Court May Not Automatically Defer To Religious Objections Of One Parent In Deciding Child's Best Interest

In Arcella v. Arcella, (NV Sup. Ct., Dec. 26, 2017), the Nevada Supreme Court held that a trial court was wrong in the manner it resolved a dispute between divorced parents over the middle school their child should attend. the father wanted the child to attend a private Lutheran school, but the mother objected to the child's receiving a religious education.  The court, relying solely on the mother's religious objections, decided that the child should attend a public school.  In reversing, the state Supreme Court said in part:

When a district court decides a child's best interest, "[t]he First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." ... The district court violates this principle of neutrality when it treats one parent's religious objection as dispositive when deciding between a religious school and a nonreligious school....

In sum, a district court does not violate the First or Fourteenth Amendments by ordering a child to attend a religious school over a parent's religious objection. Indeed, the district court must order a child to attend the religious school if attendance at that school accords with the child's best interests.

Las Vegas Review Journal reports on the decision.

Court Tells South Korea To Halt Publicizing Personal Information On Conscientious Objectors

The Hankyoreh yesterday reports that South Korea's Military Manpower Administration is publishing the personal information of religious conscientious objectors on its website. The paper says:

Since last year, the Military Service Act has mandated that a registry be kept identifying those who refuse to report for service without a legitimate reason. But critics have pointed out that presenting those who refuse to serve because of their pacifism or religious beliefs as if they were deliberate draft dodgers subjects them to double punishment....

When the MMA published the personal information of conscientious objectors on its website in Dec. 2016, 105 individuals filed a lawsuit with the Seoul Administrative Court asking for the publication decision to be reversed and another lawsuit asking for a stay of execution on the publication until the court made its decision in the first case. In May, the ... Seoul Administrative Court ... ruled that the publication of their personal information should be halted until the final legal decision, citing “concerns that irreparable damages could be incurred.”

Despite the stay of execution ordered by the court, the MMA included conscientious objectors among the draft dodgers whose personal information was published once again this year. In response, 252 individuals filed the same lawsuit once again..... On Dec. 19, ... the Seoul Administrative Court... once again ruled that the publication of the plaintiffs’ personal information should be halted until the court makes its ruling.

8th Circuit Rejects Trooper's Challenge to Required Ride-Along With Chaplain

In Steckelberg v. Rice, (8th Cir., Dec. 26, 2017), the U.S. 8th Circuit Court of Appeals affirmed the district court's dismissal of a suit by a Nebraska State Trooper alleging various complaints about his treatment in connection with his application for a promotion and for a transfer and in handling grievances he filed. One of plaintiff's complaints, focused on during oral argument in the 8th Circuit, was that as part of his required performance improvement plan, he was required to ride along with the State Patrol chaplain, a Catholic priest, for a shift.  The 8th Circuit apparently agreed with the district court's rejection of the argument that this amounted to government coerced proselytization. The Lincoln Journal Star, reporting on the decision, says that a petition for en banc review is likely to be filed.

Top Church-State and Religious Liberty Developments of 2017

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  Usually I select the top ten, but this year I have expanded it to 11. The selection obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Eleven picks for the rather chaotic year that is currently coming to an end:

1.  President Trump issues and reissues restrictions on immigration and entry of refugees which are challenged in the courts as "Muslim bans."

2. Supreme Court's Trinity Lutheran Church decision opens the possibility of expanded governmental aid to religious institutions.

3. Christian Evangelicals remain core supporters of Donald Trump.

4. Trump Administration expands religious and moral exemptions from ACA contraceptive coverage mandate; court challenges filed.

5. The Masterpiece Cakeshop case attracts over 90 amicus briefs as it is argued before the Supreme Court.  The Christian baker's refusal to create a wedding cake for a same-sex couple becomes a symbol of the cultural clash between ideals of religious freedom and equality, even though arguments focus on free speech issues.

6. Congress fails to repeal the Johnson Amendment, despite promises by President Trump.

7. Transgender discrimination and transgender service in the military remain high profile religious and cultural issues in the courts and in the political arena.

8. The Alt-Right march in Charlottesville reveals resurgence of traditional forms of  anti-Semitism.

9. Supreme Court's decision in Advocate Health Care Network v. Stapleton saves retirement plans of religiously affiliated health care networks from unanticipated and costly ERISA coverage.

10. In Israel, government's suspension of an agreement with Judaism's Reform and Conservative movements to construct a separate prayer space at the Western Wall for egalitarian prayer opens a rift with a large segment of the American Jewish community.

11. India's Supreme Court invalidates Triple Talaq marriage for Muslims in India.

For top picks by other observers of the legal and religious scene, see Don Byrd's Top Ten Religious Liberty Stories, and  Religion News Association's Top 10 Religion Stories of the Year Poll.

Recent Articles of Interest

From SSRN:

• Effie Fokas, Kokkinakis at the Grassroots Level, (Religion and Human Rights 12 (2017) 210-222).
• Effie Fokas, The European Court of Human Rights at the Grassroots Level: Who Knows What About Religion at the ECtHR and to What Effects?, (Religion, State and Society, 2017, 45 (3-4)).
• Martha Albertson Fineman & Silas W. Allard, Vulnerability, the Responsive State, and the Role of Religion, (In Exploring Vulnerability, H. Springhart and G. Thomas (eds.), Vandenhoeck & Ruprecht 2017).
• Deborah A. Widiss, Intimate Liberties and Antidiscrimination Law, (Boston University Law Review, Vol. 97, 2017).
• Prakash Shah, Orientalism, Multiculturalism, and Identity Politics: Hindus and the British Caste Law, (Forthcoming in Quaderni di Diritto e Politica Ecclesiastica (special issue: Daimon. Diritto comparato delle religioni) 2017).
• Jim Nicholls, Taken - An Islamic Inspired Collaboration to Facilitate the Freedom of People Taken Hostage Because of Their Nationality, Race or Beliefs, (December 12, 2017).

Mormon Student Loses Religious Harassment Claim Against College Tennis Coach

In Duffin v. Idaho State University, (D ID, Dec. 21, 2017), an Idaho federal district court dismissed on qualified immunity grounds religious discrimination and other constitutional claims by a Mormon college student who alleges that the head tennis coach and his assistant harassed plaintiff about his religion. The court added:

Defendants were clearly harassing Duffin about his religion, and trying to test his adherence to his beliefs – especially when they invited him to a night club and sent women to his hotel room to proposition him for sex. Such actions were boorish and entirely inappropriate. In doing so, they likely intended to discourage Duffin from practicing his religion and following the tenets of his faith, by presenting him with opportunities to act contrary to his religious beliefs. But, their actions do not rise to the level of coercion or substantial pressure to modify Duffin’s behavior, which is needed to establish a free exercise of religion claim.

The court asserted supplemental jurisdiction over plaintiff's state law claims.  In connection with plaintiff's negligence claim, the court certified a question of law to the Idaho Supreme Court.  The court dismissed plaintiff's intentional infliction of emotional distress claim and denied summary judgment on his claim for negligent infliction of emotional distress.

World Leaders Send Christmas Greetings

President Donald Trump tweeted last night:

People are proud to be saying Merry Christmas again. I am proud to have led the charge against the assault of our cherished and beautiful phrase. MERRY CHRISTMAS!!!!!

[UPDATE:This morning President Trump and the First Lady issued more traditional Christmas greetings via Twitter.]

According  to The Hill, Israeli Prime Minister Benjamin Netanyahu issued similar Christmas greetings:

"I'm very proud to be the prime minister of Israel, a country that says 'Merry Christmas' first to its Christian citizens and to our Christian friends around the world," Netanyahu said in a video posted to Twitter.

Other world leaders used similar phraseology without making an issue of it.  Here are the greetings from Canada's Prime Minister Justin Trudeau .  British Prime Minister Theresa May's Christmas message carried a broader theme:

Let us take pride in our Christian heritage and the confidence it gives us to ensure that in Britain you can practice your faith free from question or fear.

Let us remember those around the world today who have been denied those freedoms – from Christians in some parts of the Middle East to the sickening persecution of the Rohingya Muslims.

And let us reaffirm our determination to stand up for the freedom of people of all religions to speak about and practice their beliefs in peace and safety.

So this Christmas, whatever our faith, let us come together confident and united in the values we share. And wherever you are at this special time of year, let me wish you all a very Happy Christmas. 

Recent Prisoner Free Exercise Cases

In Howard v. Joyce Meyer Ministries, 2017 U.S. Dist. LEXIS 207022 (ED WI, Dec. 18, 2017),  a Wisconsin federal district court dismissed an inmate's complaint that the prison promoted Christianity through a Library drawing, a gift bag give away, and Christian radio programming, as well as his claim that he was not allowed to possess a Buddha emblem necklace.

In Cooper v. Bower, 2017 U.S. Dist. LEXIS 207350 (WD KY, Dec. 15, 2017), a Kentucky federal district court held that correctional officers were entitled to qualified immunity as to their rejection of a Qur'an that had been mailed to plaintiff inmate.

In Spearman v. Williams, 2017 U.S. Dist. LEXIS 208111 (WD MI, Dec. 19, 2017), a Michigan federal district court dismissed on statute of limitations grounds an inmate's claim that his Nuwaubian religious scrolls were lost when he was moved to a different room.

In Sabir v. Williams, 2017 U.S. Dist. LEXIS 208640 (D CT, Dec. 19, 2017), a Connecticut federal district court permitted a Musim inmate to move ahead with his complaint about prison policy that prohibited gropu prayer outside of the chapel.

In Endicott v. Allen, 2017 U.S. Dist. LEXIS 209998 (ED MO, Dec. 21, 2017), a Missouri federal district court allowed a Jewish inmate to move ahead with a number of complaints regarding availability of kosher meals, food items and religious materials. Among his charges he claims that the canteen manipulates the items listed as kosher to catch him buying non-kosher food and obtain his removal from the religious diet list.

In Cochran v. Sherman, 2017 U.S. Dist. LEXIS 210403 (ED CA, Dec. 21, 2017), a California federal magistrate judge recommended allowing an inmate to proceed against certain defendants who denied his religious request for a publicly recorded legal name change to Gabriel Christian Hunter.

In Hearns v. Gonzales, 2017 U.S. Dist. LEXIS 210517 (ED CA, Dec. 21, 2017), a California federal magistrate judge recommended allowing a former inmate to move ahead with his complaint regarding a retaliatory cell search, but dismissed with leave to amend his complaint regarding damage to and confiscation of his prayer rug.

In Davis v. Hamilton County Jail, 2017 U.S. Dist. LEXIS 210697 (ED TN, Dec. 22, 2017),a Tennessee federal district court dismissed an inmate's complaint that verbal harassment interfered with his ability to practice his religion.

In Saif'Ullah v. Albritton, 2017 U.S. Dist. LEXIS 211188 (ND CA, Dec. 21, 2017), a California federal district court dismissed a Muslim inmate's complaint regarding reminders about the ban on large group noon and afternoon congregational prayer during open day room.

Selective Suspension of Refugee Admissions Is Enjoined

In October, President Trump issued an Executive Order resuming the admission of refugees to the United States, but with increased vetting. (See prior posting.)  A follow-up Agency Memorandum (Fact Sheet) implemented the Executive Order by suspending indefinitely entry of most "follow to join" refugees (i.e. relatives of refugees already resettled in the United States), and suspending for at least 90-days entry of refugees from 11 specified countries.  In Doe v. Trump,  (WD WA, Dec. 23, 2017), a Washington federal district court concluded that the federal agencies involved should have engaged in rulemaking procedures under the Administrative Procedure Act before imposing these restrictions. It also concluded that the suspensions violated various provisions of the Immigration and Nationality Act. the court issued a nationwide preliminary injunction barring enforcement of these restrictions as to any refugee with a bona fide relationship to a person or entity within the United States.  All follow-to-join refugees have such a relationship. Politico reports on the decision.

9th Circuit: Trump's 3rd Travel Ban Violates Immigration Act

In State of Hawaii v. Trump, (9th Cir., Dec. 22, 2017), the U.S. 9th Circuit Court of Appeals, agreeing with the district court (see prior posting), concluded that President Trump's third travel ban is inconsistent with the Immigration and Nationality Act, saying in part:

The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., vests the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation.

The court avoided deciding the question of whether the Proclamation violates the Establishment Clause.  The court also limited the district court's preliminary injunction to foreign nationals who have a bona fide relationship with a person or entity in the United States. Also, as already ordered by the Supreme Court, the 9th Circuit stayed its injunction pending Supreme Court review. Los Angeles Times reports on the decision.

European Court: EU Regulation Does Not Apply to Religious Court Divorces

In Sahyouni v. Mamisch, (CJEU, Dec. 20, 2017), the Court of Justice of the European Union held that EU Council Regulation 1259/2010 implementing enhanced legal cooperation in matters of divorce and legal separation does not apply to a divorce granted by a Muslim religious court.  The European Court said in part:

it is clear from the objectives pursued by Regulation No 1259/2010 that the latter regulation covers solely divorces pronounced either by a national court or by, or under the supervision of, a public authority.

Law & Religion UK blog has more on the decision.

Another Court Enjoins Expanded Exemptions From Contraceptive Coverage Mandate

In State of California v. Health and Human Services, (ND CA, Dec. 21, 2017), a California federal district court issued a nationwide preliminary injunction against enforcement of the Trump Administration's Interim Final Rules issued in October (see prior posting) expanding exemptions from the ACA contraceptive coverage mandate for those with religious or moral objections.  The court ordered the government, pending resolution on the merits, to proceed under the narrower exemption regime that was in effect prior to October.  The court concluded that plaintiffs had shown a likelihood that they will succeed on their claim that the government violated the Administrative Procedure Act by promulgating the Interim Final Rules without advance notice and comment.  Americans United issued a press release announcing the decision.  Last week another federal district court issued a similar preliminary injunction. (See prior posting.)

Trump Commutes Sentence of Sholom Rubashkin

The White House announced yesterday that President Trump has commuted the prison sentence of Sholom Rubashkin, saying that it was "an action encouraged by bipartisan leaders from across the political spectrum, from Nancy Pelosi to Orrin Hatch." According to the White House's announcement:

Mr. Rubashkin is a 57-year-old father of 10 children.  He previously ran the Iowa headquarters of a family business that was the country’s largest kosher meat-processing company.  In 2009, he was convicted of bank fraud and sentenced thereafter to 27 years in prison. Mr. Rubashkin has now served more than 8 years of that sentence, which many have called excessive in light of its disparity with sentences imposed for similar crimes.

This action is not a Presidential pardon.  It does not vacate Mr. Rubashkin’s conviction, and it leaves in place a term of supervised release and a substantial restitution obligation, which were also part of Mr. Rubashkin’s sentence.

In 2011, the 8th Circuit upheld Rubaskin's conviction and sentence. (See prior posting.) After his bank fraud conviction, charges against Rubashkin of hiring of illegal aliens in his meat packing plant were dropped.  Des Moines Register reports on developments, along with further background.

England's Court of Appeal Rejects Religious Objections To Transgender Parent's Contact With Children

Britain's Court of Appeal yesterday reversed the decision of a Family Court judge who had ordered that the Orthodox Jewish father of five children who left the family to live as a transgender woman could have no direct contact in the future with the children.  The Family Court judge based his decision on the ostracism that the children and their mother would face from the North Manchester Charedi Jewish community in which they continued to live. (See prior posting.)  In In the matter of M (Children),  (EWCA, Dec. 20, 2017), the appeals court remanded the case to the Family Court, suggesting that some compromise might be found. The appeals court, however, made clear what result should follow if a compromise could not be found:

If the matter has in due course to be determined by the court, we would take the view that in the light of developments in Strasbourg jurisprudence there would be force in Ms Ball's submissions that the community’s beliefs, which resulted in the ready exclusion of young children from the rest of the community, did not meet the criteria set by the Strasbourg court for a religious belief that was entitled to protection under Article 9 [Freedom of thought, conscience and religion].... In that situation, we would expect the leaders of the community to help the community to adopt a more flexible attitude to their beliefs as they might affect the children....

Provisionally ... it seems to us that, if a court were to make an order granting the father some form of direct contact to the children, it would have to have concluded, after the most careful consideration with the parties, that that course was in the best interests of the children. If this involves any interference with any rights of the community to manifest their religious beliefs, we doubt that there would be any violation of the community’s rights under Article 9. This is because the court, as an organ of the State, will on this basis have decided that a restriction that may be involved of their right to express their religious beliefs serves the legitimate aim of protecting the children’s rights to have contact with their father and thus to enjoy family life with him, which rights are vital to their well-being.

The appeals court also issued a Press Summary of the decision. LGBTQ Nation reports on the decision.

Fired Atlanta Fire Chief Wins Challenge To Outside Employment Rules

In Cochran v. City of Atlanta, Georgia, (ND GA, Dec. 20, 2017), a Georgia federal district court gave a partial victory to a former Atlanta fire chief who was dismissed from his position over a book which he wrote.  The book, designed as a religious guide for men, called those who engage in extramarital or in homosexual sex "wicked" and "ungodly."  Plaintiff Kevin Cochran contends that he was fired because of his religious speech.  The city says Cochran was fired for ignoring the city's pre-clearance rules for outside employment, facilitating a public relations campaign against the mayor and the city, and also creating city vulnerability for employment discrimination claims. (See prior related posting.)

The court dismissed plaintiff's retaliation, free speech and free exercise claims.  However the court refused to dismiss plaintiff's challenges to the city's pre-clearance rules for outside employment.  The court granted plaintiff summary judgment on his prior restraint challenge to the pre-clearance rules, as well as on his claim that the rules are unconstitutional content-based restrictions that invite unbridled discretion by the city.  AP reports on the decision, indicating that the two sides have different views as to what issues remain to be determined in the case.

DC Circuit Refuses Injunction Pending Appeal In DC Religious Bus Ad Case

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (DC Cir., Dec. 20, 2017), the Court of Appeals for the D.C. Circuit refused to issue an injunction pending appeal to prevent enforcement of a WMATA advertising policy that rejects bus ads which promote religion, religious practices or religious beliefs.  Earlier this month, the district court upheld WMATA's rejection of an ad from the Archdiocese promoting its "Find the Perfect Gift" Christmas campaign. (See prior posting.)  In denying the motion for an injunction, the Court of Appeals said in part:

Appellant has failed to establish a substantial likelihood of success because, at least at this early pre-discovery procedural stage, Appellant’s argument of discriminatory treatment is grounded in pure hypothesis. Appellant has not come forward with a single example of a retail, commercial, or other non-religious advertisement on a WMATA bus that expresses the view that the holiday season should be celebrated in a secular or non-religious manner.

The court did order an expedited briefing schedule, and urged the parties to limit the use of abbreviations, including acronyms, in their briefs.  Washington Post reports on the decision.

Oklahoma Supreme Court Reverses Itself In Suit By Muslim Convert To Christianity

In Doe v. First Presbyterian Church U.S.A. of Tulsa, (OK Sup. Ct., Dec. 19, 2017), the Oklahoma Supreme Court, in a 5-4 decision, withdrew its Feb. 2017 decision (see prior posting) dismissing on church autonomy grounds a suit challenging a church's publicizing of plaintiff's baptism, and replaced it with a majority opinion reversing the trial court's dismissal of the suit for lack of subject matter jurisdiction. At issue are tort and breach of contract claims against a Presbyterian congregation.  Plaintiff is a Syrian, Muslim refugee who became interested in converting to Christianity and agreed to be baptized only after it was agreed that his conversion would be kept private.  However Presbyterian Church doctrine requires that information about those baptized be made public.  The fact of plaintiff's baptism was published on the Internet, leading to plaintiff's kidnapping and torture by Islamic extremists when he returned to Syria for a visit. The majority held:

All parties agree Doe simply asked for baptism, but never to become a member subject to the Appellees' ecclesiastical hierarchy. Without this consent, Doe's religious freedom to not subject himself to the Appellees' judicature must be respected and honored under the longstanding and clear constitutional decisions from our Court and the Supreme Court of the United States. What Doe consented to and what the FPC communicated to Doe must be determined as a foundational inquiry regarding Doe's claims.

It was error for the district court to conclude that it had no subject matter jurisdiction to hear Doe's claims on the basis of ecclesiastical jurisdiction. The record below is replete with contested issues of fact which must be resolved by the trier of fact in an adversarial hearing below. This matter is hereby remanded back to the trial court for proceedings consistent with this decision.

Chief Justice Combs dissenting opinion argued that the majority wrongly conflated the church autonomy and ministerial exception doctrines in holding that the church autonomy defense is not jurisdictional. He went on to argue that plaintiff's non-membership in the church does not preclude application of the church autonomy doctrine. News OK reports on the decision. [Thanks to Scott Mange for the lead.]

Judge Reprimanded For Gay Adoption Recusal Order

The Kentucky Judicial Conduct Commission has voted to reprimand now-retired Family Court Judge W. Mitchell Nance.  In In re Nance, (Jud. Con. Commn, Dec. 19, 2017), the Commission concluded that Nance had violated Canons of Ethics that require judges to decide cases fairly and impartially when, based on his religious views, he issued an Order recusing himself from any case involving adoption of a child by a gay or lesbian.  As described by the Commission:

On April 27th, 2017 the Respondent issued General Order 17-01 declaring that “under no circumstance” would the adoption of a child by a homosexual be in the child’s best interest. Acknowledging that this declaration constitutes a “personal bias or prejudice” against homosexuals seeking to adopt children, Judge Nance ordered that any attorney filing a motion for adoption on behalf of a homosexual party notify court staff so that he could recuse and disqualify himself from any such proceeding.

(See prior related posting.) The Richmond Register reports on the Commission's decision.

10th Circuit: ERISA "Church Plan" Exemption Does Not Violate Establishment Clause

In Medina v. Catholic Health Initiatives, (10th Cir., Dec. 19, 2017), the U.S. 10th Circuit Court of Appeals held that Catholic Health Initiatives retirement plan for employees of 92 hospitals qualifies as a "church plan" under ERISA. One of the issues in the case was resolved by the Supreme Court while this appeal was pending.  Resolving the other issues, the 10th Circuit held that CHI's internal benefits committee qualifies as the statutorily required organization associated with a church that maintains a retirement plan.  The Court went on to conclude that the "church plan" exemption does not violate the Establishment Clause.  It held that the exemption meets all three prongs of the Lemon test.  Rejecting the argument that the exemption has the effect of favoring religion, the Court said in part:

Any law of general applicability that exempts religious organizations from its requirements could be said to convey a message that religion is favored. Religion is, after all, being exempted from a rule everyone else has to follow. Such an approach would mean that Congress could never exempt religious organizations from laws that might burden them—even when burdening religious organizations would itself run afoul of the Constitution. But this is common practice. A number of statutes regulate wide swathes of the American economy. And many of these statutes expressly exempt religious organizations from various requirements. 

Dismissal of Claims Against Church For Sex Abuse by Youth Director Is Upheld

In B.B. v. Methodist Church of Shelbina, Missouri, (MO App., Dec. 19, 2017), a Missouri appellate court upheld the dismissal of a suit for damages against a church growing out of the sexual molestation of appellant by the church's youth director.  The molestation occurred in 2006 when appellant was 12 years old.  The court summarized its holding in part as follows in an accompanying Opinion Summary:

(1) The Establishment Clause ... bars Appellant’s negligence-based claims and his claim for breach of fiduciary/confidential relationship against Respondents because we cannot resolve these claims without interfering with and interpreting the doctrine, policy, polity, practice, and administration of the Respondents.

(2) Appellant has not and will not be able to present sufficient evidence to prove an element of his claim for intentional failure to supervise.... Specifically, Appellant failed to establish the sexual abuse he suffered occurred on property possessed by the Church.

(3) Appellant’s claims for child sexual abuse and battery against the Church fail ... because: a. [The youth director's] misconduct was completely outside the course and scope of his employment with the Church; b. Appellant’s argument the trial court erred in not imposing liability on the Church based on its employee’s failure to act on information given to her ... is nothing more than a reconstituted claim of negligence against the Church, which is not cognizable pursuant to precedent from Missouri courts....