Woman’s COVID-19 Religious Discrimination Claim Moves Forward

How a federal court analyzed a woman’s COVID-19 religious discrimination claim after she refused the vaccination—and got fired.

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Freedom of Religion

A federal court in Pennsylvania would not dismiss a woman’s lawsuit over being fired for refusing—on religious grounds—to comply with her employer’s mandatory vaccination policy.

Jump ahead to read why the employer denied her first exemption request

Jump ahead to read why the employer denied her second exemption request

Jump ahead to read how Title VII of the Civil Rights Act comes into play

Jump ahead to read what this case means to churches and church leaders

Background

A woman (the “plaintiff”) worked as a nurse for a medical facility (the “defendant”) for more than a decade.

On August 24, 2021, the defendant implemented a policy that required employees to be vaccinated for COVID-19, or otherwise submit a request for an exemption by September 14, 2021.

The plaintiff submitted a written request for an exemption on September 10, 2021.

Her submission contained a request for a religious exemption and a medical exemption. In addition to the exemption form provided by the defendant, the plaintiff also attached the following: (1) a letter written by her pastor at a United Methodist Church; (2) a letter written by an attorney; and (3) a letter written by the plaintiff.

The plaintiff wrote, “God created my body in His image, and obtaining any chemical injections at this time and moving forward is not His plan for me.”

The pastor’s letter stated that “no one should be forced or coerced into receiving a chemical injection into … the Temple of the Holy Spirit … because the long-term effects of these vaccines are uncertain.”

The attorney’s letter stated that the plaintiff “objects to vaccines of this nature” …”as a part of [her] religious beliefs.”

Finally, the plaintiff’s own letter articulated several reasons for her exemption, including the following:

a God-given sovereignty to reject the vaccine;
inalienable rights to life, liberty, and the pursuit of happiness;
“politically biased” assumptions regarding the public-health threat posed by unvaccinated individuals;
the fact that mandated vaccines were not yet FDA approved;
the fact that the defendant’s actions did not align with the plaintiff’s morals, beliefs, and spiritual guidance;
the fact that the plaintiff’s natural immunity would serve her better than any vaccination;
the fact that a chemical injection might deem her body impure in the eyes of the Lord.
The plaintiff also cited two scriptural references to the Bible in her letter: “For anyone who does these things … is detestable to the Lord your God.” (Deuteronomy 25:16), and, “Do you not know that your bodies are members of Christ?” (1 Corinthians 6:15).

Exemption denied

On September 15, 2021, the defendant’s deputy general counsel informed the plaintiff that her request had been denied.

On September 30, 2021, the plaintiff submitted a second request for exemption. In addition to the second exemption form, the plaintiff attached another letter. She wrote,

I believe that life begins at the moment of conception, and abortion is murder; the Covid-19 vaccine was developed using aborted human fetal cells; therefore “the way [the Moderna and Pfizer vaccines] are manufactured and the efficacy tested is by the use of the aforementioned aborted fetal cells, and that goes against my deeply-held religious belief concerning abortion.”

She went on to say she had renewed her faith and belief in Jesus as her Lord and Savior in 2007, and cited additional Scriptures: Psalm 127:3-5; Jeremiah 1:5; and Matthew 18:1-5.

The defendant issued written warnings to the plaintiff on October 1, 2021, and October 4, 2021, indicating that she was in violation of the defendant’s COVID-19 vaccination policy.

In addition to mandating the COVID-19 vaccine, the defendant also mandated that its employees either receive the influenza vaccine or request an exemption by November 1, 2021.

The plaintiff submitted a request for religious exemption to the influenza vaccine on November 1, 2021.

The plaintiff stated on the provided form that she “belonged to the United Methodist Church since 2007″ and attached a letter where she objected to”any/all vaccine requirements or mandates based on my sincerely held religious belief.”

She wrote:

My body is a temple for the Holy Spirit”; “It is a God-given task that I protect the physical integrity of my body against injections and harmful substances”; “Vaccines contain many ingredients that are considered contaminants from a biblical standpoint . . .”; therefore, “I have a deeply held belief that the flu vaccine violates [sic].”

She again cited Scripture.

Exemption denied, again

The defendant denied this request, too.

The plaintiff retained an attorney, who sent a letter to the defendant’s deputy general counsel on December 27, 2021, explaining the plaintiff’s reasons for requesting a religious exemption to the vaccine mandate.

The plaintiff participated in the preparation of the letter, which reiterated several reasons for her exemption request.

The letter cited numerous Scriptures, as well as her “belief in the power of prayer and natural remedies as the primary means of healing illnesses and injuries.” She also said she considered to be sins all the instances of her receiving vaccinations in the past insofar as “her religious experience and observance have become of greater prominence in her life since she suffered from COVID and credited her recovery to God.”

The deputy general counsel for the defendant responded, “I respectfully disagree with your interpretation of the law and your position.”

The plaintiff continued to work until the defendant terminated her employment on February 11, 2022, for her refusal to abide by the vaccine mandates.

The plaintiff had already filed a Charge of Discrimination with the Equal Opportunity Commission (EEOC) on October 27, 2021, and an amended Charge on October 29, 2021, alleging that the defendant took unjust discriminatory actions against her.

The EEOC issued a Notice of Right to Sue to the plaintiff on August 22, 2022.

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964, a federal law, bars employers with 15 or more employees from discriminating against an employee based on several grounds, including religion.

The plaintiff insisted, among other things, that the defendant violated this provision of Title VII.

The defendant attempted to have the lawsuit dismissed.

In evaluating the defendant’s motion to dismiss, the court first noted the plaintiff rightly followed the EEOC’s process for Title VII claims and was permitted to bring the lawsuit.

The court then analyzed the judicial standards used for determining whether an employer has potentially unlawfully discriminated against an employee based on religion. It noted the definition of “religion” includes “all aspects of religious observance and practice, as well as belief.”

If an employee can (1) show he or she held a religious belief that conflicted with a job requirement, (2) informed the employer of the conflict, and (3) received discipline for not complying with the conflicting job requirement, then the employer bears the burden for showing it offered an accommodation—or that a requested accommodation would cause the employer an undue hardship.

The defendant argued in its motion to dismiss that it could meet its burden because it challenged whether the plaintiff held “a sincere religious belief that conflicts with a job requirement.”

The court disagreed with the defendant and rejected the motion to dismiss, concluding that “although [the plaintiff] has secular reasons for objecting to the vaccines, she also has religious reasons, too.”

The analysis, the court found, was sufficient to allow the lawsuit to survive and go before a jury to decide.

The following facts proved persuasive to the court as it reached its decision:
The plaintiff belonged to a specific Methodist church.
She alleged that her opposition to the vaccine stemmed from her religious belief.
She plead additional facts that elaborated on the nature of the opposition: e.g., that the vaccine would “deem [her] body impure in the eyes of the Lord.”
The plaintiff’s beliefs that a “chemical injection” may “deem my body impure in the eyes of the Lord” and her belief that some vaccines are unacceptable because they are developed with the use of aborted fetal cells both deal with “life and death, right and wrong, good and evil … and man’s place in the Universe … therefore, they are concerned with ultimate ideas and are religious in nature.”

The court cited other legal precedent, noting

“the very concept of ordered liberty precludes allowing any person a blanket privilege to make his own standards on matters of conduct in which society as a whole has important interests.” . . . [A]n employee cannot simply state that she has a “God given right to make [her] own choices” in order to avoid employers’ requirements for being tested for COVID-19, because such a belief is “fungible enough to cover anything that [employee] trains it on” and is thereby “a blanket privilege.”

The court concluded that the plaintiff alleged additional facts about her religious beliefs that raised it above a “blanket privilege.” For example, the plaintiff alleged that the vaccines would make her “body impure in the eyes of the Lord.” She also alleged “that she opposes abortions for religious reasons and therefore opposes the COVID-19 vaccine because it is developed using aborted human fetal cells.”

What this case means for churches and pastors

Many employees have been asked by a church member for a letter documenting the religious basis for their opposition to mandatory vaccinations of any kind.

This case provides pastors with helpful information in responding to such requests.

Along with a demonstrated membership to a religious tradition, the plaintiff here used very specific language and scriptural references that tied her sincerely held religious beliefs to her opposition to the defendant’s mandates. The court found this particularly persuasive for the purpose of allowing the lawsuit to proceed. Assuming no settlement is reached first, a jury can now decide whether the defendant’s actions under Title VII constituted unlawful discrimination against the plaintiff.

The case also demonstrates how courts can generally evaluate religious discrimination claims brought against employers under Title VII.

Leeck v. Lehigh Valley Health Network, 2023 WL 4147223 (E.D. Pa. 2023).

Legal Developments

Court Rules Venue Owners Violated Discrimination Laws by Refusing to Host Same-Sex Wedding

Wedding facilities fall comfortably within the broad definition of “place of public accommodation.”

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Freedom of Religion, Marriage

Key point 13-02.1. In the Smith case (1990) the Supreme Court ruled that a neutral law of general applicability is presumably valid and need not be supported by a compelling government interest to be consistent with the First Amendment, even if it interferes with the exercise of religion.

Key point 13-02.2. Congress enacted the Religious Freedom Restoration Act to prevent the government from enacting any law or adopting any practice that substantially burdens the free exercise of religion unless the law or practice is supported by a compelling government interest. The compelling government interest requirement applies to any law, including neutral laws of general applicability. The objective of the Act was to repudiate the Supreme Court's decision in the Smith case (1990) in which the Court ruled that neutral laws of general applicability that burden the free exercise of religion do not need to be supported by a compelling government interest in order to satisfy the First Amendment. In 1997, the Supreme Court ruled that the Act was unconstitutional. However, other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws.

A New York court ruled that a married couple that owned a farm that was open to the public for weddings and other special events violated a state law banning discrimination based on sexual orientation by places of public accommodation when they refused, on religious grounds, to let a same-sex couple marry at the farm.

A married couple owns a 100-acre farm. The farm was registered under state law as a limited liability corporation, but it is not a nonprofit or religious entity. In addition to harvesting and selling various crops to the public, the owners rent portions of the farm to the public as a venue for, among other things, wedding ceremonies and receptions. It hosts both religious and secular wedding ceremonies on the farm. When providing a venue site, the couple offers several wedding-related event services, including transportation of guests within the premises, a light beverage station, decoration and setup services, flower arrangements, and event coordination. Such services are provided primarily by the couple themselves.

In October 2011, two women (the "plaintiffs") became engaged to be married. A year later, one of the plaintiffs spoke with the owners about using the farm as a venue for her wedding ceremony and reception. During the conversation, the plaintiff used the female pronoun to refer to her fiancée, thus indicating that she was engaged to a woman. The owners promptly interjected that there was "a problem" and that the farm did "not hold same-sex marriages." In response to the plaintiff's query as to the reason for not allowing same-sex marriages, the owners explained that "it's a decision that [we] have made that that's not what we wanted to have on the farm."

The plaintiffs thereafter filed complaints with the State Division of Human Rights (SDHR) alleging that the owners engaged in unlawful discriminatory practices based on sexual orientation. After an investigation, SDHR determined that it had jurisdiction over the matters and that probable cause existed to support the complaints. Following a public hearing, an Administrative Law Judge (hereinafter ALJ) found that the farm is a place of public accommodation within the meaning of the Human Rights Law and that the owners illegally discriminated against the plaintiffs on the basis of their sexual orientation. The ALJ recommended that the plaintiffs each be awarded $1,500 in compensatory damages for the emotional injuries they suffered as a result of the discrimination, that a civil fine and penalty in the amount of $10,000 be imposed upon the owners, and that the owners cease and desist from engaging in discriminatory practices and establish anti-discrimination training and procedures at the farm.

Place of public accommodation

The court said New York's law was enacted "to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life" by "eliminating and preventing discrimination in employment, in places of public accommodation, resort or amusement, in educational institutions, in public services, in housing accommodations, in commercial space and in credit transactions."

To accomplish these goals, the Human Rights Law declares it an "unlawful discriminatory practice" for any "owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the … sexual orientation … of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof."

The owners challenged SDHR's determination that they violated the Human Rights Law on two distinct grounds.

First, they asserted they are not subject to the Human Rights Law because the farm's wedding facilities do not constitute a "place of public accommodation" within the meaning of the statute.

Second, the owners claimed that, even if they are a place of public accommodation, they did not engage in unlawful discrimination on the basis of sexual orientation.

These two grounds are addressed separately. The court rejected both defenses. In rejecting the owners' claim that the farm was not a place of public accommodation, the court observed:

The New York Human Rights Law defines "place of public accommodation, resort or amusement" inclusively … and sets forth an extensive list of examples of places within the statute … . Over the years, the statutory definition has been expanded repeatedly, providing a clear indication that the legislature used the phrase place of public accommodation in the broad sense of providing conveniences and services to the public and that it intended that the definition of place of accommodation should be interpreted liberally … .

Here [the farm's] wedding facilities fall comfortably within the broad definition of "place of public accommodation." It is undisputed that the owners open the farm to the public as a venue for wedding ceremonies and receptions and offer several wedding-related event services in connection therewith. Indeed, the only wedding-related service that [it] does not provide is an officiant for the wedding ceremony. The couples who contract to wed at the facilities are members of the general public who, like the [plaintiffs] may be attracted to the farm by its broadly disseminated advertisements and website. The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as the owners contend, remove the facilities from the reach of the Human Rights Law; the critical factor is that the facilities are made available to the public at large … . Thus, SDHR properly determined that the owners were subject to the Human Rights Law.

The owners' second argument was that they did not engage in prohibited discrimination on the basis of sexual orientation. Rather, they insisted that their refusal to host a same-sex marriage was based on their religious beliefs. The court responded that "attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected," and that "the act of entering into a same-sex marriage is conduct that is inextricably tied to sexual orientation and, for purposes of the Human Rights Law, we hold that there is no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone's conduct of publicly committing to a person of the same sex."

Religious freedom

The owners claimed that they had "a sincere religious belief that marriage is between one man and one woman under God," and so the SDHR's determination "unconstitutionally compelled them to host and participate in what they consider to be a sacred event that violates their religious beliefs and to implement anti-discrimination training and procedures that will necessarily endeavor to alter their religiously-motivated views and practices." The court disagreed, noting that the United States Supreme Court has ruled that "the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." Employment Division v. Smith, 494 U.S. 872 (1990). Therefore, "a generally applicable and otherwise valid enactment, which is not intended to regulate religious conduct or beliefs but which may incidentally burden the free exercise of religion, is not deemed to violate the First Amendment." Matter of New York State Employment Relations Board v. Christ the King Regional High School, 660 N.Y.S.2d 359 (N.Y. App. 1997).

The court noted that the Human Rights Law does not "target religious beliefs," nor is its objective "to infringe upon or restrict practices because of their religious motivation." Rather, the Human Rights Law "generally forbids all discrimination against a protected class in places of public accommodation regardless of the motivation."

The court concluded:

While we recognize that the burden placed on the owners' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, they are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the owners' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination … . Discriminatory denial of equal access to goods, services and other advantages made available to the public not only "deprives persons of their individual dignity," but also "denies society the benefits of wide participation in political, economic, and cultural life." Balancing these competing interests, we conclude that the owners failed to show that SDHR's determination constituted an unreasonable interference with their religious freedom.

What This Means For Churches:

This case illustrates the impact of the nondiscrimination provisions in state and local public accommodation laws. Consider the following:

1. State and local laws.

21 states have enacted legislation that explicitly bans discrimination based on sexual orientation by places of public accommodation.
44 states have enacted legislation that explicitly bans discrimination based on sex by places of public accommodation. In some of these states, "sex discrimination" is interpreted broadly to include discrimination based on sexual orientation and gender identity.
Some 200 cities have enacted legislation that explicitly bans discrimination based on sexual orientation and gender identity by places of public accommodation. Many of these cities are in states that have not banned these forms of discrimination.

2. Most states have enacted laws exempting churches from the nondiscrimination provisions of public accommodation laws, though these exemptions vary from state to state. In addition, church exemptions usually include conditions. For example, the exemption may not apply to a church that rents its facility to the general public, or that invites the public onto its premises for nonreligious functions.

Note that the New York public accommodations law implicated in this case contains this exemption for religious organizations: "For the purposes of this section

… a religious corporation incorporated under the education law or the religious corporations law shall be deemed to be in its nature distinctly private." This exemption did not benefit the farm or its owners since, as the court noted, the farm was not a nonprofit or religious corporation.

3. In the Hobby Lobby case in 2014, the United States Supreme Court ruled that the Religious Freedom Restoration Act (RFRA) did not permit the US Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violated the sincerely held religious beliefs of the companies' owners. Burwell v. Hobby Lobby Stores, Inc., 1134 S.Ct. 2751 (2014). The Court concluded that regulations imposing this obligation violated RFRA, which prohibits the federal government from taking any action that (1) substantially burdens the exercise of religion, (2) unless that action constitutes the least restrictive means of serving a compelling government interest. In holding that the HHS mandate was unlawful, the Court rejected HHS's argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as closely held corporations.

RFRA was violated in the Hobby Lobby case because the challenged HHS regulations substantially burdened the exercise of religion. The owners of the businesses had religious objections to abortion, and according to their religious beliefs, four of the contraceptive methods mandated by HHS regulations under the Affordable Care Act are abortifacients. If the owners complied with the HHS mandate, they believed they would be facilitating abortions, and if they did not comply, they would pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. The Court concluded: "If these consequences do not amount to a substantial burden, it is hard to see what would."

Under RFRA, a government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and must also constitute the least restrictive means of serving that interest. The Court concluded that the mandate plainly failed that test since "there are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives."

Note that RFRA only applies to actions by the federal government. In 1997, the United States Supreme Court ruled that RFRA does not apply to state or local laws that burden religious freedom. To illustrate, in 2015, a federal appeals court ruled that a Washington law requiring pharmacists to dispense prescriptions was constitutional, even if doing so, as in the case of abortifacients, violated their religious beliefs. Stormans v. Wiesman, 794 F.3d 1064 (9th Cir. 2015). The court relied on the Supreme Court's decision in the Smith case in 1990 (see above) in which the Court ruled that neutral laws of general applicability are constitutional even if they impose a burden on religious belief. The court concluded that Washington's pharmacists law was a neutral law of general applicability since it did not single out religious organization for less favorable treatment.

The Hobby Lobby case, and RFRA, may provide a defense to the application of federal laws to small business owners if the law substantially burdens their exercise of religion and the government has other options of furthering its interests that are less restrictive of religious freedom. Twenty-one states have enacted their own version of RFRA, and these laws may provide some protection of religious liberty. However, rulings by the Supreme Court raise some doubt regarding the effectiveness of these laws. In the Matter of Gifford, 23 N.Y.S.3d 422 (N.Y. App. 2016).

Legal Developments

Orthodox Jewish Family Not Eligible for Religious Exemption from State Mandatory Vaccinations

Plaintiffs had not sustained their burden of establishing that they hold genuine and sincere religious beliefs against the practice of vaccinating.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

A federal court in New York ruled that Orthodox Jewish parents failed to prove that they qualified for a religious exemption from a state mandatory vaccination law for public and private school students.

Section 2164 of the New York Public Health Law (PHL) imposes a baseline requirement that school-aged children be immunized against certain enumerated diseases. In relevant part, the statute provides as follows:

No principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, in excess of fourteen days, without the [appropriate certificate by an administering physician] or some other acceptable evidence of the child's immunization against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, hepatitis B, pertussis, tetanus, and, where applicable, Haemophilus influenza, meningococcal disease, and pneumococcal disease.

However, the PHL carves out two exemptions from this general requirement, namely: (i) a medical exemption for children whose pediatrician certifies that the required immunizations may be detrimental to their health, and (ii) a religious exemption. The religious exemption removes from the statute's purview "children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to" the practice of vaccinating, and, as to them, requires no certificate of immunization as a prerequisite to their attendance at school.

A married couple (the "plaintiffs") enrolled their three daughters in a private Jewish school. The mother is a devout Orthodox Jew and has raised her three daughters in the Orthodox Jewish tradition. For reasons that she alleges are inexorably linked to her faith, she has not vaccinated her children and does not intend to do so. From 2010 to 2015, none of the daughters was vaccinated as required by the terms of the PHL because the mother applied for, and received, a religious exemption under the law.

In 2015, the school reevaluated its handling of religious exemptions, and made the process of exemption more intensive, as a result of a measles outbreak in another state. This outbreak caused many parents to question the school's preparedness for a similar event. The school determined that its enforcement of the PHL to be below the legal standard. In particular, school officials concluded that the school had not previously conducted any meaningful review of students' applications for religious exemptions, and that the school had simply "rubber stamped" such requests without conducting due diligence.

Accordingly, in 2015, the school began "strict enforcement" of the state immunization law by, for example, closely scrutinizing the reasons given by parents seeking religious exemptions for their children. School officials met with the plaintiffs, but concluded that they did not qualify for a religious exemption since the primary basis of their objection to vaccination was for health reasons.

The parents asked a court to issue an injunction compelling the school to admit their unvaccinated children. The court declined to do so, concluding that the parents had not demonstrated sincere religious objection to vaccinations. The court observed:

The mother reiterated her belief that the Torah commands her "to keep the body completely whole and pure without defilement." In this regard, she referred to Jewish beliefs against making cuttings in the flesh, but did not supply any specific quotations. She also reiterated her belief in prioritizing natural remedies over invasive medical treatments, stating that "any disease which can be treated naturally should be treated in a natural way … ."

The court did not doubt that the plaintiffs "held a genuine and sincere belief that they should not vaccinate their children." However, "careful consideration of the current record suggests that these beliefs were formed with a primary view toward the children's health, and not their religion. In this regard, the record clearly does not support a finding that Orthodox Judaism, even as interpreted by these plaintiffs, forbids the practice."

The court concluded:

The evidence shows that the plaintiffs are devoutly religious. However, the evidence connecting this faith to their objection to vaccinating their children is tenuous. Initially, as noted, the plaintiffs concede that there is no tenet of the Orthodox Jewish religion that prohibits the practice of vaccinating. In fact, the evidence shows that, of the approximately 1,700 Orthodox Jewish students at [the school] only a small minority of families interpret Judaic law as prohibiting the practice.

Further … there is evidence in this case to indicate that the plaintiffs hold a selective personal belief against the practice of vaccinating, as opposed to a religious belief. In this regard, the mother relies primarily on the Torah's commandment to guard the body against disease. However, the mother testified that she applies this rule flexibly; that it is her prerogative to determine the best method of guarding her children's bodies against disease; and that the full force of Jewish law should attach to her decisions … .

The selectivity with which the mother applies the Torah's commandments is also apparent in other parts of her testimony. For example, she has pierced ears, contradicting her purported belief against making cuttings in the skin. She ingests prenatal vitamins because they are doctor recommended, apparently without regard for whether vaccinations are similarly recommended. She permits Novocaine to be injected into her body by a dentist, undermining her objection to foreign impure substances being inoculated into the body. And, despite testifying that Jewish law forbids prophylactic remedies for healthy individuals, she applies sunblock to her daughters' skin to prevent adverse health effects of sun exposure.

In conclusion, the court found that the Plaintiffs had not sustained their burden of establishing that they hold genuine and sincere religious beliefs against the practice of vaccinating. As a result, an injunction was unwarranted.

What this means for churches

An increasing number of public elementary and secondary public schools have adopted policies requiring the vaccination of students. Many of these policies are based on state law. While religious exemptions are recognized in some states, many exemptions are conditional and, as this case demonstrates, will not always apply.

The parents' eligibility for a religious exemption in this case was denied for the following reasons: (1) Their opposition to medical interventions was selective. They considered some consistent with their religious faith, and some inconsistent with it. (2) They had difficulty pointing to specific passages in the Torah that prohibited vaccination. (3) Of the 1,700 students at the Jewish school their children attended, only three families expressed religious objection to vaccination. NM v. Hebrew Academy, 155 F.Supp.3d 247 (E.D.N.Y. 2016).

Legal Developments

Court Rules Schools’ Vaccination Requirements Trump Parents’ Religious Exemption

Church Law and Tax Report Court Rules Schools’ Vaccination Requirements Trump Parents’ Religious Exemption Key

State: Federal
Categories: Freedom of Religion

Church Law and Tax Report

Court Rules Schools’ Vaccination Requirements Trump Parents’ Religious Exemption

Key point. Restrictions imposed by state law on unvaccinated children attending public schools may not violate parents’ constitutional right of religious freedom.

A federal appeals court ruled that the constitutional right of parents to the free exercise of their religion was not violated by a state law excluding unvaccinated children from public schools under specified circumstances. New York requires that students in the state’s public schools be immunized against various vaccine-preventable illnesses. The New York Public Health Law provides that “no principal, teacher, owner or person in charge of a school shall permit any child to be admitted to such school, or to attend such school, in excess of fourteen days” without a certificate of immunization. The statute provides two exemptions from the immunization mandate. First, a medical exemption is available “if any physician licensed to practice medicine in this state certifies that such immunization may be detrimental to a child’s health.” Second, a religious exemption is available for “children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required.”

Two unrelated parents (the “Plaintiffs A and B”) received religious exemptions for their children. In November 2011 and January 2012, however, the plaintiffs’ children were excluded from school when a fellow student was diagnosed with chicken pox, pursuant to a state regulation that provides, “in the event of an outbreak … of a vaccine-preventable disease in a school, the commissioner, or his or her designee … may order the appropriate school officials to exclude from attendance” students who received exemptions from mandatory vaccination.

Another parent (Plaintiff C) was denied a religious exemption on the ground that her objection to vaccinations was not based on genuine and sincere religious beliefs. The three plaintiffs filed a lawsuit in a federal district court in New York, claiming that their constitutional right to the free exercise of their religion had been violated. The court rejected the claims of Plaintiffs A and B that a state regulation permitting school officials to temporarily exclude students who are exempted from the vaccination requirement during an outbreak of a vaccine-preventable disease was unconstitutional. Defendants moved to dismiss for summary judgment. The court further concluded that Plaintiff C’s views on vaccination were primarily health-related and did not constitute a genuine and sincere religious belief. This plaintiff testified at a hearing that she is Catholic and stated, “How I treat my daughter’s health and her well-being is strictly by the word of God.” She also testified, however, that she believed that vaccination “could hurt my daughter. It could kill her. It could put her into anaphylactic shock. It could cause any number of things.” She further testified that she did not know of any tenets of Catholicism that prohibited vaccinations. The court noted especially that “plaintiff’s testimony that she did not adopt her views opposing vaccination until she believed that immunization jeopardized her daughter’s health is compelling evidence that plaintiff’s refusal to immunize her child is based on medical considerations and not religious beliefs.”

The three plaintiffs appealed, and a federal appeals court affirmed the district court’s conclusions. Plaintiffs A and B argued that the temporary exclusion from school of their children during the chicken pox outbreak unconstitutionally burdened their free exercise of religion. The court disagreed, citing a 1944 ruling by the Supreme Court noting that a parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Prince v. Massachusetts, 321 U.S. 158 (1944). The court concluded: “New York could constitutionally require that all children be vaccinated in order to attend public school. New York law goes beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs. Because the state could bar [these] children from school altogether … the state’s more limited exclusion during an outbreak of a vaccine-preventable disease is clearly constitutional.”

The court further concluded that since Plaintiff C’s objections to the statute were not religious in nature, she lacked standing to challenge the mandate on religious freedom grounds.

What This Means For Churches:

An increasing number of elementary and secondary public schools have adopted policies requiring the vaccination of students. Many of these policies are based on state law. While religious exemptions are recognized in some states, many exemptions are conditional and, as this case demonstrates, will not always apply. Phillips v. City of New York, 775 F.3d 538 (2nd Cir. 2015).

Legal Developments

Vaccines over Religious Exercise

Church Law and Tax Report Vaccines over Religious Exercise A New York court ruled that

State: New York
Categories: Freedom of Religion

Church Law and Tax Report

Vaccines over Religious Exercise

A New York court ruled that a state law barring unvaccinated children from attending public schools did not violate the constitutional right of parents to the free exercise of their religion. Three parents with school-age children (the “plaintiffs”) filed a lawsuit challenging New York’s vaccination law, which required children to be vaccinated and offered a religion-based exemption, but prohibited unvaccinated children with a religious exemption from attending school each time any schoolmate contracts a “vaccine preventable disease.”

The plaintiffs claimed that their constitutional right to the free exercise of religion was violated when their children were excluded from school due to their religious beliefs running counter to vaccination practice. Plaintiffs argued that their children were “arbitrarily, capriciously, unreasonably and unconstitutionally denied” the right to free exercise of religion based on the state vaccination practice.

The court, in rejecting the plaintiffs’ claims, relied on a 1905 ruling by the United States Supreme Court, and more recent federal cases in New York, finding that religious objectors are not constitutionally exempt from vaccinations. Jacobson v. Commonwealth, 197 U.S. 11 (1905), Caviezel v. Great Neck Public Schools, 739 F.Supp.2d 273(E.D.N.Y. 2010) (“the free exercise clause of the First Amendment does not provide a right for religious objectors to be exempt from New York’s compulsory inoculation law”).

What This Means For Churches:

Legal Developments

“Off-campus” Religious Instruction Doesn’t Violate First Amendment

Federal court rules religious program giving academic credit not a violation of the prohibition of an establishment of religion.

State: Federal
Categories: Freedom of Religion

Church Law and Tax

“Off-campus” Religious Instruction Doesn’t Violate First Amendment

Federal court rules religious program giving academic credit not a violation of the prohibition of an establishment of religion.

Key point. Released time programs, which allow public school students to receive religious instruction off campus during school hours, do not violate the First Amendment’s prohibition of any establishment of religion.

A federal appeals court ruled that a “released time” program that granted limited academic credit to public high school students for receiving religious instruction off campus during school hours did not violate the First Amendment’s prohibition of an establishment of religion. Since 1992, a number of school districts in South Carolina have allowed students to be released for part of the school day in order to receive off-campus religious instruction. Initially, the students who availed themselves of this opportunity did not receive grades or academic credit, which made enrollment difficult for some students. In 2006, the South Carolina General Assembly found that “the absence of an ability to award academic credit had essentially eliminated the school districts’ ability to accommodate parents’ and students’ desires to participate in released time programs,” and it responded by enacting the Released Time Credit Act. The Released Time Credit Act allows students to receive up to two hours of academic credit for participating in a released time program, subject to various conditions.

The Freedom from Religion Foundation and other plaintiffs filed a lawsuit in federal court claiming that this released time program constituted an “establishment of religion” barred by the First Amendment. The plaintiffs conceded that the United States Supreme Court had previously ruled that released time programs were constitutionally permissible, but they insisted that the South Carolina program was different because it granted academic credit. A federal district court ruled that this was a distinction without a difference, and it found the program constitutional. A federal appeals court agreed:

Important to our conclusion is the governing principle that private religious education is an integral part of the American school system. Indeed, States are constitutionally obligated to allow children and parents to choose whether to fulfill their compulsory education obligations by attending a secular public school or a religious private school. It would be strange and unfair to penalize such students when they attempt to transfer into the public school system by refusing to honor the grades they earned in their religious courses, potentially preventing them from graduating on schedule with their public school peers. Far from establishing a state religion, the acceptance of transfer credits (including religious credits) by public schools sensibly accommodates the “genuine choice among options public and private, secular and religious.”

The court concluded: “At bottom, because the … released time policy relies exclusively on the provision of off-campus religious instruction by nongovernmental educators and passively accommodates the genuine and independent choices of parents and students to pursue such instruction, we affirm the district court’s judgment …. We see no evidence that the program has had the effect of establishing religion or that it has entangled the school district in religion …. The program properly accommodates religion without establishing it, in accordance with the First Amendment.” Moss v. Spartanburg County School District, 683 F.3d 599 (4th Cir. 2012).

Editor’s Note: The May/June 2013 edition of Church Law & Tax Report includes “Churches and Released Time Programs for Public Schools,” an article that goes deeper into the steps for developing and maintaining a constitutionally sound effort.

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2013 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Concealed Weapon Law and Churches

Churches may prohibit guns in church.

Richard R. Hammar, Attorney, CPA

Bio

State: Georgia
Categories: Freedom of Religion

Church Law & Tax Report

Concealed Weapon Law and Churches

Churches may prohibit guns in church.

Richard R. Hammar, J.D., LL.M., CPA

Key point. State laws prohibiting holders of concealed weapons permits from carrying weapons on church property do not necessarily violate the First Amendment guaranty of religious freedom or the Second Amendment right to bear arms.

Does a state law prohibiting the carrying of concealed weapons in a church violate the constitutional rights of church members to bear arms and practice their religion? A federal appeals court said no. In 2010, the State of Georgia amended its concealed weapons law to make it a misdemeanor offense for a person with a concealed weapons permit to carry a concealed weapon “in a place of worship.” Several plaintiffs, including a church and its pastor, filed a lawsuit challenging the constitutionality of this law.

First Amendment guaranty of religious freedom

The plaintiffs claimed that the statute violated their First Amendment right to freely exercise their religion because it imposed an impermissible burden on their ability to attend or conduct worship services by prohibiting them from carrying a firearm on their person for self-defense while doing so. The individual plaintiffs did not contend that their religious beliefs required them to carry a firearm into a place of worship, nor did the church allege that its members’ religious beliefs required them to carry a firearm into their church. Instead, the plaintiffs claimed that attending worship services is a sincere religious belief that has been impermissibly burdened by the statute’s requirements.

The court began its opinion by stressing that only beliefs rooted in religion are protected by the First Amendment guaranty of religious freedom. As a result, persons claiming a violation of their religious freedom must show that (1) “they hold a belief, not a preference, that is sincerely held and religious in nature, not merely secular; and (2) the law at issue in some way impacts [their] ability to either hold that belief or act pursuant to that belief.” The court concluded:

[The plaintiffs’ lawsuit] fails to state a claim for relief under the First Amendment. We searched … to no avail in an attempt to find factual allegations that could possibly be construed as alleging that the [concealed weapons law] imposes a constitutionally impermissible burden on one of plaintiffs’ sincerely held religious beliefs. At various points, plaintiffs allege that they would like to carry a handgun in a place of worship for the protection either of themselves, their family, their flock, or other members of the Tabernacle. Plaintiffs conclude by alleging that the concealed weapons law interferes with their free exercise of religion by prohibiting them from engaging in activities in a place of worship when those activities are generally permitted throughout the State. That plaintiffs “would like” to carry a firearm in order to be able to act in “self-defense” is a personal preference, motivated by a secular purpose …. There is no First Amendment protection for personal preferences; nor is there protection for secular beliefs …. In sum, conclusory allegations that the concealed weapons law interferes with plaintiffs’ free exercise of religion are not sufficient to survive a motion to dismiss. Their free exercise claim is not plausible, and the District Court correctly dismissed it.

the Second Amendment right to bear arms

The plaintiffs also claimed that the Georgia statute impermissibly burdened their right to keep and bear arms secured by the Second Amendment to the United States Constitution. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The plaintiffs relied on a 2008 decision by the United States Supreme Court. District of Columbia v. Heller, 554 U.S. 570 (2008). In the Heller case, the Supreme Court ruled that several statutes in the District of Columbia which, taken together, amounted to a total ban on possessing a handgun in the home, violated the Second Amendment. But the only conduct that the Supreme Court clearly located within the Second Amendment was the possession and carrying of a handgun by an otherwise qualified person within his home for self-defense. It carefully noted that “the right secured by the Second Amendment is not unlimited,” and that “historically, the right had never been viewed as a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

The court noted that “an individual’s right to bear arms as enshrined in the Second Amendment, whatever its full scope, certainly must be limited by the equally fundamental right of a private property owner to exercise exclusive dominion and control over its land.” It concluded:

To the extent plaintiffs’ argument implies that the Second Amendment … somehow abrogates the right of a private property owner—here, a place of worship—to determine for itself whether to allow firearms on its premises and, if so, under what circumstances, the argument badly misses the mark. We conclude that the Second Amendment does not give an individual a right to carry a firearm on a place of worship’s premises against the owner’s wishes because such right did not preexist the Amendment’s adoption. Enforcing the concealed weapons law against a license holder who carries a firearm on private property against the owner’s instructions would therefore be constitutional.

What This Means For Churches:

This case is important, for it is the first case to address the constitutionality of state laws barring holders of concealed weapons licenses to bring their weapons onto designated properties, including churches. According to this court, such restrictions do not violate either the First Amendment guaranty of religious freedom, or the Second Amendment right to bear arms. GeorgiaCarry.Org, Inc. v. Georgia, 2012 WL 2947817 (11th Cir. 2012).

Legal Developments

Concealed Weapon Bans and the Constitution

Court concludes that laws prohibiting concealed weapons in churches do not violate the Constitution.

Richard R. Hammar, Attorney, CPA

Bio

State: Georgia
Categories: Freedom of Religion

Church Law & Tax Report

Concealed Weapon Bans and the Constitution

Court concludes that laws prohibiting concealed weapons in churches do not violate the Constitution.

Richard R. Hammar, J.D., LL.M., CPA

Does a state law prohibiting the carrying of concealed weapons in a church violate the constitutional rights of church members to bear arms and practice their religion? A federal court in Georgia said no. In 2010, the State of Georgia enacted a law making it a misdemeanor offense for a person with a concealed weapons permit to carry a concealed weapon “in a place of worship.” Several plaintiffs, including a church and its pastor, filed a lawsuit challenging the constitutionality of this law.

First Amendment guaranty of religious freedom

The plaintiffs claimed that the statute violated their First Amendment right to freely exercise their religion because it imposed an impermissible burden on their ability to attend or conduct worship services by prohibiting them from carrying a firearm on their person for self defense while doing so. The individual plaintiffs did not contend that their religious beliefs required them to carry a firearm into a place of worship, nor did the church allege that its members’ religious beliefs required them to carry a firearm into their church. Instead, the plaintiffs claimed that attending worship services is a sincere religious belief that has been impermissibly burdened by the statute’s requirements.

The court noted that the Georgia statute prohibiting concealed weapons licensees from bringing weapons onto church property “does not prohibit anyone from attending services at a place of worship. Instead, any burden on attending worship services is attenuated and tangential because the law only requires that persons either not carry a weapon to a place of worship, leave their weapons secured in their vehicles, or notify security or management personnel of the presence of the weapon and follow directions for removing, securing, storing, or temporarily surrendering the weapon.”

The court noted that “laws imposing substantial burdens on religious practices” need a “compelling government interest” to survive a First Amendment challenge. It concluded, however, that the Georgia statute “does not pressure religious conduct enough to constitute a substantial burden” on religious practices:

No criminal sanctions forbid plaintiffs from attending a place of worship. The law does not force them to decide between attending worship services or supporting themselves and their families. Instead, plaintiffs only risk criminal sanction if they refuse to comply with the law’s mandates about carrying firearms in a place of worship, an activity they do not attach to any sincere religious belief. The burden of complying with the law’s requirements does not prohibit them from attending worship services, nor does it place an “unmistakable” pressure on them “to forego religious precepts.” Accordingly, the court concludes that any burden posed by the law is too insubstantial and too attenuated to any of plaintiffs’ sincere religious beliefs to state a claim under the [First Amendment].

The church also claimed that the Georgia statute violated the First Amendment’s guaranty of religious freedom since it “encroaches on the church’s ability to manage its internal affairs.” The church cited a case in which the United States Supreme Court observed that “there exists a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952). However, the Georgia court noted that the Supreme Court’s ruling makes clear that the First Amendment guaranty of religious freedom is “only implicated when the state interferes with matters of church government, faith, or doctrine. The law at issue here does not touch on such ecclesiastical matters. The church does not allege that the safety concerns or security protocols of a place of worship involve issues of religious faith or doctrine, as opposed to purely secular issues. Consequently, the law in this case does not encroach on the church’s ability to manage its internal affairs in a way that violates the First Amendment.”

the Second Amendment right to bear arms

The plaintiffs also claimed that the Georgia statute impermissibly burdened their right to keep and bear arms secured by the Second Amendment. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The plaintiffs relied on a 2008 decision by the Supreme Court. District of Columbia v. Heller, 554 U.S. 570 (2008). In the Heller case, the Supreme Court ruled that several statutes in the District of Columbia which, taken together, amounted to a total ban on possessing a handgun in the home, violated the Second Amendment. But the only conduct that the Supreme Court clearly located within the Second Amendment right was the possession and carrying of a handgun by an otherwise qualified person within his home for self defense. It carefully noted that “the right secured by the Second Amendment is not unlimited,” and that “historically, the right had never been viewed as a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

The Georgia court concluded that the Supreme Court’s decision in Heller did not address or resolve the question of whether the Georgia statute prohibiting citizens with a concealed weapons license from bringing their weapons onto church property violated the Second Amendment right to bear arms. The court concluded that the Georgia law was constitutionally valid since it was “substantially related to an important governmental objective,” namely, protecting the free exercise of religion. The court observed: “Although the Constitution protects a person’s right to free exercise [of religion] only against governmental intrusion, it is clear that the protection of religious freedom against private bias or coercion is also an important governmental goal. Prohibiting the carrying of firearms in a place of worship bears a substantial relationship to that important goal by protecting attendees from the fear or threat of intimidation or armed attack.” In other words, the court concluded that the constitutional guaranty of religious freedom was better served by prohibiting guns on church premises than by allowing them.

The court clarified that the Georgia statute’s ban against concealed weapons on church property did not extend to church-owned parsonages, and therefore pastors who live in a parsonage are not prohibited from having a weapon on the premises.

The court also clarified that the statute would not bar pastors from carrying or possessing a concealed weapon while in their church office for security reasons. The court observed:

Although the statute generally prohibits persons with valid Georgia Weapons Licenses from carrying a firearm in a place of worship, the statute also provides that the prohibition on carrying in the unauthorized locations … does not apply to … “a license holder who approaches security or management personnel upon arrival and notifies such security or management personnel of the presence of the weapon and explicitly follows the security of management personnel’s direction for removing, securing, storing, or temporarily surrendering such weapon.” O.C.G.A. § 16-11-127(d) (2). As a result, the statute would allow [a pastor] to keep a firearm in his office if he obtained permission from security or management personnel of the church and kept it secured or stored as directed. If management or security personnel at the church, which presumably includes [the pastor] as CEO, did not grant him permission to secure or store a firearm in his office, then that would be at their discretion. Plaintiffs do not argue, however, that they possess a constitutional right to carry a firearm onto private property against the wishes of the owner or controller of the property.

Application. This case is important, for it is the first case to address the constitutionality of state laws barring holders of concealed weapons licenses to bring their weapons onto designated properties, including churches. According to this court, such restrictions do not violate either the First Amendment guaranty of religious freedom, or the Second Amendment right to bear arms. However, the court clarified that such restrictions do not extend to church-owned parsonages.

The court’s analysis of the Second Amendment right to bear arms is interesting. The court noted that the Supreme Court’s 2008 decision in the Heller case, which struck down D.C. statutes prohibiting the possession of firearms in one’s home, was limited to the principle that the Second Amendment protects the right of private citizens to own firearms in their homes for the purpose of self-defense. This narrow ruling did not directly apply to the scenario in this case, which involved a state’s attempt to restrict the carrying of firearms on church property. It also is interesting to note that the court concluded that the Second Amendment right to bear arms was not violated by the Georgia statute since the statute was “substantially related to an important governmental objective”—namely, the protection of church members’ right to freely exercise their religion by alleviating their fear of armed attack. Of course, this conclusion naively assumes that crazed assailants will comply with the law’s requirement that they not bring their weapons onto church property. It also fails to note that many church members’ fear of armed attack will be enhanced by the law’s prohibition of the carrying of weapons on church property by law-abiding members. Ironically, the court concluded that the constitutional guaranty of religious freedom was better served by prohibiting guns on church premises than by allowing them. GeorgiaCarry.Org, Inc. v. Georgia, 2011 WL 240108 (M.D. Ga. 2011).

This Recent Development first appeared in Church Law & Tax Report, May/June 2011.

Legal Developments

Will Ministers Be Forced to Perform Same-Sex Marriages?

The Iowa Supreme Court legalized same-sex marriage, but does not require ministers to perform ceremonies.

Richard R. Hammar, Attorney, CPA

Bio

State: Iowa
Categories: Freedom of Religion, Marriage

Church Law & Tax Report

Will Ministers Be Forced to Perform Same-Sex Marriages?

The Iowa Supreme Court legalized same-sex marriage, but does not require ministers to perform ceremonies.

Richard R. Hammar, J.D., LL.M., CPA

Key Point. The recognition of same-sex marriages by a state court or legislature will not require clergy to perform such marriages, or compel churches to allow their facilities to be used for them, in violation of their religious beliefs.

The Iowa Supreme Court unanimously ruled that a state law defining marriage as a union between a man and a woman was invalid because it violated the constitutional rights of same-sex couples who desired to marry. The Iowa legislature amended its marriage statute in 1998 to define marriage as a union between only a man and a woman. Despite this law, the six same-sex couples (the “plaintiffs”) asked a county recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the plaintiffs were unable to marry. Except for the statute defining marriage as a union between a man and a woman, the plaintiffs met the legal requirements to marry in Iowa.

The plaintiffs asked a court to declare the marriage statute unconstitutional so they could obtain the array of benefits of marriage enjoyed by heterosexual couples. They identified several disadvantages associated with their inability to marry, including: (1) the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death. Various plaintiffs told of the inability to share in their partners’ state-provided health insurance, public-employee pension benefits, and many private-employer-provided benefits and protections; (2) denial of several tax benefits; (3) more cumbersome adoption proceedings.

The county identified five reasons in support of the statute defining marriage as a union between a man and a woman: (1) promoting procreation; (2) promoting child rearing by a mother and a father within a marriage; (3) promoting stability in an opposite-sex relationship to raise and nurture children; (4) conservation of state resources; and (5) promoting the traditional notion of marriage.

The plaintiffs claimed that most scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or biological parents to grow into well-adjusted adults. They noted that many organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, supported the conclusion that same-sex parents are as effective as heterosexual parents in raising children. For example, the official policy of the American Psychological Association declares, “There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: [Same-sex] parents are as likely as heterosexual parents to provide supportive and healthy environments for children.”

A trial court concluded the state marriage statute was unconstitutional under the due process and equal protection clauses of the Iowa Constitution and ruled in favor of the plaintiffs. The case was appealed to the state supreme court.

The supreme court’s decision

The state supreme court ruled that a statute that treats persons differently will be permissible under the state constitution’s guarantees of due process and equal protection of the laws only if “substantially related to an important governmental objective.” The court considered each of the five justifications cited by the county in support of the marriage statute, and concluded that none of them was substantially related to a governmental objective. It observed, in part:

We begin with the county’s argument that the goal of the same-sex marriage ban is to ensure children will be raised only in the optimal milieu. In pursuit of this objective, the statutory exclusion of gay and lesbian people is both under-inclusive and over-inclusive. The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or “overbroad generalizations about the different talents, capacities, or preferences” of gay and lesbian people, rather than having a substantial relationship to some important objective. If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people …. The ban on same-sex marriage is substantially overinclusive because not all same-sex couples choose to raise children. Yet, the marriage statute denies civil marriage to all gay and lesbian people in order to discourage the limited number of same-sex couples who desire to raise children ….

The county also proposes that government endorsement of traditional civil marriage will result in more procreation. It points out that procreation is important to the continuation of the human race, and opposite-sex couples accomplish this objective because procreation occurs naturally within this group. In contrast, the county points out, same-sex couples can procreate only through assisted reproductive techniques, and some same-sex couples may choose not to procreate. While heterosexual marriage does lead to procreation, the argument by the county fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation? If procreation is the true objective, then the proffered classification must work to achieve that objective …. The statute is significantly under-inclusive with respect to the objective of increasing procreation because it does not include a variety of groups that do not procreate for reasons such as age, physical disability, or choice. In other words, the classification is not substantially related to the asserted legislative purpose ….

Having examined each proffered governmental objective … we conclude the sexual-orientation-based classification under the marriage statute does not substantially further any of the objectives. While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage. Our equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute.

Religious institutions and clergy

Will ministers in Iowa be forced to perform marriages for same-sex couples in violation of their religious beliefs? Will churches be compelled to make their facilities available for same-sex marriages? Here is how the court responded to such concerns:

It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained-even fundamental-religious belief ….

We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. This proposition is the essence of the separation of church and state. As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more ….

In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—.religious or otherwise—.by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

Application. The court’s ruling contains an unequivocal recognition of two fundamental principles: (1) no church will be required to perform a same-sex marriage, or any other marriage, that violates its religious beliefs; and (2) no minister will be required to perform a marriage in violation of his or her religious beliefs. In other words, the very concerns that are being raised by some church leaders in the aftermath of the court’s decision were anticipated and addressed by the court itself. Varnum v. Brien, 2009 WL 874044 (Iowa 2009).

Resource. For a comprehensive look at this topic, purchase the downloadable Feature Report, “What Clergy Should Know About Same-Sex Marriages,” at ChurchLawAndTaxStore.com.

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

Legal Developments

Church Childcare Program Forced to Seek License

Court concluded that licensing law did not violate church’s rights.

Richard R. Hammar, Attorney, CPA

Bio

State: Tennessee
Categories: Freedom of Religion, Schools

Church Law & Tax Report

Church Childcare Program Forced to Seek License

Court concluded that licensing law did not violate church’s rights.

Richard R. Hammar, J.D., LL.M., CPA

Key Point 13-02.1 In the Smith case (1990) the Supreme Court ruled that a neutral law of general applicability is presumably valid and need not be supported by a compelling government interest to be consistent with the first amendment, even if it interferes with the exercise of religion.

A Tennessee court ruled that a state law requiring church childcare agencies to be licensed did not violate the constitutional rights of a church-run program that refused to seek a license. A church operated a “Bible School” from 6:00 a.m. to 6:00 p.m., Monday through Friday, during the regular school year. Children arrived and left at various times throughout the day and could stay for any number of hours based on their parents’ needs. The Bible School enrolled children ages one to sixteen, and school-aged children were transported to and from their schools by church staff members. On days when schools were closed, the children could stay at the church all day. The Bible School enrollment mostly consisted of children of church members, but a few children were non-members who attended other churches. The church charged a weekly fee per child that varied by age. If the child only stayed at the church before or after school, the rates are reduced. While at Bible School, children learned Bible stories, scriptures, and songs, created Bible related arts and crafts projects, participated in learning centers, improved their writing, math, and reading skills, received help with their school homework, played inside and outside, took naps, and ate meals and snacks.

The church began operating the Bible School in 2000. In 2004, the church’s pastor contacted the fire department to determine whether the church’s facilities were in compliance with local fire codes. A fire inspector determined that the Bible School was subject to “daycare occupancy” standards of the safety code, and found a number of fire code violations during the inspection. The fire department also informed the Department of Human Services that the church appeared to be operating a childcare facility without a license.

A few weeks later, members of the Department of Human Services (“DHS”) visited the Bible School. They observed 36 preschool-aged children being cared for, and they were informed that older children would be returning from school that afternoon, for a total of 61 children enrolled that day. The DHS evaluators concluded that the church was operating a childcare agency subject to licensure pursuant to state law. Tennessee law requires any “childcare agency” to be licensed by the state, and defines a childcare agency as “any place or facility operated by any person or entity that provides childcare for 3 or more hours per day for at least 13 children who are not related to the primary caregiver.”

A letter was hand-delivered to the pastor, informing him of DHS’s conclusion and the applicable licensing laws. The letter stated that if the church continued to operate the Bible School without a license beyond a specified date, DHS would pursue a court-ordered injunction. The church did not apply for a license, and DHS representatives observed children being dropped off at the Church the following week. As a result, DHS filed a complaint seeking injunctive relief against the Bible School, its director, and the pastor (the “defendants”). Specifically, the complaint alleged that the defendants could keep no more than four children for more than three hours per day without some type of license, and that DHS staff had observed 36 children at the church and were told that 61 were enrolled for that day. Therefore, DHS claimed that the defendants were operating a childcare agency without a license in violation of state law.

The church insisted that its Bible School qualified for one of the exemptions from licensing: for “nurseries, babysitting services and other children’s activities that are not ordinarily operated on a daily basis.” It also claimed that the First Amendment guaranty of religious freedom barred the state from interfering with the operation of the Bible School. A trial court concluded that the church’s Bible School met the definition of a “child care center” and as such was subject to the licensure requirement; that none of the licensure exemptions applied to the Bible School since the church was providing long-term child care while the exemptions contemplated short-term care; and, that “religiously motivated conduct” is subject to reasonable control.

The court issued a restraining order prohibiting the Bible School from “opening or operating any child welfare agency without a proper active license issued by the Tennessee Department of Human Services.” When the church continued to operate the Bible School without a license, the trial court found the defendants in contempt of court. The defendants thereafter agreed to discontinue operation of its Bible School, but appealed the trial court’s rulings to a state appeals court. The church’s main argument was that the licensing requirements violated its constitutional right to freely exercise its religion. Specifically, the church asserted that becoming a licensed “daycare” would violate its religious beliefs because it believed that Jesus Christ is the founder of the church, and that the church should not be assigned to an entity such as the state of Tennessee.

A state appeals court rejected the church’s arguments, and ruled that the trial court acted properly in ordering the church to discontinue the operation of its unlicensed Bible School. It noted that the United States Supreme Court has ruled that “neutral laws of general applicability,” that apply to equally to all organizations and do not single out religion for unfavorable treatment, are presumptively constitutional without the need for the state to prove a compelling interest. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). To permit otherwise “would allow the professed doctrines of religious belief to be superior to the law of the land, and in effect permit every citizen to become a law unto himself.” As a result, “claims based on religious convictions do not automatically entitle persons to unilaterally establish the terms and conditions of their relations with government, and our constitutions do not give individuals veto power over government actions.”

The court concluded that the licensing law in this case was a neutral law of general applicability, and as such it did not violate the church’s constitutional rights. It was “a reasonable means of promoting a legitimate public purpose, and we must uphold it.”

The court acknowledged that some other states have enacted childcare licensing laws containing an exemption for church-run programs, but concluded that such exemptions, while constitutionally permissible, were not constitutionally required. It also pointed out that there are several states that “do not exempt religious entities from childcare licensing laws, and these license requirements have been upheld against [constitutional] challenges similar to the one in this case.” It referred to the following cases: North Valley Baptist Church v. McMahon, 893 F.2d 1139 (9th Cir. 1990) (California law); Darrell Dorminey Children’s Home v. Georgia Department of Human Resources, 389 S.E.2d 211 (Georgia 1990); State ex rel. Pringle v. Heritage Baptist Temple, Inc., 693 P.2d 1163 (Kansas 1985); State, Michigan Department of Social Services v. Emmanuel Baptist Preschool, 455 N.W.2d 1 (Michigan 1990); Health Services Division v. Temple Baptist Church, 814 P.2d 130 (New Mexcio 1991); State v. Corpus Christi People’s Baptist Church, Inc., 683 S.W.2d 692, 695 (Texas 1984).

The court also rejected the church’s proposal that it be allowed to “register” with the state as a less intrusive alternative to licensure, noting that such an alternative had been “considered and rejected as an insufficient means of serving the states’ interests in protecting the health, safety, and welfare of children in childcare centers.” Department of Human Services v. Priest Lake Community Baptist Church, 2007 WL 1828871 (Tenn. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, March/April 2008.

Legal Developments

Religious and Sexual Orientation Discrimination

A New York court ruled that a church could be sued by a former employee for discriminating against him on the basis of his religion and sexual orientation.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Employment Practices, Freedom of Religion

Church Law & Tax Report

Religious and Sexual Orientation Discrimination

A New York court ruled that a church could be sued by a former employee for discriminating against him on the basis of his religion and sexual orientation.

Richard R. Hammar, J.D., LL.M., CPA

Key point 8-12. Many state civil rights laws prohibit employers with a specified number of employees from discriminating in any employment decision on the basis of the sexual orientation of an employee or applicant for employment. Such laws generally exempt religious organizations.

* A New York court ruled that a church could be sued by a former employee for discriminating against him on the basis of his religion and sexual orientation. A homosexual, Jewish man was employed by a church in an administrative capacity. The employee claimed that his supervisor acted in a hostile manner toward him because of his sexual orientation and religious background, and that she undermined him in his job performance and treated him differently than she did heterosexual employees. The employee alleged that on one occasion his supervisor said to him, “I wonder how the officers would feel if they knew they had a Jewish fag working for them.” The employee claimed that he reported the harassing behavior to church officials, but was reprimanded for doing so and within a few weeks was dismissed. The former employee sued the church, claiming that it was responsible for its supervisor’s acts of religious and sexual orientation discrimination. He asked the court to award him back pay, front pay or reinstatement, compensatory and punitive damages, interest, attorney’s fees, and costs.

The church argued that it was exempt from the anti-discrimination provisions of the civil rights laws of the State of New York and New York City. The court conceded that both laws permit religious organizations to limit employment or give preference to persons of the same religion or denomination, or to promote the religious principles of the organization. However, the court noted, “those limited exemptions for religious organizations are a far cry from letting them harass their employees and treat the employees in an odiously discriminatory manner during their employment, and to use derogatory expressions toward the employees …. Thus, the claims cannot be dismissed due to defendant’s status as a religious organization.”

The court did dismiss the sexual orientation discrimination claim under state law since it was not enacted until after the alleged discrimination. But, the court allowed the former employee to sue the church for sexual orientation discrimination under the city civil rights law, and for religious discrimination under both the state and city laws. It concluded, “Invidious discrimination, including by religious institutions, has no place in our society. If the allegations made by plaintiff are true, he should be compensated for defendant’s bad acts.”

Application. This case is important for three reasons. First, it is the first published case to find a church liable for discriminating against an employee on the basis of sexual orientation. The issue of discrimination by churches in employment decisions on the basis of sexual orientation was addressed fully in the July-August 2004 edition of this newsletter. Several states, like New York, have laws prohibiting private employers with a specified number of employees from discriminating in employment decisions on the basis of sexual orientation. Each of these laws has a broad exemption for religious organizations. To illustrate, the New York state law provides: “Nothing contained in this section shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting employment … or giving preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.” The City of New York municipal code contains an almost identical provision. Such language clearly is broad enough to apply to the church in this case, and the court’s ruling to the contrary represents a very narrow interpretation of the law that may well be reversed on appeal.

Second, this case illustrates that some cities have enacted ordinances banning discrimination by employers on the basis of sexual orientation. It is imperative for church leaders to be familiar with their own municipal ordinances as well as federal and state employment laws. The court conceded that the state law banning sexual orientation discrimination in employment did not apply to the church since it was not enacted until after the alleged discrimination occurred. However, it ruled that the church could be sued for violating a similar ban contained under the municipal code.

Third, the court ruled that the church could be sued for religious discrimination. Once again, state and city laws contain a broad exemption from the ban on religious discrimination, and the court’s narrow interpretation of these exemptions is vulnerable to reversal on appeal. Logan v. Salvation Army, 809 N.Y.S.2d 846 (Sup. Ct. 2005).

Legal Developments

Age and Disability Discrimination

Most courts have concluded that they are barred by the First Amendment from resolving challenges by dismissed clergy to the legal validity of their dismissals.

Richard R. Hammar, Attorney, CPA

Bio

State: New Mexico
Categories: Clergy - Removal, Freedom of Religion

Church Law & Tax Report

Age and Disability Discrimination

Most courts have concluded that they are barred by the First Amendment from resolving challenges by dismissed clergy to the legal validity of their dismissals.

Richard R. Hammar, J.D., LL.M., CPA

Key point 2-04.1. Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and non-establishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

* A New Mexico court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a rabbi’s claim that a synagogue unlawfully dismissed him on the basis of his age and Parkinson’s disease. A Jewish synagogue hired a rabbi (David) for a term of thirty years. During the term of his employment David developed Parkinson’s disease and his symptoms became progressively more apparent. His wife was diagnosed with breast cancer, and some of the synagogue’s board members came to believe that her condition distracted David from his rabbinical duties. David claimed that the synagogue had engaged in an “ouster campaign” against him that involved both a willful failure to pay him the compensation called for by his employment contract, and an attempt to get him to release the synagogue from the thirty-year contract through a campaign of “false promises, harassment, ridicule, and intimidation, including publishing one-sided and negative information about him to congregation members and other members of the public in an effort to ensure that in the event he did not resign, the synagogue would have the congregation members’ votes to terminate his employment.” This negative information included statements accusing David of a poor work ethic, having no concern for congregation members, and performing poorly as a rabbi by failing to return telephone calls, failing to work adequate hours, and failing to make hospital visits.

David asserted that the synagogue’s motivation for conducting this campaign was due to his Parkinson’s disease, his age, his wife’s medical condition and his complaints about the synagogue’s failure to compensate him in accordance with his contract. He sued the synagogue and several board members on the basis of several grounds, including unlawful age and disability discrimination and a breach of various fiduciary duties. The trial court dismissed David’s lawsuit on the basis of the First Amendment guaranty of religious freedom. David appealed.

A state appeals court affirmed the trial court’s dismissal of the lawsuit. It relied on the “church autonomy doctrine,” which “prevents civil legal entanglement between government and religious establishments by prohibiting courts from trying to resolve disputes related to ecclesiastical operations.” The basis for this doctrine is a decision by the United States Supreme Court. In an 1871 case, the Court observed: “The rule of action which should govern the civil courts Â… is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” Watson v. Jones, 80 U.S.(13 Wall.) 679 (1871).

The New Mexico court concluded that the dispute in the present case was “precisely the type of religious debate that the church autonomy doctrine is intended to protect from judicial review.” The court was sympathetic to David’s claim that his struggles with Parkinson’s disease played a role in his termination, but was “not persuaded that this circumstance justifies judicial intervention into how [a synagogue] treats and selects its ecclesiastical leaders.”

The court quoted with approval from a federal appeals court decision: “The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection.” McClure v. Salvation Army, 460 F.2d 553 (5th Cir.1972).

Application. This case illustrates once again the reluctance of the civil courts to interfere with employment decisions between religious organizations and clergy. The court in this case was not persuaded that a rabbi’s claims of disability and age discrimination were sufficient to justify its intervention. Celnik v. Congregation B’Nai Israel, 131 P.3d 102 (N.M. 2006).

Legal Developments

Are Churches Exempt from City Water Assessments?

Yes, one court ruled.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: First Amendment, Freedom of Religion

Background

A city's department of environmental protection attempted to collect water and sewer charges from a church. The church's request for an exemption was denied because the church property contained apartments for three staff members (the pastor, church business administrator, and a full-time teacher at a church-operated school).

The pastor wrote the city, claiming that "we are a religious organization, providing this community with a vital service. Our only income are gifts that come from the members of this community. We cannot pay these charges, moreover, we are entitled to exemption." The city disagreed, and assessed $12,000 in back charges against the church and imposed a "tax lien" on the church's property. The church appealed. It asked a court to grant its exemption from the water and sewer charges, reverse the city's assessments and penalties against it, and remove the tax lien.

A city ordinance contained the following exemption: "The real estate owned by any religious corporation … actually dedicated and used exclusively as a place of public worship [is] hereby exempt from the payment of any sum of money, whatsoever to said city, for the use of water taken by same from said city." A similar exemption applies to sewer charges.

The court's ruling

The appeals court ruled that the exemption of religious corporations from water and sewer charges "should be interpreted as applying to all property used in furtherance of the corporation's purpose," and in this case "that would include the housing provided its pastor, teacher and administrator staff promoting the primary purpose of the institution."

The court added that even if the staff members who were provided housing were not promoting the purposes of the church, the city should have granted a "partial exemption" for all of the church's property less the three apartments. The city's denial of any exemption was "legally wrong, arbitrary and capricious."

What this means for churches

Many cities exempt churches from water and sewer fees. This case demonstrates that such an exemption will not necessarily be lost because of uses of church property that "promote the primary purpose" of the church.

Bathelite Community Church v. Department of Environmental Protection, 797 N.Y.S.2d 707 (N.Y. Sup. Ct. 2004).

Legal Developments

Freedom of Religion at Work

Restrictions of employees’ religious speech may violate the First Amendment.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

Church Law and Tax 1997-09-01

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Broad restrictions on employees’ religious speech may violate the first amendment guaranty of religious freedom.

A federal appeals court ruled that a government agency violated the constitutional rights of employees when it adopted broad bans on religious speech and displays in the workplace. An employee of the State of California began using the acronym “SOTLJ” after his name on documents he prepared in the course of his work. The acronym stood for “Servant of the Lord Jesus Christ,” and was used because the employee felt it was important to give credit to God for the work he performed. The state suspended the employee, and then issued orders prohibiting him from (1) using any religious “names, acronyms, or symbols” in the workplace; (2) initiating any religious discussions during the work day; and (3) displaying any religious books or pictures outside of his immediate work space. A few days later these restrictions were imposed on all employees. The employee challenged these restrictions, and a federal appeals court ruled that the state’s policy was unconstitutional. The state defended its ban on religious discussions by claiming it was necessary to avoid an establishment of religion. The court disagreed: “Certainly nothing [the employee] says about religion in his office discourse is likely to cause a reasonable person to believe that the state is speaking or supports his views. Allowing employees … to discuss whatever subject they choose at work, be it religion or football, may incidentally benefit religion (or football), but it would not give the appearance of a state endorsement.” The court also struck down the policy forbidding the display of religious materials outside of an employee’s cubicle:

We conclude that it is not reasonable to allow employees to post materials around the office on all sorts of subjects, and forbid only the posting of religious information and materials. The challenged ban not only prevents employees from posting non—controversial information that might interest some or all employees-such as bulletins announcing the time and location of church services, invitations to children of employees to join a church youth group, and newspaper clippings praising Billy Graham, Mother Theresa or Cardinal Bernadin-it would also ban religious messages on controversial subjects such as abortion, abstinence of various types, family values, and the v—chip. Material that addresses controversial topics from a non—religious viewpoint would, however, be permissible, as would signs inviting employees to motorcycle rallies, swap meets, x—rated movies, beer busts, burlesque shows, massage parlors or meetings of the local militia. The prohibition is unreasonable not only because it bans a vast amount of material without legitimate justification but also because its sole target is religious speech.

The state decided, on the basis of these rulings, to revoke its policy banning the use of religious names and acronyms in the workplace. Tucker v. State of California, 97 F.3d 1204 (9th Cir. 1996). [Display of Religious Symbols on Public Property]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m47 c0597

Legal Developments

Former Candidate for Priesthood Sues for Defamation

Many courts are unwilling to resolve this type of claim.

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Defamation, Freedom of Religion

Church Law and Tax 1997-05-01

Clergy—Removal

Richard R. Hammar, J.D., LL.M., CPA

• Key point. It is the prevailing view that the civil courts are prohibited by the first amendment guaranty of religious freedom from resolving lawsuits brought by dismissed clergy challenging their dismissals, particularly if the resolution of such a dispute would require consideration of ecclesiastical matters.

A Maryland court ruled that a former candidate for the priesthood could not sue his diocese or church officials for defamation. The candidate entered seminary and pursued training in preparation for ordination as a priest. Less than a year before he was to be ordained, he was informed by a church official that he was being “released” from the diocese and as a result would never be considered for the priesthood. The candidate sued the archbishop on behalf of the diocese and various church officials, claiming that the decision to “release” him was based on defamatory information shared with the diocese. Specifically, the candidate claimed that a priest provided a reference to church officials in which he asserted that the candidate had engaged in “sexually motivated conduct” with certain staff members in a former parish. The candidate claimed that church officials repeated this information with knowledge that it was false and with an intent to harm his chances for ordination to the priesthood. He sought more than $2 million in damages. A trial court dismissed the case and the candidate appealed.

A Maryland appeals court agreed that the case had to be dismissed. It quoted from a landmark United States Supreme Court ruling in 1976:

In short [the Constitution] permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them. Serbian Eastern Orthodox Diocese v. Milivojevich, 46 U.S. 696 (1976).

The court acknowledged that the Supreme Court has not addressed a case involving a defamation claim by a minister or former minister. However, it insisted that “the withdrawal of ecclesiastical controversies from civil jurisdiction has been a broad one.” It referred to another Supreme Court decision declaring any dispute concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of members of the church to the standard of morals required of them” to be beyond the authority of the civil courts to resolve. Watson v. Jones, 80 U.S. 679 (1871). The purpose of such a view is “to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice.”

The court was not prepared to say that the civil courts can never resolve disputes between a church and its ministers. However:

When the conduct complained of occurs in the context of, or is germane to, a dispute over the plaintiff’s fitness or suitability to enter into or remain a part of the clergy … it is difficult to see how the forbidden inquiry could be avoided. Questions of truth, falsity, malice, and the various privileges that exist often take on a different hue when examined in the light of religious precepts and procedures that generally permeate controversies over who is fit to represent and speak for the church ….

It is apparent from these allegations … that the very heart of the [lawsuit] is a decision by [the candidate’s] clerical supervisors to prevent him from becoming a priest. The allegedly defamatory statements were made by them with that intent, thereby evidencing a determination on their part-whether valid and fair or invalid and unfair-that [the candidate] was not a suitable candidate for the priesthood. That the offensive conduct was so directed is what brings this case squarely within the protective ambit of the first amendment.

Application. This case illustrates the reluctance so often expressed by the civil courts to intervene in disputes between churches and ministers. While a minority of courts have been willing to become involved in such disputes if they can do so without delving into religious doctrine, most have been unwilling to do so under any circumstances. All courts agree that they cannot intervene in such disputes if doctrinal issues or the fitness of clergy will be involved. Downs v. Roman Catholic Archbishop, 683 A.2d 808 (Md. App. 1996). [Terminat ion, Defamati on, Judicial Resolution of Church Disputes]

Legal Developments

Church Designated as “Historic Landmark”

Court rules that designation violates religious freedom.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Church Property, Freedom of Religion

Key Point. City ordinances that allow church buildings to be designated as historical "landmarks" may violate the constitutional guaranty of religious freedom.

The Washington Supreme Court ruled that a city's designation of a church as an "historic landmark" violated the church's constitutional right of religious freedom.

Many cities have enacted ordinances giving the city council the authority to designate buildings as landmarks. Such a designation may prohibit the landowner from modifying or selling the building. When these ordinances are applied to churches, a serious conflict with the constitutional guaranty of religious freedom can result.

This was the issue confronting the Washington Supreme Court in an important ruling. A Methodist church in downtown Seattle was erected in 1909. In 1985 the building was designated as a landmark by the city, and the church was informed that it was prohibited from making any alterations or significant changes to the church's interior or exterior without city approval, unless "such changes were necessitated by changes in the liturgy." Church leaders decided to demolish the building, sell the land for commercial development, and use the proceeds to build a smaller sanctuary on another site.

They noted that the congregation had diminished significantly in recent years due to the development of hospitals, highways, and commercial buildings in its immediate vicinity. The church asked a court to strike down the landmark ordinance on the ground that it violated the constitutional guaranty of religious freedom. A trial court ruled that the city could never designate the church building as a landmark, and the city appealed.

A state appeals court ruled that the city could designate the church as a landmark so long as it refrained from imposing any limitations on the use of the property while the church used it for primarily religious purposes. The appeals court permitted the church to demolish its sanctuary only if it replaced it with a new building devoted to religious use on the same property. The church appealed this ruling to the state supreme court, arguing that these limitations were unduly restrictive and that it had a constitutionally protected right to demolish the building and sell the land for commercial development.

The state supreme court agreed, noting that the landmark ordinance violated the church's constitutional rights of speech and religion and therefore it could be sustained only if it furthered a compelling governmental interest. No such interest existed, the court concluded. The court noted any attempt to delay implementation of the landmark regulations until the church ceased to use the property primarily for religious purposes did not help.

The court pointed out that the phrase "primarily for religious purposes" is ambiguous, and that it would entangle the courts in deciding what is "religious." For example, what if the church elected to use the property for a soup kitchen, homeless shelter, child care center, counseling center, or retreat? Are these activities religious? Should the city have the sole authority to make this decision, even if contrary to the church's position?

On the other hand, the court refused to hold that all landmark designations of churches are unconstitutional. It noted that some churches are not opposed to landmark status and some even desire it. Therefore, designation of a church as a landmark will be impermissible only if there is a demonstrated burden on the church's exercise of religion. In this case, the landmark designation severely burdened the church's exercise of religion because it prevented the church from selling its property and using the proceeds to advance its religious mission. First United Methodist Church v. Hearing Examiner, 916 P.2d 374 (Wash. 1996).

Legal Developments

Use of “In God We Trust” on Coins and Currency

Court rules that use of the national motto does not violate the First Amendment.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

Church Law and Tax 1997-03-01

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Key point. The first amendment’s prohibition of the establishment of religion does not invalidate all references to religion in our public life.

A federal appeals court ruled that use of the national motto “in God we trust” on coins and currency did not violate the first amendment’s nonestablishment of religion clause. The court applied the United States Supreme Court’s three—part Lemon test for determining whether or not the practice constituted an impermissible establishment of religion. Under this test, first announced in a 1971 decision (Lemon v. Kurtzman), a law or government practice challenged as an establishment of religion will be valid only if it satisfies the following three conditions-a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive entanglement between church and state. The court concluded that all of these tests were met. First, the practice of printing the national motto on coins and currency has a “clearly secular purpose,” since “the motto symbolizes the historical role of religion in our society, formalizes our medium of exchange, fosters patriotism, and expresses confidence in the future.” Second, the motto’s primary effect is not to advance religion but rather “is a form of ceremonial deism which through historical usage and ubiquity cannot be reasonably understood to convey government approval of religious belief.” Finally, the court concluded that the motto “does not create an intimate relationship of the type that suggests unconstitutional entanglement of church and state.” Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996). [The Establishment Clause, Display of Religious Symbols on Public Property]

Legal Developments

Church Use of Public School Auditoriums

Court rules that schools must be consistent in allowing religious groups to use their property.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

Church Law and Tax 1997-03-01

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Key point. A public school that makes it auditorium available to community groups, including at least one religious group, cannot deny access to another religious group.

A federal court in New York ruled that a church could not be denied use of public school property that was made available to other community groups including at least one other religious organization. A Methodist church asked permission to conduct a magic show on public school property. The church’s application to the school indicated that the show would to be performed by a Christian illusionist, and would include a religious service. The school board denied this request on the basis of a state law banning use of public school property by religious organizations for religious purposes. The church sued the school board, claiming that its actions violated the constitutional guarantees of speech and religion. The church acknowledged that state law banned the use of public school property for religious purposes, but it noted that the school board had permitted a Pentecostal church to conduct a “Holy Ghost filled concert” on the same public school property that included singing, a sermon by a pastor, and an “altar call.” The court concluded that the school board’s denial of the church’s application to use the school property violated the constitutional guaranty of free speech. The court noted that the guaranty of free speech does not guarantee “unlimited access to government—owned property for purposes of expression” and that “depending on the nature of the property, the government may regulate access.” The court noted that speech may occur in four different kinds of “fora,” and that the government’s right to regulate speech differs depending on the forum involved. The application of the first amendment to the four fora are summarized below:

1. Public forum . A tradition public forum includes streets and parks “which have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” For the government to regulate or restrict speech in such a place “it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”

2. Designated public forum. A “designated public forum” is government—owned property that has been opened to the public for “expressive activity.” Examples include university meeting facilities and municipal theaters. The court noted that the government is not forever bound to maintain the open character of the property, but so long as it does so it cannot regulate or limit free speech without a compelling state interest that is narrowly drawn to achieve that end.

3. Limited public forum. The court noted that this category is actually a variation of the designated public forum, and noted that it is created when government “opens a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.” The idea here is a designated public forum that has been created for a specific purpose-such as use by certain groups or the discussion of certain issues. The test to be applied to government attempts to regulate speech in such a forum is the same that applies to public fora the limitation must be necessary to serve a compelling state interest and must be narrowly drawn to achieve that end. The court emphasized that “in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.”

4. Non—public fora. This category of forum includes public property that is not by tradition or designation a forum for public communication. Examples include prisons or school mail boxes. The government can regulate speech in such places as long as the regulation “is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”

The school board claimed that state law had created a limited public forum that was available only to nonreligious groups. The court concluded that even if the school board had created a limited open forum, religious services were a permitted use since the board had previously allowed a church choir to use school property for a concert and religious service. As a result, it could not deny access by any group wanting to use the property for religious purposes.

The court rejected the school board’s argument that allowing the church to use school property for a religious service would violate the first amendment’s nonestablishment of religion clause. It observed: “[The performance] would not have occurred during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. In addition, the school facilities have repeatedly been used by a variety of private organizations. [The Supreme Court has ruled] that where a forum is available to a broad class of speakers, allowing religious speech does not confer any imprimatur of state approval on religious sects or practices.”

The court concluded that “[t]he gospel concert occurred and it created at least a limited public forum for entertainment events including prayer, religious instruction, music and religious testimony. This means that the school board cannot selectively deny access for activities of the same genre ….” Trinity United Methodist Parish v, Board of Education, 907 F. Supp. 707 (S.D.N.Y. 1995). [Use of Public Property for Religious Purposes]

Legal Developments

Dismissed Members Sue Church

Court rules that it cannot interfere.

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Freedom of Religion

Key point. The civil courts are prohibited by the first amendment from interfering with a church's decision to dismiss a member as a result of his suing another member. Further, the courts will not resolve a dismissed member's claim that he was defamed by the pastor.

A Louisiana court ruled that it could not resolve a lawsuit brought by dismissed church members who claimed that their church acted improperly in dismissing them for suing the church.

When the members' request to inspect church records was denied by church leaders, they asked a court to order the church to allow them to inspect certain records. The church's pastor dismissed the members for filing a legal action against the church, and removed their names from the membership rolls. The pastor acted pursuant to an "essential tenet" of the United Pentecostal Church that prohibits Christians taking other Christians to court.

The dismissed members sued their pastor and church, claiming that they had been unjustly and illegally dismissed as members of the church. They also claimed that the pastor had defamed them and intentionally caused them emotional distress. A trial court dismissed the lawsuit, and the members appealed. A state appeals court affirmed the trial court's decision, noting that:

It is evident to us that this dispute is rooted in an ecclesial [sic] tenet of the United Pentecostal Church which prohibits members from suing fellow church members. Certainly, in civil law the [members] had a right to pursue their [initial lawsuit demand seeking inspection of church records].

However, we hasten to add that the religious repercussions that were set into motion as a result of the exercise of their civil right is another matter beyond the reach of judicial authority. In that light, anything we might consider in [an resolving this appeal] would require us to apply, interpret, and comment upon the United Pentecostal Church tenet against the institution of suits among church members. Based upon the Constitution of the United States … and the Constitution of the State of Louisiana … such action would constitute an impermissible interference in the ecclesiastical matters of the United Pentecostal Church. We decline to do so.

The court quoted with approval from the trial court's opinion: "[T]he adjudication of whether or not the [members'] removal from the membership rolls and disfellowship was legal involves the inquiry into the propriety of religious disciplinary proceedings. The court is instructed [by the United States Supreme Court] that "constitutional concepts of due process, involving secular notions of fundamental fairness" cannot be borrowed from civil law and impressed upon church governance consistent with church—state separation."

The court also noted that "church members are not entitled to rely on the incorporation of a church under state laws as the basis for resort to the courts for redress of allegedly violated rights, if these rights require the determination of ecclesiastical matters."

The court concluded that the dismissed members could not sue their pastor for defamation or emotional distress, since the pastor's allegedly defamatory comments were intertwined with his decision to dismiss the members for violating the church's religious teachings involving suing other Christians. Glass v. First United Pentecostal Church, 676 So.2d 724 (La. App. 1996).

Legal Developments

Sex Discrimination in Schools

Court rules that nun cannot sue school and archdiocese.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Freedom of Religion

Church Law and Tax 1997-01-01

Employment Practices

Richard R. Hammar, J.D., LL.M., CPA

• Key point. The civil courts ordinarily will not interfere with the decisions of religious organizations to dismiss clergy or other church employees who perform ministerial functions.

A New Jersey court ruled that a Catholic school and archdiocese could not be sued on the basis of sex discrimination by a lay principal who was replaced by a nun. The lay principal had been employed by Catholic parochial schools for many years. The archdiocese closed the principal’s school during a reorganization, and opened a new school. The principal was not selected to be principal of the new school. Rather, the archdiocese selected a nun on the ground that her status was important in carrying out the religious mission of the school. The former principal sued the archdiocese, claiming sex discrimination in violation of federal law. A court dismissed the lawsuit, noting that a church has a constitutionally protected right to make employment decisions regarding “ministers” free from civil court review. The court concluded that the principal’s role at the new school was “ministerial”: “The principal is in charge of students’ religious education; she supervises the teachers, plays a significant role in curriculum development, is liaison between the school and the religious community, and is the guiding force behind the school’s spiritual mission. Her functions are more than merely financial or logistic.” The court quoted with approval from another New Jersey decision finding that an “employee’s duties are ministerial when they consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” Welter v. Seton Hall University, 608 A.2d 206 (N.J. 1992). The court concluded that “it is well settled … that the free exercise [of religion] clause demands that courts abstain from deciding ministerial church employees’ claims of discrimination,” and that “the position of a principal in a parochial school is a ministerial one and that selecting a nun to be the principal of the new school in this case was an ecclesiastical decision, thus necessitating judicial abstention.” Sabatino v. Saint Aloysius Parish, 672 A.2d 217 (N.J. Super. 1996). [ Title VII of The Civil Rights Act of 1964]