Opposition Brief — Rocky Mountain Conference of the United Methodist Church v. Winkler

FILE D

)) DEC 10 1996

No. 96-888 CLERK

In The

Supreme Court of the United States

October Term, 1996

=

ROCKY MOUNTAIN CONFERENCE OF THE UNITED

METHODIST CHURCH, a Colorado non-profit corporation,

Petitioners,

VS.

DIANE WINKLER,

Respondent.

we Sa

On Petition For Writ of Certiorari

To The Court of Appeals of the State of Colorado

Case Nos. 94CA652 and 94CA661

or »

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

®

Holland, Seelen & Pagliuca

Joyce A. Seelen*

1700 Lincoln St., Suite 2350

Denver, Colorado 80203

(303) 832-7700

*Counsel of Record Attorneys for Respondent

QUESTION PRESENTED

Whether a church organization is exempt from tort

liability for secular conduct that does not burden the free exercise

of religion, and no record evidence indicates that the petitioner's

tortious conduct was rooted in any religious belief.

TABLE OF CONTENTS

QUBSTRIN PRESENTE 05 Po ie ees i

TABLE GP MOTHIBRE Oe fe ccc ccs ten bentitecees iv

CERO RADY occ cde vi vrs cs Cisse eee |

FRSEMEI RINT 65 5.4 eV dn by 0 Coe bo ce a 1

REASONS FOR DENYING THE PETITION .......... 5

I. This case is not worthy of certiorari review

because the Colorado Court of Appeals’ holding

is consistent with this Court's well-established

OUIOURINNE. 50 6nas vés Fassel ees ee 5

A. The Colorado Court of Appeals followed

well-settled decisions of this Court in

holding that legal restriction of "secular

conduct" not proven to be rooted in

religious belief does not burden the free

exercise Of religion. .............. 6

B. Because the Methodist Church never

presented record evidence concerning

how its tortious conduct was required

by any sincerely held religious belief,

this case presents no important or

unsettled federal question concerning the

actual impact of tort liability ...... 13

Il. The Religious Freedom Restoration Act, U.S.C.,

Sec. 2000bb ("RFRA") does not grant immunity

ST CI, | oivbcd soda vee vepeees 15

SUPINE 5-5 kg Sadek Che PATE EET V sb aed vews eet 17

iv

TABLE OF AUTHORITIES

CASES |

Bohrer v. DeHart, __P.2d___ (Colo. App. 1996) ..... 10 |

Byrd v. Faber, 565 N.E.2d 584 (Ohio 1991) ............ 8 |

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, __ |

U.S. __, 113 S. Ct. 2217, 124 L_Ed.2d 472 (1993) ...... 8 |

Connes v. Molalla Transp. System, Inc., 831 P.2d 1316 (Colo. |

ROPES ann ba ved 4 RD RAEN Re eek eG Or es 9

DeStefano v. Grabrian, 763 P.2d 275 (Colo. 1988) ... 10, 11 ,

Employment Division Dep't of Human Resources v. Smith, 494

RLS. Bre Ch 5 Seve ned eed he ei ek ai 8, 15, 16

Frazee v. Employment Security Dep't, 489 U.S. 829 (1989) |

ese deesecusn as +s PEDVEREEE bs eee coy ETE 145000 6

Hobbie v. Unemployment Appeals Com'n, 480 U.S. 136 (1987) |

ooo cesar wed Cie kre OEE Te Gatun ae ec cue es 6,7 |

Jones by Jones v. Trane, 591 N.Y.S.2d 927 (N.Y. Sup. 1992)

ree i ys BE eR ae eet 8 |

Jones v. Wolf, 443 U.S. 595 (1979)... . 2... eee cece ee ee. 15 |

Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. |

SVGND ..:.... GERACE IAs, 6 |

ER ER ee

Vv

Messiah Baptist Church v. County of Jefferson, Colorado, 859

F268 620 (iO Cir. ISU is re GEE 7

Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993), cert.

denied, US. __, 114 S.Ct. 2153 (1994)........ 9-12

Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477

wee GIP CIOS ai Ho FE RTA aS 7

Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S.

OUND ere ee a ee PEE Gh oe OOo ho ow is 15

Roman Catholic Bishop v. Superior Ct., 50 Cal. Rptr. 2d 399

Ce Ape. 4 OUR: TGF EAPO SERS 8

Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976)

CS eee EM AOA € ES RDA ERAS ew dS ble Ce 15

Sherbert v. Verner, 374 U.S. 398 (1963) .............. 7

Thomas v. Review Bd., 450 U.S. 707 (1981) ............ 6

Van Osdol v. Vogt, 908 P.2d 1122 (Colo. 1996) ........ 10

Winkler v. Chambers, _P.2d___ (Colo. App. 1995) . 1, 10,

- 12, 13

Wisconsin v. Yoder, 406 U.S. 205 (1972) ...... 6, 7, 15, 16

STATUTES

Religious Freedom Restoration Act, U.S.C., Sec. 2000bb

15, 16

otk 20's 66 8D Os POOR ae K.27 8 FAR 62.4 %,* * 8 Re Fee

CONSTITUTIONAL PROVISIONS

US Const: Amend Boo sica’s cave 684 44% 5 1, 5, 7, 8, 14, 16

OPINION BELOW

The opinion of the Colorado Court of Appeals (pet.

app. A) affirming a jury verdict in favor of respondent is

reported at Winkler v. Chambers, _P.2d__ (Colo. App.

1995). The Colorado Supreme Court denied Petitions for

Certiorari on September 3, 1996. Pet. app. B.

Sd

JURISDICTION

The petitioner invokes the jurisdiction of this Court

under 28 U.S.C. Sec. 125(3)

e

STATEMENT OFF THE CASE

Respondent, Dianne Winkler, filed suit against the

Rocky Mountain Conference of the United Methodist

Church ("Conference"), and Rev. Glenn Chambers, <

Methodist Minister. Her claims against Chambers included

breach of fiduciary duty, and outrageous conduct based on

the minister's sexual touching of Winkler that grew out of

his counseling of her. Her claims against the Methodist

Conference included breach of fiduciary duty, outrageous

conduct, and negligent hiring and supervision based on the

antecedent knowledge of the Conference that Chambers had

sexually approached other vulnerable people and had a

longstanding and untreated alcohol problem and on the

actions of the Conference subsequent to Winkler's report.

2

The tortious conduct aggravated a preexisting physical and

emotional condition causing Winkler to become ill.

The jury returned verdicts for Winkler of $57,350

against Chambers on the breach of fiduciary duty claim, of

$95,853 against the Conference on her negligent hiring and

supervision claim and of $10,651 against the Conference on

her breach of fiduciary duty claim.

The facts underlying Winkler's claims are recounted

in the opinion of the Colorado Court of Appeals, pet. app.

A at 2a-4a. Winkler incorporates those facts by reference.

Several sets of facts alleged by the Methodist

Conference in its Petition are incorrect: First, the

Conference claims at page 16 that the Conference had no

prior knowledge of Rev. Chambers’ propensity to abuse

women before 1992. The Conference ignores tie 1972

complaint which involved "another woman", and the 1986

complaint of Rev. Munsey-Nielson, a female associate

pastor of Grace Church that Chambers, on occasion, came

into her office, touched her inappropriately, and told her to

"pucker up." Tr. X: 151. In 1986, Rev. Munsey-Nielson

told a District Superintendent for the Conference about

concerns expressed to her by other women regarding

Chambers’ actions toward them. Tr. X: 148-164. In 1990,

Chambers approached the wife of junior minister Harold

Anderson, who reported it to the local church. Tr. XI: 125,

133. When Conference officials were told directly of Pam

Anderson's complaint in 1992, they suggested to Pam

Anderson that she withdraw her Complaint against

Chambers (Tr. XI: 125) and actively opposed Harold

Anderson's support for the women harmed by Chambers. Tr.

3

XI: 138. At page 5 of its Petition, the Conference

acknowledges a 1991 complaint by parishioner Jan Place,

but discounts its value because it was not in writing. Place

testified that, when she called District Superintendent

Margaret Rush Hankins in 1991 to report the abuse by an

unnamed clergyman, Rush Hankins guessed, “Are we

talking about Glenn Chambers.", to which Place replied,

"Yes." Tr. X: 180-181. Carol Klein filed her complaint of

abuse in 1992.

Second, the Conference claims at page 7 that the

“supervision” by the District Superintendents of ministers is

limited to formulating statements of purposes. The

evidence at trial showed that the Conference exercised

virtually complete control over the annual hiring and

supervision of pastors. The Conference, not the individual

churches, controlled the 1972, 1980, 1986, 1991 and 1992

complaints about Rev. Chambers. Tr. IX: 46; Tr. X: 86-98,

168; Tr. XI: 77; Tr. XII: 83-89; Tr. XIII: 28. The

Conference kept the individual churches uninformed of

Chambers’ history. The Conference, through District

Superintendent Rush Hankins, took control of the 1992

complaints, called the women together in 1992, ostensibly

to help the women, and then distorted what the women had

told her. Tr. IX: 46; Tr. XII: 231; Tr. XIV: 194-195.

Third, the assertion at page 5 of the Petition that

Chambers has, through the present, denied his sexual

conduct with any of the women, is inaccurate. Chambers

admitted his problem with alcohol and stated that, as a

result, he did not remember most of the incidents described

by the women who accused him. Pet. app. A, 4a. "As to

the incidents he did remember, he stated that any verbal

4

comments were misunderstood and that the physical contact

was incidental." /d. Regarding one of the incidental

contacts during which Chambers testified he had been

drinking, he said, "Ms. Klein wears most often very

interesting clothing...She often times wore a T-shirt of some

kind that had something written on it...On the particular

occasion we're talking about...I couldn't quite read it, and

I put my hand forward and smoothed it out to see what was

there, and I touched her breast." Tr. XII: 124.'

The Colorado Court of Appeals determined that the

evidence at trial was sufficient to support Winkler's claims

for breach of fiduciary duty and negligence in hiring and

supervision. As the Court of Appeals notes at pages Sa and

7a of pet. app. A, neither Chambers nor the Methodist

Church asserted at trial that the tortious conduct

complained of -- i.e. Chambers’ sexual touching of Winkler;

the Church's failure to investigate the growing complaints

against Chambers subsequent to 1972; the Church's

undermining the credibility of the women by telling the

congregation that there was nothing in Chambers’ history

that indicated he had problems; telling the congregation that

the women hurt by Chambers were being given counseling,

when they were not --was mandated by any religious tenet

or belief. Rather, the Methodist Church argued that the

First Amendment to the U.S. Constitution prohibits subject

matter jurisdiction where clergy hiring and supervision are

'At page 6, the Conference inappropriately injects significant private

information about Winkler, including a diagnosis of herpes that was not

caused by Chambers and that is totally irrelevant to the questions

addressed to this court.

Fe ee

involved, which argument was rejected by the Court of

Appeals.

os —

REASONS FOR DENYING THE PETITION

1. This case is not worthy of certiorari review

because the Colorado Court of Appeals’ holding is

consistent with this Court's well-established precedents.

The decision of the Colorado Court of Appeals in

this case raises no unsettled issue of federal law. The

Colorado court followed well-settled decisions of this Court

in holding that laws burdening conduct not proven to be

rooted in religious belief do not violate the First

Amendment's free exercise clause.

The Methodist Conference cannot argue that the

Colorado Court of Appeals ought to have examined

evidence concerning the actual impact of tort liability on the

Conference's religious belief: Such weighing of evidence in

this case is impossible because the Methodist Conference

did not present evidence showing whether and how their

tortious conduct was required by their specific religious

belief. The argument at trial, rather, was much as it is to

this Court: Religious organizations should be exempt from

tort liability.

A. The Colorado Court of Appeals followed well-

settled decisions of this Court in holding that

legal restriction of "secular conduct" not

proven to be rooted in religious belief does

not burden the free exercise of religion.

The Conference has never provided record evidence

or even specific allegations showing that its tortious

conduct was rooted in any religious belief. Based on this

record, the Colorado Court of Appeals applied well-settled

law to hold that the judgment in this case did not burden the

free exercise of religion. This holding is consistent with

every decision by this Court. It also raises no important or

unsettled principle of constitutional law. Therefore, this

Court should deny the Conference's petition.

This Court has long held that conduct is not

“exercise of religion" unless the conduct is mandated by

sincerely held religious belief. See, e.g. Frazee v.

Employment Security Dep't, 489 U.S. 829, 834 (1989)(to

prove violation of free exercise clause, litigant must show

that burdened conduct “was based on a sincerely held

religious belief"); Lyng v. Northwest Indian Cemetery

Protective Ass'n, 485 U.S. 439, 450 (1988)(law does not

burden free exercise rights unless it has a “tendency to

coerce (Rev. Chambers and the Methodist Church) into

acting contrary to their religious beliefs"); Hobbie v.

Unemployment Appeals Com'n, 480 U.S. 136, 141

(1987)(burdened conduct must be "mandated by religious

belief" to be protected by free exercise clause)(quoting

Thomas v. Review Bd., 450 U.S. 707, 717-18 (1981));

Wisconsin v. Yoder, 400 U.S. 205, 215 (1972)("to have

one

a—

-——- =>

7

protection of the Religion Clauses, claims must be rooted in

religious beliefs"); Sherbert v. Verner, 374 U.S. 398, 404

(1963).

Under all of this Court's well-established free

exercise precedents, the Conference has no defense to tort

liability unless the specific tortious acts were actually

"mandated by religious belief." Hobbie, 480 U.S. at 141.

The Methodist Conference has the burden of proving with

record evidence that its tortious conduct and religious belief

are “inseparable and interdependent." Yoder, 406 U.S. at

215.

Moreover, mere assertion that a law burdens some

practices that might conceivably be religious has never

sufficed to show a violation of the free exercise clause. The

party asserting a defense based on the free exercise clause

has the burden to show with record evidence that his or her

conduct is mandated by a sincere religious belief. Yoder,

406 U.S. at 215. See also Messiah Baptist Church v.

County of Jefferson, Colorado, 859 F.2d 820 (10th Cir.

1988)(free exercise clause challenge to zoning ordinance

requires "evidence in the record" that location of church "is

integrally related to underlying religious beliefs.") The Free

Exercise Clause of the First Amendment does not grant

churches the immunity from being sued in civil courts. Ohio

Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477

U. S. 619 (1986).

Assuming the Conference had established religious

motivation, the free exercise clause would not bar Colorado

from enforcing generally applicable religiously neutral rules

that prohibit or burden even religiously motivated conduct.

8

Employment Division Dep't of Human Resources v. Smith,

494 U.S. 872 (1990).

The Conference reliance on Church of Lukumi

Babalu Aye, Inc. v. City of Hialeah, __U.S. __, 113 S.

Ct. 2217, 124 L.Ed.2d 472 (1993), at pages 17 through 24

of its Petition is misplaced. Equating a municipal ordinance

specifically designed to prevent a religious practice with the

neutral application of common law is nonsensical. In

Church of Lukumi, this Court noted that the inquiry to

determine whether a law was neutral is whether the "object

of the law is to infringe upon or restrict practices because

of their religious motivation." /d. at 2227. If the answer is

"yes", the law is not neutral and requires a compelling state

interest test. The object of the tort of negligence and

breach of fiduciary duty is to provide compensation to

plaintiffs injured by the tortious conduct of another. The

torts are religion neutral and, even assuming the conduct at

issue was tied to religious belief, the First Amendment is no

defense pursuant to Smith.

The Conference contends at pages 22 through 28

that state courts are inconsistent in their approaches to

allowing negligence claims against religious organizations

and that Colorado itself is internally inconsistent. This

claim is based on a misunderstanding of Colorado law and

on a misrepresentation of the record supporting the facts in

this case. For example, Roman Catholic Bishop v. Superior

Ct., 50 Cal. Rptr. 2d 399 (Cal App. 4 Dist. 1996); Byrd v.

Faber, 565 N.E.2d 584 (Ohio 1991), Jones by Jones v.

Trane, 591 N.Y.S.2d 927 (N.Y. Sup. 1992), were each

cited by the Conference as requiring some notice to the

religious entity before liability for negligence in hiring or

9

supervision could be imposed on it. Colorado, however,

has the same requirement. Antecedent knowledge, not any

religious belief, provides the basis of liability for an

employer negligence claim in Colorado whether the

employer is a religious entity or not. See, Moses v. Diocese

of Colorado, 863 P.2d 310 (Colo. 1993), cert. denied,

U.S. __, 114 S.Ct. 2153 (1994) (case involving negligent

hiring by religious employer) and Connes v. Molalla

Transp. System, Inc., 831 P.2d 1316 (Colo. 1992) (case

involving negligent hiring by secular employer.)

At pages 10 and 11, the Conference recasts Winkler's

claims into claims in which a civil court decided selection of

clergy. The recasting is inaccurate. Consistent with federal

and Colorado law, Winkler's verdict did not intrude into the

clergy selection process. It addressed only the decision by

the Methodist Conference to hire Chambers into a position

where he was given intimate access to vulnerable women in

a counseling setting, when the Conference knew that his

history placed those women at risk. By way of analogy, the

same analysis would have applied if the Conference had

allowed Chambers to drive buses filled with parishioners in

situations where the Conference knew that Chambers had a

history of driving carelessly. Freedom to select clergy is

protected. Decisions by a religious employer to allow

clergy involved in secular conduct to harm unsuspecting

third parties, is not protected.

At pages 11 through 14, the Conference criticizes the

Colorado Supreme Court generally for perceived internal

inconsistencies. A review of the cases cited shows that

Colorado carefully and appropriately decided the cases cited

by the Methodist Conference. Van Osdol v. Vogt, 908 P.2d

10

1122 (Colo. 1996), involved a minister who sued her church

concerning her ministry. The Colorado Supreme Court held

that the choice of minister is protected. Nothing in that

decision runs contrary to this Court's jurisprudence, or to

the Colorado Supreme Court rulings in Moses or DeStefano

v. Grabrian, 763 P.2d 275 (Colo. 1988) or Bohrer v.

DeHart, _P.2d___ (Colo. App. 1996), pet. app. C. In

distinguishing the negligence claims from internal church

conflicts, the Van Osdol court stated in footnote 17:

"...the court...looks to whether the specific danger

which ultimately manifested itself could have

reasonably been foreseen at the time of hiring. This

inquiry , even when applied to a minister er sioyee,

is so limited and factually based that it can: b

accomplished with no inquiry into religious dc'iefs."

Indeed, in Winkler, there was no inquiry into religious

beliefs at either the trial or appellate stage of the action.

The Conference also misrepresents the record. The

Conference contention in its Petition that Winkler's

negligence evidence was limited to "second guessing" (page

2) a Conference which had no knowledge of Chambers'

abuse of women before 1992 (page 16) is inaccurate. By its

procedures, the Conference rehired Chambers into a specific

church each year. Each year the Conference gained

increasing knowledge of Chambers' sexually abusive

behavicr toward women and of the conduct problems

related to his alcoholism, as set out on pages 2 through 4,

herein, and pages 2a and 3a of pet. app. A. That antecedent

knowledge, not any religious belief, provided the basis of

1]

liability for the negligence claim, consistent with Colorado

cases as well as cases of other jurisdictions.

By virtue of the Conference changing the pastoral

assignments of ministers, it was the only entity that had a

complete picture of Chambers’ abusive history and his

alcohol problem.

At page 19, the Conference contends that the State

of Colorado is required to restrict its breach of fiduciary

duty claim to claims involving financial affairs. The

essential premise of the Conference argument is that when

a clergyman is sued for breach of fiduciary duty other than

conduct involving taking money, it is his status as a

clergyman which gives rise to the fiduciary duty. This

premise was directly addressed in DeStefano and in Moses.

When applying the neutral common law tort of breach of

fiduciary duty, the relevant inquiry is "not the profession of

the defendants. The relevant facts are that the

defendants...occupied a position of superiority, assumed a

duty to act in good faith, and then breached their duty."

Moses, supra, footnote 13.?

The Colorado Supreme Court has recognized that,

under appropriate circumstances, a clergyman, may, but

need not be, in a position of trust, just as, depending upon

the circumstances, a wide range of persons may seek

positions of trust. See, Moses, supra, and DeStefano,

*Much of the Conference brief alleges that the Colorado Supreme

Court erred when it decided the Moses case. This Court declined to

review the decision of the Colorado Supreme Court in that case in 1994

at 114 §.Ct. 2153.

12

supra. The "status" involved, is not clergy or non clergy, it

is a person in authority who seeks a special trust such that

another has the right to rely on the fiduciary.

A fiduciary duty, under Colorado law, must be

undertaken by the fiduciary. Moses, supra. In this case, a

Conference District Superintendent called a meeting of six

of the women who had been abused by Chambers, and told

them that the Conference would care for them. The

Plaintiff alleged, and the jury found, that the Conference

had used the trust it sought in order to manipulate Winkler.

The Winkler court properly concluded that "(fiduciary

liability requires not only a repose of trust, but an

assumption of a duty and a breach of that duty" (pet. app.

A, 6a.) and that the Conference had “assumed a duty to act

in Winkler's best interests." Pet. app. A, 7a.

Neither the negligence claim nor the breach of

fiduciary duty claim was predicated on how Chambers was

disciplined in the church grievance procedure: The

negligence claim was based on prior notice to the

Conference of the danger Chambers posed; the breach of

fiduciary duty claim was based, not on how Chambers was

treated, but on how Winkler was treated by an entity that

sought and then betrayed her trust.

The torts at issue are neutral laws of general

applicability, both on their face and in their application.

There is no targeting of religious activity. An identical

result would have been reached in this case if the

Conference had been a non-religious employer whose

dangerous employee provided damaging care or counseling

to a vulnerable person, and the employer, under pretext of

13

assisting the person harmed, gained trust and then misused

that trust in order to protect itself.

The holding by the Colorado Court of Appeals in

Winkler is consistent with every decision of this Court. It

presents no unsettled or important questions of federal law.

Therefore, the petition of the Rocky Mountain Conference

of the United Methodist Church should be denied.

B. Because the Methodist Church never

presented record evidence concerning how its

tortious conduct was required by any

sincerely held religious belief, this case

presents no important or unsettled federal

question concerning the actual impact of tort

liability.

Neither the Conference nor Chambers has ever

articulated how specific tortious actions were allegedly

motivated by a deeply held religious belief. The Conference

raises the Book of Discipline, a document which the

Conference revises every four years and which contains,

among other things, an outline of current procedures used

in the Methodist Church. The fact that procedures are

written down and set forth in a document does not create a

presumption that the procedures are motivated by a deeply

held religious belief.

Moreover, none of the specific tortious actions

complained of against Chambers or the Conference were

either mandated by or prohibited by the Book of Discipline.

There is no mandate or prohibition about keeping secret the

sexual abuse of its ministers. There is no mandate or

14

prohibition about deceiving and manipulating vulnerable

parishioners. The Conference argues that, since it did not

violate its own procedures, the First Amendment prohibits

inquiry into its actions. In place of a specific articulation |

of how the acts complained of were mandated by a religious

belief, there is a presumption that, because Chambers is a

minister and the Conference a religious organization, all

actions are religidus. Because of lack of proof that the

tortious actions were motivated by religious belief, the

Court of Appeals properly found that Chambers’ and the

Conference's First Amendment defense was meritless.

eee

Because the Methodist Conference has not alleged --

let alone proven-- that its specific tortious acts were

"mandated" by its Methodist religious faith, it has not

properly alleged any defense to tort liability under the First

Amendment. Specifically, the Methodist Church has never |

argued at trial or in any of the briefs that its Methodist

religious faith requires it to (1) hire ministers suffering from

active alcoholism and a known history of sexually abusive

behavior with women and authorize such ministers to

provide counseling to psychologically vulnerable

parishioners; (2) allow such ministers to engage in touching

the breasts of parishioners; (3) tell the congregation that

women abused by Chambers were receiving adequate

counseling, when they were not; (4) undermine the

credibility of the women abused by Chambers by telling the

congregation that there was nothing in his personnel file

that indicated he had problems; (5) deceive the women by

telling them that it would send a letter to the congregation

stating that it found the women's complaints credible, and

then failing to send the letter; or (6) assume a duty to act in

the best interests of the parishioner and later breach this

En NN

15

duty to protect the Methodist Church or the career of the

minister.

The Conference has never articulated a religious

motivation or substantial burden to exercise of religion that

could provide the basis of the compelling state interest

analvsis it requests.

The Colorado Court of Appeals properly found that

resolution of this case did not require interpreting and

weighing of church doctrine, but rather allowed application

of neutral principles of law to determine the liability of the

Conference. In other words, the Colorado Court of Appeals

determined that the burdens imposed by tort liability in this

case had not been shown to be burdens on anything but

secular conduct.’

Il. The Religious Freedom Restoration Act, U.S.C.,

Sec. 2000bb ("RFRA") does not grant immunity to the

Conference.

Congress enacted RFRA in response to this Court's

decision in Employment Division, Dep't of Human

Resources v. Srith, 494 U.S. 872 (1990). In Smith, this

Court heid that the free exercise clause does not bar states

from enforcing generally applicable religiously neutral rules

* The Colorado Court of Appeals’ holding is consistent with this

Court's jurisprudence in Presbyterian Church v. Hull Memorial

Presbyterian Church, 393 U.S. 440 (1969); Jones v. Wolf, 443 U.S. 595

(1979); Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696

(1976), Employmeni Division Dep't of Human Resources v. Smith, 494

U.S. 872 (1990); and Wisconsin v. Yoder, 406 U.S. 205 (1972).

16

to prohibit or burden even religiously motivated conduct,

such as the use of peyote in religious ceremonies. Believing

that laws might burden important religious liberties even if

the laws were general and religiously neutral, Congress

enacted RFRA to codify the free exercise jurisprudence in

cases decided prior to Smith. See S. Rep. No. 103-111,

i03rd Cong. Ist Sess. at 8-9, reprinted in 1994

U.S.C.C.A.N. 1892, 1904.

RFRA requires a compelling interest test that

involves a three-stage analysis: (1) Whether the conduct in

question is motivated by a religious belief; (2) Whether the

state action infringes on the free exercise of religion; and

(3) Whether there is a state interest of sufficient magnitude

to override the interest claiming protection under the Free

Exercise Clause. Wisconsin v. Yoder, 406 U.S. 205 (1972).

Since the Conference has failed to identify conduct

protected under either of the first two prongs, there is no

basis upon which to apply the third prong.

At pages 14 and 17 of its Petition, the Conference

contends, in essence, that RFRA grants it immunity in this

case, even if the First Amendment does not. That argument

fails for several reasons. Fundamentally,as discussed above,

mere assertion that a law burdens some practices that might

have a religious tie, has never sufficed to show a substantial

burden to the exercise of religion. In addition, under

RFRA, there is no defense to tort liability unless the specific

tortious acts were actually mandated by religious belief. The

Conference has never presented record evidence concerning

how its tortious conduct was required by any sincerely held

belief, and there is no predicate upon which a RFRA

compelling state interest analysis could be predicated.

eS ee TN

17

CONCLUSION

The Colorado Court of Appeals' decision correctly

applied the legal standards as set forth in decisions by this

Court by applying uncontroversial, universally accepted

principles of constitutional law. Therefore, this Court

should deny the petition of the Rocky Mountain Conference

of the United Methodist Church.

Respectfully submitted,

HOLLAND, SEELEN & PAGI.IUCA

JOYCE SEEL =N*

1700 Lincoln, Suite 2530

Denver, Co. 80203

(303)832-7700

Attorneys for Respondent

December 6, 1996.