     Case: 19-60293    Document: 00515492303     Page: 1   Date Filed: 07/16/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 19-60293                  United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                   July 16, 2020
WILL MCRANEY,
                                                                  Lyle W. Cayce
             Plaintiff - Appellant                                     Clerk

v.

THE NORTH AMERICAN MISSION BOARD OF THE SOUTHERN
BAPTIST CONVENTION, INCORPORATED,

             Defendant - Appellee




                 Appeal from the United States District Court
                   for the Northern District of Mississippi


Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Plaintiff-Appellant Will McRaney brought suit against Defendant-
Appellee North American Mission Board of the Southern Baptist Convention
(“NAMB”) for intentional interference with business relationships, defamation,
and intentional infliction of emotional distress. The district court dismissed the
case for lack of jurisdiction, citing the ecclesiastical abstention doctrine, also
known as the religious autonomy doctrine. The district court found that it
would need to resolve ecclesiastical questions in order to resolve McRaney’s
claims. Because that conclusion was premature, we REVERSE and REMAND.
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       We review a dismissal for lack of subject matter jurisdiction de novo.
Williams v. Wynne, 533 F.3d 360, 364 (5th Cir. 2008). Dismissal is only proper
if “it appears certain that the plaintiff cannot prove any set of facts in support
of her claim which would entitle her to relief.” Wagstaff v. U.S. Dep’t of Educ.,
509 F.3d 661, 663 (5th Cir. 2007) (quoting Bombardier Aerospace Emp. Welfare
Benefits Plan v. Ferrer, Poirot & Wansbrough, 35 F.3d 348, 351 (5th Cir.
2003)). 1
       The ecclesiastical abstention doctrine recognizes that the Establishment
Clause of the First Amendment precludes judicial review of claims that require
resolution of “strictly and purely ecclesiastical” questions. Serbian E. Orthodox
Diocese for U.S. and Can. v. Milivojevich, 426 U.S. 696, 713 (1976) (quoting
Watson v. Jones, 13 Wall. 679, 733 (1871)); Kedroff v. St. Nicholas Cathedral
of Russian Orthodox Church in N. Am., 344 U.S. 94, 115–16 (1952); Kreshik v.
St. Nicholas Cathedral, 363 U.S. 190, 190–91 (1960). “[M]atters of church



       1 We note that it is somewhat unclear whether the ecclesiastical abstention doctrine
serves as a jurisdictional bar requiring dismissal under Fed. R. Civ. P. 12(b)(1) or an
affirmative defense requiring dismissal under Fed. R. Civ. P. 12(b)(6). See, e.g., Nayak v.
MCA, Inc., 911 F.2d 1082, 1083 (5th Cir. 1990) (dismissing the case pursuant to Fed. R. Civ.
P. 12(b)(6) without explicitly discussing the jurisdictional nature of the doctrine); Simpson v.
Wells Lamont Corp., 494 F.2d 490, 492, 495 (5th Cir. 1974) (stating that “[t]he people of the
United States conveyed no power to Congress to vest its courts with jurisdiction to settle
purely ecclesiastical disputes” but affirming summary judgment rather than instructing the
district court to dismiss for lack of jurisdiction); see also Watson v. Jones, 13 Wall. 679, 733
(1871) (describing a dispute that is “strictly and purely ecclesiastical in its character” as “a
matter over which the civil courts exercise no jurisdiction”); Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 195 n.4 (2012) (clarifying that the related
“ministerial exception” is an affirmative defense rather than a jurisdictional bar); Hubbard
v. J Message Grp. Corp., 325 F. Supp. 3d 1198, 1208–09 (D.N.M. 2018) (collecting cases)
Kavanagh v. Zwilling, 997 F. Supp. 2d 241, 248 n.7 (S.D.N.Y. 2014) (discussing the
uncertainty surrounding the jurisdictional nature of the ecclesiastical abstention doctrine
post-Hosanna-Tabor). We need not resolve this uncertainty because dismissal was improper,
regardless. See Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 171 (5th Cir. 2012)
(finding that review under Fed. R. Civ. P. 12(b)(6) “requires us to scrutinize the same
materials we would have considered were the case properly before us on a 12(b)(1) motion”);
Ramming v. United States, 281 F.3d 158, 161–62 (5th Cir. 2001) (providing the standards of
review for dismissals under Fed. R. Civ. P. 12(b)(1) and 12(b)(6)).
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government, as well as those of faith and doctrine” constitute purely
ecclesiastical questions. Kedroff, 344 U.S. at 116; see also Simpson v. Wells
Lamont Corp., 494 F.2d 490, 493 (5th Cir. 1974) (emphasizing that the
ecclesiastical abstention doctrine covers matters of church government as well
as matters of religious doctrine). But “[t]he First Amendment does not
categorically insulate religious relationships from judicial scrutiny, for to do so
would necessarily extend constitutional protection to the secular components
of these relationships,” which “would impermissibly place a religious leader in
a preferred position in our society.” Sanders v. Casa View Baptist Church, 134
F.3d 331, 335–36 (5th Cir. 1998); see also Bd. of Educ. of Kiryas Joel Vill. Sch.
Dist. v. Grumet, 512 U.S. 687, 703 (1994) (describing the principle “that
government should not prefer one religion to another, or religion to irreligion”
as “at the heart of the Establishment Clause”); Jones v. Wolf, 443 U.S. 595, 602
(1979) (holding that courts may apply neutral principles of law to resolve
church property disputes). Therefore, the relevant question is whether it
appears certain that resolution of McRaney’s claims will require the court to
address purely ecclesiastical questions. At this stage, the answer is no.
      Critically, many of the relevant facts have yet to be developed. Presently,
we know only the following: (1) McRaney formerly worked as the Executive
Director of the General Mission Board of the Baptist Convention for
Maryland/Delaware (“BCMD”), one of 42 separate state conventions that work
in cooperation with the Southern Baptist Convention; (2) NAMB, which has
never been McRaney’s employer, is one of twelve boards and agencies of the
Southern Baptist Convention; (3) NAMB and BCMD entered into a Strategic
Partnership Agreement (“SPA”) that addressed issues of personnel,
cooperation, and funding; (4) McRaney declined to adopt a new SPA on behalf
of BCMD, and NAMB notified BCMD that it intended to terminate the SPA in
one year; (5) McRaney’s employment was either terminated or he resigned; (6)
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                                No. 19-60293
after his termination, McRaney was uninvited to speak at a large mission
symposium in Louisville, Mississippi; and (7) a photograph of McRaney was
posted at NAMB headquarters in Alpharetta, Georgia.
      McRaney alleges that NAMB intentionally made false statements about
him to BCMD that resulted in his termination. Specifically, he alleges that
NAMB falsely told BCMD that he refused to meet with Dr. Kevin Ezell,
president of NAMB, to discuss a new SPA. He also alleges that NAMB
intentionally got him uninvited to speak at the mission symposium and posted
his picture at its headquarters to “communicate that [McRaney] was not to be
trusted and [was] public enemy #1 of NAMB.”
      In order to resolve McRaney’s claims, the court will need to determine
(1) whether NAMB intentionally and maliciously damaged McRaney’s
business relationships by falsely claiming that he refused to meet with Ezell,
see Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel & Cocke, P.A., 910 So.
2d 1093, 1098 (Miss. 2005); (2) whether NAMB’s statements about McRaney
were false, defamatory, and at least negligently made, see Jernigan v.
Humphrey, 815 So. 2d 1149, 1153 (Miss. 2002); and (3) whether NAMB
intentionally caused McRaney to suffer foreseeable and severe emotional
distress by displaying his picture at its headquarters, see Jones v. City of
Hattiesburg, 228 So. 3d 816, 819 (Miss. 2017).
      At this early stage of the litigation, it is not clear that any of these
determinations will require the court to address purely ecclesiastical
questions. McRaney is not challenging the termination of his employment, see
Simpson, 494 F.2d at 492–93 (affirming dismissal of a lawsuit in which the
plaintiff challenged his removal as pastor), and he is not asking the court to
weigh in on issues of faith or doctrine, see Nayak v. MCA, Inc., 911 F.2d 1082,
1082–83 (5th Cir. 1990) (affirming dismissal of a defamation lawsuit seeking
to enjoin the distribution and presentation of the movie “The Last Temptation
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of Christ”). His complaint asks the court to apply neutral principles of tort law
to a case that, on the face of the complaint, involves a civil rather than religious
dispute. See, e.g., Jones, 443 U.S. at 602 (holding that courts may apply neutral
principles of law to resolve church property disputes); Myhre v. Seventh-Day
Adventist Church Reform Movement Am. Union Int’l Missionary Soc’y, 719 F.
App’x 926, 928 (11th Cir. 2018) (“Civil courts may apply neutral principles of
law to decide church disputes that ‘involve[] no consideration of doctrinal
matters.’” (quoting Jones, 443 U.S. at 602)); Hutterville Hutterian Brethren,
Inc. v. Sveen, 776 F.3d 547, 553 (8th Cir. 2015) (“[A] court need not defer to an
ecclesiastical tribunal on secular questions and permissibly may resolve a
matter by applying neutral principles of the law.” (internal quotation marks
omitted)); Askew v. Trs. of Gen. Assembly of Church of the Lord Jesus Christ of
the Apostolic Faith, Inc., 684 F.3d 413, 419 (3d Cir. 2012) (“When a church
dispute turns on a question devoid of doctrinal implications, civil courts may
employ neutral principles of law to adjudicate the controversy.”); Merkos
L’Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 99–100 (2d
Cir. 2002) (“Courts may decide disputes that implicate religious interests as
long as they can do so based on ‘neutral principles’ of secular law without
undue entanglement in issues of religious doctrine.”).
       Other courts have held that similar claims did not require resolution of
purely ecclesiastical questions. In Marshall v. Munro, 845 P.2d 424 (Alaska
1993), the Alaska Supreme Court found that it had jurisdiction to consider
claims of intentional interference with a contract and defamation brought by a
minister against a church executive. Id. at 425, 429. There, as here, the alleged
interference consisted of false statements that were not religious in nature. 2


       2 NAMB argues that Marshall is distinguishable because this dispute “is rooted in and
intertwined with the primary ministry strategies of various religious organizations.” At least
at this time, the record does not support NAMB’s view. The only derogatory information
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                                      No. 19-60293
Id. at 425. The court found that, under these circumstances, resolution of the
plaintiff’s claims would not require the court to determine whether the plaintiff
was qualified to serve as a pastor. Id. at 428.
       Similarly, in Drevlow v. Lutheran Church, Missouri Synod, 991 F.2d 468
(8th Cir. 1993), the Eighth Circuit found that it had jurisdiction over a claim
of intentional interference with a legitimate expectation of employment
brought by a minister against a religious organization. Id. at 469, 472. The
plaintiff alleged that the organization placed false information—that his
spouse had previously been married—in his personal file. Id. at 469. The court
reasoned that the plaintiff’s fitness as a minister was not in dispute and the
defendant had not yet “offered any religious explanation for its actions which
might entangle the court in a religious controversy.” Id. at 471–72. The Eighth
Circuit recognized, however, that its decision was preliminary. Id. at 472 (“If
further proceedings reveal that this matter cannot be resolved without
interpreting religious procedures or beliefs, the district court should reconsider
the . . . motion to dismiss.”). The same is true here. If further proceedings and
factual development reveal that McRaney’s claims cannot be resolved without
deciding purely ecclesiastical questions, the court is free to reconsider whether
it is appropriate to dismiss some or all of McRaney’s claims. 3
       NAMB broadly objects that it may have “valid religious reason[s]” for its
actions. On remand, if NAMB presents evidence of these reasons and the
district court concludes that it cannot resolve McRaney’s claims without



McRaney identifies in his complaint—statements by NAMB that McRaney refused to meet
with Ezell—is not ecclesiastical in nature.
         3 NAMB previously moved for dismissal based on the ministerial exception, see

Hosanna-Tabor, 565 U.S. at 188; see also Our Lady of Guad. Sch. v. Morrissey-Berru, --- S.
Ct. ---, 2020 WL 3808420 (July 8, 2020), but the district court denied that motion, finding
that the ministerial exception only applies to disputes between employees and employers, not
employees and third parties. Both parties agree that the correctness of the district court’s
decision regarding the applicability of the ministerial exception is not before us.
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                                No. 19-60293
addressing these reasons, then there may be cause to dismiss. See id. Were
such a broad statement alone sufficient to warrant dismissal at this stage,
however, religious entities could effectively immunize themselves from judicial
review of claims brought against them.
      “The First Amendment protects the right of religious institutions ‘to
decide for themselves, free from state interference, matters of church
government as well as those of faith and doctrine.’” Our Lady of Guad. Sch. v.
Morrissey-Berru, --- S. Ct. ---, 2020 WL 3808420, at *3 (July 8, 2020) (quoting
Kedroff, 334 U.S. at 116). At this time, it is not certain that resolution of
McRaney’s claims will require the court to interfere with matters of church
government, matters of faith, or matters of doctrine. The district court’s
dismissal was premature. Accordingly, we REVERSE and REMAND.




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