Nebraska Case Underscores Importance of Knowing and Understanding State Marriage Laws

Ministers who ordain a marriage that results in a bigamous relationship can face criminal sanctions.

Bio

State: Nebraska
Categories: Marriage

Key point 3-04 . All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

The Nebraska Supreme Court ruled that where a Nebraska marriage license was obtained, but one of the participants was already legally married to someone else, a bigamy prosecution was still proper.

Background

On June 29, 2015, a man (the “defendant”) completed a marriage worksheet at a local county clerk’s office in Nebraska and paid the requisite fee. A clerk watched the defendant and “Wife 1” sign a Nebraska marriage license and notarized their signatures. On July 4, 2015, the defendant’s sister, an ordained minister, performed a wedding ceremony for the couple in Texas.

The defendant’s sister signed a “marriage certificate,” but she did not sign or return the Nebraska marriage license. The defendant’s sister claimed that she later threw away the marriage license at the defendant’s request. The couple returned to Nebraska and resided together. Over the next few weeks, Wife 1 contacted the clerk on several occasions to inquire whether the marriage license had been returned.

Wife 1 informed the clerk that, although she was able to change her surname with the Social Security Administration using the marriage certificate, she wanted a certified copy of the marriage license in order to change her information with the Nebraska Department of Motor Vehicles.

During this timeframe, the couple had an “on again–off again relationship.” At one point, the defendant told the clerk that he did not want to be married and inquired how to “prevent the marriage from going through.” The clerk responded that “if they had already filled out the documentation and had the ceremony, they were married.”

In late 2016 or early 2017, the clerk notified the records administrator of the county clerk’s office that the marriage license between the defendant and Wife 1 had not been filed.

When the records administrator determined that no marriage license was filed for the 2015 marriage, she called the defendant’s sister and informed her that a replacement marriage license would be sent, which needed to be signed and returned. The defendant and Wife 1 returned to the county clerk’s office, signed a copy of the replacement marriage license, and had the clerk notarize their signatures.

Subsequently, the marriage license was returned and filed with the county clerk’s office in January 2017. The license contained signatures of the defendant’s sister and two witnesses. It stated that the defendant and Wife 1 were married on July 4, 2015, in Nebraska.

In May 2018, the defendant moved out of the residence he shared with Wife 1. Screenshots of text messages between them, some of which were sent around this time, showed that the defendant referred to himself as Wife 1’s husband and to her as his wife.

On November 5, 2018, the clerk received a marriage worksheet for the defendant and another woman (“Wife 2”). On November 16, 2018, a signed marriage license was filed with the county clerk’s office showing that the defendant married Wife 2 on November 15, 2018.

In 2019, Wife 1 attempted to file her income taxes as married filing jointly with the defendant.

The Internal Revenue Service notified her that she could not do so because the defendant had filed income taxes as married filing jointly with Wife 2. Wife 1 notified the police department, and an investigation uncovered two marriage certificates on file at the county clerk’s office but no intervening divorce.

When a police officer spoke with the defendant, he said that he and Wife 1 were going to get married but never did.

The defendant was convicted of bigamy

The state charged the defendant with bigamy, contending that when he married Wife 2 he was already married to Wife 1. Defense counsel argued that the defendant’s marriage to Wife 1 was not a valid marriage because it did not comply with statutes in Nebraska or Texas.

The trial court noted that there were only two requirements for a valid marriage under Nebraska law: a marriage license and solemnization of the marriage by a person authorized by law to solemnize marriages.

The court concluded that “the evidence unequivocally validated” the defendant’s marriage to Wife 1, making him guilty of bigamy. He was sentenced to 30 days in jail. He appealed his conviction directly to the Nebraska Supreme Court.

Court: Marriage records support bigamy charge

The supreme court began its opinion by quoting the following definition of bigamy under Nebraska law:

If any married person, having a husband or wife living, shall marry any other person, he shall be deemed guilty of bigamy, unless … it appears that at the time of the subsequent marriage:

(a) The accused reasonably believes that the prior spouse is dead; or

(b) The prior spouse had been continually absent for a period of five years during which the accused did not know the prior spouse to be alive; or

(c) The accused reasonably believed that he was legally eligible to remarry.

The court explained the importance of banning bigamy:

“Bigamy ‘destroys the happiness of families and social order; it places the stigma of illegitimacy upon innocent children; it complicates and prevents the regular descent of property, and deprives the unoffending of their rightful inheritance.’”

The defendant argued before the supreme court that his first marriage was invalid since its solemnization occurred in Texas rather than Nebraska. His argument primarily rested upon a Nebraska statute that states, “Prior to the solemnization of any marriage in this state, a license for that purpose shall be obtained from a county clerk in the State of Nebraska.” Reading this language together, he claimed “that for a marriage based upon a Nebraska license to be valid, it must be solemnized in Nebraska—in other words, the solemnization in Texas rendered his marriage invalid in Nebraska.” In rejecting this argument, the court observed:

Marriage as a social institution is favored by public policy, and the law raises a strong presumption in favor of its legality. …

Here, the marriage ceremony occurred in Texas. Although one Texas statute requires a Texas marriage license, another provides that the validity of a marriage is generally not affected by any fraud, mistake, or illegality that occurred in obtaining the marriage license. And Texas has declared that its policy is “to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable.”

The court concluded:

[T]here are two essential elements of bigamy. Under the circumstances here, the State had to prove beyond a reasonable doubt (1) that the defendant was a “married person” with a wife living and (2) that he married another person.

The State proved the essential elements of bigamy. It adduced two documents titled “License and Certificate of Marriage” from the Nebraska Department of Health and Human Services’ vital records office, each showing that the ceremony occurred in [Nebraska]. One was filed in January 2017 in the names of [the defendant and Wife 1] and showed a July 2015 ceremony date and the other was filed in November 2018 in the names of [the defendant and Wife 2]. These records are presumptive evidence of the fact of such marriages. The State produced evidence that there was no record the defendant divorced [Wife 1] prior to his marriage to [Wife 2]. …

[The defendant and Wife 1] acquired a marriage license and participated in a wedding ceremony performed by [the defendant’s] sister, an ordained minister. After those events, when the defendant inquired as to how to “prevent the marriage from going through,” he was told by an employee at the [county] clerk’s office that he was married if he already filled out the marriage license and had the ceremony. The evidence showed that after having been informed of the effect of obtaining a license and participating in a marriage ceremony, [the defendant] referred to [Wife 1] as his wife. When, over [one] year after the ceremony, it was discovered that the marriage license had not been filed, the defendant returned to the [county] clerk’s office and signed a replacement license, which was also signed by [his] sister and two witnesses. The evidence supports [the defendant’s] conviction for bigamy.

What this means for churches

This case illustrates two important points.

First, bigamy prosecutions are not a thing of the past. They are a very real threat that can result in incarceration. Ministers can play an invaluable role in minimizing this risk by requiring engaged couples to present a valid and unexpired marriage license before the date of a wedding.

Second, under the laws of most states, procedural defects associated with a marriage ceremony do not invalidate the legal validity of the marriage. Rather, the consequence for such defects is criminal sanctions on the officiating minister. As a result, it is imperative for ministers to be familiar with the legal requirements that pertain to marriages in their state. This is especially true for new ministers, and for ministers who have recently moved to another state.

State v. Johnson, 967 N.W.2d 242 (Neb. 2021)

Legal Developments

Childcare Centers Did Not Owe a Duty of Care to the Victim

Court ruled that two childcare centers were not responsible for the death of an infant in another facility on the ground that they failed to report the worker’s prior acts of child abuse to civil authorities.

Richard R. Hammar, Attorney, CPA

Bio

State: Nebraska
Categories: Child Abuse Reporting

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

Key point 8-24. A reference letter is a letter that evaluates the qualifications and suitability of a person for a particular position. Churches, like other employers, often use reference letters to screen new employees and volunteers. Churches often are asked to provide reference letters on current or former workers. The law generally provides employers with important protections when responding to a reference letter request. However, liability may still arise in some cases, such as if the employer acts with malice in drafting a reference letter.

The Nebraska Supreme Court ruled that two childcare centers were not responsible for the death of an infant in another facility on the ground that they failed to report the worker’s prior acts of child abuse to civil authorities.

A married couple used an online service to find a nanny to provide in-home care for their infant daughter (the “victim”). The parents hired a young woman (the “defendant”) over approximately 30 other matches proposed by the online service, in part because the defendant had more experience working in childcare centers. Before selecting the defendant, the parents conducted a standard background check that revealed no concerns.

The defendant began working for the couple in January 2013. A month later, the defendant inflicted injuries on the infant. The victim died from his injuries several days later. The defendant was found guilty of intentional child abuse resulting in death and was sentenced to imprisonment for a term of 70 years to life.

In 2014, the couple sued the defendant for battery resulting in death. The trial court found her liable and assessed $5.2 million in compensatory damages. The parents also sued two childcare centers where the defendant previously worked claiming they were liable on the basis of negligence for the victim’s death because they knew or should have known that she was abusing children while in their employ and failed to report that abuse to authorities. The parents claimed that the childcare centers had a duty of reasonable care and breached that duty by failing to report the defendant’s abusive behavior. Such a duty, they argued, was based on the state child abuse reporting law that imposes a duty on “any person” having “reasonable cause to believe that a child has been subjected to child abuse or neglect” to “report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the Department of Health and Human Services.”

Like most states, Nebraska maintains a central registry of child protection cases containing records of all reports of child abuse or neglect opened for investigation. Any person listed as a perpetrator on the registry may not be on the premises of a childcare center during the hours of operation.

The two childcare centers where the defendant had previously worked were aware of incidents of child abuse involving the defendant, including the following:

A coworker saw the defendant yell at, shove, and drop toddlers in her care. The defendant also was seen forcefully pulling a child down a playground slide, causing the child’s head to hit the ground. A coworker reported these events to the center’s director, who investigated and concluded they did not amount to reportable child abuse. Neither the director, the coworker, nor anyone else reported the defendant’s behavior to the authorities. The defendant was dismissed as an employee of the center.

At the second center an employee observed the defendant verbally and physically abuse children. She was seen dragging children, yelling at children, and dropping children. On one occasion, a coworker saw her “shove” shoes and pants into a child’s mouth during a diaper change. On another occasion, a coworker saw her “fling” a child across the room, causing the child to hit her head on a table. These events were reported to the center’s director, who investigated and concluded they did not amount to reportable child abuse. Neither the director, coworkers, nor anyone else at the center reported the defendant to the authorities. The defendant was dismissed as an employee of the center.

The parents argued that if the defendant’s abusive behavior had been timely reported by the childcare centers, then authorities would have investigated the reports sooner, and the defendant’s name would have been placed on the central registry and been detected during the parent’s background check. The trial court agreed with the parents, and the childcare centers appealed.

The state supreme court began its opinion by observing: “When confronted with an unimaginable loss like the one experienced by the parents, it is natural to ask, What more could have been done? But tort law requires that a different question be answered first, Was there a legal duty to do something more?” The court noted that “in order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect the plaintiff from injury, a failure to discharge that duty, and damages caused by the failure to discharge that duty. The threshold issue in any negligence action is whether the defendant owes a legal duty to the plaintiff.” The court concluded that the childcare centers did not owe a duty of care to the victim:

The failure to rescue or protect another from harm is not conduct creating a risk of harm and does not give rise to a duty of care. . . . When the only role of the actor is failing to intervene to protect others from risks created by third persons, the actor’s nonfeasance cannot be said to have created the risk. Generally speaking, the law does not recognize a duty of care when others are at risk of physical harm for reasons other than the conduct of the actor, even if the actor may be in a position to help. Ordinarily, the failure to act will not be the sort of affirmative conduct that gives rise to a duty. . . .

We cannot find that [the law] supports the existence of a legal duty owed by the childcare centers to the victim or his parents. Indeed, if we were to recognize a legal duty to protect others from harm based exclusively on the failure to report suspected abuse, such a duty could expose every citizen in Nebraska who witnesses possible abuse or neglect and fails to report it, to potentially limitless civil tort liability for the future criminal acts of abusers over whom they have no control, and with whom they have no special relationship.

What this means for churches

It is a fundamental principle of law that there can be no liability for a failure to protect another from harm or peril. As one court observed: “One human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other fellow drown.” Evans v. Ohio State University, 680 N.E.2d 161 (Ohio App. 1996). The Nebraska Supreme Court recognized this principle when it observed that the two childcare centers where the defendant had been employed were under no legal duty to report incidents of child abuse to the state and therefore were not liable for failure to do so. This principle means that in any state that recognizes the general rule of non-liability for failure to warn a church cannot be liable for failing to warn another church of the dangerous propensities of a former employee or volunteer.

But note that some courts have recognized exceptions to the general rule in the case of an organization’s own employees, or if a “special relationship” exists between the former employer and the perpetrator.

In a leading case, the Wisconsin Supreme Court unanimously ruled that a church did not have an affirmative duty to warn future employers that one of its ministers had molested several boys. Hornback v. Archdiocese of Milwaukee, 752 N.W.2d 862 (Wis. 2008). The court concluded:

We decline to rule that under the general duty of ordinary care recognized in Wisconsin, an employer may be found negligent for failing to warn unforeseen third parties of a dangerous former employee. Such a ruling would extend an employer’s obligation to warn indefinitely into the future to a sweeping category of persons, thereby requiring employers to warn nearly all potential future employers or victims, as the plaintiffs in this case argue. . . . A decision to the contrary would create precedent suggesting that employers have an obligation to search out and disclose to all potential subsequent employers, which could include in an employment context every school in the country or beyond, all matters concerning an ex-employee’s history. . . . The primary public policy problem with recognizing the claim as presented by the plaintiffs is that there is no sensible stopping point to recognizing negligence claims for such an open-ended and ill-defined sweeping claim. Recognizing the plaintiffs’ claim against the Diocese in this case could result in requiring all employers to warn all unforeseen potential future employers of any number of problems related to any number of past employees. It could further result in all parents who become aware that their child was sexually abused then facing potential liability for not warning every other parent who might also have children at risk of being in contact with the perpetrator.

Bell v. Grow With Me Childcare & Preschool, 907 N.W.2d 705 (Neb. 2018).

Legal Developments

‘Ministerial Exception’ Bars Court from Resolving Youth Minister’s Sex Discrimination Claim

Church Law and Tax Report ‘Ministerial Exception’ Bars Court from Resolving Youth Minister’s Sex Discrimination

State: Nebraska
Categories: Employment Practices

Church Law and Tax Report

‘Ministerial Exception’ Bars Court from Resolving Youth Minister’s Sex Discrimination Claim

Key point 8-12.5. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if they have adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

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

Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

A federal district court in Nebraska ruled that it was barred by the “ministerial exception” from resolving a youth minister’s claim that his employing church committed unlawful sex discrimination and retaliation by dismissing him. A church’s youth minister (the “plaintiff”) claimed his employment was terminated due to his gender and marital status, and in retaliation for complaining about sexual harassment committed by a pastor who was the plaintiff’s direct supervisor. With regard to his marital status, the plaintiff alleged he filed for divorce during his employment and became the single parent of four children shortly before his termination. Prior to his divorce, the plaintiff alleged he was subjected to “episodes of uninvited touches, body hugs, back rubs and neck massages, private office visits, and unsolicited invitations for drinks, dinner and companionship,” on a daily basis. Based on these allegations, the plaintiff sued his former church asserting claims for gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964.

The church denied the plaintiff’s allegations, claiming that he resigned his employment for personal reasons. It also argued that the plaintiff’s lawsuit was barred by the “ministerial exception” which generally prevents the civil courts from resolving employment disputes between churches and ministers.

The court began its opinion by noting that “since the passage of Title VII … and other employment discrimination laws, the [federal courts] have uniformly recognized the existence of a ‘ministerial exception,’ grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.” In 2012, a unanimous Supreme Court observed:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694 (2012).

The Supreme Court reasoned that forcing retention of an unwanted minister “concerns government interference with an internal church decision that affects the faith and mission of the church itself.”

In order for the ministerial exception to apply, “the employer must be a religious institution and the employee must have been a ministerial employee.” Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 834 (6th Cir.2015). The plaintiff conceded that his former church was a religious institution, so the question was whether his employment was ministerial.

Was the plaintiff a “minister”?

In the Hosanna-Tabor case, the Supreme Court provided no “rigid formula for deciding when an employee qualifies as a minister,” but noted that the exception “is not limited to the head of a religious congregation.” It relied on facts such as whether (1) the church held the employee out distinct from other members, (2) the position held a title reflecting specialized training, (3) the employee held himself out as a minister according to the terms of the church, and (4) the job duties reflect a role in conveying the church’s message and carrying out its mission.

In concluding that the plaintiff was a “minister” for purposes of the ministerial exception, the court noted the following facts:

he was an ordained minister through a nondenominational agency;
he listed his occupation as a minister on his tax forms;
he received a bachelor’s degree in Bible and Theology from Moody Bible Institute and studied for a Master’s of Divinity prior to his employment with the defendant church in 2010;
he was the church’s “Director of Youth Ministry”;
A director in the church was treated differently than a “called” or ordained staff member in some regards.
The plaintiff had a role recognized by both himself and the church which was distinct from that of most of the church’s members.

The plaintiff insisted that he was merely a “secular” employee because he was neither ordained clergy in the church’s denomination nor was he engaged in primarily religious activities. He also pointed out that his actual work differed from the duties listed in his job description. For example, his job description stated the Director of Youth Ministry was “responsible for leading and delivering the Wednesday evening student worship service.” However the plaintiff testified, “[W]e never really had a worship service on Wednesday nights.” The plaintiff denied engaging in many of the tasks listed on the formal job description for the Director of Youth Ministry, stating his employment included many informal tasks.

On the other hand, the plaintiff admitted that his employment duties included chaperoning mission trips, teaching eighth grade confirmation class, and teaching Bible school classes. Additionally, he agreed that his actual duties included (a) daily interaction with the youth of the church; (b) ensuring the spiritual needs of the youth of the church were met in a professional and ethical manner; (c) planning, developing, and implementing programs to expand and improve the youth ministry; (d) performing ongoing evaluations of the existing youth program and making changes when necessary; (e) budgeting for the youth program; (f) teaching youth programs in the ways of the church; and (g) recruiting, training, and motivating volunteers from middle school and high school and providing ongoing support for team leaders for the church’s Wednesday evening youth program.

The church’s lead pastor described the plaintiff’s role as “imparting the church’s mission onto the youth by teaching the youth (children in grades 6-12) the Christian Reformed basic tenets of the church—worship, fellowship, discipleship, mission, and evangelism.” The lead pastor described the plaintiff’s job as teaching the Bible, discipleship, the church’s understanding of the Sacraments in the Reformed tradition, and the importance of Holy Scripture in the lives of the youth. Specifically, he described the mission of the church as to know Christ and to make him known, including the “basic instructional discipleship living, how to be a follower of Jesus Christ.” The plaintiff was the leader of the student confirmation process, including planning and leading the worship service culminating in the students’ commissioning into adult membership, and overseeing the development of the entire youth program, including teaching or training staff.

The court concluded that the plaintiff was a “minister” for purposes of the ministerial exception:

The plaintiff’s job duties reflected a role in him conveying the church’s message and carrying out its mission. The church trusted the plaintiff to lead the youth through the tenets of the religion with, at least, weekly confirmation and Bible school classes, with additional instruction in worship, discipleship, fellowship, mission work, and evangelism activities. While the plaintiff may have conducted secular duties, the precise division of secular and religious labor is immaterial particularly when the mission work led by the plaintiff incorporated and embodied the core teachings of the church.

What employment decisions are covered by the ministerial exception?

The court then addressed the question of whether the claims asserted by the plaintiff were covered by the ministerial exception. It concluded:

In this case, the church’s treatment of the plaintiff in relation to his sexual harassment allegation clearly implicates an internal church decision and management, rather than the outward physical acts of one pastor. Accordingly … this court finds the plaintiff’s sexual harassment claim is factually entwined and related to the plaintiff’s other claims, which the court may not review without excessive government entanglement with religion in violation of the First Amendment.

What This Means For Churches:

This case is instructive because of the court’s use of the four-factor analysis enunciated by the Supreme Court in determining if an employee is a “minister” for purposes of the ministerial exception. The court concluded that ordination is not a prerequisite to ministerial status. Rather, a finding of ministerial status involves an examination of the following factors: (1) Did the church hold the employee out distinct from other members? (2) Did the employee have a title reflecting specialized training? (3) Did the employee hold himself out as a minister? (4) Did the employee’s job duties reflect a role in conveying the church’s message and carrying out its mission? In evaluating these factors, the court relied in part on the plaintiff’s job description. The importance of a person’s job description cannot be overstated in evaluating his or her ministerial status, and for this reason it is imperative that job descriptions be carefully crafted. Many churches have employees whose ministerial status is ambiguous, and often this ambiguity can be reduced through careful drafting of a job description.

It is also noteworthy that the court applied the ministerial exception to the plaintiff’s sexual harassment claim because it was “entwined and related” to his claim of wrongful termination. Covenant Presbyterian Church, 2015 WL 1826231 (D. Neb. 2015).

Legal Developments

Marriage License Never Returned to County Clerk; Marriage Still Valid

Court ruled a 26-year-marriage valid because the existence of marriage was provable without official record.

Richard R. Hammar, Attorney, CPA

Bio

State: Nebraska
Categories: Marriage

Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only "ordained" or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

The Nebraska Supreme Court ruled that a marriage of 26 years was valid despite the fact that the judge who performed the marriage ceremony failed to return a certificate of marriage to the county clerk as required by law.

A couple was married by a judge at a county courthouse. Prior to their marriage the couple obtained a "License and Certificate of Marriage" form. This form contained a section to be completed by the person solemnizing the marriage certifying that he or she joined the parties in marriage in the presence of two witnesses. The form was then to be presented to the clerk of the county court for filing.

The husband later asked a local court to declare that "no marriage ever existed" because the return was not completed and filed. The wife claimed that the couple was married by the county judge in a ceremony attended by approximately 250 people. At the conclusion of the ceremony, the judge asked the witnesses to accompany him to a small table at the front of the room, where he asked the witnesses to sign the original marriage certificate. The wife's maid of honor confirmed the signing of the certificate at the table. The wife also asserted that when she and her husband returned from their honeymoon, she asked him what he had done with the original marriage certificate, and he replied that he had placed it in a safe in his office.

The husband claimed that he had no idea what happened to the marriage license after it was issued. He did not recall whether a marriage certificate was ever signed, and he did not recall ever seeing an original marriage certificate.

The trial court noted that the question before it was "whether a fully executed and duly filed return of a marriage license is a legal requirement for a valid marriage." The court concluded that the requirements for a valid legal marriage had been met. The court further determined that the state law relating to a return of a marriage certificate was "procedural" and "did not constitute substantive requirements for a valid legal marriage." The court also determined that "the evidence as presented is uncontroverted that the parties have held themselves out as husband and wife since the date of their marriage and have continued to do so for the past 26 years."

The state supreme court agreed that the marriage was legally valid. It acknowledged that state law stipulated that persons performing a marriage ceremony had to return a completed certificate of marriage to the county clerk within one month of the marriage. But it concluded: "We find no indication in the statutes that the legislature intended to penalize the parties to a duly licensed and solemnized marriage for an officiant's subsequent failure to complete and file the return. The purpose of the return is to provide an official record that the solemnization ceremony was performed … . In the absence of the certificate, parties would be required to prove the existence of the marriage by some other means, as they did in this case."

What This Means For Churches:

Most states require persons who solemnize a marriage, including ministers, to return a marriage certificate to a local official within a specified period of time. But, as this case illustrates, the failure to comply with this requirement will not necessarily affect the validity of the marriage. Vlach v. Vlach, 2013 WL 3113261 (Neb. 2013).

Legal Developments

Property Tax Exemption for Leased Facilities

Church property leased to another nonprofit organization may still be tax exempt.

Richard R. Hammar, Attorney, CPA

Bio

State: Nebraska
Categories: Taxation - Church Property

Church Law & Tax Report

Property Tax Exemption for Leased Facilities

Church property leased to another nonprofit organization may still be tax exempt.

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

Key point. The fact that church property is being used for another exempt purpose, such as education, does not necessarily prevent it from being exempt from property taxation.

The Nebraska Supreme Court ruled that a portion of a church’s property that it leased to a public school was entitled to exemption from property taxes. A public school began looking for a space to use for a new special education program. At that time, the school’s special education students were receiving services in another city and the school sought to provide these services locally. The school identified a local church as the optimal site for its special education program, and the parties entered into a facilities use agreement for $1,325 per month including utilities, for 10 months each year for the next two school years.

The church applied for a 100 percent tax exemption on its real property. The local tax assessor recommended an 80 percent exemption on the ground that the school would be using 20 percent of the church’s property and this was not an exempt use of the property. The church protested the valuation, but a state board of tax appeals affirmed the partial exemption, noting that the church had not leased the property to the school at a below-market rate, and the school used the church’s property for educational rather than religious purposes and therefore the church’s exemption from property taxes did not apply to the school’s use of its property. The church appealed to the state supreme court.

The court’s ruling

A Nebraska statute exempts the following properties from taxation:

Property owned by educational, religious, charitable, or cemetery organizations, or any organization for the exclusive benefit of any such educational, religious, charitable, or cemetery organization, and used exclusively for educational, religious, charitable, or cemetery purposes, when such property is not (i) owned or used for financial gain or profit to either the owner or user, (ii) used for the sale of alcoholic liquors for more than twenty hours per week, or (iii) owned or used by an organization which discriminates in membership or employment based on race, color, or national origin.

The court stressed that “although ownership and use of the property may be by different entities, exclusive use of the property for exempt purposes is required.” It continued:

It is the exclusive use of the property that determines the exempt status. The Constitution and the statutes do not require that the ownership and use must be by the same entity. Ownership and use may be by separate entities. For property to be exempt from taxation, a claimant must prove (1) that the subject property is owned by a charitable, educational, religious, or cemetery organization; (2) that the subject property is not being used for financial gain or profit to the owner or user; and (3) that the subject property is being used exclusively for charitable, educational, religious, or cemetery purposes …. Exemption is available only if property is used exclusively for religious, educational, charitable, or cemetery purposes. The property need not be used solely for one of the four categories of exempt use, but may be used for a combination of the exempt uses …. The use of the property establishes whether it is exempt.

The court concluded:

In this case, the property was being used exclusively for religious or educational purposes. We conclude that the property owned by the church was used exclusively for religious and educational purposes. The school used the fellowship hall, restrooms, and areas for ingress and egress Monday through Friday during school hours, unless the use would interfere with a wedding, funeral, or election. This use was educational and was an exempt use. The remainder of the time, the church used the property for religious purposes, which was also an exempt use.

The lease of the property by the church to the school did not create a taxable use. Both of the uses were exempt. The property was used for a combination of exempt uses …. The lease by the church to the school did not create a nonexempt use of the property. The property continued to be used exclusively for religious and educational purposes.

Application. Many churches allow their property to be used by other nonprofit organizations. In some cases a lease agreement is signed that calls for the payment of rent to the church. Few courts have addressed the impact of such lease arrangements on a church’s exemption from property taxation. The Nebraska Supreme Court’s decision suggests that church property that is used by a nonreligious charity may still be exempt from property taxation. There is no requirement that the property be used or operated by another religious charity. This case will be a useful, though not binding, precedent in other jurisdictions. Fort Calhoun Baptist Church v. Washington County Board of Equalization, 759 N.W.2d 475 (Neb. 2009).

This Recent Development first appeared in Church Law & Tax Report, November/December 2009.

Legal Developments

Pastor Sues Church for Discrimination and Defamation

Courts are prevented from applying employment laws to churches and ministers.

Richard R. Hammar, Attorney, CPA

Bio

State: Nebraska
Categories: Clergy - Discipline and Removal

Church Law & Tax Report

Pastor Sues Church for Discrimination and Defamation

Courts are prevented from applying employment laws to churches and ministers.

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

Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

A federal court in Nebraska ruled that it was barred by the First Amendment from resolving a minister’s discrimination and defamation claims against his church. A Catholic archdiocese assigned a priest (the “plaintiff”) to work as an assistant pastor at a church. Conflicts immediately arose between the plaintiff and the church’s senior pastor over several issues, including the manner in which the plaintiff performed religious liturgies, services, and teaching assignments; his availability for nightly parish activities, office hours, and other parishioner services; and his relationship with parish staff. The bishop ultimately transferred the plaintiff to another parish due to these continuing concerns. The plaintiff claimed that the senior pastor of the previous church had sexually harassed him, and, when he complained to his bishop about the behavior, the pastor retaliated against him by making false accusations and unfounded criticisms concerning his work performance. The bishop sent an email to members of the prior church stating that the plaintiff’s reassignment was due to “serious concerns.”

The plaintiff filed a complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”) against the archdiocese, bishop, and former church (the “defendants”) claiming that their actions amounted to unlawful sex discrimination and retaliation under Title VII of the federal Civil Rights Act of 1964, and that the bishop’s email was defamatory. The EEOC dismissed the plaintiff’s complaint, and the plaintiff took his case to federal court. The court, in dismissing the lawsuit, observed:

The evidence before the court … demonstrates that the archdiocese and [local parish] are religious institutions and [the plaintiff] was a clergyman assigned by the archdiocese to work at the parish, where his duties were of a religious and spiritual nature. Those facts are undisputed, and the court’s inquiry ends there. This court cannot review the archdiocese’s actions without giving rise to excessive government entanglement with religion in violation of the Establishment Clause of the First Amendment.

The court stressed that the plaintiff’s claims of sexual harassment, race and national origin discrimination, and retaliation, “are factually entwined and all relate to the adverse personnel actions which form the basis for his claims for damages and other relief.”

The court also rejected the plaintiff’s claim that the emails sent by the bishop to church members amounted to defamation. It noted that it had jurisdiction over this case because a federal statute (Title VII of the Civil Rights Act of 1964) was involved. However, the court had jurisdiction over the defamation claim only because it was included with claims made under a federal statute. When the Title VII claims were dismissed, the “supplemental” jurisdiction the court had over the defamation claim ceased to exist, and this claim had to be dismissed. It concluded: “This court need not address … the merits of the defamation claim, however, because that claim was brought pursuant to the court’s supplemental jurisdiction. Courts may decline to exercise supplemental jurisdiction over a claim [if] the court has dismissed all claims over which it has original jurisdiction.”

Application. This case is significant because it illustrates the limited jurisdiction that federal courts have over clergy discrimination claims. Often, such claims are made under Title VII, and several additional state law claims are included. However, federal courts limited by the Constitution to resolving cases involving a question under a federal law, or cases involving citizens from different states (in both kinds of cases, a specified amount of monetary damages must be sought). If a court dismisses a claim under a federal statute (such as Title VII) over which it has jurisdiction, it must also dismiss any state law claims over which it has no jurisdiction. Ogugua v. Archdiocese, 2008 WL 4717121 (D. Neb. 2008).

This Recent Development first appeared in Church Law & Tax Report, November/December 2009.

Legal Developments

Sexual Abuse and Church Responsibility

A federal court in Nebraska ruled that two churches were not responsible on the basis of negligent hiring or supervision for a pastor’s sexual molestation of his minor daughter.

Richard R. Hammar, Attorney, CPA

Bio

State: Nebraska
Categories: Clergy - Discipline and Removal, Sexual Harassment, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Sexual Abuse and Church Responsibility

A federal court in Nebraska ruled that two churches were not responsible on the basis of negligent hiring or supervision for a pastor’s sexual molestation of his minor daughter.

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

Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.

* A federal court in Nebraska ruled that two churches were not responsible on the basis of negligent hiring or supervision for a pastor’s sexual molestation of his minor daughter since the acts of molestation, which spanned nine years, occurred in the family home rather than on church property. An adult female (Julie) sued two churches in which her father (Pastor John) had served as pastor, claiming that they were responsible on the basis of negligent hiring and supervision for her father’s sexual molestation of her when she was a minor. Julie claimed that her father, while serving as senior pastor of the two churches, molested her on multiple occasions beginning when she was three years old and continuing until she was twelve. The church defendants conceded that Julie had been sexually molested by her father when he was serving as pastor at each church, but insisted that they were not guilty of negligence.

Julie made the following allegations in support of her claims against the church: (1) In 1973 Pastor John had sexually molested a 14-year-old babysitter. (2) In or about 1975 Pastor John engaged in a consensual, extramarital affair with an adult parishioner in a church in Indiana where he served as pastor. (3) In 1976 Pastor John accepted a pastoral position in a church in Missouri where he engaged in a consensual, extramarital affair with an adult parishioner. (4) In 1979 Pastor John served as pastor of a church in Nebraska. In 1980, rumors circulated that Pastor John had engaged in inappropriate conduct with a 14-year-old girl. The girl submitted a report to the local police claiming that Pastor John had exposed himself to her and attempted to touch her leg. Other than the report to the police, the only other persons that the girl told of these events were two of her friends. She never informed anyone at Pastor John’s church about his behavior. The police never contacted Pastor John about these allegations, and no charges, arrests or convictions resulted. (5) In 1981 Pastor John exposed himself to an adult seamstress whom he had hired to make a swimsuit. He was charged and convicted of this crime. (6) Later in 1981, another teenage girl informed a detective that Pastor John had sexually molested her. The detective’s report stated that the girl informed him that some members of the Nebraska church learned of some of the previous incidents of sexual misconduct committed by Pastor John. (7) In 1981, while serving as pastor of the Nebraska church, Pastor John engaged in a consensual, extramarital affair with an adult parishioner. In December of 1981, Pastor John resigned his position at the Nebraska church.

In 1982, some members of the Nebraska church who thought that Pastor John had been “mistreated” formed another church and asked Pastor John to be their pastor. He agreed to do so, and served this church for nearly three years. There was no investigation conducted by the founders of this church into Pastor John’s past.

Julie claimed that her father sexually molested her on multiple occasions from 1976 through 1984. She claimed the abuse began when she was three years old and that the abuse occurred in Indiana, Missouri, and Nebraska.

Negligent hiring and supervision

The court began its opinion by observing:

The courts typically utilize a “knew or should have known” standard to determine whether an employer is negligent in either hiring or supervising an employee. Indeed, Nebraska law holds that a person charged with negligence must have had knowledge of or be reasonably chargeable with knowledge that the act or omission occasioned danger to another.

The court noted that Julie was alleging that her father “engaged in sexual intercourse and other inappropriate sexual contact with his prepubescent daughter, beginning when she was age three and continuing through age twelve.” It concluded that this conduct was “the essence of the unusual behavior known as pedophilia” according to the Diagnostic and Statistical Manual of Mental Disorders (“pedophilia involves sexual activity with a prepubescent child, generally age 13 years or younger”).

The court assumed that the church defendants “had a duty to exercise due care in hiring and supervising [Pastor John] in order that they not put a pedophile in the pulpit.” It also assumed that the churches “had a duty to warn the congregation of reasonably foreseeable harms from their employee had they known he was a pedophile.” The court conceded that the church defendants either knew or should have known of some of Pastor John’s previous incidents of misconduct. But, the court concluded that the churches could not be liable on the basis of negligent hiring or supervision for Pastor John’s acts. It concluded:

The problem for [Julie] is that facts which might raise a “red flag” about a risk of inappropriate sexual conduct with teenage females or adult women would not cause reasonably prudent churches to worry that someone would engage in the very different and aberrant behavior of molesting small children. Indeed, [Pastor John’s] wife had no such clue or concern. Thus, the church defendants breached no “duty” to protect the plaintiff from her father …. To the extent plaintiff seeks to impose liability for negligent supervision, she must of necessity assert that the churches had a duty to supervise their employee-minister in his own home. However, a church’s obligation to supervise its employee-minister does not extend to close supervision of the minister’s conduct in his own home, even if that home is provided by the church, as the minister retains rights of privacy and quiet enjoyment in the home …. [Pastor John’s] secret and ongoing abuse of [his daughter] in the privacy of the family home or during a family outing is unrelated to any negligent act or omission of the churches regarding him. No matter what the churches might have done, they could not have protected the plaintiff from the claimed predations of her father.

Application. This case is important for four reasons. First, it graphically illustrates the importance of performing pre-employment background checks on church staff members, and making prudent decisions based on the results. Most if not all of Pastor John’s previous sexual indiscretions could have been discovered by the Nebraska churches had they conducted a reasonable background check.

Second, the court stressed that a church cannot be liable on the basis of negligent hiring or negligent supervision unless it “knew of should have known” of prior conduct by an employee placing others at risk. This is a significant holding, that has been recognized by many other courts. Whenever a church worker harms another person, the argument can always be made that the church is liable for the worker’s acts on the basis of negligent supervision since the injury would not have happened if the church had done a better job of supervision. This would become a rule of absolute liability but for the clarification that churches cannot be liable on the basis of negligent supervision for a worker’s harmful acts unless it knew or should have known (in the exercise of reasonable care) that the worker posed a risk of the kind of harm that resulted. This is a critical clarification.

Third, this is one of the few cases to define the term pedophilia. This is a term that is often used incorrectly. The Diagnostic and Statistical Manual of Mental Disorders, quoted by the court, defines pedophilia as a sexual preference for prepubescent minors (generally age 13 years or younger). The various allegations of sexual misconduct by Pastor John suggest that the court’s diagnosis was in error, since it is far from clear that he had a sexual preference for prepubescent minors.

Fourth, the court concluded that the churches could not be liable on the basis of negligent hiring or supervision for a pastor’s acts of sexual misconduct occurring in the privacy of his home. Anonymous, 2006 WL 1401680 (D. Nebr. 2006).

Legal Developments

Recent Developments in Nebraska Regarding Employment Practices

A federal court in Nebraska ruled that an employer violated both state and federal law by dismissing an employee who refused to work on Easter Sunday.

Richard R. Hammar, Attorney, CPA

Bio

State: Nebraska

Church Law and Tax1998-05-01

Employment Practices

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

• Key point. Employers subject to Title VII of the Civil Rights Act of 1964 (or a comparable state law) have a legal duty to “accommodate” their employees’ religious practices if they can do so without suffering an “undue hardship.” In some cases requiring employees to work on a religious holiday against their will may be an unlawful practice.

A federal court in Nebraska ruled that an employer violated both state and federal law by dismissing an employee who refused to work on Easter Sunday. The employee, a devout Christian, was employed by a convenience store chain as a cashier. A previous manager accommodated the employee’s desire not to work on Easter Sunday by allowing her to work on non—religious holidays (such as New Year’s Day) instead. A new manager was not so accommodating. She scheduled the employee to work the evening shift on Easter Sunday even though she had been fully apprised in writing by the employee of her strong religious opposition to working on Easter Sunday. The employee attended church on Easter Sunday evening rather than go to work, and she was promptly fired. She later sued her employer, claiming that she had been unlawfully discharged on account of her religion.

Title VII of the Civil Rights Act of 1964 provides that it is an “unlawful employment practice” for employers to dismiss an employee on account of the employee’s religion. Employers with at least 15 employees, and engaged in interstate commerce, are subject to this law. The court noted that in order for the employee to prove that her rights under Title VII were violated she had to establish each of the following: (1) she had a bona fide belief that working on Easter Sunday was contrary to her religious beliefs; (2) she informed her employer of the conflict between her religious beliefs and her job; and (3) she was dismissed because of the exercise of her religious beliefs.

An employer has a couple of defenses under Title VII. First, it is not liable for a Title VII violation if it offers a “reasonable accommodation” to an employee. Second, an employer is not liable under Title VII if it can prove that any attempt to accommodate an employee’s religious beliefs would have imposed an “undue hardship.”

The court concluded that the employee proved all three elements of her case, and therefore the employer violated Title VII by dismissing her. First, it pointed to the employee’s long history of church attendance, including attending worship services on Sunday mornings and evenings, as evidence of her bona fide belief that working on Easter Sunday violated her religious beliefs. Second, it noted that the employee had informed her manager in writing of her desire not to work on Easter Sunday. Third, the employee clearly was dismissed because of her religious beliefs.

The court rejected the employer’s defense that it had offered the employee a “reasonable accommodation.” The employer argued that it had offered to let the employee work the Easter Sunday night shift so she could attend services in the morning. The court conceded that an employer is not liable under Title VII if it offers the employee a “reasonable accommodation” of his or her religious beliefs. The court concluded that the employer had failed this test. It observed that the employer “knew that the entirety of Easter was of paramount religious significance to [the employee] and was unlike a normal Sunday.” The court also rejected the employer’s claim that accommodating the employee’s religious beliefs would have imposed an undue burden on it. It noted that the previous manager was willing to allow the employee to work on secular holidays in lieu of working on Easter, and that other employees had indicated a willingness to work “at any time.” The court ordered the employer to pay the employee back pay of $25,000 and “front pay” (wages for the next several months) of $7,500. In addition, the court ordered the employer to pay the employee an additional $10,000 for emotional suffering (it noted that the employee gained 75 pounds following her dismissal as evidence of her emotional suffering).

Application. Many churches have members who are required to work on the Sabbath or on religious holidays. Such an arrangement is not offensive to some. But it is to others. Persons who can demonstrate that their religious convictions prohibit them from working on certain days are entitled to “reasonable accommodation” by their employer. In many cases this will mean “swapping schedules” with other employees. If such accommodations are reasonable, then there is no Title VII violation. The test is one of reasonable accommodation-not an accommodation that is acceptable to the employee. Further, the employer need not engage in any accommodation that will cause it to suffer an undue burden. However, as this case illustrates, this standard is not always provable. Pedersen v. Casey’s General Stores, Inc., 978 F. Supp. 926 (D. Neb. 1997). [The Civil Rights Act of 1964]

© Copyright 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 m43 c0398

Legal Developments

Parsonages and Property Tax Exemption

In some states, a parsonage is exempt even if a minister does not perform ministerial duties there.

Richard R. Hammar, Attorney, CPA

Bio

State: Nebraska

Church Law and Tax 1994-03-01 Recent Developments

Taxation – Church Property

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

• Key point: A church-owned parsonage is exempt from property taxation in some states, even if the minister who lives in the parsonage performs few if any ministerial duties in the parsonage.

• The Nebraska Supreme Court ruled that church-owned parsonages are exempt from property taxes even though the clergy who live in them perform some of their religious responsibilities in a church office. The Nebraska Conference of the United Methodist Church (the conference) is operated as an itinerant ministry in which pastors are rotated among local churches by their bishop. District superintendents are appointed by the bishop to supervise churches in the district and assist in administration. Under this itinerant system, a Methodist minister can expect to be relocated every 5 to 8 years, and district superintendents are replaced by the bishop at least every 6 years. To facilitate this mobility, the conference owns several parsonages which provide housing for pastors and superintendents while they are serving in a particular community. Superintendents are required to live in these parsonages as a condition of their employment. One of these parsonages is used as the residence for the district superintendent of the northwest district in Nebraska. This district contains some 25 pastors and 38 churches. The district superintendent of this district conducts worship services in churches some 25 weeks each year, provides pastoral support to district clergy and their families, and fills in for clergy who are ill or absent. For many years the district applied for and received an annual exemption of the parsonage from property tax. The 1990 application for exemption was denied by the tax assessor on the ground that the religious use of the parsonage had changed. This determination was based on the fact that in 1990 the district rented office space for the superintendent for three hours each day to produce a district newsletter, maintain church records, and prepare correspondence. The assessor concluded that the removal of these activities from the parsonage to a rented office prevented the parsonage from qualifying for exemption as a property used exclusively for religious purposes. The conference appealed this decision, and the state supreme court ruled that the parsonage was entitled to exemption despite the fact that some of the superintendent’s duties were transferred to a rented office. The court noted that Nebraska law exempts from property taxation any property that is owned by a religious organization and used exclusively for religious purposes, and that “this is the first opportunity for this court to address the question of whether a cleric’s use of a parsonage constitutes exclusive religious use for exemption purposes.” In concluding that the parsonage qualified for exemption the court observed:

The record before us shows that the parsonages are an essential part of the Methodist church, both in their day-to-day activities and within the overall scheme of the itinerant ministry of the Methodist church. The special role parsonages play in the Methodist ministry requires that consideration be given to United Methodist’s unequivocal use of the parsonage in the furtherance of its religious purpose …. [N]either the profession of a sectarian creed, nor the formal dedication or occupation of property to promote the objects and purposes of a faith thus expressed is an essential element of a “religious use,” nor a necessary prerequisite to and of an “exclusive religious purpose.” It is clear that the [superintendent’s] parsonage is used to promote the objects and purposes of a faith and would therefore fall under the above definition.

This conclusion was not affected by the fact that an office was rented for the superintendent’s use. The court concluded: “[A] parsonage owned by a church, which parsonage houses a pastor who is engaged in full-time ministerial work, which parsonage is provided to him for the convenience of the church and parishioners, and which parsonage serves numerous religious purposes, is property used exclusively for religious purposes and exempt from taxation.” Nebraska Annual Conference of the United Methodist Church v. Scotts Bluff County Board of Equalization, 499 N.W.2d 543 (Neb. 1993).

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 – Part 1

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: Arkansas
Categories: Schools

Church Law and Tax 1989-09-01 Recent Developments

Freedom of Religion

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

• Two federal appeals courts addressed the issue of the right of Christian student groups to meet on public high school campuses for Bible study and prayer prior to the start of the school day. One court concluded that such groups have a legal right to meet on public school property, and the other court ruled that they do not. The United States Court of Appeals for the Eight Circuit (which includes the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota) concluded that Christian student groups have a legal right to meet on a public high school campus for Bible study and prayer prior to the start of the school day. The group in question (comprised of students at a Nebraska public high school) had argued that their school’s refusal to allow them to meet on school property violated the constitutional guaranty of religious freedom and the federal “Equal Access Act.” The Equal Access Act prohibits public high schools from denying any group access to school facilities during “noninstructional” hours on account of the religious content of the group’s speech if the school has established a “limited open forum” by making the same facilities available to “one or more noncurriculum related student groups.” The Christian group argued that the school had created a limited open forum by permitting several “noncurriculum related groups” to meet on school property (including the chess club, a junior Rotary Club, and a scuba diving club), and accordingly the school could not deny the Christian group access to the same facilities during noninstructional hours. School officials argued that they had not created a limited open forum, since all of the clubs that met on school property were curriculum related. They pointed out that the chess club was related to logic (though no logic courses were taught at the school), the junior Rotary Club was related to sociology, and the scuba diving club was related to physical education. The federal appeals court rejected the school’s claim that the Equal Access Act did not apply since all of the student clubs were curriculum related: “Allowing such a broad interpretation of ‘curriculum-related’ would make the Equal Access Act meaningless. A school’s administration could simply declare that it maintains a closed forum and choose which student clubs it wanted to allow by tying the purposes of those student clubs to some broadly defined educational goal. At the same time the administration could arbitrarily deny access to school facilities to any unfavored student club on the basis of its speech content. This is exactly the result that Congress sought to prohibit by enacting the Equal Access Act. A public secondary school cannot simply declare that it maintains a closed forum and then discriminate against a particular student group on the basis of the content of the speech of that group.” The court concluded that “many of the student clubs [at the high school in question], including the chess club, are non-curriculum-related” and therefore the school had established a limited open forum and “the Equal Access Act forbids discrimination against [the Christian student group] on the basis of its religious content.” The court also rejected the school’s claim that the Equal Access Act violated the constitution. The court noted that the United States Supreme Court had ruled in 1981 that a public university could not deny a Christian student group access to university facilities that were available to other student groups. This ruling, concluded the appeals court, demonstrated the validity of the Equal Access Act. The court rejected the school’s argument that the Supreme Court’s ruling should be limited to university students on account of the greater impressionability and immaturity of high school students. It noted that “Congress considered the difference in the maturity level of secondary students and university students before passing the Equal Access Act. We accept Congress’ fact-finding.” The ruling is controlling in the eighth federal judicial circuit (which includes the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota)—unless reversed or modified by the same court in a later decision, or by the United States Supreme Court. Mergens v. Board of Education of Westside Community Schools, 867 F.2d 1076 (8th Cir. 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 c0589

Legal Developments

Taxation

Church Property

Richard R. Hammar, Attorney, CPA

Bio

State: Nebraska
Categories: Church Property

Church Law and Tax 1989-05-01 Recent Developments

Taxation – Church Property

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

• Is a 31-unit apartment complex operated in conjunction with a nursing home exempt from property taxes? No, concluded the Nebraska Supreme Court. The apartments were located at St. Luke’s Good Samaritan Village, which was operated by the Evangelical Lutheran Good Samaritan Society. Apartment residents were required to be at least 55 years of age, and physically capable of living in an apartment without supervised medical care. They were assessed a monthly rent of $220. The court concluded that the apartments did not qualify for exemption as a charitable use. While acknowledging that a nursing home operated on a nonprofit basis “is exempt from taxation as a charitable institution,” the court concluded that apartment units operated in conjunction with a nursing home were not exempt since they constituted “low-rent housing” which was not a charitable use under Nebraska law. Evangelical Lutheran Good Samaritan Society v. Board of Equalization, 430 N.W.2d 502 (Nebr. 1988).

Legal Developments

Church Denied Property Tax Exemption for Failure to File an Application

The Nebraska Supreme Court ruled that a church can be denied an exemption from real

Richard R. Hammar, Attorney, CPA

Bio

State: Nebraska
Categories: Taxation - Church Property

The Nebraska Supreme Court ruled that a church can be denied an exemption from real estate taxes as a result of its failure to file an application for exemption.

The court relied on the United States Supreme Court ruling that those "claiming the benefits of the religious-organization exemption should not automatically enjoy those benefits. Rather, in order to receive them, [they] may be required by the state to provide that [they] are a religious organization within the meaning of the act." Indian Hills Church v. County Board of Equalization, 412 N.W.2d 459 (Neb. 1987)