February 11, 2010

Religious Institutions Update: February 2010

Holland & Knight Update
Nathan A. Adams IV

Timely Topics

Most religious institutions say they would prefer to resolve conflicts without resorting to courts, yet surprisingly few require alternative dispute resolution (ADR) as a contractual condition with vendors and employees. ADR – which includes conciliation, mediation and arbitration – is a common requirement in secular contracts, and is usually ordered by state and federal courts shortly after the filing of litigation.

Conciliation is an informal effort to settle a dispute without the involvement of a third party; it is two or more parties getting together to work out their differences. Mediation involves a neutral third person, the mediator, to help disputing parties reach agreement; a resulting mediated agreement is an enforceable contract. Arbitration also involves neutral third person(s) as arbitrators who render a decision like a judge after a hearing at which both sides have an opportunity to be heard, often with the assistance of counsel.

ADR can be graduated, so that if an agreement is not reached in conciliation, mediation is triggered, and if not resolved in mediation, arbitration is triggered. Alternatively, conciliation, mediation or both may be required as a precursor to litigation. Not all civil claims are subject to ADR, but imagine the effect of channeling a majority of disputes in this manner.

For conflict resolution, you can choose from a variety of secular ADR rules recommended by such groups as the American Arbitration Association, or theologically informed rules from such groups as Peacemaker Ministries. The latter aspire not only to conflict resolution, but also to personal reconciliation as an extension of the religious institution’s ministry. A lawyer can assist with drafting enforceable ADR provisions for your employee, vendor and other contracts.

Key Cases

Florida Blaine Amendment Applicable to Faith-Based Transition Program

In Council for Secular Humanism, Inc. v. McNeil, Case No. 1D08-4713 (Fla. 1st DCA Dec. 15, 2009), a Florida court of appeals overturned the lower court’s ruling that Florida’s Blaine Amendment was not applicable to contracts received by two faith-based substance abuse transitional housing programs from the Florida Department of Corrections to provide services to offenders pursuant to F.S. 944.473 and 944.4731 (2007). Florida’s Blaine Amendment, which is similar to language in many other state constitutions, provides, “No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.” The two statutes at issue require the Department, when selecting service vendors, to “make every effort to consider qualified faith-based service groups on an equal basis with other private organizations,” but preclude the providers from considering the offender’s faith in determining admission and from converting offenders toward a particular faith or religious preference. The court held that the plaintiffs stated a claim that these statutes violate the Blaine Amendment and remanded the case for discovery into whether the faith-based providers are “predominately ‘sectarian’ in nature and effect” and whether “aid” is being given the ministries. In addition, the court held that preventing the faith-based vendors from participating in state contracting would not violate either the federal Establishment Clause or Free Exercise Clause. On the other hand, the court found that publicly funding a chaplain does not violate the Blaine Amendment.

Judgment for Defamation Against Denomination and Officials Reinstated

A former pastor received a judgment for defamation against his denomination, divisional superintendent, and district supervisor in Tubra v. Cooke, No. 050910015, A134332, 2010 WL 291768 (Or. App. Jan. 27, 2010) after church officials terminated and suspended his credentials, and then read aloud to the pastor’s former congregation a letter stating that he had committed a financial misappropriation. In addition, one of the church officials emailed another saying the pastor had shown “a willingness to lie and steal.” The court rejected the church’s argument that the First Amendment created an absolute privilege against the plaintiff’s claim of defamation. Rather, the court adopted a test to invoke the First Amendment privilege: if the organization is of a religious character, and the alleged defamatory statements relate to the organization’s religious beliefs and practices and are of a kind that can only be classified as religious, then the Free Exercise Clause bars the plaintiff’s claims. But if the statements would not “always and in every context” be considered religious in nature, then there is no absolute bar. The court held the church officials’ statements in this case not purely religious – and therefore, held that the lower court erred in granting defendants’ motion for judgment notwithstanding the jury verdict. The court reinstated the jury verdict in favor of the plaintiff.

Teachers and Religious Schools Split Wins in Two States

Courts in the District of Columbia and Michigan reached different conclusions about whether teachers may state claims against the religious schools where they worked. The ministerial status of one of the teachers was key to the outcome.

1) Michigan Teacher’s Claims Dismissed

In Weishuhn v. Catholic Diocese of Lansing, No. 05-081808-CD, 2010 WL 290516 (Mich. App. Jan. 26, 2010), the court agreed that an elementary school teacher who taught four mathematics classes and two religion classes each day – and who was responsible for planning certain student masses, and assisted with student liturgies – was a “ministerial employee” who could not state a claim for a violation of the Michigan Civil Rights Act or Whistleblowers’ Protection Act against the school. The court considered the following factors critical as to whether she was a ministerial employee: (1) whether she had primarily religious duties and responsibilities, in the sense that her primary duties consisted of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship; (2) whether her duties had religious significance; (3) whether her position was inherently, primarily or exclusively religious; whether that position entailed proselytizing on behalf of defendants; whether that position had a connection to defendants’ doctrinal mission, and whether that position was important to defendants’ spiritual and pastoral mission; and (4) whether her functions were essentially liturgical or related to worship, and whether those functions were inextricably intertwined with defendants’ religious doctrine, in the sense that she was intimately involved in the propagation of defendants’ doctrine and the observance and conduct of defendants’ liturgy by defendants’ congregation. Although the teacher taught more mathematics than religion classes, the court did not hold it against the school, inasmuch as “teaching ‘secular’ classes is not necessarily ‘purely secular’ in the context of religious schools.”

2) District of Columbia Teacher’s Claims Survive

In Parnigoni v. St. Columba’s Nursery School, No. 1:08-cv-00613 (RBW), 2010 WL 325490 (D. D.C. Jan. 29, 2010), there was no allegation that a former nursery school teacher was a ministerial employee. The teacher avoided a motion to dismiss her claims for defamation by implication, invasion of privacy-false light, tortious interference, and promissory estoppel against the Episcopal nursery school for which she had worked and the related church, church administrative committee, church rector and school director. The school sent two letters home to parents and parish members stating that the teacher’s husband was a convicted sex offender, and implied, consequently, that the teacher posed a danger to their children. To avoid the embarrassment of the letter, the teacher offered to withdraw her child from the school and resign. The school encouraged her son’s withdrawal, but “rejected” her offer to resign. After sending the letters home, the school did not renew the teacher’s contract, notwithstanding her unblemished employment record. The court found that the teacher was defamed by implication – which requires not a false statement, only a defamatory inference – and added that the publication of the inference was broader than necessary, because it was distributed more broadly than to school parents. The teacher stated a claim for promissory estoppel against the school, because her contract to teach was not renewed, despite an oral assurance of employment upon which she relied. The court held the teacher also had a reasonable expectation of recruiting students from the school to attend her summer camp as in prior years, but that the school knowingly interfered with this expectancy. The defendants defeated only the teacher’s claims for intentional infliction of emotional distress and her husband and son’s claim for invasion of privacy/publication of private facts.

New York Presbyterian Church Property Retained by Denomination

In New York, a church property dispute was decided against the congregation in favor of the denomination from which the church sought to disaffiliate in Presbytery of Hudson River of Presbyterian Church (U.S.A.) v. T’ees of First Prebyterian Church and Congregation of Ridgeberry, 2010 WL 114396 (N.Y. A.D. 2 Dept. Jan. 12, 2010). The decision hinged on the Presbyterian Church (USA) Book of Order, a component of the constitution for the denomination, which contains language specifying that all property held by a particular church is held in trust for the denomination.

Religious Institutions in the News

President Obama and the Office of Faith-Based and Neighborhood Partnerships have thus far chosen to retain Bush-era faith-based rules permitting charities that receive federal aid to hire employees based on their religious beliefs; the President has been criticized for this. See Tensions Over Faith-Based Office Erupt in Public Spat; Keeping Faith, Courting Conservatives.

France is moving to ban the Muslim burqa. See What’s hiding behind France’s proposed burqa ban?; France moves toward burqa ban amid concern over Muslim integration.

A mother prevented from reading the Bible during “show and tell” in her son’s kindergarten class was not granted review by the U.S. Supreme Court. See No Supreme Court hearing for mom who asked to read Bible to son's class.

More than 1,200 crimes were committed against Christian churches and ministries in 2009, according to an unofficial tally. See Report tallies more than 1,200 crimes involving U.S. churches in 2009.

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