Religious Institutions Update: June 2013
Lex Est Sanctio Sancta
Do you know a "place of public accommodation" when you see it? Federal, state and sometimes local laws entitle persons to the full and equal employment of the goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation without discrimination or segregation on various protected grounds. Federal law identifies as such race, color, religion, disability or national origin. State and local laws commonly include even more extensive grounds, such as marital status, creed, ancestry, sexual orientation, military status, transgender status and political affiliation. Places of public accommodation include some types of facilities owned by religious institutions, such as lodging for transient guests, restaurants, cafeterias, auditoriums, sports and healthcare facilities, but typically exclude places of worship. Places of public accommodation ordinarily must be open to or serve the public, not merely employees or members. To be subject to federal law, they must also participate in interstate commerce. Religious institutions that have not done so should consider consulting with church-state counsel regarding the adoption and consistent enforcement of policies that will ensure compliance with federal, state or local public accommodations laws, or policies and practices that may prevent their facilities from qualifying as places of public accommodation.
Court Upholds Conviction of Clergyman Under Perpetration Statute
In Smith v. Thaler, No. 12-10435, 2013 WL 2158651 (5th Cir. May 21, 2013), the court rejected appellant's Establishment Clause and Due Process Clause challenges to section 22.011 of the Texas Penal Code, which criminalizes "intentionally or knowingly ... caus[ing] the penetration of the sexual organ of another person by any means, without that person's consent" when "the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser." Mr. Smith argued that the statute infringed his alleged constitutional right to engage in sexual activity under the Due Process Clause. For example, he insisted that the statute criminalized a clergy member's sexual activity with his spouse whenever he was also a spiritual adviser to his spouse. The court rejected his overbreadth challenge on the grounds the statute reaches only sexual activity rendered nonconsensual based on a clergy member's abuse of his position and, consequently, that the statute does not implicate any protected sexual conduct. The court also rejected Mr. Smith's vagueness challenge on the grounds that whether he acted as a clergy member and whether he knowingly exploited the victim's emotional dependency on him in his professional character as a spiritual adviser are true-or-false statements rather than subjective judgments. In addition, the court rejected Mr. Smith's Establishment Clause claim on the grounds that the statute does not foster excessive government entanglement with religion. Mr. Smith conceded that the statute had a secular purpose and that it neither advances nor inhibits religion, but he claimed that it expressly incorporates religious doctrine and depends upon a legislative presumption that there can be no consent between a member of the clergy and another. The court ruled otherwise. It found that the only legislative presumption was to establish that a clergy member may not exploit another's emotional dependency after having acted as that person's spiritual adviser. The court also was not convinced of Mr. Smith's ineffective counsel claims, based in part on his appellate counsel's failure to challenge the sufficiency of the evidence that he was acting in his "professional character as spiritual adviser" at the time of the sexual activity in question. The court determined that a reasonable factfinder could have determined that he was acting in his professional capacity at the time of the sexual activity and that the woman with whom he had relations was emotionally dependent on him at the time.
Religious Children Home's Objection to Stay of Lawsuit Grounded in Opposition to Settlement Overruled
In Pedreira v. Sunrise Children's Servs., Inc., No. 3:00cv210-S, 2013 WL 1878944 (W.D. Ky. May 3, 2013), the court overruled the defendant's objection to a stay of the lawsuit grounded in its opposition to a settlement agreement into which the Commonwealth of Kentucky entered into with the plaintiff to resolve all claims between them; the settlement required the Commonwealth to modify its procedures and contracts with private child-caring facilities and child-placement agencies. The defendant is such an organization, and successfully defended the plaintiff's initial claim that the defendant and the Commonwealth discriminated in employment in violation of law. In this case, after the defendant filed a motion for summary judgment joined in by the Commonwealth, but before the motion was fully briefed, the Commonwealth changed sides. The court rejected the defendant's argument that the settlement imposes obligations on it without affording it the opportunity to further litigate the merits of the plaintiff's claim that the Commonwealth violated the Establishment Clause by funding the defendant, an allegedly pervasively religious entity. The court ruled that any such obligations arise only in the event that defendant chooses to enter into contracts with the Commonwealth in the future and, therefore, would be voluntarily assumed. The plaintiffs and the Commonwealth jointly requested a stay of the case pending finalization of the settlement agreement and voluntary dismissal of the action with prejudice. The defendant objected on the ground that it was not afforded an opportunity to respond to the motion. The court overruled the defendant's objection.
Religious Schools Denied Fee Award in Contest over Access to City Athletic Fields
In Arneson v. Grebien, No. 11-190-ML, 2013 WL 2250763 (D.R.I. May 22, 2013), the court denied the defendants' motion for attorneys' fees when the plaintiffs continued to pursue a lawsuit after an earlier decision cast doubt on their ability to prevail. In Rogers v. Mulholland, 858 F. Supp. 2d 213 (1st Cir. 2012), the court ruled against Pawtucket, R.I. residents with children attending Pawtucket public schools who sought to enjoin the city from granting permits for the use of its athletic fields that, according to the plaintiffs, was exclusive, preferential and in violation of constitutional law. (For additional details, see Holland & Knight’s June 2012 Religious Institution Update.) In Rogers, the plaintiffs challenged the city's allegedly preferential allocation of city fields and facilities to religious schools over public schools. In this lawsuit, the plaintiffs challenged the city's alleged policy of providing free, subsidized use of city fields and facilities to religious schools. After the defendants' motion for summary judgment was fully briefed, the plaintiffs voluntarily filed a motion to dismiss their complaint with prejudice, with all parties to bear their own costs and fees. The defendants agreed to the dismissal only upon a finding that it is an adjudication on the merits, leaving open to defendants the opportunity to recover attorneys' fees. The court advised the plaintiffs that the dismissal with prejudice would be a complete adjudication on the merits and gave the plaintiffs the opportunity to withdraw their motion, but the plaintiffs elected not to do so. As such, the court determined the defendants were "prevailing parties" for the purpose of seeking fees under section 1988. Although the court characterized the continuation of the lawsuit as "ill advised," it denied the motion for attorneys’ fees because the lawsuit was not "entirely groundless and/or frivolous."
Missouri Contraception Coverage Opt-Out Provision Preempted by the PPACA
In Missouri Ins. Coalition v. Huff, No. 4:12CV02354 AGF, 2013 WL 2250430 (E.D. Mo. May 22, 2013), the court ruled that provisions of a recently enacted bill (Missouri Senate Bill 749, codified at Mo. Rev. Stat. §376.1199) are void under the U.S. Constitution’s Supremacy Clause because the state law is in conflict with the "contraceptive mandate" of the federal Patient Protection and Affordable Care Act (PPACA). The Missouri statute included an "opt out provision," requiring Missouri health insurers to honor requests by employers to issue policies excluding coverage for contraceptives if' "the use or provision of such contraceptives is contrary to the [employer's] moral, ethical or religious beliefs or tenets." Mo.Rev.Stat. §376.1199.4(1). On November 6, 2012, the Insurance Market Division of Department of Insurance, Financial Institutions, and Professional Registration filed a "Verified Statement of Charges and Request for Orders," charging certain plaintiffs with violation of section 376.1199 by not offering plans excluding coverage for contraceptives. The plaintiffs filed suit for a declaratory judgment and received a temporary restraining order enjoining defendant from enforcing the state law. The court ruled that the state law is in direct conflict with PPACA and that, therefore, various subsections of the statute (1(4), 4, 5, 6(1), 6(2) and 6(3) of §376.1199) are preempted.
Land Use and Zoning Cases State a Claim
In Muslim Community Ass'n of Ann Arbor and Vicinity v. Pittsfield Charter Tp., No. 12-10803, 2013 WL 2250233 (E.D. Mich. May 22, 2013), the court ruled that the plaintiff whose application was denied to rezone property in Pittsfield Township, Michigan, in order to build an Islamic school and community center stated a claim for violation of the Religious Land Use and Institutionalized Person Act's (RLUIPA) substantial burden and nondiscrimination provisions, the Establishment Clause and the Equal Protection Clause.
The court ruled that the determination of whether the defendants' conduct substantially burden the plaintiff's religious exercise and whether other entities allegedly treated more favorably are similarly situated comparators are too fact-intensive to resolve on defendants' motion to dismiss, as opposed to a motion for summary judgment after discovery. The plaintiff identified a number of secular and Christian entities that it alleges are similarly situated comparators. To evaluate them as comparators, the court found that it is required to compare, inter alia, the timing of the applications, the details of the proposed plans, the reasons for the decisions and the zoning laws applicable to requests. The court also ruled that the plaintiff's allegation that defendants' "unique application of the zoning ordinance," allegedly creating a denominational preference against Islam, stated a claim for violation of the Establishment Clause. Because these remaining claims assert that defendants denied the plaintiff's rezoning petition on the basis of animus toward the Islamic faith, the court concluded that the individual defendants are not entitled to qualified immunity. But the plaintiff failed to state viable claims with respect to violations of RLUIPA's limitations and exclusion provision, as well as the Free Exercise Clause, Free Speech Clause, Freedom of Assembly Clause, Procedural Due Process Clause, Substantive Due Process Clause and comparable clauses in the Michigan Constitution. The court found that the plaintiff had no protected property interest in having its plan for the property approved and lacked a protected property or liberty interest with respect to the rezoning of the property. It also ruled that the zoning law is a valid and neutral law of general applicability and that the plaintiff has no right to assemble in an "adequate school."
In Candlehouse, Inc. v. Town of Vestal, N.Y., No. 3:11-cv-0093, 2013 WL 1867114 (N.D.N.Y. May 3, 2013), the court denied the defendant's motion for summary judgment with respect to whether the defendant intentionally discriminated against the plaintiff, a Christian faith-based residential treatment facility for young women struggling with addiction or emotional disorders associated with Teen Challenge, or its students in violation of the Americans with Disabilities Act (ADA) and Fair Housing Act (FHA). The court also found that the plaintiff stated a claim for relief as a result of the defendant denying its request for a reasonable accommodation, but it ruled that the plaintiff is required to prove that a majority of its students are disabled and must show that town officials were discriminatorily motivated and influenced by community animus to prevail.
The plaintiff purchased from the Episcopal Diocese of Syracuse two properties located in a residential area where it planned to house and treat up to 12 students, plus two staff employees and a housemother. Typically, students enroll in the program for between 12 and 36 months. Residents voiced opposition.
The court granted summary judgment to the defendant on: (1) the plaintiff's disparate impact claim under the ADA and FHA for lack of statistical or other evidence; and (2) the plaintiff's RLUIPA cause of action for lack of evidence of a substantial burden on the plaintiff's religious exercise. The court found that the plaintiff is permitted to operate a residential facility for up to five unrelated persons and that the plaintiff had not presented any reason showing "how precluding it from housing an additional seven students coerces it to change how it operates its program in relation to its religious exercise." Furthermore, the court ruled that the plaintiff's argument that it is financially burdened is unpersuasive. It also found inadmissible the defendant's expert testimony that: (1) the plaintiff does not meet the sociological criteria for a functional family and its techniques are ineffective because the testimony is irrelevant; and (2) the plaintiff's residents are not disabled or impaired because the testimony was unrelated to the definitions in the ADA and FHA and trod on the factfinder's role.
Religious Exemption to Immunization Not Available to Those Opposed for Health Reasons
In Check v. N.Y. City Dep't of Educ., No. 13-cv-791, 2013 WL 2181045 (E.D.N.Y. May 20, 2013), the court ruled that the plaintiff did not qualify for a preliminary injunction under a statutory exemption to the requirement for students to receive certain immunizations before attending school for parents who object on religious grounds. N.Y. Pub. Health L. s. 2164(9). The court found that, although the plaintiff was a deeply religious woman whose religion plays a central role in her life, her mistrust of vaccinations was driving her conviction that vaccines pose a severe medical risk to her child's "compromised immune system," not religious convictions.
Church Autonomy Doctrine Not a Basis for Removal
In Carlson v. Calvary Baptist Church of Muskegon, No. 1:13-cv-515, 2013 WL 2189861 (W.D. Mich. May 20, 2013), the court denied the defendant's attempt to remove a lawsuit claiming certain donations were not being used for their intended purpose in violation of state law claims (including promissory estoppel, breach of agreement and breach of fiduciary duty) from the probate court to federal district court. The defendant argued to the probate court that it lacked subject matter jurisdiction, but the probate court denied the motion. On reconsideration, it authorized discovery on "the sole issue of whether Calvary Christian Schools, Inc. is following the doctrinal principles of the Baptist faith tradition." The defendant filed a notice of removal with the federal court on the theory that the order raised a federal question under the First and Fourteenth Amendments. Denying the motion, the federal court found that the defendant had not provided the court with any authority suggesting that, in a civil lawsuit raising only state law claims, an order of the state court not involving an amendment to the complaint somehow raised a federal claim allowing a defendant to remove the action.
Religious Institutions in the News
The Internal Revenue Service is accused of targeting religious institutions. http://www.politico.com/story/2013/05/franklin-graham-irs-targeting-91362.html; http://www.patheos.com/blogs/geneveith/2013/05/irs-also-targeted-religious-groups/; http://articles.washingtonpost.com/2013-05-15/national/39275977_1_irs-audits-tax-exempt-status-organizations
A Gallup survey indicates that most Americans believe religion is losing its influence on American life and that we would be better off if we were more religious. http://www.gallup.com/poll/162803/americans-say-religion-losing-influence.aspx; http://www.washingtonpost.com/blogs/on-faith/wp/2013/05/31/most-americans-agree-you-really-should-go-to-church-more-often/