California Lions Club Sues To Control Cross In Park

According to the East Bay Times, on Sept. 11 the Albany, California Lion's Club filed suit in federal court against the city and several city officials in a dispute involving a 20-foot cross in the city's Albany Hill Park. The cross was constructed in 1971 on privately-owned land.  It was transferred to the city in 1973 as part of a controversial land deal in which the city created Albany Hill Park. Before the transfer to the city, the Lion's Club was granted an easement to allow it to maintain the cross. In December 2015, the city cut power to the cross, contending that a utility line running to it was unsafe. It cut power again in 2016 until the local utility PG&E took responsibility for the power line to assure that the cross would be lit for the Christmas and Easter seasons. According to the Times report, the suit:

asks for permanent injunctions preventing the city from depriving the Lions Club of using its easement, preventing interference in utility service, hampering the Lions Club’s free speech rights and exercise of religion, and demands an order to force the city to sell or divest ownership of the land with the cross on it. The suit also asks for damages and legal fees.

Court Says Private Investigator Invaded Privacy of Buddhist Temple

In Vo v. Mason, (CA App., Sept. 19, 2017), a California state appellate court held that plaintiff Thuy Thanh Vo was likely to prevail on her state constitutional invasion of privacy suit against a neighbor and those working with him who are trying to prevent Vo from using her property as a Buddhist Temple without zoning approval.  Posing as someone who wanted to study Buddhism and pray, one of the defendants who is a private investigator took photos of religious ceremonies at Vo's property.  The court's finding of a probability of success led the court to deny a SLAPP motion to dismiss Vo's suit.

Animal Rights Group Sues Police Over Lax Enforcement Against Kapparot Ritual

As the Jewish High Holidays approach, animal rights groups in California are again (see prior posting) attempting to stop the practice of using chickens for the pre-Yom Kippur ritual of kapparot. The complaint (full text) in Animal Protection and Rescue League v. City of Los Angeles, (CD CA, filed 9/12/2017), contends that the the Los Angeles and Irvine police departments are violating the Establishment Clause by "actively protecting, encouraging and ratifying illegal conduct solely because it is motivated by religious belief." Plaintiffs say they want to make citizens' arrests of those who kill and discard chickens in their presence, but that police are deployed in large numbers to prevent such arrests. They say that under California Penal Code Secs. 597(a) and 599c, all intentional killing of animals, except when used for food, are outlawed. Orange County Register reports on the lawsuit. [Thanks to Steven H. Sholk for the lead.]

Court Upholds California Requirement That Health Plans Cover Abortions

In Foothill Church v. Rouillard, (ED CA, Sept. 1, 2017), a California federal district court upheld against a free exercise challenge letters from the California Department of Managed Health Care requiring private health insurers to remove all limitations on or exclusions of abortion services from their health care policies.  Three churches sued arguing that this prevents them from providing their employees with health insurance that is consistent with their Christian teachings.  The court in dismissing plaintiffs' amended complaint held, however, that the Department's letters were neutral and generally applicable, and thus consistent with the free exercise clause.  Plaintiffs also alleged that the Department had granted an exception to one health care plan, allowing it to exclude coverage for abortion except in the case of rape or incest, but has not granted an exception for a policy that excludes abortion coverage in all cases. The court said, however, that plaintiffs did not allege that a plan with total exclusions had been submitted, or that an exemption for it had been rejected. WND has additional background. (See prior related posting.)

Court Rejects Challenge To Permit Denial For Outdoor Weddings

In Epona v. County of Ventura, 2017 U.S. Dist. LEXIS 126533 (CD CA, Aug. 9, 2017), a California federal district court dismissed a free exercise challenge to the denial of a conditional use permit to Epona Estate  that wants to rent out its premises for outdoor weddings. Plaintiff claimed that the county selectively discriminates against weddings. (See prior related posting.)

Establishment Clause Challenge To Portrayal of Hinduism In California Schools May Proceed

In California Parents for the Equalization of  Educational Materials v. Torlakson, (ND CA, July 13, 2017), plaintiffs challenge the treatment of Hinduism in the Standards and the Framework for history and social science courses taught in the California public schools.  They claim discrimination against Hinduism as compared to the treatment of other religions.  A California federal district court last week held that plaintiffs had stated a claim under the Establishment Clause.  The court relied on impressions of one sixth-grader to support its conclusion that the curriculum may have favored other religions over Hinduism:

The primary message that sixth grade student received was that her teacher and classmates considered Hinduism “cruel,” “primitive and unjust,” and that Hinduism had not been treated with “fairness and dignity.” ... The student formed this impression based in large part on the Framework’s content, which emphasized that the caste system was a part of Hinduism. 

The court however dismissed plaintiffs' equal protection challenge, holding that the equal protection clause may not be used to challenge the content of school curriculum.  The court also rejected plaintiffs' claims of discrimination in the process of adopting the curriculum Framework, as well as free exercise and substantive due process challenges. Courthouse News Service reports on the decision.

Court Says Kaporos Ceremony Not Covered By Unfair Competition Law

In Animal Protection and Rescue League, Inc. v. Chabad of Irvine, (CA Super. Ct., June 23, 2017) a California trial court ruled that a challenge by an animal rights group to the Jewish pre-Yom Kippur ritual of kaporos should be dismissed.   The suit alleged violations of California's Unfair Competition Law which prohibits unlawful business practices, contending that the manner in which chickens used in the ritual were kept, slaughtered and disposed of violates various state and local laws.  The court held however that the kaporos ceremony is not a "business act or business practice," explaining:

Chabad-Irvine's purchase of chickens for the participants to use in the ... Kaporos ritual does not transform its conduct from that of a synagogue meeting ... the religious and spiritual needs of the community to that of a commercial enterprise....

... [M]any religious services or ceremonies result in donations being solicited and made (e.g. when offering plates or baskets are passed among a congregation during a religious service...). But that does not convert those religious activities, rituals and observances into business practices.

First Liberty issued a press release announcing the decision and also provides links to the pleadings and court orders in the case. Orange County Register reported on the decision.

Suit Challenges Anti-Semitism At San Francisco State University

In a press release yesterday, the Lawfare Project announced the filing of a lawsuit in a California federal district court on behalf of a group of San Francisco State University students and members of the local Jewish community seeking to end rising administration-sanctioned anti-Semitic activity on campus.  The complaint (full text) in Mandel v. Board of Trustees of the California State University, (ND CA, filed 6/19/2017), alleges that since the founding of the College of Ethnic Studies  in 1968 at SFSU, "a consistent pattern of anti-Jewish animus has emerged," culminating in threats, intimidation and disruption of the speech by Jerusalem Mayor Nir Barkat in 2016. The suit claims this conduct has violated plaintiffs' free speech and equal protection rights as well as their rights under Title VI of the 1964 Civil Rights Act.

9th Circuit Refuses To Enjoin California's Notice Requirements For Crisis Pregnancy Centers

In Mountain Right To Life, Inc. v. Becerra, (9th Cir., June 19, 2017), in a brief opinion, the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's refusal to issue a preliminary injunction against enforcement of California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. (See prior posting).  The Act requires licensed crisis pregnancy centers to notify clients of programs offering free or low-cost abortions and requires unlicensed centers to notify clients that they are not state-licensed.  The court said:

The district court properly concluded that Plaintiffs cannot demonstrate a likelihood of success on the merits of their First Amendment free speech or free exercise claims.... The Act regulates licensed covered facilities’ professional speech, and is therefore subject to intermediate scrutiny, which it survives.... The notice requirement for unlicensed covered facilities survives any level of review.... And as to the free exercise claim, the Act is a neutral law of general applicability that survives rational basis review.

Suit Challenges School District's Anti-Islamophobia Program

Freedom of Conscience Defense Fund announced yesterday that it has filed a religious discrimination lawsuit in a California federal district court against the San Diego Unified School District.  The suit, filed on behalf of a group of parents, challenges an Anti-Islamophobia program instituted by the school district to combat bullying and harassment of Muslim students.  The lawsuit particularly objects to the school board's collaboration with CAIR, a group which plaintiffs say has ties to radical Islam.  The complaint alleges in part:

Under the guise of this anti-bullying program, Defendants have fallen in with [CAIR] to set up a subtle, discriminatory scheme that establishes Muslim students as the privileged religious group within the school community.  Consequently, students of other faiths are left on the outside looking in, vulnerable to religiously motivated bullying, while Muslim students enjoy an exclusive right to the School District’s benevolent protection.

Court Dismisses California Law Challenge To Chabad's Kapparot Ceremony

In United Poultry Concerns v. Chabad of Irvine, (CD CA, May 12, 2017), a California federal district court dismissed a suit by an animal rights organization claiming that the annual Kapparot ceremony conducted by an Orthodox Jewish organization violates California's Unfair Competition Law.  The UCL provides civil remedies for “any unlawful, unfair or fraudulent business act or practice.” The complaint alleges that the ritual as implemented by Chabad of Irvine violates the state's ban on "intentional and malicious killing of animals" other than for use as food (California Penal Code Sec. 597(a), 599c).  Chabad charges $27 to each person for furnishing and disposing of the chicken used in the pre-Yom Kippur ceremony. (See prior posting.)

In dismissing the lawsuit, the court said:

The Court cannot find, and Plaintiff does not cite a single case in which the acceptance of a donation in connection with the performance of religious ritual has been treated as a “business act” under the UCL. Moreover, the Court finds that Defendant Chabad of Irvine does not participate nor compete as a business in the commercial market by performing a religious atonement ritual that involves donations. For these reasons, the Court finds that Plaintiff fails to state a claim against Chabad of Irvine for a violation of the Unfair Competition Law (B.P.C. § 17200 et seq.)

First Liberty Institute issued a press release announcing the decision.  Jewish Press reported on the decision.

California Supreme Court Interprets "Day of Rest" Statute

In Mendoza v. Nordstrom, Inc., (CA Sup. Ct., May 8, 2017), the California Supreme Court issued an opinion answering questions certified to it by the U.S. 9th Circuit Court of Appeals on the meaning of California's "Day of Rest" statute.  At issue is the meaning of California Labor Code §551 which provides: "Every person employed in any occupation of labor is entitled to one day's rest therefrom in seven."  Looking at the history of the provision, the Court said:

Given that religious days of rest, though they vary between denominations, typically recur on the same day each week, the statute could be understood as extending a guarantee of a day of rest every week, on a day of the individual‘s choosing, or, equally, a day of rest at least every seventh day.

The Court concluded that the statute guarantees a day of rest sometime in each work week, so that an employee might work for more than 7 consecutive days. It also concluded that "An employer is not ... forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest."

Cert. Denied In Challenge To California Sexual Orientation Therapy Ban

The U.S. Supreme Court yesterday denied review in Welch v. Brown (Docket No., 16-845, cert. denied 5/1/2017). (Order List.) In the case, the 9th Circuit rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing "sexual orientation change efforts" for patients under 18. (9th Circuit's amended opinion dated Oct. 3, 2016). (SCOTUSblog case page.)

Catholic Hospital Sued Over Refusal Of Gender Reassignment Surgery

A transgender male filed suit this week in a California state trial court against Dignity Heath.  Following Ethical and Religious Directives for Catholic Health Care Services that prohibit direct sterilization, Dignity Health's Mercy San Juan Medical Center refused to perform a hysterectomy as part of plaintiff's treatment for gender dysphoria. The complaint (full text) in Minton v. Dignity Health, (CA Super. Ct., filed 4/19/2017), contend that the refusal constitutes discrimination on the basis of sex in violation of the Unruh Civil Rights Act.  ACLU issued a press release announcing the filing of the lawsuit. Sacramento Bee reports on the suit.

Appeals Court OK's Court-Ordered Meeting of Church Members

In Hawkins v. St. John Missionary Baptist Church of Bakersfield, California, (CA App., March 15, 2017), a California state appellate court upheld a trial court's determination that it could use neutral principles of state non-profit corporation law to order a church's Board of Deacons to call a meeting of members to vote on whether to remove the church's pastor. The appeals court said in part:

[T]he court may apply neutral principles of law based on the church’s own constitution, bylaws and rules, and relevant California statutes.... Thus, a court may determine whether an election in which a pastor was removed was properly conducted according to the church’s bylaws, rules and regulations. In other words, the court may assist the church in acting within its proper sphere under its own rules and regulations to protect civil and property rights.

At the meeting, overseen by a court-appointed referee, those favoring removal of the pastor prevailed by 1 vote. The appeals court concluded that the referee had wrongly excluded the votes of 3 members, and remanded the case for the trial court to redetermine the election results after counting those votes.

Catholic High School Loses Ministerial Exception Defense In Suit By Former Teacher

Monrovia Patch reports that a California state trial court has rejected the ministerial exception defense raised by a Glendora, California Catholic high school in a suit by a former teacher who was fired for marrying his same-sex partner shortly after the U.S. Supreme Court's Obergefell decision.  The court ruled that Kenneth Bencomo can move ahead with his wrongful termination, Labor Code and breach of contract claims against St. Lucy's Priority High School.  The court ruled that while the high school is a religious institution, Bencomo produced substantial evidence that that did not teach any religious classes.  He taught only studio art, dance, English and yearbook and magazine courses. The school did not require that religion be part of his classes, and he never led prayers or referenced Catholic doctrine.

Suit Challenges Treatment of Hinduism In California School Curriculum

Suit was filed this week in a California federal district court challenging on 1st and 14th Amendment grounds the treatment of Hinduism in the California public school curriculum.  The complaint (full text) in California Parents for the Equalization of Educational Materials v. Torlakson, (N CA, filed 2/8/2017), contends:

Defendants have adopted and are implementing content standards and a curriculum framework that are the foundation of the history-social science education provided to all California public school students. The content standards, adopted by the State Board of Education (SBE) in 1998, explain the teachings of major world religions, their virtues and central figures, and the belief of adherents in the divine origins of their faiths. This is true for all religions covered except Hinduism, which is not portrayed as virtuous, does not include mention of religious figures, and is described as an “intellectual tradition” without reference to a belief in divine origins....

East Bay Times reports on the lawsuit. [Thanks to Glenn Katon for the lead.]

Barber Shop That Refused Transgender Customer on Religious Grounds Settles

In a press release issued last week, Lambda Legal announced it had reached a settlement with a California barber shop that had refused to cut the hair of a transgender man because the owner perceived the customer to be a female. The owner later told reporters that he had religious objections to cutting women's hair, saying that God made a clear distinction between genders and "it’s a shame for a man to have long hair, but if a woman has long hair, it’s her glory." The stipulated final judgement (full text) in Oliver v. The Barbershop R.C., Inc., (CA Super. Ct., Jan. 19, 2017), recites that defendants violated California's Unruh Civil Rights Act and enjoins them from discriminating on the basis of sex, including on the basis of actual or perceived gender, gender identity or gender expression.

California Inmates May Have Another Route To Relief For Free Exercise Infringements

In Hauseur v. Clark, (ED CA, Jan. 31, 2017), a California federal district court may have opened a new route for state prisoners in California to obtain damages or equitable relief for free exercise infringements.  California's Bane Act (Civil Code Sec. 52.1) allows anyone whose rights under the Constitution or laws of the United States or of California have been interfered with through threat, intimidation, or coercion to bring an action for damages and/or injunctive relief. The statute goes on to provide:

(j) Speech alone is not sufficient to support an action ... except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.

In this case, brought by a California inmate who complained about the standards for kosher meals he received and about the failure to provide Jewish religious services on many occasions, a federal magistrate judge had held that plaintiff had not stated a claim because he did not allege violence or the threat of violence. Rejecting that portion of the magistrate's recommendation, the district court judge in this case held:

An allegation of either violence or the threat of violence is only necessary if the alleged violations of the Bane Act are based entirely on speech.... [Here] plaintiff stated a cognizable retaliation claim because he alleged the defendants threatened to use their authority to purposefully continue to violate his free exercise rights if he did not withdraw his administrative appeals.... Following this threat and plaintiff’s decision not to withdraw his appeal, defendants allegedly did inhibit plaintiff’s ability to engage in the free exercise of religion.... As alleged, these actions constitute threats and coercion and are sufficient to state a cognizable Bane Act claim.

City Removes Cross From Park To Settle Lawsuit

A settlement has effectively been reached in Freedom From Religion Foundation v. City of Santa Clara, a suit challenging a cross on city owned property in Santa Clara, California. (See prior posting.) The cross was originally donated in 1953 by the Lion's Club to mark the site of the second Spanish Catholic mission established in the city in 1777. According to a press release yesterday from FFRF, the cross has been removed and donated to the Catholic Santa Clara University. The case remains pending in a California federal district court until motions to dismiss are filed and approved.