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Presbytery of New Jersey of Orthodox Presbyterian Church v. Florio

filed: November 16, 1994.

THE PRESBYTERY OF NEW JERSEY OF THE ORTHODOX PRESBYTERIAN CHURCH, A NEW JERSEY CORPORATION; CALVARY ORTHODOX PRESBYTERIAN CHURCH OF WILDWOOD, A NEW JERSEY CORPORATION; REV. DAVID B. CUMMINGS APPELLANTS
v.
JAMES FLORIO, GOVERNOR OF NEW JERSEY, IN HIS OFFICIAL CAPACITY; ROBERT J. DEL TUFO, ATTORNEY GENERAL OF NEW JERSEY, IN HIS OFFICIAL CAPACITY; MARILYN FLANZBAUM; ROMAN ANGEL; BETTY CARSON; OLGA L. VAZQUEZ-CLOUGH; FELTON LINGO, SR.; REINHOLD W. SMYCZEK; CASEY TAM, ALL IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE DIVISION ON CIVIL RIGHTS; C. GREGORY STEWART, IN HIS OFFICIAL CAPACITY AS EXECUTIVE OF THE DIVISION ON CIVIL RIGHTS; JOHN DOE(S); JANE DOE(S), ADDRESSES UNKNOWN, THE LAST TWO BEING FICTITIOUS NAMES, THE REAL NAMES OF SAID DEFENDANTS BEING PRESENTLY UNKNOWN OR KNOWN ONLY IN PART TO PLAINTIFFS, SAID FICTITIOUS NAMES BEING INTENDED TO DESIGNATE ORGANIZATIONS, PERSONS AND OTHERS ACTING IN CONCERT WITH ANY OF THE DEFENDANTS WHO ENGAGE IN, ARE ENGAGED IN, OR WHO INTEND TO ENGAGE IN, THE CONDUCT OF DEFENDANTS COMPLAINED OF HEREIN, OR WHO WOULD HAVE THE RIGHT TO FILE OR SEEK ENFORCEMENT OF ADMINISTRATIVE, EQUITABLE OR LEGAL COMPLAINTS OR SUITS OR TO ASSERT ANY OTHER LEGAL CLAIMS OR REMEDIES OR ENFORCEMENT THEREOF V. THE PLAINTIFFS UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION, AS AMENDED BY THE 1992 AFFECTIONAL AND SEXUAL ORIENTATION AMENDMENTS, AND ALL OTHERS SIMILARLY SITUATED, APPELLEES



Appeal from the United States District Court for the District of New Jersey. (D.C. Civil Action No. 92-cv-01641).

Present: Hutchinson, Roth and Rosenn, Circuit Judges.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

Appellants, the Presbytery of New Jersey of the Orthodox Presbyterian Church ("Presbytery"), the Calvary Orthodox Presbyterian Church of Wildwood ("Calvary") and Reverend David B. Cummings ("Cummings"), a clergyman of the Orthodox Presbyterian denomination (collectively "plaintiffs"), appeal an order of the district court dismissing their complaint.*fn1 Plaintiffs assert recent amendments to the New Jersey Law Against Discrimination (the "LAD" or "Act"), N.J. Stat. Ann. §§ 10:5-1 to 10:5-42 (West 1993 & Supp. 1994), violate the First Amendment right to freedom of speech. The amendments they question added to the category of impermissible distinctions "affectional or sexual orientation" to the statute's ban on certain forms of discrimination. Relying on a responsible state official's affidavit that the state would not enforce the LAD against Calvary or Presbytery as churches or Cummings as a church pastor, the district court held that the case was not ripe.

We conclude, however, that the controversy is ripe because Cummings arguably alleges the statute threatens his right as an individual citizen to speak out against male and female homosexual acts and the state has expressly refused to offer any assurance it will not prosecute Cummings if he does so outside his church. The same, however, is not true of the institutional church plaintiffs, Presbytery and Calvary. Accordingly, we will reverse the district court's order and remand for further proceedings consistent with this opinion in so far as its order applies to Reverend Cummings. We will, however affirm the district court's dismissal without prejudice of this action as it pertains to the institutional plaintiffs.

I.

In April 1992, the plaintiffs brought this suit to enjoin enforcement of recent amendments to the LAD which had added "affectional or sexual orientation" to the personal traits or characteristics generally protected against discrimination in public accommodations,*fn2 employment and housing. See N.J. Stat. Ann. §§ 10:5-4, 10:5-12 (West Supp. 1994). The statute also prohibits "aiding, abetting, inciting, compeling or coercing" others into violations of its prohibitions against discrimination. N.J. Stat. Ann. § 10:5-12(e); see N.J. Stat. Ann. § 10:5-12(n). The plaintiffs originally challenged these and other provisions as an infringement on the First Amendment right to the free exercise of religion and association as well as the right to freedom of speech. On May 15, 1992, they filed a motion for a preliminary injunction and on May 22, filed an amended complaint. On June 11, 1992, the state filed a motion for summary judgment along with a motion for dismissal. The district court heard oral argument but denied the motion for a preliminary injunction holding that the plaintiffs failed to establish both a likelihood of success on the merits and irreparable harm. The plaintiffs appealed to this Court and on December 14, 1992, we affirmed the district court in an unpublished memorandum opinion. Presbytery of New Jersey v. Florio, No. 92-5339, slip. op. at 13 (3d Cir. Dec. 14, 1992) ("Presbytery I "), see 983 F.2d 1052 (3d Cir. 1992) (Table). Because of the state's affidavit stating its intention not to enforce the Act against religious institutions, we held that the plaintiffs failed to demonstrate the possibility of immediate and irreparable harm. Id. at 9-10. We also held that the possibility of private enforcement of the Act by activist homosexual groups was too remote to constitute an immediate threat of potential harm and, in any event, the private parties would not be bound by the injunction sought. Id. at 10-12. We specifically refused to comment on the district court's Discussion of the plaintiffs' likelihood of success on the merits. Id. at 13.

Following our decision, the district court heard argument on the state's Rule 12(b)(1) motion to dismiss. The state argued that the plaintiffs lacked standing, the case was not ripe and that the federal court should abstain under Railroad Commission of Texas v. Pullman, 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). The district court granted the state's motion and dismissed the complaint. Presbytery of New Jersey v. Florio, 830 F. Supp. 241 (D.N.J. 1993) ("Presbytery II "). It held that the case was not ripe, based on the state's affidavit that it would not enforce the Act against the institutional plaintiffs as churches or Cummings in his capacity as a clergyman of the Orthodox Presbyterian Church. Id. at 248-50.*fn3 The plaintiffs filed a timely notice of appeal.

II.

The LAD, originally enacted in 1945, prohibits discrimination in employment, labor organization membership, public accommodations and real estate, financial, and business transactions. In 1991, the New Jersey legislature added "affectional or sexual orientation" to the personal characteristics of race, creed, color, national origin, ancestry, age, sex, and marital status previously protected.*fn4 Under the Act, it is unlawful for an employer "to refuse to hire or employ or to bar or to discharge or require to retire" any individual on the basis of a protected characteristic. Id. § 10:5-12(a). The Act also prohibits the printing or circulating of any statement which expresses, directly or indirectly, that employment opportunities for persons with the protected characteristics will be limited. Id. § 10:5-12(c). Public accommodations are similarly restrained. See id. § 10:5-12(f). In addition, the LAD makes it illegal for any individual to refuse to transact business with individual groups who have any of the protected characteristics. Id. §§ 10:5-12(l), (m). The Act also makes it illegal "to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so." Id. § 10:5-12(e). Still another section applying the Act's prohibition against aiding, abetting, inciting or coercing violations of subsection (l) and (m) specifically prohibits incitements to boycott persons who belong to the protected groups. Id. § 10:5-12(n)(2). Finally, the Act requires owners of public accommodations and employers to post public notices informing employees and patrons of their rights under the Act. Id. § 10:5-12(j).

The Act exempts religious organizations from compliance in the selection of their own employees and it permits religious organizations to restrict rental or use of their own property to members of their own faith. Id. §§ 10:5-12(a), 10:5-5(n). The Act does not apply to private clubs or facilities for religious education. Id. § 10:5-5(l).

The state itself may enforce the Act's civil penalties against violators. An aggrieved individual may begin the process of civil enforcement by filing a complaint with the state Division on Civil Rights ("DCR") or proceeding directly to state court. Id. § 10:5-13 (West 1993). The Act specifically grants standing to sue to "any individual who has been discriminated against" and "any organization which represents or acts to further the interests of individuals who have been discriminated against." Id. § 10:5-38 (West 1993). The successful plaintiff may recover compensatory and punitive damages, fines, and attorney fees. Id. § 10:5-3; id. § 10:5-14.1a (West 1993); id. § 10:5-27.1 (West 1993). The Act is to be liberally construed to accomplish its purpose of eradicating the kinds of discrimination it prohibits. See id. § 10:5-3.

The Orthodox Presbyterian Church ("OPC") is a national denomination with 170 member churches, including Calvary. The OPC split from the Presbyterian Church (U.S.A.) in 1936 over a doctrinal difference.*fn5 Presbytery is a New Jersey religious corporation and the formal governing body of OPC churches in New Jersey. At the time plaintiffs initially filed their complaint, the OPC had 2,113 members in New Jersey.

In their complaint, the plaintiffs allege the following. Based upon The Holy Bible and church doctrine, the OPC teaches that homosexuality, bisexuality, and heterosexual sex outside of marriage are grievous sins. Plaintiffs also allege that they

have always in the past, presently do and since the 1992 amendments, have directly or indirectly discriminated against and made reasonable distinctions based upon homosexuality, bisexuality and heterosexual sex outside of marriage. For example, in New Jersey the plaintiffs express, speak and preach against homosexuality, adultery and fornication, calling it variously an abomination and sinful. . . . They also disseminate and circulate such speech and distinctions throughout New Jersey and the world. . . . They even print and disseminate materials condemning sexual sins. . . . Plaintiffs, and their members, also inquire about the sexual practices of prospective employees and are continuing to do so despite the existence of the 1992 amendments.

Complaint P 49, Appellants' Appendix ("App.") at 217. Cummings and members of his congregation "speak out about homosexuality, bisexuality and heterosexual sex outside of marriage, make reasonable distinctions based on such practices, lobby against them, and circulate literature condemning them. They encourage, aid and abet discrimination and reasonable distinctions against homosexuals, bisexuals and heterosexuals engaging in sex outside of marriage." Id. P 51, App. at 217-18. Furthermore, "plaintiffs have always in the past, presently do and since the amendments have refused to knowingly buy from, contract with or otherwise do business with persons on the basis of that person's homosexual, bisexual or heterosexual practices." Id. P 57, App. at 220. Plaintiffs also "have always in the past, presently do and since the amendments have refused to employ any individual who is practicing any public sexual sin, including fornication, adultery and homosexuality, and they make reasonable distinctions based on such acts." Id. P 69, App. at 223.

Initially, plaintiffs contended that various elements of the Act violated their First, Fifth, Ninth and Fourteenth Amendment rights. The allegedly offending sections included: sections 10:5-12(a) and (c) (applicable to employers); section 10:5-12(f) (applicable to public accommodations); sections 10:5-12(e) and (n) (prohibition against aiding, abetting, or inciting violations); section 10:5-12(j) (notice posting provision); and sections 10:5-12(l) and (m) (prohibition of boycotts and refusal to do business).

In response to plaintiffs' initial request for a preliminary injunction, the Director of the DCR, C. Gregory Stewart, filed an affidavit setting forth the DCR's and attorney general's position on enforcement of the Act against religious institutions. The Stewart affidavit averred that the state did not consider churches places of "public accommodations." Thus, the sections relating to public accommodations were inapplicable to the institutional plaintiffs. Stewart further stated that churches were considered exempt in their hiring of internal employees. Due to "First Amendment concerns,"

the Division has not in the past prosecuted and has no intention to prosecute [under sections 10:5-12(c), (e), (f), (j), (l) & (m)] essentially exempt churches for sincerely-held religious belief or practice, or speech consistent with such belief, or for a refusal to engage in certain speech or for following their religious tenets . . . . Hence, the Division would not even attempt to enforce those provisions in the circumstances of sincerely-held religious reasons such as plaintiffs express here. . . .

App. at 296. Stewart also made the following general statement:

It has been the consistent construction and interpretation of the LAD that, consonant with constitutional legal barriers respecting legitimate belief and free exercise protected by the First Amendment, the State was not authorized to regulate or control religious worship, beliefs, governance, practice or liturgical norms, even where ostensibly or colorably at odds with any of the LAD prohibited categories of discrimination.

Moreover, the Division has not and has no intention to engage in any determination or judgment as to what is or is not a "religious activity" of a church, or to determine what is or is not a "tenet" of religious faith. Within First Amendment limits, all of plaintiffs' claimed religiously-based free exercises of faith are unthreatened by a reasoned construction of the LAD consistent with its meaning and long enforcement history.

App. at 294-96. The affidavit did not, however, disavow enforcement against the members of the church for their public activities nor does it preclude enforcement against Cummings for his activities outside the Church.

In light of the Stewart affidavit and our prior decision in Presbytery I, the parties agree that the scope of their challenge on the merits to the Act has been significantly limited. The plaintiffs now challenge only section 10:5-12(e), which makes it illegal "to aid, abet, incite, compel or coerce" forbidden acts, section 10:5-12(n), which makes it illegal "to aid, abet, incite, compel, coerce or induce" boycotts or refusals to do business and section 10:5-12(j), the notice posting provision. Presbytery II, 830 F. Supp. at 247; Brief of Appellants at 6. Plaintiffs argue that the first two sections are impermissible restrictions on freedom of speech and the last provision is a violation of the freedom of conscience and forced speech. Before the district court, however, the plaintiffs conceded that in light of the representations of the DCR, the sections have no applicability to the institutional plaintiffs Presbytery and Calvary. Id.

III.

If this case is ripe, and if any of the plaintiffs have standing to assert their free speech claim, the district court would have subject matter jurisdiction under 28 U.S.C.A. §§ 1331, 1343 (West 1993) and 28 U.S.C.A. §§ 2201, 2202 (West 1994). The state contends, however, that the district court lacked jurisdiction because the plaintiffs did not present an Article III justiciable controversy. The district court agreed and dismissed the case on this ground. Because the district court did not reach the merits of the plaintiffs' claim, the dismissal was without prejudice.*fn6 The district court's ...


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