Religious Institutions Update: June 2017

by Holland & Knight LLP

Holland & Knight LLP

Timely Topics

The U.S. Supreme Court recently heard oral argument in Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577. The lawsuit concerns whether the daycare operated by a Missouri church may qualify for a state program that reimburses nonprofits for the purchase and installation of a rubber playground surface. Justice Ruth Bader Ginsburg asked a question that frames much of the current debate about religious freedom. She observed that the daycare in Trinity Lutheran has a nondiscriminatory admissions policy. "But suppose it didn't?" Justice Ginsburg asked. "Suppose its policy was we prefer Lutheran children, and then if we have any space left over after that, we'll take other Christians. And then after that, maybe Jews, and then everyone else.... Could ... they demand as a matter of Federal constitutional right that that playground be funded, even though they have an ... admissions policy that favors members of their church?" Tr. 12:10-21. The church responded affirmatively based on what it described as a free exercise right to religious autonomy to decide who are its members. Tr. 12:22-13:11. The church summarized the state's discretion this way: The state does not have to set up the program in the first place or could make government schools the exclusive beneficiaries, "but once it sets up the program to include all" not-for-profit preschools based on certain criteria that a religious organization meets, the state cannot discriminate against the religious organization irrespective of its admissions policy. Tr. 27:10-28:5. As Justice Ginsburg's question indicates, some jurists disagree and want to condition a religious organization's participation in public programs or even a religious organization's tax-exempt operations on popular conceptions of the good not always in line with a religious organization's theology; for example, by requiring open admissions or open employment or by curtailing its speech. Other Americans want to exclude religious organizations from public programs merely because they are religious. These views may be gaining ground, so religious organizations are wise to engage in compliance planning now before they are caught in the movement's crosshairs.

Key Cases

EO Temporarily Suspending Immigration Enjoined Under Establishment Clause

In International Refugee Assistance Project v. Trump, No. 17-1351, 2017 WL 2273306 (4th Cir. May 25, 2017), the court of appeals affirmed in part and vacated in part the district court's nationwide preliminary injunction on Establishment Clause grounds against the president's second executive order (EO) temporarily suspending immigration from six predominately Muslim countries (i.e., Iran, Libya, Somalia, Sudan, Syria and Yemen) with known ties to terrorism. The individual plaintiffs are U.S. citizens or lawful permanent residents who have sponsored relatives who are citizens of one of the designated countries and seek immigrant visas to enter the U.S. The court determined that the EO injured them as a result of their separation from family members. It considered their claim that the alleged "official anti-Muslim sentiment" expressed in the EO caused them mental stress and rendered them "isolated and disparaged," sufficient to state an Establishment Clause claim. In assessing an Establishment Clause burden, governmental statements of purpose generally receive deference, but in this case, the court ruled it was appropriate to look at the motives for the EO, including the sequence of events leading up to it, such as President Donald Trump's first EO as well as public statements he made during his presidential candidacy. According to the district court, these include "explicit, direct statements of President Trump's animus towards Muslims...." The government protested that many of the statements were made before President Trump became a government official, but the court considered them relevant anyway. Furthermore, the court viewed the government's claim that national security is the primary purpose of the EO as, at best, a "post hoc, secondary justification for an executive action rooted in religious animus."

Denying Custom Floral Arrangement to Same-Sex Couple Violated Law

In State v. Arlene's Flowers, Inc., 187 Wash. 2d 804 (Wash. 2017), the court ruled that the defendants, a Southern Baptist and her floral company, discriminated on the basis of sexual orientation by refusing on the basis of religious convictions to provide custom floral arrangements for a same-sex wedding in violation of the Washington Law Against Discrimination (WLAD). The court also ruled that the owner was per se personally liable under the Consumer Protection Act (CPA). The court ruled that WLAD is a neutral, generally applicable law with a rational basis; and, thus, its enforcement was not in violation of the defendant's free exercise rights. The court added that WLAD would be consistent with the First Amendment even if strict scrutiny applied and rejected the defendant's argument that the company's floral arrangements were a form of protected "expression" under the Free Speech Clause. The court also ruled that the defendant stated no free association claim against application of the WLAD or CPA.

No Claim Against Church for Publishing Baptism Allegedly Leading to Kidnapping and Torture

In Doe v. First Presbyterian Church U.S.A. of Tulsa, Oklahoma, No. 115182, 2017 WL 1332134 (Okla. Feb. 22, 2017), the court ruled that the church autonomy doctrine precludes the plaintiff's breach of contract and tort action against First Presbyterian Church for publication of his baptism, allegedly leading to his kidnapping and torture by extremists in Syria. Although a nonmember, the plaintiff volunteered for baptism but alleged that he made the church aware of the need for confidentiality. Immediately after his baptism, the plaintiff traveled to Syria. Radical Muslims who had learned of his conversion on the internet kidnapped, tortured and threatened to kill him. The plaintiff escaped and returned clandestinely to the U.S. He sued the church for breach of contract, negligence and outrage. The church argued that the public nature of baptism is an integral part of its understanding of the sacrament. As a result, the court determined that the plaintiff's claims were predicated on religious belief, and, therefore, the church autonomy doctrine precluded the subject's claims.

Ecclesiastical Abstention Doctrine Precludes Student's Claims Against College

In Doe v. Pontifical College Josephinum, No. 16AP-300, 2017 WL 1180661 (Ohio App. Mar. 30, 2017), the court of appeals affirmed the lower court's ruling that it lacked jurisdiction over a student's breach of contract, intentional infliction of emotional distress, unauthorized disclosure of educational records and unjust enrichment claims against the pontifical college where he was enrolled. The college expelled him pursuant to an investigation in which the vice rector determined that the student was involved in homosexual activity. The court determined that the legal questions presented were inextricably intertwined with the underlying disciplinary process that led to his expulsion.

Judge Censured for Not Performing Same-Sex Marriages

In In re Neely, 390 P. 3d 728 (Wyo. Mar. 7, 2017), the Supreme Court of Wyoming ruled that disciplining a judge who stated she would not be able to perform same-sex marriages based on her religious convictions serves the compelling state interest of maintaining public confidence in the judiciary. Judge Ruth Neely is a Christian and member of the Lutheran Church, Missouri Synod. As a judge, she may perform, but is not required to perform, marriage ceremonies. Against Judge Neely's First Amendment defenses, the court ruled that the state has a compelling interest in maintaining public confidence in the judiciary by enforcing the rules requiring independence and impartiality. The court ruled that Judge Neely violated several rules of judicial conduct, including the obligation to promote confidence in the judiciary, to uphold the law impartially and with fairness, and not to manifest bias, prejudice or harassment. As punishment, the court called for public censure and has required Judge Neely either not to perform any marriage ceremonies or to perform them regardless of a couple's sexual orientation.

Fair Housing Act Injunction Entered Due to Religious Discrimination

In United States v. Town of Colorado City, Arizona, No. 3:12-v-8123-HRH, 2017 WL 1384353 (D. Ariz. Ap. 18, 2017), the court entered an extensive injunction in connection with the denial of housing rights and unlawful policing of residents at the behest of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). Specifically, the court found that Colorado City and the City of Hildale, Utah, engaged in a pattern or practice of discriminating against non-FLDS individuals under pressure from the FLDS in the terms, conditions or privileges of the sale or rental of dwellings and coercing, intimidating, threatening or interfering with individuals in the exercise of enjoyment of the right to equal housing opportunities in violation of the Fair Housing Act.

RFRA Claims Stated Due to Rezoning Denial and Refusal to Permit Demolition

In Village of West Dundee v. First United Methodist Church of West Dundee, No. 2-15-0278 (Ill.App. 2d Dist. Mar. 7, 2017), the defendant complained that the city denied it a permit to demolish an abandoned historic building for increased parking while issuing demolition permits for at least three other structures in the Historic District. In a cross-complaint, the defendant argued that this violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and amounted to inverse condemnation or a "taking." The court of appeal vacated judgment against the defendant in circuit court, including an order that if the church did not repair the building within 14 days, the village was authorized to undertake the repairs and to place a lien on the property for the costs. The plaintiff argued that the defendant had not exhausted its administrative remedies before filing its RLUIPA counterclaim, but the appeals court dispatched with this argument in circumstances where the plaintiff instituted the court proceedings by bringing an action for code enforcement. Next, the appeals court credited the defendant's argument that repairing the building would be financially ruinous and, thus, that refusing demolition amounted to a substantial burden on the defendant's free exercise of its religion. The court also agreed that the church stated a claim for unequal treatment under RLUIPA, as well as inverse condemnation.

Ecclesiastical Abstention Doctrine Applies to Pastor's Claims Against His Church

In Speller v. St. Stephen Lutheran Church of Drayton Plains, No. 330739, 2017 WL 1190933 (Mich.App. Mar. 28, 2017), a pastor filed an eight-count complaint against his former church for alleged wrongful conduct in attempting to oust him, which he claims led to his "blacklisting" in the church and an inability to practice his profession as a Lutheran pastor. The court disagreed with him that this matter could be resolved by applying neutral principles of law. It ruled that the complaint "essentially presents an internal church dispute between the church and plaintiff relating to his status and employment" and implicates the church's constitution and bylaws, subjective judgments of religious officials and governing bodies concerning his performance as pastor, defendants' alleged wrongful conduct in attempting to circumvent the church rules to oust him, internal church communications and the disciplinary action taken against him by the church. "Resolution of these matters would necessarily require the court to stray into matters of internal church governance and discipline, which are not subjects over which a civil court has jurisdiction."

Courts Adopt Differing Approaches to Church Property Disputes

Hierarchical Deference Approach Applied

In Heartland Presbytery v. Presbyterian Church of Stanley, Inc., 390 P. 3d 581 (Kans. App. 2017), the court affirmed the lower court's ruling that the internal rules of the Presbyterian Church U.S.A. (PCUSA) control a property dispute between the hierarchical denomination and a local church congregation after a majority of the congregation voted to leave the denomination over certain theological differences relating to, inter alia, the divinity of Jesus Christ, the exclusivity of Christianity for salvation and the authority of Scriptures. The court ruled that the district court properly applied the principle of hierarchical deference, which is the doctrine that deference should be given to the highest church body to which an issue has been presented. That body determined that the members of the staying faction who desire to continue their affiliation with the denomination are entitled to the disputed property. But even if the neutral principles of law approach applied, the court ruled that the Book of Order's requirement that the property be held in trust for the use and benefit of PCUSA should control the disposition of the property. The court did not find for PCUSA that the appellants waived their right to appeal by relinquishing their membership in the church and joining another church.   

Neutral Principles of Law Applied

In Presbytery of the Twin Cities Area v. Eden Prairie Presbyterian Church, Inc., No. A16-0945, 2017 WL 1436050 (Minn. App. Ap. 24, 2017), the court determined that it could decide a dispute between PCUSA and another congregation under a neutral principles of law approach and ruled in favor of the congregation. The court decided that it was proper to decide the lawsuit because earlier versions of the Book of Order did not contain a clause found in the newest version stating that property is a tool for the accomplishment of the mission of Jesus Christ in the world and because "there is no evidence that otherwise suggests that the property dispute poses a question of church doctrine or polity." Additionally, the court cautioned generally against "compulsory deference to religious authority in resolving church property disputes." The court went on to decide that by amendment of its bylaws adopting trust language contained in the Book of Order, the congregation agreed to hold its property in trust for the use and benefit of PCUSA; however, the church retained the right in its articles of incorporation to amend those bylaws and did so to revoke the trust and remove all trust language.

Religious Institutions in the News

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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