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Who Decides What Activities Are Religious or Central to a Religious Institution’s Mission?

When a government regulation restricts an institution’s religious exercise, the government will often argue that the restricted activity is either not religious or not central to the institution’s religious mission. This issue surfaces in a variety of different cases. In Title VII employment-discrimination cases involving employees at  religious institutions, there will often be a dispute over whether the employee was or was not a “minister” who could be fired for any reason. It also comes up in religious land use cases brought under the Religious Land Use & Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq.

RLUIPA makes it easier for the religious institution because it defines “religious exercise” capaciously to include “any exercise of religion whether or not compelled by, or central to, a system of religious belief.” Id. at §2000cc-5(7)(A). It also specifies that “religious exercise” includes “the use, building, or conversion of real property for the purpose of religious exercise.” Nevertheless, local governments still attempt to argue that the land use being restricted is not religious. So, who decides? The short answer is the religious institution, unless the government can prove that the religious institution is attempting to perpetrate a fraud on the court.

In a recent Title VII employment-discrimination case, the Seventh Circuit recently reiterated that it is not for the courts or the government to decide whether particular activities are vital to an institution’s religious mission or necessary to advance the institution’s faith. Sterlinski v. Catholic Bishop of Chi., No. 18-2844, 2019 U.S. App. LEXIS 23712, at *5-7 (7th Cir. Aug. 8, 2019). In fact, courts must “avoid such judicial entanglement.” Id. In Sterlinski, the government was arguing that the organist’s job was not sufficiently religious to qualify as a minister, and the organist claimed he was just playing notes. The Church countered that his music was vital to the Church’s services regardless of how he felt about the music he was playing. Ultimately, the Seventh Circuit found for the Church and wrote, “If the Roman Catholic Church believes that organ music is vital to its religious services, and that to advance its faith it needs the ability to select organists, who are we judges to disagree? Only by subjecting religious doctrine to discovery and, if necessary, jury trial, could the judiciary reject a church’s characterization of its own theology and internal organization.” Id.

The Sterlinski decision comports with the rationale in the RLUIPA case of Yellowbear v. Lampert, 741 F. 3rd 48 (10th Cir. 2014). In Yellowbear, then-Judge (now Supreme Court Justice) Neil Gorsuch wrote for the 10th Circuit Court of Appeals that under RLUIPA, the role of the court “is a more modest one, limited to asking whether the claimant is (in essence) seeking to perpetrate a fraud on the court — whether he actually holds the beliefs he claims to hold — a comparatively familiar task for secular courts that are regularly called on to make credibility assessments —and an important task, too, for ensuring the integrity of any judicial proceeding.” (citations omitted) 741 F. 3rd at 54.

Both Sterlinski and Yellowbear reflect a well-established constitutional principle of deference to religious institutions. Under the Constitution, all sincere religious beliefs are protected and deference must be given to the religious institution when it comes to questions concerning its sincerely held religious beliefs and the activities which those beliefs require. See Watson v. Jones, 80 U.S. 679 (1872); Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) (“[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”).

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