May 20, 2015

Religious Institutions Update: May 2015

Lex Est Sanctio Sancta
Holland & Knight Update
Nathan A. Adams IV

Timely Topics

Religious institutions commonly keep ministry supporters and members abreast of developments through newsletters, correspondence and other communications. Sometimes, the developments reported are embarrassing to those concerned; e.g., in connection with employee or member discipline, and can give rise to lawsuits. Defamation requires at least negligent publication of a false statement of fact that exposes a person to hatred, ridicule, contempt or disgrace. Less well known, literally true statements may give rise, in some jurisdictions, to false light or defamation by implication claims if the true statements are juxtaposed in such a manner as to create a false impression. Prosser and Keeton on the Law of Torts puts it this way: "If a defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts, he may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct." The false light plaintiff must prove that the publicity would be "highly offensive to a reasonable person," whereas a defamation plaintiff must prove injury to his or her reputation in the community. In some jurisdictions, defamatory prejudice need not be in the eyes of everyone in the community; it may be enough that the communication would tend to prejudice the person in the eyes of a substantial and respectable minority of them. Consequently, statements that are perfectly acceptable within a religious community may still give rise to defamation if published outside of the religious community. Expect this problem to grow as ethics continue to diverge between the culture at large and religious institutions. If you do not have a publication review policy, or if you receive a demand letter or are named in a lawsuit, we can assist you.

Alabama Tax Credit Scholarship Program Neutrally Benefiting Religious Schools Upheld

In Magee v. Boyd, No. 1130987, 1131020 and 1131021, 2015 WL 867926 (Ala. Mar. 2, 2015), the court considered and upheld the constitutionality of a tax credit scholarship program called the Alabama Accountability Act (AAA) against a series of state constitutional challenges. At the outset, the court ruled that enactment of amendments to the AAA did not render moot the plaintiffs' procedural claims and rejected the defendants' argument that the AAA raises a political question. But the court went on to find that a substitute version of the original bill did not so change the general purpose of the original bill as to render the AAA unconstitutional procedurally. The substitute bill contained the provisions for flexibility contracts between schools and the state to advance the benefits of local school and school system autonomy and included the tax credit program to provide for state accountability for students in failing schools. In addition, the court ruled that, although the substitute version of the bill was not read "on three different days" in the house, the legislature complied with the requirement with three readings, including the original version that was germane to and not inconsistent with the original purpose. Also, the court ruled that the bill did not violate the "single-subject" requirement as relating both to school flexibility contracts and creating tax credits on the grounds that the single subject at issue is education reform through accountability, not involving any appropriation. On the merits, the court ruled that the AAA does not violate the state constitutional prohibition against appropriating money to non-state charitable or educational institutions because (1) "appropriations" are directly related to moneys in the state treasury; (2) the refundable tax credits in section 8 of the AAA are made to the parents of students transferring from a failing school and are not paid to a non-state charitable or educational institution; and (3) section 9 of the AAA does not involve a payment to a non-state charitable or educational institution because the taxpayer receives a tax credit for donations to a scholarship-granting organization. The court also ruled that the AAA (4) does not violate the Alabama constitutional prohibition against creating new debt because the tax credits are determined on a yearly basis and paid only from that amount of sales tax revenue necessary to cover the income tax credits for that year; (5) does not violate the constitutional prohibition against appropriating money raised for public schools to the support of religious schools because the AAA does not involve appropriations and because the AAA is neutral with respect to religion, and any governmental assistance to religious schools will flow only through the private choice of the students' parents; and (6) the AAA does not violate the state Establishment Clause for a similar reason.

U.S. Supreme Court Vacates and Remands Contraceptive Coverage Certification Case

In Michigan Catholic Conf. v. Burwell, No. 14-701, 2015 WL 1879768 (U.S. Ap. 27, 2015), the United States Supreme Court vacated the judgment of the Sixth Circuit Court of Appeals, which ruled against various religious employers associated with the Michigan Catholic Conference and Catholic Diocese of Nashville. They sought an injunction under the Religious Freedom Restoration Act against the Patient Protection and Affordable Care Act's contraceptive coverage mandate, including the requirement for a religious organization to complete "EBSA Form 700 – Certification." (See Holland & Knight's "Religious Institutions Update, July 2014") The plaintiffs argue that the certification requirement makes them complicit in the loss of human life. The Sixth Circuit ruled that, because the plaintiffs may obtain the accommodation from the mandate without providing, paying for, and/or facilitating access to contraception, their religious exercise is not substantially burdened by having to complete the form. According to that court, the plaintiffs do not "facilitate" access to contraception by executing the certification because federal law is the source of the obligation. The U.S. Supreme Court remanded the case to the Sixth Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __ (2014).

Ministerial Exception Doctrine Bars Youth Director's Sexual Harassment Claim

In Preece v. Covenant Presbyterian Church, No. 8:13cv188, 2015 WL 1865231 (D.Neb. Ap. 22, 2015), the court ruled that the "director" overseeing the youth ministry of the church was a "minister," and that the ministerial exception doctrine required dismissal of his claims for gender and marital status discrimination, and retaliation for complaining about sexual harassment committed by his supervisor. With regard to marital status, the plaintiff alleges he filed for divorce during his employment and became the single parent of four children shortly before his termination. Beforehand, the plaintiff alleges he was subjected to "episodes of uninvited touches, elongated frontal body hugs, back rubs and neck massages, private office visits, and unsolicited invitations for drinks, dinner and companionship" on a daily basis. The plaintiff argued that he was not a minister and his duties were primarily secular. He had received divinity training, was ordained but not by the defendant, listed "minister" as his occupation on his tax form, accepted an offer of employment as "Director of Youth Ministry," chaperoned mission trips, taught confirmation class and Bible class, and taught youth the importance of Holy Scripture. The court concluded, "The plaintiff's job duties reflected a role in him conveying the defendant's message and carrying out its mission" and, therefore, he was a minister. Although the court noted disagreement about whether the ministerial exception doctrine precludes sexual harassment claims, it sided with those that bar them: "In this case, the defendant's treatment of the plaintiff in relation to his sexual harassment allegation clearly implicates an internal church decision and management, rather than the outward physical acts of one pastor. Accordingly … this court finds the plaintiff's sexual harassment claim is factually entwined and related to the plaintiff's other claims, which the court may not review without excessive government entanglement with religion in violation of the First Amendment."

CFO Fails to State Age and Religion Claim Against Parochial School

In Newbrough v. Bishop Heelan Catholic Schs., No. C13-4114, 2015 WL 759478 (N.D. Iowa Feb. 23, 2015), the plaintiff sought judgment against the defendants, including the school superintendent and director of the diocesan office of education, for terminating him from his employment as chief financial officer as a result of religious and age discrimination and for retaliation when the school downgraded his position and eliminated another to meet budget. The school replaced Newbrough with a younger female who made less money, eliminated the position of a female over 40, and terminated Newbrough's volunteer position as the varsity boys' basketball official scorekeeper after he filed a complaint with the Iowa Civil Rights Commission. The court ruled that Newbrough has no claim for retaliation for his termination from a non-compensated volunteer position. In addition, the court ruled that in a case such as this involving a reduction in force, the plaintiff has to show something beyond replacement by a younger person to state a claim for age discrimination to show that age was a factor in his discharge. The court rejected the plaintiff's argument that the defendants could have obtained the financial support to avert the budget crisis. The court also dismissed the plaintiff's religion discrimination claim on the basis of the exemption contained within Title VII for religious organizations. The plaintiff argued that the exemption does not apply because his duties were primarily secular, but the court rejected the relevance of this factual distinction. The court ruled that the individual plaintiffs could not be liable under Title VII and, although they could be under the state civil rights act, the court declined supplemental jurisdiction over these claims once it dismissed all of the federal claims.

Ministerial Doctrine Bars Spiritual Counselor's Race, Age and Sex Discrimination Claims

In Rogers v. Salvation Army, No. 14-12656, 2015 WL 2186007 (E.D. Mich. May 11, 2015), the court ruled that a spiritual counselor to those with addictions in the "spiritual development department" for the defendant was a "minister" and that her claims for race, age and sex discrimination were barred. The plaintiff admitted that her primary responsibility was to help clients "to develop a relationship with God, through Jesus Christ, and then grow in that personal relationship." In any event, the court ruled that she failed to state a prima facie case for reverse race discrimination as a white female. As a majority plaintiff, she was required to present evidence of "unlawful consideration of race as a factor in hiring," which she failed to do, and to show that "similarly situated African-American co-workers received more favorable treatment than her," which she did not. In addition, the court found that the defendant presented ample evidence of legitimate, non-discriminatory reasons for her transfer and termination. The court also ruled that the plaintiff's claim for age discrimination is barred for lack of any direct evidence. As to sexual harassment, the court ruled that it lacked the necessary severity, the incidents involved were not clearly tied to sex and the plaintiff never faced an ultimatum regarding her job or benefits due to her sex.

Court Lacked Subject Matter Jurisdiction to Issue a TRO and Vacate a Church Vote

In Greater Fairview Missionary Baptist Church v. Hollins, No. 2013-IA-01951-SCT, 2015 WL 1355129 (Miss. Mar. 26, 2015), the court ruled that a church's dispute over whether to retain a pastor accused of inappropriate sexual contact with a minor was purely ecclesiastical in nature, such that, under the First Amendment, the chancery court was deprived of subject matter jurisdiction to issue a temporary restraining order to prevent a membership meeting and, when the meeting happened anyway, to vacate the vote. The court confined its decision in Pilgrim Rest Missionary Baptist Church ex rel. Bd. of Deacons v. Wallace, 835 So. 2d 67 (Miss. 2003) to a dispute between two factions of a church fighting over money and property and arguing about what bylaws to follow.

Individual Denied Admission to Public Degree Program When He Mentioned God Stated Establishment Clause Claim

In Jenkins v. Kurtinitis, No. ELH-14-01346, 2015 WL 1285355 (D.Md. Mar. 20, 2015), the court ruled that an individual denied admission to the Community College of Baltimore County's degree program in radiation therapy because, inter alia, he scored poorly on his interview when he mentioned the importance of God in his life stated a claim for injunctive relief for violation of the Establishment Clause and Article 36 of the Maryland Declaration of Rights (protecting religious freedom). The chief interviewer said this: "I understand that religion is a major part of your life and that was evident in your recommendation letters, however, this field is not the place for religion. We have many patients who come to us for treatment from many different religions and some who believe in nothing at all. If you interview in the future, you may want to leave your thoughts and beliefs out of the interview process." The court denied the plaintiff's free speech claim and claims against the interviewer's supervisors, but in doing so found that heightened scrutiny would apply to the plaintiff's claim had he spoken on a matter of public importance. The court rejected the applicability of public forum doctrine to the analysis.

Church Schism Case Partially Dismissed and Remanded for Further Proceedings

In Pilgrim's Rest Baptist Church v. Pearson, Nos. 318797 and 319571, 2015 WL 1880202 (Mich.App. Ap. 23, 2015), the court confronted a church schism case arising from facts relating to the conviction of the pastor on one count of embezzlement of roughly $237,000 from the church. The court affirmed dismissal of the pastor's counterclaims for breach of contract, promissory estoppel, unjust enrichment, fraud, tortious interference with contract, intentional infliction of emotional distress and civil conspiracy under the ecclesiastical abstention doctrine. But the court allowed the dispute over property rights and a claim of conversion to go forward on the theory that it does not require the court to "stray into questions of religious doctrine or ecclesiastical policy." The court affirmed in part and reversed in part the lower court and remanded for further proceedings.

Muslim School Fails to State RLUIPA Rezoning Claim

In Muslim Community Ass'n of Ann Arbor v. Pittsfield Charter Twp., No. 12-cv-10803, 2015 WL 1286813 (E.D. Mich. Mar. 20, 2015), the court granted summary judgment without prejudice to the township on the plaintiff Islamic association's claim for violation of the Religious Land Use and Institutionalized Person's Act (RLUIPA) when the association was prevented from building a school on property as zoned. The court found that the association had no legally cognizable interest in the property, as opposed to an unwritten interest, and the association's interest was not ripe for lack of a final decision from the zoning administrator and Zoning Board of Appeals. The court tolled the statute of limitations and left the door open for further proceedings.

Religious Institutions in the News

Between 2007 and 2014, the Christian share of the U.S. population declined from 78.4 percent to 70.6 percent (Pew Research Center). 

White Christians are now a minority in 19 states (The Huffington Post). 

Court dismisses challenge to Florida Tax Credit Scholarship Program (Orlando Sentinel). 

Zaytuna College in Berkeley, Calif., became the country's first accredited Muslim college (The Washington Post).

The United States Commission on International Religious Freedom issued its 2015 Annual Report.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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