California's COVID-19 Ban On Worship Singing and Chanting Is Challenged

On Wednesday, a suit was filed in a California federal district court challenging California Governor Gavin Newsom's COVID-19 Order relating to restrictions on reopened church services.  The state's Guidance document requires that places of worship discontinue singing and chanting.  No similar requirement is placed on other reopened activities. The complaint (full text) in Calvary Chapel of Ukiah v. Newsom, (ED CA, filed 7/15/2020), alleges that the selective ban violates plaintiffs' 1st and 14th Amendment rights. It says in part:

The Worship Ban, on its face and as applied, impermissibly burdens Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs or the mandates in Defendants’ Worship Ban.

The Hill reports on the lawsuit.

9th Circuit Hears Arguments In Hindu Challenge To California Curriculum Standards

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in California Parents for the Equalization of Educational Materials v. Torlakson. In the case, a California federal district court dismissed the claim that California public schools' History-Social Science Content Standards adopted in 1998 and its History-Social Science Framework adopted in 2016 violate the Establishment Clause by demonstrating hostility toward Hinduism. (See prior posting.) Courthouse News Service reports on yesterday's oral arguments.

Poway Rabbi Pleads Guilty To Fraud Charges

Under a Plea Agreement (full text) in United States v. Goldstein, (SD CA, 7/14/2020), a California rabbi plead guilty to one count of conspiracy to defraud the United States and commit wire fraud. As set out in the Information (full text) filed at the same time as the plea agreement, Rabbi Yisroel Goldstein was charged with a scheme to help at least five other taxpayers evade income taxes and fraudulently received other benefits.  Goldstein would generate receipts for charitable donations, but funnel 90% of the contributions back to donors. Taxpayers would also use the receipts to generate matching contributions from their employers.  He would also assist other in obtaining fraudulent grants or loans, and falsely generate community service records for individuals sentenced to community service.

Rabbi Goldstein obtained public notice in 2019 when an attack on his synagogue in Poway resulted in one death and injuries to others including Goldstein.  Courthouse News Service reports on the case:

U.S. Attorney Robert Brewer said during a press conference Tuesday Goldstein had personally made off with $620,000 in kickback payments for helping five Chabad of Poway donors evade paying personal income taxes....

“There is no doubt Rabbi Yisroel Goldstein was the victim of a horrific hate crime which terrorized him and the Chabad community. That event was a significant mitigating factor in the final plea agreement,” Brewer said....

Brewer said when Goldstein is sentenced later this year, the U.S. Attorney’s Office will recommend probation. He cited Goldstein’s past and ongoing cooperation, community contributions and “exemplary” example as “a significant advocate for peace and the elimination of violence and religious hatred” following the 2019 shooting.

Goldstein will pay $2.5 million in restitution as part of the plea agreement, Brewer said.

California Sues Cisco Alleging Caste-Based Discrimination

In a June 30 press release, the California Department of Fair Employment & Housing announced the filing of an unusual employment discrimination lawsuit against Cisco Systems, Inc. and two of its managers:

The lawsuit alleges that managers at Cisco’s San Jose headquarters campus, which employs a predominantly South Asian workforce, harassed, discriminated, and retaliated against an engineer because he is Dalit Indian, a population once known as the “untouchables” under India’s centuries-old caste system....

The lawsuit alleges that Complainant was expected to accept a caste hierarchy within the workplace where he held the lowest status within a team of higher-caste colleagues, receiving less pay, fewer opportunities, and other inferior terms and conditions of employment because of his religion, ancestry, national origin/ethnicity, and race/color.

The Print reports on the lawsuit.

Charter School May Not Exclude Vendor That Expresses Religious Views On Its Website

In Our Peculiar Family v. Inspire Charter Schools, (CD CA, June 23, 2020), a California federal district court refused to dismiss a free exercise challenge to the refusal by a publicly funded charter school to contract with an art instruction business because of the business' espousal of religious views on its website. The court said in part:

Defendants argue that their obligation to be “nonsectarian” in administering a school program required them to exclude any vendor that publicly espoused religious views.... Defendants are incorrect. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)....

Defendants’ policies here are even more preclusive than the unconstitutional policies in Trinity Lutheran. Not only do Defendants’ policies exclude all churches from providing services, they apparently preclude all services by any potential vendor with religious statements on their website. Defendants do not explain how institution of such a categorical requirement is in keeping with their obligation to facilitate “nonsectarian” services, nor do they offer facts to support that Plaintiffs’ application implicated Establishment Clause concerns. 

Church's RLUIPA Zoning Claim Rejected

In New Harvest Christian Fellowship v. City of Salinas, (ND CA, May 29, 2020), a California federal district court rejected a church's claim that the City of Salinas, California's zoning code violates its rights under RLUIPA. In order to stimulate pedestrian friendly commercial activity, the zoning code bans clubs, lodges, places of religious assembly, and similar assembly uses on the ground floor of buildings facing three blocks of Main Street. The city refused to grant zoning amendments to allow the church to use a building it purchased for worship services. The court concluded that the zoning restrictions did not violate either the substantial burden or the equal terms provisions of RLUIPA, saying in part:

New Harvest has not presented any evidence to counter the City’s evidence of feasible alternative locations....

New Harvest’s own evidence establishes that [four theaters permitted in the area] ..., unlike New Harvest, offer numerous activities throughout the week that would reasonably be expected to attract the general public, such as first run films, weddings, concerts, comedy shows, and other events. By contrast, New Harvest offers no evidence that its activities actually draw any non-members, and no evidence that its activities have a positive impact on commercial activity or vibrancy within the Main Street restricted area.

9th Circuit: Church Loses Challenge To California COVID-19 Order

In South Bay United Pentecostal Church v. Newsom, (9th Cir., May 22, 2020), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, refused to enjoin California's and San Diego County's COVID-19 orders as they apply to in-person religious services. The majority, in a brief opinion, said in part:

Where state action does not “infringe upon or restrict practices because of their religious motivation” and does not “in a selective manner impose burdens only on conduct motivated by religious belief,” it does not violate the First Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 543 (1993). We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).

Judge Collins filed a lengthy dissent, saying in part:

By explicitly and categorically assigning all in-person “religious services” to a future Phase 3—without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services -- the State’s Reopening Plan undeniably “discriminate[s] on its face” against “religious conduct.”...

Even if the Reopening Plan were not facially discriminatory, it would still fail Lukumi’s additional requirement that the restrictions be “of general applicability.” 508 U.S. at 531.

Under California’s approach—in which an individual can leave the home only for the enumerated purposes specified by the State—these categories of authorized activities provide the operative rules that govern one’s conduct. While the resulting highly reticulated patchwork of designated activities and accompanying guidelines may make sense from a public health standpoint, there is no denying that this amalgam of rules is the very antithesis of a “generally applicable” prohibition. The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, “religious services” have not made the cut. I am at a loss to understand how the State’s current maze of regulations can be deemed “generally applicable.”

ABC News reports on the decision. The church filed an emergency application for an injunction (full text) with the U.S. Supreme Court.

DOJ Says California Is Discriminating Against Places of Worship In Reopening Plan

As reported by the Los Angeles Times, the Department of Justice Civil Rights Division yesterday sent a letter (full text) to California Governor Gavin Newsom complaining about discriminatory treatment of houses of worship in the state's COVID-19 Reopening Plan. The letter says in part:

Places of worship are not permitted to hold religious services until Stage 3. However, in Stage 2, schools, restaurants, factories, offices, shopping malls, swap meets, and others are permitted to operate with social distancing....

We believe... that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan.

9th Circuit: Church Has Standing To Challenge California Abortion Coverage Mandate

In Skyline Wesleyan Church v. California Department of Managed Health Care, (9th Cir., May 13, 2020), the U.S. 9th Circuit Court of Appeals reversed a California federal district court's ruling on standing and ripeness in a challenge to the mandate that insurance policies cover legal abortion services.  The appeals court held that the church plaintiff has standing to challenge the requirement on free exercise grounds and that the claim is ripe for review. Courthouse News Service reports on the decision.

Church's Challenge To California Stay-At-Home Orders Is Rejected

In Cross Culture Christian Center v. Newsom, (ED CA, May 5, 2020), a California federal district court refused to enter a temporary restraining order against enforcement of state and county COVID-19 stay-at-home orders. The orders were challenged by a church wishing to hold in-person services. Rejecting plaintiff's free exercise claim, the court held that the orders are neutral laws of general applicability subject only to rational basis review.

Church Challenges To COVID-19 Orders Proliferate

Suits challenging COVID-19 orders that ban group church services are proliferating.  Sacramento Bee reported yesterday:

A group of Inland Empire pastors is suing California Gov. Gavin Newsom in federal court, alleging that his administration is “criminalizing the free exercise of religion” with stay-at-home directives that have prevented people from attending church services....

One of the plaintiffs is Dean Moffatt, a Riverside County pastor who was fined $1,000 for holding a Palm Sunday church service, according to the complaint filed.

KRQE News reported yesterday:

An Albuquerque [New Mexico] megachurch is now suing the state claiming the governor violated the first amendment that protects the freedom of religion. Specifically, it’s focused on the church’s Easter Sunday service and the number of people it takes to live stream to its congregation....

[Pastor Steve] Smothermon of Legacy Church filed suit requesting a temporary restraining order but also a permanent injunction affording them the same restrictions as local essential retailers, limiting capacity to 20%. Smothermon says to hold yesterday’s service they would have a worship team, a band, the pastor and technical staff. A group of about 30 people. Therefore, conducting the live-streamed services would immediately violate the governor’s order to limit gatherings to no more than five people.

WAVE News reported yesterday:

 A Kentucky church whose members defied Gov. Andy Beshear’s executive order not to gather in groups now plans to file a federal lawsuit claiming its constitutional rights were violated.

The Maryville Baptist Church is at the center of the debate, after about 50 members attended an Easter service in person.

Kentucky State Police troopers were ordered to take down the license plates of those who attended, threatening to quarantine them.

The church’s attorney, Matthew Staver, said the lawsuit is because the church was targeted.

9th Circuit Upholds HHS Family Planning Grant Rules

In a 7-4 en banc decision yesterday, the U.S. 9th Circuit Court of Appeals upheld the Trump Administration's rules that apply to recipients of family planning grants under Title X. In State of California v. Azar, (9th Cir., Feb. 24, 2020),  the majority in an 82-page opinion vacated injunctions that had been entered by three district courts.  The court described the major provisions of the challenged rules:

While referrals for abortion as a method of family planning are not allowed, the Title X project may give a pregnant client a “list of licensed, qualified, comprehensive primary health care providers,” which may include “providers of prenatal care[], some, but not the majority, of which also provide abortion as part of their comprehensive health care services.” .... The Title X project may also provide referrals for abortion when such a procedure is medically necessary....

... [T]he Final Rule ... requires that a Title X project be organized “so that it is physically and financially separate . . . from activities that are prohibited under section 1008 of the Public Health Service Act..... [in order to avoid] the appearance and perception that Title X funds being used in a given program may also be supporting that program’s abortion activities.... 

The dissenters argued that the HHS rules violate Congressional mandates, saying in part:

The majority would return us to an older world, one in which a government bureaucrat could restrict a medical professional from informing a patient of the full range of health care options available to her. Fortunately, Congress has ensured such federal intrusion is no longer the law of the land.

ABC News reports on the decision.

Texas Sues California In Supreme Court Over Travel Ban To States Allowing LGBTQ Discrimination

This week, the state of Texas filed an original suit in the U.S. Supreme Court against the state of California challenging California's ban on the state paying for travel by its employees to other states that allow discrimination against LGBTQ individuals or families. The complaint (full text of complaint and brief in support) in State  of Texas v. State of California, (US Sup. Ct., filed/2/10/2020) reads in part:

California has enacted and is enforcing economic sanctions against Texas, Texas citizens,and Texas businesses. California has targeted Texas and its residents because To Texas protects the religious freedom of faith-based child welfare providers within its borders....

California’s sanctions against Texas and Texans are born of religious animus and violate the Constitution’s Privileges and Immunities Clause, U.S. Const. art. IV, § 2, cl. 1; Interstate Commerce Clause, id. art. I, § 8, cl. 3; and guarantee of Equal Protection, id. amend. XIV, § 1.

The complaint and brief in support of the state's motion for leave to file a bill of complaint which is attached to the complaint seeks an order forcing California to take down its travel ban or remove Texas from it. Texas Attorney General's office has issued a press release announcing the filing of the suit.

HHS Says California Violated Federal Conscience Protections On Abortion Coverage

The U.S. Department of Health and Human Services (HHS) Office of Civil Rights today issued a Notice of Violation (full text) to the state of California finding that the state violated federal law by making elective abortion coverage mandatory in all policies offered by insurance companies regulated by the state's Department of Managed Health Care. A Christian church and a Catholic religious order filed complaints with HHS saying that California's Mandate Letters to health care plans resulted in the religious organizations being required to offer their employees policies that cover abortions, in violation of the conscience provisions of the federal Weldon Amendment.

The Notice of Violation explains:

... [T]he only exemption California offered (to a health plan issuer) was limited to plans covering a narrow set of “religious employers” under California law. However, the Weldon Amendment protects from discrimination all plans that decline to cover abortion, without requiring any plan issuers, sponsors, or beneficiaries to have a religious character or have a religious reason for not providing or paying for such coverage.... [E]ven a categorical exemption of “religious employers,” as defined by California law, would have only been available to approximately 37% of those employer groups who, prior to the Mandate Letters, had health care coverage that limited or excluded abortion.

The Notice of Violation concludes:

If OCR does not receive sufficient assurance that California will cease requiring all health care plans, as a class, to cover abortion, or that it is willing to negotiate in good faith towards that end, OCR will forward this Notice of Violation and the evidence supporting OCR’s findings in this matter to the appropriate HHS funding components for further action under applicable grants and contracts regulations. Such referral may ultimately result in limitations on continued receipt of certain HHS funds in accordance with the Constitution and applicable Supreme Court case law. 

HHS also issued a press release explaining its action which in part quotes the Director of HHS's Office of Civil Rights:

We are putting California on notice that it must stop forcing people of good will to subsidize the taking of human life, not only because it’s the moral thing to do, but because it’s the law.

Religious Group's Distribution of Vegan Food May Be Expressive Conduct

In Krishna Lunch of Southern California, Inc. v. Gordon, (9th Cir., Jan. 13, 2020), the U.S. 9th Circuit Court of Appeals held that Krishna Lunch had plausibly pleaded that its distribution of sanctified vegan and vegetarian food (prasada) is protected expressive conduct under the 1st Amendment. The court explained:

While distributing prasada, the organization plans on chanting the names of God and other devotional hymns and songs, speaking with interested students and others of the University of California, Los Angeles (“UCLA”) community, distributing religious literature, and displaying signs depicting reincarnation, animal protectionism, and other topics related to its followers’ beliefs. Drawing all reasonable inferences in favor of Krishna Lunch, we can infer that in these circumstances an onlooker would understand the distribution of food “to be communicative.”

However the court dismissed the organization's free exercise claim, finding that UCLA's four-times-per-year policy is neutral and generally applicable, and saying:

Krishna Lunch has not negated every conceivable basis that might support the policy.

No Action Under Color of Law In Refusing To Rent Meeting Space To Speaker

In Pasadena Republican Club v. Western Justice Center, (CD CA, Dec. 30, 2019), a California federal district court dismissed a suit claiming viewpoint discrimination and religious belief discrimination by the Western Justice Center (WJC) that was leasing the historic Maxwell House from the city of Pasedena.  WJC refused to rent space to the Republican Club for a speech by the president of the National Organization for Marriage because NOM's position on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of WJC. In rejecting the Republican Club's civil rights claims, the court said in part:

The court will grant the Center’s and [its former executive director] Chirlin’s motion to dismiss because the complaint does not plausibly allege that the Center and Chirlin were acting under color of state law, as § 1983 requires, or that the City was involved in the alleged conspiracy, as § 1985(3) requires. Although a symbiotic relationship existed to some degree between the Center and the City, this case is distinguishable from Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), upon which the Club relies....

Muslim Woman Sues Theater Over Pepperoni Pizza

Redondo Beach Patch reports on a lawsuit filed last week by an observant Muslim woman against a California movie theater chain over a pizza served at the theater. The paper recounts in part:

... [Plaintiff claims] she ordered a cheese pizza at a Redondo Beach theater in 2017 and instead was given pepperoni pizza, which she accidentally ate a portion of in the dark auditorium, violating her religious laws against consuming pork.

Kiara Rivers is suing American Multi-Cinema Inc., alleging religious discrimination, battery, intentional and negligent infliction of emotional distress and negligence....

"As a devout Muslim, (Rivers) considers the consumption of pork a violation of her duties as a Muslim and detrimental to her spiritual purity to the point that nothing can be done to restore her spiritual integrity," the suit states.

California Denied Preliminary Injunction In License Dispute Over Faith Based Teen Rescue Facility

In a Tentative Ruling (full text [scroll down]) in Leary v. Teen Rescue,(Shasta Cty. Calif. Super. Ct., Nov. 18, 2019), a California state trial court judge refused to enter a preliminary injunction that would shut down a residential facility for abused and neglected children.  The state claims that the facility should be regulated under state law as a "community care facility." The court agrees that the state has a reasonable probability of prevailing at trial on this claim, but says that there remains a significant religious free exercise question:

Defendants argue that they choose to address behavior through faith-based practices. Compliance with the Act and licensure would impact Defendants’ rights to free exercise of religion, in that 22 CCR § 80072 mandates that students be “free to attend religious services or activities of his/her choice and have visits from the spiritual advisor of his/her choice.” Further, “Attendance at religious services, in or outside of the facility, shall be on a completely voluntary basis” (“the spiritual exploration provisions”). Additionally, the Act provides students the right “[t]o be free from acts that seek to change his or her sexual orientation . . .” (“the SOCE prohibit”). The Act requires staff be trained in “[c]ultural competency and sensitivity in issues relating to the lesbian, gay, bisexual, and transgender communities” (“the LGBT cultural competency requirement”)....

The State advances the argument that requiring community care facilities to train staff in sensitivity to LGBTQ issues is neutral and does not infringe on or restrict religious practices. Defendants hold beliefs that are in direct opposition to this requirement. ....

There is no question that the protection of children – especially the particularly sensitive population of children Defendants seek out for their facility – is of great importance. However, the Court must also consider the foreseeable harm to the defendants in granting this injunction. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns (1976) 427 US 347, 373. The Court is concerned about the potential impact of the preliminary injunction on Plaintiff’s First Amendment freedoms, and the attendant presumption of irreparable injury to Defendants if this injunction were to be granted prior to a full determination of the facts of the case. 

Pacific Justice Institute issued a press release announcing the decision.

Planned Parenthood Wins Suit Against Activists Who Released Secret Manipulated Videos

Newsweek reports that a federal district court jury in San Francisco has awarded nearly $2 million in punitive and compensatory damages to Planned Parenthood:

Planned Parenthood won a lawsuit worth $2 million Friday, after a jury found that an anti-abortion group had broken multiple laws by secretly recording and releasing manipulatively edited video footage of doctors and staff.

The Center for Medical Progress and its founder David Daleiden were found guilty of fraud, trespassing and illegal secret recording.... Planned Parenthood says that clandestinely recorded video footage was manipulated and edited to make it appear as though they were attempting to profit off of fetal tissue donations, something they deny has ever taken place.

The videos were taken between 2013 and 2015, and apparently feature Daleiden and co-defendant Sandra Merritt pretending to be representatives of a fake company called "BioMax."

Parent's Challenge To California's Boarding School Regulation Is Dismissed

In Teen Rescue v. Becerra, (ED CA, Sept. 19, 2019), a California federal district court dismissed a suit brought by the parent of a child attending River View Christian Academy, a Christian boarding school which is subject to the California Community Care Facilities Act.  The Act requires private alternative boarding schools to allow students full autonomy on maters of religion and sexual identity.  Seeking to represent all parents and guardians of students in the school, plaintiff alleges that subjecting the school to these requirement violates his religious free exercise and his parental rights. The court dismissed the complaint, saying in part:

Merely developing a plan to train RVCA staff in issues relating to the lesbian, gay, bisexual, and transgender communities does not invade the First Amendment rights of RVCA parents....

Similarly, preventing a community care facility from attempting to change the sexual orientation of its students is not an invasion of the parents’ First Amendment rights. The First Amendment gives Williams the right to believe and profess whatever religion he desires. If sending his child to an exclusively faith-based educational institution is an important part of Williams’ faith, there is nothing in the CCFA that prevents him from doing so.... Williams is free to enroll his child at a CCFA-exempt religious boarding school....

[T]he only injuries alleged here were suffered by Teen Rescue, not the parents. Williams failed to identify a concrete and particularized injury in fact under the Free Exercise Clause. Thus, Williams and the other RVCA parents lack standing to bring a claim under the First Amendment.