Religious Institutions Update: June 2011

Timely Topics

It is that time of year when religious groups around the country undertake short-term mission trips and host open camps, vacation Bible schools and other activities for children. Requiring signed releases is more common than it once was, but the religious organizations that do so are commonly under the impression that a couple of sentences borrowed from an online source or form book will protect them against liability if participants are injured or suffer medical problems. Their optimism may be misplaced. Consider a few hazards: In many states, a release is not valid if it fails to provide adequate information about the nature of risks and events to which a person will be exposed. Fully informed and voluntary consent is critical. In several states, a release is not valid at all in relation to an ultra-hazardous activity, such as driving all-terrain vehicles. This is especially so when the activity appears to concern primarily a commercial or business activity more than a religious activity. The parties to a release are also key when a minor is involved. Parents and legal custodians do not always agree among themselves about whether children or wards should participate in events. When only one parent has legal custody of the child, the other may not have legal capacity to enter into the release. The language of a release of liability must also include particular words to be effective in many states. Then there is the question of whether to include a medical consent to provide first aid or admit a child to a hospital in an emergency situation where the parents are unavailable. Religious organizations may also want to consider alternative dispute resolution as part of a release. Consult with church-state counsel to ensure that your release is enforceable or as protective as is feasible.

Key Cases

Religion Clauses No Defense to Third-Party Subpoena of Religious Institution

In Cason v. Federated Life Ins. Co., No. C-10-0792 EMC, 2011 WL 1935870 (N.D. Cal. May 20, 2011), the court dismissed a religious institution’s California and federal Establishment Clause and Free Exercise Clause defenses to a third-party subpoena. The plaintiff sued her insurer for bad faith disability insurance. The insurer sought records from Optimum Health Institute (OHI) after the plaintiff testified during her deposition that she had either attended OHI for some kind of treatment or therapy and/or worked there. As a result, the insurer demanded from OHI employment and attendance records relating to the plaintiff. OHI produced some records but not others, based on the Religion Clauses. The court held that OHI failed to explain how the subpoena violated the Establishment Clause or Free Exercise Clause and, thus, the claimed privilege could not stand. Furthermore, the court held that subpoenas have a secular purpose and added that “a reasonable, objective observer would not view either subpoenas generally or the specific subpoena issued by [the insurer] as an act of hostility, either toward OHI or religion in general.” The court also found that a narrowly drawn subpoena “is essentially a one-time occurrence” and “does not involve continuing surveillance” or entanglement. In addition, the court held that the subpoena was “a result of a neutral law of general applicability, and therefore the right of free exercise does not relieve OHI of its obligation to comply with the subpoena.” The court ruled the California and federal Establishment Clause coextensive, but professed agnosticism about whether the California Free Exercise Clause is stronger. The court also rejected (1) a state and federal right to privacy defense, on the grounds that OHI failed to show any privacy interest in the documents at issue and could not assert the plaintiff’s privacy interest; (2) an associational privacy interest, because the documents revealed only the plaintiff’s admitted association with OHI; and (3) the clergy-penitent privilege, for lack of any obvious relevance and due to waiver.

Pregnancy Discrimination Claim Dismissed Against Catholic Hospital

In Harris v. Providence Everett Med. Ctr., Case No. 65167-6-1, 2011 WL 1843450 (Wash.App. Div. 1 May 16, 2011), the appellate court declined to review a claim that Providence Everett Medical Center (Providence) was not a religious employer exempt from the Washington Law Against Discrimination, because the plaintiff failed to argue it at the trial court level. The court observed in dicta that Providence is a wholly owned subsidiary of Providence Health and Services, which is sponsored by the Sisters of Providence, and that as a result, this “would render Providence exempt from the statute.” But the court affirmed the trial court’s dismissal of the employee’s pregnancy discrimination claim without reaching the merits.

Church Member’s Defamation Claim Against Pastor Dismissed

In Kaplan v. Khan, Case No. 43099/07, 2011 WL 1879039 (N.Y.Sup. May 17, 2011), the court granted the defendant’s motion for summary judgment against the plaintiff’s defamation claim. The plaintiff, who was 80 years old, alleged that the defendant-pastor called her a “whore” during a prayer meeting and stated that she “ran a house of prostitution” similar to one “that was in the Bible when Hoffney and Phineas took in prostitutes in the temple.” The plaintiff alleged that several members then came over to her, put their finger in her face, and screamed at her to repent. The pastor defended his comments by saying that “[w]hen a member of the Church” such as the plaintiff, “is committing a flagrant sin, I have an obligation to identify the sin and to call upon the transgressor to stop sinning. At times, it is necessary and appropriate to rebuke the transgressor....” The court decided that the pastor’s statements, in context, were most likely non-actionable “opinion” including “rhetorical hyperbole, vigorous epithets, and lusty and imaginative expression,” or “loose, figurative, hyperbolic language.” In determining whether a reasonable person would view the allegedly defamatory words as conveying any facts about the plaintiff, the court considers (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the communication appears or the broader social context and surrounding circumstances are such as to signal that what is being read or heard is likely to be opinion, not fact. If not “opinion,” the court held that the plaintiff may have consented to the words, because the defendant made them in his capacity as the plaintiff’s pastor. Last, the court held that to the extent that the “statements yet convey any defamatory meaning, it is a pronouncement of the moral judgment of a pastor upon the conduct of a church member” and a part of the “religious practice of ‘rebuke.’” Consequently, the court held that “[t]o allow plaintiff’s claim to proceed under the circumstances, ‘would necessarily involve an impermissible inquiry into religious doctrine and a determination as to whether the plaintiff violated religious law.’”

Plaintiffs State Claim for Housing Discrimination Involving Trust Benefiting Denomination

In Cooke v. Town of Colorado City, Arizona, Case No. CV-10-8105-PCT-JAT, 2011 WL 1869427 (D. Ariz. May 16, 2011), the court held that the plaintiffs had standing to allege that the defendants violated their rights under the Arizona and Federal Fair Housing Act; also, that they engaged in disability and religious discrimination by delaying their electricity and sewer services for months and by denying the plaintiffs access to running water for more than two years. The plaintiffs lived on land subject to the United Effort Plan Trust, which was established by the Fundamentalist Church of Jesus Christ of Latter Day Saints to hold and manage property for the benefit of FLDS adherents. The Utah state court reformed the trust and expanded the rights of a Special Fiduciary to provide homes in a religiously neutral way, inter alia, to the plaintiffs, but another federal district court held that the reformation violated the FLDS’s First Amendment rights. The former owner of the property, a member of the FLDS, claimed to be the rightful occupant of the property. Nevertheless, this court found that because the events giving rise to the action occurred when the plaintiffs had at least a colorable claim to the property on which they still reside, they stated a claim for relief.

Ministers Denied Intervention As of Right in Case Challenging Parsonage Tax Exemption

In Freedom from Religion Foundation v. Geithner, Case No. 09-17753, 2011 WL 1746137 (9th Cir. May 9, 2011), the U.S. Court of Appeals for the Ninth Circuit denied a motion to intervene as of right by a group of ministers in an action challenging the constitutionality of the California and federal parsonage tax exemption for “ministers of the gospel.” The court held that the ministers had failed to rebut the presumption of adequate representation conferred by the state and the Department of Justice’s defense of the congressional enactment, notwithstanding the ministers’ arguments that they (1) might urge a narrow interpretation of the statute, (2) have an interest in maximizing public revenue, and (3) might not appeal an adverse ruling. But the court remanded the case for a determination whether the ministers are entitled to permissive intervention in the case.

Consecutive Filing Requirement for Religious Workers Upheld Under RFRA

In Ruiz-Diaz v. United States, Case No. C07-1881RSL, 2011 WL 1795269 (W.D. Wash. May 20, 2011), the court rejected the plaintiffs’ argument that denying a class of aliens holding special immigrant religious worker visa the right to file an application for adjustment of status concurrently with their employer’s visa petition violated the Religious Freedom Restoration Act (RFRA). Requiring them instead to file an application after receiving their petition requires some individuals to return to their home countries before receiving approval. When an alien remains in the United States for more than 180 days after his original visa expires without being able to submit an application to become a lawful permanent resident, the alien will be statutorily barred from ever seeking adjustment of status and will be excluded from the United States for a period of 3-10 years. The court rejected the aliens’ argument that the consecutive filing requirement was a substantial burden on their exercise of religion. The court observed, “Plaintiffs are subject to detention, deportation and statutory penalties not because they are following the dictates of their religion but because their visas have expired.” The court continued, “As long as the bar against concurrent filing neither ‘forces [plaintiffs] to choose between practicing their religion and receiving a government benefit [n]or coerces them into a Catch-22 situation ... it does not impose a substantial burden under RFRA.” Furthermore, the court held that immigration law furthers a compelling government interest. The court also rejected an equal protection challenge to the rule, finding that strict scrutiny is not appropriate for review of Congress’ plenary power to control immigration and naturalization and that the rule was rationally related to the agency’s purpose of deterring fraud “in an area where there are virtually no objective standards for determining a religious organization’s need or for evaluating whether a particular applicant is qualified to fill an available position.” The court also dismissed a due process and First Amendment challenge to the rule. (See Holland & Knight’s September 2010 Religious Institutions Update for more about this case.)

Claims of Negligent Retention, Negligent Supervision and Sexual Exploitation Survive against Minnesota Conference

In Beach v. Budd, Case No. A10-1471, 2011 WL 1642579 (Minn. App. May 3, 2011), the court concluded that a parishioner’s claims for negligent retention, negligent supervision and sexual exploitation can be resolved according to neutral principles of law. The pastor was separately charged with multiple felony counts of third-degree criminal sexual conduct in violation of a Minnesota statute that prohibited sexual penetration of or contact with a person by another, who is or purports to be a member of the clergy, during the time the person “was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private.” The court determined that the plaintiff’s “negligent-retention claim is not related to [the pastor’s] spiritual advice; rather, the issue is whether the Conference acted reasonably after it became aware of or should have been aware of any issues with [the pastor] sexually touching individuals.” Likewise, the court found that, because “sexual relations are a well-known hazard of a secular counseling relationship,” the negligent supervision claim required an inquiry exclusively into the reasonableness of the employer’s supervision to prevent it. Last, the court agreed that the statutory sexual-exploitation claim required inquiry only into whether the Conference “took reasonable action when learning of [the pastor’s] sexual contact” with the plaintiff. On the other hand, the court found that the Conference owed no duty to investigate the plaintiff’s claim of sexual abuse for lack of any special relationship with her, because the Conference did not deprive her of her ability to report the plaintiff’s conduct to the police even if it encouraged her to use the Conference’s process.

Denial of Medicaid Recipient’s Request for Out-of-State Bloodless Liver Transplant Violated Free Exercise Clause and Kansas Constitution

In Stinemetz v. Kansas Health Policy Auth., Case No. 105,366, 2011 WL 1662788 (Kan.App. May 4, 2011), the court held that the decision of the Health Policy Authority Appeals Committee affirming the Kansas Health Policy Authority’s (Authority) denial of a Medicaid recipient’s request for an out-of-state bloodless liver transplant violated her rights under the Free Exercise Clause of the First Amendment and religious freedom section of the Kansas Constitution Bill of Rights. A Kansas law provides that any out-of-state services that occur more than 50 miles from the Kansas border will only be reimbursed by Medicaid if the service is an emergency service, prior authorization has been issued, or the service is provided by an independent laboratory. The plaintiff applied for prior authorization because no in-state medical facility would perform the procedure. The appeals committee held that the plaintiff’s religious preference does not meet the medical necessity criteria. On review, the Court of Appeals of Kansas held that, because the Kansas Medicaid regulations allow for an individual exemption on a case-by-case basis in defining medical necessity, the Authority cannot refuse under the federal Free Exercise Clause to extend that exemption to cover the plaintiff’s religious hardship without providing a compelling reason. The Authority did not suggest any state interest for denying the plaintiff’s request for prior authorization for the out-of-state bloodless liver transplant, which was allegedly cheaper than the ordinary procedure. The court held that the Kansas Constitution provides even greater free exercise protection than its federal counterpart under a four-part test that evaluates (1) whether the individual’s religious beliefs are sincerely-held, (2) whether the state action burdens the individual’s free exercise of religious beliefs, (3) whether the state interest is overriding or compelling, and (4) whether the state uses the least restrictive means of achieving its interest.

Religious Institutions in the News

A report entitled, “The Causes and Context of Sexual Abuse of Minors by Catholic Priests in the United States, 1950-2010,” was released. See Report spreads blame for Catholic sex abuse. Here is a link to the report: The Causes and Context of Sexual Abuse of Minors by Catholic Priests in the United States, 1950-2010.

California’s famed Crystal Cathedral was put up for sale to enable the church to pay back creditors. See Crystal Cathedral Plans to Sell Church to Exit Bankruptcy; Crystal Cathedral, California's Famous Multimillion-Dollar Megachurch, Is Up For Sale

Mail delivery on Sunday benefiting Adventists in Loma Linda, California, has terminated. See Adventists in Calif. city lose Sunday mail delivery; One of last three towns with Sunday mail delivery may lose it; Adventists decry loss of Sunday mail deliveries.