July 26, 2023

Religious Institutions Update: July 2023

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

Key Cases

Free Speech

Supreme Court Decides Freedom of Speech Trumps Public Accommodations Law

In 303 Creative LLC v. Elenis, No. 21-476 (June 30, 2023), the U.S. Supreme Court reversed 6-3 the lower courts' denial of the injunction the plaintiff sought against the Colorado Anti-Discrimination Act (CADA). The plaintiff sought to expand her graphic design business to include services for couples seeking wedding websites but worried for religious reasons that CADA would compel her to create websites defying her belief that marriage should be reserved to unions between one man and one woman. The parties stipulated that the websites that the plaintiff plans to create are "expressive in nature." CADA prohibits all "public accommodations" from denying the full and equal enjoyment of its goods and services to any customer made on the basis of race, creed, disability, sexual orientation or other statutorily enumerated trait. C.R.S. § 24-34-601(2)(a). Either state officials or private citizens may bring actions to enforce the laws. C.R.S. §§ 24-34-306, 24-34-602(1).

The Supreme Court agreed with the U.S. Court of Appeals for the Tenth Circuit that the wedding websites that plaintiff Lorie Smith seeks to create qualify as pure speech protected by the First Amendment and involve her speech, notwithstanding that they may combine with that of the couples in a final product. The Supreme Court also agreed with the Tenth Circuit that if Ms. Smith offers wedding websites celebrating marriages she endorses, the state intends to compel her to create custom websites celebrating other marriages she does not. Finally, the Supreme Court agreed with the Tenth Circuit that the "[e]liminati[on]" of dissenting ideas about marriage constitutes Colorado's "very purpose" in seeking to apply its law to Ms. Smith. The Supreme Court disagreed with the Tenth Circuit that the Free Speech Clause allows this. The Supreme Court explained that, if so, "the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic – no matter the underlying message – if the topic somehow implicates a customer's statutorily protected trait."

The Tenth Circuit ruled that Colorado has a compelling interest in enforcing CADA and no option short of coercing speech from Ms. Smith to satisfy that interest because she plans to offer unique services that are, by definition, unavailable elsewhere. The Supreme Court decided that when Colorado's public accommodations law and the Constitution collide, "there can be no question which must prevail": "[T]he State could not use its public accommodations statute to deny speakers the right 'to choose the content' of [their] own message[s]."

Colorado asserted alternative arguments that the Supreme Court considered in tension with the parties' stipulation. Contrary to the stipulation that Ms. Smith intends to create customized and tailored expressive speech for couples, Colorado argued that Ms. Smith could simply repurpose websites celebrating marriages she does endorse for marriages she does not. Contrary to the stipulation that Ms. Smith would gladly conduct business with those having protected characteristics so long as the custom graphics and websites she is asked to create do not violate her beliefs, Colorado insisted that the Supreme Court should find that she refuses to offer the speech due to the customers' protected characteristics. Last, the state emphasized that Ms. Smith offers her speech for pay through a company of one. The court responded that many of the world's great works of literature and art were created with an expectation of compensation.

In conclusion, the court wrote that adhering to "the Constitution's commitment to the freedom of speech means all of us will encounter ideas we consider 'unattractive' … 'misguided or even hurtful,'" but the Constitution requires tolerance instead of coercion as relates to these ideas. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson strongly dissented that for the first time in its history, the Supreme Court has granted a business open to the public "a constitutional right to refuse to serve members of a protected class." They argued "the law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment" (emphasis original).

Labor and Employment

EEOC Precluded from Enforcing Guidance on Sex Discrimination Against Business and Church

In Braidwood Mgmt.v. Equal Employment Opportunity Comm'n, 70 F. 4th 914 (5th Cir. 2023), two employers filed a class action seeking a declaratory judgment that the guidance of the U.S. Equal Employment Opportunity Commission (EEOC) interpreting statutory prohibitions on sex discrimination, including sexual orientation and gender identity, violated the First Amendment and the Religious Freedom Restoration Act (RFRA), and that Title VII did not prohibit discrimination against bisexual employees or sex-neutral rules of conduct that excluded practicing gay, lesbian and transgender individuals from employment. Plaintiff Braidwood Management Inc. is a management company with 70 employees that is run as a Christian business. Employees work at Hotze Health & Wellness Center, Hotze Vitamins and Physicians Preference Pharmacy International LLC. President Stephen Hotze, the sole board member, does not permit for religious reasons Braidwood to employ individuals who engage in behavior he considers sexually immoral or gender-nonconforming and does not recognize homosexual marriage. Also for religious reasons, plaintiff Bear Creek Bible Church will not hire practicing homosexuals, bisexuals, crossdressers, or transgender or gender-nonconforming individuals.

The district court divided the class sought by the plaintiffs into a 1) religious-business-type employer class and certified it, and 2) church-type employers' class and declined to certify it on the grounds that its members are exempt under the religious exemption to Title VII. The court of appeals reversed the first ruling; the second was not appealed. Because the court reversed class certification, it vacated judgment for all of the scope-of-Title VII claims. As a matter of first impression, the court of appeals affirmed the district court's ruling that RFRA precluded the EEOC from enforcing the guidance against the plaintiffs. According to the court, "Being forced to employ someone to represent the company who behaves in a manner directly violative of the company's convictions is a substantial burden and inhibits the practice of Braidwood's beliefs." Furthermore, the court agreed that the EEOC "does not show a compelling interest in denying Braidwood, individually, an exemption." The court remanded the case for additional proceedings.

Art Professor Fails to State ADEA Claim Against University

In Palmer v. Liberty Univ., Inc., 72 F. 4th 52 (4th Cir. 2023), a former art professor sued Liberty University for violation of the Age Discrimination in Employment Act (ADEA) for not renewing her contract. The court of appeals affirmed the district court's dismissal of her ADEA claim and on the basis of the constitutional avoidance doctrine declined to decide the university's cross-appeal of the district court's ruling that she was not a "minister" for purposes of the ministerial exception doctrine. As a matter of first impression, the court decided that the dean's and provost's comments that the professor was "retiring" and would "have great difficulty with any changes," without more, fail to constitute direct evidence of age discrimination. The court of appeals agreed with the district court that "Liberty's evidence about terminating Palmer for being unable to teach digital arts courses is a legitimate motivation." The plaintiff "simply cannot make a prima facie case of age discrimination, in that she failed to meet Liberty's legitimate expectations at the time of her 2018 nonrenewal."

Judge Julius Richardson concurred in the judgment. He would have decided the matter in the university's favor on the basis of the ministerial exception doctrine rather than wade into the plaintiff's age discrimination case because "that issue strikes me as less straightforward than they suggest." He argued that deciding the merits of an age discrimination case required the court to impermissibly inquire into the employer's motives. Although the plaintiff did not perform formal religious instruction, her job description required her to integrate a "Biblical worldview" into her teaching." She began classes with a psalm or prayer, and, thus, was an "official 'messenger of'" the university's faith. Judge Diana Motz filed a concurring opinion to express her disagreement with Judge Richardson. She argued that the plaintiff never taught any theology or religion course, did not have any experience as a minister, her position description for Studio & Digital Arts was secular and there was "scant evidence of [Palmer] actually integrating theological lessons into her classes."

Second Amendment

Concealed Carry Prohibition in Sensitive Locations, Including Places of Worship, Upheld

In Goldstein v. Hochul, No. 22-CV-8300, 2023 WL 4236164 (S.D. N.Y. June 28, 2023), Orthodox Jewish congregants who wished to carry handguns for self-defense sought to enjoin under the First, Second and Fourteenth Amendments state and local officials from enforcing a New York law, stating in relevant part: "A person is guilty of criminal possession of a firearm, rifle or shotgun in a sensitive location when such person possesses a firearm, rifle or shotgun in or upon a sensitive location, and such person knows or reasonably should know such location is a sensitive location." The plaintiffs alleged that after the enactment of the law, they decreased their attendance at shul due to their inability to carry a firearm and "significantly curtail[ed]" their religious practice. After the filed suit, the law was amended to prohibit possession of a firearm, rifle or shotgun in "any place of worship, except for those persons responsible for security at such place of worship."

The court determined that the law does not violate the Second Amendment due to historical analogues that are "analogous enough" to this one forbidding the carrying of firearms in sensitive places such as schools, courthouses, polling places and government buildings. The court also found historical precedent for restricting law-abiding citizens from carrying firearms either in specific physical locations or for public safety reasons. The court conceded that there are examples of laws requiring militiamen or free white men to bring their firearms to church, but decided that these were rooted in racism, not in the Second Amendment. The court determined that the law does not violate the Free Exercise Clause because "[h]aving a preference to worship while carrying a firearm is not a religious practice." The law lists both religious and secular locations as sensitive locations with identical firearm restrictions. Furthermore, the court ruled that the law does not violate the Equal Protection Clause because individuals of all religions or no religion are equally forbidden from possessing firearms in places of worship, the law prohibits the possession of firearms in places of worship but also nonreligious locations, and the plaintiffs presented no evidence of antireligious animus. Last, the court ruled that the law is not void for vagueness.


Hospital Denial of Religious Exemption to Vaccination Mandate Violated Title VII

In Leeck v. Lehigh Valley Health Network, No. 5:22-cv-4634, 2023 WL 4147223 (E.D. Pa. June 23, 2023), the court denied the defendant hospital's motion to dismiss the plaintiff's claim that the defendant violated Title VII of the Civil Rights Act of 1964 when it denied her religious exemption request from a COVID-19 and influenza vaccination mandate. The plaintiff alleged that the vaccines would make her "body impure in the eyes of the Lord." She also alleged that she opposes abortions for religious reasons and therefore opposes the COVID-19 vaccine because it is developed using aborted human fetal cells. The court viewed this as enough to avoid dismissal of her Title VII claims. In contrast, the court dismissed her claim under the Pennsylvania Human Relations Act for failure to exhaust her administrative remedies.

Ecclesiastical Abstention Doctrine

Connecticut Court Lacks Subject Matter Jurisdiction Over Bylaws Dispute

In Foundation for the Advancement of Catholic Schools, Inc. v. Blair, No. X07-CV-21-6147972-S, 2023 WL 4073696 (Ct. Sup. Ct. June 15, 2023), the court ruled that it lacks subject matter jurisdiction over a lawsuit filed by Foundation for the Advancement of Catholic Schools board members who refused to accept the archbishop's appointments to the board not made from the list of candidates provided by the Governance Committee of the Foundation to the archbishop. Prior to 2005, the appointment of board members was the sole prerogative of the archbishop. In 2005, the bylaws were amended to add a governance committee tasked with nominating a slate of candidates for open and vacant trustee positions. The plaintiffs claim that the archbishop may appoint trustees only from the names nominated by the governance committee, whereas the defendants claim that the bylaws do not bind the archbishop. The court determined that the foundation is a religious organization with ecclesiastical doctrine and practices subject to the constitutional bar on court jurisdiction over religious matters. Furthermore, the court decided that it could not neutrally apply principles of corporate bylaw interpretation without intruding upon the archbishop's religious decision-making authority. "[S]ince the plaintiffs' claims are inextricably intertwined with the religious context in which the archbishop appoints members to the board of a religious organization, the court cannot apply neutral principles of secular law to this case."


California Act Does Not Preclude Daycares from Mandating Religious Activities

In Foothills Christian Church v. Johnson, No. 22-cv-0950-BAS-DLL, 2023 WL 4042580 (S.D. Cal. June 15, 2023), the plaintiffs, who plan to open religious daycares, argued that the California Child Day Care Facilities Act interferes with their religious conviction: to administer to the students a curriculum in which attendance at religious events and participation in religious activities is mandatory. The court dismissed the plaintiffs' Free Exercise Clause claim for lack of subject matter jurisdiction and for lack of standing, and dismissed their privileges or immunities claim for lack of a cognizable legal theory. The religious services provision states, in pertinent part: "The licensee shall ensure that each child is accorded the following personal rights: …. To be free to attend religious services or activities of his/her choice. Attendance at religious services in or outside of the center shall be voluntary. The child's authorized representative shall make decisions about the child's attendance at religious services." The plaintiffs argued that this provision precluded them from requiring students to attend religious services, but the court disagreed: "[W]hile a child, at all times, retains the choice to be free to attend religious services and participate in religious activities as he or she so chooses, that choice being exercised by his or her authorized guardian, a licensed preschool also remains free to exercise its compulsory admissions policies as a bulwark against providing religious autonomy to its enrollees, so long as its religious orientation and mandatory curriculum was disclosed prior to the child's enrollment." Instead of a ban on uniform faith-based curriculum, this was, in the court's judgment, "a mechanism that secures that very religious freedom."


Exclusion of EB-4 Workers from Concurrent Filing Constitutional

In Society of the Divine Word v. U.S. Citizenship and Immigration Services, No. 21 CV 3650, 2023 WL 4665116 (N.D. Ill. July 20, 2023), the plaintiffs argue that they exercise their religious beliefs and advance them in practice by employing foreign-born ministers and religious workers. Ministers and other religious workers can seek classification in the employment-based immigrant preference category for "special immigrants." The "special immigrant religious worker" category is known as EB-4. The plaintiffs filed Form I-360 petitions on behalf of non-citizen employees who were in the U.S. on non-immigrant (R-1) visas, which allow non-citizen employees to stay in the country for up to five years, and potentially longer if they successfully "adjust status" prior to the R-1 visa expiration; otherwise, the R-1 visa holder becomes unlawfully present in the U.S. when the R-1 visa expires. Other categories of employment-based workers can file their Form I-485 applications concurrently with their Form I-140 petitions, but not EB-4 workers, increasing chances that they will have to return home. "Consequently, plaintiffs anticipate experiencing uncertainty and disruptions in religious services, in addition to diverted resources, which they expend to follow up on pending petitions to avoid lapses in employment authorization." The court dismissed the plaintiffs' Free Exercise and Establishment Clause claims and RFRA claim because, inter alia, the law does not impose a substantial burden on foreign religious workers because it does not affect their ability to practice their religion. Furthermore, "[l]imiting the pool of available employee[s] based on immigration status is not the same as interfering with a religious organization's hiring decision by pressuring them to hire or fire a particular employee." The court rejected the plaintiffs' Equal Protection Clause claim, finding that the law "does not target any religious group and affects all members of the EB-4 preference category," and even if it did treat the plaintiffs differently from other employment-based visa applicants, the difference required only a rational basis. The rational basis for this difference was the government's "attempt to reduce fraud in the religious worker program."

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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