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Can a church and minister be held liable for the torts of intentional infliction of emotional distress and invasion of privacy for publicly shaming a former church member who criticized the minister? The Michigan Supreme Court recently had an opportunity to address this question and its competing interests: the church’s freedom from court interference vs. the church member’s rights under tort law. But the high court dodged the issue — openly. “Although these competing claims present interesting and complex constitutional issues, we do not believe that resolving them is necessary to decide this case,” Justice Michael F. Cavanagh wrote in the recent majority opinion for the seven-member court. The court unanimously granted the church summary judgment with its decision turning on one undisputed fact: the plaintiff’s participation in the church subjected him to its rules. Smith v. Calvary Christian Church, No. 114287. A ‘SHAMING CEREMONY’ The plaintiff, David Orion Smith, is a former member of the Calvary Christian Church in Royal Oak, Mich., who sued the church and pastor for intentional infliction of emotional distress and invasion of privacy, among other things, after a church shaming ceremony. During the ceremony, the pastor disclosed to the congregation that Smith had cheated on his wife by visiting prostitutes. Smith had confessed his wrongdoing to the pastor, the court wrote. Exposing the infidelity was part of the church’s method of disciplining disobedient members and follows Matthew 18:15-17, which dictates that an unrepentant sinner’s transgressions be disclosed to the congregation in a “marking” ceremony. The plaintiff alleged that his marking was not motivated by religious doctrine but by the pastor’s spite and intent to humiliate. While Smith was a member and even after he left the church, he stirred up dissent by challenging the pastor on church doctrine. Although Smith was not a member at the time, his ongoing criticism constituted participation in the church, which subjected him to its disciplinary rules, the court held. CONSENT BY PLAINTIFF “Through his words and deeds, plaintiff consented to the religious discipline imposed on him, so his claims fail as a matter of tort law,” it said. A person who consents to another’s conduct cannot bring a tort claim for the harm that might result from the conduct, the court concluded. With the tort claim disposed of, the court said, it need not address the church’s constitutional defenses. The high court decision reversed the Michigan Court of Appeals, which had held that the tort claims might be viable if the plaintiff were not a member of the church when he was punished, because the church would have had no power to discipline him. Plaintiff’s counsel William S. Stern, of Southfield, Mich., a sole practitioner, asserted that the decision expands churches’ defenses in future tort claims. “You sue a church, you are going to have an uphill battle,” Stern said. Witold Sztykiel, the lead defense counsel, doesn’t think that the opinion gives churches a license to injure people. Churches still must shovel their walks in winter to avoid premises liability, said Sztykiel, a partner at Bigler, Berry, Johnston, Sztykiel & Hunt, primarily a defense firm, in Troy, Mich. He said, however, that a church has more liberties than a business does on personnel issues. For example, a church might withstand a wrongful-discharge suit if it fired a secretary because she lived with her boyfriend, he said. “I think they are allowed to do that, but we sure couldn’t,” he said, referring to his law firm. “I know of no business that could get away with that.” Similarly, this case is about religion, Sztykiel said. The church believes it has a duty not just to discipline the unrepentant, but also to “disclose to the sheep where the wolves are,” he said. The First Amendment means that courts must stay away from interpreting religious doctrine, he said.

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