Ministerial Exception Leads To Dismissal Of Part of Nuns’ Sexual Harassment Claims

This is from religionclause.blogspot.com which you can find here:

In Brandenburg v. Greek Orthodox Archdiocese of North America, (SD NY, June 1, 2021), two nuns who formerly worked at a Greek Orthodox monastery sued the Archdiocese and several clergy members for sexual harassment by Father Makris at the monastery. One of the plaintiffs also sued over the conduct of Father Makris when he was Dean of Students at the religious college she attended in Massachusetts. When the student reported a sexual assault by a male student, Makris made her marry her attacker to cure the assault.

Invoking the ministerial exception doctrine, the court dismissed plaintiffs’ sex discrimination claims and their retaliation claims to the extent they are based on tangible employment action (hiring, firing, job assignments, promotion, compensation).  However the court held that the claims for constructive discharge survive, as do the claims for retaliation to the extent they are based on harassment and not a tangible employment action. Some of plaintiffs’ defamation claims also survived the motion to dismiss.

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Texas Passes Heartbeat Abortion Law With Broad Civil Enforcement Provision

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Today the Texas legislature sent to Governor Greg Abbott for his signature SB8 (full text), the state’s version of a “heartbeat” abortion law. Except in medical emergencies, it bans performing or inducing an abortion if the physician has detected a fetal heartbeat. Unique to the Texas law is a provision that allows any private person to bring a civil action against a physician who has violated the statute, and against anyone who knowingly aids or abets the abortion, including reimbursing the costs of an abortion through insurance, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of the statute. However, no action may be brought against the woman on whom the abortion was performed. Plaintiff may recover statutory damages of not less than $10,000 for each abortion the defendant has been involved in. Daily Beast reports on the new statute.

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Indiana Trial Court Dismisses Catholic School Teacher’s Suit Against Archdiocese

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As previously reported, in May 2020 in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., an Indiana trial court refused to dismiss a lawsuit against the Catholic Archdiocese brought by a Catholic high school teacher who the Archdiocese ordered fired after he entered a same-sex marriage. In July 2020, the U.S. Supreme Court broadly interpreted the “ministerial exception” doctrine as it applies to teachers in religiously affiliated schools. Subsequently, in State of Indiana ex rel. Roman Catholic Archdiocese of Indianapolis, Inc. v. Marion Superior Court, (IN Sup. Ct., Dec. 10, 2020), the Indiana Supreme Court denied a writ of mandamus and prohibition and remanded the case to a different trial court judge “to consider new and pending issues and reconsider previous orders in the case.”  Now, in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc.,  (IN Super. Ct., May 7, 2021), the trial court dismissed the case for failure to state a claim on which relief can be granted. Legal Reader reports on the case.

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Vermont State School Board Orders Payment Of Tuition To Religiously Affiliated Schools

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In In re Appeal of Valente, (VT State Bd. Educ., April 21, 2021), the Vermont State Board of Education, in appeals by three families, ordered local school boards in districts without public high schools to pay students’ tuition to religiously affiliated high schools. Vermont law requires school districts that do not have public high schools to pay tuition for students to attend another public or private school. The Vermont Supreme Court in Chittenden Town School Dist. v. Dept. of Educ.,(1999) limited the ability of districts to pay tuition to religious schools, while the U.S. Supreme Court has held that the 1st Amendment bars exclusion of religiously affiliated schools from general aid programs. The Board of Education said in part:

The type of use restriction and certification discussed in Mitchell may provide a reasonable option going forward for harmonizing the state and federal constitutional requirements. School districts … could ask all … schools to certify that public tuition payments will not be used to fund religious instruction or religious worship. Such an approach would place all independent schools on an equal footing; regardless of perceived or actual religious affiliation, all independent schools would be asked to provide the same assurance regarding the use of public tuition payments. No school would be excluded based solely on its religious affiliation. And no school would be required to “refrain from teaching religion.” … Schools themselves would be left to decide whether to accept public tuition payments that could not be used to fund religious worship or religious instruction. 

The Board offers these observations with the caveat that this is not a rulemaking proceeding and it cannot, in this context, provide any binding direction to school districts. Further, as explained above, constitutional questions remain unsettled. As litigation moves through the courts, the permissible legal parameters may become clearer. Ultimately the courts will have to resolve whether the use restriction that Chittenden requires can co-exist with First Amendment requirements.

VTDigger reports on the decision.

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Michigan Statute Protecting Parents’ Faith Healing Includes Subjective Religious Interpretations

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Michigan’s Child Protection Law (MCL 722.634) provides:

A parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian.

In In re Piland, (MI App., April 15, 2021), a Michigan state appellate court held that the trial court erred in refusing to give a jury instruction based on this statute in a case in which parental rights for three children were being revoked.  The parents had allowed a newborn infant who developed jaundice to die rather than call for medical help. The trial court had refused the instruction because it interpreted the statute to relate only to the practice of beliefs of a religious organization, and not to individualized beliefs.  The appellate court disagreed, saying in part:

The trial court’s interpretation of the word “legitimately,” as used in MCL 722.634, is that the religious beliefs being practiced must be legitimate. And, that, in order to be legitimate, those beliefs had to be part of the doctrine or tenants of a religion as opposed to a parent or guardian’s subjective interpretation of scriptures. The trial court’s interpretation, however, renders the statute unconstitutional. It is well-established that “government has no role in deciding or even suggesting whether the religious ground” for a person’s actions “is legitimate or illegitimate.” 

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Christian Student Group Wins Suit Seeking To Limit Its Leadership To Believers

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In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, April 5, 2021), a Michigan federal district court held that Wayne State University violated the free exercise, free speech, association and assembly rights of a Christian student organization (IVCF) when the University suspended the group’s status as a Recognized Student Organization.  The University took this action because IVCF violated the school’s non-discrimination policy by insisting that its leaders agree with IVCF’s  “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. In an 83-page opinion, the court said in part:

The First Amendment provides religious organizations the right to select their own ministers, and, under the First Amendment and §1983, organizations can sue the government for violating that right….

Plaintiffs also provide uncontradicted evidence that student leaders, called “Christian leaders,” qualify as ministers under the First Amendment….  In essence, Plaintiffs’ student leaders participate in proselytizing efforts and are Plaintiffs’ chosen spiritual resource for students at Wayne State….

No religious group can constitutionally be made an outsider, excluded from equal access to public or university life, simply because it insists on religious leaders who believe in its cause…

Defendants have barred Plaintiffs from selecting leaders that share its Christian views while allowing other groups to engage in similar form of leadership selection. This divergent treatment cannot withstand constitutional scrutiny….

The court awarded an injunction and nominal damages. Detroit News reports on the decision.

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A RUN ON THE COURTS

I recently heard on the radio a story about a woman and her young child who were kicked off of a bus because the child had a seriously smelly diaper. They were on the way to see the pediatrician because the child had a stomach virus. The bus company defended the driver’s actions, stating that he acted in the interest of the safety and comfort of the other passengers, who had complained about the odor.

                Although I can sympathize with both sides in this tale, and with the mother’s comments that being tossed off the bus made her feel like crap (appropriately said), I don’t sympathize with the mother’s next statement that she was going to sue.  Of course she is going to sue.  Every day lawyers hear from people who want to sue some person, company, school, government entity, etc., etc.  The rallying cry for these people is that something is unfair and that someone or some institution should be sued. Some of these people promise that the lawyer will make millions of dollars on their case, if the lawyers first provide their services for free and assume huge costs.

                Aside from the substantial costs to bring and defend a lawsuit, which is one of the main reasons most cases are settled before a trial, there is also the strong possibility that one side will lose. Regardless of how wonderful it seems one’s case is, there is still only a 50% chance of winning.  And sometimes, if one loses, filing fees and legal fees of the opposing party’s lawyer are tacked on. Even if one wins, the other side can appeal 1, 2, or 3 levels higher in the legal system, leading to even higher costs and a lengthier time for a decision. This can often span years. The justice system is not for the weak of heart or the poor of coin. But, even more important, everything that happens doesn’t always have a legal remedy, and even if it has a legal remedy, that remedy often requires that specific elements must be proven. And even if the specific elements are proven, it doesn’t mean that there are valid damages. Unless the mother above can prove that her child’s illness worsened after they were kicked off the bus, or that she couldn’t take another bus or find other means of transportation she could take to see the doctor, I think that she will have a hard time providing that she suffered damages. That doesn’t mean that the bus company won’t pay her something to avoid the unwanted media attention and for her inconvenience.

                But, I don’t get the feeling that her main interest is proving her case; instead her main interest is calling the news media to express her outrage about her situation which she obviously feels outweighs the rights of the other passengers to enjoy their ride and not be exposed to illness.

                There have been several cases which I have turned down where large verdicts were decided after other lawyers accepted the cases. But, all of these verdicts were either substantially reduced or overturned after 5-10 years of litigation.  Lawyers generally trust their guts on which cases they will succeed with, and despite some people criticizing lawyers for discouraging them from going heading into a disastrous legal battle, after they have fallen over the legal cliff, hopefully they will learn to respect the opinion of people who fight in the legal fields daily.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady.”

Massachusetts City Council Recognizes Polyamorous Domestic Partnerships

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On March 8, Cambridge, Massachusetts City Council adopted amendments to the city’s Domestic Partnership Ordinance allowing polyamorous domestic partnership.  The ordinance now provides that

“Domestic partnership” means the entity formed by two or more persons who meet the following criteria and jointly file a registration statement proclaiming that: 1. They are in a relationship of mutual support, caring and commitment and intend to remain in such a relationship; … 5. They consider themselves to be a family.

CNA reporting on the amendment points out that Cambridge becomes the second town, after Somerville, to legally recognize such domestic partnerships.

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PHILANTHROPISTS OF TIME

The word “philanthropist” was formerly reserved for a very few wealthy people like Walter Annenberg who donated to charitable or civic causes. Yet, every day I read or hear about someone who is referred to as a philanthropist by the media, or often refers to him/herself as a philanthropist.

So, how much does one have to contribute financially to charities or causes to become a legitimate philanthropist? Obviously there is not a set amount. Is someone who gives half of their income of $50,000 to charitable causes considered a philanthropist, and, if so, are they placed in the same category as someone who gives $1 million and earns a salary of $10 million? If that is the case, than the person earning less is a more generous philanthropist than the person who earns substantially more. Other considerations are whether one is donating money they have inherited or whether they are donating money they would have to pay toward taxes instead. If that is the case, perhaps we should consider the more sincere philanthropist to be the person who really wants to donate, and doesn’t do so just to save taxes. 

I read the other day that young people donate twice as much of their time to charitable causes as their elders. I think that has something to do with their elders having to spend most of their time earning money to support their children.

Another form of philanthropy is giving of one’s time, and in the case of lawyers, their time and advice. Although I contribute financially to charities, and the colleges I have attended will receive funds from my estate when I die, most of my philanthropy is and has been that of giving freely of my time and expertise to thousands of callers over the years.  If I were to place a monetary amount on my time and advice it would amount to many millions of dollars. Every day I listen to people’s stories and problems and try to guide them in a certain direction, educate them about their legal rights and possibilities, and open their eyes and minds so they can reach the best decisions for themselves based on their circumstances. Although I never give legal advice unless someone becomes a client, I do try and educate anyone who calls me about the law in general and their choices.   Sometimes people are in denial and don’t want to hear that their choices are limited under the law, that their choices are often limited by their finances, and that justice has limitations.

Iam not alone in time philanthropy.  Most lawyers provide this service, and it is a service that many people think should be provided for free.  However, As Abraham Lincoln said, “a lawyer’s time and advice are his stock in trade.”  I think lawyers are unique as they are giving of their time and expertise, quite often initially for free. Can you think of a doctor, dentist, accountant, or other professional who will listen to your story for free, at least for any length of time? Yet, people expect lawyers to give freely of their time. So, let’s applaud lawyers, many of whom are major time philanthropists, as they give of their time for the common good without charge.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady.”

8th Circuit: Street Preacher Did Not Show Entitlement To Preliminary Injunction

This is from religionclause.blogspot.com which you can find here:

In Sessler v. City of Davenport, (8th Cir., March 18, 2021), the U.S. 8th Circuit Court of Appeals affirmed the denial of a preliminary injunction to a street preacher who in 2018 had been required by police to leave the Street Fest area in Davenport. He was limited to preaching across the street from one of the festival entrances. Plaintiff sought a preliminary injunction to bar enforcement of the city’s Special Events Policy against him through December 2022. The court held:

Although Sessler possesses a First Amendment right to communicate his messages in a public forum, he does not have the wholesale right to disrupt an event covered by a permit….

Even if we assume for purposes of this appeal, without deciding, that Sessler has shown a likelihood of success on the merits, we find Sessler’s inability to demonstrate a threat of irreparable harm heavily weighs against granting preliminary injunctive relief….

The facts as alleged by Sessler show that he was allowed to continue preaching in the City’s public sidewalks and streets, just not those demarcated and secured for use by Street Fest in July 2018. And, although Sessler’s Complaint is based on his removal from a festival governed by the City’s Policy, Sessler does not provide any concrete plans to share his messages at future festivals in the City.

You can learn more about this issue here.