Tag: para-church organizations


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.


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.


Often corporations and businesses do not update their registered agent’s name and address, typically with the Secretary of State of the state in which the principal place of business is located, so it is no surprise churches and non-profit entities fail to do so.  This is especially true when a founder or long time business manager for a non-profit entity or a church dies or retires.

An example of this is found in Fernwalt v Our Lady of Kilgore, 2017 Ohio 1260 (Ohio App. 2017).  This is such a strange little case that detecting the legal principles is hard due to the distractions.

Apparently, Fernwalt found himself “a fugitive of the law” and “attempting to leave the country and flee to Canada.”  The opinion does not explain this tantalizing fact further.  But, Fernwalt decided he could trust a priest named Steger and he transferred title to property to Steger.  Good to his word, Steger transferred the property title out of Steger’s name and into the ownership of a non-profit corporation Steger created called Our Lady of Kilgore.  Steger was the pastor of a church from which he resigned about a decade after the title transfer and then promptly died.  A second decade passed and Fernwalt returned to reclaim title to his property.  The opinion does not explain the triggering event that brought Fernwalt back.  Fernwalt filed a lawsuit against Our Lady of Kilgore, the non-profit entity, to recover his property title.  Fernwalt served the papers at the last address on file for Steger as the registered agent, which was the church he pastored a decade earlier.  The church rejected the service and no one forwarded the papers.  Fernwalt took a default judgment.

In the nick of time, Steger’s successor corporate officer found out about the lawsuit and moved to set aside the judgment.  The trial court refused to set aside the judgment but the appellate court reversed the trial court.

Some jurisdictions would not have been so forgiving, and even then in this case it took an appeal to reverse the judgment.  It is possible that due to a procedural error in entering the judgment, it would have been considered null and void and had to be reversed in any event.  Thus, the reversal of the judgment might not have occurred without the defect in entering the judgment.

In other words, do not risk it.  Make sure the church has a registered agent and that the registration is current and on file with the appropriate authorities…and do it now!


While the Ecclesiastical Abstention Doctrine and the Ministerial Exception are both clearly understood with regard to churches and denominational organizations, the question whether and how far those doctrines radiate away from churches to para-church organizations seems perennial and persistent.  For example, is a Bible College, seminary, or similar training school for ministers, pastors, priests and other clergy out of the reach of civil courts?  If yes, just how far outside of the reach of civil courts are they?  Some courts seem to be intent on using a microscope to study the boundary between the inside of these doctrines and their outer perimeters.  But, not so Ohio.

In John Doe v Pontifical College Josephinum, Slip Op. (Ohio App. 2017), Mr. Doe was a year from graduating with a Masters in Theology from a school that trained students for the Roman Catholic priesthood.  Mr. Doe was dismissed from the school for sexual conduct and his dismissal was the subject of a posted notice on the campus.  The dismissal was part of the school’s disciplinary process.

Mr. Doe’s lawsuit was dismissed because the court held the claims of Mr. Doe were inextricably intertwined in the disciplinary process which the court held was shielded under the Ecclesiastical Abstention Doctrine.  While that decision was not “news,” Mr. Doe claimed the school breached its contract with him as set forth in the school policies and handbooks regarding access to his records and violated federal educational privacy law by posting the notice.  He wanted to use his records in a canon law appeal.  The court dismissed these claims, too, because the court in order to hear these claims could not avoid reviewing the disciplinary process to determine if the notice arose from the ecclesiastically driven disciplinary process.  Mr. Doe demanded money damages alleging the school was unjustly enriched by being allowed to keep his tuition and fees but the court dismissed the claim because in order to determine whether there was unjust enrichment would require inquiry into the disciplinary decision’s ecclesiastical validity.