Counseling and Representing Churches and Other Religious Organizations

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1 Counseling and Representing Churches and Other Religious Organizations Stuart J. Lark September 14, 2012 #225046

2 Ministerial Exception Hosanna-Tabor v. EEOC Facts Discharge of a fourth grade teacher at a Lutheran Church school after she sought reinstatement following a disability. Teacher brought claim under ADA. The teacher was a commissioned minister, but the teacher spent less than 45 minutes per day on religious activities. 2

3 Ministerial Exception Hosanna-Tabor v. EEOC Issues: Do courts have authority to enforce employment laws as applied to the relationship between a church and its minister employees? Does this teacher fit within such a ministerial exception? What test can be used to distinguish ministerial and other employees? o Primary Duties not secular? 3

4 4

5 Hosanna-Tabor v. EEOC The Court s Unanimous Decision The ministerial exception does indeed apply, at least in civil rights cases. The teacher in this case is a minister. Established by how she and the school/church held her out. Supported by her special training and calling and job duties involving conveying church s religious message. Not undermined by substantial secular duties (no stopwatch), or fact that nonministers performed same duties. 5

6 Hosanna-Tabor v. EEOC The Court s Unanimous Decision But, no complete definition of a minister. Maintained that the amount of time spent on various activities is relevant to minister status, but provided no explanation as to how it is relevant. o Given the substantial degree of secular functions in the case, the inquiry may be meaningless. Did not define the essence of a minister function. 6

7 Hosanna-Tabor v. EEOC The Concurring Opinions Justice Thomas: Defer to a religious organization s good faith understanding of who qualifies as a minister. Justice Alito (and Justice Kagan): Apply to any employee who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith. 7

8 Religious Tax Exemptions Colorado statutory religious property tax exemption: Exempts property used solely and exclusively for any religious purpose Denial shall be based only upon ground that: the religious mission and purposes are not religious beliefs sincerely held by the owner of such property, the property being claimed as exempt is not actually used for the purposes set forth in such application, or the property being claimed as exempt is used for private gain or corporate profit 8

9 Religious Tax Exemption Maurer v. Young Life Exemption for several Young Life camp properties: a Christian Family Lodge with a warm Christian atmosphere a camp property with cabins, lodges, dining facilities, meeting rooms, recreational facilities, staff housing, etc. no crucifixes or other religious symbols anywhere on the property Typical activities included: swimming pool, basketball, hiking, horseback riding, skiing, archery, etc. Marketing brochures promoted Sun and Fun and leisurely vacations. 9

10 Religious Tax Exemptions YMCA of the Rockies Mountain camp activities in a Christian Environment Clear Christian mission and motivation; Chaplain program Open to the public No distinctly religious activity requirements for guests Charges fees and provides activities similar in some ways to commercial operations (like other Y s; camps; recreational centers; museums; zoos) Currently pending in Colorado Court of Appeals 10

11 Religious Employer Exemption Prescription Contraceptive Coverage Mandate Source Statutes: ACA, PHS, ERISA, IRC Regulations: HHS, Labor, Treasury HRSA Guidelines (Institute of Medicine input) Rule Non-grandfathered plans/issuers must cover preventive health services without cost as identified in HRSA guidelines. Give HRSA discretion to exempt religious employers narrowly defined as one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code. Preventive health services include prescribed FDA-approved contraceptives (which include abortificients); exception for religious employers. 11

12 Commission on Accountability and Policy for Religious Organizations Formed by Evangelical Council for Financial Accountability at request of Senator Grassley Responses to Perceived Abuses Compensation Tax Exemptions Disclosures Political Speech 12

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