September 4, 2019

Religious Institutions Update: September 2019

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

Key Cases

Rehearing Denied for Elementary School Against Catholic Teacher's ADA Claim

In Biel v. St. James Sch., 926 F. 3d 1238 (9th Cir. 2019), the petition for rehearing and the petition for rehearing en banc was denied, subject to dissent by Judges Ryan D. Nelson, Jay Bybee, Consuelo M. Callahan, Carlos Bea, Milan D. Smith Jr., Sandra Ikuta, Mark J. Bennett, Bridget Bade and Daniel P. Collins. As previously reported, the panel voted 2-1 to reverse summary judgment granted in favor of the defendant against a former teacher who alleged violation of the Americans with Disabilities Act (ADA) against a Catholic elementary school when it did not renew her contract for the next academic year. The court determined that the ministerial exception doctrine did not prevent her claim. The dissent to the denial of the petition for rehearing, taking its cue from a coalition of religiously diverse organizations and law professors as amici, argued that the panel majority's approach "trivializes the significant religious function performed by Catholic school teachers." The dissent argued that by its own terms, the Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012), cautioned against applying its four "considerations" pertinent to the ministerial exception doctrine as a test. U.S. Supreme Court Justice Samuel Alito, joined by Justice Elena Kagan, called on courts to focus on "the function performed by persons who work for religious bodies." Id. at 198. (Alito, J. concurring). The dissent concluded, "Absent further review of Biel, the implications are stark: Catholic schools in this circuit now have less control over employing its elementary school teachers of religion than in any other area of the country," and "[n]ow thousands of Catholic schools in the West have less religious freedom than their Lutheran counterparts nationally."

Organist's Discharge Is Outside the Scope of Title VII

In Sterlinski v. Catholic Bishop of Chicago, 2019 WL 3729495 (7th Cir. Aug. 8, 2019), the court reflected on the outcome and reasoning of Biel when deciding to affirm grant of summary judgment for the defendant against a church organist who claimed national origin discrimination and retaliation under Title VII. The organist asked the court to follow Biel in deciding whether his role was sufficiently like that of a priest to be called part of the ministry and in "essentially disregarding what Biel's employer (a Roman Catholic school) thought about its own organization and operations." The Seventh Circuit sided with the dissent in Biel, but proposed a different manner of drawing the line between judicial abnegation and "independent judicial resolution of ecclesiastical issues (which Biel embraced)." According to the court, "The answer lies in separating pretextual justifications from honest ones." Once a defendant raises a justification for an adverse employment action, a Title VII plaintiff can attempt to show that it is pretextual. The defense bears the burden of articulating the justification, but the plaintiff bears the burden of showing that the justification is a pretext. The church's assertion that organ playing served important religious purposes was not pretextual. The U.S. Conference of Catholic Bishops had issued a document explaining how music was important to religious services, including organ playing, long before the plaintiff was terminated. The court concluded, "[u]nder the rationale of Hosanna-Tabor" the plaintiff's "discharge is therefore outside the scope of Title VII."

Videographers State Free Speech and Exercise Claims

In Telescope Media Grp. v. Lucero, No. 17-3352, 2019 WL 3979621 (8th Cir. Aug. 23, 2019), the court ruled 2-1 that Minnesota could not require Carl and Angel Larsen, owners and operators of Telescope Media Group, a for-profit corporation, to produce videos of same-sex weddings because the message conflicts with their own beliefs. The court of appeals reversed and remanded the case with instructions for the district court to consider whether they are entitled to a preliminary injunction. Minnesota argued based on the Minnesota Human Rights Act (MHRA) that the Larsens must produce both opposite-sex and same-sex wedding videos, depicted in an equally "positive" light, or none at all. Minn. Stat. 363A.11, subdiv. 1(a)(1) and 363A.17(3). The Larsens argued that the state statutes violate their free speech, free exercise and equal protection rights; pose an unconstitutional condition and are unconstitutionally vague. The court of appeals agreed with respect to the Larsens' free speech and free exercise claim, but disagreed with them as to the rest. The court treated the Larsens' videos as a form of speech, whereas Minnesota argued it was mere conduct. They retained editorial control and sought to convey a message designed to "affect public attitudes and behavior." The court ruled that the MHRA interfered with their speech in two ways: by compelling them to speak favorably about same-sex marriage if they choose to speak favorably about opposite-sex marriage and as a content-based regulation of their speech. According to the court, "Minnesota cannot 'coerce [them] (stet) into betraying their convictions' and promoting 'ideas they find objectionable.' " The court determined that strict scrutiny applied to this interference, whereas Minnesota argued that intermediate scrutiny applied. Moreover, the court ruled that "regulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be." The court allowed the Larsens' free exercise claim as a hybrid claim tied to religiously-motivated speech. Judge Jane Kelly concurred in part and dissented in part on the grounds that the Larsens "remain free to communicate any message they desire—about same-sex marriage or any other topic—or no message at all," but may not "operate a public accommodation that serves customers of one sexual orientation but not others."

Homeless Shelter Not Subject to Municipal Public Accommodations Law

In Downtown Soup Kitchen v. Mun. of Anchorage, No. 3:18-cv-00190-SLG, 2019 WL 3769623 (D. Aka. Aug. 9, 2019), the court granted the plaintiff's motion for preliminary injunction with respect to its homeless shelter against imposition of public accommodations laws on the grounds the shelter is exempt under the municipal code. The plaintiff is a faith-based nonprofit that offers free food, showers, ministry and other services to homeless people, as well as overnight shelter to homeless women. The plaintiff accepts only persons who are female at birth into its overnight shelter. The plaintiff contends that it would be against the shelter's religious beliefs to allow persons who were male at birth to disrobe and sleep in its shelter next to persons who were female at birth. "Jessie Doe," a transgender individual, filed a complaint with the Anchorage Equal Rights Commission. After refusing Younger abstention and determining that the plaintiff had standing, the court concluded that the plain text of AMC s. 5.20.020 excludes homeless shelters from its prohibition, and that AMC s. 5.20.050 should be read in the same manner even though it does not have the same express exemption; otherwise, the exemption contained in AMC s. 5.20.020 would have no effect. By ruling thus, the court was not required to reach the plaintiff's argument that the provisions violate the constitution as applied.

Court Lacked Jurisdiction Over Synod Placing Church Under Synodical Administration

In Eltingville Lutheran Church v. Rimbo, 174 A.D.3d 856 (N.Y.App. Div. 2d Dep't 2019), the court affirmed dismissal of Eltingville Lutheran Church's lawsuit seeking a determination that the Metropolitan New York Synod of the Evangelical Lutheran Church in America's determination to place the church under synodical administration was unlawful, and seeking to enjoin the synod from closing the church, seizing or taking control of its property or interfering with its operations, including operation of a school. The court ruled that a determination to impose synodical administration upon the church could only be made upon finding that "the membership of a congregation has become so scattered or so diminished in numbers as to make it impractical for such a congregation to fulfill the purposes for which it was organized or that it is necessary for this synod to protect the congregation's property from waste and deterioration." As such, the determination is "a nonjusticiable religious determination," and therefore the trial court lacked subject matter jurisdiction to consider it. The church sought to disaffiliate from the synod but only after the imposition of synodical administration.

Church States Discrimination Claims Against County in Connection with Renovation Project

In Morningstar Fellowship Church v. York Cnty., S.C., No. 0:18-cv-03077, 2019 WL 2502049 (D. S.C. June 17, 2019), the court granted in part and denied in part the defendants' motion to dismiss the plaintiff's several claims grounded in alleged religiously discriminatory treatment by York County, South Carolina, of the plaintiff's effort to renovate Heritage Tower, a 21-story partially-completed building consisting of 500-plus residential rooms. In 1989, PTL's Jim Bakker was convicted for overselling memberships to Heritage Tower. The county "mandated" that the plaintiff enter into a development agreement to renovate the building that provided for demolition if certain conditions were not met. On March 5, 2010, the county notified the plaintiff that it was in default of the agreement because the plaintiff had not provided it with a performance and payment bond. The plaintiff responded that the county failed to provide it with formal notification of approval of the site development plan, which was the prerequisite to the bonding process, and by issuing the default made it impossible for the plaintiff to secure any bonding or financing. The plaintiff sued after the county rejected a settlement worked out by two county commissioners and the plaintiff. The court dismissed the plaintiff's Section 1983 and Section 1985 civil rights claims as barred by the statute of limitations, but allowed the plaintiff's South Carolina Religious Freedom Act and state constitutional claims to proceed. The court also allowed the plaintiff to amend to add a federal Religious Land Use and Institutionalized Persons Act (RLUIPA) claim for unequal treatment and discrimination and ruled that it was likely to state a claim based on two disparaging emails sent by county officials comparing the plaintiff to PTL.

Religious Institutions in the News

  • The U.S. Department of Labor has released a regulation to clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246, as amended.
  • During the period from 2007 to 2017, government restrictions on religion increased markedly around the world, and social hostilities involving religion also rose.

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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