United States: Religious Institutions: September 2015

Lex Est Sanctio Sancta

Nathan Adams IV is a Partner in Holland & Knight's Tallahassee office

Timely Topics

Respondeat superior (literally, "let the master answer" in Latin) is a doctrine that applies when an employer or principal has the ability and authority to direct and control the pertinent acts of the employee. Put otherwise, the doctrine holds a master legally responsible for the wrongful acts of an employee or agent if the acts occur within the "course and scope" of the employment or agency. To judge what is within the course and scope of employment, courts examine if the act is of the kind the agent is employed to perform; occurs substantially within the time and space limits authorized or required by the work to be performed; is activated, at least in part, by a purpose to serve the master; and if the employer knows or should know the agent is a threat to others. The application of these prongs has been at the heart of the sexual misconduct litigation affecting the church, where the question has been whether a minister who enters into a sexual relationship with a minor or adult during counseling is acting within the course and scope of employment. The misconduct is contrary to church policy, but to decide if it is within the course and scope of employment courts have also paid attention to, for example, whether background checks were completed, complaints of misconduct were ignored, where the misconduct occurred (e.g., on campus or off campus), and how minor the deviation was from the work routine. Of course, the doctrine has much broader application than to ministerial misconduct such as to whether the employer is responsible when staff on a work-related trip is negligent or a volunteer carrying youth to a school event has an accident. Employers may minimize this liability through background checking and careful planning, including delineating the course and scope of the agent's assignment. For more on the application and implications of respondeat superior doctrine, please feel free to contact us.

Bakery Violated Colorado's Public Accommodations Law

In Craig v. Masterpiece Cakeshop, Inc., No. 14CA1351, 2015 WL 4760453 (Colo.App. Aug. 13, 2015), the court upheld application of Colorado's public accommodation law to a bakery and its owner who would not create a wedding cake for a same-sex wedding because, as a Christian, the owner believed he would displease God. The defendants offer other baked goods to gay persons, which the defendants said underscored that they had not refused service "because of" the couple's sexual orientation, as opposed to their same-sex marriage. The court rejected the distinction based on "conduct closely correlated with that status." The court also rejected the defendants' free speech and free exercise defenses. The court ruled that the defendants' conduct was not sufficiently expressive as to trigger First Amendment protection; it said: "[I]t is unlikely that the public would view Masterpiece's creation of a cake for a same-sex wedding celebration as an endorsement of that conduct. Rather, we conclude that a reasonable observer would understand that Masterpiece's compliance with the law is not a reflection of its own beliefs." The court distinguished cases involving more expressive speech where a bakery refused to create bible-shaped cakes inscribed with the message, "Homosexuality is a detestable sin." Also, the court concluded that Colorado's public accommodation law was a neutral law of general applicability consistent with the free exercise clause notwithstanding exemptions for religious institutions and places that restrict admission to one gender. Consequently, the court ruled that the law must merely have a rational basis, which the court ruled it did. The court affirmed a cease and desist order requiring the bakery to take remedial measure, including comprehensive staff training and alteration to the company's policies to ensure compliance with Colorado's public accommodation law and to file quarterly compliance reports for two years.

Clerk of Court Enjoined to Issue Marriage Licenses

In Miller v. Davis, No. 15-44-DLB, 2015 WL 4866729 (E.D. Ky. Aug. 12, 2015), the court granted a preliminary injunction against the defendant in her official capacity as Rowan County Clerk, preventing her from applying her "no marriage licenses" policy to future marriage license requests submitted by the plaintiffs. The defendant announced that her office would cease awarding marriage licenses to any person, heterosexual or homosexual, upon the U.S. Supreme Court's ruling in Obergefell v. Hodges, 135 S.Ct. 2584 (2015). Following the decision, Gov. Steve Beshear issued a directive announcing that Kentucky would now recognize all same sex marriages and suggested that any public official who could not perform his or her duties should resign. The defendant, an Apostolic Christian, views issuance of the license as an endorsement of same sex marriage contrary to her religious beliefs and argued that Gov. Beshear's directive violates her free exercise and free speech rights. The court disagreed. First, the court ruled that she had no First Amendment right acting in her official capacity not to issue the licenses. Second, the court disagreed that issuing the licenses was a type of symbolic speech or governmental speech, not her personal speech. Third, the court ruled that the governor's directive was neutral and generally applicable. Fourth, the court ruled that any burden on the defendant's religious expression was minimal because she was only being asked to signify that couples meet the legal requirements to marry. Moreover, the court ruled that Davis' refusal to issue any marriage licenses significantly interfered with the fundamental right to marry, notwithstanding that couples could go to surrounding counties for licenses or ask the court to deem Davis "absent," thus, entitling judges in the same county to issue them.

RFRA Does Not Afford a Bivens Remedy for Damages

In Tanvir v. Lynch, No. 13-cv-6951, 2015 WL 5164869 (S.D. N.Y. Sept. 3, 2015), plaintiffs brought suit to remedy alleged violations of their constitutional and statutory right under the Religious Freedom Restoration Act (RFRA) arising from the government allegedly placing or maintaining their names on its "No Fly List" when they declined for religious reasons to serve as informants for the Federal Bureau of Investigation (FBI). The plaintiffs sought damages against the agents concerned under RFRA, which provides a person whose religious exercise has been burdened to obtain "appropriate relief against the government." The court ruled that this phrase should be understood as relief appropriate for claims under the Free Exercise Clause. The court observed that the United States has not found an implied damages remedy under the Free Exercise Clause and has declined to extend a remedy under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) sounding in the First Amendment. The court concluded: "Congress' intent in enacting RFRA could not be clearer: It was to restore Congress' understanding of the compelling interest test as it existed under Smith – no more, no less. And '[b]ecause Congress enacted RFRA to return to a pre-Smith world, a world in which damages were unavailable against the government, 'appropriate relief' is most naturally read to exclude damages against the government."

"Places of Worship" Law Facially Constitutional, But Church States Claim as Applied

In Roman Catholic Diocese of Rockville Centre, N.Y. v. Incorporated Village of Old Westbury, No. 09-cv-5195 (PKC), 2015 WL 5178126 (E.D. N.Y. Sept. 3, 2015), the court ruled facially constitutional the defendant's "Places of Worship" (POW) zoning law, but ruled that plaintiff stated (1) an as-applied constitutional challenge to POW; (2) a substantial burden claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA); (3) a free exercise claim; (4) a section 1983 retaliation claim; and (5) a section 1983 unlawful search claim. POW permits places of worship in certain residential districts as a special exception, upon approval of the village board of trustees. The plaintiff argued that POW is not neutral because it explicitly conditions zoning restrictions on whether the facility is a "place of worship," but the court ruled that the correct analysis is not whether religion is mentioned in an ordinance, but whether POW has a secular meaning. Consequently, the court ruled POW facially constitutional, but also ruled that the plaintiff stated a claim that, as applied, it may violate constitutional and statutory rights; for example, by requiring the defendant to renew its special exception permit every five years the defendant could not convey a permanent burial spot. The court found that the defendant stated a "substantial burden" claim under RLUIPA, but not an "equal terms claim" by failing to identify a nonreligious assembly or institution that was treated more favorably. The defendant stated a free exercise and retaliation claim based upon a dispute of fact whether the village had a retaliatory motive after the plaintiff pursued litigation over the handling of the plaintiff's permit application, but not an equal protection claim for lack of evidence of impermissible bias or that religion was a substantial or motivating factor for the village's action.

Non-Religious Organization Opposed to Abortifacients Enjoins Contraceptive Mandate

In March for Life v. Burwell, No. 14-cv-1149 (RJL), 2015 WL 5139099 (D.D.C. Aug. 31, 2015), the court enjoined the statutes and regulations requiring a health insurance issuer to include contraceptive coverage in the plaintiffs' health insurance plans under the Equal Protection Clause and RFRA, its health insurance issuer, and the insurance issuer of the individual plaintiffs. March for Life does not qualify for any religious exemption because it is not religious and not a church. As a result, the defendant argued that it is not "similarly situated" to the exempted organizations and has no equal protection claim. The court disagreed; it considers the plaintiff identically situated with regard to the precise attribute selected for accommodation; namely, opposition to alleged abortifacients. In contrast to their employer, the individual plaintiff-employees assert that the mandate violates their religious beliefs against participating in a health insurance plan. The court agreed that the mandate has a tendency to coerce them to act contrary to their religious beliefs, and disagreed that the government has used the least restrictive means to serve the government's interest in the mandate. Based on a prior appellate court ruling in the same circuit, the court dismissed exclusively the plaintiff's free exercise claim on the ground that the mandate is neutral and generally applicable.

Religious Exemption in Affordable Care Act Upheld

In Grace Schs. v. Sylvia Mathews Burwell, No. 14-1430 & 14-1431, 2015 WL 5167841 (7th Cir. Sept. 4, 2015), the court ruled that requiring not-for-profit organizations that are not exempt from the contraceptive coverage mandate contained in the Affordable Care Act (ACA) as religious employers to notify the government of their objection to the mandate does not substantially burden their religious exercise; the mere existence of a contract between the religious employers and health insurers and third-party administrators to provide health insurance without any contraceptive coverage does not make the employers complicit in the provision of contractive services arising from the mandate; and the different means for extricating the churches and their integrated auxiliaries and affiliated religious employers from the mandate does not substantially burden their religious exercise. Judge Manion dissented.

In Little Sisters of the Poor Home for the Aged v. Burwell, No. 13-1540, 14-6026, 14-6028, 2015 WL 5166807 (10th Cir. Sept. 3, 2015), the Tenth Circuit denied en banc review of a similar decision. Five judges dissented (Hartz, Kelly, Tymkovich, Gorsuch and Holmes), saying, "When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person's free exercise of religion." The dissent accused the panel majority of improperly reframing the plaintiff's beliefs or, alternatively, distinguishing between their core and less important "derivative" beliefs.

In Cutler v. U.S. Dep't of Health and Human Servs., No. 14-5183, 2015 WL 4772705 (D.C. Cir. Aug. 14, 2015), the court ruled that the plaintiff, neither a member of a religious group that qualifies for a religious exemption nor religiously opposed to obtaining insurance, failed to state a claim that the ACA violates the Establishment Clause by exempting persons in one of these groups but not him despite his opposition to the ACA on secular grounds. The court found that government may accommodate religious practices without violating the Establishment Clause and that the qualifications for the exemption are narrowly drawn and not drawn on sectarian lines.

Stipulation Enabling Insurer to Forego Segregating a Portion of Complainant's Premium for Abortion Services Prevents Injunction

In Howe v. Burwell, No. 2:15-cv-6, 2015 WL 4479757 (D. Vt. July 21, 2015), the plaintiff claimed that his insurer is forcing him to pay for non-federally funded (NFF) abortion services as required under the ACA contrary to his genuinely held religious beliefs. The evidence established that every health insurance plan offered provides coverage for NFF abortion services. The court denied the plaintiff the injunction that he sought once the federal defendants stipulated that they are willing to forego requiring an insurer which agrees to insure the plaintiff from segregating any portion of his payment for the NFF abortion account. The court allowed the part of the plaintiff's claim under RFRA seeking this remedy and a declaration that he is entitled to a religious accommodation, but dismissed the plaintiff's (1) Vermont Constitution claims against state defendants based on the Eleventh Amendment; (2) free exercise claim because the ACA is neutral and generally applicable; and (3) free speech claim.

Religious Institutions in the News

Supporters and opponents of allowing faith-based organizations that partner with the federal government to take religion into account when hiring are urging different positions on President Obama.

The White House has proposed rules on faith-based social service programs administered by nine federal agencies. For each agency's rule, click on the links at the bottom of this White House Web page.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.