Religious Institutions Update: April 2011
Last month, we tackled the question of what constitutes a "substantial burden" on the "religious exercise" of a person – but it might have been better to begin with the question of what constitutes "religious exercise." Increasingly, courts appear to view religious exercise exclusively in terms of so-called "inherently religious activities" such as worship, ritual, liturgy, indoctrination, prayer and proselytizing. No doubt, these are religious exercise. But what about religiously-motivated activities with secular counterparts, such as nursing home care, feeding the hungry, health care, education in "secular" subjects or transition assistance for those with addictions or criminal histories? Although most of these have roots in religious ministry, and may still have religious ministries as the predominant private sector providers, courts have a more difficult time recognizing the activities as religious exercise when the institutions assert the right to engage in them free of infringing public regulations. For the religious institutions dedicated to bearing witness to the activities as faith-based, it will be important for governance, employment-related and advertising materials to convey this. The integration of faith and services; the role that directors, officers and staff play; and the manner in which staff and volunteers are retained will also be critical.
Of course, the same shoe that may be a good fit for an institution seeking protected status for its religious exercise may not fit as well in the context of publicly-funded services. Just as religious exercise can be understated, the religiosity of secular exercises undertaken by faith-based institutions can be overstated. Separation in time and place of faith-based and truly secular activities is the key to minimizing legal repercussions under charitable choice guidelines. Church-state counsel can assist religious institutions interested in pursuing this separation and can be of equal assistance to the religious institutions that consider divorcing faith and works in any respect theologically unsound or infeasible.
Supreme Court Dismisses Arizona Case Challenging Tax Credits for Contributions to Non-Profit STOs
In Arizona Christian School Tuition Org. v. Winn, Case No. 09-987 (Ap. 4, 2011), the United States Supreme Court in a 5-4 decision dismissed a case that respondents-taxpayers brought challenging tax credits for contributions to non-profit school tuition organizations (STOs), which use the contributions to offer scholarships to students attending the schools of their choice, predominately including religions ones. STOs associate with particular secular and religious schools, so donors must decide which STOs to fund. Parents apply to the STOs associated with the schools they prefer. The Arizona taxpayers who brought suit argued that the tax credit program violated the Establishment Clause by including religious schools that discriminate on the basis of religion in selecting students. They were concerned that the largest STOs restrict their scholarships for use at religious schools. The district court dismissed their suit, but the U.S. Court of Appeals for the Ninth Circuit reversed. (A fuller discussion of the Ninth Circuit ruling can be found in Holland & Knight's May 2009 Religious Institutions Update.) With Justice Kennedy writing for the majority, the Supreme Court held that the respondents' standing to bring this action cannot be based on their mere status as taxpayers. The Court found that claims of taxpayer standing rest on unjustifiable economic and political speculation, such as that an injunction against the tax credit would result in tax relief. The majority stated that the result of the tax credit could be cost savings because the scholarships relieve the burden placed on Arizona's public schools of educating students. The Court added that a tax credit, as contrasted with a public expenditure, does not coerce or require any person to support a sectarian institution. The decision to take advantage of the tax credit is voluntary. Furthermore, "[w]hen Arizona taxpayers choose to contribute to STOs, they spend their own money, not money the State has collected from respondents or from other taxpayers." The Court continued, "While the State, at the outset, affords the opportunity to create and contribute to an STO, the tax credit system is implemented by private action and with no state intervention." Justice Kagan filed a dissenting opinion that was joined by Justices Ginsburg, Breyer and Sotomayor. The dissent sided with the respondents and argued that a tax credit should not be treated any differently than an appropriation for purposes of standing. (Holland & Knight filed an amicus curiae brief in support of the prevailing petitioner in this case.)
Issue of Fact Whether High School Theology Teacher Was a "Minister"
In Hendricks v. Marist Catholic High Sch., Case No. 09-6336-AA, 2011 WL 996757 (D. Or. March 17, 2011), the court found that there was an issue of material fact whether plaintiff who taught theology courses part-time at Marist Catholic High School and directed the school's Christian Service Experience Program part-time was a "minister" for purposes of the ministerial exception doctrine, preventing summary judgment in favor of the school in relation to the teacher's claim of age discrimination. The plaintiff was 65 years old. The school did not renew his contract, allegedly due to budgetary shortfalls, but replaced him with a younger teacher. The school argued that the plaintiff was the functional equivalent of a minister because the subject matter he taught, theology, was unavoidably intertwined with questions of faith and church doctrine, even evangelism. It stated that the plaintiff was speaking in the place of the Archbishop of the Archdiocese of Portland and that, as director of the Christian Service Experience Program, he was counseling students in Catholic religious values. But the court held that the plaintiff must be deemed a "lay employee" for purposes of the First Amendment ministerial exception, because: (1) his contract with the Archdiocese of Portland was titled "Employment Agreement for a Lay Teacher"; (2) nothing in the contract established that plaintiff was an actual or prospective minister; and (3) his official job description was that of "Administer/Teacher." The court also noted that roughly half of the school's student body is not Catholic; also, that incoming freshman are told that they would not be taught the Catholic faith and the classroom would not be used to promote it. In addition, the plaintiff's duties did not consist of spreading the faith, facilitating or participating in religious ritual or worship, liturgy, prayer or proselytizing. The school argued that the court would violate the Establishment Clause as an independent basis for the ministerial exception by exercising jurisdiction in the matter. But the court found that the school's entanglement argument "hinges, at least, in part, on whether plaintiff is defined as a 'minister.'" Therefore, the court found again that a genuine issue of material fact exists in regard to the school's entanglement claim and denied the school's motion for summary judgment.
Church's "Community Center" Denied Charitable Property Tax Exemption
In Church of the Overcomer v. Delaware County Bd. of Assessment Appeals Premises, Case No. 269 CD 2010, 2011 WL 904170 (Pa. Cmwlth. Mar. 17, 2011), the court held that a church failed to meet all of the requirements mandated by the Charity Act to prove that one of its buildings, a "community center," should be tax-exempt. The first floor of the building in question consisted of a large meeting room, a smaller room and a kitchen. The second floor consisted of a library/classroom, a storage room and two bedrooms reserved for use by visiting missionaries. At this building, the church implemented several programs, including a program to help children of incarcerated individuals, a program to help such individuals maintain family contact and prepare for release, a summer camp program, a food bank, an addictions ministry program, a youth ministry program and a cyber school. Although all the programs were administered from this building, some program events took place in the tax-exempt church building. Some community center uses included worship, prayer meeting and Bible study, but the pastor could not put a percentage on such use. Abandoning an effort to seek exemption for the community center as a place of regularly religious worship, the church sought exemption for it as a purely public charitable use. Thus, exemption under Pennsylvania law required that the entity possess these characteristics: (1) advance a charitable purpose; (2) donate or render gratuitously a substantial portion of its services; (3) benefit a substantial and indefinite class of persons who are legitimate subjects of charity; (4) relieve the government of some of its burden; and (5) operate entirely free from a profit motive.
Under the state Charity Act, the institution must specifically find with regard to the second element of this test compliance with a variety of factors such as goods or services to all who seek them without regard to their ability to pay, a written policy so stating published in a reasonable manner, and uncompensated goods or services at least equal to 75 percent of the institution's net operating income but not less than 3 percent of the institution's total operating expenses. The pastor testified for the church that all of the programs offered at the community center were free and open to the public and funded by donations from the congregation, but he could not cite a written policy relating to this and offered no testimony related to percentages mentioned above. The pastor also could not say whether the individuals taking advantage of the church's services were unable to provide for themselves. Thus, the court held that the evidence presented on behalf of the church was insufficient to satisfy the Charity Act without prejudice to the church applying again in the future for the property tax exemption.
RLUIPA No Protection for Unpermitted Religious Road Signs
Without securing a permit, the plaintiff in this case erected road signs stating, inter alia, "Hell is Real" and "Thou Shall Not Commit Adultery, Thou Shall Not Kill, Thou Shall Not Steal, Thou Shall Not Bear False Witness, Thou Shall Not Covet." The Kentucky Transportation Cabinet, Department of Highways sued him for a violation of Kentucky's Billboard Advertising Act. In Harston v. Commonwealth of Ky. Transportation Cabinet, Case Nos. 2010-CA-000615-MR, 2010-CA-001124-MR, 2011 WL 744542 (Ky.App. Mar. 4, 2011), the plaintiff defended on the grounds that the signs are the only means that he and the lessors of the land upon which he put the signs could practice their religion. Exempt under the Act are "signs advertising activities conducted on the property on which they are located." This is the so-called "on-premises" exemption. The plaintiff further argued that the signs do not "advertise" in the traditional sense and, therefore, are not subject to the Act. Last, he argued that his placement of the signs was protected by the Religious Land Use and Institutionalized Persons Act (RLUIPA). The court held that whether or not the signs "advertised" was immaterial since the signs were certainly "advertising devices" within the meaning of the Act. The court rejected the applicability of the on-premises exemption on the ground that freedom of religion is not absolute and the Act is a "valid place and manner restriction" that is content-neutral. Last, the court observed that previous courts had already upheld the Act as supported by compelling state interests relating to public safety and aesthetics. The court added that the Act utilizes the least restrictive means to meet its objectives because it does not totally ban communication. Therefore, the court held that RLUIPA did not protect the sign placement, observing, "[G]overnment acts often inadvertently frustrate certain citizens' 'search for spiritual fulfillment,' yet the government 'simply could not operate if it were required to satisfy every citizen's religious needs and desires.'"
Court Lacked Jurisdiction Over Plaintiff's Misconduct Claims When Bishop Terminated His Membership
In Askew v. T'ees of the General Assembly of the Church of the Lord Jesus Christ of the Apostolic Faith, Inc., Civil Action No. 09-15, 2011 WL 857339 (E.D. Pa. Mar. 11, 2011), the court held that a dispute over membership in a church constitutes a core ecclesiastical matter divesting the church of jurisdiction over various claims that the plaintiff brought against the church on the basis of claimed improper dealings in the management of the church. After the case was filed, the bishop alleged that it had revoked the plaintiff's membership, defeating his standing to bring the action. The plaintiff presented no evidence to the contrary, merely his subjective belief that he was a member. In any case, the court found that even if the plaintiff "did present such evidence, this is the very type of inquiry that is beyond the scope of our jurisdiction, given the First Amendment's limitations on us." Nor did the court consider it improper that the bishop declared the plaintiff a non-member after the case was filed.
Court Affirms Injunction against Church Using Trademark without Permission
In Community of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ's Church, Case No. 10-1707, 2011 WL 941469 (8th Cir. Mar. 21, 2011), the court held that another church's use of an identical or substantially similar trademark geographically near the owner's world headquarters and various congregations associated with the owner was likely to cause confusion. The trademark in question was for, inter alia, the "Reorganized Church of Jesus Christ of Latter Day Saints" (RLDS Mark). In April 2000, the owner adopted the new name, "Community of Christ" allegedly "to better reflect its mission," but continued to use the RLDS Mark on its buildings, its publications and in holding real estate. The appellant used the RLDS Mark for years without permission. The owner demanded that the appellant cease and desist, but the appellant refused. In its defense, the appellant claimed that its services do not compete with the owner's and are different, but the court rejected this contention. The court also rejected the appellant's argument that the owner abandoned the mark by warehousing it or causing it to lose significance as contrary to the record evidence. The court found that the creation and use of the second mark was insufficient to cause the original marks to lose significance. Last, the court rejected the appellant's argument that the RLDS Mark was now generic as identifying a religion. The court also affirmed an award of reasonable attorneys’ fees and costs to the prevailing party, because the appellant willfully and deliberately used the RLDS Mark and continued to do so after the owner asked it to stop.
Texas Church Property Belongs to Diocese, Not the Disaffecting Parishioners
In Masterson v. Diocese of Northwest Texas, Case No. 03-10-00015-CV, 2011 WL 1005382 (Tex.App.-Austin Mar. 16, 2011), the court held that the Episcopal Church of the United States and the Diocese of Northwest Texas were entitled to continued possession and use of the Episcopal Church of the Good Shepherd in San Angelo, Texas, after a majority of the parishioners of the church voted to affiliate with the Diocese of Uganda, Africa. The appeals court held that the trial court could be affirmed either by applying the neutral principles of law approach as an exception to the ecclesiastical-abstention doctrine or by deferring resolution of the question to the proper ecclesiastical authorities within the Episcopal Church hierarchy. The court found that the Texas Supreme Court has not expressly chosen from among these methods to adjudicate church-property disputes, although it has "long recognized a structural restraint on the constitutional power of civil courts to regulate matters of religion in general." Under the neutral principles of law approach the court considered the deed and found that "all real and personal property of the Good Shepherd is held in trust for the Episcopal Church and the Diocese." The court also found that if it employed the rule of deference to hierarchical church authority it was bound by the bishop's pronouncement recognizing the new vestry or the minority that chose to remain loyal to the Episcopal Church of the United States as the true and proper representatives of Good Shepherd.
Ministerial Exception Bars Minister's ADEA Claim
In Hopkins v. DeVeaux, Civil Action No. 1:10-CV-0572-JEC, 2011 WL 938298 (N.D. Ga. Mar. 16, 2011), a minister disagreed with his bishop's decision to transfer him to a church where he did not wish to be assigned and replace him with a younger minister. The bishop took this action after he received a letter accusing the pastor of an inappropriate sexual relationship. The pastor denied it. The bishop never made reference to the plaintiff's age and did not know the age of the pastor who replaced him. The plaintiff chose not to avail himself of certain church procedures whereby an individual could challenge a bishop's assignment. He sued for a violation of the ADEA and his due process rights. The court held that the ministerial exception clearly defeated the pastor's ADEA claim, but on substantive grounds, not because the court was without subject matter jurisdiction to hear the dispute. Last, the court found that the personnel decisions of a private religious entity do not implicate the Fourteenth Amendment's Due Process Clause.
Religious Institutions in the News
The U.S. Supreme Court has agreed to decide "[w]hether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship." As reported in Holland & Knight’s April 2010 Religious Institutions Update, The Sixth Circuit held that the ministerial exception does not apply, because the teacher’s "primary duties" were teaching "secular subjects using secular textbooks." http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-553.htm; Court to decide if teacher can sue church school
The United Nations Human Rights Council adopted a religious freedom declaration, and sidestepped debate sponsored by Islamic countries over the "defamation of religions." Clinton Applauds U.N.'s Religious Freedom Resolution; hU.N. Passes Religious Freedom Resolution; USCIRF Welcomes Move Away from "Defamation of Religions" Concept; U.N. Human Rights Council Moves Away From ‘Dangerous’ Defamation of Religion Concept
The U.S. Supreme Court will not hear an atheist’s "In God We Trust" challenge. The appeals court held that the phrase is ceremonial and patriotic and unrelated to an establishment of religion. Court won't hear "In God We Trust" challenge