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THE “MINISTERIAL EXCEPTION” IS GROUNDED IN THE FIRST AMEMDMENT AND MAY RESTRICT A STATE AGENCY’S REVIEW OF EMPLOYMENT DECISIONS MADE BY RELIGIOUS INSTITUTIONS; THE EXCEPTION IS AN AFFIRMATIVE DEFENSE, NOT A JURISDICTIONAL BAR, TO A HOSTILE WORK ENVIRONMENT ACTION UNDER THE NYS HUMAN RIGHTS LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the New York State Division of Human Rights (DHR) and the Appellate Division, determined the so-called “ministerial exception” was not a jurisdictional bar to the Nigerian priest’s, Ibhawa’s, hostile work environment claim under the NYS Human Rights Law. The “ministerial exception” is grounded in the First Amendment and may restrict state interference with employment decisions made by religious institutions.. The Court of Appeals clarified that the ministerial exception is an affirmative defense in an employment discrimination action against a religious institution, not a jurisdictional bar to bringing the case:

Ibhawa filed an employment complaint with the New York State Division of Human Rights (DHR) in November 2020, claiming that the Diocese had engaged in discriminatory employment practices in violation of the New York Human Rights Law (see Executive Law art 15). Ibhawa alleged that he had experienced racial discrimination at the Diocese, including from an employee who directed a racial slur at him and a parishioner who made xenophobic remarks to him. He further alleged that the Diocesan officials to whom he reported the incidents declined to investigate them, questioned his decision to terminate the employee who had used a racial slur, and made “highly insulting and offensive” remarks about “foreign priests.” At a subsequent meeting, two Diocesan officials offered to buy Ibhawa a plane ticket to Nigeria and told him that the “Bishop could remove [his] faculties.” Shortly afterwards, the Diocese informed Ibhawa that his employment had been terminated and his priestly faculties removed, which meant that that he could not apply for a position as a priest in the Diocese. The Diocese eventually hired a white priest to replace him. Based on these assertions, Ibhawa alleged claims of hostile work environment and unlawful termination on the basis of race and national origin. He sought, among other remedies, compensatory and punitive damages. * * *

DHR’s order dismissing Ibhawa’s hostile work environment claim was affected by an error of law. After noting the parties’ agreement that Ibhawa was “a priest serving as the pastor (Parish Administrator) of a church,” DHR found that his complaint “comes under the ministerial exception (relative to the first amendment of the U.S. Constitution).” On that basis, DHR concluded that it lacked jurisdiction over Ibhawa’s claims. This determination was contrary to the U.S. Supreme Court’s express holding that the “exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar” … . Matter of Ibhawa v New York State Div. of Human Rights, 2024 NY Slip Op 05872, CtApp 11-26-24

Practice Point: The “ministerial exception” is grounded in the First Amendment and may restrict a state agency’s review of employment decisions made by religious institutions. The exception is an affirmative defense, not a jurisdictional bar, to a hostile work environment action brought by a priest against his employer.

 

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“UNITED METHODIST CHURCH” IS NOT A JURAL ENTITY WHICH CAN BE SUED IN THIS CHILD VICTIMS ACT LAWSUIT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wan, reversing (modifying) Supreme Court, determined the “United Methodist Church” is not a jural entity which can be sued. In this Child Victims Act proceeding, the complaint alleged plaintiff was abused by an employee of the defendants United Methodist Church General Conference … , United Methodist Church Northeastern Jurisdiction New York-Connecticut District, New York Annual Conference of the United Methodist Church, United Methodist Church Long Island East District, Long Island East District of the New York Annual Conference of the United Methodist Church, … United Methodist Church of Woodbury New York. [and the] United Methodist Church … . The complaint alleged … United Methodist Church “is a not-for profit religious association and/or organization conducting business in the State of New York and organized and existing under the laws of the State of New York with its principal place of business located at c/o GFCA, 1 Music Circle North Nashville, Tennessee 37203.”

… [A]pplying neutral principles of law, we determine … the defendants established that United Methodist Church is not a jural entity with the capacity to be sued. Dismissal pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction is warranted where a named defendant is not a legal entity amenable to suit … . New York law recognizes that “[a]n action or special proceeding may be maintained, against the president or treasurer” of an “unincorporated association” “upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally” (General Associations Law § 13; see CPLR 1025 [“Two or more persons conducting a business as a partnership may sue or be sued in the partnership name, and actions may be brought by or against the president or treasurer of an unincorporated association on behalf of the association in accordance with the provisions of the general associations law”]). Although the term “unincorporated association” is not further defined by statute, New York courts have determined that “[i]t is only when a partnership has a President or a Treasurer that it is deemed an association within the meaning of” General Associations Law § 13 … . As such, “[a]n unincorporated association . . . has ‘no legal existence separate and apart from its individual members'” … .

* * * [W]e conclude that the defendants established that United Methodist Church … is a religious denomination with a single purpose—”to make disciples for Jesus Christ for the transformation of the world”—and not a jural entity amenable to suit as an unincorporated association. It is undisputed that United Methodist Church does not have a principal place of business, does not have its own offices or employees, and does not and cannot hold title to property, and there is no proof in the record that United Methodist Church has incorporated or held itself out as a jural entity in any other jurisdiction. Moreover, the defendants demonstrated at the hearing that United Methodist Church, as such, does not have any involvement in the staffing or the removal of clergy or staff at the local church level. Chestnut v United Methodist Church, 2024 NY Slip Op 03726, Second Dept 7-11-24

Practice Point: Here the “United Methodist Church” was deemed a nonjural entity which cannot be sued in New York–criteria explained in depth.

 

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THE EDUCATION LAW PROVISIONS AND RELATED REGULATIONS (1) REQUIRING NONPUBLIC SCHOOLS TO PROVIDE EDUCATION EQUIVALENT TO THAT PROVIDED BY PUBLIC SCHOOLS, AND (2) ALLOWING PUBLIC FUNDING TO BE CURTAILED AND REQUIRING STUDENTS TO ATTEND A DIFFERENT SCHOOL IF THE EQUIVALENCY TEST IS NOT MET ARE VALID AND ENFORCEABLE; THERE WAS A DISSENT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Garry, over a dissent, determined the regulations promulgated by the Commissioner of Education concerning the evaluation of nonpublic schools and the cutting-off of services provided to those schools if they don’t meet the “equivalent-to-public-schools” test are valid and enforceable. The petitioners here are five yeshivas and related organizations:

Petitioners contend that the subject regulation provisions impose a penalty upon nonpublic schools that fail to meet the statute’s educational standard, an argument accepted by the dissent — but “penalty” is not an accurate characterization. First, prior to any negative substantial equivalency determination, nonpublic schools under review are engaged in a lengthy collaborative process, specifically designed to assist them in meeting the basic educational standards set forth within the Education Law (see 8 NYCRR 130.6 [a] [1] [iii]; 130.8 [d] [2]). To be sure, the Commissioner is statutorily authorized to impose civil and criminal penalties against a parent or guardian who fails to fulfill their duty under the compulsory education requirement (see Education Law §§ 3233, 3234), and to withhold certain public moneys from any city or district that “wil[l]fully omits and refuses to enforce” relevant statutory provisions (Education Law § 3234 [1]). The Education Law does not provide for any direct penalty upon nonpublic schools.

… By definition, a nonpublic school that fails to demonstrate substantial equivalency necessarily fails to fulfill the requirements of the compulsory education mandate … . Parents are obligated to comply with this mandate and, as such, the Commissioner’s declaration that a particular institution fails to meet the statutory standards required to meet that duty is no more, or less, than a necessary advisory to parents.

… [T]he loss of status as a substantially equivalent nonpublic school is not equivalent to closure; the institutions … continue to operate and provide some form of instruction. … [T]he Education Law, and the corresponding regulations, do not limit the parents’ opportunity to enroll their children in any extracurricular instruction or activities that they deem appropriate and helpful, and nothing in the regulations prohibits the children from being enrolled in such institutions — the sole limitation is that the statutory mandate must be met … . Matter of Parents for Educ. & Religious Liberty in Schs. v Young, 2024 NY Slip Op 03523, Third Dept 6-27-24

Practice Point: If a nonpublic school does not provide a level of education equivalent to that provided by the public schools, public funding of those schools can be curtailed and students can be required to attend a different school.

 

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DEFENDANTS “EVANGELICAL LUTHERAN CHURCH IN AMERICA (ELCA)” AND “UPSTATE NEW YORK SYNOD OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA (SYNOD)” HAD THE POWER TO DISCIPLINE AND TERMINATE A PASTOR ACCUSED OF ABUSE; THEREFORE THERE WAS A QUESTION OF FACT WHETHER THOSE DEFENDANTS WERE THE PASTOR’S EMPLOYERS; THE NEGLIGENT HIRING, SUPERVISION AND RETENTION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the negligent hiring, retention and supervision causes of action against Evangelical Lutheran Church in America (ELCA) and Upstate New York Synod of the Evangelical Lutheran Church in America (Synod) should not have been dismissed on the ground that the alleged abuser (a pastor) was not an employee. Although the abuser was hired by a third-party church, St. Nicodemus, the ELCA’s and the Synod’s constitution provided that ELCA and Synod exercised control over discipline and termination of the pastor. Therefore there were questions of fact about ELCA’s and Synod’s status as employers:

… According to the ELCA Constitution and Bylaws, the authority to discipline pastors within the ELCA was granted to the synods and the ELCA. The authority to remove a pastor from the roster of ordained ministers remained with the synods and the ELCA. Once a pastor was removed from the roster of ordained ministers, a congregation that chose to retain that pastor could be removed from the ELCA. The entire disciplinary process was created by and governed by the ELCA Constitution and Bylaws. Under these circumstances, we conclude that plaintiffs’ submissions raised an issue of fact whether the ELCA and the Synod exercised sufficient control over the retention and supervision of plaintiffs’ alleged abuser so as to constitute his employers … . PB-20 Doe v St. Nicodemus Lutheran Church, 2024 NY Slip Op 03246, Fourth Dept 6-14-24

Practice Point: Here, although the pastor accused of abuse was hired by a specific Lutheran church (St. Nicodemus), the defendants Evangelical Lutheran Church in America (ELCA) and Upstate New York Synod of the Evangelical Lutheran Church in America (Synod) had the power to discipline and terminate the pastor. Therefore there was a question of fact whether defendants were the pastor’s employers such that the negligent hiring, retention and supervision causes of action should not have been dismissed.

 

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THE “RELIGIOUS EMPLOYER” EXEMPTION FROM MANDATED INSURANCE COVERAGE FOR MEDICALLY NECESSARY ABORTIONS DOES NOT VIOLATE THE FREE EXERCISE CLAUSE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the US Supreme Court ruling in Fulton v Philadelphia, 593 US 522 (2021) did not render the “religious employer” exemption to the mandated insurance coverage for medically necessary abortions unconstitutional. The opinion is too detailed and comprehensive to fairly summarize here:

Plaintiffs, the Roman Catholic Diocese of Albany and a variety of entities ranging from churches to religiously affiliated organizations to a single individual, provide medical insurance plans to their employees. They have challenged a regulation promulgated by the Department of Financial Services as violative of the First Amendment of the United States Constitution. The challenged regulation requires New York employer health insurance policies that provide hospital, surgical, or medical expense coverage to include coverage for medically necessary abortion services (see 11 NYCRR 52.16 [o] [1]). Their challenge is to the regulation’s exemption for “religious employers,” which is defined by four factors (see 11 NYCRR 52.2 [y]). Plaintiffs’ claim, in essence, is that the exemption is too narrow, such that the First Amendment rights of certain types of religiously affiliated employers are violated because they do not meet the terms of the exemption. * * *

Under Fulton, both the regulation itself and the criteria delineating a “religious employer” for the purposes of the exemption are generally applicable and do not violate the Free Exercise Clause. Neither the existence of the exemption in the regulation nor the defined criteria allow for “individualized exemptions” that are standardless and discretionary, nor do they allow for comparable secular conduct while discriminating against religious conduct. Roman Catholic Diocese of Albany v Vullo, 2024 NY Slip Op 02764, CtApp 5-21-24

Practice Point: The 2021 US Supreme Court ruling in Fulton v Philadelphia did not render the “religious exemption” regulation promulgated by the NYS Department of Financial Services unconstitutional. The regulation exempts certain religious employers from mandated insurance coverage for medically necessary abortions.

 

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THE UNIFIED COURT SYSTEM’S DENIAL OF COURT EMPLOYEES’ APPLICATIONS FOR RELIGIOUS EXEMPTIONS FROM THE COVID VACCINE MANDATE AFFIRMED (FIRST DEPT). ​

The First Department affirmed the NYS Unified Court System’s (UCS’s) denial applications for religious exemptions from the COVID vaccine mandate. The issue was analyzed under both the US and NYS Constitutions. The USC held the petitioners (USC employees) failed to meet the qualifications for employment by not complying with the mandate. The decision is too detailed to fairly summarize here, but is well worth reading for the constitutional analyses:

Conducting the appropriate level of review, we find that the vaccine mandate was rationally related to the legitimate goals of slowing the spread of COVID-19 and fully reopening courts to “promote efficient access to justice” … . Indeed, “[w]hatever their merits or efficacy, it cannot be said that the State’s policies are an irrational means to achieve the legitimate goal of curbing the spread of COVID-19” … . Matter of Ferrelli v State of New York, 2024 NY Slip Op 02012, First Dept 4-16-24

Practice Point: The NYS Unified Court System’s denial of employees’ applications for religious exemptions from the COVID vaccine mandate did not violate the US or NYS Constitutions.

 

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FAMILY COURT’S RELIGION-BASED DIRECTIVES IN THIS CUSTODY CASE WERE NOT WITHIN THE “BEST INTERESTS OF A CHILD” CATEGORIES OUTLINED IN THE SEMINAL CASE, ALDOUS V ALDOUS, AND WERE THEREFORE VACATED (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, in a full-fledged opinion by Justice Reynolds Fitzgerald, over a partial concurrence and partial dissent, determined Family Court’s directives with respect to religion in this custody case should be vacated:

While a court may consider religion as a factor in determining the best interests of a child in custody disputes, “it alone may not be the determinative factor” (Aldous v Aldous, 99 AD2d 197 …). Additionally, cases that do consider religion as a factor generally fall into three separate categories: (1) when a child has developed actual religious ties to a specific religion and one parent is better able to serve those needs; (2) a religious belief violates a state statute; and (3) when a religious belief poses a threat to the child’s well-being … . This standard, enunciated in 1984, continues to be followed … .

None of the three categories outlined in Aldous are applicable to the case before us. The July 2020 consent order granted the parties joint legal custody with equal parenting time. Notably, no reference is made to religion in the custody order. At the time the petitions were filed, the child was not quite two years old and, as such, not of an age so as to allow him to have developed actual religious ties to a specific religion. Nor does the record reveal that the father’s religious beliefs violated a state statute or threatened the child’s well-being. As a result, Family Court improperly intervened in the parties’ religious dispute … . Thus, the court’s directives to the parties that neither parent shall permit the child to attend religious services or instruction until an agreement between the parties is reached on this issue, to address the issue of religion while participating in court-ordered coparenting counseling, and that a failure to reach an agreement with regard to religion will — after completing the court-ordered number of coparenting sessions — constitute a change in circumstances for purposes of modification, were issued in error and should be vacated. Matter of Joseph XX. v Jah-Rai YY., 2024 NY Slip Op 00950, Third Dept 2-22-24

Practice Point: The religious directives issued by Family Court in this custody case were outside the three “best interests of a child” categories outlined in the controlling case, Aldous v Aldous, i.e., “(1) when a child has developed actual religious ties to a specific religion and one parent is better able to serve those needs; (2) a religious belief violates a state statute; and (3) when a religious belief poses a threat to the child’s well-being.”

 

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THE DENIAL OF RELIGIOUS EXEMPTIONS TO THE COVID VACCINE MANDATE WAS NOT ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Lynch, over a dissent, determined that the respondent NYS Unified Court System did not act arbitrarily and capriciously when it denied the petitioners’ (29 nonjudicial employees’) requests for religious exemptions from the COVID vaccine mandate. The Appellate Division, disagreeing with Supreme Court, held it was appropriate to deny exemptions based upon the employees’ acknowledging they have taken medication which was tested using fetal cells but now claim the testing of the COVID vaccine using fetal cells violated their religious beliefs:

Supreme Court found that respondents irrationally adopted an “all-or-nothing” approach by concluding that these petitioners could not have rejected the vaccine on religious grounds, without also rejecting the use or contemplated use of other medications or vaccinations developed using the same fetal cell lines. Supreme Court reasoned that it would not be inconsistent for an applicant to continue and/or consider taking other medications “critical to their lives or well-being, such as thyroid medication or hydroxychloroquine.” We disagree with Supreme Court’s thesis. The very purpose of the vaccine mandate was to protect and preserve the public health by “[s]temming the spread of COVID-19[, which] is . . . a compelling interest” … . From our perspective, the Committee could and did rationally conclude that an applicant’s continued and/or contemplated use of other medications or vaccinations tested on fetal cell lines — including the current version of medications originating before fetal cell lines were developed, but now tested utilizing fetal cell lines — while refusing to take the COVID-19 vaccination on that very basis, reflected an inconsistency undermining the sincerity of that applicant’s religious beliefs. Matter of Ventresca-Cohen v DiFiore, 2024 NY Slip Op 00664, Third Dept 2-8-24

Practice Point: The inquiry here was whether the request for exemption from the COVID vaccine mandate was based upon sincerely held religious belief. The fact that petitioners had taken other medication tested with fetal cells indicated the “fetal-cell-testing” objection to the COVID vaccine was not based upon a sincerely held religious belief.

 

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THE DISPUTE BETWEEN TWO RELIGIOUS ENTITIES COULD NOT BE RESOLVED ON THE BASIS OF NEUTRAL PRINCIPLES OF LAW; THEREFORE COURTS ARE PROHIBITED FROM ADJUDICATING THE MATTER BY THE FIRST AMENDMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the dispute between plaintiff church and defendant, which has some form of supervisory authority over plaintiff church, could not be adjudicated in a court pursuant to the First Amendment:

“The First Amendment 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 . . . Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” … .

We conclude that none of the relief requested by plaintiff in its complaint may be decided by a court based on neutral principles of law … . Instead, resolution of those issues would “necessarily involve an impermissible inquiry into religious doctrine or practice” … . United Church of Friendship v New York Dist. of Assemblies of God, 2023 NY Slip Op 05090, Fourth Dept 10-6-23

Practice Point: Where the resolution of a dispute between religious entities requires a court to inquire into religious doctrine or practice, the First Amendment prohibits court involvement.

 

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PURSUANT TO THE “MINISTERIAL EXCEPTION,” THE HOSTILE WORK ENVIRONMENT COMPLAINT BY A PRIEST AGAINST THE DIOCESE OF BUFFALO WAS DISMISSED (FOURTH DEPT).

The Fourth Department, determined the “ministerial exception” to employment discrimination applied to petitioner’s complaint against his former employer, the Diocese of Buffalo. Petitioner, a priest serving as pastor of a church, alleged he was subjected to  a  “hostile work environment:”

Here, SDHR [New York State Division of Human Rights] determined that it lacked jurisdiction over petitioner’s complaint inasmuch as petitioner had been a priest serving as the pastor of a church and the ministerial exception barred his claims. Inasmuch as there is no controlling United States Supreme Court or New York precedent and the federal courts that have addressed the issue are divided on the extent to which the ministerial exception applies to claims of a hostile work environment, we conclude that SDHR’s determination with respect to the hostile work environment claim is not arbitrary and capricious or affected by an error of law … . Matter of Ibhawa v New York State Div. of Human Rights, 2023 NY Slip Op 03585, Fourth Dept 6-30-23

Practice Point: There is a “ministerial exception” to employment discrimination claims by a priest against the diocese-employer. Here the priest’s hostile-work-environment petition was properly dismissed based on the exception.

 

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