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5 Developments in Religion and Law since Law Meets Gospel started

Five years ago, I set out to try my hand at blogging about legal and related issues that religious groups face. I sought to help faith communities improve their grasp of the rules that govern them, organize themselves, and feel comfortable contacting a lawyer for help. The last five years have brought some very interesting developments at the intersection of law and religion, and the next five promise even more. I’ve enjoyed blogging, though I have not been as regular as I would like to be. I aim to change that in the coming months. I’ve also created some graphics to help you know right away that what you’re seeing is Law Meets Gospel. To mark the fifth birthday of this effort, below are five important developments in the law that affect faith communities. And then some other big news … .

Stop using comp time in place of overtime!

The Department of Labor recently announced new rules about which employees are entitled to hourly and overtime pay. That has caused many employers, including religious and other not-for-profits, to assess whether they are correctly classifying and compensating their employees. One issue that may come up is how your organization compensates employees for work beyond the required hours in a workweek.

Indiana church camp sues over neighboring dairy farm

In one of the first lawsuits filed under Indiana’s year-old Religious Freedom Restoration Act (Ind. Code §§ 34-13-9-1 to -11), the Hoosier Environmental Council filed a complaint (download here) on behalf of a children’s church camp in eastern Indiana. The complaint alleges that the Rush County Board of Zoning Appeals substantially burdened the House of Prayer Ministries’ exercise of religion by granting a special exception to local zoning ordinances allowing Milco Dairy to construct and operate a concentrated animal feeding operation, known as a CAFO.

How (and whether) to act without a board meeting

I’m a strong advocate for making all group decisions in live meetings, whether in person or by phone. This is a basic principle of parliamentary law, and it is even more important in the context of a religious organization that invites divine guidance through individual participants in decision-making.  But some groups and some situations simply do not allow for that live meeting. What to do? Act by written consent.

7th Cir.: Att’y fees to defend frivolous suit are substantial burden; jury must decide zoning denial

The Seventh Circuit affirmed that incurring attorney fees in a frivolous lawsuit brought by a governmental entity can constitute a substantial burden under RLUIPA this week. It also reversed a determination that the City of Chicago had demonstrated the city had not imposed a substantial burden on a religious outreach center's religious activities by denying licenses required to conduct those activities. Judge Richard A. Posner wrote the opinion for the court, and Judge Richard D. Cudahy wrote the following, exceptional concurrence: "Unfortunately, and I think the opinion must be stamped with a large ‘MAYBE.’” Judge Ilana Rovner was the third vote. Another notable aspect of the case is that, like most RLUIPA cases, it has been in litigation a long time—nine years. As Judge Posner wrote, “We can understand the judge’s desire to end a litigation that will soon have lasted as long as the Trojan War, but we do not think that the end is yet in sight.”

First Church of Cannabis receives I.R.S. approval

According to the Indianapolis Star, the First Church of Cannabis has received approval as a 501(c)(3) organization. This raises a few thoughts.

7th Cir: Notre Dame must submit form to avoid paying for contraceptives

The Seventh Circuit Court of Appeals affirmed the denial of Notre Dame's request for court-ordered exception to the contraception mandate under the Affordable Care Act. The case had returned from the Supreme Court after the high court decided Hobby Lobby v. Sebelius. Find the decision here.

Judge Richard Posner wrote the forty-page majority opinion, with Judge David Hamilton writing a concurrence. Judge Joel Flaum dissented.

Ind. Ct. App.: First Amendment blocks pastor's wage claim against former employer-congregation

The Court of Appeals of Indiana held that a pastor could not sue the church that formerly employed him for wages and vacation pay, concluding that the lawsuit would require the court to inquire into intrachurch matters, which the court reasoned is forbidden by the First Amendment. In Steven Matthies v. The First Presbyterian Church of Greensburg Indiana, Inc., No. 16A01-1409-PL-380 (Ind. Ct. App. Apr. 8, 2015), Pastor Steven Matthies sought to enforce part of a three-year contract that he argued entitled him to salary and vacation pay after his employment ended.

7th Circuit: Milwaukee Archdiocese’s cemetery trust fund not off limits from sex-abuse victims in bankruptcy court

In the latest opinion interpreting the federal Religious Freedom Restoration Act (RFRA), the Seventh Circuit concluded that the 1993 law does not require the court to exclude a $55 million cemetery trust fund from the Archdiocese of Milwaukee’s bankruptcy estate. The case, Listecki v. Official Committee of Unsecured Creditors, involves the question of whether a 2008 transfer of the money from the archdiocese’s general fund to a newly created trust.

Who should adopt minutes for an annual members' meeting?

When a religious organization holds large annual meetings, the method of approving the minutes can vary depending on the organization’s governing documents. But where those documents don’t address the question, the answer can be a little difficult to find. The best answer is to delegate the authority to adopt minutes to a committee to avoid a long interim without an adopted record of actions taken. The next annual meeting can revise if necessary.

 

Ex Officio Committee Members

Committees with ex officio members should include those people in their notices of meetings, but when someone is a member ex officio of all  committees, the ex officio member is not counted when determining a quorum. (Typically, this is the president, but in the model constitution, this is the president and senior pastor.) These ex officio members are only different from regular members in their obligation to attend committee meetings. In other words, they have all the privileges of a member, but they are usually exempted from the responsibilities. On the other hand, when someone is an ex officio of a specific committee, that person has all the rights and obligations of another member, so the only difference is the method of selection (member due to office rather than other means of selection).

Considerations when offered a planned gift

You’ve just received word that one of your long-time donors has decided to leave a large gift, but it’s in the form of a planned gift. It might be as simple as naming your organization in the donor’s will. Or it might be a more complex mechanism like a trust or an annuity. One of the questions you need to keep in mind is what happens if your group ceases to exist or changes its name. While the default legal rule is that any reference to your organization will be treated as referring to the group’s successor, there are situations in which that is not true. And thinking about the possibility at the time of the gift can save a lot of trouble later.

Seventh Circuit dismisses appeal, allowing Catholic teacher's in vitro fertilization suit to go forward

This post is being published on both Law Meets Gospel and Indiana Education Law Blog.

The Roman Catholic Diocese of Fort Wayne–South Bend’s appeal from an order denying summary judgment in a lawsuit brought by a former teacher suing the diocese for firing her because she became pregnant through in vitro fertilization was dismissed by a decision. In the unanimous decision written by Judge Diane S. Sykes, the Seventh Circuit held that the appeal was filed too early because the summary-judgment order was not final.

What to do when hiring a person with DACA status

One of the biggest postelection debates in Washington surrounds President Obama’s legal authority to grant of legal status to undocumented immigrants. The discussion is the latest chapter in a series of events that included the Obama administration issuing in 2012 what has become known as the Deferred Action for Childhood Arrivals (DACA). DACA gave legal status to certain undocumented immigrants who were under thirty-one on June 15, 2012. Although the current debate is about expanding a similar status to others, which President Obama seems set to announce, this post covers the basics of DACA for the purpose of churches and other religious organizations hiring someone with DACA status. Specifically, it addresses which tax and other forms organizations first hiring someone with DACA status to use. In other words, it answers the questions whether someone who falls under DACA qualifies as an Other U.S. person as defined by form W-9 and, if so, whether that person would need to meet other requirements or fill out other forms.
 

The answer to the first question is yes: an individual with DACA status meets the definition of U.S. person for tax purposes because the person is almost certainly a resident alien under tax law. This is because DACA status requires criteria that necessarily would mean the individual would meet the substantial-presence test.

The answer to the second question is not for the W-9. All the W-9 requires is the sworn statement that the signatory is a U.S. person. But there are other items that employers need to take care of, including Form I-9 from U.S. Citizenship and Immigration Services.

Indiana Church of the Brethren district cannot take title to breakaway congregation

A local district of the Church of the Brethren could not assume the title of the property of a Northern-Indiana congregation that broke away from the Anabaptist denomination, according to an opinion from the Indiana Court of Appeals. The congregation had not incorporated suggested language in its deeds or in its governing documents necessary to give the church the authority to take over the congregation’s property in the event of a split.

Roundup for November 15, 2014: Parsonage exemption, Buddhist and Presbyterian splits, rappers, free resources

Here are the posts from this week to the Law Meets Gospel feeds on Twitter, Facebook, and blog.

Posts to the blog

• Seventh Circuit holds challengers to parsonage exemption lack standing

 Stories from around the Internet posted to the feeds

• TX Breakaway Presbyterian congregation settles for $7.8M with PCUSA before hearing Story here.
• D.Utah: FLDS member with belief in secrecy excused from testifying about internal church affairs, cites #HobbyLobby. Story here. 
• Retweet: @LawMeetsGospel @PSRBlaw MT @TEMPLE_HERITAGE: YES! We are now a 501(c)(3). All donations are tax-deductible. Thank you Josh at Plews Shadley Original tweet here.
• 2nd Cir.: Synagogue may pursue RLUIPA-based challenge to denial of construction at historic site. Story here. 
• Megachurch leader threatens to sue rappers over remix. Story here.
• Cert. Filed In Ban On Church Use of New York City Schools. Story here.
•  Company seeks $250M from Los Angeles archdiocese. Story here.
•  Church boots AA group over gay weddings - KSLA News 12 Shreveport, Louisiana News Weather & Sports. Story here.
• Notre Dame Asks For Supreme Court GVR In Contraceptive Coverage Challenge. Story here.
• Free Webinar—Nonprofit Engagement Best Practices by The NonProfit Times—Covers social media, fundraising, engagement. More information here.
• North Carolina Supreme Court Allows Direct Appeal of School Voucher Program. Story here.
• Minnesota Archdiocese Enters Historic Settlement In Clergy Abuse Case. Story here.
• NOT RELIGION: @PSRBlaw's Josh Tatum @LawMeetsGospel elected to IN State Bar Association’s Appellate Practice Section’s Council. Story here.
• Pastors Seek To Quash Subpoenas For Sermons, Communications. Story here.
• Pastor accused of affairs temporarily banned, turns over keys to building and church-provided Mercedes. Story here.
• FREE DOWNLOAD: #Nonprofit Board Stories & #LeadershipDevelopment Strategies. Download here.
• Same-sex marriage has been legal in Idaho for all of 2 days, and two ministers already face jail, fines. Story here.
• Two Ministers Ordered To Perform Same-Sex Wedding Face Jail, Fines. Story here.
• NY's high court considers neo-Pagan tax exemption case from @TimesUnion. Story here.
• All A-Board!: How Personalities Affect Your Board - NPQ - Nonprofit Quarterly. Story here.
• Houston Mayor Drops Pastor Subpoenas via @CTMagazine. Story here.
• W. D. Ky..: Catholic Hospital's Disability Plan Does Not Qualify as a Church Plan Exempt from ERISA. Story here.
•  Rogue pastors endorse candidates, but IRS looks away via @POLITICO. Story here.
• Constitution Check: Should the Supreme Court get involved in church property disputes? Story here.
• Jehovah's Witnesses to pay $13.5M for alleged child abuse via @fox5sandiego. Story here.
• 3 Unique YouTube Perks for Non-profit Organizations [Creator's Tip #167] - ReelSEO. Story here.
• Very interesting report on nonprofit C.E.O. pay. Religious leaders seem to be outliers. Story here.
• Court Rejects Free Exercise and Establishment Clause Challenges To California's Reparative Therapy Ban. Story here.
• Retweeted Plews Shadley (@PSRBlaw): PSRB attorney Josh Tatum @LawMeetsGospel helps @TEMPLE_HERITAGE obtain nonprofit status. #BethElTemple Original tweet here. Story here.
• Interesting article with helpful tips on transition in the top spots of nonprofits: Who'll Fill Their Shoes? Story here.
• @IUPhilanthropy Study: Younger, Non-Religious Women Give More #philanthropy. Story here.
• N.Y. App. Div.: Buddhist congregants can't sue over shuttered Manhatten temple, dissent would neutrally apply bylaws. Story here. Opinion here.
• D.C. Cir.: Compromise accommodation for religious nonprofits on contraceptive mandate passes RFRA test. Story here. Opinion here.
   

Have a question about legal issues affecting religious organizations? Let me know at questions@lawmeetsgospel.com, www.facebook.com/LawMeetsGospel, or @LawMeetsGospel.