Sex Discrimination in Universities

Court dismisses nun’s lawsuit against her former employer.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
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 federal appeals court dismissed a lawsuit by a nun claiming that her employer, the Catholic University of America, discriminated against her on the basis of her gender in violation of Title VII of the Civil Rights Act of 1964. A nun with a doctoral degree in canon law was employed as a professor of canon law at the Catholic University of America. She applied for academic tenure after 6 years of teaching, and her application was denied on the basis of “marginal performance in teaching and scholarly publications.” She later filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that the university’s decision to deny her tenure on the basis of marginal performance was a mere “pretext” for what in fact amounted to sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The EEOC launched a 2—year investigation of the university in an attempt to substantiate the nun’s claim of discrimination. After attempts to conciliate the dispute failed, the EEOC joined the nun in suing the university. A federal district court dismissed the lawsuit, concluding that it was barred by the first amendment guarantees of religious freedom and nonestablishment of religion. The nun appealed, and a federal appeals court upheld the lower court’s ruling.

The appeals court observed that “[t]his case presents a collision between two interests of the highest order: the government’s interest in eradicating discrimination in employment and the constitutional right of a church to manage its own affairs free from governmental interference.” The court concluded that the nun’s claim was barred by the first amendment guaranty of religious freedom. It noted that federal courts consistently have ruled that they have no authority to resolve discrimination disputes brought by clergy against religious employers:

The Supreme Court has shown a particular reluctance to interfere with a church’s selection of its own clergy …. Relying on these and other cases [a number of federal courts] have long held that the free exercise [of religion] clause exempts the selection of clergy from Title VII and similar statutes and, as a consequence, precludes civil courts from adjudicating employment discrimination suits by ministers against the church or religious institution employing them.

The court pointed out that the so—called “ministerial exemption” has not been limited to members of the clergy, but “has also been applied to lay employees of religious institutions whose `primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.'” Rayburn v. General Conference of Seventh—day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985) . Employees whose positions are “important to the spiritual and pastoral mission of the church should be considered clergy.” The court concluded that “the ministerial exception encompasses all employees of a religious institution, whether ordained or not, whose primary functions serve its spiritual and pastoral mission,” and this included a nun who taught in the canon law department of the Catholic University. The court noted that the canon law department performs “the vital function of instructing those who will in turn interpret, implement, and teach the law governing the Roman Catholic Church and the administration of its sacraments.”

The court rejected the nun’s claim that the ministerial exemption was abolished by the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990). In the Smith case, the Supreme Court ruled that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes … conduct that his religion prescribes.” On the basis of this language, the nun alleged that clergy are not immune from Title VII discrimination claims. The appeals court disagreed, noting that

it does not follow, however, that Smith stands for the proposition that a church may never be relieved from such an obligation …. The ministerial exception is not invoked to protect the freedom of an individual to observe a particular command or practice of his church. Rather, it is designed to protect the freedom of the church to select those who will carry out its religious mission ….

We conclude from our review of the Supreme Court’s first amendment jurisprudence that whereas the free exercise clause guarantees a church’s freedom to decide how it will govern itself, what it will teach, and to whom it will entrust its ministerial responsibilities, it does not guarantee the right of its members to practice what their church may preach if that practice is forbidden by a neutral law of general application.

The appeals court further ruled that the first amendment’s nonestablishment of religion clause, which prohibits “excessive entanglement” between church and state, was violated by the 2—year investigation by the EEOC:

An excessive entanglement may occur where there is a sufficiently intrusive investigation by a government entity into a church’s employment of its clergy …. In this case, the EEOC’s 2—year investigation of [the nun’s] claim, together with the extensive pre—trial inquiries and the trial itself, constituted an impermissible entanglement with judgments that fell within the exclusive province of the Department of Canon Law as a pontifical institution …. This suit and the extended investigation that preceded it has caused a significant diversion of the Department’s time and resources. Moreover, we think it fair to say that the prospect of future investigations and litigation would inevitably affect to some degree the criteria by which future vacancies in the ecclesiastical faculties would be filled. Having once been deposed, interrogated, and haled into court, members of the Department of Canon Law and of the faculty review committees who are responsible for recommending candidates for tenure would do so “with an eye to avoiding litigation or bureaucratic entanglement rather than upon the basis of their own personal and doctrinal assessments of who would best serve the … needs” of the Department. Rayburn v. General Conference of Seventh—day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985) .

Finally, the court squarely upheld the constitutionality of the Religious Freedom Restoration Act. It noted that it was only the second federal appeals court to directly review the constitutionality of the Act, and both upheld the Act’s constitutionality.

In summary, the court reached the following important conclusions: (1) Churches and other religious institutions have a constitutional right to make employment decisions involving ministers free from civil law claims. (2) This “ministerial exemption” extends to lay employees who primary duties include teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, or whose positions are important to the spiritual and pastoral mission of the church; (3) The ministerial exemption is not affected by the Supreme Court’s Smith decision. (4) Government investigations into the employment decisions of churches regarding ministers violate the first amendment’s nonestablishment of religion clause. (5) The Religious Freedom Restoration Act is constitutional. E.E.O.C. v. Catholic University of America, 83 F.3rd 455 (D.C. Cir. 1996). [ Title VII of The Civil Rights Act of 1964]

© 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: m43 m65 c0197

Legal Developments

Church Employee Dismissed After Making Accusations of Sexual Misconduct

Woman sues church for dismissing her after she complained against another minister.

Richard R. Hammar, Attorney, CPA

Bio

State: Colorado
Categories: Freedom of Religion, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1997-01-01

Sexual Misconduct by Clergy and Other Church Workers

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

• Key point. The civil courts are compelled by the first amendment guaranty of religious freedom to refrain from interfering with the internal decisions of hierarchical churches, including decisions regarding the discipline or dismissal of clergy.

• Key point. Some courts have concluded that the first amendment guaranty of religious freedom prevents them from interfering with the relationship between a church and its ministers, and this rule bars church liability on the basis of negligence for inadequately screening or supervising clergy.

The Colorado Supreme Court threw out a lawsuit brought by a woman alleging that her church acted improperly and unlawfully when it dismissed her after she made complaints of sexual harassment and child molestation against another minister. The woman alleged that between 1968 and 1975, when she was a minor, her stepfather committed various acts of sexual assault against her when they resided together. Her stepfather was a minister at the time, and later became president of his denomination. The woman pursued ministerial studies and was licensed as a minister. After serving as a minister in the State of Washington she moved to the Denver area to start a new church. She later learned that her stepfather, with whom she had severed all ties, was also pastoring a church in the Denver area. She learned that her stepfather was allegedly sexually harassing women church employees and a woman parishioner in his Denver church. She reported this alleged harassment, as well as the sexual abuse she had suffered from her stepfather as a minor, to denominational officers. In response, the stepfather filed charges with the denomination against the woman, claiming that her allegations were false and demanding a full investigation. After an investigation, denominational officers revoked the woman’s license and denied her the opportunity to open a new church. The woman responded by filing a lawsuit against her stepfather, and her denomination, alleging several theories of liability including (1) illegal retaliation by denominational officials in response to her charges of sexual harassment, in violation of Title VII of the Civil Rights Act of 1964; (2) breach of fiduciary duty by denominational officials; (3) breach of contract; and (4) intentional interference with contract. A trial court dismissed most of these claims on the ground that it lacked jurisdiction to resolve an ecclesiastical dispute. A state appeals court concurred with this result, and the woman appealed to the state supreme court.

The court began its opinion by noting that all four of the woman’s claims arose from the denomination’s decision to revoke her minister’s license and to cancel the decision to allow her to open a new church. As a result, “each claim arises out of [the denomination’s] choice of whether or not to employ [her] as a minister of its church.” The court concluded that it was barred from resolving the woman’s lawsuit on the basis of the first amendment’s free exercise and nonestablishment of religion clauses.

Free exercise of religion

In concluding that allowing the woman to sue her denomination would violate the first amendment’s free exercise of religion clause, the court observed:

However, by challenging [the denomination’s] decision not to hire her as a minister [the woman] inevitably leads the court into analysis of [the denomination’s] choice of a minister, even for purposes of a pretextual inquiry. The decision to hire or discharge a minister is itself inextricable from religious doctrine. The great majority of cases find that a minister holds a special and unique position as the leader of the church and the embodiment of the church’s religious beliefs. Thus, the church’s decision of who to hire as a minister necessarily involves religious doctrine. The decision may involve non—religious reasons as well, but those reasons cannot be separated from the basic belief that a particular person embodies or does not embody the religious beliefs of the church.

The court found support in the decisions of several other courts. For example, it referred to a federal appeals court decision holding that the mere maintenance of a lawsuit concerning matters related to a pastoral appointment violates the free exercise clause: “We cannot imagine an area of inquiry less suited to a temporal court for decision; evaluation of the `gifts and graces’ of a minister must be left to ecclesiastical institutions.” Minker v. Annual Conference, 894 F.2d 1354 (D.C. Cir. 1990).

The court cautioned that its ruling did not “bar the large number of non—clergy employees from suing the church on discrimination claims. It does not even bar ministers from bringing employment discrimination claims that do not stem directly from a hiring or discharge decision. Instead, our holding recognizes a small, inviolable area in which the decision of a church is not subject to governmental scrutiny.” Similarly, the court noted that

[w]hile claims for illegal hiring or discharge of a minister inevitably involve religious doctrine, that is not the case for a claim of negligent hiring of a minister. The claim of negligent hiring is brought after an employee has harmed a third party through his or her office of employment. An employer is found liable for negligent hiring if, at the time of hiring, the employer had reason to believe that hiring this person would create an undue risk of harm to others. Hence, the court does not inquire into the employer’s broad reasons for choosing this particular employee for the position, but instead looks to whether the specific danger which ultimately manifested itself could have reasonably been foreseen at the time of hiring. This inquiry, even when applied to a minister employee, is so limited and factually based that it can be accomplished with no inquiry into religious beliefs.

The court rejected the woman’s claim that most of the prior court rulings refusing to resolve disputes concerning the relationship between a church and its ministers occurred prior to the Supreme Court’s 1990 decision in Employment Division v. Smith, 494 U.S. 872 (1990). In the Smith case the Supreme Court said that a neutral, generally applicable law prevails over claims of religious exemption. The woman claimed that Title VII of the Civil Rights Act of 1964 was such a neutral law and therefore her claim of retaliation could not be rejected on the basis of the first amendment. The court disagreed, noting that the Supreme Court surely did not intend in the Smith case to allow the courts to intrude into ecclesiastical decisions regarding the tenure of ministers.

Nonestablishment of religion

The court also concluded that any resolution of the woman’s claims would violate the first amendment’s nonestablishment of religion clause, since it would create excessive government entanglement with religion.

Conclusion

The court also rejected the woman’s claim that the civil courts could resolve her lawsuit if she could demonstrate that the denomination acted with “fraud” or “collusion.” The court acknowledged that the United States Supreme Court had suggested, in earlier cases, that the civil courts may be able to resolve disputes concerning the status or tenure of ministers when churches act with fraud or collusion. The Colorado Supreme Court rejected this exception to the general rule of judicial nonintervention: “In order to determine whether a church employed fraudulent or collusive tactics in choosing a minister, a court would necessarily be forced to inquire into the church’s ecclesiastical requirements for a minister. The first amendment makes such inquiry into religious beliefs impermissible.” Van Osdol v. Vogt, 908 P.2d 402 (Colo. 1996). [ Termination, The Civil Rights Act of 1964, Judicial Resolution of Church Disputes, The Establishment Clause, The Free Exercise Clause]

Legal Developments

Discipline of Church Members

Churches’ membership decisions are protected by the First Amendment.

Richard R. Hammar, Attorney, CPA

Bio

State: Oklahoma
Categories: Freedom of Religion

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

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

• The Oklahoma Supreme Court has rendered its second ruling on the discipline of church members in three years. A church convened a disciplinary hearing to determine the membership status of two sisters accused of fornication. Neither sister attended, and neither sister withdrew her membership in the church. Following the hearing, both sisters received letters from the church informing them that their membership had been terminated. The sisters sued the church and its leaders, claiming that the church’s actions in delivering the termination letters and disclosing their contents “to the public” constituted defamation, intentional infliction of emotional distress, and invasion of privacy (public disclosure of private facts). A trial court dismissed the lawsuit, and the sisters appealed directly to the state supreme court which upheld the dismissal of the case. The court began its opinion by rejecting the sisters’ claim that the contents of the termination letters had been disclosed improperly to the public. This allegation was based entirely on a conversation between a church board member and another member of the church. The member asked the board member why the board was “going after” the sisters, and the board member replied that it was on account of “fornication.” The court concluded that this comment did not constitute a disclosure of the contents of the letters “to the public,” and accordingly there had been no defamation of invasion of privacy. In rejecting the sisters’ allegation of emotional distress, the court noted that the evidence “does not suggest that the lay leader’s conduct was so extreme and outrageous as to justify submission of the claim to the jury.” The court then addressed he sisters’ claim that the manner in which the church notified them of the results of the disciplinary proceeding was inappropriate. In rejecting this claim, the court observed: “The church court had proper ecclesiastical cognizance when the letters were delivered. The [sisters] had not withdrawn their membership at the time they received notice of their expulsion. Under the first amendment, the procedural norms which govern the exercise of ecclesiastical cognizance are not subject to a secular court’s scrutiny. The [trial] court was hence without any authority to assess the propriety of the notice given.” The court then proceeded to announce an absolute constitutional protection for the membership determinations of religious organizations (assuming that the disciplined member has not effectively withdrawn his or her membership):

[The relationship between a church and its members] may be severed freely by a member’s positive act at any time. Until it is so terminated, the church has authority to prescribe and follow disciplinary ordinances without fear of interference by the state. The first amendment will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline. Within the context of church discipline, churches enjoy an absolute privilege from scrutiny by the secular authority.

This absolute privilege also extends to the implementation of the decision of the church regarding the discipline of a member, even though the implementation occurs after the member has been dismissed. However, the absolute privilege only applies to disciplinary actions taken by the church before a member withdraws from membership. The court explained the effect of a member’s withdrawal from membership as follows:

At the point when the church-member relationship is severed through an affirmative act of either a parishioner’s withdrawal or excommunication by the ecclesiastical body, a different situation arises. In the event of withdrawal or of post-excommunication activity … the absolute privilege from tort liability no longer attaches.

However, the court cautioned that “until an affirmative notification of membership withdrawal is received the church need not reassess the course of its legitimate ecclesiastical interest.”

The most astounding aspect of the court’s opinion was its conclusion that churches are immune from the civil “discovery” process with regard to their internal disciplinary proceedings. “Discovery” refers to the process of gathering evidence for civil trial, and includes depositions, interrogatories, and motions to produce documents. The court said that churches are immune from these discovery techniques with regard to internal membership disciplinary proceedings (so long as a member is being disciplined prior to withdrawal from membership). The court observed:

The free exercise [of religion] clause prohibits civil courts from inquiring into any phase of ecclesiastical decisionmaking—its merits as well as procedure. Internal ecclesiastical procedure need not meet any “constitutional concepts of due process.” This is so because the church’s judicature rests solely on consent which in turn is anchored on the [member’s] church affiliation. Because religious judicature is immune from any civil court inquest, it is also protected from intrusion by discovery …. Church judicature exercised within proper bounds of cognizance is notBecause religious judicature is immune from any civil court inquest, it is also protected from intrusion by discovery discoverable. Conversely, any activity outside of valid church judicature is not absolutely privileged and may be discoverable.

The court based this conclusion in part on the following statement of the United States Supreme Court in a 1944 decision: “[R]eligious activities which concern only members of the faith are and ought to be free—as nearly absolutely free as anything can be.” The court upheld the dismissal of the sisters’ lawsuit against the church, and their attempt to discover various church records in support of their claims. However, it did state that the sisters were free to engage in civil discovery of any church records concerning any inappropriate church actions or disclosures following their dismissal as members. Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992).

Churches’ Interiors as Landmarks

Designation as a historical landmark may violate a church’s rights.

Richard R. Hammar, Attorney, CPA

Bio

State: Massachusetts
Categories: Church Property, Freedom of Religion

Church Law and Tax 1992-01-01 Recent Developments

Church Property

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

• The Massachusetts Supreme Judicial Court ruled that the City of Boston could not declare a church’s interior as a “landmark.” Faced with an aging, oversized building, the leaders of a Catholic church adopted a plan to renovate the facility into office, counseling, and residential space. When work began, ten citizens promptly asked the city to designate the interior of the church as a landmark. The city approved the citizens’ request, and prohibited permanent alteration of “the nave, chancel, vestibule and organ loft on the main floor—the volume, window glazing, architectural detail, finishes, painting, the organ, and organ case.” Church leaders filed a lawsuit, claiming that their constitutional right to freely exercise their religion was violated by the city’ action. The court agreed. It relied entirely on a provision in the state constitution specifying that “no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshiping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.” This provision, noted the court, “plainly contemplates broad protection for religious worship” that was violated by the city declaring the interior of the church as a landmark. In rejecting the city’s claim that it was merely addressing a “secular question of interior design,” the court observed that “the configuration of the church interior is so freighted with religious meaning that it must be considered part and parcel of [Catholic] religious worship.” Accordingly, the court concluded that the state constitution “protects the right freely to design interior space for religious worship, thus barring the government from regulating changes in such places, provided that no public safety question is presented.” Society of Jesus v. Boston Landmarks Commission, 564 N.E.2d 571 (Mass. 1991).

Accident Victim Refuses Blood Transfusion; Dies

Her family was not permitted to sue for damages.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

Church Law and Tax 1991-11-01 Recent Developments

Freedom of Religion

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

• A federal appeals court ruled that the surviving relatives of an accident victim whose death was caused by her refusal to accept a blood transfusion were not entitled to money damages. A 2-vehicle accident resulted in physical injuries to a passenger in one of the cars. She was taken to a hospital and diagnosed as suffering from various injuries including a severed artery. She informed hospital staff upon arrival that she was a Jehovah’s Witness and would not accept blood transfusions. Responding to her deteriorating condition, doctors requested permission of the woman’s husband to perform a blood transfusion. The husband refused. He also refused to allow doctors to transfuse his wife’s own blood back into her body. The woman died on the operating table from a loss of blood. Doctors testified that she would have lived had she received a blood transfusion. The woman’s husband, and her minor children, sued the driver of the other vehicle. A jury refused to award any damages to the husband and children as a result of the woman’s death, on the ground that she would not have died had she accepted the transfusion. The husband appealed this decision, arguing that his religious rights were violated by the jury’s decision. A federal appeals court disagreed. It concluded that it was not impermissible for the jury to base its decision on the fact that the woman would have lived had she received a transfusion. It did not matter that the woman’s decision was based on her religious beliefs. The court noted that under applicable state law, an accident victim may not recover money damages that he did not take reasonable steps to avoid. It observed that controlling decisions of the Supreme Court have held that “generally applicable rules imposing incidental burdens on particular religions do not violate the free exercise [of religion] clause.” On this basis, the husband’s contention that his religious rights had been violated had to be rejected. Munn v. Algee, 924 F.2d 568 (5th Cir. 1991).

The Right to Refuse Medical Treatment

© Copyright 1991, 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 c0691

Legal Developments

Display of Religious Student Artwork

Does this violate the First Amendment?

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion, Schools

A federal district court in New York ruled that a public school's display of a student's painting depicting a religious theme violated the first amendment's "nonestablishment of religion" clause.

The artwork consisted of a large mural painted in a corner of the school's auditorium by a student in 1965 as part of the school's plan to decorate the arena with original artwork of students. This program was discontinued shortly after this painting was completed. Only two other paintings are located in the auditorium—a picture of an audience, and one of George Washington.

The mural consisted of 21 human figures, including the crucified Christ, two other crucifixion victims, John the Baptist, Mary Magdalene, the Apostle Peter, Moses, and some gladiators and other unidentifiable figures. The mural also contained a depiction of the 10 Commandments. A family (the father was Baptist and the mother Jewish) sued the school, protesting what they felt was "an inappropriate display of a religious painting in a public high school."

The school defended the mural, claiming that the artist intended it to be a depiction of "man's inhumanity to man," rather than religious art. It also argued that "the presence of unidentifiable secular characters and the context in which the school displays the painting [i.e., a dark corner of the school auditorium] negate any message of government endorsement of Christianity and neutralize the effect of the Crucifixion."

The court rejected the school's claims, and concluded that the mural constituted an impermissible "establishment of religion." It noted that "despite the possible neutralizing effect of—or negation of endorsement by—the unidentifiable figures in the painting, this court remains wary of sectarian messages displayed in public schools as they transmit basic and fundamental values to our youth."

It quoted from an earlier decision of the United States Supreme Court: "To an impressionable student, even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed. This symbolic inference is too dangerous to permit." The court also pointed out that in 1980 the Supreme Court outlawed the posting of the 10 Commandments in public school classrooms. The court concluded:

Taking into account the significant message behind the Crucifixion and the skeptical way in which the [Supreme] Court views sectarian messages in public schools, this court concludes as a matter of law that the painting has the primary effect of endorsing Christianity. First, the school displays the painting permanently and not part of any holiday setting. Further, the school's display contains no placards to explain the painting's meaning or the reason for being there. Moreover, this is not a case where the school displays the painting as part of a student art exhibit. Finally, the presence of the non-religious figures, rather than neutralizing the religious effect of the painting, blend into the scene of the Crucifixion and complete the picture as an average observer would perceive it to be …. The court concludes that the display of [the mural] in the auditorium violates the [nonestablishment of religion clause of the first amendment].

Joki v. Board of Education, 745 F. Supp. 823 (N.D.N.Y. 1990)

Legal Developments

Former Hospital Chaplain Sues for Age and Sex Discrimination

Courts are prohibited from interfering in ecclesiastical considerations.

Richard R. Hammar, Attorney, CPA

Bio

State: Missouri
Categories: Freedom of Religion

Church Law and Tax 1991-03-01 Recent Developments

Clergy – Removal

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

• A federal district court in Missouri ruled that a hospital chaplain could not sue the hospital for alleged age and sex discrimination following her dismissal. The former chaplain was an ordained Episcopal priest who had served as chaplain of a church affiliated hospital for 10 years. Following her dismissal, the former chaplain sued the hospital on the grounds that her dismissal (1) violated the federal Civil Rights Act of 1964, which prohibits certain employers from dismissing employees on the basis of their sex, and (2) violated the federal Age Discrimination in Employment Act, which bans discrimination in employment against persons 40 years of age and older—on account of age. The court granted the hospital’s request for a “summary judgment,” meaning that it dismissed the former chaplain’s lawsuit without allowing it to go to trial. In reaching its decision, the court relied on a 1979 ruling of the United States Supreme Court. In 1979, the Supreme Court ruled that in deciding whether of not a federal law applies to religious organizations, a civil court first must ask if applying the law to religious organizations “would give rise to serious constitutional questions.” If it would, then the law cannot be applied without an “affirmative expression of congressional intent” to apply the law to such organizations. The court concluded that application of both the federal Civil Rights Act of 1964 and the Age Discrimination in Employment Act to the relationship between a chaplain and a church-affiliated hospital would create “serious constitutional questions.” Accordingly, neither Act could be applied to the hospital without an “affirmative expression of congressional intent” to apply the law to such a relationship. The court found no congressional intent to apply the age discrimination law to the chaplain-hospital relationship, and so it concluded that the former chaplain’s claim of age discrimination had to be dismissed. But, the court did find an “affirmative expression of congressional intent” to apply the Civil Rights Act to the chaplain-hospital relationship. However, it concluded that the constitutional guaranty of religious freedom prohibited the Act from being applied in this context, and dismissed this claim as well. In reaching its decisions, the court emphasized that the hospital was “a church-affiliated institution with substantial religious character,” and that the former chaplain’s position was “inherently religious.” The court observed that the former chaplain had acted as a minister “by visiting hospital patients, reading the Bible to them, praying with them, performing baptisms, presiding at funerals, administering communion, performing chapel services, etc.” These activities, concluded the court, “are inherently religious and so confer on [the] chaplain position its inherently religious nature.” The court also rejected the former chaplain’s claim that since her lawsuit alleged only age and sex discrimination, any consideration of the ecclesiastical nature of her duties was inappropriate. It noted that the hospital had asserted that the dismissal was based in part on the former chaplain’s failure to follow “liturgical requirements,” and accordingly any review of her dismissal would inevitably involve the court in ecclesiastical considerations. The court quoted with approval from a 1928 decision of the Supreme Court: “Because the appointment is a canonical act, it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them. In the absence of fraud [or collusion] the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive.” Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, 736 F. Supp. 1018 (E.D. Mo. 1990).

Legal Developments

Marriage and Divorce

The Nebraska Supreme Court ruled that a court order prohibiting a noncustodial parent from indoctrinating

Richard R. Hammar, Attorney, CPA

Bio

State: Nebraska
Categories: Freedom of Religion, Marriage

The Nebraska Supreme Court ruled that a court order prohibiting a noncustodial parent from indoctrinating his child in the Jehovah's Witness religion did not violate his constitutional rights.

A married couple obtained a divorce shortly after the husband converted from Catholicism to the Jehovah's Witness religion. Prior to the divorce, the husband's conversion had led to bizarre and violent behavior in the home.

The court granted custody of the couple's 6-year-old son to the mother, and prohibited the father from involving the boy in any of his Jehovah's Witness beliefs or practices. This ruling was based on the testimony of a psychologist that the boy was afraid of his father and his religious beliefs and did not want to be with him. The father claimed that his constitutional right to freely exercise his religion was violated by the court's order barring him from exposing his son to Jehovah's Witness beliefs and practices.

He acknowledged that he wanted to take his son with him on his door-to-door evangelistic missions. The state supreme court concluded that the trial court's order was proper, since it in the best interests of the child. It noted that "courts have a duty to consider whether religious beliefs threaten the health and well-being of a child." If they do, as they did in this case, then a civil court is free to protect a child against such influences. LeDoux v. LeDoux, 452 N.W.2d 1 (1990).

Legal Developments

Freedom of Religion

Church Law and Tax 1990-09-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Alabama
Categories: Freedom of Religion, Schools

Church Law and Tax 1990-09-01 Recent Developments

Freedom of Religion

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

• To what extent can a university professor share his religious beliefs during class? That was the issue before a federal district court in Alabama. A state university professor occasionally referred to his religious beliefs during class lectures, and organized voluntary, after-class meetings to discuss the religious implications of the course material. When a few students complained of the classroom comments and after-class meetings, the university investigated the matter and issued a memorandum prohibiting the professor from injecting his religious beliefs and preferences during instructional time, and banning his after-class meetings. When the professor’s attempts to have the university rescind the memorandum proved unsuccessful, he filed a lawsuit in federal court alleging that the school was interfering with his constitutional right to freely exercise his religion. The court agreed with the professor. The court began its opinion by emphasizing that “university professors are entitled to freedom of speech in their jobs,” and that the “classroom is peculiarly the marketplace of ideas.” It observed that the university did not prohibit faculty members from engaging in non-religious classroom speech involving personal views, and did not prohibit faculty members from organizing after-class meetings for discussing ideas from a non-religious perspective. Accordingly, the university has “created a forum for students and their professors to engage in a free interchange of ideas” and “it may not exclude unfavored religious speech unless the exclusion is necessary to further a compelling governmental interest ….” The university countered that its policy was necessary in order to avoid “establishing a religion.” The court summarily rejected this defense, concluding that “the university has no interest sufficient to justify restricting a professor’s freedom to make occasional classroom comments about personal religious beliefs or to restrict him from holding after-class meetings with students on state university property to discuss a Christian perspective on academic topics.” Bishop v. Aronov, 732 F. Supp. 1562 (N.D. Ala. 1990).

© Copyright 1990, 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 c0690

Legal Developments

Schools – Part 2

Church Law and Tax 1990-05-01 Recent Developments Schools Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Michigan
Categories: Freedom of Religion, Schools

Church Law and Tax 1990-05-01 Recent Developments

Schools

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

• A Michigan state appeals court ruled that the state could require parents wanting to “homeschool” their children to use state-certified teachers. A couple who homeschooled their children for two years was convicted for violating the state compulsory attendance law requiring parents to send their children to public schools or state-approved private schools. In order to be state-certified, a private “homeschool” must use a state certified teacher and teach prescribed courses. The parents admitted that they were not certified teachers, but they argued that the teacher certification requirement was unconstitutional since it infringed on their right to freely exercise their religion. The court acknowledged that the parents’ religious beliefs were affected by the state law, but it concluded that the impact on their religious beliefs was minimal and was clearly outweighed by the state’s “compelling interest” in quality education. The court noted that “religious school teachers may have to receive more training in order to become certified, but the regulations do not require anyone to attend courses taught from a perspective contrary to their beliefs. The teachers can fulfill all the state certification requirements while attending either a religious or a nonreligious institution. For these reasons, we find the infringement on free exercise rights is minimal and is outweighed by the state’s interest.” The court admitted that “state licensure does not guarantee quality teachers. But one cannot ignore the high likelihood that a person who meets the qualifications for certification has absorbed the knowledge a competent teacher should have.” The court also rejected the parents’ claim that the teacher certification requirement violated “the fundamental right of parents to direct the education of their children.” People v. De Jonge, 449 N.W.2d 899 (Mich. App. 1989).

Legal Developments

Freedom of Religion – Part 2

Church Law and Tax 1990-05-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Colorado
Categories: Freedom of Religion, Schools

Church Law and Tax 1990-05-01 Recent Developments

Freedom of Religion

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

• A federal court in Colorado ruled that a public school policy prohibiting the distribution of “material that proselytizes a particular religious or political belief” was unconstitutional. The court observed: “The mission of public education is preparation for citizenship. High school students … must develop the ability to understand and comment on the society in which they live and to develop their own sets of values and beliefs. A school policy completely preventing students from engaging other students in open discourse on issues they deem important cripples them as contributing citizens. Such restrictions do not advance any legitimate governmental interest.” The court rejected the school’s claim that the policy was required in order to avoid violating the first amendment’s nonestablishment of religion clause. It noted that a policy “permitting students to speak to the full extent of their consitutional rights” would have a secular purpose, and would not advance religion. Rivera v. East Otero School District, 721 F. Supp. 1189 (D. Colo. 1989).

Legal Developments

Freedom of Religion – Part 1

Church Law and Tax 1990-05-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Arkansas
Categories: Freedom of Religion, Schools

Church Law and Tax 1990-05-01 Recent Developments

Freedom of Religion

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

• A federal court in Arkansas outlawed Bible classes that had been taught in a city’s public schools for 51 years. The schools gave elementary grade children the opportunity to learn about the Bible. Bible classes were taught during regular school hours in the school building, by volunteers not acting on behalf of any church. No course credit was given for the classes, and attendance was voluntary. Nearly 96% of all students attended the Bible classes. The parents of one child filed a lawsuit in federal court, alleging that the program violated the first amendment’s “nonestablishment of religion” clause. The court began its opinion by observing that, according to Supreme Court pronouncements, “any government involvement with religion, to be constitutional, must have a secular purpose, its principal or primary effect must be one that neither advances nor inhibits religion, and it must not foster an excessive governmental entanglement with religion.” A state practice that violates any of these requirements is invalid. The court concluded that the Bible study program violated all three requirements. It referred to lessons and songs that endorsed Christian dogma, and quoted one of the Bible teachers who stated in class that “Jesus is our gateway to Heaven. He laid down his life for us so that we could go to Heaven. He is our shepherd and he wants us all to be one big flock of sheep.” Such evidence, the court concluded, clearly demonstrated that the program had a religious purpose, and that it advanced religion. The court acknowledged that purely “secular” Bible study programs in public schools have been upheld as lawful by other federal courts, and it indicated a willingness to review a modified Bible study program in this case. It noted that the United States Supreme Court has ruled that “Bible study, when presented objectively as part of a secular program of education, may … be effected consistently with the first amendment.” Doe v. Human, 725 F. Supp. 1503 (W.D. Ark. 1989).

Legal Developments

Freedom of Religion

Church Law and Tax 1990-03-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Freedom of Religion, Schools

Church Law and Tax 1990-03-01 Recent Developments

Freedom of Religion

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

• Does a state law requiring all primary and secondary school students to receive instruction regarding “AIDS” and drug abuse violate the constitutional rights of parents who are opposed to such instruction on the basis of their religious belief? No, concluded a New York state appeals court. The parents who challenged the law were members of the Plymouth Brethren, a devoutly religious group dedicated to strict adherence to Biblical teachings and separation from evil influences. Recognizing the sensitive nature of the curriculum, the law permits parents to exempt their children from in-class AIDS instruction by applying for an exemption and agreeing to provide suitable home instruction. Further, the law allows a child to be excused generally from the study of health and hygiene upon a verified petition by an authorized religious representative asserting that such study conflicts with the religion of the pupil’s parents. The parents found these protections inadequate and demanded a total and unconditional exemption. In rejecting the parents’ claim, the court observed that the constitutional right to freely exercise one’s religion may be restricted if the government “is advancing a compelling interest which is essential to the accomplishment of an overriding governmental purpose.” The court concluded that “there can be little doubt that education regarding the dangers of drug and alcohol abuse constitutes a compelling state interest, and the prevention of AIDS transmission has itself been defined as a substantial and compelling state interest.” Accordingly, the state can require AIDS and drug abuse instruction in the public schools even though such instruction may impinge upon the religious rights and sensibilities of some students. The court rejected the parents’ claim that their pious religious existence will better protect their children from the plagues of AIDS and drug abuse. It noted that “the Brethren is not an isolated community … immune from the known hazards of AIDS.” On the contrary, some of its members stray from its rigorous precepts, and such persons are then integrated into society at large ignorant of AIDS and its methods of transmission and prevention. Such persons, the court concluded, “will surely be at risk and will, undeniably, if infected, constitute a potentially grave risk to all with whom they come into intimate contact.” Ware v. Valley Stream High School District, 545 N.Y.S.2d 316 (1989).

Legal Developments

Freedom of Religion – Part 1

Church Law and Tax 1990-01-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1990-01-01 Recent Developments

Freedom of Religion

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

• The United States Supreme Court ruled that an individual whose personal religious convictions prevented him from working on Sundays was eligible for unemployment benefits even though he refused a retail job that would have required him to work on Sundays. A state unemployment agency rejected the individual’s claim for benefits, citing a state law denying benefits to any individual who fails to “accept work when offered him.” The individual sued, arguing that as a Christian he could not work on “the Lord’s day,” and that the agency’s denial of unemployment benefits violated the constitutional guaranty of religious freedom. A state appeals court rejected these claims, concluding that the individual’s refusal to work was based on personal religious convictions rather than upon “a tenet or dogma of an established religious sect.” The case was appealed directly to the United States Supreme Court, which ruled that the state agency had acted improperly in denying the individual’s request for benefits. The Court acknowledged that it previously had recognized that the constitutional guaranty of religious freedom prevented unemployment benefits from being denied to persons whose refusal to work on Sundays (or the Sabbath) was based on the tenets or dogma of an established religious sect. However, it emphasized that religious convictions of a personal nature are just as entitled to constitutional protection as religious convictions based on recognized creed or dogma, and accordingly that a state cannot deny unemployment benefits to a person whose refusal to accept a job requiring Sunday work is based on personal religious convictions. The Court warned that only sincerely held religious beliefs are entitled to protection under the constitution, and that a court was not required to accept at face value the sincerity of a professed religious belief. It further observed: “Undoubtedly, membership in an organized religious denomination, especially one with a specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that to claim the protection of the free exercise [of religion] clause one must be responding to the commands of a particular religious organization. Here, [the individual’s] refusal was based on a sincerely held religious belief. Under our cases, he was entitled to [constitutional] protection.” The Court further observed that constitutional rights, including the free exercise of one’s religion, are not absolute. They can be abridged by state action so long as a “compelling state interest” exists. But no such interest was articulated in this case, the Court concluded. Frazee v. Illinois Department of Employment Security, 109 S. Ct. 1514 (1989).

Legal Developments

Freedom of Relgion – Part 2

Church Law and Tax 1990-01-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Florida
Categories: Freedom of Religion

Church Law and Tax 1990-01-01 Recent Developments

Freedom of Religion

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

• Can a civil court force a woman to receive a life-saving blood transfusion against her will and contrary to her religious beliefs? Yes, concluded the Florida Supreme Court. The woman entered a public hospital suffering from “dysfunctional uterine bleeding”, and was informed by doctors that she would die if she did not receive a blood transfusion. The woman, a practicing Jehovah’s Witness and mother of two minor children, refused the transfusion on the ground that it would violate her religious beliefs (she was competent at the time of her decision). The hospital asked a civil court to force the woman to undergo a blood transfusion. The court granted the hospital’s request and ordered the woman to undergo a transfusion (she was by then unconscious), on the ground that “minor children have a right to be reared by two loving parents, a right which overrides the mother’s right of free exercise [of religion] and privacy.” Upon regaining consciousness, the woman appealed the court’s order to a state appeals court, which ruled in favor of the woman. The hospital appealed the case to the state supreme court, which also ruled in favor of the woman. The court cited four factors to consider in deciding whether or not a patient’s constitutional right to religious freedom outweighs the state’s interest in requiring potentially life-saving medical treatment: “(1) preservation of life, (2) protection of innocent third parties, (3) prevention of suicide, and (4) maintenance of the ethical integrity of the medical profession.” The court disagreed with the hospital’s claim that the state’s interest in maintaining a home with two parents for minor children outweighed any constitutional right of the mother to terminate her life by refusing medical treatment. The court quoted with approval from the state appeals court ruling: “[This case involves] a delicate balancing analysis in which the courts weigh, on the one hand, the patient’s constitutional right of privacy and right to practice one’s religion, as against certain basic societal interests. Obviously, there are no preordained answers to such problematic questions and the results reached in these cases are highly debatable. Running through all of these decisions, however, is the courts’ deeply imbedded belief, rooted in our constitutional traditions, that an individual has a fundamental right to be left alone so that he is free to lead his private life according to his own beliefs free from unreasonable governmental interference. Surely nothing, in the last analysis, is more private or more sacred than one’s religion or view of life, and here the courts, quite properly, have given great deference to the individual’s right to make decisions vitally affecting his private life according to his own conscience. It is difficult to overstate this right because it is, without exaggeration, the very bedrock on which this country was founded.” Public Health Trust v. Wons, 541 So.2d 96 (Fla. 1989).

Legal Developments

Child Can Choose Own Religious Training

An Illinois appeals court ruled that a minor who had been placed in a foster

Richard R. Hammar, Attorney, CPA

Bio

State: Illinois
Categories: Child Abuse, Freedom of Religion

An Illinois appeals court ruled that a minor who had been placed in a foster home could choose her own religious training even though it was against the wishes of her natural parents.

The minor had been raised according to strict religious tenets, and had experienced excessive beatings, severe restrictions, and sexual abuse. She was declared an abused child by the state and was placed in a foster home. After her placement in the foster home, the minor immediately rebelled against the religious teachings of her natural parents, and severed all ties with her parents and their church.

The natural parents were upset that their daughter was not attending a church of their choosing, and they insisted that they had a constitutional right to determine the religious training of their child. The appeals court conceded that "freedom of religion and the right of parents to [determine] the care and training of their children are to be accorded the highest possible respect." However, neither right is beyond limitation. The court concluded that allowing the minor to choose the church she would attend was appropriate because of the "exceptional circumstances" of this case. In the Interest of C.L.T., 540 N.E.2d 1043 (Ill. App. 4th Dist. 1989).

Legal Developments

Freedom of Religion – Part 2

Church Law and Tax 1989-11-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Freedom of Religion

Church Law and Tax 1989-11-01 Recent Developments

Freedom of Religion

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

• Can the IRS assess a “frivolous” tax return penalty against a married couple who reduced their federal income tax liability by 36% in order to avoid paying for “war preparation” contrary to their religious beliefs? Yes, concluded a federal district court in Maryland. The couple had attached a letter to the tax return in question, noting their objection to the government’s use of federal tax money for military preparedness and stating that use of their tax payments for military activities conflicted with their religious convictions. The IRS asserted negligence penalties and a $500 “frivolous return penalty” against the couple. The court, in upholding the frivolous return penalty, observed: “[D]eductions and credits are matters of legislative grace. If Congress has not specifically legislated them, they do not exist. There is no provision in the Internal Revenue Code authorizing the deductions taken by [the couple]. [The frivolous return penalty] was specifically enacted to deter non-payment of taxes based on a taxpayer’s disagreement with the uses to which tax payments will be put. The Court accordingly must find [the couple’s] deduction frivolous ….” Snyder v. United States, 714 F. Supp. 761 (D. Md. 1989).

© Copyright 1989, 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 c0689

Legal Developments

Immigration

Church Law and Tax 1989-11-01 Recent Developments Immigration Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Arizona
Categories: Freedom of Religion

Church Law and Tax 1989-11-01 Recent Developments

Immigration

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

• Can Immigration and Naturalization Service agents lawfully attend church services with hidden microphones for the sole purpose of tape recording the services in an attempt to determine whether or not the churches were violating immigration law? That was the issue before a federal appeals court in a recent case. In early 1984, the Immigration and Naturalization Service (INS) initiated an undercover investigation of the “sanctuary movement” (an effort by a loosely knit group of clergy and lay people to aid refugees from El Salvador and Guatemala). Several INS agents wearing “body bugs” (hidden microphones) infiltrated four Arizona churches (three Presbyterian and one Lutheran) without search warrants or even probable cause to believe that the surveillance of the churches would uncover evidence of criminal activity. The agents attended and secretly tape recorded several services and Sunday School classes. When this covert surveillance was later disclosed, the four churches sued the INS and the United States government, claiming that the government’s actions violated the church’s constitutional rights to freely exercise their religion and to be free from unreasonable searches and seizures. A trial court dismissed the lawsuit, and the churches appealed. The federal appeals court ruled that the churches could sue the government for violating their constitutional right to freely exercise their religion. The court noted that the churches had in fact suffered actual injury—”for example, they allege that as a result of the surveillance of worship services, members have withdrawn from active participation in the churches, a Bible study group has been canceled for lack of participation, clergy time has been diverted from regular pastoral duties, support for the churches has declined, and congregants have become reluctant to seek pastoral counseling and are less open in prayers and confession.” If the churches could prove these allegations, the court concluded, “they would have established that the surveillance of religious activity has directly interfered with the churches’ ability to carry out their religious mission.” The court rejected the government’s claim that its “sovereign immunity” prevented it from being sued. However, the court also rejected the churches’ claim that their constitutional right to be free from “unreasonable searches and seizures” had been violated by the INS agents’ conduct. The court acknowledged that the right to be free from unreasonable searches and seizures “protects reasonable expectations of privacy” but this principle does not apply to “church worship services open to the public.” The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989).

Legal Developments

Freedom of Religion – Part 1

Church Law and Tax 1989-11-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1989-11-01 Recent Developments

Freedom of Religion

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

• Can nativity scenes be displayed on government property during the Christmas season? The United States Supreme Court attempted to clarify this issue in an important decision. For a number of years, a county government permitted a Roman Catholic group to display a nativity creche on the main staircase of the county courthouse during the Christmas season. The creche included figures of the infant Jesus, Mary, Joseph, farm animals, shepherds, wise men, and an angel bearing a banner proclaiming “Gloria in Excelsis Deo” (glory to God in the highest). The creche bore a plaque stating “this display donated by the Holy Name Society.” The creche was surrounded by poinsettia plants, but otherwise no other seasonal figures or ornaments were located nearby. A municipal building located a few blocks away presented an annual holiday display each December on a public sidewalk outside the main entrance to the building. The display included a large (45-foot) Christmas tree decorated with lights and ornaments, an 18-foot Chanukah menorah (a candleholder with eight branches) owned by a Jewish group, and a sign reading “during this holiday season the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and out legacy of freedom.” The American Civil Liberties Union (ACLU) filed a lawsuit claiming that these displays violated the constitutional ban on any “establishment of religion.” A trial court permitted the displays, but a federal appeals court prohibited them. The United States Supreme Court agreed to hear the case, and ruled that the nativity creche had to be removed but that the Chanukah menorah was permissible. The Court observed that among other things, the constitutional prohibition of any establishment of religion prevented any governmental “endorsement” of religion. The constitution, noted the Court, “precludes government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” Whether or not a particular display violates the constitution depends upon its context. The Court affirmed one of its earlier decisions upholding the validity of a Christmas creche that was part of a larger seasonal display that included a Santa Claus, reindeer, a talking wishing well, trees, and lights. Here, however, “the creche stands alone—it is the single element of the display.” This, combined with the fact that the creche was located inside the main entrance of the “seat of county government,” sent an “unmistakable message that [the county] supports and promotes the Christian praise to God that is the creche’s religious message.” The Court concluded: “The government may acknowledge Christmas as a cultural phenomenon, but under the first amendment it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus …. [G]overnment may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine.” On the other hand, the Court upheld the validity of the Chanukah menorah, since (1) the menorah, being a mere candleholder, was not an “exclusively religious” symbol but rather “has both religious and secular dimensions”; and (2) the menorah stood next to a Christmas tree and a sign saluting liberty and accordingly was part of a “larger display” that detracted from the menorah’s religious message. Justice Kennedy, in dissent, criticized the Court’s majority for harboring a “latent hostility” and “callous indifference” toward religion. The Court’s majority found such a view “as offensive as it is absurd,” adding that “there may be some would-be theocrats who wish that their religion were an established creed … but this claim gets no relief, for it contradicts the fundamental premise of the establishment clause itself.” County of Allegheny v. American Civil Liberties Union, 109 S. Ct. 3086 (1989).

Legal Developments

Freedom of Religion – Part 3

Church Law and Tax 1989-09-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Illinois
Categories: Freedom of Religion, Schools

Church Law and Tax 1989-09-01 Recent Developments

Freedom of Religion

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

• Can Gideon Bibles be handed out to students on a sidewalk in front of a public high school? Yes, concluded a federal district court in Illinois. Several adults who handed out Gideon Bibles on the sidewalk were informed by school officials that their conduct “would not be permitted.” A lawsuit was filed to determine whether the school could stop the Bibles from being distributed. The court ruled that a sidewalk in front of a public school is a “public forum,” and as such it can be used for distributing literature unless the school can demonstrate that such an activity materially interferes with public safety or order. The court concluded that it would be “nonsense” to say that a sidewalk in front of a public high school is not a public forum. If further ruled that the school had failed to demonstrate that the practice of distributing Bibles would in any way interfere with public safety or order. Finally, the court rejected as “patently absurd” the school’s claim that permitting the distribution of Bibles on the sidewalk would violate the first amendment’s nonestablishment of religion clause. Bacon v. Bradley-Bourbonnais High School, 707 F. Supp. 1005 (C.D. Ill. 1989).