December 16, 2019

Religious Institutions Update: December 2019

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

Key Cases

School States Claim Against State Superintendent for Unconstitutional Discrimination

In Bethel Ministries, Inc. v. Salmon, No. SAG-19-01853, 2019 WL 6034988 (D. Md. Nov. 14, 2019), the court denied Maryland State Superintendent Dr. Karen B. Salmon's motion to dismiss the plaintiff's complaint for violation of the free exercise, due process and establishment clauses by virtue of excluding it from the Broadening Options and Opportunities for Students (BOOST) program, which provides scholarships for lower-income students to attend certain nonpublic schools in Maryland. Participating schools must not discriminate in student admissions on the basis of race, color, national origin or sexual orientation, provided the nondiscrimination requirement states that schools are not required "to adopt any rule, regulation or policy that conflicts with its religious or moral teachings." Bethel Ministries is a Pentecostal Christian Church that operates Bethel Christian Academy, a preschool through grade eight school. Bethel describes itself as "unabashedly Christian" and states that it supports the biblical view of marriage defined as a covenant between one man and one woman, but Bethel does not consider sexual orientation in the admissions process. Following an unusual closed session, the advisory board voted to exclude Bethel from the BOOST program anyway, while it voted to approve two other Christian schools that shared Bethel's beliefs and policies on marriage and sexual conduct. The Maryland State Department of Education (MSDE) sent a letter demanding repayment of $102,600 for the years that Bethel had participated in the program, whereupon Bethel sued Superintendent Salmon under 42 U.S.C. §1983. The court determined that the plaintiff plausibly pleaded that the advisory board, in determining that Bethel violated the nondiscrimination provision, unjustly conflated the school's religious beliefs with discriminatory behavior. According to the court, when the government imposes a financial burden on entities because of the content of their speech, such an action may infringe the First Amendment.

Parent Fails to State Claim Against Regulation of California Boarding School

In Teen Rescue v. Becerra, No. 2:19-cv-00457, 2019 WL 4511622 (E.D. Cal. Sept. 18, 2019), the court ruled that a class representative of the parents and guardians of the students attending River View Christian Academy lacks standing to challenge application of the California Community Care Facilities Act (CCFA) to the school. Earlier, the court dismissed Teen Rescue, a California religious corporation that operates the Christian boarding school under the Younger abstention doctrine. The school was exempt from licensure as a community care facility until 2016, when the legislature changed the definition of private alternative boarding school to mean "a group home licensed by the [D]epartment [of Social Services] to operate a program ... to provide youth with 24-hour residential care and supervision, which, in addition to providing educational services to youth, provides, or holds itself out as providing, behavior-based services to youth with social, emotional or behavior issues." Teen Rescue disputes this categorization, alleging it does not provide therapeutic activities or engage in behavior modification other than providing students with a combination of a structured environment and spiritual guidance. The school also alleges the CCFA impermissibly requires private alternative boarding schools to allow students full autonomy on matters of religion and sexual identity, and states that its religious practices violate those portions of the CCFA. The court ruled that, because nothing in the CCFA prevents the plaintiff from enrolling his child in a religious boarding school that is exempt from the CCFA, any invasion of his First Amendment rights or ability to raise his child in the way he sees fit is too abstract to amount to an immediate danger or "injury in fact."

Religious and Moral Exemption to Contraceptive Coverage Mandate Enjoined

In California v. U.S. Dep't of Health & Human Servs., 941 F. 3d 410 (9th Cir. 2019), the court affirmed preliminary injunctive relief and determined that several states and the District of Columbia were likely to succeed on the merits of their claim that implementation of rules creating a religious and moral exemption to the contraceptive coverage mandate contained within the Patient Protection and Affordable Care Act (ACA) violated the Administrative Procedure Act (APA), and that the ACA's contraceptive mandate did not violate the Religious Freedom Restoration Act (RFRA). The court determined that the plaintiffs had standing because, allegedly, implementation of the rules created a reasonably probable threat to their economic interests, as they would lead to women losing employer-sponsored contraceptive coverage. They alleged the rules would result in both increased reliance on state-funded family-planning programs and a decrease of the use of contraception, leading to unintended pregnancies and an increase in related state-borne costs. Furthermore, the court determined that the plaintiffs were likely to succeed on the merits of their claim because the rules creating the exemption were inconsistent with the ACA's purpose to promote access to women's healthcare and thus violated the APA; the rules required group health plans and insurance issuers to cover preventative contraceptive care without cost sharing and nothing in the ACA delegated to any agency the discretion to exempt who must meet the mandate. The court ruled that the mandate does not violate RFRA because an employer with sincere religious objections to contraceptive coverage can send a self-certification form to the insurance issuer or third-party administrator (TPA), or send notice to the U.S. Department of Health and Human Services (HHS), and once the employer objected, all actions taken to pay for or provide employees with contraceptive care were carried out by a third party, either the issuer or TPA.

Teacher's Pregnancy Discrimination Claim Against School Dismissed

In Hutson v. Concord Christian Sch., LLC, No. 3:18-cv-48, 2019 WL 5699235 (E.D. Tenn. Nov. 4, 2019), the court granted the defendants' motion for summary judgment based on the ministerial exception doctrine against a former teacher whose contract was not renewed by the school after she had sexual relations outside of wedlock and sued for pregnancy discrimination. The court determined that the key factor in determining whether an employee is a "minister" is the employee's function in the employer's religious mission. The plaintiff attended chapel services with her class and may have assisted her class in leading chapel service, led morning devotions with her class, taught Bible lessons to her students and integrated biblical principles into her lessons. The school also required teachers to be Christians, to engage actively in evangelizing students and to convey religious messages to students. These factors weighed in favor of treating the teacher as a minister and superseded others that did not. For example, nothing in her "elementary teacher" title suggested a ministerial position — she had no formal religious training and she did not consider herself a minister. A significant part of the school's application related to the plaintiff's Christian background; required her to support the school's Statement of Faith; and required her to declare that she had not in the past year engaged in inappropriate sexual conduct, was not currently doing so and would not do so during her employment. The Letter of Commitment for Employment added that the employee could be terminated for any conduct not in keeping with the Christian faith.

Court Enjoins State and Federal Government from Terminating Foster Care Provider

In Buck v. Gordon, No. 1:19-CV-286, 2019 WL 4686425 (W.D. Mich. Sept. 26, 2019), the court entered a preliminary injunction against Michigan and the federal government, preserving the status quo until this case is fully litigated. The plaintiffs allege that the defendants violated the free exercise clause by "adopting a policy requiring the State to discriminate against child placing agencies with religious objections to same-sex marriage" and granting individualized exemptions from child placing agency requirements selectively. In addition, St. Vincent Catholic Charities alleged that the defendants have violated the free speech clause by "conditioning St. Vincent's license, its contracts with the Michigan Department of Health and Human Services (MDHHS), and the ongoing ability to engage in the religious exercise of helping children in need, on St. Vincent's willingness to make [affirmative statements that contradict St. Vincent's religious beliefs]." The plaintiffs also claim unlawful retaliation, equal protection violations and violation of RFRA. In preceding litigation, the American Civil Liberties Union (ACLU), on behalf of two same-sex couples, sued MDHHS for allowing St. Vincent to refer prospective parents to other agencies for assistance if St. Vincent's sincerely held religious beliefs prevented it from assisting with the certification and licensing recommendation process. Although St. Vincent will not assist same-sex couples in this way, same-sex couples certified through different agencies may adopt children in St. Vincent's care. Initially, Michigan defended the suit in partial reliance upon a 2015 statute in support of St. Vincent's position, but that changed after the general election in November 2018. Michigan Attorney General Dana Nessel disagreed with the defense of the case and entered into a settlement agreement, premised in part on federal regulations under Title IV-E, and began an investigation into allegations that St. Vincent was not complying with its nondiscrimination requirements. St. Vincent and associated foster care parents then sued the state. The court awarded an injunction after determining that St. Vincent is likely to succeed on the merits of its case. According to the court, because St. Vincent places children with any certified parent in accordance with the non-discriminatory conduct that the state desires, the fact that the state wants to cancel its contract anyway "strongly suggests that the State's real goal is not to promote non-discriminatory child placements, but to stamp out St. Vincent's religious belief that marriage is an institution created by God to join a single man to a single woman and replace it with the State's own." More evidence of this, according to the court, is that St. Vincent advances the state's compelling interest in making available as many properly certified homes for the placement of foster and adopted children as possible.

Former Professor's Discrimination Claims Dismissed Without Prejudice; Retaliation and Contract Claims Dismissed with Prejudice

In Garrick v. Moody Bible Institute, No. 18 C 0573, 2019 WL 4674570 (N.D. Ill. Sept. 25, 2019), the court dismissed with and without prejudice certain discrimination, retaliation and breach of contract claims filed by the former instructor of communications against Moody Bible Institute. The plaintiff argued that Moody hired her with "full knowledge" of her "egalitarian Christian" beliefs regarding "gender equality in ministry," and twice renewed her contract with that knowledge, allegedly before terminating her for the same reason. When hired, the plaintiff was an ordained minister and after one year claimed a tax deduction for housing costs as such. She helped a female student lodge a complaint against Moody under Title IX because the student could not enter Moody's Pastoral Ministry Program. The plaintiff sued for (1) retaliation in violation of Title IX, (2) breach of contract, (3) hostile work environment and discrimination based on her gender, (4) gender discrimination, (5) retaliation for complaining about sex harassment and discrimination and (6) religious discrimination. The court dismissed with prejudice the first count under the church autonomy doctrine as based entirely upon retaliation for advocacy in favor of female students entering the Pastoral Ministry Program; the second count under the church autonomy doctrine for breach of contract for termination preceding the requisite notice based on an exception for "serious violation" of Moody's policies that would turn on religious matters and the sixth count because of Title VII's exemption for discrimination premised upon religion. In contrast, the court determined "there are strains of Garrick's Title VII claims that may not be tied to Moody's religious beliefs" such as her complaint of antagonistic treatment by male colleagues and inconsistent treatment of female and male faculty members with respect to job duties, employment requirements and performance reviews. The court rejected the applicability of the ministerial exception doctrine at the motion-to-dismiss stage because the affirmative defense was not "clearly established from the face of the complaint"; and, thus, was subject to fact-finding.

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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