Timely Topics

What is a "substantial burden" on the "religious exercise" of a person? Several federal laws, such as the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Religious Freedom Restoration Act (RFRA), both reported on in this month's Update, prohibit the government from imposing a substantial burden on a person's religious exercise unless it is in furtherance of a compelling public interest and is the least restrictive means of furthering that compelling governmental interest. Of course, the crux of this protection hinges upon a court properly classifying bona fide substantial burdens on religious exercise as such, rather than as "incidental burdens." It turns out that for many religious institutions, this can be a frustrating experience. And it is more difficult in some federal circuits than others. For example, in the U.S. Court of Appeals for the Seventh Circuit, governmental action must render "religious exercise … effectively impracticable" in order to qualify as a substantial burden under RLUIPA. Civil Liberties for Urban Believers v. City of Chicago, 342 F. 3d 752, 761 (7th Cir. 2003). In contrast, the Ninth Circuit Court of Appeals held that a substantial burden exists when the government puts "'substantial pressure on an adherent to modify his behavior and to violate his beliefs.'" International Church of the Foursquare Gospel v. City of San Leandro, Case No. 09-15163, 2011 WL 505028 (9th Cir. Feb. 15, 2011) (citation omitted).

Critical to succeeding in court is translating a religious institution's theology about core religious practices into the syntax of state and federal precedent. Before and during litigation involving RLUIPA and RFRA religious institutions may benefit from the assistance of church-state counsel who can assist with this translation effort. The trend in case law is toward protecting high-stakes and compulsory religious practices, but not matters of religious conscience that may be equally important to the faithful. Especially in these circumstances when freedom of religious conscious is at stake, counsel may be critical in helping to convince a court not to dismiss a burden on these religious beliefs and practices as merely tangential for lack of a fully informed understanding of their theological significance.

Key Cases

Catholic College Held Subject to NLRB Jurisdiction

In Manhattan College v. Manhattan College Adjunct Faculty Union, N.Y. State United Teachers, AFT/NEA/AFL-CIO, Case No. 2-RC-23543 (NLRB Region 2, Jan. 10, 2011), the National Labor Relations Board (NLRB) held that Manhattan College (the College), an institution historically associated with the Christian Brothers, is not a church-operated institution whose faculty are exempt from the Board's jurisdiction and, therefore, from collective bargaining. The bylaws for the College indicated its purpose was "the promotion of education." Of 32 trustees serving on the board of trustees, five were required to be Christian Brothers. The College president and past presidents were Christian Brothers, but this was not required in the future. In 2002, the College entered into a "Sponsorship Covenant" with the Christian Brothers, requiring, inter alia, that the College "discuss the mission statement, the College's Catholic identity, and its Lasallian Tradition" with new hires and prefer potential employees who are Christian Brothers. Christian Brothers annually contribute roughly $100,000 to the College, which reported an annual operating budget of $42 million. The College brochure for prospective students and application for admission did not reference Catholicism or religion, except that the application stated that the College does not discriminate on the basis of religion. The College replaced a required Religious Studies course with a list of religious and non-Catholic alternatives. The trustees also published a report denying any intention: (1) to impose church affiliation and religious observance as a condition of hiring or admissions; (2) to set quotas based on religious affiliation; or (3) to require loyalty oaths, attendance at religious services, or courses in Catholic theology. Consequently, the NLRB held that the purpose of the College is essentially secular, not the "propagation of religious faith." The NLRB also found that the College does not hold itself out as providing a "religious educational environment" and that exercising jurisdiction over the College would not have any potential effects leading to unconstitutional entanglement. The NLRB explicitly rejected the College's argument that its test requiring compulsory religious activities, indoctrination and proselytizing imposed too cramped a view of religion. The College argued that the test is based on the view that "religious belief must be authoritarian and hence inconsistent with academic freedom." Disagreeing that its test is an improper scrutiny of the school's asserted faith, the NLRB held, "The purpose of considering whether indoctrination, proselytizing, or … 'propagation of a religious faith,' is part of a school's purpose is because rules requiring faculty to propagate faith would require bargaining over such rules and their disciplinary consequences, and further, would require the Board to scrutinize an employer's defense to unfair labor practice charges based on asserted enforcement of faith-based rules."

Individual Mandate of "Patient Protection and Affordable Care Act" Does Not Violate RFRA

In Mead v. Holder, Case No. 10-950, 2011 WL 611139 (D.D.C. Feb. 22, 2011), the plaintiffs challenged § 1501 of the new national healthcare law, the Patient Protection Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended, which requires each individual to obtain healthcare coverage or pay a monetary penalty. Among the grounds argued is that it violates plaintiffs' rights under the Religious Freedom Restoration Act (RFRA). The plaintiffs alleged that they believe that God will provide for their physical, spiritual and financial well-being, and that "[b]eing forced to buy health insurance conflicts with [their] religious faith because [they] believe that [they] would be indicating that [they] need a backup plan and [are] not really sure whether God will, in fact, provide for [their] needs." Likewise, two of the plaintiffs alleged that they do not wish to purchase health insurance because it is contrary to their beliefs in a holistic approach to medicine. The district court granted the United States' motion to dismiss the plaintiffs' RFRA claim on the ground that § 1501 does not place a substantial burden on the exercise of their Christian faith by requiring them to perform an act "that implies that they doubt God's ability to provide for their health." The court observed that the plaintiffs "routinely contribute to other forms of insurance, such as Medicare, Social Security, and unemployment taxes, which present the same conflict with their belief that God will provide for their medical and financial needs." Furthermore, the district court found that even if § 1501 did substantially burden the plaintiffs' religious exercise, the government "clearly has a compelling interest in safeguarding the public health by regulating the health care and insurance markets" and "the individual mandate, as enacted in § 1501, is the least restrictive means of furthering this compelling interest."

Lack of Sites for Churches and Denial of Rezoning and Conditional Use Permit Application May Violate RLUIPA

In International Church of the Foursquare Gospel v. City of San Leandro, Case No. 09-15163, 2011 WL 505028 (9th Cir. Feb. 15, 2011), the U.S. Court of Appeals for the Ninth Circuit reversed the trial court's grant of summary judgment against the International Church of the Foursquare Gospel (the Church), which alleged that the City of San Leandro (the City) violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by denying its rezoning and conditional use permit application. The City first urged the Church to file an application for a zoning map amendment to permit an assembly use in an industrial area. Realizing the citywide implications of the request, the City adopted an "Assembly Use [AU] Overlay District," but determined that the particular property that the Church had purchased should not be included in the new zone. Among the reasons was the staff's view that, because the property was near hazardous materials and activities, it did not meet the public health and safety criteria. Examining the record, the district court concluded that the City's denial of the Church's rezoning and conditional use permit applications did not violate the "substantial burden" provision of RLUIPA. The district court reasoned that a zoning law, as a neutral law of general applicability, can impose only an incidental burden and does not trigger RLUIPA's strict scrutiny standard.

The Court of Appeals found that, although the zoning scheme itself was facially neutral and generally applicable, the individualized assessment that the City made to determine that the Church's rezoning and permit request should be denied was not. The Court of Appeals also held that the district court erred by dismissing the Church's realtor's claim that no other suitable sites exist in the City to house the Church's expanded operations and, thus, that the Church's religious exercise was substantially burdened. The Court of Appeals was critical of the district court for rejecting the Church's assertion that its unique core beliefs require it to be able to meet in one place to engage in "joyous corporate worship." Instead, the district court was convinced by the City's contention that the Church could continue to conduct three separate Sunday services or acquire several smaller properties throughout the City and relocate some of its operations off-site. Disagreeing with the trial court for siding with the City, the Court of Appeals observed, "while a court can arbite[] the sincerity of an individual's religious beliefs, courts should not inquire into the truth or falsity of stated religious beliefs." The Court of Appeals also agreed with the Church that if the proximity of its site to hazardous activities is a problem, all of the 196 properties zoned AU Overlay would also be unavailable for the same reason. Last, the Court of Appeals reversed the district court's holding that the City's claimed need to preserve properties for industrial use qualified as a compelling governmental interest and that the City could not achieve the same goals by using other property within its jurisdiction. The court disagreed that revenue generation is a compelling state interest sufficient to justify denying a religious institution a conditional use permit.

Religious Institutions in the News

President Obama's proposed budget would reduce tax deductions for sizable charitable donors. See http://www.stltoday.com/lifestyles/faith-and-values/article_ccbfc29c-0efb-54e4-bfa1-4b0a95cd7cb3.html

Catholic and mainline Protestant churches continued to experience membership declines, whereas Pentecostal churches experienced increases in 2010. See http://www.virtueonline.org/portal/modules/news/article.php?storyid=13983; http://www.ncccusa.org/news/110210yearbook2011.html

With crimes slightly up in churches in 2010 – see http://www.christiancentury.org/article/2011-02/report-says-crime-us-churches – multiple state legislatures are considering guns-in-church bills and bans – see http://www.huffingtonpost.com/2011/02/14/states-caught-in-crossfir_n_823107.html  

President Obama named church leaders to an advisory council on faith-based programs. See http://blog.beliefnet.com/news/2011/02/obama-names-second-round-of-fa.php

The Vatican will update bioethics guidelines for Catholic health care workers and hospitals. See http://www.catholicnewsagency.com/news/vatican-to-update-bioethics-guidelines-for-catholic-health-care-workers/