in Re Diocese of Lubbock

IN THE SUPREME COURT OF TEXAS
══════════
No. 20-0127
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IN RE DIOCESE OF LUBBOCK

══════════════════════════════════════════
ON PETITION FOR WRIT OF MANDAMUS
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JUSTICE BOYD, dissenting.

The Catholic Church has publicly confessed that a “culture of abuse” existed within its

communities.1 With “sorrow and shame,” Pope Francis personally acknowledged “the atrocities

perpetrated by consecrated persons, clerics, and all those entrusted with the mission of watching

over and caring for those most vulnerable.”2 He also conceded that, beyond the abuse itself, the

victims’ pain “was long ignored, kept quiet or silenced.” 3

But now, the church has pledged to publicly “condemn these atrocities and join forces in

uprooting this culture of death.”4 It has promised to extend “an outstretched hand” to the victims

“and rescue them from their pain.”5 And it has committed itself to a “penitential openness that can

1
Letter of His Holiness Pope Francis to the People of God, THE HOLY SEE (Aug. 20, 2018),
http://www.vatican.va/content/francesco/en/letters/2018/documents/papa-francesco_20180820_lettera-popolo-
didio html.
2
Id.
3
Id.; cf. Heather McAdams, Holding the Catholic Church Responsible on an International Level: The
Feasibility of Taking High-Ranking Officials to the International Criminal Court, 53 N.Y.U. J. INT’L L. & POL. 229,
230 (2020) (describing “the Catholic Church’s history of covering up the sexual abuse of minors committed by its
clergy”).
4
Letter of His Holiness Pope Francis to the People of God, supra note 1.
5
Id.
allow [the church] to be renewed from within.”6 Unfortunately, that commitment to “openness”

led to the filing of this lawsuit.

Consistent with the Holy Father’s commitment, the United States Conference of Catholic

Bishops issued a Charter for the Protection of Children and Young People, requiring that all U.S.

Catholic Dioceses “be open and transparent in communicating with the public about sexual abuse

of minors by clergy within the confines of respect for the privacy and the reputation of the

individuals involved.”7 Pursuant to this directive, the Texas Dioceses undertook to investigate all

allegations of sexual abuse of a minor by a clergy member and to publish lists of all such persons

against whom a “credible allegation” had been made. When the Lubbock Diocese produced its list,

entitled “Names of All Clergy with a Credible Allegation of Sexual Abuse of a Minor,” it posted

the list on its public website, issued a press release saying the list was issued as part of the church’s

effort to “protect children from sexual abuse,” and provided an interview about the list to a

Lubbock news station in which the Diocese’s chancellor assured the public that the church is safe

“for children.” [Emphases added.]

Jesus Guerrero, an ordained deacon, asked the Lubbock Diocese to remove his name from

the list. When the Diocese refused, Guerrero filed this suit for defamation, contending that he has

never been accused—credibly or otherwise—of sexually abusing a child. The Diocese does not

disagree, but it asserts that, under Catholic Canon Law, the word “minor” is defined to include

6
Id.
7
Charter for the Protection of Children and Young People, U.S. CONF. OF CATH. BISHOPS (June 2018),
https://www.usccb.org/issues-and-action/child-and-youth-protection/upload/Charter-for-the-Protection-of-Children-
and-Young-People-2018-final.pdf.
2
adults “deemed vulnerable due to a health or mental condition.” According to the Diocese,

Guerrero was accused—many years before the Diocese published the list—of engaging in “sexual

misconduct” with an adult woman who had a history of mental and emotional illness, who “may

not have been on her medications at the time of the various instances which were witnessed.” The

Diocese, however, did not provide its unique definition of the term “minor” when it published its

list and other statements referring to abuse of “children” to the general public.

Under these circumstances, the Court’s desire to protect the Diocese against anything that

might inhibit its commitment to “openness” is understandable. But the rule the Court announces

today—which no other court has ever announced before—is as unwise as it is unsupported by the

constitutional provisions on which the Court relies. The First Amendment indisputably prohibits

courts from interfering with a religious organization’s internal activities and operations, including

investigations and disciplinary actions involving its clergy and members. But courts throughout

the country, both federal and state (including several state supreme courts) have consistently

agreed that the First Amendment does not prohibit courts from hearing a defamation claim against

a religious organization or official when (1) the claim is based on statements made to the general

public and (2) the courts can resolve the claim on strictly secular grounds. In rejecting this holding,

the Court refuses to even address this national consensus in the caselaw, much less identify any

court that has ever held otherwise.

Unlike the federal Constitution, the Texas Constitution expressly guarantees not only the

freedom of speech, but also that the law will hold people responsible “for the abuse of that

3
privilege.”8 Our courts must stand as the vanguard of enforcement for both those guarantees.

However desirable the outcome of today’s decision may be in this particular case, the precedential

effect of the Court’s holding will apply to every group that asserts a religious identity and will

immunize defamatory statements publicized under far less sympathetic circumstances. And after

today’s decision, the First Amendment now means something different in Texas than it means

throughout the rest of the country. Of course, that cannot be correct. Because I agree with all the

courts around the country that have held that the First Amendment does not prohibit courts from

hearing a defamation claim against a religious organization when the claim involves statements

made to the general public and courts can resolve the claim on strictly secular grounds, I

respectfully dissent.

I.
The Ecclesiastical-Abstention Doctrine

The First Amendment to the United States Constitution famously prohibits Congress from

making any “law respecting an establishment of religion, or prohibiting the free exercise thereof.”

U.S. CONST. amend. I. The Fourteenth Amendment imposes this restriction on the states.

Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S.

440, 441 (1969). “The free exercise of religion means, first and foremost, the right to believe and

profess whatever religious doctrine one desires.” Emp. Div., Dep’t of Hum. Res. of Or. v. Smith,

494 U.S. 872, 877 (1990). The provision prohibiting the establishment of religion means, among

other things, that the government may not interfere with a religious organization’s “ecclesiastical

8
TEX. CONST. art. I § 8.
4
decisions.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 189

(2012).

As a result, courts may not decide “quintessentially religious controversies,” Serbian E.

Orthodox Diocese for U.S. & Can. v. Milivojevich, 426 U.S. 696, 720 (1976), or “cases of

ecclesiastical cognizance,” Watson v. Jones, 80 U.S. 679, 729 (1871). Because secular law “knows

no heresy, and is committed to the support of no dogma, the establishment of no sect,” courts must

abstain from hearing a claim that is “strictly and purely ecclesiastical in its character.” Id. at 728,

733. This includes claims that require courts to evaluate and assess “the faith and mission of the

church,” Hosanna-Tabor, 565 U.S. at 190, the “centrality of particular beliefs or practices to a

faith,” Hernandez v. Comm’r, 490 U.S. 680, 699 (1989), matters of “religious law and polity,”

Milivojevich, 426 U.S. at 709, “religious doctrine and practice,” Mary Elizabeth Blue Hull, 393

U.S. at 449, matters of “faith and doctrine,” Kedroff v. St. Nicholas Cathedral of Russian Orthodox

Church in N. Am., 344 U.S. 94, 116 (1952), or “questions of discipline, or of faith, or ecclesiastical

rule, custom, or law,” Watson, 80 U.S. at 727.

For example, courts cannot interfere with a religious group’s choices regarding its “internal

governance,” including its decision “to fire one of its ministers.” Hosanna-Tabor, 565 U.S. at 181,

188. Courts cannot resolve “church property disputes on the basis of religious doctrine and

practice.” Jones v. Wolf, 443 U.S. 595, 602 (1979). They cannot hear “church disputes over church

polity and church administration,” or claims involving a religious organization’s “internal

discipline and government.” Milivojevich, 426 U.S. at 710, 724. Nor can they decide whether a

church’s actions “depart substantially from prior doctrine,” Mary Elizabeth Blue Hull, 393 U.S. at

5
450, resolve a “theological controversy,” or determine the “conformity of the members of the

church to the standard of morals required of them,” Watson, 80 U.S. at 734.9

9
Courts have often treated this “ecclesiastical abstention” or “religious autonomy” doctrine as a
constitutional bar to the courts’ jurisdiction, as the Court does in this case today. Ante at . In Hosanna-Tabor,
however, the United States Supreme Court explained that the “ministerial exception” it recognized in that case operates
“not [as] a jurisdictional bar” that affects the court’s “power to hear [the] case,” but “as an affirmative defense to an
otherwise cognizable claim.” 565 U.S. at 195 n.4 (quoting Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 254
(2010)). Nevertheless, this Court holds today that the bar remains jurisdictional, attempting to distinguish Hosanna-
Tabor on the ground that the “ministerial exception” is “independent but related to” the ecclesiastical-abstention
doctrine. Ante at n.1.
The Supreme Court’s decisions do not support that distinction. The Supreme Court used the “ministerial
exception” label in Hosanna-Tabor to refer to a specific type of ecclesiastical claim the First Amendment prevents
courts from addressing—namely, a “minister’s” claim that a religious organization for which the minister worked
violated employment-discrimination statutes. Hosanna-Tabor, 565 U.S. at 176–77, 188. As JUSTICE THOMAS later
noted, the label is actually a “misnomer” because “[t]he First Amendment’s protection of religious organizations’
employment decisions” sometimes extends “to the laity” as well as “to members of the clergy.” Our Lady of
Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2069 n.1 (2020) (THOMAS, J., concurring). In any event, the
Court recognized the “ministerial exception” in Hosanna-Tabor both because the First Amendment’s Free Exercise
Clause “precludes application of [employment-discrimination statutes] to claims concerning the employment
relationship between a religious institution and its ministers,” and because the First Amendment’s Establishment
Clause “prohibits government involvement in such ecclesiastical decisions.” Hosanna-Tabor, 565 U.S. at 188–89
(emphasis added). In other words, the Supreme Court’s decision in Hosanna-Tabor was based on the same
constitutional provisions and the same application of those provisions as all its other decisions applying the
ecclesiastical-abstention (or religious-autonomy) doctrine.
The Supreme Court confirmed this in Our Lady of Guadalupe, explaining that the “constitutional foundation
for [its] holding [in Hosanna-Tabor] was the general principle of church autonomy to which we have already referred:
independence in matters of faith and doctrine and in closely linked matters of internal government.” Our Lady of
Guadalupe, 140 S. Ct. at 2061 (emphasis added). It further emphasized that the precedent on which the Court relied
in Hosanna-Tabor “drew on this broad principle, and none was exclusively concerned with the selection or supervision
of clergy.” Id. Applying this broad “understanding” of the First Amendment, the Court held that the defendants in Our
Lady of Guadalupe qualified for the same “exemption” the Court had recognized in Hosanna-Tabor. Id. at 2066.
This Court’s suggestion today that the Supreme Court in Our Lady of Guadalupe somehow backed off of its
jurisdictional analysis in Hosanna-Tabor, see ante at ___ n.33, is simply unsupported by either of those decisions.
Consistent with its holding in Hosanna-Tabor, the Supreme Court never mentioned “jurisdiction” in Our Lady of
Guadalupe. Instead of dismissing the claims in that case for want of jurisdiction, it reversed the appellate courts’
decisions (which themselves had reversed the district courts’ summary-judgment orders) and remanded the cases to
those courts for “proceedings consistent with this opinion.” Our Lady of Guadalupe, 140 S. Ct. at 2069. In other
words, it acted consistent with its holding in Hosanna-Tabor that the ecclesiastical-abstention doctrine is “not a
jurisdictional bar,” but “an affirmative defense to an otherwise cognizable claim.” Hosanna-Tabor, 565 U.S. at 195
n.4.
This case comes to us as a petition for writ of mandamus, urging us to order the trial court to grant the
Lubbock Diocese’s plea to the jurisdiction. The Court grants that relief, see ante at , even though the Supreme Court
held in Hosanna-Tabor and confirmed in Our Lady of Guadalupe that the First Amendment’s prohibition against
courts hearing claims involving ecclesiastical issues establishes an affirmative defense, not a jurisdictional bar. For
this additional reason, I cannot join the Court’s opinion or disposition in this case.
6
But the First Amendment’s bar against courts hearing ecclesiastical disputes is not without its

limits. Just as the Free Exercise Clause does not excuse religiously motivated citizens from

“compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,”

Smith, 494 U.S. at 879, the Establishment Clause does not prevent courts from deciding disputes

involving religious organizations by applying “neutral principles of law,” Jones, 443 U.S. at 604;

Mary Elizabeth Blue Hull, 393 U.S. at 449.

II.
Texas Precedent

This Court has addressed and applied the ecclesiastical-abstention doctrine in a handful of

cases. Initially, we held in a pair of decisions that the First Amendment prevented the courts from

hearing tort claims against a religious organization when the resolution of the claims would require

the courts to interfere with internal religious requirements and conduct. In Westbrook v. Penley,

231 S.W.3d 389 (Tex. 2007), a former church member sued the church’s pastor for negligence,

breach of fiduciary duty, and intentional infliction of emotional distress 10 after the pastor disclosed

the member’s confession of an extra-marital affair to the church’s elders, who—with the pastor’s

aid—reported the affair in a letter to the church’s members 11 and called on the members to “break

fellowship” with her. Id. at 393–94. The former member argued that because the pastor was also a

state-licensed professional counselor and she disclosed the affair to him during a “secular”

counseling session, the courts could hear and decide her claims based on neutral principles without

10
The former member “originally asserted but later abandoned” a claim for defamation. Westbrook, 231
S.W.3d at 396.
11
This “letter admonished the congregation to treat the matter as a ‘members-only issue, not to be shared
with those outside [the congregation].’” Id. at 393 (emphasis added).
7
deciding ecclesiastical issues. Id. at 396, 399. We disagreed, holding that even assuming the

counseling session was “purely secular in nature,” the pastor’s state-imposed duty of

confidentiality conflicted with his church-imposed duty to disclose her conduct to the elders and

other church members. Id. at 392. Although we agreed “that the First Amendment does not

necessarily bar all claims that may touch upon religious conduct,” id. at 396, we concluded that

“parsing” the pastor’s conflicting roles and duties “would unconstitutionally entangle the court in

matters of church governance and impinge on the core religious function of church discipline,” id.

at 391–92.

The following year, we held in Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d

1 (Tex. 2008), that the courts could not hear a teenage church member’s claims that the church had

forcibly restrained her while “laying hands” on her and praying over her during a “spiritually

charged” youth-group gathering. Id. at 3, 8. The teenager and her parents sued the church, its

pastors, and some members, seeking damages for “mental, emotional and psychological” injuries.

Id. at 5.12 We held that the claims were not cognizable because, “[a]lthough the Free Exercise

Clause does not categorically insulate religious conduct from judicial scrutiny, it prohibits courts

from deciding issues of religious doctrine.” Id. at 11. Because the resolution of the claims would

require inquiry into “church beliefs on demonic possession,” we concluded that “the imposition of

tort liability for engaging in religious activity to which the church members adhere would have an

12
The plaintiffs asserted claims for negligence, gross negligence, professional negligence, intentional
infliction of emotional distress, false imprisonment, assault, battery, loss of consortium, and child abuse. 264 S.W.3d
at 5.
8
unconstitutional ‘chilling effect’ by compelling the church to abandon core principles of its

religious beliefs.” Id. at 10–11.

More recently, we held in a pair of cases that the First Amendment does not prevent courts

from hearing and resolving disputes over ownership of church property when they can resolve

those disputes based on “neutral principles of law.” In Masterson v. Diocese of Northwest Texas,

422 S.W.3d 594 (Tex. 2013), we adopted the “neutral principles” standard for resolving church-

property disputes because that standard best balances the courts’ “constitutional duty to decide

disputes within their jurisdiction while still respecting” the First Amendment’s limitations. Id. at

596. We acknowledged that courts cannot “decide questions of an ecclesiastical or inherently

religious nature, so as to those questions they must defer to decisions of appropriate ecclesiastical

decision makers.” Id. at 605–06. But because courts are “[duty-]bound to exercise jurisdiction

vested in them by the Texas Constitution and cannot delegate their judicial prerogative where

jurisdiction exists,” we held that courts must “apply neutral principles of law to non-ecclesiastical

issues involving religious entities in the same manner as they apply those principles to other

entities and issues.” Id. at 606.

Applying Masterson, we held most recently that the ecclesiastical-abstention doctrine did

not prohibit courts from deciding whether the Episcopal Diocese of Fort Worth or the national

Episcopal Church from which the Diocese had split owned church property within the Fort Worth

area. Episcopal Diocese of Fort Worth v. Episcopal Church, 602 S.W.3d 417, 420 (Tex.

2020), cert. denied sub nom. All Saints’ Episcopal Church (Fort Worth) v. Episcopal Diocese of

Fort Worth, No. 20-534, 2021 WL 666391 (U.S. Feb. 22, 2021), and cert. denied, No. 20-536,

9
2021 WL 666393 (U.S. Feb. 22, 2021). While acknowledging that courts cannot make

“ecclesiastical determinations” or “resolve disputes turning on tenets of faith,” and thus could not

decide “which faction is the true diocese loyal to the church and which congregants are in good

standing,” id. at 432–33, 435, we concluded that courts could resolve the property-ownership issue

because, by “applying neutral principles to the organizational documents, the question of property

ownership is not entwined with or settled by [ecclesiastical] determinations.” Id. at 433.

III.
Defamation Claims

Neither this Court nor the United States Supreme Court has addressed whether or when the

ecclesiastical-abstention doctrine applies to defamation claims. See Hosanna-Tabor, 565 U.S. at

196 (expressing “no view on whether” the doctrine bars actions alleging “tortious conduct by . . .

religious employers”). Many other courts have, however, and they have consistently agreed that

the doctrine does not bar defamation claims that (1) are based on statements made to the general

public, outside the religious organization itself, and (2) can be resolved by applying neutral

principles, even when the statements were published by a church, its clergy, or another member of

a religious organization.

A. Statements made to the general public

When deciding that the First Amendment bars courts from hearing a defamation claim

against a religious organization, numerous courts—including two state supreme courts—

specifically reasoned that the bar applied because the statements were made only internally, solely

to the organization’s leaders or members. In Hiles v. Episcopal Diocese of Massachusetts, 773

N.E.2d 929 (Mass. 2002), for example, the Supreme Judicial Court of Massachusetts held that an
10
Episcopalian priest could not sue a parishioner for defamation based on a letter the parishioner

sent to the church’s bishop, in which she confessed to having an extended sexual relationship with

the priest, in part because the letter “was published solely in a canonical context” and used solely

“to invoke the Church’s internal disciplinary procedures.” Id. at 936. The court specifically noted

that its analysis was “predicated on the fact that the only defamatory publication allegedly made

by [the parishioner] was made to the Church itself, within its internal disciplinary procedure,” and

it explained that the “absolute First Amendment protection for statements made by a Church

member in an internal church disciplinary proceeding would not apply to statements made or

repeated outside that context.” Id. at 937 n.12 (emphasis added).

Similarly, in Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered Augsburg

Confession of Worthington, 877 N.W.2d 528 (Minn. 2016), the Minnesota Supreme Court

dismissed two excommunicated parishioners’ defamation suit against their former church and

pastors because “[a]ll of the statements on which the [parishioners] base their claims occurred

during church disciplinary proceedings, and [the First Amendment] prohibits civil courts from

inquiring into any statements made during the course of a church disciplinary proceeding.” Id. at

536. Like the Massachusetts court in Hiles, the Minnesota court specifically noted that it would

“be troubled . . . if the statements were disseminated to individuals outside of the religious

organization.” Id. at 540 (emphasis added). But because the ministers “only disseminated those

statements to members of the congregation,” the court held that the First Amendment barred the

defamation claim. Id. at 541.

11
Numerous other courts, including our own state’s courts of appeals, have also expressly

noted, when holding that the ecclesiastical-abstention doctrine barred a defamation claim, that the

alleged defamatory statements were published only to members of the religious organization as

part of the organization’s internal investigatory or disciplinary process. See, e.g., Yaggie v. Ind.-

Ky. Synod, Evangical Lutheran Church in Am., 64 F.3d 664 (6th Cir. 1995) (per curiam)

(unpublished table decision) (noting that “the alleged defamatory statements were made in

connection with the mediation process and strictly within the confines of the church”); Hubbard

v. J Message Grp. Corp., 325 F. Supp. 3d 1198, 1219 (D.N.M. 2018) (mem. op.) (“[T]o the extent

that the allegations in the Complaint suggest that the allegedly defamatory statements were

published exclusively to the [religious organization’s] membership, this fact strengthens the

Court’s conclusion that Plaintiff’s claims, having occurred in the context of an ecclesiastical

dispute with [the religious organization], are barred by the First Amendment.”); Jennison v.

Prasifka, 391 S.W.3d 660, 667–68 (Tex. App.—Dallas 2013, no pet.) (noting that the “only

defamatory statements allegedly made by [the defendant] were made to the church itself in

connection with the church’s disciplinary process,” and plaintiff made “no allegation the

allegedly defamatory statements were made in any other forum”); Stepek v. Doe, 910 N.E.2d 655,

667 (Ill. App. Ct. 2009) (noting that defamation claim was based on statements that “were

published solely within the Catholic Church’s internal disciplinary proceedings”); Patton v. Jones,

212 S.W.3d 541, 555 (Tex. App.—Austin 2006, pet. denied) (holding First Amendment barred

minister’s defamation claim in part because “the alleged ‘publication’ [was] confined within the

church”); Heard v. Johnson, 810 A.2d 871, 885 (D.C. 2002) (holding ecclesiastical-abstention

12
doctrine “extend[s] to defamation claims, when: (1) such a claim flows entirely from an

employment dispute between a church and its pastor so that consideration of the claim in isolation

from the church’s decision as to the pastor is not practical, (2) the alleged ‘publication’ is confined

within the church, and (3) there are no unusual or egregious circumstances”) (emphasis added);

Schoenhals v. Mains, 504 N.W.2d 233, 236 (Minn. Ct. App. 1993) (“[W]e believe that the fact that

the letter was disseminated only to other members of the Church strengthens the conclusion that

Mains’ statements involved and were limited to Church discipline.”).

Under this same reasoning, however, numerous other courts have held that the First

Amendment does not prohibit courts from hearing a defamation claim based on statements

communicated beyond the religious organization to members of the public. In Kliebenstein v. Iowa

Conference of United Methodist Church, 663 N.W.2d 404 (Iowa 2003), for example, the Iowa

Supreme Court held that the First Amendment did not bar a church member’s defamation claim

based on a letter that was “mailed not only to members of the congregation but also to other persons

living in the Shell Rock community.” Id. at 405. The court observed that courts could not hear the

claim “had the matter been divulged solely to the members of” the church, but “if publication

solely to church members justifies ecclesiastical status for otherwise defamatory communications,

proof of publication to non-church members arguably supports the opposite conclusion.” Id. at

406–07.

Similarly, in Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877 (Tex.

App.—Dallas 2000, pet. denied), a decision this Court declined to review, the Dallas Court of

Appeals held that the First Amendment did not bar a church member’s defamation claim arising

13
from the church’s disclosure of information regarding his mental condition outside the church,

including to his grandparents. Id. at 896. The court explained that the church’s external disclosure

of the information did not concern “internal policies of the Church or matters of faith or

ecclesiastical doctrine,” and the court’s resolution of the claim based on that external disclosure

would not “actively involve the government in the Church’s religious activities or excessively

entangle the government with religion.” Id.

And in Lipscombe v. Crudup, 888 A.2d 1171 (D.C. 2005), the D.C. court of appeals held

that the First Amendment did not bar a church member’s defamation claim against the church’s

pastor, in part because the member’s allegation “that the statement was made ‘to the public in an

open meeting’ sufficiently alleged that others besides church members were present,” and his

affidavit “asserted explicitly that ‘[t]he public gathering was not part of any church service and

members from the public, including accountants, heard the Statement.” Id. at 1173 & n.2.

Numerous other courts, including Texas courts of appeals, have adopted this same

reasoning. See, e.g., Hadnot v. Shaw, 826 P.2d 978, 985 (Okla. 1992) (noting that statements

contained in letter were not defamatory, even assuming “the lay leader communicated the letters’

contents outside the Church”); Kelly v. St. Luke Cmty. United Methodist Church, No. 05-16-01171-

CV, 2018 WL 654907, at *1 (Tex. App.—Dallas, Feb. 1, 2018, pet. denied) (mem. op.) (holding

ecclesiastical-abstention doctrine did not bar defamation claim “respecting statements allegedly

published to persons outside the church”); Ausley v. Shaw, 193 S.W.3d 892, 896 (Tenn. Ct. App.

2005) (holding First Amendment did not bar minister’s slander claim because statements “were

14
made in the presence of Church members, local law enforcement, and members of the surrounding

community”).

Here, Guerrero alleges—and the Lubbock Diocese does not dispute—that the Diocese

publicized the list that included his name among those credibly accused of sexually abusing

“minors” (along with statements referring to the safety of “children”) not merely to and within the

church, but to the general public through the church’s website, a press release, and an interview

with local media. By choosing to broadcast the statements beyond the church and involve the

general public in the church’s disciplinary procedures, the Diocese altered the nature of the

constitutional concerns. See, e.g., Pleasant Glade Assembly of God, 264 S.W.3d at 12 (noting that

“religious practices that might offend the rights or sensibilities of a non-believer outside the church

are entitled to greater latitude when applied to an adherent within the church”). At that point, the

church’s conduct was no longer “strictly and purely ecclesiastical in its character,” Watson, 80

U.S. at 733, and Guerrero’s complaint became more than a “quintessentially religious

controvers[y]” involving only the church’s “internal discipline and government,” Milivojevich,

426 U.S. at 720, 724 (emphasis added).

The Diocese’s assertion that its religious teachings required it to publicly disclose the list

in compliance with Pope Francis’s commitment to “openness” does not alter this conclusion. Nor

does the Court’s assertion that Guerrero’s claim is “inextricably intertwined” with the church’s

directive that the Diocese internally investigate its clergy. Ante at __. The Court asserts that the

church’s decision to publish a list of those credibly accused of abusing minors cannot be severed

from its decision to investigate its clergy, ante at __, but Guerrero’s defamation claim does not

15
complain about—and a jury would not be required to evaluate—either of those actions. The

Diocese investigated allegations against Guerrero years before the church published the list, and

Guerrero has never complained about the church’s decision to conduct that investigation.

Guerrero’s defamation claim does not challenge that investigation or the Diocese’s decision to

publicize the list; he complains of the Diocese’s inclusion of his name on the list, which he asserts

falsely defames him by communicating to the public that he had been credibly accused of sexually

abusing a “minor.”

The Diocese’s—indeed, the entire church’s—commitment to public transparency as it

seeks to leave its “atrocities” behind is both understandable and laudable. But the issue here is not

whether the Diocese should have investigated Guerrero, internally disciplined him, or even

published a list of those who had been accused of sexual misconduct. Nor does Guerrero complain

that the Diocese concluded internally that he had been accused of sexually abusing a “minor,” as

Canon Law defines that term. His complaint is that the Diocese should not have broadcast to the

general public an allegation that he had been credibly accused of sexually abusing a “minor.”

Exercising jurisdiction over Guerrero’s claim would not second-guess or threaten the

church’s (or any other religious organization’s) decision to investigate its clergy, finding of

misconduct by a clergy member, or imposition of internal disciplinary measures against a member

within the church’s religious activities. What it would threaten is a religious organization’s ability

to make false and defamatory statements about its clergy or members to the general public, outside

of the organization’s internal operations. The issue here is simply whether the First Amendment

prohibits courts from hearing a claim that the information distributed to the general public in and

16
with the Diocese’s list falsely defamed Guerrero. Like all the other courts around the country, I

conclude it does not. “It is one thing to say that churches must be free of governmental interference

to conduct matters of internal discipline and organization, even when those matters touch upon

the reputations of those effected.” Hayden v. Schulte, 701 So. 2d 1354, 1356–57 (La. Ct. App.

1997) (emphasis added). But it is “quite another to say that churches have the unfettered right to

make unsubstantiated statements of an essentially secular nature to the media destructive of a

priest’s character.” Id. at 1357. By extending its internal disciplinary procedures and beliefs into

the public arena, the Diocese subjected itself to the public laws that govern that realm. 13

13
The Court suggests in passing that the First Amendment bars this suit because the Free Exercise Clause
permits a religious organization to “engage freely in ecclesiastical discussions with more than just its members.” Ante
at ___ (citing Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 658 (10th Cir. 2002)). According to
the Court, a religious organization’s decision to “enter the public square” does not “revoke ecclesiastical protection.”
Ante at ___ (quoting Whole Woman’s Health v. Smith, 896 F.3d 362, 372 (5th Cir. 2018)). This argument misrepresents
the decisions in both those cases. In Bryce, a minister and her same-sex partner alleged that the minister’s church’s
leaders and members made “sexually harassing remarks” in letters between the senior minister and “other church
leaders” and “at a series of church meetings.” 289 F.3d at 657. Applying the ecclesiastical-abstention doctrine, the
court held that the First Amendment barred the minister’s and her partner’s claims because the letters “discussed an
internal church personnel matter and the doctrinal reasons for [the] proposed personnel decision,” and the church
meetings “facilitated religious communication and religious dialogue between [the senior] minister and his
parishioners.” Id. at 658. In stating that the church could “engage freely in ecclesiastical discussions with members
and non-members,” the court was specifically referring to the fact that the minister’s partner, who was not a member
of the church, was present at the meetings. Id. The court concluded that the First Amendment also barred her claims
because she “voluntarily attended” the meetings and “voluntarily became part of [the church’s] internal dialogue on
homosexuality and [the minister’s] employment.” Id. Bryce did not involve a church’s broadcast of allegedly
defamatory statements to the general public or to “non-members” who had not voluntarily chosen to participate in a
church’s internal doctrinal discussions.
In Whole Woman’s Health, the plaintiff, who sued to challenge a state statute and regulations that imposed
restrictions on the disposal of fetal remains, sought through a third-party discovery subpoena to force the Texas
Conference of Catholic Bishops (a non-party) to disclose its internal communications regarding public testimony it
provided in support of the restrictions. 896 F.3d at 365–66. The court quashed the subpoena, holding that by
“engag[ing] in activity in the public square,” the Conference did not forfeit the First Amendment’s protection of the
Conference’s “inner workings” and “internal communications.” Id. at 372. The court relied not on the First
Amendment’s religion clauses or the ecclesiastical-abstention doctrine, but on the clause that protects the “freedom to
associate,” which protects the internal deliberations not just of religious organizations but of “citizens’ groups” and
all other organizations that participate in the public square. Id. Neither Bryce nor Whole Woman’s Health held—or
even discussed whether—a religious organization’s right to engage in the public arena gives it the right to falsely
defame others within that arena. See id.
17
B. Neutral principles

In addition to barring court intrusions into a church’s “internal” operations and

proceedings, the First Amendment precludes judicial inquiries into a religious organization’s

“particular beliefs,” Hernandez, 490 U.S. at 699, matters of “religious law,” Milivojevich, 426 U.S.

at 709, and issues of “religious doctrine,” Mary Elizabeth Blue Hull, 393 U.S. at 449. “The free

exercise of religion means, first and foremost, the right to believe and profess whatever religious

doctrine one desires,” Smith, 494 U.S. at 877, and courts have no business evaluating the soundness

of a church’s doctrinal teaching or whether one has conformed to or strayed from those teachings,

Mary Elizabeth Blue Hull, 393 U.S. at 450; Watson, 80 U.S. at 733–34.

Because of this, courts have held that the First Amendment bars a defamation claim when

a statement’s defamatory nature or its truth or falsity depends upon the interpretation and

application of religious doctrine and teachings. In O’Connor v. Diocese of Honolulu, 885 P.2d 361

(Haw. 1994), for example, a member of the Catholic Church who published a newspaper that was

critical of the local Diocese and Bishop sued them both after the church excommunicated him,

asserting that they defamed him by publicizing allegations that he had committed “‘criminal penal

ecclesiastical’ violations,” created a “schism,” misrepresented the Catholic faith “against the

warnings of the Holy See,” was a “fanatic[]” who “came from a neolithic mind frame,” was

disloyal to the Pope, and had “caused others to suffer the loss of their immortal souls.” Id. at 367–

68. The Hawaii Supreme Court held that the First Amendment barred courts from hearing these

claims because, “to determine the truth or falsity of the statements, a state court would have to

18
inquire into church teachings and doctrine” and determine “doctrinal correctness” by “analyzing

church law.” Id. at 368.

Other courts have reached the same conclusion when faced with similar circumstances that

required them to evaluate religious and doctrinal issues to resolve a defamation claim. See, e.g.,

Pfeil, 877 N.W.2d at 538 (observing that statements “cannot serve as the basis for a defamation

claim” when “adjudicating the truth or falsity of the statements would require the court to consider

and interpret matters of church doctrine”); Howard v. Covenant Apostolic Church, Inc., 705

N.E.2d 385, 389 (Ohio Ct. App. 1997) (holding First Amendment barred defamation claim when

its resolution would require “biblical interpretation” and a determination of plaintiff’s

“‘conformity . . . to the standard of morals required of’ him by his church,” matters that are

“inextricably intertwined with ecclesiastical or religious issues over which secular courts have no

jurisdiction”); Schoenhals, 504 N.W.2d at 236 (“Since examination of the truth of [the

defendants]’ statements would require an impermissible inquiry into Church doctrine and

discipline, the district court did not err in concluding that the defamation claim is precluded by the

First Amendment.”).

But as numerous courts—including at least six other state supreme courts—have

recognized, the First Amendment does not bar a defamation claim, even if it arises from a religious

context, when courts can resolve the claim by applying only non-religious, neutral principles. In

Kliebenstein, for example, the Iowa Supreme Court held that the plaintiff could pursue her claim

that a church defamed her by publicizing an accusation that she had the “spirit of Satan,” because

the phrase “spirit of Satan” has “a secular, as well as sectarian, meaning.” 663 N.W.2d at 405, 408.

19
Because the phrase has a secular meaning that a jury could evaluate “without resort to theological

reflection,” the court concluded that the ecclesiastical-abstention doctrine did not apply. Id. at 405,

407.

Similarly, in Bowie v. Murphy, 624 S.E.2d 74 (Va. 2006), the Virginia Supreme Court held

that the First Amendment did not bar a church deacon’s claim that the church’s minister and other

members defamed him by publicizing statements that he had “assaulted” another member. Id. at

76–77, 79–80. The court reasoned that although courts could not consider claims challenging the

church’s decisions involving its internal governance, they could evaluate the defendants’

“statements for their veracity and the impact they had on [the deacon’s] reputation the same as if

the statements were made in any other, non-religious context.” Id. at 79.

And in Banks v. St. Matthew Baptist Church, 750 S.E.2d 605 (S.C. 2013), the South

Carolina Supreme Court held that the First Amendment did not bar defamation claims asserted by

a church’s trustees against the church’s pastor, who allegedly accused the trustees of mismanaging

(and, impliedly, stealing) the church’s property and of lying to the pastor about their conduct. Id.

at 606–07. The court reasoned that the bar would apply if, for example, the pastor had accused the

trustees of being “sinners,” of being “not true followers of God,” or of violating church law. Id. at

608. But because courts could determine whether the pastor actually made the statements and

whether they harmed the trustees by applying “neutral principles,” without requiring “any inquiry

into or resolution of religious law, principle, doctrine, discipline, custom, or administration,” the

court held that the First Amendment did not bar the claim. Id. at 607–08.

20
Numerous other courts have consistently agreed with this reasoning. See, e.g., McRaney v.

N. Am. Mission Bd. of the S. Baptist Convention, Inc., 966 F.3d 346, 349 (5th Cir. 2020) (holding

First Amendment did not bar defamation claim brought by executive director of church’s local

mission board against church’s national mission board, based on alleged statements accusing

director of refusing to meet with national board’s president, because resolution of claim would not

“require the court to address purely ecclesiastical questions”); Drevlow v. Lutheran Church, 991

F.2d 468, 471–72 (8th Cir. 1993) (holding First Amendment did not bar minister’s libel claim

against church based on false statements church allegedly made about minister’s wife, because

resolution of claim would not “definitely involve the district court in an impermissible inquiry into

the Synod’s bylaws or religious beliefs”); Tubra v. Cooke, 225 P.3d 862, 864 (Or. 2010) (holding

First Amendment did not bar pastor’s defamation claim based on church leaders’ statements that

minister “had misappropriated church funds and was dishonest during his time as pastor”); Connor

v. Archdiocese of Phila., 975 A.2d 1084, 1107 (Pa. 2009) (holding First Amendment did not bar

parents’ defamation claim based on parochial school’s alleged statements that child “brought a

weapon to school” because “this is not a case in which religious authority would be directly

relevant to a party’s showing on the merits of his or her opponent’s claims”); Lipscombe, 888 A.2d

at 1173–74 (holding First Amendment did not bar defamation claim because resolution did not

require “inquiry by the court into church religious practices or financial management”); McAdoo

v. Diaz, 884 P.2d 1385, 1390–91 (Alaska 1994) (holding First Amendment did not bar church

volunteer’s defamation claim against pastor because “a determination of whether the statements

were true and the amount of damage to [the volunteer’s] reputation does not present a

21
religious question”); Marshall v. Munro, 845 P.2d 424, 425, 428 (Alaska 1993) (holding First

Amendment did not bar pastor’s defamation claim against executive presbyter who told other

churches that pastor “was divorced, was dishonest, was unable to perform pastoral duties due to

throat surgery, and had made an improper advance to a [church] member,” because courts need

“only determine if the facts stated were true and if [the presbyter] made the statements with

malice,” without deciding whether the pastor was qualified to serve).

Here, the Court asserts that the First Amendment bars Guerrero’s defamation claim because

the resolution of that claim “will necessarily require the trial court to evaluate whether the

Diocese properly applied Canon Law.” Ante at __. Specifically, the Court suggests that resolution

of Guerrero’s claim will require courts to perform a “secular investigation into the Diocese’s

understanding of the term ‘minor,’ whether the court agrees that the woman he allegedly sexually

abused qualifies as a ‘minor’ under Canon Law, and whether the allegations which the church

possesses were sufficiently ‘credible.’” Ante at __.

To be sure, the First Amendment bars courts from second-guessing a church’s internal

decisions regarding the meaning of words it uses in its internal doctrinal statements. The Catholic

Church has painstakingly struggled with the “concept of ‘minor,’” which “has varied over the

course of time.” Vademecum on Certain Points of Procedure in Treating Cases of Sexual Abuse

of Minors Committed by Clerics, THE HOLY SEE (July 16, 2020),

http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_2020071

6_vademecum-casi-abuso_en.html. Initially, the church defined the term to include only persons

under sixteen years of age, but it expanded the definition in 2001 to include those under eighteen.

22
Id. In 2010, the church announced that any “person who habitually has the imperfect use of reason

is to be considered equivalent to a minor.” Id. But this is to be distinguished from a “vulnerable

adult,” described as “any person in a state of infirmity, physical or mental deficiency, or

deprivation of personal liberty which, in fact, even occasionally limits their ability to understand

or to want or otherwise resist the offence,” who, apparently, in some (but not all) circumstances,

also qualifies as a “minor” under the church’s laws. Id. In 2019, however, Pope Francis referred

alternatively to “a minor or a vulnerable person,” providing different definitions for each term.

Apostolic Letter Issued Motu Proprio by the Supreme Pontiff Francis “Vos Estis Lux Mundi,” THE

HOLY SEE (May 7, 2019),

http://www.vatican.va/content/francesco/en/motu_proprio/documents/papa-francesco-motu-

proprio-20190507_vos-estis-lux-mundi.html (emphasis added). And just this month, the church

revised (for the first time in over forty years) the penal provisions of the church’s Code of Canon

Law, which now refer in the alternative to “a minor or a person who habitually has an imperfect

use of reason or one to whom the law recognises equal protection.” 2021 C ODE c.1398, § 1

(emphases added),

https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2021/06/01/210601b.html.

But to resolve Guerrero’s defamation claim against the Lubbock Diocese, courts need not

struggle through the church’s internal doctrinal definitions of the term “minor.” To recover on his

claim, Guerrero must only establish that the Diocese published a factual statement about him that

was both defamatory and false, and that it did so “with the requisite degree of fault.” Dall. Morning

News, Inc. v. Tatum, 554 S.W.3d 614, 623 (Tex. 2018). Under neutral principles of Texas law, a

23
publication is false—or not “substantially true” and thus actionable—if it “is more damaging to

the plaintiff’s reputation than a truthful broadcast would have been.” Neely v. Wilson, 418 S.W.3d

52, 63 (Tex. 2013). And a publication is defamatory (or libelous) if it “tends to injure a living

person’s reputation and thereby expose the person to public hatred, contempt or ridicule, or

financial injury or to impeach any person’s honesty, integrity, virtue, or reputation.” Id. at 60

(quoting TEX. CIV. PRAC. & REM. CODE § 73.001).

Importantly, courts must make these determinations based not on the speaker’s intended

meaning of the words it published, but “upon how a person of ordinary intelligence would

perceive” the statement, in light of all the surrounding circumstances. Turner v. KTRK Television,

Inc., 38 S.W.3d 103, 114 (Tex. 2000). The statement’s meaning, in other words, “and thus whether

it is false and defamatory, depends on a reasonable person’s perception of the entirety of a

publication,” not on what the Diocese may have intended when it used the word “minor.” Id. at

115. To prevail, Guerrero must prove not what the Diocese meant when it publicly stated that

Guerrero had been credibly accused of sexually abusing a “minor,” but what the public would have

understood that statement to mean, given all the circumstances. Noting that the Diocese’s public

statements regarding the list it publicized referred to the safety of “children,” Guerrero alleges that

the public would have understood that Guerrero had been credibly accused of sexually abusing a

child.

Applying these neutral principles of Texas law “obviates entirely the need for an analysis

or examination of ecclesiastical polity or doctrine.” Jones, 443 U.S. at 605. Indeed, the Catholic

Church has itself agreed that its norms governing the reporting of suspected sexual abuse by clergy

24
should “apply without prejudice to the rights and obligations established in each place by state

laws.” Apostolic Letter Issued Motu Proprio by the Supreme Pontiff Francis “Vos Estis Lux

Mundi,” THE HOLY SEE (May 7, 2019),

http://www.vatican.va/content/francesco/en/motu_proprio/documents/papa-francesco-motu-

proprio-20190507_vos-estis-lux-mundi.html. Courts need not delve into ecclesiastical issues to

decide whether the Diocese’s statement that “credible allegations” had been made that Guerrero

sexually abused a “minor” was false and defamatory. Those determinations involve purely secular

issues to be resolved by applying neutral principles of law.

When the Oregon Supreme Court concluded that the First Amendment did not bar a

defamation claim based on statements accusing a minister of theft and misappropriation, it

observed that such a claim was no “more (or less)” an ecclesiastical matter than a claim “accusing

a pastor of child molestation.” Tubra, 225 P.3d at 872. No matter how pure their intent, religious

organizations cannot immunize themselves from court inquiries regarding such important societal

concerns merely by incorporating those concerns into their religious doctrine. As a Louisiana court

explained:

Society does not view child molestation as a matter of religious
doctrine, as distinguished from, say, the procedures within the
Church necessary to atone for such a sin. Child sexual abuse is
anathema to society in general, even to atheists. It is prohibited by
secular laws. The public has an interest in matters of child
molestation. Therefore, where child molestation is at issue, it cannot
be considered just an internal matter of Church discipline or
administration. Child molestation is distinguishable from those
cases where religious figures claim that their reputations were
damaged because they were found to be poor administrators or
where their private conduct did not comport with church standards,
but the issue was not one of the violation of secular criminal laws.
25
The Church cannot appropriate a matter with secular criminal
implications by making it simultaneously a matter of internal
Church policy and discipline.

Hayden, 701 So. 2d at 1356 (emphasis added).

IV.
Conclusion

The Court need not and does not decide today whether the Catholic Church has responded

adequately or appropriately to the “culture of abuse” that existed within its midst. Nor need we

decide whether the Lubbock Diocese should be held liable to Guerrero for defamation. Our views

on those issues are irrelevant to the only issue before us: whether the First Amendment prohibits

Texas courts from hearing Guerrero’s claim. If it does, we must dismiss the claim and leave

Guerrero and the Diocese to their mutual pursuit of righteousness and fellowship within the tenets

of their shared faith.14 But if it does not, we are as duty-bound to hear and resolve Guerrero’s claim

as we would be to refrain from hearing it if the First Amendment did apply. See Masterson, 422

S.W.3d at 606. Because Guerrero’s defamation claim is based on statements the Lubbock Diocese

published beyond the church to the general public, and because courts can resolve that claim based

on neutral principles without becoming entangled in ecclesiastical issues, I agree with all the

federal and state courts around the country, which have consistently held that the First Amendment

does not bar the courts from hearing such a claim. Because the Court holds otherwise, I respectfully

dissent.

14
Some might contend that those shared tenets compel both parties to resolve their dispute without the courts’
involvement regardless of whether the First Amendment bars Guerrero’s claim. See 1 Corinthians 6:7 (“Why not
rather be wronged?”). But that ecclesiastical issue is not for this Court to decide.
26
_____________________
Jeffrey S. Boyd
Justice

Opinion delivered: June 11, 2021

27