Barry Black and Jonathan Nelson Explore the Relationship Between Religious Institutions and Trustees for New York Law Journal

Barry Black and Jonathan Nelson discuss in their recent Religion Law column featured in the New York Law Journal some examples highlighting the rather unorthodox relationship between religious organizations and their trustees. The two Nelson Madden Black partners dive into a variety of cases which have laid precedence to the opaque guidelines for religious organizations, trustees and even members of congregations. 

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“Church Plan” Exemption to ERISA Does Not Violate Establishment Clause, Illinois District Court Decides

The U.S. District Court for the Southern District of Illinois has rejected a constitutional
challenge to the so-called “church plan” exemption to the requirements of the Employee
Retirement Income Security Act of 1974 (“ERISA”).

ERISA-governed employee benefit plans are subject to a host of regulations and
requirements under federal law. ERISA, however, exempts church plans from those

The plaintiffs in Smith v. OSF Healthcare System sued, among other defendants, the
administrators of two defined-benefits plans associated with The Sisters of the Third Order of St.
Francis. The plaintiffs asserted a number of claims, including that the church plan exemption as
applied to the plans violates the Establishment Clause of the First Amendment to the U.S.
Constitution and, therefore, is unconstitutional.

The Establishment Clause provides that, “Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof.”
The Illinois district court concluded that the church plan exemption does not violate the
Establishment Clause.

The district court explained in its decision that challenges under the Establishment Clause
are analyzed based on the three part test enunciated by the U.S. Supreme Court in its 1971
decision in Lemon v. Kurtzman.

Under Lemon, governmental action does not violate the Establishment Clause if:
(1) It has a secular purpose;
(2) Its principal or primary effect is one that neither advances nor inhibits religion; and
(3) It does not foster an excessive government entanglement with religion.

The district court then applied that test to the church plan exemption under ERISA.
First, the district court found that the church plan exemption has a “secular purpose” of
alleviating significant government interference with the ability of religious organizations to
define and carry out their religious missions.

Then, the district court found that the church plan exemption’s principal or primary effect
is one that neither advances nor inhibits religion. The district court observed that the church plan
exemption is one of a number of statutes (including the Internal Revenue Code and the
Americans with Disabilities Act of 1990) that relieve religious organizations from otherwise
generally-applicable requirements. The district court found “no principled distinction” between
those exemptions and the church plan exemption.

Finally, the district court decided that the church plan exemption does not foster “an
excessive government entanglement with religion” but, rather, avoids the entanglement. It
concluded that, by exempting eligible plans from ERISA requirements, “religious organizations
and their associated entities are relieved from government mandates about how they conduct
their affairs, structure their finances and pursue their missions.”

Religious organizations should welcome the district court’s decision and its application
of the Lemon test to church plans.

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.


The Protecting Religiously Affiliated Institutions Act of 2018 Becomes Law

President Trump has signed “The Protecting Religiously Affiliated Institutions Act of
2018” into law. The new law strengthens protections for religious entities and their properties.
The bipartisan bill, which builds on the Church Arson Prevention Act of 1996, clarifies
that federal law prohibits threats toward religious institutions such as schools and community
centers, in addition to houses of worship, as well as acts that result in damage to or destruction of
religious institutions’ property.

The new law also modestly increases the criminal penalty for cases in which the
underlying conduct causes significant damage or destruction, and clarifies that “religious real
property” includes property that is leased by religious institutions. 
The legislation passed the Senate Judiciary Committee in April and unanimously passed
the Senate and the House in September.

The bill was endorsed by various religious groups, including Agudath Israel of America
and the Muslim-Jewish Advisory Council. Both groups wrote letters of support that Senator
Orrin Hatch (R-UT), the bill’s sponsor, requested be placed in the Congressional Record.
After President Trump signed the bill into law, Senator Hatch said, “Crimes targeting
religious institutions pose a danger to the religious freedom and security of all Americans. I am
proud to sponsor this bill that will protect houses of worship and affiliate community centers.
These attacks are inexcusable. I want to thank my colleagues in both the House and the Senate,
as well as the President, for working swiftly to sign our legislation into law.”

In a statement issued after the bill became law, Jason Isaacson, the AJC’s associate
executive director for policy, said, “This important law, which provides for new and
strengthened measures to deter, as well as punish, perpetrators of attacks on religious institutions,
will provide a much-needed sense of comfort and security.

“The solid bipartisan support for the Protecting Religiously Affiliated Institutions Act of
2018 is a reaffirmation of our freedom, enshrined in the U.S. Constitution, to exercise religion, to
practice one’s faith unhindered and without fear,” Mr. Isaacson added. “The increasing attacks
and threats against churches, synagogues, and mosques disgrace our nation’s most fundamental
values, and demand the firm response offered by the new law.”

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.

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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