Update on Patterson v. Walgreen
The Supreme Court is still deciding whether to hear Patterson v Walgreen, involving a Seventh-day Adventist who was terminated because he would not conduct a training session on a Saturday. In March, the Court asked the Solicitor General to weigh in on whether the case should be heard and this report is pending. This case would address whether the di minimis definition of “undue hardship” from TWA v. Hardison will remain in place. Note: Founders’ First Freedom has filed an amicus brief in support of certiorari.
Montana Neutral Aid Program at Supreme Court
The Supreme Court has decided to consider whether a state properly shut down a neutral student-aid program where parents could choose to send their children to parochial schools in the case of Espinoza v. Montana Department of Revenue. If the Court does not dismiss the case on issues of ripeness for litigation, since the state dismantled the program and the Court will not likely force the state to restart it, it may expand on its finding in Trinity Lutheran v. Comer that a state cannot bar religious organizations from participating in neutral funding programs.
New York Expands Window for Filing Child Sexual Abuse Claims
Child sexual abuse cases, many involving churches and religious schools, continue to surface as victims come forward. The New York legislature has passed A02683 that have expanded the statute of limitations for bringing criminal prosecution and civil actions. The statute of limitations on criminal prosecution now begins to run when the child victim turns 23 and civil actions can be brought until the child victim is 55 years of age. It also revives previously barred actions.
Ministerial Exception Continues to Be Issue in Disability Discrimination Cases
Even though the Supreme Court unanimously upheld the ministerial exception which allows churches a broad discretion in making employment decisions that would be considered discriminatory in a secular employment context in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, there is some disagreement between the circuits, as to the definition of a “ministerial employee.” Some take a very expansive view of what constitutes a ministerial employee while others, namely the 9th Circuit, takes a narrower view. The facts in such cases can seem downright awful. For instance, in Biel v. St. James Catholic School, the 9th Circuit decided that a fifth-grade teacher who was fired after she told her employer she needed to miss work to obtain chemotherapy to treat her breast cancer still had the right to bring her claim. The Circuit pointed out that although she would participate in religious activity, she did not lead it. Because of the legal standard involved, the decision does not focus on the fact that there doesn’t seem to be a legitimate religious reason to refuse to accommodate and in fact terminate an employee for asking to take time off for chemotherapy. Instead, the focus is on whether the job was really religious.
The Catholic Church may appeal the 9th Circuit decision, which really does seem to run contrary to the Hosanna-Tabor decision, but the case highlights the reality that religious employees, be they teachers or clergy, not only sacrifice potentially higher pay and job security but also leave some significant legal rights at the door when they seek religious employment. As a show of good faith, it might behoove religious institutions to develop internal policies and procedures that mirror the secular rights when it comes to disability and medical issues but carve out religious-specific rights to terminate. For instance, an employee who sustains an injury that would require workplace accommodation could be accommodated while an employee who acts contrary to the religion of the organization could be subject to suspension or termination.
Same-Sex Wedding Service Cases Remain Unresolved
The Supreme Court has yet to tie up the many loose ends in the wedding services cases where the free exercise of religion conflicts with non-discrimination rights of members of the LGBT community. Arlene’s Flowers and Masterpiece Cakeshop have both been returned to their respective state courts for further adjudication, and might soon find their way back to the Supreme Court. It is also expected that free exercise cases involving adoption agencies that refuse to place children with unmarried or same-sex couples will be on the docket shortly.
Suit Filed on Behalf of Adventist Tennis Players
On August 6, the Becket Fund filed a federal lawsuit on behalf of Seventh-day Adventist siblings and high school tennis players Joelle and Joseph Chung against the Washington Interscholastic Activities Association because they were unable to compete in the championship tournament which was scheduled to complete on their Sabbath despite having been undefeated throughout the season.