In considering whether defamation claims raised by a former "minister" are barred against a  Orthodox Jewish institution, the New Jersey Supreme Court was equally divided Wednesday over whether discovery should go forward in the case.

The state high court granted certification in Hyman v. Rosenbaum Yeshiva of North Jersey on whether the ministerial exception bars any tort claims raised by a former ministerial employee against a religious institution if those claims are related to the religious institution's employment decision. Justice Rachel Wainer Apter did not participate, leaving six members who unanimously agreed that the standard outlined in McKelvey v. Pierce applies in this case. However, the justices were evenly divided 3-3 as to whether the plaintiff was entitled to discovery.

The state high court's division ultimately affirmed the Appellate Division's dismissal of the case on summary judgment, the opinion said.

Schlomo Hyman was a rebbe and a Judaic studies teacher at Rosenbaum Yeshiva of North Jersey since 1988. In February 2019, the yeshiva, an Orthodox Jewish school, learned of allegations of inappropriate interactions between Hyman and former female students. Hyman was placed on administrative leave, and the yeshiva's board of directors hired Arnold & Porter Kaye Scholer to investigate the allegations, according to the opinion.

After receiving the investigation's findings and consulting halacha, or the law according to Orthodox Jewish practice, the yeshiva terminated Hyman.

After Hyman was fired, Daniel Price, the head of the school, emailed a letter to the board, parents of current students, and faculty members that read, 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 that "the leadership of the Yeshiva terminated his employment," the opinion said.

Claiming that the letter was posted on social media, and, in turn, hurting his chances for employment opportunities and "imposing financial, social, and emotional harm on him and his family," Hyman filed a suit in November 2019, against the River Edge, New Jersey, school in Bergen County Superior Court. Hyman claimed that the yeshiva conducted a sham investigation into baseless allegations, that he was wrongfully terminated, and that the letter was maliciously emailed to the community, which falsely branded him as a pedophile, according to the opinion.

The Bergen County Superior Court granted the defendant's motion for summary judgment based on the ministerial and ecclesiastic abstention doctrines, without discovery.

Before the Appellate Division, Hyman argued that the trial court erred in dismissing his defamation claim because the ministerial exception applies only to employment discrimination claims and that further discovery was needed to determine whether the motivation behind the letter was ecclesiastic in nature, according to the opinion. The Appellate Division relied on the ministerial exception and affirmed the trial court ruling.

At oral argument before the state Supreme Court, counsel for Hyman, Richard I. Scharlat, a partner with Fox Rothschild, argued that the court's 2002 decision in McKelvey sets the standard for the ministerial exception. The six participating justices agreed with that contention and readopted the standard with two refinements to align with recent U.S. Supreme Court precedent in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012) and Our Lady of Guadalupe Sch. v. Morrissey-Berru (2020).

Counsel for the Rosenbaum Yeshiva defendants, Akiva Shapiro, a litigation partner at Gibson, Dunn & Crutcher, cited the Hosanna-Tabor opinion for its application of the ministerial exception to employment discrimination claims. He argued that although the high court has not yet applied the ministerial exception outside the context of employment discrimination claims, the constitutional logic of the doctrine leads inexorably to the conclusion that the exception applies to bar any tort claim that is part and parcel of a ministerial employment decision.

Justice Anne M. Patterson, in her written concurrence, said that in Hosanna-Tabor, the Supreme Court rejected the Equal Employment Opportunity Commission's contention that the ministerial exception should not apply because the religious reason cited by the church was pretextual. She also noted that eight years after that decision, the court applied the exception to bar employment discrimination actions filed by two teachers terminated from their positions with a Catholic elementary school in Our Lady of Guadalupe.

"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," Patterson said. "A decade before Hosanna-Tabor, however, this court prescribed a standard for courts to apply when they determine whether a given claim is barred by the exception."

Patterson, who was joined by Justice Douglas M. Fasciale and Justice Lee A. Solomon, said the court reaffirmed the McKelvey standard, with modifications to bring the standard in line with recent U.S. Supreme Court jurisprudence. The state high court did not adopt the McKelvey language, which suggested that a minister's claim for damages in the employment discrimination setting does not implicate the First Amendment. Rather, it held that the ministerial exception is clearly not limited to employment decisions made by religious institutions on religious grounds.

Patterson turned to the dissenting opinion, written by Justice Fabian Pierre-Louis and joined by Chief Justice Stuart Rabner and Justice Michael Noriega, which argued that the case should not be decided until Hyman is afforded additional discovery.

Pierre-Louis noted that the defendants explained in their letter to the public that they retained Arnold & Porter to conduct the investigation and that 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," Pierre-Louis wrote in her dissent. "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."

Patterson said, with or without discovery regarding the details of the investigation, the court's inquiry on the merits would remain the same. She said the court would be required to assess the reasons for a religious institution's decision to terminate the employment of a minister, which would violate the First Amendment.

"It is therefore clear that additional discovery would not alter the constitutional analysis in this matter," Patterson said.

"Today is a very good day for religious liberty," Shapiro said. "The court unanimously adopted a flexible and protective standard for evaluating employment-related tort claims brought against religious institutions, and its specific holding will provide those institutions with important legal protections in communicating with their faith communities without fear of groundless defamation claims."

Peter G. Verniero, a member of Sills Cummis & Gross and a former New Jersey Supreme Court justice, appeared for amicus curiae the New Jersey Catholic Conference.

In a statement to the Law Journal, Verniero called the decision a significant validation of religious employers' rights to manage their churches and church-related facilities as they deem consistent with the tenets of their faith, free from government intrusion.

"The rights of religious employers to inform their congregations about the reasons why a minister was removed from service have been upheld, free from the risk of litigation," Verniero said.

Scharlat, who represented Hyman, did not immediately respond to a request for comment.