Teachers Get Religious Exemption from School Policy Barring Disclosure to Parents of Gender Identity Changes

In Mirabelli v. Olson, (SD CA, Sept. 14, 2023), a California federal district court granted a preliminary injunction prohibiting the Escondido Union School District from taking any adverse employment action against two teachers who have religious objections to the school district's policy of faculty confidentiality when communicating with parents about a student's change in gender identity. The court said in part:

The result of the new EUSD policy is that a teacher ordinarily may not disclose to a parent the fact that a student identifies as a new gender, or wants to be addressed by a new name or new pronouns during the school day – names, genders, or pronouns that are different from the birth name and birth gender of the student. Under the policy at issue, accurate communication with parents is permitted only if the child first gives its consent to the school....

The plaintiffs in this action are two experienced, well-qualified, teachers. The teachers maintain sincere religious beliefs that communications with a parent about a student should be accurate; communications should not be calculated to deceive or mislead a student’s parent....

... Mirabelli believes that the relationship between parents and children is an inherently sacred and life-long bond, ordained by God, in which the parents have the ultimate right and responsibility to care for and guide their children..... In a similar vein, West believes that the relationship between parents and their child is created by God with the intent that the parents have the ultimate responsibility to raise and guide their child. Both Mirabelli and West believe that God forbids lying and deceit...

EUSD contends that the government purpose of protecting gender diverse students from (an undefined) harm is a compelling governmental interest and the policy of non-disclosure to parents is narrowly tailored.... This argument is unconvincing. First, both the Ninth Circuit and the Supreme Court have found overly broad formulations of compelling government interests unavailing.... Second, keeping parents uninformed and unaware of significant events that beg for medical and psychological experts to evaluate a child, like hiding a gym student’s soccer concussion, is precisely the type of inaction that is likely to cause greater harm and is not narrowly tailored. ....

In the end, Mirabelli and West face an unlawful choice along the lines of: “lose your faith and keep your job, or keep your faith and lose your job.”... The only meaningful justification the District offers for its insistence that the plaintiffs not reveal to parents gender information about their own children rests on a mistaken view that the District bears a duty to place a child’s right to privacy above, and in derogation of, the rights of a child’s parents....

[Thanks to Jeffrey Trissell for the lead.]

Kim Davis Assessed $100K Damages In One Case, $0 in Another

Last year, in a long-running case, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. The court said that damages should be assessed by a jury.  (See prior posting.) That case, along with another making similar claims, were recently tired in parallel before two separate juries. In one of the cases-- Yates v. Davis -- the jury yesterday awarded zero damages.  In a second case-- Emold v. Davis-- a different jury awarded $100,000 damages. Liberty Counsel says the decision will be appealed. USA Today reports on the cases.

Suit Challenges Adoption of Ethnic Studies Courses That Contain Anti-Jewish Materials

Suit was filed last week in a California state trial court by several Jewish groups who contend that the ethnic studies curriculum adopted by the Santa Ana Unified School District Board of Education includes antisemitic and anti-Israel content.  The complaint (full text) in Louis D. Brandeis Center for Human Rights Under Law v. Santa Ana Unified School District Board of Education, (CA Super. Ct., filed 9/8/2023), alleges violations of California's open meeting law ("Brown Act") that prevented adequate participation in school board meetings by members of the Jewish community.  The complaint alleges both inadequate notice of meetings and harassment during the meetings.  The complaint alleges in part:

Comments made by members of the public during the May 23, 2023 meeting included classic antisemitic tropes as well as threatening and violent language against Jews and Israelis. Furthermore, audience members hissed as the names of Jewish attendees were called, applause broke out in response to antisemitic slurs, and during a presentation by two Jewish high school students, Board meeting attendees shouted, “you’re racists” and “you’re killers.” A Jewish student reported being followed to her car and harassed by a meeting attendee, and that SAUSD’s security was unable to provide sufficient protection or support.

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

9th Circuit En Banc: California School District Must Recognize Fellowship of Christian Athletes Clubs

In Fellowship of Christian Athletes v. San Jose Unified School District board of Education, (9th Cir., Sept. 13, 2023), the U.S. 9th Circuit Court of Appeals sitting en banc, in a set of opinions spanning 134 pages, held that Fellowship of Christian Athletes (FCA) is entitled to a preliminary injunction requiring the school district to restore recognition to FCA chapters as student clubs. Because FCA requires its officers to affirm a Statement of Faith and abide by a sexual purity policy, i.e. because a homosexual student could not be an officer of FCA, the District had revoked FCA's recognition. The court said in part:

While it cannot be overstated that anti-discrimination policies certainly serve worthy causes—particularly within the context of a school setting where students are often finding themselves—those policies may not themselves be utilized in a manner that transgresses or supersedes the government’s constitutional commitment to be steadfastly neutral to religion. Under the First Amendment’s protection of free exercise of religion and free speech, the government may not “single out” religious groups “for special disfavor” compared to similar secular groups.... 

The District, rather than treating FCA like comparable secular student groups whose membership was limited based on criteria including sex, race, ethnicity, and gender identity, penalized it based on its religious beliefs. Because the Constitution prohibits such a double standard—even in the absence of any motive to do so—we reverse the district court’s denial of FCA’s motion for a preliminary injunction....

Plaintiffs are likely to succeed on their Free Exercise claims because the District’s policies are not neutral and generally applicable and religious animus infects the District’s decision making.

Judge Forrest filed a concurring opinion contending that the case should be seen as a free-speech care more than a religious freedom case.

Judge Smith filed an opinion concurring in part and dissenting in part, with two other judges partially joining his opinion. Judge Sung filed an opinion concurring in part and dissenting in part. Chief Judge Murguia filed a dissenting opinion, joined in part by Judge Sung.

National Review reports on the decision.

Plaintiffs Must Seek Narrower Relief Against Restrictions on LGBTQ Books in Children's Section of Library

In Virden v. Crawford County, Arkansas, (WD AR, Sept. 12, 2023), the court denied plaintiffs' request for a preliminary injunction because the proposed injunction was too broad, but left open the possibility of a narrower injunction later on.  The court described the dispute:

According to Plaintiffs’ amended complaint, in late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must remove from their children’s sections all books containing LGBTQ themes, affix a prominent color label to those books, and place them in a newly-created section called the “social section.” Plaintiffs allege this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children’s section.

Plaintiffs claimed that this policy violates the Establishment Clause as well as their 1st Amendment free speech right.  The court said in part:

First, with respect to the Establishment Clause claim, it must be noted that—as Defendants acknowledge—there is little useful precedent to guide this Court’s analysis. The United States Supreme Court’s most recent guidance on such claims amounts to little more than the extremely general and abstract direction that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” Kennedy v. Bremerton Sch. Dist..... In the face of this instruction, the County resorts to arguing that book banning and censorship, for reasons both religious and otherwise, have a centuries-long history in America and the broader Western world....

Neither side’s argument regarding the Establishment Clause claim is satisfactory. Plaintiffs’ argument simply sidesteps the “historical practices and understandings” analysis altogether. But the County’s argument, which is essentially that the Establishment Clause does not prohibit state-sponsored religious viewpoint discrimination because state actors have been violating the Free Speech Clause for centuries, seems out of step with the Kennedy Court’s admonition that the First Amendment’s Establishment, Free-Exercise, and Free-Speech Clauses “have complementary purposes, not warring ones where one Clause is always sure to prevail over the others.”.... 

The court found that plaintiffs had alleged sufficient facts to avoid dismissal of their claim that their 1st Amendment right to receive information had been infringed. However, it refused to enter a preliminary injunction requiring the library to return to its prior procedures for classifying and processing books, saying in part:

... Plaintiffs’ proposals would essentially freeze in perpetuity the Library’s method for processing all types of books—not only children’s books relating to LGBTQ topics. The Court does not see any reason, on the record before it, why it should curtail the Library’s discretion in processing books on such disparate topics as caring for houseplants, playing chess, or mystery novels. Furthermore, the requested injunctions are so vague and general that they could potentially prevent the Library from altering these processes even for reasons that could be perfectly benign, prudent, and constitutionally inoffensive. 

6th Circuit Says Zoning Restrictions on Prayer Trail Violate RLUIPA

In Catholic Healthcare International, Inc. v. Genoa Charter Township, (6th Cir., Sept. 11, 2023), the U.S. 6th Circuit Court of Appeals ordered a Michigan federal district court to promptly enter a preliminary injunction that will allow a Catholic healthcare organization to restore a Stations of the Cross prayer trail along with a stone altar and mural. Genoa Township zoning officials had insisted that the Prayer Trail should be treated as a church for zoning purposes. Plaintiffs sued contending that the zoning ordinance as applied to them violates RLUIPA. The court said in part:

The question here is whether the Township’s decision to treat the prayer trail as the equivalent of a church building—thereby requiring plaintiffs to apply for a special land-use permit—imposed a substantial burden on their “religious exercise[.]”...

The only factor that the Township mentions, in arguing that plaintiffs have not borne a substantial burden, is whether “a plaintiff has imposed a burden upon itself[.]” Id. This factor reflects that, when a plaintiff has good reason to know in advance that its proposed usage will be subject to an onerous review process, the burdens of that process are not likely to count as substantial for purposes of 42 U.S.C. § 2000cc(a)(1). But here the Township’s zoning ordinance gave plaintiffs little reason to expect the treatment they have received....

... [P]laintiffs had reason to think that their prayer trail would be treated in the same manner as “[p]rivate non-commercial parks, nature preserves and recreational areas”—none of which require a special land-use permit in the type of zoning district ... in which plaintiffs’ parcel is located....

The court also held that a Township ban on organized gatherings on plaintiffs' property would likely substantially burden their religious exercise.

Judge Clay filed a concurring opinion expanding on the legal standards governing claims under RLUIPA.  CBS News reports on the decision.

Former Israeli Prime Minister Wins Defamation Action

Times of Israel reports that a Tel Aviv Magistrate's Court yesterday ruled in favor of former Israeli Prime Minister Naftali Bennett in his defamation action against Rabbi Yosef Mizrachi.  Mizrachi had falsely claimed that Bennett's mother is not Jewish. The court ordered Mizrachi to pay damages and to post an apology on his YouTube channel. The suit is part of a series of defamation actions that Bennett has filed since he left office seeking to “clean the internet” of "poison and fake news" in Israel.

Bulgaria Violates European Convention by Failing to Recognize Same-Sex Married Couple

In Koilova and Babulkova v. Bulgaria, (ECHR, Sept 5, 2023) (full text of decision in French) (Court's English Summary of decision), the European Court of Human Rights ruled that Bulgaria violated Article 8 of the European Convention on Human Rights (Respect for private and family life) by failing to have a procedure for recognizing or registering a same-sex marriage entered in another country. According to the English language summary of the decision, the Court said in part:

... [I]n the absence of official recognition, same-sex couples were nothing more than de facto unions for the purposes of national law, even where a marriage had been validly contracted abroad. The partners were unable to regulate fundamental aspects of life as a couple such as those concerning property, family matters and inheritance, except as private individuals entering into contracts under the ordinary law, where possible, rather than as an officially recognised couple. They were not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities or with third parties. Even assuming that national law had allowed the applicants to apply to the domestic courts for protection of their basic needs as a couple, the necessity of taking such a step would have constituted in itself a hindrance to respect for their private and family life.

[Thanks to Law & Religion UK for the lead.]

Florida Supreme Court Hears Arguments On 15-Week Abortion Ban

On Friday the Florida Supreme Court heard oral arguments (video of full oral arguments) in Planned Parenthood of Southwest and Central Florida v. State of Florida, (FL Sup. Ct., 9/8/2-23). At issue in the case is a state constitutional challenge to Florida's 15-week abortion ban.  The Florida Supreme Court has links to all the pleadings and briefs in the case.

France's Conseil D'Etat Upholds Ban on Wearing Abayas in Schools

On Thursday, France's Council of State upheld the government's ban Muslim girls wearing the abaya at school.   France 24 explains:

President Emmanuel Macron's government announced last month it was banning the abaya in schools, saying it broke the rules on secularism in education that have already seen Muslim headscarves banned on the grounds that they constitute a display of religious affiliation. 

But an association representing Muslims filed a motion with the State Council, France's highest court for complaints against state authorities, for an injunction against the ban on the abaya and the qamis, its equivalent dress for men.

The association argued the ban was discriminatory and could incite hatred against Muslims, as well as racial profiling.

The court's decision, available in French (Association Action Droits des Musulman, (Conseil D'Etat, Sept. 7, 2023) (full text), is summarized by Daily News:

Wearing the abaya "is part of a logic of religious affirmation", estimated the judge in summary proceedings....

Accordingly, its prohibition "does not constitute a serious and manifestly unlawful interference with the right to respect for private life, freedom of worship, the right to education and respect for the best interests of the child or principle of non-discrimination,” he said.

Recent Articles of Interest

From SSRN:

• Ronald J. Colombo, The Repeal of Religious Accommodations – A Constitutional Analysis, (American University Law Review, Forthcoming 2024 Volume 73, Issue 3).
• Laetitia-Ann Greeff, A Critical Analysis of Parental Corporal Punishment: A Call for Legislative Reform (October 18, 2022).
• Elizabeth Platt, The Abortion Exception: A Response to 'Abortion and Religious Liberty', (124 Colum. L. Rev. Forum (2024 Forthcoming)).
• Siddharth Kamath, Reservation in India With Special Reference to EWS Quota, (March 6, 2023).
• Ronnie R. Gipson Jr, The Interjurisdictional Abortion Wars Have Arrived , (University of North Texas at Dallas Law Review On the Cusp, Forthcoming).
• Sai Jahnavi Thota & Shreya Dubey, Succession Rights of Women in India and Muslim Countries: Comparative Analysis, (May 2, 2023).

From SmartCILP:

• David N. Wecht, William O. Douglas Lecture. Majoritarianism Run Riot: Christian Supremacism and the Religion Clauses, 58 Gonzaga Law. Review 93-108 (2022-2023).
• Adam Mestyan & Rezk Nori, The Probate Regime: Enchanted Bureaucracy, Islamic Law, and the Capital of Orphans in Nineteenth-Century Egypt, 40 Law & History Review 597-624 (2022).
• Thomas C. Berg, Freedom in Serving Others: Arguments and Sources for Religious Institutional Freedom, 19 University of St. Thomas Law Journal 33-62 (2023).

Video Pressing Estranged Husband to Give Wife a Get Is Protected Speech

In S.B.B. v. L.B.B., (NJ App., Sept. 6, 2023), a New Jersey appellate court vacated a Final Restraining Order (FRO) issued by a trial court under the Prevention of Domestic Violence Act. The court said in part:

The FRO was based on the predicate act of harassment. The communication underlying the trial judge's finding of harassment was defendant's creation and dissemination of a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to "press" her husband to deliver the get. Because defendant's communication constituted constitutionally protected free speech, we reverse.

In reaching that conclusion, the appellate court said in part:

[The trial court] judge's finding that the Jewish community was prone to violence against get refusers—and the implicit holding that defendant was aware of and intentionally availed herself of such violent tendencies—is not supported by the record. The video was intended to get a get. The video did not threaten or menace plaintiff, and nothing in the record suggests that plaintiff's safety or security was put at risk by the video.... Without credible evidence that the video incited or produced imminent lawless action or was likely to do so, defendant's speech does not fall within the narrow category of incitement exempted from First Amendment protection.

Volokh Conspiracy has more on the decision.

Consent Decree Affirms Public Accommodation Law Exemption for Catholic Bookstore

 A Florida federal district court entered a Consent Order (full text) yesterday in The Catholic Store, Inc. v. City of Jacksonville, (MD FL, Sept. 7, 2023).  The Order concludes that plaintiff, a privately-owned, for-profit Catholic bookstore qualifies for the religious-organization exemption in Jacksonville, Florida's public accommodation law. This exempts the bookstore from the non-discrimination provisions relating to sexual orientation and gender identity. In its original complaint, the store contended that the public accommodation law would have required that employees address customers using their preferred pronouns and titles, regardless of their biological sex. The store also said it wants to post its Catholic beliefs about sexuality on its website and on social media. (See prior posting.) ADF issued a press release announcing the settlement in the case.

Coach Kennedy Resigns After One Post-Game Prayer

Last year, in a widely publicized Supreme Court decision, Bremerton, Washington high school football coach Joe Kennedy won the right to offer a personal prayer on the 50-yard line immediately after football games. After his Supreme Court win, Kennedy was reinstated as coach.  AP now reports that on Wednesday, after one game back at which he offered a brief post-game prayer, Kennedy resigned his coaching position and returned to Florida where he had been living full time. Kennedy posted a statement on his personal website, saying in part: "I believe I can best continue to advocate for constitutional freedom and religious liberty by working from outside the school system so that is what I will do."

California AG Challenges School District's Policy On Disclosure To Parents of Students' Gender Dysphoria

Suit was filed last week by California's Attorney General against the Chino Valley Unified School District challenging the district's policy that requires school personnel to notify parents whenever a student asks to be identified or treated as a gender other than the biological sex listed on the student's birth certificate.  The complaint (full text) in People ex rel. Bonta v. Chino Valley Unified School District, (CA Super. Ct., filed 8/28/2023), alleges in part:

Policy 5020.1 has placed transgender and gender nonconforming students in danger of imminent, irreparable harm from the consequences of forced disclosures. These students are currently under threat of being outed to their parents or guardians against their express wishes and will. They are in real fear that the District’s policy will force them to make a choice: either “walk back” their constitutionally and statutorily protected rights to gender identity and gender expression, or face the risk of emotional, physical, and psychological harm from non-affirming or unaccepting parents or guardians.

Policy 5020.1 unlawfully discriminates against transgender and gender nonconforming students, subjecting them to disparate treatment, harassment, and abuse, mental, emotional, and physical. This is by design: the Board’s plain motivations in adopting Policy 5020.1 were to create and harbor animosity, discrimination, and prejudice towards these transgender and gender nonconforming students, without any compelling reason to do so.

The Attorney General issued a press release announcing the filing of the lawsuit.

Yesterday, in an oral ruling from the bench, the court issued a temporary restraining order barring the school district from enforcing its disclosure policy. The Attorney General issued a press release announcing the court's ruling and providing links to briefs in the case.

California Legislature Passes Amendment to Outlaw Caste Discrimination

California's Unruh Civil Rights Act already bars discrimination, among other things, on the basis of "ancestry". The California legislature this week gave final passage to an amendment to the Act (full text) that adds a definition of "ancestry", making it clear that it includes discrimination on the basis of caste. The amendment defines "caste" as "a system of social stratification on the basis of inherited status". The bill now goes to Governor Gavin Newsom for his signature. The Independent reports on the passage of the bill and on those who opposed its passage.

Church Member's Defamation Suit Dismissed on Church Autonomy Grounds

In David v. South Congregational Church, (MA Super. Ct., Sept. 1, 2023), a Massachusetts trial court dismissed on church autonomy grounds a defamation suit against a Church, its Pastor and its Moderator brought by a Church member who was removed from the Church's Leadership, Finance and Investment Committees.  Plaintiff, a financial advisor, claims that he was inaccurately charged with unethical conduct in handling the funds of another church member. He seeks damages and other remedial action, including reinstatement on church committees. The court said in part:

... [T]here is no evidence that the defendant Moderator Figueroa's email to six Church leaders advising of the plaintiff's removal from the three Church leadership committees was ever communicated or published by the defendant Church officials beyond those leadership officials.... The sole disciplinary action taken by the church defendants was the plaintiff's removal from Church committees and positions of [Church] leadership.... Plaintiff's claimed defamation damages ... are necessarily limited exclusively to his reputation amongst the internal Church leadership.

But even limiting the scope of plaintiff's tort damage claim will not save his cause of action against the defendant Church, its Pastor and Moderator. A jury ... may not be permitted to second-guess church officials' and require them to pay damages because the jury disagrees with internal church discipline decisions...

The plaintiff is improperly asking this court to interject itself into-- and moreover reverse-- the internal disciplinary action imposed by the Church Pastor and Moderator upon another Chruch member.

[Thanks to John Egan for the lead.]

CT Supreme Court Upholds Refusal to Enforce Ketubah in Divorce Action

In Tilsen v. Benson, (CT Sup. Ct., Sept. 5, 2023), the Connecticut Supreme Court upheld a trial court's refusal to enforce the provisions of the parties' ketubah (Jewish marriage document) in setting alimony in a marital dissolution action. The husband, a rabbi, sought enforcement of the ketubah as a prenuptial agreement.  The ketubah provided that any divorce would be "according to Torah law."  Husband contended that meant a 50/50 division of property and no obligation to pay alimony, but conflicting interpretations of Jewish law were presented to the trial court.  The Supreme Court said in part:

... [W]e conclude that the plaintiff’s desired relief violates the establishment clause under the neutral principles of law doctrine. Most significant, the parties’ ketubah is facially silent as to each spouse’s support obligations in the event of dissolution of the marriage, thus leaving the court to determine those obligations from external sources as to Jewish law, namely, the parties’ expert witnesses, whose proffered opinions differed in this case, instantly alerting the court as to the establishment clause dilemma....

The court also rejected husband's argument that refusal to enforce the ketubah violated his free exercise rights by preventing him from divorcing according to Jewish law and denying him the generally available benefit of enforcing a prenuptial agreement only because of the agreement's religious nature.  The court said in part:

... [E]nforcement of this vaguely worded ketubah in the guise of protecting the plaintiff’s free exercise rights would have put the trial court on the horns of an establishment clause dilemma.

Second, the trial court did not deny the plaintiff access to the court or otherwise exact some kind of penalty in connection with his religious beliefs or practices; its decision simply meant that this dissolution action would be governed by generally applicable principles of Connecticut law as expressed in our alimony and equitable distribution statutes. Parties who desire specific tenets of their religious beliefs to govern the resolution of marital dissolution actions remain free to contract for that relief via a properly executed antenuptial, postnuptial, or separation agreement that is specifically worded to express those beliefs in a way that avoids establishment clause concerns under the neutral principles of law doctrine.

Religious Organization Lacks Standing to Challenge Interpretation of State Anti-Discrimination law

In Union Gospel Mission of Yakima, Wash. v. Ferguson, (ED WA, Sept. 1, 2023), a Washington federal district court dismissed for lack of standing a suit challenging the constitutionality of the Washington Supreme Court's interpretation of the state's anti-discrimination law. The state Supreme Court in a prior case interpreted the statute's exemption for non-profit religious organizations to be limited to situations covered by the ministerial exemption doctrine.  In this case, plaintiff that operates a homeless shelter and thrift store and also provides social services sought a declaration that religious organizations have a constitutional right to hire, even in non-ministerial positions, only those who agree with its religious beliefs and who will comply with its religious tenets and behavior requirements. In dismissing the lawsuit, the court found that there was no credible threat of enforcement against plaintiff, and that this suit was a disguised attempt to appeal a Washington Supreme Court decision in violation of the Rooker-Feldman Doctrine.

Hindu Organization Lacks Standing to Challenge State's Caste Discrimination Charges

In Hindu American Foundation, Inc. v. Kish,(ED CA, Aug. 31, 2023, a California federal district court held that a national education and policy organization that promotes religious freedom for Hindu Americans lacks standing to sue the California Civil Rights Department for asserting in enforcement actions that the caste system and caste discrimination is part of Hindu teachings and practices.

... [P]laintiff’s complaint fails to allege facts that, if proven, would show that plaintiff is “sufficiently identified with and subject to the influence” of the individuals it seeks to represent in this lawsuit.... Indeed, it is unclear even which specific individuals plaintiff seeks to represent in this action because its complaint merely alleges that it seeks to protect the constitutional rights of “all Hindu Americans” and “all Americans of faith.”...

See prior related posting.  Courthouse News Service reports on the decision.