October 16, 2023

Religious Institutions Update: October 2023

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

Key Cases

Free Exercise

Enhanced Airport Screening Did Not Violate Free Exercise Clause

In Haidari v. Mayorkas, No. 22-cv-2939 (ECT/ECW), 2023 WL 5487351 (D. Minn. Aug. 24, 2023), the court dismissed the plaintiff's claim that federal agents have subjected him to enhanced screening at airports and other locations because he is a Muslim. The plaintiff is a naturalized U.S. citizen who travels frequently in connection with his vehicle auction business. Federal agents have detained him on eight occasions for up to several hours at a time, causing him to miss flights and suffer humiliation and anxiety. The court ruled that the plaintiff alleged no facts tending to show that he received the Secondary Security Screening Selection (SSSS) designation and enhanced screenings because he is a Muslim. The court added that the plaintiff failed plausibly to show that a governmental policy exists by alleging only that he suffered assertedly unlawful conduct. Furthermore, he alleged no facts that might support an inference that his travel delays and questioning have imposed any burden on his religious exercise.

Compelled Readings Without Opt-Out Not a Constitutional Violation

In Mahmoud v. McKnight, No. DLB-23-1380, 2023 WL 5487218 (D. Md. Aug. 24, 2023), the court denied injunctive relief to Muslim, Catholic and Ukrainian Orthodox parents of elementary-aged children who claimed that a Montgomery County Public Schools policy that does not allow them to opt their children out of reading and discussing storybooks with LGBTQ+ characters violates their free exercise, free speech and substantive due process rights. The plaintiffs assert the no-opt-out policy substantially interferes with 1) their sacred obligations to form their children in their faiths and 2) the religious exercise of their children.

The court disagreed and ruled that the school board's use of storybooks was not impermissible indoctrination; Muslim parents and elementary-age students were not likely to be coerced into violating their religious beliefs as a result of the readings or in order to obtain the benefit of a public education; and the policy bore a rational relationship to a legitimate public purpose. According to the court, "'compulsion' must mean something beyond simply 'reading and discussing assigned materials.'" The curricula must require conduct in conflict with students' faiths. For lack of evidence that the school board requires students to agree with or affirm the books' views on the topics or threatens punishment if they refuse to do so, the court declined to treat the policy as indoctrination, but added that even if it was indoctrination, the plaintiffs have failed to identify any case recognizing a free exercise violation based on it.

The court concluded, "With or without an opt-out right, the parents remain free … to instruct their children in their faiths. Even if their children's exposure to religiously offensive ideas makes the parents' efforts less likely to succeed, that does not amount to a government-imposed burden on their religious exercise."

Selective Enforcement of All-Comers Policy Violates Free Exercise

In Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., No. 22-15827, 2023 WL 5946036 (9th Cir. Sept. 13, 2023), the en banc court of appeals ruled that the defendant's revocation of the official student club status of the local chapter of the plaintiff, Fellowship of Christian Athletes (FCA), violated the Free Exercise Clause. The court determined that the school district's "All-Comers Policy" prohibiting official student clubs from enacting discriminatory membership and leadership criteria was neither neutral nor generally applicable as applied; that the district's derecognition decision was motivated by hostility toward the plaintiff's religious beliefs about marriage; and that targeting religious belief or conduct is not required for government policy to violate the Free Exercise Clause. Instead, favoring comparable secular activity is sufficient. The defendant's All-Comers Policy officially prohibited official student clubs from enacting membership and leadership criteria, but as applied, the defendant approved individualized secular exceptions such as excluding males for female clubs or approving membership based on "good moral character."

The "broad discretion" that the defendant preserved "removes its non-discrimination policies from the realm of general applicability and thus subjects the policy to strict scrutiny." According to the court, "the District may not selectively enforce the All-Comers Policy against FCA because of its religious beliefs." Members of the school "Climate Committee" responsible for derecognizing the club expressed opposition to the club's beliefs; for example, calling them "bulls[---]," deeming them "without 'validity,' " and "of a discriminatory nature." The court overruled prior precedent to the extent that it required targeting religious belief or conduct to state a free exercise claim. The court concluded, "Anti-discrimination laws and policies serve undeniably admirable goals, but when those goals collide with the protections of the Constitution, they must yield—no matter how well-intentioned." Judges Milan Smith, Mary Murguia and Jennifer Sung concurred that the plaintiffs are entitled to a preliminary injunction because the defendant treats religious activities differently from secular ones, but dissented as to the majority's holding that the plaintiffs would be likely to succeed on a facial challenge to the defendant's All-Comers Policy under the Free Speech Clause.

Church Autonomy

Contentious Application of "Neutral Principles of Law" to Disaffiliation

In Beachy v. Miss. Dist. Council for Assemblies of God, No. 2021-CA-01007-SCT, 2023 WL 5443303 (Miss. Aug. 24, 2023), the Supreme Court of Mississippi ruled that a genuine issue of material fact prevented summary judgment for the defendant regarding ownership of a disaffiliated congregation's property. Applying the "neutral principles of law" approach, the court examined the deed and found no actual transfer of the church property to the defendant and none of the elements of the creation of an express trust. Whether the defendant acquired an implied trust interest in the realty was subject to conflicting evidence preventing summary judgment. The defendant also asked the court to determine that the actions the church took to disaffiliate from the denomination at a church meeting were void and that the church was under the defendant's supervision. The court decided that the ecclesiastical abstention doctrine precluded the chancery court from making this determination as it was predominantly ecclesiastical in nature.

Chief Justice Michael Randolph dissented. He said the record fully supports the chancellor's findings that the Assemblies of God Church is a hierarchical church and that control of the church vested with the denomination, the efforts of the church to disaffiliate and amend the church's constitutions and bylaws were void, and control and authority of the church belonged to the denomination. In special concurrence, Justice James Maxwell disagreed: "In its support of the chancellor's decision, the dissenting opinion says it is actually applying the ecclesiastical abstention doctrine. But by declaring that the Assemblies of God is a 'hierarchical church' with the District exercising final authority over [the church], the dissenting opinion is doing the opposite—it is weighing in on church questions."


Maryland Non-Discrimination and Equal Pay Acts Did Not Prevent Termination of Same-Sex Spouse's Health Insurance Benefits

In Doe v. Catholic Relief Servs., __ Md. __, 300 A. 3d 116 (2023), an employee sued a Catholic social service agency, alleging that termination of his same-sex spouse's health insurance benefits violated, inter alia, the Maryland Fair Employment Practices Act (MFEPA). In response to questions certified by the U.S. District Court for the District of Maryland, the Supreme Court of Maryland disagreed. It found that MFEPA's prohibition against sex discrimination does not prohibit discrimination on the basis of sexual orientation; sexual orientation is not a protected category under the Maryland Equal Pay for Equal Work Act (MEPEWA); and the religious entity exemption under MFEPA applies to religious, sexual orientation and gender identity discrimination claims brought by employees who perform duties that directly further its core mission(s), whether religious, secular or both.

MFEPA prohibits both sex discrimination and, after amendment, sexual orientation discrimination. Likewise, MEPEWA prohibits sex discrimination and, after amendment, gender identity discrimination. MFEPA's religious entity exemption applicable only to sexual orientation discrimination exempts discrimination claims against "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion, sexual orientation or gender identity to perform work connected with the activities of the religious entity." Consequently, the court observed, "reading the prohibition against sex discrimination to include a prohibition against sexual orientation discrimination would render MFEPA's religious entity exemption, SG § 20-604(2), nugatory."

To determine whether an employee's duties "directly" further the core missions of a religious entity, the court insisted they must not be one or more steps removed from taking the actions that affect the goals of the entity such as a janitor in comparison to an executive director. To determine what constitutes a "core mission of a religious entity," the court recommended examining the public description of the organization's mission, the people the entity seeks to benefit and how the entity's funds are allocated. The Supreme Court of Maryland left it to the district court to apply MFEPA and MEPEWA as interpreted.


Striking Religious Exemption to Vaccination Requirement Did Not Violate Constitution

In We the Patriots USA, Inc. v. Conn. Office of Early Childhood Dev., 76 F. 4th 130 (2d Cir. 2023), membership organizations and parents of school-age children brought an action for declaratory and injunctive relief against various state agencies and boards of education, alleging that a Connecticut statute that repealed religious exemptions for vaccination requirements violated the Constitution. The court disagreed. The statute did not repeal the exemptions for students who present a certificate from specific healthcare providers stating that in their opinion such immunization is medically contraindicated. The plaintiffs objected on various religious grounds to vaccination such as that the research, development, testing and production of vaccines depends upon cell lines descended from aborted fetuses. The court rejected an argument that repealing a previously authorized religious exemption in and of itself renders the law non-neutral.

The court also rejected the comparability of the medical and religious exemptions and argument that the state may not prefer a medical reason over a religious one because both undermine the government's asserted interests in public health and safety. It determined that the challenged statute was neutral with respect to religion and generally applicable as required for it to be subject to rational basis review under the Free Exercise Clause and also determined that the statute satisfied rational basis review. In addition, the court ruled that the challenged statute did not violate the plaintiff's Fourteenth Amendment substantive due process rights to privacy and medical freedom and did not violate parents' liberty interest in childrearing implicit in the Due Process Clause. The court vacated and remanded the district court's determination that a single parent of a child alleged to have a disability had not stated a plausible claim under the Individuals with Disabilities Education Act (IDEA).

Judge Joseph Bianco concurred with the majority's dismissal of all claims other than the Free Exercise Clause. He emphasized that the statute is not a mandatory vaccination requirement for children at large, but for children attending public or private schools, subject to a grandfather clause for students with current religious exemptions, making it more difficult for the state to argue that eliminating the religious exemption was necessary to prevent an acute risk of an outbreak of disease among students.

Executive Order Barring In-Person Learning Did Not Violate Constitutional Rights

In Pleasant View Baptist Church v. Beshear, 78 F. 4th 286 (6th Cir. 2023), the court of appeals determined that Gov. Andy Beshear's executive order barring in-person learning at all private and public elementary and secondary schools in Kentucky in response to the COVID-19 pandemic did not violate parents' Fourteenth Amendment right to send their children to private school and to direct their curriculum, nor did it violate parents' right to assemble peacefully or associate freely. The court determined that the order did not preclude them from enrolling in private schools or intervene in the schools' curriculum. Furthermore, the court ruled that the governor was entitled to qualified immunity because when he issued it, precedent had not clearly established that temporarily closing in-person learning would violate the Free Exercise Clause. Last, the court ruled that the plaintiffs failed to address how remote learning "absolutely or largely prevented" parents from forming intimate associations that affected the parents' choices of which schools to enroll their children in or the content of the curriculum.

Claim of Employees Denied Religious Exemption Was Moot

In Phillips v. Rector and Visitors of the Univ. of Va., No. 3:22-cv-00075, 2023 WL 5049340 (W.D. Va. Aug. 8, 2023), the court denied preliminary injunctive relief to plaintiffs, who were 11 former University of Virginia (UVA) Health employees denied religious exemptions from their employer's vaccine mandate. As a result, they lost their jobs. The plaintiffs challenged not the vaccine mandate itself, but challenged the religious exemption requirements as unconstitutional. The court ruled against the plaintiffs because UVA Health rescinded its vaccine mandate and religious exemption requirements, rendering their challenge moot and any likelihood of repetition purely speculative.

Family Law

Establishment Clause Precludes Enforcement of Ketubah

In Tilsen v. Benson, 347 Conn. 758 (2023), a former rabbi sought to enforce ketubah, which is a premarital contract governing marriage under Jewish law that allegedly would have resulted in equal division of marital assets, but relieved the plaintiff of the obligation to pay alimony to the defendant. The Supreme Court of Connecticut agreed with the defendant that enforcing ketubah would have violated the Establishment Clause without penalizing the rabbi's free exercise rights. The court considered "[m]ost significant" that the parties' ketubah was "facially silent as to each spouse's support obligations in the event of dissolution of marriage, thus leaving the court to determine those obligations from external sources as to Jewish law, namely, the parties' expert witnesses … ."

The court considered distinguishable another case involving a plaintiff's demand to submit a case to a rabbinic court known as the Beth Din to be decided according to Jewish law. This, the court observed, would be "more akin to a typical arbitration clause." The court went on to say, "Parties who desire specific tenets of their religious beliefs to govern the resolution of marital dissolution actions remain free to contract for that relief via a properly executed antenuptial, postnuptial, or separation agreement that is specifically worded to express those beliefs in a way that avoids establishment clause concerns under the neutral principles of law approach."

Establishment Clause Did Not Forbid Requiring Ex-Husband to Submit to Rabbinical Court Per Marital Settlement Agreement

In Satz v. Satz, No. A-3535-21, 2023 WL 5313747 (N.J. App. Div. Aug. 18, 2023), the court ruled that the trial court did not violate an ex-husband's First Amendment religious freedom rights by ordering him to fulfill his contractual obligation under a marital settlement agreement (MSA) to submit to jurisdiction of a rabbinical court and accept its judgment. On two occasions, the defendant testified under oath regarding the obligations he agreed to with respect to the rabbinical proceedings. The court decided that the MSA could be enforced according to well-established principals of civil contract law without resort to rabbinical law; therefore, the MSA could be enforced according to neutral principles of law.


Denial of Application for Buddhist Center Receives Mixed Review

In Thai Meditation Ass'n of Ala., Inc. v. City of Mobile, No. 22-11674, 2023 WL 6386801 (11th Cir. Oct. 2, 2023), a Buddhist religious organization and its organizers sued the city of Mobile, Alabama, alleging that its decision to deny applications to construct a Buddhist meditation and retreat center in a residential area violated the substantial burden prong of the Religious Land Use and Institutionalized Persons Act (RLUIPA), Alabama Religious Freedom Amendment (ARFA), the Alabama and federal constitutions, and common law principles such as negligent misrepresentation.

The court of appeals reversed summary judgment for Mobile on the RLUIPA claim on the grounds that there remain material facts in dispute. The court affirmed summary judgment against the plaintiffs on their Free Exercise claim because the residential zoning designation process was both neutral and generally applicable and rationally related to a legitimate government interest in traffic safety and zoning. The court reversed summary judgment for Mobile and granted it to the plaintiffs on their ARFA claim.

ARFA provides that local governments "shall not burden a person's freedom of religion" unless the city can demonstrate that the burden is the least restrictive means of achieving a compelling government interest." It also provides, "To carry its burden to demonstrate a compelling government interest, the City must present more evidence of its interest, and that evidence must be specific. The City must link its concerns to the particular details, and alleged ills, posed by [plaintiffs'] application." Because Mobile failed to do so, the court reversed summary judgment for the city and granted it to the plaintiffs.

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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