June 10, 2021

Religious Institutions Update: June 2021

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

Key Cases


Blanket Limitation on Private Home Gatherings to 3 Households Overturned

In Tandon v. Newsom, 141 S.Ct. 1294 (2021) (per curiam), the U.S. Supreme Court enjoined pending appeal California's imposition of a blanket limitation during the COVID-19 pandemic on private gatherings of all kinds, religious and secular, in homes to three households. However, California permitted gatherings at other types of locations such as hair salons, retail stores, private suites at sporting events and concerts and indoor restaurants. According to the per curiam, "[c]omparability is concerned with the risks various activities pose, not the reasons why people gather"; therefore, these activities are comparable. Government regulations trigger strict scrutiny under the Free Exercise Clause whenever they treat comparable secular activity more favorably than religious exercise. "Narrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID." Moreover, the state cannot "assume the worst when people go to worship but assume the best when people go to work." Instead of requiring the state to explain why it could not safely permit at-home worshipers to gather in larger numbers while using precautions used in secular activities, the court of appeals erroneously declared that such measures might not "translate readily" to the home. The withdrawal or modification of the restriction does not make it moot, as government officials could reinstate it.

The Supreme Court took additional steps to overturn COVID-19 limitations on places of worship in Gateway City Church v. Newsom, 141 S.Ct. 1460 (2021); Gish v. Newsom, 141 S.Ct. 1290 (2021); Harvest Rock Church, Inc. v. Newsom, 141 S.Ct. 889 (2020); Robinson v. Murphy, 141 S.Ct. 972 (2020). In Gateway City Church, the court ruled that the Ninth Circuit's failure to grant relief was erroneous in light of South Bay United Pentecostal Church v. Newsom, 141 S.Ct. 716 (2021). In Gish, the court vacated the district court order and remanded the case to the Ninth Circuit for consideration in light of South Bay. In Harvest Rock, the court vacated the order of the district court and remanded the case to the Ninth Circuit for consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020). In Robinson, the court vacated the district court order and remanded the case to the Third Circuit for consideration in light of Cuomo.

Employment Discrimination

Court Decides Not to Review Religious Discrimination De Minimis Cost Test

In Small v. Memphis Light, Gas & Water, 141 S.Ct. 1227 (2021), the court denied a petition for writ of certiorari to review the "de minimis cost" test associated with providing a religious accommodation under Title VII. Justices Neil Gorsuch and Samuel Alito strongly dissented. Both asserted that the court in this decision had "dramatically revised — really, undid — Title VII's undue hardship test, and that in all other comparable statutorily protected civil rights, the test is undue hardship consistent with the "plain words" of Title VII. They argued there was no procedural explanation for the court's decision.

Injunction Denied for Employment Discrimination Based on Reproductive Health Decisions

In Slattery v. Cuomo, No. 1:20-cv-112 2021 WL 1224008 (N.D. N.Y. Mar. 31, 2021), the court dismissed the plaintiffs' complaint, seeking to enjoin laws forbidding employment discrimination against employees based on their own or their dependent's reproductive health decisions. The plaintiffs, crisis pregnancy centers, hire and maintain the employment only of "personnel who agree with, adhere to and effectively convey" their "position regarding 'reproductive health decisions' including but not limited to decisions related to abortion and sexual relationships outside of marriage and related use of potentially abortifacient contraception." The court determined that the non-discrimination statute is facially neutral and of general applicability such that it does not target religious conduct in an impermissible way and, consequently, it needs only to demonstrate a rational basis for its enforcement. The court ruled that the state had a compelling interest in passing the legislation, namely to protect individual citizens' right to privacy and autonomy, and that the statute bears a reasonable relation to the claim. Thus, the statute satisfied the Free Exercise Clause. The court also rejected a free speech challenge to the statute. The court ruled that the regulation is content-neutral, does not target the plaintiffs' pro-life speech and has a primary purpose of regulating conduct. The statute does not prevent the plaintiffs from speaking against abortion, birth control or contraception. The statute does not even prevent the plaintiffs from refusing to hire or terminate an employee whose speech advocates for positions they disfavor. Last, the court ruled that the plaintiffs overstated the interference with their expressive rights, and thus rejected their expressive association claim. The court determined that the statute imposes some incidental limitations on their associational rights, but that those limitations do not place a restriction on their ability to advocate against abortion or contraception.

Establishment Clause

Mandamus Issues Enabling Vermont Religious School Students to Receive Funding

In re A.H. v. French, No. 21-87, 2021 WL 2213292 (2d Cir. June 2, 2021), the court of appeals granted the plaintiffs' petition for mandamus, requiring the district court to amend its injunction. When students reside in a school district that does not maintain a public high school, Vermont's Town Tuition Program (TTP) entitles them to a tuition payment to attend the independent high school of their choice. The plaintiffs applied through this program to attend Rice Memorial High School. The school districts denied their requests on the ground that Rice is a religiously affiliated school. The defendants interpreted the state constitution's compelled support clause to preclude the funding request. That clause provides that "no person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience." Vt. Const. Ch. I, Art. 3. When the petitioners sued, the district court concluded that they satisfied the necessary elements entitling them to an injunction. But the district court awarded a narrow injunction, enabling the school districts to continue to exclude the petitioners from the TTP as long as they sought to attend Rice. The plaintiffs appealed and moved for an emergency injunction pending appeal that would prohibit the school districts from continuing to deny their TTP funding requests. The court of appeals construed this motion as a petition for a writ of mandamus and granted it, ordering the district court to amend its preliminary injunction to prohibit the respondents from continuing to deny the petitioners' request for tuition reimbursement under the TTP, regardless of Rice's religious affiliation or activities. The court of appeals pointed out that the plaintiffs had no other avenue for relief by virtue of the district court deciding for them yet not awarding the relief requested, apparently due to the sectarian nature of Rice and the district court's view that the school districts needed to put precautionary measures in place. According to the court of appeals, "the unjustifiably limited scope of the district court's preliminary injunction effectively ensured that two petitioners would lose the ability to attend Rice this semester."

Replacement of Lemon Test Requires Remand of Emotional Distress Claim

In Williams v. Kingdom Hall of Jehovah's Witnesses, No. 2019-422, 2021 WL 2251819 (Utah June 3, 2021), the court remanded an intentional infliction of emotional distress claim based on the manner in which elders of the Kingdom Hall of Jehovah's Witnesses conducted a disciplinary hearing into allegations that the plaintiff committed "porneia" (unclean sexual conduct). The plaintiff argued she was raped by another congregant. On the basis of the so-called Lemon test, the district court concluded that the adjudication of the claim would violate the Establishment Clause. The Utah Supreme Court remanded the case for reconsideration without deciding that dismissal was inappropriate but for the purpose of applying a different test. The Utah Supreme Court observed that the U.S. Supreme Court no longer rigidly applies the Lemon test and instead favors looking "to the principles underlying our Establishment case law as a guide in our analysis" and considering "whether our nation's historical practices can shed any light on the proper application of those principles in the context presented by cases such as the one now before us – where the disputed governmental action is the adjudication of a tort claim against a religious organization."

Pastor-Leaked Confidences Without Malice Not Valid Basis for Defamation Claim

In Koster v. Harvest Bible Chapel-Quad Cities, No. 20-0236, 2021 WL 2021643 (Iowa May 21, 2021), the Supreme Court of Iowa affirmed the court of appeals partial granting of summary judgment to the defendants. The plaintiff, Ryan Koster, is a former member of defendant Harvest Bible Chapel, a nondenominational Christian church. Koster, who was accused by his wife of sexually abusing their child, filed suit against his former church and pastors, alleging breach of fiduciary duty, invasion of privacy, defamation, vicarious liability and conspiracy, stemming from a pastor's sending emails to fellow pastors, church staff and a discipleship group repeating the wife's later investigated and uncorroborated sexual abuse allegations. The Supreme Court ruled that a state statute providing that a member of the clergy shall not be allowed to disclose any confidential communication properly entrusted to him in his professional capacity did not apply. Iowa Code § 622.10(1) (2017). The plaintiff's disclosures were made in the context of a small group rather than privately. The allegations were leveled first by the plaintiff's wife to the congregation. And with one exception that can be discounted, the pastor's communications did not disclose anything specific that the plaintiff had revealed in the group sessions. The court added that neither a verbal understanding that what was said in church discipleship groups would stay in the groups, nor a provision in the church's bylaws that members would neither gossip nor listen to gossip concerning any member, supplied a duty of confidentiality with respect to the pastor. These assurances were too vague to be enforced and threatened interference with church custom, practice and doctrine. Moreover, the free exercise clause precludes civil courts from exercising subject matter jurisdiction over a breach of fiduciary duty claim brought by a parishioner against a pastor. The court opined, "Deciding liability in this case would not be a simple task of applying a well-defined secular standard but would involve weighing of both marital counseling standards and the norms by which the church is governed." In context, the pastor was entitled to a qualified privilege against defamation. "[T]he common interest of members of religious associations is such as to afford the protection of qualified privilege to communications between them in furtherance of their common purpose or interest." The fact that the pastor sent an email to a former church member repeating the sexual abuse allegations made against the parishioner did not mean that the pastor lost his qualified privilege as that individual and his wife were still closely tied to the small group. According to the court, there was no malice.

Land Use

RLUIPA Safe Harbor Thwarts Damages Claims Against Municipality

In Orthodox Jewish Coalition of Chestnut Ridge v. Village of Chestnut Ridge, N.Y., No. 19-cv-443, 2021 WL 1226930 (S.D. N.Y. Mar. 31, 2021), after plaintiffs filed suit when they were unable to find a suitable property to attend shul for prayer during the week for services on Sabbath and other holy days, and for other religious activities, the village adopted a new land use code. The code adopted the overall structure and various portions of a law proposed by the plaintiff. The court granted the defendants' motion to dismiss, arguing, among other things, that the plaintiff's Religious Land Use and Institutionalized Persons Act (RLUIPA) claims are barred by the statute's safe harbor provision, which states that "[a] government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise." 42 U.S.C. § 2000cc-3(e). The court ruled that the safe harbor provision insulates municipalities from damages. The court also ruled that the plaintiff lacks organizational standing to sue for damages on behalf of its members.

No Evidence of Comparative Secular Land Uses Sinks RLUIPA Claim

In Word Seed Church v. Village of Hazel Crest, No. 20 C 7725, 2021 WL 1379497 (N.D. Ill. April 12, 2021), the court denied the church's motion for declaratory and injunctive relief under RLUIPA against the village's land use and zoning code. To succeed on the merits of the plaintiff's RLUIPA Equal Terms claim, the plaintiffs needed to demonstrate that comparable secular land uses are not treated the same "from the standpoint of an accepted zoning criterion, such as 'commercial district,' or 'residential district,' or 'industrial district.' " The plaintiffs provided a list of purportedly similar secular assembly uses that are permitted right outside the business districts, but failed to offer evidence or argument comparing the secular land uses to religious land use, such that the court might conclude there is unequal treatment in the zoning designations. The court also rejected the plaintiffs' RLUIPA unreasonable limits claim. The court said that it had no basis to evaluate the experience of churches more generally or a smaller subset of churches comparable to the plaintiff to determine whether the land use special use designation places unreasonable limits on religious land use. The court also rejected the plaintiff's equal protection claim because the plaintiff could not "demonstrate 'governmental action wholly impossible to relate to legitimate governmental objectives.'"

Expert Witness

Expert Testimony on Church Attendance and Finances Allowed in RLUIPA Case

In Immanuel Baptist Church v. City of Chicago, No. 17-cv-0932, 2021 WL 1722791 (N.D. Ill. April 30, 2021), the court allowed the testimony of a tendered expert to opine on how parking regulations adversely impacted Immanuel Baptist Church allegedly in violation of RLUIPA. Rev. Jonathan W. Rich is the District Superintendent for the Midwest District of the Christian and Missionary Alliance in Bloomington, Illinois. His report confirmed the "negative impact upon church health and vitality when there exists a significant level of uncertainty or ambiguity concerning the continued use or permanence of facilities used for weekly church worship, teaching and service ministries" and the "negative impact upon church health and vitality when these worship and teaching facilities are ill-repaired and ill-kept." The court determined that his knowledge, skill, training, experience and education qualify him to offer these opinions. The city attacked the qualifications, reliability and relevance of his opinion, but the court ruled against the city on all counts. The court concluded, "Rev. Rich does more than offer common sense observations. Based on his experience consulting with churches and based on data from comparable churches, he provides his views about the Church's attendance and finances as result of the City parking regulations."

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, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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