9th Circuit Remands Employees' Challenge to Vaccine Exemption Denial

In Keene v. City and County of San Francisco, (9th Cir., May 15, 2023), the U.S. 9th Circuit Court of Appeals reversed and remanded a decision from a California federal district court that denied preliminary relief to two city and county employees who were denied religious exemptions from CCSF's COVID vaccine mandate. The appeals court said in part:

The district court erroneously concluded that “[n]either Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine...."...

Beyond the district court’s factual error, its decision reflects a misunderstanding of Title VII law. A religious belief need not be consistent or rational to be protected under Title VII, and an assertion of a sincere religious belief is generally accepted.... 

The district court did not explain its conclusion that Appellants had not established sincerity beyond stating that there are “no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines . . . are . . . derived from murdered babies” and generally stating that personal preferences are not sincere religious beliefs. And CCSF offered no argument or evidence that Appellants’ beliefs are insincere. Absent any indication otherwise, it seems that the district court erroneously held that Appellants had not asserted sincere religious beliefs because their beliefs were not scientifically accurate. Remand is warranted for the district court to reevaluate Appellants’ claims applying the proper failure-to-accommodate inquiry....

Courthouse News Service reports on the decision.

Teachers Sue Over School District's Policy on Transgender Students

Suit was filed last month in a California federal district court by two middle school teachers who claim that their school district's policy on dealing with transgender students violates their free speech and free exercise rights, as well as the rights of parents.  The complaint (full text) in Mirabelli v. Olson, (SD CA, filed 4/27/2023), alleges in part:

According to EUSD’s policies, all elementary and middle school teachers must unhesitatingly accept a child’s assertion of a transgender or gender diverse identity, and must “begin to treat the student immediately” according to their asserted gender identity. “There’s no requirement for parent or caretaker agreement or even for knowledge.”... There is absolutely no room for discussion, polite disagreement, or even questioning whether the child is sincere or acting on a whim. 

... Once a child’s social transitioning has begun, EUSD elementary and middle school teachers must ensure that parents do not find out. EUSD’s policies state that “revealing a student’s transgender status to individuals who do not have a legitimate need for the information, without the student’s consent” is prohibited, and “parents or caretakers” are, according to EUSD, individuals who “do not have a legitimate need for the information,” irrespective of the age of the student or the specific facts of the situation....

Faced with EUSD’s immoral policies deceiving parents, both Mrs. Mirabelli and Mrs. West sought an accommodation that would allow them to act in the best interests of the children in their care—as required by their moral and religious convictions....

Mrs. Mirabelli’s and Mrs. West’s request was flatly denied.

The two plaintiffs devised a "joint statement of faith" for purposes of the lawsuit, even though they come from different religious traditions. One is Roman Catholic and the other a "devout Christian."  They alleged:

Plaintiffs’ faith teaches that God immutably creates each person as male or female; these two distinct, complementary sexes reflect the image of God; and rejection of one’s biological sex is a rejection of the image of God within that person.

... Plaintiffs also believe that they cannot affirm as true those ideas and concepts that they believe are not true, nor can they aid and abet the deception of others. Doing so, they believe, would violate biblical commands against dishonesty and lying.

Fox News reports on the lawsuit.

Oakland Catholic Diocese Files for Chapter 11 Reorganization.

The Catholic Diocese of Oakland, California announced yesterday that it is filing for Chapter 11 bankruptcy reorganization, saying in part:

The filing is necessary in light of the more than 330 lawsuits alleging child sexual abuse brought against RCBO under a recent California statute that allowed decades-old claims otherwise time barred and expired to be filed....

Most of the claims brought under the most recent California statute stem from allegations of sexual abuse that occurred in the 1960s, 70s, and 80s by priests who are no longer active in ministry and/or deceased. Chapter 11 is a court-supervised, transparent process that allows for the evaluation of the merits of each claim and gives claimants a say in the outcome and visibility into the proceedings and RCBO’s finances. With the Chapter 11 filing, legal actions against RCBO will stop, allowing RCBO to develop a plan of reorganization, based on assets and insurance coverage available to be used to settle claims with abuse survivors.

Catholic schools that operate in the diocese are separate entities and are not included in the bankruptcy filing.

Triable Issues of Fact Remain on Ministerial Exception in Age Discrimination Suit Against Catholic School

 In Atkins v. St. Cecelia Catholic School, (CA App., April 28, 2023), a California state appellate court held that there are triable issues of material fact as to whether the ministerial exception applies in the age discrimination case brought against a Los Angeles Catholic elementary school by plaintiff who was employed for 40 years as a part-time office administrator and for the last 19 years also as a part-time art teacher. Reversing the trial court's granting of summary judgment dismissing the lawsuit, the court said in part:

While St. Cecilia presented evidence that Atkins prayed with the students in her art class and promoted the ADLA’s six tasks of catechesis by encouraging “Christ-like” behavior in her class, there was no evidence that she ever taught, or was expected to teach, any type of religious curriculum. There was also no evidence that Atkins ever led any religious services, accompanied the students toreligious services, or prepared the students to participate in religious services or activities. Given that Atkins held dual roles at St. Cecilia as an art teacher and an office administrator, we cannot conclude on this record that educating students in the Catholic faith lay at the core of her job responsibilities. Considering the totality of these circumstances, St. Cecilia was not entitled to summary judgment based on the ministerial exception.

9th Circuit: Jehovah's Witness' Suit Over State-Employee Loyalty Oath Is Remanded

In Bolden-Hardge v. Office of the California State Controller, (9th Cir., April 3, 2023), the U.S. 9th Circuit Court of Appeals reversed and remanded a district court's dismissal of a suit by a Jehovah's Witness who challenged California's refusal to allow her to add a paragraph to the state-employee loyalty oath specifying that by signing it she is not giving up the right to exercise her religion which requires her primary loyalty be to God. Reversing dismissal of plaintiff's Title VII claims, the court said in part:

California’s apparent rationale for the oath requirement is to ensure that if an oath taker’s religion ever comes into conflict with the federal or state constitutions, religion must yield....

[T]o exempt the Controller’s Office from a federal accommodation requirement solely because the requested accommodation would violate state law would essentially permit states to legislate away any federal accommodation obligation....

Bolden-Hardge alleges a disparate impact... She contends that her religious beliefs are “consistent with [those] of other Jehovah’s Witnesses,” who also believe that their faith forbids them from swearing primary allegiance to any human government.... [T]his belief is in tension with the loyalty oath requirement....

The loyalty oath is a business necessity, the Controller’s Office argues, because public employees must be “committed to working within and promoting the fundamental rule of law while on the job.”... It asserts that allowing addenda that indicate an oath-taker’s primary loyalty to God would render the oath meaningless and undermine critical state interests. This assertion may well prove true and, if so, the Controller’s Office may be able to defeat Bolden-Hardge’s disparate impact claim at a later stage of the litigation. But this is not apparent from the face of her Complaint,,,,

Church Preschool Challenges California's Anti-Discrimination Rules for Food Program Participants

Suit was filed earlier this month in a California federal district court by a Christian church and its preschool challenging the state's agreement form that was required for participants in the state's Child and Adult Food Care Program. The complaint (full text) in Church of Compassion v. Bonta, (SD CA, filed 3/10/2023), alleges in part:

The new 2022 CDSS PSA required the Church and Dayspring to certify that their management of the CACFP Food Program will be “operated in compliance with all applicable civil rights laws and will implement all applicable non-discrimination regulations....

Because of the Church’s orthodox religious beliefs regarding human sexuality, it was unable to comply with the PSA when it submitted its application for the 2022-2023 year. Specifically, Dayspring signed the PSA statement, but deleted the words “sexual orientation” and “gender identity.”

The complaint alleges that the requirement violates plaintiffs' Free Exercise, Free Speech and Establishment Clause rights. National Center for Law & Policy issued a press release announcing the filing of the lawsuit.

9th Circuit Hears Oral Arguments on Fire Chief's Religious Discrimination Claim

On Monday, the U.S. Court of Appeals for the 9th Circuit heard oral arguments in Hittle v. City of Stockton (video of full oral arguments). In the case (full text of district court opinion), a California federal district court rejected religious discrimination and retaliation claims brought by Ronald Hittle, Stockton, California's former Fire Chief. He was fired in part for attending a two-day religious "Global Leadership Summit" with three other city employees on city time and using a city vehicle. First Liberty issued a press release on the oral arguments.

Catholic Diocese of Santa Rosa, California Files for Bankruptcy

Last week, the Catholic Diocese of Santa Rosa, California (the state's smallest Catholic diocese) announced that it is filing for Chapter 11 bankruptcy reorganization. According to the Diocese, the decision was made because of the large number of child sex abuse lawsuits filed against it during a 3-year window created by the California legislature for suits to be filed even though the statute of limitations had previously run. Some of the lawsuits relate to conduct that occurred as long as 60 years ago. The Diocese said in part:

These cases are too numerous to settle individually and so they have accumulated until the closing of the three-year window. Now that the window is closed, we have received notice of at least 160 claims and we have information that perhaps more than 200 claims have been filed in total against the Diocese.

 ... [I]n 2003 the Diocese faced similar circumstances but with many fewer cases. At that time excess property was sold, money borrowed and the Diocese paid approximately $12 million dollars with an additional $19 million coming from insurance. Since then, the Diocese has expended an additional $4 million on individual settlements. Now, facing at least 160 new cases, with excess property depleted, with insurance for many of the years either non-existent or exhausted it is impossible to see any way forward without recourse to the bankruptcy protections our Country makes available....

[W]e are deeply saddened that so many have endured abuse in the past and that the scourge of child sexual abuse is a part of our diocesan history. The present action of the Diocese is necessary and through this process we hope to provide for those who have come forward and who are yet to come forward at least some compensation for the harms they have endured.

Links to all the legal filings in the case are available at this website. Catholic News Agency reports on the bankruptcy filing.

Suit Challenges California's Exclusion of Religious Schools from Funding for Students With Disabilities

Suit was filed yesterday in a California federal district court by six Jewish parents and two Orthodox Jewish day schools challenging the exclusion of sectarian schools from receiving funds made available to California under the Individuals with Disabilities Education Act. The complaint (full text) in Loffman v. California Department of Education, (CD CA, filed 3/13/2023), alleges in part:

12. Defendants’ administration and implementation of California law excludes Plaintiffs from the generally available public funding necessary to provide an education to students with disabilities.

13. Plaintiffs merely seek to educate and care for children with disabilities and practice their Jewish faith on an equal basis with other California citizens. 

14. As the Supreme Court recently held, they are entitled to equal treatment because “religious schools and the families whose children attend them . . . ‘are members of the community too.’” Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2262 (2020). Excluding Plaintiffs from government programs—for no other reason than the fact that they are  religious—is “odious to our Constitution and cannot stand.”

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

Latest Attempt to Prevent City from Removing Cross from Public Park Fails On Procedural Grounds

Lion's Club of Albany, California v. City of Albany, (ND CA, March 9, 2023), is the latest installment in the ongoing litigation over the removal of a 28-foot tall, illuminated Latin cross located in a park which the city has purchased. (See prior related posting.) The Lioin's Club has an easement allowing it access to the cross to maintain it. After a prior decision finding that the city violated the Establishment Clause when it purchased the park and left the cross standing, the city instituted eminent domain proceedings in state court to acquire the easement so it could remove the cross. The state trial court judge granted the city prejudgment possession of the easement so the city could take down the cross and store it in a safe place pending the outcome of the eminent domain proceedings. The Lion's Club asked the state court of appeals to stay the trial court's order. That petition was denied for technical reasons that could have been cured. Instead, the Lion's Club came back to federal court seeking a temporary restraining order to prohibit removal of the cross.  In this decision, the court denied that request invoking the Rooker-Feldman doctrine which requires a federal court to dismiss a case when the plaintiff is essentially attempting to appeal a state court decision through the lower federal courts rather than by filing appeals through state court channels.

Suit Challenges California's Protection of Out-of-State Minors Seeking Gender-Affirming Health Care

Suit was filed yesterday in a California federal district court challenging the constitutionality of California Senate Bill 107 which protects out-of-staters obtaining gender transition services for a minor in California from the reach of laws in their home states that create civil or criminal liability for allowing a minor to receive such services. The complaint (full text) in Our Watch With Tim Thompson v. Bonta, (CD CA, filed 3/7/2023), claims that:

SB 107 will allow California doctors, via telehealth appointments, to prescribe cross-sex hormones to children in South Dakota or Utah, where gender-reassignment treatment is banned. 

... SB 107 also denies parents the right to access their child’s medical information. Section 1 of the bill mandates that doctors conceal a child's medical information from parents if it is related to "gender identity" drugs and procedures. S.B. 107 § 1. 

SB 107 amended California law to directly conflict with federal law by taking away other states’ rightful jurisdiction of children visiting California who seek – or claims to be seeking – puberty blockers, cross-sex hormones, irreversible gender reassignment surgery, etc. Section 4 of SB 107 updates the California Family Code to read: “[t]he presence of a child in this state for the purpose of obtaining gender-affirming health care or gender-affirming mental health care…is sufficient to meet the requirements” for California courts to exercise jurisdiction over a custody decision. S.B. 107 § 4. This ignores the proper and rightful jurisdiction of the child’s home state....

The suit alleges that the law violates constitutional rights of familial association as well as Article IV's full faith and credit clause. Advocates for Faith & Freedom issued a press release announcing the filing of the lawsuit.

Poll Worker Loses Free Exercise Challenge to Vaccine Mandate

In Wolfe v. Logan, (CD CA, Jan 25, 2023), a California federal district court in an In Chambers proceeding granted Los Angeles County officials' motion to dismiss numerous challenges by plaintiff to the county's COVID-19 vaccine mandate for poll workers. Rejecting plaintiff's Free Exercise challenge, the court said in part:

The policy, as alleged by Wolfe, is neutral and generally applicable. It does not directly target religious expression; the burden that a vaccination requirement places on religious practice is incidental. Wolfe alleges that the vaccination requirement is "without exception."... Because there are no exceptions, there is no individualized exemption process that might invite religious discrimination. Moreover, the vaccine requirement makes no distinction between secular or religious objections people might have to the vaccine; everyone is required to get one if they wish to act as a poll worker.... The policy could hardly be more neutral and generally applicable, and it is therefore not subject to strict scrutiny.

Church Can Move Ahead Against County in Suit on Covid Restrictions

 In Abiding Place Ministries v. Newsom, (SD CA, Feb. 14, 2023), a California federal district court allowed a church to move ahead with certain of its claims against San Diego County for enforcing Covid restrictions against public gatherings. The court held that the county's public health officer had qualified immunity against the damage claims because "there was no clear precedent in March or April 2020 that would have put every reasonable official on notice that promulgating orders restricting in person religious gatherings to slow the spread of the COVID-19 virus was clearly and definitively unconstitutional."

The court however allowed plaintiff to move ahead with Free Exercise, Freedom of Assembly, Establishment Clause, Free Speech and Equal Protection claims against the County. The court said in part:

The County threatened enforcement, penalties, and fines if Plaintiff did not comply with the County Order.... Plaintiff alleges this action by the County “forced the Church’s members to remain away from church against their will, under threat of punishment,,,,”  [T]he allegations of the FAC regarding the County’s alleged unconstitutional policy is sufficient overcome the County Defendants’ argument that it cannot be liable under Monell. Accordingly, the County Defendants’ motion to dismiss is DENIED on this ground.....

[The FAC] alleges the County’s Orders and Defendants’ enforcement “had the primary effect of inhibiting religious activity” and caused “excessive government entanglement with religion.” ... Plaintiff contends its religious services exempted from gatherings were treated differently than other public gatherings.... At this stage of the pleadings, the County Defendants’ motion to dismiss the second cause of action is DENIED....

Whatever level of scrutiny is applied, Plaintiff has alleged they were prohibited from engaging in protected speech and assembling in person for the purpose of worship while other gatherings promoting non-religious speech were permissible.... Taking those allegations as true, Plaintiff has plausibly alleged claims for violations of the First Amendment’s freedom of speech and freedom of assembly clauses....

Plaintiff contends Defendants “intentionally and arbitrarily categorized individuals and conduct as either ‘essential’ or ‘non-essential.’”... At the pleading stage, Plaintiff has alleged sufficient facts to state a claim for violation of the Equal Protection clause....

Ministerial Exception Bars Disability Discrimination Suit Against Zen Center

In Behrend v. San Francisco Zen Center, Inc., (ND CA, Feb. 14, 2023), a California federal district court dismissed on ministerial exception grounds a disability discrimination suit brought against a Zen Center by plaintiff who was participating in the Center's Zen Buddhism practice program. The program included both a "formal practice" (meditations, services, educational programs) and a "work practice" (cooking, dishwashing, bathroom and guest room cleaning, ringing bells) component. Finding that the ministerial exception applied, the court said in part:

[B]oth the formal practice and the work practice, “lie[s] at the very core of the mission of” SF Zen Center. Guadalupe, 140 S. Ct. at 2064. And so, drawing all reasonable inferences in Mr. Behrend’s favor, every reasonable trier of fact would be compelled to find his position implicates the fundamental purpose of the ministerial exception. The Work Practice Apprentice position was undisputedly a residential religious training program, and work practice was undisputedly a part of that religious training. Work as part of learning to practice the faith and work as part of training to lead the faith implicate the same fundamental purpose of the exception.

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.