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.”

 #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.

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. 

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?

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

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.” 

The Effects a Decade-Old Decision Still has on Religion Law 

Barry Blackand Jonathan Robert Nelsondelivered their insights into the power of state courts to resolve religious issues through an “expert analysis” article in the New York Law Journal. 

Click here to view the full text of the article, “When Can State Courts Decide Religious Disputes?”

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!

Ruling Could Impact Religious Leaders if Upheld

A federal judge in Wisconsin has again ruled that an Internal Revenue Code provision establishing tax-free housing allowances for clergy is unconstitutional. U.S. District Judge Barbara Crabb had decided similarly back in 2013, but the 7th U.S. Circuit Court of Appeals overturned the decision on standing grounds. The action was essentially reinitiated with the same plaintiffs after they applied to the IRS for the tax exemption and were denied, allowing them to cure the prior standing defect.  This time around the 7^th Circuit will be positioned to rule on the merits – the constitutionality of the IRC Section 107(2).

If upheld on appeal, this ruling could drastically impact religious leaders who avail themselves of an estimated $800 million annually in housing allowances.

Religious Liberty Application Under Federal Law

Last Friday, the Attorney General Session issued guidance to all administrative agencies and executive departments regarding religious liberty protections in federal law. The guidance offered practical applications of several preexisting religious liberties. 

NMB partner, Jonathan Robert Nelson, has encouraged courts to implement the International Religious Freedom Act, which was cited in the Attorney General’s release. NMB attorneys have also lectured about the Religious Freedom Restoration Act, another topic covered by the Attorney General.

To read the full release click here.