Religious Institutions Update: December 2020

Key Cases

U.S. Supreme Court Overturns COVID-19 Executive Order Restricting In-Person Worship

In Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo, No. 20A87, 2020 WL 6948354 (U.S. Nov. 25, 2020) (per curiam), the U.S. Supreme Court enjoined enforcement of the 10- and 25-person occupancy limits on churches in New York Executive Order 202.68, pending appeal in the U.S. Court of Appeals for the Second Circuit. This was an abrupt shift for the court as compared with two cases reported on previously: Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct. 203 (2020) (see Holland & Knight's Religious Institutions Update: October 2020) and South Bay Pentecostal Church v. Newsom, 140 S.Ct. 1613 (2020) (see Holland & Knight's Religious Institutions Update: July 2020). The court determined that the order was not neutral or generally applicable and thus was subject to strict scrutiny because it singled out houses of worship for especially harsh treatment. In addition, the court ruled that statements made in connection with the challenged rules could be viewed as targeting the ultra-Orthodox Jewish community. Concurring, Justice Neil Gorsuch was the most outspoken; he quipped, "At least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?" Therefore, the court decided that the plaintiffs were likely to prevail; demonstrated irreparable harm because remote viewing "is not the same as personal attendance" due to the Eucharist and other religious practices, and an injunction was not contrary to the public interest because the state failed to prove that plaintiffs' worship practices spread the virus, notwithstanding the safety measures they took. The dissent (Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan) would have withheld relief as moot because the governor expanded capacity after the court agreed to hear the case, whereas the majority decided that the capacity could be curtailed again. Dissenting, Justices Sotomayor and Kagan disagreed that freedom of religion was at issue and argued that houses of worship were actually treated preferentially and the governor's comments were neutral. Justices Gorsuch and Roberts scuffled over South Bay and the prior judicial deference to pandemic orders. Concurring, Justice Brett Kavanaugh signaled that he would accept neutral and even significant restrictions on religious and secular gatherings alike.

In light of Roman Catholic Diocese of Brooklyn, the Supreme Court has since returned several cases to the lower courts for reconsideration. See, e.g., Robinson v. Murphy, 2020 WL 7346601 (U.S. Dec. 15, 2020); High Plains Harvest Church v. Polis, 2020 WL 7345850 (U.S. Dec. 15, 2020). Justices Kagan, Breyer and Sotomayor dissented in High Plains Harvest Church on the grounds the case was moot because Colorado had lifted a 50-person cap in the aftermath of Roman Catholic Diocese of Brooklyn. U.S. courts of appeal have separately remanded cases for additional consideration in light of Roman Catholic Diocese of Brooklyn, such as in Harvest Rock Church, Inc. v. Newsom, No. 20-55907, 2020 WL 7075072 (9th Cir. Dec. 3, 2020) and even South Bay United Pentecostal Church v. Newsom, No. 20-55533, 2020 WL 7224194 (9th Cir. Dec. 8, 2020). However, a few courts have gone on to uphold limitations imposed on schools and places of worship in light of Roman Catholic Diocese of Brooklyn. Discussion of these cases follows under separate headings.

COVID-19 Limitations on K-12 Schools Upheld

In Commonwealth v. Beshear, No. 20-6341, 2020 WL 7017858 (6th Cir. Nov. 29, 2020), the court stayed the district court's preliminary injunction pending appeal of the governor's executive order prohibiting in-person instruction at all public and private elementary and secondary schools in Kentucky between Dec. 7, 2020 and Jan. 4, 2021, but exempting "small group in-person targeted services" and private schools conducted in a home solely for the members of the household. The district court considered it especially relevant that the order does not limit preschools, colleges or universities. But the appellate court ruled that unlike the order at issue in Roman Catholic Diocese of Brooklyn, which treated schools, factories, liquor stores and bicycle repair shops, to name a few, less harshly than houses of worship, the Kentucky order contains "[n]o such comparable exceptions." The court continued, "The contours of the order at issue here also in no way correlate to religion, and cannot be plausibly read to contain even a hint of hostility towards religion." The court determined that the order is neutral and generally applicable and, thus, strict scrutiny is inapplicable under the Free Exercise Clause and, furthermore, that the plaintiffs were unlikely to succeed under the Establishment Clause or Kentucky Religious Freedom Restoration Act (RFRA). The U.S. Supreme Court denied the schools' application to vacate the stay of the injunction because of the timing and impending expiration of the governor's order without prejudice to the applicants seeking a new injunction if the governor issues a school closing order that applies after Jan. 4, 2021. Justices Samuel Alito and Gorsuch dissented. They insisted that "no one should misinterpret" the majority's decision "as signifying approval of the Sixth Circuit's decision"; rather, "it is based primarily on timing." Their critique was that the Sixth Circuit had considered the school executive order in isolation and ignored the many activities permitted under the business executive order.

In Monclova Christian Academy v. Toledo-Lucas Cnty. Health Dep't, No. 3:20-cv-2720, 2020 WL 7334743 (N.D. Ohio Dec. 14, 2020), the court refused to enjoin a resolution passed by the local health department prohibiting public and private schools from providing in-person instruction in grade levels 7-12 or allowing sports programs and extracurricular groups to use facilities within a school building from Dec. 4, 2020 until Jan. 11, 2021. The order allowed facilities for grades K-6 to remain open for in-person education "[d]ue to anticipated issues with students" in those grades. In contrast to Roman Catholic Diocese of Brooklyn, the court ruled that the resolution does not single out parochial schools for harsher treatment than secular schools receive. Although the resolution treats grade levels differently, it does so for all schools. The court added that the fact that the resolution "impacts the plaintiffs' sincerely held belief in the necessity of integrating educational instruction and face-to-face interaction does not mean that the plaintiffs' religious practices are unduly burdened" by the resolution.

In Desrosiers v. Governor, No. SJC-12983, 2020 WL 7 318887 (Mass. Dec. 10, 2020), the court upheld the governor's emergency order that, among other things, banned large gatherings and suspended all in-person instruction at public and private elementary and secondary schools in Massachusetts. The court upheld the limitations as no more stringent than those imposed on similarly situated secular institutions as distinct from the limitations at issue in Roman Catholic Diocese of Brooklyn. The court ruled that the emergency orders are content neutral and narrowly tailored to achieve a significant government interest and do not unconstitutionally burden the plaintiffs' right to free assembly.

In Libertas Classical Ass'n v. Whitmer, No. 20-2085, 2020 WL 6886262 (6th Cir. Nov. 20, 2020), the court affirmed denial of a preliminary injunction for a private Christian school in Michigan that sought to enjoin enforcement of an emergency order imposing face-masking, social distancing and gathering requirements. The school closed due to a subsequent cease and desist order to enforce a local emergency order that the school did not amend its complaint to address, meaning the district and appellate court would not consider it. The closure for reasons unrelated to the order at issue in the complaint prevented the plaintiff from demonstrating irreparable harm during the pendency of the appeal. The court also affirmed the district court's invocation of an abstention doctrine in light of a pending state case challenging the same emergency order at issue in this case.

Title VII Religious Exemption Does Not Permit Discrimination on Grounds of Sexual Orientation

In Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., No. 1:19-cv-03153-RLY-TAB, 2020 WL 6434979 (S.D. Ind. Oct. 21, 2020), the court ruled that Title VII's religious exemption did not bar the plaintiff's Title VII claim for sexual orientation discrimination against a parochial school that did not rehire her due to a gay civil union in violation of the teachings of the Catholic Church. Section 702(a) of Title VII states: "This title shall not apply … to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities." The defendants argued that they were entitled to judgment on the pleadings based on this exemption. The court disagreed: "The plain language of Title VII indicates that the exception for religious institutions applies to one specific reason for an employment decision – one based upon religious preference." Section 702 "allows religious employers to favor coreligionists in employment decisions," but "does not allow religious employers to do so in a way that also discriminates against another protected class." The defendants' backup argument was that they did not rehire the plaintiff for the legitimate, nondiscriminatory reason that she violated the "morals clause" in her employment contract. But the court ruled that the plaintiff alleged sufficient facts to survive the defendants' motion for judgment on the pleadings. The court indicated that there needed to be factual development on the defendant's ministerial exception claim and excessive entanglement argument. The court rejected altogether the defendants' free association claim, but agreed that Title VII preempted the plaintiff's retaliation claim under Title IX. The case is being appealed.

Maine Nonsectarian Private School Requirement for Public Tuition Upheld

In Carson v. Makin, 979 F. 3d 21 (1st Cir. 2020), the court of appeals ruled that a Maine law requiring that parent-selected private schools be nonsectarian in order to be approved for receipt of public funds for tuition purposes did not violate the Free Exercise Clause, Free Speech Clause, Equal Protection Clause or Establishment Clause. The court read recent Supreme Court Free Exercise Clause precedent to permit discrimination based on religious "use" of tuition assistance payments while simultaneously forbidding discrimination based solely on religious "status." The court decided that Maine's law fell into the former category because it does not, by its terms, make control by or affiliation with a religious institution determinative of a school's eligibility to receive tuition assistance. Instead, the state's "focus is on what the school teaches through its curriculum and related activities, and how the material is presented." The court considered it significant that Maine provides tuition assistance only to those who cannot get the benefits of a free public school education directly from the state, and that said free public school education was secular. "Because Maine permissibly requires public educational instruction to be nonsectarian for reasons that reflect no hostility toward religion, it betrays no hostility toward religion when it imposes a use-based 'nonsectarian' restriction on the public funds that it makes available for the purpose of providing a substitute for the public educational instruction that is not otherwise offered." The court ruled that the state inquiry undertaken to ensure nonsectarian instruction does not require the kind of entanglement that would violate the Establishment Clause, and it rejected the idea that Maine is establishing a religion of secularism through its law. Rejecting all constitutional claims, the court concluded that Maine "permissibly satisfies a commitment rooted in its own founding charter, to pursue the wholly legitimate end of ensuring the distribution of the benefits of a free public education even to those who happen to live in places that cannot provide it of their own accord."

Church Plan Litigants Lack Standing to Challenge the ERISA Exemption Under the Establishment Clause

In Sanzone v. Mercy Health, No. 4:16 CV 923 CDP, 2020 WL 6483951 (E.D. Mo. Nov. 4, 2020), the district court considered on remand — after the court of appeals affirmed the district court's decision that the hospital's retirement and pension plan is a church plan under the Employee Retirement Income Security Act of 1974 (ERISA) — whether the deprivation of ERISA protection confers Article III standing on the plaintiffs for their alternative claim that applying the church-plan exemption violates the Establishment Clause. The court determined that the plaintiffs lacked the requisite standing to pursue their constitutional claims because their claimed deprivations do not establish a concrete injury. Specifically, the plaintiffs did not allege that the Mercy plan failed to pay them benefits or that there was any substantial risk that their benefits would be affected in the future or that the plan default was "certainly impending." The plan was sufficiently funded to pay benefits for nearly a decade even if no more contributions were made. In any event, the court ruled that the plaintiffs would not have Article III standing to bring claims under ERISA for alleged mismanagement that resulted in losses to the plan, as they would be entitled to receive the same pension benefits anyway.

Contingency and Speculation Insufficient for Standing to Contest Vaccination Rules

In Baker v. USD 229 Blue Valley, 979 F. 3d 866 (10th Cir. Nov. 3, 2020), the court ruled that a parent's concern that a school district might revoke the student's existing religious exemption from school vaccination requirements was not an injury in fact that could support Article III standing for the parent's action challenging state laws and school district policies regarding vaccination, despite the parent's argument that the district was overly generous in granting the exemption, as the parent's letter in support of the exemption did not comply with the requirements of state law. The attorney general indicated that the state had taken a broad view for the last eight years as to what sort of statement a parent could submit to receive a religious exemption. The parent's "some day" intention to enroll a student in a private school program or licensed child care subject to a different vaccination and exemption requirement also was not an injury in fact that could support Article III standing. The state indicated that if the plaintiff used a statement substantially identical to the one that she submitted to the district if and when the apparent applied to a private school program, the state would regard it as sufficient for a religious exemption.

Religion in the News

• Initial surveys and reports indicate that religious-minded voters softened in their support for President Donald Trump as compared to 2016. "Nones" voted overwhelmingly against him.
• Pew Research Center reports that government restrictions on religion reached the highest level globally in more than a decade.
• The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced the resolution of a discrimination complaint brought by a Jewish community advocacy organization against a health system, resulting in a model clergy access policy for health systems.

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