December 2010

Religious Institutions Update: December 2010

Holland & Knight Update
Nathan A. Adams IV

Timely Topics

Communicating with your employees and students that your organization has full access to – and the ability to monitor – all email or Internet communication on the institution’s computer system has never been more important. As much as 30 to 40 percent of Internet use in the workplace reportedly is not business-related. Also, as electronic devices become mobile, their use for personal versus job- or education-related purposes has been blurred. Similarly, the advent of electronic social media makes distinguishing the personal from the professional or educationally-related more challenging. Sexually harassing comments or threats posted on a personal website or blogged on someone else’s by an employee or student can become the basis for liability once reported to the employer or school.

Courts will not ordinarily interfere with adverse action taken against an employee or a student for inappropriate emails accessed on organization equipment, or for viewing or downloading improper content on organization equipment, if employers clearly communicate their electronic use policy to their employees. Likewise, employers and schools can often explode the privacy interests of their employees or students in the contents of their desks, filing cabinets and even vehicles parked on campus when the policy patently allows for this; otherwise, employees and students may invoke Fourth Amendment and privacy interests to the detriment of the employers and schools.

It is important to make sure that your policies are unambiguous, specifically, that your organization has the right to access emails on organization equipment and restricts what employees and students may view and disseminate while using organization equipment before exercising the privilege to review personal employee or student communications and materials. Speak with counsel about your policies’ compliance with privacy and labor laws, particularly when seeking to access materials or communications stored off-premises after-hours; on equipment that the employee or student may argue is personal; and when seeking to take adverse action against them for electronic postings or based on what employees say to each other electronically.

Key Cases

Dismissal Affirmed of Claim that City Resolution Critical of Catholic Church Violated the Establishment Clause

The City and County of San Francisco did not violate the Establishment Clause by adopting a resolution criticizing Cardinal William Joseph Levada for directing that Catholic agencies should not place children for adoption in homosexual households. Catholic League for Religious and Civil Rights v. City and County of San Francisco, Case No. 06-17328, 2010 WL 4138432 (9th Cir. Oct. 22, 2010) (en banc). The resolution declared that it was “an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City’s existing and established customs and traditions such as the right of same-sex couples to adopt”; that the church had adopted “hateful and discriminatory rhetoric”; that it had been “defamatory” toward same-sex couples by suggesting they would harm children; and that Levada was “a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear.” The resolution called on Levada to withdraw his directive. The en banc court was divided. By one vote, a majority (Kleinfeld, Thomas, Silverman, Clifton, Bybee and Ikuta) agreed that the plaintiff had standing to challenge the resolution, because of the exclusion or denigration it alleged of their religious beliefs. A separate majority affirmed the district court’s dismissal of the plaintiff’s claim. Five judges (Graber, Kozinski, Rymer, Hawkins and McKeown) did so because, in their opinion, the plaintiffs lacked standing, and three more (Silverman, Thomas, Clifton) did so because, on the merits, they considered that the resolution was not in violation of the Establishment Clause. The latter found that the Lemon Test was not violated, because the resolution: (1) had a secular purpose of promoting same-sex adoption; (2) did not have a religious purpose or a primary effect of expressing hostility toward Catholicism, as opposed to expressing the view that same-sex couples were just as qualified to be parents as were heterosexual couples; and (3) did not excessively entangle government and religion, inasmuch as the resolution was an isolated, non-binding expression of the board’s opinion on a secular matter which the plaintiffs did not allege even potentially interfered with the inner workings of the Catholic Church. In dissent, three judges (Kleinfeld, Bybee and Ikuta) considered the resolution to be a violation of the Establishment Clause, as an impermissible government condemnation of religion.

City Officials Immune from Liability for Leasing and Selling to a Religious Shelter

A non-profit corporation and prior lessee of a city building in which the non-profit operated a homeless shelter and low-income transitional housing program filed a section 1983 action against the City of Boise, Idaho, its mayor, as well as city employees, city council and council members for allegedly violating the Due Process Clause, the Establishment Clause and the federal Fair Housing Act, by leasing and then selling the building to a religious organization known as Boise Rescue Mission Ministries (BRM). BRM operated the facility as a homeless shelter for single men, and included chapel services and pre-meal prayers in its activities. In Cmty. House, Inc. v. City of Boise, Idaho, Case No. 09-35780, 2010 WL 2895700 (9th Cir. Oct. 6, 2010), the Ninth Circuit Court of Appeals held that the city officials were entitled to qualified immunity on the surviving Establishment Clause and FHA claims. Immunity for a public official’s violation of a constitutional right depends upon whether that right was clearly established. The court awarded the officials immunity against the Establishment Clause violation because there was no prior decision holding that lease terms on less favorable or neutral terms as compared to the secular non-profit’s lease unconstitutionally attributed BRM’s religious observances to the city. Nor was there such a case involving “a below-market sale to a religious organization which also executed an important city policy and saved the city money.” As the court observed, “The City did not give the BRM a gift; in fact, it received substantial consideration from the BRM. In return for management and ownership of the property, the City was relieved of the obligation and costs of operating the shelter, while at the same time ensuring as a matter of City policy that the shelter stayed open.” The court awarded them immunity against the FHA claim because it was also not clearly established at the time that homeless shelters met FHA’s definition of a “dwelling.” As reported in our October 2009 Religious Institutions Update, the Idaho District Court held in a separate case that the very facility at issue is not a dwelling. Furthermore, the court held that reasonable public officials could not have known that the single-men-only policy of the shelter violated the FHA when BRM ran a sister shelter for women.

Religious Discrimination Claim Dismissed Against a Private Religious University

Seton Hall University is a private Catholic institution. Farakh Vaynberg, a Jewish doctoral student in the physical therapy program at the university, sued the school for discrimination by her professor based on religion under the First Amendment and 18 U.S.C. § 247 after she was dismissed from the program due to poor grades. Vaynberg claimed her poor grades were caused by her professor’s bullying and insensitivity to Jewish religious holidays. In Vaynberg v. Seton Hall University, Case No. 09-4999 (FSH), 2010 WL 4292145 (D.N.J. Oct. 22, 2010), the district court granted summary judgment to Seton Hall because, as a private university, the First Amendment does not apply to it. For the First Amendment to apply to a private school, the challenged conduct must be “state action,” meaning that the state must exercise coercive power or provide such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the state. The court likewise held 18 U.S.C. § 247 inapplicable, because it imposes criminal, not civil, liability on anyone who, in a manner affecting interstate commerce, “intentionally obstructs, by force or threat of force, any person in the enjoyment of that person’s free exercise of religious beliefs, or attempts to do so.” The statute provides no basis for civil liability.

Disaffiliating Local Georgia Church Retains Dominion Over Its Property

In Timberridge Presbyterian Church, Inc. v. Presbytery of Greater Atlanta, Inc., Case Nos. A10A1611, A10A1612, 2010 WL 4884378 (Ga.App. Nov. 30, 2010), the Court of Appeals of Georgia reversed the lower court’s grant of summary judgment in favor of the Presbyterian Church (USA) or Presbytery of Greater Atlanta, Inc. (together, the Presbytery) in its action in ejectment seeking a writ of possession and other relief against Timberridge Presbyterian Church to gain dominion over the church property, once Timberridge Presbyterian Church voted to disaffiliate from the Presbytery. The court decided in favor of the local congregation after examining the deeds to the property, local church governance documents and national Presbytery governance documents. The court found that the deeds did not convey the property to trustees nor to the Presbytery, but simply to Timberridge Presbyterian Church. Second, although articles of incorporation of the church referenced the Presbytery and its Book of Order, the court held that it did not express a clear intent to render the local church subject in all matters to the ecclesiastical and temporal authority of the Presbytery. Last, the court found that the local church attempted to opt out of the property trust provisions of the Presbytery within the applicable time frame and had not undisputedly adopted or adhered to the national church’s rules attempting to codify a trust relationship with respect to the property at issue.

Religious Institutions Have Mixed Success Dismissing Employment Discrimination Claims

Employee’s ADA Claim Survives

In Magnus v. St. Mark United Methodist Church, Case No. 10 C 380, 2010 WL 4177614 (N.D. Ill. Oct. 19, 2010), the plaintiff filed suit under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and the Employment and Retirement Security Act § 510 (ERISA) against her former employer, senior pastor and chairman of the personnel committee after the plaintiff was terminated for being tardy and refusing to work weekends. The plaintiff contended that the church knew she arrived late and could not work weekends because of her daughter’s disability. The single claim not dismissed was for the church’s violation of the ADA, which requires the plaintiff to allege that: (1) the plaintiff was “qualified” for the job at the time of the adverse employment action; (2) the plaintiff was subjected to adverse employment action; (3) the plaintiff was known by his or her employer at the time to have a relative or associate with a disability; and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision. The ADA provides only for employer, not individual, liability. As to the church’s liability, the court acknowledged that its refusal to accommodate the plaintiff’s request not to work weekends was not a ground for an ADA claim, because the right to an accommodation does not extend to the mother of a disabled person. In addition, the court held that the plaintiff had not sufficiently pled a hostile work environment against disability within the church. Nevertheless, the court found that “by presenting the circumstances that surrounded her firing,” she “satisfied the pleading standard for an ADA claim.” By contrast, disability is not a protected class under Title VII, and she alleged only conclusory statements suggesting a violation of ERISA insufficient to survive a motion to dismiss.

Pastor’s Gender Discrimination and Retaliation Claims Dismissed

In Barton v. Mikelhayes, Case No. 09-CV-0063, 2010 WL 3927605 (N.D. N.Y. Oct. 7, 2010), Rev. Todd Barton sued the Troy Annual Conference of the United Methodist Church and various church officials for gender discrimination, hostile work environment, sexual harassment, violation of due process, failure to protect against or investigate Title VII allegations, and retaliation when they withdrew his pastoral license for “unpastoral-like conduct.” The “ministerial exception is a constitutional doctrine derived from th[e Free] Exercise Clause that forbids federal courts from disturbing ‘the autonomy of religious institutions over ecclesiastical affairs’ or entangling the courts in ‘religious questions.’” The court held that the 
“[p]laintiff’s causes of action easily fall within the ministerial exception.” He was a minister, and the surviving gender discrimination and retaliatory firing claims were “’pervasively religious’ in nature,” inasmuch as the “Defendant has claimed that Plaintiff’s license was revoked for religious reasons, by the proper Church authorities, and pursuant to Church doctrine.”

Employee’s Retaliation and Sexual Harassment Claims Dismissed

In Rojas v. Roman Catholic Diocese of Rochester, Case No. 07-CV-6250 CJS, 2010 WL 3945000 (W.D. N.Y. Oct. 6, 2010), the plaintiff was employed by the Diocese of Rochester as a Coordinator for Hispanic Migrant Ministry. Her duties included scheduling Hispanic Masses at the parish. The Diocese maintained that she resigned after she became upset over the pastor’s opposition to decorations that she put up to celebrate the traditional Mexican Day of the Dead, which coincided with the Catholic All Saints’ Day and All Souls Day. To this point, the Diocese claims it was unaware that she claimed the pastor sexually harassed her. Then, according to the Diocese, she withdrew her resignation and made the allegations, and was fired. The plaintiff countered that she never formally resigned. The court rejected the Diocese’s argument that the ministerial exception applied, because the dispute that led to plaintiff’s resignation had its genesis in a religious matter involving the Day of the Dead liturgy. To the contrary, the court found that plaintiff’s termination had nothing to do with religious doctrine or the inner workings of the Catholic Church. Nevertheless, the court dismissed her claim for hostile environment discrimination on the grounds that she failed to show that the Diocese knew, or should have known, about the alleged harassment, and failed to take appropriate remedial action. In particular, the plaintiff failed to utilize the Diocese’s complaint procedure and canceled meetings with officials to discuss her complaints. Furthermore, once the Diocese learned of her allegations, it conducted an investigation in which she refused to participate. The investigation found the allegations were not true. For similar reasons, the court held there was no triable issue of fact as to whether the plaintiff engaged in protected activity that the Diocese retaliated against. Furthermore, the court found that the Diocese proffered a legitimate non-discriminatory reason for terminating her employment. Namely, she resigned and failed to attend work or meetings after the fact.

Christian Legal Society Fails to Preserve Selective Enforcement Claim

As we reported in the August 2010 Religious Institutions Update, the U.S. Supreme Court held constitutional Hastings College of Law’s “All Comers Policy” precluding the recognition of the Christian Legal Society chapter due to its “Statement of Faith” and policy requiring that sexual activity should not occur outside of marriage between a man and a woman. Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings College of the Law v. Martinez, 130 S.Ct. 2971 (2010). However, the Court remanded the case with instructions that the district court consider CLS’s claim that Hastings College of Law selectively applied its Nondiscrimination Policy against CLS. In Christian Legal Soc’y Chapter of Univ. of Cal., Hastings College of the Law v. Wu, Case No. 06-15956, 2010 WL 4629597 (9th Cir. Nov. 17, 2010), the Court held that CLS failed to preserve this issue for further consideration.

Religious Institutions in the News

President Obama signed an executive order reshaping the White House Faith-Based Office. See For the text of the Order, see

The International Religious Freedom Report for 2010 was released as Senate hearings on the nomination of the ambassador-at large for international religious freedom were held. For the report, see About the ambassador-at-large and related hearings, see

In oral argument on the Arizona scholarship tax credit program, the U.S. Supreme Court appeared divided. See

The United Nations will vote on a “Religious Defamation” resolution this month. See For the text of last year’s resolution, see

A U.S. district court prevented Oklahoma from certifying the results of a constitutional amendment to bar state courts from considering international or Islamic law when deciding cases.

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