July 19, 2022

Religious Institutions Update: July 2022

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

Key Cases

Establishment Clause

Maine Scholarship Program Excluding Sectarian Schools Unconstitutional

In Carson v. Makin, 142 S.Ct. 1987 (2022), the U.S. Supreme Court struck a tuition assistance program that requires school districts to transmit payment to the secondary school — public or private, in-state or out-of-state — that parents would like their child to attend as long as the school is nonsectarian. Maine is the most rural state in the union. Not all school districts operate a public secondary school, so the legislature responded with this financial aid program. In administering the program, Maine considered a "sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith." According to the court, "The State pays tuition for certain students at private schools – so long as the schools are not religious. That is discrimination against religion." Maine and the First Circuit argued that Maine's limitation was a permissible "use" based limitation on public funds, rather than an exclusion based on the school's religious status. The majority disagreed there was any distinction between the two. The court also rejected "play in the joints" between the religion clauses as grounds to allow Maine to enforce a stricter separation of church and state in tension with the Free Exercise Clause in the absence of any linkage to clergy education. Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor dissented and expressed grave concern about the potential for state-sponsored religious primary instruction to trigger religious conflict and about the court "dismantl[ing] the wall of separation between church and state."

U.S. Supreme Court Recognizes Abandonment of the Lemon Test

The U.S. Supreme Court formally recognized abandonment of the so-called Lemon test this term. Two rulings are important in this regard. First, in Shurtleff v. City of Boston, 142 S.Ct. 1583 (2022), the court ruled that the City of Boston violated the Free Speech Clause by refusing to allow the plaintiff, director of an organization called Camp Constitution, to raise a "Christian flag" under the city's program allowing private groups to use one of three flag poles on the plaza in front of City Hall to fly the flag of their choosing for the duration of events sponsored by the group. The city refused the request based on a concern that flying the flag could violate the Establishment Clause. Justice Breyer delivered the opinion of the court. It dispensed with the city's concern not on the basis of the Lemon test. Instead, the court mentioned a triad of factors based on history, the public's perception of who is speaking and the extent to which the government has exercised control over speech. Concurring only in the judgment, Justices Samuel Alito, Clarence Thomas and Neil Gorsuch rejected this three-part test as "always and everywhere" applicable when the government claims that its actions are immune to First Amendment challenge under the government-speech doctrine. They noted the opinion itself proved the three-part test is not always applicable because two of the factors favored the city, yet the court decided against it. They would have resolved the case by deciding whether the government purposefully expresses a message of its own through persons authorized to speak on its behalf without relying on a means that abridges private speech. Justices Gorsuch and Thomas, responsible for a second concurrence, asked the question how the city got it "so wrong" anyway. They put some of the blame on Lemon, which they argued the court had not applied for nearly two decades and actually had been laid to rest. They asked why localities and lower courts nevertheless frequently exhumed it. They had two theories: some simply preferred the policy outcomes that Lemon could be "manipulated" to produce and some preferred Lemon to undertaking "a careful examination of the Constitution's original meaning."

Justices Gorsuch and Thomas persuaded a majority on the court about Lemon in Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407 (2022). The court ruled that Bremerton School District unconstitutionally burdened a coach's Free Exercise and Free Speech rights by suspending him for persisting in quiet prayer on the 50-yard line after football games. In so doing, the court stated that it had already abandoned the so-called "Lemon test" due to its "shortcomings" and made plain that the Establishment Clause does not include a "modified heckler's veto," according to which religious activity can be proscribed based on perception or discomfort. Justices Sotomayor, Breyer and Kagan dissented. They disagreed sharply with the majority's view that Lemon was already overruled. For example, they observed that "while separate writings in Shurtleff criticized Lemon, the Court did not." They said that not applying a test in a given case is different from overruling it. Justices Breyer and Kagan also disagreed about the facts of the case and criticized the alternative test that the Kennedy court announced. In place of the Lemon test, the court ruled that it "has instructed that the Establishment Clause must be interpreted by 'reference to historical practice and understandings.'" The dissent criticized this approach because it "offers essentially no guidance for school administrators."

District Court Grants Summary Judgment Against Religious Institutions Seeking to Participate in CARES Act Funding

As background, in July 2020, South Carolina Gov. Henry McMaster announced plans to allocate Coronavirus Aid, Relief and Economic Security (CARES) Act funds to assist the state's public and independent historically black colleges and universities and to establish the Safe Access to Flexible Education (SAFE) Grants Program to provide need-based grants for eligible students to attend private and independent schools. A public school district, education association and private plaintiffs challenged the SAFE Grants Program as in violation of S.C. Const. art. XI, § 4 (1972), which reads, "No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution." The South Carolina Supreme Court agreed in Adams v. McMaster, 432 S.Ct. 225, 851 S.E. 2d 703 (2020), whereupon the governor and South Carolina Department of Administration reallocated the available funds to other programs. In response, the Bishop of Charleston and South Carolina Independent Colleges and Universities Inc. filed the instant lawsuit against the executive director and budget director of the South Carolina Department of Administration and governor asking the court to prevent the defendants from relying on the constitutional provision to deny them access to CARES Act funds.

In Bishop of Charleston v. Adams, No. 2:21-cv-1093-BHH, 2022 WL 407405 (D. S.C. Feb. 10, 2022), the district court ruled against the plaintiffs, who alleged that S.C. Const. Art. XI, § 4 was based on religious and racial bigotry in violation of the Equal Protection and Free Exercise Clauses. According to the court, S.C. Const. Art. XI, § 4 is not a "Blaine Amendment" despite similarity in language. The original text dates back to 1868. S.C. Const. Art. X, § 5 (1868) ("No religious sect or sects shall have exclusive right to, or control of any part of the school funds of the state."). It was first amended and moved in 1895. S.C. Const. Art. XI, § 9 (1895), prohibiting use of public money "in aid or maintenance of any college, school, hospital, orphan house or other institution, society or organization, of whatever kind, which is wholly or in part under the direction or control of any church or of any religious or sectarian denomination, society or organization." It was amended and moved a second time to its current language in 1972. S.C. Const. Art. XI, § 4 (1972).

Whether or not the original versions of the provision were motivated by racial or religious animus, the court determined that the amended text was not. Furthermore, the court ruled that it had no discriminatory impact because it disadvantaged Black and white low-income students alike and applied equally to all private schools, whatever their religious affiliation or lack thereof. Therefore, the court granted summary judgment against the plaintiffs' claim that they were entitled to CARES Act funds. The court determined that the plaintiffs lacked standing to challenge the governor's discretionary allocation of the Governor's Emergency Education Relief (GEER) Fund and that, in any event, the plaintiff's claim against the governor was moot, as the deadline to allocate GEER funds had passed and all such funds had been allocated.


Religious Exemption to Mandatory Vaccination of Service Members Receives Mixed Review

In Austin v. U.S. Navy Seals 1-26, 142 S.Ct. 1301 (2022), the U.S. Supreme Court granted the government's request for a partial stay of a district court order preventing the U.S. Navy from considering respondents' vaccination status in making deployment, assignment and other operational decisions pending disposition of the appeal in the Fifth Circuit, even though the Fifth Circuit denied the government's same request for stay. U.S. Navy Seals v. Biden, 27 F. 4th 336 (5th Cir. 2022). The Fifth Circuit decided that the Navy failed to make a strong showing that it was likely to succeed on the merits of its claim that the Navy had a compelling interest in preventing the spread of COVID-19 among small units in remote locations where there was no evidence that the Navy had evacuated anyone from missions due to COVID-19, and the Navy had granted 17 medical exemptions but no religious exemptions to Seals. The Navy has granted not a single one of 4,000 requests for exemption on religious grounds. Concurring, Justice Brett Kavanaugh argued the court should steer clear of interfering with military judgment. He assumed without deciding that the Religious Freedom Restoration Act (RFRA) applies in the military context. Dissenting, Justices Alito and Gorsuch argued the stay gave the Navy too much authority to "warehouse" the non-vaccinated Seals. They added that the Navy's summary rejection of respondents' requests for religious exemptions was not the least restrictive means of furthering the compelling interest they confessed in minimizing serious health risk to Navy personnel in potential violation of RFRA and the Free Exercise Clause.

Subsequent to the Supreme Court's decision, in Doster v. Kendall, No. 1:22-cv-84, 2022 WL 982299 (S.D. Ohio March 31, 2022), the district court ruled that the U.S. Air Force's COVID-19 vaccination mandate constituted a substantial burden within the meaning of RFRA on the sincerely held religious beliefs of 18 active duty and reservist airmen stationed across the U.S. Of 4,403 religious exemption requests, the Air Force granted only 21, and of 1,162 appeals of denials of religious exemptions, the Air Force granted only two. RFRA precludes the government from relying on broad formulaic compelling interests such as "stemming the spread of COVID-19" and "promoting military readiness." The fact that over 2,500 airmen freely received exemptions from the mandate despite these stated interests tended to undermine them in the court's view. The vaccination mandate was not the least restrictive means to further the Air Force's interests in any event. The court decided that granting the 18 airmen their request would lead to minimal interference with military function because only a small percentage of Air Force members remained unvaccinated. The court also ruled in favor of the plaintiffs on their Free Exercise claim. According to the court, the vaccination mandate is not generally applicable because it allows for medical and administrative exemptions as well as religious exemptions. The court decided the airmen are entitled to a preliminary injunction prohibiting taking disciplinary or separation measures against them. The district court expressed its view that this case and injunction are distinguishable from Austin as limited to solely the individual plaintiffs and only maintaining the status quo by maintaining the current temporary exemptions and prohibiting adverse or punitive actions against them for their refusal to receive the COVID-19 vaccine without affecting the Air Force's ability to make operational decisions, including deployability decisions.

Free Exercise

Plaintiff Lacks Standing to Challenge No Fault Divorce Law as Free Exercise Violation

In King v. N.Y., No. 21-780-cv, 2022 WL 1451446 (2d Cir. May 9, 2022), the Second Circuit affirmed dismissal of the plaintiff's complaint seeking an order declaring null and void New York's no fault divorce law on the grounds that the law and her recent divorce violated her Free Exercise and Establishment Clause rights by requiring her to become divorced despite her religious belief in marriage until death. The court decided that, because marriage is a civil contract and the plaintiff alleged "only" the termination of that contract, she failed plausibly to allege that the civil judgment of divorce entered against her severed her holy marriage covenant made before God or changed her status under the laws of God. The plaintiff failed to allege that her own particular religious freedoms were infringed or direct harm arising from the claimed establishment of religion and, thus, failed to state a claim under the Free Exercise and Establishment Clauses.


Self-Imposed Burden Insufficient Basis for RLUIPA Claim

In Canaan Christian Church v. Montgomery Cnty., 29 F. 4th 182 (4th Cir. 2022), the Fourth Circuit affirmed summary judgment in favor of the defendants on plaintiffs' claim that denial of their water and sewer category change requests violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). The court determined that the burdens on the plaintiffs' land use were self-imposed hardships. The plaintiffs entered into contingent sale agreements for property expressly excluded from receiving public sewer access under the defendant's master plan. The plaintiffs also failed to consider alternatives such as septic service and water service only for a smaller facility than planned as suggested by the county. As a matter of first impression, the court ruled that a plaintiff bringing a so-called "equal terms" challenge under RLUIPA must present evidence that a similarly situated nonreligious comparator received differential treatment under the challenged regulation. The court ruled that the defendant did not treat the church on less than equal terms with secular organizations. The court decided that the zone in which the church would be located was more restrictive than a comparator that the plaintiffs relied upon and that the church failed to identify a comparator in the same zone that was treated more favorably than the church.

Ministerial Exception

Order Denying Summary Judgment on Ministerial Exception Defense Not Immediately Appealable

In Tucker v. Faith Bible Chapel Int'l, 36 F. 4th 1021 (10th Cir. 2022), the court ruled that a district court's order denying a religious school summary judgment on its First Amendment ministerial exception defense was not an immediately appealable final order and added that the school failed adequately to develop its defense against a former high school teacher and director of student life/chaplain's claim that he was fired allegedly for opposing race discrimination in violation of Title VII. The plaintiff was fired after teaching a chapel on race and religion. In particular, there was no record development on the threshold question of whether the parties' employment dispute was rooted in difference in religious belief or doctrine, and the parties only briefly and very generally alluded to the nature of their dispute in their pleadings. According to the court, requiring religious employers to incur litigation costs to defend against claims asserted against them by an employee under a generally applicable employment discrimination statute does not punish the religious employer; it is, instead, the cost of living and doing business in a civilized and highly regulated society.

The court rejected the appellant's argument that the "ministerial exception" is a semi-jurisdictional "structural" limitation on courts' authority to hear Title VII claims or that there is an analogy between it and immediately appealable decisions to deny government officials qualified immunity from suit under 42 U.S.C. § 1983. The court distinguished the church autonomy doctrine, which it said was not at issue. Judge Robert Bacharach dissented. In his view, the court had appellate jurisdiction over the lawsuit under the collateral-order doctrine because the ministerial exception doctrine is not merely a defense against liability, but also a "right not to stand trial" and is a species of the church autonomy doctrine. The Supreme Court determined that "ministerial exception bars … a suit." In context, Judge Bacharach considered this significant, whereas the majority said it was an "expansive and novel" claim rather than fair reading of the case as a whole. Judge Bacharach argued the court should have reversed because of the plaintiff's title as director of student life/chaplain, handbook and contract reference to his role as minister and teaching two classes in the Bible Department, whereas the majority was convinced that in the light most favorable to the plaintiff, a jury could decide the plaintiff is not a ministerial employee.

Ministerial Exception Bars Sex Discrimination Claims

In Markowski v. Brigham Young Univ., No. 2:20-cv-00872-JNP-CMR, 2022 WL 407249 (D. Utah Feb. 10, 2022), the court granted summary judgment under the ministerial exception doctrine to the university against a former employee and trainer at the Online Teaching Center of the University's Missionary Training Center who claimed sex discrimination and retaliation under Title VII arising out of her termination for cutting her hair too short. The court determined that the employee plainly played a vital role in advancing the religious mission of the university and that her job as trainer of online missionaries came within the ministerial exception.

In Butler v. St. Stanislaus-Kostka Catholic Academy, No. 19-CV-3574, 2022 WL 2305567 (E.D. N.Y. June 27, 20202), the court granted summary judgment under the ministerial exception and church autonomy doctrine to the academy against a former employee who claimed sexual orientation discrimination under Title VII and analogous New York state and city laws, as well as unpaid wages under the New York Labor Law. The plaintiff applied to teach English language arts and social studies, stating that the position would be "a way of enacting" his faith, "to teach in a Catholic setting." He signed a contract requiring him to exemplify by his public conduct Catholic doctrine and morality, serve as a role model of the Catholic faith and include the church's teachings within the subject matter of his lessons. The faculty handbook stated that he must "embrac[e] the ministry" and could be terminated if he violated "the tenets of Catholic morality or teaching contrary to Catholic doctrine." The academy terminated the plaintiff after he sent an email announcing that he was homosexual and planned on eventually marrying his boyfriend. During orientation he "object[ed] to his own job description - what he was being told that he had to do to perform the job successfully" (emphasis original); i.e., the requirement to "live church doctrine." Catholic doctrine holds that marriage is only between a man and a woman. The school stated that if the plaintiff was living a celibate life, his sexual orientation would be meaningless; however, his choice to marry another was a "clear and obvious violation of Church teachings." The court decided that the plaintiff was hired into a ministerial capacity and that summary judgment was required under the ministerial exception doctrine. In addition, the court decided that the broader church autonomy doctrine required summary judgment because the court could not subject to examination the genuineness of the proffered religious reason for the employment action. The court declined to exercise supplemental jurisdiction over the plaintiff's remaining state law claims.

In Iwuchukwu v. Archdiocese for the Military Servs., No. 21-1980, 2022 WL 424984 (D. D.C. Feb. 11, 2022), the district court dismissed the Fourteenth Amendment and retaliation claim of a former Catholic priest who worked at Georgetown University Hospital and the U.S. Department of Veteran Affairs after the defendant revoked his faculties and endorsement when he was accused of sexual abuse by a former hospital patient. The plaintiff protested that he was innocent. The defendants first argued that the "ecclesiastical abstention doctrine" barred the court from reviewing the archbishop's decision. The ministerial exception doctrine was not at issue because the plaintiff was not employed by the Archdiocese. The court agreed that it lacked jurisdiction over the lawsuit under the ecclesiastical abstention doctrine on the grounds that the conferral of faculties and an endorsement on a priest is a purely religious decision that cannot be reviewed by courts. On the merits, the court decided that the plaintiff's Fourteenth Amendment claim must fail because he did not challenge state action and because D.C. Code § 2-1402.61 contains an exception for religious organizations.

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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