Religious Institutions Update: January 2012
Timely Topics
As we begin a new year it is valuable to consider the lessons of 2011 for religious institutions. A key lesson for those faith-based institutions reliant upon religious exemptions from generally applicable laws such as those involving employment, housing and taxation is the importance of articulating a careful religious rationale for religious conduct and policies, especially when they are countercultural or, ironically, have a secular counterpart. In both instances, religious institutions are encountering a more skeptical bench.
For example, in oral argument before the U.S. Supreme Court on October 5, 2011 in Hosana-Tabor Evangelical Lutheran Church and Sch. v. Equal Employment Opportunity Comm’n, Case No. 10-553, Justice Ginsburg asked whether the reason a religious school alleged that a teacher was fired was set forth in the handbook: “I mean ... if this is a rule that’s going to bind a teacher, then you would expect to find it in the handbook.” Justice Breyer wanted to know what the employee was told when she was dismissed. Did she know that specific religious tenets were the reason?
With respect to religious institutions engaged in conduct with a secular counterpart, government authorities are less likely to qualify them for religious exemptions, on the theory that that bona fide religious conduct is primarily worship, prayer and proselytizing. Religious institutions dedicated to other types of religious activities, such as providing healthcare or running soup kitchens, will have to work harder to qualify for religious exemptions. Careful legal planning in 2012 can avoid or mitigate some of the most unpleasant potential administrative and judicial outcomes.
Key Cases
Religious Freedom Amendment Makes It to the November 2012 Florida Ballot
The Florida 2012 Ballot will include Ballot Number 8 entitled “Religious Freedom.” This would repeal and replace the last sentence of Article I, section 3 of the Florida Constitution known as the Florida Blaine Amendment, which currently states: “No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.” The replacement language upon which Floridians will vote states: “Except to the extent required by the First Amendment to the United States Constitution, neither the government nor any agent of the government may deny to any individual or entity the benefits of any program, funding or other support on the basis of religious identity or belief.” In Shapiro v. Browning, Case No. 2011-CA-1892 (Fla. 2d Cir. Ct. Dec. 13, 2011), Florida Circuit Court Judge Terry Lewis handed down a ruling on cross-summary judgment motions that temporarily removed this proposed amendment to the Florida Constitution from the ballot. The court held that a specific provision in the ballot summary was misleading; however, the court laid out a roadmap to correct the alleged defect. The court also upheld as constitutional a new statute allowing the Florida Attorney General to fix defective ballot summary language. Pursuant to this statute, the Florida Attorney General revised the ballot summary language consistent with the court’s direction, returning the amendment to the November 2012 ballot.
Judgment Against Preschool Teacher Who Stated Discrimination Claims Affirmed
In Henry v. Red Hill Evangelical Lutheran Church of Tustin, Case No. G044556, 2011 WL 6119336 (Cal. App. 4 Dist. Dec. 9, 2011), a former preschool teacher brought an action against Red Hill Lutheran School alleging wrongful termination for living with her boyfriend and raising their child together without being married. The court affirmed the judgment in favor of the church, for three reasons. First, the court held that the school, which was part of Red Hill Lutheran Church of Tustin, was not an “employer” for purposes of the Fair Employment and Housing Act (FEHA). The FEHA makes it unlawful for an employer — including a nonprofit public benefit corporation that operates an educational institution as its sole or primary activity — to discriminate based on marital status or sex. Second, the court held that the church’s decision not to terminate the teacher did not violate any public policy rooted in Title VII. The plaintiff cited exclusively the FEHA as the source of the public policy that the church allegedly violated; however, the FEHA does not give rise to a cause of action for a wrongful termination in violation of public policy when the claim would be precluded under the statute itself. In addition, the court found that the teacher “knew she was expected to live by the teachings of the Bible and that her living arrangement was ‘contrary to the religious and moral beliefs of the church.’” The court determined that the school engaged in permissible religious discrimination, rather than impermissible sex discrimination, because the school would have been satisfied if she had married her boyfriend or moved out of their shared residence. Last, the court held that the teacher was a “spiritual leader” for purposes of the ministerial exception to enforcement of civil employment law. The court held that she performed ministerial functions to include teaching her preschoolers religion, spreading the faith, leading them in prayers every day and leading chapel services.
Teacher’s Defamation Claim against Former Teacher Barred by Ecclesiastical Abstention Doctrine
In Becker v. Clardy, Case No. 03-10-00376-CV, 2011 WL 6756999 (Tex. App.-Austin Dec. 22, 2011), a Texas appeals court held the ecclesiastical abstention doctrine applicable to the claims of religion teachers at St. Mary’s School in Temple, Texas, thus barring the defamation claim of one teacher against another. The plaintiff was informed by two students that the defendant had made “adverse or negative comments” about him in front of students in her religion class to include a claim that the plaintiff had written “hate mail” that caused her son to “run away” from his class, and “something about [the plaintiff] following (male) students into the (school) restroom.” The school began an investigation of the allegations under its policy prohibiting church personnel from harming the reputation of others, but the defendant resigned and the investigation stopped. The plaintiff then sued the defendant for allegedly slanderous statements, including those mentioned above and others indicating that he had something to do with a teacher being fired and had a “hit list” of teachers whom he wanted to target. The court held that in Texas, the ecclesiastical abstention doctrine applies to tort claims by a church member against another church member who is not in a position of authority. In addition, the court held that the alleged statements and damage to reputation contained in the plaintiff’s pleadings were confined to the church community; also, that the substance of his claims were that the defendant violated the school’s code of ethics and moral standards of the Catholic faith and Canon Law. As a result, the court ruled that it lacked subject matter jurisdiction over the dispute.
Public Opposition Supports Denial of Parochial School’s Modernization Permits
In Academy of Our Lady of Peace v. City of San Diego, Case No. 09cv962-WQH-MDD, 2011 WL 6217026 (S.D. Cal. Dec. 14, 2011), a parochial school proposed to modernize its 86-year-old campus by adding two new facilities. According to the school, its existing campus was “woefully outdated and inadequate to meet” its mission. In accordance with the California Environmental Quality Act, the City of San Diego Development Services Department prepared an Environmental Impact Report that described two houses on the campus subject to demolition as part of the modernization plan as possessing artistic and architectural value, although not historical value. Staff of the Development Services Department and the Planning Commission voted unanimously to approve permits, but the “North Park Planning Committee” and “Between the Heights Neighborhood Group” appealed to the City Council, which denied two of four essential permits. In the complaint, the school argued that the city’s actions were arbitrary and capricious and that the city routinely failed to preserve more valuable structures. The court denied the school’s motion for partial summary judgment for a writ of mandate, on the grounds that the city’s decision was adequately supported through public hearing testimony, findings on the record and written resolution. The court explained, “Public opposition, the applicable neighborhood land use plan, and the unmitigated significant impact that would result from implementation of [the school’s] Modernization Plan create ‘reasonable inferences to support’ the City’s findings and the decision to deny [the school’s] development permits.”
Athletic Association’s Limits on Merit-Based Assistance Upheld
In Seger v. Kentucky High Sch. Athletic Ass’n, Case No. 10-5595, 10-5597, 2011 WL 6415055 (6th Cir. Dec. 21, 2011), the court affirmed dismissal of the plaintiffs’ claims for violations of the First and Fourteenth Amendments against the Kentucky High School Athletic Association, an athletic association of 280 public, private and parochial schools, for its enforcement of Bylaw 13, which places limits on the amount and type of merit-based scholarship assistance a student can receive and still remain eligible to participate in KHSAA-governed high school athletics. The purpose of the rule is to prevent and deter the recruitment of student athletes by KHSAA member schools. The court found no discrimination on the basis of grouping Catholic schools together, because all schools were treated the same. It also found no abridgment of any fundamental right to parent inasmuch as the bylaw restricted only the amount and type of financial aid that a student can receive and retain KHSAA athletic eligibility. In addition, the court held that Bylaw 13 need have only a rational connection to its purpose to satisfy constitutional scrutiny, adding that Bylaw 13 did this even if in certain respects it was both underinclusive and overinclusive in achieving its purpose or, in other words, was less than a “perfect, well-tailored rule.”
RLUIPA Claim Not Ripe for Review
In Guatay Christian Fellowship v. County of San Diego, Case No. 09-56541, 2011 WL 6450743 (9th Cir. Dec. 23, 2011), the U.S. Court of Appeals for the Ninth Circuit held that the church’s RLUIPA claim was unripe because the church failed to complete even one full use permit application during the 22 years it inhabited the property prior to the county’s enforcement efforts and after the district court ordered it to do so as a condition of proceeding with its suit.
Religious Institutions in the News
Congress reauthorized the U.S. Commission on International Religious Freedom. See http://www.christiancentury.org/article/2011-12/religious-freedom-panel-gets-11th-hour-reprieve
Secretary of State Hillary Clinton held a summit of international leaders to discuss combating religious intolerance. See http://www.huffingtonpost.com/2011/12/15/istanbul-process-clinton_n_1152508.html
The Roman Catholic Diocese of Orange has acquired the Crystal Cathedral in Orange County, California. See http://www.csmonitor.com/USA/Latest-News-Wires/2011/1118/Catholic-diocese-to-buy-Crystal-Cathedral
In the final round of a 16-year legal battle, the Supreme Court refused to hear a Bronx church’s petition to hold services on public school property. See http://www.nytimes.com/2011/12/06/nyregion/in-failure-of-legal-bid-churches-set-to-lose-public-school-space.html