1 STATE OF MINNESOTA IN SUPREME COURT
A14

- 0605 Court of Appeals Anderson, J. Dissenting, Lillehaug , J., Gildea, C.J. Took no part, Hudson, Chutich, J J. LaVonne Pfeil, Individually and as Trustee for Heirs of Henry Pfeil, deceased ,

Appellant,

vs. Filed: Apr il 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, T he Law Office of Zorislav R. Leyderman, Minneapolis, Minnesota , for a ppellant. Ken D. Schu e ler , Jennifer M. Peterson, Dunlap & Seeger, P.A., Rochester, Minnesota ; and Timothy J. O’Connor , William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., Min neapolis, Minnesota , for r espondents

. Mark R. Bradford, Steven P. Aggergaard, Bassford Remele, Minneapolis, Minnesota ; and Sherri C. Strand, Mark Sableman, Anthony F. Blum, Thompson Coburn, L L P, Saint Louis, Missouri , for amicus curiae The Luther an Churc h

- Missouri Synod.

________________________2 S Y L L A B U S Under t he ecclesiastical abstention doctrine , pastor s and their church are not liable
to former parishioner s for defamation or related common

- law torts for statements made by the pastors during th e course of formal ch urch discipline proceeding s when the statements were communicated only to other members of the church and participants in the formal church discipline process

. Affirmed

. O P I N I O N ANDERSON, Justice. In this case , w e are presented with the question of whether pastor s and their church can be held liable for statements the pastor s made about a parishioner during formal church disciplinary proceedings. Appellants L a Vonne and Henry Pfeil allege that they were defamed by the pastoral s taff of St. Matthew Lutheran Church 1 during two church disciplinary proceedings that were held for the purpose of excommunicating the Pfeils from St. Matthew. T he district court dismissed the Pfeils ’ claims with prejudice on First Amendment grounds , and t he 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 Worthingt on, 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.”3

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 ,

r espondent Thomas Braun (“Braun”) and r espondent 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 gossi p”

a gainst the leadership and ministry of the congregation. In addition to criticizing the Pfeils’ behavior, the letter advised the Pfeils that the y had excommunicated themselves from St. Matthew and informed the Pfeils that their church membership had be en 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 Pf eils 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 me eting.

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.4

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 e ngaged 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 wh o were present at the meeting , and t he 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,5

and Behnke (collectively r espondents). 3 On December 24, 201 3 , r espondents filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Minn. R. Civ. P. 12.02(c). R espondents 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 d octrine.” 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 t he court of appeals affir med 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. Al though 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 t he 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 consi deration. 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.6

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 t o clar ify our jurisprudence regarding the intersection of the First Amendment and civil claims against religious institutions.
I I

. A. The district court and the court of appeals based their rulings on what they termed the “ecclesiastical abstention doctr ine.” 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. J

ones , 80 U.S. (13 Wall.) 679 (187 2 ), 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 C ourt 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 i d. at 732

- 34. The C ourt viewed judicial review of ecclesiastic tribunals as striking at the v ery heart of religious freedom and h eld that allowing civil review would “deprive [religious] bodies of the right of

5 The Pfeils brou ght 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.7

construing their own church laws . . . and would, in effect, transfer to the civil cou rts where property rights were concerned the decision of all ecclesiastical questions.” Id. at 733

- 34. The essence of the C ourt’s holding is captured in a now

- famous quotation : The right to organize voluntary religious associations to assist in the exp ression 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 bo dies, 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 themselve s, 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 Se rbian E

ast ern Orthodox Diocese for the U nited S tates of Am erica & 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 C ourt 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 bas is 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 significan t deference under the First Amendment.8

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 trib unal 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 70 9

. 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 deferenc e to religious authority in resolving church property disputes, even where no issue of doctr inal controversy is involved”); Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull
Mem ’ l Presbyterian Church , 393 U.S. 440 , 4 49 (1969) ( suggesting that cou rts 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 counse ling services from the pastor

. See Odenthal v. Minn

. Conference of Seventh

- Day Adventists , 649 N.W.2d 426 , 430

- 36 , 4 40

- 41 (Minn. 2002) (using the neutral principles contained in a statute regulating counseling activity to determine the standard of care ap plicable to a pastor providing counseling services)

.9

The U.S. Supreme Court recently addressed the ecclesiastical abstention doctrine in 2012 when it decided Hosanna

- Tabor Evangelical Lutheran Church & Sch ool 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 mini sterial 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 Hos anna - Tabor C ourt relied heavily on Watson , Ked r off , 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 governan ce of the church” and violate the F ree E xercise C lause and the
E stablishment C lause of the First Amendment

. Id. at ___, 132 S. Ct. at 7 06. The C ourt further indicated that whether the ecclesiastical abstention doctrine applies or whether neutral principl es 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 speak s 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 co ncerns, 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 to10

resolve doctrinal conflicts or interpret church doctrine. See Milivojevich , 426 U.S. at 720; M ary 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
gov erning 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 als o 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 do ctrine does not relate to subject matter jurisdiction

. The C ourt resolved a disagreement among federal circuit courts and held that the mi nisterial 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 ot herwise cognizable claim, not a jurisdictional bar. That is because the issue presen ted by the exception is ‘ whether the allegations the plainti ff11

makes entitle him to relief,’ not whether the court has ‘ power to hear [the] case. ’ ” (quoting Morrison v. Na t ’ 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 f unction 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 w e do not believe that the U.S. Supreme Court’s ruling in
Hosanna

- Tabor com

pels that result. T he unique circumstances surrounding the decision
in Hosanna

- Tabor , particularly the fact that the C ourt was confronted with a statutory cause of action, provide us with some latitude to decide how the doctrine will be applied in Minneso ta 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 suggest ed 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 p rovides 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

.12

The parties did not brief or argue the distinction between an affirmat ive 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 decid e an issue not briefed or argued by the parties). Instead, w e 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 o r a form of abstention.
II I

. 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, B lack 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 i d. 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 bec ause that claim was unrelated to pastoral qualifications or issues of church doctrine. Snyder , 471 N.W.2d at 720

- 21.13

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 tha t one of the reason s stated for terminating the parishio ners ’ membership

— that the y 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 becau se 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 direct ly 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
state ments on which the Pfeils base their claims occurred during church disciplinary proceedings , and Mains prohibits civil courts from inquiring into any statements made14

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

cou rse, not bound by decisions of the court of appeals, and a ppellants 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 stat ements 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 constitutiona l interpretation are question s 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 E stablishment C lause question and applied the three

- pronged
tes t 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 mus t 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 Minnes ota 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, respo ndents 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 dec ide 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 557.15

435 . The parties agree that b ecause defamation law serves a secular purpose and does not have the primary effect of advancing or inhibiting religion, only the excess ive

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 t he E stablishment and F ree E xercise
C lauses of the First Amendment , but provided no guidance on the applicability of more general E stablishment C lause and F ree E xercise Clause jurisprudence. See ___ U.S.
at ___, 132 S. Ct. at 706. Regardless, Lemon ’s enta nglement 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 allowin g 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 chur ch itself. ” Hosanna

- Tabor , ___ U.S. at ___, 132 S. Ct. at 707.
B. Courts from other jurisdictions that have faced similar facts have generally adopt ed one of two approaches. Respondents urge us to adopt a rule that adjudicating any defamation claim arisi ng out of a statement made during a church disciplinary16

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 ex pelled 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 b y

9 Se e 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 , 25 8 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. Pur dum , 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. Sy nod , 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 (Al aska 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. 201 3

- 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).17

the plaintiffs and determine whether it is “reasonably likely ” that the plaintiff s 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 s econd a mended c omplaint cannot serve as the basis for a defamation claim , even under the more liberal rule announce d 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 dec ide 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 d iscussed in the c omplaint can be adjudicated withou t 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’ sland er 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 det ermine 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 religiou s context in which these statements were made necessarily precludes judicial intervention.18 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 wi th religion and severely interfere with the ability of religious organizations to govern their

own affairs. To begin with, r espondents 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

c omplaint 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 statement s were made was clearly religious. A statement

- by

- statement analysis would be, at be st, a difficult endeavor a nd, 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 cou rts 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 th e 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 ’19

defamation clai ms are a request to evaluate the accuracy of the facts used to support

r espondents’ decision to excommunicate the Pfeils. S ome courts that adopt an absolute position on adjudicating suits arising out of church disciplinary proceedings reason that “[t]he F irst 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 92 9 , 937 (Mass. 2002)

. In essence, r espondents 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 i ntruding 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 Supreme20

Court cited Mains with approval , indicati ng that our court of appeals made the correct decision by refusing to delve into statements made during a church disciplin ary 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 a rgument 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 argum ent unpersuasive. This l itigation and the arguments on which the Pfeils rel y 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 on ly exacerbates the chilling effect of which

r espondents warn . Such a rule could perversely incentivize religious organizations to rely on amorphous and “doctrinal” reasons when maki ng membership decisions in order to avoid any statements that could be construed as secular . Although not directly before us, t he fact that Pfeils ’ rule would reward such behavior demonstrates that it would both21

excessively entangle the court with religio n 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 E stablishment C lause of the First Amendment. The Pfeils cite no case law in support of the pro position that shielding religious leaders and organizations from tort liability for their actions in the course of a church disciplinary proceeding would violate the E stablishment C lause , 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 E stablishment C lause

— 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 discip linary 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 privil ege 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 su

pra at 18

- 19.22

proceedings could be unconstitutional

. The Pfeils ’ contention that a rule barring defamation claims based on statements made during a church disciplinary proceeding violates the E stablishment C lause of the First Amendment is meritless

. Second, the Pfeils argue that an absolu te 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 a rgument, 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 av oid ing 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 ma de 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 t hose facts are not before us and we leave the resolution of such a case for another d ay. 12
T he 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 Am endment 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 Amendmen t.23

go uncompensated. It is clear that at least some statements and actions within the cont ext of a church disciplinary proceeding are immune from liability

— the Pfeils even admit as much. C ertainly a claim for redress arising out of defamatory speech is a valued and important societal interest. But o n the facts before us

— where min i sters ma de l argely religious and doctrinal allegations as part of an excommunication procee ding and only disseminate d 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 71 0. 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 amoun ts to an act of judicial policy making on issues of immunity. But the dissent fundamentally misunderstands our holding. Odenthal itself recognized that the Constitution prohibits courts from engaging in inquir i es 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

w hen 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 statem ents 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 mi ssion of the church itself,” id ., and would ex cessively entangle the24

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 i nterpreted 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

cour se 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 th at 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 , so mething very different tha n 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 Amendmen t has struck the balance for us ” in this case. Hosanna

- Tabor , ___ U.S. at ___, 132 S. Ct. at 710.25

The law place s 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, partic ular ly where, as here, the right to a remedy must be weighed against constitutionally enshrined commitment s to religious freedom. W e conclude that adjudicating Pfeils’ claims would excessively entangle the courts with religion and unduly interfere with r e spondents’ constitutional right to make autonomous decisions regarding the governance of their religious organization.
IV

. In s ummary , we agree with r espondents insofar as they argue that applying the issue

- by

- issue approach advocated by the Pfeils to t his 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 cour ts with religion and unduly interfere with r espondents’ 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.26

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 consi deration or decision of this case.D

- 1 D I S S E N T 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 contra ry 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 ma y 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 cou rt 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

- 16D

- 2

(1952); Serbian E. Orthodox Dioce se 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 Presby terian 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 t hough 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 consiste nt 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 “governm ent interference with an internal church decision that affects the faith and mission of the church itself.” Id . at ___, 132 S. Ct. at 707.D

- 3

The issue in Hosanna

- Tabor

— the criteria for hiring and terminating ministerial employees

— went directly to the hea rt 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 t hat 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 an alyze 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

- 4

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 ne utral 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 defama tion 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 Chur ch. 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. Adjudicatin g 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 p ublicly 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 cla im

by

- claim basis, rather than as a categorical bar.D

- 5

that the Pfeils had “refus[ed] to follow the commands of God’s Word and Scriptural warnings by elected le aders 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 ap ply 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 c ould 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 ass aults 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 di strict 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 j udicial 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

- 6 III. Instead, the court announces a categorical rule of law , closely akin to an absolut e 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 rel igious 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 def amation victims of a remedy, absolute privileges should be rare creatures. “ A bsolute privilege i s 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 doe s 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 churchD

- 7

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 sta y 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 muc h 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 religio us 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 Le wis v. Equitable Life
Assur ance 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. 19 80 ). 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 an d under

- inclusive. First, the court does not explain precisely which claimants, besides the Pfeils, lose their defamation remedy. A defamatory statement during a religious disciplinaryD

- 8

proceeding might be heard by only members and participants, but mig ht be about a non member third party. I suspect that, u nder 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 “f ormal 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 t hose 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, fals e 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 eachD

- 9

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 becau se 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 adjudicati on 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. I n 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 privil ege. 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

- 10

basis. Any surviving defamation and neglig ence 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.