Key Cases
COVID-19
Vaccination Mandate Conforms with First Amendment
In Kane v. De Blasio, No. 21 Civ. 7863, 21 Civ. 8773,
2022 WL 3701183 (S.D. N.Y. Aug. 26, 2022), the district court ruled
that New York City Department of Education employees who refused
the COVID-19 vaccination for religious reasons failed to
demonstrate that the city’s COVID-19 vaccination mandate
violated the Free Exercise Clause, Establishment Clause, Equal
Protection Clause, substantive or procedural due process, or was
unconstitutional under Title VII as applied to employees. The court
ruled that the vaccine mandate is facially neutral and generally
applicable. There is no evidence that it was adopted with religious
animus; thus, the Free Exercise Clause is not violated. As relates
to the Establishment Clause, the court cited a “long history
of vaccination requirements in this country and in this
Circuit.” The court rejected the Equal Protection Clause claim
because the plaintiffs did not point to similarly situated persons
who have been treated differently. As relates to substantive due
process, the court ruled that it has consistently recognized that
the constitution embodies no fundamental right that in and of
itself would render vaccine requirements unconstitutional or that
it shocks the contemporary conscience. Concerning procedural due
process, the court ruled that the plaintiffs failed to identify a
protected liberty interest or a property interest in employment. As
relates to the Title VII claim, the court noted that the circuit
court and other courts have found that vaccination is a proper
condition of employment. The court dismissed the complaint and
denied injunctive relief.
Religious Accommodation
Defendant Failed to Accommodate Plaintiff’s Religious
Practices
In Suarez v. State, 517 P. 3d 474 (Wash. App. Div. 3,
2022), the court ruled that a fact issue precluded summary judgment
on a claim under the Washington Law Against Discrimination (WLAD)
that the employer failed to accommodate the employee’s
religious practices and for wrongful discharge in violation of
public policy. Employees allegedly called in as
“unavailable” without further explanation so frequently
that the school had a regular process for covering the shifts and
negotiated mandatory overtime in the collective bargaining
agreement. “If the school is accommodating unplanned leave for
secular reasons other than sickness, it raises a question as to
whether accommodating Suarez’s request caused an undue
hardship,” the court stated in its opinion. The plaintiff, a
certified nursing assistant (CNA), sued Yakima Valley School, a
certified residential nursing facility serving disabled adults,
contending that her work schedule conflicted with her practice of
observing a weekly Sabbath and several religious festivals
throughout the year. A “reasonable accommodation” of an
employee’s religious practices under WLAD is one that resolves
conflict between the employee’s work duties and religious
beliefs and does not impact the employee’s benefits or job
status. It requires the employer to take active or affirmative
steps to resolve a scheduling conflict if it can be done without
undue hardship. “Undue hardship” arises in the event an
action requires significant difficulty and expense to the employer.
For example, requiring the school to accommodate Suarez’s
religious beliefs by violating the collective bargaining agreement
would cause an undue hardship. Judge Robert Lawrence-Berrey
dissented on the grounds that the request for accommodation was an
undue burden; the school fulfilled its duty to reasonably
accommodate by offering the plaintiff nine annual days off for her
religious practices, in excess of the two annual days off permitted
by the collective bargaining agreement, and sent a general email to
employees about a job opening for a position with a schedule not
conflicting with the plaintiff’s religious practices.
Free Exercise
Washington Law Prohibiting Conversion Therapy Conforms with
Free Exercise Clause
In Tingley v. Ferguson, 47 F. 4th 1055 (9th Cir. 2022),
the court of appeals ruled that a Washington state law banning the
practicing of conversion therapy on minors by licensed providers
not acting under religious auspices was a neutral law of general
applicability consistent with the Free Exercise Clause and was
rationally related to the legitimate state interest of protecting
the physical and psychological well-being of its minors, and thus
did not violate the therapists’ free speech rights. The court
determined that Washington’s law fits within a well-established
tradition of constitutional regulations on the practice of medical
treatments and is not void for vagueness. The court affirmed the
district court’s dismissal of the plaintiff’s claims.
Public Accommodations Law Violated Pageant’s First
Amendment Rights
In Green v. Miss United States of America, LLC, 52 F.
4th 773 (9th Cir. 2022), the court ruled that applying the Oregon
Public Accommodations Act (OPAA) to force a beauty pageant operator
to accept a transgender woman as a contestant would violate its
free speech rights, and Oregon’s stated reasons for passing
OPAA did not constitute a compelling interest required to justify
requiring the pageant to accept a transgender woman as a
contestant. The court was not concerned that the pageant is
for-profit. It found that “who competes and succeeds in a
pageant is how the pageant speaks” (italics original). The
pageant allows only “natural born female[s]” to compete
and does not believe that biological males who identify as female
are women. The court found that the pageant communicates these
views on womanhood every time it uses the word “woman” in
a manner deserving First Amendment protection. “Requiring Miss
United States of America to allow Green to compete in its pageants
would be to explicitly require Miss United States of America to
remove its ‘natural born female’ rule from its entry
requirements.”
Public Accommodations Law Violated Photographer’s
First Amendment and KRFRA Rights
In Chelsey Nelson Photography, LLC v. Louisville/Jefferson
Cnty. Metro Govt., No. 3:19-cv-851, 2022 WL 3972873 (W.D. Ky.
Aug. 30, 2022), the district court ruled that a county public
accommodations ordinance, which guaranteed equal access to goods
and services regardless of sexual orientation, violated a wedding
photographer’s rights under the First Amendment and Kentucky
Religious Freedom Restoration Act (KRFRA). The court decided that
the photographer’s photographs were speech, the ordinance
compelled the photographer to speak in a way she considered
objectionable as contrary to her faith, the ordinance was an
impermissible content-based restriction on the photographer’s
speech, the ordinance proscribed more speech than necessary to
serve the county’s stated interest in equal access in violation
of the Free Speech Clause and the accommodation provision was
underinclusive. The record was unrebutted that the plaintiff would
serve LGBT customers so long as the photographs she produces would
not carry a message that contradicts her beliefs, but she would not
create photography in support of weddings of same-sex, polyamorous
or open marriage couples. The court enjoined the defendant from
applying the ordinance to the plaintiff.
RLUIPA
Prisoner Stated RLUIPA Claim Related to Strip Searches by
Transgender Guards
In West v. Radtke, 48 F. 4th 836 (7th Cir. 2022), the
court of appeals ruled that a prison policy requiring male
prisoners to submit to strip searches by transgender male guards
imposed a substantial burden on a Muslim inmate’s religious
exercise in violation of the Religious Land Use and
Institutionalized Persons Act (RLUIPA). According to Islamic
beliefs, the plaintiff is forbidden to expose his naked body to
anyone but his wife. The plaintiff added that he would be punished
more harshly if strip searched by a transgender male than male. The
prison offered this justification for its cross-sex strip-search
policy: an accommodation for the plaintiff would violate the equal
employment rights of its transgender employee under Title VII and
the Equal Protection Clause. The court rejected both claims. The
prison offered no argument why exempting the inmate would inflict
an adverse employment action on its transgender employees.
Furthermore, Title VII permits sex-based distinctions in employment
when sex is a bona fide occupational qualification. As relates to
the equal protection argument, the court observed that
accommodating the inmate’s request is substantially related to
the important governmental objective of respecting the RLUIPA and
constitutional privacy rights of inmates and, thus, consistent with
intermediate scrutiny. The court of appeals also revived the
plaintiff’s Fourth Amendment claim related to the strip
searches. The court reversed the district court and remanded for
the entry of injunctive relief on the inmate’s RLUIPA claim and
further proceedings on his Fourth Amendment claim.
Permitting Regulations Preventing Religious Services Amounted
to Prior Restraint
In Spirit of Aloha Temple v. Cnty of Maui, 49 F. 4th
1180 (9th Cir. 2022), a nonprofit spiritual service organization
brought suit against the county planning commission for denying its
application for special use permit to hold religious services and
other events on agriculturally zoned property in violation of the
First Amendment, Equal Protection Clause and RLUIPA. The court
agreed that the County of Maui permitting regulations amounted to
an unlawful prior restraint as they allowed the commission
unbridled discretion to deny a special use permit based on a
subjective determination whether “[t]he proposed use would not
adversely affect surrounding property.” The commission was not
required to provide any explanation as to why the use would be in
violation nor what specific aspect of the given conditions would be
violated. “An adverse effect could just as easily be causing a
sinkhole or creating unsafe road conditions as it could be cutting
off public access to fishing or engaging in religious activities
that neighbors dislike.” The court also ruled that it was not
required to give preclusive effect to the commission’s decision
on whether denying the organization’s application for the
special use permit to hold religious services would violate RLUIPA
or the constitution because the issue was not fully and fairly
litigated. Planning department staff controlled the presentation of
evidence, it was not obvious that witnesses could be subpoenaed or
cross-examined, witnesses did not testify under oath, the
proceeding was not adversarial and state court review only
addressed state law.
Ministerial Exception
Ministerial Exception Doctrine Bars Guidance Counselor’s
Discrimination Claim
In Starkey v. Roman Catholic Archdiocese of Indianapolis,
Inc., 41 F. 4th 931 (7th Cir. 2022), the court ruled that the
ministerial exception doctrine barred a former supervisory guidance
counselor’s Title VII discrimination, retaliation and hostile
work environment claims and state tortious interference with
contract and employment relationship claims against a private
Catholic school. The court determined that the school entrusted her
with communicating the Catholic faith to children, supervising
guidance counselors and advising the principal on matters related
to the school’s religious mission. The school also held her out
as a minister. She was identified as a “minister of the
faith” in her job description and employed her under a
“Ministry Contract.” The plaintiff argued that even if
she was entrusted with religious responsibilities, she should not
be considered a minister because she never engaged in religious
matters or held a formal religious title. The court disagreed:
“Under Starkey’s theory, an individual placed in a
ministerial role could immunize themselves from the ministerial
exception by failing to perform certain job duties and
responsibilities. Religious institutions would then have less
autonomy to remove an underperforming minister than a
high-performing one. But an employee is still a minister if she
fails to adequately perform the religious duties she was hired and
entrusted to do.” Both of the plaintiff’s state law claims
litigate her employment relationship just like Title VII. State
claims that implicate ecclesiastical matters such as this are
barred by the ministerial exception doctrine.
A three-judge panel decided the case, with Judge Frank
Easterbrook concurring. He would have decided whether the religious
exemption to Title VII barred the case before reaching the
constitutional question. He said it “is a stretch to call a
high school guidance counselor a minister,” but joined the
majority’s conclusion because “[d]esignating the position
as a minister by contract cannot be called pretextual.” Still,
he would have decided for the school based on a
“straightforward reading” of 42 U.S.C. s. 2000e-1(a),
which states “[t]his subchapter shall not apply to … a
religious corporation,” “coupled with s. 2000e(j),”
which “tells us that religion includes ‘all respects of
religious observance and practice, as well as belief.’
“
Church Not Entitled to Immediate Appeal of Adverse Ministerial
Exception Ruling
In Tucker v. Faith Bible Chapel Int’l, 54 F 4th 620
(10th Cir. 2022), the court of appeals issued an order denying
en banc review of a panel’s determination that the
defendant church is not entitled to an immediate appeal from the
district court’s interlocutory ruling denying the church
summary judgment on its ministerial exception defense due to
genuinely disputed issues of material fact about whether the
plaintiff qualifies as a minister for purposes of the exception.
Among the grounds given, the court 1) disagreed with the dissent
from the denial of en banc consideration (Bacharach, J.)
that the defense “presents a structural limitation on
courts’ authority to hear employment cases”; 2) pointed to
the fact-intensive nature of the inquiry into whether a religious
employee should be deemed a minister; and 3) observed that the
Second Circuit held that a religious employer was not entitled to a
collateral appeal from the denial of a motion to dismiss on grounds
of church autonomy.
Providing Transportation Aid to Just One Private School in an
Attendance Area Is Constitutional
In St. Augustine Sch. v. Underly, No. 16-C-0575, 2022
WL 4357454 (E.D. Wis. Sept. 19, 2022), the district court ruled
that the decision of a school district and Wisconsin’s
superintendent of public instruction to deny a private religious
school benefits under a Wisconsin statute that provided for
transportation aid to students of private schools, because another
school of the same denomination in an overlapping attendance area
qualified for busing, did not violate the Free Exercise Clause or
Establishment Clause and did not violate the ministerial exception
doctrine. The court ruled that the plaintiffs did not deny the
religious school benefits because it was religious, but because the
benefits program limits benefits to one school per sponsoring group
per attendance area regardless of the school’s religious
character. The plaintiffs took the schools’ religious
professions at face value and decided that, because the schools
used identical words (i.e., “Roman Catholic”), they were
affiliated. This isolated determination did not involve intrusive
government inquiry into religious affairs. The fact that the
plaintiffs considered a religious title or label did not lead
either to a violation of the ministerial exception doctrine.
Ecclesiastical Abstention Doctrine
Counts Claiming Violation of the Nonprofit Code Are Not Subject
to Ecclesiastical Abstention
In Auguste v. Hyacinthe, 346 So. 3d 67 (Fla. 4th DCA
2022), the court of appeal reversed the trial court’s dismissal
of three counts of the appellants’ complaint based on the
ecclesiastical abstention doctrine, while affirming the trial court
on one count. The court of appeal determined that the trial court
did not err in dismissing a cause of action for conversion because
the appellants alleged therein that they “are entitled to
possession and control of the Church … books and its
property” (italics original). This would require the trial
court to determine which faction controlled the church. The court
of appeal reversed the trial court’s dismissal of three counts
alleging violation of the Not for Profit Corporation Act, Section
617.0808, Florida Statutes. The appellants alleged that a church
director who was removed continued to act on behalf of the church
by both holding a secret meeting with only part of the church’s
membership to expel the founder and another as directors and
officers as well as filing false annual reports with the Florida
Department of State that listed himself as director and pastor,
falsely listed two others as officers of the church, and falsely
memorialized the removal of the founder and another as officers. In
the absence of church bylaws, the Not for Profit Corporation Act
governs the procedures for removing board members. Resolution of
the counts claiming a violation of Chapter 617 at least at the
motion to dismiss stage “require only the application of
neutral principles of law.” The court of appeal added that
after further proceedings, the landscape of the case could change.
The court also included a footnote stating that it was not deciding
the propriety of applying the ecclesiastical abstention doctrine to
congregational religious organizations. In dissent, Judge Martha
Warner stated that she would not apply it except to hierarchical
religious organizations.
Ecclesiastical Abstention Prevented Breach of Fiduciary Duty
Claim, But Not Governance-Related Inquiries
In Nation Ford Baptist Church, Inc. v. Davis, 382 N.C.
115 (2022), the appellee sued claiming that the board of directors
exceeded its authority under church bylaws when it purported to
terminate him without vote of the congregation at a “Special
General Meeting,” whereas the church and board of directors
assert that under the real bylaws the appellee was an at-will
employee who could be terminated by the board of directors at any
time. The Supreme Court of North Carolina ruled that which set of
bylaws were in effect at the relevant time, whether the church and
board followed the procedures in the bylaws, and whether there was
a contract of employment between the parties that was breached were
factual and legal questions that the trial court could answer by
reference to neutral principles of corporate, employment and
contract law. But the ecclesiastical abstention doctrine precluded
the trial court from deciding a pastor’s claim against
individual directors of the church for breach of fiduciary duty
because the court cannot answer whether the board acted in the best
interests of the church, whether the directors acted without
justification in terminating him as claimed in his tortious
interference count or whether funds were properly devoted to the
church’s benefit as alleged in the count for misappropriation
of church funds. The court viewed this as a jurisdictional issue,
not an affirmative defense. The church filed suit seeking a
preliminary injunction prohibiting the appellee from entering the
church after terminating him when he continued to act as senior
pastor. The appellee countersued for an injunction establishing
that he remained the senior pastor and seeking damages. The trial
court granted the church’s preliminary injunction, but denied
its motion to dismiss the pastor’s counterclaim and enabled him
to amend it. The church appealed. The court of appeals affirmed
2-1. The supreme court affirmed in part and reversed in part the
court of appeals’ decision affirming the trial court’s
denial of the church’s motion to dismiss and remanded the case
to the court of appeals for additional remand to the superior court
for proceedings consistent with the opinion.
Disaffiliating Church’s Property Belongs to
Denomination
In Hebron Cmt’y Methodist Church v. Wis. Conf. Bd. of
T’ees of United Methodist Church, Inc., No. 22-cv-037,
2022 WL 2915612 (W.D. Wis. July 25, 2022), the district court ruled
that the defendant had a statutory and common law right to
ownership of church property upon the plaintiff’s
disaffiliation. The plaintiff sued the defendant seeking a
declaration that Wis. Stat. 187.15(4), which directs that the real
and personal property of any local Methodist church “shall
rest” upon its dissolution in the General Conference of the
United Methodist Church, violates the First Amendment and other
constitutional provisions. The court granted the defendant’s
pending motion to dismiss without addressing these constitutional
issues because the plaintiff failed to plead a viable claim to
ownership of the property whether or not the statute is
enforceable. As the first step, the court decided that it could
apply “neutral principles of law.” Were Wis. Stat.
187.15(4) unconstitutional, Wis. Stat. 187.08 requires that title
to a defunct religious society vest in the next higher authority in
the denomination. Moreover, Wisconsin common law directs the court
to look at the provisions in the church constitution, which
provides that the property is held in trust for the General
Conference.
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