                                 STATE OF MINNESOTA

                                  IN SUPREME COURT

                                      A14-0605

Court of Appeals                                                           Anderson, J.
                                                 Dissenting, Lillehaug, J., Gildea, C.J.
                                                   Took no part, Hudson, Chutich, JJ.

LaVonne Pfeil, Individually and as Trustee
for Heirs of Henry Pfeil, deceased,

                    Appellant,

vs.                                                               Filed: April 6, 2016
                                                            Office of Appellate Courts
St. Matthews Evangelical Lutheran Church
of the Unaltered Augsburg Confession of
Worthington, Nobles County, Minnesota,
et al.,

                    Respondents.

                             ________________________

Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis,
Minnesota, for appellant.

Ken D. Schueler, Jennifer M. Peterson, Dunlap & Seeger, P.A., Rochester, Minnesota;
and

Timothy J. O’Connor, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A.,
Minneapolis, Minnesota, for respondents.

Mark R. Bradford, Steven P. Aggergaard, Bassford Remele, Minneapolis, Minnesota; and

Sherri C. Strand, Mark Sableman, Anthony F. Blum, Thompson Coburn, LLP, Saint
Louis, Missouri, for amicus curiae The Lutheran Church-Missouri Synod.

                             ________________________



                                             1
                                    SYLLABUS

      Under the ecclesiastical abstention doctrine, pastors and their church are not liable

to former parishioners for defamation or related common-law torts for statements made

by the pastors during the course of formal church discipline proceedings when the

statements were communicated only to other members of the church and participants in

the formal church discipline process.

      Affirmed.

                                        OPINION

ANDERSON, Justice.

      In this case, we are presented with the question of whether pastors and their

church can be held liable for statements the pastors made about a parishioner during

formal church disciplinary proceedings. Appellants LaVonne and Henry Pfeil allege that

they were defamed by the pastoral staff of St. Matthew Lutheran Church1 during two

church disciplinary proceedings that were held for the purpose of excommunicating the

Pfeils from St. Matthew. The district court dismissed the Pfeils’ claims with prejudice on

First Amendment grounds, and the court of appeals affirmed.            Because the First

Amendment to the United States Constitution protects the right of a religious



1
        There appears to be some discrepancy with respect to the church’s proper name.
Appellant indicates that, according to the Secretary of State’s office, the church’s legal
name is “St. Matthews [sic] Evangelical Luthern [sic] Church of the Unaltered Augsburg
Confession of Worthington, Nobles County, Minnesota.” The church is commonly
referred to as “St. Matthew” and respondents have clarified that the church would prefer
to be identified as “St. Matthew.”

                                            2
organization to make autonomous decisions regarding church discipline and membership,

we affirm the district court’s dismissal of the claims.

                                              I.

       Prior to 2011, LaVonne and Henry Pfeil were longstanding members of St.

Matthew.2 St. Matthew, in turn, is a member of the Lutheran Church-Missouri Synod.

On August 22, 2011, the Pfeils received a letter signed by St. Matthew’s pastors,

respondent Thomas Braun (“Braun”) and respondent Joe Behnke (“Behnke”). The letter

contained several allegations regarding the Pfeils’ conduct over the preceding two years,

but focused on complaints that the Pfeils had been engaged in “slander and gossip”

against the leadership and ministry of the congregation. In addition to criticizing the

Pfeils’ behavior, the letter advised the Pfeils that they had excommunicated themselves

from St. Matthew and informed the Pfeils that their church membership had been

terminated.

       Subsequent to the August 22 letter, the Lutheran Church-Missouri Synod advised

the leadership of St. Matthew to hold a “special voters’ meeting” so that the congregation

could vote to affirm or reject the excommunication decision.             The Pfeils and

approximately 89 members of St. Matthew attended the special voters’ meeting, which

was held on September 25, 2011. Braun addressed the meeting, reading from a set of

prepared remarks, and published the August 22 letter to those present at the meeting.



2
       Because this case was resolved on a Rule 12 motion to dismiss, the facts recited
here are drawn from the Pfeils’ Second Amended Complaint.

                                              3
According to the Pfeils, Braun’s remarks and the August 22 letter contained several

defamatory statements, including:

    The Pfeils were actively involved in slander, gossip, and speaking against Braun
     and his wife, Behnke, and the St. Matthew Board of Elders.
    The Pfeils had intentionally attacked, questioned, and discredited the integrity of
     Braun, Behnke, and other St. Matthew church leaders.
    Other people had observed the Pfeils display anger and disrespect toward Braun.
    The Pfeils had publicly engaged in “sinful behavior” inside and outside St.
     Matthew.
    The Pfeils had engaged in behavior unbecoming of a Christian.
    The Pfeils had engaged in a “public display of sin.”
    The Pfeils had refused to meet for the purpose of confession and forgiveness.
    The Pfeils had “refused to show respect” toward servants of God and St. Matthew
     church leadership.
    The Pfeils had led other people into sin.
    The Pfeils had engaged in slander and gossip and had refused to stop engaging in
     slander and gossip.
    The Pfeils had refused to follow the commands and teachings of God’s word.

      After Braun’s remarks, ballots were distributed to the members of St. Matthew

who were present at the meeting, and the members voted to affirm the pastors’ decision

to terminate the Pfeils’ membership at St. Matthew. Subsequently, in March 2012, a

Missouri Synod panel held a hearing to reconsider the Pfeils’ excommunication. The

Pfeils allege that during the Synod hearing, Behnke falsely claimed that the Pfeils had

recently accused Behnke of stealing money from St. Matthew. The Synod panel also

affirmed the Pfeils’ excommunication.

      On August 16, 2013, LaVonne Pfeil brought a lawsuit on behalf of herself and

Henry Pfeil, asserting claims for defamation and negligence against St. Matthew, Braun,




                                           4
and Behnke (collectively respondents).3 On December 24, 2013, respondents filed a

motion to dismiss for lack of subject matter jurisdiction pursuant to Minn. R. Civ. P.

12.02(c). Respondents argued that the Pfeils’ claims would cause the district court to

become excessively entangled with religion and that the claims were therefore barred by

the First Amendment to the United States Constitution under the “ecclesiastical

abstention doctrine.”

       After resolving Henry Pfeil’s claims on other grounds,4 the district court

concluded that the First Amendment deprived the court of jurisdiction to adjudicate

LaVonne Pfeil’s remaining claims and dismissed the case with prejudice. The Pfeils

appealed the district court’s ruling and the court of appeals affirmed with respect to the

First Amendment issue, concluding that the First Amendment barred all of the Pfeils’




3
       Henry Pfeil died in April 2012. After LaVonne Pfeil filed suit, the district court
named her trustee for Henry Pfeil’s claims, and the complaint was amended to reflect this
change. Although only LaVonne Pfeil appears here, we refer to the Pfeils collectively in
this opinion for convenience.
4
       Previously, respondents moved to dismiss for failure to state a claim under Minn.
R. Civ. P. 12.02(e), arguing that the Pfeils did not plead the defamatory statements with
sufficient detail and that Henry Pfeil’s claims did not survive his death. The Pfeils
countered by opposing the motion, moving to amend their complaint, and submitting a
second amended complaint for the district court’s consideration. The court granted the
Pfeils’ motion to amend their complaint; granted respondents’ motion to dismiss with
respect to Henry Pfeil’s claims, finding that they did not survive his death; and denied
respondents’ motion with respect to LaVonne Pfeil’s claims, finding that they were
pleaded with sufficient detail. None of these rulings are before us because they were not
appealed or argued to this court and the court of appeals resolved the case solely on First
Amendment grounds.


                                            5
claims.5 Pfeil v. St. Matthews Evangelical Lutheran Church, No. A14-0605, 2015 WL

134055, at *3-6 (Minn. App. Jan. 12, 2015).            We granted review to clarify our

jurisprudence regarding the intersection of the First Amendment and civil claims against

religious institutions.

                                                 II.

                                                 A.

       The district court and the court of appeals based their rulings on what they termed

the “ecclesiastical abstention doctrine.” The legal principle that has come to be known as

the “ecclesiastical abstention doctrine” or the “church autonomy doctrine” has its roots in

a line of U.S. Supreme Court decisions regarding church property and church schisms.

The first, Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872), concerned a dispute over

which individuals were entitled to the position of “elder” in a Presbyterian church in

Kentucky. Id. at 714. Rather than evaluate the merits of the parties’ arguments regarding

church doctrine, the Court deferred to the ruling of the Presbyterian General Assembly,

which did not recognize the individuals in question as elders, and indicated the lower

courts should have exercised the same deference. See id. at 732-34. The Court viewed

judicial review of ecclesiastic tribunals as striking at the very heart of religious freedom

and held that allowing civil review would “deprive [religious] bodies of the right of

5
       The Pfeils brought claims for defamation against Braun, Behnke, and St. Matthew.
They also brought a negligence claim against St. Matthew, alleging that St. Matthew
negligently allowed the defamation to occur. Because all of these claims have their
factual basis in the allegedly defamatory statements made during church disciplinary
proceedings, we analyze them together and generally refer to the defamatory statements
as the basis for the Pfeils’ claims.

                                             6
construing their own church laws . . . and would, in effect, transfer to the civil courts

where property rights were concerned the decision of all ecclesiastical questions.” Id. at

733-34. The essence of the Court’s holding is captured in a now-famous quotation:

       The right to organize voluntary religious associations to assist in the
       expression and dissemination of any religious doctrine, and to create
       tribunals for the decision of controverted questions of faith within the
       association, and for the ecclesiastical government of all the individual
       members, congregations, and officers within the general association, is
       unquestioned. All who unite themselves to such a body do so with an
       implied consent to this government, and are bound to submit to it. But it
       would be a vain consent and would lead to the total subversion of such
       religious bodies, if any one aggrieved by one of their decisions could
       appeal to the secular courts and have them reversed. It is of the essence of
       these religious unions, and of their right to establish tribunals for the
       decision of questions arising among themselves, that those decisions should
       be binding in all cases of ecclesiastical cognizance, subject only to such
       appeals as the organism itself provides for.

Id. at 728-29.

       The U.S. Supreme Court strengthened the doctrine announced in Watson when it

decided Serbian Eastern Orthodox Diocese for the United States of America & Canada v.

Milivojevich, 426 U.S. 696 (1976).6 In deciding that the Illinois Supreme Court had

violated the First Amendment when it reinstated a defrocked bishop, the Milivojevich

Court held that “where resolution of the disputes cannot be made without extensive


6
       Watson was a pre-Erie diversity case and was decided on the basis of federal
common law, not the First Amendment. See Kedroff v. St. Nicholas Cathedral of Russian
Orthodox Church in N. Am., 344 U.S. 94, 115-16 (1952). Subsequently, however,
Kedroff enshrined Watson’s theory of deference as a constitutional doctrine by grounding
Watson’s holding in the First Amendment. Id. Milivojevich represents the first time the
Court addressed the doctrine post-Kedroff and clearly constitutionalized the idea that the
decisions of religious tribunals should be afforded significant deference under the First
Amendment.

                                            7
inquiry by civil courts into religious law and polity, the First and Fourteenth

Amendments mandate that civil courts shall not disturb the decisions of the highest

ecclesiastical tribunal within a church of hierarchical polity, but must accept such

decisions as binding on them, in their application to the religious issues of doctrine or

polity before them.” Id. at 709.

       But the autonomy granted to religious institutions by the First Amendment is not

boundless. The U.S. Supreme Court has repeatedly emphasized that certain situations

allow courts to use “neutral principles of law” to resolve controversies involving religious

institutions and their parishioners.    Jones v. Wolf, 443 U.S. 595, 602-05 (1979)

(approving of the “neutral principles of law” approach as “consistent with the [First

Amendment]” and stating that “[w]e cannot agree [with the dissent] that the First

Amendment requires the States to adopt a rule of compulsory deference to religious

authority in resolving church property disputes, even where no issue of doctrinal

controversy is involved”); Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull

Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969) (suggesting that courts could

resolve church property disputes if they applied “neutral principles of law”). Indeed, we

applied the neutral-principles approach in the context of a negligent counseling claim

brought against a pastor by a former parishioner who received counseling services from

the pastor. See Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d

426, 430-36, 440-41 (Minn. 2002) (using the neutral principles contained in a statute

regulating counseling activity to determine the standard of care applicable to a pastor

providing counseling services).

                                             8
       The U.S. Supreme Court recently addressed the ecclesiastical abstention doctrine

in 2012 when it decided Hosanna-Tabor Evangelical Lutheran Church & School v.

EEOC, ___ U.S. ___, 132 S. Ct. 694 (2012). In Hosanna-Tabor, a unanimous Supreme

Court adopted the so-called “ministerial exception,” a derivative of the ecclesiastical

abstention doctrine that had been endorsed for years in the federal circuit courts. Id. at

___, 132 S. Ct. at 705-06. The ministerial exception exempts churches and religious

organizations from compliance with employment discrimination statutes when making

decisions regarding ministerial employees. Id. at ___, 132 S. Ct. at 705-06. In adopting

the ministerial exception, the Hosanna-Tabor Court relied heavily on Watson, Kedroff,

and Milivojevich, and concluded that subjecting churches and religious organizations to

discrimination laws in the context of ministerial employment decisions would “interfere[]

with the internal governance of the church” and violate the Free Exercise Clause and the

Establishment Clause of the First Amendment. Id. at ___, 132 S. Ct. at 706. The Court

further indicated that whether the ecclesiastical abstention doctrine applies or whether

neutral principles and secular law can be used in a given case turns on whether

adjudication would result in “government interference with an internal church decision

that affects the faith and mission of the church itself.” Id. at ___, 132 S. Ct. at 707.

       Although none of these Supreme Court cases speaks directly to the issues raised

by the Pfeils’ claims, several helpful rules can be drawn from them. First, a court cannot

overturn the decisions of governing ecclesiastical bodies with respect to purely

ecclesiastical concerns, such as internal church governance or church discipline. See

Watson, 80 U.S. at 727. Second, a court may not entertain cases that require the court to

                                              9
resolve doctrinal conflicts or interpret church doctrine. See Milivojevich, 426 U.S. at

720; Mary Elizabeth, 393 U.S. at 449. Finally, a court may decide disputes involving

religious organizations, but only if the court is able to resolve the matter by relying

exclusively on neutral principles of law, the court does not disturb the ruling of a

governing ecclesiastical body with respect to issues of doctrine, and the adjudication does

not “interfere[] with an internal church decision that affects the faith and mission of the

church itself.” Hosanna-Tabor, ___ U.S. at ___, 132 S. Ct. at 707; see also Wolf, 443

U.S. at 602-05.

                                                 B.

       Before addressing the specifics of this case, we must clarify one additional point

about the ecclesiastical abstention doctrine.     Previously, we have characterized the

doctrine as a jurisdictional bar. See Odenthal, 649 N.W.2d at 430-34, 441. The district

court, the court of appeals, and the parties also proceeded under the assumption that the

doctrine limits a court’s subject matter jurisdiction. See Pfeil v. St. Matthews Evangelical

Lutheran Church, No. A14-0605, 2015 WL 134055, at *2-3 (Minn. App. Jan. 12, 2015).

In Hosanna-Tabor, however, the U.S. Supreme Court clarified that the doctrine does not

relate to subject matter jurisdiction. The Court resolved a disagreement among federal

circuit courts and held that the ministerial exception actually functioned as an affirmative

defense on the merits to an “otherwise cognizable” claim under a federal statute.

___ U.S. at ___, 132 S. Ct. at 709 n.4 (“We conclude that the exception operates as an

affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is

because the issue presented by the exception is ‘whether the allegations the plaintiff

                                            10
makes entitle him to relief,’ not whether the court has ‘power to hear [the] case.’ ”

(quoting Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 254 (2010))).

       The U.S. Supreme Court’s holding in Hosanna-Tabor leads us to conclude that the

ecclesiastical abstention doctrine is not a jurisdictional bar. When applied to a state-law

tort claim, the doctrine could function as an affirmative defense on the merits, as it does

in the context of federal anti-discrimination statutes. See Hosanna-Tabor, ___ U.S. at

___, 132 S. Ct. at 709 n.4. But we do not believe that the U.S. Supreme Court’s ruling in

Hosanna-Tabor compels that result. The unique circumstances surrounding the decision

in Hosanna-Tabor, particularly the fact that the Court was confronted with a statutory

cause of action, provide us with some latitude to decide how the doctrine will be applied

in Minnesota courts.

       As mentioned above, one possible option is to treat the doctrine as an affirmative

defense on the merits. We note, however, that the doctrine could also function as a form

of abstention, as one of its names implies. We have previously suggested that Minnesota

courts could abstain from certain cases. See Gavle v. Little Six, Inc., 555 N.W.2d 284,

290 (Minn. 1996) (discussing abstention in the context of a suit involving tortious acts,

some of which were committed on tribal land). Abstention provides a narrow exception

to a district court’s obligation to hear the cases that are brought before it, allowing the

court to dismiss a claim it would otherwise adjudicate. Id. Ordinarily, abstention is

invoked when there is concurrent jurisdiction, or more than one court has been asked to

adjudicate the same set of claims. Id. But abstention can also be a useful framework in

cases where there are not “two competing lawsuits.” Id.

                                            11
       The parties did not brief or argue the distinction between an affirmative defense

and abstention. Because the issue was not briefed and is not essential to the disposition

of this case, we decline to characterize the doctrine. See State v. Schweppe, 306 Minn.

395, 401 n.3, 237 N.W.2d 609, 614 n.3 (1975) (declining to decide an issue not briefed or

argued by the parties). Instead, we hold only that the doctrine is not a jurisdictional bar

to adjudication. We leave for another time the question of whether the doctrine is best

viewed as an affirmative defense on the merits or a form of abstention.

                                                 III.

       In reaching the conclusion that adjudication of the Pfeils’ claims was barred by the

First Amendment, both the district court and the court of appeals relied heavily on two

previous court of appeals decisions. In the first, Black v. Snyder, 471 N.W.2d 715 (Minn.

App. 1991), rev. denied (Minn. Aug. 29, 1991), the court of appeals held that a former

pastor could not bring a defamation claim and a whistleblower claim against the church

that had terminated her based on statements that were made during the course of her

termination.7 Id. at 718, 720. Essentially, the Snyder court adopted what amounted to a

ministerial exception. See id. at 720 (citing Minker v. Baltimore Annual Conference of

United Methodist Church, 894 F.2d 1354, 1360-61 (D.C. Cir. 1990)). The court observed

that “[w]hen claims involve ‘core’ questions of church discipline and internal

governance, the Supreme Court has acknowledged that the inevitable danger of

7
       The court did allow the pastor to pursue a sexual-harassment claim based on the
conduct of another pastor at the church because that claim was not based on the church’s
decision to terminate her employment and because that claim was unrelated to pastoral
qualifications or issues of church doctrine. Snyder, 471 N.W.2d at 720-21.

                                            12
governmental entanglement precludes judicial review.” Id. (citing Milivojevich, 426 U.S.

at 717, 721).

       Snyder’s ruling was extended by Schoenhals v. Mains, 504 N.W.2d 233 (Minn.

App. 1993). The Mains court held that two former parishioners could not sue their

former pastor for defamation because their claim arose out of four statements the pastor

made to the congregation when he was explaining his reasons for terminating the

plaintiffs’ membership in the church. Id. at 234-35. The court found that three out of the

four allegedly defamatory statements could not serve as the basis for a claim because

adjudicating the truth or falsity of the statements would require the court to interpret

matters of church doctrine. Id. at 236. The court noted that one of the reasons stated for

terminating the parishioners’ membership—that they had engaged in the “direct

fabrication of lies”—could possibly be adjudicated without interpreting or inquiring into

church doctrine. Id. But, relying on Snyder, the Mains court found that adjudicating a

defamation claim based on that statement would violate the First Amendment because it

would require an inquiry into matters of church discipline.      Id. (citing Snyder, 471

N.W.2d at 720).

       Both the district court and the court of appeals concluded the holding in Mains

was directly applicable to the Pfeils’ case and held that adjudicating the Pfeils’ claims

would violate the First Amendment. Pfeil, 2015 WL 134055, at *3-6. It is clear that if

we adopt the rule from Mains, the Pfeils’ claims should be dismissed.          All of the

statements on which the Pfeils base their claims occurred during church disciplinary

proceedings, and Mains prohibits civil courts from inquiring into any statements made

                                           13
during the course of a church disciplinary proceeding. 504 N.W.2d at 236. We are, of

course, not bound by decisions of the court of appeals, and appellants urge us to modify

the rule from Mains to allow defamation suits based on statements that are made during

the course of church discipline proceedings when adjudicating the truth of the statements

at issue would not require a court to interpret matters of religious doctrine.

                                                  A.

       Respondents’ primary argument is that adjudicating the Pfeils’ claims would

violate the First Amendment to the United States Constitution.8 Issues of constitutional

interpretation are questions of law that we review de novo. State v. Shattuck, 704

N.W.2d 131, 135 (Minn. 2005).          We have traditionally analyzed the ecclesiastical

abstention doctrine as an Establishment Clause question and applied the three-pronged

test announced in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). See, e.g., Odenthal,

649 N.W.2d at 435. In order to be valid under Lemon, “a state action must have a secular

purpose, must neither inhibit nor advance religion in its primary effect, and must not

foster excessive governmental entanglement with religion.” Odenthal, 649 N.W.2d at

8
        Respondents also contend that the Pfeils’ claims are barred by the Freedom of
Conscience Clause in Article I, section 16 of the Minnesota Constitution. Respondents
did not raise this argument below. This court does not typically consider constitutional
issues that were not raised in the district court. In re Welfare of C.L.L., 310 N.W.2d 555,
557 (Minn. 1981). At oral argument, respondents contended that the court should address
their argument under the Minnesota Constitution because claims regarding subject matter
jurisdiction cannot be waived. See Dead Lake Ass’n v. Otter Tail Cty., 695 N.W.2d 129,
134 (Minn. 2005). Because we decide that the ecclesiastical abstention doctrine does not
create a jurisdictional bar, we decline to reach respondents’ arguments under the
Minnesota Constitution—those arguments have been forfeited. See In re Welfare of
C.L.L., 310 N.W.2d at 557.


                                             14
435. The parties agree that because defamation law serves a secular purpose and does not

have the primary effect of advancing or inhibiting religion, only the excessive-

entanglement question is in dispute.

       It is worth noting that no U.S. Supreme Court case applying the ecclesiastical

abstention doctrine has used the Lemon test or announced another general test. The

Hosanna-Tabor court grounded the doctrine in both the Establishment and Free Exercise

Clauses of the First Amendment, but provided no guidance on the applicability of more

general Establishment Clause and Free Exercise Clause jurisprudence. See ___ U.S.

at ___, 132 S. Ct. at 706.    Regardless, Lemon’s entanglement prong and Hosanna-

Tabor’s focus on whether adjudicating the claim would interfere with internal decisions

that impact religious organizations’ faith and mission appear to be substantially similar

inquiries. Thus, we must determine whether allowing the Pfeils’ claims to proceed will

“foster excessive governmental entanglement with religion,” Odenthal, 649 N.W.2d at

435 (citing Lemon, 403 U.S. at 612-13), or “interfere[] with an internal church decision

that affects the faith and mission of the church itself.” Hosanna-Tabor, ___ U.S. at ___,

132 S. Ct. at 707.

                                                B.

       Courts from other jurisdictions that have faced similar facts have generally

adopted one of two approaches. Respondents urge us to adopt a rule that adjudicating

any defamation claim arising out of a statement made during a church disciplinary




                                           15
proceeding violates the First Amendment, as several other courts have done.9 The Pfeils

have asked us to adopt a claim-by-claim, element-by-element approach to the

ecclesiastical abstention doctrine.10   Specifically, the Pfeils direct us to Connor v.

Archdiocese of Philadelphia, 975 A.2d 1084 (Pa. 2009), and argue that we should adopt

the rule that the Pennsylvania Supreme Court announced in that case.

      The Connor court ruled that a student who was expelled from a religious school

could maintain an action for defamation based on statements made during the course of

his expulsion. Id. at 1113. In reaching that ruling, the Connor court announced a broader

rule to govern ecclesiastical abstention cases. According to Connor, a court confronted

with an ecclesiastical abstention issue should evaluate each individual claim brought by

9
       See Hutchison v. Thomas, 789 F.2d 392 (6th Cir. 1986); Yaggie v. Indiana-
Kentucky Synod Evangelical Lutheran Church in Am., 860 F. Supp. 1194 (W.D. Ky.
1994); Farley v. Wisc. Evangelical Lutheran Synod, 821 F. Supp. 1286 (D. Minn. 1993);
Higgins v. Maher, 258 Cal. Rptr. 757 (Cal. Ct. App. 1989); O’Connor v. Diocese of
Honolulu, 885 P.2d 361 (Haw. 1994); Joon Ki Lee v. Byeong Ho Son, No. 1-11-3217,
2012 WL 6962978 (Ill. Ct. App. Sept. 28, 2012); Stepek v. Doe, 910 N.E.2d 655 (Ill. Ct.
App. 2009); Purdum v. Purdum, 301 P.3d 718 (Kan. Ct. App. 2013); Hiles v. Episcopal
Diocese of Mass., 773 N.E.2d 929 (Mass. 2002); Brady v. Pace, 108 S.W.3d 54 (Mo. Ct.
App. 2003); Howard v. Covenant Apostolic Church, Inc., 705 N.E.2d 385 (Ohio Ct. App.
1997); Ausley v. Shaw, 193 S.W.3d 892 (Tenn. Ct. App. 2005); Anderson v. Watchtower
Bible & Tract Soc’y of N.Y., Inc., No. M2004-01066-COA-R9CV, 2007 WL 161035
(Tenn. Ct. App. Jan. 19, 2007); Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).
10
      See Drevlow v. Lutheran Church, Mo. Synod, 991 F.2d 468 (8th Cir. 1993);
Kavanagh v. Zwilling, 997 F. Supp. 2d 241 (S.D.N.Y. 2014); Klagsbrun v. Va’ad
Harabonim of Greater Monsey, 53 F. Supp. 2d 732 (D.N.J. 1999); McAdoo v. Diaz, 884
P.2d 1385 (Alaska 1994); Marshall v. Munro, 845 P.2d 424 (Alaska 1993); Lipscombe v.
Crudup, 888 A.2d 1171 (D.C. 2005); Cargill v. Greater Salem Baptist Church, 215
S.W.3d 63 (Ky. Ct. App. 2006); Ciganik v. York, No. 2013-P-0018, 2013 WL 6881611
(Ohio Ct. App. Dec. 31, 2013); Connor v. Archdiocese of Phila., 975 A.2d 1084 (Pa.
2009); Banks v. St. Matthew Baptist Church, 750 S.E.2d 605 (S.C. 2013); Bowie v.
Murphy, 624 S.E.2d 74 (Va. 2006).

                                           16
the plaintiffs and determine whether it is “reasonably likely” that the plaintiffs could

prove each element without intruding on the “sacred precincts.” Id.

       As an initial matter, the Pfeils have conceded here that the majority of the

statements detailed in their second amended complaint cannot serve as the basis for a

defamation claim, even under the more liberal rule announced in Connor, because

adjudicating the truth or falsity of the statements would require the court to consider and

interpret matters of church doctrine. See Milivojevich, 426 U.S. at 720; Mary Elizabeth,

393 U.S. at 449. For instance, a court could not decide whether the Pfeils were engaged

in a “public display of sin” without interpreting the meaning of the word “sin” as a matter

of Lutheran doctrine—a determination that would clearly be unconstitutional.

       The Pfeils maintain that four of the statements discussed in the complaint can be

adjudicated without violating the First Amendment: (1) that the Pfeils “perpetuated

falsehoods” about St. Matthew and its pastors, (2) that the pastors of St. Matthew had

received numerous complaints about the Pfeils’ slander and gossip, (3) that the Pfeils

accused Behnke of stealing money from the church shortly before the Synod hearing, and

(4) that the Pfeils committed “breaches of confidentiality.” The Pfeils argue that a court

could use neutral principles of law to determine the truth of these statements and,

consequently, adjudicating a claim based on these four statements would not lead to

excessive entanglement with religion.      Respondents and their amicus, the Lutheran

Church-Missouri Synod, counter that the religious context in which these statements were

made necessarily precludes judicial intervention.



                                            17
                                                 C.

        Respondents argue that allowing a court to adjudicate a claim based on statements

made during a church disciplinary proceeding would unduly entangle the court with

religion and severely interfere with the ability of religious organizations to govern their

own affairs. To begin with, respondents posit that because the statements were made

during the course of a church disciplinary hearing, each statement has some religious

meaning and a court cannot simply sort so-called “secular” statements from “religious”

ones.

        This argument has merit. Many of the statements the Pfeils identified in their

complaint are obviously religious in nature.      Although other statements seem more

secular in nature, it would certainly be difficult to differentiate between secular and

religious statements, especially when the context in which the statements were made was

clearly religious.   A statement-by-statement analysis would be, at best, a difficult

endeavor and, at worst, a court might be forced to interpret doctrine just to determine

whether or not a statement had a religious meaning.           It is precisely this sort of

complicated and messy inquiry that we seek to avoid by prohibiting courts from

becoming excessively entangled with religious institutions.

        Respondents also argue that the Pfeils’ claims are nothing more than an attempt to

circumvent the U.S. Supreme Court’s rulings in Watson and Milivojevich and obtain

judicial review of the decision to excommunicate them. There is no doubt that the First

Amendment protects the right of churches and religious organizations to make decisions

regarding their membership. See Watson, 80 U.S. at 727. To some degree, the Pfeils’

                                            18
defamation claims are a request to evaluate the accuracy of the facts used to support

respondents’ decision to excommunicate the Pfeils. Some courts that adopt an absolute

position on adjudicating suits arising out of church disciplinary proceedings reason that

“[t]he First Amendment’s protection of internal religious disciplinary proceedings would

be meaningless if a parishioner’s accusation that was used to initiate those proceedings

could be tested in a civil court.” Hiles v. Episcopal Diocese of Mass., 773 N.E.2d 929,

937 (Mass. 2002).

         In essence, respondents argue that immunity from defamation suits based on

statements made during church disciplinary proceedings must necessarily be included

within a church’s First Amendment right to make membership decisions, lest that right

ring hollow. Respondents stress that this is particularly true because exposing these

proceedings and their participants to civil litigation will lead to a chilling effect. If

church disciplinary proceedings are not shielded from the scrutiny of civil courts, there is

a very real risk that those who participate will censor themselves in order to avoid

liability or the threat of a lawsuit. See Paul v. Watchtower Bible & Tract Soc. of N.Y.,

Inc., 819 F.2d 875, 880 (9th Cir. 1987); Westbrook v. Penley, 231 S.W.3d 389, 400 (Tex.

2007).

         In response, the Pfeils argue that the rule in Connor would provide sufficient

protection to religious organizations by preventing courts from intruding into the “sacred

precincts.”    The Pfeils seem to interpret intruding on the “sacred precincts” to be

equivalent to interpreting church doctrine. But the Pennsylvania Supreme Court did not

specify what would qualify as a “sacred precinct.” In fact, the Pennsylvania Supreme

                                            19
Court cited Mains with approval, indicating that our court of appeals made the correct

decision by refusing to delve into statements made during a church disciplinary

proceeding because adjudicating the parishioners’ claims would have “obviously

intrude[d] into the sacred precincts.” Connor, 975 A.2d at 1108 (citing Mains, 504

N.W.2d at 234). Consequently, it is quite possible that even the Connor court would bar

suits based on statements made during the course of a church disciplinary proceeding.

      Additionally, the Pfeils fail to address the argument that determining which

statements are secular and which are religious would, itself, create an excessive

entanglement with religion. Although the Pfeils argue that defamation law provides

sufficient protection for statements made during the course of a church disciplinary

proceeding, we find this argument unpersuasive. This litigation and the arguments on

which the Pfeils rely provide evidence to the contrary. Indeed, the fact that under Pfeils’

rule “clearly religious” statements would be immune from suit while more factually

based “secular” statements would not be only exacerbates the chilling effect of which

respondents warn. Such a rule could perversely incentivize religious organizations to

rely on amorphous and “doctrinal” reasons when making membership decisions in order

to avoid any statements that could be construed as secular. Although not directly before

us, the fact that Pfeils’ rule would reward such behavior demonstrates that it would both




                                            20
excessively entangle the court with religion and unduly interfere with the ability of

religious organizations to make decisions regarding membership and internal discipline.11

       The Pfeils make two additional arguments in an effort to support a statement-by-

statement approach. First, they argue that the rule from Mains is itself unconstitutional

because it provides an impermissible benefit to religious leaders and organizations, which

is a violation of the Establishment Clause of the First Amendment. The Pfeils cite no

case law in support of the proposition that shielding religious leaders and organizations

from tort liability for their actions in the course of a church disciplinary proceeding

would violate the Establishment Clause, and we have found none. In fact, the Pfeils’

argument appears to be in tension with the U.S. Supreme Court’s holding in Hosanna-

Tabor, which broadly exempted religious organizations from federal anti-discrimination

law in the context of ministerial employment decisions on the basis of the First

Amendment. ___ U.S. at ___, 132 S. Ct. at 705-06. If the ministerial exception does not

violate the Establishment Clause—and the U.S. Supreme Court clearly believes it does

not—it is difficult to see how an exemption from tort liability in church disciplinary


11
       We also reject the dissent’s suggestion that a qualified privilege would sufficiently
protect participants in a church disciplinary proceeding. Although a qualified privilege
would provide greater protection than the rule advocated by appellants, it would still be
insufficient. A qualified privilege only protects statements if the privilege is not
“abused.” Lewis v. Equitable Life Assurance Soc’y of the U.S., 389 N.W.2d 876, 890
(Minn. 1986). “[T]he question of whether [a qualified] privilege was abused is a jury
question.” Id. Consequently, determining whether a statement is entitled to the
protection of a qualified privilege requires extensive litigation. Thus, although a
qualified privilege would provide some protection on the ultimate question of liability, it
would do little to ameliorate the chilling effect that the specter of litigation can create.
See discussion supra at 18-19.

                                            21
proceedings could be unconstitutional.       The Pfeils’ contention that a rule barring

defamation claims based on statements made during a church disciplinary proceeding

violates the Establishment Clause of the First Amendment is meritless.

       Second, the Pfeils argue that an absolute bar will lead to absurd results. For

instance, they suggest that a pastor could hold a church discipline meeting, accuse a

parishioner of molesting children while knowing the accusation is false, and face no

liability. The dissent also advances this argument, discussing a similar, although not

identical, hypothetical set of facts. These concerns have merit. We would of course be

troubled by any case in which statements were made with the intent of abusing the

ecclesiastical abstention doctrine and avoiding liability, particularly if the statements

were disseminated to individuals outside of the religious organization.        See, e.g.,

Kliebenstein v. Iowa Conference of United Methodist Church, 663 N.W.2d 404, 408

(Iowa 2003) (concluding that a statement made as part of a church disciplinary

proceeding, but also disseminated outside the church and carrying at least some secular

meaning, was not immune from liability). But those facts are not before us and we leave

the resolution of such a case for another day.12

        The reality, however, is that any rule that shields some individuals or

organizations from liability will necessarily cause some otherwise meritorious claims to

12
       The dissent criticizes our failure to clarify how this rule of law would apply to
various hypothetical facts. Although we recognize the dissent’s concerns regarding
future cases, it would be inappropriate to speculate on how the First Amendment may
apply to hypothetical facts that are not before us. Those decisions must be left for
another, properly presented, case or controversy. We hold only that, on the facts before
us, adjudicating the Pfeils’ claims would violate the First Amendment.

                                             22
go uncompensated. It is clear that at least some statements and actions within the context

of a church disciplinary proceeding are immune from liability—the Pfeils even admit as

much. Certainly a claim for redress arising out of defamatory speech is a valued and

important societal interest. But on the facts before us—where ministers made largely

religious and doctrinal allegations as part of an excommunication proceeding and only

disseminated those statements to members of the congregation—“the First Amendment

has struck the balance for us.” Hosanna-Tabor, ___ U.S. at ___, 132 S. Ct. at 710.

       Finally, the dissent argues that our holding today represents a rejection of

Odenthal. That is simply not the case. The dissent reasons that because no U.S. Supreme

Court case directly prohibits the adjudication of the Pfeils’ claims, we are bound to apply

neutral principles under Odenthal. The dissent concludes that our refusal to apply neutral

principles as we did in Odenthal amounts to an act of judicial policymaking on issues of

immunity. But the dissent fundamentally misunderstands our holding.

       Odenthal itself recognized that the Constitution prohibits courts from engaging in

inquiries that cause “excessive entanglement” with religion. See Odenthal, 649 N.W.2d

at 435-38. The U.S. Supreme Court reaffirmed this understanding in Hosanna-Tabor

when it held that courts may not “interfere[] with an internal church decision that affects

the faith and mission of the church itself.” Hosanna-Tabor, ___ U.S. at ___, 132 S. Ct. at

707. Today, we hold that adjudicating a defamation claim based on statements made

during a church disciplinary proceeding and published only to members of the religious

organization and its hierarchy would “interfere[] with an internal church decision that

affects the faith and mission of the church itself,” id., and would excessively entangle the

                                            23
courts with religion.    See Odenthal, 649 N.W.2d at 435-38.          As a result, such an

adjudication is prohibited by the First Amendment. Hosanna-Tabor, ___ U.S. at ___,

132 S. Ct. at 707; see Odenthal, 649 N.W.2d at 435-38.

       The absence of a U.S. Supreme Court decision directly on point with the decision

we reach today does not constrain our ability to interpret the First Amendment in light of

the cases the U.S. Supreme Court has decided. The U.S. Supreme Court’s silence should

not be interpreted as affirmative permission for courts to adjudicate these sorts of cases.

Further, our holding does not represent a rejection of Odenthal. Rather, we simply

recognize that adjudicating a defamation claim based on statements made during the

course of a church disciplinary proceeding and published exclusively to members of the

religious organization and its hierarchy necessarily fosters an excessive entanglement

with religion, interferes with a religious organization’s ability to make decisions that

affect its faith and mission, and precludes the application of neutral principles of law.

       Finally, our decision today is not an act of judicial policymaking. Rather, we

conclude that the Pfeils’ claims are barred as a matter of constitutional law, something

very different than judicially created or statutorily enacted immunities. The immunity

cases cited by the dissent involve circumstances in which the court was called upon to

balance society’s interest in providing a remedy to private citizens with its interest in

providing immunity to certain groups or individuals. Although we take the dissent’s

point that some interests weigh against granting absolute immunity, “the First

Amendment has struck the balance for us” in this case. Hosanna-Tabor, ___ U.S. at ___,

132 S. Ct. at 710.

                                             24
       The law places a premium on providing remedies to those injured. Sometimes,

however, the courts cannot award a remedy, no matter how valid the claim. These are

not easy decisions. But they are necessary decisions, particularly where, as here, the right

to a remedy must be weighed against constitutionally enshrined commitments to religious

freedom. We conclude that adjudicating Pfeils’ claims would excessively entangle the

courts with religion and unduly interfere with respondents’ constitutional right to make

autonomous decisions regarding the governance of their religious organization.

                                                 IV.

       In summary, we agree with respondents insofar as they argue that applying the

issue-by-issue approach advocated by the Pfeils to this case would foster an excessive

entanglement with religion, unduly interfere with the internal governance decisions of

religious organizations, and violate the First Amendment.         Ultimately, adjudicating

Pfeils’ claims would excessively entangle the courts with religion and unduly interfere

with respondents’ constitutional right to make autonomous decisions regarding the

governance of their religious organization. We hold that the First Amendment prohibits

holding an individual or organization liable for statements made in the context of a

religious disciplinary proceeding when those statements are disseminated only to

members of the church congregation or the organization’s membership or hierarchy. As

a result, the district court properly dismissed the claims brought by the Pfeils against St.

Matthew and its pastors.

       Affirmed.



                                            25
       HUDSON, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.



       CHUTICH, J., took no part in the consideration or decision of this case.




                                             26
                                      DISSENT

LILLEHAUG, Justice (dissenting).



       Today the court creates what is, essentially, an absolute privilege to defame in

“formal church discipline proceedings.”           No matter how false and malicious the

statement, and no matter how much the victim is damaged, there is no remedy

whatsoever in Minnesota’s courts.

       The United States Supreme Court’s jurisprudence on ecclesiastical abstention does

not require this rule of law. Further, its categorical nature is contrary to our controlling

precedent. In Odenthal v. Minnesota Conference of Seventh-Day Adventists, 649 N.W.2d

426 (Minn. 2002), we established the framework for liability for torts committed within

religious organizations. Odenthal held that, although we may not inquire into or review

the internal decisionmaking or governance of a religious organization, we may apply

neutral principles of law if we can do so without excessive entanglement. Id. at 435-38.

       Instead of following the Odenthal framework, the court simply labels it a

“complicated and messy inquiry” and announces a new rule. Because the opinion of the

court undermines the doctrine of stare decisis and may deprive victims of a remedy, I

respectfully dissent.

                                             I.

       It is black-letter constitutional law that we may not decide controverted questions

of religious faith. See Watson v. Jones, 80 U.S. (13 Wall.) 679, 729-30 (1872); Kedroff v.

St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 115-16


                                            D-1
(1952); Serbian E. Orthodox Diocese for the U.S. of Am. & Can. v. Milivojevich, 426

U.S. 696, 708-10 (1976). As we acknowledged in Odenthal, “a state may not inquire into

or review the internal decisionmaking or governance of a religious institution.” 649

N.W.2d at 435 (citing Jones v. Wolf, 443 U.S. 595, 602 (1979)).

       But we may decide a case involving a religious organization when the dispute can

be resolved according to “neutral principles of law.” Id. at 435; Presbyterian Church in

the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449

(1969). There is no “compulsory deference to religious authority . . . where no issue of

doctrinal controversy is involved.” Jones v. Wolf, 443 U.S. 595, 605 (1979). As we said

recently in State v. Wenthe, 839 N.W.2d 83, 90 (Minn. 2014):              “No entanglement

problem exists . . . when civil courts use neutral principles of law—rules or standards that

have been developed and are applied without particular regard to religious institutions or

doctrines—to resolve disputes even though those disputes involve religious institutions or

actors.”

       The most recent Supreme Court case applying the ecclesiastical abstention

doctrine, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, ___ U.S. ___,

132 S. Ct. 694 (2012), is consistent with this principle. The court held that applying

federal anti-discrimination employment law to ministerial employees would interfere

with religious organizations’ internal governance. Id. at ___, 132 S. Ct. at 706. To do so

would constitute “government interference with an internal church decision that affects

the faith and mission of the church itself.” Id. at ___, 132 S. Ct. at 707.




                                             D-2
       The issue in Hosanna-Tabor—the criteria for hiring and terminating ministerial

employees—went directly to the heart of religious organizations’ missions. “The church

must be free to choose those who will guide it on its way.” Id. at ___, 132 S. Ct. at 710.

But the opinion of the court took care not to express a view on other types of suits,

including tort claims that might be brought by an employee against a religious employer.

Id. at ___, 132 S. Ct. at 710.

       Here, the court admits that neither Hosanna-Tabor nor any other U.S. Supreme

Court case “speaks directly to the issues raised by the Pfeils’ claims.” The U.S. Supreme

Court has never suggested that the First Amendment requires what the court does today.

Therefore, in the absence of higher and contrary judicial authority, we should apply our

own controlling case, Odenthal, that established the framework to analyze state tort

claims against religious organizations.

       The tort claim alleged in Odenthal was for negligence in counseling. The plaintiff

invoked several statutes governing the conduct of unlicensed mental-health practitioners.

649 N.W.2d at 436-37. The defendants, a minister and a religious organization, argued

that the application of a tort standard of care drawn from a secular regulatory statute was

barred by the First Amendment because adjudication would entangle the court in religion.

Id. at 438. We rejected that argument. Relying on Wolf, 445 U.S. 595, we held that the

state tort claim was based on neutral principles of law that set a minimum standard of

care, and that the case could be decided without undue entanglement. Odenthal, 649

N.W.2d at 438, 441.




                                           D-3
       Nothing in Odenthal hints that adjudicating a particular kind of state tort claim is

entangling per se. To the contrary, it requires that we analyze state tort claims on a

claim-by-claim basis.1

       Like Odenthal, this is a case based on neutral principles of state tort law. Like

Odenthal, this case arises out of an activity considered part of a religious organization’s

mission. Thus, there is no principled reason for the court to jettison the Odenthal

framework and treat claims for defamation differently.

                                             II.

       Unquestionably, religious organizations have a constitutionally protected right to

make decisions regarding their membership. Correctly, the Pfeils have not asked us to

overturn their excommunication from St. Matthew Lutheran Church. Instead, they ask us

to do as Odenthal requires: apply neutral principles of state defamation law, consider

each allegedly defamatory statement, and, as to each, determine whether adjudication

would excessively entangle us in religion.

       Adjudicating certain kinds of allegedly defamatory statements would lead

inevitably to entanglement. Examples of such statements are found in the Pfeils’ Second

Amended Complaint. The Pfeils plead that they were defamed when a minister said:

“That Plaintiffs had publicly engaged in ‘sinful behavior’ ” inside and outside of the

congregation. The Pfeils further plead that the minister defamed them with the words

1
       As the opinion of the court demonstrates at footnotes 8 and 9, the majority of state
supreme courts that have considered defamation claims arising out of religious
disciplinary proceedings have applied the ecclesiastical abstention doctrine on a claim-
by-claim basis, rather than as a categorical bar.


                                             D-4
that the Pfeils had “refus[ed] to follow the commands of God’s Word and Scriptural

warnings by elected leaders of the congregation.” Obviously, we would be entangled

excessively in religion if we tried to adjudicate what is “sinful behavior” or whether

someone refused to follow “the commands of God’s Word.”

       But there are clear instances in which we can apply neutral principles of state

defamation law to adjudicate defamation claims without excessive entanglement.

Imagine a religious disciplinary proceeding in which a member has been charged with

teaching false doctrine in the Sunday school. Plainly, we could not adjudicate any

dispute regarding “false doctrine.” But, assume that, in response, the member says,

maliciously and without a shred of truth: “The charge that I’m harming the Sunday

school is ironic, given that the minister regularly sexually assaults the kids in the class.”

As is true of many vicious accusations, inevitably such a defamatory statement would

spread like wildfire through the religious organization and into the community, causing

great injury. Applying the Odenthal framework, a district court could likely use neutral

principles of state defamation law to adjudicate the minister’s defamation claim without

excessive entanglement.

       This is not to say that applying the test of excessive entanglement is always easy.

There may be close cases when the analysis becomes, as the court puts it, “complicated

and messy.” But I reject the court’s notion that the process of making a decision about

excessive entanglement itself constitutes excessive entanglement. Such decisions are part

of the judicial function, and we have made them as a matter of course. See, e.g., Wenthe,

839 N.W.2d at 90-92; Odenthal, 649 N.W.2d at 434-41. We should have done so here.


                                            D-5
                                           III.

       Instead, the court announces a categorical rule of law, closely akin to an absolute

privilege to defame, thereby denying a state court remedy for a state tort. The court

virtually inoculates speakers from liability for even their most outrageous false,

malicious, and damaging statements that may have only a remote connection to any

religious doctrine or mission.

       Because this new privilege is not required by the United States Supreme Court’s

constitutional jurisprudence, it must be the product of judicial policy making.

Historically, our policy has been that, because they deprive defamation victims of a

remedy, absolute privileges should be rare creatures. “Absolute privilege is not lightly

granted,” Zutz v. Nelson, 788 N.W.2d 58, 62 (Minn. 2010), and is “confined within

narrow limits,” Matthis v. Kennedy, 243 Minn. 219, 223, 67 N.W.2d 413, 417 (1954). As

we said in Zutz, we only extend absolute privilege “when public policy weighs strongly

in favor of such extension.” 788 N.W.2d at 66 (emphasis added).

       Although religious freedom is, of course, a strong public policy, the court does not

demonstrate that the possibility of defamation liability “unduly interfere[s]” with that

freedom.    Nor does the court discuss why religious organizations cannot procure

insurance to protect themselves from defamation liability.

       On the other hand, the court concedes that there is “merit” to concerns about

injustice to defamation victims. It tries to limit the inoculation from liability it grants

with a proviso: the rule of law applies only to statements made “during the course of

formal discipline proceedings” and “communicated only to other members of the church


                                           D-6
and participants.” This proviso ignores the reality of how defamation can devastate its

victims. Any statement made in a closed meeting of “members” and “participants” is

unlikely to stay there. More likely, a vicious falsity uttered in a small-town house of

worship will be avidly republished, starting the very next morning during coffee at the

Chatterbox Café.

      A qualified privilege, rather than an absolute privilege, would strike a much better

balance between a defamation victim’s right to a remedy and a religious organization’s

right to discipline. Under Section 596 of the Restatement (Second) of Torts, a qualified

privilege is available “for communications among [members of a religious organization]

concerning the qualifications of the officers and members and their participation in the

activities of the society.” Id. § 596 cmt. e (1977). We have recognized a similar

privilege for communications in the context of employment. See Lewis v. Equitable Life

Assurance Soc’y of the U.S., 389 N.W.2d 876, 889-90 (Minn. 1986); Stuempges v. Parke,

Davis & Co., 297 N.W.2d 252, 256-57 (Minn. 1980). A qualified privilege should have

eased the court’s concerns.

                                           IV.

      Under the guise of avoiding a “complicated and messy” entanglement analysis, the

court’s rule of law creates its own set of complications. The opinion creates a liability-

free zone, but does not properly mark and fence the boundaries. As a result, the zone is

both over-inclusive and under-inclusive.

      First, the court does not explain precisely which claimants, besides the Pfeils, lose

their defamation remedy.      A defamatory statement during a religious disciplinary


                                           D-7
proceeding might be heard by only members and participants, but might be about a non-

member third party. I suspect that, under the court’s rule of law announced t oday, third-

party victims would not have a state court remedy. But this is not clear.

       Second, the court does not tell us what it means by “membership” and “formal

church disciplinary proceedings.”          Religious organizations’ understandings of

“membership” and “formal disciplinary proceedings” vary widely.             Some religious

organizations have clearly defined indicia of what it means to belong; others do not.

Some organizations have rules-based governance; others revolve around the thoughts of a

single charismatic leader. Some organizations have complicated adjudicatory systems

with several levels of appeal; others have nothing of the sort. By using words such as

“formal” and “membership,” the opinion sends us into more religious tangles than it

avoids.

       Finally, it is difficult to discern why the court’s categorical rule of law insulating

religious actors from defamation claims would not extend to and insulate those actors

from liability for other torts. The court’s opinion necessarily raises the question of

whether the state judiciary can adjudicate other state tort claims allegedly committed in

connection with religious discipline, such as battery, fraud, false imprisonment, and

negligent counseling.

                                             V.

       Had the court applied the Odenthal framework, it would have held that it could

use neutral principles of law: Minnesota’s law of defamation. Then it would have

analyzed the allegedly defamatory statements, one by one, to determine whether each


                                            D-8
could be resolved without excessive entanglement.         Had it done so, it would have

concluded that adjudicating most of the statements would be entangling. It also would

have concluded that most were not actionable because they were matters of opinion.2

See, e.g., McKee v. Laurion, 825 N.W.2d 725, 733 (Minn. 2013) (calling a physician a

“real tool” is an opinion that cannot be the basis for a defamation action).

       One statement, though, appears to be capable of adjudication without excessive

entanglement. Paragraph 12 of the Second Amended Complaint alleges that a minister

stated that the Pfeils had “accused [him] of stealing money from” St. Matthew Lutheran

Church. The Pfeils allege that they made no such accusation. In other words, they

contend that the minister falsely accused them of making a false accusation of the crime

of theft.

       Whether or not the Pfeils accused the minister of theft has little to do with the

underlying disciplinary proceeding. I see no reason why a court and jury could not apply

neutral principles of law without entanglement to determine whether: (1) the minister

made the alleged statement; (2) it was false; (3) it was damaging to reputation; and (4) it

was not protected by a qualified privilege. See Stuempges, 297 N.W.2d at 255-57.

       Therefore, the court should have reversed the court of appeals and remanded the

case to the district court to apply the Odenthal framework on a statement-by-statement



2
        E.g., “That Plaintiffs had ‘refused to show respect’ towards servants of God and
St. Matthew Lutheran Church leadership,” and “That . . . Plaintiffs ‘openly and
intentionally attempted to discredit the integrity of the pastors and church leaders.’ ” On
their face, these are matters of opinion.


                                            D-9
basis. Any surviving defamation and negligence claims would then be subject to all

available defenses, including qualified privilege.

       For all of these reasons, I respectfully dissent.



GILDEA, Chief Justice (dissenting).

       I join in the dissent of Justice Lillehaug.




                                             D-10
