Religious Institutions Update: February 2011
Timely Topics
The Family and Medical Leave Act of 1993 (FMLA) provides that eligible employees qualify for up to 12 weeks of unpaid leave per year: (a) because of the birth of a son or daughter of the employee, and in order to care for the son or daughter; (b) because of the placement of a son or daughter with the employee for adoption or foster care; (c) in order to care for the spouse, or a son, daughter or parent of the employee if the spouse, son, daughter or parent has a serious health condition; (d) because of a serious health condition that makes the employee unable to perform the functions of the position of the employee; or (e) because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces. 29 U.S.C. § 2612(a)(1). FMLA leave may be taken intermittently when medically necessary; however, when the leave is “foreseeable based on planned medical treatment,” the employee must make a reasonable effort to schedule the treatment so that it does not unduly disrupt the employer and must provide the employer with thirty days’ notice unless impractical. 29 U.S.C. § 2612(b), (e).
The FMLA applies, inter alia, to all employers – including religious institutions – which engage in an activity affecting commerce and have 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. 29 U.S.C. § 2611(3). “Integrated employer” doctrine means that even separately incorporated entities with common ownership, management and operations may be individually subject to the FMLA.
Religious institutions occasionally receive requests for FMLA coverage for nonconventional forms of healing, but this is usually not required under the Act. A “serious health condition” within the meaning of the FMLA, is “an illness, injury, impairment, or physical or mental condition that involves … inpatient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). A “health care provider” is “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or any other person determined by the Secretary to be capable of providing health care services.” 29 U.S.C. s. 2611(6). Under this standard of “health care provider,” one group of faith healers is recognized: “Christian Science practitioners,” who reject ordinary medical care. 29 C.F.R. § 825.118. Chiropractors are also recognized. Other unconventional medical practitioners may not qualify.
As an example, in Tayag v. Lahey Clinic Hosp., Inc., Case No. 10-1169, 2011 WL 241968 (1st Cir., Jan. 27, 2011), the court held that an employee who was terminated when she accompanied her husband to the Philippines and the Pilgrimage of Healing Ministry at St. Bartholomew’s Parish failed to state a claim under the FMLA against her employer. Neither the employee nor spouse was opposed to conventional medical care on religious grounds; in fact, the husband had received medical care for a serious heart, liver and kidney condition. Ordinarily, requesting leave is an FMLA-protected right for which retaliation could be wrongful even when the leave is unprotected, but in this case the court found that the employee was discharged for taking improper leave, not for filing a leave request; therefore, she also failed to state a claim for retaliation under the FMLA.
The FMLA provides leave to eligible employees of relatively large religious institutions primarily for conventional medical treatment. If you have specific question about this, please consult with an attorney.
Key Cases
World Vision Ruling Affirmed with Amendment
In Spencer v. World Vision, Inc., Case No. 08-35532, 2011 WL 208356 (9th Cir. Jan. 25, 2011), the United States Court of Appeals for the Ninth Circuit denied rehearing by the full court (en banc), but amended its prior holding that World Vision qualifies as exempt from Title VII’s prohibition on religious discrimination. In the amended opinion, a majority of the court considers an entity exempt, at least, if: (1) it is organized for a religious purpose, (2) is engaged primarily in carrying out that religious purpose, (3) holds itself out to the public as an entity for carrying out that religious purpose, and (4) does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts. The court found that World Vision satisfies this test. For details about the unamended decision, see Holland & Knight’s September 2010 Religious Institution Update.
Mount Soledad Cross Struck as Unconstitutional Endorsement
Atop Mount Soledad in La Jolla, California, is a 43-foot cross and a veterans’ memorial. For more than 20 years the cross has been subject to litigation. In 1991, the district court enjoined the display of the cross on land of the City of San Diego as a violation of the No Preference Clause of the California Constitution. Murphy v. Bilbray, 782 F. Supp. 1420 (S.D. Cal. 1991). This ruling was affirmed on appeal and characterized as “a sectarian war memorial carr[ying] an inherently religious message and creat[ing] an appearance of honoring only … servicemen of [a] particular religion.” Ellis v. City of La Mesa, 990 F. 2d 1518 (9th Cir. 1993). In response, the City submitted a ballot initiative to authorize the sale of a 22-square-foot parcel of land including the Cross to the Mount Soledad Memorial Association. Seventy-six percent of the electorate approved the sale, but the district court invalidated it because of the City’s failure to consider other prospective buyers, thereby creating the appearance that the City preferred the Christian religion and intended to preserve the cross. Murphy v. Bilbray, No. 90-134 GT, 1997 WL 754604 (S.D. Cal. Sept. 18, 1997).
The City responded by soliciting bids for a second land sale, ultimately selling the land to the Association in September 1998. This sale was also struck under California’s No Preference Clause on the grounds that “it was structured to give ‘a direct, immediate, and substantial financial advantage to bidders who had the sectarian purpose of preserving the cross.’” Paulson v. City of San Diego, 294 F. 3d 1124 (9th Cir. 2002) (en banc).
Following this decision, the parties reached a settlement that would move the cross to a neighboring church. In July 2004, the City Council passed a resolution to require the City to accept the settlement if voters did not approve Proposition K, which would have required a third sale of the land to the highest bidder. City voters rejected Proposition K. Soon thereafter, two local members of Congress inserted a rider into the 2005 omnibus budget bill designating the Mount Soledad property as a national veterans’ memorial and authorizing the federal government to accept its donation. Seventy-six percent of voters voted in favor of donating the property to the federal government, but a state trial court enjoined its implementation. The federal district court than issued an order directing the City to remove the cross, but the City obtained a stay pending appeal.
In the summer of 2006, Congress approved a bill seizing the Memorial by eminent domain “in order to preserve a historically significant war memorial….” As soon as the federal government took possession of the property, the plaintiffs sued, alleging violations of the United States and California Constitutions. In the most recent litigation, the U.S. Court of Appeals for the Ninth Circuit again agreed.
The court in Trunk v. City of San Diego, Case No. 08-56415, 08-56436, 2011 WL 9636 (9th Cir. Jan. 4, 2011) held that Congress had a secular purpose for acquiring the memorial, but held that the history and absolute dominance of the cross had the effect of endorsing religion. The court found that the cross “is the preeminent symbol of Christianity” and lacked common alternate, non-religious meaning. In particular, the court rejected the idea that the cross had become a “default headstone in military cemeteries in the United States,” but rather one of many religious symbols marking military graves. Next, the court considered the setting of the cross amidst 2,100 plaques, six concentric stone walls, 23 bollards, and an American flag. The court held that the setting did not transfer the dominant Christian symbol – the only visible aspect of the Memorial to motorists on Interstate 5 – into a constitutional permissible site, especially given its history. The court observed that, “Overall, a reasonable observer viewing the Memorial would be confronted with an initial dedication for religious purposes, its long history of religious use, widespread public recognition of the cross as a Christian symbol, and the history of religious discrimination in La Jolla. These factors cast a long shadow of sectarianism over the Memorial that has not been overcome by the fact that it is also dedicated to fallen soldiers, or by its comparatively short history of secular events.”
Historic District Encompassing Single Church Held Constitutional
In 1925, Our Lady of Hope Parish constructed a Latin-cross church in the Italian Renaissance fashion and later a rectory, convent and school in Springfield, Massachusetts. The church was ornate, with four large stone crosses, 65 stained glass windows depicting significant events in the life, death and resurrection of Jesus Christ, and inscriptions above entries and porticos, such as “PAX INTRANTIBUS” (“peace to those who enter”). Due to a decline in the number of clergy and parishioners, the Bishop of the Diocese accepted the recommendations of a committee established to study how best to allocate the Diocese’s resources and decided on January 1, 2010, to close the church and merge parishes. As rumors of the impending closure spread, some Springfield residents urged the City to take preemptive action by creating a new historic district encompassing the church pursuant to a state Historic District Act; the residents were concerned that the Diocese might sell the property to a developer. On December 14, 2009, the City Commission voted to approve an Ordinance creating the “Our Lady of Hope Historic District around the single parcel of land on which the church sits. The Diocese responded by filing a suit for declaratory and injunctive relief that the Ordinance limited its ability to deconsecrate its property.
In Roman Catholic Bishop of Springfield v. City of Springfield, Case No. 10-cv-30033-MAP, 2011 WL 31288 (D.Mass. Jan. 4, 2011), the district court held the Ordinance constitutional and not a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The court found no violation of RLUIPA or the Free Exercise Clause because it held the Ordinance posed a de minimis burden on the Diocese inasmuch as it allowed for a “certificate of exemption” that the Diocese had not yet filed. The court held that the Diocese’s argument that the Historic Districts Act created an impermissible system of individualized governmental assessments by allowing the City to grant certificates of exemption was not ripe for the same reason. Second, the court rejected the Diocese’s argument that the Ordinance violated the so-called Equal Terms provision of RLUIPA or Equal Protection Clause by singling out the church for disparate treatment because the Ordinance implemented the Historic Districts Act, a state law of general applicability. Third, the court concluded that there was no genuine issue as to whether defendants harbored discriminatory animus in passing the Ordinance in violation of RLUIPA. The court also held that the Ordinance did not violate the Establishment Clause because it neither advances nor inhibits religion, and did not violate various state constitutional provisions similar to their federal counterparts.
Delaware Church Property Belongs to Denomination, Not Congregation
In Methodist Church v. Short, Case No. 5880-VCL, 2011 WL 198519 (Del.Ch. Jan. 12, 2011), the Court of Chancery of Delaware held the church building of Bethany United Methodist Church belongs to the Peninsula-Delaware Conference of the United Methodist Church, rather than to the congregation. Employing a “neutral principles of law” review approach, the court considered certain governing church documents dispositive. The deed transferred the property in question to the “Trustees of Bethany Methodist Episcopal Church.” The court found that the congregation had agreed to follow the Book of Discipline of the United Methodist Church, which states, in part, “All properties of United Methodist local churches … are held, in trust, for the benefit of the entire denomination….” The court added, “The Book of Discipline further clarifies that property is held in trust for the benefit of the parent denomination even when no express trust language in favor of the United Methodist Church appears in the deed.” The court concluded, “I empathize with the Bethany Congregation. It must be galling to learn that the Pen-Del Conference has title to the Church Property, when it has been the members of the Bethany Congregation who have filled an otherwise lifeless church building with the spirit of a religious community. The law, however, takes a longer view and considers not only the interests of the present congregants, but also the desires of those congregants who preceded them dating back to the original grantors.”
Religious Institutions in the News
The White House named a new council for its faith-based office. See http://www.religionnews.com/index.php?/rnsblog/obamas_new_faith_based_council/
The Catholic Health Association acknowledged that bishops, not doctors or hospital ethicists, have the final say on questions of medical morality. See http://blog.beliefnet.com/news/2011/01/catholic-hospitals-bishops-rea.php
The City of Mission, Kansas, has asked churches to pay a “transportation utility fee” for the number of times congregants drive on its roads; the church claims it is exempt. See http://www.stltoday.com/lifestyles/faith-and-values/article_29eadf74-aba7-50a2-8940-8d22a955e576.html
A three-year investigation into financial improprieties at six Christian television ministries has concluded with the formation of an independent commission to look into the lack of accountability by tax-exempt religious groups. See http://www.nytimes.com/2011/01/08/us/politics/08churches.html