Friday, March 7, 2008

Seminaries and Professors? Churches and Ministers? A Case Precedent Worth Considering

Last January, in the initial days of the Klouda lawsuit, I pointed the attention of the blogosphere to the earlier precedent set by Equal Employment Opportunity Commission v Southwestern Baptist Theological Seminary. As I noted last year, this case involves the same institution and essentially the exact same question as the current Klouda case.

The entire section quoted below is relevant to current circumstances. One sentence I find most interesting. It appears that even in the Dilday administration more than twenty years ago Southwestern Baptist Theological Seminary expected that faculty "[model] the ministerial role for the students." Not all ministers are pastors—other schools exist beyond the School of Theology and other degrees exist beyond the MDiv, after all. But the raison d'être of the School of Theology is to train pastors. If faculty are expected to be model pastors for future pastors, does it not make sense that they be qualified to serve as pastors? And even if you disagree, mustn't you concede that such an argument is reasonable?

A. Is the Seminary a "Church"?

We come now to the crux of this case: the proper characterization of the Seminary. The EEOC describes the Seminary as a religiously affiliated institution. The Seminary claims it is wholly religious.

Since we have already distinguished Mississippi College on this issue, see Part II, supra, we turn to McClure. Our task in discerning the nature of the Seminary and the role of its employees is more difficult than that the court faced in McClure. There, all parties agreed that the Salvation Army was a religion and McClure was a minister, id. at 556. Clearly, the Seminary is an integral part of a church, essential to the paramount function of training ministers who will continue the faith. It is not intended to foster social or secular programs that may entertain the faithful or evangelize the unbelieving. Its purpose is to indoctrinate those who already believe, who have received a divine call, and who have expressed an intent to enter full-time ministry. The local congregation that regularly meets in a house of worship is not the only entity covered by our use of the word "church." That much is clear from McClure. In the Baptist denomination, the Convention is formed to serve all participating local congregations. The fact that those who choose to participate in the Convention do so voluntarily renders it no less deserving of the protection of McClure. Since the Seminary is principally supported and wholly controlled by the Convention for the avowed purpose of training ministers to serve the Baptist denomination, it too is entitled to the status of "church."

B. Who are the "Ministers"?

This is a more difficult question. The parties have identified three categories of Seminary employees: faculty, administrative staff, and support staff. The district court concluded that the first two groups should be considered ministers, while the latter group were not "ministers in the formal sense." To the extent that these findings indicate determinations of fact by the district court, they must be accepted unless clearly erroneous. Fed.R.Civ.P. 52. The status of these employees as ministers for purposes of McClure remains a legal conclusion subject to plenary review. The Seminary urges that all its employees serve a ministerial function. While religious organizations may designate persons as ministers for their religious purposes free from any governmental interference, bestowal of such a designation does not control their extra-religious legal status.

The district court found that the Seminary makes employment decisions regarding faculty members largely on religious criteria. This finding is supported by the record. As previously discussed, the level of personal religious commitment of faculty members is considered more important than their devotion to the Baptist church or their academic abilities, though all of these qualities are desirable. According to Dr. Dilday, President of the Seminary, there is no course taught at the Seminary that has a strictly secular purpose; Dr. Naylor, the Seminary's President Emeritus, testified similarly. Though the record indicates that ministers are ordained by local churches and not by the Seminary, most of the faculty have been ordained. The Seminary expects the faculty to teach by example as well as by other means. The faculty models the ministerial role for the students. Based on the district court's findings of fact, we conclude that the faculty at the Seminary fit the definition of "ministers" for the purpose of applying McClure.

38 comments: said...
This comment has been removed by the author. said...

Good heavens.

Our seminaries have been appointing female professors for years, and now we disover that these females are PASTORS - according to the courts?

Well gee whiz. The courts have now ruled our seminaries are violating the BFM 2000. We have no choice. It pains me to write this:

For the sake of doctrinal integrity we must vacate every Southern Baptist trustee and administrative position that is filled by a Southern Baptist who voted to appoint a woman professor (preacher) at one of our SBC seminaries. They have, according to the federal courts of the land, violated the BFM 2000.

I realize that some are trying to correct this eggregious lapse of parameters in a more indirect manner, but shoot, when the courts of the land tell us what we need to know about the Bible, we must obey.

But, wait a minute.

I thought this site was complaining that we shouldn't listen to courts in church/state matters.

I'm confused.

Bart Barber said...


And a moment ago in a comment on another post you were telling us that a court ruling would define the truth for us. There's irony all around, I suppose.

Bart Barber said...

My insistence is not that we shouldn't listen to courts, but that courts should preserve religious liberty. In EEOC v SWBTS, the court did precisely that. said...


You misunderstand my point in my first comment. Maybe it is my poor sense of humor according to Katie (or Peter).

I think you will find the courts say there is no relation between the case you cite in this post and the Klouda case for reasons that will be articulated by the judge when he overrules any motion to dismiss. If he does dismiss the case, you will hear no complaint from me. The court has ruled.

I would simply ask for the same consideration if he moves it forward - that is the consistency that is needed.

We don't need Southern Baptists objecting to courts ruling in theological matters only when the rulings go contrary to desires - and then, pulling out court rulings when they FAVOR a particular theological position and say - see there! That is the truth of the matter.


Bob Cleveland said...

From completely out in my personal left field, this principle may have been the downfall of Judge Roy Moore. He appealed to the Court system, over the removal of the stone monument of the ten commandments. The presumed purpose of that was to overturn the lower court, forcing the "other side" to put the monument back. But when they ruled against HIM, he refused to obey the court order. It cost him his position, and I cannot disagree with that.

Can't have it both ways. What the court rules, will be the deal. Period.

Bart Barber said...


I only have time for one reply, so I'll try to make it comprehensive:

1. You misunderstand the entire point of the post. The court did not construct its own opinion in this matter; it was echoing and affirming the argument of Naylor and Dilday. My point is that this pastor-modeling role of theology school professors is not some novel creation of Dr. Patterson's, but was argued in court by Drs. Naylor and Dilday!

2. I assure you, were our theology schools chock-a-block with women as professors, your close buddies over at CBE would be the first to shout, "If women can train pastors and model pastoring, shouldn't they be able to be pastors?"

3. The case EEOC v SWBTS is a great example of why we shouldn't blithely accept court rulings. You do realize, don't you, that the case is an APPEAL, and by definition, a rejection of a lower court's ruling.

4. The passivity you suggest toward governmental edicts CONTRARY TO religious liberty, had it been possessed by Backus and Leland, Williams and Helwys, would have us all paying taxes to the Church of England still today.

5. I have never contested the authority of courts. Rather, I have stated that THEOLOGY is not the business of the courts. Why are you disagreeing with me on this point?

I'm off to the Dallas World Aquarium with my kids. Let's all behave while I'm away, now.

Anonymous said...


Thank you very much for the legal expertise that you have brought to the discussion of the Klouda lawsuit.

Please use your astute legal mind to enlighten us further by explaining how Employment Division v. Smith, 494 U.S. 872 (1990) impacts your view of religious liberty.

Chris Johnson said...


Any seminary can hold the “status” of church in the eyes of the state, but the question still remains….Is it actually doing the work or “not” doing the work of the church. That distinction is what the Apostle Paul was making clear to the churches ecclesiastically.

For instance, I can organize a group of Christians for the purpose of training, bible studies, even missions and not be what the Apostle Paul says makes a church a church and what a church is doing. Yet I would still be able to get all of the United States government benefits of separation attributed to a “church”, etc…. but nevertheless, there are other countries that would not give me that separation. It is basically the same argument given by the Apostle Paul, “All Israel is not Israel.” The Israelites get the benefit of living in the country and having the oracles of God, but as they never act in obedience they prove themselves not to be true Israel.

Back to my original challenge for SWBTS, or really any seminary, is it really doing or merely mimicking what the Apostle Paul orders the church to do. If SWBTS is doing the work of the church, then this particular situation is really a simple matter and the government would be more than happy to back away according to current law that governs the United States.

So, if SWBTS wants to function as a church it is required to follow what the church is ordered to do in Matthew 18 with its members? Who is the Pastor? Who are the leaders that are nurturing and loving? Who has been offended? Has the offended one gone to the offender and worked this out? If Pastors could not be identified, who were the Pastors of the members of this organization? Have those churches been identified and have they followed Matthew 18 for the benefit of the offended and the offender to the Glory of God? Has anyone been brought before the church? Was anyone put out of the church? Who is sweeping this under the rug? Who allowed this to get to the courts?

The seminary will prove whether it is a church or not, or if it is able to effectively teach and live by the orders of God’s Holy Word,…..because Matthew 18 is a function not primarily instituted to protect the church or its autonomy (as if the church will fail), but to bring Glory to God because of “whose” the church is. Getting the government to recognize SWBTS as a church for purposes of “religious freedom” is completely different than doing the work of the church.

Chris said...

Great question Matt.

I look forward to an answer as well.

Tim G said...

Wade and Matt,
Was Dilday wrong in argueing exactly what Patterson's attorneys and Patterson are presenting?

One other question, if this is about a Contract Issue, why do the documents that Ben is putting forth show that the Attorneys for Dr. Kloudia are also including with equal weight the beliefs of SWBTS and Patterson?

Tim G said...

Wade and Matt,
If you will read the comment from Louis over at Outpost, she makes the same point and raises the same issue pertaining to the above question.

Big Daddy Weave said...

This is absolutely lovely.

Southern Baptist ministers getting down and dirty, grappling with the details of Supreme Court decisions!

I'm not an expert on the Klouda facts and arguments as my class schedule and thesis writing leaves me only with a few moments each day to post on my personal blog and fight the fundys over at :-)

But, let me say this: The Smith decision was awful and severely limits the free exercise rights of minority faiths all around the country. Scalia was dead wrong. And thank God everyone from Dick Land to Buzz Thomas (National Council of Churches) and the Muslims, Jews, Sikhs, and BUddists realized this.

According to Scalia "if prohibiting the exercise of the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended."

Correct me if I'm wrong, but it seems that a contract (oral or written) would fall under the "law of general applicablility" category. It applies to everybody. The contract binds both parties. Thus, if Patterson's "exercise of religion" has been offended merely because of the "incidental effect" of this contract (somehow, someway)- tough luck. The First Amendment has not been violated.

One cannot claim that his or her right to practice religion should take precedent over a (contract) law that was not designed to burden religious behavior. The contract between Klodua and SWBTS was definitely not intended to burden religious behavior.

Maybe I'm confused on the particular facts, but Smith is THE case that controls free exercise claims. The scope of free exercise rights was drastically narrowed by Scalia in 1990. The Sherbert Test of the 70s and 80s is no more.

So, how exactly does Paige Patterson clear the Smith hurdle?

This case Bart has cited may not even be relevant. The date is 1981. Every student of church-state (specifically the free-exercise clause) knows that EVERYTHING has changed since 1990.

And to me at least - we should remember one of the first modern church-state principles established by the SUpreme Court back in the late 19th century (Reynolds v. United States - i.e. Mormon polygamy case): while religious belief is absolute; religious behavior is not.

I think Thomas Jefferson said something similar. And as Scalia noted in Smith, the Supreme Court has "never held that an individual's religious beliefs excuse him from compliance with an overwise valid law prohibiting conduct that the State is free to regulate."

I actually agree with Scalia here. We can't have Mormons marrying multiple women and we can't have seminary Presidents breaking their agreements/contracts with Professors. That's an obxnoxious idea - that a President of a University or Seminary could up and decide to oust a Professor (under contract) on theological grounds. That's like John Lilley saying that my pops could no longer teach in Tidwell because the Bible says men can't teach women theology despite the fact that he's under contract. And to that I say: Thank God John Lilley is no Paige Patterson and Thank God that my Dad got his Tenure today!

Anonymous said...

Tim G,

I appreciate your legal expertise as well. The SBC is fortunate to have so many pastors who are knowledgable enough about constitutional and labor law to be able to analyze complex legal issues without the benefit of a legal education.

Dave Miller said...

Is the EEOC decision authoritative in civil court?

Bart Barber said...

Good evening, all,

The Dallas World Aquarium was fantastic. We were there to see scuba divers feed bunches of leaf lettuce to the manatee (manatees?) in the River tank—one manatee pushed his face against the glass right in front of us, as though to sniff us out, if possible. The black jaguar (this one with four legs, not wheels) acknowledged our presence, the river otter was jovial today, and by some optical illusion the hammerhead shark appeared to swim straight out of the water and through the top three feet of air space of our glass tube through the saltwater tank.

Having read through the comments, I promise you I've had more fun than any of you today. :-)

I'm off to church for a wedding rehearsal. I think I'll have enough time after I get to the office but before things get started to comment on Oregon v Smith.

Anonymous said...

Bart, oh tell us more about your aquarium visit. I am going to take my granddaughters there. selahV

Bart Barber said...

Now, regarding Smith:

1. My views of religious liberty are not affected by Supreme Court decisions. The views of religious liberty that I hold predate both the Supreme Court and the Constitution.

2. I think Smith was a horrible decision. But, horrible or not, we get to live with it. Fortunately, both the Federal government and the State of Texas have passed RFRAs. The former holds sway via Gonzales, and Boerne seems not to have any effect upon the latter. So, Big Daddy's analysis notwithstanding, I'm not sure that Smith has changed much of anything in Texas. When I get a chance actually to look at the case law involved, I'll cite passages showing the possibility of positive legislative enshrinement of religious exemption to invoke Sherbert.

3. The first of two important relevant factors of Oregon v Smith is the profilgate mention (both in the decision and in the dicta, if I correctly recall) of criminal laws of general applicability. Yet EEOC v Southwestern makes it clear that the seminary's conduct here is not criminal, Klouda has advanced no EEOC complaint alleging otherwise, and the seminary has not alleged any violation of a criminal law by Klouda. A strict reading of Smith would lead one to question whether it applies here. I'm sure that this is why Klouda has not sought EEOC relief. Her only recourse is to argue that SWBTS somehow made an oral contract with her that superceded the carefully worded provisions of the Faculty Manual. Look at what eventually happened in the suit between HIT entertainment and Big Idea—it is hard to win oral contract cases.

...I'm out of time...

By the way, Matt, I promise not to get snotty about it when you comment about theology and history if you'll lose the attitude regarding constitutional law. My Ph.D. involved the specific in-depth study of these exact cases (thanks, Dr. Stookey). Did yours?

Tim Rogers said...

Brothers All,

I knew there was something about Dr. Bart Barber that I liked besides his down home attitude. He just revealed to all what it is. It is his wise demeanor in how to handle the sharks when they are biting at your feet. You give them enough shark food to bring them to dry land where they will flap around where you can expose them.

Bart, Listen closely. What is it that you hear? Crickets.



Tim G said...

You are very welcome. Anytime you need some good advice, please do call. I would be honored to help in your time of need.

Bart Barber said...

...or DID Klouda attempt to take her case to the EEOC? What happened there?

Anonymous said...

Tim G.,

I'll be sure to do that. Who needs to pay lawyers when we have so many pastor/legal experts in the SBC? Thank you for your offer to help.


Wow! Thanks for your convincing and accurate analysis of religious freedom law. You have also successfully demonstrated that reading some cases under the tutelage of a non-lawyer as a small part of a broader academic program is a more than adequate substitute for a three-year law school education.

Seriously, pastors in the SBC need to understand that the Klouda case is complex. There are good legal arguments on both sides. For every quote or case that you pull from Shelby Sharpe's briefs (no pun intended) to support Patterson, Gary Richardson can cite another case that cuts in favor of Klouda. You like to emphasize the EEOC case, and I agree that it's a good case for Patterson in the current lawsuit. However, when you:

A. Just ape Shelby Sharpe's arguments about EEOC without interacting with Gary Richardson's counterarguments &
B. Prominently discuss only those select cases that support Patterson's position while ignoring the numerous cases that Richardson has cited in support of Klouda's position,

you demonstrate that you have no idea how to do the type of thorough legal analysis that lawyers do every day. This is not meant to be "snotty." There's nothing wrong with a pastor being unable to analyze complex legal issues and having the humility to admit it.

There's a reason why lawyers have to go to school for three years before they can sit for the bar. Law is a complex field, and non-lawyers are ill-equipped to understand all the nuances and intricacies. It's not a good idea to have someone who has not been to medical school perform heart surgery on you (even if he did read a few articles on surgery as part of a graduate program in history), and it's not a good idea to have non-lawyers attempting to do complex legal analysis.

Anonymous said...


Yes, Klouda filed a complaint with the EEOC. This has been readily ascertainable from the case file for at least the past six months.

An individual cannot sue for employment discrimination under Title VII without first receiving a right to sue letter from the EEOC.

Bart Barber said...


OK...seeking to resume where I left off. But first I see that I need to reply to a rejoinder of yours...except that you haven't actually replied to any of my specifics. When you do so, I'll be glad to respond.

As an aside, I point out the following about the differences between our law-degree-bearing brethren and the rest of us:

1. In most cases, when the verdict comes at least one set of bona fide lawyers finds out that they were wrong. :-)

2. A great many of the people writing these laws (i.e. our legislators) do not have law degrees. They muddle through somehow.

3. I have posted primarily about religious liberty, which is first and foremost a theological and philosophical principle that the law just happens to attempt to enshrine (on its good days).

4. If you hope to carry on a conversation in which you deem yourself the only one qualified to hold an opinion, you either ought to find better company with which to speak or become a missionary.

Theology, by the way, can also be quite complex.

Now, to get back to a running start.

The Smith decision dealt with a criminal law (dealing with drug use) by which, unless the law was unconstitutional, Smith's actions were plainly illegal. The law in question here is Title VII. The ministerial exception to Title VII, by virtue of its very existence, differentiates this law from Oregon's drug laws, does it not? Unless the courts violate precedent (Petruska v Gannon hasn't gone to the Supremes, has it?), in the Fifth Circuit the question of whether SWBTS faculty members are ministers (for the purposes of Title VII) has already been decided.

Yes, I know that arguments are being advanced to the contrary. If they were not, I wouldn't be concerned about these ongoing attempts to unravel religious liberty in our nation.

Now, for the second item with regard to Smith. Didn't the court hold that Smith did not apply to hybrid claims? Yet within the Fifth Circuit, I think as far back as McClure, hasn't the court held that the "ministerial exemption" is necessary not only to preserve the Free Exercise clause (viz. the realm of Smith) but also to avoid excessive entanglement under the Establishment Clause. Doesn't this constitute a hybrid claim? If not, why not? And if it does, doesn't that mean ipso facto that Smith is not on point.

Big Daddy Weave said...

While the ministers at SBC Today have always lived up to my expectations concerning con law, I must say that here at PraiseGodBarebones I'm impressed Bart! A couple semesters back, I used a hybrid claim argument (relying on Smith) on a take home final exam paper. I received an A!

Actually, Jay Sekulow of the ACLJ is quite famous for employing hybrid claim arguments when before the Supreme Court. He normally relies on both the free exercise clause and the free speech clause to win over The Nine (and he's been quite successful).

For what it's worth, I don't think one needs a JD to discuss intelligently constitutional law. Most of my lawyer friends only had one (sometimes two) course in Con Law during their 3-year tenure. I had Con Law during my one year at law school. But here at the J.M. Dawson Institute of Church-State Studies, you get an overload of Religion & Law if you so desire on your way to a MA or Phd or in my case finishing one and starting the other!

Dave Miller said...

I understand the point of the post, Bart. Dr. Patterson, contrary to certain implications, did not originate the "seminaries are churches, professors are pastors" line of reasoning.

In reality, though, it would seem to me that if we really thought this...

...seminaries would celebrate communion regularly.

...seminary chapels would be equipped with baptistries.

...seminaries would be run by deacons, not boards of trustees.

I have no opinion on the legalities of this, but spiritually, I do not think seminaries are churches and I do not think professors are pastors.

Still, let me be the first to say it.

Bart Barber for SBC president 2008.

volfan007 said...


i'm not a lawyer either, but i have stayed at a holiday inn express before.

i just pray that the Lord will keep the govt.(courts) out of the churches business. it's hard for me to understand any christian wanting the courts to decide matters of theology for us. what a can of worms this will open.


Bart Barber said...

Big Daddy,

I have no doubt that you are getting an excellent, perhaps unparalleled, education regarding First Amendment law. Thanks for the compliment.


You get the gold star for returning us to the point of the original post. I believe that a cooperative venture of churches, so long as it is connected with the accomplishment of basic church functions, deserves the same constitutional protections as an actual church.

Think of it this way. FBC Farmersville would not hire a woman as a pastor. Thanks to the "ministerial exemption" the state cannot compel us to do so. Collin Baptist Association has never had an Executive Director who was not an ordained pastor. I do not believe that CBA is a church, nor do I believe that the Exec of CBA is a pastor. Nevertheless, I believe that CBA is an association of churches and that the Exec of CBA needs to be an ordained pastor. I believe that the "ministerial exemption" ought to apply to CBA. I believe that, for the purposes of Title VII, a religious cooperative venture of churches is a "church," and at least some of its employees are "ministers."

I doubt that anyone—Naylor, Dilday, Patterson, and certainly not Barber!—would argue that the seminary is a church in a theology sense. I'm pretty strict regarding ecclesiology (which, in 2008, pretty much applies to anyone who HAS any ecclesiology). Believe me, I do not consider the seminary to be a church in the strictest theological sense.

Chris Johnson said...


Men brave enough to admit that SWBTS is not a church (Matt and Bart). The courts recognized this long ago while granting religious separation to these type of organizations at almost every opportunity.

The problem of Klouda vs. SWBTS/Patterson is still in play. Is the church (people), not able to apply Matthew 18?

A fair question to ask…. Why are the leadership and Klouda (who represented sound teaching) at a renowned seminary for the SBC unable to follow the order of the church that is set forth in Matthew 18 to bring this matter to a solution?

Would not a biblical solution be a great training video for the seminary?


Chris Johnson said...


Intro should have read "Finally"



Anonymous said...


"Yes, I know that arguments are being advanced to the contrary."

My problem with your approach is that you're not actually grappling with these arguments and attempting to deal with them. All you're doing is parroting the arguments that Shelby Sharpe has already made, and doing so in a much less persuasive manner than he has done. What's the point of doing that? Why not just post a link to Sharpe's brief and encourage everyone to read it?

Dave Miller said...

Matt, you may not agree with Bart, but a fair reading of what he writes shows he has thought through these things.

"Parroting?" That seems not only harsh, but also untrue.

Ron Phillips, Sr. said...


You imply that only lawyers may discuss legal and Constitutional issues and their implications? No thanks. I think we should continue to exercise our First Amendment rights to free speech, despite your condescending attitude. I am curious as to why you are not at SBC Outpost disparaging their legal comments. The few comments you have made there, show you to be biased towards Dr. Klouda. So your coming here and to other conservative blogs with your persnickety attitude to anyone of us who has an opinion about this rings very hollow.

Ron P.

Anonymous said...

Ron P.,

I'm not saying that non-lawyers shouldn't discuss whatever they want. I'm saying they shouldn't be so presumptuous and arrogant as to think that their ability to analyze legal issues is equivalent to the ability of lawyers to do so.

If you want to express an opinion as to which of two methods of performing heart surgery is better, go ahead. Just don't expect your opinion to mean a whole lot to a heart surgeon.

Ron Phillips, Sr. said...


Thank you for making my point. We are not discussing this with lawyers nor before any court. This is an SBC blog. So your condescending views are out of place.

I will add that when you have an issue that does requires legal advice, that one should always seek the counsel of a competent attorney of integrity.

Ron P.

Tim Rogers said...


Do you not think that Nifong would have appreciated Brother Bart's ability to read and discuss legal opinions? Also, I am certain that those who are defending the institution in which you are studying for your law degree would do well to ask him to review some decisions they will be arguing in defending the university against the law suits coming their way.


Anonymous said...


"I'm saying they shouldn't be so presumptuous and arrogant as to think that their ability to analyze legal issues is equivalent to the ability of lawyers to do so."

So, when a lawyer argues a case before a jury, is it a jury of the lawyers peers or the defendant's that makes the decision as to who is right or wrong? Seems to me that if one would press your position, we would no longer have jury trials at all - just leave it to the lawyers. No thanks. Most legal issue are not as difficult as the lawyers make them out to be. But then what do I know? I'm just a hick from the sticks.


R. L. Vaughn said...

Bart, it seems Judge McBryde agreed -- in relation to this, legally, seminaries stand in the same position as churches, and seminary professors as ministers.