January 9, 2024

Religious Institutions Update: January 2024

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

Key Cases

Free Exercise

Failure to Extend Extracurricular Opportunities to Parochial School Students Violates Free Exercise

In Religious Rights Foundation of Pa. v. State College Area Sch. Dist., No. 23-CV-01144, 2023 WL 8359957 (M.D. Pa. Dec. 1, 2023), the district court ruled that the defendant's denial of extracurricular and co-curricular opportunities to students at parochial schools within the school district while extending them to home-schooled and charter-schooled students within the school district violates the Free Exercise Clause and Equal Protection Clause. The defendant characterized its policy as generally applicable or a policy prohibiting private students' involvement in extracurricular programming. The court rejected this framing because of the exemptions for home-schooled and charter-schooled students. The district argued that if it allowed parochial students to participate, it would take away opportunities from enrolled district students, but the court concluded, "any non-enrolled student's participation in extracurricular activities equally undermines the stated aims of preventing excess participation and allowing spots for enrolled students." The court decided the policy is not generally applicable and, thus, is subject to strict scrutiny, which it failed: "Where a regime refuses to exempt religious conduct but imposes a categorical exemption for secular conduct which threatens an analogous harm to the stated interest, it is a foregone conclusion that the regime is underinclusive." The court denied the defendant's motion to dismiss the plaintiff's Equal Protection Clause claim for the same reasons it denied the motion to dismiss the plaintiff's Free Exercise Clause claim for violation of a fundamental right.

Exclusion of Faith-Based Preschool Program Enjoined

In Darren Patterson Christian Academy v. Roy, No. 1:23-cv-01557-DDD-STV, 2023 WL 7270874 (D. Colo. Oct. 20, 2023), the district court granted a preliminary injunction to the plaintiff, enjoining the defendant from expelling, punishing, withholding funds from or otherwise disciplining the plaintiff under Colorado's new Universal Preschool Program on the basis of the plaintiff's employment and other policies. As a condition of participation in the program, schools such as the plaintiff "must agree not to discriminate on the basis of a number of statuses, including religion, gender, sexual orientation, and gender identity. Pursuant to its faith, however, Plaintiff refuses to hire employees who do not share its faith and requires its staff and students to abide by certain policies determined by biological sex rather than gender identity." The defendants refused to grant the plaintiff an exemption to the state's nondiscrimination requirements. Consequently, the plaintiff sued under the First Amendment's religion clauses and on other grounds. The court determined that the plaintiff was likely to succeed on the merits because the state's nondiscrimination policy likely 1) violates its rights by interfering with the school's selection of key employees in violation of the ministerial exception doctrine, 2) violates its right to expressive association, 3) forces the plaintiff to choose between adhering to religious beliefs and risking exclusion from the program or complying with the defendants' rules, and 4) is not neutral or generally applicable. The court determined that the department has not provided, and likely could not provide, an interest sufficiently compelling to justify an infringement of the plaintiff's free exercise rights. The court concluded that the plaintiff is also likely to succeed on the merits of its free speech claim, at least to the extent that the state would require the plaintiff and its staff to use a student's or employee's preferred pronouns as a condition of participating in the program.

Colorado's Law Precluding Medication Abortion Reversal Enjoined

In Bella Health and Wellness v. Weiser, No. 1:23-cv-00939-DDD-SKC, 2023 WL 6996860 (D. Colo. Oct. 21, 2023), plaintiff medical providers challenged Colorado's new law banning women and their medical providers from attempting to reverse a "medication abortion" decision. Colorado permits pregnant women and their medical providers to choose to terminate their pregnancies using the "abortion pill," but, until recently, also allowed women who regretted starting that process to seek to reverse it through the use of a hormone called progesterone. The plaintiffs in this case are medical providers who say they have a religious duty to try to help women who wish to try to reverse a medication abortion.

The court granted the plaintiffs a preliminary injunction against enforcement of Colorado's new law and regulations forbidding abortion reversal and the Colorado Consumer Protection Act against the plaintiffs and those acting in concert with them on the grounds that they: 1) target and burden religious exercise, 2) provide for individualized exemptions and 3) fail to regulate comparable secular activities that raise similar risks. Concerning the first point, the court determined that it was enough for the plaintiffs to show that the law targeted a practice the legislature understood to be undertaken for religious reasons and that the burden of the prohibition, in operation, would primarily fall on religious adherents. The state made no effort to satisfy the resulting strict scrutiny. Concerning the second point, the court noted that the statute called for rulemaking by three boards, itself undermining the contention that the statute is nondiscretionary; the Colorado Medical Board preserved discretion to evaluate on a case-by-case basis other drugs for abortion pill reversal; and the Colorado Medical Board has discretion throughout the disciplinary process to decide whether and how to punish a medical provider. Concerning the third point, the court determined that the state does not generally seek to prevent off-label use of drugs lacking evidence of efficacy or safety and does not regulate progesterone treatment affecting pregnant women in other contexts subject to scientific uncertainty.

The court also granted injunctive relief to the plaintiffs, memorializing the parties' shared understanding that the plaintiffs' free speech rights extend to advertising their medication abortion reversal services. The court dismissed the plaintiffs' claims against three district attorneys; two stated, unequivocally, that they would not enforce the law, and the third stated the plaintiffs no longer operate in his jurisdiction.

Blaine Amendment

Michigan Alleged Blaine Amendment Upheld

In Hile v. Michigan, 86 F. 4th 269 (6th Cir. 2023), the court of appeals affirmed the district court's dismissal of the plaintiffs' challenge to a 1970 state constitution amendment that they argued was a so-called "Blaine amendment" after the Reconstruction-era 1875 federal proposed amendment that would have prohibited aid to "sectarian" (code for Catholic) schools. Article VIII, Section 2 of Michigan's constitution states: "No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school." The plaintiffs alleged that the phrase "nonpublic schools" was code for "religious schools" when the law passed. They claimed that because of the amendment, religious persons and schools cannot lobby their state representatives for governmental aid or tuition help without first amending the state constitution in violation of the "political process" theory of liability under the Equal Protection Clause. The state challenged the applicability of the doctrine outside the arena of racial discrimination and argued that the amendment prohibits public funding of all private schools (whether religious or secular). In any event, the state argued that the Michigan electorate's decision in 2000 to reject a ballot initiative that would have authorized "indirect" support of nonpublic school students and create a voucher program purged the 1970 amendment from any taint of religious bigotry. The court agreed with the state and rejected the plaintiffs' argument that the amendment adopted in 1970 was a Blaine amendment. Judge Stephen Murphy dissented on the grounds that the plaintiffs' political process theory was nothing more than a generalized grievance over which the court lacks jurisdiction.

Church Autonomy Doctrine

Lower Court Lacked Subject Matter Jurisdiction to Enjoin Conference Investigating Disaffiliating Church

In Oklahoma Annual Conf. of the United Methodist Church, Inc. v. Timmons, 538 P. 3d 163 (Okla. 2023), the Supreme Court of Oklahoma granted a writ of prohibition and writ of mandamus to the Oklahoma Annual Conference of the United Methodist Church (UMC) after the district court issued a temporary restraining order and mandatory injunction to First United Methodist Church of Oklahoma City (church). The church sought to take advantage of a provision in the UMC Book of Discipline, allowing it to disaffiliate with a two-thirds vote of the congregation and keep its property based on disagreement with UMC doctrine. Before UMC would vote on the matter, it ordered a viability study of the church also pursuant to the Book of Discipline. While completion of the study remained pending, the church sued UMC. The district court's injunction ordered, inter alia, that 1) the church was not required to complete the viability study, 2) UMC must recognize the church's disaffiliation vote and 3) must call a meeting to vote on whether to approve the church's disaffiliation. The Supreme Court of Oklahoma ruled that the church autonomy doctrine is a bar to subject matter jurisdiction and not an affirmative defense, precluding the district court's exercise of subject matter jurisdiction over the church's action because the question at issue based on the process of disaffiliation set forth in the Book of Discipline was "inextricably intertwined with church doctrine" and an ecclesiastical matter. Concurring, Chief Justice John Kane and Justice Yvonne Kauger struck a supplemental note: "Courts continue to have subject matter jurisdiction to resolve church property disputes, and they may review provisions of the Book of Discipline concerning the ownership of property provided the references do not speak to religious doctrine or practice."

Ecclesiastical Abstention Doctrine

Former Pastor's Fraudulent Inducement and Breach of Contract Claims Dismissed

In Craver v. Faith Lutheran Church, No. 04-22-00235-CV, 2023 WL 7365302 (Tex.App. Nov. 8, 2023), the court of appeal affirmed dismissal of the plaintiff associate pastor's claims for fraudulent inducement and breach of contract against his former employer under the ecclesiastical abstention doctrine. In light of complaints, the congregation council gave the plaintiff the option to sign a severance agreement or to submit to an investigation of the alleged complaints. The plaintiff alleged that he knew investigations of this type could be divisive and understood that by signing the agreement, the church would not further disclose, publicize or pursue the alleged complaints. He sued when the church published references about his misconduct despite the alleged agreement. The plaintiff argued that his case presented a "run-of-the-mill" civil dispute, which the court could resolve by application of neutral principles of law without reference to religious matters. The court disagreed: "[T]he substance and nature of" his claims "are 'inextricably intertwined' with matters of … church governance." The court also stated, "The Church's allegedly false representations and the disclosure of allegations against" the plaintiff to the congregation "cannot be separated from matters of internal church discipline and governance … . [E]ven if we could apply neutral principles of law to resolve" the plaintiff's claims, "we would inevitably intervene in areas concerning the interpretation of the Church's constitution, by-laws, and governing documents and areas concerning congregational or hierarchical nature of the Church."

Religious Freedom Restoration Act (RFRA)

Teacher States Claim Against School District for Misgendering Termination

In Vlaming v. W. Point Sch. Bd., Record No. 211061, 2023 WL 8634968 (Va. Dec. 14, 2023), the plaintiff referred to a transgender student by the student's preferred name, but avoided the use of third-person pronouns when referring to the student. The defendant ordered him to use the pronouns in addition to using the student's preferred name, which the plaintiff refused to do on religious grounds. The Virginia Supreme Court ruled that a public school teacher stated a claim against the defendant under the Virginia Free Exercise Clause (Art. I, § 16, Va. Const.), Virginia Religious Freedom Restoration Act (VRFRA) (Code § 57-2.02), Virginia Free Speech Clause (Art. I, § 12, Va. Const.) and Virginia Due Process Clause (Art. I, § 11, Va. Const.) when the defendant fired him. The court declined to treat the neutral, generally applicable standard as controlling under Virginia free exercise law. "[W]e hold that in the Commonwealth of Virginia, the constitutional right to free exercise of religion is among the 'natural and unalienable rights of mankind,' Code § 57-2, and that 'overt acts against peace and good order,' Code § 57-1, correctly defines the limiting principle for the right and establishes the duty of government to accommodate religious liberties that do not transgress these limits." The court viewed this as a compelled speech case unrelated to classroom instruction or curricular speech and not required by Title IX. The court decided that "[a]t the time that the School Board fired Vlaming, no clearly established law—whether constitutional, statutory or regulatory—put a teacher on notice that not using third-person pronouns in addition to preferred names constituted an unlawful act of discrimination against transgender students." Furthermore, because the court decided that the plaintiff's constitutional claims are viable, the court likewise determined that the defendant lacked good cause to fire the plaintiff and that the plaintiff alleged a breach-of-contract claim. Chief Justice Bernard Goodwyn and Justices Thomas Mann and Cleo Powell concurred in part and dissented in part.


New York City Vaccination Mandate Upheld

In Bonilla v. City of N.Y., Case No. 22 Civ 7113, 2023 WL 8372859 (S.D. N.Y. Dec. 4, 2023), the district court granted the defendant's motion to dismiss the plaintiff's lawsuit alleging that the City of New York's COVID-19 vaccine mandate imposed on Department of Education employees such as herself constitutes religious discrimination under the First and Fourteenth Amendments to the U.S. Constitution, the Free Exercise Clause of the New York Constitution, the Separation of Powers Clauses of the U.S. and New York Constitutions, and various provisions of state and local law. The court determined the mandate facially neutral and generally applicable and that the plaintiff failed to plead sufficient facts to suggest that the citywide panel's review process as applied to her was not neutral and generally applicable. As such, the mandate survived rational basis review under the Free Exercise Clause and Equal Protection Clause. The court determined that the plaintiff's separation of powers claim rooted in the nondelegation doctrine has no applicability and declined to exercise supplemental jurisdiction over the plaintiff's non-federal claims.

Termination of Unvaccinated Employee Not Religious Discrimination

In Bobadilla v. N.Y. City Health and Hospitals Corp., No. 22-cv-10594, 2023 WL 7280478 (S.D. N.Y. Nov. 3, 2023), the plaintiff, a Jewish investigator working for the defendant, declined to become vaccinated on religious grounds, requested a religious exemption from the Office of Equal Employment Opportunity (EEO), continued to perform the essential functions of her job remotely for five months until notified that she must have a booster, made another request for a religious exemption from the EEO and defendant, was put on leave without pay, and advised by EEO that her status posed a risk in the workplace and that no reasonable accommodation would permit her to perform the essential functions of her job. She then was terminated. The district court dismissed the plaintiff's lawsuit against the defendant for religious discrimination under Title VII of the Civil Rights Act for terminating her employment based on her religion and failing to engage in meaningful dialogue and provide reasonable accommodations. The court agreed that no reasonable accommodation was available to allow the plaintiff to continue to perform her essential duties remotely. The plaintiff also asserted claims under 42 U.S.C. § 1983, the Free Exercise Clause, Supremacy Clause, Due Process Clause, New York State Human Rights Law and New York City Administrative Code. The court determined that the defendant's vaccine mandate was neutral and generally applicable and rationally related to a legitimate state interest. It also dismissed the plaintiff's other claims.

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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