Shlomo Hyman v. Rosenbaum Yeshiva of North Jersey

• Court: Supreme Court of New Jersey
• Decided: July 24, 2024
• Docket: A-11-23
• Status: Published

Opinion

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.

Shlomo Hyman v. Rosenbaum Yeshiva of North Jersey (A-11-23) (087994)

Argued March 26, 2024 -- Decided July 24, 2024

PER CURIAM

The Court considers whether the “ministerial exception” grounded in the First Amendment to the United States Constitution -- which requires courts to “stay out of employment disputes involving” employees who hold “certain important positions with churches and other religious institutions,” Our Lady of Guadalupe Sch. v. Morrissey- Berru, 591 U.S. 732, 745 (2020) -- bars the defamation claims asserted here by plaintiff Shlomo Hyman, a Judaic Studies teacher who was employed by defendant Rosenbaum Yeshiva of New Jersey, an Orthodox Jewish school.

Hyman was hired by the Yeshiva in 1988. According to the Head of School, in February 2019, the Yeshiva learned of “allegations of inappropriate conduct” by Hyman, “including allegations of intentional physical contact.” The Yeshiva placed Hyman on administrative leave and retained a law firm to investigate the allegations. The law firm’s findings included that former fifth and sixth grade female students had reported that Hyman “had intentionally touched them and other girls in his classes.” The Head of School asserted that, after consultation with two respected rabbis, the Yeshiva deemed that Hyman’s conduct was “not . . . acceptable or consistent with how a rebbe in our Yeshiva should interact with students” and that it “violated Orthodox Jewish standards of conduct” set forth in the staff handbook. In May 2019, the Yeshiva terminated Hyman’s employment.

After further consultation, the Yeshiva sent a letter to the school community regarding the decision to terminate Hyman’s employment. The Head of School e- mailed the Board of Directors, parents of current students, and faculty members stating in part that “it was determined that Rabbi Hyman’s conduct had been neither acceptable nor consistent with how a rebbe in our Yeshiva should interact with students,” and “the leadership of the Yeshiva has terminated his employment.”

Plaintiffs allege that the letter was disseminated on social media, costing him employment opportunities and imposing financial, social, and emotional harm on him and his family. Plaintiffs filed this action in November 2019. As relevant here, Hyman individually asserted a claim for defamation. The trial court dismissed all of plaintiffs’ claims with prejudice based in part on the ministerial exception. 1 Relying solely on the ministerial exception, the Appellate Division affirmed. 474 N.J. Super. 561, 572-83 (App. Div. 2023). With no reference to McKelvey v. Pierce, 173 N.J. 26 (2002), the Appellate Division held that “the ministerial exception applies to bar tort claims, provided (1) the injured party is a minister formerly employed by a religious institution and (2) the claims are related to the religious institution’s employment decision.” 474 N.J. Super. at 580. Noting that Hyman had conceded his status as a minister and that the defamation claims related to the Yeshiva’s decision to terminate his employment, the court found that the ministerial exception barred those claims. Id. at 580-83.

The Court granted certification. 255 N.J. 419 (2023).

HELD: The six members of the Court who participated in this appeal unanimously agree that the standard set forth in in McKelvey, 173 N.J. at 51, applies in this case. The Court thus readopts that standard, with two refinements to accord with recent United States Supreme Court precedent, as set forth in Section III.C. of Justice Patterson’s concurring opinion. See infra. at ___ (slip op. at 26-32). The members of the Court are equally divided as to whether discovery is required in this case. As a result, the judgment of the Appellate Division, which affirmed the trial court’s dismissal of the case on summary judgment without discovery, is affirmed.

JUSTICE PATTERSON, CONCURRING, joined by JUSTICES SOLOMON and FASCIALE, reviews the United States Supreme Court cases in which the ministerial exception was developed and applied. Although that Court has not had occasion to apply the ministerial exception to a tort claim, the New Jersey Supreme Court has prescribed a standard to apply in determining whether a given claim is barred by the exception. See McKelvey, 173 N.J. at 32-33, 51-52. Under McKelvey, a court should individually assess each element of a claim and decide whether the court’s determination of the claim would require it “to choose between competing religious visions, or cause interference with a church’s administrative prerogatives, including its core right to select, and govern the duties of, its ministers.” Id. at 51. If adjudication raises no such First Amendment concerns, the court may decide the claim; if not, it must dismiss it. Ibid. The Court does not adopt two aspects of the analysis in McKelvey that cannot be reconciled with the United States Supreme Court jurisprudence that followed: first, the ministerial exception is clearly not limited to employment decisions made by religious institutions on religious grounds; second, the Court does not adopt as part of its holding today the language suggesting that a minister’s claim for damages in the employment discrimination setting does not implicate the First Amendment. Subject to those caveats, the Court reaffirms McKelvey’s holding.

2 Applying the McKelvey standard, as modified, Justice Patterson concludes that adjudication of each element of Hyman’s defamation claims would unconstitutionally interfere with the Yeshiva’s authority to select and govern its ministers, and that the ministerial exception bars those claims. First, assessing the veracity of the message that the Yeshiva had deemed Hyman’s conduct to be unacceptable is inextricably intertwined with the Jewish law that governs the Yeshiva’s operations, in Justice Patterson’s view, as is whether the e-mail was defamatory, which would necessarily entail an exploration of rules imposed by the Yeshiva addressing physical contact between teachers and students of the opposite gender. Justice Patterson explains that deciding the issue of unprivileged publication would implicate religious law with regard to both the contents of the letter and the scope of Rosenbaum Yeshiva’s publication of the letter. Finally, Justice Patterson notes, to decide whether defendants acted negligently in drafting and sending the letter, a court would be compelled to decide whether defendants had reasonable grounds for concluding that Hyman’s conduct was unacceptable and inconsistent with his role in the Yeshiva -- an inquiry that would inevitably enmesh a court in an application of religious law. With or without discovery, Justice Patterson writes, a court would be required in this case to assess the reasons for a religious institution’s decision to terminate the employment of a minister, an inquiry that would violate the First Amendment.

JUSTICE PIERRE-LOUIS, DISSENTING, joined by CHIEF JUSTICE RABNER and JUSTICE NORIEGA, stresses that the present matter -- like defamation disputes generally -- does not inherently implicate the constitutional principles that informed the United States Supreme Court’s ministerial exception decisions. Justice Pierre-Louis explains that plaintiff here contests what defendants said about his termination -- not the termination itself -- and that nothing about a defamation suit involves telling a religious institution who it can or cannot fire and for what reasons. Justice Pierre- Louis would hold that the ministerial exception does not automatically foreclose plaintiff’s defamation claim and would allow him to proceed with limited discovery to determine if his claim is justiciable under McKelvey. There is a difference between allowing discovery to determine whether the alleged conduct occurred and discovery to determine whether the adverse action taken as a result of the alleged conduct was justified under Jewish law, Justice Pierre-Louis writes. Justice Pierre-Louis expresses concern that religious entities now have a blueprint for what to say in any public statement in order to not only bar a defamation claim by invoking the ministerial exception, but also to bar discovery.

The members of the Court being equally divided, the judgment of the Appellate Division is AFFIRMED.

JUSTICE PATTERSON filed a concurrence, in which JUSTICES SOLOMON and FASCIALE join. JUSTICE PIERRE-LOUIS filed a dissent, in which CHIEF JUSTICE RABNER and JUSTICE NORIEGA join. JUSTICE WAINER APTER did not participate.

3 SUPREME COURT OF NEW JERSEY A-11 September Term 2023 087994

Shlomo Hyman,

Plaintiff-Appellant,

and

Freidi Hyman, Bracha Hyman, Yaakov Hyman, Aharon Hyman, Temima Hyman, and Eliora Hyman (a minor, by her parent and guardian Shlomo Hyman),

Plaintiffs,

v.

Rosenbaum Yeshiva of North Jersey, Adam Mermelstein, Yehuda Rosenbaum, and Daniel Price,

Defendants-Respondents.

On certification to the Superior Court, Appellate Division, whose opinion is reported at 474 N.J. Super. 561 (App. Div. 2023).

Argued Decided March 26, 2024 July 24, 2024

1 Richard I. Scharlat argued the cause for appellant (Fox Rothschild, and Rivkin Law Group, attorneys; Richard I. Scharlat, of counsel and on the briefs, and Oleg Rivkin (Rivkin Law Group) of the New York and District of Columbia bars, admitted pro hac vice, on the briefs).

Akiva Shapiro (Gibson, Dunn & Crutcher) of the New York bar, admitted pro hac vice, argued the cause for respondents (Hartmann Doherty Rosa Berman & Bulbulia, and Gibson, Dunn & Crutcher, attorneys; Mark A. Berman, Jeremy B. Stein, and Akiva Shapiro, on the brief).

Peter G. Verniero argued the cause for amicus curiae New Jersey Catholic Conference (Sills Cummis & Gross, attorneys; Peter G. Verniero and Michael S. Carucci, of counsel and on the brief).

Laura Wolk Slavis of the Maryland and District of Columbia bars, admitted pro hac vice, argued the cause for amici curiae Diocese of Eastern America of the Serbian Orthodox Church, Eastern American Diocese of the Russian Orthodox Church Outside Russia, Romanian Orthodox Metropolia of the Americas, and the Antiochian Orthodox Christian Archdiocese of North America (The Becket Fund for Religious Liberty, attorneys; Richard C. Osborne, Laura Wolk Slavis, and Eric C. Rassbach of the California, Texas, and District of Columbia bars, admitted pro hac vice, on the brief).

Viviana M. Hanley, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Jeremy M. Feigenbaum, Solicitor General, of counsel, and Viviana M. Hanley, on the brief).

Diane P. Sullivan submitted a brief on behalf of amici curiae Professor Michael W. McConnell and Professor Douglas Laycock (Weil, Gotshal & Manges, attorneys; Diane P. Sullivan, Jared R. Friedmann of the New York 2 bar, admitted pro hac vice, Shai Berman of the New York bar, admitted pro hac vice, Daniel M. Lifton of the New York bar, admitted pro hac vice, and Mark I. Pinkert of the Florida bar, admitted pro hac vice, on the brief).

Brian D. Mogck submitted a brief on behalf of amici curiae The National Council of Young Israel, The Jewish Coalition for Religious Liberty, Agudath Israel of America and Union of Orthodox Jewish Congregations of America (Walden Macht & Haran, attorneys; Brian D. Mogck, on the brief).

The six members of the Court who participated in this appeal

unanimously agree that the standard set forth in in McKelvey v. Pierce, 173

N.J. 26, 51 (2002), applies in this case. The Court thus readopts that standard,

with two refinements to accord with recent United States Supreme Court

precedent, as set forth in Section III.C. of Justice Patterson’s concurring

opinion. See infra. at ___ (slip op. at 26-32). The members of the Court are

equally divided as to whether discovery is required in this case. As a result,

the judgment of the Appellate Division, which affirmed the trial court’s

dismissal of the case on summary judgment without discovery, is affirmed.

3 JUSTICE PATTERSON, concurring.

The First Amendment to the United States Constitution provides that

“Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof.” In accordance with that provision, the

United States Supreme Court has recognized a “ministerial exception”

requiring courts to “stay out of employment disputes involving” employees

who hold “certain important positions with churches and other religious

institutions” and are therefore deemed to be “ministers” for purposes of the

exception. Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732,

745 (2020).

In this appeal, we apply the ministerial exception to defamation claims

asserted by plaintiff Shlomo Hyman, a Judaic Studies teacher who was

employed by defendant Rosenbaum Yeshiva of New Jersey, an Orthodox

Jewish school. In 2019, after investigating claims of misconduct and

consulting with legal counsel and authorities on Jewish law, Rosenbaum

Yeshiva terminated Hyman’s employment. In a letter, the Head of School

advised parents and faculty members that the Yeshiva took that action because

it deemed Hyman’s conduct “neither acceptable nor consistent with how a

rebbe in our Yeshiva should interact with students.”

4 Hyman and six members of his family filed this action against

Rosenbaum Yeshiva and three of its leaders. Hyman asserted individual

claims for age discrimination and defamation, and he and his family asserted

other causes of action. After discovery, which was limited to the question

whether Hyman qualified as a “minister” for purposes of the First Amendment

during his employment at the Yeshiva, he conceded that he was a minister and

abandoned his age discrimination claim. The trial court granted defendants’

motion for summary judgment and dismissed the complaint. It reasoned that if

the claims were allowed to proceed to trial, they would entangle the court in

matters of religious doctrine, thus violating the First Amendment.

Plaintiffs appealed, contending that the ministerial exception applied

only to Hyman’s age discrimination claim and that he could prove defamation

under legal principles that would not implicate the First Amendment. The

Appellate Division affirmed the trial court’s grant of summary judgment.

Hyman v. Rosenbaum Yeshiva of N. Jersey, 474 N.J. Super. 561, 556 (App.

Div. 2023). The appellate court held that the ministerial exception bars tort

claims if they are asserted by a party who constitutes a minister for purposes of

the exception and the claims are “related to the religious institution’s

employment decision.” Id. at 580. The Appellate Division concluded that the

defamation claims in this case met that test. Ibid.

5 We granted Hyman’s petition for certification. We adopt the standard

prescribed in McKelvey v. Pierce, 173 N.J. 26, 51 (2002), subject to

modifications conforming that standard to recent United States Supreme Court

jurisprudence, as the governing test for a court’s determination whether the

ministerial exception bars a tort claim asserted by a religious institution’s

former employee who is a minister. Under McKelvey, a court must analyze

each element of a challenged tort claim and determine whether the court’s

adjudication of that claim would require it to “choose between competing

religious visions, or cause interference with a church’s administrative

prerogatives, including its core right to select, and govern the duties of, its

ministers.” Ibid. (internal quotation marks omitted). The court’s inquiry is

case-specific and turns on the facts and causes of action at issue in a given

matter. Ibid.

Applying that standard to Hyman’s defamation claims, we conclude that

a court’s determination of each element of those claims would mandate an

inquiry into the religious tenets that govern Rosenbaum Yeshiva and would

interfere with the Yeshiva’s right to choose and supervise its ministers.

Accordingly, we concur with the Appellate Division that the trial court

properly granted defendants’ motion for summary judgment dismissing

plaintiffs’ claims.

6 I.

A.

We summarize the facts based on the allegations of the complaint and

the record presented to the trial court.

1.

Founded in 1979, Rosenbaum Yeshiva is an Orthodox Jewish school

serving elementary and middle school students. The Yeshiva represents that it

is “dedicated to continuing the chain of Jewish heritage by nurturing the joy

and pursuit of a Torah way of life, in an environment that promotes Torah

scholarship and academic excellence.”

The rabbi who serves as Rosenbaum Yeshiva’s Head of School,

defendant Daniel Price, stated in a certification that his role is “to ensure that

all significant decisions at the school are made in accordance with [the

Yeshiva’s] interpretation of Orthodox Jewish Law (halacha) and in

consultation with gedolei Torah (leading Orthodox Jewish rabbis).” Price

certified that “[d]etermining whether our religious rules are being followed is

central to my job, as religion is infused in everything we do.” The Yeshiva

submitted to the trial court evidence of school rules applying halacha that

govern members of the school community. Many were set forth in the staff

handbook for the 2018-2019 academic year, including a provision stating that

7 “[s]taff members may not touch students of the opposite gender once the

students have reached third grade.” The handbook was incorporated in each

teacher’s annual employment agreement.

Rosenbaum Yeshiva represented to the trial court that when it hires

Judaic Studies teachers, it looks for candidates who “have very strong

backgrounds in the Orthodox Jewish faith,” and “will consistently behave in

accordance with halacha and will be able to model that behavior to their

students.” The Yeshiva states that it expects its Judaic Studies teachers to

adhere to Orthodox Jewish observances and laws, including “restrictions on

physical contact between people of different genders who are not relatives or

spouses.” According to Price, any decision by the Yeshiva to terminate the

employment of a teacher, particularly a Judaic Studies teacher, is “guided by

our intention to comply with our understanding of halacha, and our expectation

that our teachers will do the same.”

Hyman, a rabbi with a Bachelor of Arts degree in finance and a Master

of Science degree in Jewish elementary school education, was hired by

Rosenbaum Yeshiva in 1988. During his more than thirty years at the

Yeshiva, he taught Judaic Studies to middle school girls and second grade

boys, led students in morning prayers, participated in a school committee to

formulate the Yeshiva’s mission statement, and privately tutored students in

8 Judaic Studies. For some of the years during which Hyman taught, the

Yeshiva granted him an annual parsonage allowance to cover a portion of his

living expenses.

Prior to the allegations and investigation that gave rise to this action, no

student or any other member of the school community had ever complained in

writing that Hyman engaged in improper conduct or that his performance as a

teacher was deficient. In the complaint and submissions to the trial court,

plaintiffs quoted from or attached letters from defendant Yehuda Rosenbaum,

the President of the Yeshiva, as well as letters from a former head of the

Yeshiva, other former colleagues, alumni of the school, parents, and friends.

In their letters, they praised Hyman’s dedication to Orthodox Jewish tenets, his

achievements as a teacher, his diligence, and his kindness to students and other

members of the school community.

2.

According to Price’s certification, in February 2019, he and other leaders

of Rosenbaum Yeshiva learned from several former students of “allegations of

inappropriate conduct” by Hyman, “including allegations of intentional

physical contact.” Rosenbaum Yeshiva placed Hyman on administrative leave.

Price stated that the Yeshiva’s Board of Directors retained the law firm

of Arnold & Porter Kaye Scholer LLP to investigate the allegations. In May

9 2019, the law firm presented its findings in a written report to Price and the

Board of Directors. According to Price, the investigators found that former

fifth and sixth grade female students had reported that Hyman “had

intentionally touched them and other girls in his classes, including by

massaging girls’ shoulders, touching them on clothed parts of their bodies that

he should not have touched, placing stickers on or near their chests, and

creating classroom games that caused him to touch them.”

Hyman and his family vehemently dispute those allegations. They assert

in their complaint that the accusations represented nothing more than “decades

old, unsubstantiated allegations of inappropriate interactions” between Hyman

and former students, and that the investigative report is a “secret report, based

on undisclosed allegations, some more than twenty (20) years old, from

anonymously-presented accusers.” They represent that the report of the

investigation, the names of the accusers, and the exact nature, timing, and

extent of the allegations have not been revealed to Hyman or his counsel.

According to Price, Rosenbaum Yeshiva consulted two respected rabbis

who are recognized halachic authorities, seeking guidance “on how to proceed

and appropriate next steps from a halachic perspective.” Price certified that he

was advised by the rabbis “on a number of issues raised by the allegations,

including whether the alleged conduct violated Orthodox Jewish law and

10 standards of conduct, and whether, as a matter of Orthodox Jewish law,”

termination of Hyman’s employment at the Yeshiva was the appropriate course

of action.

Price asserted that the Yeshiva deemed Hyman’s conduct to “not be

acceptable or consistent with how a rebbe in our Yeshiva should interact with

students,” and that based on information presented to the Board, it was

determined that Hyman’s conduct “violated Orthodox Jewish standards of

conduct” set forth in the staff handbook, including Hyman’s “religious

obligation to serve as a role model to his students as to what it means to live a

Torah way of life.”

On a date in May 2019 that the record does not reveal, Rosenbaum

Yeshiva terminated Hyman’s employment.

Price described steps that Rosenbaum Yeshiva took to determine

whether and to what extent to inform its community about “the allegations

against Hyman and the ultimate employment decision.” He stated that the

Yeshiva consulted again with the two rabbis recognized as halachic authorities

and decided to send a letter to the school community regarding the decision to

terminate Hyman’s employment.

On May 15, 2019, Price e-mailed the following letter to the Board,

parents of current students, and faculty members:

11 I am writing to let you know that Rabbi Shlomo Hyman, who has been on leave, will not be returning to RYNJ.

In late February, the leadership of the Yeshiva received information that warranted placing Rabbi Hyman on leave. At the same time, the Yeshiva also retained Arnold & Porter, a highly regarded national law firm to conduct an independent investigation. As a result of that process, it was determined that Rabbi Hyman’s conduct had been neither acceptable nor consistent with how a rebbe in our Yeshiva should interact with students. In consultation with counsel and halachic advisors, the leadership of the Yeshiva has terminated his employment and has determined that no further action is necessary at this time. We are confident that this course of action is the right one for the school and its students.

Tomorrow, the students in Rabbi Hyman’s classes will be notified that he will not be returning. I am sure that their current teachers will continue to guide them successfully through the remainder of the year. As always, our guidance staff is available to you and your children as needed.

I understand that this does not address every question you may have. However, given the sensitive nature of this situation, and the advice we have received from legal and halachic authorities, this is all the information that we can share at this time.

Thank you for your patience, support and understanding.

Plaintiffs allege that the letter was disseminated beyond its recipients in

the school community on social media, and that Hyman was unfairly branded

as a pedophile and child abuser on various websites, costing him employment

12 opportunities and imposing financial, social, and emotional harm on him and

his family.

B.

Plaintiffs filed this action on November 29, 2019. In the complaint,

Hyman individually asserted claims for breach of contract, breach of the

covenant of good faith and fair dealing, age discrimination pursuant to the Law

Against Discrimination, N.J.S.A. 10:5-1 to -49, defamation, and tortious

interference with future economic opportunities. All plaintiffs asserted claims

for injurious falsehood, negligent infliction of emotional distress, and

outrageous conduct causing emotional distress.

Hyman’s defamation claims included (1) a claim that defendants

“recklessly and negligently relied on old, vague, and false allegations to

maliciously make false and defamatory statements” concerning him; (2) a

claim that defendants “maliciously made false and defamatory per se

statements” concerning him “including, without limitation, statements that

falsely accuse or characterize [him] as having engaged in predatory conduct

toward his students”; and (3) a claim that defendants “made false and

defamatory statements” concerning him “that were phrased in a way to suggest

13 that [he] had engaged in inappropriate behavior toward his students, and which

further miscast him as a pedophile.”

Pursuant to Rule 4:6-2(e), defendants moved to dismiss the complaint

for failure to state a claim, arguing in part that plaintiffs’ claims were barred

by the ministerial exception and the ecclesiastical abstention doctrine. 1 The

trial court granted in part defendants’ motion to dismiss. It dismissed without

prejudice Hyman’s individual claim for tortious interference with future

economic opportunities, plaintiffs’ claims for negligent infliction of emotional

distress, and plaintiffs’ claims for outrageous conduct causing emotional

distress. The court declined to consider the ministerial exception or the

ecclesiastical abstention doctrine without a factual record, and it accordingly

denied defendants’ motion to dismiss the remaining claims. The Appellate

Division denied defendants’ motion for leave to appeal the trial court’s order,

1 “The ecclesiastical abstention doctrine recognizes that the Establishment Clause of the First Amendment precludes judicial review of claims that require resolution of ‘strictly and purely ecclesiastical’ questions.” McRaney v. N. Am. Mission Bd. of the S. Baptist Convention, Inc., 966 F.3d 346, 348 (5th Cir. 2020) (quoting Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976)); see also Burri Law PA v. Skurla, 35 F.4th 1207, 1212 (9th Cir. 2022) (“The ecclesiastical abstention doctrine provides that a civil court may not adjudicate ‘the correctness of an interpretation of canonical text or some decision relating to government of the religious polity.’” (quoting Paul v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 819 F.2d 875, 878 n.1 (9th Cir. 1987))). 14 and the parties conducted discovery limited to the question whether Hyman

was a “minister” for purposes of the First Amendment’s ministerial exception.

After the completion of that discovery, defendants moved for summary

judgment pursuant to Rule 4:46-2. They argued that Hyman was a minister

under the ministerial exception and that plaintiffs’ claims were therefore

barred on First Amendment grounds. At oral argument, Hyman conceded that

he “was a minister within the meaning of the ministerial exception.” He

consented to the dismissal of his LAD age discrimination claim but opposed

defendants’ motion for summary judgment on the remaining claims, arguing

that he was entitled to additional discovery. Defendants countered that all of

plaintiffs’ remaining claims derived from Rosenbaum Yeshiva’s decision to

terminate Hyman’s employment as a minister, and that the ministerial

exception barred those claims as it barred Hyman’s age discrimination claim.

The trial court granted defendants’ motion for summary judgment and

dismissed all of plaintiffs’ claims with prejudice based on the ministerial

exception and the ecclesiastical abstention doctrine. The court noted that

Rosenbaum Yeshiva officials justified the termination of Hyman’s

employment “as being consistent with religious law that controlled their school

as interpreted by them and perhaps other religious authorities.” The court

concluded that the Yeshiva’s explanation for Hyman’s termination -- in

15 combination with Hyman’s admission that he was a minister under the First

Amendment -- indicated that if the lawsuit were to continue, there would be

“excessive entanglement with ecclesiastical liturgy or tenets.”

Acting as the sole appellant, Hyman appealed the trial court’s grant of

summary judgment dismissing his defamation claims. He argued that the

ministerial exception applies only to employment discrimination claims; that

the trial court had conflated the ministerial exception and the ecclesiastical

abstention doctrine; and that the trial court should have ordered additional

discovery before granting summary judgment.

Relying solely on the ministerial exception, the Appellate Division

affirmed the trial court’s judgment. Hyman, 474 N.J. Super. at 572-83. The

appellate court invoked the United States Supreme Court’s decision in

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S.

171, 181 (2012), in which the Court declined to limit the exception to settings

in which a religious institution fires a minister for a religious reason or the

minister seeks reinstatement rather than damages. Id. at 575-76. The

Appellate Division also cited the Supreme Court’s observation in Our Lady of

Guadalupe that judicial intervention between a religious school and a teacher

entrusted “with the responsibility of educating and forming students in the

16 faith” would threaten a religious school’s independence and violate the First

Amendment. Id. at 576 (quoting 591 U.S. at 762).

The Appellate Division noted that “[i]n New Jersey, there is no

published case directly addressing whether the ministerial exception applies to

cases beyond employment discrimination cases.” Id. at 576. It found

persuasive, however, the reasoning in decisions from other jurisdictions

applying the ministerial exception to claims not premised on allegations of

employment discrimination. Id. at 576-80.

With no reference to McKelvey, the Appellate Division held that “the

ministerial exception applies to bar tort claims, provided (1) the injured party

is a minister formerly employed by a religious institution and (2) the claims

are related to the religious institution’s employment decision.” Id. at 580.

Noting that Hyman had conceded his status as a minister and that the

defamation claims related to Rosenbaum Yeshiva’s decision to terminate his

employment, the Appellate Division found that the ministerial exception

barred those claims. Id. at 580-83. The appellate court did not consider the

ecclesiastical abstention doctrine. Id. at 583.

3.

We granted Hyman’s petition for certification. 255 N.J. 419 (2023). We

also granted amicus curiae status to (1) the Attorney General; (2) the National

17 Council of Young Israel, the Jewish Coalition for Religious Liberty, Agudath

Israel of America, and Union of Orthodox Jewish Congregations of America,

jointly represented; (3) the New Jersey Catholic Conference; (4) the Diocese

of Eastern America of the Serbian Orthodox Church, Eastern American

Diocese of the Russian Orthodox Church Outside Russia, Romanian Orthodox

Metropolia of the Americas, and the Antiochian Orthodox Christian

Archdiocese of North America, jointly represented; and (5) Professor Michael

W. McConnell and Professor Douglas Laycock, jointly represented.

II.

Hyman argues that the ministerial exception, intended to ensure that a

religious institution is not compelled to retain a minister who does not share its

faith and mission, applies only to employment disputes and is irrelevant to

defamation claims. He views the Appellate Division’s two-pronged test for

the application of the ministerial exemption to tort claims to contravene this

Court’s decision in McKelvey, 173 N.J. at 51-53, and asserts that under

McKelvey, his defamation claims are beyond the reach of the exception.

Hyman contends that the trial court should not have granted summary

judgment without ordering discovery beyond the limited discovery that the

parties conducted.

18 B.

Defendants assert that in Hosanna-Tabor and Our Lady of Guadalupe,

the United States Supreme Court envisioned that the ministerial exception

applies to any claim arising from a religious institution’s termination of a

minister’s employment. They argue that the Appellate Division’s decision is

consistent with both the Supreme Court’s jurisprudence and this Court’s

decision in McKelvey. Defendants contend that if a court were to determine

the truth of Rosenbaum Yeshiva’s explanation for Hyman’s termination, it

would be compelled to evaluate the Yeshiva’s application of religious law,

thus violating the First Amendment.

C.

The Attorney General takes no position with respect to the specific

claims at issue in this appeal, but urges the Court to reaffirm the McKelvey

test, which amicus maintains is still good law after the United States Supreme

Court’s decisions in Hosanna-Tabor and Our Lady of Guadalupe.

D. The National Council of Young Israel, the Jewish Coalition for

Religious Liberty, Agudath Israel of America, and Union of Orthodox Jewish

Congregations of America view Rosenbaum Yeshiva’s communication with its

community to be a natural incident of the Yeshiva’s authority to decide matters

19 of governance, faith, and doctrine. Amici contend that a court’s evaluation of

that communication in a defamation action would give rise to excessive

entanglement between church and state.

E.

The New Jersey Catholic Conference asserts that a religious

organization’s freedom to explain to a congregation the circumstances of a

minister’s removal is integral to its community and that discovery on the

merits of this case would intrude into Rosenbaum Yeshiva’s constitutionally

protected determination that Hyman’s conduct did not conform to Jewish law.

F.

The Diocese of Eastern America of the Serbian Orthodox Church,

Eastern American Diocese of the Russian Orthodox Church Outside Russia,

Romanian Orthodox Metropolia of the Americas, and the Antiochian Orthodox

Christian Archdiocese of North America state that although the ministerial

exception should not affect tort claims arising from personal injury, battery,

false imprisonment, or sexual harassment, it bars the defamation claims in this

case, which arose from an employment decision that Rosenbaum Yeshiva

made after consulting with religious authorities.

20 G.

Professor Michael W. McConnell and Professor Douglas Laycock argue

that the ministerial exception is part of a broader doctrine that prohibits courts

from adjudicating any claim that would interfere with the protected decisions

of religious authorities, and they contend that it bars Hyman’s defamation

claims in this appeal.

III.

We review a grant of summary judgment under the same standard that

governs the trial court when it decides a motion for summary judgment.

Samolyk v. Berthe, 251 N.J. 73 (2022). Under Rule 4:46-2(c), a motion for

summary judgment must be granted “if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact challenged and that

the moving party is entitled to a judgment or order as a matter of law.”

The ministerial exception at the center of this appeal “developed to

protect churches from government action that interferes with a church’s

internal affairs management, such as the core right to choose and regulate

members of its own clergy.” McKelvey, 173 N.J. at 44. The exception derives

21 from both the Free Exercise and Establishment Clauses of the First

Amendment; as the United States Supreme Court has observed, “[s]tate

interference in that sphere would obviously violate the free exercise of

religion, and any attempt by government to dictate or even influence such

matters would constitute one of the central attributes of an establishment of

religion.” Our Lady of Guadalupe, 591 U.S. at 746. “[B]oth Religion Clauses

bar the government from interfering with the decision of a religious group to

fire one of its ministers.” Hosanna-Tabor, 565 U.S. at 181.

In Hosanna-Tabor, 565 U.S. at 188-96, and Our Lady of Guadalupe, 591

U.S. at 746-62, the Supreme Court applied the ministerial exception in

employment discrimination settings, focusing its inquiry on the fact-sensitive

question whether a religious organization’s former employee constituted a

“minister” under the First Amendment.

Hosanna-Tabor arose from an action brought by the federal Equal

Opportunity Employment Commission (EEOC) against a congregation of the

Lutheran Church, in which the EEOC claimed that the church had fired an

elementary school teacher in retaliation for her threat to assert a claim against

it under the Americans with Disabilities Act. 565 U.S. at 180. The church

contended that the First Amendment barred the action because the teacher

constituted a minister under the First Amendment and had been terminated

22 because her threat to sue the church violated its belief “that Christians should

resolve their disputes internally.” Ibid.

The United States District Court granted the congregation’s motion for

summary judgment, holding that the congregation had properly characterized

the teacher as a “minister” for purposes of the First Amendment and that the

court accordingly could “inquire no further into her claims of retaliation.” Id.

at 181. The Court of Appeals for the Sixth Circuit vacated the district court’s

judgment and remanded for consideration of the teacher’s retaliation claims.

Ibid.

The United States Supreme Court reversed the Sixth Circuit’s

determination. Id. at 196. Explaining the constitutional role of the ministerial

exception, the Court observed that

[t]he members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

23 [Id. at 188-89.] 2

The Supreme Court rejected the contention of the EEOC and the teacher

that the ministerial exception should not apply because the religious reason

cited by the church was pretextual; it held instead that the exception’s purpose

“is not to safeguard a church’s decision to fire a minister only when it is made

for a religious reason. The exception instead ensures that the authority to

select and control who will minister to the faithful -- a matter ‘strictly

ecclesiastical’ -- is the church’s alone.” Id. at 194-95 (quoting Kedroff v.

Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94,

119 (1952)).

The Supreme Court also dispensed with the notion that the ministerial

exception is limited to settings in which a minister seeks the remedy of

reinstatement to the ministerial position; the Supreme Court considered it

“immaterial” that the teacher had abandoned her claim for reinstatement, and

stated that an award of damages and attorneys’ fees “would operate as a

penalty on the [c]hurch for terminating an unwanted minister, and would be no

2 In Hosanna-Tabor, the Supreme Court resolved a conflict among federal appellate courts as to “whether the ministerial exception is a jurisdictional bar or a defense on the merits,” concluding that it “operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.” 565 U.S. at 195 n.4. 24 less prohibited by the First Amendment than an order overturning the

termination.” Id. at 194.

Based on the teacher’s title of “minister” and her religious

responsibilities in the congregation, the Supreme Court held that the

ministerial exception barred her employment discrimination claim. Id. at 192-

94. The Court expressed “no view on whether the exception bars other types

of suits, including actions by employees alleging breach of contract or tortious

conduct by their religious employers.” Id. at 196. It stated that “[t]here will

be time enough to address the applicability of the exception to other

circumstances if and when they arise.” Ibid.

Eight years after deciding Hosanna-Tabor, the Supreme Court again

analyzed the ministerial exception in Our Lady of Guadalupe, 591 U.S. at 746-

62. There, the Court applied the exception to bar employment discrimination

actions filed by two teachers terminated from their positions in a Catholic

elementary school. Ibid.

Although neither teacher in Our Lady of Guadalupe held the title of

“minister” or an analogous religious title or had received religious training

comparable to that given to the teacher in Hosanna-Tabor, the Court found that

“their core responsibilities as teachers of religion were essentially the same” as

the responsibilities assigned to the plaintiff in that case. Ibid. It observed that

25 “[t]he religious education and formation of students is the very reason for the

existence of most private religious schools, and therefore the selection and

supervision of the teachers upon whom the schools rely to do this work lie at

the core of their mission.” Id. at 738.

The Court held that “[w]hen a school with a religious mission entrusts a

teacher with the responsibility of educating and forming students in the faith,

judicial intervention into disputes between the school and the teacher threatens

the school’s independence in a way that the First Amendment does not allow.”

Id. at 762. The Court cautioned judges to “take care to avoid ‘resolving

underlying controversies over religious doctrine.’” Id. at 751 n.10 (quoting

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

Church, 393 U.S. 440, 449 (1969)).

The United States Supreme Court has not had occasion to apply the

ministerial exception to a tort claim such as the defamation claim at issue here,

and indeed cautioned that such an inquiry must await an appropriate case.

Hosanna-Tabor, 565 U.S. at 196. 3 A decade before Hosanna-Tabor, however,

3 We note that appellate courts in several of our sister jurisdictions have applied the ministerial exception to bar defamation claims and related claims filed by former ministers against religious institutions. See Sumner v. Simpson Univ., 238 Cal. Rptr. 3d 207, 221-23 (Ct. App. 2018) (dismissing

26 this Court prescribed a standard for courts to apply when they determine

whether a given claim is barred by the exception. McKelvey, 173 N.J. at 32-

33, 51-52.

In McKelvey, the plaintiff, a former seminarian who alleged that he was

sexually harassed by employees of the Diocese of Camden, asserted several

contract and tort claims. Id. at 36-37. The trial court dismissed the claims,

based in part on its conclusion that it could not attempt a purely secular

interpretation of the religious documents underlying the case without violating

the First Amendment. Id. at 37. The Appellate Division affirmed. Ibid.

This Court observed that in a challenge to an action against a religious

institution based on the First Amendment, “the threshold inquiry is whether the

defamation and other tort claims by a seminary’s former dean against her former employer that were based on statements made by the employer about the seminary’s prior termination of the dean and “the reasons and procedure for her final termination”); Ind. Area Found. of United Methodist Church, Inc. v. Snyder, 953 N.E.2d 1174, 1180 (Ind. Ct. App. 2011) (barring a former pastor’s defamation claim based on statements to mental health providers and parishioners because they related to the suitability of the plaintiff to fill a ministerial position); Gunn v. Mariners Church, Inc., 84 Cal. Rptr. 3d 1, 2-3 (Ct. App. 2008) (applying the ministerial exception to dismiss a former church worship director’s claims for defamation and other tort claims following his termination); Patton v. Jones, 212 S.W.3d 541, 552-55 (Tex. Ct. App. 2006) (dismissing a former pastor’s defamation claims against his former employer on the basis of the ministerial exception); Bourne v. Ctr. on Child., Inc., 838 A.2d 371, 373 (Md. Ct. Spec. App. 2003) (barring a former pastor’s claims for defamation and false light claims that were premised on a letter that his former employer, a church, had sent to church members to explain his termination). 27 underlying dispute is a secular one, capable of review by a civil court, or an

‘ecclesiastical one about “discipline, faith, internal organization, or

ecclesiastical rule, custom or law.”’” Id. at 45 (quoting Bell v. Presbyterian

Church (U.S.A.), 126 F.3d 328, 331 (4th Cir. 1997)). The Court held that

[b]efore barring a specific cause of action, a court first must analyze each element of every claim and determine whether adjudication would require the court to choose between “competing religious visions,” or cause interference with a church’s administrative prerogatives, including its core right to select, and govern the duties of, its ministers. In so doing, a court may “interpret provisions of religious documents involving property rights and other nondoctrinal matters as long as the analysis can be done in purely secular terms.”

[Id. at 51-52 (quoting Minker v. Balt. Annual Conf. of United Methodist Church, 894 F.2d 1354, 1358 (D.C. Cir. 1990)).]

In McKelvey, the Court found that the trial court and Appellate Division

had “failed to recognize that the protections afforded to churches by the

Religion Clauses of the First Amendment are highly nuanced and not

monolithic,” and had “failed to analyze each and every claim” in the plaintiff’s

“complaint to determine whether adjudication would require a determination

of competing religious visions or interfere with church administration or

choice.” Id. at 53-54. This Court therefore reversed the judgment of the

Appellate Division and remanded the matter to the trial court for the

28 development of a record as to the basis of the plaintiff’s claims, commenting

on the evidence that might be developed in such a remand and the legal

principles that the trial court would apply to such evidence on remand. Id. at

53-59.

The Court thus prescribed in McKelvey a procedure that a judge can

apply to determine whether the ministerial exception bars a tort claim against a

religious institution such as the defamation claims at issue here: a court

should individually assess each element of that claim and decide whether the

court’s determination of the claim would require it “to choose between

competing religious visions, or cause interference with a church’s

administrative prerogatives, including its core right to select, and govern the

duties of, its ministers.” Id. at 51 (quotation omitted). If adjudication raises

no such First Amendment concerns, the court may decide the claim; if not, it

must dismiss it. Ibid.

We note two aspects of the Court’s analysis in McKelvey that cannot be

reconciled with the United States Supreme Court jurisprudence that followed.

First, the Court stated in McKelvey that the Free Exercise Clause bars a

claim only when “[t]he conduct at issue [was] part of the beliefs and practices

of the defendant’s religion,” and that the church autonomy doctrine premised

on that Clause “is implicated only in those situations where ‘the alleged

29 misconduct is “rooted in religious belief.”’” McKelvey, 173 N.J. at 40, 42

(quoting Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 657

(10th Cir. 2002)). To the extent that this aspect of our holding in McKelvey

can be read in a way that conflicts with the Supreme Court’s recent

jurisprudence in employment discrimination cases, such a reading cannot

prevail. See Our Lady of Guadalupe, 591 U.S. at 760 (noting that the

ministerial exception applies when a church dismisses its minister not only

upon concluding that “the minister has gone over to some other faith” but also

when it determines “simply that the minister is failing to perform essential

functions in a satisfactory manner”); Hosanna-Tabor, 565 U.S. at 194-95

(holding that the ministerial exception exists not only to safeguard a church’s

decision to fire a minister “when it is made for a religious reason,” but to

ensure that “the authority to select and control who will minister to the faithful

-- a matter ‘strictly ecclesiastical’ -- is the church’s alone”). The ministerial

exception is clearly not limited to employment decisions made by religious

institutions on religious grounds. Ibid.

Second, in McKelvey, this Court invoked federal case law decided

before Hosanna-Tabor and Our Lady of Guadalupe in which the courts

concluded that an action for damages against a religious institution, in contrast

to an action for reinstatement to the ministerial position, would not interfere

30 with church autonomy. McKelvey, 173 N.J. at 45-49 (citing Bollard v. Cal.

Province of the Soc’y of Jesus, 196 F.3d 940, 944-50 (9th Cir. 1999); Minker,

894 F.2d at 1355-61). This Court suggested that if the plaintiff in McKelvey

were to prove certain of his claims, “those claims, and others lurking in the

margins of [the] complaint, could give rise to monetary damages, the

imposition of which would not excessively entangle church and state.” Id. at

58. The Court mandated, as a step in the analysis, that the court “examine the

remedies sought by the plaintiff and decide whether enforcement of a

judgment would require excessive procedural or substantive interference with

church operations.” Id. at 52.

In Hosanna-Tabor, however, the Supreme Court rejected the notion that

an action for monetary damages -- as opposed to an action seeking

reinstatement to the position from which the minister has been terminated --

does not raise First Amendment concerns, making clear that actions for both

categories of remedies may offend the First Amendment. 565 U.S. at 194.

Consequently, the distinction that the McKelvey Court drew among remedies

is no longer consonant with Supreme Court jurisprudence when it comes to

claims of employment discrimination in the selection of ministers generally.

See ibid; McKelvey, 173 N.J. at 52, 58. Accordingly, we do not adopt as part

of our holding today the language in McKelvey suggesting that a minister’s

31 claim for damages in the employment discrimination setting does not implicate

the First Amendment.

Subject to those caveats, we reaffirm McKelvey’s holding that when a

court is charged to determine whether a particular claim asserted by a minister

against a religious institution runs afoul of the First Amendment, the court

must first analyze each element of that claim and “determine whether

adjudication would require the court to choose between competing religious

visions, or cause interference with a church’s administrative prerogatives,

including its core right to select, and govern the duties of, its ministers.” 173

N.J. at 51 (quotation omitted). We view that standard to hew more closely to

the constitutional principles underlying the ministerial exception than the

standard set forth by the Appellate Division in this case, which would require

only a finding that the former employee was a minister and that the claim is

“related to the religious institution’s employment decision.” Hyman, 474 N.J.

Super. at 580.

IV.

We apply the McKelvey standard, as modified, to Hyman’s defamation

claims against Rosenbaum Yeshiva.

32 A.

We first review the elements of a cause of action for defamation under

New Jersey law. See McKelvey, 173 N.J. at 51-52.

“The law of defamation attempts to strike ‘the proper balance between

protecting reputation and protecting free speech.’” G.D. v. Kenny, 205 N.J.

275, 292 (2011) (quoting Ward v. Zelikovsky, 136 N.J. 516, 528 (1994)). The

elements of a defamation claim in New Jersey are (1) “the assertion of a false

and defamatory statement concerning another; (2) the unprivileged publication

of that statement to a third party; and (3) fault amounting at least to negligence

by the publisher.” Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585 (2009)

(quoting DeAngelis v. Hill, 180 N.J. 1, 13 (2004)); see also Kenny, 205 N.J. at

292-93. Truth is an absolute defense to a defamation claim. Kenny, 205 N.J.

at 293.

“A defamatory statement is one that is false and is injurious to the

reputation of another or exposes another person to hatred, contempt or

ridicule” or subjects another person to a loss of the good will and confidence

in which he or she is held by others.” Decker v. Princeton Packet, Inc., 116

N.J. 418, 425-26 (1989) (internal quotation marks omitted) (citing Mosler v.

Whelan, 28 N.J. 397, 400 (1958); Leers v. Green, 24 N.J. 239, 251 (1957)).

“To determine if a statement has a defamatory meaning, a court must consider

33 three factors: ‘(1) the content, (2) the verifiability, and (3) the context of the

challenged statement.’” Leang, 198 N.J. at 585 (quoting DeAngelis, 180 N.J.

at 14). “[A] court looks ‘to the fair and natural meaning [to be given to the

statement] by reasonable persons of ordinary intelligence.’” Kenny, 205 N.J.

at 293 (second alteration in original) (quoting Romaine v. Kallinger, 109 N.J.

282, 290 (1988)).

The second element of the defamation standard requires proof that the

defendant published a communication not subject to any privilege, a term that

denotes in defamation law “the fact that conduct which, under ordinary

circumstances, would subject the actor to liability, under particular

circumstances does not subject him to such liability.” Restatement (Second) of

Torts (Restatement) § 10(1) (Am. Law Inst. 1965). 4

A privilege may be based on

(a) the consent of the other affected by the actor’s conduct, or

(b) the fact that its exercise is necessary for the protection of some interest of the actor or of the public which is of such importance as to justify the harm caused or threatened by its exercise, or

(c) the fact that the actor is performing a function for the proper performance of which freedom of action is essential.

4 “Our courts have defined defamation consistently with . . . the Restatement (Second) of Torts . . . .” DeAngelis, 180 N.J. at 12. 34 [Id. § 10(2)].

“Publication” of a defamatory statement denotes “its communication

intentionally or by a negligent act to one other than the person defamed.” Id.

§ 577(1) (Am. Law Inst. 1977).

The third element of a cause of action for defamation is “fault amounting

at least to negligence.” Leang, 198 N.J. at 585 (quoting DeAngelis, 180 N.J. at

13); see also W.J.A. v. D.A., 210 N.J. 229, 242 (2012) (“New Jersey, like

many other states, maintains a fault standard of negligence for defamation

cases involving private-figure defendants.”) Negligence is defined as “conduct

that creates an unreasonable risk of harm.” Restatement § 580B cmt (g) (Am.

Law Inst. 1977). As it relates to the truth or falsity of a statement alleged to be

defamatory, “the question of negligence has sometimes been expressed in

terms of the defendant’s state of mind by asking whether he had reasonable

grounds for believing that the communication was true,” and in terms of the

defendant’s conduct by asking “whether the defendant acted reasonably in

checking on the truth or falsity or defamatory character of the communication

before publishing it.” Ibid.

35 B.

We next consider the inquiry that a court would be required to undertake

were it to determine Hyman’s defamation claims in the factual setting of this

appeal. See McKelvey, 173 N.J. at 51-52.

Hyman’s claims center on a core passage in Price’s letter to the

Yeshiva’s Board, parents, and faculty. After advising the Yeshiva community

that its leadership had “received information that warranted placing Rabbi

Hyman on leave,” and had retained the law firm to “conduct an independent

investigation,” Price wrote that, “[a]s a result of that process, it was

determined that Rabbi Hyman’s conduct had been neither acceptable nor

consistent with how a rebbe in our Yeshiva should interact with students.” In

his letter, Price added that the Yeshiva’s leadership had decided, “in

consultation with counsel and halachic authorities,” to terminate Hyman’s

employment. Price’s letter thus did not assert specific factual allegations

regarding Hyman’s conduct; it included only a vague reference to the students’

claims in its description of the decision-making process that led to Hyman’s

termination.

To determine the first element of Hyman’s defamation claims, a court

would be required to assess the veracity of Price’s message that Rosenbaum

Yeshiva had deemed Hyman’s conduct to be unacceptable and inconsistent

36 with the manner in which a rabbi in his position was expected to interact with

students. That statement is inextricably intertwined with the Jewish law that

governs the Yeshiva’s operations. A court simply could not determine the

letter’s truth or falsity for purposes of the defamation claim’s first element

without assessing and attempting to apply that religious law. Any such

decision would impermissibly interfere with the Yeshiva’s prerogative to

choose and manage its ministers. See Our Lady of Guadalupe, 591 U.S. at

746-47; Hosanna-Tabor, 565 U.S. at 181; McKelvey, 173 N.J. at 51.

Moreover, were a court to assess the truth or falsity of Price’s representation to

the community that the Yeshiva’s decision was premised in part on the advice

of halachic authorities, it could not avoid entanglement in communications

among religious leaders interpreting religious law. Ibid. The court would be

required to delve into Jewish law to determine what contact with children is

allowed and is not allowed.

Similar concerns would arise if a court were to decide whether Price’s

letter to the Rosenbaum Yeshiva school community is defamatory, as is also

required under the first element of the claim. See Leang, 198 N.J. at 585.

Hyman alleges that the letter was defamatory because it stated or suggested

that he had engaged in predatory conduct toward his students, and that it

miscast him as a pedophile. A court assessing that claim would be compelled

37 to scrutinize the letter’s comment about the manner in which “a rebbe in our

Yeshiva should interact with students” in order to determine the meaning of

that comment. That inquiry would necessarily entail an exploration of rules

imposed by the Yeshiva addressing physical contact between teachers and

students of the opposite gender. Were a court to assess the content,

verifiability, and context of the specific statements at issue in order to

determine whether they were defamatory, it would unavoidably venture into

the realm of religious law.

To decide the second prong of the defamation test -- the unprivileged

publication of the statement at issue -- a court would be required to determine

whether any privilege shields Price’s letter to the school community. See

Restatement § 10(1). Such a privilege can be premised, among other bases, on

the “fact that its exercise [was] necessary for the protection of some interest”

of the defendant “or of the public which is of such importance as to justify the

harm caused or threatened by its exercise,” id. § 10(2)(b), or on “the fact that

the actor is performing a function for the proper performance of which

freedom of action is essential,” id. § 10(2)(c).

Applied to these facts, the test for a privileged communication would

implicate religious law not only with regard to the contents of the letter, but

also with respect to the scope of Rosenbaum Yeshiva’s publication of the letter

38 to members of the school community. A court would decide whether

defendants acted to protect an interest of sufficient magnitude to justify any

harm that the letter caused or threatened, and whether writing the letter was a

reasonable measure for a school administrator charged to protect students and

educate them in accordance with Jewish law. Those determinations would

clearly involve the court in an exploration of Jewish law.

Finally, adjudication of the negligence element of Hyman’s defamation

claims would entangle the court in a decision rooted in religious law. To

decide whether defendants acted negligently in drafting and sending the letter,

a court would be required to determine whether defendants “had reasonable

grounds for believing” that the statements in the letter were true, and whether

they “acted reasonably in checking on the truth or falsity or defamatory

character of the communication before publishing it.” Restatement § 580B

cmt (g). To apply that test to the statement at the heart of Hyman’s claim --

that defendants, advised by counsel and authorities on Jewish law, had

determined his conduct unacceptable and inconsistent with his role as rabbi in

the Yeshiva -- the court would be compelled to decide whether defendants had

reasonable grounds for reaching that conclusion. Any such inquiry would

inevitably enmesh a court in an application of religious law.

39 Accordingly, applying McKelvey’s standard as amended, we conclude

that a civil court’s adjudication of each element of Hyman’s defamation claims

would unconstitutionally interfere with the Yeshiva’s authority to select and

govern its ministers, and that the ministerial exception therefore bars those

claims. See McKelvey, 173 N.J. at 51-52.

Contrary to the assertion of our dissenting colleagues, we do not hold

that every defamation claim asserted by a plaintiff who is a minister for First

Amendment purposes is barred by the ministerial exception. See post at ___

(slip op. at 4, 9-10, 15-16). Nor do we prospectively resolve a hypothetical

case -- starkly different from this appeal -- in which an employer, after

lawfully terminating a minister, issues a false statement labeling its former

employee a pedophile. See post at ___ (slip op. at 13-14). In accordance with

McKelvey, our holding is premised on the precise content of the statement that

Hyman alleges to be defamatory, the elements of the defamation claims at

issue here, and the specific inquiry that a court would undertake in order to

resolve those claims. See McKelvey, 173 N.J. at 51-52. In short, we decide

this case and this case alone.

Finally, we reply to our dissenting colleagues’ argument that this case

should not be decided until Hyman is afforded additional discovery. Post at

40 ___ (slip op. at 10-14). In many settings, the discovery at issue would be

warranted before a court determines whether the First Amendment bars a

minister’s claim. We do not view this case to present such a setting, however.

The dissent specifically maintains that Hyman is entitled to “discovery

to determine whether the alleged conduct occurred at all and to uncover the

underlying facts supporting the allegations,” including the investigative report

prepared by Arnold & Porter, as distinct from “discovery to determine whether

the adverse action taken as a result of the alleged conduct was justified under

Jewish law.” Post at ___ (slip op. at 12, 15-16).

Again, under McKelvey, the analysis focuses entirely on the specific

claims before the Court. 173 N.J. at 51-52. Here, the religious employer’s

allegedly defamatory statement was not a description of claimed misconduct

by Hyman; no such description appears in Price’s letter to the school

community. Instead, Hyman’s defamation claims are premised on Price’s

statement that “it was determined that Rabbi Hyman’s conduct had been

neither acceptable nor consistent with how a rebbe in our Yeshiva should

interact with students.” In short, the statement at the heart of this case was not

an assertion of fact about the former students’ allegations, but an explanation

of the Yeshiva’s decision to terminate Hyman -- a determination made in

consultation with halachic authorities as well as legal counsel. With or

41 without discovery regarding the details of the allegations, the court’s inquiry

as to the merits would be the same: the court would be required to assess the

reasons for a religious institution’s decision to terminate the employment of a

minister, an inquiry that would violate the First Amendment. See Our Lady of

Guadalupe, 591 U.S. at 746-52; Hosanna-Tabor, 565 U.S. at 188-96.

It is therefore clear that additional discovery would not alter the

constitutional analysis in this matter. We decline to remand for such

discovery.

JUSTICE PATTERSON filed a concurrence, in which JUSTICES SOLOMON and FASCIALE join. JUSTICE PIERRE-LOUIS filed a dissent, in which CHIEF JUSTICE RABNER and JUSTICE NORIEGA join. JUSTICE WAINER APTER did not participate.

42 Shlomo Hyman,

Freidi Hyman, Bracha Hyman, Yaakov Hyman, Aharon Hyman, Temima Hyman, and Eliora Hyman (a minor, by her parent and guardian Shlomo Hyman),

Rosenbaum Yeshiva of North Jersey, Adam Mermelstein, Yehuda Rosenbaum, and Daniel Price,

JUSTICE PIERRE-LOUIS, dissenting.

The United States Supreme Court first explicitly recognized the

ministerial exception in Hosanna-Tabor Evangelical Lutheran Church &

School v. EEOC, holding that the exception “ensures that the authority to

select and control who will minister to the [religious institution’s] faithful -- ‘a

matter strictly ecclesiastical’ -- is the church’s alone.” 565 U.S. 171, 194-95

1 (2012) (quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox

Church in N. Am., 344 U.S. 94, 119 (1952)). The Court emphasized that the

matter before it was an employment discrimination case, and it “express[ed] no

view on whether the exception bars other types of suits, including actions by

employees alleging breach of contract or tortious conduct by their religious

employers.” Id. at 196.

Eight years after Hosanna-Tabor, the Supreme Court described that

decision as establishing a rule that “courts are bound to stay out of

employment disputes involving those holding certain important positions with

. . . religious institutions,” and noted that it had “unanimously recognized that

the Religion Clauses foreclose certain employment discrimination claims

brought against religious organizations.” Our Lady of Guadalupe Sch. v.

Morrissey-Berru, 591 U.S. 732, 746-47 (2020) (emphases added). The Court

explained that the ministerial exception’s “constitutional foundation” was

protecting “church autonomy,” i.e., “independence in matters of faith and

doctrine and in closely linked matters of internal government.” Id. at 747.

There is no dispute that Supreme Court precedent pursuant to the First

Amendment’s Religion Clauses forecloses certain employment discrimination

suits brought by ministers against religious institutions. This, however, is not

an employment discrimination case, and the ministerial exception “does not

2 mean that religious institutions enjoy a general immunity from secular laws.”

Id. at 746. The constitutional principle underpinning the ministerial exception

-- protecting the autonomy of religious institutions to select and control who

will minister to their faithful -- a principle inherent in decisions to hire, fire,

and manage employees, is in certain circumstances entirely inapplicable to

some secular laws, including the law of defamation. Ibid.

Over two decades ago -- before Hosanna-Tabor and Our Lady of

Guadaulupe -- this Court held that in tort cases involving religious institutions,

New Jersey courts “first must analyze each element of every claim and

determine whether adjudication would require the court to choose between

competing religious visions, or cause interference with a church’s

administrative prerogatives, including its core right to select, and govern the

duties of, its ministers” before barring a claim. McKelvey v. Pierce, 173 N.J.

26, 51 (2002) (internal quotation marks omitted). Because the Supreme Court

specifically declined to speak on the ministerial exception’s applicability

outside the employment discrimination context, Hosanna-Tabor and Our Lady

of Guadalupe do not govern the outcome here and do not require that we alter

our jurisprudence regarding the manner in which we assess non-employment

discrimination claims brought by employees against religious entities. Instead,

we should determine whether adjudicating this defamation claim requires a

3 court to “choose between competing religious visions” or interfere with a

religious institution’s selection and governance of ministers. Ibid.

In order for a court to make that determination in this case -- or in any

defamation case -- plaintiffs must be allowed discovery. Only after discovery

can a court comply with McKelvey’s mandated inquiry. But under the

concurring opinion’s analysis, a religious entity can seemingly fire an

employee based solely on a personal vendetta, publish a knowingly false and

defamatory statement about the plaintiff, and shield itself from liability -- and

even discovery -- by invoking the ministerial exception. Such a holding slams

the courthouse door shut on potentially wronged plaintiffs before they can

even obtain discovery that would allow a court to determine whether

adjudicating their claims actually interferes with religious autonomy.

McKelvey’s analysis is only possible by allowing plaintiffs discovery, and we

should not foreclose plaintiff from pursuing his claim without it.

Unfortunately, the concurrence endorses a framework that edges close to

granting religious institutions general immunity from tort claims brought by

ministerial employees if they use the correct terminology to invoke the

exception. I cannot countenance such a result. Therefore, I respectfully

dissent.

4 I.

Although Hosanna-Tabor was the first time the United States Supreme

Court recognized the “ministerial exception” by that name, the Court had for

decades prescribed the principle that the Free Exercise Clause prohibits secular

courts from adjudicating disputes involving internal church management or

competing religious doctrinal views. See Hosanna-Tabor, 565 U.S. at 185-87

(discussing cases). For example, in Watson v. Jones, the Court declined to

weigh a dispute between competing factions of a church in Louisville over

who rightfully controlled church property, instead deferring to the final

decision of the religious institution’s highest authority. 80 U.S. 679, 727

(1872). In so holding, the Court explained that courts must defer to a religious

institution’s internal resolution of “questions of discipline, or of faith, or

ecclesiastical rule, custom, or law.” Ibid.

Similarly, the Court in Kedroff refused to disturb the Supreme Church

Authority of the Russian Orthodox Church’s decision that it rightfully

controlled real property in New York against a challenge from the church’s

North American faction. 344 U.S. at 96-97. The Court explained that courts

have no business in “matters of church government as well as those of faith

and doctrine.” Id. at 116. The Court later extended those principles to the

5 employment context in Serbian Eastern Orthodox Diocese for United States &

Canada v. Milivojevich by declining to consider a bishop’s challenge to a

religious institution’s decision to terminate his employment because the bishop

defied the institution’s authority. 426 U.S. 696, 720 (1976).

In Hosanna-Tabor, the Court held that employment discrimination

claims brought by ministers against religious institutions are nonjusticiable

because they inherently require courts to intervene in matters of internal

church governance. 565 U.S. at 188. There, the Equal Employment

Opportunity Commission sued a congregation of the Lutheran Church,

claiming that the church fired an elementary school teacher in retaliation for

threatening to file a lawsuit alleging disability discrimination. Id. at 177-80.

The Court ultimately concluded that the ministerial exception barred the claim

because such a claim could “interfere[] with the internal governance of the

church, depriving the church of control over the selection of those who will

personify its beliefs.” Id. at 188 (emphasis added). Furthermore, the Court

elaborated that the ministerial exception’s purpose “is not to safeguard a

church’s decision to fire a minister only when it is made for a religious

reason,” but rather to ensure that a church retains control over its internal

governance and decisions regarding who administers its faith. Id. at 194-95.

6 The Court expanded upon Hosanna-Tabor in Our Lady of Guadalupe, a

case in which two teachers who were fired by Roman Catholic primary schools

sued the schools alleging employment discrimination. 591 U.S. at 738. After

noting that the ministerial exception was intended to keep courts out of

“employment disputes,” id. at 746, the Court concluded that the teachers were

in fact “ministers” who fell under the exception, id. at 756-57. 1

The matter before us -- like defamation disputes generally -- does not

inherently implicate the constitutional principles that informed the decisions in

Hosanna-Tabor and Our Lady of Guadalupe. This is not an employment

discrimination case. The issue is not whether defendants lawfully terminated

plaintiff. No one challenges the propriety of defendants’ adverse employment

action. More broadly, no one asks a secular court to interfere with a religious

institution’s internal management decision or with whom the religious entity

chooses to minister to its faithful. What plaintiff contests is what defendants

1 Notably, Hosanna-Tabor and Our Lady of Guadalupe primarily called upon the Court to determine whether the plaintiffs were in fact “ministers” such that the defendant institution was entitled to the exception. See 565 U.S. at 181, 196 (explaining the Sixth Circuit’s holding that the elementary school teacher was not a minister before later reversing that judgment); 591 U.S. at 756 (holding that the teacher was a minister because she performed “vital religious duties”). There is no dispute that plaintiff here is a minister, which was the primary issue in Hosanna-Tabor and Our Lady of Guadalupe. 7 said about his termination -- which is far from contesting the termination itself.

Notwithstanding the fact that this case is related to plaintiff’s employment

given the parties’ prior relationship, it is not an employment discrimination

case.

Defendants have conflated the issues in this case, making it appear as

though this defamation case is the same as an employment discrimination case.

But assessing the legality of what a religious institution says about an adverse

employment action is not the same thing as determining the lawfulness of the

adverse action itself. The latter necessarily requires a court to interfere with a

religious institution’s internal management, its doctrinal specificities, and its

decisions regarding who preaches the faith, but the former does not. See, e.g.,

Hayden v. Schulte, 701 So. 2d 1354, 1356 (La. Ct. App. 1997) (holding that a

priest’s allegations that church officials defamed him by accusing him of child

molestation could be litigated because child molestation “cannot be considered

just an internal matter of Church discipline or administration”).

Indeed, the foundation of the Court’s holdings in Hosanna-Tabor and

Our Lady of Guadalupe is that a religious entity “must be free to choose who

will guide it on its way” and carry out its mission. Hosanna-Tabor, 565 U.S. at

196; see also id. at 196-97 (Thomas, J., concurring) (“[T]he Religion Clauses

guarantee religious organizations autonomy in matters of internal governance,

8 including the selection of those who will minister the faith.”); Our Lady of

Guadalupe, 591 U.S. at 767 (Sotomayor, J., dissenting) (“[T]he First

Amendment categorically bars certain antidiscrimination suits by religious

leaders against their religious employers.”).

Nothing about a defamation suit involves telling a religious institution

who it can or cannot fire and for what reasons. A defamation claim has three

elements: “(1) the assertion of a false and defamatory statement concerning

another; (2) the unprivileged publication of that statement to a third party; and

(3) fault amounting at least to negligence by the publisher.” Leang v. Jersey

City Bd. of Educ., 198 N.J. 557, 585 (2009) (quoting DeAngelis v. Hill, 180

N.J. 1, 13 (2004)). The matter before us requires a factfinder to apply those

three elements to the facts presented. Under those facts, defendants’ decision

to terminate plaintiff is not at issue; their statements afterwards are. Those

factual determinations are incomparable to intruding on a religious

institution’s internal management by interfering with faith-based employment

or property management decisions. As such, this case does not inherently

require a secular court to interfere “in matters of faith and doctrine and in

closely linked matters of internal government.” Our Lady of Guadalupe, 591

U.S. at 747. Rather, it involves the veracity of defendants’ published

statement and the statement’s potential for reputational damage to plaintiff.

9 Importing wholesale the principles of the ministerial exception as

defined by the Supreme Court in employment discrimination cases, a context

inherently intertwined with the selection of a religious entity’s ministers, into

the tort law context simply on the basis of the employment relationship and the

employer’s status as a religious entity comes dangerously close to granting

religious institutions blanket immunity on tort claims made by ministers,

despite the fact that tort claims rely on neutral, generally applicable laws and

are often wholly unrelated to the religious institutions’ right to govern who

guides their faithful. See, e.g., Petruska v. Gannon Univ., 462 F.3d 294, 299,

310 (3d Cir. 2006) (explaining that the ministerial exception did not bar a

minister’s fraudulent misrepresentation claim against a religious institution

because the claim depended on the truth or falsity of what the institution had

promised the plaintiff and “the state’s prohibition against fraud [did] not

infringe upon [the institution’s] freedom to select its ministers”).

I would hold that the ministerial exception does not automatically

foreclose plaintiff’s defamation claim, and I would allow him to proceed with

limited discovery to determine if his claim is justiciable under McKelvey.

Plaintiff here seeks one thing -- discovery, the tool used in every matter

in our judicial system, civil or criminal, to ensure that both sides of a dispute

10 have access to the relevant information and evidence. Discovery sheds light

on what happened, and the ability to access information through discovery is

essential for a defamation plaintiff. In this case, obtaining limited information

through discovery would assist a trial court in determining under McKelvey

“whether adjudication would require the court to choose between competing

religious visions, or cause interference with a church’s administrative

prerogatives, including its core right to select, and govern the duties of, its

ministers.” 173 N.J. at 51 (internal quotation marks omitted).

Defendants contend that their sole allegedly defamatory statement -- that

plaintiff’s conduct was “neither acceptable nor consistent with how a rebbe in

our Yeshiva should interact with students” -- explains the reasons they

terminated plaintiff.

Defendants assert that, because truth is an absolute defense to

defamation, adjudicating the merits of plaintiff’s claim would necessarily

require a factfinder to inquire into the validity of the reasons they proffered for

terminating plaintiff, which is an inherently nonjusticiable religious inquiry.

Not necessarily so. Once again, defendants conflate the issues. There is a

difference between allowing discovery to determine whether the alleged

conduct occurred at all and to uncover the underlying facts supporting the

allegations, and discovery to determine whether the adverse action taken as a

11 result of the alleged conduct was justified under Jewish law. Plaintiffs simply

seek to understand in the first instance whether the alleged conduct occurred

and the facts surrounding the allegations against him. As we said in

McKelvey, the church autonomy doctrine “clearly cannot be applied blindly to

all disputes involving church conduct or decisions.” 173 N.J. at 44.

In this case, as defendants explained in their letter to the public, they

retained a law firm to conduct an independent investigation into Rabbi

Hyman’s conduct. There is no suggestion that the firm interviewed rabbinic

authorities or asked them about their analysis of the Rabbi’s conduct under

Jewish law. At oral argument, defense counsel conceded that the law firm’s

investigation was as to the underlying facts and did not involve Jewish law.

The report should therefore be disclosed to plaintiff. Its factual contents

would enable him to evaluate his defamation claim. And its release would not

interfere with the Yeshiva’s right to select its religious teachers or otherwise

offend the principles of the ministerial exception. If plaintiff later sought

additional information based on the contents of the report, the trial court could

require him to demonstrate that the requested discovery would not run afoul of

the ministerial exception.

To be clear, I am not of the belief that every tort matter against a

religious entity should proceed. In this matter, after discovery, it may well be

12 that McKelvey bars plaintiff’s claim because discovery would illustrate that

“adjudication [of the defamation claim] would require the court to choose

between competing religious visions.” 173 N.J. at 51. Or if it becomes clear

after discovery that there is no evidence supporting the allegation that the

statement is false, defendants would be entitled to summary judgment.

Plaintiff admitted as much at oral argument by conceding that discovery might

disprove his cause of action. But a court cannot make that determination until

the relevant facts are revealed to it through discovery. See Minker v. Balt.

Ann. Conf. of United Methodist Church, 894 F.2d 1354, 1360 (D.C. Cir. 1990)

(noting, in discussing the viability of a claim, that “[t]he speculative nature of

our discussion here demonstrates why it is premature to foreclose appellant’s

contract claim. Once evidence is offered, [the court] will be in a position to

control the case so as to protect against any impermissible entanglements.”).

I would allow discovery in this matter under the careful control of the

trial court. Denying complaining parties the ability to prosecute their cases by

obtaining the very discovery that allows courts to determine the viability of

their claims -- under the cloak of a legal principle that the Supreme Court has

only ever applied to employment discrimination cases -- denies litigants with

potentially viable claims that do not implicate First Amendment concerns the

ability to fully prosecute their cases.

13 A hypothetical discussed during oral argument underscores the

importance of discovery here and the dangers of blindly applying the

ministerial exception by simply taking a religious entity at its word regarding

the proffered reason provided in a statement for terminating an employee. In

that hypothetical, a religious institution terminates an employee for a

legitimate reason but, because of its dislike of the employee, releases a false

statement labeling the employee a pedophile and indicating that was the reason

for the termination. Defense counsel argued that even in such a clear case of

defamation, no discovery should be allowed for fear of intruding upon the

religious institution’s autonomy in employment decisions.

In that situation, the fact that the religious institution lied about the

employee would never see the light of day under the concurring opinion’s

analysis because the ministerial exception would deny even the slightest

inquiry into the viability of the defamation claim. But if discovery were

allowed, depending on the information and communications uncovered, it

could become clear that adjudicating the defamation claim would not require a

court to analyze whether the religious institution correctly administered its

doctrine to effectuate the firing.

The concurring opinion sanctions this troubling result. In my view,

allowing religious institutions to use the ministerial exception as both a sword

14 and a shield is not what the courts that created the exception envisioned in

ensuring that secular courts did not intrude upon the First Amendment’s

protections for faith-based internal management decisions. See Our Lady of

Guadalupe, 591 U.S. at 768 (Sotomayor, J., dissenting) (explaining that the

appellate courts that adopted the ministerial exception prior to Hosanna-Tabor

“had long understood that the exception’s stark departure from

antidiscrimination law is narrow” and “treaded ‘case-by-case’” because of the

“exception’s ‘potential for abuse.’” (quoting Scharon v. Saint Luke’s

Episcopal Presbyterian Hosps., 929 F.2d 360, 363 n.3 (8th Cir. 1991))).

Unfortunately, in not allowing even limited discovery in this matter, the

concurrence transforms the ministerial exception into a tool that religious

entities may use to insulate themselves not only from being subjected to suit,

but even from providing basic discovery to determine whether a suit is viable.

Religious entities now have a blueprint for what to say in any public statement

in order to not only bar a defamation claim by invoking the ministerial

exception, but also to bar discovery.

The ministerial exception, when it applies, is “extraordinarily potent,”

giving employers “free rein to discriminate” for any reason in the employment

context, “whether religious or nonreligious, benign or bigoted, without legal

recourse.” Id. at 766-67. Today, the concurring opinion regrettably extends

15 that powerful “exception” to virtually all tort claims against a religious

employer if they are brought by a current or former employee, despite the fact

that most tort claims do not and will not implicate the First Amendment

concerns underpinning the exception. Because I disagree with such a result, I

respectfully dissent. 2

2 I do, however, join in section III.C. of the concurring opinion regarding the McKelvey standard and agree that this Court should not adopt the Appellate Division’s standard that “would require only a finding that the former employee was a minister and that the claim is ‘related to a religious institution’s employment decision.’” Ante at ___ (slip op. at 32). 16