California Univerisites De-Recognize InterVarsity Christian Fellowship

RNS reported this week that the California State University System is withdrawing official recognition  of the InterVarsity Christian Fellowship at its 23 campuses because the organization limits leadership roles to those who affirm belief in its traditional Christian Doctrinal Basis (full text). While membership in the group is open to any student, its limit on who may be leaders conflicts with the University System's non-discrimination policy. De-recognition means the group will lose it discount on use of meeting rooms, and will lose access to other official events such as student fairs. Christian Post reports that the group will  will now use other techniques, including social media, for recruitment.

Religious Health Care Provider Loses Free Exercise Claim Against Medi-Cal Managed Care Plan

In Horisons Unlimited v. Santa Cruz-Monterey-Merced Managed Medical Care Commission, 2014 U.S. Dist. LEXIS 89030 (ED CA, June 27, 2014), a religious health care provider sued over actions of Alliance, the sole Medi-Cal manged care plan in the county.  Alliance refused to credential the clinics' providers and allow new enrollments of Medi-Cal beneficiaries at the clinics. In addition to various antitrust claims, the clinic asserted infringement of its free exercise of religion. The court rejected the contention, saying:

An allegation that one member of Alliance's governing body "objected to" religious services at Horisons' clinics fails show or give rise to a reasonable inference that Alliance burdened Horisons' practice of religion by preventing Horisons from engaging in conduct mandated by Horisons' faith.

Supreme Court Denies Cert. In Reparative Therapy and Mt. Soledad Cross Cases

Nearly lost in the coverage of today's Hobby Lobby decision were two important denials of certiorari by the Supreme Court. (Order List of June 30, 2014).  The court denied review in Pickup v. Brown (Docket No. 13-949) and the related case of Welch v. Brown (Docket No. 13-1281).  The 9th Circuit's consolidated decision in the two cases upheld the constitutionality of California Senate Bill 1172 that bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18. (See prior posting.)

Additionally, the Court denied certiorari in Mount Soledad Memorial Association v. Trunk, (Docket No. 13-1061).  In seeking cert., petitioners were attempting to bypass the 9th Circuit and obtain Supreme Court review of a long-running battle over a 43-foot high cross in the now federally-owned Mt. Soledad Veterans Memorial in California. (See prior posting.) Justice Alito filed a separate statement [scroll to end of Order List] concurring in the denial of review, but mainly because of the very demanding standard to obtain Supreme Court review before the Court of Appeals acts.

9th Circuit: Suit To Claim Nazi Confiscated Artwork Can Proceed

In Von Saher v. Norton Simon Museum of Art at Pasadena, (9th Cir., June 6, 2014), the U.S. 9th Circuit Court of Appeals held in a 2-1 decision that the sole living heir of a Jewish family whose art collection was forcibly "purchased" for a fraction of its value by Nazi leader Herman Goring can proceed with a suit to recover two of the paintings presently in a California art museum. The majority held that the suit. brought under California law, is not in conflict with U.S. foreign policy. Judge Wardlaw dissented.

RLUIPA Suit Challenges City's Refusal To Allow Homeless Ministry To Continue

A suit was filed last week in a California federal district court by the Stanford Law School Religious Liberty Clinic on behalf of a church in San Buenaventura, California that was denied a permit to continue to operate its ministry to the homeless in its current location.  The complaint (full text) in Harbor Missionary Church Corp. v. City of San Buenaventura, (CD CA, filed 5/14/2014), contends that the church's rights under the 1st Amendment and RLUIPA were violated when the city refused to recognize that the current permit to operate as a church was sufficient to allow the church to continue to offer meals, clothing, laundry and shower facilities, Bible study and prayer to the homeless, and then refused to issue the church a conditional use permit to allow the ministry to continue. Here is Plaintiff's Memorandum in Support of Motion for Preliminary Injunction. Courthouse News Service reports on the case. [Thanks to Paul Harold for the lead.]

Family of Muslim Man Killed By L.A. Police Wins In 9th Circuit, But Not On Free Exercise Claim

Yesterday, the U.S. 9th Circuit Court of Appeals issued two opinions-- one published and the other unpublished-- in the case of an autistic 21-year old Muslim man-- Mohammad Usman Chaudhry-- who was shot and killed by Los Angeles police.  The coroner took custody of Chaudhry's body but did not notify his family of his death for 21 days. This prevented the family from burying Chaudhry in accordance with their religious beliefs.  In the published opinion in Chaudhry v. City of Los Angeles (I), (9th Cir., May 19, 2014), the 9th Circuit gave a substantial victory to the family, reversing a number of the district court's rulings. Among other things, it reversed the dismissal of claims under state and federal civil rights laws, allowing the family to proceed  on 4th Amendment grounds, and on substantive due process grounds for loss of companionship. It also held that California's bar to pre-death pain and suffering claims does not apply to suits based on 42 USC Sec. 1983, reinstating the jury's $1 million award. It alsoFr held that plaintiffs introduced enough evidence to raise a jury question on whether the coroner's office was negligent in it attempts to locate Chaudhry's family.  In the unpublished opinion in Chaudhry v. City of Los Angeles (II), (9th Cir., May 19, 2014), the 9th Circuit rejected the family's free exercise of religion claim, holding that "the Los Angeles Coroner Department’s policies for locating decedents’ families are generally applied and neutral with respect to religion." It also rejected plaintiffs' equal protection claim, finding no evidence of intent to discriminate on the basis of religion or race.

California Court Refuses To Allow Sikh Juror To Wear Kirpan

In Yuba City, California, members of the Sikh community protested yesterday when officials refused to allow Gursant Singh to enter the Sutter County Courthouse to report for jury duty. Singh has been unable to convince authorities to allow him to wear his kirpan (a religious dagger with a 5 inch blade) in the courthouse.  CBS13 reports that court officials insist on enforcing their no-weapons policy to ban the traditional religious symbol. It is unclear whether Singh will be penalized for not appearing for jury duty.

Cert. Petition Filed In Challenge To California's Ban On Teen Repairative Therapy

In a press release yesterday, the Pacific Justice Institute announced that it has filed a petition for certiorari with the U.S. Supreme Court in Pickup v. Brown. In the case, the 9th Circuit upheld the constitutionality of California's  ban on state-licensed mental health providers engaging in sexual orientation change efforts with patients under 18. (See prior posting.)

City Council Settles Suit By ending Invocations, Abolishing Chaplain Position

The Freedom From Religion Foundation announced last week that it has reached a settlement with the city of Pismo Beach, California which it sued last year challenging its practice of opening city council meetings with Christian prayer, usually offered by the city chaplain who is a Pentecostal clergyman. (See prior posting.) In the settlement, which must be approved by the court, the city agreed to end its practice of opening meetings with prayer, abolish the city chaplain position, and pay plaintiffs nominal damages and attorney fees of about $47,500. [Thanks to Andrew Seidel for the lead.]

Former Scientologist Sues Church For Return of Funds

Courthouse News Service reported yesterday on a lawsuit filed recently in a California state trial court against the Church of Scientology and a number of its affiliates. Plaintiff Vance Woodward, an attorney, seeks return of $200,000 he paid for "auditing" courses he never received, as well as punitive damages.  He contends that the Church took thousands of dollars from him and others through claims that Scientology would bestow superhuman powers on them. In total he turned over $600,000 to the church, $200,000 of which went for allegedly shoddy courses that were useless or harmful.  He claims the Church obtained his funds through psychological manipulation and abuse.

California Enacts Special Exemption To Allow Abbot To Be Buried On Monastery Grounds

In California, Gov. Jerry Brown yesterday signed SB 124 which grants a special exemption to allow Abbot Theodor Micka, a co-founder of Holy Cross Monastery, to be buried on the monastery’s grounds. (Press release from Sen. Ellen Corbett.) Holy Cross is the only Orthodox Christian monastery in the San Francisco Bay Area. As reported by the San Francisco Chronicle, 75-year old Micka, now seriously ill, has lived at the monastery for nearly 35 years, and one of his last wishes was to be buried there.  The special exemption was needed because state law only allows burial permits to be issued for burial in a cemetery. [Thanks to James Sonne for the lead.]

Veterans' Memorial Design Featuring Cross Held Unconstitutional

Following on a preliminary injunction issued last July (see prior posting), this week after a bench trial a California federal district court in American Humanist Association v. City of Lake Elsinore, (CD CA, Feb. 24, 2014), held that a veterans'-memorial design approved by the Lake Elsinore (CA) City Council violates the U.S. Constitution's Establishment Clause and the California constitution's Establishment and No Preference Clauses. The memorial includes a soldier kneeling with his gun in front of a 1.4 foot cross, and a row of approximately eight additional crosses and two Stars of David behind the central cross. The court, after tracing in detail the history of the design and redesign of the proposed monument concluded that the city had not shown a predominately secular purpose for including the Latin cross in the design, and its principal effect is to advance religion.  The city's contention that the multiple crosses and stars of David added in a redesign of the monument had the secular purpose of depicting a historic European World War II military cemetery was described by the court as "only a litigating position." American Humanist Association issued a press release calling attention to the decision.

Group Homes Ordered Closed After Charges That Disabled Residents Were Punished For Refusing To Attend Religious Services

The Los Angeles Times reports that last Friday a California trial court judge appointed a receiver to begin relocating dozens of physically and mentally disabled residents from two unlicensed religiously-operated group homes. Husband and wife, Kang Won Lee and Jung Hwan Lee, operate the two Los Angeles facilities, Agape Mission House and Agape Home Church. Los Angeles authorities say living conditions in the homes were deplorable.  They also say that residents were forced to attend religious services twice a day, regardless of their religious beliefs.  If they refused, they were punished by being required to stand by a tree for up to 4 hours, translate Bible verses for a full day and sleep outside at night.

Cert. Petition Filed In California Change Therapy Ban Case

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Pickup v. Brown. In the case,  the 9th Circuit upheld the constitutionality of California Senate Bill 1172 that bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the cert. petition.

9th Circuit, With Dissents, Denies En Banc Review In Reparative Therapy Ban Challenge

As previously reported, last August in Pickup v. Brown, (9th Cir., Aug. 29, 2013), the U.S. 9th Circuit Court of Appeals upheld the constitutionality of California Senate Bill 1172 that bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18.  Yesterday in Pickup v. Brown, (9th Cir., Jan. 29, 2014),) the panel reaffirmed its holding in an amended opinion, and the full court (with 3 dissents) denied en banc review. The amended opinion-- apparently in response to dissenters' criticisms-- adds the discussion at pp. 39-41 distinguishing this case from the U.S. Supreme Court's 2010 decision in Holder v. Humanitarian Law Project.

In the dissent from yesterday' denial of review by the 9th Circuit, Judge O'Scannlain, joined by Judges Bea and Ikuta, said:

The State ... here, has prohibited licensed professionals from saying certain words to their clients. By labeling such speech as “conduct,” the panel’s opinion has entirely exempted such regulation from the First Amendment. In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California’s prohibition—in the guise of a professional regulation—of politically unpopular expression.

Volokh Conspiracy also discusses yesterday's action by the 9th Circuit.

Rezoning For Catholic Senior Housing Project Is Not Establishment Clause Violation

In Foothill Communities Coalition v. County of Orange, (CA App., Jan. 13, 2014), a California appellate court held that creating a new zoning district for a large parcel of land owned by the Catholic Diocese of Orange to allow the diocese to build a senior housing project was not an Establishment Clause violation. The court rejected the argument that a land use approval equals a preference if the landowner is a religious organization.

Nonsectarian Council Invocations O.K. Under California Constitution

According to the Eureka (CA) Times-Standard, a California state Superior Court judge has rejected a broad facial state constitutional challenge to all prayers at city council meetings.  In Beaton v. City of Eureka, (Humboldt Cty. Super. Ct., Dec. 24, 2013) the court held that the city's policy allowing voluntary, nonsectarian invocations does not violate the California Constitution. However, the court held that plaintiff may challenge particular invocations as violations of the Establishment, No Preference or No Aid clause of the California Constitution.

District Court Orders Mt. Soledad Cross Removed; Appeals Expected

On Thursday, yet another opinion was handed down in the litigation challenging the constitutionality of the cross that is part of the Mt. Soledad veterans' Memorial. Various lawsuits over over the 43-foot high cross on public property in California have spanned 24 years.  In 2011, the 9th Circuit (see prior posting) held that the Memorial conveys an endorsement of religion that violates the Establishment Clause, but added: "This result does not mean that the Memorial could not be modified to pass constitutional muster nor does it mean that no cross can be part of this veterans’ memorial." The 9th Circuit remanded the case to the district court to determine the appropriate remedy.

After attempts to appeal the 9th Circuit's ruling were rejected, the district court in Trunk v. City of San Diego, (SD CA, Dec. 12, 2013) has now held that the cross must be removed.  It said that despite the 9th Circuit's statement that changes in the Memorial might make it constitutionally acceptable, language in the 9th Circuit's opinion "makes it clear that removal of the large, historic cross is the only remedy that the Ninth Circuit conceives will cure the constitutional violation."  This is unlikely to be the last word, however, because the court also stayed its order pending the resolution of any appeal.  Liberty Institute says that it will appeal the ruling, all the way to the Supreme Court if necessary. Wall Street Journal reports on the decision.