California Legislature Passes Law Aimed at Combatting Antisemitism and Other Bias in Schools

On September 12, the California legislature gave final passage to AB 715 (full text) which amends the state Education Code to create a state office of Civil Rights. The new Office is to work directly with local educational agencies to address discrimination and bias. It is to provide educational resources to identify and prevent antisemitism and other forms bias. The bill also requires the Office to employ an Antisemitism Prevention Coordinator who is to provide antisemitism education to school personnel and make recommendations to the legislature on legislation that is needed to prevent antisemitism in educational settings. The bill provides in part:

The United States National Strategy to Counter Antisemitism, published by the Biden Administration on May 25, 2023, shall be a basis to inform the Antisemitism Prevention Coordinator on how to identify, respond to, prevent, and counter antisemitism.

The bill also provides in part:

51500. (a) (1) A teacher shall not give instruction and a school district shall not sponsor any activity that promotes a discriminatory bias on the basis of race or ethnicity, gender, religion, disability, nationality, or sexual orientation or because of a characteristic listed in section 220....

(2) Discriminatory bias in instruction and school-sponsored activities does not require a showing of direct harm to members of a protected group. Members of a protected group do not need to be present while the discriminatory bias is occurring for the act to be considered discriminatory bias.

(3) If the governing board or body of a local educational agency finds that instruction or school-sponsored activities are discriminatory pursuant to this section, corrective action shall be taken.

(b) Teacher instruction shall be factually accurate and align with the adopted curriculum and standards ..., and be consistent with accepted standards of professional responsibility, rather than advocacy, personal opinion, bias, or partisanship.

The bill now goes to Governor Gavin Newsom for his signature. JNS reports on the passage of the legislation. KQED reports on the controversy that surrounded the bill.

8th Circuit: Evidence Did Not Support Dismissal of Jail Administrator's Title VII Religious Discrimination Case

In Naylor v. County of Muscatine, Iowa, (8th Cir., Aug. 19, 2025), the U.S. 8th Circuit Court of Appeals reversed a trial court's dismissal of a Title VII religious discrimination lawsuit brought by a county jail administrator who was fired because of his online postings.  The court said in part:

At the district court, Muscatine County argued it would suffer two types of undue hardship if it continued to employ Naylor as jail administrator. First, the County argued that keeping Naylor on would cause the jail undue hardship because the publicity surrounding his online commentary—which included disparaging views of Muslims and “the gay lifestyle”—had harmed its public image....

We assume, but need not decide, that public image effects can present issues for an organization sufficient to rise to the level of an undue hardship under Title VII. Here, the County has simply not provided sufficient evidence to warrant summary judgment on this ground....

As a second, related type of undue hardship, Muscatine County argued to the district court that retaining Naylor as the jail administrator would imperil its business relationships. The district court agreed, relying on evidence that two outside entities—USMS and Johnson County—considered ending their agreements to send their overflow detainees to the jail as a result of Naylor’s online commentary, and that the loss of these relationships would cause a significant financial burden to Muscatine County. While a reasonable jury could find this evidence sufficient to establish an undue hardship, the evidence is insufficient to support the grant of summary judgment. 

9th Circuit: Oregon Religious Non-Discrimination Rule for Grantees Is Mostly Valid

 In Youth 71Five Ministries v. Willliams, (9th Cir., Aug. 18, 2025), a Christian youth program sued after the Oregon Department of Education's Youth Development Division withdrew the conditional award of a grant. Plaintiff requires that its board members, employees, and volunteers agree to a Christian Statement of Faith and be involved in a local church. The Division contended that this violates its religious non-discrimination policy.  Plaintiff contended that the withdrawal violated its free exercise, religious-autonomy, and expressive-association rights. 

 The U.S. 9th Circuit Court of Appeals said in part:

... [T]he Rule does not deny funding based on a practice exclusive to religious organizations. Government agencies, secular corporations, and religious ministries alike might engage in religion-based employment discrimination....

Based on the evidence properly before the district court, it was not an abuse of discretion to conclude that the Division likely treats comparable secular and religious activity the same....

... 71Five argues that merely tailoring services to a target demographic is comparable to 71Five’s categorical exclusion of non-Christians. We disagree....

The Division adopted the Rule to, among other reasons, better reflect its “commitment to equitable access, equal opportunity, and inclusion.” That is a legitimate interest.... The Rule rationally furthers that interest by ensuring that Division-funded initiatives are equally open to employees, volunteers, and participants regardless of race, sex, religion, or any other protected characteristic. The district court therefore did not abuse its discretion in determining that 71Five is not likely to succeed on the merits of its free-exercise claim....

71Five claims that the Rule abridges its expressive association by requiring it to accept employees and volunteers “who disagree” with its message “or would express a contrary view.” ... We hold that 71Five has established that it is likely to succeed, at least in part. As to Division-funded initiatives, the Rule is likely permissible as a reasonable and viewpoint-neutral regulation of expressive association in a limited public forum—the Grant Program. But to the extent that it restricts 71Five’s selection of speakers to spread its Christian message through initiatives that receive no Division funding, the Rule likely imposes an unconstitutional condition....

71Five’s complaint does not allege a violation of any clearly established right under the First Amendment, so the Defendants are entitled to qualified immunity, and the district court did not err in dismissing 71Five’s damages claims with prejudice.

Judge Rawlinson concurred only in the judgment and did not join the majority's opinion, saying in part:

I concur in the judgment because, and only because, of our truncated review of a district court's decision granting or denying injunctive relief, and our obligatory deference to a district court's discretionary decision to decline consideration of arguments and evidence presented in a Reply Brief. ...

I decline to join the majority opinion's analysis because it relies heavily on the premise (mistaken, in my view), that Youth Five's website evidenced discrimination, while websites from the secular organizations applying for grants did not evidence discrimination....

[Thanks to Steven Sholk for the lead.]

Executive Order Targets Religious and Political Discrimination by Banks

Yesterday President Trump issued an Executive Order (full text) titled Guaranteeing Fair Banking for All. The Executive Order requires banking agencies to take steps to prevent, and to remedy past, "politicized or unlawful debanking." The Order provides in part:

The term “politicized or unlawful debanking” refers to an act by a bank ... or other financial services provider to ... adversely restrict access to, or adversely modify the conditions of, accounts, loans, or other banking products or financial services ... on the basis of the customer’s or potential customer’s political or religious beliefs, or on the basis of [their] ... lawful business activities that the financial service provider disagrees with or disfavors for political reasons.

New Website Catalogues Laws That Exclude Religious Organizations from Government Funding Opportunities

Earlier this month, Notre Dame Law School announced that it, along with two other organizations, has launched a new website which identifies state laws that exclude religious organizations from participating in a wide variety of social service, educational and cultural funding opportunities. The announcement says in part:

The new website provides a database highlighting state statutes and regulations that prohibit religious organizations from participating in public programs on equal footing with their secular counterparts. Although the database does not express a view on the ultimate constitutionality of any particular law, its authors hope that the repository may be the first step towards identifying—and finally changing—those that do violate First Amendment rights.

The website is available at this link: Religious Equality – Protecting Religious Organizations from Discrimination. The website is also now listed in the Religion Clause sidebar under "Resources". City Journal reports on the new website.

DOJ Hosts First Meeting of Task Force to Eradicate Anti-Christian Bias

 A Department of Justice press release reports that yesterday the DOJ hosted the inaugural meeting of the Task Force to Eradicate Anti-Christian Bias.  The Task Force was created by an Executive Order of President Trump. Yesterday's press release described the Task Force meeting, saying in part:

The witnesses included:

Michael Farris: First Amendment Litigator and Founding President of Patrick Henry College. Farris spoke on behalf of Senior Pastor Gary Hamrick to discuss how Cornerstone Church was under investigation and charged by the Internal Revenue Service (IRS) for so-called Johnson Amendment violations....

Dr. Scott Hicks: Provost and Chief Academic Officer, Liberty University. Hicks described how Liberty University and Grand Canyon University were singled out by the Biden Administration for fines due to the schools’ Christian worldview.

Phil Mendes: Navy Seal. Mendes was relieved of duty during Biden Administration for not taking the COVID-19 vaccine due to religious exemption requests that were denied by the Department of Defense.

 “As shown by our victims’ stories today, Biden’s Department of Justice abused and targeted peaceful Christians while ignoring violent, anti-Christian offenses,” said Attorney General Pamela Bondi. “Thanks to President Trump, we have ended those abuses, and we will continue to work closely with every member of this Task Force to protect every American’s right to speak and worship freely.”

Additionally, members of the Task Force highlighted specific cases within their own agencies where the Biden Administration unfairly and harshly punished Christian Americans for their religious beliefs.

UPDATE: The DOJ has posted video of opening remarks at the meeting by Attorney General Bam Bondi and  Deputy Attorney General Todd Blanche.

Supreme Court Denies Cert. In Title VII Religioius Discrimination Case

The U.S. Supreme Court today denied review in Hittle v. City of Stockton, California, (Docket No. 24-427, certiorari denied 3/10/2025). Justice Thomas, joined by Justice Gorsuch, filed an opinion dissenting from the denial of cert. In the case, the U.S. 9th Circuit Court of Appeals affirmed a district court's dismissal of a religious discrimination suit under Title VII and the California Fair Employment and Housing Act brought by the city's former Fire Chief.  Among the several reasons given to plaintiff by the city for his dismissal was his attendance at a Christian religious leadership event on city time and with use of a city vehicle, and his approval for three other Department employees to also attend. (See prior posting.) In his dissent, Justice Thomas said in part:

I would have taken this opportunity to revisit McDonnell Douglas and decide whether its burden-shifting framework remains a workable and useful evidentiary tool.

CNN reports on the denial of review.

Coffee House Sued Over Separate Antisemitic Incidents Involving Harassment of Customers

 A suit under California's Unruh Civil Rights Act alleging religious discrimination was filed yesterday in a California state trial court against an Oakland, California coffee house that (unknown to plaintiff) had a history of promoting menu items with names connected with Hamas. The complaint (full text) in Hirsch v. Native Grounds, Inc. (D/B/A Jerusalem Coffee House), (CA Super. Ct., filed 3/3/2025), alleges that plaintiff, a Jewish American who entered the coffee house with his 5-year-old son, was asked restaurant's owner (also a defendant) to leave because he was wearing a baseball cap that featured a Jewish star.  The complaint alleges in part:

26. Within minutes of sitting down, Mr. Hirsch was approached by Defendant Harara. Harara demanded to know whether Hirsch was a “Zionist.” ... When Hirsch refused to answer Harara’s question, Harara demanded that he leave the premises. 

27. Harara threatened to call the police and repeatedly demanded that Hirsch leave the premises, which he described as his private business.... When Hirsch pointed out that he was being asked to leave because his hat depicted a Jewish star, Harara stated that “this is a violent hat, and you need to leave.” 

28. An employee of the East Bay Community Space ... stated that it was the business’ right and that “they could ask you to leave for any reason.” Mr. Hirsch again pointed out that a business cannot refuse service to someone solely ... because of their religion. Raven [the employee] disagreed, claiming “they’re allowed to ask you to leave for any reason” and ... claiming that “the only reason they know you’re a protected class is that you’re putting on your hat. You’re choosing to be here in this situation.”

San Francisco Standard reports on the lawsuit.

This suit follows one filed in a California federal district court by another plaintiff several days earlier alleging antisemitic discrimination at the same coffee house.  The complaint (full text) in Radice v. Jerusalem Boxing Club, LLC, (ND CA, filed 2/27/2025), alleges in part:

2. Once in July 2024 and once in August 2024, Mr. Radice visited Oakland in connection with his work as the interim executive director for a nonprofit organization to secure the East Bay Community Space ... as a venue for a fundraiser event for that nonprofit organization. The Community Space’s building houses JBC and JCH [Jerusalem Coffee House]. 

3. On both occasions, Mr. Radice was harassed and excluded from JCH (a place of public accommodation), explicitly because he is Jewish. On the second occasion, Mr. Radice was refused service and followed out of JCH and down the block. Accordingly, JBC violated Mr. Radice’s civil rights under both federal and California law. 

ADL issued a press release announcing the filing of this lawsuit.

Suit Challenges Software Company's Denial of Discount to Christian Nonprofit

A suit under California's Unruh Civil Rights Act was filed yesterday in a California federal district court by a Christian nonprofit organization that offers a video curriculum designed to instruct teenagers about Christian beliefs on sexuality.  The complaint (full text) in Holy Sexuality v. Asana, Inc., (SD CA, filed 2/18/25), alleges that Asana, Inc. which sells subscriptions for project management software, violated the public accommodation religious discrimination provisions of California law when it denied plaintiff the 50% discount offered to nonprofits. According to the complaint:

To qualify, nonprofits must: have 501(c)(3) status; not be an education or academic institution, hospital, hospital auxiliary, nurse register, mutual organization, or credit union; and not “advocate, support, or practice discrimination based on age, ethnicity, gender, national origin, disability, race, size, religion, sexual orientation, or socioeconomic background.”...

But, under its Religious Discrimination Policy, Asana denies that discount to “[r]eligious organizations that exist to solely propagate a belief in a specific faith.”...

Asana’s religious discrimination was and remains arbitrary, especially because Asana grants discounts to nonprofits who hold views opposite to Holy Sexuality’s and grants discounts to other religious nonprofits.

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

Britain's Court of Appeals: Teacher Wrongfully Terminated for Personal Facebook Postings Reflecting Christian Beliefs on Sexuality

In Higgs v. Farmor's School, (EWCA, Feb. 12, 2025), Britain's Court of Appeal held that the dismissal of a teacher because of posts on her personal Facebook page reflecting her Christian-based objections to schools teaching children about same-sex marriage and gender fluidity constituted unlawful discrimination on the ground of religion or belief in violation of the Equality Act 2010. The court said in part:

The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd” which were liable to damage the school’s reputation in the community: the posts had been reported by one parent and might be seen by others.  However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.

Lord Justice Falk filed a brief concurring opinion.

President Trump Creates Task Force to Eradicate Anti-Christian Bias

Yesterday, President Trump issued an Executive Order titled Eradicating Anti-Christian Bias (full text). The Order establishes within the Justice Department a temporary Task Force to Eradicate Anti-Chrisian Bias chaired by the Attorney General and made up of 16 other Cabinet level and high-ranking Administration officials. The Executive Order sets out at length the reasons for creating the Task Force, saying in part:

... [T]he United States Constitution enshrines the fundamental right to religious liberty in the First Amendment....

Yet the previous Administration engaged in an egregious pattern of targeting peaceful Christians, while ignoring violent, anti-Christian offenses.  The Biden Department of Justice sought to squelch faith in the public square by bringing Federal criminal charges and obtaining in numerous cases multi-year prison sentences against nearly two dozen peaceful pro-life Christians for praying and demonstrating outside abortion facilities....

At the same time, Catholic churches, charities, and pro-life centers sought justice for violence, theft, and arson perpetrated against them, which the Biden Department of Justice largely ignored. ...

... [A] Federal Bureau of Investigation (FBI) memorandum asserted that “radical-traditionalist” Catholics were domestic-terrorism threats and suggested infiltrating Catholic churches as “threat mitigation.”  This later-retracted FBI memorandum cited as support evidence propaganda from highly partisan sources.

  The Biden Department of Education sought to repeal religious-liberty protections for faith-based organizations on college campuses.  The Biden Equal Employment Opportunity Commission sought to force Christians to affirm radical transgender ideology against their faith.  And the Biden Department of Health and Human Services sought to drive Christians who do not conform to certain beliefs on sexual orientation and gender identity out of the foster-care system....

 My Administration will not tolerate anti-Christian weaponization of government....

Also yesterday, President Trump spoke for 24-minutes (full text of Remarks) at the National Prayer Breakfast held in the U.S. Capitol

DOJ Civil Rights Division Freezes New Initiatives

The Washington Post yesterday reported that the Justice Department's new Chief of Staff has sent a memo to Kathleen Wolf, the new supervisor of the Civil Rights Division, freezing temporarily any new actions by attorneys in the Division.  The length of the freeze is unclear. The memo says that Civil Rights Division attorneys should not file any new complaints, motions to intervene, agreed-upon remands, amicus briefs, or statements of interest during the freeze. It explains that the freeze was imposed in order to be “consistent with the Department’s goal of ensuring that the Federal Government speaks with one voice in its view of the law and to ensure that the President’s appointees or designees have the opportunity to decide whether to initiate any new cases.”  Movement in pending cases already filed will be determined by the judge assigned to each case. Among the cases handled by the Civil Rights Division are those alleging religious discrimination in violation of federal civil rights laws.

Court Dismisses Some Challenges To ED Rule Protecting Student Religious Organizations

In Secular Student Alliance v. U.S. Department of Education, (D DC, Jan. 15, 2025), plaintiffs challenged a rule promulgated by the Department of Education in 2020. The rule prohibits universities receiving Education Department grants from denying any student religious organization any right, benefit or privilege available to secular groups because of the religious organization's "beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs." The D.C. federal district court dismissed two of plaintiff's claims: that the rule was ultra vires agency action and that it was in excess of the agency's statutory authority under the Administrative Procedure Act. The court held that a "sense of Congress" provision in 20 USC §1011a which says that no college student should be excluded from participation in any activity because of the student's protected speech or association, does not impose a limitation on the Department's rulemaking. The court said that the phrase is "a suggestive guideline, rather than a mandatory limitation...." The court left open to still be decided "whether the Rule is arbitrary and capricious, an abuse of the agency discretion, or otherwise not in accordance with law...." ADF issued a press release commenting on the decision.

University' Rescission of Agreement with Church Did Not Violate Equal Protection or Free Exercise Clauses

In Calvary Chapel Belfast v. University of Maine System, (D ME, Jan. 10, 2025), a Maine federal district court refused to issue a temporary restraining order requiring the University of Maine to move ahead with negotiations with Calvary Chapel for the sale to the Church of the University's satellite campus in Belfast, Maine, known as the Hutchinson Center. Originally the University awarded the Church the right to negotiate terms and conditions for the purchase. Competing bidders, as well as some in the community, objected to the award. The University rescinded the award and ultimately awarded the right to purchase to another bidder. The Church filed suit alleging Equal Protection and Free Exercise violations. Rejecting those claims, the court said in part:

The Church argues the comments of the public and the other bidders, combined with what the Church alleges were procedural anomalies in the System’s process, demonstrate the System made its decision to rescind its initial award to the Church because of the Church’s religious status and views, and therefore violated the Equal Protection Clause....

[T]he only evidence the Church produces that demonstrates religious bias comes wholly from parties outside the University of Maine System. However, ... rather than adopting the community’s animosity toward the Church, the System here specifically rejected such bias. The System, in its August 22, 2024 press release, responded to the comments expressing religious animosity as follows: “[t]he university cannot discriminate, including on the basis of religion. Doing so would be against the law and inconsistent with the university’s commitment to inclusion.”...

None of the Church’s cited authorities stand for the proposition that the Court can conclude solely from public opposition that the System violated the Equal Protection Clause for following its own stated procedures to rescind the award to the Church. The fact that there was religious animosity present in the community and even argued to the System as a basis for appeal cannot mean the System is locked into a decision that it determined would result in a substantial net financial loss....

The Church’s arguments that it will likely succeed on its Free Exercise Clause claim rely on the same arguments it makes in support of its Equal Protection Clause claim....

UPDATE: After an evidentiary hearing, in Calvary Chapel Belfast v. University of Maine System, (D ME, May 7, 2025), the Maine federal district court refused to issue a preliminary injunction on plaintiff's free exercise and equal protection claims.

 

Court Denies Preliminary Injunction Against Moratorium Delaying Building of Mosque

In Zikar Holdings, LLC v. Ruhland, (D MN, Dec. 26, 2024), a Minnesota federal district court refused to issue a preliminary injunction to enjoin the city of Lino Lakes from enforcing a one-year moratorium on development of an area of the city where plaintiffs had proposed to build a housing development that included a mosque. Plaintiffs contended that the moratorium was motivated by discriminatory intent in violation of the free exercise clause, RLUIPA and the Fair Housing Act. The court said in part:

Here, Plaintiffs are likely to show that the Moratorium might have delayed Plaintiffs’ ability to build a place of worship and potential future residences near it in the northwest corner of Lino Lakes.  The language of the Moratorium, however, places no permanent restrictions on Plaintiff’s ability to build anything and, perhaps more importantly, it places no restriction on Plaintiff’s ability to seek development of a mosque elsewhere in the City or to worship elsewhere in the City.  Plaintiffs have therefore not shown that they are likely to prove the Moratorium was a “substantial burden” on their ability to practice Islam....

On this evidence, the Court believes a reasonable juror could infer that the Moratorium was pretextual.  However, the evidence presented at this stage, prior to discovery, is not so strong that it satisfies the heightened Rounds standard.  The motives and beliefs of the council members, as well as the basis for the timing of the Moratorium decision remain unknown at this stage, and absent additional circumstantial evidence of discriminatory intent, a reasonable fact-finder could conclude that supporting the Moratorium reflected the importance of complying with the 2040 Plan and prudent infrastructure and resource planning.  Thus, the Court concludes that this factor is neutral, weighing neither in favor of nor against granting Plaintiffs’ preliminary injunction motion.....

White House Releases National Strategy to Counter Islamophobia and Anti-Arab Hate

Earlier this month (Dec. 12), the White House released a U.S. National Strategy to Counter Islamophobia and Anti-Arab Hate (full text). The 67-page document says in part:

Islamophobia is hatred, discrimination, or bias directed at Muslims or those perceived to be Muslim. It can have a profound negative impact on people of all ages and backgrounds, threatening their personal safety and their ability to fully exercise their constitutional rights. This Strategy also seeks to counter hate targeting Arab Americans because they are Arab. It is important not to conflate Muslims with Arabs and Sikhs, who also often experience unique forms of hate, bias, and discrimination because of who they are, not because they are perceived to be Muslims.  

This Strategy sets forth actions to counter hate, discrimination, and bias affecting these communities, remaining mindful of their unique experiences. We have listened to community and civil society leaders, as well as subject matter experts from various backgrounds throughout the development of this Strategy, and they have shared both their common and distinctive concerns.  

For far too long, it has been common to conflate Arabs and Muslims. As we note in this Strategy, the majority of Arab Americans are not Muslim, and the vast majority of Muslim Americans are not Arab. Arab Americans practice a number of religions, including Christianity and Islam, and they are ethnically and racially diverse. Throughout this Strategy, we identify unique challenges facing Arab Americans and emphasize the importance of avoiding conflation with other communities, even as we put forward a number of common strategies to address many forms of hatred.

AP reported on the release of the National Strategy.

Yeshiva Denied Preliminary Injunction Against Zoning Enforcement

In Anash, Inc., d/b/a Wyoming Valley Yeshiva v. Borough of Kingston, (MD PA, Dec. 19, 2024), a Pennsylvania federal district court refused to grant a preliminary injunction to an Orthodox Jewish Yeshiva whose property was condemned because it was being used for a school and dormitory in violation of zoning ordinances. The court concluded that plaintiff was not suffering irreparable harm, and that it was not likely that plaintiff would succeed on the merits of its challenge to the relevant zoning ordinance. The court said in part:

Plaintiffs also provide no support for their assertion that Rabbi Hellinger’s inability to access the Properties impairs his religious freedom, ability to act as a religious leader to others, or others’ freedoms. Defendants are not refusing to allow Rabbi Hellinger to practice his religion in any manner or gather with members of his congregation in any location other than the Properties.... Plaintiffs concede that they have been able to secure temporary alternative locations to gather to study Torah and engage in religious activities.... While Plaintiffs testified that the temporary or alternative locations do not allow for the same level of participation or consistency, the Court does not find that such imperfections show “irreparable harm.”...

Importantly, Plaintiffs have refused to engage in any sort of efforts to compromise or come to a resolution with the Borough....

The parties agree that the seminal issue for Plaintiffs’ religious discrimination claims, asserted under RLUIPA, the First Amendment, and the Equal Protection Clause, all require this Court to determine if Plaintiffs can show evidence that the Zoning Ordinance restricts their freedom of religion in some way, that Defendants’ actions were somehow motivated by animus, or that Plaintiffs were treated differently than similarly situated individuals based upon their religion.... Plaintiffs have not established any of these scenarios....

Plaintiffs can and have practiced their religion in alternative locations and may, but have not, apply for a variance to use the Properties as a school, dormitory, or house of worship.... There is no convincing evidence that Plaintiffs’ freedom of religion is legitimately burdened. Further, even if they had shown such evidence, the Zoning Ordinance is the least restrictive manner of furthering a compelling government regulatory interest in health and safety,... 

2nd Circuit: Lawyers Have Standing to Challenge Bar Rule That Limits Comments on Transgender and Religious Subject Matter

In Cerame v. Slack, (2d Cir., Dec. 9, 2024), the U.S. 2nd Circuit Court of Appeals held that two Connecticut lawyers have standing to bring a pre-enforcement challenge to a state Rule of Professional Conduct which prohibits lawyers from engaging in harassing or discriminatory conduct against members of various protected classes in the practice of law. It bars harassment or discrimination on the basis of  race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. Commentary to the Rule defines discrimination as including harmful verbal conduct directed at an individual that manifests bias or prejudice. The attorneys allege that they often speak out on legal blogs, in articles and legal seminars in ways that could be construed as personally derogatory.  According to the court:

Moynahan and Cerame ... allege... that “[t]here are numerous examples of speech” fully protected by the First Amendment that members of the Connecticut bar will be reluctant to engage in, given the fear of a misconduct complaint...."  These include using “the pronoun associated with a transgender individual’s biological sex when addressing that individual”; using the term “‘gender preference’ rather than ‘gender orientation’”;  ... and publishing cartoons that “satiri[ze] or mock[]” “a religious deity”..... 

Appellees argue that the commentary to Rule 8.4, providing that an attorney “does not violate paragraph (7) when the conduct in question is protected under the first amendment to the United States constitution,”  ...“unambiguously shows that the Rule does not proscribe protected speech”....

Although the First Amendment carve-out may make it more likely that the SGC will conclude that some speech that would otherwise fall within the text of Rule 8.4(7) is not in fact proscribed, the carve-out is not enough, on its own, to render Appellants’ fear of a misconduct complaint and its professional repercussions “imaginary or wholly speculative” for Article III purposes...

At this stage in the proceedings, Appellants have alleged plausibly that they intend to engage in speech proscribed, at least arguably, by a recently enacted, focused regulation.  This gives rise to a credible threat of enforcement.

Reuters reports on the decision.

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.

Eviction Did Not Violate Plaintiff's Free Exercise Rights

In Wexler v. City of San Diego, California, (SD CA, Nov. 4, 2024), a California federal district court rejected plaintiff's claim that his free exercise rights were violated when he was evicted from rental property he had occupied for a few days. The court said in part:

Plaintiff alleges that Defendant Dup-A-Key harmed him by changing the rental unit’s door locks on the Sabbath....  Plaintiff alleges harm from Defendant Rough Rider Real Estate because he “had to record” Defendant’s employee drilling of a “No Trespass” sign onto the property on the Sabbath.... Plaintiff further alleges harm from Defendant Police Officers because the alleged unlawful eviction occurred on the Sabbath....  However, these actions are not violations under the Free Exercise Clause.  Plaintiff has not alleged that Defendants Dup-A-Key and Rough Rider Real Estate were government entities.  Nor does Plaintiff sufficiently allege that any government policy was not neutral or not generally applicable.  Accordingly, the Court DISMISSES Plaintiff’s First Amendment § 1983 claims against all Defendants with leave to amend.

The court also rejected a variety of other challenges to the eviction alleged by plaintiff, including a claim that police officers discriminated against him because he mentioned to them that he was an Orthodox Jewish person.