Reversed and Rendered and Memorandum Opinion filed March 3, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00491-CV

                 BETH YESHUA HAMASHIACH, Appellant
                                        V.
                          MALAIKA ADAN, Appellee

                   On Appeal from the 190th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2010-47551

                 MEMORANDUM                     OPINION


      A synagogue appeals the trial court’s order granting partial summary
judgment in favor of one of its members on her discrimination claim under Chapter
121 of the Texas Human Resources Code. The synagogue alleges that the trial
court lacked subject matter jurisdiction over the member’s claim. We reverse.

                                  BACKGROUND
      Malaika Adan was a member of Beth Yeshua Hamashiach, a Messianic
Jewish synagogue that rents a space from Sharpstown Baptist Church. Adan is
confined to a wheelchair and regularly used the chapel restroom until Sharpstown
Baptist began complaining to Beth Yeshua about scratches on the door. A board
member of Beth Yeshua informed Adan that she needed to begin using a different
restroom in a separate building. Adan complained to the board member that neither
restroom was wheelchair accessible.
      When Beth Yeshua did not resolve the restroom issue, Adan emailed Mike
Jeter, the pastor of Sharpstown Baptist. Adan informed Pastor Jeter that the chapel
restroom did not meet the standards set forth in the Americans with Disabilities
Act (the “ADA”), that she had a disability, and that she would sue Sharpstown
Baptist if the issue was not fixed within thirty days. After discussing the restroom
issue, Adan’s email stated, in relevant part:
      I am unable to find any Scriptural reference that supports your
      position. When I ponder this situation, something I do often, I can
      only recall verses that require you to care for God’s sheep. Galatians
      6:10 frequently comes to mind, As we have therefore opportunity, let
      us do good unto all [men], especially unto them who are of the
      household of faith.
      When you receive this email you will probably contact your lawyer or
      call an emergency meeting of your Board of Directors to discuss this
      matter. It is disheartening to realize that past actions of [Sharpstown
      Baptist] lead me to expect that your first course of action will be
      reminiscent of that of Rehoboam (I Kings 12:8).
      Ephesians 6 has not been repealed. My battle is not with Caesar.
      This potentially volatile situation is either your Spiritual [sic] wake-up
      call or your death knell (Psalm 34).
      ...
      In the beginning GOD…
      Genesis 1:1
(emphasis in original).


                                           2
      Pastor Jeter responded to Adan’s email, stating, in relevant part:
      Wow. That is interesting because in my Bible reading today Paul
      writes to the church at Corinth not to take one another to court. He is
      quite clear that we are to handle problems internally. You might want
      to add 1 Corinthians 6:1-8 to the Scripture that you used in your
      email.

Pastor Jeter then explained that the building met the standards set forth in the
ADA, but that he would discuss the issue with the grounds committee. Pastor Jeter
also suggested that if the restroom issue could not be resolved and Adan still
wanted to sue, Sharpstown Baptist could “break all ties with [Beth Yeshua]” and
Beth Yeshua could find a new facility that was wheelchair accessible. Adan replied
to Pastor Jeter’s email with one sentence that stated “[f]ulfillment of I Cor 6 is
firmly in your hands.”
      In response to Adan’s email to Pastor Jeter, Rabbi Jim Pratt of Beth Yeshua
emailed Adan asking her not to sue Sharpstown Baptist over the restroom issue
because “[b]rothers and sisters in Messiah Yeshua are not to take one another to
court. I Corinthians 6:1-8. It is our purpose today to try to encourage you for
Scriptural reasons to not take Sharpstown Baptist Church to court over the
restroom issue.” Rabbi Pratt explained that the facilities were grandfathered into
the ADA standards and that they were attempting to accommodate her restroom
needs. Rabbi Pratt also stated that if Adan’s concern over the restroom issue
became too difficult, that she should consider taking a temporary leave of absence
until Beth Yeshua’s new building at another location was completed.
      Several days later, Rabbi Pratt and two board members of Beth Yeshua met
with Adan to inform her that she was not allowed to attend the synagogue for six
weeks. After the meeting, Rabbi Pratt emailed Adan with Beth Yeshua’s findings.
The email provided, in relevant part:
      After much prayer, biblical counsel and consultation, the leadership of

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       Beth Yeshua haMashiach has decided on the following findings in
       order for you to be restored and allowed to attend Beth Yeshua again.
       a) You are not allowed on the premises of Sharpstown Baptist Church
       for six weeks from Feb. 11th 2010.
       b) You must send an apology letter to Rabbi Jim Pratt, Kathleen
       Elowitz, Steve Mullins & Pastor Mike Jeter showing evidence of
       repentance.
       c) You are allowed only on Sharpstown Baptist Campus if approved
       by Sharpstown’s Leadership.
       These findings are based upon 1 Corinthians 5:11-13 and Ch 6:1-11.
       Restoration is confirmed in 2 Corinthians 2:5-11 and Proverbs 6:16-
       19.

       Adan filed this suit against Beth Yeshua1 in Harris County for violations of
the Texas Human Resources Code, the Texas Architectural Barriers Act, and the
Texas Accessibility Standards. Adan sought injunctive and declaratory relief, a
statutory fine, attorney’s fees, and costs. Adan moved for partial summary
judgment against Beth Yeshua on the limited question of whether Beth Yeshua
banned Adan from the synagogue because of her disability in violation of Chapter
121 of the Texas Human Resources Code. On April 17, 2013, the trial court
granted Adan’s motion for partial summary judgment. The order stated that the
trial court “finds” that Adan was a person with a disability, Sharpstown Baptist
qualified as a public facility, and Adan was banned from Sharpstown Baptist
“because she complained about the restroom facilities on account of her disability,
and because she attempted to assert her rights as a person with a disability.”2
       On May 13, 2013, Adan nonsuited her remaining claims under the Texas
       1
           Adan also sued Sharpstown Baptist but dismissed it from the suit on February 24, 2012.
       2
         Generally, it is improper for a trial court to make findings of fact in rendering summary
judgment. See Cotton v. Ratholes, Inc., 699 S.W.2d 203, 204 (Tex. 1985) (per curiam). However,
because we do not reach the merits of the motion for partial summary judgment, we need not
decide whether these “findings” should be treated as findings that the listed facts were
conclusively established.

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Architectural Barriers Act and the Texas Accessibility Standards. The trial court
issued a final judgment on June 17, 2013. The trial court declared that Beth Yeshua
violated Adan’s rights under Chapter 121 of the Texas Human Resources Code and
discriminated against her by denying her admittance to Sharpstown Baptist
because of her disability. The court granted Adan injunctive relief and awarded her
statutory damages in the amount of $1,000, attorney’s fees in the amount of
$58,915.00, costs in the amount of $2,032.90, and post-judgment interest.
Additionally, the trial court awarded Adan $10,000 in the event Beth Yeshua
unsuccessfully appealed to the intermediate court of appeals and $15,000 in the
event Beth Yeshua unsuccessfully appealed to the Texas Supreme Court.
                               STANDARD OF REVIEW
      When there is an issue as to the trial court’s subject matter jurisdiction, the
trial court must first determine that it has subject matter jurisdiction before getting
to the merits. Curry v. Harris Cnty. Appraisal Dist., 434 S.W.3d 815, 820 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). Lack of jurisdiction may be raised
when religious-liberty grounds form the basis for the jurisdictional challenge.
Westbrook v. Penley, 231 S.W.3d 389, 394 (Tex. 2007). Beth Yeshua raises the
issue of subject matter jurisdiction for the first time on appeal. See Tex. Ass’n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993) (“Subject matter
jurisdiction is an issue that may be raised for the first time on appeal; it may not be
waived by the parties.”). Whether the trial court has subject matter jurisdiction is a
question of law that we review de novo. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 228 (Tex. 2004).
      When jurisdiction is challenged on the pleadings, the plaintiff has the initial
burden to allege facts that affirmatively demonstrate that the trial court has subject
matter jurisdiction. Tex. Ass’n of Bus., 852 S.W.2d at 446. We construe the
pleadings liberally in favor of the plaintiff and look to the pleader’s intent.
                                          5
Miranda, 133 S.W.3d at 226. If the pleadings do not contain sufficient facts to
affirmatively demonstrate jurisdiction but do not reveal incurable defects, the issue
is one of pleading sufficiency and the plaintiff should be afforded the opportunity
to amend. Id. at 226−27. If the pleadings affirmatively negate the existence of
jurisdiction, then the plaintiff should not be afforded an opportunity to amend. Id.
at 227.
      When jurisdictional allegations are challenged, we consider relevant
evidence submitted by the parties when necessary to resolve the jurisdictional
issues raised. Id. We take as true all evidence favorable to the nonmovant and
indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Id. at 228. If the relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules on jurisdiction as a matter
of law. Id.
                       ANALYSIS OF BETH YESHUA’S ISSUES
      In three issues, Beth Yeshua contends that the trial court erred in granting
partial summary judgment to Adan on her discrimination claim. In its first issue,
Beth Yeshua asserts that the ecclesiastical abstention doctrine deprived the trial
court of subject matter jurisdiction over Adan’s claim. In its second and third
issues, Beth Yeshua argues that the trial court erred in granting partial summary
judgment to Adan and awarding her appellate attorney’s fees. Because Beth
Yeshua’s first issue is dispositive, we need not address Beth Yeshua’s second and
third issues.
      Ecclesiastical Abstention Doctrine
      The First Amendment to the United States Constitution, applicable to the
states through the Fourteenth Amendment, provides that “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof.” U.S. Const. amend. I.; see also Cantwell v. Connecticut, 310 U.S. 296,
                                          6
303 (1940). This provision forbids the government from interfering with the rights
of hierarchical religious bodies to either establish their own internal rules and
regulations or create tribunals for adjudicating disputes over religious matters.
Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708−09, 724−25
(1976). Government action is not permitted to interfere with the free exercise of
religion by encroaching on a religious institution’s ability to manage its internal
affairs. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 532 (1993); Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in
N. Am., 344 U.S. 94, 116 (1952).
       The Texas Supreme Court has recognized that churches have a fundamental
right “to decide for themselves, free from state interference, matters of church
government as well as those of faith and doctrine.” Westbrook, 231 S.W.3d at 397
(quoting Kedroff, 344 U.S. at 116); see also Watson v. Jones, 80 U.S. 679, 727
(1871). The autonomy of a church in managing its affairs and deciding matters of
church discipline has long been afforded broad constitutional protection.
Westbrook, 231 S.W.3d at 397; see also Watson, 80 U.S. at 733.
       To enforce this constitutional provision, Texas courts have utilized the
“ecclesiastical abstention doctrine.”3 Reese v. Gen. Assembly of Faith Cumberland
Presbyterian Church in Am., 425 S.W.3d 625, 627 (Tex. App.—Dallas 2014, no
pet.). The ecclesiastical abstention doctrine arises from the Free Exercise Clause of
the First Amendment and provides that the First Amendment prohibits civil courts
from exercising jurisdiction over matters concerning “theological controversy,
church discipline, ecclesiastical government, or the conformity of the members of
the church to the standard of morals required of them.” Milivojevich, 426 U.S. at

       3
         This doctrine has variously been referred to as one of “deference,” “ecclesiastical
abstention,” or “ecclesiastical exemption.” Jennison v. Prasifka, 391 S.W.3d 660, 661 n.1 (Tex.
App.—Dallas 2013, no pet.).

                                              7
713−14; see also Jennison, 391 S.W.3d at 665. Under this doctrine, courts will not
attempt to right wrongs related to the hiring, firing, discipline, or administration of
clergy. Tran v. Fiorenza, 934 S.W.2d 740, 743 (Tex. App.—Houston [1st Dist.]
1996, no writ) (quoting Higgins v. Maher, 210 Cal.App.3d 1168, 1175 (Cal. Ct.
App. 1989)). “Although such wrongs may exist and be severe, and although the
administration of the church may be inadequate to provide a remedy, the
preservation of the free exercise of religion is deemed so important a principle it
overshadows the inequities which may result from its liberal application.” Id.
      However, the Texas Supreme Court has also recognized that “[w]hile Article
I, Section 6 of the Texas Constitution and the First Amendment to the United
States Constitution afford broad protection to the free exercise of religion, they do
not necessarily bar all claims which may touch on religious conduct.” Tilton v.
Marshall, 925 S.W.2d 672, 677 (Tex. 1996). The Free Exercise Clause does not
protect actions in violation of social duties or subversive of good order. See id.; see
also Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 12 (Tex. 2008)
(“[R]eligious practices that threaten the public’s health, safety, or general welfare
cannot be tolerated as protected religious belief.”). Thus, acknowledging that
churches, their congregations, and hierarchy exist and function within the civil
community, they can be as amenable to rules governing civil, contract, or property
rights, as any other societal entity. Lacy v. Bassett, 132 S.W.3d 119, 123 (Tex.
App.—Houston [14th Dist.] 2004, no pet.) (citing Dean v. Alford, 994 S.W.2d 392,
395 (Tex. App.—Fort Worth 1999, no pet.) (“[C]ourts do have jurisdiction to
review matters involving civil, contract, or property rights even though they stem
from a church controversy.”).
      In determining whether the ecclesiastical abstention doctrine applies, courts
must analyze whether a particular dispute is “ecclesiastical” or simply a civil law
controversy in which church officials happen to be involved. See Tran, 934 S.W.2d
                                          8
at 743. To resolve this issue, courts must look to the substance and effect of a
plaintiff’s complaint to determine its ecclesiastical implication, not its emblemata.
Id.; Green v. United Pentecostal Church Int’l, 899 S.W.2d 28, 30 (Tex. App.—
Austin 1995, writ denied).
      The Trial Court Did Not Have Subject Matter Jurisdiction over This
      Dispute
      Beth Yeshua contends that the trial court lacked subject matter jurisdiction
because the ecclesiastical abstention doctrine barred the court from resolving the
issue of why Adan was temporarily banned from attending worship at the
synagogue.
      Under the ecclesiastical abstention doctrine, Beth Yeshua asserts that the
trial court did not have subject matter jurisdiction to determine whether Adan’s
temporary ban from the synagogue was issued in retaliation for claiming rights
under disability law or whether it was issued as a form of ecclesiastical discipline
for her tone and scriptural accusations against Pastor Jeter. Beth Yeshua argues
that this question entangles the court into matters of religious liberty and interferes
with Beth Yeshua’s right to manage its internal affairs in violation of the First
Amendment.
      In response, Adan contends that the court has subject matter jurisdiction
because Beth Yeshua banned Adan because of her disability, not in furtherance of
religious morals or discipline. Adan asserts that because there was “no church-
related reason” for her exclusion from the synagogue and this was a purely secular
matter, the ecclesiastical abstention doctrine does not deprive the court of subject
matter jurisdiction over her claim.
      When reviewing Adan’s claim and the evidence relevant to the jurisdictional
issue, we conclude that the trial court improperly reached the merits of Adan’s
claim because the ecclesiastical abstention doctrine applies. See In re Godwin, 293

                                           9
S.W.3d 742, 750 (Tex. App.—San Antonio 2009, orig. proceeding) (holding that
former church member’s claims against pastor and church for intentional infliction
of emotional distress, defamation, and fraud were barred by the ecclesiastical
abstention doctrine). Because this lawsuit centers on a religious dispute, the trial
court was constitutionally prohibited from exercising subject matter jurisdiction
over it. Williams v. Gleason, 26 S.W.3d 54, 60 (Tex. App.—Houston [14th Dist.]
2000, pet. denied) (“Because the genesis of this lawsuit implicates and, is
permeated throughout by, what is essentially an ecclesiastical dispute, we are
constitutionally prohibited from exercising jurisdiction over it.”); Tran, 934
S.W.2d at 743 (holding that the trial court lacked subject matter jurisdiction over
catholic priest’s claims for defamation and intentional infliction of emotional
harm).
      Adan’s original petition claims that Beth Yeshua’s refusal to admit her to the
synagogue violated the Texas Human Resources Code. Adan’s motion for partial
summary judgment also claims that she was discriminated against because of her
disability. Although Adan claims this is a purely secular matter, Adan’s Texas
Human Resources Code claim and the damages she seeks arise from Beth
Yeshua’s decision to temporarily ban Adan from worshiping at the synagogue.
      Adan’s own evidence affirmatively demonstrates that the trial court lacks
subject matter jurisdiction over her claim because the religious and secular aspects
of Adan’s complaint are so far intertwined. See Westbrook, 231 S.W.3d at 391−92
(holding that the trial court lacked subject matter jurisdiction because the court
could not divide the secular and religious aspects of plaintiff’s claim). Attached to
Adan’s motion for partial summary judgment are a series of communications
between Adan and Pastor Jeter and Adan and Rabbi Pratt. When the restroom issue
was not resolved, Adan emailed Pastor Jeter asking him to fix it and cited to the
Americans with Disabilities Act as well as several Bible verses as reasons why he
                                         10
had a duty to do so. Adan claimed that the Bible required Pastor Jeter to “care for
God’s sheep” and that “[t]his potentially volatile situation is either your Spiritual
[sic] wake-up call or your death knell.” Adan also threatened to sue Sharpstown
Baptist if the issue was not resolved.
       Rabbi Pratt then sent Adan a letter asking Adan not to sue Sharpstown
Baptist because “[b]rothers and sisters in Messiah Yeshua are not to take one
another to court.” Following a meeting between Adan and Rabbi Pratt, Beth
Yeshua issued findings for Adan’s temporary ban from the synagogue. The email
states that the findings were reached after “much prayer, biblical counsel and
consultation” and were based on several Bible verses.4
       In its response to Adan’s motion for partial summary judgment, Beth
Yeshua attached the affidavit of Rabbi Pratt. Rabbi Pratt stated that the temporary
ban was issued solely because of Adan’s email to Pastor Jeter. Rabbi Pratt
explained that the “ban was based on correspondence addressed to our host
Christian congregation’s Rev. Pastor Jeter.” He further stated that:
       My decision to issue an ecclesiastical discipline against Ms. Adan was
       no ruse or subterfuge. First of all, the tone of the email from Ms. Adan
       to Rev. Pastor Jeter represented the height of impertinence under any
       circumstances but most especially when directed by one of my lay
       congregants against the Pastor of a Christian congregation that has
       graciously and ecumenically extended itself to us.
       …
       Putting aside, therefore, the ADA issue (both empty, not directed at
       me, and not a battle in the civil realm to begin with), I found the
       remainder of the letter represented by the height of arrogance and
       impertinence through the presumptuousness exhibited by her
       scriptural cherrypicking directed at Rev. Pastor Jeter.

Rabbi Pratt also stated that a congregant in Beth Yeshua sent him Adan’s letter to
       4
         The email states that “[t]hese findings are based upon 1 Corinthians 5:11-13 and Ch
6:1-11. Restoration is confirmed in 2 Corinthians 2:5-11 and Proverbs 6:16-19.”

                                            11
Pastor Jeter along with an explanation for her action. In Adan’s email to her fellow
congregant, she stated that the email she wrote to Pastor Jeter was “written by G-d”
and that if she had written it, “the letter would have been replete with accusations
and recriminations.” Rabbi Pratt stated in his affidavit that the “reference to ‘G-d’
is significant in the Jewish tradition since the holy name’s mere utterance is an
assertion that the speaker or writer has power over the person named.”

      The pleadings and relevant jurisdictional evidence demonstrate that this was
a religious dispute between a congregant and one of its members. Although Adan
initially complained to Pastor Jeter about the restroom, she unilaterally injected
religious issues into a secular controversy. The series of communications attached
to Adan’s motion provide evidence that she was not banned from worship for
complaining about the restroom, but rather she was temporarily banned for the
manner in which she handled the situation. This evidence that Beth Yeshua
decided to punish Adan for her actions and threats against Pastor Jeter, which it
deemed contrary to the synagogue’s values and its interpretation of the Bible,
indicates that the punishment was an exercise of a religious function that the court
may not impede. See In re Godwin, 293 S.W.3d at 748 (holding that the pastor and
church’s “decision to discipline [the plaintiff] for conduct it deemed contrary to
both their Christian values and their interpretation of the Bible is an inherently
religious function with which civil courts should not interfere”).
      Although Adan claims that she was discriminated against because of her
disability, this claim arises out of an ecclesiastical matter—Beth Yeshua’s decision
to temporarily ban Adan from worshiping with the congregation of Beth Yeshua.
Id. at 749 (stating that the pastor and church’s discipline was “directed to church
governance and maintaining harmony within the congregation”); see Williams, 26
S.W.3d at 59 (“Although the [plaintiffs] argue their claims arise in tort, we find


                                         12
that each claim implicates an ecclesiastical matter, namely their subjection to the
church’s discipline.”); Tran, 934 S.W.2d at 743 (holding that the trial court lacked
subject matter jurisdiction because the priest’s defamation claim arose out of the
church’s decision to fire him). This intertwining of the religious and secular
aspects of Adan’s complaint deprives the trial court of subject matter jurisdiction
over Adan’s claim.
      Adan cites to Tilton for the proposition that the First Amendment does not
bar all claims that touch on religious conduct. 925 S.W.2d at 677. Adan asserts that
the First Amendment does not protect actions that are “in violation of social duties
or subversive of good order.” Id. However, Adan’s claim does not merely touch on
religious conduct; rather, Adan’s claim is intertwined with and arises out of Beth
Yeshua’s decision to ban her from synagogue, which is an inherently religious
function. Whether Beth Yeshua’s explanation that this religious discipline was
issued because of Adan’s use of scriptural accusations against Pastor Jeter was
genuine, or whether Adan was disciplined for asserting her rights as a disabled
person, is a question the trial court cannot determine without inserting itself into
internal matters of the synagogue’s discipline. See Starkman v. Evans, 198 F.3d
173, 175 (5th Cir. 1999) (holding that the Free Exercise Clause barred choir
director’s claims against church and reverend under the ADA and employment
law); Becker v. Clardy, No. 03-10-00376-CV, 2011 WL 6756999, at *4 (Tex.
App.—Austin Dec. 22, 2011, pet. denied) (mem. op.) (holding that the
ecclesiastical abstention doctrine barred religious teacher’s claim against a co-
worker).
      Adan also argues that the trial court had subject matter jurisdiction because
her claim can be decided by “neutral principles of law.” Under this approach, a
court may interpret church documents, such as a church constitution, in purely
secular terms without relying on religious precepts in resolving the conflict. Jones
                                        13
v. Wolf, 443 U.S. 595, 603−04 (1979). However, if the matter cannot be
determined by the court without resolving a religious controversy, then the court
must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical
body. Id. at 604; see also Hawkins v. Friendship Missionary Baptist Church, 69
S.W.3d 756, 759 (Tex. App.—Houston [14th Dist.] 2002, no pet.). In this case,
there are no constitutions, by-laws, or other governing documents in the record
indicating how the synagogue is governed. The trial court determined on summary
judgment that Beth Yeshua violated the Texas Human Resources Code because it
discriminated against her by denying her admittance to Beth Yeshua. But there are
no neutral principles of law that can be used to answer the question why Adan was
denied admittance, which would require the courts to improperly resolve a
religious controversy.
      We sustain Beth Yeshua’s first issue regarding subject matter jurisdiction.
                                    CONCLUSION
      We hold that the trial court did not have subject matter jurisdiction.
Accordingly, we reverse the trial court’s judgment and render judgment dismissing
without prejudice the case.




                                               /s/   Ken Wise
                                                     Justice



Panel consists of Justices Boyce, Busby, and Wise.




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