Author: churchlitigationupdate

PARACHURCH ORGANIZATION RELIGIOUS LIBERTY BATTLES

Churches and their immediate offspring for the most part won their freedom from government control of their employment relationships. Our Lady of Guadalupe School v Morrissey-Berru, ___ US ___, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020) laid to rest the “confusion” that certain courts seemed to have about the scope of the Ministerial Exception. Basically, faculty at church schools will rarely be considered outside of the scope of the Ministerial Exception. However, religious non-profit organizations are now the targets of those that believe that religious beliefs must be abandoned as a lesser civil right deserving of less protection.

In Woods v Seattle’s Union Gospel Mission, Slip Op. (Wash. En Banc, 2021), the parachurch organization focused on the needs of the homeless. As part of that outreach, the organization offered “legal aid” services. Plaintiff signed a statement of faith as a law school intern and then later sought employment when a staff attorney position opened. However, Plaintiff alleged he was not hired because he disclosed he was in a same sex relationship. The State of Washington’s employment discrimination statute exempted religious nonprofit organizations from the definition of “employer.” However, the clarity of the statutory language, though it was not held unconstitutional on its face, was not enough to decide whether the statute applied to the Plaintiff. The appellate court reversed and remanded the case for a determination whether the Ministerial Exception applied to the position of “legal aid” lawyer in a religious nonprofit providing services to the homeless.

Parachurch organizations may have to withdraw from “secular” service provision and abolish those employment relationships, at least in some states, to avoid being forced to accommodate employee actions that are contrary to a morals clause or other similar government or court imposed employment policy. Until religious beliefs are respected as constitutionally protected on an equal level with other constitutional rights, there will be jurists that will demand second-class status for religious believers. The alternative would be for parachurch organizations to place at risk their donor base and their religious beliefs or messages to comply.

THERE IS NO MIDDLE

The United States Supreme Court decision in Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020) (Our Lady of Guadalupe), left open the possibility that a Christian parachurch organization might have employment relationships that are not subject to the Ecclesiastical Abstention Doctrine or the Ministerial Exception. A determination that such employment relationships exist in a parachurch organization brings, as to that particular employee, the applicability of state and possibly federal employment laws.

In DeWeese-Boyd v Gordon College, Slip Op. (Mass. 2021), the non-denominational Christian fine arts college failed to promote the Plaintiff to the academic rank of full Professor. The Plaintiff sued and alleged gender discrimination and retaliation for “vocal opposition to Gordon’s policies and practices regarding individuals who identify as lesbian, gay, bisexual, transgender, or queer (or questioning), and others (LGBTQ+ persons)…” The appellate Court affirmed the trial court’s decision that the Defendant was a religious institution even though it was not part of a denomination. But, the Court struggled with “the most difficult issue for us is how to evaluate her responsibility to integrate her Christian faith into her teaching and scholarship as a professor of social work.” The Court held that the “duty to integrate her teaching and Christian faith” imposed on her by her employer did not make her sufficiently ministerial to trigger the Ministerial Exception and held that she could pursue a state law claim for discrimination and retaliation. The Court was silent on how the trial court might determine whether the “integration” duty and the employer’s evaluation of Plaintiff’s compliance was subject to the Ecclesiastical Abstention Doctrine.

Because the Plaintiff’s claim was about a promotion, which might have been denied for any number of reasons and only the development of a trial record might make identification of the actual reasons definite, resolution might be determined by economics rather than any sort of righteous indignation. After all, Plaintiff was not fired so Ecclesiastical doctrine or beliefs might or might not have weighed much. Donors might not have been influenced either way. But, being neither beast nor foul, being as much secular as religious, might mean that in reality the Defendant was not sufficiently ecclesiastical to make its faculty ministerial. Fully ecclesiastical parachurch organizations typically do not seek accommodation with secular beliefs unless those secular beliefs are no long secular or no longer verboten.

SOMETIMES FREE SPEECH

Because youth pastors and leaders frequently are asked by young energetic believers what rules apply to the expression of religious belief in various settings, today we will step slightly outside the lane in which these reports generally stay. Young believers are required to attend school, and school order and discipline must be maintained, but even there the First Amendment reaches within reasonable time and place restrictions. On college campuses, one might expect fewer time and place restrictions outside of classrooms because many students reside on campus. However, suppression of First Amendment rights are sometimes more prevalent on college campuses. Discouragement of speech that is contrary to certain sensibilities gets the worst treatment.

In Uzuegbunam v Preczewski, Slip Op. (US 2021), the United States Supreme Court reversed the 11^th Circuit and the trial court. The issue the opinion primarily dealt with was whether a claim for nominal dollar damages, rather than compensatory damages, could alone preserve standing to pursue a First Amendment rights claim. The Court held that standing to sue was preserved by a claim for nominal damages. The Plaintiff was a student at Georgia Gwinnett College, a “public college,” and decided to “witness” or share his faith on campus. The Plaintiff did so and had tracts to hand out, too. But, campus law enforcement made him stop. The college policy permitted free speech activities on .0015 percent of the campus by allowing it only two designated free speech zones, and then only after securing the necessary permit from the administration. The Plaintiff applied for the permit and received it. The Plaintiff went to the free speech zone and began speaking and tracting during the time allowed by his permit. Campus law enforcement told him to stop. The policy also prohibited speech that “disturbs the peace and / or comfort of person(s).” Plaintiff was informed that there had been complaints about his speech which triggered the policy. Initially, the college defended the claim alleging the Plaintiff’s speech constituted “fighting words” but “quickly abandoned that strategy.” The college abolished the policy. The trial court and 11^th Circuit held the case was thereafter moot and dismissed it. However, as noted above, because the Plaintiff sought “nominal damages” in addition to injunctive relief, the lawsuit could not be dismissed. The lone dissent suggested that if the college allowed a stipulated judgment for nominal damages in the case, the case would end without further proceedings.

Reasonable time and place restrictions on speech may be enforceable but draconian restrictions intended to suppress free speech are not enforceable. The youth pastor or leader needs to ask the student to obtain a copy of their student handbook which usually contains the rules. The opinion was silent on the issue of attorney fee awards to the Plaintiff. That is the real financial risk in a civil rights case because the damages sought are almost always going to be nominal, impossible to quantify, or in the proof only modest amounts. Dismissal ended that risk in the reported case. On remand to the trial court, especially after a successful appeal to the United States Supreme Court, an expensive type of appeal, that risk might be resurrected.

CHURCH PROPERTY REVERSION

Denominational church property reverts to the denomination if the local church ceases to exist or becomes no longer viable. That is because most denominations include reversionary clauses in their organizational documents. Local churches often also have such reversionary clauses in their organizational documents. Not all deeds to property contain reversionary clauses.

In Central/Southern Illinois Synod of the Evangelical Lutheran Church in America v Trinity Lutheran Church of Kankakee, 2021 IL App 3d 190292-U, the appellate court affirmed summary judgment in favor of the denomination under the organizational document reversionary clause even though the property deed contained no reversionary clause. The membership of the local church had dwindled to a dozen and the denomination had provided $400,000 in subsidies. When a member of the local church changed the locks on the building and locked out the pastor appointed by the denomination, and rented the building to another church, the denomination invoked the reversionary clauses in the organizational documents.