“Each of the individual defendants has an unnatural antipathy to homosexuals and/or is known to be homophobic and/or is known to have expressed personal and emotional hostility to homosexuals,” read the complaint, written by attorney (and former Democratic Party of Orange County chairman) Jim Toledano. “Homophobia is not a part of the religious doctrine or theology of Mariners Church, and the reliance by defendants on purported teachings from Biblical texts is pretextual only and invoked solely to justify the personal homophobia of defendants and their actions against plaintiff.”

Gunn’s “vocation in church ministry was destroyed, and his ability to gain employment was and has been materially and negatively affected,” asserted Toledano, who described as “despicable” that the defendants “held him up [sic] public scorn, contempt and disparagement and injured him generally in his reputation and in his vocation as a religious minister.” Gunn asked for limited compensatory damages, attorney fees and punitive damages “in an amount appropriate to punish or to set an example of defendants.”

Mariners shot back in a surprising way. In a Dec. 20, 2002, demurrer filed by attorney Robert Toolen, Beshore and his board didn’t dispute any of Gunn’s assertions regarding his termination: “There is no allegation that the statements made were untruthful, especially in light of the fact that in a church setting, an admission of homosexuality could be interpreted as ‘moral and sexual actions that are a sin,’ ‘a breakdown in character,’ ‘caught in a sin’ and a ‘broken man who needed to be restored.’” Toolen argued Mariners’ actions fell under the First Amendment of the Constitution, which protects religious expression, and he expressed mock shock that Gunn thought he could file “garden-variety torts that just happen to involve him as a worship director and worship minister at Mariners.” Mariners also maintained that their actions against Gunn fell under what’s known as the ministerial exception, a subsection of Title VII in the 1964 Civil Rights Act that protects religious organizations from anti-discrimination lawsuits as long as they can prove that their actions against an employee were religiously based.

Gunn and Men Alive, ready to bring joy to the world
Drew Faber Photography
Gunn and Men Alive, ready to bring joy to the world
The Christmas spirit, Mariners style
Keith May
The Christmas spirit, Mariners style

Toledano explained in a Feb. 4, 2003, response that the defamation happened when Gunn was no longer employed by Mariners and therefore Mariners was not protected by the First Amendment or the ministerial exception. “Once defendants had fired plaintiff, they had no legitimate need thereafter to attempt to shame him or label him or ruin him,” he wrote. The decision “to hold him up to scorn and disdain, to revile him, to defame him, and to make it sound to those who heard it as if he had committed despicable and possibly criminal acts was not connected to any religious process. . . . When defendant chose to go beyond their religious cover after they had fired plaintiff for being gay, they became liable.”

“In the real-world church setting, it does not take much imagination to assume that staff members and members of the congregation need to be informed about the termination of a long-standing minister within the church and the reasons thereof,” Toolen countered. “The very reasons for the termination, as articulated, are ecclesiastically based” and a “protected belief.”

Presiding Judge Steven Perk agreed with Mariners and threw out Gunn’s suit on Feb. 14, 2003, refusing to “medd[le] in [the] ecclesiastical authority of the church.”

Gunn pursued his case with the California Court of Appeals, Fourth District, Division Three, which tries Orange County cases. On May 31, 2005, a 2-1 majority agreed with Gunn’s appeal. Writing for the majority, Justice Kathleen O’Leary argued that “because we cannot determine from the face of the complaint whether [Beshore’s] statements [about Gunn’s termination] falls within, or is outside of, the ministerial exception, the judgment must be reversed.” The court did not find enough facts “demonstrating the acts were pursuant to any church doctrine . . . demonstrating that announcing members’ ‘sins’ to the congregation constitutes a religious practice in Mariners Church.”

Vigorously dissenting was presiding Justice David G. Sills—the title of his dissent is telling: “Today’s Decision Will Force the Adjudication of Theological Beliefs.” In his opinion, the court “should stay on their own side of the wall of separation of church and state” and not “wade waist-deep into matters of theology.” Sills also thought his colleagues had “seriously underread the complaint. They should spend a little more time with it.”

The senior justice continued the abrasive, entertaining read for 34 pages, using terms such as “Wildean irony” to ridicule Gunn’s assertion that telling his former congregation the reason for his leaving the church wasn’t necessary. “To paraphrase Gilbert and Sullivan’s famous line, he most certainly would be missed,” Sills quipped.

He also accused Gunn of setting a trap in which Gunn would emerge as the winner if a jury ever heard the case. “If the church and its elders contradict the complaint and aver that their religious beliefs and doctrine are ‘homophobic,’ plaintiff will publicly denounce his former ecclesiastical employers as a bunch of ignorant, Bible-thumping, knuckle-dragging, pitchfork-toting rednecks, masquerading as a tolerant church,” Sills wrote. “Or, if they take the bait and ‘admit’ that their doctrine is not ‘homophobic,’ the plaintiff will be able to rake them over the spiritual coals” in court, resulting in a “theological circus that will make the Scopes Monkey trial look like a boring treatise on insurance law. . . . Today’s decision, alas, turns the wall of separation into a one-way turn style [sic].”

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