Dialog for understanding opposing viewpoints at the intersection of faith and law; church and state; religion and politics.
Previously, we discussed the magistrate judge’s decision in United States v. Dillard, which held that communications between a lay spiritual counselor and a prisoner were not privileged. Angel Dillard appealed that decision to the district court, which reversed (in Case No. 11-1098-JTM), holding that her communications with Scott Roeder were privileged under the clergy-penitent privilege.
When Douglas County, Colorado, instituted the Choice Scholarship Program, a private scholarship system that allows parents to select a private school (from an approved list) and receive a tuition scholarship to attend, several groups and individual Plaintiffs (such as the ACLU) sued, saying the program violated certain statutory and constitutional provisions of Colorado law. While opponents to the program won in the district court, the Colorado Court of Appeals recently reversed, ordering a judgment for Douglas County.
You hate to see a case with a caption like God’s Hope Builders, Inc. v. Mount Zion Baptist Church, since it seems unlikely the lawsuit is what God would have hoped for. The Georgia Court of Appeals, on March 28, 2013, remanded this case with orders to the trial court to figure out, if it legitimately could, who the church members actually were.
Confidential communication with clergy has been protected for centuries under the common law. This means that clergy do not have to disclose the content of those discussions. How far does that confidentiality extend? The answer varies depending on the state statute, but a federal magistrate judge in Kansas says that it is fairly limited under common law. United States v. Dillard, 11-1098-JTM-KGG (D. Kan. March 7, 2013) is not precedential, but the analysis is interesting and could show how other courts will approach the problem.
Reverse veil piercing is not an obscure form of body art but an obscure legal doctrine related to corporate law. Stephen Bainbridge of the UCLA School of Law wrote an article called “Using Reverse Veil Piercing to Vindicate the Free Exercise Rights of Incorporated Employers,” which can be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2229414. Assuming that you are not a corporate law attorney, why should you care? Because this is potentially an important argument in the debate over whether the HHS mandate to provide contraceptive and abortifacient services should apply to employers who have religious objections.
The Religious Land Use and Institutionalized Persons Act (RLUIPA) makes the government meet a very tough standard for a land use regulation that imposes a substantial burden on religious exercise, including for churches. Obviously an important initial question is whether the regulation does impose a substantial burden. A Fourth Circuit case issued January 31, 2013, Bethel World Outreach Ministries v. Montgomery County Council, develops the “substantial burden” standard in a way that may help other churches facing zoning issues.