CHRISTINE MADSEN vs. ROBERT ERWIN & others, trustees, & others.¹
Supreme Judicial Court of Massachusetts
August 21, 1985
395 Mass. 715
HENNESSEY, C.J., WILKINS, ABRAMS, NOLAN, & O‘CONNOR, JJ.
Suffolk. October 4, 1984. — August 21, 1985.
In an action arising out of the plaintiff‘s termination from her employment as a writer for The Christian Science Monitor newspaper because of her sexual preference and refusal to “[seek] healing” through the Christian Science Church, the judge would not have been warranted, based on an evaluation of affidavits submitted at trial, in finding that a genuine issue of fact existed as to whether the plaintiff was employed by the Church, where the defendants’ affidavits gave rise to the reasonable inferences that the plaintiff applied for employment to the Church, that the newspaper was a branch of the Church, and that the plaintiff, although a writer for the newspaper, was, in fact, an employee of the Church, and where the plaintiff‘s counter affidavits failed to allege facts made on personal knowledge that the plaintiff was not a Church employee. [719-722]
In an action arising out of the plaintiff‘s termination from her employment as a writer for The Christian Science Monitor newspaper because of her sexual preference and refusal to “[seek] healing” through the Christian Science Church, summary judgment for the defendants should have been allowed, based on the undisputed fact that the plaintiff was employed by the Church, with respect to the plaintiff‘s claims under the Federal and State Constitutions, as to her claim of civil rights violation under
Although stating that the allegations of the plaintiff‘s complaint, in an action arising out of the termination of her employment as a writer for the Christian Science Monitor newspaper, a branch of the Christian Science Church, because of her sexual preference, were insufficient to state causes of action with respect to defamation, interference with advantageous relations, interference with the plaintiff‘s employment contract, invasion of privacy, and intentional infliction of emotional distress, this court directed that the plaintiff be permitted to amend her complaint by repleading her claims for these torts, which the court emphasized involve “freedom to act,” rather than “freedom to believe,” and are therefore subject to regulation. [726-727] O‘CONNOR, J., dissenting.
CIVIL ACTION commenced in the Superior Court Department on December 1, 1982.
A motion to dismiss or, in the alternative, for summary judgment was heard by George N. Asack, J., sitting under statutory authority.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Theodore E. Dinsmoor (Douglas F. Seaver & Timothy Q. Feeley with him) for the defendants.
Katherine Triantafillou for the plaintiff.
Robert J. Ebersole, for Gay & Lesbian Advocates & Defenders, amicus curiae, submitted a brief.
Marjorie Heins, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.
Roberta Achtenberg & Donna J. Hitchens, of California, & Abby R. Rubenfeld, Jyl Lynn Felman & Marsha Levick, of New York, for Lesbian Rights Project & others, amici curiae, submitted a brief.
NOLAN, J. The plaintiff, Christine Madsen, commenced this action for declaratory and injunctive relief and for money damages after her employment as a writer for The Christian Science Monitor (Monitor) was terminated. In sum, her complaint alleges “wrongful discharge, defamation, invasion of
The defendants, in their motion and accompanying memorandum, sought dismissal of the plaintiff‘s claims under
It would be helpful to summarize the facts underlying this appeal. In June, 1974, the plaintiff began employment with the Monitor as a “copygirl.” Over the next several years, Madsen received several promotions and salary increases. Beginning in September, 1981, Madsen held a writing position (Correspondent A) in the special sections department of the Monitor.
In December, 1981, Madsen learned that rumors concerning her sexual predilection were being circulated at the Monitor. Subsequently, Madsen was informed that her superiors had learned of allegations that Madsen was a homosexual, had entered into a “homosexual marriage,” had attempted to entice a manager‘s wife into a homosexual relationship, attended meetings of homosexuals, and lived with a homosexual. Madsen was not told the name of the person who provided this information to the editors of the Monitor. In response, Madsen denied the allegations that she had entered into a “homosexual marriage,” had attempted to entice a manager‘s wife into a homosexual relationship, attended meetings of homosexuals and lived with a homosexual. She did state, however, that she was “gay.”
On January 4, 1982, the Monitor terminated Madsen‘s employment. The plaintiff alleges that she has been unable to obtain comparable employment as a writer or editor since she left the Monitor. She further claims that the defendants’ actions proximately caused her to suffer extreme mental distress, loss of earning capacity, loss of respect and reputation, and other injuries to body and mind.
The defendants argue on appeal that the judge erred in failing to dismiss the complaint, because (1) pursuit of the litigation and granting the requested relief would violate the free exercise and establishment of religion clauses of the First Amendment to the United States Constitution; (2) the plaintiff‘s Federal and State constitutional claims are without foundation, because the complaint does not contain adequate allegations of State action; (3) in the plaintiff‘s claim under
1. Motion for summary judgment. Initially, we note that a judge presented with a motion for summary judgment must consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any” in determining whether summary judgment is appropriate.
Further, “[w]hen a motion for summary judgment is made and supported . . . an adverse party may not rest upon the mere allegations of denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
We turn first to the issue whether the Monitor is a religious activity of the Christian Science Church. The defendants sub-
In opposition to the defendants’ motion, the plaintiff submitted counter affidavits including that of Susan D. Schur who stated the following: “3. On or about January 27, 1983 I received a solicitation letter from A.W. Phinney, Committee on Publication for Massachusetts, The First Church of Christ, Scientist, in Boston, Massachusetts, in due course of mail at my residence address; . . . 5. It is my understanding that The Christian Science Monitor is not an organ of The First Church of Christ, Scientist, in Boston, Massachusetts, on the basis of said solicitation.” The attached solicitation letter contained the statement that the Christian Science Monitor was “not a church organ, . . . but rather an international daily newspaper that touches on all the vital issues of the day.”
Evaluating these affidavits in light of the unambiguous guidelines of
Hearsay in an affidavit is unacceptable to defeat summary judgment. See, e.g., Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th Cir. 1978); Kern v. Tri-State Ins. Co., 386 F.2d 754, 756 (8th Cir. 1967). The rationale for requiring admissible evidence in affidavits is to ensure that “trial would [not be] futile on account of lack of competent evidence.” Kern v. Tri-State Ins. Co., supra. “Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment.” Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972). “All affidavits or portions thereof made on information and belief, as opposed to personal knowledge, are to be disregarded in considering a motion for summary judgment.” Shapiro Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968 (1976), citing Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831 (1950).
Clearly, therefore, the judge properly could have excluded the contents of Schur‘s affidavit in considering the motion. However, the defendants did not move to strike the improper portions of Schur‘s affidavit. “If a party does not move to strike the defective portion of an opponent‘s affidavit, in his discretion a judge may rely on the fact stated on belief.” Stetson v. Selectmen of Carlisle, 369 Mass. 755, 763 n.12 (1976). We do not know whether the judge relied upon Schur‘s affidavit in ruling on the motion, yet we need not decide whether consideration of the affidavit would have constituted an abuse of discretion. Even if the contents of Schur‘s affidavit were properly before the judge, the material submitted by the plaintiff failed to establish a genuine issue of fact. A vague statement that the Monitor is “not an organ” of the Church was insufficient
The issue before us, therefore, is whether the defendants were entitled to judgment as a matter of law on the basis of the undisputed fact that the plaintiff was employed by the Church. The plaintiff‘s central allegation is that her employment was terminated because of her sexual preference and refusal to “[seek] healing” through the Church.3 The defendants’ affidavits established “[t]hat homosexuality is a deviation from the moral law” as expounded by Christian Science, and that it is expected that every employee of the Church will uphold the Church‘s requisite standard of sexual morality.
Courts cannot question the verity of religious doctrines or beliefs. United States v. Ballard, 322 U.S. 78, 86 (1944). Beyond that, a court must defer to the Church in matters of ecclesiastical decisions. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709 (1976). United Kosher Butchers Ass‘n v. Associated Synagogues of Greater Boston, Inc., 349 Mass. 595, 598-599 (1965). On the affidavits, the decision to fire Madsen because of her sexual preference can only be
In Walker v. First Presbyterian Church, 22 Fair Empl. Prac. Cas. (BNA) 762, 764 (Cal. Super. Ct. 1980), the plaintiff was discharged as church organist when he admitted his homosexuality and refused to repent. The judge concluded that if the plaintiff “were allowed to collect damages from defendants because he was discharged for being gay, defendants would be penalized for their religious belief that homosexuality is a sin for which one must repent . . . It forces defendants to pay general and special damages, plus punitive damages, to maintain their religious beliefs. This is a substantial burden on defendants’ right to free exercise of religion.” Id. Similarly, the plaintiff in Lewis ex rel. Murphy v. Buchanan, 21 Fair Empl. Prac. Cas. (BNA) 696 (Minn. Dist. Ct. 1979), sought damages when an offer of employment as a parochial school teacher was withdrawn after the pastor received information that the plaintiff “was of a homosexual nature.” The judge would not enforce an ordinance forbidding employment discrimination on the basis of “affectional or sexual preference” against the pastor. The judge reasoned that “the religious conscience of an individual may not be invaded except where the individual‘s conduct constitutes a ‘clear and present danger to a substantial interest of the state’ or a ‘menace to public peace and order.’ [Cantwell v. Connecticut,] 310 U.S. 296, 311 (1940). The desire of a city government to protect the employability of homosexuals is not such a clear and present danger to a ‘substantial interest of the state’ as to justify the invasion of an individual‘s freedom of conscience which is proposed here.” Id. at 698.
One commentator has described the relationship between a church and its employees as follows: “The free exercise of religion includes the right to run large religious institutions — certainly churches, seminaries, and schools, and . . . hospitals,
In view of the preferred position which the freedom of religion holds in the pantheon of constitutional rights, see Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943), Madsen‘s asserted rights must yield. Therefore, her claims against the Church under the Federal and State Constitutions, under
There is nothing in the very recent case of Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290 (1985), which militates against our conclusions in this case because in making the minimum wage, overtime, and recordkeeping requirements of the Fair Labor Standards Act, 52 Stat. 1060, as amended,
The Monitor, as Madsen‘s employer, had the right to terminate Madsen‘s employment. Nothing in the United States Constitution, the Massachusetts Constitution, or in Federal or State statutes4 prohibits the Monitor from doing this on the facts in this case. She had no written employment contract. She received severance and vacation pay. There has been no showing of bad faith as exemplified in Fortune v. National Cash Register Co., 373 Mass. 96, 103 (1977), and in RLM Assocs. v. Carter Mfg. Corp., 356 Mass. 718 (1969). There is no suggestion that Madsen‘s discharge deprived her of future compensation for past service as was the case in Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 671-672 (1981).
There is no legal basis then for Madsen‘s claim for wrongful discharge, breach of contract, and deprivation of constitutional rights by her termination. For the same reasons, Madsen has failed to demonstrate that she was deprived of her civil rights under
2. Motion for dismissal under
The allegations of the complaint do not survive attack by motion to dismiss. However, we think that the plaintiff should be given the opportunity to replead her claims for the above recited torts in the light of the following principles.
Without retreating for a moment from the foundational rule “that the First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine, discipline, faith, or internal organization,” Alberts v. Devine, ante 59, 72 (1985), and cases cited therein, we restate the equally important rule that the rights of religion are not beyond the reach of the civil law. See Reynolds v. United States, 98 U.S. 145, 164 (1878). Under the banner of the First Amendment provi-
3. Summary. The defendants’ motion for summary judgment as to Madsen‘s claims under the Federal and State Constitutions, as to her claim of civil rights violation under
So ordered.
O‘CONNOR, J. (concurring in part, dissenting in part.) I concur in the court‘s decision directing the entry of judgment for the defendants as to the plaintiff‘s claims under the Federal and State Constitutions, as to her claim for a civil rights violation under
The court has repeatedly said that it will not decide constitutional questions “unless they must necessarily be reached.” Commonwealth v. Paasche, 391 Mass. 18, 21 (1984). “[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.” Commonwealth v. Bartlett, 374 Mass. 744, 749 (1978), quoting Ashwander v. TVA, 297 U.S. 288, 347-348 (1936) (Brandeis, J., concurring). This case is a perfect example of the wisdom of that rule. Entirely apart from First Amendment considerations, the complaint fails to state against any defendant a claim for which relief may be granted. A careful analysis of the complaint — an analysis missing from the court‘s opinion — makes that clear. Furthermore, in my view, both the court‘s analysis of the constitutional question that it unnecessarily reaches and the court‘s conclusion are highly questionable.
I set forth the facts as alleged in Madsen‘s complaint. On or about December 12, 1981, the defendant Earl W. Foell, editor of the Monitor, discussed with the defendant Pamela O. Marsh, quality control editor of the Monitor and Madsen‘s immediate superior, a rumor that Madsen had either asked a manager‘s wife to attend a lesbian meeting or had enticed a manager‘s wife into a lesbian relationship. Foell and Marsh decided to discuss the rumor with J. Anthony Periton, manager of the Christian Science Publishing Society, publisher of the Monitor. On or about December 14, 1981, Marsh told Madsen about the manager‘s wife rumor and asked Madsen if she was a lesbian. Madsen denied the rumor but told Marsh that she was a lesbian. Marsh said that she had thought so, and that she would have to make a report to Foell, who had been asked by Periton to check out the situation.
On or about December 15, 1981, Marsh and Madsen again discussed the rumors. Marsh told Madsen that a certain newsroom editor had telephoned Marsh to say that he was upset that Madsen had changed her name from Terp to Madsen be-
On or about December 16, 1981, Foell, Periton, and Marsh met and discussed the manager‘s wife rumor. Periton asked the other two if Madsen was a lesbian, if she went to “gay” meetings, and if she lived with a lover. Marsh told Periton that Madsen lived alone. Periton said that he would have to find out if Madsen went to “gay” meetings because that would indicate whether Madsen was a lesbian.
On December 18, 1981, Madsen met with Periton and complained about what had been taking place. Periton told her that they were following appropriate procedures because someone had made an accusation to Periton privately. Periton said to Madsen that Madsen had tried to entice a manager‘s wife into a lesbian relationship, that Madsen attended “gay” meetings, and that Madsen was “gay.” Madsen responded that she would not discuss the matter without adherence to Church by-laws. Periton demanded to know if the information he had was accurate, and Madsen reluctantly replied by denying the manager‘s wife rumor and admitting she was “gay.” Periton thanked Madsen for her honesty and said that it was Church policy to “let the employee go in cases like this.”
On December 23, 1981, Periton gave Madsen a pamphlet entitled “Morals of Today,” and asked Madsen to “heal herself” of homosexuality. Periton told Madsen that he would have to discuss with Warren D. Silvernail, personnel manager of the Church, Madsen‘s refusal to heal herself. On or about December 29, 1981, Madsen met with Karen Gould, the employee relations manager of the Church who was responsible for “employee problems” within the Church and the Society. Gould repeated to Madsen the accusations about the manager‘s wife, attendance at “gay” meetings, and Madsen being a lesbian, and she told Madsen that the problem was not the rumors, but rather that Madsen was “gay.” Gould asked Madsen if she was
On or about December 30, 1981, the defendant Curtis J. Sitomer, editor of the special sections department of the Monitor, Madsen‘s department, told Madsen that he would talk with Gould in an effort to arrange a leave of absence for Madsen. On or about January 4, 1982, Gould told Madsen that a leave of absence would be possible only if Madsen were seeking healing. When Madsen told Gould that she was not seeking healing, Gould told Madsen that that would be her last day and told her what her severance and vacation pay would be. Gould put a memorandum into Madsen‘s employment file stating that Madsen was “not recommended for rehire unless [a] radical change in views on homosexuality takes place.”
Other than claims of damages resulting from the events recited above, the complaint sets forth no other material allegations. Briefly but fairly summarized, the complaint alleges that rumors about Madsen‘s homosexuality and homosexual activities came to the attention of the defendant Periton, who was the manager of the Monitor‘s publisher, and to the defendants Foell and Marsh, who were editors of the Monitor, and that those defendants discussed those rumors with each other, with Madsen, and with the defendant Gould, who was employee relations manager of the Church, with the result that Madsen was fired from her position as a writer at the Monitor¹ because of her refusal to seek “healing” of her homosexuality.
After its statement of facts, the complaint sets out numerous claims of injury resulting from constitutional, statutory, and
A complaint need not set forth facts with great specificity. See
Madsen alleges that she was fired “on the basis of [her] sexual and affectional preferences.” That discharge, she claims, constituted “an unlawful breach of [her] employment agreement with the defendants, . . . without cause or justification . . . [and] in bad faith.” Furthermore, she claims that the discharge constituted “an unlawful and wrongful termination of [her] employment agreement with the defendants . . . contrary to the public policy of . . . the Commonwealth of Massachusetts,” and that her Federal and State constitutional rights and civil rights were violated. The court rightly states, ante at 725, that, because Madsen was an employee at will, the Monitor lawfully fired her, because nothing in the Federal or State Constitutions, in Federal or State statutes, or in public policy,² prohibits an employer from firing an at will employee
The correctness of those conclusions, however, does not in any way depend on the First Amendment. Those conclusions would be correct if the controversy were entirely unrelated to a church or to church personnel. For that reason alone, the court‘s discussion of the First Amendment is inappropriate. The court‘s analysis may be incorrect as well. It is true, as the court says, ante at 722-723, that the First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine, discipline, faith, or internal organization, Jones v. Wolf, 443 U.S. 595, 602 (1979); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709 (1976); Alberts v. Devine, ante 59, 72 (1985), and that courts cannot question the verity of religious doctrines or beliefs. United States v. Ballard, 322 U.S. 78, 86 (1944). Thus, Madsen cannot invoke the jurisdiction of the courts of the Commonwealth to determine the morality of homosexuality or to determine whether membership in the Church requires adherence to the view that homosexuality is immoral. However, whether Madsen, a writer (presumably a sportswriter, see note 1, supra) for a church-affiliated newspaper, is entitled to continued employment despite her nonconformity to the Church‘s beliefs, does not appear to be a dispute about religious doctrine, discipline, faith, or internal organization, within the decided cases. Although the United States Supreme Court has held that the assessment of an individual‘s qualifications to be a minister, and the appointment and retirement of ministers, are ecclesiastical matters entitled to constitutional protection against judicial or other State interference, Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church, 344 U.S. 94, 116 (1952); Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16-17 (1929), the Supreme Court has never held that civil courts cannot intervene in similar matters involving lay church employees. While the beliefs and practices of a minister are of critical importance to the church in which the minister functions, making judicial involvement in decisions affecting a minister‘s tenure inappropriate, it is far from clear that the same is true with respect to a sportswriter on the staff of a church-affiliated newspaper. Compare McClure v. Salvation Army, 460 F.2d 553, 558-561 (5th Cir. 1972) (First Amendment precludes application of Title VII of the Civil Rights Act of 1964,
I incline to the view that, if it were appropriate for us to reach the First Amendment question, we should not conclude, as the court has done, that “the decision to fire Madsen because of her sexual preference can only be construed as a religious one” and that, therefore, the court “must defer to that decision.” Ante at 722-723. Rather, I tend to think that the First Amendment would not preclude judicial intervention in this matter and that whether the First Amendment would protect the employer in this case requires a judicial balancing of the competing Church and State interests.³ “A law, legislatively or judicially created, that would regulate or prevent religiously motivated conduct does not violate the First Amendment if the State‘s interest in the law‘s enforcement outweighs the burden that the law im-
I turn now to Madsen‘s common law tort claim and to her claim for invasion of privacy in violation of
There was no defamation. The only defendants alleged to have made statements were Foell, Marsh, Periton, and Gould, all of whom, by virtue of their positions, were conditionally privileged to discuss among themselves and with their superiors the allegations regarding Madsen‘s sexual preference. Bratt v. International Business Machs. Corp., 392 Mass. 508, 513 (1984). See Restatement (Second) of Torts §§ 594 and 595 (1977). Nothing in Madsen‘s complaint even suggests that any of the defendants abused their conditional privilege by speaking
Neither was there any intentional infliction of emotional distress. Madsen alleges that the conduct of the defendants that she described in her complaint constituted “an unlawful, intentional, extreme and outrageous and/or reckless infliction of emotional distress.” The described conduct falls far short of being “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Richey v. American Auto. Ass‘n, 380 Mass. 835, 838 (1980), quoting Restatement (Second) of Torts § 46 comment d (1965). See Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976).
The defendants Silvernail and Gould did not, as alleged, tortiously interfere with Madsen‘s contract or with her “advantageous business relationship” with the Monitor. The complaint contains no allegations concerning Silvernail‘s conduct, and all of Gould‘s alleged conduct was clearly within the scope of her employment responsibilities. Nothing in the statement of facts in the complaint suggests that Gould “acted out of malevolence, that is, with ‘actual’ malice.” Gram v. Liberty Mut. Ins. Co., supra at 663.
Madsen alleges that the conduct she sets out in her complaint constituted an unlawful invasion of her privacy in violation of
Because the plaintiff expressly stated in her complaint that all of the facts on which she relies are therein set forth, and because those facts do not constitute a legal wrong entitling the plaintiff to any form of relief, I would reverse in its entirety the order of the judge denying the defendants’ motion to dismiss or for summary judgment, and I would remand the case to the Superior Court with instructions to enter an order dismissing the complaint. The interests of justice are not served by permitting Madsen to amend her complaint by pleading the tort claims anew as the court directs. Nothing in the complaint suggests that there may be facts, in addition to those alleged, which would support the plaintiff‘s claims.