United States: Religious Institutions Update: March 2016

Lex Est Sanctio Sancta

Nathan "Nate" A. Adams IV is a Partner in our Tallahassee office.

Timely Topics

The death of U.S. Supreme Court Associate Justice Antonin Scalia will have an uncertain effect on religious institutions. Justice Scalia delivered the majority opinion in Employment Div. v. Smith, 494 U.S 872 (1990), in which the court abandoned strict scrutiny when laws that are neutral and generally applicable infringe religious expression. Most anti-discrimination and public accommodation measures fall into this category. After Smith, laws violate the Free Exercise Clause in more limited circumstances, such as in the event of discrimination against persons on grounds of religion. In the wake of Smith, when neutral and generally applicable laws impact religious exercise, plaintiffs are left with statutory religious claims under federal and state Religious Freedom Restoration Acts (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Congress enacted these laws in reaction to Smith. Justice Scalia has interpreted RFRA broadly, most recently in Burwell v. Hobby Lobby, 573 U.S. (2014), where the court ruled that the contraception mandate contained in the Patient Protection and Affordable Care Act violated strict scrutiny as applied to a for-profit, closely held corporation. Oral arguments are scheduled for March 23 in the latest RFRA challenge to the contraception mandate. Some think that without Justice Scalia, this case could be lost or split 4-4 or via plurality. Whereas some argue that Justice Scalia shrank constitutional protections for religious exercise, he consistently weakened separationism under the Establishment Clause. For example, he joined the majority decision finding school vouchers constitutional in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), and he also supported public displays of religion on public property and legislative prayer. Justice Scalia also joined the majority in Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000), in which the court found that the constitutional right to freedom of association allows a private organization to exclude a person from membership when the presence of the person would affect the group's ability to advocate public or private viewpoints. Scalia was a practicing Catholic. Time will tell how his jurisprudence and death will affect religious institutions.

Key Cases

Ecclesiastical Abstention Doctrine Bars Discrimination Claim Against Hospital

In Penn v. N.Y. Methodist Hosp., 2016 WL 270456 (S.D. N.Y. Jan. 20, 2016), the court ruled that the ministerial exception doctrine bars an African-American former hospital chaplain from bringing a Section 1981 lawsuit against a hospital alleging race and religious discrimination and retaliation. Plaintiff argued that neither the defendant nor his job was religious. In 1975, New York Methodist Hospital (NYMH) amended its certificate of incorporation and removed all reference to its "church related character" and relationship with The United Methodist Church. Also, the hospital advertised itself as a secular institution. Nevertheless, the court found that the hospital's bylaws require the board to have significant representation from the church, the name of the institution preserves a tie to the church and the hospital maintains an active ecumenical program of pastoral care. Plaintiff argued that he provided "spiritual care," instead of "religious care," but the court did not see any difference. "Therefore, insofar as plaintiff is a Methodist and was responsible – at least in part – for preaching the Christian faith, the relationship between Plaintiff and NYMH (specifically, the pastoral care department) was that of a religious employee and a religious institution," barring the plaintiff's claims. The court observed that it was not required to reach the question of whether the same result would hold for employment of a minister, pastor or chaplain of a different faith.

New York Court Upholds Civil Fine Against Business Declining Same-Sex Wedding

In Gifford v. McCarthy, 23 N.Y.S. 3d 422 (N.Y. App. Div. 3d Dept. Jan. 14, 2016), the court upheld a $10,000 civil fine and $1,500 in compensatory damages for each member of a same-sex couple who complained of public accommodation discrimination when farm owners declined to rent their facilities to them for a same-sex wedding. Liberty Ridge Farm LLC sells crops to the public and rents portions of the farm for wedding ceremonies and receptions. The court ruled that the farm constitutes a place of public accommodation under the New York State Human Rights Law (NYSHRL). The court also rejected the petitioners' argument that they did not discriminate on grounds of sexual orientation, but merely exercised their religious beliefs regarding same-sex marriage. As evidence, they testified that they were willing to host a same-sex wedding reception. The court rejected this argument as well, finding that the NYSHRL does not permit a business to offer a "limited menu" of services to customers. The court also rejected the defendants' state and federal free exercise claim on the grounds that the NYSHRL is a neutral, generally applicable law, their free speech claim on the grounds that they had not engaged in expressive speech and the NYSHRL does not compel endorsement of same-sex marriage, and their free expressive association claim because their wedding business was not organized for expressive purposes.

Oklahoma Supreme Court Upholds Scholarship Program Under Blaine Amendment

In Oliver v. Hofmeister, No. 113267, 2016 WL 614009 (Okla. Feb. 16, 2016), the court ruled that the Lindsey Nichole Henry Scholarships for Students with Disabilities Act – a statute providing a state-funded scholarship to students with disabilities to attend a private school – is constitutional under the state's Blaine amendment. Oklahoma's Blaine amendment states, "No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit or support of any sect, church, denomination, or system of religion, or for the use, benefit or support of any priest, minister or other religious teacher or dignitary, or sectarian institution as such." Eight factors convinced the court the scholarship program is constitutional: 1) participation in the program is voluntary; 2) parents or legal guardians have genuine independent choice in selecting sectarian or non-sectarian private schools; 3) payment warrants are issued to parents or legal guardians (not directly to schools); 4) the parent endorses payment to the independently chosen private school; 5) the act is religion neutral with respect to criteria to become an approved school for the scholarship program; 6) each public school district has the option to contract with a private school to provide mandated special educational services instead of providing services in the district; 7) acceptance of the scholarship under the act serves as parental revocation of all federally guaranteed rights due to children; and 8) the district public school is relieved of its obligation to provide educational services to the child with disabilities.

RFRA Is No Defense to Individual's Religious Discrimination Claim

In Mathis v. Christian Heating and Air Conditioning, Inc., No. 13-3740, 2016 WL 304766 (E.D. Pa. Jan. 26, 2016), the court denied the defendant's motion for summary judgment premised upon the RFRA against plaintiff's Title VII religious discrimination claim. Defendant is a for-profit corporation dedicated to the Lord. The defendant requires its mechanics to wear identification badges that display their names and photographs, along with a portion of the company's religious mission statement. Defendant employed the plaintiff as a heating and air conditioning installation mechanic. Plaintiff was an atheist who covered over the ID badge. The defendant instructed the plaintiff that by refusing to wear the badge, he had "quit" his employment. The court ruled that the RFRA cannot be used as a defense in a lawsuit brought by an individual, not the government, notwithstanding that the U.S. Equal Employment Opportunity Commission (EEOC) could have been a party to the action. Consequently, the court went on to find that plaintiff stated a claim under three theories for: 1) termination due to his religious beliefs, 2) denial of a reasonable religious accommodation, and 3) termination in retaliation for requesting a reasonable religious accommodation. In particular, the court was skeptical that plaintiff's requested accommodation of covering over the ID badge would impose more than a de minimis cost on the business.

YMCA's Colorado Retreat Center Entitled to Religious Property Tax Exemption

In Grand Cnty. Bd. of Comm'rs v. Colorado Property Tax Administrator, No. 14CA1767, 2016 WL 241466 (Colo. App. Jan. 14, 2016), the court affirmed the determination of the Board of Assessment Appeals on remand that the YMCA is entitled to a religious purposes exemption from property taxes. The court agreed with the taxpayer that: 1) in determining whether the exemption applies, the use of the property must be considered in light of the property owner's religious mission and purposes, and 2) a statutory presumption that the taxpayer's stated uses of real property is in furtherance of the taxpayer's religious purposes applies at every stage of review. The primary argument of Grand County and Larimer County was that use of the YMCA's properties should be examined without regard to the character of the property owner and that, in the counties' view, uses such as hiking and camping are not religious. The property in question has 40 cabins, 12 vacation homes and 61 campsites on 2,187 acres of land. The court ruled that the parsing of the facility's functions as religious or secular would involve excessive entanglement with religion and that the legislature reasonably sought to avoid this with the property tax exemption scheme. The court also rejected the counties' argument that the exemption violates separation of powers, as it merely codifies the principles of religious neutrality and nonentanglement, and accords with the power of the Legislature (art. X, s. 5, Colo. Const.) to limit, modify or abolish exemptions provided by the state constitution.

Denial of Tax Exemption for Noah's Ark Attraction Unconstitutional

In Ark Encounter, LLC v. Parkinson, No. 15-13-GFVT, 2016 WL 310429 (E.D. Ky. Jan. 25, 2016), the court ruled that the Commonwealth may not deny tax incentives to a religious tourist attraction that meets the neutral criteria for the incentives. The plaintiffs claim to have created an exact replica of Noah's ark at a cost of $100 million as part of a tourist attraction near the community of Williamstown, Ky. Under the Kentucky Tourism Development Act (KTDA), Kentucky provides an incentive program for qualifying tourism attractions "in order to advance the public purposes of relieving unemployment by preserving and creating jobs that would not exist if not for the incentives offered by the authority to approved companies, and by preserving and creating sources of tax revenues for the support of public services provided by the Commonwealth." Ky. Rev. Stat. §148.853(1)(b). The incentive allows an approved project to recover the lesser of either its total amount of sales tax liability or up to 25 percent of its approved development costs over a period of 10 years. §148.853(3)(b).Several projects have qualified, such as the Newport Aquarium and Kentucky Speedway. Plaintiffs are the first religiously affiliated applicants. After initially welcoming the project, the Commonwealth denied the plaintiffs' second application for two reasons: 1) the plaintiffs intend to discriminate in hiring its employees based on religion, and 2) extending the incentives would allegedly violate the Kentucky Constitution by advancing religion. The court disagreed and ruled that neither the Establishment Clause nor the state's Blaine amendment justify violation of the plaintiffs' free exercise and free speech rights. The court ruled that: 1) the KTDA has a secular legislative purpose, and neither the act itself nor allowing plaintiffs' participation gives rise to an endorsement of religion, nor does it have the primary effect of advancing religion nor involve an excessive entanglement between the Commonwealth and religion; 2) denying the plaintiffs' participation violates the principle of neutrality and non-entanglement with religion because it requires state officials to critique and scrutinize the plaintiffs' beliefs; and 3) denying the plaintiffs' participation would also amount to content-based exclusion of religious speech, viewpoint discrimination and violation of freedom of association through the imposition of a requirement not found in Title VII or KTDA requiring that they not discriminate in hiring based on religion. Furthermore, the court ruled that sections 184, 186 and 189 of the Kentucky Constitution do not apply to this dispute as they relate to funding for schools. The plaintiffs do not propose to operate a school or place of worship, and, even if they did, the KTDA does not involve revenue of the state but instead a potential rebate of sales taxes based on sales generated from the project, without any actual levy of taxes or requirement for taxpayers to contribute to it.

Ecclesiastical Abstention Doctrine Prevents Resolution of Church Disputes

In Church of God in Christ, Inc. v. L.M. Haley Ministries, Inc., No. W2015-00509-COA-R3-CV, 2016 WL 325499 (Tenn. Ct. App. Jan. 27, 2016), the court ruled that the ecclesiastical abstention doctrine also bars a hierarchical church from obtaining an order establishing control over a local church's real and personal property in the absence of any allegation that the local church had decided to "break away" from the hierarchical church. Under The Official Manual of the Church of God in Christ (COGIC), the bishop was empowered to appoint a pastor of the local church once the founding pastor died. Bishop Hall appointed himself, and the local congregation resisted. Defendants recorded a quit claim deed attempting to transfer the local church to a new entity and remove it from Bishop Hall's jurisdiction while remaining part of COGIC. The court of appeal affirmed the trial court's decision to dismiss the hierarchical church's request to reform the deed and create a trust for the benefit of COGIC. The court also ruled that to hold that Bishop Hall has authority over the local church's personal property would require it "to make a determination as to the appropriate leader" of the church, which it "simply has no jurisdiction to determine...."

In Glass & Garden Drive-in Church v. Chassis of the Southwest, R.C.A., No. 1CA-CV 14-0525, 2016 WL 233103 (Ariz. App. Jan. 19, 2016), the court affirmed dismissal under the ecclesiastical abstention doctrine of the lawsuit filed by former members of a local church against the Reformed Church in America drawing into question its "supersession" process by which the denomination may remove a local church's consistory and install new leadership. The court agreed that the neutral principles of law approach does not apply to the case because its resolution requires the court to resolve questions of ecclesiastical governance and religious doctrine and practice.

RLUIPA Claims Result in Split Outcomes

Pro: In Chabad Lubavitch of Litchfield Cnty., Inc. v. Borough of Litchfield, Conn., No. 3:09-CV-1419, 2016 WL 370696 (D. Conn. Jan. 27, 2016), the court denied the defendants' motion for summary judgment on the plaintiff's RLUIPA substantial burden and nondiscrimination claims in connection with the defendant's denial of the plaintiff's application for a certificate of appropriateness to expand a Victorian house to accommodate its purposes, including a sanctuary, two kosher kitchens, a ritual bath, a residence for the rabbi, staff/visitor housing, a coffee bar and an indoor swimming pool. Although denying the plaintiff's application, the defendant invited the plaintiff to reapply for a smaller addition. The court concluded that the proposed facilities were in large measure for religious exercise and a genuine issue of material fact existed regarding whether the balance of facilities were as such. To determine whether there was a substantial burden on this religious exercise, the court found questions of material fact pertaining to the arbitrariness of the denial, whether the plaintiff could rearrange its facilities so as to fit into the smaller space, whether feasible alternatives exist, whether the plaintiff reasonably believed it would be permitted to modify the property, and whether there was a close nexus between the modifications and plaintiff's religions exercise. One of the statements that the court considered potential evidence of animus was a board member's statement at a pre-hearing, "[w]e have to get the public out on this project for the public hearing."

Con: In Andon, LLC v. City of Newport News, Va., No. 14-2358, 2016 WL 502714 (4th Cir. Feb. 9, 2016), the court affirmed dismissal of the plaintiffs' RLUIPA substantial burden claim, concluding they never had a reasonable expectation to use the property as a church and any burden on their religious exercise was, therefore, self-imposed. Plaintiffs knowingly entered into a contingent lease agreement for a non-conforming property, meaning that the alleged burdens that they sustained were not imposed by the local government. The court ruled that its conclusion is not altered by the plaintiffs' contention that they have been unable to find another property that meets the congregation's desired location, size and budgetary limitations.

Religious Institutions in the News

  • The Georgia legislature has passed a bill that protects clergy from performing same-sex marriage; precludes ordinances requiring a business to operate on either Saturday or Sunday; protects a religious organization from having to rent or lease to a person objectionable to it; precludes government from taking adverse action against a person or faith-based organization on the basis of what that person believes, speaks or acts in accordance with sincerely held religious beliefs regarding marriage; and requires government to consider accredited, licensed or certified any person or faith-based organization that would have been so by a private entity but for that entity's determination on the basis of what it believes, speaks or acts in accordance with sincerely held religious beliefs regarding marriage.
  • Plaintiffs chose not to appeal summary judgment granted in favor of the defendants in Center for Inquiry, Inc. v. Jones, Case No. 2007-CA-1358, Circuit Court, Leon County on Jan. 20, 2016. The case involved a Florida Blaine amendment challenge to a state contract with a faith-based criminal rehabilitation and drug treatment provider that used the Alcoholics Anonymous and Narcotics Anonymous 12-step program.
  • Religious conviction is having an effect on the presidential selection process, with evangelicals disproportionately supporting Donald Trump in South Carolina, Nevada and other primaries.

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.

Similar Articles
Relevancy Powered by MondaqAI
Holland & Knight
Holland & Knight
Holland & Knight
Holland & Knight
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Holland & Knight
Holland & Knight
Holland & Knight
Holland & Knight
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions