Settlement Requires ChristianMingle To Include Same-Sex Date Searching

As reported by the Wall Street Journal, last week a California trial court entered a consent decree settling an Unruh Civil Rights Act class action that had been brought by two gay men against the dating sites ChristianMingle.com, CatholicMingle.com, AdventistSinglesConnection.com and BlackSingles.com. Plaintiffs charged that the sites did not allow users to meet singles of the same sex, thus violating state anti-discrimination laws that require business establishments to offer equal services regardless of sexual orientation. The judgment (full text) in Sparks Network Unruh Act Cases, (CA Super. Ct., June 27, 2016), requires that for the next two years the home pages of the sites must no longer provide the choices of "man seeking woman" and "woman seeking man," but instead only ask whether the user is a Man or Woman.  Those seeking a same-sex match can then search using text searching and profile building tools.  After that, the sites can be reconfigured so long as there is an option for those seeking a same-sex match to do so without indicating they are seeking someone of the opposite sex. The judgment also calls for future changes to create equal matching services.  Finally the judgment calls for defendant to pay damages totaling $18,000 and attorneys fees of $450,000.

9th Circuit Hears Challenge To Ban On Conversion Therapy

The U.S. 9th Circuit Court of Appeals yesterday heard oral argument (video of oral arguments) in Welch v. Brown.  In the case, a California federal district court rejected Free Exercise and Establishment Clause challenges to California's ban on mental health professionals providing "sexual orientation change efforts" (SOCE) for minors. (See prior posting.).  SFGate reports on yesterday's oral arguments.

HHS Rules That California Did Not Violate Weldon Amendment

Yesterday the Office for Civil Rights of the Department of Health and Human Services (OCR) issued a letter (full text) responding to complaints that the California Department of Managed Health Care violated the Weldon Amendment when it directed several health insurance companies to amend their plan documents to remove coverage limitations and exclusions for elective abortions. Subsequently California granted an exemption to one of the companies to allow it to offer plans that exclude abortion coverage to religious employers. The complaints were filed by churches, a religious organization, a church-run school and employees of a religiously-affiliated university.  In its Findings, OCR said in part:

By its plain terms, the Weldon Amendment's protections extend only to health care entities and not to individuals who are patients of, or institutions or individuals that are insured by, such entities.... Here none of the seven insurers that received the CDMHC letter ... objected to providing coverage for abortions..... As a result, there is no health care entity protected under the statute that has asserted religious or moral objections to abortion and therefore there is no covered entity that has been subject to discrimination within the meaning of the Weldon Amendment.

... A finding that CDMHC has violated the Weldon Amendment might require the government to rescind all funds appropriated ... to the State of California.... HHS' Office of General Counsel, after consulting with the Department of Justice, has advised that such a rescission would raise substantial questions about the constitutionality of the Weldon Amendment.

Los Angeles Times reports on OCR's ruling.

9th Circuit Hears Oral Arguments In Pregnancy Center Disclosure Law Challenge

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in  A Woman's Friend Pregnancy Resource Clinic v. Harris. (Video of full oral arguments).  In the case, a California federal district court refused to enjoin the effectiveness of California's Reproductive FACT Act which requires reproductive health clinics to disseminate a notice to all clients stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. (See prior posting.)

Transgender Man Sues Men-Only Barber Shop That Refused Him Service

A state court lawsuit was filed last week in California against a men-only barber shop and two of its barbers who, for religious reasons, refused to cut the hair of a transgender man.  The complaint (full text) in Oliver v. The Barbershop, R.C., Inc., (CA Super., filed 5/24/2016), relates the following reasons given to reporters by the barber shop's owner for the policy:

"It's a shame for a man to have long hair, but if a woman has long hair, it's her glory and it speaks to being given to her as her covering, and I don't want to be the one who is taking away from her glory."  Hernandez also told reporters that when "people go against what God has created, you start getting everything out of whack."

The suit seeks injunctive relief under California's Unruh Civil Rights Act. A Lambda Legal press release reports on the case.

Lawsuit Charges Restaurant With Discriminating Against Muslim Patrons

The Orange County Register reported yesterday on the messy facts surrounding a discrimination lawsuit filed by 7 Muslim women against a Laguna Beach, California restaurant.  On April 22, the women, most of whom were wearing hijabs, were sitting at a table on the uncrowded outdoor patio near the restaurant entrance.  They  were asked to leave for violating the restaurant's rule against remaining at a table more than 45 minutes after eating. The Register report fills in further details:

 “The women were singled out and targeted because they appeared to be Muslim,” said attorney Mohammad Tajsar. “Urth Caffe targeted these women as a way of cleansing their location of women that appeared to be Muslim to appease the Islamaphobia in a predominantly white Laguna Beach community.”

Shallom Berkman, owner of Urth Caffe, disputed the claims. His wife, Jilla, who is Muslim, was the one who advised management to call police after the women became rude toward restaurant staff, he said.

Urth Caffe announced Wednesday that it is being represented by the American Freedom Law Center, a firm that specializes in faith-based lawsuits.

“Urth Caffe did not discriminate against the women who have filed this fraudulent lawsuit," said David Yerushalmi, co-founder and senior counsel for the center. “The lead plaintiff (Sara Farsakh) in the frivolous lawsuit is ... a college-age activist for Palestinian causes. We intend to sue Farsakh and her co-conspirators for trespass and to seek damages.”

Muslim Woman Sues Long Beach Police Over Forced Removal of Hijab

A suit was filed last week in federal district court in California against the city of Long Beach and its police by a Muslim woman who says that her hijab (headscarf) was forcefully removed while she was being booked by police and held overnight in jail on outstanding warrant charges.  The complaint (full text) in Powell v. City of Long Beach, (ED CA, filed 4/29/2016), alleges that police policy violates RLUIPA, the 1st Amendment and the California constitution.  It seeks damages and an injunction requiring a change in policy so that the police department accommodates religious head wear of those being booked into police custody.  The suit also seeks to enjoin the public release of plaintiff's booking photo which shows her with her head uncovered. LA List reports on the lawsuit.

Suit Challenges Cross At Site of Historic Spanish Mission

The Freedom From Religion Foundation this week filed suit in a California federal district court challenging the constitutionality of a 14-foot tall granite Latin cross in Santa Clara's Memorial Cross Park.  The complaint (full text) in Freedom From Religion Foundation v. City of Santa Clara, (ND CA, filed 4/20/2016), says that the cross was donated and placed on city-owned property in 1953 by the Lion's Club to mark the site of the second Spanish Catholic mission established in the city in 1777. The site continues to be maintained by the city. Plaintiff claims that the city's actions violate the Establishment Clause of the federal and state constitutions as well as the "no aid" clause of California's constitution.  FFRF issued a press release announcing the filing of the lawsuit and containing a photo of the disputed marker.

California Board of Regents Adopts Proposal Aimed At Campus Anti-Semitism

Last Thursday, the University of California Board of Regents unanimously adopted "Principles Against Intolerance" (full text) as a response to an increase in anti-Semitic incidents on UC campuses. The Introduction to the new document explains:

During the 2014-15 academic year, the Regents received correspondence and public comment from a variety of sources expressing concern that there has been an increase in incidents reflecting anti-Semitism on UC campuses. These reported incidents included vandalism targeting property associated with Jewish people or Judaism; challenges to the candidacies of Jewish students seeking to assume representative positions within student government; political, intellectual and social dialogue that is anti-Semitic; and social exclusion and stereotyping. Fundamentally, commenters noted that historic manifestations of anti-Semitism have changed and that expressions of anti-Semitism are more coded and difficult to identify. In particular, opposition to Zionism often is expressed in ways that are not simply statements of disagreement over politics and policy, but also assertions of prejudice and intolerance toward Jewish people and culture.

Anti-Semitism, anti-semitic forms of anti-Zionism and other forms of discrimination have no place at the University of California.

As reported by the New York Times,  the version of the document that was adopted eliminated previously proposed language that would have condemned all forms of anti-Zionism.

Class Action Claims Valentine's Day Candies Misrepresented As Kosher

A class action lawsuit was filed this week in a California federal district court against See's Candy alleging that signage in the company's Los Angeles store misled plaintiff into believing that the Valentine's Day Heart Box of assorted chocolates was certified Kosher when in fact it was not.  The complaint (full text) in Weiss v. See's Candy Shops, Inc., (ND CA, filed 2/9/2016), asserts that plaintiff relied on a sign containing a kosher certified symbol which the store placed directly above the heart boxes of candy. The suit alleges breach of express warranty, unlawful business practices, violation of the Consumers Legal Remedy Act, false advertising, and fraudulent inducement. Law.com reports on the lawsuit.

Church's State Court Suit Challenges California Mandate For Health Insurance Abortion Coverage

A La Mesa, California church last week filed suit in state court against the California Department of Managed Health Care challenging a state requirement that all health insurance policies sold in California cover elective abortions, without exceptions.  The complaint (full text) in Skyline Wesleyan Church v. California Department of Managed Health Care, (Super. Ct., filed 2/4/2016), alleging violations of several state and federal constitutional provisions, contends:

the Mandate has created an inconsistent and untenable situation where Skyline Church and other religious employers do not have to provide health insurance coverage for contraceptives and infertility treatments but must pay for voluntary and elective abortions....

Defendants substantially burden Skyline Church's religious exercise when they force Skyline Church to choose between following its religious beliefs and suffering debilitating penalties under federal law or violating its conscience in order to avoid those penalties.

A similar challenge was filed in federal court by three other  churches last October. (See prior posting.)  ADF issued a press release announcing last week's state court lawsuit.

Suit, Claiming Free Exercise Right, Seeks Voiding of Death Certificate

Late last month, a suit was filed in a California federal district court seeking to require the state of California to invalidate a death certificate issued two years ago when 13-year old Jahi McMath was declared brain dead.  However before the child's ventilator was removed, her mother transferred her to a facility in New Jersey, a state which has a religious exemption in its law to the brain-death standard.  Jahi's mother claims that Jahi now shows brain function.  The complaint (full text) in McMath v. State of California, (ND CA, filed 12/23/2015) seeks an injunction requiring California to restore all rights (including health care benefits) to Jahi, and requiring it to expunge records of the death certificate. Among the grounds for relief asserted by plaintiffs are the Free Exercise clause and RLUIPA. The complaint alleges in part:

Plaintiffs' sincerely held religious beliefs require that they provide ongoing medical care for any person who is alive, including JAHI McMath.... The issuance of a facially invalid (and now substantively inaccurate) death certificate ... created a situation in which Plaintiffs were unable to exercise their religion....

The McMath lawyers issued a press release announcing the filing of the lawsuit, and NJ.com reports on the suit.

California Judges Will Still Be Able To Lead Church Boy Scout Troops

January 21, 2016 is the effective date of an amendment adopted last year to the California Code of Judicial Ethics that eliminated previous exceptions to the ban on California judges holding membership in any organization-- other than a religious organization-- that discriminates on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. A previous exception for non-profit youth organizations had allowed judges to continue their activities with the Boy Scouts.  (See prior posting.)

In a little-noticed Oral Advice Summary (full text) posted Nov. 12, 2015, the California Committee on Judicial Ethics Opinions opened the door to judges continuing to participate in church-sponsored scout troops that bar gay leaders. The Committee said in part:

The Advisory Committee commentary to canon 2C advises that determining whether an organization practices invidious discrimination depends on such "relevant factors as whether the organization is dedicated to the preservation of religious . . . or other values of legitimate common interest to its members. . . ."

Historically, BSA has prohibited youth and adult membership based on sexual orientation. In January, 2014, BSA adopted a policy that no youth will be denied membership on the basis of sexual orientation. In July, 2015, BSA adopted a policy that BSA employees and non-unit-serving volunteers will not be denied membership on the basis of sexual orientation. The policy also states that chartering organizations, such as those sponsoring local troops, have the right to select adult scout leaders based on the chartering organization’s religious and moral values concerning sexuality.

Given these policies, the requesting judge must determine for himself whether or not his church-sponsored BSA troop excludes adult gay members based on his troop’s commonly-held religious values concerning sexuality....

Yesterday News Now reported on the November Oral Advice.

Fired Police Officer's Free Exercise Rights Not Infringed By Order Not To Associate With Gang Member

In Cuevas v. City of Campbell, (CA App., Dec. 23, 2015), a California appellate court held that the free exercise and expressive association rights of police officer  Sammy Cuevas were not infringed when he was terminated, in part for contact with known gang member Joseph Aguilera-- who had been married to Cuevas' cousin.  Cuevas argued unsuccessfully that because he is the godfather of Aguilera's child and they are both Catholic, the order to not associate violated their right to practice their faith together.

9th Circuit Upholds California AG's Collection of Donors' Names Against "As Applied" Challenge

As previously reported, in June the U.S. 9th Circuit Court of Appeals upheld against a facial challenge California's administrative rule requiring non-profit organizations that wish to solicit tax deductible contributions in the state to file an annual report that includes an unredacted IRS Form 990 Schedule B, the names and contributions of significant donors. The filings are not made public by the state. Now in Americans For Prosperity Foundation v. Harris, (9th Cir., Dec. 29, 2015), the 9th Circuit also rejected an "as-applied" challenge to the California law. This challenge was brought by Americans for Prosperity (a libertarian advocacy group funded in large part by the Koch brothers) and by the Thomas More Law Center  (which describes itself as an advocacy group which "defends and promotes America’s Judeo-Christian heritage and moral values"). According to the court:

First, the plaintiffs have not shown the demand for nonpublic disclosure of their Schedule B forms to the Attorney General has actually chilled protected conduct or would be likely to do so.... Second, the plaintiffs have not shown a “reasonable probability” of harassment at the hands of the state if the Attorney General is permitted to collect their Schedule B forms for nonpublic use.

The 9th Circuit, however, upheld the district court's preliminary injunction barring the California Attorney General from making the Schedule B's public, saying in part:

Because the Attorney General agrees with the plaintiffs that Schedule B information should not be publicly disclosed, and because she is in the process of promulgating a regulation prohibiting such public disclosure, a preliminary injunction prohibiting public disclosure of donor information promotes, rather than undermines, the state’s policy. 

Two District Courts Refuse To Enjoin California's Reproductive FACT Act

In recent days, two separate California federal district courts have refused to enjoin the Jan. 1 effectiveness of California's new Reproductive FACT Act which requires reproductive health clinics to disseminate a notice to all clients stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women. In Livingwell Medical Clinic, Inc. v. Harris, (ND CA, Dec. 18, 2015), the court denied a preliminary injunction, finding that plaintiffs had not shown a likelihood of success on the merits of their claim that the required disclosures violate their free expression rights by interfering with their ability to control their own religious and pro-life messages. In A Woman's Friend Pregnancy Resource Clinic v. Harris, (ED CA, Dec. 21, 2015), the court similarly rejected free expression and free exercise claims in denying a preliminary injunction. In rejecting the free exercise claim, the court found that the Act is a neutral law of general applicability even though it mostly impacts Christian-belief based crisis pregnancy centers. Courthouse News Service reports on the decisions.

Fired Pastor and His Followers Lose Suit To Reclaim Their Former Church Building

In St. Mark Baptist Church of Pittsburg v. Saint Mark at Bethel Missionary Baptist Church, (CA App., Dec. 18, 2015), a California state appellate court upheld a trial court's decision in a dispute over control of church property.  Two Baptist churches merged, but the arrangement went sour after two years.  Under the merger agreement,  Pastor McNab from St. Mark Pittsburg was to be the pastor of the merged church, but the church was to meet in the building used by St. Mark at Bethel. When trustees of the merged church voted to terminate Pastor McNab, he and some of his followers left the church and attempted to return to their original building which had by now been rented out to an unrelated church. They sued seeking a ruling that they, not the merged church, still owned their original building.  In this decision, the Court of Appeals upheld the trial court's denial of a preliminary injunction to prevent sale of the St. Mark Pittsburg church building by the merged church, and also upheld the trial court's removal of a lis pendis notice-- a notice that litigation impacting the property was pending. It held that there was substantial evidence that McNab and his current followers were not the rightful leaders of St. Mark Pittsburg even if it continues to exist as a separate entity.

Trial Court Rules In Factional Dispute In California Church

In a long-running case on remand from a California appellate court (see prior posting), a Los Angeles trial court judge yesterday entered a final judgment giving possession of the church and a commercial building it owns to one of the two competing factions in the St. Mary of the Angels Church in Los Feliz, California.  The Los Feliz Register reports that the court ruled in favor of Father Christopher Kelley and his followers.  An earlier Los Feliz Register report provided background:

Father Christopher Kelley—the rector from 2007 until his firing in 2012—and his supporters took sanctuary in the basement and celebrated mass, while the anti-Kelley faction used the church’s regular first floor offices and held mass in its tiny, but lovely chancel.

After three years and reams of legal documents filed by both sides with allegations hurled both ways, if you attended a mass today at weary St. Mary’s, you would be among only a dozen or so parishioners left from its once healthy congregation.

The dispute was complicated by the vote of the congregation's parishioners in 2012 to end affiliation with the Anglican Church and join the Catholic Church.  The losing faction in yesterday's decision said an appeal will be filed.

9th Circuit Hears Arguments In Suit Over FBI Infiltration of Mosques

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Fazaga v. FBI.  The class action lawsuit against the FBI and FBI agents alleges that the government wrongfully spied on mainstream mosques in Southern California and targeted Muslims for surveillance because of their religion. (ACLU case page.)  In the case, a California federal district court dismissed claims against the FBI because of the state secrets privilege, agreeing that national security would be endangered by disclosing targets in counter-terrorism investigations. The court, however, permitted claims under the Foreign Intelligence Surveillance Act against individual FBI agents and supervisors to proceed. (See prior posting.) Politico reports on yesterday's oral arguments, in which all the questions to counsel were asked by Judge Berzon.

CORRECTION: No Injunction Issued Against California's Reproductive FACT Act; Case Still Pending

Based on an error in a report by a news service, Religion Clause incorrectly reported last week that a California federal district court had issued a preliminary injunction barring the state of California from enforcing its recently enacted Reproductive FACT Act against two religiously affiliated pregnancy counseling centers. A proposed order has been filed by plaintiffs in A Woman's Friend Pregnancy Resource Center v. Harris, but a hearing on it will not take place until Dec. 18. Thanks to Stephen Blakeman for alerting me to the error, which the news service caught two days ago.