Pedreira v. Kentucky Baptist Homes for Children

• Decision Date: 31 August 2009
• Docket Number: No. 08-5538.,08-5538.
• Citation: 579 F.3d 722
• Parties: Alicia M. PEDREIRA; Karen Vance; Paul Simmons; Johanna W.H. Van Wijk-Bos; and Elwood Sturtevant, Plaintifs-Appellants, v. KENTUCKY BAPTIST HOMES FOR CHILDREN, INC.; Ishmun F. Burks, Secretary of the Commonwealth of Kentucky Justice and Public Safety Cabinet; and Janie Miller, Secretary of the Commonwealth of Kentucky Cabinet for Health and Family Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

579 F.3d 722

Alicia M. PEDREIRA; Karen Vance; Paul Simmons; Johanna W.H. Van Wijk-Bos; and Elwood Sturtevant, Plaintifs-Appellants, v. KENTUCKY BAPTIST HOMES FOR CHILDREN, INC.; Ishmun F. Burks, Secretary of the Commonwealth of Kentucky Justice and Public Safety Cabinet; and Janie Miller, Secretary of the Commonwealth of Kentucky Cabinet for Health and Family Services, Defendants-Appellees.

No. 08-5538.

United States Court of Appeals, Sixth Circuit.

Argued: March 11, 2009.

Decided and Filed: August 31, 2009.

ARGUED: Alexander Joseph Luchenitser, Americans United For Separation Of Church and State, Washington, D.C., for Appellants. Jonathan David Goldberg, Goldberg Simpson, LLC, Louisville, Kentucky, John O. Sheller, Stoll Keenon Ogden PLLC, Louisville, Kentucky, for Appellees. ON BRIEF: Alexander Joseph Luchenitser, Ayesha N. Khan, Americans United for Separation of Church and State, Washington, D.C., David B. Bergman, Elizabeth Leise, Alicia A.W. Truman, Joshua P. Wilson, Arnold & Porter LLP, Washington, D.C., Kenneth Y. Choe, James D. Esseks, American Civil Liberties Union Foundation, New York, New York, David A. Friedman, William E. Sharp, American Civil Liberties Union of Kentucky, Louisville, Kentucky, Daniel Mach, American Civil Liberties Union Program On Freedom of Religion & Belief, Washington, D.C., for Appellants. Jonathan David Goldberg, Goldberg Simpson, LLC, Louisville, Kentucky, John O. Sheller, Jeffrey A. Calabrese, Stoll Keenon Ogden PLLC, Louisville, Kentucky, Patrick T. Gillen, Ann Arbor, Michigan, Timothy J. Tracey, Center For Law & Religious Freedom, Springfield, Virginia, LaDonna Lynn Koebel, Josua C. Billings, Commonwealth of Kentucky, Frankfort, Kentucky, for Appellees. Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia, Edward L. White III, The American Center for Law & Justice, Ann Arbor, Michigan, for Amici Curiae.

Before: CLAY and GIBBONS, Circuit Judges; GREER, District Judge.^*

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Plaintiffs-appellants Alicia M. Pedreira, Karen Vance, and several Kentucky taxpayers¹ appeal the district court's dismissal of their claims against defendants-appellees Kentucky Baptist Homes for Children, Inc. ("KBHC"); Ishmun F. Burks, Secretary of the Commonwealth of Kentucky Justice and Public Safety Cabinet; and Janie Miller, Secretary of the Commonwealth of Kentucky Cabinet for Health and Family Services.² Pedreira and Vance brought suit against KBHC for its policy of firing and not hiring gay and lesbian employees, alleging discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Kentucky Civil Rights Act, and the plaintiffs brought suit against all defendants for violations of the Establishment Clause of the First Amendment. The United States District Court for the Western District of Kentucky granted KBHC's motion to dismiss the employment discrimination claims and, in a subsequent order, dismissed the plaintiffs' First Amendment claims against all defendants because it concluded that the plaintiffs did not have standing.

For the reasons that follow, we affirm the dismissal of the plaintiffs' employment discrimination claims, but we reverse the dismissal of the plaintiffs' First Amendment claims and remand them for further proceedings.

I.

KBHC is funded by Kentucky for its participation in the "Alternatives for Children Program," which provides placement resources for children who have been, or are at risk of being, abused or neglected. In 1998, plaintiff Alicia Pedreira was terminated from her job as a Family Specialist at Spring Meadows Children's Home, a facility owned and operated by KBHC, when members of KBHC's management discovered a photograph at the Kentucky State Fair of Pedreira and her female partner at an AIDS fundraiser. Pedreira's termination notice indicated that she was fired "because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values." After her termination, KBHC announced as official policy that "[i]t is important that we stay true to our Christian values. Homosexuality is a lifestyle that would prohibit employment."

Karen Vance is a social worker from the Louisville area. She would have applied for positions at KBHC, but because she is a lesbian, she felt that it was futile to apply due to KBHC's formal and well-publicized policy prohibiting gays and lesbians from employment. In 2000, Pedreira and Vance brought suit against KBHC alleging violations of Title VII and the Kentucky Civil Rights Act in terminating and refusing to hire gay and lesbian employees.

This employment discrimination suit was consolidated with an action brought by Pedreira and Vance, joined by six Kentucky taxpayers,³ against all defendants alleging violations of the Establishment Clause. The plaintiffs claimed that KBHC is a pervasively sectarian institution that uses state and federal funds for the religious indoctrination of children. According to the plaintiffs, KBHC has received more than $100 million in state government funds since 2000. KBHC acknowledges that it has received an average of $12.5 million per year from Kentucky over the last decade, bringing the amount to approximately $125 million. Drawing on legislative documents and budget reports, the plaintiffs contend that Kentucky, in particular the Secretaries of the Justice and Public Safety Department and the Cabinet for Health and Family Services, are aware that state money is funding religious indoctrination.

The plaintiffs presented the following evidence of KBHC's sectarian mission. In its annual report, KBHC's president announced: "We know that no child's treatment plan is complete without opportunities for spiritual growth. The angels rejoiced last year as 244 of our children made decisions about their relationships with Jesus Christ." He further committed resources to KBHC's religious goals: "[W]e are committed to hiring youth ministers in each of our regions of service to direct religious activities and offer spiritual guidance to our children and families." In its news release, KBHC's president said that KBHC's "mission is to provide care and hope for hurting families through Christ-centered ministries. I want this mission to permeate our agency like the very blood throughout our bodies. I want to provide Christian support to every child, staff member, and foster parent." KBHC displays religious iconography throughout its facilities, leads group prayer before meals and during staff meetings, and requires its employees to incorporate its religious tenets in their behavior. Kentucky contracted with a private company to conduct reviews of KBHC's facilities. These reviews contain 296 interview responses from youth describing KBHC's religious practices as coercive.

The defendants filed a series of dispositive motions. The district court granted KBHC's motion to dismiss Pedreira's and Vance's claims of employment discrimination, finding that sexual orientation is not a protected class under either Title VII or the Kentucky Civil Rights Act and that Pedreira and Vance had failed to show that they had been discriminated against because of their refusal to comply with KBHC's religion. Pedreira v. Ky. Baptist Homes for Children, Inc., 186 F.Supp.2d 757, 762 (W.D.Ky.2001) ("Pedreira I"). The district court denied the defendants' motion for summary judgment on the First Amendment allegations, finding that the plaintiffs had adequately asserted that funding to KBHC has the impermissible effect of advancing religion and therefore violates the Establishment Clause. Id. at 764. The district court denied the plaintiffs' motion for reconsideration. The plaintiffs filed interlocutory appeals for the dismissal of the employment discrimination claims, but the appeals were dismissed for lack of appellate jurisdiction. Pedreira v. Ky. Baptist Homes for Children, Inc., No. 3:00CV-210-S, 2007 WL 316992, at *1 (W.D.Ky. Jan. 29, 2007) ("Pedreira II").

In 2003, the defendants moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), challenging the plaintiffs' standing to bring allegations of violations of the Establishment Clause. The district court found that the plaintiffs had sufficiently alleged taxpayer standing and denied the defendants' motion. Pedreira v. Ky. Baptist Homes for Children, Inc., No. 3:00CV-210-S, slip op. at 3 (W.D.Ky. Apr. 16, 2003) ("Pedreira III"). The district court also permitted the plaintiffs to file an amended complaint. Id.

In 2006, after mediation was attempted and failed, the plaintiffs sought to file a second amended complaint, asserting that KBHC is a state actor and suggesting a new theory of recovery. Pedreira II, 2007 WL 316992, at *2. The district court denied the motion, finding that allowing the plaintiffs' amendment would cause prejudice to the defendants and an imposition on the court's resources. Id.

The parties then filed a new round of motions. The defendants submitted, inter alia, two subsequent motions to dismiss for lack of subject matter jurisdiction; the plaintiffs submitted, inter alia, another motion for leave to file a second amended complaint and a motion for a hearing on the motions. Pedreira v. Ky. Baptist Homes for Children, 553 F.Supp.2d 853, 854 (W.D.Ky.2008) ("Pedreira IV"). The district court found that the Supreme Court's recent opinion in Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007), narrowed taxpayer standing and granted the defendants' motion to dismiss for lack of standing that was previously denied. Pedreira IV, 553 F.Supp.2d at 856.

The plaintiffs appealed to this court. The National Legal Foundation and the American Center for Law & Justice submitted amicus briefs in support of the defendants.

II.

A. Employment Discrimination

We review a district court's grant of a motion to dismiss de novo. See Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)....