University May Neutrally Enforce Religious Nondiscrimination Policy Against Student Religious Groups
The United States Supreme Court held in Christian Legal Soc’y, Chapter of the Univ. of Cal., Hastings College of the Law v. Martinez, _ U.S. _, 130 S.Ct. 2971, 2978 (2010), that a public law school does not violate the Constitution when it “condition[s] its official recognition of a student group – and the attendant use of school funds and facilities – on the organization’s agreement to open eligibility for membership and leadership to all students.” The court referred to this as an “all-comers policy.” It declined to address whether the holding extended to a narrower nondiscrimination policy that, instead of prohibiting all membership restrictions, prohibited membership restrictions only on certain specified bases, for example, race, gender, religion and sexual orientation. See Holland & Knight’s August 5, 2010 Religious Institution Update.
The Ninth U.S. Circuit Court of Appeals addressed such a nondiscrimination policy in Alpha Delta Chi-Delta Chapter v. Reed, Case No. 09-55299, 2011 WL 3275950 (9th Cir. Aug. 2, 2011), and ruled it constitutional, but the appellate court found that the plaintiffs raised a triable issue of fact as to whether the nondiscrimination policy was selectively enforced and remanded this question to the district court for further proceedings. The plaintiffs were a sorority and fraternity that require members to profess Christianity. San Diego State University denied them official recognition and related benefits because their membership requirement violated its nondiscrimination policy: “On campus status will not be granted to any student organization whose application ... restricts membership or eligibility to hold appointed or elected student officer positions ... on the basis of ... religion....” The court held that limited public forum doctrine, rather than public forum doctrine applied, so that the policy was constitutional if it was (1) reasonable in light of the purpose of the forum, and (2) viewpoint neutral. The court found the policy reasonable in light of the university’s interest in encouraging diversity and nondiscrimination and the plaintiffs’ access to alternative avenues of communication. In addition, the court held the policy viewpoint neutral as written, notwithstanding that it allowed secular belief-based discrimination (e.g., student Democrats excluding Republicans), because the plaintiffs did not show that the university implemented its nondiscrimination policy for the purpose of suppressing the plaintiffs’ viewpoint. Nevertheless, the court found a triable issue of fact whether some student groups were exempted from the nondiscrimination policy leading to potential selective enforcement against the plaintiffs in violation of the Free Speech, Free Exercise and Equal Protection Clauses. Concurring, Judge Kenneth F. Ripple recognized the national import of the case and observed a distinction between religious and secular student groups: secular ones may avoid violating the nondiscrimination policy by couching their membership requirements in terms of shared beliefs, as opposed to shared status (e.g., opponents of violence against women need not limit their membership to women), whereas shared beliefs coincide with the shared status of religious groups. He concluded, “The net result of this selective policy is therefore to marginalize in the life of the institution those activities, practices and discourses that are religiously based.”
Two RLUIPA Rulings Break New Ground
Damages Are Available Under RLUIPA
In Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, Case No. 09-15422, 2011 WL 2685288 (9th Cir. July 12, 2011), the Ninth U.S. Circuit Court of Appeals ruled that a church may state a claim for damages under the “equal terms” provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The court described the case as a “sort of reverse urban blight case, with the twist that instead of bars and nightclubs being treated as blighting their more genteel environs, the church is treated as blighting the bar and night-club district.” Yuma denied Centro Familiar’s application for a conditional use permit to convert a vacant and deteriorating downtown J.C. Penney department store building into a church. The “pivotal factor” was that state law prohibits new bars, nightclubs or liquor stores within 300 feet of a church, thwarting the city’s vision for a “lively pedestrian-oriented” downtown area.
Had Centro Familiar been a secular organization rather than a church, it would not have needed the conditional use permit. Auditoriums, performing arts centers, physical fitness facilities, museums, art galleries, botanical and zoological gardens, single-and multiple-family dwellings, and even jails and prisons could operate in the same district as of right. The district court ruled that the different treatment of the church did not violate RLUIPA. Centro Familiar appealed. While the appeal was pending, the church lost the building to foreclosure, Arizona passed a state statute similar to RLUIPA, and Arizona changed the law to allow for a waiver of the statutory ban on liquor licenses within 300 feet of a church. These events mooted the church’s request for declaratory judgment and an injunction, but not its claim for damages. Holding that Centro Familiar was entitled to damages, the court found that the city “violates the equal terms provision only when a church is treated on a less than equal basis with a secular comparator, similarly situated with respect to an accepted zoning criteria.” The court added that “It is hard to see how an express exclusion of ‘religious organizations’ from uses permitted as of right by other ‘membership organizations’ could be other than ‘less than equal terms’ for religious organizations.”
Church Growth Did Not Justify Overturning a Consent Judgment
Northridge Church grew in average weekly attendance from 1,100 in 1995 to 14,000 when it commenced litigation to modify a consent judgment into which the church had voluntarily entered with the Town of Plymouth, Michigan, to resolve another case the church filed when the town denied its application for a special land-use exemption. The consent judgment limited the total auditorium seating, total number of parking spaces, parking on the lawn and other approaches, the number of musical service events, the activities that could take place on the property, traffic patterns, and use of outdoor areas. In Northridge Church v. Charter Tp. of Plymouth, Case No. 09-2388, 2011 WL 3180566 (6th Cir. July 28, 2011), the court held that the church had failed to show that the factual or legal landscape had unexpectedly and dramatically changed since entry of the consent decree. The changes were that RLUIPA was enacted and the church and area around the church grew. The court held that when the consent judgment was signed, the Religious Freedom Restoration Act was in effect and offered protection similar to RLUIPA, so that RLUIPA’s enactment was not a substantial change in the law. Also, the court held that development of the area and church was entirely foreseeable. The court considered the church’s resort to several weekly services and expenditure of $300,000 on shuttle costs as compared to its $10 million budget not a substantial burden on the church; it found the limitations on musical events including Easter and Christmas services consistent with nuisance law; and it could not see how the church’s core beliefs could have changed during the period in question to make having a homeless shelter on the site critical.
Church Not Entitled to House Secular School for Children with Disabilities
In Calvary Christian Center v. City of Fredericksburg, Case No. 3:11-CV-342-JAG, 2011 WL 2899184 (E.D. Va. July 18, 2011), the court denied the church’s motion to enjoin the City of Fredericksburg from prohibiting under the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), and the Religious Land Use and Institutionalized Persons Act (RLUIPA) the church’s tenant from operating a day school in the church building. The Church had sought and obtained a special use permit to operate a religious child day care, but never enrolled children in the program. Instead, the church applied for another special use permit to move in a for-profit, secular day school for children with emotional and mental disabilities. The City rejected the application. The court held that it was unlikely that the church had standing to pursue its ADA or RA claims inasmuch as the church had not alleged any unlawful discriminatory effect that it suffered as a result of not housing the school. The court said it was up to the students affected to make a claim for any injury they suffered as a result of the denial of the permit. On the merits, the court held that the church had not shown that discriminatory intent was one of the reasons for the decision to deny the permit as required to prove a violation of the ADA or that the discrimination occurred “solely by reason of” their disability as required to prove a violation of the RA. Additionally, the court held the church had not produced enough evidence to show that the operation of a for-profit day school for the disabled with a secular curriculum amounted to an exercise of religious expression or a substantial burden on its exercise such that the church would be unable to carry out its church missions.
Alleged Breach of Church Bylaws Not Subject to Court’s Jurisdiction
In Fesseha v. Ethiopian Orthodox Tewahedo Debre Meheret St. Michael’s Church in Dallas, Case No. 05-10-00202-CV, 2011 WL 2685969 (Tex.App.-Dallas July 12, 2011), the court affirmed the trial court’s grant of summary judgment to a church against claims that it was violating its bylaws. According to the court, “Whether a church failed to ‘follow its bylaws on a matter of internal governance is also a matter of internal church governance and ecclesiastical concerns,’ and we may not interfere with that decision.” The plaintiffs claimed that the church was guilty of the following violations: failing to conduct elections for trustees, improperly conducting general meetings without a requisite quorum, adopting amendments to the bylaws in violation of the bylaws, disenfranchising members who were adverse to the trustees’ policies and procedures, refusing to allow the disenfranchised members to participate in meetings and refusing to provide them copies of church documents, establishing a mandatory monthly membership fee of $30, refusing to honor the members’ petitions to call special meetings or place matters on the agenda for other meetings, and altering the trustee nomination procedure and committee appointment process so that only persons appointed by them could be eligible for appointment. In agreeing that the trial court lacked jurisdiction to hear the claims, the appeals court rejected the plaintiffs’ argument that the matter could be decided pursuant to the neutral principles of law approach. According to the court, the plaintiffs were complaining about matters of internal church governance.
Religious Institutions in the News
President Obama is standing by an executive order permitting some faith-based organizations that receive federal funds to hire on the basis of religion. http://religion.blogs.cnn.com/2011/07/23/obama-pressed-on-faith-based-hiring/. For more on the controversy leading to this announcement, see http://online.worldmag.com/2011/07/21/faith-based-groups-appeal-to-obama-over-hiring-practices/; http://mirrorofjustice.blogs.com/mirrorofjustice/2011/07/faith-based-hiring-rights-and-government-funding.html; http://www.huffingtonpost.com/2011/06/22/critics-push-obama-to-cha_n_882523.html
The President of the Florida Education Association and others filed suit to remove from the ballot a measure that would strike and replace Florida’s Blaine Amendment. See http://blogs.orlandosentinel.com/news_politics/2011/07/teachers-union-files-suit-to-knock-blaine-amendment-from-ballot.html; http://www.huffingtonpost.com/2011/07/21/floridas-teachers-union-sues-religious-freedom-amendment_n_905965.html
The Douglas County School District in Colorado has begun offering vouchers to students, stimulating a lawsuit by the American Civil Liberties Union, Americans United for Separation of Church and State, and others. See http://online.wsj.com/article/SB10001424053111903885604576488472660592718.html?KEYWORDS=faith-based
Campus Crusade for Christ, one of the largest parachurch organizations in America, has changed its name to “Cru.” See http://www.nytimes.com/2011/07/21/us/21brfs-CAMPUSCRUSAD_BRF.html?_r=1&scp=7&sq=religion&st=cse; http://www.huffingtonpost.com/2011/07/20/campus-crusade-for-christ_n_905121.html
A Florida court vacated a judgment of $4.75 million against Idlewild Baptist Church due to juror misrepresentation during jury selection. See http://www.tampabay.com/news/courts/civil/judge-vacates-475-million-judgment-against-idlewild-baptist-church/1182374