RE: Religious accommodation schemes and discriminatory practices

[Volokh, Eugene]

   My question is what should happen if there is such a rule, not 
necessarily what should happen in such a case.

   And my sense is that such rules are likely pretty common, even 
if usually unstated.  There are two norms, as I understand them, in American 
business life generally.  First, a weak norm:  People are usually expected to 
shake hands in certain situations (though some sometimes substitute hugs, for 
people they are close with).  Second, a very strong norm:  If someone offers a 
hand to shake, you shake it.  Indeed, refusing to shake a hand is usually 
perceived as something of an insult.

   Now of course this norm doesn’t apply if the shaking is visibly 
impossible or very difficult, e.g., if the person has a broken arm, or is 
carrying things in that hand, and the like.  And the person might explain, “I’m 
sorry, but my religion forbids me from shaking hands with people of the 
opposite sex.”  That, though, is where the morale costs come in -- some people 
may perceive this as a slight.  (Query whether a man’s refusal to shake a 
woman’s offered hand would generally be perceived differently from a woman’s 
refusal to shake a man’s offered hand, and whether such a difference should 
matter.)  Should employers be able to insist on people adhering these norms, to 
prevent customers and coworkers from feeling slighted?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, October 11, 2016 8:53 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Religious accommodation schemes and discriminatory practices

Exemption requests?  Huh?  There's no indication that the employer here had a 
rule that you must shake the boss's hand, or that the employee sought --let 
alone was denied -- an exemption from such a (nonexistent) rule.

But if an employer were so stupid as to impose such a rule, then yes, I imagine 
the Title VII accommodation requirement, modest as it is, would compel a 
religious exemption.  "morale costs"?  seriously?

On Tue, Oct 11, 2016 at 8:36 AM, Volokh, Eugene 
> wrote:
   I thought I’d pass along another post from Howard Friedman -- 
any thoughts on how religious accommodation schemes (whether RFRA-like or 
Title-VII-like) should deal with religiously motivated refusals to shake hands 
with members of the opposite sex?  Should there be a categorical rule rejecting 
such exemption requests, on the theory that discriminatory practices should 
never be accommodated?  (Should it matter whether the woman suggests, as an 
accommodation, that she not shake hands with anyone, male or female?)  Or 
should an employer have to accommodate such requests, especially if any morale 
cost stemming from the accommodation comes from coworkers’ emotional reactions 
to the religious practice?

   Eugene

Feed: Religion Clause
Posted on: Tuesday, October 11, 2016 7:00 AM
Author: Howard Friedman
Subject: Muslim Caseworker Sues Charging Religious Discrimination

A Bangladeshi Muslim woman who was a social worker and had been employed as a 
case manager by a behavioral healthcare company filed suit in an Oregon state 
court last week charging religious, racial, national origin and disability 
discrimination in her termination.  The complaint (full 
text)
 in Rahman v. Cascade Behavioral Healthcare, Inc., (OR Cir., Ct., filed 
10/7/2016), claims, in part, that adverse employment action against her stemmed 
from her refusing for religious reasons to shake hands with men (including her 
boss), her wearing of a hijab, and her praying at work up to three times per 
day. The Oregon Bureau of Labor & Industries had dismissed her complaint filed 
with them, finding inadequate evidence of discrimination. (Full 
text
 of OBLI order).  The 
Oregonian
 reports on the lawsuit.


View 
article...

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Re: Religious accommodation schemes and discriminatory practices

[Eric Rassbach]

Recently there have been a number of "handshake" incidents in Germany, but as 
far as I can tell mostly in the school context, e.g.:


http://www.independent.co.uk/news/world/europe/teachers-walk-out-of-school-ceremony-in-protest-after-muslim-pupil-refuses-to-shake-class-mistress-a7133961.html




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Tuesday, October 11, 2016 8:36 AM
To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: Religious accommodation schemes and discriminatory practices


   I thought I'd pass along another post from Howard Friedman -- 
any thoughts on how religious accommodation schemes (whether RFRA-like or 
Title-VII-like) should deal with religiously motivated refusals to shake hands 
with members of the opposite sex?  Should there be a categorical rule rejecting 
such exemption requests, on the theory that discriminatory practices should 
never be accommodated?  (Should it matter whether the woman suggests, as an 
accommodation, that she not shake hands with anyone, male or female?)  Or 
should an employer have to accommodate such requests, especially if any morale 
cost stemming from the accommodation comes from coworkers' emotional reactions 
to the religious practice?



   Eugene



Feed: Religion Clause
Posted on: Tuesday, October 11, 2016 7:00 AM
Author: Howard Friedman
Subject: Muslim Caseworker Sues Charging Religious Discrimination



A Bangladeshi Muslim woman who was a social worker and had been employed as a 
case manager by a behavioral healthcare company filed suit in an Oregon state 
court last week charging religious, racial, national origin and disability 
discrimination in her termination.  The complaint (full 
text)
 in Rahman v. Cascade Behavioral Healthcare, Inc., (OR Cir., Ct., filed 
10/7/2016), claims, in part, that adverse employment action against her stemmed 
from her refusing for religious reasons to shake hands with men (including her 
boss), her wearing of a hijab, and her praying at work up to three times per 
day. The Oregon Bureau of Labor & Industries had dismissed her complaint filed 
with them, finding inadequate evidence of discrimination. (Full 
text
 of OBLI order).  The 
Oregonian
 reports on the lawsuit.


View 
article...
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Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Roger Severino]

The argument that the definition of marriage centers on the sex of the spouses 
and not their sexual orientation was a point that was in fact noticed and 
discussed by the Court.


"CHIEF JUSTICE ROBERTS: Counsel, I'm -- I'm not sure it's necessary to get into 
sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves 
Joe, Sue can marry him and Tom can't. And the difference is based upon their 
different sex. Why isn't that a straightforward question of sexual 
discrimination?"


Yes Justice Kennedy dismisses this question out of hand, but that also means 
there is not much, if any, reasoned analysis available for us to examine.



Roger Severino










From: religionlaw-boun...@lists.ucla.edu  
on behalf of Marty Lederman 
Sent: Monday, October 10, 2016 10:40 AM
To: conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics
Subject: Noteworthy, puzzling scholars' brief in Arlene Flowers

Some of you may be familiar with the Washington v. Arlene's Flowers case, which 
will be argued in the Washington Supreme Court next month.  Barronelle Stutzman 
and her husband are the owners of Arlene’s Flowers, Inc., a closely held 
for-profit corporation.  Over the course of nine years, Stutzman regularly sold 
floral arrangements to Robert Ingersoll, knowing that he was gay.  When 
Ingersoll asked Stutzman to sell him flower arrangements for his wedding to 
Curt Freed, however, she refused to provide them, even if they were prepared by 
others in her shop, because doing so, she claimed, would "constitute a 
demonstration of [her] approval for the wedding," whereas in fact she has 
religious objections to same-sex marriages.  (She agreed to provide the raw 
materials for the arrangements--the flowers and such--but not to have her shop 
do the arranging.)

The Washington Attorney General sued Arlene's Flowers, seeking an injunction 
against such discrimination in the future.  (Ingersoll and Freed also sued, 
seeking nominal damages for the costs they incurred when Stutzman refused to 
serve them.)  The principal basis for the suit is a claim of discrimination on 
the basis of sexual orientation, prohibited by the Washington Law Against 
Discrimination (WLAD), RCW 49.60.215, which provides that "It shall be an 
unfair practice for any person or the person's agent or employee to commit an 
act which directly or indirectly results in any distinction, restriction, or 
discrimination, . . . or the refusing or withholding from any person the 
admission, patronage, custom, presence, frequenting, dwelling, staying, or 
lodging in any place of public resort, accommodation, assemblage, or 
amusement."  The forms of prohibited discrimination are listed in RCW 
49.60.030:  "The right to be free from discrimination because of race, creed, 
color, national origin, sex, honorably discharged veteran or military status, 
sexual orientation, or the presence of any sensory, mental, or physical 
disability or the use of a trained dog guide or service animal by a person with 
a disability is recognized as and declared to be a civil right. This right 
shall include, but not be limited to: . . . (b) The right to the full enjoyment 
of any of the accommodations, advantages, facilities, or privileges of any 
place of public resort, accommodation, assemblage, or amusement."

Stutzman defended on both statutory and state and federal constitutional (Free 
Speech and Free Exercise) grounds; but the lower court 
ruled
 in favor of the Attorney General.  The appeal from that decision is now before 
the Washington Supreme Court, which will hear arguments in about five weeks.

A couple of weeks ago, a group of 27 scholars, some of whom are on these 
listservs, filed an amicus 
brief on behalf of 
Arlene's Flowers.  (According to Rick Garnett, it was written by Steve Smith, 
although he is not listed as counsel.)  That brief does not make a 
constitutional argument at all.  Instead, it argues (as I read it) that the 
Court should construe the Washington antidiscrimination statute so as not to 
include Stutzman's refusal as prohibited discriminatory conduct in the first 
place.

The theory of the brief, such as it is, is that Stutzman must not have been 
engaged in discrimination on the basis of sexual orientation, since she was 
willing to make arrangements for Ingersoll--a man who she knew was gay--for 
purposes other than his marriage.  The lower court erred, according to the 
brief, "[i]n erroneously treating the religious conviction Stutzman does have 
as equivalent to a different and more troublesome objection that she does not 
have."  She doesn't discriminate against gays and lesbians -- "only" against 
same-sex marriage.

I, for 

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Laycock, H Douglas (hdl5c)]

Of course many couples weddings are entirely secular; in the very large ARIS 
survey in 2008, 30% of married Americans said that they were not married in a 
religious ceremony.

But to those that believe that marriage is inherently a religious relationship, 
ordained by God and defined by religious rules no matter how the couple or the 
state may think about it, then the wedding that creates that religious 
relationship is inherently a religious ceremony. That is what I understand to 
be the position of objectors like Stutzman. It is religious for her, and 
religiously prohibited, even if it is secular for you.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: Eric J Segall [mailto:eseg...@gsu.edu]
Sent: Monday, October 10, 2016 9:07 PM
To: Laycock, H Douglas (hdl5c) 
Cc: Law & Religion issues for Law Academics ; 
conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Doug, I think you make a good argument. I have two quibbles. The statement that 
a wedding is an "inherently religious context" does not describe my wedding or 
the weddings of millions of Americans.

We are also in a world where somehow the corporate selling of commercial goods 
by a large company has been deemed a "religious" activity so, even though that 
point is maybe not directly relevant to the issues here, I am quite fearful of 
the slippery slope of exemptions laws.

Best,

Eric

Sent from my iPhone

On Oct 10, 2016, at 8:59 PM, Laycock, H Douglas (hdl5c) 
> wrote:

Eric, I agree that it is discrimination. I thought I was clear about that.



I would grant a free exercise exemption, assuming another vendor is available 
without undue difficulty, principally for two reasons. First, for believers 
like Baronelle Stutzman, a wedding is an inherently religious context, where 
the government's interest is weak and the religious interest is strong. And 
second, because the same-sex couple still gets to live their own lives and 
their own identities by their own deepest values. But if an exemption is 
denied, Stutzman does not get to do that. She must surrender her occupation or 
surrender her religious commitments. I don't begin to share her views, but the 
balance of hardships tips decidedly in her favor.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: Eric J Segall [eseg...@gsu.edu]
Sent: Monday, October 10, 2016 6:09 PM
To: Laycock, H Douglas (hdl5c)
Cc: Law & Religion issues for Law Academics; 
conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers
I fail to understand how "I will sell goods to gays and lesbians but I will not 
sell goods to gays and lesbians for their weddings though I will sell goods to 
the exact same weddings as long as gays are not involved" is not quite serious 
discrimination against gays and lesbians. I might be able to see some artistic 
exception on free speech grounds being possibly applicable but the distinction 
Doug suggests can't be right, as Marty persuasive argued. Discrimination can't 
be a matter of degree.

Best,

Eric

Sent from my iPhone

On Oct 10, 2016, at 5:44 PM, Laycock, H Douglas (hdl5c) 
>
 wrote:
I did not sign the scholars' brief, and it is drawing about the reaction I 
expected. But nothing in the brief implies anything like the Ollie's BBQ 
analogy.

The claim in the brief is that discrimination confined to one very narrow 
context, an especially sensitive context with its own legal protections, and 
where the motivation for discriminating is a belief about that special context 
and not any broader hostility to the protected class, should be treated 
differently under the discrimination laws. I agree that the argument would have 
been better made under the Washington constitution. But it does not remotely 
suggest the Ollie's argument, where the discrimination covered the bulk of the 
business, there was no special context with its own legal protections, the 
motive was not a belief about any special context, and the motive could not be 
distinguished from general hostility to the protected class.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903

Re: Religious accommodation schemes and discriminatory practices

[Marty Lederman]

Exemption requests?  Huh?  There's no indication that the employer here had
a rule that you must shake the boss's hand, or that the employee sought
--let alone was denied -- an exemption from such a (nonexistent) rule.

But if an employer were so stupid as to impose such a rule, then yes, I
imagine the Title VII accommodation requirement, modest as it is, would
compel a religious exemption.  "morale costs"?  seriously?

On Tue, Oct 11, 2016 at 8:36 AM, Volokh, Eugene  wrote:

>I thought I’d pass along another post from Howard Friedman
> -- any thoughts on how religious accommodation schemes (whether RFRA-like
> or Title-VII-like) should deal with religiously motivated refusals to shake
> hands with members of the opposite sex?  Should there be a categorical rule
> rejecting such exemption requests, on the theory that discriminatory
> practices should never be accommodated?  (Should it matter whether the
> woman suggests, as an accommodation, that she not shake hands with anyone,
> male or female?)  Or should an employer have to accommodate such requests,
> especially if any morale cost stemming from the accommodation comes from
> coworkers’ emotional reactions to the religious practice?
>
>
>
>Eugene
>
>
>
> *Feed:* Religion Clause
> *Posted on:* Tuesday, October 11, 2016 7:00 AM
> *Author:* Howard Friedman
> *Subject:* Muslim Caseworker Sues Charging Religious Discrimination
>
>
>
> A Bangladeshi Muslim woman who was a social worker and had been employed
> as a case manager by a behavioral healthcare company filed suit in an
> Oregon state court last week charging religious, racial, national origin
> and disability discrimination in her termination.  The complaint (full
> text
> )
> in *Rahman v. Cascade Behavioral Healthcare, Inc.,* (OR Cir., Ct., filed
> 10/7/2016), claims, in part, that adverse employment action against her
> stemmed from her refusing for religious reasons to shake hands with men
> (including her boss), her wearing of a *hijab*, and her praying at work
> up to three times per day. The Oregon Bureau of Labor & Industries had
> dismissed her complaint filed with them, finding inadequate evidence of
> discrimination. (Full text
> 
> of OBLI order).  The Oregonian
> 
> reports on the lawsuit.
>
>
> View article...
> 
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
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Religious accommodation schemes and discriminatory practices

[Volokh, Eugene]

   I thought I’d pass along another post from Howard Friedman -- 
any thoughts on how religious accommodation schemes (whether RFRA-like or 
Title-VII-like) should deal with religiously motivated refusals to shake hands 
with members of the opposite sex?  Should there be a categorical rule rejecting 
such exemption requests, on the theory that discriminatory practices should 
never be accommodated?  (Should it matter whether the woman suggests, as an 
accommodation, that she not shake hands with anyone, male or female?)  Or 
should an employer have to accommodate such requests, especially if any morale 
cost stemming from the accommodation comes from coworkers’ emotional reactions 
to the religious practice?

   Eugene

Feed: Religion Clause
Posted on: Tuesday, October 11, 2016 7:00 AM
Author: Howard Friedman
Subject: Muslim Caseworker Sues Charging Religious Discrimination

A Bangladeshi Muslim woman who was a social worker and had been employed as a 
case manager by a behavioral healthcare company filed suit in an Oregon state 
court last week charging religious, racial, national origin and disability 
discrimination in her termination.  The complaint (full 
text)
 in Rahman v. Cascade Behavioral Healthcare, Inc., (OR Cir., Ct., filed 
10/7/2016), claims, in part, that adverse employment action against her stemmed 
from her refusing for religious reasons to shake hands with men (including her 
boss), her wearing of a hijab, and her praying at work up to three times per 
day. The Oregon Bureau of Labor & Industries had dismissed her complaint filed 
with them, finding inadequate evidence of discrimination. (Full 
text
 of OBLI order).  The 
Oregonian
 reports on the lawsuit.


View 
article...
___
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Re: "California Court Issues TRO Against Kaporos Practices"

[Michael Masinter]

Josh,


Excellent work within extremely short time constraints.


Mike


From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Tuesday, October 11, 2016 8:30:01 AM
To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: Re: "California Court Issues TRO Against Kaporos Practices"


   Those interested in the California Kaporos case might want to 
check out Prof. Josh Blackman’s amicus brief, 
https://www.scribd.com/document/327148724/Brief-Amicus-Curiae-of-Professor-Joshua-Blackman-in-United-Poultry-Concerns-v-Chabad-of-Irvine,
 which argues that there’s no federal jurisdiction; here's the key passage:



   First, plaintiffs wildly speculate that over the next decade, if 
three-hundred chickens are killed annually at a cost of $25 each, the amount in 
controversy will conveniently exceed $75,000. Complaint at ¶ 7. This argument 
is laughable, and warrants sanctions under Rule 11. There is no principle of 
federal jurisprudence under which a plaintiff can arbitrarily aggregate 
speculative damages over the course of a decade to meet the minimum amount in 
controversy. Even worse, because the plaintiffs were seeking a temporary 
restraining order to prohibit the imminent Kapparot ritual in October 2016, it 
is absurd to look out a decade. And why only ten years? Why not twenty, thirty, 
or even a century? If this standard is applied, “any plaintiff filing suit 
would be allowed to show injury.” Hernandez v. Specialized Loan Servicing, LLC, 
No. 14-CV-9404-GW, 2015 U.S. Dist. LEXIS 8695, at *24-*25, (C.D. Cal. Jan. 22, 
2015)(quoting Koller v. W. Bay Acquisitions, LLC, No. 11-CV-117-CRB, 2012 U.S. 
Dist. LEXIS 49712, at *20-*21 (N.D. Cal. Apr. 9, 2012) (quoting Selby v. Bank 
of Am., Inc., No. 09-CV-2079-BTM, 2010 U.S. Dist. LEXIS 139966, at *24 (S.D. 
Cal. Oct. 27, 2010). There is no diversity jurisdiction.

   Second, if plaintiffs speculate that if victorious, their 
attorney’s fees may total more than $75,000. Complaint at ¶ 8. This claim is 
specious, and flatly contrary to law. As the Court noted in its order to show 
cause, “attorney’s fees do not satisfy the UCL standing requirement.” Nor do 
they satisfy the matter in controversy requirement per 28 U.S.C. § 1332(a), 
which requires the matter to exceed $75,000 “exclusive of interest and costs.” 
If fees could be aggregated in a fantasy-victory, plaintiffs could always 
artificially manufacture diversity jurisdiction.

   Third, plaintiffs write that a “A California court would have 
subject matter jurisdiction over the claims.” Complaint at ¶ 9. This is legally 
irrelevant. California courts are courts of general jurisdiction. Federal 
courts are courts of limited subject matter jurisdiction empowered to exercise 
the judicial power of the United States only when authorized to do so by 
Congress. (For a preview of future briefs-to-come if this case is not 
dismissed, citations to state-court decisions are not sufficient to demonstrate 
an Article III injury).

   Fourth, plaintiffs write that “this case requires resolution of 
a substantial question of federal law” because the defendants will “contend 
their actions are protected by the Free Exercise clause of the First 
Amendment.” Complaint at ¶ 10. This is an elemental error of federal pleading. 
Under the Mottley rule, a well-pleaded complaint must raise the federal 
questions on the face of the complaint–it is not enough to speculate about what 
federal questions the defendant may raise in response. Louisville & Nashville 
Railroad Company v. Mottley, 211 U.S. 149 (1908). Nothing in Grable & Sons 
Metal Products, Inc. v. Darue Engineering & Mfg., (2005) 545 U.S. 308, which 
defendants inexplicable cite, is to the contrary. Indeed, Grable does not even 
reference the canonical Mottley rule, which has stood for nearly a century 
without challenge.

   Finally, the Court’s order to show cause seems to conflate 
subject matter jurisdiction and injury for purpose of Article III. Regardless 
of whether the plaintiffs have suffered an injury – again, a dubious 
proposition under Article III even if is permissible in state courts – the 
threshold inquiry is whether there is federal diversity or federal question 
subject matter jurisdiction. Under no set of circumstances have plaintiffs 
established that this court has jurisdiction to proceed.



   Eugene






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Re: "California Court Issues TRO Against Kaporos Practices"

[Volokh, Eugene]

   Those interested in the California Kaporos case might want to 
check out Prof. Josh Blackman’s amicus brief, 
https://www.scribd.com/document/327148724/Brief-Amicus-Curiae-of-Professor-Joshua-Blackman-in-United-Poultry-Concerns-v-Chabad-of-Irvine,
 which argues that there’s no federal jurisdiction; here's the key passage:



   First, plaintiffs wildly speculate that over the next decade, if 
three-hundred chickens are killed annually at a cost of $25 each, the amount in 
controversy will conveniently exceed $75,000. Complaint at ¶ 7. This argument 
is laughable, and warrants sanctions under Rule 11. There is no principle of 
federal jurisprudence under which a plaintiff can arbitrarily aggregate 
speculative damages over the course of a decade to meet the minimum amount in 
controversy. Even worse, because the plaintiffs were seeking a temporary 
restraining order to prohibit the imminent Kapparot ritual in October 2016, it 
is absurd to look out a decade. And why only ten years? Why not twenty, thirty, 
or even a century? If this standard is applied, “any plaintiff filing suit 
would be allowed to show injury.” Hernandez v. Specialized Loan Servicing, LLC, 
No. 14-CV-9404-GW, 2015 U.S. Dist. LEXIS 8695, at *24-*25, (C.D. Cal. Jan. 22, 
2015)(quoting Koller v. W. Bay Acquisitions, LLC, No. 11-CV-117-CRB, 2012 U.S. 
Dist. LEXIS 49712, at *20-*21 (N.D. Cal. Apr. 9, 2012) (quoting Selby v. Bank 
of Am., Inc., No. 09-CV-2079-BTM, 2010 U.S. Dist. LEXIS 139966, at *24 (S.D. 
Cal. Oct. 27, 2010). There is no diversity jurisdiction.

   Second, if plaintiffs speculate that if victorious, their 
attorney’s fees may total more than $75,000. Complaint at ¶ 8. This claim is 
specious, and flatly contrary to law. As the Court noted in its order to show 
cause, “attorney’s fees do not satisfy the UCL standing requirement.” Nor do 
they satisfy the matter in controversy requirement per 28 U.S.C. § 1332(a), 
which requires the matter to exceed $75,000 “exclusive of interest and costs.” 
If fees could be aggregated in a fantasy-victory, plaintiffs could always 
artificially manufacture diversity jurisdiction.

   Third, plaintiffs write that a “A California court would have 
subject matter jurisdiction over the claims.” Complaint at ¶ 9. This is legally 
irrelevant. California courts are courts of general jurisdiction. Federal 
courts are courts of limited subject matter jurisdiction empowered to exercise 
the judicial power of the United States only when authorized to do so by 
Congress. (For a preview of future briefs-to-come if this case is not 
dismissed, citations to state-court decisions are not sufficient to demonstrate 
an Article III injury).

   Fourth, plaintiffs write that “this case requires resolution of 
a substantial question of federal law” because the defendants will “contend 
their actions are protected by the Free Exercise clause of the First 
Amendment.” Complaint at ¶ 10. This is an elemental error of federal pleading. 
Under the Mottley rule, a well-pleaded complaint must raise the federal 
questions on the face of the complaint–it is not enough to speculate about what 
federal questions the defendant may raise in response. Louisville & Nashville 
Railroad Company v. Mottley, 211 U.S. 149 (1908). Nothing in Grable & Sons 
Metal Products, Inc. v. Darue Engineering & Mfg., (2005) 545 U.S. 308, which 
defendants inexplicable cite, is to the contrary. Indeed, Grable does not even 
reference the canonical Mottley rule, which has stood for nearly a century 
without challenge.

   Finally, the Court’s order to show cause seems to conflate 
subject matter jurisdiction and injury for purpose of Article III. Regardless 
of whether the plaintiffs have suffered an injury – again, a dubious 
proposition under Article III even if is permissible in state courts – the 
threshold inquiry is whether there is federal diversity or federal question 
subject matter jurisdiction. Under no set of circumstances have plaintiffs 
established that this court has jurisdiction to proceed.



   Eugene






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