January 9, 2023

Religious Institutions Update: January 2023

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

Key Cases


Vaccination Mandate Conforms with First Amendment

In Kane v. De Blasio, No. 21 Civ. 7863, 21 Civ. 8773, 2022 WL 3701183 (S.D. N.Y. Aug. 26, 2022), the district court ruled that New York City Department of Education employees who refused the COVID-19 vaccination for religious reasons failed to demonstrate that the city's COVID-19 vaccination mandate violated the Free Exercise Clause, Establishment Clause, Equal Protection Clause, substantive or procedural due process, or was unconstitutional under Title VII as applied to employees. The court ruled that the vaccine mandate is facially neutral and generally applicable. There is no evidence that it was adopted with religious animus; thus, the Free Exercise Clause is not violated. As relates to the Establishment Clause, the court cited a "long history of vaccination requirements in this country and in this Circuit." The court rejected the Equal Protection Clause claim because the plaintiffs did not point to similarly situated persons who have been treated differently. As relates to substantive due process, the court ruled that it has consistently recognized that the constitution embodies no fundamental right that in and of itself would render vaccine requirements unconstitutional or that it shocks the contemporary conscience. Concerning procedural due process, the court ruled that the plaintiffs failed to identify a protected liberty interest or a property interest in employment. As relates to the Title VII claim, the court noted that the circuit court and other courts have found that vaccination is a proper condition of employment. The court dismissed the complaint and denied injunctive relief.

Religious Accommodation

Defendant Failed to Accommodate Plaintiff's Religious Practices

In Suarez v. State, 517 P. 3d 474 (Wash. App. Div. 3, 2022), the court ruled that a fact issue precluded summary judgment on a claim under the Washington Law Against Discrimination (WLAD) that the employer failed to accommodate the employee's religious practices and for wrongful discharge in violation of public policy. Employees allegedly called in as "unavailable" without further explanation so frequently that the school had a regular process for covering the shifts and negotiated mandatory overtime in the collective bargaining agreement. "If the school is accommodating unplanned leave for secular reasons other than sickness, it raises a question as to whether accommodating Suarez's request caused an undue hardship," the court stated in its opinion. The plaintiff, a certified nursing assistant (CNA), sued Yakima Valley School, a certified residential nursing facility serving disabled adults, contending that her work schedule conflicted with her practice of observing a weekly Sabbath and several religious festivals throughout the year. A "reasonable accommodation" of an employee's religious practices under WLAD is one that resolves conflict between the employee's work duties and religious beliefs and does not impact the employee's benefits or job status. It requires the employer to take active or affirmative steps to resolve a scheduling conflict if it can be done without undue hardship. "Undue hardship" arises in the event an action requires significant difficulty and expense to the employer. For example, requiring the school to accommodate Suarez's religious beliefs by violating the collective bargaining agreement would cause an undue hardship. Judge Robert Lawrence-Berrey dissented on the grounds that the request for accommodation was an undue burden; the school fulfilled its duty to reasonably accommodate by offering the plaintiff nine annual days off for her religious practices, in excess of the two annual days off permitted by the collective bargaining agreement, and sent a general email to employees about a job opening for a position with a schedule not conflicting with the plaintiff's religious practices.

Free Exercise

Washington Law Prohibiting Conversion Therapy Conforms with Free Exercise Clause

In Tingley v. Ferguson, 47 F. 4th 1055 (9th Cir. 2022), the court of appeals ruled that a Washington state law banning the practicing of conversion therapy on minors by licensed providers not acting under religious auspices was a neutral law of general applicability consistent with the Free Exercise Clause and was rationally related to the legitimate state interest of protecting the physical and psychological well-being of its minors, and thus did not violate the therapists' free speech rights. The court determined that Washington's law fits within a well-established tradition of constitutional regulations on the practice of medical treatments and is not void for vagueness. The court affirmed the district court's dismissal of the plaintiff's claims.

Public Accommodations Law Violated Pageant's First Amendment Rights

In Green v. Miss United States of America, LLC, 52 F. 4th 773 (9th Cir. 2022), the court ruled that applying the Oregon Public Accommodations Act (OPAA) to force a beauty pageant operator to accept a transgender woman as a contestant would violate its free speech rights, and Oregon's stated reasons for passing OPAA did not constitute a compelling interest required to justify requiring the pageant to accept a transgender woman as a contestant. The court was not concerned that the pageant is for-profit. It found that "who competes and succeeds in a pageant is how the pageant speaks" (italics original). The pageant allows only "natural born female[s]" to compete and does not believe that biological males who identify as female are women. The court found that the pageant communicates these views on womanhood every time it uses the word "woman" in a manner deserving First Amendment protection. "Requiring Miss United States of America to allow Green to compete in its pageants would be to explicitly require Miss United States of America to remove its 'natural born female' rule from its entry requirements."

Public Accommodations Law Violated Photographer's First Amendment and KRFRA Rights

In Chelsey Nelson Photography, LLC v. Louisville/Jefferson Cnty. Metro Govt., No. 3:19-cv-851, 2022 WL 3972873 (W.D. Ky. Aug. 30, 2022), the district court ruled that a county public accommodations ordinance, which guaranteed equal access to goods and services regardless of sexual orientation, violated a wedding photographer's rights under the First Amendment and Kentucky Religious Freedom Restoration Act (KRFRA). The court decided that the photographer's photographs were speech, the ordinance compelled the photographer to speak in a way she considered objectionable as contrary to her faith, the ordinance was an impermissible content-based restriction on the photographer's speech, the ordinance proscribed more speech than necessary to serve the county's stated interest in equal access in violation of the Free Speech Clause and the accommodation provision was underinclusive. The record was unrebutted that the plaintiff would serve LGBT customers so long as the photographs she produces would not carry a message that contradicts her beliefs, but she would not create photography in support of weddings of same-sex, polyamorous or open marriage couples. The court enjoined the defendant from applying the ordinance to the plaintiff.


Prisoner Stated RLUIPA Claim Related to Strip Searches by Transgender Guards

In West v. Radtke, 48 F. 4th 836 (7th Cir. 2022), the court of appeals ruled that a prison policy requiring male prisoners to submit to strip searches by transgender male guards imposed a substantial burden on a Muslim inmate's religious exercise in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). According to Islamic beliefs, the plaintiff is forbidden to expose his naked body to anyone but his wife. The plaintiff added that he would be punished more harshly if strip searched by a transgender male than male. The prison offered this justification for its cross-sex strip-search policy: an accommodation for the plaintiff would violate the equal employment rights of its transgender employee under Title VII and the Equal Protection Clause. The court rejected both claims. The prison offered no argument why exempting the inmate would inflict an adverse employment action on its transgender employees. Furthermore, Title VII permits sex-based distinctions in employment when sex is a bona fide occupational qualification. As relates to the equal protection argument, the court observed that accommodating the inmate's request is substantially related to the important governmental objective of respecting the RLUIPA and constitutional privacy rights of inmates and, thus, consistent with intermediate scrutiny. The court of appeals also revived the plaintiff's Fourth Amendment claim related to the strip searches. The court reversed the district court and remanded for the entry of injunctive relief on the inmate's RLUIPA claim and further proceedings on his Fourth Amendment claim.

Permitting Regulations Preventing Religious Services Amounted to Prior Restraint

In Spirit of Aloha Temple v. Cnty of Maui, 49 F. 4th 1180 (9th Cir. 2022), a nonprofit spiritual service organization brought suit against the county planning commission for denying its application for special use permit to hold religious services and other events on agriculturally zoned property in violation of the First Amendment, Equal Protection Clause and RLUIPA. The court agreed that the County of Maui permitting regulations amounted to an unlawful prior restraint as they allowed the commission unbridled discretion to deny a special use permit based on a subjective determination whether "[t]he proposed use would not adversely affect surrounding property." The commission was not required to provide any explanation as to why the use would be in violation nor what specific aspect of the given conditions would be violated. "An adverse effect could just as easily be causing a sinkhole or creating unsafe road conditions as it could be cutting off public access to fishing or engaging in religious activities that neighbors dislike." The court also ruled that it was not required to give preclusive effect to the commission's decision on whether denying the organization's application for the special use permit to hold religious services would violate RLUIPA or the constitution because the issue was not fully and fairly litigated. Planning department staff controlled the presentation of evidence, it was not obvious that witnesses could be subpoenaed or cross-examined, witnesses did not testify under oath, the proceeding was not adversarial and state court review only addressed state law.

Ministerial Exception

Ministerial Exception Doctrine Bars Guidance Counselor's Discrimination Claim

In Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., 41 F. 4th 931 (7th Cir. 2022), the court ruled that the ministerial exception doctrine barred a former supervisory guidance counselor's Title VII discrimination, retaliation and hostile work environment claims and state tortious interference with contract and employment relationship claims against a private Catholic school. The court determined that the school entrusted her with communicating the Catholic faith to children, supervising guidance counselors and advising the principal on matters related to the school's religious mission. The school also held her out as a minister. She was identified as a "minister of the faith" in her job description and employed her under a "Ministry Contract." The plaintiff argued that even if she was entrusted with religious responsibilities, she should not be considered a minister because she never engaged in religious matters or held a formal religious title. The court disagreed: "Under Starkey's theory, an individual placed in a ministerial role could immunize themselves from the ministerial exception by failing to perform certain job duties and responsibilities. Religious institutions would then have less autonomy to remove an underperforming minister than a high-performing one. But an employee is still a minister if she fails to adequately perform the religious duties she was hired and entrusted to do." Both of the plaintiff's state law claims litigate her employment relationship just like Title VII. State claims that implicate ecclesiastical matters such as this are barred by the ministerial exception doctrine.

A three-judge panel decided the case, with Judge Frank Easterbrook concurring. He would have decided whether the religious exemption to Title VII barred the case before reaching the constitutional question. He said it "is a stretch to call a high school guidance counselor a minister," but joined the majority's conclusion because "[d]esignating the position as a minister by contract cannot be called pretextual." Still, he would have decided for the school based on a "straightforward reading" of 42 U.S.C. s. 2000e-1(a), which states "[t]his subchapter shall not apply to … a religious corporation," "coupled with s. 2000e(j)," which "tells us that religion includes 'all respects of religious observance and practice, as well as belief.' "

Church Not Entitled to Immediate Appeal of Adverse Ministerial Exception Ruling

In Tucker v. Faith Bible Chapel Int'l, 54 F 4th 620 (10th Cir. 2022), the court of appeals issued an order denying en banc review of a panel's determination that the defendant church is not entitled to an immediate appeal from the district court's interlocutory ruling denying the church summary judgment on its ministerial exception defense due to genuinely disputed issues of material fact about whether the plaintiff qualifies as a minister for purposes of the exception. Among the grounds given, the court 1) disagreed with the dissent from the denial of en banc consideration (Bacharach, J.) that the defense "presents a structural limitation on courts' authority to hear employment cases"; 2) pointed to the fact-intensive nature of the inquiry into whether a religious employee should be deemed a minister; and 3) observed that the Second Circuit held that a religious employer was not entitled to a collateral appeal from the denial of a motion to dismiss on grounds of church autonomy.

Providing Transportation Aid to Just One Private School in an Attendance Area Is Constitutional

In St. Augustine Sch. v. Underly, No. 16-C-0575, 2022 WL 4357454 (E.D. Wis. Sept. 19, 2022), the district court ruled that the decision of a school district and Wisconsin's superintendent of public instruction to deny a private religious school benefits under a Wisconsin statute that provided for transportation aid to students of private schools, because another school of the same denomination in an overlapping attendance area qualified for busing, did not violate the Free Exercise Clause or Establishment Clause and did not violate the ministerial exception doctrine. The court ruled that the plaintiffs did not deny the religious school benefits because it was religious, but because the benefits program limits benefits to one school per sponsoring group per attendance area regardless of the school's religious character. The plaintiffs took the schools' religious professions at face value and decided that, because the schools used identical words (i.e., "Roman Catholic"), they were affiliated. This isolated determination did not involve intrusive government inquiry into religious affairs. The fact that the plaintiffs considered a religious title or label did not lead either to a violation of the ministerial exception doctrine.

Ecclesiastical Abstention Doctrine

Counts Claiming Violation of the Nonprofit Code Are Not Subject to Ecclesiastical Abstention

In Auguste v. Hyacinthe, 346 So. 3d 67 (Fla. 4th DCA 2022), the court of appeal reversed the trial court's dismissal of three counts of the appellants' complaint based on the ecclesiastical abstention doctrine, while affirming the trial court on one count. The court of appeal determined that the trial court did not err in dismissing a cause of action for conversion because the appellants alleged therein that they "are entitled to possession and control of the Church … books and its property" (italics original). This would require the trial court to determine which faction controlled the church. The court of appeal reversed the trial court's dismissal of three counts alleging violation of the Not for Profit Corporation Act, Section 617.0808, Florida Statutes. The appellants alleged that a church director who was removed continued to act on behalf of the church by both holding a secret meeting with only part of the church's membership to expel the founder and another as directors and officers as well as filing false annual reports with the Florida Department of State that listed himself as director and pastor, falsely listed two others as officers of the church, and falsely memorialized the removal of the founder and another as officers. In the absence of church bylaws, the Not for Profit Corporation Act governs the procedures for removing board members. Resolution of the counts claiming a violation of Chapter 617 at least at the motion to dismiss stage "require only the application of neutral principles of law." The court of appeal added that after further proceedings, the landscape of the case could change. The court also included a footnote stating that it was not deciding the propriety of applying the ecclesiastical abstention doctrine to congregational religious organizations. In dissent, Judge Martha Warner stated that she would not apply it except to hierarchical religious organizations.

Ecclesiastical Abstention Prevented Breach of Fiduciary Duty Claim, But Not Governance-Related Inquiries

In Nation Ford Baptist Church, Inc. v. Davis, 382 N.C. 115 (2022), the appellee sued claiming that the board of directors exceeded its authority under church bylaws when it purported to terminate him without vote of the congregation at a "Special General Meeting," whereas the church and board of directors assert that under the real bylaws the appellee was an at-will employee who could be terminated by the board of directors at any time. The Supreme Court of North Carolina ruled that which set of bylaws were in effect at the relevant time, whether the church and board followed the procedures in the bylaws, and whether there was a contract of employment between the parties that was breached were factual and legal questions that the trial court could answer by reference to neutral principles of corporate, employment and contract law. But the ecclesiastical abstention doctrine precluded the trial court from deciding a pastor's claim against individual directors of the church for breach of fiduciary duty because the court cannot answer whether the board acted in the best interests of the church, whether the directors acted without justification in terminating him as claimed in his tortious interference count or whether funds were properly devoted to the church's benefit as alleged in the count for misappropriation of church funds. The court viewed this as a jurisdictional issue, not an affirmative defense. The church filed suit seeking a preliminary injunction prohibiting the appellee from entering the church after terminating him when he continued to act as senior pastor. The appellee countersued for an injunction establishing that he remained the senior pastor and seeking damages. The trial court granted the church's preliminary injunction, but denied its motion to dismiss the pastor's counterclaim and enabled him to amend it. The church appealed. The court of appeals affirmed 2-1. The supreme court affirmed in part and reversed in part the court of appeals' decision affirming the trial court's denial of the church's motion to dismiss and remanded the case to the court of appeals for additional remand to the superior court for proceedings consistent with the opinion.

Disaffiliating Church's Property Belongs to Denomination

In Hebron Cmt'y Methodist Church v. Wis. Conf. Bd. of T'ees of United Methodist Church, Inc., No. 22-cv-037, 2022 WL 2915612 (W.D. Wis. July 25, 2022), the district court ruled that the defendant had a statutory and common law right to ownership of church property upon the plaintiff's disaffiliation. The plaintiff sued the defendant seeking a declaration that Wis. Stat. 187.15(4), which directs that the real and personal property of any local Methodist church "shall rest" upon its dissolution in the General Conference of the United Methodist Church, violates the First Amendment and other constitutional provisions. The court granted the defendant's pending motion to dismiss without addressing these constitutional issues because the plaintiff failed to plead a viable claim to ownership of the property whether or not the statute is enforceable. As the first step, the court decided that it could apply "neutral principles of law." Were Wis. Stat. 187.15(4) unconstitutional, Wis. Stat. 187.08 requires that title to a defunct religious society vest in the next higher authority in the denomination. Moreover, Wisconsin common law directs the court to look at the provisions in the church constitution, which provides that the property is held in trust for the General Conference.

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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