October 6, 2021

Religious Institutions Update: October 2021

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

Key Cases

Title VII

Morals Clause Ruled Not Within Title VII Religious Exemptions

Title VII of the Civil Rights Act of 1964 makes it unlawful "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." The statute includes two religious exemptions. Section 702(a) exempts "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." Section 703(e)(2) states it is not an "unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion."

The reach of the section 702 and 703 religious exemptions as compared to the prohibition on sex discrimination contained in Title VII as interpreted in Bostock v. Clayton Cnty., 140 S.Ct. 1731 (2020) was reviewed in Billard v. Charlotte Catholic High Sch., 3:17-cv-00011, 2021 WL 4037431 (W.D. N.C. Sept. 3, 2021). Due to its code of conduct or morals clause, Charlotte Catholic High School chose not to give additional substitute teacher assignments to a teacher after he publicly announced his same-sex wedding. The school argued that it did not punish the plaintiff for being homosexual, but for his advocacy against the Catholic Church's religious belief that marriage is between one man and one woman. The court rejected this defense. "[S]ince this Court has decided that sex was a but-for cause of Plaintiff's removal, Defendants do not qualify for section 702 or 703 protection." The court went on to rule that the Religious Freedom Restoration Act (RFRA) was not available as a defense to the school on the theory that RFRA does not apply against private parties. The school stipulated that the plaintiff was not a minister, but the court analyzed the question anyway on the merits and agreed.

Ministerial Exception

Ministerial Exception Doctrine Bars Guidance Counselor's Sex Discrimination Claim

As reported in December 2020, Starkey v. Roman Catholic Archdiocese of Indianapolis, 496 F. Supp. 3d 1195 (S.D. Ind. 2020), previously addressed the reach of the religious exemptions to Title VII as compared to the Title VII prohibition on sex discrimination. The case is on appeal. However, in Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., No. 1:19-cv-03153-RLY-TAB, 2021 WL 3669050 (S.D. Ind. Aug. 11, 2021), the district court ruled that a teacher turned co-director of guidance qualifies as a "minister" and, as a result, the ministerial exception doctrine bars the plaintiff's claims of discrimination, retaliation and hostile work environment under Title VII, tortious interference with contractual relationship and tortious interference with employment relationship. The school guidance counselor ministry description designated a guidance counselor as a "minister of the faith" and charged her with "foster[ing] the spiritual … growth" of her students by communicating the Catholic faith to students, praying with and for members of the school community, teaching and celebrating Catholic traditions, modeling the example of Jesus, conveying the church's message, and participating in religious instruction and Catholic formation. Her first role was to facilitate faith formation. The plaintiff was also one of a select group of school leaders on the Administrative Council responsible for guiding the school in its mission.

Title IX

District Court Denies TRO Against Title IX Religious Exemption

Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]" 20 U.S.C. § 1681(a). The statute includes a religious exemption, which provides that Title IX "shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization[.]" Id. § 1681(a)(3). In Hunter v. U.S. Dep't of Educ., No. 6:21-cv-00474, 2021 WL 3861154 (D. Or. Aug. 30, 2021), a putative class action lawsuit, the court denied the plaintiffs' request for a temporary restraining order (TRO) to enjoin the defendant's application of the religious exemption to sexual and gender minority students who attend private religious colleges and universities that receive federal funding as in violation of the First, Fifth and Fourteenth Amendments and RFRA. In addition, the plaintiffs allege that defendants' August and November 2020 amendments to 34 C.F.R. § 106.12(b) and (c) are arbitrary and capricious in violation of the Administrative Procedure Act (APA). The court determined that the plaintiffs' motion fails to show a likelihood of irreparable harm or that the balance of the equities or public interest favors the injunction. As relates to the first point, the Office of Civil Rights for the defendant has not yet reached a determination on each plaintiff's administrative complaint of discrimination, and there is no timeline when a determination will be reached as to whether the religious exemption should be applied. As relates to the second point, the court decided that an injunction would be contrary to the public interest as reflected by the long-standing religious exemption contained in the statute.

Transgender Plaintiff States Claim Against Hospital for Refusing Hysterectomy

In Hammons v. Univ. of Maryland Med. Sys. Corp., No. DKC 20-2088, 2021 WL 3190492 (D. Md. July 28, 2021), a transgender man sought to undergo a hysterectomy as part of his treatment for gender dysphoria. Either the plaintiff or his surgeon scheduled the surgery at the University of Maryland St. Joseph Medical Center. The hospital canceled the procedure because Catholic doctrine bars surgeries that result in sterilization such as hysterectomy except when their "direct effect is the cure or alleviation of a present and serious pathology and a simpler treatment is not available." The plaintiff then sued the defendant, claiming that the defendant, as an arm of the state, impermissibly endorsed and entangled itself with religion in violation of the Establishment Clause by owning St. Joseph subject to Catholic doctrine, violated equal protection and discriminated on grounds of sex in violation of section 1557 of the Affordable Care Act. The court dismissed the first two counts on the basis of sovereign immunity. However, the court determined that sex was a "but for" cause of the hospital canceling the plaintiff's surgery. The court applied the Title VII or Title IX standard. "As explained in Bostock, a defendant who takes adverse action against someone for being transgender 'inescapably intends to rely on sex in' his decisionmaking." The court determined that the hospital denied the plaintiff its services because he has gender dysphoria, "a condition inextricably linked to being transgender." Furthermore, the court determined that the hospital removed otherwise healthy tissue in other circumstances such as to prevent cancer or to perform purely cosmetic surgery.

Public Accommodations Law

Application of State Antidiscrimination Law Survives Free Exercise Review

In 303 Creative LLC v. Elenis, 6 F. 4th 1160 (10th Cir. 2021), the court decided a pre-enforcement challenge to the Colorado Anti-Discrimination Act (CADA). A website design company and its founder sued to avoid liability under CADA for refusing to create custom wedding websites for same-sex marriages based on the founder's religious beliefs. Neither objected to serving all people regardless of sexual orientation, only creating expressive content that violates their sincerely held beliefs. The court ruled (2-1) that CADA falls within Smith as a neutral law of general applicability, not subject to strict scrutiny for a free exercise challenge. The Tenth Circuit conceded that the "accommodation clause" of CADA compels speech. That clause prevents a public accommodation from refusing an individual because of sexual orientation the full and equal enjoyment of goods, services and facilities. But the court determined that enforcing it is narrowly tailored to Colorado's interest in ensuring equal access to the commercial marketplace. Relatedly, the court determined that the "communication clause" of CADA, prohibiting a public accommodation from publishing a statement indicating that service would be refused because of sexual orientation, did not violate free speech rights because Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination. Last, the "unwelcome provision" in the communications clause of CADA, prohibiting statements from a public accommodation indicating that an individual's patronage is unwelcome because of sexual orientation, was not unconstitutionally overbroad or vague. Chief Judge Timothy Tymkovich dissented and observed, "The majority's opinion endorses substantial government interference in matters of speech, religion, and conscience. Indeed, this case represents another chapter in the growing disconnect between the Constitution's endorsement of pluralism of belief on the one hand and anti-discrimination laws' restrictions of religious-based speech in the marketplace on the other."

Free Exercise

Special Immigrant Religious Worker Visa Requirements Upheld

In Salesian Soc'y v. Mayorkas, No. 18-0477, 2021 WL 4306150 (D.D.C. Sept. 22, 2021), the court granted summary judgment to the defendants against the plaintiffs' challenge to the following requirements for award of the special immigrant religious worker visa: applicants must show that 1) they will be working in a "compensation position" when they enter the U.S., which "may include salaried or non-salaried compensation"; and 2) they received salaried or non-salaried compensation for the religious work they performed in the two years before filing their petition, or they received no salary during that time but provided for their own support. The plaintiffs took a vow of poverty and alleged that they could never meet these requirements in violation of RFRA and the First Amendment. The court disagreed because they could still provide evidence of their religious organization's direct or indirect financial support in the form of payment for housing, food or tuition for religious studies, among other things, or by providing evidence of the religious worker's self-support. The plaintiffs also challenged the requirements under the APA as not contemplated by the underlying statute, which states that an applicant must "for at least two years immediately preceding the time of the application … ha[ve] been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States." Applying so-called Chevron analysis, the court ruled for the government. Among other things, the court agreed with the government that the requirements were necessary to stem fraud in the religious worker program. Finally, the court determined that the government's denials of the plaintiffs' I-360 petition were not arbitrary or capricious, but a result of the plaintiffs' failure to respond adequately to agency requests.


Court Enjoins Denial of Religious Exemption for Soccer Players

In Dahl v. Bd. of T'ees of W. Michigan Univ., No 1:21-cv-757, 2021 WL 3891620 (W.D. Mich. Aug. 31, 2021), the court issued a temporary restraining order against the defendant in favor of members of the university soccer team who requested and were denied a religious exemption to the defendant's COVID-19 vaccination requirement contrary to the Free Exercise Clause. The defendant claimed a compelling interest in vaccination and asserted that prohibiting unvaccinated members of the team from engaging in practices and competition is the only effective manner of accomplishing the compelling interest. However, the plaintiffs pointed out that the university permits unvaccinated students to participate in intramural sports and to eat in cafeterias. Those granted religious exemptions must undergo weekly testing and must wear face coverings.

Establishment Clause

Parents Excluded from Tuition Benefit State Claim Against Vermont Agency of Education

In A.H. v. French, No. 2:20-cv-151, 2021 WL 3619688 (D. Vt. Aug. 16, 2021), parents of school-aged children denied public reimbursement for tuition to attend a parochial school that the secretary of the Vermont Agency of Education (AOE) considered too religious for their children to attend on public scholarship stated a claim against the secretary. Under Vermont statutory law, towns have the choice of maintaining a public high school or paying tuition for a student to attend a private high school. The secretary rested his denial of tuition on this provision in the Vermont Constitution: "That all persons have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God; and 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." AOE stripped funding from school districts that paid tuition to "pervasively sectarian" schools such as the one the plaintiffs chose for their children, utilizing a test that asked: 1) if the school is affiliated with a "sect"; 2) whether the school requires students to participate in "sectarian" activities; and 3) whether the school requires education in specific sectarian courses or other curriculum activities. The court denied the secretary's claim that he was immune from suit under the doctrine of sovereign immunity, but agreed that the Diocese of Burlington lacks standing to assert the claims of all of those families who are eligible to receive town tuition benefits from the defendants and who wish to attend the school but cannot without the public benefit.

In Valente v. French, No. 2:20-cv-00135, 2021 WL 3620073 (D. Vt. Aug. 16, 2021), another set of parents of school-aged children — who were denied public reimbursement for tuition to attend another parochial school that the secretary of AOE considered too religious for their children to attend on public scholarship — stated a claim under the Equal Protection Clause, but not the First Amendment, against the state defendants, including the secretary. The court determined that the plaintiffs plausibly pleaded that the state defendants' alleged policy of denying religious educational options to tuition-eligible families while allowing them private non-sectarian options is discriminatory on its face on the basis of religion. The plaintiffs did not allege that they send their child to a Catholic school in furtherance of their religious beliefs but rather because of its high-quality academics and, thus, they failed to state a free exercise claim. The court rejected their establishment of secularism claim, expressive association claim for lack of any allegations that they associate with their chosen school for any expressive purpose, and substantive due process claim as subsumed by the free exercise and equal protection claims. The court also determined that the plaintiffs lacked standing to sue certain union defendants for lack of any allegations that the unions play any role in the tuition decisions.

Church Autonomy

Court Dismisses Bishop's Indemnification Complaint Against Church

In Kawimbe v. African Methodist Episcopal Church, No. 1:20-cv-04711, 2021 WL 3852066 (N.D. Ga. Aug. 27, 2021), the court sua sponte determined that it lacked subject matter jurisdiction over a bishop's suit for indemnification against his church to recover attorneys' fees and costs incurred successfully defending himself in a proceeding internal to the church alleging that he engaged in "private humiliation" and mishandled church funds. To determine the church's liability for indemnification, the court would have to determine whether the plaintiff is a representative of the church and whether the internal proceeding was brought against him "by reason of" his representative status. The court concluded that it could not resolve these questions by applying neutral principles of law, as it would be "required to scrutinize" the composition of the church hierarchy and nature of the plaintiff's role as a bishop, "which are matters of 'core ecclesiastical concern.'" The court dismissed the plaintiff's complaint for want of jurisdiction.

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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