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Church exemption from bias laws hinders discrimination suit
(News & Observer, The (Raleigh, NC) (KRT) Via Acquire Media NewsEdge) RALEIGH, N.C. _ The Rev. Derrick Gomez alleges that in his job with the North Carolina Synod of the Evangelical Lutheran Church in America he was subjected to an intolerable pattern of racial discrimination that ultimately led him to resign.
It's not clear if the allegations _ contained in a lawsuit in federal court _ have merit. And it may not matter.
The suit may never be heard because of a First Amendment exemption that protects the church from government interference in matters of hiring or firing. Last month, U.S. Magistrate Judge Wallace Dixon of Durham recommended the suit be dismissed, not because the allegations are untrue, but because religious employers are shielded from employee lawsuits by the so-called ministerial exception.
A judge is expected to rule on the case in the next few months.
According to the suit, Gomez, who worked as mission director at the synod's Salisbury headquarters, endured three years of shunning and hostility before he resigned. The suit says he was excluded from meetings and staff retreats, denied office space, forced to take calls in a supply closet, and called racial epithets. As he submitted his resignation, the suit alleges, the former assistant to the bishop called Gomez by a racial slur.
The church, which has denied wrongdoing, moved for the dismissal citing a long list of precedents that protect churches from having to delve into hiring preferences.
"Because of the church autonomy and ministerial exception principles, Defendants do not need to offer any justification with respect to these allegations," wrote lawyers for the church.
Gomez, who has served as an ordained minister within the 4.8 million member denomination for more than 25 years, thinks that's unfair.
"I don't believe any organization should have unfettered power to discriminate and claim ministerial exception to avoid public moral scrutiny," the 58-year-old minister said.
In cases going back more than 100 years, judges have applied the ministerial exception to a host of employee lawsuits, giving religious organizations the autonomy to manage their affairs according to their beliefs without government interference.
The constitutional protection does not give religious institutions immunity from the law in general _ particularly criminal laws, such as those being pursued against members of a polygamist sect in Texas.
But it does grant churches immunity when it comes to employment decisions, such as selecting clergy, deciding what tasks to assign employees and when to fire them.
It's this principle that allows Roman Catholics to exclude women as priests, or Southern Baptists from allowing women to lead churches _ in contrast to businesses, which would face discrimination charges.
And the exclusion is far-reaching. A former Roman Catholic nun alleged she was forced to resign as a Catholic college chaplain after helping expose a priest's alleged misconduct, but courts dismissed her suit. A woman training to become a nun claimed she was forced out by the order after she got a breast cancer diagnosis; her suit, too, was dismissed. And in cases where faculty at religiously affiliated colleges wanted to form a union, courts moved to exempt those schools from the nation's collective bargaining laws.
"The bottom line is that a church has absolute authority in deciding whom it will have as its ministers," said Eugene Volokh, a law professor at the University of California Los Angeles, who has written on the subject. "Any kind of secular second-guessing would be an unacceptable interference with the free exercise of religion."
Volokh said that since the majority of the allegations in Gomez's suit relate to the internal workings of the office, the courts would naturally shy from interfering in those areas.
James Rogers, the lawyer representing Gomez, said he agreed that church matters should be kept out of secular courts. But in an objection to the magistrate's recommendation he filed last week, Rogers wrote: "Honest and meaningful review of any complaint of behaviors ought to be the minimum benchmark for the courts before they find ecclesiastical policy exemptions, thereby permitting victims to fend for themselves."
Gomez is seeking $5.4 million in compensatory and punitive damages.
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In a denomination that is 97 percent white, Gomez said he had trouble from the start. His first church, a mostly white congregation in Hempstead, N.Y., was set on fire, a spokesperson for the town's fire department confirmed. He was asked to leave his second church in St. Albans, N.Y., after white members complained it had become too "black."
"There was a lady there that did not like the manner in which the church was being conducted," said Grazella McCoy of Queens Village, N.Y., a former member of Gomez's church who left after her minister was let go. "Other people followed. They didn't like you to say `Amen,' or clap your hands."
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But Gomez finally found a home at Church of the Abiding Presence, a mostly black Lutheran congregation in the Bronx where he served as pastor for 15 years. In 2002, Gomez's bishop, citing his exemplary service, recommended him as missions director for the New England Synod, a geographic region much like a diocese.
Gomez loved his work in New England, which involved establishing new congregations and supporting existing ones, and by all accounts he thrived.
"We all loved Derrick," said Bishop Margaret Payne of the New England Synod, his direct supervisor. "We had a good working relationship."
But in 2004, Gomez's wife, Ruth, died of a brain tumor and was buried in North Carolina, where she had grown up. The couple had always envisioned retiring to North Carolina and had already bought a home in Alamance County. When Gomez saw that there was an opening for a missions director in the N.C. Synod, he applied for it.
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Almost as soon as he got to Salisbury in 2004, he said he felt ostracized. In addition to being shut out of meetings, projects and retreats, Gomez alleges he was never allowed to meet with Bishop Leonard Bolick by himself. After sharing with the bishop and his assistant that he was being treated for prostate cancer, Gomez alleges in the suit, the bishop laughed and told him, "It should have been cut off," referring to his penis.
Finally, in 2007, after repeated failed attempts to discuss and resolve his complaints, Gomez said he was forced to resign. Now he claims the church is retaliating against him by preventing him from finding another church.
Bolick, the bishop of the synod, said he could not comment on the lawsuit, but said the church and the synod, in particular, is committed to being a "multicultural church."
The N.C. Synod, with nearly 84,000 members, is predominantly white.
Covering the entire state, it includes 175 churches. Only two are predominantly black.
Still, Bolick said he has been through racial sensitivity training in the past year, as has his staff. In addition, he said, the synod is working on establishing two new, mostly black churches _ one in Raleigh and one in Charlotte _ and has begun a "conversation" with a mostly black seminary in the AME Zion tradition that's on the same street as the synod.
"One of the real challenges of our church is to reach out to African Americans," said Bolick. "We know we have to do that."
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(c) 2008, The News & Observer (Raleigh, N.C.).
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