Four justices of the U.S. Supreme Court – Justices Alito, Thomas, Gorsuch, and
Kavanaugh – have issued a statement that suggests that they are willing to reconsider a number
of past Supreme Court decisions with the goal of expanding the right of employees to exercise
their religion.

The justices’ statement came in a case from the U.S. Court of Appeals for the Ninth
Circuit, Kennedy v. Bremerton School District.

In this case, Joseph Kennedy, a high school football coach at Bremerton High School, a
public high school in Kitsap County, Washington, across the Puget Sound from Seattle, asserted
that he lost his job for engaging in conduct that was protected by the Free Speech Clause of the
First Amendment. He sought a preliminary injunction restoring him to his job and requiring the
school to allow him to pray silently on the 50-yard line after each football game.

The district court denied Kennedy’s motion for a preliminary injunction. It reasoned that
Kennedy “was still in charge. He was still on the job. He was still responsible for the conduct of
his students, his team. And a reasonable observer, in my judgment, would have seen him as a
coach, participating, in fact leading an orchestrated session of faith. . . .”

The Ninth Circuit affirmed the district court in a decision in which it recounted
Kennedy’s prayer-related activities over the course of several years, including conduct in which he engaged as a private citizen, such as praying in the stands as a fan after he had be suspended from his duties. Kennedy sought to have the Supreme Court review the Ninth Circuit’s decision, but the
Court declined to do so.

The four justices agreed that the Supreme Court should not review this particular case.
Their statement, however, suggests a desire to have the full Court revisit various past decisions
regarding the ability of employees to exercise their religion.

First, the justices said that the Ninth Circuit’s decision applied the Supreme Court’s
opinion in Garcetti v. Ceballos, 547 U. S. 410 (2006), to public school teachers and coaches “in
a highly tendentious way.” The justices observed that, according to the Ninth Circuit, public
school teachers and coaches could be fired if they engaged in any expression that the school did
not like while they were on duty, and that the Ninth Circuit appeared to regard teachers and
coaches as being on duty at all times from the moment they reported for work to the moment
they departed, provided that they were within the eyesight of students.

The justices said that the Court “certainly has never read Garcetti to go that far.” They
added that, under Garcetti, a public employer may regulate employee speech that was part of the
employee’s job duties, but that a public employer could “not convert private speech into public
speech” by creating “excessively broad job descriptions.”

The justices then impliedly criticized two other prior Supreme Court decisions for going
too far to limit the ability of employees to exercise their religion.

First, they referenced Employment Div., Dept. of Human Resources of Ore. v. Smith, 494
U. S. 872 (1990), where, they said, the Court “drastically cut back on the protection provided by the Free Exercise Clause.” The Court in that case ruled that application of a “neutral law of
general applicability” to religious conduct did not automatically violate the First Amendment.

The justices also cited Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977),
where the Court opined that Title VII’s prohibition of discrimination on the basis of religion did
not require an employer to make any accommodation that imposed “more than a de minimis
burden.”

Justices Alito, Thomas, Gorsuch, and Kavanaugh concluded their statement by noting
that the Court had “not been asked to revisit those decisions.”

It may not be too long now before the Court is specifically asked to do just that.

Over a decade ago, a nun who resided at a convent in upstate New York complained to
her superiors about alleged sexual misconduct by one of the convent’s priests. The ruling bishops
directed the nun to vacate the convent property. When she refused to do so, an ecclesiastical
court disciplined her by making her ineligible to wear religious garb and to receive communion
for a two-year period.

After the nun continued to complain of alleged sexual harassment by the resident priest,
an ecclesiastical court permanently defrocked her and, on that basis, disallowed her continued
residency at the convent.

The convent then asked a state court in New York to evict the nun. It also brought
another action against the nun, seeking to recover damages for her use and occupancy of the
convent.

The actions were consolidated, and the New York court dismissed the consolidated action
against the nun.

The convent appealed, and the appellate court now has affirmed.

The Appellate Court’s Decision
In its decision, the appellate court explained that the First Amendment to the U.S.
Constitution forbids civil courts from interfering in or determining religious disputes, “because
there is substantial danger that the state will become entangled in essentially religious
controversies or intervene on behalf of groups espousing particular doctrines or beliefs.”
The appellate court added that a court may properly preside over a dispute involving a religious
body “only when the dispute may be resolved utilizing neutral principles of law.”

In this case, the appellate court reasoned, the proceedings brought by the convent were
“inextricably intertwined” with the determinations of the ecclesiastical court, particularly its
determination defrocking the nun and ordering her to vacate the convent.

Therefore, the appellate court reasoned, the consolidated action involved review of an
ecclesiastical determination “that may not be resolved by resort to neutral principles of law.”

Moreover, the appellate court continued, the action did not involve a “purely religious
determination” requiring it to accept the actions of the ecclesiastical court as final and binding. In
the appellate court’s opinion, the resolution of the consolidated action necessarily involved an
assessment of the propriety of the nun’s defrockment in light of her allegations of sexual
misconduct against a priest. Therefore, the appellate court concluded, the convent’s claims were
“nonjusticiable,” as any such resolution of them would involve what the appellate court said
would be “an impermissible inquiry into religious doctrine or practice.”

Accordingly, the appellate court affirmed the trial court’s dismissal of the convent’s
actions against the nun and denied the convent’s request for court intervention to effect its
ejectment of the nun from the convent.

Nelson Madden Black Comment
Nelson Madden Black LLP partners Barry Black and Jonathan Nelson recently explored
the ecclesiastical abstention doctrine in greater depth in an article for the New York Law Journal.
See, “When Can State Courts Decide Religious Disputes?”

The Canadian senate has passed legislation to repeal the country’s blasphemy law, which
outlaws “blasphemous libel” and provides for a prison term of up two years for anyone convicted
of the crime.

According to reports, the last time a person was convicted under Canada’s blasphemy law
was nearly a century ago, in 1927, although private plaintiffs have sought to rely on the law in a
number of instances since that time.

Canada joins several countries, including Denmark and Malta, that recently removed
their blasphemy statutes. Ireland also is about to remove its blasphemy law, following a public
referendum held in October.

Still, similar laws exist – and are enforced – in numerous other countries around the
world. In Spain, for example, a judge recently permitted a case to go forward against activist
Willy Toledo, who allegedly breached the country’s statute with Facebook posts that insulted
God and the Virgin Mary.

In a statement following the action by the Canadian senate, the U.S. Commission on
International Religious Freedom (“USCIRF”), an independent, bipartisan federal government
entity established by the U.S. Congress to monitor, analyze, and report on threats to religious
freedom abroad, applauded the passage of the Canadian legislation.

The chair of the USCIRF, Tenzin Dorjee, said, “Laws criminalizing blasphemy are
detrimental to religious freedom and other human rights, such as freedom of expression. These
laws make governments the arbiters of truth and conscience, and are ripe for abuse against
dissenting voices and members of religious minorities. USCIRF welcomes this step by the
Canadian government and urges all other nations to eliminate these pernicious laws.”

A report recently published by the USCIRF examined global blasphemy laws and
compared the text of blasphemy laws against such standards as freedom of expression, freedom
of religion or belief, vagueness of the law, severity of penalty, discrimination against groups, and
state religion protections. According to the USCIRF, most laws it studied failed to protect
freedom of expression, were vaguely worded, and carried unduly harsh penalties for violators.

The USCIRF concluded that, in all five of what it said were the “worst-scoring countries”
(Iran, Pakistan, Yemen, Somalia, and Qatar), blasphemy laws aimed to protect the state religion
of Islam in a way that “impermissibly discriminates among different groups.”

In the wake of the Tree of Life synagogue shooting and other recent attacks on houses of
worship, the newly-released FBI hate crime statistics are of particular interest and concern. The
number of hate crime incidents reported to the Federal Bureau of Investigation (“FBI”) increased
about 17 percent in 2017 compared with 2016, according to the annual Hate Crime
Statistics report released by the FBI’s Uniform Crime Reporting (“UCR”) program.
Law enforcement reported 7,175 hate crimes to the UCR in 2017, up from 6,121 in 2016.
According to the FBI, the most common bias categories in single-bias incidents were
race/ethnicity/ancestry (59.6) percent, religion (20.6 percent), and sexual orientation (15.8
percent). In addition to the 7,106 single-bias incidents reported last year, there were also 69
multiple-bias hate crimes reported.

About 5,000 of the hate crimes reported were categorized as crimes against persons, such
as intimidation or assault. About 3,000 were considered crimes against property, such as
vandalism, robbery, or burglary. (Some hate crime incidents were classified as both crimes
against persons and crimes against property.)
The FBI said in a statement that it is working with law enforcement partners across the
country to encourage reporting of hate crime statistics. Next year, FBI personnel will provide
training for law enforcement officers on how to identify bias-motivated incidents and report that
data to the FBI’s UCR program.

The Hate Crime Statistics Act

On April 23, 1990, Congress passed the Hate Crime Statistics Act, 28 U.S.C. § 534,
which required the attorney general to collect data “about crimes that manifest evidence of
prejudice based on race, religion, sexual orientation, or ethnicity.” The attorney general
delegated the responsibilities of developing the procedures for implementing, collecting, and
managing hate crime data to the director of the FBI, who, in turn, assigned the tasks to the UCR
Hate Crime Statistics Program.

For more than two decades, thousands of city, county, college and university, state, tribal,
and federal law enforcement agencies have voluntarily submitted data to the UCR on crimes
motivated by prejudice based on religion, race, gender and gender identity, disability, sexual
orientations, or ethnicity.

The FBI’s UCR program defines hate crime as a committed criminal offense that is
motivated, in whole or in part, by the offender’s bias or biases against a religion, race, disability,
sexual orientation, ethnicity, gender, or gender identity.

For purposes of the FBI’s UCR program, even if the offender was mistaken in his or her
perception that the victim was a member of the group he or she was acting against, the offense is
still a bias crime because the offender was motivated by bias against the group.
The FBI UCR program’s hate crime data collection gathers data on the following religion
biases:

 Anti-Buddhist
 Anti-Catholic
 Anti-Eastern Orthodox (Russian, Greek, Other)
 Anti-Hindu
 Anti-Islamic
 Anti-Jehovah’s Witness
 Anti-Jewish
 Anti-Mormon
 Anti-Multiple Religions, Group
 Anti-Other Christian
 Anti-Other Religion
 Anti-Protestant
 Anti-Atheism/Agnosticism/etc.

State Statistics

A total of 16,149 agencies across the country report hate crime statistics to the FBI.
California (with a population of nearly 40 million) has 232 agencies that submit incident reports
– the most of any state. Florida (with a population of about 20 million) has 67 submitting
agencies.

Among other states, there are 15 reporting agencies in New Jersey, 44 in Connecticut, 23
in Pennsylvania, and 74 in New York.

Agencies may specify the location of an offense within a hate crime incident as one of 46
location designations. Because not all reporting agencies have made the programming changes to
allow the relatively new location designations, the data collected to date are not yet
representative of all location designations, according to the FBI. The location designations of the
hate crime incidents reported in 2017 were:
 27.5 percent of hate crime incidents occurred in or near residences/homes.
 17.0 percent took place on highways/roads/alleys/streets/sidewalks.
 10.5 percent happened at schools/colleges (based on three designations).
 5.8 percent took place in parking/drop lots/garages.
 4.1 percent occurred in churches/synagogues/temples/mosques.
 2.7 percent took place in restaurants.
 1.9 percent occurred in commercial office buildings.
 1.8 percent occurred at parks/playgrounds.
 1.6 percent happened in air/bus/train terminals.
 1.6 percent took place in government/public buildings.
 1.5 percent took place in convenience stores.
 1.4 percent happened in bars/nightclubs.
 1.3 percent happened in department/discount stores.
 1.1 percent occurred in specialty stores (TV, fur, etc.).
 1.0 percent took place in drug stores/doctors’ offices/hospitals.
 1.0 percent took place in grocery/supermarkets.
 6.7 percent of hate crimes occurred in the remaining specified location categories or in
multiple locations.
 11.5 percent took place in other/unknown locations.

Of the 1,564 reported hate crime incidents that occurred due to a religious bias:
 23.0 percent happened in or near residences/homes.
 15.0 percent occurred in churches/synagogues/temples/mosques.
 12.7 percent transpired at schools/colleges (based on three designations).
 8.9 percent took place on highways/roads/alleys/streets/sidewalks.
 4.0 percent occurred in parking/drop lots/garages.
 2.0 percent took place in commercial office buildings.
 15.3 percent occurred in the remaining specified location categories or in multiple
locations.
 19.1 percent took place in other/unknown locations.

The Future

The FBI has said that hate crimes are the highest investigative priority in its civil rights
program.

Additionally, the U.S. Department of Justice has launched a new hate crimes webpage,
https://www.justice.gov/hatecrimes, which has information for law enforcement on reporting
incidents.

The New York Court of Appeals, New York’s highest court, has affirmed an appellate court
decision dismissing a lawsuit seeking to bar the religious practice of “Kaporos” that is performed
in certain Brooklyn neighborhoods.

Kaporos is a Jewish ritual practiced by some ultra-Orthodox. It dates back to biblical times and
occurs once a year, the few days immediately preceding the holiday of Yom Kippur. Adherents
of Kaporos believe this ritual is required by religious law and that it brings atonement and
redemption. The ritual entails grasping a live chicken and swinging the bird three times overhead
while saying a prayer that symbolically asks God to transfer the practitioners’ sins to the birds.
Upon completion of the prayer, the chicken is killed in accordance with kosher dietary laws, by
slitting the chicken’s throat. Its meat is then required to be donated to the poor and others in the
community. Each year, thousands of chickens are sacrificed in furtherance of this ritual and the
practice takes place outdoors, on public streets in Brooklyn, and in full public view.

The plaintiffs, including the Alliance to End Chickens as Kaporos, alleged that the manner in
which Kaporos is practiced is a health hazard and cruel to the animals. They sought a writ of
mandamus compelling the New York City Police Department (“NYPD”), the commissioner of
the NYPD, and the New York City Department of Health and Mental Hygiene (“DOH”) to
enforce certain laws related to preserving public health and preventing animal cruelty.
The trial court dismissed the proceeding against the city defendants and, last year, an appellate
court affirmed.

Now, the New York Court of Appeals has issued a decision in Alliance to End Chickens as
Kaporos v. New York City Police Dept. affirming the appellate court’s decision.
The Court of Appeals explained that a writ of mandamus is “an extraordinary remedy” available
only “to enforce a clear legal right” where a public official has failed to perform a duty enjoined
by law.

Mandamus, the Court added, only may issue to compel a public officer to execute a “legal duty”
and may not direct how the officer shall perform that duty.

Because enforcement of the laws cited by the plaintiffs would involve “some exercise of
discretion,” mandamus was not the appropriate vehicle for the relief they sought, the Court
concluded.

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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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
requirements.

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.

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.”

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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