New York Law Journal Column – The Ministerial Exception, and How It Protects Religious Institutions

In the October 29, 2021 edition of the New York Law Journal Religion Law column, partner Barry Black and counsel Lane Paulsen explored the ministerial exception and the inherent conflict that arises in employment disputes involving religious groups between equality and freedom of religion. The article touches on case law that prominently feature these types of issues and set precedent. Barry and Lane then examine how courts determine when the exception requires judgment in favor of a defendant.

Read the full article here.

New York Law Journal Column – Religious Community Eagerly Awaits U.S. Supreme Court’s New Term

In the August 27, 2021 edition of the New York Law Journal Religion Law column, partners Barry Black and Jonathan Robert Nelson look back at recent key rulings from the Supreme Court and look ahead to the SCOTUS’s new term and upcoming religion law cases on the docket. A particular case of note, Carson v. Makin, No. 20-1088, challenging Maine law stating that since more than half of Maine’s school administrative units (SAUs) do not operate a public secondary school that the SAU may “pay the tuition … at the public school or the approved private school of the parent’s choice at which the student [from their SAU] is accepted.” However, under Maine law a private school must be “a nonsectarian school” and several families have claimed that this requirement infringes on several federal constitutional rights, including theirs rights under the Free Exercise Clause.

The upcoming Supreme Court term should be filled with key developments for the religious community, read the full NMB analysis here.

New York Law Journal Column – How RLUIPA Protects the Right To Use Land for Religious Purposes

In the May 28, 2021 edition of the New York Law Journal Religion Law column, partner Barry Black and associate Sarah E. Child take a close look at the RLUIPA statute and how recent decisions have affected the interpretation and application of the act. Our lawyers focus in on the land use section that provides important religious freedom protections pertaining to houses of worship and religious schools—from zoning and landmarking laws that discriminate based on religion or that unjustifiably infringe on religious freedom.

Read the full article here

New York Law Journal Religion Law Column – Is ‘Substantial Equivalency’ The Next Religious Freedom Fight?

Partner Barry Black and associate Sarah E. Child examine whether school requirements will be the next legal battle religious institutions will face as the New York State Education Department moves forward with the proposed regulation, Substantial Equivalency of Instruction in Nonpublic Schools, which broadly examines the criteria required for non-public schools to meet a “substantial equivalency” standard to their public school counterparts. Barry and Sarah review recent employment cases and how those precedents may translate and be interpreted when viewed through an education-focused lens.

Read the full article here.

New York Law Journal Religion Law Column – When a Corporation’s Members, Not Its Trustees, Make the Decisions

In the November edition of the Religion Law column in the New York Law Journal, partner Barry Black analyzes the duties, powers and limitations of “managing officers” of religious corporations operating under New York’s Religious Corporations Law (RCL) and how two landmark New York Court of Appeals decisions affect the interpretation of the RLC and the role of trustees when key decisions are made regarding the organization.

To read the full article click here: “When a Corporation’s Members, Not Its Trustees, Make the Decisions”.

New York Law Journal Religion Law Column – U.S. Supreme Court Expands Religious Freedom in Key Rulings

In the August edition of the Religion Law column in the New York Law Journal, partners Barry Black and Jonathan Robert Nelson discuss three recent SCOTUS decisions that show strong support behind religious freedom. The analysis of these cases provide some clarity and guidance to all types of religious organizations on matters such as school aid, employment discrimination and contraceptives.

To read the full article click here: “U.S. Supreme Court Expands Religious Freedom in Key Rulings

New York Law Journal Religion Law Column – Considerations for Religious Institutions in Times of Crisis

In the May edition of the Religion Law column in the New York Law Journal, partners Barry Black and John B. Madden dive into timely, distinct issues facing religious institutions during this uncertain time amidst the Covid-19 crisis and offer practical guidance and insight to stay ahead of growing concerns.

Read the full article here: “Considerations for Religious Institutions in Times of Crisis”

San Francisco Theological Seminary complains to ecclesiastical court against its expulsion from the Presbyterian Church (U.S.A.)

On Saturday, May 16, the San Francisco Theological Seminary, which has been a Presbyterian theological institution for the past 150 years, filed a judicial complaint with the Presbyterian Church (U.S.A.). Invoking the ecclesiastical jurisdiction of the church’s courts, the seminary’s complaint affirmed its longstanding ties with the Presbyterian Church and its continued devotion to the interests of American Presbyterianism. The complaint was occasioned by a decision by the church’s Committee on Theological Education to remove the seminary from the church’s list of Presbyterian theological institutions.

Last year, the seminary merged with the University of Redlands, a non-sectarian university with a campus in Redlands, California. The seminary’s trustees believed that uniting with Redlands was the best way to preserve the seminary’s existence long-term. While both parties to the merger pledged their strong interest in retaining the seminary’s ties to the Presbyterian church, the church committee secretly adopted new rules after the merger that would rule out non-sectarian merger partners. 

The seminary’s complaint charges that only the General Assembly of the church has the authority to determine the seminary’s status, and the committee exceeded its authority. The 224th General Assembly of the Presbyterian Church (U.S.A.) is scheduled to convene next month. Due to the COVID-19 pandemic, plans are being made to hold a “virtual” meeting of the church council. The committee has submitted a “recommendation” to the gathering that asks the church to approve its new rules without explaining that it has already applied them, without authority, to expel the seminary from the denomination. 

Supporters of the seminary note that the committee’s action, if left standing, would end the church’s relationship with its only seminary located west of the Rocky Mountains. The denomination is based in Louisville, Kentucky. The committee’s expulsion of the seminary, and its application to next month’s General Assembly, are causing an uproar among Presbyterian churches with links to the seminary, particularly in the western United States. They are concerned about the committee’s assumption of powers that belong to the entire church, and worried that it sets a precedent that leaves all of the denomination’s theological institutions at risk. A copy of the complaint may be downloaded here.

The seminary is represented by Nelson Madden Black partner Jonathan Robert Nelson, who is a ruling elder in the Presbyterian Church (U.S.A.).

Barry Black Co-Authors “Where Have Our Religious Rights Gone?” for

Partner Barry Black co-authored “Where Have Our Religious Rights Gone?” for the Jewish Press, the largest independent weekly Jewish newspaper in the United States. The piece examines the impact Covid-19 and stay-at-home orders have had on religious communities and their ability to practice.

Read the entire article here for more insight from Barry and co-author Roger Brooks, senior counsel with Alliance Defending Freedom:

Five Unique Challenges for Religious Organizations in Applying for the Paycheck Protection Program

To view a printable pdf of this article, click here.

Houses of worship and other religious institutions applying for the Paycheck Protection Program (“PPP”) present unique issues that many lenders and financial institutions may be ill equipped to answer. Proper guidance and advocacy can help religious institutions establish their eligibility and increase the amount of funding available to them under the PPP.

While PPP applications are relatively simple, there is confusion and inconsistency in lenders’ interpretation and application of the lengthy and convoluted statute. Here are five problems religious organizations may encounter while applying for PPP:

  1. Housing Allowance Inclusion – The statute does not specify whether parsonages or parsonage allowances are included in or excluded from payroll expenses. Exclusion of housing allowances can substantially diminish the loan size. Since most lenders will be unfamiliar with how housing allowances are calculated and reported, they may conclude that they are not part of payroll expenses. Our attorneys can advocate on your behalf to include a housing allowance, so your organization may receive the maximum funding for which it is eligible.
  1. Affiliation and Eligibility – The PPP applies to organizations with less than 500 employees. “Affiliation Rules” determine whether organizations and related entities are considered the same or separate, such as local churches and denominations. The applicability of these rules may help determine whether a religious organization qualifies for the PPP. Experienced counsel can advocate on your behalf to satisfy your organization’s needs.
  1. Authorization for the Application – State laws and organizational bylaws may require a congregational or board meeting to authorize the loan application. With social distancing rules in effect, virtual meetings may be a legally viable alternative, if allowable under local law and organizational documents. We can help ensure that your religious institution takes the proper steps to authorize a PPP application.
  1. Anti-Discrimination – In completing the PPP application, your organization must agree not to discriminate and that it will display the “Equal Employment Opportunity Poster” prescribed by SBA. A religious organization is exempt from certain laws that prohibit discrimination. We can advise religious organizations on how to complete the application without violating either law or religious convictions, and argue these points to the lender with convincing support for the organization’s position.
  1. Tax Exempt Status – Churches and other houses of worship are, as a matter of law, tax exempt, though many don’t obtain 501(c)(3) status. The SBA expressly recognizes this, but lenders are likely to be confused by a church with no formal recognition. We can help you present the law and facts in a way that satisfies your lender’s concerns.