Author(s): Michael Francisco
Published: 10/30/2009
Salazar v. Buono, was argued before the United States Supreme Court on October 7, 2009, and presented two Establishment Clause questions related to the public display of a cross in California. The Supreme Court did not issue any religious liberties opinions last term. This case presented important questions about an individual's standing to bring Establishment Clause challenges to government actions, and perhaps will provide new direction for public displays of religious symbols. The facts of this case are that the Veterans of Foreign Wars (VFW) erected a memorial in 1934 at Sunrise Rock, in what is now Mojave National Preserve. After the Ninth Circuit ruled in 2004 that the public cross violated the Establishment Clause, Congress passed legislation to transfer the land surrounding the cross to the VFW, in exchange for other nearby land. After the land-transfer law was passed, the Ninth Circuit ruled the Secretary of the Interior (now Ken Salazar) cannot carry out the act of Congress without violating the Establishment Clause. The importance of the case has resulted in 30 amici briefs being filed. A decision is expected early next year.
Binding Christian Arbitration Upheld
Easterly v. Heritage Christian Schools, 2009 WL 2750099 (S.D. Ind. Aug. 26, 2009). In this case a federal district court upheld under the Federal Arbitration Act a Christian school's expressly Christian arbitration agreement with a former teacher. The long-time teacher sued the school under federal nondiscrimination law after being terminated, and the school moved to enforce the binding arbitration agreement. Notably, the parties agreed to "resolve differences . . . by following the biblical pattern of Matthew 18:15-17." The agreement also stated that "[c]onciliators shall take into consideration any state, federal, or local laws that the parties bring to their attention, but the Holy Scriptures (the Bible) shall be the supreme authority governing every aspect of the conciliation process." The court found the Christian conciliation agreement enforceable, and akin to typical secular arbitration agreements. The case highlights the success Christian organizations can have with biblically-based arbitration provisions.
School Bans Instrumental Version of "Ave Maria" From Graduation
Nurre v. Whitehead, __ F.3d __, 2009 WL 2857196 (9th Cir. Sept. 8, 2009). The Ninth Circuit upheld a school's censorship of a student-selected musical performance of the Ave Maria for a high school graduation. The student-selected piece, which contained no words, was barred because the school desired that all pieces be "entirely secular," in light of complaints a few years prior about the signing of religious music at a school event. The court looked to the school's stated desire to avoid an Establishment Clause problem. One of the three judges dissented, finding the restraint of a strictly musical piece based only on the title to be an unreasonable restraint of the student's freedom. The dissent also worried about the potential chilling effect the decision will have on musical and artistic performances for other students.
State Supreme Court Applies Ministerial Exception to Religious School Teacher
Coulee Catholic Schools v. Labor & Industry Review Comm'n, 2009 WI 88 (Wisc. July 21, 2009). A first grade teacher at a Catholic school claimed her termination was based on her age, in violation of a state antidiscrimination law. The school argued the teacher's position was "ministerial" and thus the school's employment decisions are protected by the First Amendment. The Wisconsin Supreme Court adopted a "functional" test for determining which positions are sufficiently ministerial to qualify for the well-settled legal exception. In this case, the court found the "school was committed to a religious mission—the inculcation of the Catholic faith and worldview—and [the teacher's] position was important and closely linked to that mission." Courts often grapple with the question of which positions qualify as "ministerial" and thus garner protection. The Wisconsin court's use of a functional analysis uses a holistic approach which examines the position's importance to the spiritual and pastoral mission of the religious entity, instead of focusing only on enumerated tasks of the employee.
State Religious Freedom Law Applied To Protect Religious Minority
Merced v. City of Euless, No 08-10358 (5th Cir. July 31, 2009). A state statute modeled after the federal Religious Freedom Restoration Act (RFRA) has been applied by the Fifth Circuit to find city ordinances which forbid specific religious practices to impermissibly burden the free exercise of religion. Members of the Santeria sect in City of Euless, Texas, were prevented from performing religious ceremonies which involve animal sacrifice. The religious practitioners had performed the ceremonies in question without any interference from 1990 to 2006, until an anonymous neighbor began calling police and complaining. In light of numerous exceptions to the city ordinances being enforced, including exceptions permitting hunters to process game, the court rejected the state's claimed compelling governmental interest. The court used many federal free exercise cases to inform the reading of the state religious liberties law.
Michael Francisco is an associate in the Colorado Springs office. His practice focuses on religious institutions law and commercial litigation. Mr. Francisco represents clients involved in employment, real estate, and other litigation. He can be reached at 719- 386-3058 or by email at mfrancisco@rothgerber.com.