Religious Institutions Update: October 2012

Timely Topics

Most secular and religious corporations have adopted electronic communication policies which state that employees have no privacy interest in their emails and Internet usage. Typically, the policies indicate that the organization's digital network may be used exclusively for the organization's business purposes; also, that the organization monitors network usage and may review, copy or disclose email correspondence over its digital network. One important reason for such policies is the affirmative obligation employers have to prevent unlawful harassment under Title VII and other state and federal laws. Employers generally also want to prevent excessive personal use of the network, including gambling and downloading and reviewing pornography. Churches have a heightened concern about the possibility of improper communications between employees and minors or counselees. In their good faith and earnest efforts to police improper employee communications, religious institutions must be careful not to violate the law.

The Electronic Communications Privacy Act (ECPA), also known as the Wiretap Act, prohibits the intentional interception of wire, oral or electronic communications and the intentional disclosure of the contents of a wire, oral or electronic communication by one knowing or having reason to know that the information was obtained through an interception that violates the ECPA. An "intercept' is defined as "the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device." There is a so-called "business extension" exemption, which exempts usage of a phone in the ordinary course of the subscriber's business. Pursuant to this exemption, some courts have ruled that an employer can monitor a call until the employer determines the call is personal, at which point the employer must cease listening and hang up. Disciplining an employee for inappropriate telephone comments that are personal in character may incidentally give rise to an employee claim under the ECPA.

The Electronic Communications Storage Act, also known as the Stored Communications Act (SCA), is another federal act applicable to monitoring employee communications. The SCA states that it is a violation for anyone who "[i]ntentionally accesses without authorization a facility through which an electronic communication service is provided ... and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system...." "Electronic storage" is defined as (a) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (b) any storage of such communication by an electronic communication service for purposes of backup protection of such communication. Most courts have held that accessing emails stored on an employer's server does not violate the SCA, but the SCA may be implicated if an employer accesses an employee's email stored on a remote Web-based server such as Hotmail or AOL. In these circumstances, employees may also state a claim for invasion of privacy and various torts, such as defamation against the employer. If you have not had qualified counsel review your electronic communication policy recently, you should consider doing so.

Key Cases

Church Succeeds on RLUIPA Equal Terms Claims Due to Disparate Treatment  

In Opulent Life Church v. City of Holly Springs, Miss., No. 12-60052, 2012 WL 4458234 (5^th Cir. Sept. 27, 2012), the court vacated the district court's order denying the church's motion for a preliminary injunction under the equal terms provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and remanded the case for further proceedings.

The church leased a larger property, contingent on receiving proper land use and renovation permits. The city commission tabled the church's request as inconsistent with the zoning ordinance, which contained provisions applicable exclusively to churches requiring that 60 percent of property owners within a 1,300-foot radius approve the property's use as a church, in addition to the mayor and Board of Aldermen. Before the city even responded to the church's motion for preliminary injunction, the district court denied it on the ground that the church had not shown a substantial threat of irreparable injury. The church put on evidence that its current facility was too small and, as a result, potential members would not join, the church could not operate its community service and outreach programs, and without permits the church would lose its lease. The church filed an interlocutory appeal of the district court order. The night before oral argument, the city amended its zoning ordinance with a provision categorically banning "[c]hurches, temples, synagogues, mosques, and other religious facilities" from the newly created "business Courthouse Square District" where the property the church leased was located. The court of appeal held that the new ordinance did not moot the church's challenge because the church sought retrospective monetary damages and due to an exception to mootness that applies when repeal of objectionable language would not preclude government from reenacting a similar provision. In this instance, the court ruled that the amended ordinance reenacted the city's wrongful conduct. The appellate court also considered the case still ripe for review because the church's challenge to the ordinance is facial and the church would suffer hardship if review is delayed.

The court of appeals ruled that the old ordinance plainly violated RLUIPA's equal terms provision because it imposed burdens on churches not imposed on other types of uses. It also ruled that the church had shown a substantial threat of irreparable harm if the injunction is not granted, but remanded the question whether the new ordinance also violated the equal terms provision and whether the harm the church would suffer will outweigh any harm the city will suffer from an injunction. In doing so, the court made several doctrinally important equal terms rulings: (1) RLUIPA does not exclude money damages as a remedy against municipalities and counties (in contrast to states); (2) interpreting the phrase "on less than equal terms with a nonreligious assembly or institution" to require district courts to determine the regulatory purpose or zoning criterion behind the regulation at issue, as stated explicitly in the text of the ordinance or regulation, and whether the religious assembly or institution is treated as well as every other nonreligious assembly or institution that is "similarly situated" with respect to the stated purpose or criterion; (3) the strict scrutiny test does not apply in equal terms litigation; (4) an alleged violation of RLUIPA constitutes irreparable harm because RLUIPA enforces First Amendment freedoms; and (5) injunctions enforcing RLUIPA are always in the public interest for a similar reason. The court was not convinced that a valid purpose for the new ordinance could be to create a commercial district, inasmuch as other noncommercial, non tax-generating uses are permitted in the new district. It also rejected as discriminatory any purpose excluding religious uses from the "heart of community life." The court of appeals also asked the district court to determine the amount of damages the church suffered and to consider an award of fees and costs.

Injunction Protecting Pharmacies and Pharmacists with Conscientious Objections Affirmed But Narrowed

In Morr-Fitz, Inc. v. Quinn, No. 4-11-0398, 2012 WL 4320611 (Ill. App. 4 Dist. Sept. 20, 2012), the court upheld but narrowed a permanent injunction entered under the Illinois Conscience Act prohibiting enforcement of a rule requiring pharmacies to deliver lawfully prescribed drugs to patients and to distribute nonprescription drugs approved by the FDA including contraceptives. The plaintiffs, two pharmacists and three pharmacies, filed suit on the grounds that the rule violated their faith and other convictions.

The Conscience Act provides: "No physician or health care personnel shall be civilly or criminally liable to any person, estate, public or private entity or public official by reason of his or her refusal to perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care service which is contrary to the conscience of such physician or health care personnel." Defendants argued the Conscience Act does not apply to pharmacists or pharmacies, but the court ruled that pharmacists are "health care personnel" who furnish or assist in furnishing health care services; i.e., the provision of medication. The Conscience Act adds that no person or corporation that owns or operates a "health care facility" shall be liable to any public entity by reason of the health care facility's refusal to provide any particular form of health care service that violates the facility's conscience as set froth in its ethical guidelines or other governing documents.

The court ruled that pharmacies are "health care facilities," because they are "dispensaries" or "location[s] wherein health care services are provided to any person." The defendants next argued that an exception within the Conscience Act applied: "Nothing in this Act shall be construed as to relieve a physician or other health care personnel from obligations under the law of providing emergency medical care." But the court disagreed on the grounds that "'emergency contraceptives do not fall within the plain and ordinary meaning of the term 'emergency.'" Nevertheless, the court narrowed the applicability of the injunction except against the plaintiffs as to the distribution of contraceptives, leaving it enforceable against non-objecting pharmacies and other FDA-approved medications.

Court Should Have Abstained from Preventing Investigation into Teachers’ Age Discrimination Claim

In Temple Emanuel of Newton v. Mass. Comm'n Against Discrimination, 463 Mass. 472, 2012 WL 4075752 (Sup. Sept. 19, 2012), the Massachusetts Supreme Judicial Court ruled that the Superior Court should have abstained from deciding whether the ministerial exception barred the plaintiff's claim for age discrimination until the Massachusetts Commission Against Discrimination entered a final decision, but went on to affirm the Superior Court's judgment declaring that the temple's employment decision not to rehire the plaintiff was protected by the ministerial exception and ordered the commission to dismiss the complaint.

The plaintiff in this matter taught religious subjects on a part-time basis at a school that functioned solely as a religious school operated by a Conservative Jewish congregation, the mission of which was to teach Jewish children about Jewish learning, language, history, traditions and prayer after school and on Sundays. After the school implemented a staff reduction, the plaintiff filed a complaint for age discrimination and harassment. When the commission refused to dismiss the complaint even on appeal, the temple filed a complaint against the commission to prohibit it from exercising subject matter jurisdiction over the plaintiff's claim, rather than respond as ordered by the commission to the administrative complaint. The Superior Court entered judgment in favor of the temple and found that exhaustion of administrative remedies would be futile. The commission appealed.

Although the record was silent as to whether the teacher was a rabbi and about the extent of her religious training, the Supreme Judicial Court agreed that it would infringe the temple's exercise of religion or cause excessive entanglement between the state and the temple if the lower court were to order the temple to hire or retain the teacher on remand. The Supreme Judicial Court held that the lower court should not have interfered in the case because the ministerial exception doctrine is an affirmative defense, not a jurisdictional bar preventing the commission from investigating the circumstances of a minister's denial of reemployment. Because of this, the court observed that ordinarily it would vacate the judgment, dismiss the temple's complaint, and remand the matter to the commission for administrative adjudication of the plaintiff's complaint, but the Supreme Judicial Court departed from this practice in this instance because the matter could be resolved on undisputed facts and was purely a legal question that was fully briefed.

Church Camp Fails to Qualify for Statutory Recreational Use Immunity

In Cregan v. Fourth Mem'l Church, No. 86835-2, 2012 WL 4010496 (Wash. Sept. 13, 2012), the court ruled that statutory recreational use immunity was not available to a church which owned Riverview Bible Camp, which offered a wide range of adventure activities. The plaintiff was part of an organization named "Beats & Rhythms," which the church allowed to use the facility at no charge under a rental and indemnity agreement. During his stay, the plaintiff rode on burlap bags down the "Giant Slide" and caught his foot and leg in such a way that he was left with permanent motion restriction. The plaintiff brought a premises liability action against the church. To be immune under the Washington statute, a landowner must establish that: (1) the use was open to members of the public; (2) it was for recreational purposes; and (3) no fee of any kind was charged. The court ruled that the church allows only secular or Christian groups onto the grounds and generally charges for access. Not everyone in the community has the same opportunity to enter and use the property; therefore, the court ruled that the church failed two of three prongs of the test for recreational use immunity.

Church Succeeds on RLUIPA Substantial Burden Claim Due to Town's Open Hostility

In Fortress Bible Church v. Feiner, No. 10-3634-cv, 2012 WL 4335158 (2d Cir. Sept. 24, 2012), the court ruled that a municipality's use of a statutory environmental review process as the primary vehicle for making zoning decisions was within the purview of RLUIPA and found that the application substantially burdened a church's religious practice in violation of RLUIPA because its existing facilities were inadequate.

The church put on evidence that it was unable to expand its membership, perform full-immersion baptisms, perform "alter calls" or adequately run a Christian school. The court also found that the town was acting in bad faith and in hostility to the church's building project such that it would not have allowed the church to build any worship facility and school on the property at issue. It considered the town's actions arbitrary, capricious and discriminatory. The town delayed the church's application and "attempted to extort from the church a payment in lieu of taxes, it ignored and then replaced its planning commissioner when he advocated on the church's behalf, and town staff intentionally destroyed relevant evidence." The court also found that the municipality violated the church's free exercise rights. Without resolving whether zoning variance decisions challenged under the Free Exercise Clause are subject to strict scrutiny, the court concluded that there was no rational basis for the town's actions. Last, the court ruled that the church proved a class-of-one equal protection violation because the church presented evidence of several other projects treated differently with regard to discrete issues. The court upheld the district court's permanent injunction ordering that the church's site plan be deemed approved under the environmental review standards, ordering various waivers or exemptions from zoning requirements, ordering the town to issue a building permit, ordering the town not to unreasonably interfere with the church project and imposing sanctions for spoliation of evidence.

Plaintiffs State Claim against Electric Utility for Violation of Establishment Clause

In Santiago-Ramos v. Autoridad de Energia Electrica, No. 11-1987(JAF), 2012 WL 4321325 (D. Puerto Rico Sept. 18, 2012), the court ruled that the plaintiffs stated a viable claim that an electric utility, which was a public corporation created by legislative act, violated the Establishment Clause by allegedly providing $3.5 million in subsidies to unspecified churches and other non-profit associations. The plaintiffs claim that the utility is used "as a cash cow for partisan purposes." The court authorized discovery to proceed into "the secrecy surrounding these subsidies" to find out "which organizations receive them." The plaintiffs also stated other causes of action against the utility including alleged freedom of association, takings, due process, equal protection and Robinson-Putnam Act violations.

Establishment Clause Claim Dismissed against Village Dominated by Religious Group

In Kiryas Joel Alliance v. Village of Kiryas Joel, No. 12-217-cv, 2012 WL 3892744 (2^d Cir. Sept. 10, 2012), the court affirmed dismissal of the plaintiffs' claims under the Establishment Clause that the Village of Kiryas Joel was unlawfully entangled with religion because of the overlap between the leadership in the Village and Congregation Yetev Lev D'Satmar of Kiryas Joel such that the Village allegedly has selectively enforced its laws against dissidents. The Village was incorporated in 1977 to serve as an enclave for followers of the Satmar Hasidic sect of Judaism. The Village is populated exclusively by followers of that sect, a majority of whom are members of Congregation Yetev. The plaintiffs are also followers of the Satmar Hasidic faith, but do not accept the legitimacy of Congregation Yetev's current leader. As a result, they claim to be subject to discrimination by the Village. The court considered the plaintiffs' claims related to Congregation Bais Yoel Ohel Feige, the "dissident congregation," res judicata or barred due to prior litigation, and ruled that the plaintiffs lacked standing as organizations to assert section 1983 claims on behalf of their members.

Diocese Not Liable for Abuse at Boarding School

In Bernie v. Catholic Diocese of Sioux Falls, No. 25974-25983, 2012 WL 3966361 (S.D. Sept. 5, 2012), the court affirmed the lower court's ruling that the defendant diocese was not liable on a theory of respondeat superior for alleged sexual abuse perpetrated at a Catholic boarding school; an agency relationship did not exist between the diocese and monks and nuns imposing any relationship upon the diocese to prevent the alleged abuse; and the diocese did not act in loco parentis over the students so as to impose a fiduciary duty on the diocese to prevent the alleged abuse.

The plaintiffs, former students, made no claims against diocesan priests, employees or volunteers, only nuns of the Oblate Sisters of the Blessed Sacrament and the Sisters of the Blessed Sacrament, as well as monks and priests from Blue Cloud Abbey. They failed to produce evidence that an employee of the diocese ever acted as an officer, director or employee of the school. In avoidance of respondeat superior liability, the court concluded that the alleged acts of sexual abuse were solely in the perpetrator's own interests and were not in furtherance of the pursuit of the diocese business. The court also found that the students did not show that the diocese authorized the perpetrators to operate the school. Last, it found that, although there was no dispute that the school was acting in a custodial, parental role with respect to the students and that they reposed trust in the priests, monks and nuns, the diocese did not undertake a custodial function and the students did not repose confidence in it.

Religious Institutions in the News

A Pew study reveals a rising tide of religious restrictions across the globe between 2009 and 2010, and reveals the worst offending countries. http://www.pewforum.org/Government/Rising-Tide-of-Restrictions-on-Religion.aspx

Religious and nonreligious groups are teaming up with government to fight sex trafficking. http://www.washingtonpost.com/national/on-faith/religious-groups-team-up-to-fight-sex-trafficking/2012/09/26/fa2d2852-0817-11e2-9eea-333857f6a7bd_story.html

To ensure compliance with Treasury Regulations (31 CFR Part 10, §10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.