9th Circuit Hears Oral Arguments In Title VII Case Against Salvation Army

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Garcia v. Salvation Army (video of full arguments). In the case, an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army. Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile work environment after she stopped attending Salvation Army services.  The court held that Title VII's religious organization exemption applies and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense. (See prior posting.) [Thanks to John Jackson for the lead.]

Arizona Voters Repeal Expansion of School Voucher Program

In Arizona on Tuesday, voters repealed Senate Bill 1431 which expanded the state's Empowerment Scholarship Accounts to make all public school students eligible to apply. The vote on the measure, known as Proposition 305, was 67% in favor of repeal, 33% opposed to repeal. The program allows students with disabilities (and certain other students) to opt out of public schools and instead receive state funds for use in private schools or for home schooling.

Free Exercise Defenses Rejected In Conviction of Temple Operator For Prostitution

In State of Arizona v. Elise, (AZ App., Nov. 1, 2018), an Arizona state appellate court upheld against free exercise defenses the conviction of the operator of the Phoenix Goddess Temple. Tracy Elise was convicted of money laundering, pandering, and operating the Temple as a house of prostitution.  The court rejected defendant's 1st Amendment defense, finding that the statutes under which defendant was convicted are neutral laws of general applicability.  It rejected defenses under the Arizona Free Exercise of Religion Act, finding that defendant "did not prove the sexual acts performed at the Temple were motivated by a religious belief, rather than for pecuniary gain."

Arizona's Anti-BDS Law Enjoined

In Jordahl v. Brnovich, (D AZ, Sept. 27. 2018), an Arizona federal district court granted a preliminary injunction barring enforcement of Arizona's statute requiring those contracting with the state to certify that they are not engaged in a boycott of Israel. Plaintiff Mikkel Jordahl's law firm contracts with the county jail district to provide legal advice to inmates.  Jordahl boycotts consumer goods and services from businesses that support "Israel's occupation of Palestinian territories." The court concluded that "Plaintiffs would at least be able to meet their burden of showing that the Certification Requirement is an unconstitutional condition on government contractors." The court said in part:

The Act thus encompasses and contemplates elements of expressive political conduct protected under the Constitution. As such, the Court finds it highly likely that Plaintiffs will be able to establish that “boycott,” as defined in the Arizona legislature, burdens expressive political activity protected under the First Amendment. The question then becomes whether the State has an adequate interest in restricting companies’ rights to engage in boycotts of Israel by conditioning their government contracts on a promise to refrain from such activity....

Here, the State has proffered two interests to justify the Certification Requirement: (1) an interest in regulating the State’s “commercial activity to align commerce in the State with the State’s policy objectives and values” and (2) an interest in preventing discrimination on the basis of national origin....

The legislative history of the Act calls these stated interests into doubt. The Act’s history instead suggests that the goal of the Act is to penalize the efforts of those engaged in political boycotts of Israel and those doing business in Israeli-occupied territories because such boycotts are not aligned with the State’s values.... If so, such an interest is constitutionally impermissible.

Payson Roundup reports on the decision.

RFRA Defense To Harboring Aliens Rejected At Pre-Trial Stage

An Arizona federal district court this week refused to dismiss criminal charges against Scott Warren, a volunteer with the humanitarian group No More Deaths.(Background). Warren was charged with concealing and harboring aliens to avoid their detention by immigration authorities. The complaint alleges that Warren gave two men who crossed the border illegally food, water, beds and clean clothes for three days.  In United States v. Warren, (D AZ, Sept. 17, 2018), the court rejected at this stage of the case Warren's defense that his actions are protected under the Religious Freedom Restoration Act.  The court held that RFRA is an affirmative defense to the charges against Warren, and should be decided through a trial rather than through a pre-trial motion to dismiss. [Thanks to Stephanie Inks via Religionlaw for the lead.]

Public Accommodation Law Upheld Against Religious Claims In First Post-Masterpiece Cakeshop Decision

In the first case to present issues similar to those in the Supreme Court's Masterpiece Cakeshop decision, an Arizona appellate court has largely vindicated the rights of a same sex couple.  In Brush & Nib Studio, LC v. City of Phoenix, (AZ App, June 7, 2018), owners of an art studio that designs wedding products, citing their Christian religious beliefs, refused to create customer-specific merchandise for same-sex weddings. They sued to obtain an injunction against application of Phoenix's public accommodation anti-discrimination law to them.  Rejecting their free speech argument, the court said in part:

the conduct at issue is not the creation of words or images but the conduct of selling or refusing to sell merchandise—either pre-fabricated or designed to order—equally to same-sex and opposite-sex couples. This conduct, even though it may incidentally impact speech, is not speech. Further, allowing a vendor who provides goods and services for marriages and weddings to refuse similar services for gay persons would result in “a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” Masterpiece Cakeshop, Ltd., slip op. at 10.

The court goes on to note:

Although Appellants are prohibited from posting discriminatory statements about their intent to refuse services for same-sex weddings, they may post a statement endorsing their belief that marriage is between a man and a woman and may post a disclaimer explaining that, notwithstanding that belief, Section 18-4(B) requires them to provide goods and services to everyone regardless of sexual orientation. Or they may post a disclaimer that the act of selling their goods and services to same-sex couples does not constitute an endorsement of their customers’ exercise of their constitutional right to marry or any other activities.

The court did, however, strike as unconstitutionally vague a portion of the public accommodation law that prohibited advertisements or notices that states or implies that a person, because of sexual orientation would be "unwelcome, objectionable, unacceptable, undesirable or not solicited."

The court went on to reject the studio owners' free exercise claims:

Appellants have failed to prove that Section 18-4(B) substantially burdens their religious beliefs.... Appellants are not penalized for expressing their belief that their religion only recognizes the marriage of opposite-sex couples. Nor are Appellants penalized for refusing to create wedding-related merchandise as long as they equally refuse similar services to opposite-sex couples. Section 18-4(B) merely requires that, by operating a place of public accommodation, Appellants provide equal goods and services to customers regardless of sexual orientation. Appellants are free to discontinue selling custom wedding-related merchandise and maintain the operation of Brush & Nib for its other business operations. What Appellants cannot do is use their religion as a shield to discriminate against potential customers.

Slate reports on the decision.

UPDATE: AP reports that that attorneys for Brush & Nib plan an appeal.

Arizona Appeals Court Invalidates Hotline Procedure For Overruling Parental Objections To Medical Treatment

In Glenn H. v. Hoskins, (AZ App., April 3, 2018), an Arizona state appeals court invalidated the "hot line" procedure that hospitals in Maricopa County use to obtain emergency orders to treat minors over the religious or other objections of their parents.  In the case, Jehovah's Witness parents objected to the use of blood transfusions in the treatment of their 14-year old son for bone cancer.  Apparently the boy agreed with his parents' decision.  Vacating the trial court's order authorizing medical treatment for the boy, the appeals court concluded that there are no provisions in Arizona statutes permitting courts to rule before a complaint has been filed, adding:

However well-intended the emergency hotline may be, the superior court lacks subject matter jurisdiction to entertain ex parte oral requests in the absence of specific statutory authorization.  See Redewill v. Superior Court, 43 Ariz. 68, 81 (1934) (“A court cannot do something not authorized by law, because it may think it is ‘just as good,’ or even better than the thing which the law does sanction.”)

AP reports on the decision.

Satanic Temple Sues City Over Invocation Policy

The Satanic Temple last week filed a federal lawsuit against the city of Scottsdale, AZ, challenging on federal and state constitutional grounds the invocation practices of the city.  The complaint (full text) in The Satanic Temple v. City of Scottsdale, Arizona, (D AZ, filed 2/23/2018), alleges that City Council meetings are regularly opened by prayers delivered only by members of Judeo-Christian faiths. An invocation originally scheduled to be given by a member of the Satanic Temple was cancelled, using the allegedly pretextual reason of connection to the community. Subsequently the mayor touted stopping the Satanists in an election pamphlet. The Scottsdale Independent reports on the lawsuit.

Hopi's Religious Concerns Give Them Standing To Challenge Snowbowl Water Use

In Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, (AZ App., Feb. 8, 2018), an Arizona state appeals court has given the Hopi tribe another chance to continue their long-running opposition to the use of recycled waste water to make artificial snow at Arizona's Snowbowl ski resort. (See prior posting).  Reversing the trial court's standing ruling, the appellate court said in part:

At issue is whether the Tribe sufficiently alleged standing to maintain a common law public nuisance claim. For a private party to bring a claim of public nuisance, it must allege both an interference with a right common to the public and a special injury different in kind from that of the public. The parties do not dispute that the Tribe sufficiently alleged that the use of reclaimed wastewater interferes with the public’s right to use and enjoy the Peaks. Because we find the Tribe sufficiently alleged the use of reclaimed wastewater causes its members a special injury, different in kind than that suffered by the general public, by interfering with places of special cultural and religious significance to the Tribe, we reverse the trial court’s dismissal....

FLDS Members Quietly Regaining Their Homes

The Salt Lake Tribune yesterday reported that after 12 years of litigation and impasses, a number of members of the polygamous FLDS Church are quietly working out arrangements with the United Effort Plan trust that will allow them to remain in their homes in Colorado City, Arizona. Most of the UEP properties in the adjoining town of Hilldale, Utah have already been sold off. Up to now, many FLDS members, on religious grounds, had refused to cooperate with the court-ordered restructuring of the Trust.

Wedding Invite Designers Lose Challenge To Public Accommodation Law

In Brush & Nib Studio L.C. v. City of Phoenix, (AZ Super. Ct., Oct. 25, 2017). an Arizona trial court rejected challenges by a studio that creates custom wedding invitation and wedding products to the city of Phoenix's public accommodation anti-discrimination law.  Plaintiffs, because of the Christian religious beliefs, intend to refuse to produce custom designed products for same-sex couples,  The court rejected plaintiffs' claim that this violates their free speech rights under the Arizona Constitution, concluding that any impact on speech is merely an incidental, content-neutral impact of an ordinance directed at combating discrimination on the basis of sexual orientation.  The law survives the intermediate level scrutiny applied in such cases.  The court also rejected plaintiffs' claim under the state's Free Exercise of Religion Act, saying in part:

Nothing about the ordinance has prevented the Plaintiffs from participating in the customs of their religious beliefs or has burdened the practice of their religion in any way.

In a press release, ADF says that an appeal is planned.  The press release also contains links to various pleadings in the case.  Arizona Republic reports on the decision.

Creationist Scientist Sues National Park Service

A suit was filed this week in  an Arizona federal district court by Dr. Andrew Snelling, who is employed by the Christian apologetics organization Answers in Genesis, challenging his treatment by the National Park Service.  The complaint (full text) in Snelling v. U.S. Department of Interior, (D AZ, filed 5/9/2017), alleges that National Park Service officials denied, and then limited, plaintiff's permit to undertake research at four sites in the Grand Canyon "because of Dr. Snelling’s Christian faith and scientific viewpoints informed by his Christian faith." The complaint alleges violations of the 1st and 5th Amendments as well as RFRA.  ADF issued a press release announcing the filing of the lawsuit.

Court Enters Housing and Policing Injunctions Against FLDS-Dominated Towns

In United States v. Town of  Colorado City, Arizona, (D AZ, April 18, 2017), an Arizona federal district court took major steps to attempt to normalize the housing and policing situation in the FLDS-controlled twin towns of Colorado City, Arizona and Hilldale, Utah.  The Justice Department sued the towns under the Fair Housing Act and the Policing Act (42 USC §14141).  In introducing its 54-page opinion setting out detailed injunctive relief, the court said;

The constitutional right to free exercise of religion, on the one hand, and the statutory right to housing and constitutional policing, on the other hand, are vitally important to a viable, peaceful community.... Denial of housing rights and lawful policing to some residents at the behest of the Fundamentalist Church of Jesus Christ of Latter Day Saints ... has cost the cities dearly – millions of dollars – in the past.

.... It is now time for the citizens of Colorado City and City of Hildale to come together and accept the fact that communal ownership of residential property in the Defendant Cities is a thing of the past. All residents of the Defendant Cities must be afforded equal access to housing and residential services, to nondiscriminatory law enforcement, and to free exercise of their religious preferences that are not contrary to law. By this judgment and decree, the court hopes to assist the Defendant Cities and their residents in advancing the protection of civil rights to which they are entitled.

The court ordered the cities to engage an independent monitor to assure housing compliance and hiring of an outside consultant to aid in reorganization and policy changes in the Colorado City Marshall's Office.

Suit Charges FLDS Towns With Discrimination Against Non-FLDS Members

The FLDS-controlled towns of Colorado City, Arizona and Hilldale, Utah, along with the FLDS Church, were sued last week in federal district court for discriminating against non-members of the Church. The allegations in the complaint (full text) in Prairie Farms. L.L.C. v. Town of Colorado City, (D AZ, filed 10/12/2016) are summarized in a news article from the Phoenix New Times:

Alleged illegal arrests by a cult-run police force have spurred a new federal lawsuit against two polygamous towns on the Arizona-Utah border.

Three businessmen who are former members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints allege ... that officials in the rural towns ... violated their constitutional rights. They claim the officers with the Colorado City/Hildale marshal's office arrested two of them for trespassing on land they were leasing, that the marshal's office failed to investigate reports of vandalism on the leased land, and that Colorado City officials refused to provide water and garbage services to the property.

Court Refuses To Bar Enforcement of Anti-Discrimination Law Against Wedding Invitation Designers

In Brush & Nib Studio LC v. City of Phoenix, (AZ Super. Ct., Sept. 19, 2016), an Arizona trial court refused to issue a preliminary injunction to prevent enforcement of Phoenix, Arizona's public accommodation anti-discrimination ordinance against a business that designs custom wedding invitations. Refusing to dismiss on ripeness grounds, the court held that the law does not violate plaintiffs' free speech or free exercise rights. Rejecting plaintiffs' compelled speech argument, the court said in part:

Here, there is nothing about custom wedding invitations made for same-sex couples that is expressive.... The printing of the names of a same-sex couple on an invitation or thank you note does not compel Plaintiffs to convey a government mandated message, such as an endorsement or pledge in favor of same-sex marriages, nor does it convey any message concerning same-sex marriage.... It is absurd to think that the fabricator of a wedding invitation for a same-sex couple has endorsed same-sex marriage merely by creating or printing that invitation. Moreover, there is nothing about the creative process itself, such as a flower or vine or the choice of a particular font or color, that conveys any pledge, endorsement, celebration, or other substantive mandated message by Plaintiffs in regard to same-sex marriage.

Responding to plaintiffs' free exercise challenge, the court said in part:

the sale of wedding invitations free of the names of same-sex couples clearly is not the exercise of religion, and certainly is not a burden on the free exercise of their religion. Nothing about the ordinance has prevented the Plaintiffs from participating in the customs of their religious beliefs or has burdened the practice of their religion in any way.

ADF which represented plaintiffs in the case issued a press release responding to the decision. The press release is accompanied by links to pleadings in the case and to the relevant city ordinances.

Title VII's Religious Organization Exemption Protects Salvation Army

In Garcia v. Salvation Army, (D AZ, Sept. 12, 2016), an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army by a former social services coordinator for the organization.  Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile work environment after she stopped attending services at the Salvation Army’s Estrella Mountain Corps where she was employed.  The court held that Title VII's religious organization exemption applies to plaintiff's claim, and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense.

Suit Says Arizona Charter School Teaches Religious Curriculum

Yesterday Americans United filed a federal court lawsuit alleging that an Arizona public charter school teaches a religiously-based required American Government course, and interjects religion in a number of other parts of its curriculum. The complaint (full text) in Doe v. Heritage Academy, Inc., (D AZ, filed 9/7/2016), alleges that the taxpayer-funded charter school with three campuses in Arizona violates the Establishment Clause as well as the Arizona constitution by providing religious education to its students.  The required American Government class is taught by the school's founder and principal, Earl Taylor, Jr., and uses materials from the National Center for Constitutional Studies-- an organization founded by Taylor. The complaint alleges in part:

In class, Taylor teaches the students that the Ten Commandments — including those that mandate worship of God — must be obeyed in order to attain happiness; that socialism violates God’s laws; and that true patriots believe in the “universal religion of all mankind,” the tenets of which ...  incorporate the beliefs of some Christian denominations.

AU issued a press release announcing the filing of the lawsuit. [Thanks to Jeff Pasek for the lead.]

Court Again Denies Minister Right To File Amended Complaint In Building Code Dispute

In Salman v. City of Phoenix, (D AZ, June 6, 2016), an Arizona federal district court denied a motion by an Arizona minister to file a fourth amended complaint in a suit challenging Phoenix's application of its building code to his use of his house for weekly Bible study meetings and worship.

Wedding Artists Challenge City's Public Accommodation Anti-Discrimination Ordinance

Two owners of an upscale hand painting and calligraphy business filed suit in an Arizona state court yesterday challenging the provision in the Phoenix city code, adopted in 2013, that bars public accommodations from discriminating on the basis of sexual orientation or gender identity. The 88-page pre-enforcement complaint (full text) in Brush & Nib Studio, LC v. City of Phoenix, (AZ Super. Ct., filed 5/12/2016), contends that plaintiffs' free speech, free exercise and equal protection rights are infringed by requiring them to produce wedding invitations and similar wedding art for same-sex marriages. It also asserts that the statutory provision barring advertisements or notices that suggest discriminatory practices prevents plaintiffs from explaining their religious and artistic reasons for refusing to create custom art for same-sex weddings. An ADF press release announced the filing of the lawsuit.

Court Refuses To Allow Amended Complaint On Building Code Application To Home Bible Study Groups

In Salman v. Phoenix, (D AZ, Jan. 27, 2016), an Arizona federal district court refused to permit an ordained minister who used his home for weekly Bible study meetings  and worship to file a third amended complaint seeking damages and injunctive relief against the city's application of its building code to his activities.