June 18, 2019

Religious Institutions Update: June 2019

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

Key Cases

Covert Surveillance Due to Religious Identity is Actionable

Government surveillance of individuals due to their religious identity is actionable under federal law. In Fazaga v. Federal Bureau of Investigation, 916 F. 3d 1202 (9th Cir. 2019), the Ninth Circuit ruled that the plaintiffs stated a claim under the Religious Freedom Restoration Act (RFRA) against government defendants for paying confidential informants to conduct a covert surveillance program to gather covert information about Muslims allegedly due solely to their religious identity. The plaintiffs stated that they altered their religious practices as a result of FBI surveillance in 2006 and 2007; for example, by attending mosque less frequently or trimming beards. The court determined that the FBI agents were entitled to qualified immunity from the RFRA claim because when they conducted the surveillance, it was not clearly established that it would constitute a substantial religious burden on individual congregants. But RFRA did not preclude an implied private action for damages under the Fourth Amendment, known as a "Bivens remedy," against federal agents alleged to have violated a citizen's rights under the Free Exercise Clause, Establishment Clause and Due Process Clause. However, a Bivens claim may not be made if there is an alternative process for protecting the plaintiff's interests. The court ruled that RFRA does not provide an alternative remedial scheme for the plaintiff's discrimination-based Bivens claims and that RFRA disclaims any effect on laws respecting the establishment of religion. The court of appeals directed the district court to determine on remand whether a Bivens remedy is available to the degree the damages remedy is not displaced by RFRA or the Privacy Act.

Parsonage Exclusion from Ministers' Taxable Income Does Not Violate Establishment Clause

In Gaylor v. Mnuchin, 919 F. 3d 420 (7th Cir. 2019), the court ruled that the parsonage exemption from the taxable income of ministers does not violate the Establishment Clause. To reach the question, the court affirmed the lower court's ruling that the plaintiffs had standing, although when the Freedom from Religion Foundation filed the action, two individual plaintiffs had yet to be denied a refund from their tax returns. Under 26 U.S.C. s. 6532(a)(1), an income tax refund suit may be filed no earlier than six months after the refund claim was submitted. The court ruled that it was reasonable to interpret section 6532(a)(1) as rendering a claim "effectively denied" if the Internal Revenue Service (IRS) does not render a decision within six months. As such, the individuals properly alleged a concrete, dollars-and-cents injury, and the foundation had standing because its members did. The court analyzed the constitutionality of the exemption under the Lemon and "historical significance" tests. First, the court determined that the exemption had three secular legislative purposes: 1) to put ministers on an equal footing with secular employees receiving the same benefits; 2) to eliminate discrimination between ministers and 3) to avoid excessive entanglement with religion. Second, the court reaffirmed that the grant of a tax exemption is not sponsorship of religion "since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state." Third, the court ruled that any entanglement caused by the exemption is of a nature approved by the Supreme Court. Last, the court pointed to a lengthy tradition of tax exemptions for religion, particularly for church-owned properties. Consequently, the court ruled that the exemption "falls into the play between the joints of the Free Exercise Clause and the Establishment Clause: neither commanded by the former, nor proscribed by the latter."

Church States Religious Discrimination Claim Against County

In Jesus Christ Is the Answer Ministries v. Baltimore Cnty., 915 F. 3d 256 (4th Cir. 2019), the court ruled that a minister and church sufficiently pled a religious discrimination claim against the county and county board of appeals by alleging that the church faced opposition at a hearing on its first petition to convert a single-dwelling home into a house of worship based on the nature of the ministry and the ethnic background of the minister and congregation and their status as African immigrants; that the board denied the first petition even though the county director of the department of planning did not oppose it; and that the board's decision to dismiss the second petition was contrary to its own legal expert's position. In addition, the pastor sufficiently pled a second claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA) by alleging that her real estate agent told her that such use was permitted on the property, provided that the site plan complied with the county's zoning regulations, that she believed that she could satisfy those conditions and that, although her first petition did not satisfy the conditions, her second petition did. According to the court, churches are "permitted as of right" in the zone if their site plans comply "to the extent possible with [applicable] requirements" and can "otherwise be expected to be compatible with the character and general welfare of the surrounding residential premises."

Labor Commissioner States Wage and Hour Claim on Behalf of Religious Preschool Teachers

In Su v. Wise, 32 Cal.App.5th 1159 (Cal.App. Div. 3 2019), the court ruled that the ministerial exception doctrine does not bar the labor commissioner's lawsuit on behalf of preschool teachers employed by a Jewish synagogue, alleging that the synagogue engaged in wage and hour violations by failing to provide the preschool teachers with rest breaks, uninterrupted meal breaks and overtime pay. The court ruled that the preschool teachers are not "ministers" and, thus, not protected by the ministerial exception doctrine. According to the court, although the temple's preschool curriculum includes religious content and teachers are responsible for some religious instruction and play an important role in temple life, teachers are not held out as ministers, required to be knowledgeable about Jewish belief and practice or required to adhere to the temple's theology.

Religious Hiring Preference Extends to Adjunct Professor of Psychology Position

In King v. Warner Pacific College, 437 P. 3d 1172 (Or. App. 2019), the court of appeals ruled that employment of a Christian college's adjunct professor of psychology was closely connected with or related to the college's primary purposes and, thus, the college was permitted not to hire a Jewish applicant. The college did not fill the position by hiring a Christian applicant, but assigned the duties to current employees who were Christian. The applicant sued under O.R.S. §659A.006(4), Oregon's religious preference exemption. He argued that the college could not reject a non-Christian applicant on the basis of religion without filling the position by preferring and hiring a Christian, and doubted whether teaching psychology was "closely connected with or related to primary purpose" of the college. The court determined that the statute allows the college to prefer an employee over an applicant. The court also ruled that the undisputed facts establish that the college had integrated this faculty position, and the course to be taught, with the college's primary purpose of a faith-infused education.

Third-Party Consent Clause Upheld to Prevent Transfer of Assets

In Executive Bd. of Missouri Baptist Convention v. Missouri Baptist Univ., 569 S.W. 3d 1 (Mo. App. W. Dist. 2019), the court ruled that a religious nonprofit known as The Baptist Home that created a new entity and transferred assets to that entity without approval by the Missouri Baptist Convention, was in violation of its articles. The articles contained a third-party consent clause until The Baptist Home unilaterally deleted it by amendment. The court rejected The Baptist Home's argument that the third-party consent clause was prevented by the statute (Ch. 355) providing default rules for nonprofits. The court also ruled that the trial court could not address the affirmative defenses of a second defendant, Missouri Baptist University, to enforcement of a third-party consent clause without entanglement with an ecclesiastical dispute. The defenses required adjudication whether the convention breached a document stating that the university's purpose was the "transmission of truth" by dictating curriculum related to creationism and the story of Noah's ark.

Establishment Clause Barred Emotional Distress Claim

In Williams v. Kingdom Hall of Jehovah's Witnesses, No. 20170783-CA, 2019 WL 1292377 (Utah App. Mar. 21, 2019), the court ruled that the Establishment Clause barred a member's intentional infliction of an emotional distress claim against the church. The church convened a "judicial committee" to investigate whether the plaintiff had engaged in "porneia," a sin defined by Jehovah's Witnesses as "[u]nclean sexual conduct that is contrary to 'normal' behavior." During the committee meeting, elders played an audio recording of another church member allegedly raping the plaintiff. The court ruled that because the plaintiff's resulting emotional distress claim asked the factfinder to assess the outrageousness of a religious practice, the district court properly dismissed her claim.

Advocacy Organization Lacked Standing to Challenge Hasidic Jewish School Statute

In Young Advocates for Fair Education v. Cuomo, 359 F. Supp. 3d 215 (E.D.N.Y. 2019), the court ruled that a nonprofit advocacy group that sued over the constitutionality of a New York law governing compulsory education at private Hasidic Jewish schools lacked Article III standing and that its claims were not ripe. The plaintiff alleged that an amendment allegedly designed to reduce the amount of secular education provided at Hasidic yeshivas was unconstitutional. The plaintiff argued that it had standing because it had to spend significant effort opposing the amendment and thereby shifted valuable resources away from its traditional advocacy and educational efforts. The plaintiff also claimed that the amendment impaired its fundraising activity, harmed its reputation, dampened enthusiasm for its cause and forced it to take precautions after at least one death threat. The court ruled that none of this was enough to confer standing upon it to challenge the amendment.

Ordinance Accommodating Fraternal Clubs But Not Churches Violates RLUIPA

In Christian Fellowship Ctrs. of N.Y., Inc. v. Village of Canton, No. 8:19-cv-191, 2019 WL 1428344 (N.D.N.Y. Mar. 29, 2019), the court ruled that a church that sought declaratory and injunctive relief against a village, challenging a zoning ordinance that prohibited operation of houses of worship in a downtown retail commercial district, was likely to succeed on the merits of a facial challenge under the equal terms provision of RLUIPA. That provision states that "[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." The village ordinance limited the use of buildings in the zone to specified uses that include "[f]raternal/social clubs/education/charitable or philanthropic." The court determined that the ordinance treats religious assemblies less well than secular assemblies that have equivalent impacts and practical similarities. The court also ruled that the state's alcoholic beverage control law did not justify unequal treatment of churches. That law provides that no retail license for on-premises consumption may be granted for any premises on the same street and within 200 feet of a building occupied exclusively as a school, church, synagogue or other place of worship. "RLUIPA does not permit a state government's municipal subdivisions to single out religious assemblies for exclusion just because the state, by self-imposed laws favoring churches, made them uniquely burdensome to accommodate." To the extent a law that violates the equal terms provision may be saved if it survives strict scrutiny, the court determined that the village failed to present evidence establishing that the state's alcoholic beverage control law supplies a compelling interest to justify excluding churches from the zone, and even if it did, there is no evidence that the downtown area is too small to accommodate bars and the church.

Property Dispute Subject to Ecclesiastical Abstention Doctrine

In Holy Trinity Romanian Orthodox Monastery v. Romanian Orthodox Episcopate of Am., No. 342844, 342846, 2019 WL 1270675 (Mich. App. Mar. 19, 2019), the court of appeal ruled that the trial court should have applied the ecclesiastical abstention doctrine, deferred to the resolution of the property issues by the Romanian Orthodox Episcopate of America (ROEA) respecting disputed property and entered a judgment consistent with the ROEA's determinations. Bishop Ioan Duvlea, under ROEA investigation for misconduct, quit claimed property to a nonprofit that he and others created, and then sued ROEA to quiet title. The court of appeal ruled that that the trial court erred in applying the "neutral principles of law" approach to the property dispute because ROEA is a hierarchical church.

Court Lacked Subject Matter Jurisdiction Over Defamation Lawsuit Against Senior Pastor

In re Alief Vietnamese Alliance Church, No. 01-18-00127-cv, 2019 WL 1915659 (Tex.App. 1st Dist. Ap. 30, 2019), the court ruled that a deacon's defamation case against the senior pastor and church necessarily involved ecclesiastical matters that should not be resolved by the courts. The senior pastor allegedly told deacons of the church that a plaintiff committed adultery, which the plaintiff said was untrue. The court determined that the pastor's statements were made to church officials charged with church governance as an integral part of a struggle over church governance involving both individuals. In addition, the court determined that the statements were made in the context of expelling a member and former leader of the church or the church member's voluntarily quitting his leadership positions and quitting the church, then refusing to meet with church leadership to resolve the dispute, both of which are inherently ecclesiastical concerns.

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.

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