In Major Religion Law Ruling, Federal Appeals Court Says That Florida City Must Remove Cross from Public Park

The U.S. Court of Appeals for the Eleventh Circuit, affirming a decision by a federal district court in Florida, has ruled that the City of Pensacola, Florida, must remove a 34-foot Latin cross from a public park. The circuit court concluded that the city’s maintenance of the cross violated the First Amendment’s Establishment Clause.

A wooden cross was erected in the park in 1941. It was replaced in 1969 with the 34-foot version and subsequently donated to the city, which lights and maintains it at a cost of around $233 per year. Over the years, the cross has served as the location for an annual Easter sunrise program, and it also has been used as a site for remembrance services on Veteran’s and Memorial Days.

In their lawsuit challenging the city’s support of the cross, the plaintiffs asserted that the cross’ presence on city property violated the Establishment Clause. The district court agreed, and the city appealed to the Eleventh Circuit, arguing that the cross did not violate the Establishment Clause under current U.S. Supreme Court precedent.

The Eleventh Circuit agreed with the district court.

In its decision, the circuit court referred to the “three-prong Establishment Clause test” announced by the U.S. Supreme Court in Lemon v. Kurtzman, which asks whether (i) the challenged action has a secular purpose; (ii) the “principal or primary effect” is one that neither “advances nor inhibits religion”; and (iii) the action fosters “an excessive entanglement with religion.”

The Eleventh Circuit then concluded that the cross violated the Establishment Clause as set forth in Lemon.

The Eleventh Circuit acknowledged that the Supreme Court’s more recent Establishment Clause decisions seemed to have “substantially weakened” Lemon, but it pointed out that the Supreme Court had not “directly overruled” Lemon and, therefore, that its hand were “tied,” requiring it to affirm the district court’s order requiring removal of the cross.

Importantly, the Eleventh Circuit’s decision may not be the end of the matter. That’s because the U.S. Supreme Court soon may decide to hear a case involving the Peace Cross – a memorial to American servicemen who died in World War I – located in Bladensburg, Maryland. If the Court accepts that case, Maryland-National Capital Park and Planning Commission v. American Humanist Association, it may clarify its Establishment Clause jurisprudence, with implications not only for the Peace Cross itself but perhaps also for the Pensacola cross.

The Eleventh Circuit’s decision is Kondrat’yev v. City of Pensacola.


Barry Black and Jonathan Nelson Explore Religious Accommodations in Employment in Religion Law Column for N.Y. Law Journal

Religious accommodation disputes can lead to a variety of claims against employers. In their most recent Religion Law column for the New York Law Journal, Barry Black and Jonathan Nelson of the religion law firm Nelson Madden Black review and explain the law related to these kinds of religious accommodation claims and discuss the efforts that both employers and employees are expected to make in an effort to resolve them.

The bottom line, according to Mr. Black and Mr. Nelson, is that, in many instances, there is almost nothing more important to an employee than his or her religious beliefs. The law recognizes that, and requires that employers do so as well – within limits.

Click the image below to read more:

US Supreme Court Rules on Wedding Cake Case

The United States Supreme Court today ruled in favor of the Colorado bakeshop which refused to create a wedding cake for a gay couple’s wedding. The majority opinion, by Justice Kennedy, attempts to afford the same type of protections for free exercise as those in place to protect civil rights: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. . . . At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

In his concurring opinion, Justice Gorsuch, too, emphasized that “as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”

But the Court fell short of answering the question of whether the same would apply if Colorado had acted more evenhandedly.  The discussion is not yet over. 

The Court’s full decision can be downloaded here

New York Law Journal Religion Law Column Authored by NMB Partners

 #MeToo Movement Hits Religious Organizations

Under the ministerial exception, a minister’s discrimination lawsuit against his or her congregation cannot be sustained as violative of the First Amendment.  Does this principle apply to sexual harassment claims?  What if the harassment claim in no way involves the hiring or firing of the minister?  The courts are split on this question. How will NY’s courts decide the question?  Read the New York Law Journal’s most recent Religion Law Column by partners Barry Black and John Madden. 

Click here to read the column.

NMB Partner Conducts Webcast on Church Law for Federal Bar

Arlington, VA – NMB partner, Jonathan Robert Nelson, delivered a two-hour webcast on the topic of “Church Law 101: Religious Institutions in a Secular Legal Environment” from the offices of the Federal Bar Association in Virginia. The webcast was part of the bar association’s program of continuing legal education for lawyers – and of our firm’s commitment to promoting wider knowledge of religious institutions law and good corporate governance for houses of worship. The 

You can find information about the June 15, 2018 re-broadcast of the program or the on-demand video HERE

NMB Partners Author the New York Law Journal’s First Religion Law Column

The Religious Corporations Law and Religious Organizations’ Real Property Transfers

Partners Barry Black and Jonathan Robert Nelson co-authored the New York Law Journal’s inaugural Religion Law column.  The article focuses on the approval necessary prior to a religious institution’s transfer of real estate as set forth in New York’s Religious Corporations Law.

This is the first article in a new quarterly series for the New York Law Journal on Religion Law. Partner Barry Black has been designated by the NYLJ as its Religion Law Columnist.

Click here to view the full text of the article, 

Congregations Transferring Real Estate: When Is Court Approval Needed?

#MeToo Movement Brings Legal Issues to Religious Leadership

Issues on Sexual Harassment Surface in Religious Community

The #MeToo movement continues to gain traction nationwide, seeking to expose prevalent and persistent sexual harassment targeted mostly towards women in industries ranging from Hollywood, the national media and Corporate America.  It has naturally found its way into the religious community. The Jewish community now contends with recent harassment claims by female rabbis, who are considering legal action.

The oft-blurry line between law and religion has surfaced in cases involving ministers with claims of sexual harassment.  The potential impediment: the Ministerial Exception, a legal doctrine that exempts religious organizations from the reach of anti-discrimination laws. Appeals courts have differed on whether the Ministerial Exception applies to these cases. This question has yet to be fully fleshed out in the courts as more cases involving such allegations are commenced. For now, religious institutions can focus on education, policies and compliance in their efforts to create and maintain a safe, lawful and appealing work environment.

For more coverage on the issue see this article in Jewish Week, featuring comments from partner Barry Black: Click Here

NMB Decision Featured in New York Law Journal

CASE: Divya Dham Sevashram Sangha, Inc. v. Gita Temple-Ashram, Inc.

A recent decision in a case argued by Nelson Madden Black partner Jonathan Robert Nelsonwas featured in an article in the New York Law Journal’s Realty Law Digest‘ (subscription required). The article notes interest in the case because of the growing number of religious institutions selling property to pay for other expenditures.

The court granted our client’s motion for summary judgment, finding that “the sale contract was void under the Religious Corporations Law and Non-Profit Corporations Law.” 

Parsonage Allowance: Hanging in the Balance?

What a Recent Federal Court Decision Might Mean for Clergy

On October 6, a Wisconsin federal judge ruled that the parsonage allowance authorized by Internal Revenue Code §107(2) is unconstitutional as violative of the First Amendment’s Establishment Clause.  You may recall that the same judge ruled the same way back in 2013, but her decision was reversed by the Seventh Circuit Court of Appeals on standing grounds, without addressing the substantive issue of the statute’s constitutionality (full text of the decision is available here).

Judge Crabb’s ruling will again come before the Seventh Circuit.  If that court upholds the decision, ministers in Wisconsin, Illinois, and Indiana would be affected.  But the matter would have a good likelihood of ending up before SCOTUS and, if upheld there, the parsonage allowance would no longer be available to clergy. Please note that § 107 (1), which excludes the rental value of actual parsonages from taxable income, would remain intact – at least until that is challenged.

If parsonage allowances were to be removed from the Internal Revenue Code, clergy would be affected significantly.  For some, their income could be sliced nearly in half.  “Ministers,” to include clergy of all faiths and denominations, are typically not wealthy people; their focus in life is often their mission rather than personal indulgence. The humble income they derive from their work is often barely enough to get by, and further reducing it would in some instances be devastating.

Worse yet, the impact of such a change in the law would disproportionately hurt those who need more. Clergy of wealthier congregations who live in a congregation-owned home would not be affected; sadly, those serving smaller congregations with moderate financial resources, and whose compensation is far more modest, would suffer the most.

Nelson Madden Black plans to be filing an amicus brief in the Wisconsin matter, so stay tuned for updates!