9th Circuit Hears Arguments on Youth Ministry's Access to State Grants

Last week (Nov. 20) the U.S. 9th Circuit Court of Appeals heard oral arguments in Youth 71Five Ministries v. Williams (video of full oral arguments). In the case, the state of Oregon canceled $410,000 in grants to Youth 71Five when the state discovered that the Ministries only hires those that share its faith.  This violates of the state's "Certification Rule" that bars grantees from discriminating in their employment practices.  An Oregon federal district court denied the Ministries' request for a preliminary injunction.  In August 2024, the 9th Circuit Court of Appeals issued an injunction pending appeal allowing 71Five to participate in the 2023-25 Oregon Youth Community Investment Grant Program. (See prior posting.) It also ordered an expedited schedule for briefing and arguing the appeal. That is the appeal which the 9th Circuit heard last week. World reports on the decision.

Volunteer Prison Minister's Challenge to Requirements for Addressing LGBTQ Inmates Is Rejected

In Kuenzi v. Reese, (D OR, Oct. 28, 2024), an Oregon federal district court rejected 1st Amendment challenges to an Oregon prison system rule requiring volunteers in prison facilities to sign an acknowledgement statement that calls for volunteers to use appropriate gender pronouns when addressing transgender, intersex and non-binary adults in custody.  Plaintiff, a former volunteer Christian minister in a women's correctional facility, contends that this requirement conflicts with her free exercise and free speech rights. She is no longer allowed to minister at the prison facility without signing the statement which conflicts with her religious belief that gender is an immutable characteristic determined by biology, and that homosexual conduct is sinful. The court concluded that the prison policy is neutral and generally applicable and that:

... the policy is rationally related to ODOC’s legitimate interest in “promot[ing] a respectful environment that reinforces prosocial norms for ODOC’s AICs.” 

It also concluded that:

Because Plaintiff was speaking as an employee and not as a private citizen, her speech falls outside the protections of the First Amendment.

Organization Did Not Show That Its Anti-Abortion Views Are Religious Beliefs

In Oregon Right to Life v. Stolfi, (D OR, Sept. 30, 2024), an Oregon federal district court refused to issue a preliminary injunction against Oregon's requiring Oregon Right to Life to cover abortion and certain contraceptives in its employee health plan. The organization asserted a 1st Amendment free exercise claim.  The court said in part:

... Plaintiff is not affiliated with any religious practice or institution and does not have any religious requirement for being an employee or director.  The “specific purpose” and “personal life perspectives” that Plaintiff’s directors are required to subscribe to is free of any religious elements, requiring only that they subscribe to a belief in the importance of human life and oppose abortion, euthanasia, assisted suicide, and “life-destroying research.”  As noted, Plaintiff has over 25,000 members, who are not required to subscribe to any religious belief and are responsible for electing two members of Plaintiff’s board of directors.  Other than a fleeting reference to “Judeo-Christian ethics,” there is nothing in the articles of incorporation that would suggest any religious element in Plaintiff’s organization.   

There are many reasons why an individual or entity might oppose abortion and contraception, which range from deeply held religious conviction to the purely philosophical.  Plaintiff asserts in this litigation that its reasons, as an organization, are religious, but that assertion is not fully supported by the record.  It is not necessary for the Court, at this early stage of the case, to conclusively resolve whether Plaintiff’s beliefs are, in Plaintiff’s own scheme of things, religious.  But the Court’s review of Plaintiff’s organizational documents and requirements for membership, employment, and leadership cast doubt on whether Plaintiff’s opposition is genuinely religious in nature.  This doubt undermines Plaintiff’s showing of likely success on the merits.  

Defendant also challenges whether Plaintiff actually holds the beliefs professed in the Complaint.  As noted, a major aspect of Plaintiff’s objection the RHEA mandate is the provision of certain forms of contraception.  Plaintiff has maintained a health benefit plan through Providence Health Plans since 2015, years prior to the passage of the RHEA, and now objects that Providence Health Plans is not acceptable to them because it covers challenged forms of contraception.  The fact that Plaintiff maintained benefits through Providence Health Plans prior to the passage of the RHEA, despite its provisions concerning contraception, likewise casts doubt on Plaintiff’s claim.

Jail Guard's Required Training in Treatment of LGBTQI+ Inmates Did Not Violate His Free Exercise Rights

In Goodknight v. County of Douglas, (D OR, Aug. 6, 2024), an Oregon federal district court rejected religious discrimination claims brought by a county jail guard who objected to required LGBTQI Community Training. The training was impelled by the recently enacted federal Prison Rape Elimination Act.  According to the court:

Plaintiff alleges this Training required employees “to affirm and validate homosexual unions and the self-proclaimed ‘transgender,’ ‘non-binary,’ or ‘genderqueer’ identities of AICs and fellow employees.”...

Plaintiff concluded by confirming his believe that “PREA standards demands [sic] we deny, [sic] God, science, and the common sense verified by our very eyes. This is a Pandora’s box of perversion I refuse to help open. I appeal to you one last time, please repent of this sinful path for the sake of the county, inmates, and my fellow deputies....

Rejecting plaintiff's claims under Title VII and state law, the court said in part:

Despite Plaintiff’s attempt, intentionally or otherwise, to conflate private citizen cases with public employee cases, the fact that the dispute here concerned training regarding how Defendant processed and housed LGBTQI+ individuals—i.e., that the Training concerned how Defendant wanted Plaintiff to perform his basic job duties—demonstrates Plaintiff’s free speech claim necessarily fails. ... 

Plaintiff’s specific factual allegations, along with the Court’s own common sense, confirm that the speech here concerned nothing more than Plaintiff’s dispute with his supervisors over how to perform his job when dealing with certain AICs....

Plaintiff alleges Defendant violated his rights under the First Amendment’s Free Exercise clause when Defendant “lent it’s power to one side in a controversy over religious dogma – specifically, the controversy over whether what [sic] constitutes respectful treatment of persons who self-identify as LGBTQI+.”... This argument is meritless.  ...

Plaintiff’s attempt to conflate ‘government employers forcing their employees’ with “the government forcing its citizens’ ignores longstanding, black‐letter law recognizing that “[a] public employer ‘may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large.’”

Requiring Conditional Use Permit Is Not Substantial Burden Under RLUIPA

In Athey Creek Christian Fellowship v. Clackamas County, (D OR, July 30, 2024), an Oregon federal district court dismissed a RLUIPA challenge to the denial of a Conditional Use Permit for construction of the second phase of a church building. The court said in part: 

... [P]laintiff filed this suit in November of 2022, alleging that the zoning ordinance that required churches to apply for a conditional use permit and did not allow churches as a primary use is facially invalid under the RLUIPA, and that the County violated plaintiff’s rights under the RLUIPA, the First Amendment, and the Oregon Constitution by not allowing plaintiff to build phase 2 of the project and forcing plaintiff to re-apply for a new or modified conditional use permit. 

The purported burden here then includes the County’s conclusion that the 2006 CUP has expired, and the County’s resulting insistence that plaintiff must now apply to build phase 2 under the new “primary use” .... Neither one of these carries the traditional hallmarks of a substantial burden under the RLUIPA....

Notably, the record in case is missing a common, even pervasive, attribute in those cases where the plaintiffs succeeded on a substantial burden claim, namely that the relevant zoning authority displayed some outward hostility toward or pretextual decision-making about the plaintiffs’ proposed religious use....

... [P]laintiff has not shown why seeking an extension of the 2006 CUP or timely obtaining the relevant building permits for phase 2 were a substantial burden to its religious exercise....

The same reasoning applies to the alleged burden that resulted from the County’s insistence now that plaintiff must now re-apply as a primary use. It is not a substantial burden to file an application for a proposed land use.

9th Circuit Hears Oral Arguments on Requiring Adoptive Parents to Support Gender Identity of Adoptees

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full oral arguments) in Bates v. Pakseresht. In the case, an Oregon federal district court rejected plaintiff's free exercise and free speech challenges to the state's denial of her application to be certified to adopt children through the Oregon Department of Human Services.  Plaintiff was denied certification because, consistent with her Christian religious beliefs, she would not agree in advance to support an adoptive child's sexual orientation, gender identity, and gender expression. (See prior posting.) Oregon Capital Chronicle reports on the oral arguments.

Qualified Immunity Granted in Denial of Religious Exemption from Vaccine Mandate

In Babiy v. Oregon Health and Science University, (D OR, April 22, 2024), an Oregon federal district court dismissed claims for damages brought against a medical school and involved individuals by a patient access specialist who was denied a religious exemption from its Covid vaccine mandate. The University's policy was to deny religious exemptions where their claim was based solely on fetal cell concerns. The court said in part:

... Plaintiff has failed to prove that it was clearly established at the relevant time that the Doe Defendants were barred from (1) attempting to distinguish between religious and secular objections to a vaccine or (2) in that effort, denying exemptions to a state-mandated vaccine mandate to employees who expressed ostensibly religious objections to the use of fetal cells in the development of the vaccine. Accordingly, the Court grants Defendants’ Motion and dismisses Plaintiff's second claim under the doctrine of qualified immunity to the extent that Plaintiff seeks damages. The Court, however, denies Defendants’ Motion to the extent that Plaintiff seeks declaratory or injunctive relief under her first amendment claim.

Restricting Frequency of Church Free Meal Services Violates RLUIPA

 In St. Timothy's Episcopal Church v. City of Brookings, (D OR, March 27, 2024), an Oregon federal district court held that a zoning ordinance that limits the number of days that a church can serve free meals to people in need violates the federal Religious Land Use and Institutionalized Persons Act. St. Timothy's has been offering free lunchtime meals since 2009 and sees this as fundamental to their Episcopalian faith. Most recently meals have been served three to four times per week. In 2021, the city amended its zoning code to require a conditional use permit for "benevolent meal services" in residential districts and limited such services to two times per week. Finding that the city has burdened the church's religious exercise without a compelling interest in violation of RLUIPA, the court said in part:

[P]rotecting the public welfare, maintaining peace and order, and preventing crime are all certainly compelling government interests in a broad, general sense. However, the City has not articulated how the specific provisions of the Ordinance that limit meal service to two days per week ... serve to protect public welfare, maintain peace and order, or prevent crime in practical application. The Court can find no logical, causal relationship between the limitation and these interests....

Here, the City has long permitted, and arguably even supported benevolent meal services at St. Timothy's, without limitation as to the number of days such meals could be provided. This undisputed fact is fatal to their argument that the Ordinance's restrictions are intended to promote public welfare, peace, and order, and to deter crime....

... [T]he City has not shown that it considered and rejected the efficacy of less restrictive measures.

Christian Organization Challenges Grant Rule Barring Religious Favoritism in Hiring

Suit was filed this week in an Oregon federal district court challenging an anti-discrimination rule of the Oregon Department of Education that disqualified a Christian youth-mentoring ministry from receiving $410,000 in grants for which it had initially been selected. The Christian group requires all of its board members, its 30 employees and 100+ volunteers to adhere to the organization's Statement of Faith. The Grant Program's rule bars grantees from favoring co-religionists as employees or volunteers. The complaint (full text) in Yourh 71Five Ministries v. Williams, (D OR, filed 3/4/2024), contends that the rule violates its Free Exercise and Free Expression rights, saying in part:

Because it emphasizes one-to-one mentoring and creating authentic, trusting relationships, 71Five Ministries depends on its staff and volunteers to fulfill the ministry’s distinctly Christian mission and purpose....

Defendants cannot disqualify otherwise eligible religious organizations from participation in otherwise available government benefit programs, including the Youth Community Investment Grant Program, “solely because of their religious character,”

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

Denial of Religious Exemption to Vaccine Mandate Did Not Violate Title VII

 In Craven v. Shriners Hospital for Children, (D OR, Jan. 2, 2024), an Oregon federal district court dismissed a Title VII religious discrimination claim brought by a hospital maintenance technician who was fired after his claim for a religious exemption from the hospital's Covid vaccine mandate was denied. The court concluded that plaintiff had not adequately alleged that his objections to the vaccine were religious in nature. It also concluded that filing an amended complaint would be futile.  The court said in part:

As Plaintiff wrote, he objected to the COVID-19 vaccine because its “ingredients include carcinogens, neurotoxins, animal viruses, animal blood, allergens, and heavy metals,” which “can cause serious harm and even death to the body.” ... This judgment—on the potential danger of the vaccine due to its physical composition—was scientific and medical, not religious. Of course, this Court does not question the sincerity of Plaintiff’s belief that his “body is a temple of the Holy Spirit.”...  But Plaintiff’s beliefs about the composition of his body and that of the vaccine are independent of one another; whether Plaintiff’s body is a temple has no bearing on whether the vaccine contains carcinogens or whether, as a result of its ingredients, it “can cause serious harm.” 

Therefore, Plaintiff’s allegations, even if fleshed out in a subsequent filing, would fail to state a claim of religious discrimination under Title VII.

Court Upholds Oregon's Rules for Approving Adoptive Parents Over Free Exercise and Free Speech Challenges

In Bates v. Pakseresht, (D OR, Nov. 14, 2023), an Oregon federal district court, in a 53-page opinion, rejected plaintiff's challenge to the state's denial of her application to be certified to adopt children through the Oregon Department of Human Services.  Plaintiff was denied certification because, consistent with her Christian religious beliefs, she would not agree to support an adoptive child's sexual orientation, gender identity, or gender expression. Rejecting plaintiff's free exercise claim, the court said in part:

A willingness to take in an LGBTQ+ child, but disavow their identity, cannot by analogy be compared to a business owner's willingness to provide some services, but not others, to LGBTQ+ individuals. To make such a claim demonstrates a lack of understanding of the importance of providing a child with the holistic support and care required to produce well-rounded and confident adults....

The court also rejected plaintiff's free speech claim, saying in part:

[T]he issue in this case is not that plaintiff is seeking to provide religious instruction to her child. She is seeking to provide religious instruction to a child in the care and custody of the state. She does not possess the same rights as a parent in this situation because the state is the de facto parent. Although plaintiff's ultimate goal is adoption, she is seeking a certification that grants her only the opportunity to house and care for a child under the state's umbrella of protection.

Feds Settle Suit Brought by Native American Tribes Over Destruction of Sacred Site

 A settlement between several federal agencies and Native American tribes in Oregon was reached last week in a case challenging the government's destruction of a small sacred site near Mount Hood when it widened a highway.  (See prior related posting.) The 9th Circuit had dismissed the case as moot, and plaintiffs filed an appeal with the U.S. Supreme Court.  Last week the parties filed a Joint Stipulation to Dismiss (full text) in Slockish v. U.S. Department of Transportation, (Sup. Ct, Oct. 5, 2023). Under the settlement, the government is to construct a tree or plant barrier to protect the site, allow access to an existing quarry for ceremonial and cultural uses, and allow plaintiffs to rebuild a stone altar on the site. [Note that the filed stipulation appears to be erroneously dated "2022" instead of "2023". The Supreme Court docket for the case confirms that 2023 is the correct date.] Oregon Capital Chronicle  and AP report on the settlement.

New Decisions on Covid Vaccine Religious Objection Claims

Decisions have been handed down in the past few days in several cases in which employees who were denied a religious exemption or accommodation from an employer's Covid vaccine mandate have sued:

In Dicapua v. City of New York, (Richmond Cty. NY Sup. Ct., Sept 18, 2923), 16 employees of the Department of Education brought suit.  A New York state trial court held that ten of the employees should have been granted a religious exemption, saying in part:

This Court sees no rational basis for not allowing unvaccinated classroom teachers in amongst an admitted population of primarily unvaccinated students.

In Mora v. New York State Unified Court System, (SD NY, Sept. 19, 2023), a New York federal district court dismissed a suit by a Poughkeepsie City Court Judge, saying in part:

Here, the Vaccine Mandate has been repealed, and plaintiff has been reinstated to his full in-person duties. Therefore, plaintiff has not alleged an ongoing violation of federal law, or a need for prospective relief...

Damage claims were  dismissed in part on the basis of 11th Amendment immunity and in part because Title VII does not apply to government appointees on the policymaking level. His Free Exercise claim was denied because the vaccine mandate was a neutral, generally applicable rule. Retaliation and equal protection claims were also rejected.

In Trusov v. Oregon Health & Science University, (D OR, Sept. 20, 2023), an Oregon federal district court dismissed some of the claims brought by a registered nurse who was denied a religious accommodation, and deferred consideration of another of her claims.  The court said in part:

Regarding Defendants’ challenge to Plaintiff’s First Claim, alleging religious discrimination in employment, the Court finds that OHSU’s arguments about undue hardship must await a motion for summary judgment, at which time the Court may consider matters outside the pleadings and, if necessary, motions to exclude expert testimony. Regarding Defendants’ challenge to Plaintiff’s second claim brought under § 1983 against the individual Defendants, the Court dismisses that claim under the doctrine of qualified immunity. Regarding, Defendants’ challenge to Plaintiff’s request for prospective declaratory relief, the Court dismisses that request for lack of standing.

In Mathisen v. Oregon Health & Science University, (D OR, Sept. 19, 2023), an Oregon federal district court rejected claims brought by a research laboratory manager who was denied a religious exemption as well as a medical exemption. The court said in part:

In support of their motion to dismiss, Defendants argue that Plaintiff’s Title VII claim fails because OHSU offered to accommodate Plaintiff’s religious beliefs by offering an accommodation—masking—to which Plaintiff has alleged no objection based on religion....

Plaintiff’s assertion that masking would not promote safety is a secular objection, not a religious one. That objection, therefore, does not establish that the offered accommodation to her religious objection was not reasonable for purposes of her claim of religious discrimination.

Other of Plaintiff's claims were dismissed on qualified immunity and standing grounds.

Supreme Court GVR's Case on Bakers' Refusal To Design Cake For Same-Sex Wedding

On Friday, in Klein v. Oregon Bureau of Labor and Industries, (Docket No. 22-204, GVR'd June 30, 2023) (Order List) the U.S. Supreme Court granted certiorari, vacated the lower court's judgment and remanded the case to the Oregon Court of Appeals for further consideration in light of the Supreme Court's decision the same day in 303 Creative LLC v. Elenis. At issue in Klein was a finding by the state Bureau of Labor and Industries that the owners of Sweetcakes bakery violated Oregon's public accommodation law when they refused on religious grounds to design and create a wedding cake for a same-sex wedding. (See prior posting.)

Suit Challenges Oregon Requirement That Adoptive Parents Support Child's Sexual Orientation and Gender Identity

Suit was filed this week in an Oregon federal district court challenging a rule of the state's Department of Human Services that persons seeking to adopt children must agree to accept and support the sexual orientation and gender identity of any child placed with them. The complaint (full text) in Bates v. Pakseresht, (D OR, filed 4/3/2023), contends that the rule violates the free expression, free exercise and equal protection rights of plaintiff whose Christian religious beliefs do not permit her to comply with this requirement.  The complaint reads in part:

Under this rule, caregivers must agree to use a child’s preferred pronouns, take a child to affirming events like Pride parades, or sign the child up for dangerous pharmaceutical interventions like puberty blockers and hormone shots—no matter a child’s age, no matter whether a child actually desires these things, and no matter how deeply these requirements violate the caregiver’s religious convictions.

This puts Jessica in a bind. Like countless people of faith, Jessica believes that our biological sex carries spiritual significance for who we are and how we should act. Jessica cannot affirm that a male is or should try to be female or vice  versa....

... Because she will not agree to use a hypothetical child’s preferred pronouns or facilitate a hypothetical gender transition, she cannot even adopt a newborn who has no concept of, much less a desire for, these things.

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

State Religious Discrimination Claims Against Airline Union Are Pre-empted By Federal Law

In Brown v. Alaska Airlines, Inc., (WD WA, Nov. 23, 2022), a Washington federal district court dismissed state-law religious discrimination claims brought against the flight attendants' union by two of its members.  Alaska Airlines fired plaintiffs because they posted comments on the company's internal intranet opposing the Airline's support for a federal statute that would add sexual orientation and gender identity to federal anti-discrimination laws. Plaintiffs claimed their comments were grounded in their religious beliefs. The Union unsuccessfully represented the flight attendants at a hearing appealing their termination.  Plaintiffs then sued claiming not only that Alaska Airlines discriminated against them because of their Christian faith, but that the Union did not defend them as vigorously as it defends other flight attendants because of the flight attendants' religious beliefs. The court dismissed the flight attendants' claims against the Union that were brought under Washington and Oregon anti-discrimination laws.  It concluded that that the "duty of fair representation" stemming from provisions of the federal Railway Labor Act pre-empts claims brought under state anti-discrimination laws where the charge is that a union did not adequately represent an employee in the grievance process.

9th Circuit: Religious School's Challenge to Covid Restrictions Is Moot

In Horizon Christian School v. Brown, (9th Cir., Nov. 17, 2022), the U.S. 9th Circuit Court of Appeals held that the free exercise and parental rights challenges to the Oregon governor's previous Covid restrictions on in-person school classes is moot. The claim for nominal damages does not prevent mootness because the suit against the governor in her official capacity is barred by the 11th Amendment. The court denied leave to amend plaintiffs' complaint because defendant had qualified immunity.  Judge O'Scannlain filed a concurring opinion saying that if there were not qualified immunity, he would hold that the governor's order impinged a fundamental constitutional right.

9th Circuit: Requiring Beauty Pageant to Include Transgender Female Violates Its Free Speech Rights

In Green v. Miss United States of America, LLC, (9th Cir., Nov. 2, 2022), the U.S. 9th Circuit Court of Appeals held that it violates the free speech rights of the Miss USA Pageant to require it under Oregon's Public Accommodations Act to include a transgender female in the Pageant. The court's majority, in an opinion by Judge VanDyke joined by Judge Bea, said in part:

Requiring Miss United States of America to allow Green to compete in its pageants would be to explicitly require Miss United States of America to remove its “natural born female” rule from its entry requirements. This in turn would directly affect the message that is conveyed by every single contestant in a Miss United States of America pageant. With the Pageant’s “natural born female” rule, every viewer of a Miss United States of America pageant receives the Pageant’s message that the “ideal woman” is a biological female, because every contestant is a “natural born female.” If the Pageant were no longer able to enforce its “natural born female” rule, even if a given transgender contestant or contestants never openly communicated to anyone outside of the Pageant their transgender status and were otherwise fully indistinguishable from the “natural born female” contestants (at least as presented in the Pageant)—and more fundamentally, even if no transgender contestants were to enter a Miss United States of America pageant—the Pageant’s expression would nonetheless be fundamentally altered. Without the “natural born female” rule, viewers would be viewing a fundamentally different pageant from that which presently obtains: one which could contain contestants who are not “natural born female[s].” Thus, the Pageant’s desired expression of who can be an “ideal woman” would be suppressed and thereby transformed through the coercive power of the law if the OPAA were to be applied to it....

Application of the OPAA would force the Pageant to include Green and therefore alter its speech. Such compulsion is a content-based regulation under our caselaw, and as such warrants strict scrutiny.

Judge VanDyke also filed a concurring opinion speaking only for himself, saying that forced inclusion of a transgender female in the Pageant infringes the Pageant's freedom of association as well as its freedom of speech.

Judge Graber dissented, contending that the court should not reach the constitutional question until it is determined whether the Oregon Public Accommodations Act even applies to the Miss USA Pageant.  Reuters reports on the decision.

Certiorari Petition Filed Again In Bakery's Refusal To Design Wedding Cake For Same-Sex Marriage

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Klein v. Oregon Bureau of Labor and Industries, (Sup. Ct., filed 9/7/2022). This is the second time the case has worked its way up to the Supreme Court. (See prior posting.) At issue is a finding by the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused on religious grounds to design and create a wedding cake for a same-sex wedding. In January, the state court of appeals remanded the case to the Bureau of Labor and Industries for it to determine a remedy after finding that the Bureau's first determination of damages was tainted by non-neutrality. (See prior posting.) In August, the Bureau imposed damages of $30,000. First Liberty has additional background.

Ministerial Exception Doctrine Requires Dismissal Of Race and National Origin Discrimination Claim

In Chris v. Kang, (D OR, July 26, 2022), an Oregon federal district court dismissed a claim of race and national origin discrimination brought by plaintiff who was not hired as the Worship Pastor of Village Baptist Church.  Plaintiff claimed he was not hired because he was not a native English speaker, was said to be unfamiliar with American culture and to speak with an accent. The court held that the ministerial exception doctrine applies to both Title VII and state employment discrimination claims, insulating from judicial review the church's decisions on who should be its ministers.