Nathan A. "Nate" Adams IV is a Partner in our Tallahassee office.
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Several interrelated legal developments make it more important than ever for religious institutions intending to qualify for exemptions to generally applicable laws to do the hard work before litigation or administrative inquiry of considering what their religious beliefs mean for their governance structure, employment relations and delivery of services. The National Labor Relations Board (NLRB) announced the newest such legal development in Pacific Lutheran University and Service Employees International Union, Local 925, Case 19-RC-102521 (Dec. 16, 2014). In Pacific Lutheran, the NLRB announced a new policy with respect to determining whether to decline jurisdiction over faculty members at a "college or university that claims to be a religious institution." Even if you are not operating a college or university, keep in mind that the same test is likely to find broader application in the years to come as it has in the past to religious hospitals, secondary schools and parachurches even against precedent adverse to the NLRB. As a replacement for the "substantial religious character" test, the NLRB announced that it will exercise jurisdiction over a religious college unless the institution demonstrates that (1) it holds itself out as providing a religious educational environment and (2) it holds out the petitioned-for faculty members as performing a religious function. Does your organization hold itself out as providing primarily faith-based services and your employees as performing faith-based functions consistent with those services? The NLRB explained that the second test, which it said was not met in this case, "requires a showing by the college or university that it holds out those faculty as performing a specific role in creating or maintaining the university's religious educational environment." If you have not recently examined your formative faith-based governance, employment and service documents with the assistance of qualified counsel, consider doing so as soon as possible to be sure that you take advantage of the lessons of recent precedent.
"Spiritual Director" for Parachurch Subject to Ministerial Exception Doctrine
In Conlon v. Intervarsity Christian Fellowship/USA, No. 14-1549, 2015 WL 468170 (6th Cir. Feb. 5, 2015), the court ruled that a parachurch organization may assert the ministerial exception doctrine, the doctrine cannot be waived and the organization's "spiritual director" fell within its scope as tantamount to a "minister." The plaintiff alleged that Intervarsity Christian Fellowship engaged in gender discrimination in violation of Title VII and Michigan's Elliot-Larsen Act when it dismissed her after she was unable to reconcile her marriage. As support, she alleged that two or more similarly situated male employees divorced their spouses during their employment but were not disciplined or terminated. To determine whether the plaintiff was a "minister" covered by the exception, the court applied a four factor test: (1) the formal title given the plaintiff by the religious institution; (2) the substance reflected in that title; (3) the plaintiff's own use of that title; and (4) the important religious functions she performed. Although the plaintiff's formal title was not "minister," the court ruled that "spiritual director" conveyed a religious meaning. The court also found that she performed an important religious function by assisting others to cultivate "intimacy with God and growth in Christ-like character." Based on these two factors alone, the court ruled that the ministerial exception applied. The court ruled that the other factors were not present. In its explanation, the court noted that "the historical practice has always been that the government cannot dictate to a religious organization who its spiritual leaders would be."
Spiritual Treatment Exemption to Child Abuse Statute Not Unconstitutionally Vague
In State of Tennessee v. Crank, 2015 WL 603158 (Tenn. Feb. 13, 2015), the court ruled the "spiritual treatment" exemption to the child abuse and neglect statute was not unconstitutionally vague on its face. The exemption precludes the prosecution of parents who "provide [] treatment by spiritual means through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment." The defendant moved to dismiss the charge against her for child abuse and neglect for failing to obtain adequate medical treatment for her 15-year-old daughter Jessica, who died from Ewing Sarcoma, a rare cancer. The defendant testified that as a "devout Christian," she turned "'to Jesus Christ, my Lord and my Savior, my Healer, Defender for [Jessica's] healing.'" Against the state's argument, the court concluded that it could not avoid the question of the statute's vagueness because such a determination could reverse the defendant's conviction. The single word that gave the court pause was the term "recognized," but the court ruled that the legislative intent behind this word "was for the exemption to apply to members of religious bodies which, like the Church of Christian Science, are established institutions with doctrines or customs that authorize healers within the church to perform spiritual treatment via prayer in lieu of medical care." The court denied relief to the defendant on grounds of vagueness and declined to rule on her challenges on grounds of the Establishment Clause and Equal Protection Clause, as the remedy would be to strike the exemption rather than reverse her conviction. However, the court observed in dicta that the Establishment Clause issue concerned the court inasmuch as the legislative history and statutory text indicated that the exemption "was enacted for the benefit of the Christian Scientist denomination...." Last, the court ruled that the Tennessee Preservation of Religious Freedom Restoration Act does not apply retroactively and, thus, was inapplicable.
Ecclesiastical Abstention Doctrine Forbids Former Members' Defamation Claim
In Pfeil v. St. Matthews Evangelical Lutheran Church, No. A14-0605, 2015 WL 134055 (Minn.App. Jan. 12, 2015), the court affirmed the lower court's ruling that it lacked subject matter jurisdiction under the ecclesiastical abstention doctrine over the defamation claims of excommunicated church members against their church and pastors. Two pastors held a special meeting to determine whether voting members would affirm the pastors' excommunication and read prepared statements and distributed documents indicating that the plaintiffs had slandered the pastors and refused to follow the teachings of God. The plaintiffs' counsel argued that certain categories of statements could be adjudicated true or false based on secular, legal principles, including those related to breach of confidentiality, lying or perpetuating false information, accusing the pastor of stealing and the reported complaints of other congregation members concerning the plaintiffs' behavior. The court disagreed because of the context in which the statements were made: they were directly related to the church's reasons for excommunicating the plaintiffs and occurred during the context of internal church disciplinary proceedings. The court affirmed dismissal of the plaintiffs' claims on this ground and because Henry Pfeil's claim did not survive his death.
Ecclesiastical Abstention Doctrine Protects Parochial School's Admission Requirements
In in re Rosa Vida, No. 04-14-00636-CV, 2015 WL 82717 (Tex.App.-San Antonio Jan. 7, 2015), the court conditionally granted a parochial school's petition for writ of mandamus under the ecclesiastical abstention doctrine against the lower court taking jurisdiction over a claim by parents of a kindergarten child who was not promoted to first grade. The parents argued that the school failed to promote their child for purely secular reasons based on a misinterpretation of state law because she was not old enough. However, the court ruled that if judicial resolution of a claim will interfere with a church's management of its internal affairs or encroach upon the church's internal governance, the court may not exercise jurisdiction over the claim. The court added, "Just as the courts cannot question the admission requirements for Catholic churches, they also do not have jurisdiction to consider a claim arising from the admission requirements for Catholic schools that "are subject to the authority of the Church" under Canon Law.
Bell Tolling Ordinance Exemption Not an Establishment of Religion
In Devaney v. Kilmartin, No. 13-510L, 2015 WL 631188 (D.R.I. Feb. 12, 2015), the court ruled that the plaintiff's complaint about ringing church bells fails to allege facts permitting the inference that the content-neutral and largely secular bell exemptions to the Town of Narragansett's noise ordinance constitute the establishment of religion, or that the town's enactment of the ordinance or its refusal to enforce it against two churches (consistent with its terms) has the effect of coercing him, subtly or otherwise, into prayers or practices that are contrary to his beliefs. Furthermore, the court ruled that there was no allegation permitting the inference that a visitor to Narragansett upon hearing the chiming of the bells, would conclude that it is a religious message established by the town council. The town makes no financial contribution to encourage or assist with the ringing, but instead merely permissively accommodates the practice and, thus, the exemptions are a legitimate accommodation to religious belief. The court ruled that signaling bells "was accepted by the Framers and has withstood the critical scrutiny of time and political change." The first bell exemption excludes "[s]tationary nonemergency signaling devices," which include "any stationary bell, chime, siren, whistle or similar device" and "[d]evices used in connection with places of religious worship." The second bell exemption carves out "performances by the ringing of bells in a tower." The court also rejected the plaintiff's equal protection claim based on the plaintiff's concession that he has been treated the same as every similarly situated person in Narragansett and his takings claim because the plaintiff fails to allege that he "has run the gamut of state-court litigation in search of just compensation." The court declined to exercise supplemental jurisdiction over the plaintiff's common law private nuisance claim against the churches.
ACA Religious Employer Accommodation Does Not Violate RFRA
In Geneva College v. Secretary U.S. Dep't of Health and Human Servs., Nos. 13-3536, 14-1374, 14-1376, 14-1377, 2015 WL 543067 (3rd Cir. Feb. 11, 2015), the court ruled that the plaintiffs failed to establish that it was likely that complying with the religious employer "accommodation" provision of the contraceptive coverage mandate under the Patient Protection and Affordable Care Act would impose a substantial burden on their free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA). The court disagreed that the submission of the self-certification form necessary to receive the accommodation triggers or facilitates the provision of contraceptive coverage. Instead, the court ruled that federal law creates the obligation of the insurance issuers and third-party administrators to provide coverage. According to the court, "the submission of the self-certification form does not make the appellees 'complicit' in the provision of contraceptive coverage" either, as opposed to "a declaration that they will not be complicit in providing coverage." The court found that the appellees' real objection is to what happens after the form is provided and that RFRA does not give them a "religious veto against plan providers' compliance with those regulations." The court added that even if it was to conclude that there is a burden on the appellees' religious exercise, "we would be hard-pressed to find that it is substantial." The court was unmoved by arguments that the regulatory scheme improperly partitions the Catholic Church by making dioceses eligible for exemption while Catholic nonprofits only qualify for accommodation. The court ruled this is also not a substantial burden in violation of RFRA.
In School of the Ozarks, Inc. v. U.S. Dep't of Health and Human Servs., No. 13-03157-CV-S-BP, 2015 WL 527671 (W.D. Mo. Jan. 13, 2015), the court ruled likewise and found that the action taken by the school to opt out is the same action it took before the mandate was enacted when notifying its insurer to not provide contraceptive coverage to its employee. In any event, the court ruled that the mandate satisfies strict scrutiny under RFRA. The court found that the government has compelling interests that support the mandate and the exceptions are not so broad as to undermine them. Furthermore, the court ruled that the accommodation process is the least restrictive means to further these interests and, in fact, "requires very little from the school while maintaining contraceptive coverage." Also, the court ruled that the mandate is a neutral and generally applicable law that complies with the Free Exercise Clause, not a violation of the Establishment Clause as a preference of one religious organization over another, and not a violation of the Free Speech Clause because the mandate does not itself require the school "to act or speak in a manner contrary to its beliefs."
In National Presbyterian Church, Inc. v. GuideOne Mutual Ins. Co., No. 13-1847 (JDB), 2015 WL 571655 (D.D.C. Feb. 11, 2015), the court ruled that because the insurance policy was ambiguous, the court must favor the insured in its claim that the policy requires GuideOne to pay for repairs not only to the hundreds of limestone panels that were cracked or damaged by the earthquake which struck Washington, D.C., in 2011, but also to replace undamaged tiles that match the news ones aesthetically. Otherwise, the church was concerned that "merely replacing the damaged panels would diminish the aesthetic qualities of the façade as the new, unweathered panels could have noticeably different coloration than the remaining panels."
Religious Institutions in the News
The U.S. Supreme Court heard oral argument in a religious discrimination lawsuit filed by the Equal Employment Opportunity Commission against Abercrombie & Fitch Stores, Inc.
In September, Pope Francis will become the first pope to address Congress.
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