September 26, 2018

Religious Institutions Update: September 2018

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

Key Cases

Establishment Challenge to Presidential Proclamation Subject to Rational Basis Review

In Trump v. Hawaii, 138 S.Ct. 2392 (2018), the U.S. Supreme Court ruled 5-4 that the lowest level of constitutional scrutiny, rational basis review, must be applied to an Establishment Clause challenge to Presidential Proclamation 9645 indefinitely barring entry of nationals from five predominantly Muslim countries. The court determined that apart from any religious hostility allegedly reflected in the president's statements as a candidate and as president, there was persuasive evidence that the facially neutral proclamation had a legitimate grounding in national security concerns in preventing entry of nationals who could not be adequately vetted and in inducing other nations to improve their identity-management and information-sharing practices, and that the proclamation's policy denying certain foreign nationals the privilege of admission reflected the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Although five of the seven countries affected are majority Muslim, the proclamation is facially neutral and covers just 8 percent of the world's Muslim population and was limited to countries that were previously designated by Congress or prior administrations as posing national security risks; thus, the proclamation did not support an inference of religious hostility on rational basis review. The court assumed without deciding that the plaintiffs' claims are reviewable, notwithstanding consular nonreviewability. The court rejected the plaintiffs' claim that the proclamation is inconsistent with the Immigration and Nationality Act.

Police May Stop Prayer in Certain Circumstances

In Sause v. Bauer, 138 S.Ct. 2561 (2018) (per curiam), the U.S. Supreme Court reversed dismissal on qualified immunity grounds of an apartment resident's lawsuit under the Free Exercise Clause against current and former members of a town police department and current and former mayors for ordering her to stop praying. On the one hand, the court left no doubt that the First Amendment protects the right to pray as an exercise of religion, but on the other hand, determined, "there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place"; for example, when to avoid delaying transportation to jail once a suspect is under arrest. The court remanded the case for "consideration of the ground on which the officers were present in the apartment and the nature of any legitimate law enforcement interests that might have justified an order to stop praying at the specific time in question."

Connecticut RFRA Is Not a Bar to a Discrimination Claim

In Trinity Christian Sch. v. Comm'n on Human Rights and Opportunities, 329 Conn. 684 (2018), the Supreme Court of Connecticut affirmed dismissal of the plaintiff's appeal of the Commission on Human Rights and Opportunities' denial of the school's motion to dismiss a former employee's complaint for sex, marital status and pregnancy discrimination under Title VII and the Connecticut Fair Employment Practices Act. The court agreed that denial of the plaintiff's motion to dismiss was not immediately appealable under Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012). It also ruled that the provision of the Connecticut Act Concerning Religious Freedom [modeled after the federal Religious Freedom Restoration Act (RFRA)] stating that it shall not be construed to authorize the state "to burden any religious belief" does not confer on religious institutions such as the plaintiff immunity from employment discrimination lawsuits. General Statutes §52-571b(d). The Supreme Court of Connecticut concurred that this provision is a rule of construction, not a grant of immunity.

Church Successfully Challenges Zoning Code Without Application

In Redemption Cmty. Church v. City of Laurel, Md., No. PJM 18-411, 2018 WL 3756739 (D. Md. Aug. 8, 2018), the court denied the city's motion to dismiss the plaintiff's claims for violation of both RFRA (equal terms, nondiscrimination and substantial burden) and the First Amendment (free exercise, free speech, peaceable assembly and Establishment Clause) in relation to its purchase of a property in the city for the purpose of operating a coffee shop during the week and a house of worship on Sunday mornings. After initially receiving a parking waiver for both the coffee shop and church services, the city revoked it on the grounds that church representatives purportedly submitted evidence at the hearing that contradicted representations it had made in the waiver application. Three days after church trustees visited the property with the city fire marshal, the City Council proposed an amendment to the City Code that would exclude nonprofit businesses from operating in the same zone. Then, the City Council proposed and adopted an amendment to the City Code's "Table of Commercial Uses," changing "house[s] of worship" that are "located on a lot less than 1 acre in size" from a "permitted" use to a "permitted [use], subject to the approval of a special exception." In contrast, the amendment stated that the following institutions "would be deemed permitted without a special exception: "art and cultural centers, cinemas and 'legitimate theater[s]'; open microphone venues; 'Disc Jockeys'; karaoke; poetry or dramatic readings; theatres or halls for the performing arts, symphony, or community theatre; health clubs or spas; libraries, museums and similar 'noncommercial institutions'; 'standard' restaurants; and schools for 'business, art, music, and similar uses.'" The plaintiff submitted a second application for a parking waiver and received it for a for-profit coffee shop, but never applied for a parking waiver or permit to operate as a house of worship. The city argued that the court should dismiss the complaint for lack of ripeness because the church never applied for, and was never denied, a special exception, but the court found that the plaintiff was not required to go through the application process because it adequately alleged that the special exemption process unfairly targets houses of worship, the enactment of the amendment was related to use of the property for worship purposes and certain comments of city officials suggested discriminatory intent.

Court Had Subject Matter Jurisdiction to Decide Whether Churches Merged

In Pure Presbyterian Church of Washington v. Grace of God Presbyterian Church, No. 171098, 2018 WL 3913151 (Va. Aug. 16, 2018), the Supreme Court of Virginia ruled that the trial court had subject matter jurisdiction to adjudicate a dispute between two Korean-speaking churches that had agreed to merge and entered an order enforcing the merger agreement. Pure Presbyterian filed for Chapter 11 bankruptcy. Learning of this, the Grace of God Presbyterian Church inquired about a merger. Pure Presbyterian was located in a more desirable location. The churches belonged to separate Korean Presbyterian denominations, but church officials agreed that they were doctrinally compatible. The Pure Presbyterian congregation approved the merger on Feb. 14, 2016, and the Grace Presbyterian congregation did likewise on Feb. 24, 2016. Joint services began on March 27, 2016. Grace Presbyterian listed and sold its property. Leaders drafted a "Merger Agreement" memorializing the merger and specifying pastoral roles. On Nov. 6, 2016, leaders of the unified church received an email stating that Pure Presbyterian wished to withdraw from the "proposed" merger. On Dec. 5, 2016, the pastor and a deacon discovered that they were locked out of the church building. In addition, Pure Presbyterian attempted to sell the property to a third party. At trial, Pure Presbyterian took the position that there was no merger contract and that, instead, the churches had agreed to a trial period so they could "get to know about the denomination and then the church." The jury returned a special verdict in favor of Grace Presbyterian, finding that the parties had reached a merger agreement. On appeal, Pure Presbyterian raised lack of subject matter jurisdiction for the first time. The Supreme Court of Virginia affirmed the judgment on the grounds that theological questions played no role in the jury's resolution of whether there was a merger agreement and whether it was breached.

State Could Not Require Priest to Breach Confessional Without Satisfying RFRA

In Ronchi v. State, No. 5D18-194, 2018 WL 2988975 (Fla. 5th DCA June 15, 2018), the court of appeal held that a circuit court order granting a Catholic priest's motion for protective order, in part, and denying the motion in part, after the priest was served with a witness subpoena requiring him to testify in a criminal case regarding certain communications that took place during confession contravened the Florida Religious Freedom Restoration Act (FRFRA). The trial court found that the communications between the priest and alleged victim of sexual abuse occurred within confession. It focused almost exclusively on the Florida Evidence Code in determining that the communications were privileged under section 90.505, the privilege could be asserted by both the priest and the victim, and the priest had partially waived the privilege during his conversation with the victim's mother and her friend. As to whether the priest disclosed the abuse, the mother testified, "[N]ot directly, but it could be understood from the conversation." The court of appeal ruled that FRFRA should control the case, rather than section 90.505, meaning that the state must establish that coercing the priest's testimony furthers a compelling governmental interest and is the least restrictive means to further that interest. The court ruled that it is undisputed that the state has a compelling governmental interest in prosecuting sex offenses perpetrated against children, but disagreed that the state met the second test because: (1) the priest's testimony would, at most, be corroborative evidence; (2) the case does not involve a child victim who, because of his or her age, might be unable to adequately testify about the alleged sexual abuse; and (3) the state could seek to have the alleged victim testify about her purported prior disclosure of sexual abuse to the priest. The court quashed the trial court order. Concurring, Judge Richard Orfinger argued that the trial court also misinterpreted section 90.505 because while the clergy can assert the privilege, only the penitent can waive it.

Mandatory Immunization Without Exemption for Personal Belief Passes Strict Scrutiny

In Brown v. Smith, 24 Cal.App5th 1135 (Cal.App. 2d Dist. 2018), the court of appeal ruled that even if strict scrutiny applied, a state law requiring mandatory immunization for schoolchildren, without exemption for personal beliefs after amendment, did not violate the free exercise clause of the state constitution; the right to attend school; the state equal protection clause despite the continuation of other exemptions; or section 24175(a), which prohibits medical experimentation on a person without his or her informed consent. In addition, the court ruled that the medical exemption provision was not void for vagueness. Three of the six plaintiffs described themselves as Christians, two of whom are opposed to the use of fetal cells in vaccines; the third has children who have had most of the recommended vaccinations. The other three plaintiffs allege a philosophical and personal objection to the vaccines. The court determined that the right to practice religion freely does not include liberty to expose the community or the child to communicable disease, or the latter to ill health or death. Furthermore, the court found that the right of education is no more sacred than a state's interest in protecting the health and safety of its citizens, and, in particular, schoolchildren.

School Lacked RFRA Claim Due to Exclusion from a Development Zone Because It Would Not Maximize Revenue

In Tree of Life Christian Schs. v. City of Upper Arlington, Ohio, No. 17-4190, 2018 WL 4443591 (6th Cir. July 31, 2018), the court of appeals affirmed the district court's grant of summary judgment to the city on the school's claim that the Unified Development Ordinance violated the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA) by prohibiting the school from operating in a commercial office district. The court adopted the Eleventh Circuit's standard for a prima facie case under the equal terms provision as requiring proof that the plaintiff (1) is a religious assembly or institution, (2) is subject to a land use regulation and (3) is treated on less than equal terms, compared with (4) a nonreligious assembly or institution. The court determined that a comparator for an equal terms claim must be similarly situated with regard to the regulation at issue and that the phrase "legitimate zoning criteria" best captures the idea that the comparison required by RLUIPA's equal terms provision is to be conducted with regard to the legitimate zoning criteria set forth in the municipal ordinance in question. The court concluded that revenue maximization is a legitimate regulatory purpose for a zoning ordinance, and that the school presented no evidence suggesting that a nonprofit daycare is similarly situated to its proposed school in terms of capacity to generate revenue. The daycare generated more. The court rejected the school's other proposed comparator, partially used offices.

Ministerial Exception Doctrine Bars Former Pastor's Breach of Contract Claim

In Lee v. Sixth Mt. Zion Baptist Church of Pittsburgh, No. 17-3086, 2018 WL 4212091 (3d Cir. Sept. 5, 2018), the court of appeals affirmed the district court's application of the ministerial exception doctrine barring it from ruling in favor of a former pastor with respect to his breach of employment contract claim. The pastor entered into a 20-year term contract with the church, but 20 months later, the church terminated him for three reasons: (1) failures in financial stewardship, (2) failures in spiritual stewardship and (3) failures to respond to church leaders. The court found that "[w]hile the amount of church contributions and members is a matter of arithmetic, assessing Lee's role, if any, in causing decreased giving and reduced membership in the church requires a determination of what constitutes adequate spiritual leadership and how that translates into donations and attendance—questions that would impermissibly entangle the court in religious governance and doctrine prohibited by the Establishment Clause.... Moreover, parsing the precise reasons for Lee's termination is akin to determining whether a church's proffered religious-based reason for discharging a church leader is mere pretext, an inquiry the Supreme Court has explicitly said is forbidden by the First Amendment's ministerial exception."

Religious Institutions in the News


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.

Related Insights