Brazauskas v. Fort Wayne-South Bend Diocese, Inc.

SULLIVAN, Justice,

concurring in part and dissenting in part.

I agree with the majority that the trial court had jurisdiction and that Plaintiff's allegations of blacklisting and interference are "at most marginally sufficient to raise a genuine issue of material fact." Mgzj. Op. at 7. But I disagree that the Diocese is entitled to summary judgment as a matter of law.

Employment Div. v. Smith, 494 U.S. 872, 881, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), announced that the First Amendment rarely "bars application of a neutral, generally applicable law to religiously motivated action." The Indiana blacklisting statute and common law tort of interference with prospective advantage at issue here are neutral laws of general applicability. The majority holds that, notwithstanding Smith, the Diocese is entitled to summary judgment as a matter of law for two reasons. First, the majority finds that the challenged activity here was "communicative" and that Smith contains an exception to its general rule for Free Exercise claims connected with "communicative *295activity." Second, the majority finds that the challenged activity here is protected by the "church autonomy doctrine" that survived Smith.

As to the communicative activity defense, the phrase from Smith cited by the majority is part of a larger discussion in which the Supreme Court stated its precedents could not be read to allow individuals to engage in otherwise prohibited conduct merely because the conduct is accompanied by religious conviction. See Smith, 494 U.S. at 882, 110 S.Ct. 1595 (" 'Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government.' ") (quoting Gillette v. United States, 401 U.S. 437, 461, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971)). As such, it does not establish an exception from Smith's general rule for all communicative activity. At most, the term "communicative activity" encompasses merely that communicative activity that is protected by constitutional provisions other than the Free Exercise Clause. Smith, 494 U.S. at 881-82, 110 S.Ct. 1595 (discussing prior cases). In my view, the "communicative activity" that forms the basis of Brazauskas's claims does not meet this standard.1

As to the church autonomy doctrine defense, the Supreme Court has not yet had cecasion to make clear whether this doe-trine survived Smith.2 I find it hard to reconcile Smith with the doctrine's continued vitality, at least as applied to the facts of this case.

Smith held to be constitutional a law banning the sacramental use of peyote because the law was both neutral and generally applicable. 494 U.S. at 878-82, 890, 110 S.Ct. 1595. A central concern behind Smith's neutrality principle is the notion that a private right to ignore neutral and generally applicable laws is, and should remain, a constitutional anomaly. See Smith, 494 U.S. at 879, 885, 110 S.Ct. 1595. The arguments used to support the neutral and generally applicable standard cut against the continued vitality of the church autonomy defense. Mere religious belief has never been a cognizable shield "from compliance with an otherwise valid law prohibiting conduct the State is free to regulate." Smith, 494 U.S. at 879, 110 S.Ct. 1595. Indeed, in the few cases where the U.S. Supreme Court applied the church autonomy defense, the law in question was neither neutral nor generally applicable. See Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in N. Am., 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952) (invalidating 1925 New York statute that effectively put the Russian Orthodox churches of New York under the administration of the Russian Church in America).

Even if the church autonomy defense survived Smith, I do not believe it bars Brazauskas's claim.

The church autonomy doctrine prohibits the government from "lend[ing] its power to one or the other side in controversies over religious authority or dogma." Smith, 494 U.S. at 877, 110 S.Ct. 1595. Since its inception, the doctrine has resonated most strongly in cases involving members of the clergy because these are the cases that run the greatest risk of *296forcing the government to take sides in a factional religious dispute. But courts have not used the Free Exercise Clause to bar claims by non-ministerial employees of a religious institution. See Shawna Meyer Eikenberry, Note, Thou Shalt Not Sue the Church: Denying Court Access to Ministerial Employees, 74 Ind. L.J. 269, 276 (1998).

Moreover, the church autonomy defense does not prohibit a state court from resolving church disputes if the court can and does resort to neutral principles of law and applies them in a secular fashion. See Jones v. Wolf. 443 U.S. 595, 602-04, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979) (analyzing church property dispute by using neutral principles of law). This is because in so doing, a state court avoids making determinations of the underlying religious dispute.

In the present case, Brazauskas claims that certain individuals unlawfully denied her the opportunity to work at a university. Neither party suggested, as the church autonomy defense has traditionally required, that her prospective position would have involved ministerial-type duties. To the extent that Brazauskas's claim can be characterized as a religious dispute at all, the church autonomy defense does not bar a claim where neutral principles of law are available to resolve the case. The Indiana blacklisting statute and the tort of interference with prospective advantage are religiously neutral and generally applicable. Far from advantaging any particular religious faction or group, the laws provide for the general welfare by protecting an open and free market of labor in all spheres. The Legislature could have accommodated custom by providing an exception to the law but it did not. Neither the Indiana blacklisting statute nor the tort of interference with prospective advantage benefits any one religious faction over any other. And just as there was no contention in Smith that the Oregon drug law was "an attempt to regulate religious beliefs," neither is there any similar contention here. See Smith, 494 U.S. at 882, 110 S.Ct. 1595.

. None of the majority, Brazauskas, or the Diocese appear to suggest that the disputed communicative activity would be constitutionally protected absent the claim of religious conviction.

. I acknowledge the majority's citations to two federal Courts of Appeal that have so held. Bryce v. Episcopal Church, 289 F.3d 648 (10th Cir.2002); EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C.Cir.1996).