Timely Topics

The decision by the United States Supreme Court on same-sex marriage has been greeted with praise and disdain by different corners of the country. The faith-based community has been especially outspoken. This is not surprising inasmuch as every faith addresses sexual ethics in some fashion. As discussed below, the Court's majority sought to assure the faithful opposed to the ruling that the First Amendment continues to protect their right to express their opposition to same-sex marriage, but did not go so far as to assure them of their right to exercise their religion in a consistent manner. In oral argument, the Solicitor General of the United States represented that the tax-exempt status of conservative religious schools may now be called into question. The dissent expressed serious concerns about the repercussions of the decision for religious freedom in America. Indeed, reaction to the decision will pose one of the greatest tests to America's First Freedom. Will we now penalize or even outlaw the expression of sincerely held religious convictions due to the equally sincerely held convictions of same-sex marriage supporters or will we now reach a constitutional détente respectful of each other's rights? Religious institutions aligned with the dissent are well-advised to prepare for the worst even as they hope for and work for the best. Toward this end, some are advocating new federal and state legislation to protect their tax-exempt status and other rights. Religious institutions should look to adopt the facility use policies discussed in prior issues of Religious Institutions Update clarifying the uses of their facilities consistent with their theological views and analyze their governance structure and employment relationships with the assistance of church-state counsel, so as to maximize constitutional and statutory defenses. We can assist in this area.

States Must License Same-Sex Marriage

In Obergefell v. Hodges, Nos. 14-556, 14-562, 14-571, and 14-574, 576 U.S. _ (June 26, 2015), the United States Supreme Court ruled that the Fourteenth Amendment requires a state to license marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. The Due Process Clause of the Fourteenth Amendment states that no state shall "deprive any person of life, liberty or property, without due process of law." The Court ruled that the right to marry is a historical protected fundamental right. The Court conceded that in the past the Court has described this right as involving exclusively a man and woman, but the Court found that the reasons marriage are fundamental apply with equal force to same-sex couples, including: (1) the "right to personal choice regarding marriage is inherent in the concept of individual autonomy"; (2) the right to marry "supports a two-person union unlike any other in its importance to the committed individuals"; (3) the right to marry "safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education"; and (4) marriage is a keystone of our social order, including as a basis for public benefits.

The Court recognized that "[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises and neither they nor their beliefs are disparaged here," but the Court continued that they are not entitled to "put the imprimatur of the state itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied." The Court emphasized that its decision will not prevent "religions and those who adhere to religious doctrines" from "advocat[ing] to the utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned." The dissent (Roberts, Thomas, Scalia and Alito, JJ.) observed that, although the Court here authorized advocating and teaching traditional views of marriage, it did not guarantee a continued "freedom to 'exercise' religion," treated advocates of the traditional view as "bigoted," and had "potentially ruinous consequences for religious liberty." Chief Justice Roberts observed:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage – when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage ... . There is little doubt that these and similar questions will soon be before the Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Justice Thomas wrote:

In our society, marriage is not simply a governmental institution; it is a religious institution as well ... . Today's decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples. The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph ... . And even that gesture indicates a misunderstanding of religious liberty in our Nation's tradition. Religious liberty is about more than just the protection for 'religious organizations and persons ... as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.'... Religious liberty is about freedom of action in matters of religion generally... .

Plurality Enjoins Colorado Choice Scholarship Pilot Program

In Taxpayers for Public Educ. v. Douglas Cnty. Sch. Dist., No. 13SC233, 2015 WL 3948220 (Colo. June 29, 2015), a plurality permanently enjoined implementation of the Choice Scholarship Pilot Program, a grant mechanism that awards publicly funded scholarships to qualifying elementary through high school students to attend the private schools of their choice. At the time of the injunction hearing, 271 scholarship recipients had been accepted to one of 23 private schools. The plurality ruled that article IX, section 7 of the Colorado Constitution – a Blaine Amendment – precludes the program. That amendment states in part that no school district "shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school ... controlled by any church or sectarian denomination." The plurality rejected as irrelevant the bigoted history of the amendment rendering "sectarian" code for Catholic. The dissent (Eid, Coats, Boatright, JJ. concurring in part and dissenting in part) criticized the plurality for this. Also, the plurality distinguished its prior ruling upholding a grant program that awarded public money to college students to attend all but "pervasively sectarian" schools. The plurality observed that this program has no such limit, impacts younger students who are more impressionable, does not benefit any public institutions, does not prevent schools from decreasing their own aid to scholarship students, and does not require a school to have open admissions. Last, the plurality ruled that invalidating the program does not violate the Establishment Clause. The Court found that the petitioners lack standing to challenge the CSP under the Public School Finance Act of 1994, because the act excludes any private right of action and there is no taxpayer standing in a case where a plaintiff alleges that the government violated a statute.

Contraceptive Coverage Exception for Religious Institutions Constitutional

In Little Sisters of the Poor Home of the Aged, Denver Colo. v. Burwell, Nos. 13-1540, 14-6026, 14-6028, 2015 WL 4232096 (10th Cir. July 14, 2015) and East Tex. Baptist Univ. v. Burwell, Nos. 14-20112, 14-10661, 14-10241, 14-40212, 2015 WL 3852811 (5th Cir. June 22, 2015), the courts ruled constitutional and consistent with the Religious Freedom Restoration Act (RFRA) the Patient Protection and Affordable Care Act's (ACA) regulatory mechanism that allows religious nonprofit organizations to relieve themselves of their obligation to provide contraceptive coverage for employees by either (a) sending a form to their health insurance issuer or third-party administrator or (b) sending a notification to the Department of Health and Human Services. Under RFRA, the courts ruled that the regulation does not substantially burden the plaintiffs' free exercise of religion because it relieves them of complying with the contraceptive coverage mandate. They rejected their argument that by form or through notification the plaintiffs "cause" contraceptive coverage and are therefore complicit, finding instead that federal law mandates the coverage, the plaintiffs' message is exclusively opposition to contraceptive coverage, the plaintiffs' conscientious objections cannot legitimately prevent government from shifting the burden to third parties, and completing mere administrative paperwork is not a substantive burden. The Little Sisters court found that religious organizations with self-insured church plans are even less burdened than those with plans subject to ERISA because the government has admitted that it cannot compel or penalize those parties' third-party administrators if they decline to provide or arrange for contraceptive coverage. The court ruled there is no Establishment Clause violation because distinguishing between religious entities that are outright exempt and those that must provide notice based on organizational criteria (e.g., churches versus other religious organizations), not denomination, is permissible. The East Tex. court ruled that the plaintiffs' argument that the government lacks the authority under ERISA to prohibit third-party administrators from passing along the costs of contraceptive coverage to them was not ripe.

Exclusion of Humanist from Navy Chaplaincy Not a Violation of RFRA or Constitution

In Heap v. Carter, No. 1:14cv1490 (JCC/TCB), 2015 WL 3999077 (E.D. Va. July 1, 2015), the court ruled that it neither violated RFRA nor the Constitution to reject the plaintiff, a humanist, as a chaplain in the U.S. Navy. The court found that serving as a Navy chaplain was not dictated by the tenets of Humanism; therefore, the plaintiff failed to prove any "substantial burden" on the exercise of his religion. Also, the plaintiff's failure to prove that the regulations at issue were enacted for the purpose of discriminating against Humanists doomed his free exercise claim. Last, the court ruled that, as an applicant for public employment, the plaintiff had no First Amendment claim as a result of Garcetti v. Ceballos, 547 U.S. 410 (2006). The court found that The Humanist Society with which the plaintiff is affiliated lacked standing of any kind to state a claim.

Negligent Supervision Claim Actionable Against Diocese

In Doe v. Diocese of Raleigh, No. COA14-1396, 2015 WL 4081974 (N.C.App. July 7, 2015), the court ruled that the plaintiff's claims for negligent supervision and negligent infliction of emotional distress based upon the Diocese defendants' alleged negligent supervision of a priest who allegedly sexually assaulted the plaintiff in May 2009, when he was 16 years old may be resolved through the application of neutral principles of law and, thus, are not barred by the First Amendment. Conversely, the plaintiff's claims for negligence and negligent infliction of emotional distress based on the Diocese defendants' failure to compel the priest to undergo sexually transmitted disease testing would entangle the court in ecclesiastical matters and, thus, it dismissed these claims.

Washington Rule Requiring Dispensing Contraceptives Constitutional

In Stormans, Inc. v. Wiesman, No. 12-35221, 12-35223, 2015 WL 4478084 (9th Cir. July 23, 2015), the court of appeals reversed the district's ruling in favor of a pharmacy and pharmacists who had religious objections to dispensing emergency contraceptives. The so-called "Delivery Rule" requires pharmacies to "deliver lawfully prescribed drugs or devices to patients and to distribute drugs and devices approved by the [FDA] for restricted distribution by pharmacies ... ." This includes ella(r), which the plaintiffs believe ends human life. The "Pharmacist's Responsibility Rule" provides that it is "unprofessional conduct" for a pharmacist not to fill lawful prescriptions, except to the extent the pharmacist has a religious, moral, philosophical or personal objection to delivery, in which case a pharmacy may "accommodate" the objecting pharmacist by having another non-objecting pharmacist available. The plaintiffs who are pharmacists state that their employer could not or would not accommodate their religious objection. The court found the rules both facially and operationally neutral so as not to violate the Free Exercise Clause. The rules pertain to all pharmacies, all objections to delivery of drugs and all prescription drugs. The rules seek to accommodate pharmacists. The court observed that the Free Exercise Clause is not violated even if a particular group, motivated by religion, is more likely impacted. Also, the court ruled that the administrative history of the rules "hardly reveals a single design to burden religious practice; rather, it is a patchwork quilt of concerns, ideas and motivations." The court decided that the rules are not substantially underinclusive, although replete with exemptions; do not afford unfettered discretion to decision-makers in a manner that could lead to religious discrimination; and are not selectively enforced. The court also rejected any equal protection or substantive due process violation including the plaintiff's formulation of the fundamental liberty interest at stake as too broad and, in any event, not historically grounded.

Mens Rea Requirement in Clergy Sexual Conduct Statute Negated

In State v. Wenthe, No. A12-0263, 2015 WL 3875366 (Minn. June 24, 2015), the court ruled that a clergy sexual conduct statute under which the defendant, a priest, was convicted does not require the clergy member to know that the complainant seeks or is receiving spiritual counsel as opposed to, for example, sexual gratification especially in circumstances where the nature of the relationship began as one in pursuit of spiritual counsel by a member of the parish. The court also upheld denial of the defendant's motion to admit evidence of the complainant's previous sexual history.

Court Lacks Jurisdiction Over Claim Challenging Ethical and Religious Directive

In Means v. United States Conf. of Catholic Bishops, No. 1:15-cv-353, 2015 WL 3970046 (W.D. Mich. June 30, 2015), the court ruled that it lacks personal jurisdiction over the defendant in connection with the plaintiff's claim that she received improper medical treatment in connection with the birth of her child due to policies promulgated by the defendant. In particular, the defendant developed the Ethical and Religious Directives (ERD) for Catholic Health Care Services, but lacks the authority to enforce them. The court ruled that the ecclesiastical abstention doctrine prevents it from determining whether the establishment of the ERDs constitutes negligence because it would necessarily involve inquiry into the ERDs themselves, and thus into church doctrine.

Student Denied Admission Due to Faith States Certain Claims Against College

In Buxton v. Kurtinitis, No. ELH-14-2836, 2015 WL 3937930 (D. Md. June 25, 2015), the plaintiff, the second student to complain and file a related lawsuit, alleged that employees of the Community College of Baltimore County violated his constitutional rights by denying him admission to the Radiation Therapy Program based on faith-related statements he made in his admissions interview. The plaintiff recalls that the panelists asked him, "What do you base your morals on?" He answered, "My faith" and allegedly said nothing more about religion. The program supervisor's evaluation included this observation about the applicant: "He also brought up religion a great deal during the interview. Yes, this is a field that involves death and dying: but religion cannot be brought up in the clinic by therapist or students." The court granted in part and denied in part the defendant's motion to dismiss the lawsuit. The court dismissed the plaintiff's Free Speech claim on the grounds that the Free Speech Clause does not protect speech expressed in an admissions interview from admissions consequences in a competitive process. Also, the court did not consider plausible the plaintiff's First Amendment retaliation claim that the Dean placed a hold on his school account after he protested the admission decision. The court denied the defendant's motion in connection with the plaintiff's claim that the interviewing staff, in their official capacities, violated the Establishment Clause and Equal Protection Clause, but limited any relief to prospective injunctive relief against the supervisor of the program.

Conscientious Objector Entitled Not to Fund Abortion Services Under the ACA

In Howe v. Burwell, No. 2:15-cv-6, 2015 WL 4479757 (D.Vt. July 21, 2015), the court granted in part and dismissed in part the federal government's motion to dismiss his complaint seeking declaratory and injunctive relief arising out of the segregation of a portion of his health insurance premiums to cover non-federally funded abortion services as required by the ACA. He alleges that forcing him to pay for the services is contrary to his genuinely held religious beliefs. The court agreed that the plaintiff has standing to request a declaration under RFRA that any third-party health insurer may offer him health insurance coverage without enforcing the segregation requirement. But the court dismissed the plaintiff's other claims and injunctive relief on the grounds that the ACA is neutral and generally applicable; does not prevent insurers from disseminating information about the abortion services they insure; and it is not federal regulations but the non-interest of third-party insurers in providing coverage that is the reason he lacks such insurance.

Ecclesiastical Abstention Does Not Apply to Alleged Breach of Settlement Agreement

In Shannon v. Mem'l Drive Presbyterian Church U.S., No. 14-14-00359-cv, 2015 WL 4463919 (Tex.App.-Hous. July 21, 2015), the court ruled that the ecclesiastical immunity doctrine does not shield a church from potential liability as a result of a claimed breach of a settlement agreement terminating a church staff member's employment. After entering into this settlement agreement with a church, an elder at the church who also served on the board of trustees of her new employer asked the board chair whether the seminary had checked her references. When the seminary then contacted the church, the church's head of human resources responded that she could not discuss the reason for the severance agreement but she "could not think of a circumstance under which the church would rehire" her. The seminary terminated her and she sued the church for breach of contract and various torts. The church defended on the basis of ecclesiastical immunity, but the court ruled that the question whether the church had disparaged the plaintiff in violation of the settlement agreement could be decided purely on secular contract law principles.

Church Plan Ruling Deferred

In Owens v. St. Anthony Med. Ctr., Inc., No. 14-c-4068, 2015 WL 3819086 (N.D. Ill. June 18, 2015), the court deferred a ruling on whether the defendant's retirement plan was a church plan or the defendant had violated ERISA in several respects until the Seventh Circuit rules in Stapleton v. Advocate Health Care Network, No. 14-cv-01873, Dkt. # 76 (N.D. Ill. Jan. 21, 2015).

Religious Institutions in the News

A Pew Research Center study indicates that Christians are declining sharply as a share of America's population, whereas unaffiliated and other faiths continue to grow.

The U.S. Commission on International Religious Freedom recommends to the State Department doubling the list of the world's worst religious freedom offenders.

Half of U.S. states are considering right-to-die legislation.