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Archive for the category “My Articles: Religion (generally) and the Law”

A Collection of Law and Religion Writings by James W. Cushing

Over the course of my career, I have written extensively on how law and religion intersect.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!




Christian Bible or Nothing, Philadelphia Family Court Says

In the recent custody matter of Musaitef v. Musaitef, Court of Common Pleas, Philadelphia County, Commonwealth of Pennsylvania, Case No.: 0c1202189, the Judge ruled that a Muslim woman may not swear on a Koran while taking the oath before testifying at a hearing.

At a hearing in the Musaitef matter, the Mother, a Muslim, requested that she be sworn in by putting her hand on a Koran instead of a Christian Bible when taking the oath before testifying. The Father in the matter, who interestingly is also a Muslim, objected to the use of the Koran, arguing at the hearing and subsequently in a brief (discussed below), that it served as witness intimidation in that a Koran is not statutorily permitted to be used for administering oaths at a hearing. The Mother remained resolute in wanting to use the Koran so the Judge asked the parties to brief the issue of whether the use of a Koran for swearing in at a hearing is legally permissible.

Father first argued that Mother’s request was a pretext for witness intimidation. Evidently, the alleged implication from Mother was that Father’s Islamic faith included the belief that oaths taken on religious books outside of Muslim belief would not bind the speaker to tell the truth. Therefore, the witness intimidation was Mother’s subtle suggestion that Father’s use of a Christian Bible instead of a Koran for his oath, as contrasted by her insistence on using a Koran, indicated that Father was going to lie during his testimony.

The primary arguments between the parties centered on 42 Pa.C.S. Section 5901 which states the following: “(a) General rule. — Every witness, before giving any testimony shall take an oath in the usual or common form, by laying the hand upon an open copy of the Holy Bible, or by lifting up the right hand and pronouncing or assenting to the following words: ‘I, A. B., do swear by Almighty God, the searcher of all hearts, that I will[_______], and that as I shall answer to God at the last great day.’ Which oath so taken by persons who conscientiously refuse to take an oath in the common form shall be deemed and taken in law to have the same effect as an oath taken in common form.

(b) Right to affirm.–The affirmation may be administered in any judicial proceeding instead of the oath, and shall have the same effect and consequences, and any witness who desires to affirm shall be permitted to do so.”

Father argued that the statutory language is plain, clear, and unambiguous: it allows for two options for taking an oath before testifying: (1) swearing on a Bible or (2) affirmation. It simply does not provide for the use of a Koran. Therefore, according to Father, if Mother does not want to use a Bible for her oath, she can simply affirm. Further, Father also argued that as both parties will be using a language interpreter, who used the statutory form for his oath, it would create confusion if different and innovative non-statutory oaths were used for one party but not others. Father pointed out that 42 Pa.C.S. Section 5902 prohibits inquiry into Mother’s religious beliefs in order to assess her credibility, so he cannot explore with her the potential religious and/or other implications for using a Koran over a Bible for the purposes of taking an oath at a hearing.

Mother’s brief, by contrast, focused on religious liberty. Mother asserted that 42 Pa.C.S. Section 5901 must be read broadly enough to allow for the use of the Koran, otherwise it unconstitutionally prefers Christianity over other religions in violation of the religion clauses of the First Amendment to the U.S. Constitution. Mother pointed out that the affirmation option in the statute noted above is provided for people who do not wish to invoke the Christian God or Bible and/or employ religion for the oath and/or object to taking “an oath” (as opposed “affirming”). The obvious purpose of the oath, per Mother, is to impose the significant nature of the proceedings on a witness and to ensure the truth of testimony. As a corollary, per Mother, a way to impose the significant nature of the proceedings onto a witness is to allow that witness to swear upon something that witness respects and takes seriously, such as her preferred religious text; indeed, why else would the Bible be required for the oath if it did not reflect the prevailing significance of Christian beliefs when the statute was written and how they relate to not bearing false witness? From Mother’s point of view, if Christians receive the benefit of, and respect for, their religious beliefs when taking the oath on their Bible, ought not other religionists, in this case Muslims, receive the same benefit and respect and be permitted to take an oath on their Koran?

Due to the dearth of case law in Pennsylvania on this issue, Mother relied upon case law in North Carolina which ruled that oath statutes are flexible enough to allow for the use of religious books other than the Bible, per the religious preference of the witness, in order serve as a mechanism to ensure honesty for a witness’ testimony (it should be noted that the language of the North Carolina oath statute is vaguer than 42 Pa.C.S. Section 5901 and, therefore, more able to be read and understood more broadly).

Mother also argued that understanding 42 Pa.C.S. Section 5901 as restricting oaths to exclusively the Bible (or non-religious affirmation) is unconstitutional. Mother pointed out that by allowing for the use of the Bible but no other religious book for an oath, Pennsylvania impermissibly favors Christianity over other religions and, therefore, serves as an unconstitutional endorsement of Christianity over other religions.

The Court held a subsequent hearing and ruled that the precise language of the statute applies: either Mother is to take her oath on the Christian Bible or non-religiously affirm. The Court made no allowances for other religions, for the potential to understand 42 Pa.C.S. Section 5901 as merely requiring a religious book weighty enough to persuade a witness to testify truthfully (as opposed to strictly a Bible), and/or the potential Constitutional issues described above.

As an aside, there seems to be no discussion in the case of the curious final sentence of 42 Pa.C.S. Section 5901(a): “[w]hich oath so taken by persons who conscientiously refuse to take an oath in the common form shall be deemed and taken in law to have the same effect as an oath taken in common form.” This sentence would seem to imply that the statute ought to be read expansively as it appears to allow another form, other than the “common form”, to have the same effect as the common form. Unfortunately, it does not appear that this angle was explored in the case.

This case is still in progress and it will be interesting to see how it develops.

Originally published on December 23, 2014 in The Legal Intelligencer which can be seen here and reprinted by the Pennsylvania Family Lawyer in its Volume 37, Issue No.: 1, March 2015 edition which can be seen here.

Justices Carve Out Religious Exemption From the ACA

In recent weeks the news has been dominated with stories on the significant United States Supreme Court case Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores, Inc., et al which laid out, at least in part, how the Religious Freedom Restoration Act of 1993 (“RFRA”) interacts with the Affordable Care Act of 2010 (“ACA”, also known as “Obamacare”) in the context of the mandatory contraception coverage.


The terms of the RFRA prohibit the “[g]overnment [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.” 42 U.S.C. Sections 2000bbb-1(a) and (b) The aforesaid prohibition only applies if it can be demonstrated that the law from which the exception is sought is not in furtherance of a compelling government interest and/or is the least restrictive means to accomplish that compelling government interest.


The ACA requires employers, such as those like Defendants Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. (“Defendants”), to provide health care plans which include “preventative care and screenings” for women without any cost sharing. Congress did not specifically define what “preventative care and screenings” precisely means; instead, Congress delegated to the Department of Health and Human Services (“HHS”), which was the Plaintiff in this matter, the power and authority to formulate the definition. The definition of “preventative care and screenings” formulated by HHS includes twenty (20) different methods of contraception.


The Defendants are closely held companies owned by families who are self-described as practicing Christians. The Defendants are large enough companies to fall within the above described requirements of the ACA, including the providing of twenty (20) different methods of contraception. The Defendants believe that four (4) of the twenty (20) forms of required methods contraception are abortifacients that offend their Christian beliefs which view abortion as inherently sinful. Accordingly, pursuant to the RFRA, the Defendants sought an exemption from the ACA’s requirement to provide the four (4) abortifacient methods of contraception.


The Court ruled that the RFRA applies to Defendants and, as a result, their Christian believes must be accommodated relative to the four (4) abortifacient methods of contraception; therefore Defendants are exempted from having to provide the aforesaid abortifacients under the ACA.


When rendering its decision, the Court had to leap the first hurdle of establishing Defendants as “persons” under the terms of RFRA. The argument was made that Defendants could not be persons as they are for-profit corporations. The Court observed that such a strict definition is not warranted by applicable law. Indeed, the Court noted that RFRA is specifically designed to help business owners avoid the difficult decision of having to choose the benefit of acting as a corporation on one hand and the benefit of judicial protection of their religious liberty on the other. The Court indicated that the protection offered by the RFRA is very broad and, in fact beyond the requirements of the U.S. Constitution and prior precedent. The RFRA does not define the term “person” so the Court looked to the dictionary for guidance. According to the Court, the dictionary’s definition of person includes corporations and, the Court noted, the terms of the RFRS do no suggest that the term “person” cannot refer to corporations.


Tellingly, as the HHS conceded that a non-profit corporation can be a “person” under the RFRA, the Court found no compelling reason to distinguish between non-profit and for-profit corporations. It was argued that a distinction between non-profit and for-profit corporations could be that non-profit corporations seek altruistic ends; however, the Court observed that for-profit corporation can as well. Arguments were raised suggesting that the RFRA ought not apply to a for-profit corporation due to the impracticality of discerning and assigning religious beliefs to an inanimate legal fiction. The Court rejected these arguments noting that ultimately corporations do not exist independently but can only act at the direction and control of human beings who can, in fact, hold religious beliefs and could be forced to act contrary to them if left unprotected by the RFRA. The Court specifically indicated that its ruling is only applicable to closely-held corporations which, by definition, are not publicly traded and its owners/directors, and their religious beliefs, are clearly identifiable. Indeed, the Court cited to precedent which ruled that a sole proprietorship, which makes a profit, can assert a religion claim, as a result it saw no justifiable reason why a business of a small number of people, also making a profit, could not do so as well. To that end, business practices compelled by the government, which may conflict with the limitations of one’s religion, are within the application of the RFRA. Arguments were raised that it would be burdensome to determine the religious sincerity of parties like Defendants but as the Court has been tasked with that under the RFRA generally, the Court did not think cases regarding the ACA would pose any additional or greater challenge.


Upon establishing that the owners of closely-held corporations can have protected religious beliefs under the terms of RFRA, the Court then engaged in an analysis of the application of RFRA to the Defendants. As noted above, the application of a law over a religious objection pursuant to RFRA requires that the law at issue advance a compelling government interest and provide for the least restrictive means to accomplish that compelling interest.


If Defendants do not comply with the terms of the ACA, specifically refusing to provide all twenty (20) of required methods of contraception, they would be taxed $100 per day for each applicable employee. For Defendant Hobby Lobby it could amount to $475 million dollars of penalties per year. If Hobby Lobby simply elected to not provide health insurance to its employees, it could be saddled with $26 million worth of penalties. Needless to say, the penalty for Hobby Lobby to comply with its religious beliefs and refuse to provide the four (4) required abortifacients is very steep and substantially burdens their practice of religion.


An argument was made that even if the Defendants did have a legitimate religious objection to the abortifacients, they would not be compelled to perform an abortion, merely to provide insurance coverage which just so happens to include the abortifacients which may never be purchased and/or used by the insured person. In response, the Court refused to engage in any sort of analysis into the above as it is not up to the Court to determine whether one’s religious beliefs are flawed or reasonable; especially because this may be an unconstitutional entanglement with religion. The Court was satisfied that Defendants believed that providing the insurance coverage for the abortifacients violated their religious beliefs. Instead, the analysis of the Court is merely to determine whether a religious belief can be accommodated using the two (2) prongs of compelling interest and least restrictive means now that it had been shown that the ACA substantially burdened Defendants’ religious beliefs.


When evaluating whether a compelling government interest was at issue, the Court simply assumed that ensuring that cost free access to contraception was a compelling government interest. Therefore, the main item at issue was, then, whether HHS can demonstrate that the terms of the ACA are the least restrictive means to achieve that government interest under the RFRA. The Court noted that the least-restrictive-means test is extremely demanding. Ultimately, the Court ruled that HHS did not prove that it lacks other less restrictive means to achieve its compelling interest under the ACA without substantially burdening the religious practice of the Defendants.


Specifically, the Court suggested that less restrictive means the government could employ would include simply providing the abortifacients directly to employees of corporations seeking protection under the RFRA. This is not outside the realm of possibility as the RFRA already requires government to expend additional funds to ensure protection of religious liberty, although the Court doubts the exemption sought by the Defendants would cost the government much money at all when all is told. Further, the Court pointed out that the government has already established similar accommodations to exempt coverage for contraception to non-profit corporations; it would be a rather simple, and similar, process to allow corporations like Defendants to seek and secure a similar but less expansive accommodated exemption (Defendants wanted an exemption from only four (4) contraception methods whilst the aforesaid non-profits received an exemption for all of them); indeed, the Court’s suggestion was prescient as, within days of the Court’s handing down the ruling in this case, President Obama announced this very exemption was to be established. Therefore, according to the Court, this accommodation satisfies all parties: it enables Defendants to enjoy religious liberty whilst ensuring the government interest in providing cost-free contraception is accomplished. It is also worth noting that even if the exemption is granted Defendants, the compelling interest to provide cost-free contraception is still met as the sixteen (16) other methods of contraception would still be provided, therefore, even on its face, Defendants’ requested exemption did not impair the government from achieving is compelling interest. Ironically, the Court pointed out, the arguments against Defendants’ position would likely lead to corporations simply dropping health care coverage for its employees instead of violate their religious beliefs, thereby undermining the goal of maximum contraception coverage.


Finally the Court emphasized the following: first, the application and interpretation of the RFRA is determined by its plain language; it was not persuaded by claims of legislative history to interpret it otherwise. Second, its decision ought not be understood to countenance just any religious claims seeking exemption from generally applicable laws. The Court drove home the point that any exemption under the RFRA must show the three factors noted above: (1) a given generally applicable law substantially burdens religious belief; (2) the aforesaid law advances a compelling government interest, and; (3) the same law is the least restrictive means to achieve that interest. Therefore, the Court gave no credence to the dire predictions that its ruling would open the flood gates to all manner of religious exemptions from laws ranging from other parts if the ACA (e.g.: vaccination or blood transfusion requirements) to discrimination laws to tax laws to anything in between. The Court simply did not think that most of the claimed potential exemptions had a likelihood of meeting the above three factors. This case, per the Court, addresses a religious exemption from the ACA’s contraception mandate by a closely-held corporation only.


As the months and years pass, and as the ACA continues to become part of the fabric of American law, it will be interesting to see how this case will influence its application. Although it was headline news when handed down, will it become a landmark case or just another case in long line of litigation under the ACA? Only time will tell.

Originally published on August 15, 2014 in The Legal Intelligencer and can be seen here.

U.S. Justices Allow Public Prayer at Town Board Meetings


The issue of public prayer was once again before the United States Supreme Court in the recent case of Town of Greece, New York v. Galloway, et al., 134 S.Ct. 1811 (2014). After an extensive analysis of the facts at issue, as well as American historical practice, the Court, through a majority opinion drafted by Justice Kennedy, ruled in favor of the town of Greece.


Galloway dealt with the local Town Board meetings of the small town of Greece, New York. The meetings took place on a monthly basis and were the forum for local municipal legislation and municipal decisions, such as whether to grant or deny zoning variances, as well as the opportunity for local citizens to express their concerns to the Board. Since 1999 the Board meetings have begun with an invocative prayer said by a local clergyman (sometimes called a chaplain) who faced the gathered citizens (as opposed to the Board) and more often than not invited those collected at the meeting to join him in his supplication to the Almighty.


The Plaintiffs in Galloway took issue not with the fact that the Board meetings begin with a prayer but the fact that the prayers are overwhelming offered by Christian clergy with a Christian theme and Christian references. Plaintiffs merely wanted the prayers offered to be more inclusive and only refer to a generic god. Plaintiffs brought suit against the town of Greece claiming that the aforesaid prayers, due to their frequent emphasis on Christianity, violated the First Amendment to the United States Constitution’s prohibition against an established religion.


Justice Kennedy wrote the majority opinion, ruling in favor of the town of Greece, and finding that the prayers described above did not violate the Constitution’s Establishment Clause; Justices Alito and Thomas wrote concurring opinions and Justices Breyer and Kagan wrote dissenting opinions.


In making his ruling, Justice Kennedy took note of a few facts to flesh out those described above. He noted the fact that none of the clergy selected were paid. Further, they were selected through the effort of the Board’s administrative staff contacting the local houses of worship as listed in the local Chamber of Commerce directory. There was no policy in Greece, official or unofficial, to only select Christian clergy. Greece never denied a non-Christian, if requested, to have an opportunity to offer the prayer before the Board meeting. Indeed, Greece never made any suggestions, stipulations, or requirements for the content of the prayers. Greece, when made aware of concerns, such as those made by Plaintiffs about the Christian bent of the clergy and prayers, made a conscious effort to seek out non-Christian people to offer the legislative prayers. Namely, Jewish, Baha’i, and even Wiccan prayers were subsequently offered by people who subscribe to those respective religions. Notably, Justice Kennedy did not believe that the prayer at issue was for the purpose of proselytizing or advancing one religion or disparaging others. Finally, Justice Kennedy noted that Greece was overwhelmingly Christian (over 90%) and virtually all of its houses of worship are also Christian; consequently, when seeking out clergy to pray, the Board administrative staff, without intent to discriminate, merely sought them from the houses of worship located in Greece as listed in the directory provided by the Chamber of Commerce. As it turns out, the synagogues, for example, which could have provided rabbis to offer (likely Jewish-oriented) legislative prayers to the Board are located just outside the boarders of Greece in neighboring Rochester and, therefore, not in the directory provided by the Chamber of Commerce.


Justice Kennedy’s ruling relied very heavily upon an analysis of American historical tradition. It is Justice Kennedy’s view that prayers before a legislative body’s session (and he viewed the town of Greece’s Board to be a legislative body) serve, in part, the purpose of helping those present to be put into a solemn and deliberative frame of mind and lend gravity to the proceedings; significantly, the prayers did not take place while any legislation took place. He also engaged in an extensive description of American history. He noted that Congress has had legislative prayers since the dawn of the founding of the United States and, further, practically every state in the union has legislative prayer as well, most since their founding. Such symbolic expressions, such as legislative prayers, to Kennedy, serve as a tolerable acknowledgment of widely held beliefs. Indeed, Kennedy stated that the near universal practice, since the founding of the nation, of legislative prayer, all of which has survived constitutional analysis, logically implies that there is nothing in this practice which threatens the Establishment Clause of the U.S. Constitution. Additionally, when reviewing American history and practice, he found nothing to support the notion that, if permitted, legislative prayer had to somehow be non-sectarian or ecumenical. Indeed, in Kennedy’s view, government censoring and/or editing of the prayers would violate the Constitution as it involves unlawful government analysis of religion and its teachings/doctrines. Contrariwise, Justice Kennedy found the opposite, namely that the prayers, which have been offered since the country’s founding, often do have a sectarian bent or focus (by coincidence, typically Christian) and none of these have been found to run afoul of the Establishment Clause. Instead, Kennedy asserted, once prayer is invited into a legislative session, the government must permit the person delivering the prayer to pray as his conscience dictates. The long tradition of legislative prayer in this country assumes that those listening are firm in their own beliefs and tolerant of ceremonial prayer, even if delivered by someone of a different faith.


Justice Kennedy, even if there may have been a prayer at a Greece town Board that was objectionable, did not see any sort of pattern of behavior which would suggest a successful constitutional challenge. In Kennedy’s view, the fact that Greece happens to be overwhelming Christian, which necessarily influences who its Board selects as its chaplain to deliver its prayers, is not relevant, while the fact that Greece has a policy of non-discrimination is directly relevant. Kennedy did not believe Greece has any obligation to seek out chaplains outside of Greece or specifically non-Christian chaplains to deliver the prayers at its Board meetings. Kennedy did not believe that anyone present would feel unconstitutionally coerced into unwilling participating in a religion not of the listener’s choice; indeed Kennedy pointed out that the members of the public where never directed, obliged, and/or coerced to participate. Instead, Kennedy ruled that it is presumed that a reasonable observer would be familiar with the tradition of legislative prayer and its purpose in that context (described above). Regardless, Justice Kennedy asserted that taking offense does not equate to being coerced; in his view a brief acknowledgment of religion for a ceremonial purpose, even if sectarian, is consistent with the Establishment Clause.


Concurring and dissenting opinions were also entered by Justice Kennedy’s colleagues and they are described briefly below. Justice Thomas entered a concurrence which emphasized his position that the long-standing doctrine of constitutional incorporation through the 14th Amendment to the Constitution does not apply to the Establishment Clause. Notably the citations in his concurrence were largely to his own previous opinions. Justice Thomas argues that as the Establishment clause directly references Congress it, by its own terms and, therefore, by definition, cannot be applied to the states as it applies only to Congress, which would leave states open to establishing local state religions. Justice Alito wrote separately only to point out that the dissent merely wishes the prayer to be generic and nonsectarian, not ban the practice of the prayer altogether. In Justice Alito’s, view then, the dissent’s issue is prayer topic not the prayer itself and he did not find any support in American jurisprudence for the suggestion that legislative prayer must be nonsectarian. Further, in light of the fact that Greece had no animus toward religious minorities, did not intentionally discriminate, and tried to achieve some diversity, Justice Alito believed the other matter with which the dissent took issue could simply be summed up as a criticism of Greece’s poor chaplain selection process, which, in Justice Alito’s view, could easily be remedied and did not rise to a constitutional violation.


Justices Breyer and Kagan submitted dissenting opinions. Justice Breyer took note that Greece, when selecting chaplains, knew that it would be unlikely that a non-Christian would be chosen from among the clergy in the town, did not inform anyone in the town that they would accept chaplain volunteers, and did not instruct the chaplains not to proselytize or disparage the faith of another; in other words, Christianity was, if not de jure, was de facto established by the legislative prayers at issue herein. He felt the actions of Greece to become more diverse (e.g.: seeking out chaplains of other faiths) were too little to late, especially as they were only taken due to complaints and the subsequent litigation which led to his opinion.


Justice Kagan’s dissent takes the reader through a series of hypothetical situations in which she asks the reader to place himself into them as an imaginary participant. Justice Kagan’s dissent echoed that of Justice Breyer in most respects. Ultimately, for Justice Kagan, she believed the consistent, for many years and month upon month, of a nearly unbroken string of Christian prayers at the Board meetings amounted to endorsement of Christianity by the Board. Especially, like Justice Breyer, she believed the efforts taken by the Board to diversify were rather weak. Justice Kagan, too, like the majority, cites to American tradition and finds various references from the Founders to desiring a religiously inclusive nation which, she believed, did not find its fulfillment in Greece. Relatedly, Justice Kagan distinguishes the long tradition of Congressional prayer from the prayer in Greece as the prayer offered before Congress is made only to its members, and Congress does not receive direct participation from the public, all of which is the exact opposite to Greece’s Board where prayer for the proceedings is offered to the public while the public directly participates at the Board meetings. Further, she focused heavily on the potential thoughts and feelings of a hypothetical participant at the Board meetings. Justice Kagan felt that a chaplain, facing the people (not the Board), at a Board meeting where the public is invited to speak to the Board, placed a scrupulous non-Christian in the unenviable position of forcing him to choose between participating in a prayer that offends his conscience or making himself known – and separate from the rest of his town – by refusing to participate in the prayer. She wondered what the potential effect his public refusal to participate in the prayer could be on what he sought from the Board. For Justice Kagan, a member of the public ought not have to worry about whether his participation in a prayer could (or would) effect the success or failure of his goals at the Board meetings. She believed such a choice to be unconstitutional as it created a de facto religious standard for a Board meeting and coerced those in attendance to, more or less, participate in religion (or publicly separate oneself from it).


Although sharply divided by a 5 to 4 vote in its decision, all 9 justice appear to agree that legislative prayer, which is religious but generally non-sectarian (especially if it only involves the legislature as opposed to the general public present) meets Constitutional scrutiny. At present, the mind of the Court is that legislative prayer, even if largely sectarian, is compliant with Constitutional standards as long as it does not proselytize or disparage other religions and the legislative body (or government) engaged in the prayer is non-discriminatory in its selection of prayers and chaplains.

Originally published on June 24, 2014 in The Legal Intelligencer and can be seen here.

Priest Finds No Redemption in Phila. Court of Common Pleas

Church and state have always had a give-and-take relationship and that relationship was put to the test again in the April 15, 2014 Opinion issued by Judge Lisa M. Rau in the recent case, Warnick v. All Saints Episcopal Church, et al., Court of Common Pleas, Philadelphia County, Case No.: 111201539, 714 EDA 2014.

In Warnick, the Plaintiff, the Reverend Jeremy M. Warnick (“Fr. Warnick”), an Episcopal priest, brought suit against Defendants (collectively “Defendants”) comprising of his former parish, All Saints Episcopal Church, Rhawnhurst (“Parish”), the Right Reverend Charles E. Bennison (bishop of the Episcopal Diocese of Pennsylvania) (“Bishop”), and three parishioners of All Saints Episcopal Church for claims more or less sounding in defamation and contract. The Defendants filed a motion for summary judgment which was granted by the Court and appealed by Fr. Warnick.

It is undisputed by Fr. Warnick that he, as an Episcopal priest, is required, in his role as priest, to comply with the standards and discipline of the Episcopal Church and that his ecclesiastical authority while serving in the Diocese of Pennsylvania was the Bishop. Fr. Warnick also acknowledged that the Bishop has authority to grant or revoke a priest’s license to engage in official ministerial functions in his diocese and must approve any contract for the employment of any priest by any parish within his diocese.

During Fr. Warnick’s tenure as parish priest of All Saint’s Church, disputes arose between him and members of the Parish. The aforesaid disputes centered on the following: (1) Fr. Warnick’s changes to the worship service; (2) Fr. Warnick’s decisions on how to use the Parish’s endowment fund; (3) Fr. Warnick’s accessibility to his flock; (4) Fr. Warnick’s Facebook post regarding a “sexual position quiz”; and, perhaps most controversial of all, (5) Fr. Warnick allegedly living with a paramour in the rectory while already married to another woman (Fr. Warnick did eventually marry his paramour after he divorced his wife, but did so in a Methodist Church instead of an Episcopal Church as he did not comply with Episcopal canons on remarriage after divorce). The Parish and Fr. Warnick were not able to resolve the above-described disputes. Eventually, the Vestry (the controlling board of laypeople at the Parish) voted to retain a priest only part-time instead of the full time Fr. Warnick. Fr. Warnick admitted that posting the material described above on Facebook and living with a woman to whom he was not married could be considered conduct unbecoming a member of the clergy but he asserted that only an ecclesiastical court could make such a determination.

Ultimately, the dispute between the Parish and Fr. Warnick reached the point where the Parish sought the intervention of the Bishop who revoked Fr. Warnick’s license to function as priest in the Diocese of Pennsylvania. According to Episcopal Church’s canons (internal church law), Fr. Warnick’s being canonically a resident in the Diocese of Arizona, limited the ability of the Bishop to investigate the substance of the disputes, so revoking Fr. Warnick’s license was the Bishop’s only practical choice to resolve the dispute.

In order to announce his decision, the Bishop issued a letter to the Parish indicating that he revoked Fr. Warnick’s license and that accusations were made which could amount to conduct unbecoming of the clergy, but as he could not verify their truth or falsity, the extent of his authority was to simply revoke Fr. Warnick’s license. An email was sent by one parishioner to another noting that some people were dissatisfied with Fr. Warnick and repeating the allegation that he lived with a paramour, but qualified it by saying “I am not saying it is true or not true.” Despite being terminated from his employment with the Parish, the Parish compensated Fr. Warnick for his entire employment contract.  Fr. Warnick filed a canonical complaint against the Bishop within the ecclesiastical courts but was unsuccessful, which led to his initiating the civil action discussed herein.

The Court’s analysis of this matter began with the First Amendment of the United States Constitution’s provision proscribing government interference with religion. Citing the long history of First Amendment jurisprudence, the Court unequivocally acknowledged that a religious body has virtually absolute control over who can function as its ministers and by what standards they are to be measured and employed. The Court recognized that the law and the courts must defer to a religion’s decision to employ or not employ a minister and that such a decision is the exclusive province of a religion, otherwise the First Amendment right to the free exercise of religion is irreparably compromised as choosing its ministers is one of the most fundamental actions a religion can take in furtherance of its worship, practice, teaching, and administration. Therefore, the Court ruled that Fr. Warnick’s contract claims, which attempt to have the Court analyze the Parish and/or the Bishop’s decision to terminate Fr. Warnick’s employment, must be dismissed as this would require the Court to impermissibly delve into a religion’s employment practices. Similarly, the Court also dismissed Fr. Warnick’s defamation claims as they, too, require the Court to impermissibly entangle itself in religious issues through attempting to interpret church canons in order to determine whether the statements were defamatory. Such an analysis is beyond the scope of the Court’s authority under the First Amendment’s guarantee of religious freedom from government intrusion.

Although Fr. Warnick’s claims fail under the First Amendment of the United States Constitution, the Court made it clear that his claims would have also failed regardless of the First Amendment. The Court did not believe the statements made were defamatory. First, the statements were true as they merely identified the existence of a dispute on certain issues but did not comment on the truth or falsity of those issues. Regardless, Fr. Warnick admits to the Facebook post and residing in the same house with a woman who was not his wife. Indeed, Fr. Warnick himself participated in the letter issued by the Bishop referred to above by helping to distribute it to the congregation of the Parish. As far as the contract claims are concerned, the Court also ruled that the church had no obligation to renew Fr. Warnick’s employment contract upon its conclusion. Although the Bishop revoked Fr. Warnick’s license to minister, he was still compensated for the entire length of his contract and permitted to live in the rectory for an additional six (6) months thereafter. Therefore, even if his employment contract was breached, he suffered no damages. Further, Fr. Warnick alleged that the Bishop interfered with his employment contract with the Parish, however the Court rejected this argument, noting that Fr. Warnick acknowledged that the Bishop must approve any contract for the employment of any priest by any parish within his diocese. Therefore, the Bishop cannot interfere with a contract in which he is involved. Finally, Fr. Warnick’s claims that the Defendants engaged in civil conspiracy were dismissed as none of the other claims he made against them survived the summary judgment process.

When it comes to a religion’s hiring or firing clergy and/or ministers, personnel of a religion have virtually sole and exclusive control. Otherwise, the government, through the Court, would have impermissible entanglement with religion which is barred by the First Amendment of United States Constitution. Fr. Warnick’s claims were ultimately unsuccessful as he asked the Court to involve itself in a church’s decision to terminate a clergyman which would unlawfully compromise the church’s right to choose its ministers and, consequently, practice its religion as it wishes.

Originally published in The Legal Intelligencer on May 29, 2014 and can be found here.


Cheltenham Township Not at Variance with the Law Regarding Church

For the second time over the last year, a congregation of the First Korean Church of New York, Inc. (hereinafter “the Church”) finds itself embroiled in litigation against its local government regarding various issues of land use and taxation.  Accordingly, the United States District Court for the Eastern District of Pennsylvania recently entered an opinion in the matter of First Korean Church of New York, Inc. v. Cheltenham Township Zoning Hearing Board and Cheltenham Township, case number 2005-6389.  The parties in the above-referenced case engaged in extremely extensive tangled litigation since at least 1998, when the Church was cited by Cheltenham Township (hereinafter “the Township”) via its Director of Engineering, Zoning, and Inspections, and worked its way through the local zoning board, multiple hearings and applications for special exceptions and variances by the Church, disputed tax assessment, litigation in Montgomery County Court of Common Pleas, and ultimately the litigation at issue in this article starting in 2005 which reached the point of cross motions for summary judgment filed by the parties heard by the Eastern District.  The primary issue addressed by the parties and, of course the Court, is how the Religious Land Use and Institutionalized Persons Act (hereinafter “RLUIPA”) and the First and Fourteenth Amendments of the U.S. Constitution apply to the parties herein, and it is this application that is the subject of the instant article.  Procedurally, the Court has found itself ruling upon cross-motions for summary judgment filed by the parties,


Cheltenham’s Zoning Ordinance of 1929 established so-called “R-Residence” districts pursuant to a development plan for the Township.  If a party wishes to use his/its property for religious uses in an R-Residence district, the appropriate procedure is to petition the Zoning Hearing Board for a special exemption.  The Zoning Ordinance of 1929 was amended in 2003 and, at that time, nearly twenty (20) percent of the Township was tax-exempt.


The Church purchased the property-at-issue (hereinafter “the Property”) in 1996 at a sheriff’s sale.  The Property was formerly a seminary consisting of three (3) buildings.  The first building has one-hundred and ten (110) rooms which the seminary dismantled; the Church only uses the first floor and the remainder is unusable.  The second building has forty-four (44) rooms which were without heat, generally dismantled, and mostly demolished.  The pastor of the Church and his wife lived in the only three (3) usable rooms of the second building.  The third building is empty.  The campus consisting of the aforesaid three (3) buildings is surrounded by a wrought-iron fence with two (2) entrances (one able to be opened via remote control).  In 1998, the Church erected a sign at the Property which resulted in Township sending the Church a letter indicating the Church was in violation of the above-mentioned Ordinances as the Church had not obtained a special exemption to operate a church in an “R-Residence” district.  The aforesaid letter from the Township sparked the next nearly fourteen (14) years of litigation.  The Township subsequently did two (2) inspections of the Property and found it in significant disrepair.


The Church appealed the Township’s findings described above and sought a special exemption for the Property to use it as a seminary and functional church, which would include a parking lot, library, and dormitories.  The Church’s proposed use of the Property would use seven (7) of the Property’s thirty-three (33) acres.  The zoning board denied the Church’s request for a special exemption on the bases that the seminary was not approved by the Commonwealth and the Property was too deteriorated to sufficient repair it.  Further, the Township did not believe a seminary was consistent with a residential area.  The Church appealed the denial to Montgomery County Court of Common Pleas, and subsequently all the way to the Supreme Court of Pennsylvania, all of which ruled in favor of the Township.


In 2000, while the above-litigation was in process, the Church filed a second application for a special exception.  The substantive difference with the second application, as compared to the first, is that the Church was already operating a seminary on the Property; the Church argued that this was a “substantial change”.  As a result, the Church’s latest application requested approval of their continued use of the Property as a seminary.  The Zoning Board denied the reapplication noting that a “substantial change” refers to the condition of the Property, not its use.


Undeterred, the Church applied for a variance in 2007.  When pursuing the variance, the Church did not raise any argument pursuant to the RLUIPA, and refused to include a claim under RLUIPA despite being given the opportunity to do so by the Zoning Board.  The Zoning Board denied the Church’s request for a variance pursuant to the Pennsylvania Municipalities Planning Code as the Church did not meet the criteria laid out by the same.


While all of the above was proceeding the Church also pursued tax exempt status for the Property.  The Church’s application in 1998 for tax exemption for the Property was denied by the court, employing the logic that as the Property was not authorized to be used as a church, the Church could not secure tax exemption on that basis either.  The Church appealed and in 2006 the Commonwealth Court ruled that tax exemption is based on actual use and not just authorized use; accordingly the Commonwealth Court remanded for the purpose of determining the Property’s actual use.  On remand, the Montgomery County Court of Common Pleas held a two-day trial which found that the was no regular church use at the Property since 1998.  This decision, too, was appealed, unsuccessfully, to the Commonwealth Court.  On remand, the Court of Common Pleas ruled that the Church was not eligible for tax exemption as the Property was not used as a regular place of worship.


After pursuing years of litigation, as described above, the Church, in 2005, finally brought the action in the Eastern District Court of Pennsylvania which just recently reached resolution.  The Church’s federal action challenged the 1998 and 2000 denials of a special exemption.  The Church claims that the denials of the two (2) special exemption requests violates the RLUIPA and the First and Fourteenth Amendments.  Ultimately, the parties filed cross-motions for Summary Judgment and it is on these motions that the District Court entered the opinion that is the subject of this article.


The Church raised seven (7) events which it believed were violative of the RLUIPA and the First and Fourteenth Amendments: (1) the 1998 denial of its request for special exemption; (2) the 2000 denial of its request for special exemption; (3) the validity of the 2003 ordinance requiring a variance to be filed for religious uses; (4) the denial of the 2007 variance request; (5) the police monitoring the Property; (6) the Township threatening to fine it; and, (7) the Township’s claim that the Church’s use is illegal.


Before moving on to the substantive issues, the court addressed the applicable statutes of limitations under the RLUIPA.  The court ruled that the RLUIPA’s statute of limitations is four (4) years.  As the Church brought its action in 2005 for an issue arising in 2003, and filed its amended complaint in 2008, including a claim for an issue in 2007, its action was timely.  Further, the police monitoring in 2009 – 2010, the ongoing threat of fines, and the property usage, are all timely claims.


The core of the Church’s RLUIPA claims is that the Township has substantially burdened its religious exercise.  The RLUIPA defines “religious exercise” to include any exercise of religion, including the use of real property.  What constitutes a “substantial burden” is interpreted in accordance with the First Amendment’s free exercise clause.  A “substantial burden” is one which meets one or both of two (2) factors: (1) where a religionist is forced to choose between his religion and benefits generally available to similarly situated non-religionists; and, (2) government applies substantial pressure on a religionist to change his behavior and/or violate his beliefs.


In support of its RLUIPA claims, the Church claimed that the Township treated it less than equally as compared to a secular party.  Under the RLUIPA, the Church had to demonstrate four (4) elements: (1) it is an religious institution; (2) it is subject to land use regulation; (3) it was treated less equally than a secular institution; and (4) the previous has caused no lesser harm to the interests the aforesaid regulation seeks to advance.  In sum, the Church must identify a similarly situated secular institution treated better than itself in regard to the objectives of the regulation at issue.  The Township persuasively argued that the 2003 Ordinance was to counteract the enormous tax burden on landowners inflicted upon them in large part consequent to the fact that nearly twenty (20) percent of the Township is tax exempt.  The Township also indicated that the purpose of the Ordinance was for the purposes of regulating population density, preserve open spaces, provide for the residents’ recreational needs, as well as expand religious as well as educational facilities.  The Church argued that it would serve the same purposes per the Ordinance as a the construction of a local golf course; although arguably true, the Church failed address the fact that the golf course, contrary to the Church, would increase the local real estate tax base, which is the primary purpose of the ordinance.  Based on the above, the Court ruled in favor of the Township with regard to the application of the 2003 Ordinance.  The Court further ruled against the Church by noting that the 2003 Ordinance treats both religious and secular educational (and/or other tax exempt) institutions equally.


The Church next argued that the Township, violating RLUIPA, essentially effected a total ban on religious institutions in the Township.  The Court rejected this argument explaining that the Township did not prevent the Church from being in any other location aside from the Property, nor did it take any action to exclude the Church from the Township altogether.


The Court then moved on to ruling on the Church’s Constitutional claims.  At the outset, the Court ruled that any claims under 42 U.S.C. Section 1983 were subject to a two (2) year statute of limitations.  The Court also expressed serious doubts as to whether any statute of limitations applies to a First Amendment challenge.  The Court ruled that virtually all of the Church’s claims regarding the 2003 Ordinance as applied were barred by the statute of limitations as the Church’s complaint was filed more than two (2) years after the state court judgment(s) against the Church.


When analyzing the Church’s First Amendment claims, it noted that the free exercise clause does not include land use as a religious exercise.  Therefore, the Church must demonstrate how its inability to be in its desired location affects its religious exercise.  The Court first ruled that the Church was not using the Property for a religious purpose when it requested the 2007 variance, therefore, by definition, the denial of the same could not impair the Church’s religious exercise.  Furthermore, the Court ruled that the Church did not demonstrate how its inability to establish itself at the Property, as opposed to any other location, has affected its religious exercise.  Furthermore, the Church failed to show how threats of fines, allegations of illegal use, and being monitored by the police affected its religious exercise.  Based on the above, the Court ruled against the Church on these issues.


The Court further ruled that a law or ordinance meets constitutional muster if it is neutral and generally applicable with only an incidental burden on religious practice.  The Court ruled that the 2003 Ordinance is neutral and was not drafted with the purpose to impair the practice of religion.  It further ruled that the 2003 Ordinance was generally applicable as it addresses both secular and religious institutions equally to further its purpose of increasing the local real estate tax base.  As the 2003 Ordinance is neutral and generally applicable, it is not subject to strict scrutiny; it only must satisfy a rational-basis review.  Using the rational basis test, the Court ruled against the Church because the Church failed to demonstrate that the goal of increasing the local tax base is a constitutionally impermissible goal or that distinguishing between taxable and tax exempt uses is not rationally related to that purpose.


When making its Fourteenth Amendment claims, the Church must prove that it was treated differently by the Township as compared to a similarly situated secular institution applying for a variance.  As above, the Church again argued that it was similarly situated to a local golf course seeking a variance, yet, again as above, the Court ruled that the Church failed to adequately consider the 2003 Ordinance’s purpose of increasing the tax base.  The Court ruled against the Church indicating that treating taxable and tax exempt uses differently is rationally related to the purpose of increasing the tax base.


In sum, the Church, when making its claims under the RLUIPA and the United States Constitution, simply failed to demonstrate that the actions taken against it were due to its religious affiliation as opposed to some other legally permissible neutral reason.

Originally published on August 21, 2012 in The Legal Intelligencer and can be viewed here.

Church Bulletin Discount: Discrimination or Good Business?

For those interested in how religion and the law intersect, there is a new case to watch for in Lancaster County.

Evidently, a local restaurant, Prudhomme’s Lost Cajun Kitchen, in an effort to generate some extra business, offers a 10 percent discount to anyone who brings in a current “faith bulletin” on Sunday. Although churches traditionally publish bulletins each Sunday, the restaurant, presumably to avoid claims of religious discrimination, offers the discount upon receipt of what they call a “faith” bulletin, which would include bulletins from one’s local synagogue, mosque or other house of worship, as well as a church. It should be noted that one does not actually have to attend a house of worship to secure its bulletin, nor does the restaurant conduct any sort of inquiry into one’s religious beliefs. The discount is obtained upon production of the bulletin, much like a discount being obtained upon producing a coupon.

Despite the restaurant’s efforts to avoid allegations of discrimination, it did not seem to account for a local atheist for whom securing a faith bulletin is either impossible or grievously difficult. Accordingly, about a month ago, 80-year-old John Wolff, who has never patronized the restaurant regardless of the discount at issue (he only learned about the discount through anInternet search of the restaurant after hearing good things about its food), filed a complaint with the Pennsylvania Human Relations Commission on the basis of discrimination against his nonreligion. Additionally, the Freedom From ReligionFoundation, of which Wolff is a member, has issued letters and a telephone call encouraging the restaurant to discontinue is bulletin discount promotion.

In pursuit of his claims, Wolff will likely have to demonstrate how the discount is discriminatory and/or how it is different from discounts offered for children, senior citizens, ladies’ nights or the presentation of a coupon.

Although no legal decision has yet been reached – the matter is still pending before the Pennsylvania Human Relations Commission – the restaurant has not wasted any time in promoting the issue even more than before, likely to the chagrin of Wolff. In addition to continuing to offer the Sunday 10 percent discount upon presenting a faith bulletin, the restaurant is will be selling T-shirts commemorating its “legal battle” (the restaurant’s term) with Wolff.

This matter is still developing and it will be interesting to see how it will continue to unfold.

Originally published on August 7, 2012 in “The Legal Intelligencer Blog” and can be found here.

Volunteer Opportunities Around the Philadelphia Region

I have been a volunteer attorney for the Christian Legal Clinics of Philadelphia (CLCP) since April 2007. The CLCP states that its volunteers are “Christian legal professionals and law students called by the Word of God to do justice among the poor … [by] provid[ing] services to low-income clients in the name of Christ.” The CLCP currently has three clinic locations, each of which meets twice per month. The clinics are located at the Salvation Army facility in West Philadelphia, Sweet Union Baptist Church in West Philadelphia and Spirit and Truth Reformed Church in North Philadelphia. At each clinic, clients from the local neighborhood meet with attorneys who volunteer their time at the clinic to discuss and help them resolve their problems and inquiries. Of course, as the CLCP is Christian in nature, the attorneys and clients often pray with and for one another and the Gospel message is shared with the client.

Over my five years of serving with the CLCP, I have had the privilege of helping hundreds of people with their legal issues. I have been approached with all manner of issues, including but not limited to landlord-tenant, custody, support, divorce, social security, unemployment compensation, disability, debt collection, criminal and estate cases. The experience has blessed both me and the client; the client receives free or greatly discounted legal assistance while I reap the benefits of knowing I am truly helping the less fortunate and living out my Christian faith in a practical way. I am confident in saying that virtually everyone who has served with the CLCP has had a similar experience.

Attorneys have received the great gift of knowing about the law, how to navigate it and how to help people with their legal issues, and they bear some responsibility for sharing it with others. Accordingly, the Pennsylvania Bar Association recommends that attorneys perform 50 pro bono hours per year and the CLCP is a wonderful place to volunteer. Aside from the CLCP, the Philadelphia area has many opportunities and organizations to assist people on a pro bono or low-fee basis. These include:

It is an extremely satisfying feeling knowing that one has given of oneself to help someone else in a profound way, not to mention the practical legal experience it can give an attorney simply because of the wide scope and breadth of the legal issues involved with the clients. Furthermore, the impact a volunteer attorney can have on someone’s life cannot be underestimated. If you are not involved in pro bono work, or with an organization as described above, I truly encourage you to become involved; you will be greatly rewarded. Indeed, the great irony of my volunteering experience is that the benefit I can provide to my clients is far less than the benefit I receive from them by the privilege of serving them.

Originally published in The Legal Intelligencer Blog on March 23, 2012 and can be found here.


Supreme Court Spotlight: Hosanna In the Highest…Court

The First Amendment to the United States Constitution prevents Congress from making any law prohibiting the free exercise of religion. The question of how this freedom to exercise one´s religion intersects with one´s employment rights was considered for the first time by the United States Supreme Court in the recently decided case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al. Hosanna involved Cheryl Perich, a teacher (“Teacher”) at a Lutheran (Missouri Synod) Church School (“Church School”) who was terminated after it was revealed that she had narcolepsy. She, through the advocacy of the Equal Employment Opportunity Commission (“EEOC”) which took her case, brought suit against the Church School claiming it acted in violation of the Americans with Disabilities Act (“ADA”). After an adverse decision in the Eastern District Court of Michigan, the EEOC appealed to the Sixth Circuit which remanded the matter to District Court. The Church School appealed to the United States Supreme Court which reversed the Sixth Circuit and is the decision discussed herein.

Pursuant to Lutheran Church Missouri Synod canons there are two (2) types of teachers: “called” and “lay”. A called teacher, in addition to the credentials typically required of a teacher, must also complete accredited theological training. Upon completion, a called teacher is granted the title of Minister of Religion, Commissioned. The Teacher for the Church School was a called teacher and, in addition to typical secular teaching duties, also taught a religion class, led daily prayer and devotionals in her class, took her students to a weekly chapel service, and occasionally led the chapel services herself.

During her tenure with the Church School, the Teacher developed narcolepsy and requested a full school year´s (September through June) leave. The Church School granted the requested leave and replaced the Teacher with a lay teacher for the school year during which the Teacher would be on leave. Despite requesting a full year´s leave, by January 27 of her year of leave the Teacher requested to return to work. The Church School Board denied her request, indicating that it had contracted with a replacement teacher for the year in reliance upon her request for a full year of leave. Accordingly, the Church School requested that she resign and, in exchange, offered to pay a portion of her health insurance premiums. The Teacher refused to resign and on the first day she was medically cleared for work she appeared at the Church School. She was asked to leave but she refused until she received documentation that she did, in fact, appear. When the Church School principal indicated that her conduct (refusing to leave) may lead to her involuntary termination, the Teacher indicated that she had consulted with an attorney with regard to her “rights.” After meetings of the School Board and congregation, the Church School ultimately decided to terminate the Teacher and rescind her status as a Minister of Religion, Commissioned. The Church School Board believed that the Teacher´s above-described conduct amounted to “insubordination and disruptive behavior” and her “threatening to take legal action” damaged her “working relationship” with the Church School and violated the Lutheran Church Missouri Synod doctrinal belief that Christians ought not pursue secular litigation against one another, but engage in intra-church dispute resolution options instead. Consequently, the Teacher brought suit against the Church School claiming it, when it terminated her, violated the ADA as she, suffering from narcolepsy, was covered by its protections.

The Supreme Court´s decision centered around what has become known as the “ministerial exception.” The ministerial exception had been established and employed for many years in the Circuit Courts but had never been addressed by the Supreme Court previous to Hosanna. In reaching its unanimous decision, the Court began its review of relevant precedent with the English Magna Carta of 1215. Under the Magna Carta, King John, the symbolic embodiment of the English government, agreed that the Church of England would have the “freedom of elections” for its clergy and prelates. Of course, as the Court noted, the relationship of the English Church and the government, and the religious control held by each, vacillated over a course of time, but ultimately those English Christians, seeking total religious freedom, migrated to the nascent United States. Moving forward, the Court then traced the concept of a religion being free from the state regarding the selection of its “ministers” in America through the coming of the Puritans from England to America in order to escape the religious control of the Church of England and to William Penn in Philadelphia seeking to declare the independence for the Quakers also from the Church of England. Moving forward to the Eighteenth Century, the Court noted the struggle in the American South between the Church of England attempting to exert control over the selection of clergy and prelates and the American Anglican Church. After this brief overview of the history of religion and law in America, the Court concluded that the preceding is the context in which the Religion Clauses of the First Amendment of the U.S. Constitution were written. Specifically, the Court observed that “the Religion Clauses ensured that the new Federal Government – unlike the English Crown – would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own…Our decisions in that area confirm that it is impermissible for the government to contradict a church´s determination of who can act as its ministers.”

The Court then went on provide an overview of First Amendment cases over the course of American jurisprudence, ultimately concluding that “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes on the Free Exercise Clause, which protects a religious group´s right to shape its own faith and mission through its appointments.” Per the description of the Teacher´s role and position within the Church School, the Court determined that the Teacher was a minister and, therefore, within the ministerial exception. The Court concluded that by “[t]he [ministerial] exception …ensures that the authority to select and control who will minister to the faithful – a matter `strictly ecclesiastical.´” The Court also ruled that the First Amendment right to assembly only serves to buttress the Free Exercise Clause´s protection of a religion to make its employment decisions vis-à-vis its ministers.

In response to the argument that suggested the ADA ought to apply to the hiring and firing of a religion´s ministers because the ADA is a neutral and generally applicable law, the Court ruled that the selection of its ministers is an internal decision which affects the faith and mission of the religion itself. By contrast, the general principle of neutral and generally applicable laws is, per the Court, only applicable to the outward physical acts of a religion. The Teacher also argued that the Court´s ruling would suddenly create unfettered chaos with religious institutions´ hiring and firing. Of course, the Court observed that the ministerial exception had been in the Circuits for many years and no such consequence has yet to result.

Finally, the Teacher asserted that the Church School´s argument that she was terminated, at least in part, due to a violation of the Lutheran Church Missouri Synod´s canonical policy that Christians seek intra-church dispute resolution as opposed to a resolution in secular court was pretextual. The Court refused to decide whether the Teacher´s assertion was accurate as such a decision would require a constitutionally impermissible inquiry into the interworking of a church, its doctrinal teaching, whether someone violated that doctrinal teaching, and whether that doctrinal teaching was properly applied. The Court ruled that such an inquiry was clearly a violation of the First Amendment right to the free exercise of religion.

Justice Thomas wrote a concurring opinion simply to say that the ministerial exception also includes a religion´s right to determine for itself what a minister is. Justice Alito (with Justice Kagan joining) also prepared a concurring opinion to make it clear that not only does a religion have the right to determine for itself what a minister is, the Western and/or Judeo-Christian concept of a minister/clergy is also the province of the religion. Justice Alito pointed out that some Eastern faiths do not have “ministers” or “clergy” in the same way as a Western faith but that does not mean that the ministerial exception does not apply to them.

Through the Hosanna decision, the Supreme Court of the United States has formally adopted the ministerial exception ensuring religious groups have complete and ultimate authority in the employment of its ministers.

Originally published on February 14, 2012 in “Upon Further Review” and can be found here.

Land Use Matter Taxing for Church

Nearly two millennia ago, Jesus of Nazareth sagely taught his followers to “render to Caesar the things that are Caesar’s”. In the 21st century it appears that the Commonwealth Court of Pennsylvania had similar advice for a Cheltenham congregation of the First Korean Church of New York, Inc. (hereinafter “the Church”) in the recent matter of First Korean Church of New York, Inc. v. Montgomery County Board of Assessment Appeals, Cheltenham Township, Cheltenham Township School District, Montgomery County, and Montgomery County Board of Commissioners (1551 CD 2010) (hereinafter “the Case”).

Montgomery County Board of Assessment Appeals, Cheltenham Township, Cheltenham Township School District, Montgomery County, and Montgomery County Board of Commissioners (hereinafter “the Government”) sought to collect property taxes on the real estate used by the Church.  The Church, of course, argued that it was entitled to a tax exemption as a principal place of religious worship.  The issue of whether the Church was entitled to an exemption to the taxes the Government sought forms the dispute addressed by the Court in the Case.

The Case’s procedural history is rather long and tangled, including stops at the Montgomery County Board of Assessment Appeals, Township of Cheltenham Zoning Hearing Board, the Court of Common Pleas (hereinafter “the Trial Court”), the Supreme Court of Pennsylvania, and one previous stop at the Commonwealth Court.  Ultimately, the Government was granted Summary Judgment by the Trial Court which was appealed to theCommonwealth Court.  TheCommonwealth Courtremanded to the Trial Court on the issue of whether the property was entitled to a tax exemption.  Upon remand, the Trial Court conducted a two-day non-jury hearing resulting in a decision adverse to the Church, specifically that the Church was not entitled to a tax exemption as an actual place of regularly stated religious worship.  The Church appealed to theCommonwealth Courtonce again, and it is the opinion issued from this appeal that is discussed herein.  The central issue discussed in the Case was whether the property-at-issue (hereinafter “the Property”) the Church claimed it was using, was an actual place of regularly stated religious worship; if it was, the tax exemption applies, if not, the Church would not receive the exemption.  In making its analysis, the Court focused squarely on the evidence presented by the parties at the aforesaid trial.

The Church initially alleged that it was a Korean Presbyterian denomination and that its pastor resides at the Property.  The Property is large, with multiple buildings surrounded by a chain link fence with a couple of locked gates as the only entrances.  Only one of the locked entrance gates was used and could be controlled by remote control from within the buildings at the Property.  The Church further alleged that a more senior cleric visits the Property once per month to preside over services and those services occurred each Sunday from4:30pmto6:00pm, which is followed by a congregational dinner.  The pastor testified at trial and admitted that the Church’s services are frequently attended only by his family and he controls the remote controlled security gate.  Additionally, while there is no sign at the Property identifying it as a church, the Church asserted that the lack of a sign was due to a zoning restriction.

The Government countered the Church’s allegations by asserting that the Property was in extraordinary disrepair and its grounds were overgrown and unkept.  Indeed, the Trial Court found that the Property requires more than $10,000,000 in repairs to make it usable.  In addition to “keep out” signs and other forms of security (such as the aforementioned remote controlled security gate restricting access to the Property), the only rooms on the Property which were heated were those used as the pastor’s residence.  The Government called a local police officer as a witness who conducted surveillance on the Property on seven (7) different occasions.  The police officer testified that he never saw anyone enter or exit the Property when services were alleged to have occurred, however he did see the pastor travel from one building to another within the Property to where services occur each Sunday.  Indeed, the Government implied that the Property was primarily the pastor’s residence as opposed to a church.

The Court determined that much of the Church’s evidence was not credible.  For example, the photographs presented by the Church were from before 1998, and the Church presented no recent photographs or recent church bulletins to demonstrate current religious use.  Ultimately, in view of the above evidence, the Court ruled that the Property was not used primarily as a church and, therefore, was ineligible for a tax exemption.

On appeal to the Commonwealth Court, the Church argued that that was no evidence that the Property was used for any other purpose aside from a church, that it has rooms which are clearly designed for a church to use, and that the Government repeatedly admitted the Church was what it claimed to be through various pieces of correspondence and such.  The Church also attacked the surveillance evidence by indicating that the police officer never interviewed anyone at the Church, that half of the surveillance reports were incomplete, and that, per the aforesaid reports, the lights were on in the building when the Church claimed to have services occurring.  Significantly, the Church pointed out that despite the claims for tax exemption made by the Church, and the allegedly extensive investigation and surveillance by the Government into the same demonstrating that the Church’s claims were allegedly bogus, the Government never pressed any charges when it allegedly discovered that the Church made spurious tax claims.  The Church asserted that the Government’s failure to act with regard to the crime of tax fraud allegedly committed by the Church was evidence that there was nothing illicit or false in the Church’s claim for a tax exemption and that the surveillance conducted on the Church was simply for the purpose of creating trial evidence.

Upon a full review of the evidence below, the Court ruled that the Trial Court did not commit abuse of discretion or an error of law in finding against the Church.  The Court found that there was sufficient evidence presented by the Government to prove that the Property was not primarily used as a Church.  The Court found that the Trial Court conducted an accurate and rather thorough analysis of the facts and issues presented and did not abuse its discretion or commit an error of law.  The Court found that there was simply insufficient evidence to prove that the Property was used by the Church primarily for religious purposes.

In the final analysis, when seeking a tax exemption, a Church must ensure that the Property it uses is primarily used for religious purposes; otherwise Caesar must receive what is his from it.

Originally published on January 10, 2012 in the Pennsylvania Law Weekly section of The Legal Intelligencer and can be found here.

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