School's Challenge To Disqualification From Voucher Program Moves Ahead

In Bethel Ministries, Inc. v. Salmon, (D MD, Nov. 14, 2019), a Maryland federal district court refused to dismiss a suit brought by a Christian school against state authorities claiming that the school was discriminated against on religious grounds when its eligibility to participate in the state's school voucher program (known as "BOOST") was removed. In order to participate, a school has to have a non-discrimination policy that include bans on discrimination on the basis of sexual orientation.  As explained by the court:

Bethel does not include sexual orientation or gender identity in its statement of nondiscrimination.... In the next paragraph, the handbook says, It should be noted, however, that Bethel Christian Academy supports the biblical view of marriage defined as a covenant between one man and one woman, and that God immutably bestows gender upon each person at birth as male or female to reflect his image … faculty, staff, and student conduct is expected to align with this view....

Irrespective of any language in the handbook, however, Bethel does not consider sexual orientation in the admissions process. The court reasoned:

If, as it alleges, Bethel has not discriminated on the basis of sexual orientation in admissions, then it has plausibly alleged that Defendants infringed upon several of its constitutional rights. Namely, Bethel has presented a plausible case that the Advisory Board’s determination of ineligibility was motivated by the school’s religious affiliation.

Challenge To Religious Anti-Discrimination Waiver Dismissed For Lack of Standing

In Maddonna v. U.S. Department of Health and Human Services, (D SC, Nov. 13, 2019), a South Carolina federal district court dismissed for lack of standing a challenge to action by the federal government and the state that, through a waiver of anti-discrimination requirements, allowed a religiously affiliated foster care agency to place children only with evangelical Christians. The court said in part:

Plaintiff could only conceivably attempt to assert taxpayer standing as to her claims regarding the Establishment Clause. Even then, Plaintiff has not set forth any challenge to any legislative action, but has, rather, challenged discretionary executive actions and appropriations....

 Assuming without deciding that Plaintiff’s other alleged injuries - i.e. that she was denied the opportunity to volunteer and/or become a foster parent through Miracle Hill and was discriminated against in the process - has been sufficiently alleged ..., the court finds that Plaintiff has failed to establish that such injury was fairly traceable to any Defendant....  [A]t the time Plaintiff was denied the ability to volunteer with or foster through Miracle Hill in 2014, the actions of which she complains had not taken place, and, therefore, cannot conceivably have caused or even contributed to Plaintiff’s alleged harm.

The State reports on the decision.

EEOC Suit Over Insults To Muslim Employees Settled

The EEOC announced  that a consent decree was signed on Tuesday settling a suit against Haliburton Energy Services. The suit charged that two Muslim workers were subjected to taunts and name calling over their religion and national origin. One was fired for complaining about his treatment.  In the consent decree, the company agreed to pay $275,000 in damages. The decree also enjoined future violations and requires training of human resource and managerial employees. (See prior related posting.)

Muslim Community Center's Claim of Discrimination In Permitting Process Must Proceed To Trial

In OT, LLC v. Harford County, Maryland, (D MD, Sept. 23, 2019), a Maryland federal district court refused to grant summary judgment to either side on almost all the claims by a Muslim group seeking permits to construct a community center. Plaintiffs contend that delays in approval were motivated by religious discrimination in violation of various constitutional and statutory provisions and imposed a substantial burden on their free exercise of religion in violation of RLUIPA.  The court said in part:

Importantly, “a government decision influenced by community members’ religious bias is unlawful, even if the government decision makers display no bias themselves....

Here, Plaintiffs contend that the sequence of events leading up to the County’s decision, departures from the County’s normal procedures, and contemporary statements by County decision-makers demonstrate that County Defendants’ actions were motived by the community’s anti-Muslim beliefs....

Conversely, County Defendants maintain that their decisions here were motivated by their desire to conform to existing practices and the County Code....

[T]he Court concludes that there is a genuine dispute of material fact as to the intent of the County Defendants....

The court similarly concluded that there was a genuine dispute of fact on whether the delay imposed a substantial burden on plaintiffs' right of religious exercise.

SPLC's "Hate Group" Designation For Christian Ministry For LGBT Views Is Protected By 1st Amendment

In Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., (MD AL, Sept. 19, 2019), an Alabama federal district court, in an interesting 141-page opinion, dismissed claims by a Christian television ministry against the Southern Poverty Law Center and Amazon's charitable program. As summarized by the court:

The lawsuit is based largely on Coral Ridge’s allegations that, because of its religious opposition to homosexual conduct, SPLC has designated it as a “hate group” and that, because of this designation, Amazon and AmazonSmile have excluded it from receiving donations through the AmazonSmile charitable-giving program.

Coral Ridge has three claims against SPLC: a state claim that its “hate group” designation is defamatory and federal claims for false association and false advertising under the Lanham Act, 15 U.S.C. § 1125. Coral Ridge has a single claim against the Amazon defendants: a federal claim that they excluded it from the AmazonSmile charitable-giving program based on religion, in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq.

The ministry conceded that it was a "public figure" for purposes of its defamation claim Engaging in a lengthy discussion of the meaning of "hate group", the court rejected the ministry's claim because "An alleged defamatory statement is generally not provable as false when it labels the plaintiff with a term that has an imprecise and debatable meaning." The court went on to say that even if there were a commonly understood definition of "hate group",  the defamation claim should still be dismissed:

To find actual malice just because SPLC publicized a meaning of “hate group” that conflicted with the common understanding of the term would severely undermine debate and free speech about a matter of public concern. This is because, even if the term had achieved a commonly understood meaning, that meaning would not be fixed forever, but rather could evolve through public debate. To sanction a speaker for promoting a genuinely held dissenting view of the meaning of “hate group” would be akin to punishing a speaker for advocating new conceptions of terms like “terrorist,” “extremist,” “sexist,” “racist,” “radical

The court rejected the ministry's Lanham Act claims, finding that they are subject to the same heightened First Amendment standards, not the lower commercial speech standards.

The court also rejected the ministry's claim that Amazon violated the public accommodation provision of the 1964 Civil Rights Act in excluding it from its charitable giving program, saying in part:

Even if it were assumed that the Amazon defendants are places of public accommodation subject to Title II, seeking to receive donations through the AmazonSmile program does not qualify as a service, privilege, or advantage, etc. protected by the statute’s anti-discrimination prohibition. This is because the Amazon defendants limit the ability to receive such donations exclusively to 26 U.S.C. § 501(c)(3) organizations and therefore do not make that ability open to the public. Moreover, an alternative ground for dismissing the claim is that Coral Ridge has not plausibly alleged that the Amazon defendants discriminated against it based on religion.

The court concluded its opinion:

The court should not be understood as even suggesting that Coral Ridge is or is not a “hate group.” It has merely held that SPLC’s labeling of the group as such is protected by the First Amendment....  

SPLC issued a press release announcing the decision.

Third Circuit: Ban On Religious Bus Ads Violates 1st Amendment

In Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, (3d Cir., Sept. 17, 2019), the U.S. Third Circuit Court of Appeals, in a 2-1 decision, held that the County of Lackawanna Transit System's ban on bus advertising that promotes religious views violates the First Amendment.  Plaintiff's proposed ad that featured the word "Atheists" along with the group's name and website was rejected under this policy. The majority said in part:

The 2013 policy’s ban on speech related to religion discriminates on the basis of viewpoint. And it is not a permissible limitation on COLTS’s forum, however that forum is characterized.

Judge Cowen dissenting said in part:

I do not believe that the transit system’s policy rises to the level of viewpoint discrimination. As the D.C. Circuit has recently explained, there is a critical difference between the prohibition of religious (and atheistic) perspectives on otherwise permissible subject matters—which constitutes viewpoint discrimination—and the exclusion of religion itself as a subject matter—which does not.

WNEP News reports on the decision.

Texans Sue Under the "Save Chick-fil-A" Law

As previously reported, in June Texas Gov. Greg Abbott signed a bill which prohibits any governmental entity in Texas from taking adverse action against any person because of the person's affiliation, contribution or support for a religious organization. The law was aimed at San Antonio's exclusion of Chick-fil-A from operating at the San Antonio's airport.  The restaurant chain has been criticized for its contributions to organizations that oppose same-sex marriage. Last week, five Texas residents filed suit in a state trial court under the new law seeking an injunction to prevent the city from continuing to exclude Chick-fil-A from the airport. The complaint (full text) in Von Dohlen v. City of San Antonio, (TX Dist. Ct., filed 9/5/2019), alleges in part:

The law of Texas prohibits governmental entities from taking “adverse action” against corporations based on their contributions to a religious organization. See Texas Gov’t Code § 2400.002. The City of San Antonio is violating this statutory command by excluding Chick-fil-A from the San Antonio airport on account of its donations to Christian organizations such as the Salvation Army and the Fellowship of Christian Athletes. 

20. For years, liberal activists have been attacking Chick-fil-A because it gives money to Christian organizations that accept the Bible as the Word of God.

21. Because these Bible-believing Christian organizations derive their notions of morality from the Bible rather than modern-day cultural fads, they oppose homosexual behavior and same-sex marriage.

San Antonio Family Association issued a press release announcing the filing of the lawsuit.

9th Circuit: FLDS Towns Discriminated Against Non-Church Members

In United States v. Town of Colorado City, Arizona, (9th Cir., Aug. 26, 2019), the U.S. 9th Circuit Court of Appeals upheld an injunction issued by an Arizona federal district court, finding that the FLDS-controlled town of Colorado City engaged in a pattern or practice of discriminating against non-members of the Fundamentalist Latter Day Saints.  In affirming a finding that the city violated 34 U.S.C. § 12601, the court concluded that the statute imposes liability on governments for patterns of unconstitutional conduct by their officers and agents.  In the suit, the United States charged that Colorado City (as well Hildale, Utah) "functioned as an arm of the Church and conspired with FLDS leaders to use the Towns’ municipal resources to advance Church interests." AP reports on the decision.

Suit Over Use of Civic Center For Religious Worship Is Settled

A joint consent decree (full text) was filed yesterday in a South Carolina federal district court in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, Aug. 19, 2019), settling a lawsuit over restrictions on the use of the Edisto Beach Civic Center.  The decree reflects the town's action rescinding its prohibition on renting out space in the Civic Center for “religious worship services.” The town also agreed to pay $3112 in damages plus plaintiff's attorney's fees. As explained in a press release from ADF:

Shortly after the lawsuit began, the U.S. Department of Justice filed a statement of interest in the case in favor of the church. The lawsuit argued that the town’s previously amended guidelines were inconsistent and amounted to viewpoint discrimination—allowing some groups “to engage in singing, teaching, social interaction, and similar expressive activities” at the center while denying “access to those groups that engage in those same activities from a religious viewpoint.”

Australian Rugby Star Sues Over His Firing For Instagram Post

In April, star Australian Rugby player Israel Folau was fired for breaching the Professional Players' Code of Conduct which requires players to "to treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability". The firing follows Folau's posting on Instagram a banner reading: "Drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolators - Hell awaits you." (Background.) Now, according to BBC News, Folau has filed suit against Rugby Australia seeking $10 million in damages and reinstatement. He alleges that he is the victim of religious discrimination for expressing his Christian religious views.  It is expected that the case will set important precedent for the balance between religious freedom and the interest in banning hate speech in Australia.

Judge Urges Plaintiffs To File New Religious Discrimination Suit

In TAL Properties of Pomona, LLC v. Village of Pomona, (SD NY, July 22, 2019), a New York federal district court refused to vacate its earlier judgment and reopen a religious discrimination case brought by a Jewish building developer against a New York village. Plaintiffs argued that a subsequent New York State Division of Human Rights report revealed new evidence of discrimination against Orthodox Jewish residents of the village.  The court, while ruling against plaintiffs, said:

Defendants should take little comfort in this outcome. The allegations presented on this motion, if even half true, are disturbing. I am obliged to stay within the confines of Rule 60(b), which in my judgment does not allow for this lawsuit to be reopened, but should Plaintiffs commence a new lawsuit, they may well be able to state a claim. And I do not see how Defendants will “suffer immense prejudice,” ... if they have to defend themselves on the merits. They may well be able to do so; I have no opinion as to the what the outcome of such a case would be, nor could I at this stage. But should Plaintiffs find it in their interest to pursue a case, airing the allegations and getting to the truth would hardly be a bad thing.

Religious Discrimination Claim By Security Guard Is Rejected

In Murphy v. Secretary, U.S. Department of Homeland Security, (ND WV, July 11, 2019), a West Virginia federal district court rejected religious discrimination claims brought plaintiff who was removed as a security guard at a U.S. Customs and Border Protection facility. Plaintiff who is Roman Catholic and whose wife is Buddhist claims he was removed because of a conversation about his religion that he had with a fellow employee. That fellow employee, a Southern Baptist, claimed that plaintiff had created a hostile work environment when plaintiff "placed his hands up, did a short dance, and asked ‘are you the ones that dance with snakes?'" Rejecting plaintiff's Title VII claim, the court said in part:

The Plaintiff fails to present any evidence that the prohibited conduct in which he engaged was comparable in seriousness to misconduct of other employees outside the protected class who received less severe discipline. Accordingly, he has not shown a prima facie case of discrimination.

The court also rejected plaintiff's 1st Amendment claims.

Texas Governor Signs "Save Chik-fil-A" Law

On Monday, Texas Gov. Greg Abbott signed into law S.B. 1978 (full text) which prohibits any governmental entity in Texas from taking adverse action against any person because of the person's affiliation, contribution or support for a religious organization. According to KXAN News:

The bill was brought forward by Republicans after San Antonio City Council voted in March to exclude Chik-fil-A from having airport concessions in their city because of the fast-food chain's owners' record on LGBT issues, specifically over donations to the Fellowship of Christian Athletes, the Salvation Army, and a George youth home; whose leaders advocate for marriage to be between one-man and one-woman.

The law has become known as the "Save Chik-fil-A bill."

New Report On Perceived Discrimination Against Various Groups

Yesterday the Pew Research Center released its 2019 report (full text) on the extent to which the American public perceives that there is discrimination against various discrete groups.  While surveying perceived discrimination against 9 different groups, the report headlines increasing discrimination against Jews:

Today, 64% of Americans say Jews face at least some discrimination – a 20-percentage-point increase from 2016; the share saying Jews face “a lot” of discrimination has nearly doubled, from 13% to 24%.

The report also finds that 82% believe that there is at least some discrimination against Muslims.  50% believe there is at least some discrimination against Evangelical Christians (a rise of 8% over 2016).

EEOC 2018 Data Released

The EEOC yesterday released its 2018 Fiscal Year 2018 Enforcement and Litigation Data.  During the fiscal year, he EEOC resolved 90,558 charges of discrimination and retaliation. Of these, 2,859 (3.7%) involved charges of religious discrimination.

Judge Overrules Jury Saying No Religious Discrimination By Homeowners Association Was Shown

In Morris v. West Hayden Estates First Addition Homeowners Association, Inc., (D ID, April 4, 2019), an Idaho federal district judge enjoined a Christian couple from hosting an elaborate Christmas display that violates Homeowner Association Rules. As described by the Spokane Spokesman-Review's report on the decision:

On one side, a devoutly Christian couple throwing extravagant celebrations for thousands at a home decked to the halls with 200,000 light bulbs. At times, even featuring a camel and donkey to re-create the Nativity scene.

On the opposite side, a Hayden homeowners association with specific rules that prohibited such excessive celebrations – and the noise that follows – in favor of a more modest showing of holiday spirit.

Despite a jury verdict in favor of plaintiffs, the court ruled as a matter of law that plaintiffs had not shown that the Homeowners Association discriminated against them on the basis of religion in violation of the Federal Fair Housing Act.  Plaintiff had pointed to a letter from the Homeowners Association which described rule violations that would be involved in the Christmas display.  The letter added that some of the subdivision residents are non-Christians.  The court said in part:

While January 2015 Letter was not drafted with lawyerly precision and contained a boorish reference to “undesireables,” it cannot be read as evidence that the Homeowners Association intended to discriminate against Plaintiffs because they were Christian. On this score, the Court notes that several members of the Board were practicing Christians. Furthermore, Board President Jennifer Scott is both a practicing Christian and married to a Christian minister. The Court is not suggesting that Christians cannot, per se, discriminate against other Christians. But, the fact that the Board was at least partially composed of practicing Christians significantly decreases the probability that the Board intended to discriminate against Plaintiffs based on a faith shared by both Plaintiffs and several Board members.

The court concluded that the jury was likely prejudiced by testimony which they were instructed to ignore relating to threats received by plaintiffs from other homeowners who were not Association board members.  Because the decision is likely to be appealed, the court held that if its conclusion of law was reversed, defendants should be granted a new trial or alternatively the jury's award of $75,000 in damages should be reduced to $4.

In Settlement Airbnb Agrees To Allow Listing of West Bank Properties

In a press release yesterday, an Israeli civil rights group announced a settlement in  Sliber v. Airbnb, one of a number of suits challenging Airbnb's decision to delist rentals in Israeli settlements in the West Bank. (See prior posting). Apparently the policy was neverin fact implemented.  Under the Settlement Agreement (full text) Airbnb will modify it policies to allow listings of all properties in the area, subject to its Terms of Service.  Sidestepping conflicting claims over claims to the West Bank, the Settlement Agreement says in part:

Airbnb takes on position on the Host-Plaintiffs' claims, or others claims, to legal title to the properties on which the accommodations are located and its standard Terms of Service requires that every Host agree and warrant not to offer any accommodation on Airbnb's platform that the Host does not own or have permission to make available for booking.

Senate Will Investigate Yale's Application of Its Non-Discrimination Policy To Public Interest Stipends

Senator Ted Cruz, Chairman of the Constitution Subcommittee of the U.S. Senate Judiciary Committee told Yale Law School Dean Heather Gerken in a letter (full text) sent last week that the Subcommittee is opening an investigation into the Law School's recent extension of its non-discrimination policy to summer and post-graduate public interest fellowships and loan forgiveness for public interest careers. According to Yale Daily News, the move comes in reaction to the law school's announcement:

We recently decided that the Law School will require that any employment position it financially supports be open to all of our students. If an employer refuses to hire students because they are Christian, black, veterans, or gay, we will not fund that position.

The policy change came after negative reaction, particularly by LGBTQ groups, to the Federalist Society's speaking invitation to a lawyer from Alliance Defending Freedom. In his letter, Sen Cruz said in part:

[I]t appears that the policy arose from unconstitutional animus and a specific discriminatory intent both to blacklist Christian organizations like the Alliance Defending Freedom and punish Yale students whose values or religious faith lead them to work there.

UPDATE: Here is Yale Law School's response to Sen. Cruz's letter, emphasizing that its policy only applies to hiring practices, and not to policy objectives of the organization. [Thanks to Jim Oleske for this update item].

No State Action In Denial of Club Leadership Position to Mormon High Schooler

In Ayers v. Fellowship of Christian Athletes, (ED CA, April 4, 2019), a California federal district court dismissed a religious discrimination suit filed under 42 USC Sec. 1983 against against the after-school non-curricular high school club, Fellowship of Christian Athletes ("FCA") and others involved with it.  FCA met on school grounds and was sponsored by a school teacher. Plaintiff Anne Ayers complains that she was denied a leadership position in FCA because of her Mormon faith.  The court held the fact the teacher and high school principal acquiesced in the denial is not enough to make the private parties involved "state actors."

Non-Liturgical Protestant Navy Chaplains Refile In Long-Running Discrimination Litigation

Last year, a D.C. federal district court dismissed a long-running lawsuit brought by  non-liturgical Protestant Navy chaplains alleging discrimination against them by the Navy. (See prior posting.)  However the court severed certain claims with leave to file them in other jurisdictions.  Earlier this month those severed claims were included in a complaint filed in a Virginia federal district court.  The complaint (full text) in Lancaster v. Secretary of the Navy, (ED VA, filed 3/1/2019), summarized the allegations as follows:

This case addresses 27 Non-liturgical Navy Chaplains plaintiffs’ longstanding claims of retaliation and low fitness reports...; constructive discharge because of unlawful FOS [failures of selection]; and interference with their ministry, speaking, preaching and worship services based on denominational prejudice.

This retaliation resulted in plaintiffs’ FOS and either separation for FOS or constructive discharges. Senior Navy chaplains are the perpetrators and sources of these claims, primarily Roman Catholic and/or Liturgical Protestants, in positions of authority, influence and supervision representing and acting under the authority of the Navy and its CHC. The actions represent a pattern and practice of illegal retaliation and discrimination based on denominational hostility and prejudice.

WAVY News reports on the lawsuit.