9th Circuit Hears Oral Arguments In Suit By Fellowship Of Christian Athletes On High School Rules

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Fellowship of Christian Athletes v. San Jose Unified School District Board of Education. In the case, a California federal district court upheld a high school's non-discrimination policy for recognized student groups that precluded Fellowship of Christian Athletes from requiring its leaders to agree with and live in accordance with the group's Christian beliefs. (See prior posting.)

San Francisco Permit Requirement For Park Church Services Enjoined

In Stewart v. City and County of San Francisco, California, (ND CA, June 22, 2022), a California federal district court issued a preliminary injunction barring enforcement of a provision in the San Francisco Park Code requiring a permit for any religious event held in a public park involving 50 or more persons. The court found the provision to be a content-based restriction that triggers strict scrutiny, and concluded that it violates free speech and free exercise protections. However the court upheld a provision requiring a permit for events utilizing sound amplification equipment. Plaintiffs hold their weekly church services in public parks.

Suit Over Content Of Subway Tuna Sandwiches Moves Forward

In a case that is important to those whose religious beliefs prohibit consumption of meat or pork products, a California federal district court in Amin v. Subway Restaurants, Inc., (ND CA, July 7, 2022), refused to dismiss a suit alleging that Subway's tuna sandwiches contain non-tuna products. As reported by Reuters, the suit, alleging fraud and violations of California's consumer protection statutes, contends that DNA analyses of tuna from Subway indicates it contains other fish species, chicken, pork and cattle. According to the court:

Subway argues that any non-tuna DNA discovered when testing its tuna products must come from the eggs in mayonnaise or from cross-contact with other Subway ingredients.... Although it is possible that Subway’s explanations are the correct ones, it is also possible that these allegations refer to ingredients that a reasonable consumer would not reasonably expect to find in a tuna product.

ADA Does Not Justify Lower Priority For Employees With Religious, Rather Than Disability, Exemptions From Vaccine Mandate

In UnifySCC v. Cody, (ND CA, June 39, 2022), a California federal district court granted a preliminary injunction barring enforcement of one portion of a California county's complex policy on accommodating county employees who have exemptions from the county's COVID vaccine mandate. While upholding significant portions of the county's policy, the court found Free Exercise problems with one part of the arrangement. Exempt employees in high-risk job settings were placed on administrative leave, with the possibility of being transferred to a lower risk job setting. The county gave priority in obtaining a lower-risk position to those with medical and disability exemptions over those with religious exemptions, arguing that this was required by the Americans With Disabilities Act and comparable California regulations. However, the court said in part:

Even if federal or California disability law requires priority consideration of disabled applicants for open government positions, the County cannot grant that class of individuals priority consideration over those with religious exemptions in violation of the First Amendment....

The different reasons for an exemption do not affect the amount of risk the exempt employees pose to other employees or the populations the County serves. Accordingly, the Court finds that it is more likely than not that while the general Accommodations framework is facially and operationally neutral, the part of the framework that prioritizes employees in high-risk roles with secular exemptions over those with religious exemptions for consideration for vacant County positions is not neutral....

Another Challenge To School District's Vaccine Mandate Fails

 Doe v. San Diego Unified School District, (SD CA, June 21. 2022), is another attempt by parents and students to challenge the school district's COVID vaccine mandate that does not provide for religious exemptions. The 9th Circuit last year ultimately upheld the school district's prior policy, and the Circuit denied en banc review. The court said in part:

Even Plaintiffs concede that substantively, the new COVID-19 vaccinate mandate is largely the same as before, with a new implementation timeline.... Plaintiffs’ new claims in the FAC are still premised on violations of the Free Exercise Clause, just as the claim in the original complaint was. Accordingly, the Court is bound by the law of this case.

High School Rules Barring Religious Requirements For Christian Student Organization Leaders Is Upheld

In Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, (ND CA, June 1, 2022), a California federal district court upheld a high school's non-discrimination policy for recognized student groups that precluded Fellowship of Christian Athletes from requiring its leaders to agree with and live in accordance with the group's Christian beliefs. In rejecting challenges to the policy, the court said in part:

[P]olicies meant “to ensure that the school’s resources are open to all interested students without regard to special protected classifications” are similar to the antidiscrimination laws intended to ensure equal access that the Supreme Court has concluded are viewpoint and content neutral.... The fact that the Policy allows clubs to set “non-discriminatory criteria” but not criteria based on religion, sexual orientation, or other protected classifications does not mean the Policy aims at the suppression of speech....

Plaintiffs have not shown that the Policy, as written, clearly violates their right to free exercise of their religion. The District’s Policy applies to all ASB student clubs. It does not “impose special disabilities” on Plaintiffs or other religious groups, but instead affects those groups in ways incidental to the general application of the Policy....

Suit Challenges California Group's Ethnic Studies Curriculum As Antisemitic

Last month, suit was filed in a California federal district court seeking to enjoin the Los Angeles public schools from using an ethnic studies curriculum which plaintiffs contend is antisemitic. The complaint (full text) in Concerned Jewish Parents and Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, (WD CA, filed 5/12/2022), alleges that defendants oppose the broad Ethnic Studies Curriculum approved by the state of California, and instead are attempting to convince schools to teach a curriculum that focuses only on Black Americans, Chicano/Latinos, Native Americans, and Asian American/Pacific Islanders. The complaint alleges in part:

This case is brought to compel public disclosure of, and to enjoin, Defendants’ efforts to insert into the Los Angeles public school curriculum, overtly racist as well as antisemitic teaching material which, as its authors intend, discriminates against a segment of California residents on the basis of their religious beliefs and their national origin—namely American and Middle Eastern-Americans Jews who embrace their religion’s foundational belief in Zionism....

The 55-page complaint alleges that use of the Liberated Ethnic Studies Model Curriculum violates plaintiffs' rights under the 1st and 14th Amendments, Title VI of the Civil Rights Act of 1964 and the California Education Code. Among other relief, it seeks an injunction barring the Los Angeles Unified School district from:

including any language, in any teaching materials, asserting that Zionism is not a Jewish belief; denouncing the Jewish belief in the land of Israel as the land promised by God to the Jewish people, or the Jewish belief in Zionism, or asserting that the State of Israel, as the Nation-State of the Jewish people, is illegitimate, or asserting as a fact that the Jewish State is guilty of committing such horrific crimes against others as ethnic cleansing, land theft, apartheid or genocide, or that the Jewish people are not indigenous to the land of Israel or to the Middle East, or denying the State of Israel the right to self-defense; and/or denying the historical or religious connection between the Jewish people and the land of Israel....

The Deborah Project's website has more on the lawsuit.

University's Vaccine Mandate Did Not Violate Free Exercise Rights Of Students

In America's Frontline Doctors v. Wilcox, (CD CA, May 5, 2022), a California federal district court dismissed the associational plaintiff for lack of standing and rejected individual plaintiffs' free exercise challenge (as well as their other challenges) to the University of California Riverside's COVID vaccine mandate. The court said in part:

Plaintiffs contend that Defendants' enforcement of the Policy violates their right to free exercise of religion. The SAC alleges that Defendants "coerc[e] students to make an unnatural choice...either quickly injecting themselves...[with a COVID-19 vaccine] ... or ...disclosing under duress their religious beliefs to Defendants' religious exemption approval panels."... They also contend that Defendants "prejudicially segregate religious people in order to subject them to...testing."... Plaintiffs have religious exemptions from the Policy. Even so, Plaintiffs contend that testing and masks "substantially interfere with students' religious practices of prayer, speech, and deed."...

The Policy is a neutral and generally applicable. It applies to all students, professors, and staff at the University of California and seeks to protect public health and safety. Defendants offer exemptions for religious beliefs, medical reasons, and disability.... The Policy's exemptions pass constitutional muster.... Plaintiffs allege that they requested religious exemptions under "duress" but fail to explain how their decisions to voluntarily submit a one-page exemption form were executed under "duress." Plaintiffs also fail to describe how masks and testing interfere with the students' religious practices of prayer, speech, and deed. Plaintiffs are only required to mask while indoors—a restriction that also applied to vaccinated students at the time the SAC was filed. Presumably Plaintiffs would be indoors to attend class, so it is unclear how the Policy interferes with religious practices.

Anti-SLAPP Motion Denied In Suit Against Archdiocese Over Priest's Molestation of Children

In Ratcliff v. Roman Catholic Archbishop of Los Angeles, (CA App., May 19, 2022), a California state appellate court affirmed the denial of an anti-SLAPP motion sought by the Los Angeles Archdiocese.  The court explained:

Seven adults allege they were molested by a priest when they were children. They brought suit against The Roman Catholic Archbishop of Los Angeles and related entities ..., alleging defendants were vicariously liable for ratifying the molestation and directly liable for their own negligence in failing to supervise the priest, and related acts and omissions. The Archdiocese moved to strike the operative complaint under the anti-SLAPP law (Code Civ. Proc., § 425.16), arguing that some of the acts by which it purportedly ratified the molestation or acted negligently constituted speech or litigation conduct protected by the anti-SLAPP statute....

The court concluded however that:

The Archdiocese, both in its anti-SLAPP motion before the trial court, and in its briefing on appeal, goes to great lengths to overlook the actual allegations of ratification, namely the acts of failing to investigate and supervise (and, instead, transferring to different parishes)... 

The four purported negligence claims identified by the Archdiocese have one key factor in common: they are all based on a decision not to speak, not speech itself.... We conclude the failure to speak alleged as a basis for liability here is not conduct in furtherance of the right of free speech.

Tribe Is Required Party In Challenge To Directive On Repatriation of Native American Remains

 In Weiss v. Perez, (ND CA, May 10, 2022), a California federal district court dismissed a suit brought by a San Jose State University anthropology professor who objects to the University president's directive that denied her access to Native American remains housed at the University. The directive was issued to prepare the remains for repatriation to the Muwekma Ohlone Tribe. Plaintiff, Prof. Elizabeth Weiss is an opponent of repatriation. The court held in part:

The Court finds that the Muwekma Ohlone Tribe is a required party under Rule 19 to adjudication of Professor Weiss’s claims about the Directive. Because the Tribe has sovereign immunity from suit and thus cannot be joined, Professor Weiss’s claims regarding the Directive must be dismissed with prejudice. The Court will, however, give Professor Weiss leave to amend her complaint as to her allegations about retaliation in the form of restricting access to and use of non-Native American remains and retaliation for her protected speech as it may pertain to her teaching and curational responsibilities.

Cert. Filed In Challenge To California's Extension Of Time To Bring Childhood Sex Assault Claims

A petition for certiorari (full text) was filed last month with the U.S. Supreme Court in Roman Catholic Bishop of Oakland v. Superior Court of the State of California,, (Docket No. 21-1377, filed 4/15/2022). In the case, 9 dioceses and archdioceses challenge California legislation that extended the limitation period for suits alleging childhood sexual assault to plaintiff’s 40th birthday or 5 years after discovery; created a 3-year window to bring previously time-barred civil actions for for childhood sexual assault; and provided for treble damages in cover-up cases. National Catholic Register reports on the cert. petition.

California Court Says "Get" Denial Can Be Basis For Denying Husband Child Custody

The Forward last week reported on a February 7 decision by a California trial court which interpreted 2020 amendments to the state's Family Code (Senate Bill 1141) as allowing a family court to use a husband's refusal to give his wife a Jewish bill of divorce (a "get") as the basis for awarding the wife child custody. Senate Bill 1141 adds "coercive control", defined as "a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty," as the basis for ex parte orders.  That, in turn, creates a rebuttable presumption that awarding child custody to the person exerting coercive control is not in the best interests of the child. The court ruled that denial of a get amounted to coercive control. The full text of the court's decision does not appear to be available online.

Churches Can Move Ahead On Damage Claims Against County For Its COVID Orders

In Calvary Chapel San Jose v. Cody, (ND CA, March 18, 2022), two churches and their pastors sued the state of California and Santa Clara County over their COVID orders. As explained by the court:

Beginning in March 2020, both the State and the County issued emergency orders that instituted capacity limits for certain types of facilities, restricted the practice of certain activities (including singing and chanting), and required individuals to wear masks in many situations....

[Plaintiffs alleged] that the emergency orders imposed harsher restrictions on churches than on other institutions. When Calvary Chapel admittedly defied those orders, Plaintiffs allege that the County sent threatening letters to the church’s bank and levied against it millions of dollars in fines for the violations. Plaintiffs bring nine claims, alleging violations of their First, Eighth, and Fourteenth Amendment rights under the Federal Constitution, violations of the California Constitution, and a violation of California’s Bane Act.

The court granted the state of California's motion to dismiss, finding that plaintiffs' claims for injunctive and declaratory relief are moot, and that any claim for damages is barred by the 11th Amendment. However damage claims against the county were allowed to move forward. The court concluded that plaintiffs had adequately plead free exercise, freedom of assembly, equal protection, and excessive fines claims.

Code Enforcement Against Buddhist Temple Did Not Violate Free Exercise Clause Or RLUIPA

In Temple of 1001 Buddhas v. City of Fremont, (ND CA, March 4, 2022), a California federal district court dismissed a suit by a Miaolan Lee who lives on property owned by the Temple of 1001 Buddhas challenging the city's enforcement of the state's building, electrical and plumbing codes. Among others, the court dismissed plaintiff's free exercise and RLUIPA claims, saying in part:

Although the code enforcement does not permit her to use (for any purpose) the three buildings that are in severe noncompliance, Lee can exercise her religion elsewhere on her property. The code enforcement does not at all “coerce [her] into acting contrary to [her] religious beliefs or exert substantial pressure on [her] to modify his behavior and to violate [her] beliefs.” ...

Lee argues that the City violated RLUIPA when West “instruct[ed] Plaintiff Lee that she could only pray on the property in the main house or in the dome Meditation Hall and nowhere else on the Real Property.” ... Lee contends that this act was “an implementation of a land use regulation.”... [T]he Court now concludes that Lee does not state a claim on this basis because Lee does not plausibly allege that this remark constituted the “application of a zoning or landmarking law” within the meaning of RLUIPA.

Christian Doctors Challenge California Assisted Suicide Provisions

An organization of Christian healthcare professionals and one of its members filed suit yesterday in a California federal district court challenging the current version of California's End of Life Options Act (EOLA) on free exercise, free speech, due process and equal protection grounds. The complaint (full text) in Christian Medical & Dental Associations v. Bonta, (CDCA, filed 2/22/2022), alleges that changes made to EOLA last year by SB 380 remove previous protections and now require doctors to participate in assisted suicide in violation of their religious beliefs. It contends that SB 380 requires objecting physicians to:

a. Document the date of a patient’s initial assisted-suicide request, which counts as the first of two required oral requests;
b. Transfer the records ... to a subsequent physician who may complete the assisted suicide;
c. Diagnose whether a patient has a terminal disease, inform the patient of the medical prognosis, and determine whether a patient has the capacity to make decisions, all of which are statutorily required steps toward assisted suicide;
d. Provide information to a patient about the End of Life Options Act;
e. Provide a requesting patient with a referral to another provider who may complete the assisted suicide.

ADF issued a press release announcing the filing of the lawsuit. 

Supreme Court Denies Injunction As School System Postpones Vaccine Mandate

In Doe v. San Diego School District, (Sup. Ct., Feb. 18, 2022), the U.S. Supreme Court issued an Order (full text) refusing to enjoin a school district's COVID vaccine mandate that does not provide for religious exemptions.  The Court said in part:

Because respondents have delayed implementation of the challenged policy, and because they have not settled on the form any policy will now take, emergency relief is not warranted at this time. Applicants’ alternative request for a writ of certiorari before judgment and a stay pending resolution is denied for the same reason. The Court’s denial is without prejudice to applicants seeking a new injunction if circumstances warrant.

As a press release from the Thomas More Society relates, the suit was brought by a student athlete whose religious beliefs prevent her from taking the current vaccines because of the use of fetal cells in their development.

Former Scientology Members No Longer Bound By Arbitration Agreement

In Bixler v. Superior Court for the State of California, (CA App., Jan. 19, 2022), a California state appellate court, reversing the trial court, held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. Plaintiffs reported to the police that "That 70’s Show" star Danny Masterson, who was also a Scientology member, had raped them. In retaliation for their reporting, plaintiffs claim that the Church encouraged its members to engage in an elaborate harassment campaign using the Church's so-called Fair Game tactics. The court summarized its holding:

Individuals have a First Amendment right to leave a religion. We hold that once petitioners had terminated their affiliation with the Church, they were not bound to its dispute resolution procedures to resolve the claims at issue here, which are based on alleged tortious conduct occurring after their separation from the Church and do not implicate resolution of ecclesiastical issues.

New York Post reports on the decision.

California Settles Suit Over Aztec Prayer In Ethnic Studies Curriculum

A Settlement Agreement (full text) was reached last week (Jan. 13) with the California Department of Education in a suit that had been filed (see prior posting) challenging a prayer to Aztec gods that was in included in the state's Ethnic Studies Model Curriculum. According to an announcement of the agreement by the Thomas More Society:

As a result of the settlement, that the California Department of Education will promptly remove prayers (also labeled as chants or affirmations) from the Aztec and Yoruba (or Ashe) religions from the state-approved curriculum and will issue a public notice of such to all California school districts, charter schools and county offices of education. The department, along with the State Board of Education, also agreed not to encourage the use of the two challenged chants in California public schools.

Split En Banc 9th Circuit Denies Review of Refusal To Enjoin School Vaccine Mandate that Lacks Religious Exemption

The U.S. 9th Circuit Court of Appeals has denied en banc  reconsideration of the refusal to enjoin, pending appeal, a school district's COVID vaccine mandate that does not provide for religious exemptions. In Doe v. San Diego Unified School District, (9th Cir., Jan. 14, 2022), the court denied en banc review of the panel's decision, with various judges filing opinions dissenting from, or concurring with, the denial. Judge Bumatay, in a 21-page opinion joined by six other judges (and concurred in by one judge with senior status), dissented, saying in part:

Simply put, the District can’t have it both ways by allowing secular exemptions but prohibiting religious ones. If the District offers any secular vaccine exemption with a similar risk profile to a religious exemption, it must satisfy strict scrutiny to exclude a religious exemption. The Constitution forbids the District from picking and choosing its preferred secular exemptions while disfavoring religious exemptions. And this remains true in times of crisis.

Judges Berzon and Bennett filed an opinion concurring in the denial of reconsideration which offered rebuttals to each point made by Judge Bumatay in his dissent. Judge Bress, joined by Judge Bade, and Judge Forrest filed a briefer dissenting opinions as well.

California Sues Health Care Sharing Ministry For Fraud

California's Attorney General announced yesterday that the state has filed a false statements and fraudulent business practices civil lawsuit against a company purporting to operate as a Health Care Sharing Ministry. The complaint (full text) in State of California v. Aliera Companies, Inc., (CA Super., filed 1/12/2022), alleges in part:

Aliera created and marketed its health insurance products as “health care sharing ministry” (HCSM) plans. HCSMs are nonprofit corporations historically comprised of members of a particular religious community, who contribute money to a shared pool with the understanding that the money would pay for catastrophic or surprise healthcare costs pursuant to the members’ shared religious tenets....

... Aliera ...  advertised that members’ monthly payments would go towards the healthcare costs of other members. To the contrary, Aliera retained as much as 84% of every member payment, leaving around 16 cents of every dollar for member expenses. Aliera arbitrarily rejected member requests for payment of healthcare costs in order to continue retaining these member payments for itself and the individual defendants.

Fourteen states and the District of Columbia, have initiated actions against Aliera for its sale and operation of its purported HCSM plans. This includes the California Department of Insurance, which issued a cease and desist order on or about March 8, 2020.