Christian Legal Society

Transcription

1 Christian Legal Society The Shifting Sands of Religious Accommodations Presenting: Stuart J. Lark John R. Wylie Susan D. Campbell #226363v.2

2 Accommodations for Religious Organizations Accommodations to protect the religious character and mission of religious organizations include the following: Employment Accommodations Tax Exemptions Additional Exemptions for Churches, Religious Orders, and Ministers (Health Care, Immigration, Church Property, Charitable Solicitation Registration) 2

3 The Context Many religious organizations increasingly engage in commercial or secular activities. Religious and/or charitable groups Educational facilities Healthcare facilities Social service facilities (thrift stores) Community/recreational centers Cultural facilities: fine arts, music, museums, zoos, event centers 3

4 The Context Pressure for tax revenue and/or a level playing field. Pressure for nondiscrimination related to religious beliefs and secularized content Uncertainty regarding the definitions of charitable and religious (and a need for consistency and constitutional limits). 4

5 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 5

6 Prescription Contraceptive Legal Structure Coverage Mandate Source Statutes: ACA, PHS, ERISA, IRC Regulations: HHS, Labor, Treasury HRSA Guidelines (Institute of Medicine input) Various States Rule Non-grandfathered plans/issuers must cover preventive health services without cost as identified in HRSA guidelines. Also applies to student health insurance plans. 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. Certain plans must cover prescription contraceptives, with similar narrow religious exemption. 6

7 Prescription Contraceptive Implementation Status: Coverage Mandate 1. Regulations apply for plan years after 8/1/ No HHS enforcement for many religious nonprofit plans until 8/1/13. New accommodation regulations to be adopted by then. 3. The stated goal is to accommodate non-exempt religious nonprofits with religious objections to covering (i.e., contract, arrange, pay for) contraceptive services while still providing contraceptive coverage without cost sharing to covered beneficiaries (including no premium increase to religious organization or premium to beneficiaries). 7

8 Prescription Contraceptive Coverage Mandate Long Term Strategic Responses: 1. Comply (perhaps with clarified faith-based conduct standards) 2. Pay penalties 3. Discontinue coverage (and potentially pay penalties) 4. Claim religious employer exemption (and perhaps take steps internally to strengthen position) 5. Litigate (either proactively or reactively) 8

9 Employment Accommodations Employment Nondiscrimination Exemptions Federal laws (Title VII, others) State/local laws Limited religious exemptions Only activities furthering religious purposes No exemption if supported by tax funds (18 states) Other protected classifications with religious significance Church autonomy/ministerial exception Minister employment cases (e.g., gender discrimination) 9

10 The facts Spencer v. World Vision Secular activities (humanitarian relief/development) provided from a Christian motivation Substantial government funding Limited expressly religious activities 10

11 Spencer v. World Vision The Previous Ninth Circuit Test: Determine whether the general picture of an organization is primarily religious based on multiple factors: Religious character of activities Indoctrination v. mere education Policies (and curriculum) reflect a particular religion Affiliation with a church Balance these factors: Religious policies v. secular activities Religious activities v. secular policies 11

12 Spencer v. World Vision Split decision (in favor of World Vision) All bona fide religious nonprofits are exempt All bona fide religious organizations are exempt unless they sell too many goods of services Only steeple churches are exempt Bottom line: World Vision is a religious employer because it is not too commercial 12

13 Religious Hiring Conditions Access to other government benefits Christian Legal Society v. Martinez; Vanderbilt Federal/state charitable campaigns Use of government buildings Tax exempt financing: facilities may not be used predominantly for religious worship or sectarian instruction (or for pervasively sectarian purposes ) Similar conditions for private grants (Microsoft) 13

14 Hosanna-Tabor v. EEOC Facts Discharge of a fourth grade teacher at a Lutheran Church school after she sought reinstatement following a disability and threatened legal action. Teacher brought claim under ADA (including retaliation). Curriculum integrates Christian teaching, but the teacher spent less than 45 minutes per day on religious activities. 14

15 Hosanna-Tabor v. EEOC Teacher was a commissioned minister in the Lutheran Church (but other teachers with same duties were not). o Commissioned status was based on completion of prescribed training and education and confirmation of a calling by the church. o Teacher claimed a minister s housing allowance. 15

16 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? 16

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18 Ministry Organization Amicus Brief Arguments 1. The First Amendment prohibits government officials (including courts) from imposing legal penalties on churches related to their selection of minister employees. 2. The ministerial exception should apply to all ministry leaders. 3. The determination of who is a ministry leader should be based on whether a ministry organization s representations to this effect are bona fide. 4. The primary duties test as applied by the Sixth Circuit denigrates religious exercise, requires unconstitutional religious determinations and results in religious favoritism. 18

19 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. 19

20 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. 20

21 The Concurring Opinions Justice Thomas Defer to a religious organization s good faith understanding of who qualifies as a minister. Any judicially-crafted test will disadvantage certain unconventional religious outside the mainstream. 21

22 The Concurring Opinions Justice Alito (and Justice Kagan) The ministerial exception should 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. With respect to religious groups, their very existence is dedicated to the collective expression and propagation of shared religious ideals. 22

23 The Concurring Opinions Justice Alito (and Justice Kagan) Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith. While a purely secular teacher would not qualify for the ministerial exception, the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones. What matters is that respondent played an important role as an instrument of her church s religious message and as a leader of its worship activities. 23

24 Implications There is a robust ministerial exception that will substantially expand the protection for church and ministry organization employers from employment nondiscrimination claims (on all bases, including sexual orientation) by their employees. This ministerial exception will or can be made to cover many employees of such organizations, as they have specific training, hold a title based on that training and their distinct religious roles, and engage in leadership, teaching doctrine, evangelism and/or liturgy/worship. The conduct of secular functions should not undermine the application of the exception. 24

25 Implications The concurring opinions, in particular, will support expansive definitions of ministers and even religious organizations in other contexts. Minister s Housing Allowance; Property Tax Exemptions. The inquiry is limited to determinations of sincerity. The exemption applies to all ministry leaders. 25

26 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 26

27 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. 27

28 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 28

29 Accommodations at Risk Opportunities/Pressure Grants (government or private): No funds may be used for any activity or material with religious content Secular Ministry Opportunities Inconsistent Policy Implementation Use of Public Facilities or Exempt Bonds: Facilities may not be used for religious worship or instruction Grants/Charitable Campaign: Recipient organizations may not discriminate with respect to employment on the basis of religion Disclosure on 990 s: Related parties and directors/officers exemption Accommodation Faith-Based Employment: Can a religious organization maintain its statutory exemption if it enters into contracts agreeing not to discriminate on religion and/or that its activities are not religious? Church Exemptions: How will the conduct of secular activities affect church status? Will the organization have to be identified on the 990 of a related organization? Property Tax: How would such representations affect eligibility for property tax exemption? Minister s Housing Allowance: Do activities constitute ministerial services if they are not religious worship or instruction and contain no religious content? 29

30 Preserving Religious Accommodations Document your Christian character and mission Document how policies and activities express and exercise your religious doctrine and worldview Articulate doctrinal and expressive basis for necessary religious associations: leadership, membership, employment o Religious association is in and of itself an expression and exercise o Religious association is necessary to the expression and exercise of ministry activities 30

31 Preserving Religious Accommodations Consistently apply policies for addressing noncompliance Carefully consider whether and how to permit exceptions Consider taking a proactive stance on sexual orientation Document religious beliefs regarding appropriate sexual conduct Consider affirming that there is no discrimination based on sexual orientation 31