Portland, Oregon Civil Litigation Defense Attorneys - Kaempf Law Firm PC

A Blog by John Kaempf

Monthly Archives: March 2019

There are several important religious freedom cases percolating through the courts nationwide, one or more of which may end up before the newly configured U.S. Supreme Court, which is now split 5 to 4 in favor of religious freedom. These cases give the Court the chance to uphold the First Amendment rights to freely exercise religion and engage in free speech.

In last year’s Masterpiece Cakeshop case, the U.S. Supreme Court narrowly ruled in favor of the Christian baker in Colorado who refused to specially bake a cake for a gay wedding based on his sincere religious beliefs.

Shortly after the U.S. Supreme Court ruled in favor of Jack Phillips, the Christian owner of the Masterpiece Cakeshop bakery in Colorado, an attorney asked him to create a cake designed pink on the inside and blue on the outside, which the attorney said was meant to celebrate a gender transition from male to female. Mr. Phillips refused because the custom cake would have expressed messages about sex and gender identity that conflict with his sincere religious beliefs. He then filed a lawsuit against Colorado to immediately stop its attempt to punish him again. Colorado, likely sensing another loss in court, then dismissed the discrimination charge against him in early 2019. Continue reading

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In March of this year, Justice Kavanaugh, joined by Justice Alito and Justice Gorsuch, stated they will oppose religious discrimination by the government.

In March of this year, in a case called Morris County v. Freedom From Religion Foundation, the U.S. Supreme Court, because the factual record was not properly developed, decided not to take a case involving religious discrimination. However, Justice Kavanaugh, joined by Justice Gorsuch and Justice Alito, stated that, when the factual record is complete, the Court should accept this case for review and rule against religious discrimination. This case involves a New Jersey Supreme Court ruling that New Jersey law prohibits state funds from being used to preserve a historic building, if it is a religious building. Justice Kavanaugh separately wrote: “In my view, the decision of the New Jersey Supreme Court is in serious tension with the Court’s religious equality precedents.” Also, “barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion. At some point, this Court will need to decide whether governments that distribute historic preservation funds may deny funds to religious organizations simply because the organizations are religious.” Also, “in my view, denying historic preservation grants to religious organizations simply because the organizations are religious would raise serious questions under this Court’s precedents and the Constitution’s fundamental guarantee of equality.”

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In early 2019, in King v. Warner Pacific College, the Oregon Court of Appeals held that, under an Oregon statute, a Christian school can expressly discriminate against a job applicant on the basis of their religion, and can prefer applicants who are Christian. State statutes like these should be kept in mind because they supplement the First Amendment Constitutional right of Christian schools and churches to freely exercise their religion in the employment process.

Early this year, the Oregon Court of Appeals decided King v. Warner Pacific College. The plaintiff in that case is “of the Hebrew faith.” He sued the defendant, a Christian College, after he unsuccessfully applied to be an adjunct psychology professor. The College has a written policy requiring “each employee to affirm a personal faith in Jesus Christ.” Plaintiff refused to do that. Also, the College intends that “a Christian worldview be integrated into all academic programs.” So, its president refused to hire plaintiff. He sued, alleging this violates Oregon statutes prohibiting employment discrimination based on religion. But the trial court dismissed the case because of Oregon Revised Statutes 659A.006(4). It states that “it is not an unlawful employment practice for a bona fide church or other religious institution to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another.” The court confirmed that this statute “permits religious organizations to discriminate on the basis of religion in employment within their own organizations.” The court also held that under it, “a religious organization may simply choose not to hire as a means of exercising its preference. Accordingly, the College could lawfully ‘prefer’ not to hire a non-Christian applicant.”  Continue reading

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National churches have a much stronger basis to be dismissed from a child sex abuse case based on the conduct of pastors or other local church agents, even if a local congregation faces liability. This is because of principles of agency law recognized even in anti-church states like Oregon.

Unfortunately, many churches and religious schools are facing multi-million dollar lawsuits based on child sex abuse that allegedly occurred, often decades ago, involving ministers, teachers, or other agents. But while the local church may face liability in such cases, national churches often have a complete defense based on principles of agency law. A corporate defendant is typically not vicariously liable for intentional torts like sexual battery of a child. But even in the few states where such vicarious liability is allowed, including Oregon, recent appellate cases restrict that liability to the conduct of paid employees. When a volunteer “nonemployee agent” commits child abuse, Oregon law holds that a corporate defendant is not vicariously liable unless it controlled or later approved the “specific injury causing conduct in particular.” That obviously rarely, if ever, includes child sex abuse. That is the holding of the Oregon Supreme Court in a 2012 case, Eads v. Borman. Continue reading

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