Religious Institutions Update: September 2015

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.  

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.