR., ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane M. Roush, Judge
In this appeal, we consider whether the circuit court
erred in sustaining demurrers to plaintiff’s assault claim
and defamation claims against the pastor and other members
of plaintiff’s church.
BACKGROUND
Since this appeal comes to us from a circuit court’s
decision sustaining a demurrer, we “recite as true the
well-pleaded facts in the motion for judgment.”1 Sanchez v.
Medicorp Health Sys., 270 Va. 299, 301 n. 1, 618 S.E.2d
331, 332 n. 1 (2005) (citing Thompson v. Skate America,
Inc., 261 Va. 121, 124-25, 540 S.E.2d 123, 124 (2001)).
As alleged in the motion for judgment, David M. Bowie
is a member of the Board of Deacons of Greater Little Zion
1
As is explained infra, the circuit court ruled that Bowie
failed to state a cause of action for assault in his motion for
judgment, but granted Bowie leave to file an amended motion for
judgment on his assault claim. The relevant facts are
essentially the same in the motion for judgment and the amended
motion for judgment.
Baptist Church (the Church), a congregational church
located in Fairfax County. James T. Murphy, Jr. became
pastor of the Church in 1990. The Church experienced
“divisiveness and strife” under Murphy’s leadership.
Ultimately, in 2003, the strife became so pervasive that
members of the congregation, in accordance with the Church
constitution, petitioned the Board of Deacons for the
removal of Murphy as pastor.
Upon receiving the petition, the Board of Deacons sent
a letter to the congregation on June 6, 2003 informing the
church members that a vote on whether to retain Murphy as
pastor would take place on June 21, 2003. The vote took
place at the Church as scheduled. Supporters of Murphy,
including Audrey Thornton, attended the meeting to disrupt,
intimidate, harass, and coerce congregation members who
were trying to vote. Thornton brought two of her children
to help her disrupt the vote, and she used Church computers
and printers to produce placards and posters reflecting her
support of Murphy. Thornton’s children placed the placards
around the designated voting area while Thornton was in an
upstairs area. When members of the Board of Deacons
removed the placards, Thornton’s daughter went to the
upstairs area and informed Thornton, who became “enraged.”
2
At this time, Bowie and another Deacon were standing
at the base of some steps directly adjacent to the voting
area. Thornton, displaying an “extraordinary and visibly
angry look on her face,” charged down the stairs past Bowie
and the other Deacon, both of whom had been assigned to
provide security to the voting area. Thornton, carrying a
large camera in her right hand, forcefully opened the door
to the voting area. The door automatically closed behind
her. Bowie observed bright flashes of light and opened the
door. Once inside the voting area, Bowie saw Thornton
taking pictures and writing down the names of poll workers,
voters, and staffers.
Bowie approached Thornton, who had her back to Bowie,
and asked Thornton what she was doing. However, apparently
due to noise in the room, Thornton did not hear Bowie.
Bowie then “gently touched the right shoulder of Thornton
in order to gain her attention and again called her by
name.” Thornton looked back over her right shoulder,
realized it was Bowie, and cursed him. Thornton then
attempted to strike Bowie with the camera she held in her
right hand.
In order to protect himself from being struck, Bowie
grasped Thornton’s right wrist. Thornton “violently pushed
3
back and forth” to free her wrist, which caused Bowie to
take several steps backward into a hallway. In the
hallway, Bowie released Thornton’s wrist and verbally tried
to calm her. Upon her release, Thornton put the camera in
her left hand and struck Bowie in the chest with her right
hand.
Bowie immediately called the Fairfax County Police
Department. Police arrived and took statements from a
number of people. Thornton “willfully, falsely, and with
malice” told police and Church members, including Murphy,
that Bowie had assaulted her. She also solicited others
who were not witnesses to the incident to provide false
information and statements to the Fairfax County police.
Thereafter, on July 1, Murphy called a Church meeting
while Bowie was on vacation. At the meeting, Murphy told
the congregation that Bowie had assaulted Thornton. Murphy
also called for a motion to have Bowie dismissed as a
deacon and to have Bowie’s church membership demoted from
“full” status to “watch care.” Vivian Pace made the motion
based on Bowie’s “alleged assault” of Thornton. LaJuanna
Russell seconded the motion “on the same basis.” On July
10, Murphy sent a letter to the congregation accusing Bowie
of assault against Thornton. Subsequently, David Pace and
4
Vivian Pace sent e-mails to “numerous” third parties
accusing Bowie of assaulting Thornton.
On June 17, 2004, Bowie filed a motion for judgment in
the Circuit Court of Fairfax County against Murphy, Vivian
Pace, David Pace, LaJuanna Russell, and Audrey Thornton
(collectively, the defendants). The motion for judgment
included one count for assault, three counts for
defamation, and one count for intentional infliction of
emotional distress.2 The assault claim was directed against
Thornton for striking Bowie in the chest.3 The defamation
claims stemmed exclusively from the defendants’ accusations
that Bowie assaulted Thornton, which Bowie asserted were
made with knowledge of the falsity of the allegation or
reckless disregard for the truth.
2
The circuit court subsequently sustained a demurrer to
Bowie’s intentional infliction of emotional distress claim
because Bowie failed to allege that the defendants engaged in
conduct sufficient to constitute a cause of action. Bowie does
not assign error to this decision. Bowie’s motion for judgment
also included a claim under the Virginia Computer Crimes Act,
Code § 18.2-152.12. However, Bowie later conceded that he had
no cause of action under this section. Accordingly, these
claims are not at issue in this appeal.
3
Bowie conflated the tort of assault and the tort of
battery in his motion for judgment. These are two separate
torts. See Koffman v. Garnett, 265 Va. 12, 16, 574 S.E.2d 258,
261 (2003). However, Bowie distinguishes between the two torts
in his amended motion for judgment.
5
The defendants filed a demurrer and special plea in
bar asserting that the circuit court did not have subject
matter jurisdiction pursuant to Cha v. Korean Presbyterian
Church, 262 Va. 604, 610-12, 553 S.E.2d 511, 513-15 (2001),
because the allegations of defamation involved matters of
church governance and doctrine. The demurrer also asserted
that since Bowie initiated contact with Thornton, his
assault claim must fail. Additionally, the demurrer
asserted that as a consequence of Bowie’s initiating
contact with Thornton, his claims of defamation must fail
as well, because truth is an absolute defense to
defamation.
The circuit court held a hearing on the defendants’
demurrer and on a motion filed by Bowie for leave to amend
his motion for judgment. By order entered on October 21,
2004, the circuit court sustained the defendants’ demurrer
on the defamation counts without granting leave to amend.
The court reasoned that the defamation counts “clearly fall
under the Cha case” because any “defamatory statements
. . . were made in connection with the church’s business”
and, thus, the court did not have subject matter
jurisdiction. Bowie objected to the court’s order on the
defamation counts.
6
The circuit court also sustained the defendants’
demurrer to Bowie’s assault claim, accepting their
assertion that Bowie failed to state a cause of action for
assault because he failed to allege a physical injury. The
circuit court, however, granted Bowie leave to amend the
assault claim within 21 days. Although Bowie did not
object to the court’s ruling on the assault claim at the
hearing or in the court’s order, Bowie filed an amended
motion for judgment for assault on October 29, 2004.
In his amended motion for judgment, Bowie alleged that
Thornton’s attempt to strike him with the camera “placed
[Bowie] in reasonable fear of physical injury and as such
committed the offense of assault.” Bowie also alleged that
when Thornton struck him in the chest, it was in a “clear
and unlawful attempt to inflict injury upon [Bowie]” and
thus Thornton committed an assault. Bowie did not allege
in the amended motion for judgment that he suffered
physical injury as a result of Thornton’s actions, even
though failure to plead physical injury was the ground upon
which the circuit court had sustained the demurrer to his
assault claim in the original motion for judgment.
Additionally, Bowie alleged that since Murphy “encouraged
7
the unlawful conduct” of Thornton, Murphy was also liable
for assault.4
The remaining defendants filed a demurrer to the
amended motion for judgment on November 22, 2004, claiming
that Bowie did not state a cause of action for assault
because he once again failed to allege a physical injury.
A hearing on the demurrer was scheduled. Although Bowie
was given notice of the hearing, he did not appear. On
January 7, 2005, the circuit court issued a final order
sustaining the defendants’ demurrer.5 The order does not
state the circuit court’s grounds for sustaining the
demurrer. Bowie filed a notice of appeal on January 19,
2005.
4
In addition to his assault claims, Bowie included in his
amended motion for judgment a claim for battery. However, the
circuit court’s October 21 order only granted Bowie leave to
amend Count 1 of his motion for judgment, and Count 1 was
clearly labeled “assault” in the motion for judgment.
Accordingly, the inclusion of a battery claim exceeded the scope
of the court’s leave to amend and is, therefore, barred.
5
The day after the defendants filed their demurrer to
Bowie’s amended motion for judgment, Bowie filed a motion for
nonsuit. The circuit court did not hold a hearing or issue an
order regarding the nonsuit. Although Code § 8.01-380 entitles
Bowie to one nonsuit as a matter of right, the termination of
litigation by nonsuit does not occur until a circuit court
enters an appropriate order. The record does not reflect that
Bowie formally requested the circuit court to rule on his motion
for a nonsuit. See Nash v. Jewell, 227 Va. 230, 237, 315 S.E.2d
825, 829 (1984).
8
We granted Bowie this appeal limited to the issues
whether the circuit court erred in its October 21, 2004
ruling that Bowie’s defamation claims are barred by our
decision in Cha and in sustaining the defendants’ demurrer
to Bowie’s amended motion for judgment for assault.
DISCUSSION
We first address whether the circuit court erred in
sustaining the demurrer to Bowie’s defamation claims. The
circuit court sustained the demurrer solely on the ground
that addressing these claims would necessarily involve
issues of church governance. The Cha case clearly bars
courts from hearing such cases. Thus, our analysis of this
issue is limited to whether Cha, and the constitutional
precepts upon which Cha is premised, bar the circuit court
from hearing Bowie’s defamation claims.
As a general rule, courts lack subject matter
jurisdiction to resolve issues of church governance and
disputes over religious doctrine. This prohibition arises
from the religion clauses of the Constitution of the United
States and the Constitution of Virginia. The First
Amendment to the Constitution of the United States
provides, in relevant part, that “Congress shall make no
9
law respecting an establishment of religion, or prohibiting
the free exercise thereof.” Similarly, the Constitution of
Virginia, Article 1, § 16 provides that “religion or the
duty which we owe to our Creator, and the manner of
discharging it, can be directed only by reason and
conviction, not by force or violence; and, therefore, all
men are equally entitled to the free exercise of religion,
according to the dictates of conscience.”
First Amendment jurisprudence is clear, and we have
stated, that “civil courts are not a constitutionally
permissible forum for a review of ecclesiastical disputes.”
Cha, 262 Va. at 610, 553 S.E.2d at 514; see Serbian Eastern
Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976);
Presbyterian Church v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church, 393 U.S. 440, 449 (1969). While what
is or is not an “ecclesiastical dispute” is often
debatable, issues of church governance and matters of faith
and doctrine are unquestionably outside the jurisdiction of
the civil courts. Reid v. Gholson, 229 Va. 179, 187, 327
S.E.2d 107, 111-12 (1985). When, as here, a case involves
a quarrel among church members and/or leaders, a court must
determine the likelihood that, in trying the issues
presented to the court, the court will be confronted with
10
questions of religious governance or doctrine. See Cha,
262 Va. at 610, 553 S.E.2d at 514. When the court properly
determines that it will “become entangled in issues
regarding the church’s governance as well as matters of
faith and doctrine,” the court must, as in Cha, dismiss the
case for lack of subject matter jurisdiction. Id. at 613,
553 S.E.2d at 515.
The circuit court in this case determined that the
resolution of Bowie’s defamation claims would involve
issues and decisions properly left under the exclusive
control of the Church. However, we distinguish the issues
presented here from those presented in Cha and hold that
the circuit court may resolve Bowie’s defamation claims
without running afoul of constitutional restrictions.
In Cha, the plaintiff had served for two years as the
educational and administrative pastor for the Korean
Presbyterian Church. 262 Va. at 608-09, 553 S.E.2d at 512-
13. The plaintiff met with church members who suspected
that certain church officials were misusing church funds.
Id. When the plaintiff supported hiring an independent
auditor to investigate the church’s finances, a church
elder threatened to terminate the plaintiff’s employment.
At a subsequent meeting another church official accused the
11
plaintiff of borrowing over $100,000 from the church, which
he had not repaid. Id. The plaintiff was subsequently
fired. The plaintiff filed a motion for judgment claiming
wrongful termination, tortious interference with his
employment contract, and defamation. Id. at 610, 553
S.E.2d at 513.
In affirming the circuit court’s ruling that it lacked
subject matter jurisdiction, this Court concluded that if
the circuit court tried the case, it would have “become
entangled in issues regarding the church’s governance as
well as matters of faith and doctrine.” Cha, 262 Va. at
613, 553 S.E.2d at 515. Specifically addressing the
plaintiff’s defamation claims, the Court stated that
we hold that the plaintiff’s allegations of
defamation against the individual defendants cannot
be considered in isolation, separate and apart from
the church’s decision to terminate his employment.
The individual defendants who purportedly uttered
defamatory remarks about the plaintiff were church
officials who attended meetings of the church’s
governing bodies that had been convened for the
purpose of discussing certain accusations against
the plaintiff. We can only conclude that if a civil
court were to exercise jurisdiction of the
plaintiff’s motion for judgment under these
circumstances, the court would be compelled to
consider the church’s doctrine and beliefs because
such matters would undoubtedly affect the
plaintiff’s fitness to perform pastoral duties and
whether plaintiff had been prejudiced in his
profession.
Id. at 615, 553 S.E.2d at 516.
12
Unlike the circumstances in Cha, where the plaintiff’s
defamation claims were so connected to his wrongful
termination claim as to mix with “ecclesiastical decisions
regarding the appointment and removal” of church officials,
Bowie’s defamation claims do not involve matters of church
governance. See id. at 613, 553 S.E.2d at 515. Rather,
Bowie’s defamation claims arise solely from allegations
made by the defendants that Bowie perpetrated an assault.
The circuit court can evaluate these statements for their
veracity and the impact they had on Bowie’s reputation the
same as if the statements were made in any other, non-
religious context. While it is clear that some of the
allegedly defamatory statements were made at a church
meeting in which Bowie’s status as deacon was the primary
issue, Bowie pled his defamation claims in such a manner
that the circuit court, unlike the trial court in Cha, can
consider them in isolation, separate and apart from the
church governance issue involved in Bowie’s status as a
deacon.
We have previously explained that “where church
property and civil rights disputes can be decided without
reference to questions of faith and doctrine, there is no
constitutional prohibition against their resolution by the
13
civil courts.” Reid, 229 Va. at 187, 327 S.E.2d at 112;
see Jones v. Wolf, 443 U.S. 595 (1979). Thus, a circuit
court’s determination “is simply whether the court can
decide the case by reference to neutral principles of law,
without reference to issues of faith and doctrine.” Reid,
229 Va. at 188, 327 S.E.2d at 112. We hold that the
circuit court has subject matter jurisdiction over Bowie’s
defamation claims because the claims can be decided without
addressing issues of faith and doctrine. Specifically, the
circuit court need not become involved with the underlying
dispute among the congregation of the church regarding
Murphy as pastor.
Next, we turn to the issue whether the circuit court
erred in sustaining the defendants’ demurrer to Bowie’s
assault claim. In the January 7, 2005 order, the circuit
court did not state its grounds for sustaining the
defendants’ demurrer, although the demurrer was based on
Bowie’s failure to allege that he suffered a physical
injury. We hold that the circuit court erred because Bowie
sufficiently pled a cause of action for assault against
Thornton in his amended motion for judgment.
To prove assault, a plaintiff must show that the
defendant “performed ‘an act intended to cause either
14
harmful or offensive contact with another person or
apprehension of such contact, and that creates in the other
person’s mind a reasonable apprehension of an imminent
battery.’ There is no requirement that the victim of such
acts be physically touched.” Etherton v. Doe, 268 Va. 209,
213, 597 S.E.2d 87, 89 (2004) (quoting Koffman v. Garnett,
265 Va. 12, 16-17, 574 S.E.2d 258, 261 (2003)); see also
Carter v. Commonwealth 269 Va. 44, 47, 606 S.E.2d 839, 841
(2005) (an assault, “whether a crime or tort, occurs when
an assailant engages in an overt act intended to inflict
bodily harm and has the present ability to inflict such
harm or engages in an overt act intended to place the
victim in fear or apprehension of bodily harm and creates
such reasonable fear or apprehension in the victim”).
In the amended motion for judgment, Bowie alleged two
separate instances of assault by Thornton. Both of these
allegations state a cause of action for the tort of assault
under the definition of that tort in Etherton. First,
Bowie alleged that Thornton attempted to strike Bowie with
a camera, placing Bowie in fear of physical injury. This
allegation of fact was sufficient to plead the elements of
assault because both an attempt by Thornton to cause
harmful contact and a reasonable apprehension by Bowie that
15
he would be struck were asserted. Second, Bowie alleged
that Thornton actually struck him in the chest while he
verbally tried to calm her. This allegation of fact was
also sufficient to plead the elements of assault because it
asserted that Thornton intended to strike Bowie in the
chest and, since Bowie alleged he was speaking with
Thornton when she struck him, it reasonably can be inferred
that Bowie anticipated being struck. The fact that
Thornton actually completed the battery by making contact
with Bowie does not negate the assault claim that arises
from Bowie’s anticipation of the battery. Assault and
battery are two separate and independent torts. See
Koffman, 265 Va. at 16, 574 S.E.2d at 261.
Finally, we note that Bowie’s failure to allege that
he suffered a physical injury is of no import to the
analysis of whether Bowie stated a cause of action for
assault because physical injury is not an element of the
tort of assault. Carter, 269 Va. at 47, 606 S.E.2d at 841;
see also Charles E. Friend, Personal Injury Law in
Virginia, 6.3.1 at 183 (3d ed. 2003) (“No actual contact is
required for assault. Similarly, no physical injury need
be involved.”). Rather, the resulting injury from assault
is that the “threatening gesture, creating the
16
apprehension, is . . . actionable without actual damage.
It is, in effect, a form of mental injury which is being
compensated.” Id. (Emphasis in original.)
In his amended motion for judgment, Bowie also
asserted assault claims against Murphy. However, the
circuit court, in its October 21 order, only gave Bowie
leave to amend his assault claims in Count 1, which had
been pled solely against Thornton. Bowie did not object to
that determination. Bowie’s inclusion of assault claims
against Murphy in his amended motion for judgment thus
exceeded the scope of the circuit court’s grant of leave to
amend. Accordingly, Bowie’s claims for assault against
Murphy were not properly asserted and we need not address
them further. See Mechtensimer v. Wilson, 246 Va. 121,
122-23, 431 S.E.2d 301, 302 (1993) (purported amendment
without permission was void).
For these reasons, the judgment of the circuit court
sustaining the defendants’ demurrer will be reversed and
the case remanded for further proceedings with regard to
Bowie’s assault claims against Thornton and his defamation
claims against the defendants.
Reversed and remanded.
17
JUSTICE AGEE, with whom JUSTICE KINSER joins, concurring in
part and dissenting in part.
I write separately because I find that our decision in
Jae-Woo Cha v. Korean Presbyterian Church, 262 Va. 604, 553
S.E.2d 511 (2001), does bar David M. Bowie's defamation
claims against Vivian Pace and LaJuanna Russell as stated
in paragraphs 55 through 58 of Count II of the motion for
judgment. In all other respects, I concur with the
majority's opinion that Cha does not operate to bar
resolution of Bowie's other defamation claims against the
defendants. I also agree that Bowie's motion for judgment
sufficiently stated a claim for assault against Audrey
Thornton, and that Bowie's assault claims against Murphy
alleged in his amended motion for judgment are not properly
before this Court.
Bowie alleges in Count II that Reverend James T.
Murphy called a church meeting and "accuse[d] [Bowie]
(verbally) . . . of having committed the crime of assault
against defendant Thornton." In the concluding paragraphs
of Count II, 55 through 58, Bowie alleges Vivian Pace and
LaJuanna Russell also defamed him. Specifically Bowie
alleges Pace "made a motion to remove [Bowie] as a Deacon
of the [church] and to reduce his membership status to that
of watch care based on [his] 'alleged assault of defendant
18
Thornton.' " LaJuanna Russell "seconded the motion of
defendant Pace on the same basis." In paragraph 56, Bowie
identifies the act of defamation, as to both women, to be
their "recommendations" regarding his office as Deacon and
change in his church membership status "in a reckless
disregard for the truth."
We said in Cha that "civil courts are not a
constitutionally permissible forum for a review of
ecclesiastical disputes," 262 Va. at 610, 553 S.E.2d at
514, and the majority correctly notes that "when . . . a
case involves a quarrel among church members . . . a court
must determine the likelihood that, in trying the issues
presented to the court, the court will be confronted with
questions of religious governance or doctrine." Because I
find that Bowie's defamation claims against defendants Pace
and Russell in Count II necessarily implicate "questions of
religious governance or doctrine," I respectfully dissent
from that portion of the majority's opinion.
Unlike the other defamation claims, Bowie's
allegations against Pace and Russell in Count II are not
that the two separately accused Bowie of assaulting
Thornton, but that because of that accusation, they "made a
motion to remove [Bowie] as a Deacon . . . and to reduce
19
his membership status [from "full"] to that of watch care."
The trial court found this "motion" particularly
significant in deciding to sustain the defendants' demurrer
to Count II of Bowie's motion for judgment:
[T]he only allegations against Ms. Russell . . . were
[that] she seconded a motion made at the church
meeting, and I think that's purely a matter of the
church's governance that the Courts simply should not
involve themselves in under the Cha case and other
cases cited in the Cha case.
I agree with the trial court on this point and believe that
the majority's decision with regard to the claims against
Pace and Russell in Count II contravenes our previous
holding that "the decisions of religious entities about the
appointment and removal of ministers and persons in other
positions of similar theological significance are beyond
the ken of civil courts." Id. at 612, 553 S.E.2d at 515
(citing Bell v. Presbyterian Church, 126 F.3d 328, 331 (4th
Cir. 1997)).
In Cha, the plaintiff alleged that the defamatory
accusations against him "imputed an unfitness to discharge
his duties as a pastor at the Church [and] implied that he
lacked integrity to be a pastor." Id. at 614, 553 S.E.2d
at 516. We held in that case that the trial court
correctly concluded "that adjudication of the plaintiff's
claims would require that the court involve itself in
20
ecclesiastical concerns," Id. at 608, 553 S.E.2d at 512,
because the defamation allegations "cannot be considered in
isolation, separate and apart from the church's decision to
terminate his employment." Id. at 615, 553 S.E.2d at 516.
Further, we noted that because the defamation defendants
"attended meetings of the church's governing bodies that
had been convened for the purpose of discussing certain
accusations against the plaintiff," deciding the
plaintiff's claim on the merits would compel a court "to
consider the church's doctrine and beliefs [as] such
matters would undoubtedly affect the plaintiff's fitness to
perform pastoral duties." Id.
Similarly, Pace and Russell's allegedly defamatory
statements took place at a church meeting at which Bowie's
church membership status and position as deacon were
debated. According to the allegations in Bowie's pleading,
Pace and Russell made recommendations to remove Bowie from
the office of deacon and reduce his church membership
status because of his alleged assault of Thornton, solely
in the context of the church governance decision as to
Bowie's church status. Their alleged recitation of a
defamatory statement cannot be considered in isolation from
21
the context in which uttered: the process of church
governance regarding Bowie's status in the church.
I can see no substantive distinction between the
alleged defamatory statements by the defendants at the
church meeting to remove Reverend Cha as a pastor and those
made in the case at bar by Pace and Russell to remove Bowie
as a deacon and to alter his membership status. Whatever
the basis of Pace and Russell in proposing the motion to
change Bowie's status, the statements and action were an
integral part of church governance and internal
organization. It is as true in this case as in Cha that
[r]esolution of the plaintiff's claims by a civil
court would have required that the circuit court
adjudicate issues regarding the church's governance,
internal organization, and doctrine, and such judicial
intervention would have limited the church's right to
select its religious leaders.
Id. at 612, 553 S.E.2d at 515.
Church membership and church leadership are clearly beyond
the purview of the courts. We have held that
[the] right to choose ministers without government
restriction underlies the well-being of religious
community . . . for perpetuation of a church's
existence may depend upon those whom it selects to
preach its values, teach its message, and interpret
its doctrines both to its own membership and to the
world at large. Any attempt by government to restrict
a church's free choice of its leaders thus constitutes
a burden on the church's free exercise rights.
22
Id. at 611, 553 S.E.2d at 514 (citing Rayburn v. General
Conference of Seventh-Day Adventists, 772 F.2d 1164, 1167-
68 (1985)).
Clearly a congregation's decision to remove a church
leader or determine a person's church membership status
inescapably involves ecclesiastical governance matters that
this Court has no authority to resolve. "[A]ny attempt by
civil courts to limit a church's choice of its religious
representatives would constitute an impermissible burden
upon that church's First Amendment rights." Id. at 611,
553 S.E.2d at 514.
While I concur with the rest of the majority's
opinion, I respectfully dissent from its resolution of the
defamation claims against Pace and Russell in Count II,
because it contravenes our long-standing jurisprudence as
expressed in Cha. Therefore, I would affirm the judgment
of the trial court sustaining the demurrer as to Pace and
Russell concerning paragraphs 55 through 58 of Count II of
the motion for judgment.
23