Religion to be in the legal spotlight this year

Daniel P. Dalton, a religious property attorney, co-founder of Detroit-based Dalton & Tomich PLC, and author of an eBook about protocols for the United Methodist Church separation, points to several key indicators that traditional religious entities will continue to be in the legal and cultural spotlight in 2021.

Dalton, whose firm has handled dozens of Protestant Church separations, including more than 40 disaffiliations from the United Methodist Church (UMC) alone, says the UMC will see continued dismantling in 2021 based on recent trends. The UMC will be further hampered as the agenda-heavy conference, postponed from May 2020 and rescheduled for September 2021, remains uncertain amid the pandemic and concerns for global travel among the church’s international bishops.

Two other Protestant churches with deep roots in American history – the Reformed Church in America (RCA) and the Christian Reform Church  (CRC) – planted the seeds for denominational splits earlier this year over disagreements in theology and are certain to see increased departure activity in the year ahead. And the Episcopalian Church, which has much deeper pockets than most Protestant churches today, is also fending off departures, albeit with more money to fight them.

“Interestingly, all of these dissolutions are occurring chiefly because the church leaders and hierarchy tend to be much more liberal on social issues than local church members and pastors,” Dalton said.  “The local church doesn’t feel supported by the broader church and is seeking independence to practice its faith more traditionally; increasingly, that is accomplished through creating an independent, non-denominational church with the help of a well-planned legal strategy.”

In the Catholic faith, church members and municipalities alike will be focused on the United States Supreme Court case, Fulton v. City of Philadelphia, slated to be decided in late spring 2021.

The Catholic Church in Philadelphia has provided foster care services in the city for more than 200 years. Now, the city is seeking to shut down Philadelphia’s Catholic Social Services (CSS) foster care program by taking away its license to operate in the city because the church, in accordance with its long-held beliefs, won’t endorse same-sex or unmarried couples for foster placements. This, despite the fact that there are other providers that offer foster care services without reservation, and that the city has the authority to give an exemption to CSS but has chosen not to.

There may be another religion-based case on the United States Supreme Court docket in 2021, too, if the Episcopal Church (TEC) and its diocese of Fort Worth get their way. They have asked the Supreme Court to accept their appeal of the decision of the Texas Supreme Court, who found in favor of local churches leaving the Episcopal denomination and retaining their property. This application is one of many requests made by denominations to have the Supreme Court revisit the issue of the ownership of religious property and the enforceability of denominational trust clauses – something the court has refused to do on numerous occasions since it last looked at the issue in 1979. With three new justices on the court since 2014, though, this issue may finally get its day in court in 2021.

The two key federal religious freedom statutes used in legal battles are the Religious Freedom Restoration Act (RFRA) of 1993 and the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000. These statutes provide broader protections than are currently available under the First Amendment, but RFRA only protects people against the federal government and RLUIPA only applies in the context of land use and institutionalized persons.

“The religious property cases we take on often center on RLUIPA rights and impact all faiths, from churches and synagogues to mosques,” Dalton said. “Religious freedom in the United States is becoming an even hotter topic as the nation gets more secular, and the pandemic has exposed that reality as much as any social issue in the past year. Looking to 2021, if the vaccine distribution begins and continues in earnest, we’re likely to have a year of notable movement in religion-based law as well as among faith-based communities.”