Religion and the Law

Religious Freedom Doesn't Bar Discovery in Libel Case By High-Level N.H. Catholic Priest Against Dissenting Group

“The Very Reverend Georges F. de Laire, J.C.L., who serves as the Judicial Vicar and the Vicar for Canonical Affairs for the Diocese of Manchester, brings a defamation claim against Gary Michael Voris, Anita Carey, and St. Michael’s Media, Inc. a/k/a Church Militant.”

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From De Laire v. Voris, decided today by Joseph A. DiClerico, Jr. (D.N.H.):

[D]e Laire alleges that the defendants published defamatory articles and a video about him because of a doctrinal dispute between a religious group in New Hampshire and officials of the Catholic Church. The defendants served the Diocese of Manchester, which is not a party in the case, with a subpoena ….

As the Judicial Vicar and the Vicar for Canonical Affairs for the Diocese of Manchester, de Laire serves with the Bishop of the Diocese of Manchester in a judicial body, the Tribunal, for the Diocese of Manchester. As part of his official duties, de Laire has had interactions since 2016 with a religious group in New Hampshire known as the Slaves of the Immaculate Heart of Mary, incorporated as the Saint Benedict Center, Inc. He eventually placed sanctions on the group because of a doctrinal dispute with the Catholic Church….

The defamatory allegations, as described (and denied) in the Complaint, were generally that:

Father de Laire is "said by current work colleagues to be emotionally unstable in his role as chief canonical judge of the diocese and counselor to his bishop." …

"[D]e Laire is said to be desperate to repair his image and save his chances at being promoted as bishop or an official of the Roman Curia." …

Father de Laire … conduct[s] his duties "with incompetence in canonical matters also apparently well-known and corroborated in the Roman Curia." …

"[D]e Laire is nicknamed in those halls [of the Roman Curia] un incasinaro, 'a troublemaker,' owing to his notorious botching of canonical cases involving clergy and other matters." …

"Church Militant has learned he is currently outsourcing work product that he as a canon lawyer is being paid well by the diocese to complete himself." …

Father de Laire was "said by priests and laity who currently work with him in the diocese to be a vindictive and manipulative clericalist who pines to be named a bishop or an official of the Congregation for the Doctrine of the Faith." …

"[A]t least three complaints against de Laire have been filed with the Holy See … [t]ogether they allege corruption, abuse of office, grave violations of the law, and incompetence as a canonist." …

"[A]dditional questions are raised … by his acquisitions … Church Militant has learned that de Laire now frequently resides at an estate located near Manchester that he … purchased, currently valued at $1.5 million." [The court allowed the suit to go forward as to this statement, concluding that "Taken in the context of Voris's article, the statements about de Laire's home could be interpreted to raise questions about how de Laire purchased the home, and those statements reasonably could be linked to the accusation of corruption." -EV] …

[D]aily mass was no longer permitted for the Saint Benedict Center members[.] [The court dismissed the suit as to this statement, concluding it was true -EV] …

[I]t was Father de Laire, individually, who had been responsible for "attacks" against the Saint Benedict Center shortly after his promotion to Judicial Vicar "about two years ago." …

At this point, the dispute is with regard to discovery, and here is what the court held:

[As part of discovery, t]he defendants asked for "[a]ll documents concerning the sanctions imposed against The St. Benedict Center, including without limitation all communications with the SBC or its agents, all internal communications within the diocese and all communications with any other organization or body." … The Diocese asserts that the information the defendants are seeking is protected from disclosure by the ecclesiastical exemption ….

"[I]n considering the circumstances of any given case, courts must take care to avoid 'resolving underlying controversies over religious doctrine.'" Further, civil courts are barred by the First Amendment's Establishment Clause from excessive entanglement in employment disputes that involve "the protected ministerial relationship."

In this case, however, de Laire's claim is defamation. Neither the subpoena request nor the defamation claim requires the court to decide ecclesiastical matters or employment disputes. Instead, the subpoena and the motion to compel raise a discovery issue. See Dolquist v. Heartland Presbytery (D. Kan. 2004) (holding that First Amendment religious rights protected by church autonomy doctrine and ministerial exception did not bar questions about church's investigation into complaints of sexual misconduct). The Diocese has not cited a case that persuasively recognizes an ecclesiastical exemption from the subpoena requests at issue here.

In Scott v. Hammock (D. Utah 1990), the plaintiff sued her father, alleging abuse during her childhood. The plaintiff served a subpoena on the office of the Presiding Bishopric of the Church of Jesus Christ of Latter-Day Saints for the production of documents about the excommunication of the defendant from the church and in particular sought communications between the defendant and persons present during a Bishop's Court. The church moved to quash the subpoena on the grounds of privilege under Utah law and the Free Exercise Clause of the First Amendment.

The court considered the Utah statutory privilege that protected a confession made to a clergyman or priest and construed the privilege liberally to avoid an unconstitutional application. In doing so, the court concluded that confidential communications within the church, between a member and a church official and from one ecclesiastical officer to another for the purpose of church discipline, are protected. For that reason, the motion to quash was granted as to those confidential communications. While the Diocese cites the Scott case, it makes no effort to analogize the holding there to the circumstances presented here….

In Whole Woman's Health v. Smith (5th Cir. 2018), also cited by the Diocese, the court criticized the lower court for failing to properly consider a privilege issue under the Religious Freedom Restoration Act ("RFRA") and the First Amendment in denying a motion to quash a subpoena. The court acknowledged the First Amendment issues implicated by compelling discovery from a non-party religious organization and in particular compelling disclosure of internal communications. Despite that concern, the court noted the lack of guiding cases, applied the doctrine of constitutional avoidance, and did not decide whether a privilege existed under RFRA or the First Amendment to bar the documents sought in that case. The court concluded, under Rule 45(d), that the subpoena should have been quashed to avoid an undue burden.

The Fifth Circuit in Women's Health did not hold that a religious institution is protected from disclosure of internal communications by an ecclesiastical privilege or the First Amendment. There do not appear to be cases where courts have applied Women's Health as authority for an ecclesiastical privilege against discovery based on the First Amendment.

The Diocese has made no developed argument that the documents the defendants seek in Request 5 would interfere in its free exercise of religion under the First Amendment or would violate the establishment clause of the First Amendment. Although the underlying conflict between the Saint Benedict Center and the Diocese arose out of a doctrinal dispute, the merits of the dispute are not before the court, will not be considered, and will not be decided here. The Diocese has not carried its burden of showing that an ecclesiastical privilege or the First Amendment bars production of the information sought ….

[T]he defendants [also] asked the Diocese to produce "[a] list of all canonical proceedings or matters in which de  Laire was involved, in any capacity, for the period January 1, 2011 through today." … The defendants represent … that the request was subsequently limited to "matters that happened after January 1, 2020 and to matters involving clergy and marriages." In its objection to the motion to compel, the Diocese represents that the request was modified to include a date restriction "for the period of 6 years before the first article was printed, i.e., January 2020" but does not acknowledge a subject matter limitation.

The defendants contend that the information they seek is relevant to de Laire's competence in his role as a canonist. Although not specifically cited by the defendants, they apparently are addressing several statements, attributed to de Laire's colleagues, that he was incompetent and botched cases. In the motion, they discuss certain complaints, which they say were identified on July 8, 2021, and involve dissolution of a marriage.

The Diocese again invokes an ecclesiastical exemption or ecclesiastical abstention as a privilege that bars production of the requested documents. As is discussed above, the Diocese has not shown that such a privilege exists for purposes of discovery and have not shown that the First Amendment protects against production of the documents requested here….