Settlement Reached In Two ERISA Church Plan Cases

Bloomberg Law reports that Trinity Health Corp. has agreed to settle two class action lawsuits that claim the health care company's pension plans have been wrongly treated as "Church Plans" exempt from ERISA.  The Class Action Settlement Agreement (full text) still must be approved by the court.  The Agreement which covers Lann v. Trinity Health and Chavies v. Catholic Health East and was filed in Maryland federal district court is summarized by Bloomberg Law:

The settlement requires Trinity Health to contribute $75 million among nine different pension plans within the Trinity Health umbrella, including the plan for Catholic Health East, which merged with Trinity in 2014.... Trinity also agreed to run the pension plans in compliance with certain federal funding requirements and worker protection laws for the next 15 years....

In addition to making three $25 million pension plan contributions, the settlement requires Trinity to pay 219 individual employees $550 each to compensate them for benefits they allegedly lost by taking lump sum pension distributions in 2014.

In a similar vein, Trinity will distribute $1.3 million among the 7,371 former employees who allegedly forfeited certain benefits as a result of the pension plans' vesting requirements, which employees argued violated ERISA.

The settlement allows class counsel to seek up to $8 million in attorneys' fees, expenses and incentive awards for certain plaintiffs.

Roy Moore's Internal Court Memos Disclosed

As previously reported, in May the Alabama Judicial Inquiry Commission filed a Complaint against Alabama Supreme Court Chief Justice Roy Moore contending that Moore abused his authority and acted in violation of the Code of Judicial Ethics when in January he issued an administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples. Now, as reported by The Advocate, pleadings filed with the Judicial Inquiry Commission (full text) include redacted versions of two memos which Moore sent to the other Justices urging them to issue an opinion providing guidance to probate court judges.  He wrote in part:

Obergefell is particularly egregious because it mandates submission in violation of religious conscience (ask Kim Davis). Either go along or be disqualified from holding public office. In the near future Christians like Clerk Kim Davis will be driven out of public life, forced to forsake their faith or their livelihood....

 As Justice Alito stated, Obergefell "will be used to vilify Americans who are unwilling to assent to the new orthodoxy" and "to stamp out every vestige of dissent." ... The suppression of all dissent is now underway.

To paraphrase Martin Niemoller: They came for the florists, but I didn't deal in flowers; They came for the bakers, but I didn't bake cakes; They came for a county clerk in Kentucky, but that seemed far away; Then they came for me, and there was no one left to speak out.

Colorado Trial Court Says Injunction Covers Modified School Choice Program

Denver Post reports that yesterday a Colorado trial court held that an earlier injunction against Douglas County, Colorado's School Choice Grant Program covers a restructured version of the school choice arrangement.  After the Colorado Supreme Court held that the state constitution bars participation of sectarian schools in the original program, the county modified it to only allow participation by private schools that are not religiously affiliated.  However yesterday the trial court said that the modified program was promoted by the school district as a continuation of the old program, so the original injunction still applies.  The holding will not have a dramatic impact since only five eligible students had applied to the modified program.

Suit Seeks Control of Church Building Taken Over By Rival Pastor

In Ruskin, Florida, the pastor of the Church of Christ Christian Church and some of his handful of members have filed suit against 80-year old Shirley Dail who in June changed the locks on the church's doors to take possession of it in order to revitalize the congregation. The suit seeks to get back control of the church from Dail (who is also a pastor).  Yesterday's Tampa Bay Times reports:

While maintaining she's been a lifelong member of the church, Dail said she had only attended sporadically since starting a mission, the Church Along the Way, in her Ruskin barn 16 years ago.

She brought that group to the Church of Christ building this summer....

A church volunteer for 35 years, Dail said she was among its founding members in the 1960s and made a personal loan to help build the church.

In May ... Dail said the church was not running "as it was conceived" and that she had been "called home" to make the fixes she wanted.

Dail's goal was to increase the church's flock. Dail said she couldn't sit by and watch her church dwindle like so many others throughout the country.

District Court Holds Title VII Does Not Cover Sexual Orientation Discrimination

In Matavka v. Board of Education of J. Sterling Morton High School District 201, (N.D. Ill. 2016, Aug. 1, 2016), an Illinois federal district court dismissed a Title VII complaint by a former school employee alleging severe anti-gay harassment from his coworkers and supervisors.  The court indicated that it was required to follow the recent 7th Circuit decision in Hively v. Ivy Tech Comt. Coll that held Title VII does not cover discrimination on the basis of sexual orientation. (See prior posting.)  However the district judge expressed qualms about that conclusion similar to concerns expressed by two 7th Circuit judges in Hively.  Cook County Record reports on the decision.

Supreme Court Temporarily Stays 4th Circuit's Ruling On Title IX and Transgender Rights

The U.S. Supreme Court yesterday issued an order temporarily staying the 4th Circuit's mandate to a Virginia federal district court to reconsider its denial of a preliminary injunction in a transgender rights case.  In Gloucester County School Board v. G.G., (Sup. Ct., Aug. 3, 2016), the Court by a vote of 5-3 stayed the 4th Circuit's mandate pending the timely filing and disposition of a petition for certiorari.  In the case, the 4th Circuit held that a Virginia school board's policy barring a transgender boy (who had not undergone sex-reassignment surgery) from using the boy's rest rooms at his school violates Title IX's ban on discrimination on the basis of sex. (See prior posting.)  Justices Ginsburg, Sotomayor and Kagan dissented from the grant of a stay.  Justice Breyer said he concurred with the stay "as a courtesy" while the Supreme Court is in recess. Los Angeles Times reports on the Supreme Court's action.

Unitarian Church Sues Saying It Has Religious Duty To Use Solar Panels

RLUIPA Defense blog reported last week on a suit filed in late June in Massachusetts by a Unitarian church seeking to install solar panels on its building in an Historic District. The complaint (full text) in First Parish in Bedford, Unitarian Universalist v. Historic District Commission of the Town of Bedford, (MA Superior Ct., filed 6/27/2016), contends that the denial of a certificate of appropriateness to install solar panels on the roof of its Meetinghouse infringes church members' free exercise of religion in violation of the Massachusetts and U.S. Constitutions. The complaint alleges that:

Unitarian Universalists ... believe that their religion necessarily involves taking action on a personal, congregational and community level to confront and mitigate mankind's role in causing and exacerbating global warming.

USCIRF Releases Report On U.S. Treatment of Asylum Seekers

The U.S. Commission on International Religious Freedom yesterday released a report titled Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal.  The report is a follow-up to one issued in 2005, and says:

The research revealed that, although DHS had taken some measures in response to the 2005 study, there were continuing and new concerns about the processing and detention of asylum seekers in Expedited Removal, and most of USCIRF’s 2005 recommendations had not been implemented.

The Report focuses on refugee processing generally, and not specifically on those who claim refugee status based on religious persecution.  However the Report gives this example of problems faced by those claiming religious persecution:

A [Border Patrol] supervisor ... expressed skepticism about Chinese claims of religious persecution, telling USCIRF that Chinese individuals often say they are Christian but cannot even name the church they attend; when USCIRF informed him that many Chinese Christians worship in homes, not churches, he seemed surprised.

Nevada Supreme Court Hears Oral Arguments In School Choice Cases

On Friday, the Nevada Supreme Court heard oral arguments (audio of full oral arguments) in two cases challenging the constitutionality of Nevada's extensive school-choice law enacted in 2015.  The law provides for educational savings accounts funded by the state. The cases are captioned Schwartz v. Lopez in the Supreme Court, and were decided below sub. nom Duncan v. State of Nevada (see prior posting) and Lopez v. Schwartz (see prior posting).  Courthouse News Service reports on Friday's oral arguments.

Court Refuses Stay Pending Appeal In Challenge To Mississippi Anti-LGBT Conscience Law

In Barber v. Bryant, (SD MS, Aug. 1, 2016), a Mississippi federal district court refused to stay pending appeal its earlier order granting a preliminary injunction against Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act. (See prior posting.)  The Act protects a wide variety of conduct reflecting disapproval of, or refusals to provide goods and services to, members of the LGBT community.  The court rejected movants' claim that they are likely to succeed on the merits of their appeal that defends the law. Responding to movants' argument that "HB 1523 is akin to federal exemption laws protecting pacifists and abortion opponents," the court said:

issuing a marriage license to a gay couple is not like being forced into armed combat or to assist with an abortion. Matters of life and death are sui generis. If movants truly believe that providing services to LGBT citizens forces them to “tinker with the machinery of death,” their animus exceeds anything seen in Romer, Windsor, or the marriage equality cases.

Buzz Feed reports on the decision.

Satanic Temple To Offer Alternative To Good News Clubs

The Satanic Temple, whose agenda is secularist and not the promotion of devil worship, is again using its provocative name and doctrines of equal access to promote its agenda of separation of church and state.  As reported last week by the Washington Post,  the organization is introducing the After School Satan Club to public elementary schools, modeled after the widespread Christian-based Good News Clubs. In a letter (full text) to selected school districts, organizers say:

The After School Satan Club (ASSC) meets once a month immediately after school for one to one and a half hours.... ASSC meetings typically include a healthy snack, literature lesson, creative learning activities, science lesson, puzzle solving and art project.  Every child receives a membership card and must have a signed parental permission slip to attend.

Ministerial Exception Claim Requires Case-Specific Factual Analysis

In Collette v. Archdiocese of Chicago, (ND IL, July 29, 2016), an Illinois federal district court refused to dismiss an employment discrimination suit brought by plaintiff who for 17 years was employed as the Director of Worship and Director of Music at Holy Family Parish in Inverness, Illinois.  He was dismissed when it was learned he was planning to marry his same-sex partner.  When he sued claiming violations of federal, state and local law, defendants moved to dismiss on the basis of the ministerial exception doctrine.  They argued that he should be seen as a "ministerial" employee based solely on his titles. The court refused to dismiss solely on the pleadings, holding that whether plaintiff is a "ministerial" employee requires a fact-specific analysis.

Planned Parenthood and Mormon Church Spar Over Intellectual Property Rights

Life Site News reported yesterday on the interesting intellectual property dispute that played out on the sidelines of last week's Sunstone Symposium in Salt Lake City.  The Symposium draws over 1,500 attendees to talk about Mormon history, theology, politics, culture from a variety of Restorationist perspectives.  One of vendors at the event was Planned Parenthood, which often uses humor in its messaging.  The group created a special run of condoms to distribute to attendees with packaging carrying the letters "CTR" on a shield.  This mimics the design of a ring which since 1970 has been given to every Mormon child to remind them to "Choose the Right." After receiving complaints, the Symposium sponsors allowed Planned Parenthood to distribute the condoms, but not to display them.  A Mormon Church spokesperson said that Planned Parenthood had not sought permission to use the design which belongs to the Church.

Penitent May Testify To Her Statements To Priest In Confession

As previously reported, in February a Louisiana trial court held that a plaintiff suing the Catholic Church and a priest can testify that in 2008 she told the priest during confession that she was being abused by a 64-year old parishioner. The Church and the priest appealed, but in a 2-1 decision in Mayeux v. Charlet, (LA App., July 29, 2016) the appeals court affirmed the trial court decision.  However Judge Holdridge dissenting argued:

The statements sought to be excluded were made during the Sacrament of Confession, which is one of the central institutional practices of the Roman Catholic Church. Pursuant to the "seal of confession", a priest is prohibited from revealing anything learned during confession under any circumstance.... The violation of the seal of confession subjects the priest to automatic excommunication.... Accordingly, allowing Plaintiffs to mention, reference, or introduce evidence at trial of the confessions at issue will place an undue burden on Father Bayhi' s right to the free exercise of his religion and violates the constitutional command of separation of church and state. La. Const. art. I, § 8. 

ABA To Vote On Anti-Discrimination Professional Conduct Rule

At the American Bar Association Annual Meeting which begins this Thursday in San Francisco, the House of Delegates will vote on an amendment to the Model Rules of Professional Conduct 8.4 (full text of amended Rule and Comment) which will make it professional misconduct for a lawyer to:

(g) harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16.

The amendment replaces a current comment the merely bars bias prejudicial to the administration of justice in representing clients. The new proposal apparently has some opposition.  In a piece published today in the conservative American Thinker, a former Regent Law School Dean and a former Reagan Administration official argue among other things:

Statutes accommodating religious conscience abound at both the state and federal level.  Law schools with an overtly religious mission, including the hiring, faculty, and admission of students, enjoy ABA accreditation.  Nationwide, lawyers and law firms hold themselves out to the public as Christians, letting the community know that they are dedicated to practicing law in accordance with ethical rules of their personal faith.  Why should such law firms be barred from hiring lawyers which share the same religious convictions?  Indeed, the Holy Scriptures counsel believers not to become "unequally yoked" with nonbelievers.  2 Corinthians 6:14.  Are Christian lawyers to be barred by ethics rules from obeying Biblical statutes?  Why should lawyers not be free to hire and fire staff on the basis of fidelity to their shared moral code? ... Why should a lawyer be penalized if he candidly advises potential clients what that code is?... 

Recent Articles of Interest

From SSRN:

• Lucia Ann Silecchia, 'Social Love' as a Vision for Environmental Law: Laudato Si' and the Rule of Law, (10 Liberty University Law Review 371 (2016)).
• Geurt Henk Spruyt, Politicians and Epidemics in the Bible Belt, (Utrecht Law Review, Vol. 12, No. 2, p. 114-126, June 2016).
• Nelson Tebbe, Micah Schwartzman & Richard Schragger, When Do Religious Accommodations Burden Others?, (The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & Michel Rosenfeld eds., Cambridge Univ. Press, 2017 Forthcoming)).
• Nelson Tebbe, Micah Schwartzman & Richard Schragger, How Much May Religious Accommodations Burden Others?, (in Law, Religion, and Health in the United States (Elizabeth Sepper, Holly Fernandez Lynch, and I. Glenn Cohen, ed., Cambridge Univ. Press, 2017 Forthcoming)).
• Johnny Rex Buckles, The Sexual Integrity of Religious Schools and Tax Exemption, U of Houston Law Center No. 2016-W-2. (2016)).
• Robert C. Blitt, Equality and Nondiscrimination Through the Eyes of an International Religious Organization: The Organization of Islamic Cooperation (OIC) Response to Women's Rights and Sexual Orientation and Gender Identity Rights, (July 26, 2016).
• Shahbaz Ahmad Cheema, Fatawa in Pakistani Courts: An Appraisal, (July 26, 2016).

From elsewhere:

• U.S. Department of Justice, Combating Religious Discrimination Today: Final Report, (July 2016).

Recent Prisoner Free Exercise Cases

In Mayo v. County of York, (3d Cir., July 25, 2016), the 3rd Circuit (via a footnote) affirmed dismissal of an inmate's complaint that a package containing a Bible was initially rejected as overweight.

In Salas v. Gomez, 2016 U.S. Dist. LEXIS 96769 (ND CA, July 25, 2016), a California federal district court allowed a Jewish inmate to move ahead with claims against various defendants as to the adequacy of the kosher diet furnished him and the refusal to transfer him to a different prison that could meet his religious needs more generally.

In Long v. John Does 1-3, 2016 U.S. Dist. LEXIS 96859 (D HI, July 25, 2016), a Hawaii federal district court held that a Muslim inmate's complaint that he was not provided early meals during Ramadan states a claim, but that he must identify the John Doe defendants through interrogatories in order to move ahead.

In Parkell v. Senato, 2016 U.S. Dist. LEXIS 97903 (D DE, July 26,2016), a Delaware federal district court permitted an inmate who practices a faith that combines Wicca and Judaism to move ahead with his 1st Amendment and equal protection claims regarding past refusal to furnish him a kosher diet.

In Rivera v. Stirling, 2016 U.S. Dist. LEXIS 97947 (D SC, July 27, 2016), a South Carolina federal district court dismissed under the "three strikes" rule a suit by a Muslim inmate complaining that he did not receive a vegetarian diet. The magistrate's recommendation is at 2016 U.S. Dist. LEXIS 98082, June 24, 2016.

In Hastings v. Thomas, 2016 U.S. Dist. LEXIS 98161 (MD AL, July 26, 2016), an Alabama federal magistrate judge recommended dismissing for failure to exhaust administrative remedies a complaint by a Native American inmate that his religion was impeded.

7th Circuit Reluctantly Holds Title VII Does Not Cover Sexual Orientation Discrimination

In Hively v. Ivy Tech Community College, (7th Cir., July 28, 2016), the U.S. 7th Circuit Court of Appeals adhered to its past precedent and held that Title VII of the 1964 Civil Rights Act does not cover employment discrimination on the basis of sexual orientation. However two of the three judges (Judge Rovner who wrote the opinion and Judge Bauer) apparently did so hesitantly, joining in the lengthy portions of the opinion that review the anomalies produced by this conclusion.  They said in part:

As things stand now, ... our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up— but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects “flamboyant” gay men and “butch” lesbians but not the lesbian or gay employee who act and appear straight....

In addition to the inconsistent application of Title VII to gender non‐conformity, these  sexual orientation cases highlight another inconsistency in courts’ applications of Title VII to sex as opposed to race....  [C]ourts and the Commission have consistently concluded that the statute prohibits discrimination based on an employee’s association with a person of another race, such as an interracial marriage or friendship..... But ... Title VII ... has not protected women employees who are discriminated against because of their intimate associations with other women, and men with men....

Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, ...; many of the federal courts to consider the matter have stated that they do not condone it...; and this court undoubtedly does not condone it.... But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent....

Judge Ripple concurred in the outcome, but did not join those part of the opinion expressing doubt about the continued viability of the past precedent.  The decision came in the case of a part-time adjunct professor at a community college who claimed that she was denied a full-time position. Indy Star reports on the decision.

Libertarian Candidate On Religious Liberty

The Washington Examiner yesterday posted an interview with Libertarian Party candidate for President (and former New Mexico governor), Gary Johnson, focusing largely on Johnson's views on religious liberty issues.  Here is an excerpt:

Do you think New Mexico was right to fine the photographer for not photographing the gay wedding?

"Look. Here's the issue. You've narrowly defined this. But if we allow for discrimination — if we pass a law that allows for discrimination on the basis of religion — literally, we're gonna open up a can of worms when it come stop discrimination of all forms, starting with Muslims … who knows. You're narrowly looking at a situation where if you broaden that, I just tell you — on the basis of religious freedom, being able to discriminate — something that is currently not allowed — discrimination will exist in places we never dreamed of."

Parish Assets Not Includable In Archdiocese Bankruptcy

As reported by the Minneapolis Star Tribune, a Minnesota federal bankruptcy court yesterday refused to include the assets of 200 parishes, schools and other entities as part of the assets of the Archdiocese of St. Paul and Minneapolis in its Chapter 11 bankruptcy proceedings.  In In re: The Archdiocese of Saint Paul and Minneapolis, (MN Bkruptcy., July 28, 2016), the court said in part:

The typical substantive consolidation is reserved for situations where the finances of two or more debtors are so confusingly intertwined that it is impossible to separate them. Nothing of the sort is alleged here. There were insufficient facts demonstrating a complete abuse of the non-debtors’ corporate form under Minnesota law governing religious corporations and organizations.

Reacting to the ruling,  Archbishop Bernard Hebda in a statement (full text) said that he is "particularly thankful that [the judge] was not swayed by the allegations that the Archdiocese had hidden assets and engaged in deceptive practices...." He added: "The Archdiocese nonetheless continues to stand ready to work with counsel for sexual abuse claimants to provide fair compensation as part of our Plan of Reorganization.." [Thanks to Tom Rutledge for the lead.]