Missionaries’ Sexual Misconduct

Is a denomination liable for the misconduct of its missionaries?

Richard R. Hammar, Attorney, CPA

Bio

State: Virginia
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

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

• The Supreme Court of Virginia threw out a $1.5 million jury verdict against the Foreign Missions Board of the Southern Baptist Convention. A foreign missionary sexually molested his own children. He was prosecuted, convicted, and sentenced to a 12-year prison sentence. His wife and one of his daughters later sued the missions board. The mother maintained that at a missionary candidates conference conducted just before the family left for missionary service in Africa, she entered into an “oral contract” with the board whereby the board promised that if she and her husband became missionaries the board would provide protection for the health, welfare, and safety of their family. The jury returned a verdict of $1.5 million in favor of the mother and her daughter, and the board appealed to the state supreme court. The supreme court began its opinion by noting that “the standard for determining the intent of the parties to an oral contract is one of reasonable expectation—that is, the meaning which the party using the words should reasonably have expected them to be given by the other party.” The court acknowledged that issues of health and safety were discussed in the context of overseas missionary assignments, and that the mother was concerned about potential physical danger “from sources external to the family unit” stemming from living conditions overseas. However, the court insisted that “there is no evidence which would support a finding that the parties contemplated that the board would be obligated to protect one family member from the criminal actions of another family member. Indeed … although [the father’s] actions were unconscionable and the impact on the family tragic, no reasonable person could conclude that either [the mother] or the board intended that the oral contract regarding the protection of the health, safety, and welfare of the [missionary] family encompassed the board’s protection of the children from the felonious acts of [their father].” Since the parties could not have intended or expected that their “oral contract” extended to the protection of the family against the criminal conduct of the father, “the board did not have a contractual duty to protect [the mother and her children] from the unlawful actions of [the father].” Accordingly, the jury’s verdict was reversed and the court entered judgment in favor of the board. Foreign Missions Board of the Southern Baptist Convention v. Wade, 409 S.E.2d 144 (Va. 1991).

See also the feature article in this newsletter entitled “Liability of Churches and Denominations for the Sexual Misconduct of Clergy.” See also Church records, Hutchison v. Luddy, 606 A.2d 905 (Pa. Super. 1992), and Employment practices, Wheeler v. Catholic Archdiocese of Seattle, 829 P.2d 196 (Wash. App. 1992), in the recent developments section of this newsletter.
See Also: Cases Finding Denominations Not Liable

© Copyright 1992, 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: m40 m67 m10 c0692

Legal Developments

Can a court force a mother to take her son to church?

The state may not require any citizen to attend religious services.

Richard R. Hammar, Attorney, CPA

Bio

State: Virginia
Categories: Marriage

Church Law and Tax 1992-03-01 Recent Developments

Marriage and Divorce

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

• Does a civil court have the authority to order a mother to take her 7-year-old son to church? That was the issue before a Virginia appeals court. A trial court awarded custody of a 7-year-old boy to his father following the parents’ divorce. The mother was granted visitation rights on every other weekend, holidays, and during the summer months. However, the trial court stipulated that on weekends when the mother had custody she would either take the child to church on Sunday, or permit the father to do so. The trial court concluded that this was a reasonable accommodation given the fact that the child had been raised in a very religious home and always had gone to church. The mother had regularly attended church during the marriage, but she said she did so because of the her husband’s insistence, and that she never agreed with the church’s teachings and found the atmosphere “intolerable.” A state appeals court ruled that the trial court erred in requiring the mother to take her son to church. The court observed: “She is required to attend church with her son or suffer the penalty of losing a portion of her visitation time. Regardless of the trial judge’s motivation, the state may not require a citizen to attend any religious worship.” Carrico v. Blevins, 402 S.E.2d 235 (Va. App. 1991).

Legal Developments

Personal Injuries – Part 2

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

State: Virginia

Church Law and Tax 1990-09-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Denominations that conduct scouting programs will be interested in a recent ruling of the Virginia Supreme Court refusing to find the Boy Scouts of America legally responsible for the homosexual assaults of a local scoutmaster. Here are the facts. At the age of 12, a boy became a member of a local scout troop in Virginia. The boy alleged that his scoutmaster initiated a homosexual relationship with him and had homosexually molested him on 60 or more occasions over a period of a year, persuading him that such behavior was normal and acceptable. The relationship caused the boy severe psychological, emotional, and physical harm, resulting in his withdrawal from school and commitment to in-patient treatment in a psychiatric hospital. The scoutmaster was later convicted of a number of felonies as a result of his homosexual offenses against the boy (and two other scouts), and was sentenced to a lengthy term in the state penitentiary. The boy and his parents sued the scoutmaster, the national offices of the Boy Scouts of America (BSA), and a regional scouting organization (the National Capital Area Council, or “NCAC”). They argued that BSA and NCAC were legally responsible for the boy’s injuries since they were “negligent in the selection and retention” of the scoutmaster. Specifically, they claimed that BSA and NCAC “should have known” that the scoutmaster had been convicted five years earlier of four counts of sexual assault upon a boy scout in Rhode Island while acting as a scoutmaster there. After a six-week trial, a jury (after seven days of deliberations) ruled in favor of BSA, but found the NCAC negligent and awarded damages of $45,000. However, the court ordered the scoutmaster’s attorney’s fees of $37,000 to be paid out of this judgment (effectively reducing the family’s award to $8,000). The family appealed the verdict exonerating BSA, and the Virginia Supreme Court upheld the trial court’s ruling in favor of BSA. The court began its opinion by noting that there are approximately 1.5 million adult volunteers who work with the Boy Scouts each year, with an annual turnover of about one-third. When a local troop selects a scoutmaster, it sends an “adult application” to the local council which forwards it on to BSA. When BSA receives an application, it checks the applicant’s name against a confidential list of persons previously reported to BSA as “unfit.” If the individual’s name does not appear on the list, and he meets other requirements, the application is approved. In addition, a local troop can discharge a scoutmaster directly without any prior approval by BSA or the local council. The court found it significant that BSA had not been informed of the scoutmaster’s conviction on several counts of sexual molestation in Rhode Island. His name did not appear on the confidential list of persons previously reported to BSA as “unfit.” The scoutmaster was hired by the local troop in Virginia after two or three interviews. Neither BSA nor NCAC took any part in his selection. BSA was not informed of the scoutmaster’s pedophilia until after his arrest and criminal prosecution. The court concluded that there was “abundant evidence” to support the jury’s conclusion that BSA did not “hire or retain” the scoutmaster, and accordingly it could not be legally responsible for his behavior.

What is the significance of this case to churches and denominations? First, it illustrates that astronomical jury verdicts are not always awarded in cases of flagrant sexual assaults upon minors. Second, it demonstrates the difficulty sexual molestation victims have in successfully suing scouting organizations having no actual notice of a local scoutmaster’s previous misconduct. The court’s decision was based primarily on the ground that an organization cannot be legally responsible for “negligent hiring or retention” of an employee if it does not in fact have the authority to hire or retain the individual. However, it also noteworthy that the court was unpersuaded by the family’s argument that BSA “should have known” of the scoutmaster’s previous criminal convictions for molesting other scouts in another state. Why did the court reject this argument? It did not say. However, there are two plausible explanations. First, how could an organization conduct criminal records checks on 1.5 million volunteers (with an annual turnover rate of one-third), particularly when many law enforcement agencies remain unwilling to disclose this information? It would be logistically impossible. Second, why should an organization be put to such time and expense without some indication that an individual poses a risk of harm? After all, the vast majority of scouting volunteers pose no risk whatever. Many courts have ruled that criminal records checks are not necessary unless a job applicant poses some unique risk of harm to others. This simply is not the case with scoutmasters. Quite to the contrary, they provide a significant social benefit to millions. Of course, other courts may reach different conclusions. But the Virginia Supreme Court’s decision is a reasonable one, that hopefully will be given due consideration by other courts. Infant C. v. Boy Scouts of America, 391 S.E.2d 322 (Va. 1990).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m40 c0690

Legal Developments

Officers, Directors and Trustees – Part 2

Church Law and Tax 1989-11-01 Recent Developments Officers, Directors, and Trustees Richard R. Hammar, J.D.,

Richard R. Hammar, Attorney, CPA

Bio

State: Virginia
Categories: Officers, Directors, and Trustees

Church Law and Tax 1989-11-01 Recent Developments

Officers, Directors, and Trustees

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

• The Virginia Supreme Court was called upon to determine whether the term of office of a church’s trustees was one year or life. For nearly 70 years, the trustees of an Episcopal church’s endowment fund served life terms. A dispute then arose, and the church’s vestry sought a court ruling on the trustees’ term of office. The court concluded that the trustees’ term of office was one year on the basis of a provision in the Virginia nonprofit corporation law specifying that “in the absence of a provision in the articles of incorporation fixing a term of office, the term of office for a director shall be one year.” Since the court found no provision in the articles of incorporation (i.e., the corporate charter) “fixing a term of office,” it concluded that state law mandated a one-year term. In support of its conclusion, the court observed that “had the organizers intended to take the unusual step of providing life terms for trustees, they surely would have done so in unmistakable fashion.” It further noted that the articles of incorporation required “not less than three” trustees to be “vestrymen of the church.” And, since the terms of the church’s vestrymen were limited to three years, there were at least three trustees (at any given time) who could not serve life terms. The court found this to be “unmistakable evidence of the organizers’ intention not to fix the trustees’ terms of office at life.” Since no provision in the articles of incorporation specified a life term (or any other term), the nonprofit corporation law fixed the trustees’ term at one year. This case illustrates the important principle that questions of church administration may be resolved by state nonprofit corporation law if the church is incorporated under the general nonprofit corporation law and the church’s articles of incorporation do not address a particular matter. St. John’s Protestant Episcopal Church Endowment Fund, Inc. v. Vestry of St. John’s Protestant Episcopal Church, 377 S.E.2d 375 (Va. 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: m56 0689

Legal Developments

Employee Relations

Church Law and Tax 1989-09-01 Recent Developments Employment Practices Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Virginia
Categories: Schools

Church Law and Tax 1989-09-01 Recent Developments

Employment Practices

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

• Must a church pay overtime compensation to employees of a religious school? Yes, concluded a federal district court in Virginia. Here are the facts. Shenandoah Baptist Church (an unincorporated church located in Roanoke, Virginia) established a preschool and an elementary and secondary school in order to carry out its education ministry (which it described as its “total ministry”). Both the church and the government agreed that between 1976 and 1982 the church paid 91 non-teaching staff (i.e., custodians, bus drivers, bookkeepers, secretaries) hourly wages below the “minimum wage” prescribed by federal law. In deciding whether or not the federal minimum wage law applied to church school employees, the court referred to a test announced by the United States Supreme Court in 1979—federal legislation generally cannot be applied to churches if it would impose a “significant risk” of infringing upon the church’s constitutional guaranty of religious freedom unless Congress “clearly and affirmatively intended” such a result. The court conceded that application of the minimum wage law to church school employees might “pose serious constitutional questions,” but it concluded that Congress had “clearly and affirmatively intended” that such employees be covered and accordingly that such coverage was permissible. It referred to a 1966 amendment in the minimum wage law that specifically included the non-teaching staff of private schools within the coverage of the law. The court further observed that the church’s constitutional guaranty of religious freedom would not have been violated even if Congress had not clearly and affirmatively demonstrated its intention to include non-teaching staff of private schools within the coverage of the minimum wage law, since the government’s interest in “insuring that workers are paid a wage sufficient to provide for themselves and their families” was a compelling interest that “outweighed” the church’s interests. The court noted that the United States Supreme Court ruled in 1982 that Amish employers could be compelled to pay social security (FICA) taxes on their employees’ behalf even though such a practice would violate the employers’ religious beliefs. The Supreme Court conceded that paying the FICA taxes would “interfere” with the employers’ religious beliefs, but it concluded that the government’s interest in “assuring mandatory and continuous participation in and contribution to the social security system is very high” and in fact outweighed the employers’ interests. Similarly, the application of federal minimum wage law to the non-teaching staff of a church school would admittedly interfere with the church’s religious freedom, but “the government has a great interest in enforcing minimum wage laws uniformly” that outweighs the church’s interests. The court also ruled that the church had violated the federal “equal pay” law that requires employers to pay employees equal pay for equal work, regardless of gender. The church was ordered to pay $16,818 to the Department of Labor (to be distributed to employees who were not paid minimum wage) and $177,680 to the Equal Employment Opportunity Commission (to be distributed to employees whose pay violated the equal pay law). The court conceded that the church employees were free to return to the church any portion of their award that they chose, so long as their decision was voluntary. Further, the church was free to encourage employees to return their awards. But, employees not electing to return their awards could not be penalized by the church. The court’s decision is significant for its recognition that church school employees (other than teachers and administrators) are subject to federal minimum wage law despite a church’s claim that such coverage violates its constitutional right of religious freedom. The ruling will be of even greater impact if congressional efforts to increase the minimum wage succeed. Note, however, that the decision is restricted to the coverage of non-teaching staff at church schools. It says nothing regarding the coverage of church employees not associated with a private school. Further developments in this important case will be tracked in future issues of this newsletter. United States Department of Labor v. Shenandoah Baptist Church, 707 F. Supp. 1450 (W.D. Va. 1989).

Legal Developments

Freedom of Religion – Part 4

Church Law and Tax 1989-03-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Virginia
Categories: Freedom of Religion

Church Law and Tax 1989-03-01 Recent Developments

Freedom of Religion

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

• The Virginia Supreme Court ruled that a state Sunday closing law violated the Virginia Constitution’s prohibition against “special laws.” Virginia enacted its first Sunday closing law in 1610. During the colonial period, this law had a religious purposes, requiring every person “to repair in the morning to the divine service.” During the Revolutionary War, in 1779, a Sunday closing law was substituted that had an entirely “secular” purpose—to “prevent the physical and moral debasement which comes from uninterrupted labor.” The 1779 law survived until 1960, when the state legislature enacted a new law. In 1974, the legislature completely rewrote the Sunday closing law. The 1974 law generally prohibited commercial establishments to do business on Sunday, but exempted more than 60 “industries and businesses” from the prohibition, and permitted cities and counties to exempt themselves entirely from the law by a referendum vote. These exemptions left only about 20% of the Virginia workers subject to the law. Under these facts, the state supreme court concluded that the 1974 law violated a provision in the Virginia Constitution prohibiting “special laws” exempting private companies from the reach of any general law unless the exemption bore “a reasonable and substantial relation to the object sought to be accomplished by the legislation.” The court noted that the purpose of the law was to provide the people of Virginia with a common day of rest, and concluded that the exemption of 80% of the business and employees in the state from the reach of the Sunday closing law clearly indicated that the many exemptions did not bear a reasonable relationship to the object sought to be accomplished by the law. Accordingly, the law violated the ban on special legislation. The court further held that the Virginia law did not violate the United States Constitution’s guaranty of the “equal protection of the laws,” since such a standard was more easily satisfied than the state constitution’s “special laws” provision. Accordingly, other states will not be able to rely on the Virginia court’s decision unless their state constitutions contain a similar ban on special legislation. Benderson Development Co. v. Sciortino, 372 S.E.2d 751 (Va. 1988).

Legal Developments

Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1989-03-01 Recent Developments Personal Injuries on Church Property or During Church

Richard R. Hammar, Attorney, CPA

Bio

State: Virginia

Church Law and Tax 1989-03-01 Recent Developments

Personal Injuries on Church Property or During Church Activities

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

• The Virginia Supreme Court ruled that a church and its pastor can be sued by a mother whose child is sexually assaulted by a church employee. Here are the facts. In 1985, a mother sued a Baptist church and its pastor, alleging that her 10-year-old daughter had been repeatedly raped and assaulted by a church employee. She asserted that the church and minister were legally responsible on the basis of three separate theories. First, she claimed that the church and minister were liable on the basis of “negligent hiring”—i.e., they failed to exercise reasonable care in the selection of the employee. Specifically, she alleged that when the employee was hired, the church and minister either knew or should have known that he had recently been convicted of aggravated sexual assault on a young girl, that he was on probation for the offense, and that a condition of his probation was that he not be involved or associated with children. Despite these circumstances, the individual was hired and entrusted with duties that encouraged him to come freely into contact with children, and in addition was given keys to all of the church’s doors. The mother alleged that the employee in fact came into contact with her daughter on the church’s premises, and had sexual intercourse with her on numerous occasions. Second, the mother alleged that the church and its pastor were liable on the basis of their “negligent supervision” of the employee. Third, the mother alleged that the church and its pastor were legally responsible for her daughter’s injuries because of the their failure to warn parents of the employee’s previous criminal and sexual history. The church and pastor sought a dismissal of the suit, arguing that churches were immune from liability under Virginia law, and also that the employee’s probation and parole were controlled by the Commonwealth of Virginia and could not be delegated to a church. A trial court agreed with the church’s contentions, and dismissed the case. The mother appealed to the state supreme court, which ruled that the church and its pastor could be sued on the theory of negligent hiring. The theories of negligent supervision and failure to warn were not addressed by the court, since the mother’s attorney abandoned them on appeal. The state supreme court rejected the church’s contentions that the theory of negligent hiring either was not recognized under Virginia law, or was not recognized in the context of church employers. It cited earlier decisions in which it had recognized the theory of negligent hiring in the context of charitable employers. The court also rejected the church’s contention that it could not be responsible for criminal acts of employees: “To say that a negligently hired employee who acts willfully or criminally thus relieves his employer of liability for negligent hiring when willful or criminal conduct is precisely what the employer should have foreseen would rob the tort of vitality ….” The court also rejected the church’s claim that it could not be liable since the alleged conduct of its employee was not within the “scope of his employment”: “This argument demonstrates that [the church] is confusing the doctrine of respondeat superior with the tort of negligent hiring …. The two causes of action differ in focus. Under respondeat superior, an employer is vicariously liable for an employee’s tortious acts committed within the scope of employment. In contrast, negligent hiring is a doctrine of primary liability; the employer is principally liable for negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others. Negligent hiring, therefore, enables plaintiffs to recover in situations where respondeat superior’s ‘scope of employment’ limitation previously protected employers from liability.” Accordingly, the church’s contention that “proof that the misconduct was within the scope of the wrongdoer’s scope of employment is misplaced.” The court remanded the case back to the state trial court for a trial on the issue of negligent hiring. What activities on the part of the church would prevent a finding of negligent hiring? Unfortunately, the Virginia Supreme Court did not address this issue, other than to refer to earlier decisions in which it had concluded that (1) an employer need only exercise “due care in the selection and retention of employees,” and once this duty is discharged, it cannot be liable on the basis of “negligent hiring” for injuries caused by its employees, and (2) an employer was responsible for injuries caused by an employee who “got dangerously angry from slight provocation” since “no one made inquiry concerning his past record, habits, or general fitness for the position” (had it done so “it probably would not have offered [him] the job”). Clearly, churches should carefully screen any person who is applying for a position (whether compensated or volunteer) that will involve the custody or supervision of minors. Such screening should involve, at a minimum (1) verification of identity, (2) an application form that seeks information on the applicant’s previous church work and church membership, references, and any criminal convictions, (3) contacting of references and other churches with which the individual has been associated to determine his or her fitness for work with minors, and the making of written memoranda of those contacts, and (4) contacting the local social services agency to ascertain if the applicant has been convicted of any sex-related crime involving minors. This significant issue will be addressed more fully in a feature article in Church Law & Tax Report. J. v. Victory Baptist Church, 372 S.E.2d 391 (Va. 1988).

Legal Developments

Court Ruled That a Virginia Law Exempting Church-Operated Childcare Facilities from State Licensing Did Not Violate the Nonestablishment of Religion Clause

A federal appeals court ruled that a Virginia law exempting church-operated childcare facilities from state

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion, Tax Exemption

A federal appeals court ruled that a Virginia law exempting church-operated childcare facilities from state licensing did not violate the constitution's nonestablishment of religion clause. The law was enacted in response to the contentions of several churches that their religious beliefs would not permit them to apply for or accept a state license to carry out a function that they considered to be an integral part of their religious ministry.

A group of childcare providers without religious affiliation challenged the law in court on the ground that it placed them at an unfair competitive disadvantage. The appeals court upheld the validity of the Virginia exemption largely on the basis of the United States Supreme Court's decision (in Amos v. Presiding Bishop) upholding the exemption of churches from the prohibition of religious-based discrimination in employment.

The court quoted from the Amos decision: "A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to [violate the nonestablishment clause] it must be fair to say that the government itself has advanced religion through its own activities and influence." The Virginia law, concluded the appeals court, did not amount to an impermissible advancement of religion by the state. Rather, it was a permissible "accommodation of the exercise of religion."

The court, in rejecting the contention that a single exemption of church-operated facilities rendered the law invalid, again quoted from the Amos decision: "Where, as here, government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no need to require that the exemption comes packaged with benefits to secular entities."

The court also noted that "absent the exemption, some church leaders would immediately be forced to violate their convictions against submitting aspects of their ministries to state licensing, or face legal action by the state. This would be an unseemly clash of church and state which the legislature might well wish to avoid."

Finally, the court emphasized that the civil courts are not equipped to determine whether the operation of childcare facilities by a church is a secular or religious activity, and therefore they cannot reject a church's claim that such facilities promote its religious purposes. Forest Hills Early Learning Center v. Grace Baptist Church, 846 F.2d 260 (4th Cir. 1988)

Legal Developments

Court Concluded a Counselor’s Free Exercise of Religion Did Not Permit Him to Use Religious Counseling Methods

Can a juvenile court counselor be fired for using a "Christian perspective" in counseling emotionally

Richard R. Hammar, Attorney, CPA

Bio

State: Virginia
Categories: Counseling, Freedom of Religion

Can a juvenile court counselor be fired for using a "Christian perspective" in counseling emotionally disturbed adolescents? Yes, concluded a federal court in Virginia.

The counselor, who was a county employee, was discharged for his "stubborn insistence upon injecting his religious views into his counseling against the wishes of his superiors." The counselor sued the county, claiming that his discharge violated his constitutional right to religious freedom.

In rejecting this claim, the court observed that the counselor's right to exercise his religion was not absolute, but had to be balanced against the state's duty to avoid violating the first amendment's nonestablishment of religion clause and protecting the religious beliefs of others. The court concluded that "when the exercise of an individual's first amendment rights potentially violates free exercise rights of others or the mandates of the establishment clause, the individual's rights are not absolute. On the facts of this case, the court concludes that [the counselor's] constitutional right to the free exercise of his religion does not go so far as to permit him to use religious counseling methods against the orders of his superiors."

This conclusion was reinforced by the fact that the counselor was in a position of trust and his clients, "all of whom were young and many of whom were troubled, were a captive, impressionable audience." The court also observed that the counselor's behavior raised questions as to his suitability to work with emotionally disturbed youth. In particular, the court observed that the counselor had called one of his supervisors an "evil witch," encouraged clients to "go with The Force" (an allusion to the Star Wars films), and sent his superiors a letter accusing them of "crucifying the word and intention of the Lord as it was acting through him" (a copy of this letter was sent to President Reagan, Pope John Paul, and Billy Graham).

This case illustrates the danger of using government employment to engage in proselytizing. Cases upholding the legality of government chaplains serving the military, prisons, and tax-subsidized hospitals have similarly suggested that active proselytizing may raise questions as to the legality of such positions.

Langlotz v. Picciano, 683 F. Supp. 1041 (E.D. Va. 1988)

Legal Developments

A State Unconstitutionally Burdens the Free Exercise of Religion Whenever it “Forces a Worker to Choose Between Fidelity to Religious Belief or Cessation of Work”

A federal district court ruled that the denial of unemployment benefits by the state of

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion

A federal district court ruled that the denial of unemployment benefits by the state of Virginia to a woman who quit her job to accompany her husband to another community in order to care for his aging mother violated her constitutional right to freely exercise her religion.

Specifically, the woman argued that the tenets of the Holiness religion required her to respect her husband's decision to move, to live with her husband, to care for her mother-in-law, and to raise her children in conjunction with her husband.

The state denied unemployment benefits on the basis of a law denying benefits to anyone who voluntarily quits work "to accompany or join his or her spouse in a new locality." The court concluded that a state unconstitutionally burdens the free exercise of religion whenever it "forces a worker to choose between fidelity to religious belief or cessation of work." Austin v. Berryman, 670 F. Supp. 672 (W.D. Va. 1987)

Legal Developments

Operation of a Childcare Facility, Even By a Church, Is a Secular Activity

A federal district court in Virginia held that state licensing of church-run childcare facilities to

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Child Abuse Reporting, Freedom of Religion, Schools

A federal district court in Virginia held that state licensing of church-run childcare facilities to certify compliance with health, safety and welfare standards would not burden a church's free exercise of religion.

The court concluded that "the operation of a childcare facility, even by a church, is a secular activity not entitling it to free exercise protection." Even if such as activity were deemed to be religious, the state's licensing requirements would be justified on the basis of the state's compelling interest in protecting the health and safety of small children.

The court also rejected the contention that church-run childcare facilities should be exempted from the law's financial disclosure requirements, prohibition of corporal punishment, child abuse reporting requirement, and program content requirements. Forest Hills Early Learning Center, Inc. v. Lukhard, 661 F. Supp. 301 (E.D. Va. 1987).