March 24, 2021

Religious Institutions Update: March 2021

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

Key Cases


Attendance Limitations on Houses of Worship Enjoined

In Agudath Israel of America v. Cuomo, 983 F. 3d 620 (2d Cir. 2020), the court of appeals reversed two district courts and ruled that an executive order that limited attendance at religious services at houses of worship during the pandemic to 10 persons in "red-zone areas" and 25 persons in "orange-zone areas" was not narrowly tailored to address the state's compelling interest in stemming the spread of COVID-19 and thus violated the Free Exercise rights of the Roman Catholic Diocese of Brooklyn, Agudath Israel of America and affiliated synagogues affected by the capacity limits. There was no evidence of any outbreaks at the Diocese's churches or synagogue services. The governor's identification of COVID-19 transmission risks relied on broad generalizations of public health officials about inherent features of religious worship. In a red zone, businesses categorized as "essential" could admit as many people as they wished, subject to the less stringent 50 percent capacity limit applicable to all business, and in orange zones most "non-essential businesses" had to comply with only this 50 percent capacity limit. The governor characterized religious worship as nonessential, but characterized some businesses such as news media, financial services, retail stores and construction as essential. As such, the order discriminated on its face against religious institutions and was subject to strict scrutiny. Pending appeal, the U.S. Supreme Court enjoined enforcement of the order. The court of appeals directed the district courts to grant preliminary injunctive relief against enforcement of the order's person occupancy limits and percentage capacity limits on houses of worship.

In South Bay United Pentecostal Church v. Newsom, 141 S.Ct. 716 (2021), the Supreme Court summarily stayed portions of the court of appeals order in South Bay United Pentecostal Church v. Newsom, 985 F. 3d 1128 (9th Cir. 2021). The court of appeals affirmed the district court's decision not to enjoin an executive order prohibiting attendance indoors at religious services during California's Regional Stay at Home Order and "Tier 1" of its blueprint for safer economy. Although the court of appeals conceded the order was not neutral or generally applicable, it ruled it was the least restrictive means of achieving the state's compelling interest in stemming the pandemic. The court of appeals was convinced by public health officials who deemed religious services to involve risks of COVID-19 transmission not applicable to allowed activities. But the Supreme Court enjoined enforcement of the prohibition on indoor worship services pending disposition of the applicants' petition for a writ of certiorari. While the Regional Stay at Home Order was in effect, grocery stores and retail establishments were allowed to operate at 35 percent and 20 percent of capacity, respectively. During Tier 1, grocery stores and retail establishments were allowed to operate at 50 percent and 25 percent of capacity, respectively, and personal care services such as hair and nail salons could operate subject to limitations. The Supreme Court did not enjoin the 25 percent capacity limitation on indoor worship services in Tier 1, although Justices Neil Gorsuch, Clarence Thomas and Samuel Alito (partial) would have done so. The Supreme Court and court of appeals let stand California's ban on indoor singing and chanting, despite opposition by Justices Thomas, Gorsuch and Alito. The Supreme Court cautioned that its order is "without prejudice to the applicants presenting new evidence to the district court that the state is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner." The court of appeals determined that injunctive relief should issue against California's 100-person and 200-person attendance caps on indoor religious services under Tiers 2 and 3. The state imposed different capacity restrictions on religious services relative to non-religious activities and sectors for which the state did not provide evidence any greater peril was the cause.

Attendance Limitations on Houses of Worship Not Enjoined Because Order Expired

In Cassell v. Snyders, No. 20-1757, 2021 WL 852227 (7th Cir. Mar. 8, 2021), the court of appeals affirmed the district court's decision not to enjoin an executive order imposing a 10-person limit on in-person religious gatherings not imposed on secular activities such as shopping. Although the challenge against the governor was not moot, the decision not to enjoin the order was proper, as it had expired over nine months ago, there was no live threat of enforcement, the governor's subsequent executive orders had consistently refrained from limiting the free exercise of religion and any renewed limitation was unlikely. The court decided that the risk of irreparable injury to the church and pastor was low and dropping, while uncertainty about the pandemic cautioned against enjoining state coronavirus responses unless absolutely necessary. According to the court, the plaintiffs forfeited their procedural due process claim by inadequately framing it. The court added that the plaintiffs were unlikely to succeed in federal court on their state law claims for violation of the Illinois Religious Freedom Restoration Act and exceeding the governor's authority under the Illinois Emergency Management Agency Act due to federal jurisdictional, Eleventh Amendment immunity and mootness concerns with respect to local officials.

Mandatory Immunization Form Constitutional

In B.W.C. v. Williams, No. 20-1222 & 20-2207, 2021 WL 833285 (8th Cir. Mar. 5, 2021), the plaintiffs challenged the constitutionality of Missouri's form to claim a religious exemption from mandatory immunizations for public school students because the form recommends that all children be immunized to prevent childhood diseases, warns that the failure to do so affects the health of others including babies, encourages discussion of the matter with a healthcare provider or local or state health department, and states that in the event of an outbreak unimmunized children may not attend school or day care until the emergency is over. The district court dismissed the lawsuit, and the court of appeals affirmed that the form did not violate either the plaintiffs' free speech or free exercise rights. According to the court, there is little risk that the recipients of the form will believe that the statement is attributable to parents or students claiming the exemption; the statement does not compel those claiming the exemption to state the government's position; it does not ban other communications about immunizations by parents or students; it does not require anyone to engage in conduct against their religious beliefs such as getting vaccinations; it does not make parents or students morally complicit in the production or use of vaccinations and it does not target religious believers. While expressing skepticism toward "hybrid rights" claims, the court ruled that the plaintiffs did not state one as each other hybrid right alleged (i.e., equal protection, bodily integrity, educational due process and parents' rights) failed on its own.


Resolution Closing All Schools Violates Free Exercise

In Monclova Christian Academy v. Toledo-Lucas Cnty. Health Dep't, 984 F. 3d 477 (6th Cir. 2021), the court of appeals granted an injunction pending appeal under the Free Exercise Clause against the Toledo-Lucas County Health Department's resolution shutting down all schools in the county in response to the COVID-19 pandemic. The department argued that it did not burden the plaintiffs' exercise of religion because the resolution allows them to open to hold religious educational classes or religious ceremonies, but the plaintiffs responded that the exercise of their faith could not be so neatly compartmentalized and instead pervades each day of in-person schooling. The court declined to second-guess the plaintiffs' representations. The resolution allowed gyms, tanning salons, office buildings and a casino to remain open. The court decided that whether religious conduct is analogous or comparable to secular activity does not depend on whether the conduct involves similar forms of activity but should be measured against the interests the state offers in support of its restrictions on conduct; i.e., whether the secular conduct endangers these interests in a similar or greater degree than the religious conduct does. Put otherwise, the relevant inquiry should simply be whether the government, in pursuit of legitimate interests, has imposed greater burdens on religious conduct than on analogous secular conduct. The court decided that, evaluated as such, the resolution was not a restriction of general applicability. The department's closure of the plaintiffs' schools is thus subject to strict scrutiny, and the court was quick to add that the resolution would most likely fail. Based on a likelihood of success, the plaintiffs received a preliminary injunction.

Exclusion of Religious School Students from Dual Enrollment Program Violates Constitution

In A.H. v. French, 985 F. 3d 165 (2d Cir. 2020), students in private religious schools, their parents, and the Roman Catholic Diocese sued Vermont's Agency of Education (AOE) because the dual enrollment program (DEP) required that students demonstrate their tuition was publicly funded in order to be eligible to enroll in post-secondary school courses. The district court denied the parents injunctive relief, but the court of appeals reversed because students were denied public funding, and thus eligibility for DEP, solely because of her school's religious status. The prohibition forces private schools to choose whether to participate in an otherwise available benefit program or to remain a religious institution and also forces families to choose between sending their children to a religious school or receiving such benefits. This required strict scrutiny and AOE failed to identify any compelling interest that could survive it. The court determined that the balance of equities favored injunctive relief in light of, on the one hand, the student's strong interest in dual enrollment before leaving for college and the school's ability to attract talented students who might also be interested in DEP and, on the other hand, Vermont's interest in administering DEP without interference by federal equitable power contrary to a federal constitutional right.


Ministerial Exception Doctrine No Bar to Professor's Discrimination Claim

In Deweese-Boyd v. Gordon College, No. SJC-12988, 2021 WL 841932 (Mass. Mar. 5, 2021), the Supreme Court of Massachusetts ruled that the ministerial exception doctrine did not bar an associate professor of social work's claim that the defendant, its president, and its provost discriminated against her based on her gender and her opposition to the college's alleged discriminatory practices relating to LGBTQ+ individuals by denying her application for promotion to full professor. She sued for unlawful retaliation (G.L. c. 151B, § 9); gender discrimination and discrimination on the basis of her association with LGBTQ+ persons (G.L. c. 151B, § 9); as to the individual defendants, aiding and abetting discriminatory and retaliatory acts and interference with her rights (G.L. c. 151B, § 4); violation of the Massachusetts Civil Rights Act; breach of contract; breach of the implied covenant of good faith and fair dealing; and tortious interference with contractual or advantageous relations. The court acknowledged that the faculty handbook required the plaintiff to integrate Christian faith into her teaching, scholarship and advising. Faculty members had to affirm the college's statement of faith and agree to abide by its behavioral standards. The college emphasized that there are no nonsacred disciplines that it teaches. The social work department stated as among its goals the "integration and application of social work and Christian values." The college had recently described all of its faculty, and even all of its employees, as ministers and as "committed to imaging Christ in all aspects of their educational endeavors." Even so, the professor was not ordained or commissioned, she was not held out as a minister and did not view herself as a minister, and she was not required to undergo formal religious training, pray with her students, participate in or lead religious services, take her students to chapel services or teach religious curriculum. The court had no difficulty finding that the defendant was a religious institution qualified to assert the ministerial exception, but it determined that the plaintiff "was expected and required to be a Christian teacher and scholar, but not a minister."

Ministerial Exception Doctrine Barred Principal's Claim

In Rehfield v. Diocese of Joliet, No. 125656, 2021 WL 125656 (Ill. Feb. 4, 2021), the court ruled that a parochial school principal was a minister subject to the ministerial exception doctrine and, thus, affirmed dismissal of the principal's claim for retaliatory discharge and violation of the whistleblower act arising from her termination after she reported a parent's allegedly threatening conduct to police. The plaintiff was required to be a practicing Catholic and to abide by the Diocesan handbook; she was to "provide an identifiably Catholic atmosphere in the school, visit classrooms and supervise teachers in their provision of a Catholic education, establish student-instructional programs that include regular religious education, and develop and participate in religious programming for staff." The court considered that it was a distinction without a difference that the plaintiff sought money damages, not reinstatement.

Employment Religious Exemption Treated as Coterminous with Ministerial Exception Doctrine

In Woods v. Seattle's Union Gospel Mission, No. 96132-8, 2021 WL 821959 (Wash. Mar. 4, 2021), the Supreme Court of Washington ruled that 1) an exemption of religious nonprofits from the definition of "employer" within the meaning of the Washington Law Against Discrimination (WLAD) (RCW 49.60.040(11)) is constitutional on its face as in accord with Article I, Section 12 of the Washington Constitution, 2) Article I, Section 12 is not offended if WLAD's exception for religious organizations is applied concerning the claims of a "minister," but 3) genuine issues of material fact remained as to whether the position of staff attorney for Seattle's Union Gospel Mission, which provides services to the city's unsheltered homeless population, entailed ministerial responsibilities and functions so as to preclude his claim under the WLAD that the organization refused to hire him because of his same-sex relationship. Article I, Section 12 of the Washington Constitution provides that, "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." The Supreme Court of Washington reversed and remanded to the trial court the factual question whether the organization's staff attorneys qualify as ministers. If not, the court indicated that the exemption, although facially constitutional, may still be unconstitutional as applied to the plaintiff.

Hospital Entitled to Title VII Religious Exemption

In Manley v. Washington Adventist Hosp., No. PWG-18-0053, 2021 WL 878358 (D. Md. Mar. 9, 2021), the court ruled that a Roman Catholic registered nurse could not state a claim for religious discrimination under Title VII against the defendant because the hospital is a religious institution under 42 U.S.C. s. 2000e-1(a).


California Churches Not Exempt from Non-Ad Valorem Special Property Taxes

In Valley Baptist Church v. City of San Rafael, No. A156171, 2021 WL 753726 (Cal.App. 1st Dist. Feb. 26, 2021), the court ruled as a matter of first impression that the religious exemption from taxation authorized by the California Constitution (art. 13, §§ 3, 4, Cal. Const.) applies only to ad valorem property taxation and does not extend to exempt a church from non-ad valorem special property taxes, including the city's Paramedic Services Special Tax.

Establishment Clause

Public Reimbursement of Nonpublic Schools for Health, Safety and Welfare Mandates Consistent with State Blaine Amendment

In Council of Orgs. and Others for Educ. about Parochiaid v. State, No. 158751, 2020 WL 8019955 (Mich. Dec. 28, 2020), an equally divided Michigan Supreme Court allowed public funds to reimburse costs incurred by nonpublic schools for compliance with various state health, safety and welfare mandates. The court of claims enjoined the disbursement as contrary to the state Blaine Amendment, Mich. Const. Art. 8, § 2, which prohibits aid to nonpublic schools. The court of appeals reversed and remanded. The equally divided Michigan Supreme Court then affirmed the court of appeals. At issue, a 2016 law, codified at MCL 388.1752b, appropriated $2.5 million in funds for the 2016-17 school year "to reimburse costs incurred by nonpublic schools" for compliance with various state health, safety and welfare mandates to be identified by the Department of Education, such as state asbestos regulations and vehicle inspections. In 2018, the legislature amended the law to appropriate funds for the 2018-2019 school year. The court of appeals announced the following three-part test for a constitutional health, safety or welfare reimbursement mandate: It must 1) be, at most, merely incidental to teaching and providing educational services to nonpublic school students (noninstructional in nature), 2) not constitute a primary function or element necessary for a nonpublic school to exist, operate and survive, and 3) not involve or result in excessive religious entanglement. The divided Supreme Court ruled that MCL 388.1752b exercises the "police powers" of the state only on behalf of the "health, safety and welfare" of nonpublic school students and this is not proscribed by the state constitution. The Supreme Court remanded and instructed the court of claims to address whether the Department of Education had improperly administered the statute by purporting to reimburse nonpublic schools for educational services.

Secular Humanists Fail to State Claim Against Marriage Statute

In Center for Inquiry, Inc. v. Warren, No. 19-11029, 2021 WL 528575 (5th Cir. Feb. 10, 2021), the plaintiffs, members of a secular humanist organization that trains and certifies secular celebrants to perform non-religious marriage ceremonies, sued the Dallas County Clerk, in his official capacity, seeking declaratory and injunctive relief under the Establishment Clause against Section 2.202(a) of the Texas Family Code, which specifies that "a licensed or ordained Christian minister or priest," "a Jewish rabbi," "a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony," and retired and current judges are the only people "authorized to conduct a marriage ceremony." The court of appeals vacated the district court's judgment and dismissed the case for lack of subject matter jurisdiction because the plaintiffs failed to satisfy the redressability requirement of standing. Even if they prevailed, relief would be incomplete because the appellant could still be subject to criminal prosecution under the Texas Marriage Law, which makes it a crime to solemnize a marriage ceremony without authorization.

Religion in the News

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