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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].”
“The majority’s exercise of judicial restraint is a source of great consternation for our dissenting colleague,” O’Leary tersely replied. “We chose not to exploit the facts of this case to create a bully pulpit. We regret our dissenting colleague’s attempt to strike fear in the hearts of all people of faith by exaggerating the significance of this case. Notwithstanding our dissenting colleague’s gratuitous, inflammatory rhetoric, the sky is not falling. The decision in this case does not in any way diminish the sacrosanct nature of ecclesiastical decisions.”
The Court of Appeals sent Gunn v. Mariners Church back to Orange County Superior Court, under a new judge, Sheila Fell. Gunn was now asking for six figures and added a new charge: emotional distress.
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On Sept. 28, 2006, a statement of undisputed material facts was filed with Orange County Superior Court referring to depositions of Beshore and Gunn taken over that summer. The depositions themselves are not on file with the court, and neither Toledano nor Mariners’ current attorneys responded to the Weekly’s requests to review them. But the filed statement nevertheless provides surprising revelations about the drama that occurred during the depositions.
In the statement, Gunn was referred to as the “second-most-influential person in the church” while he was worship director at Mariners. While there, he agreed with the position that he “believed and understood that a homosexual relationship constituted inappropriate sexual activity in the eyes of the church.” He admitted to hearing Beshore “state that position in front of leadership at the church and in a message delivered to the congregation from the pulpit.” Gunn also didn’t dispute Beshore’s rule that “if a leader of the church was guilty of misconduct that he be confronted and that those being affected immediately by that particular leader be also told about the reason for disqualifying that person from a leadership position.”
During Gunn’s deposition, a stunning admission arose: Sometime between 1997 and 1999, Gunn himself had let go a staffer for admitting to a homosexual act. Gunn made the announcement to his choir of more than 100 members, telling them the offending person suffered a “moral failure.” Mariners’ lawyers also established that Beshore had previously explained from the pulpit why he had fired a heterosexual church leader—the man had marital problems of an unspecified nature that constituted a sin.
Toledano unsuccessfully argued that Gunn’s case was distinct from those of the heterosexual pastor and the gay staffer. Fell issued her judgment on Jan. 3, 2007—Gunn had no case, she said, writing that the evidence “clearly sets forth that the actions alleged by plaintiff in his complaint were in furtherance of the established church policy regarding termination of a leader within the church.” Gunn “had full knowledge of the church’s procedure of terminating leaders and had himself on a prior occasion of similar circumstance utilized the procedures in terminating a subordinate leader in the church.”
The attorney promptly went back to the Court of Appeals. This time, however, Tolendano found no relief. On Sept. 2 of this year, they unanimously ruled against Gunn. Since Gunn “conceded most of Mariner Church’s facts,” and since “there now is no material issue of fact concerning whether the statements made following Gunn’s termination were part of the process of termination,” Gunn’s lawsuit was moot. “Once it has been established the statements were made in relation to the process of Gunn’s termination, the ministerial exception applies regardless of the tortious nature of the statement. . . . Gunn’s failure to provide us with any cogent analysis of his argument waives his claim on appeal.”
Toledano isn’t done. In a petition for review that he filed in November with the California Supreme Court, he writes that the decision “finds a new and unwarranted religious exception to defamation law.” He wants the higher court to examine the ministerial exemption and argues it doesn’t apply to Gunn’s axing. “Neither the innocent religious meaning of Mariners’ words nor its intent to provide its congregation with a theological explanation for having terminated Gunn has any legal relevance in this tort action.”