Category: Uncategorized

COMPELLING GOVERNMENT INTEREST IS ALWAYS COMPELLING – ESPECIALLY WHEN IT IS ABOUT TRAFFIC

There is nothing more annoying than when a statute passed to remediate a wrong is simply defined out of existence by judicial fiat. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq is such a statute. The statute sets forth:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that the imposition of the burden . . . (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

One would think the word “compelling,” the word “and” and the word “least” are simple and clear. But, not so in the United States Court of Appeals for the 6th Circuit. In the 6th Circuit, in Livingston Christian Schools v Genoa Charter Township, Slip. Op. (6th Cir. 2017), it took 22 pages to sweep these three words out of the way.

In order to deny a church and a religious school a “special use permit” for the school, the governmental interests that were compelling were: traffic, that the church, not the school because it was a separate entity leasing space from the church, had a “history of failing to comply with its previous special-use permits” by being “disruptive,” and “inconsistency with the single family residential zoning of the surrounding area.” Compelling these reasons were not by any rational view.

The 6th Circuit has a history of religious organization hostility and proudly recited it in the opinion. For example, the 6th Circuit held in 2007 that denying a building permit so a church could build a multi-purpose building including a gymnasium was a “mere inconvenience” and not a “substantial burden.”

In the Livingston Christian Schools opinion, the 6th Circuit held that the school had another piece of property available to it that was only 12.1 miles from the subject property. In other words, parents would have to drive in the morning and in the afternoon 25 miles to cover the round trip during the high traffic times of the day in a suburban traffic setting. (In Oklahoma City, where I am located, we only have rush thirty minutes but my friends on both coasts are envious.) I rather suspect that if the traffic was as compelling a governmental interest as the 6th Circuit held it to be, then that mileage would have strangled the school in short order. The court noted the school had 139 students before its move to the church property, might have had 190 afterwards, but with the uncertainty of location looming because of the permit denial, might have an uncertain future. That was not, however, “substantial.”

The 6th Circuit was critical of the school for not providing financial records or enrollment records to prove the necessity of its move to the church property it wanted to lease. Given the enrollment noted above, it is surprising the school had sufficient resources to litigate at all, much less appeal.

PAROCHIAL SCHOOLS AS RELIGIOUS ORGANIZATIONS

It would almost seem counterintuitive to suggest that a parochial school is not a religious organization. The parochial school may be required to teach secular courses to comply with educational or even accreditation standards but unless there is no significant religious component in the curriculum it would seem unreasonable to view it as secular and not parochial. Nevertheless, the issue seems to be on the table more than it should be.

In Miriam Grussgott v Milwaukee Jewish Day School, Inc., Order, (ED Wisc. 2017), the Plaintiff attempted to persuade the federal court that an Americans with Disabilities Act claim applied to a parochial school. The Court rejected the claim and entered summary judgment for the parochial school under the Ministerial Exception of the First Amendment. The Court found that the plaintiff, as a teacher of Hebrew to second and third graders, was a ministerial employee. While the plaintiff argued the Hebrew language was merely cultural and historical, the parochial school claimed it was religious in nature because of inherent symbolism and other attributes. Also, the parochial school was able to prove the plaintiff taught Jewish religious rites to the elementary age school children. The Court refused to put a stopwatch to these duties to determine which predominated in the schedule or the curriculum. While the plaintiff was not ordained or certified by an ecclesiastical body, plaintiff admitted “teaching a great deal about Judaism and specifically that her role was closely linked to Defendant’s Jewish mission.” That admission would seem to end the dispute as to whether her role was subject to the Ministerial Exception.

One interesting aside in the opinion was that the plaintiff asserted the school’s employment manual contained an anti-discrimination clause that expressly forbade religious discrimination. In other words, the plaintiff claimed the Ministerial Exception had been overridden by the contractual nature of the manual. The Court held: “This single provision of the Manual cannot stem the tide of other evidence cited above demonstrating Defendant’s religiosity. Defendant unquestionably qualifies as a Jewish religious organization.”

Lessons for parochial schools may include assuring that their own employment manual does not create an exception to the Ministerial Exception in their region by its wording. It might also mean that it is good practice to carefully describe in the manual the overriding religious duties of the role of teacher, regardless of educational discipline or expertise, in the religious school so that there is no reasonable dispute about the nature of the position. Assumptions do not play well as evidence.

INVOLUNTARY PASTOR RETIREMENT

Most pastors at some point in their lives begin planning retirement and grooming a successor or teaching leaders how to search for one. Sometimes, however, someone else wants to impose retirement on the pastor. In churches that have a high turnover among their pastors, this presents no problem because the revolving door solves the problem. But, when a pastor has been on station a long time, and is not ready to step aside even though someone wants the pastor to do so, disputes arise.

In Gregorio v Hoover, Memorandum Opinion (DDC 2017), the denominational foundation loaned money to the local church and the denomination co-signed. The church in a side contract agreed to pay the loan and the denomination agreed to hold legal title until the loan was repaid or refinanced. Once the loan was retired, the denomination was expected to transfer legal title to the local church corporation. The payments were timely made by the local church and the loan was retired. The local church had no turnover in the position of pastor. The denomination paid a small stipend to the pastor but his income was for the most part earned from the local church. Two decades passed. The denomination stopped paying the small stipend to the pastor. Three years later the denomination advised the pastor of the local church he would retire because the denomination wanted to appoint “younger people” to take his place. The pastor declined and suggested the denomination had no authority to appoint or terminate the pastor of that particular local church. The denomination locked the pastor out.

The pastor withdrew the age discrimination claim probably because the pastor had not exhausted administrative remedies by filing a complaint with the federal EEOC and obtaining a right to sue letter. However, because the pastor was the founding pastor of the local church, the local church’s corporate identity was and had always been owned and controlled by the pastor. Thus, the pastor was able to keep his claim alive by suing the denomination for failing to transfer legal title after the loan was repaid. The pastor was able to make a breach of contract claim also because the promised small stipend was two years in arrears after being paid for nearly two decades. The Ministerial Exception does not override a contract damages claim, even if it might not allow a court to compel reinstatement. Finally, the pastor asserted a claim against the denomination for unjust enrichment because the legal title was not transferred.

The success or failure of these particular claims lies in the future but there are lessons to learn from this order overruling the denomination’s motions to dismiss. Denominations that have longstanding engagements with pastors should review the governing documents, including real estate titles, to make certain current denominational retirement policies are reflected and that a retirement strategy has been agreed upon. A financial incentive to obtain agreement with updated governing documents will almost always be cheaper than litigation. A contract will often be enforced at least as to money damages. Contracts are enshrined in Article 1, Section 10 of the United States Constitution, co-equally with the First Amendment, which is why the Ministerial Exception or the Ecclesiastical Abstention Doctrine may not eclipse the contract.

FIRING THE ORGANIST

Federal employment laws do not apply to ministers pursuant to the Ministerial Exception Doctrine. The label “Ministerial Exception Doctrine” refers to a branch of decisions arising under the First Amendment. It is a subset of the Ecclesiastical Exception Doctrine. The Ecclesiastical Exception Doctrine is an outgrowth from the Establishment Clause of the First Amendment. The Ministerial Exception Doctrine generally prohibits a court from exercising jurisdiction over the employment of ministers (which includes, of course, pastors, priests, and many other titles). The problem remaining is identifying the duties in churches that are equal to or equivalent to ministers in such a way as to trigger the Ministerial Exception Doctrine.

Many religious organizations have tried labeling their employees, all of them, as “ministers” or describing their jobs to include one or more typically ministerial duties. The scope of the Ministerial Exception Doctrine was confirmed in Hosanna Tabor Evangelical Lutheran Church & Sch. v EEOC, 565 U.S. 171 (2012). In Hosanna Tabor, the employee was a religious school teacher that had ministerial duties such as teaching religion classes. But, the outer perimeter of the Ministerial Exception Doctrine remains fuzzy.

In Sterlinski v The Catholic Bishop of Chicago, Memorandum Opinion and Order (ND ILL. ED 2017), the Plaintiff was demoted from the position of Director of Music. There was no viable claim based solely on the demotion because the position of Director of Music was held to be a ministerial position. The position was found to be ministerial because the Director of Music was responsible for selecting the liturgical music, holding practice for the church choirs, church management activities and representing the church at denomination level music committee meetings. Claims for the firing were dismissed. The holding that a Director of Music was sufficiently ministerial to trigger the Doctrine was to be expected.

But, Plaintiff was demoted from the full time position of Director of Music with the aforementioned duties to a part-time position as organist. As a part-time organist, Plaintiff did not seem based on the record before the Court to have discretion over worship or other religious activities. Indeed, the Court mused that if the part-time organist merely played what was assigned by someone else, the position might no longer be sufficiently ministerial to trigger the Doctrine. Because the record did not appear sufficiently developed to fully describe Plaintiff’s actual duties as part-time organist, the Court refused to dismiss the firing claims and ordered the parties to conduct discovery limited to the duties of the part-time organist.

One lesson to be derived is that in employment decisions, mercy will be punished. If the Plaintiff had been fired while employed as Director of Music, no claim would have remained due to the Ministerial Exception Doctrine. Another lesson is that churches should not expect the secular world to understand that public worship musicians and vocalists “set the stage” for preaching and are as important in worship. That they do not is surprising because there are similar situations such as a professional baseball game that without an organist, at least during the “7^th inning stretch” might be disquieting or like a rock concert without drums. A final lesson is that the employment relationship rarely survives partial measures like a demotion from full time to part-time or a substantial reduction in authority. A clean break is usually better.