Religious Institutions Update: October 2020

Key Cases

COVID-19 Executive Orders Restricting In-Person Worship Upheld

In Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct. 203 (2020), the U.S. Supreme Court declined to enjoin Nevada Gov. Steve Sisolak's emergency order capping in-person services at 50 people regardless of facility size while allowing secular businesses such as casinos to open subject to an occupancy cap of up to 50 percent of the building capacity. Associate Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh dissented, each indicating that at the outset of an emergency it may be appropriate for courts to tolerate blunt rules, but emphasizing that a public health emergency does not give public officials carte blanch to disregard the Constitution.

In Harvest Rock Church, Inc. v. Newsom, No. 20-55907, 2020 WL 5835219 (9th Cir. Oct. 1, 2020), the court ruled that a church failed to demonstrate that the district court abused its discretion by declining to grant the church's motion for preliminary injunction against California Gov. Gavin Newsom's executive order restricting in-person worship during the COVID-19 pandemic. The order precludes in-person worship services in Tier 1 counties; allows 25 percent of building capacity or 100 persons, whichever is fewer, in Tier 2 counties; allows 50 percent of building capacity or 200 persons, whichever is fewer, in Tier 3 counties; and allows 50 percent of building capacity in Tier 4 counties. The court determined that the church failed to show that the orders accord comparable secular activity more favorable treatment than religious activity. Judge Diarmuid O'Scannlain dissented: "the State still allows people to go indoors to spend a day shopping in the mall, have their hair styled, get a manicure or pedicure, attend college classes, produce a television show or movie, participate in professional sports, wash their clothes at a laundromat, and even work in a meatpacking plant." But the court ruled that the church failed to rebut the governor's expert, who claimed that the more lenient treatment of certain secular activities such as shopping in a large store is appropriate because it involves less risk.

COVID-19 Executive Order Restricting Wedding Overturned

In Demartile v. Cuomo, No. 1:20-CV-0859, 2020 WL 4558711 (N.D. N.Y. Aug. 7, 2020), the court enjoined an order that placed a 50-person limit on non-essential gatherings, including weddings. The plaintiffs argued that the defendants' expressed interest in preventing the spread of COVID-19 is undermined by multiple facts such as that a restaurant, which is a wedding venue, is permitted to hold more than 50 people at a time when the same venue is used for other purposes. The plaintiffs also argued that similar or more dangerous activities such as mass demonstrations are permitted. They added that the balance of hardships is in their favor because they will be deprived of an irreplaceable life event contemplated by their Christian faith. The couple sued on several grounds, including free exercise of religion, but the court ruled that they were likely to succeed based on equal protection. The court ruled that if the COVID-19 "limitations are sufficient to protect the state's interest in preventing the spread of COVID-19 when implemented in restaurants at 50-percent capacity, there is no rational reason why they are not also sufficient to protect that interest in a wedding at 50-percent capacity."

Hostile Environment Claim Not Subject to Ministerial Exception Doctrine

In Demkovich v. St. Andrew the Apostle Parish Calumet City, 973 F. 3d 718 (7th Cir. 2020), the court ruled that a former Catholic church music director's hostile environment claims under both Title VII and the Americans with Disabilities Act (ADA), premised on his supervisor's alleged verbal abuse based on his sex, sexual orientation and disabilities, did not fall within the scope of the ministerial exception. The parties agreed that the plaintiff was a ministerial employee. He alleged that his supervisor, a priest, subjected him to comments and epithets showing hostility to his sexual orientation that increased in frequency and hostility after he learned that the plaintiff planned to marry his partner and as the ceremony approached. The court framed the question before it as whether a ministerial employee may ever bring a hostile environment claim against a religious employer. The court decided that neither recent Supreme Court precedent nor circuit precedent answered this question as compared to cases premised upon tangible employment action against religious institutions.

The court decided, "The right balance is to bar claims by ministerial employees challenging tangible employment actions but to allow hostile environment claims that do not challenge tangible employment actions." Dissenting, Judge Joel Flaum argued that contrary circuit precedent controlled and that what constitutes tangible employment action was left indeterminate; i.e., "hiring, firing, promoting, deciding compensation, job assignments and the like," as well as "decisions about compensation and benefits, about working conditions, resources available to do the job, training, support from other staff and volunteers … the list could go on." Turning to the potential for procedural or substantive entanglement, the court ruled that the potential does not justify a categorical rule against all hostile environment claims by ministerial employees. The court expressed confidence that district courts will manage these issues in their sound discretion. In contrast, Judge Flaum argued there would be inexorable and intractable conflict and intrusion into ecclesiastical matters and that the risk may be greater for intangible employment decisions than tangible ones.

Non-Entry of Consent Decree Affirmed Requiring Administrative Rulemaking

In Pedreira v. Sunrise Children's Servs., Inc., No. 18-5680, 2020 WL 5230441 (6th Cir. Sept. 2, 2020), the court affirmed the decision of the district court not to enter an amended agreement between the plaintiffs and Kentucky, functioning as a consent decree, after the state's position shifted. The case involved years of litigation and multiple decisions. In short, the plaintiffs claimed the state violated the Establishment Clause by paying a religious child care organization for services and allegedly imposing religion on children in state custody. The parties, without participation by Sunrise, entered into an agreement that would have, among other things, 1) prevented publicly funded, private child care providers from engaging in any form of religious indoctrination, proselytization or coercion of children in Kentucky's public child care system; 2) prevented providers from discriminating against children on the basis of religion; and 3) required monitoring and reporting to the American Civil Liberties Union and Americans United for Separation of Church and State. Sunrise objected.

Initially, the court ruled against Sunrise and entered an order incorporating the agreement, but after an appeal determining that Sunrise had standing to object, the appeals court required the district court on remand to address whether the agreement was fair, reasonable and consistent with the public interest. In response, the plaintiffs and Kentucky amended their agreement to address concerns related to singling out Sunrise for special monitoring and eliminating the need for Kentucky to make regulatory changes to comply with the amended agreement. The amended agreement required uniform monitoring of any agency. Shortly thereafter, a new administration took over in Kentucky and decided it no longer consented to the amended agreement. Both Kentucky and Sunrise opposed the plaintiffs' motion to enter the amended agreement and to dismiss the suit. The district court initially denied the motion.

On motion for reconsideration, the district court agreed that the amended agreement violates Kentucky law because it requires enactment of new or modified administrative regulations to be implemented. In this case, the court of appeals affirmed not because Kentucky now opposed the agreement, but because the amended agreement required defendants to modify or expand various regulations despite purporting otherwise. The plaintiffs argued that Kentucky had a contractual duty to make the regulatory changes, but the court disagreed.

Adoption Agency States Free Exercise and Free Speech Claims Against Closure

In New Hope Family Servs., Inc. v. Poole, 966 F. 3d 145 (2d Cir. 2020), the court overturned dismissal of the lawsuit and ruled that a Christian adoption agency stated a claim under the free exercise clause and free speech clause against the New York State Office of Children and Family Services for a regulation prohibiting adoption agencies from discriminating on the basis of sexual orientation and marital status. Plaintiff New Hope Family Services, Inc., which is wholly privately funded, assists women with unplanned pregnancies, provides temporary foster care for children and during its more than 50 years of operation has provided adoptive homes for more than 1,000 children. New Hope pled that it is informed by its religious beliefs that it cannot recommend adoption by unmarried or same-sex couples because it does not think such placements are in the best interests of a child. In 2018, New York informed New Hope that this violated its 2013 state regulation prohibiting discrimination against applicants for adoption services. N.Y. Comp. Codes R. & Regs. Titl 18., s. 421.3(d). New York told New Hope that it either had to change its policy to conform to the regulation or close. New Hope sued.

The court ruled that New Hope's pleadings "easily give rise to the 'slight suspicion' of religious animosity that the Supreme Court … indicated could raise constitutional concern" under the free exercise clause. The court gave several reasons, such as 1) a disconnect between the rule and more permissive law it purports to implement; 2) New York voiced no objection to New Hope's practices (such as recusal when same-sex couples apply) from 2013 when the rule was adopted until 2018; 3) comments by an agency spokesperson to the effect that "there is no place for providers that choose not to follow the law"; 4) the severity of the state's actions despite the absence of any express statutory authority to close a private agency; and 5) the fact that the rule has forced the closure of several other religious adoption agencies for the same reason, potentially evidencing the rule's real object. In addition, the court ruled that New Hope stated a claim for compelled speech and expressive association. The court disagreed that New Hope's speech was government speech merely as a result of regulation. The court remanded the case with guidelines for the district court to consider whether to grant a preliminary injunction.

Religious Institutions in the News

• The U.S. Department of Education announced guidance to protect the religious liberty of individuals and institutions participating in agency programs.
• New York Gov. Andrew Cuomo and others associate schools and large religious gatherings with breakouts and hot spots.
• A Pew Research Center study finds that U.S. adults strongly favor requiring houses of worship to follow the same rules regarding large gatherings and social distancing as other organizations.
• Foreign Affairs reports on the alleged global decline of religion.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

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.