Church Law and Tax 1989-05-01 Recent Developments Euthanasia Richard R. Hammar, J.D., LL.M., CPA •

Church Law and Tax 1989-05-01 Recent Developments


Do family members have a legal right to order a hospital to stop using artificial means to sustain the life of a loved one? This controversial issue was confronted by the New York Court of Appeals (the highest state court in New York) in a significant ruling. The patient—a 77-year-old widow with two children—had suffered a series of strokes that caused brain damage and rendered her unable to care for herself. For several months, she remained at home and was cared for by her daughters (both of whom were nurses). Eventually, however, the daughters were no longer able to care for their mother, and she was transferred to a geriatric facility where her condition worsened. When the mother became “unresponsive and stuporous,” she was transferred to a hospital, where it was determined that she had lost her “gag reflex,” which made if impossible for her to swallow food or liquids without medical assistance. She showed marked improvement after receiving fluids intravenously. Within a few days she became alert, able to follow simple commands, and responded to simple questions. However, she remained unable to swallow. A physician ordered that a nasogastric tube be inserted through her nose in order to provide her with more substantial nourishment. Her daughters, however, objected to such a procedure on the ground that their mother, before becoming incompetent, had “repeatedly stated that she did not want her life prolonged by artificial means” if she was unable to care for herself, and that she was “a very religious woman” who “felt that nature should take its course.” The issue was presented to a hospital ethics committee, which found that it would be inappropriate to withhold the treatment since the patient would die of thirst and starvation within a week to ten days without it. The New York Court of Appeals, in a landmark decision, ordered the hospital to feed the patient by means of a nasogastric tube despite the objections of her daughters. It observed that civil courts have the right to “intervene and direct the termination of artificial life supports” if there is “clear and convincing evidence” that the patient “would have so directed if he were competent and able to communicate.” The “clear and convincing evidence” requirement, noted the court, “forbids relief whenever the evidence is loose, equivocal or contradictory.” The court concluded that the evidence in this case failed to satisfy this “demanding standard.” It agreed that the patient had often made general statements to the effect that she did not want her life sustained by artificial means and did not want to “be a burden” upon anyone. The court viewed such comments as “no different than those that many of us might make after witnessing an agonizing death” and are the type of statements “that older people frequently, almost invariably make.” If such comments were deemed to be clear and convincing proof of a general intent to decline all medical treatment once incompetency sets in, then “few nursing home patients would ever receive life-sustaining medical treatment … and the aged and infirm would be placed at grave risk.” Further, the court observed that the patient’s previous statements had been prompted “by her experience with persons suffering terminal illnesses, particularly cancer,” and that she “does not have a terminal illness, except in the sense that she is aged and infirm. Neither is she in a coma nor vegetative state. She is awake and conscious, she can feel pain, responds to simple commands, can carry on limited conversations, and is not experiencing any pain. She is simply an elderly person who as a result of several strokes suffers certain disabilities, including an inability to feed herself or eat in a normal manner. She is in a stable condition and if properly nourished will remain in that condition unless some other medical problem arises.” Such evidence, the court concluded, did not amount to “clear and convincing evidence” that the patient would have declined to be fed through a nasogastric tube had she been competent and able to communicate. It further observed that the daughters had not objected to spoon-feeding their mother while they were caring for her in her home, though she would have certainly died without such assistance. In summary, the patient’s previous statements may have been sufficient to justify the discontinuance of artificial life-support procedures had she been dying an agonizing death from cancer. But it was not clear that such statements indicated an intent to choose death by starvation and thirst when she was not terminally ill. Matter of Westchester County Medical Center, 534 N.Y.S.2d 886 (1988).

Can a city acquire a seminary’s property through eminent domain?

A federal appeals court in New York addressed this controversial question.

Can a city acquire a seminary's property through eminent domain? This controversial question was addressed recently by a federal appeals court in New York.

Here are the facts. A federal trial court judge ruled that the City of Yonkers, New York, had engaged in a longstanding practice of restricting public housing to a minority section of the city. Under pressure from the court, the city agreed to acquire a 2-acre portion of a Catholic seminary's 44-acre property through its power of eminent domain (or condemnation), and to construct 200 units of public housing on this property which was located in a nonminority area of the city.

The seminary contended that the city's proposed action would violate its constitutional guaranty of religious freedom, since the 2-acre tract was necessary to the "atmosphere of quiet reflection essential to the academic, spiritual, psychological and pastoral preparation of young men for the priesthood" at the only seminary in the archdiocese. The trial court assumed the validity of the seminary's religious objections, but concluded that they were outweighed by the government's "compelling interest" in eliminating racial discrimination.

On appeal, the federal appeals court observed that "it is well settled that a limitation by the government on the free exercise of religion is permitted only when the state can demonstrate that a compelling interest justifies the restriction and that no alternate means of accomplishing the state's compelling interest are available."

The court rejected the city's claim that the lack of any "politically acceptable alternatives" to acquiring the seminary's property constituted a compelling state interest, noting that "political expediency is far from a compelling reason to force the seminary to give up its property in derogation of a constitutional right."

The court concluded that the city would not have a compelling interest in obtaining the seminary's property against its will if alternative building sites in nonminority areas of the city were available, and it remanded the case back to the trial court for a full hearing on "the availability of alternative building sites … and whether the public interest in remedying discrimination can be reasonably accomplished without the taking of the seminary's property." Yonkers Racing Corporation and St. Joseph's Seminary v. City of Yonkers, 858 F.2d 855 (2nd Cir. 1988).

Church Membership

Church Law and Tax 1989-03-01 Recent Developments Church Membership – Discipline and Dismissal Richard R.

Church Law and Tax 1989-03-01 Recent Developments

Church Membership – Discipline and Dismissal

Can a federal court stop a religious organization from excommunicating one of its members? No, said a federal court in New York in a recent decision. The member had filed a lawsuit in federal court, seeking a resolution of a dispute that had arisen between him and the organization. While the suit was pending, the member claimed that the organization (the “rabbinical congress”) was pressuring him to drop the lawsuit and submit the dispute to a rabbinical court. In particular, the member asserted that the rabbinical congress was threatening to excommunicate him and have him declared a “religious outcast” unless he withdrew the civil lawsuit. Such actions prompted the member to seek an order from the court barring the rabbinical congress from excommunicating him or engaging in any other efforts to force him to withdraw his lawsuit and submit the dispute to a rabbinical court. The court refused to grant the relief requested by the member. It observed: “A long line of Supreme Court cases holds that, where a religious body adjudicates relations among its members, courts will not interfere with the decisions of those bodies made in accordance with those bodies’ rules. This line of cases is based on the Court’s observation that voluntary religious organizations are much like any other voluntary organization and are in the best position to interpret their own rules. As the Court stated in [a previous decision]: ‘It is not to be supposed that the judges of the civil courts can be as competent in ecclesiastical law and religious faith … as the ablest men in each [faith] are in reference to their own ….’ Thus, federal courts will not interfere with the decisions of a religious body adjudicating the relationships of members in that body; as a matter of jurisprudence federal courts will defer to the decision of the religious body.” The court also noted that “[i]n other cases, the Supreme Court has held that it is contrary to the first amendment for a court, either federal or state, to engage in an examination of ecclesiastical doctrine, and unless such examination cannot be avoided, a court must defer to the decisions of a religious body.” The court noted that in this case, the member had asked the court “to do something it is not able to do either as a matter of federal jurisprudence or under the first amendment: decide whether [he] should be excommunicated from his religious community for prosecuting this suit against [the rabbinical congress].” The court acknowledged that if the member were in fact threatened with imminent physical harm by the rabbinical congress, then “he could come to this court for a remedy.” However, “the mere expulsion from a religious society, with the exclusion from a religious community, is not a harm for which courts can grant a remedy.” In conclusion, the court permitted the member to pursue a judicial resolution of his dispute with the rabbinical congress, and ruled that the member’s threatened excommunication was “beyond the powers of this court to stop, so long as the excommunication results in nothing more than [the member] being excluded from his religious community.” Grunwald v. Bornfreund, 696 F. Supp. 838 (E.D.N.Y. 1988).

Schools – Part 1

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

Church Law and Tax 1989-01-01 Recent Developments


A federal district court in New York ruled that a state law governing “homeschooling” did not violate the constitutional right of fundamentalist Christian parents to the free exercise of their religion. The law in question requires that educational services provided to a minor “elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools.” The law also requires that homeschooling be conducted by “competent” instructors, and calls for periodic standardized testing and the approval of a homeschool’s curriculum and textbooks. Visits of homes in which homeschooling occurs is also mandated. A group of parents challenged the law, contending that the state “did not have jurisdiction” over their children’s education. In particular, the parents maintained that their religious beliefs compelled them to give their children a religious education in which religious values are “interwoven” into every area of study, and that the New York law violated their right to religious freedom by reserving unto the state the power to approve or disapprove the manner in which they accomplished the religious education of their children. The court acknowledged that “it is with trepidation that [we] interfere with the traditional interest of parents with respect to the religious upbringing of their children.” Nevertheless, the court concluded that the state’s interest in ensuring an adequate education for its citizens was sufficiently compelling to justify the legal restrictions on homeschooling. The court observed: “Unless a child is a member of an identifiable religious sect with a long history of maintaining a successful community separate and apart from American society in general, it must be assumed that the child must be intellectually, socially, and psychologically prepared to interact with others who may not share the views of the parents in the [present case]. A state’s interest in establishing standards for the education of its young in order to prepare them for participation in American political and economic processes as well as to nurture and develop their human potential overrides the interest of parents to teach their children in a religious school or at home free from governmental interference.” The court acknowledged that the parents feared that the state would require them to teach secular matters inconsistent with their religious beliefs. While acknowledging that “there may be cases in which the manner the state enforces the mandate of [the law] unnecessarily infringes the free exercise rights of particular parents.” However, “the mere possibility that such cases might arise is not enough to invalidate” the state law. As a result, the court rejected the parents’ challenge to the constitutionality of the New York law. Blackwelder v. Safnauer, 689 F. Supp. 106 (N.D.N.Y. 1988).

Political Activities

Impact on Tax-exempt Status

Church Law and Tax 1989-01-01 Recent Developments

Political Activities – Impact on Tax-exempt Status

In a case that will be of considerable relevance to churches and religious organizations, a federal appeals court ruled that the New York City bar association did not qualify for exemption from federal income taxation under section 501(c)(3) of the Internal Revenue Code since its practice of rating candidates for judgeships constituted a prohibited participation in political campaigns. Section 501(c)(3) of the Code provides for the exemption from federal income taxation of organizations that satisfy five conditions. One of those conditions is that the organization must not “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” A committee of the New York City bar association evaluates candidates’ professional ability, experience, character, and temperament, and then rates them as either “approved,” “not approved,” or “approved as highly qualified.” The bar association’s bylaws specify that the evaluation committee “shall endeavor to secure the nomination, election, or appointment” of qualified candidates, and to prevent the nomination, election, or appointment of unqualified candidates. The bar association claimed that its rating system did not constitute prohibited participation in political campaigns since the ratings (1) were “nonpartisan,” (2) involved merely the collection and dissemination of objective data, and (3) were not a “substantial” part of its activities. The court rejected these claims, and revoked the exempt status of the bar association. In rejecting the association’s first claim (i.e., that its ratings were nonpartisan), the court observed that “a candidate who receives a `not qualified’ rating will derive little comfort from the fact that the rating may have been made in a nonpartisan manner.” As to the association’s second claim (i.e., that the ratings were mere presentations of objective facts), the court observed that “a representation that a candidate is able and has proper character and temperament is a subjective expression of opinion” rather than a mere recital of facts. Finally, the court rejected the association’s argument that its exempt status was not affected since the ratings were not a “substantial” part of its activities. “The short answer to this argument,” noted the court, “is that Congress did not write the statute that way.” While section 501(c)(3) provides that an exempt organization’s attempts to influence legislation will not jeopardize its exempt status unless such activities are “substantial” in nature, the requirement of substantiality does not apply to participation in political campaigns. The court did refer with approval to a 1980 IRS ruling upholding the exempt status of an organization that published a “voter education” newsletter. The IRS emphasized the following factors: (1) the voting records of all incumbents were presented; (2) candidates for reelection were not identified; (3) no comments were made of a candidate’s overall qualifications for public office; (4) no statements were made indorsing or rejecting any incumbent as a candidate for public office; (5) the organization did not widely distribute its compilation of incumbents’ voting records; and (6) no attempt was made to target the publication toward particular areas in which elections were occurring nor was the publication timed to coincide with election campaigns. Revenue Ruling 80-282. The appeals court’s ruling is of relevance to churches for a number of reasons. It demonstrates that (1) intervention or participation in political campaigns will jeopardize a church’s exemption from federal income taxation; (2) the participation or intervention in political campaigns need not be a substantial part of a church’s activities; (3) participation or intervention in political campaigns cannot be justified on the basis of “nonpartisanship” without compliance with strict guidelines; and (4) statements to the effect that a particular candidate is “fit,” “qualified,” or “capable” are not mere “statements of fact” that will have no effect upon a church’s exempt status. The Association of the Bar of the City of New York v. Commissioner, 88-2 USTC para. 9535 (2nd Cir. 1988).

Freedom of Religion – Part 1

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

Church Law and Tax 1989-01-01 Recent Developments

Freedom of Religion

Many churches use public school facilities on a temporary basis (and during noninstructional hours) during the construction or renovation of their own facilities. Many other churches have considered such a practice. Are such arrangements legal? That was the issue before a federal appeals court in New York in a recent case. A church applied for and was granted permission to use a public school building on four consecutive Sundays while its own church facility was being renovated. During the four week period, the church applied for a permit to use the school facilities for an additional “six to eight months.” This permit was denied, and a trial court granted the church’s request for an injunction forcing the school district to issue the requested permit. On appeal, the school district defended its refusal to grant the permit by pointing to a New York law that prohibits public school properties from being used for “meetings … where admission fees are charged … if such meetings are under the exclusive control, and said proceeds are to be applied for the benefit of … a religious sect or denomination.” The court acknowledged that this language was inconsistent with church use of public school property. However, it concluded that the school district had “opened this forum to [the church] through a practice of granting permits to use public school facilities to other religious organizations.” The court also rejected the school district’s argument that granting the permit to the church would constitute an impermissible “establishment of religion” in violation of the first amendment. It noted that “the semblance of official support is less evident where a school building is used at night as a temporary facility by religious organizations, under a program that grants access to all charitable groups.” Deeper Life Christian Fellowship v. Board of Education, 852 F.2d 676 (2nd Cir. 1988).

Court Ruled Member Could Recover Damages Against Church If He Could Establish That the Church Had Breached a Duty of Care

Can a church be liable for injuries sustained by a member shortly after leaving a

Can a church be liable for injuries sustained by a member shortly after leaving a church retreat in an emotionally disturbed condition? That was the issue before a New York state court.

The member left the retreat in an "emotionally unstable condition" with the knowledge of the church, lay down on a set of railroad tracks, and lost both legs when he was hit by an oncoming train. The member sued the church, arguing that it had been remiss in allowing him to leave the retreat in a state of "severe psychological distress."

The church asked the court to dismiss the lawsuit on the ground that the member had failed to state a claim upon which relief could be granted since (1) there was no evidence that the church had acted improperly, and (2) the lawsuit violated the constitutional guaranty of religious freedom.

The court rejected the church's request, noting that the member could recover damages against the church if he could establish that the church had breached a duty of care toward him.

Alba v. Long Island Railroad Co., and St. Cecilia's Roman Catholic Church, 528 N.Y.S.2d 39 (1988)

Court Struck Down as Unreasonable a City’s Refusal to Grant a Church’s Request for a Special Use Permit

A New York appeals court struck down as unreasonable a city's refusal to grant a

A New York appeals court struck down as unreasonable a city's refusal to grant a church's request for a special use permit authorizing it to build a new sanctuary. Noting that churches "enjoy a presumptively favored status with respect to the police powers sought to be protected by zoning laws," the court concluded that "our examination of the reasons enumerated by the [city] for denying [the church] a special use permit discloses that the rejection was unreasonable. No expert evidence was proffered concerning any detrimental effect on traffic or drainage." North Syracuse First Baptist Church v. Village of North Syracuse, 524 N.Y.S.2d 894 (1988)

Court Permitted Student to Sue His Church-Operated High School for Injuries in Football Game

On Church Property or During Church Activities

A New York court permitted a student injured in an intramural tackle football game sponsored by a church-operated high school to sue his school.

The game was an annual, informal contest between students that was officiated by instructors from the school. No protective equipment was provided. The injured student alleged that the school failed to properly supervise the game and to provide the necessary protective equipment.

The court concluded that the evidence was "sufficient to allow a jury to conclude that the failure to equip [the injured student] with shoulder pads was a proximate cause of his resulting injury." The court also rejected the school's claim that the student should not be allowed to recover since he had voluntarily "assumed the risk" of injury by playing tackle football without pads.

While this may be true where participants "expressly" assume a risk, it is not necessarily true, in the State of New York, when there is only an "implied" assumption of risk. Voluntary participation in an athletic contest, without more, amounts to only an implied assumption of risk that is not a complete bar to recovery in the event of an accident. It is, however, a factor to be considered in assessing fault. Locilento v. John A. Coleman Catholic High School, 523 N.Y.S.2d 198 (1987)

Court Concluded That in Alleging Damage to Marital Relationship Couple Waived the Privilege of Their Communication with Priest

A New York case dealt with the clergy-penitent privilege. A husband and wife brought a

A New York case dealt with the clergy-penitent privilege.

A husband and wife brought a medical malpractice suit against a physician, alleging, among other things, that the malpractice had resulted in injury to the marital relationship. To refute the claim of marital injury, the physician sought to obtain the counseling records of a Roman Catholic priest to whom the couple had gone for marriage counseling.

The priest refused to comply on the ground that such records were protected by the New York clergy-penitent privilege, which provides: "Unless the person confessing or confiding waives the privilege, a clergyman or other minister of any religion … shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor."

The court concluded that alleging damage to their marital relationship the couple had "waived the privilege of their communication with [the priest] during his counseling with them, solely as to their marital problems. Insofar as other communications with [the priest] not pertaining to marriage counseling, the privilege remains intact."

The court suggested that the couple delete their claim for damages to their marital relationship as a means of avoiding the necessity of having the priest's counseling records subject to disclosure. Ziske v. Luskin, 524 N.Y.S.2d 145 (1987)

Compelling Governmental Interest Overrode Church-Run School’s Right to Practice Its Religion

A church-operated school in Michigan adopted a policy "not to hire on a full-time basis

A church-operated school in Michigan adopted a policy "not to hire on a full-time basis those women who have preschool age children." On the basis of this policy, the school terminated a pregnant teacher upon the birth of her first child.

The former teacher filed a lawsuit charging that the school's action violated a state civil rights law banning sex discrimination in employment. A state appeals court agreed that the school's action violated a state civil rights law, and rejected the school's claim that such a ruling violated its constitutional right of religious freedom.

Eradicating sex discrimination, concluded the court, is a compelling governmental interest that overrode the school's right to practice its religion. McLeod v. Providence Christian School, 408 N.W.2d 146 (Mich. App. 1987).

Court Concluded Children of Hassidic Jews to Choose Between Free Transportation and Their Religious Beliefs

New York law requires that all children be provided free bus transportation to both public

New York law requires that all children be provided free bus transportation to both public and private schools. When male children of Hasidic Jews in one community refused to be transported to their private religious school on buses driven by female drivers, the city responded by providing only male drivers on that route.

Female drivers sued the city, alleging that the city's practice violated the first amendment's nonestablishment of religion clause. A federal district court in New York agreed. The court acknowledged that the children would have to choose between free transportation and their religious beliefs (which prohibited any social interaction between the sexes), but concluded that such a dilemma was necessary in order to avoid a violation of the nonestablishment of religion clause. Bollenbach v. Monroe-Woodbury Central School District, 659 F. Supp. 1450 (S.D.N.Y. 1987).

State May Restrict Acts and Conduct to Protect the Health and Safety of Its Citizens

Should a member of the Sikh faith—required by his religion to wear a knife at

Should a member of the Sikh faith—required by his religion to wear a knife at his side—be exempt from a municipal ordinance banning the public possession of an exposed knife?

No, ruled a New York state court. The court concluded that "while freedom to believe and worship as one chooses must remain absolute and unfettered, the state may restrict acts and conduct if the intrusion is justified by a compelling state interest to protect the health and safety of its citizens."

The court suggested that Sikhs use plastic knives, the public possession of which did not violate the ordinance. People v. Singh, 516 N.Y.S.2d 412 (1987).

Freedom of Signage?

A city did not violate the constitutional right of a church to exercise its religion

A city did not violate the constitutional right of a church to exercise its religion by restricting the size of the church's' exterior sign to twenty square feet, ruled a New York court. "It is wholly appropriate," concluded the court, "to impose limitations on a church property and its accessory uses when reasonably related to the general welfare of the community, including the community's interest in preserving its appearance." Lakeshore Assembly of God Church v. Village Board, 508 N.Y.S.2d 819 (1986).

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