Faith-Based Resource Center for Homeless Sues Over Right to Serve Snacks to Its Clients

Suit was filed this week in a California federal district court by a Resource Cener for impoverished and disabled individuals alleging that the city of Santa Ana has violated its rights under RLUIPA and the First Amendment by insisting that it stop serving snacks to its clients in order to receive a Certificate of Occupancy, even though it had been operating without one for 15 years.  The complaint (full text) in Micha's Way v. City of Santa Ana, (CD CA, filed 1/30/2023), asks for an injunction and declaratory relief.  Voice of OC, reporting on the lawsuit, summarizes the allegations in the 44-page complaint:

For years, homeless people would come by the red roof house on 4th Street in Santa Ana for help with the basics: Personal documents, mail collection, maybe motel vouchers on a good day.

And on their way back out the door, they’d likely take a pastry from the faith-based center called Micah’s Way — a small parting token in the service of Christian ministry, but an unpermitted property use in the eyes of Santa Ana city officials....

On Monday, Micah’s Way attorney Edmond Connor filed a lawsuit against the city, citing federal protections for religious exercises like feeding and sheltering the homeless.

It accuses city officials of scapegoating Micah’s Way for neighborhood impacts from a nearby needle exchange program.

9th Circuit Orders En Banc Review of School's Action Against Fellowship of Christian Athletes

The U.S. 9th Circuit Court of Appeals has granted en banc review in Fellowship of Christian Athletes v. San Jose Unified School District Board of Education. The court's January 18 Order (full text) vacates the decision of a 3-judge panel which ordered reinstatement of the Fellowship of Christian Athletes as an official student club at San Jose high schools. (See prior posting.). At issue is selective enforcement of the San Jose Unified School District's non-discrimination policy.  It revoked FCA’s status as an official student club because FCA requires those serving in leadership roles to abide by its Statement of Faith which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. CBN News reports on the decision.

"Ministerial Exception" Doctrine Applies to Claims by Kosher Wine Supervisor

In Markel v. Union of Orthodox Jewish Congregations of America, (CD CA, Jan. 3, 2023), a California federal district court held that the "ministerial exception" doctrine bars claims rooted in the California Labor Code brought against a synagogue organization by a mashgiach (kosher food supervisor) formerly employed by it. The court found that the Orthodox Union meets the requirements for a religious organization and that Markel should be categorized as a "minister", saying in part:

[T]he OU designated Markel as a head mashgiach at the Delano winery, and he was tasked with overseeing the kosher production of wine. Although a mashgiach may not be a "minister in the usual sense of the term—[he] was not a pastor or deacon, did not lead a congregation, and did not regularly conduct religious services"—Markel's title and assigned duties as mashgiach satisfy the first Hosanna-Tabor factor.... As mashgiach, Markel was integral to the koshering of wine for use by Orthodox Jews and the greater Jewish community, and his efforts were necessary in fulfilling an important function of the Jewish faith.

Second, Markel's position "reflected a significant degree of religious training followed by a formal process of commissioning." ...

Third, Markel's duties as a head mashgiach reflected the religious mission of the OU and the importance of supervising the kosher production of wine for the Orthodox Jewish faith.

Cross On Park Land Must Remain While State Court Reconsiders Its Eminent Domain Ruling

 In Lions Club of Albany, California v. City of Albany, (ND CA, Nov. 17, 2022), a California federal district court clarified its 2018 ruling in which it held that the city of Albany violated the Establishment Clause by acquiring for a public park a 1.1 acre parcel of land that includes a large cross. Originally the cross was on private property, and the Lion's Club held an easement to maintain the 20-foot high cross and to illuminate it each Christmas and Easter. In its earlier ruling the court said that the city could cure its Establishment Clause problem in one of several ways, one of which was by taking the Lion's Club easement by eminent domain. (See prior posting.) In May 2022, the city began state court eminent domain proceedings.  The state court permitted the city to take prejudgment possession of the Lion's Club easement and take down the cross and store it in a safe place. The Lion's Club than filed the present federal court action seeking a preliminary injunction, contending that its free speech and free exercise rights were being violated. The court said in part:

The City wants to keep the park and remove the cross, not sell the land. Further, as revealed at our hearing, there is and has been no current offer by the Lions Club to purchase a parcel that includes the cross. These considerations are relevant in weighing hardships and, as explained above, the question of provisional relief is wholly in the hands of the [state court] Judge Chatterjee. He is free to rule either way without offending any order or dictum by this court. 

At our hearing, however, it also developed that the City cannot say with any certainty whether it can put the cross back up after its provisional removal, should the City ultimately lose the eminent domain jury trial.... Thus, as the Court sees things, this is not just a decision merely pending litigation, but rather practically, once the cross is down, it is down for good. This raises a serious exercise of religion problem and in considering this issue, Judge Chatterjee’s ruling appears to have been based on a misunderstanding of this Court’s prior ruling. Therefore, until such time as Judge Chatterjee can reassess the motion for prejudgment possession, taking into consideration the correct understanding of the June 2018 Order, removal of the cross is ENJOINED.

Claims Against Social Worker Who Questioned Foster Parents' Religion Is Dismissed

 In Sarmiento v. Marquez, (ND CA, Nov. 10, 2022), a California federal district court dismissed religious discrimination and retaliation claims against county social work personnel who attempted, ultimately unsuccessfully, to remove a foster child from plaintiffs' care. The court explained:

Plaintiffs contend that, as they were proceeding toward adoption of the child in their care, County social worker Luz Sanclemente asked Sarmiento whether she “[believed] in God,” and whether she “[believed] in Jesus Christ.” ... Plaintiffs allege that defendants thereafter sought to remove the child from their care in “retaliation for not appearing to be Christians.”

However, the court concluded:

Sanclemente’s query into plaintiffs’ beliefs ... did not at all “coerce [them] into acting contrary to their religious beliefs or exert substantial pressure on [plaintiffs] to modify [their] behavior and to violate [their] beliefs.” ... Plaintiffs do not identify any action they took differently based on Sanclemente’s questioning. Plaintiffs do not represent that Sanclemente offered a quid pro quo, such as continued custody of the child in exchange for plaintiffs’ conversion to Christianity....

A First Amendment claim for retaliation requires a “substantial causal relationship” between a plaintiff’s “constitutionally protected activity” and “adverse [government] action . . . that would chill a person of ordinary firmness from continuing to engage in the protected activity.”,,,

Here, the [complaint] only speculates that there was a relationship between (1) plaintiffs’ response to Sanclemente that they are not Christians and (2) defendants’ actions to remove the child from plaintiffs’ care....

Community College Vaccine Mandates Upheld

In George v. Grossmont Cuyamaca Community College District Board of Governors, (SD CA, Nov. 3, 2022), a California federal district court, in a 41-page opinion, rejected a variety of constitutional challenges and a religious discrimination challenge under Title VII to the Covid vaccine mandates of three community college districts. Plaintiffs were six employees and a student.  The mandates provided for medical and religious exemptions and accommodations. In evaluating plaintiffs' free exercise claims, the court concluded that both the mandates and the accommodation frameworks are neutral and generally applicable. In rejecting the Title VII claim, the court concluded that plaintiffs had shown no adverse employment action against them because they had all received religious exemptions.

Actor's Disparate-Impact Religious Discrimination Claim Is Dismissed

 In Dunbar v. Disney, (CD CA, Nov. 3, 2022), a California federal district court dismissed an amended complaint filed by "9-1-1" actor Rockmond Dunbar in his Title VII disparate-impact religious discrimination claim against Walt Disney Company. Dunbar was denied a religious exemption from Disney's Covid vaccine mandate and was fired when he refused to be vaccinated. He claimed that according to beliefs of his Universal Wisdom Church it is a sacrilege to ingest medication, chemicals, or other foreign matters that defy natural law. His disparate impact claim failed originally because he was unable to identify other Universal Wisdom Church members who were similarly impacted. He then amended the complaint to allege that three other employees of other religious denominations were impacted. The court held, however, that this was insufficient to identify a "protected group" that was impacted because the group he points to is identified solely by the existence of the alleged discriminatory business practices. Hollywood Reporter reports on the decision.

Prof Who Criticized Native American Grave Repatriation Laws Can Move Ahead with Retaliation Suit

In Weiss v. Perez, (ND CA, Oct. 19, 2022), a California federal district court allowed a tenured professor of physical anthropology at San Jose State University to move ahead against most of the defendants she named in a lawsuit alleging that the University has retaliated her against because of her opposition to repatriation of Native American remains.  In a book that Prof. Elizabeth Weiss co-authored that was published in 2020, she argued that the Native American Graves Protection and Repatriation Act and the California Native American Graves Protection and Repatriation Act "undermine objective scientific inquiry and violate the Establishment Clause of the United States Constitution by favoring religion over science." She expressed similar views in an op-ed and on Twitter.  Weiss claims that because of her speaking on this issue, the University has interfered with her research and limited her professional activities in a number of ways that have reduced her responsibilities and damaged her professional reputation. The Art Newspaper reports on the decision.

Baker With Religious Objections to Same-Sex Marriage Did Not Violate California's Civil Rights Law

In a tentative decision which becomes final in ten days unless objections are filed, a California state trial court has concluded that a bakery which refuses on religious grounds to furnish custom designed cakes for same-sex weddings and instead refers customers to another bakery for such items did not violate the Unruh Civil Rights Act. In Department of Fair Employment and Housing v. Cathy's Creations, Inc., (CA Super. Ct., Oct. 21, 2022), the court concluded that the state failed to prove intentional sexual orientation discrimination, saying in part:

Miller and Tastries do not design and do not offer to any person-- regardless of sexual orientation-- custom wedding cakes that "contradict God's sacrament of marriage between a man and a woman.

The court went on to hold that because California's Unruh Civil Rights Act is a neutral law of general applicability, the state did not violate defendant's free exercise rights. However, application of the Unruh Civil Rights Act here would violate defendants' free speech rights because it would compel expressive conduct based on content or viewpoint. Thomas More Society issued a press release announcing the decision.

Profs Sue University for Including Caste in Antidiscrimination Policy

Suit was filed on Monday in a California federal district court by two California State University professors challenging the University's inclusion of discrimination on the basis of caste in its Interim Antidiscrimination Policy adopted in January. The complaint (full text) in Kumar v. Koester, (CD CA, filed 10/17/2022) alleges in part:

[T]he Interim Policy seeks to define the Hindu religion as including “caste” and an alleged oppressive and discriminatory caste system as foundational religious tenets. That not only is an inaccurate depiction of the Hindu religion, but the First Amendment to the United States Constitution prohibits California and CSU from defining the contours of Hinduism (or any religion)....

The Interim Policy also singles out only CSU’s Hindu employees, professors and students, as well as those of Indian/South Asian origin. No other Protected Status in the Interim Policy addresses any specific ethnicity, ancestry, religion or alleged religious practice,,,

Plaintiffs seek a determination that the term “caste” as used in the Interim Policy is unconstitutionally vague, and the Interim Policy as drafted violates the rights of Plaintiffs (and similarly situated individuals) under the First and Fourteenth Amendments to the United States Constitution, as well as their rights under the California Constitution.

The Hindu American Foundation issued a press release announcing the filing of the lawsuit.

Pre-School Teacher Sues After Being Fired For Her Stance On Same-Sex Marriage

A child-care employee who was fired by her employer for refusing to read to her pre-schoolers books that celebrate same-sex relationships has filed suit alleging religious discrimination, wrongful termination, harassment and retaliation. The complaint (full text) in Parisenkova v. Bright Horizons Children's Center, LLC, (CA Super. Ct., filed 10/13/2022), filed in a California state trial court, alleges that plaintiff's Christian religious beliefs prevent her from promoting messages that support same-sex marriage. After an initial informal accommodation, the school's director, who took personal offense at plaintiff's religious beliefs, refused to grant plaintiff a formal religious accommodation.  As a prelude to her dismissal, plaintiff was forced to leave the school building mid-day in extremely hot weather.  Plaintiff was terminated after she refused the requirement that she receive diversity awareness training. Thomas More Society issued a press release announcing the filing of the law suit.

Religious Questioning Of Muslim Travelers By Border Officers Upheld

In Kariye v. Mayorkas, (CD CA, Oct. 12, 2022), three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. The court, in a 71-page opinion in its official format, first dismissed plaintiffs' Establishment Clause challenge. Applying the Supreme Court's test articulated in Kennedy v. Bremerton School District, the court said in part:

The court finds substantial legal authority supporting the government's historically broad authority to implement security measures at the border.... Additionally, the court finds substantial authority holding that maintaining border security is a compelling government interest.

The court rejected plaintiffs' free exercise claim, finding that plaintiffs had not sufficiently alleged a substantial burden on their religious exercise. It additionally concluded that even if there was a substantial burden, officers' questioning was narrowly tailored to advance a compelling governmental interest in protecting borders and preventing potential terrorism.

The court also rejected freedom of association, retaliation, equal protection and RFRA challenges to practices of border officers.

Alternatives For Employees With Religious Exemptions From Vaccination Are Not Discriminatory

In Dollar v. Goleta Water District, (CD CA, Oct. 3, 2022), a California federal district court held that the COVID vaccination policy for employees of the Goleta Water District did not discriminate on the basis of religion against employees who obtained a religious exemption. Plaintiffs contended that the District's policy is discriminatory because it imposes special mask and testing requirements and requires authorization to enter certain buildings for plaintiffs because they have a religious exemption. The court said in part:

[P]laintiffs have not alleged that employees who receive exemptions on religious grounds are treated any differently from employees who receive exemptions on non-religious grounds. Instead, plaintiffs have only alleged that the policy treats them differently from other employees because of their vaccination status, not because of their religion.

City Employees Did Not Show Sincere Religious Objection To COVID Vaccine

In Keene v. City and County of San Francisco, (ND CA, Sept. 23, 2022), a California federal district court dismissed a suit by two city employees who objected on religious grounds to the city's COVID vaccine mandate. The court said in part:

Neither Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine. There are no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines contain fetal cells or are otherwise derived from murdered babies.... Feeling passionately about something or having a specific personal preference does not merit the status of a sincere religious belief....

The court denied a preliminary injunction under Title VII and California's Fair Employment and Housing Law, also concluding: 

It is well-settled law that loss of employment does not constitute irreparable harm for purposes of an injunction....

Suit Challenges California's Linking Of Hinduism With Caste System

A Hindu advocacy organization has filed suit in a California federal district court challenging allegations in the California Civil Rights Department's enforcement actions against caste discrimination that link the caste system to Hinduism. The complaint (full text) in Hindu American Foundation, Inc. v. Kish, (ED CA, filed 9/20/2022), alleges in part:

[A] caste system or discrimination on its basis are in no way a legitimate part of Hindu beliefs, teachings, or practices. 

HAF vehemently opposes all types of discrimination; and takes great exception to the State of California defaming and demeaning all of Hinduism by attempting to conflate a discriminatory caste system with the Hindu religion. 

Worse, California defames Hinduism by doing what the U.S. Constitution says it cannot, assert a government right to resolve questions of religious doctrine....

As a result, the CRD’s violation of the First Amendment rights of all Hindu Americans ... would likely lead employers to actively  discriminate against Hindu and South Asian Americans in order to avoid the undefined maze of  legal uncertainty that would be California’s caste-discrimination bar....

Stopping caste-based discrimination is a worthy goal that directly furthers Hinduism’s belief in the equal and divine essence of all people. But wrongly tying Hindu beliefs and practices to the abhorrent practice of caste-discrimination undermines that goal, violates the First Amendment rights of all Hindu-Americans, and can only lead to a denial of due process and  equal protection to Americans based on their religious affiliation and national origin.

(See prior related posting.) Hindu American Foundation issued a press release announcing the filing of the lawsuit.

California Governor Signs New Laws Protecting Abortion Rights

Yesterday California Governor Gavin Newsom signed a package of 13 additional bills to strengthen abortion rights in the state.  According to a press release from his office, these laws will:

further protect people from legal retaliation and prohibit law enforcement and corporations from cooperating with out-of-state entities regarding lawful abortions in California, while also expanding access to contraception and abortion providers in California.

The press release details each of the new laws.

California Assisted Suicide Law Violates Free Speech rights Of Objecting Doctors

In Christian Medical & Dental Association v. Bonta, (CD CA, Sept. 2, 2022), a California federal district court held likely unconstitutional a provision in the California End of Life Option Act which requires doctors who refuse on conscience, moral or ethical grounds to participate in procedures set out by the act to nevertheless document in a patient's record the date of the patient's request for an aid-in-dying drug. This notation serves as one of two required requests by a patient before the patient may obtain the drug. The court rejected the argument that this violates the free exercise rights of medical providers who object on religious grounds, saying in part:

The court recognizes that Plaintiffs have sincerely held religious beliefs, and that compliance with the documentation requirements contained in Section 443.14(e)(2) infringes on the free exercise of their religion. However, under clearly established doctrine in Smith, Lukumi, and Fulton, strict scrutiny does not apply to a neutral and generally applicable law, like the Act here.

The court also rejected equal protection and due process challenges. However, the court did conclude that plaintiffs are likely to succeed on their free speech challenges to the requirement, saying in part:

[T]he documentation requirement imposed by the Act “plainly alters the content” of non-participating health care providers’ speech.... The ultimate outcome of this requirement is that non-participating providers are compelled to participate in the Act through this documentation requirement, despite their objections to assisted suicide.

The court issued a preliminary injunction barring state enforcement of the requirement against objecting health care providers. ADF issued a press release announcing the decision.

California Must Allow Churches To Opt Out Of Abortion Coverage In Their Health Care Plans

In Foothill Church v. Watanabe, (ED CA, Aug. 25, 2022), a California federal district court held that the California Department of Managed Health Care (DMHC) should have taken steps so that objecting churches could be exempt from the Department's requirement that health insurance policies cover abortion services. DMHC argued that only health care plans are subject to its regulation, so exemptions will be granted only to plans, not to employers. Subjecting plaintiffs' Free Exercise claim to strict scrutiny because the DMHC rule is subject to a system of individual exemptions and thus is not "generally applicable," the court said in part:

[T]he court assumes without deciding that the Director’s understanding of the scope of her regulatory authority, that she is limited to regulating health plans, is correct. Nonetheless, nothing in the statutory text explicitly precludes her from fielding requests for exemptions from religious claimants. Likewise, nothing appears to preclude the Director from directing the religious claimant’s plan to submit a revised evidence of coverage document comporting with the religious claimant’s belief to the DMHC for approval. The Director’s authority to give orders to a plan does not foreclose the authority to consider requests for those orders from others. In the end, the Director is still regulating the plan.

... The Director’s denial of the Churches’ request for exceptions to accommodate their religious beliefs, based solely on the fact that those requests did not originate with a plan, was not narrowly tailored to serve a compelling interest.

ADF issued a press release announcing the decision.

Last Defendant In Poway Synagogue Tax Fraud Scheme Sentenced

The U.S. Attorney's Office for the Southern District of California announced on Friday that attorney Elliot Adler, the eleventh and last individual being prosecuted for the tax fraud scheme connected with Chabad of Poway, was sentenced to one year and one day in prison, fined $20,000, and ordered to forfeit gold coins purchased with funds used in the fraud. According to the announcement:

Beginning at least as early as 2010 and continuing through October 2018, Adler participated in a so-called “90/10” tax scheme with Rabbi Goldstein. Specifically, Adler gave money to Rabbi Goldstein that purported to be a donation to Chabad of Poway. Goldstein then secretly funneled ninety percent of the funds back to Adler, keeping ten percent of the funds as his fee. None of the donated funds was actually given to the Chabad as a charitable donation. Adler then falsely claimed that the fraudulent donations were tax-deductible on his tax returns, allowing him to reduce his personal income tax liability by approximately $500,000 (cumulatively) for tax years 2011 through 2017.

(See prior related posting.)

Court Reverses Sanctions Imposed On Church For Violating COVID Orders

In People v. Calvary Chapel, San Jose, (CA App., Aug. 15, 2022), a California state appellate court annulled contempt orders imposed by trial courts and reversed trial court imposition of monetary sanctions which resulted from a church's refusal to comply with state COVID public health orders. The order restricted the holding and conduct of public gatherings. The court said in part:

[W]e conclude that the temporary restraining orders and preliminary injunctions are facially unconstitutional pursuant to the recent guidance of the United States Supreme Court regarding the First Amendment’s protection of the free exercise of religion in the context of public health orders that impact religious practice (see, e.g., Tandon v. Newsom (2021) ....) As the underlying orders which Calvary Chapel violated are void and unenforceable, we will annul the orders of contempt in their entirety and reverse the orders to pay monetary sanctions.

Advocates for Faith & Freedom issued a press release announcing the decision and reporting that Santa Clara County is still attempting to enforce $2.8 million in fines imposed for violation of county health orders.