Religious Institutions Update: May 2011
Most of us have heard of the Establishment Clause, but what about the Blaine Amendment or “No Aid” Clause? In 1875, Representative James G. Blaine introduced a federal constitutional amendment that would have barred states from spending public funds on “sectarian institutions.” It easily passed in the House of Representatives but fell four votes shy in the Senate. Supporters turned to the states, a majority of which enacted similar provisions in the mid-to-late 1800s, alongside and in addition to state establishment clauses. Many scholars believe that their original purpose was anti-Catholic. In fact, Blaine Amendments were originally enforced against Catholic parochial schools, orphanages and the like. The amendments fell into disuse as long as the U.S. Supreme Court interpreted the federal Establishment Clause to prohibit religious institutions from participating in most publicly-funded programs. But beginning in the 1980s, U.S. Supreme Court precedent began to shift, culminating in 2002, when the court held in Zelman v. Simmons-Harris that “where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.”
After Zelman, state Blaine Amendments were once again relevant to whether religious institutions – and not just Catholic ones – could participate in neutral publicly-funded programs. In numerous states, religious institutions provide many of the social services upon which people – especially the poor – depend, from healthcare to substance abuse treatment and transitional housing to eldercare; however, several courts concluded that the public funds the religious institutions receive by contract or grant from the state to provide the services are “aid” to the religious institutions, rather than those served. Some legislatures, beginning with Florida’s, are moving to repeal these amendments. Meanwhile, because of their reach, religious institutions receiving state or local public funding or considering participation in publicly-funded programs should consult with church-state counsel about how best to mitigate their legal risks.
Public School Credit for Private Released Time Education Program Upheld
Since 1992, students enrolled in South Carolina public schools have had the opportunity to receive religious instruction by voluntarily attending released time classes. In Moss v. Spartanburg County School District No. 7, Case No. 7:09-1586-HMH, 2011 WL 1296699 (D. S.C. Ap. 5, 2011), the plaintiffs, including a student enrolled in the school district, parents of enrolled students, and a non-profit educational charity, sued the district contending that its adoption and implementation of a released time policy pursuant to state law violated the Establishment Clause. The district accepted up to two elective credits from a religious preparatory school, which reviewed, approved and supervised the curriculum taught by the Spartanburg County Bible Education in School Time (SCBEST), a non-profit religious education provider. After concluding that the plaintiffs had standing to pursue the action as a class of individuals distinctly affected by the adoption and implementation of the released time policy, and that the district could be subject to liability for the alleged violations, the court applied the Lemon test to decide whether the policy violated the Constitution. First, the court concluded that the district’s stated reason for adopting the policy to accommodate parents and students’ desire to receive religious instruction was a legitimate secular purpose, not a sham. Second, the court held that the policy was facially neutral, favoring no particular religion or denomination, and did not have the primary effect of promoting religion. It found that the extent of the district’s cooperation with SCBEST was no more than as a passive implementer of a neutral policy and that granting transfer credit for religious instruction was unremarkable and no different from what public schools ordinarily do. Last, the court held that plaintiffs failed to show how the district’s passive acceptance of academic credit for religious instruction constituted excessive entanglement with religion.
“Large Group Feeding Ordinance” Upheld on Rehearing
In First Vagabonds Church of God v. City of Orlando, Fla., Case No. 08-16788, 2011 WL 1366778 (11th Cir. April 12, 2011), the United States Court of Appeals for the Eleventh Circuit decided a single issue on rehearing en banc that was the subject of a panel’s prior ruling (reported on in Holland & Knight’s August 2010 Religious Institutions Update): whether the City’s so-called “Large Group Feeding Ordinance” as applied to Orlando Food Not Bombs violated the Free Speech Clause of the First Amendment. Assuming, without deciding, that the conduct involved was expressive and entitled to First Amendment protection, the court held that the ordinance did not violate the First Amendment. Residents complained that homeless persons disbursed into their neighborhoods after food distributions by Orlando Food Not Bombs and weekly services held by First Vagabonds Church of God at a local park. Accordingly, the City adopted the ordinance to require sponsors of large group feedings to obtain a permit and limited the number of permits that a permittee could obtain for any one city park to two per year. The court held that the ordinance was valid as a reasonable time, place and manner restriction unrelated to suppression of speech, and was narrowly focused to enable the City to serve a substantial interest in managing park property and spreading the burden of large group feedings throughout a greater area.
Two Courts Decline to Exercise Jurisdiction Over Church Property Disputes
In Southeastern Pa. Synod of the Evangelical Lutheran Church in Am. v. Meena, Case No. 2498 C.D. 2009, 2011 WL 1485600 (Pa. Cmwlth. April 18, 2011), the Southeastern Pennsylvania Synod approved a resolution to subject The Evangelical Lutheran Church of the Redeemer to involuntary synodical administration in light of its diminished attendance records and financial state, but the church rejected the Synod’s authority to take charge and control of its property. The Synod filed a complaint for declaratory relief against the church. On appeal, the Commonwealth Court of Pennsylvania agreed with the trial court that the court lacked subject matter jurisdiction over the case and could not decide the case using a “neutral principles of law approach.” The appeals court held that the neutral principles approach applies “only when a trial court is able to determine the underlying issue by utilizing purely legal principles without delving into ecclesiastical matters.” In contrast, the appeals court held that this matter was ecclesiastical, as it required decisions “regarding the ongoing viability of a congregation and whether or not to permanently shut a church’s doors....”
Similarly, in Hope Presbyterian Church of Rogue River v. Presbyterian Church (U.S.A.), Case No. 072707E2 and A139430, 2011 WL 1565360 (Or.App. April 27, 2011), the Court of Appeals of Oregon decided that it must defer to a hierarchical church’s conclusion that the property of a disaffiliating congregation belonged to the denomination. Hope Presbyterian Church of Rogue River initiated a quiet title action upon voting to disaffiliate. The trial court sided with the church, contending that it could decide the matter under a “neutral secular principles” of law approach under which it confined its analysis to civil property documents and refused to consider the Presbyterian Church (USA)’s Book of Order or the church’s amended articles of incorporation, both of which declared that the disputed property was held in trust for the denomination. The appeals court found that it was required to adopt the “hierarchical deference approach,” making the declaration of the existence of a trust in the Book of Order determinative, but it added that even under the neutral principles approach it was improper for the trial court to have disregarded the church documents. The appeals court observed, “Of the courts that have adopted a neutral-principles approach, nearly all have addressed the terms of the denominational church’s constitution.”
RLUIPA Claims of Religious Institution Rejected
In Great Lakes Society v. Georgetown Charter Township, Case Nos. 296370, 296372, 2011 WL 1600496 (Mich.App. April 28, 2011), the Court of Appeals of Michigan considered whether enforcement and enactment of an amended zoning ordinance violated the “equal terms,” “nondiscrimination, and “exclusions and limits” provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The plaintiff represented that it was a religious organization “ministering to persons having varying degrees of chemical sensitivities to common environmental pollutants.” It sought to construct a two-story building in an area “zoned low-density residential,” which municipal law permitted with a special use permit (SUP), and filed for the SUP. Meanwhile, the township approved an amendment to the zoning ordinance relating to street-frontage requirements for churches constructed in residential districts. Because the plaintiff’s property did not meet the amended street-frontage requirements, the plaintiff applied for a variance, which was denied. The plaintiff appealed the denial to the trial court, which affirmed on the grounds that the proposed building was not a “church.” On a prior appeal, the court of appeals held that the trial court applied the wrong standard in determining whether the building was a church, but determined that the amended ordinance applied because it was a clarification of existing law rather than concocted as a reason to deny the plaintiff’s application. The court also held that the “substantial burden” provision of RLUIPA was not violated nor the Free Exercise, Free Association or Equal Protection Clauses of the federal and state constitutions. In this appeal, for many of the same reasons, the court held that the additional RLUIPA provisions were not violated. It found that the street frontage requirement was applied to all churches, regardless of type, that churches were treated no worse than commercial enterprises that were largely prohibited from locating in residential zoning districts, and refused to attribute to the township as evidence of discrimination the negative or hostile comments of various township officials who commented, inter alia, that the church was really a cult or business.
Plaintiff Stated Establishment Clause Claim against Charter School
In Am. Civil Liberties Union of Minn. v. Tarek Ibn Ziyad Academy, Civil No. 09-138, 2011 WL 1496311 (D. Minn. April 20, 2011), the court held that a non-profit organization had taxpayer standing and stated a claim on behalf of its members against a charter school known as Tarek ibn Ziyad Academy (TiZA) for allegedly using tax funds to establish a school that promotes the religion of Islam, in violation of the federal and state Establishment Clause. As the court observed, “[A] reasonable juror could conclude that TiZA’s practices establish a pervasively sectarian atmosphere for the purpose of promoting Islam. In particular, a reasonable juror could conclude that TiZA was founded specifically to create a religious school and that elements of its operation have the primary principal effect of advancing the religion of Islam.”
Religious Institutions in the News
The Florida Legislature has approved a ballot measure that would repeal and replace Florida’s Blaine Amendment. See Original website reference no long available (6/29/12)
Rev. Suzan Johnson Cook was confirmed as U.S. ambassador-at-large for international religious freedom. See Senate Confirms Religious Freedom Ambassador; Senate confirms religious-freedom ambassador
The U.S. Court of Appeals for the Seventh Circuit dismissed a lawsuit challenging President Obama’s right to proclaim a National Day of Prayer on the grounds that the Freedom from Religion Foundation lacked standing to bring the action. See Wisconsin: Court Ruling Favors Prayer Day