July 23, 2021

Religious Institutions Update: July 2021

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

Key Cases

Church Autonomy

Ministerial Exception Doctrine Bars Minister-on-Minister Hostile Work Environment Claim

In Demkovich v. St. Andrew the Apostle Parish, Calumet City, No. 19-2142, 2021 WL 2880232 (7th Cir. July 9, 2021), the U.S. Court of Appeals for the Seventh Circuit ruled on interlocutory appeal that the ministerial exception doctrine applies to hostile work environment claims based on minister-on-minister harassment. A circuit split already exists on the question. The Seventh Circuit joined the Tenth Circuit, but the Ninth Circuit held that the doctrine does not cover hostile work environment claims at least as a categorical matter. The plaintiff was the music director, choir director and organist for St. Andrew the Apostle Parish, a Roman Catholic Church. Rev. Jacek Dada, a Catholic priest and the church's pastor, supervised the plaintiff and eventually terminated him. The plaintiff complained that Rev. Dada repeatedly subjected him to derogatory comments and demeaning epithets showing a discriminatory animus toward his sexual orientation. After the plaintiff married his partner, contrary to Catholic teachings, Rev. Dada asked for his resignation. The district court ruled that the ministerial exception doctrine was not a categorical ban to the plaintiff's claims premised upon intangible employment action, but applied a balancing test that led the court to dismiss the plaintiff's claims anyway. The court of appeals ruled that the doctrine is a categorical ban on the plaintiff's claims. According to the court, "The protected interest of a religious organization in its ministers covers the entire employment relationship, including hiring, firing, and supervising in between." The court also focused on the harm that civil intrusion and excessive entanglement would pose. "Religion permeates the ministerial workplace in ways it does not in other workplaces"; thus, "analyzing a minister's hostile work environment claim based on another minister's conduct is not just a legal question but a religious one, too." Dissenting, Judges David Hamilton, Ilana Rovner and Diane Wood, argued, among other things, that the line between tangible employment actions and hostile environments fits the purposes of the ministerial exception and properly balances civil law and religious liberty.

Deacon's Defamation Claim Barred by First Amendment

In re Lubbock, No. 20-0127, 2021 WL 2386133 (Tex. June 11, 2021) concerns a deacon in the Catholic Church who sued the diocese in connection with the diocese's publication of a list of clergy against whom credible allegations of sexual abuse of a "minor" were raised. The church published the list according to a directive of the U.S. Conference of Catholic Bishops that requires dioceses to "be open and transparent in communicating with the public about sexual abuse of minors by clergy within the confines of respect for the privacy and the reputation of the individuals involved." Deacons are ministers in the Catholic Church, authorized to baptize parishioners, assist the priest at Mass, preach homilies, celebrate weddings and conduct funeral rites. The plaintiff demanded a retraction of his name from the list, contending that he has never been accused of sexually abusing a child. The diocese asserts that under Catholic Canon Law, the word "minor" includes adults "deemed vulnerable due to a health or mental condition." The plaintiff was accused of engaging in sexual misconduct with an adult woman with a history of mental and emotional illness. The diocese declined to remove him from the list on the basis of its internal investigation applying this definition of minor. The plaintiff sued for defamation and intentional infliction of emotional distress. The court ruled that the "ecclesiastical abstention doctrine" precludes jurisdiction over the deacon's claims. Exercising jurisdiction would have required evaluation of whether the diocese properly applied canon law, including its definition of a minor as a "vulnerable adult," and would have encroached on the diocese's decision to investigate its clergy consistent with its internal policies. According to the court, the publication of the list could not be severed from the process that led to its creation. The diocese's public statements about its reforms related to handling sexual abuse allegations did not revoke ecclesiastical protection either. Accordingly, the court granted the diocese's petition for writ of mandamus, vacated the trial court's order denying the diocese's plea to the jurisdiction and directed the trial court to dismiss the underlying case for want of jurisdiction. Justice Jeff Boyd dissented, arguing that the claim could be decided based on neutral principles without the court becoming entangled in ecclesiastical issues. In a contemporaneous opinion, Diocese of Lubbock v. Guerrero, No. 20-0005, 2021 WL 2386208 (Tex. June 11, 2021), the court also dismissed as moot a collateral claim under the Texas Citizens Participation Act.

Free Exercise

Exclusion of Catholic Foster Care Agency Subject to Strict Scrutiny When Individualized Exemption Involved

Some expected the U.S. Supreme Court to overturn Employment Div., Dep't of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990) in Fulton v. City of Philadelphia, No. 19-123, 593 U.S. __ (2021). Instead, Chief Justice John Roberts, writing for a unanimous court, ruled that the contractual clause at issue, prohibiting the plaintiff from placing children with foster families, fell outside of Smith and violated the Free Exercise Clause. Specifically, the court in Smith ruled that a law that is neutral and generally applicable that has the effect of incidentally burdening a particular religious practice ordinarily is lawful. The defendant argued that is exactly the kind of limitation at issue when it stopped referrals to Catholic Social Services (CSS) upon discovering that it would not certify unmarried couples or same-sex married couples as foster parents. CSS had served the children of Philadelphia since 1798. No same-sex couple actually sought certification from CSS. Had a couple applied, CSS planned to direct the couple to another local placement agency because it considered certification tantamount to a religiously forbidden endorsement of their relationship. Under these circumstances, the U.S. Supreme Court determined that the nondiscrimination limitation incorporated in CSS' contract imposed a burden on CSS' religious exercise and was not generally applicable.

The contract allowed exceptions to the city's nondiscrimination requirement at the "sole discretion" of the commissioner. According to the court, this was a "mechanism for individualized exemptions" preventing the nondiscrimination clause from being generally applicable and enabling discrimination against religion. The city argued that a second paragraph in the contract prohibiting discrimination controlled, but the court disagreed, lest the discretionary clause would be rendered a nullity. The city also insisted that foster care amounts to a public accommodation under Philadelphia's Fair Practices Ordinance. But the court determined that the ordinance was not pertinent because certification does not involve a good, service, facility, privilege, advantage or accommodation extended, offered, sold or otherwise made available to the public. The court determined that under these circumstances, the contractual nondiscrimination requirement was subject to strict scrutiny, which the burden imposed on CSS' religious exercise could not withstand. A government policy can survive strict scrutiny only if it 1) advances a compelling interest and 2) is narrowly tailored to achieve those interests. For purposes of the first inquiry, the court determined that the question is not whether the city has a compelling interest in enforcing its nondiscrimination policies generally. The city asserted three of these: maximizing the number of foster parents, protecting the city from liability, and ensuring equal treatment of prospective foster parents and foster children. Rather, the question is whether the city has a compelling interest in denying an exception to CSS. The court concluded that the defendant had no such compelling interest because CSS seeks an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. If anything, the court observed, including CSS in the program seems likely to increase, not reduce, the number of available foster parents.

Concurring, Justices Amy Coney Barrett, Brett Kavanaugh and Stephen Breyer questioned Smith: "[I]t is difficult to see why the Free Exercise Clause – lone among the First Amendment freedoms – offers nothing more than protection from discrimination. Yet what should replace Smith?" Concurring in judgment, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, answered: strict scrutiny, the standard that Smith replaced. But Justices Barrett, Kavanaugh and Breyer worried that strict scrutiny would be too categorical. As nuance, they wondered whether the church should be treated differently than individuals or if there should be a distinction between indirect and direct burdens on religious exercise. In contrast, Justices Alito, Thomas and Gorsuch said the same fundamental principle applies to religious exercise as to speech: "In an open, pluralistic, self-governing society, the expression of an idea cannot be suppressed simply because some find it offensive, insulting or even wounding." They criticized Smith as a departure from precedent that has proven unworkable. They also criticized Fulton. Justice Alito called it a "wisp of a decision" and wrote that it "might as well be written on the dissolving paper sold in magic shops" because "if the city wants to get around today's decision, it can simply eliminate the never-used exemption power" and "the parties will be back where they started." He doubted the case will be of help in other foster care and adoption agency cases, much less other kinds of religious liberty cases.


School Closing Order Was Contrary to Wisconsin Statute and Constitution

In James v. Heinrich, 960 N.W. 2d 350 (Wis. 2021), the Wisconsin Supreme Court ruled that a county health official lacked the power to issue an order closing public and private K-12 schools in response to the COVID-19 pandemic under Wis. Stat. § 252.03 and violated the fundamental right to the free exercise of religion guaranteed under Article I, Section 18 of the Wisconsin Constitution to the plaintiff, a parent of two students enrolled in Our Redeemer Lutheran School. Sara Lindsey James' case was consolidated with petitions filed by others. In September 2020, the court enjoined those provisions of the order, which purport to prohibit schools throughout Dane County from providing in-person instruction to students. Now, on the merits the court determined that nowhere in Section 252.03 did the legislature give health officials the power to close schools. In any event, the court determined that the order was subject to strict scrutiny as applicable under Article I, Section 18, which the court determined is a more rigorous protection of free exercise than the First Amendment. The strict scrutiny test requires a person to prove 1) that it has a sincerely held religious belief, and 2) that such belief is burdened by the application of the law at issue. The parties stipulated to the first test. The court found the second test met. "[A]ll in person religious practices interwoven with religious education" at the schools subject to the order "were suspended by government decree." Furthermore, the government barred students from attending Mass, receiving Holy Communion, receiving the sacrament of confession, participating in communal prayer, and going on retreats and service missions. Upon this showing, the burden shifts to the state to prove 3) that the law is based upon a compelling state interest 4) that cannot be served by a less restrictive alternative. The court determined that the state has a compelling interest in slowing the spread of COVID-19, but the order failed the last test. The order allowed K-2 and college students to meet in person but not grades 3-12. It also abandoned alternatives such as social distancing and face coverings. Justices Rebecca Frank Dallet, Ann Walsh Bradley and Jill Karofsky dissented, arguing that Section 252.03 does not prohibit local health officers from closing schools and chastised the court for its constitutional analysis when its statutory analysis resolved the case.

Religious Exemption Against Prosecution for Gathering Constitutional

In Bormuth v. Whitmer, No. 2:20-cv-11399, 2021 WL 2910524 (E.D. Mich. July 12, 2021), the plaintiff attacked the exemptions against criminal prosecution for religious gatherings during the pandemic. The plaintiff's initial challenge under the Establishment Clause claimed that houses of worship could be superspreaders, which would expose him to the COVID-19 virus. As amended, the complaint alleged that the expression of his own religious beliefs were inhibited and that the religious worship exemption unconstitutionally benefited religion and, disproportionately, Christianity. The court determined that the plaintiff failed to plead any concrete harm flowing from the exemption and, thus, lacked standing. The court also ruled the plaintiff's claims moot because the relevant order limiting gatherings was rescinded by an order without a like religious practice exemption. Alternatively, the court determined that the exemption from prosecution for places of religious worship and their owners did not harm the plaintiff; if anything, the exemption protected him and enabled pagan religious exercise.

Establishment Clause

Limited Inquiry Permissible into Whether Schools Are of the Same Denomination, Disqualifying One from a Public Benefit

In St. Augustine Sch. v. Taylor, No. 2021AP265-CQ, 2021 WL 2755121 (Wis. July 2, 2021), the Wisconsin Supreme Court ruled that the school district may conduct a neutral and secular inquiry into whether two private schools are of the same religious denomination and in the same attendance area for purposes of evaluating whether a school qualifies for transportation benefits under state statute, but the superintendent may not conduct an investigation or surveillance with respect to the school's religious beliefs, practices or teachings. As interpreted by prior case law, Wis. Stat. §§ 121.51 and 121.54 entitle a private school affiliated or operated by a single sponsoring group such as a denomination to receive public funding to transport children to the school. The superintendent denied the plaintiff's application on the ground that another Catholic school within the same attendance area was already receiving the benefit. The plaintiff denied it was affiliated with the Archdiocese of Milwaukee like the other school. The question certified by the U.S. Court of Appeals for the Seventh Circuit to the Wisconsin Supreme Court was: "For purposes of determining whether two or more schools are 'private schools affiliated with the same religious denomination' for purposes of Wis. Stat. § 121.51, must the state superintendent rely exclusively on neutral criteria such as ownership, control and articles of incorporation, or may the superintendent also take into account the school's self-identification in sources such as its website or filings with the state."

The Seventh Circuit certified this question shortly after the U.S. Supreme Court vacated the Seventh Circuit's judgment. That judgment affirmed the district court's determination that the superintendent did not cause excessive entanglement with religion by investigating and concluding that the plaintiff is affiliated with the Catholic denomination. Judge Kenneth Ripple dissented from the Seventh Circuit's holding. The U.S. Supreme Court remanded the case for further consideration in light of two cases. On certification by the Seventh Circuit, the Wisconsin Supreme Court concluded, contrary to Judge Ripple, that the superintendent could consider the professions of the school with regard to the school's self-identification and affiliation and the school's corporate documents. "[A]ccepting St. Augustine's self-identification does not require any investigation at all or any determination of whether St. Augustine is Catholic – they are simply taking St. Augustine at its word." Justice Rebecca Grassl Bradley dissented, arguing that Wis. Stat. § 121.51(1) was originally directed exclusively at schools affiliated with the same religious denomination, but to save it the court expanded the statute beyond its plain text to private schools affiliated or operated by a single sponsoring group. She called for overturning this precedent and was critical of the majority for causing entanglement with religion and giving, in her judgment, little assistance to the Seventh Circuit in resolving the dispute.

Land Use

Conditional Use Permit That Disadvantaged Churches Actionable Under FERA

In Henry v. City of Somerton, No. CV-18-03058, 2021 WL 2514686 (D. Ariz. June 17, 2021), plaintiff Stephen Henry rented space along West Main Street in the defendant City of Somerton to start a church, the Iglesia Bautista de Somerton. Religious assemblies were a conditional use in the city, but the plaintiff did not apply for one. He forged ahead with electrical work without a permit and opened the church for services. The city issued two separate criminal citations against the plaintiff. Meanwhile, the U.S. Department of Justice notified the city that it had initiated an investigation into the conditional use permit (CUP) ordinance to determine whether it violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by virtue of treating churches on less than equal terms than nonreligious assemblies. In response, the city dismissed the second misdemeanor citation against the plaintiff for failing to obtain a CUP. Next, the Arizona Attorney General's Office expressed its concern that the CUP violated Arizona's Free Exercise of Religion Act (FERA) and encouraged the city to amend the CUP. The city followed this advice and removed the requirement that religious assemblies obtain a CUP to operate along Main Street. The city also dismissed the remaining criminal charges against the plaintiff related to electrical permitting. The plaintiffs then sued the city under FERA, the Free Exercise Clause and the Equal Protection Clause, and they alleged malicious prosecution. The plaintiffs asserted that the CUP ordinance was also a prior restraint on religious exercise. The court determined that the defendant violated FERA, but dismissed the plaintiffs' other counts. Under FERA, the court determined that the CUP requirement treated the church on less than equal terms than fraternal organizations and other nonreligious assemblies and was actionable on this basis. But because the plaintiffs never applied for a CUP, the court ruled that they lacked standing to argue that the CUP evaluation process is unconstitutional. The court also determined that the city officials had qualified immunity against liability; there was no evidence of selective or uneven enforcement of the CUP as necessary to support a free exercise and equal protection claim; and the prosecution of Henry was supported by probable cause so as to prevent malicious prosecution.

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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