Pedreira v. Kentucky Baptist Homes for Children

• Decision Date: 31 March 2008
• Docket Number: Civil Action No. 3:00CV-210-S.
• Citation: 553 F.Supp.2d 853
• Parties: Alecia M. PEDREIRA, et al., Plaintiffs v. KENTUCKY BAPTIST HOMES FOR CHILDREN, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

553 F.Supp.2d 853

Alecia M. PEDREIRA, et al., Plaintiffs v. KENTUCKY BAPTIST HOMES FOR CHILDREN, INC., et al., Defendants.

Civil Action No. 3:00CV-210-S.

United States District Court, W.D. Kentucky, at Louisville.

March 31, 2008.

Alex J. Luchenitser, Americans United for Separation of Church, Alexander E. Bennett, Alicia A.W. Truman, E. Lea Johnston, Elizabeth Leise, Joshua A. Wilson, Murray R. Garnick, David B. Bergman, Arnold & Porter LLP, Ayesha Khan, Washington, DC, Bruce R. Kelly, Kenneth Y. Choe, Matthew Coles, New York, N.Y. William E. Sharp, ACLU of Kentucky Foundation, Inc., Vicki L. Buba, Oldfather Law Firm, for Plaintiffs.

Gregory S. Baylor, Religious Liberty Advocates of the Christian Legal Society, Springfield, VA, John 0. Sheller, Jeffrey Calabrese, Stoll Keenon Ogden PLLC, Jan M. West, Jonathan D. Goldberg, Jennifer K. Luhrs, Goldberg & Simpson, PSC, Louisville, KY, Robert J. Muise, Patrick T. Gillen, Kimberly A.R. Daniels, Ann Arbor, MI, Timothy J. Tracey, Springfield, VA, for Defendants.

MEMORANDUM OPINION

CHARLES R. SIMPSON, III, District Judge.

This matter is before the court for consideration of the following motions:

1. Motion to dismiss for lack of jurisdiction by Mark D. Birdwhistell, Secretary of the Cabinet for Health and Family Services, and Norman A. Arflack, Secretary of the Justice and Public Safety Cabinet (collectively, "the Commonwealth") (DN 275).

2. Motion to dismiss for lack of jurisdiction by Kentucky Baptist Homes for Children, Inc. ("KBHC") (DN 276).

3. Motion of the plaintiffs, Alecia M. Pedreira, et al., for leave to file a second amended complaint (DN 288).

4. Motion of the plaintiffs, Alecia M. Pedreira, et al, for hearing on pending motions (DN 289).

5. Motion of the defendant, Kentucky Baptist Homes for Children, Inc., to strike the motion for leave to file a second amended complaint (DN 294).

6. Motion of the plaintiffs, Alecia M. Pedreira, et al., for leave to file a surreply in support of their motion for leave to file a second amended complaint (DN 298).

The briefs of the parties articulately detail the issues and arguments for the court. Therefore, the motion of the plaintiffs for oral argument will be denied. The motion for leave to file a sur-reply will be granted. The motion of KBHC to strike the motion for leave to file a second amended complaint will be denied. KBHC urges quite reasonably that the court should strike the motion on the grounds of untimeliness, prejudice, and for various perceived procedural irregularities. However, in order to ensure that this opinion considers and addresses fulsomely the standing arguments, the court will sidestep these issues, with the exception of the futility argument, and consider the proposed amendments herein.¹ For the reasons explained in greater detail later in this opinion, the motion of the plaintiffs for leave to file a second amended complaint will be denied as futile. Long v. United States, 2007 WL 2725973 (W.D.Ky.2007), citing, North American Specialty Insurance Co. v. Myers, 111 F.3d 1273, 1284 (6th Cir.1997). The motions to dismiss the Establishment Clause claim for lack of standing will be granted, and the action will be dismissed with prejudice.

In April of 2003, the court denied the defendants' motion for judgment on the pleadings challenging whether the plaintiffs had standing as state and federal taxpayers to bring an Establishment Clause challenge to the receipt of state and federal money by KBHC for the care of youth placed in its care as wards of the state. The motion was grounded primarily in the contention that there was no factual basis for a finding of a "good-faith pocketbook injury" alleged by this purported unconstitutional conduct. The court ordered further briefing, and permitted the plaintiffs to file an amended complaint amplifying the factual allegations undergirding its claims. The court held that the plaintiffs had satisfied the Doremus [v. Board of Education, 342 U.S. 429, 434-435, 72 S.Ct. 394, 96 L.Ed. 475 (1952)] test for taxpayer standing on the facts alleged, and permitted the claims to go forward.

The court is now faced with a new round of motions to dismiss which address new contours added to the body of law addressing Establishment Clause claims raised by state and federal taxpayers.

In June of 2007, the United States Supreme Court handed down its opinion in Hein v. Freedom Religion Foundation, Inc., ___ U.S. ___, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) which reaffirmed its longstanding decision in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). In so doing, the Court found Flast to have been incorrectly applied by the United States Court of Appeals for the Seventh Circuit, and "limit[ed] the expansion of federal taxpayer and citizen standing in the absence of specific statutory authorization to an outer boundary drawn by the results in Flast ..." Hein, 127 S.Ct. at 2569 (emphasis in original), quoting, United States v. Richardson, 418 U.S. 166, 196, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). The Court noted that the Hein case fell outside the narrow exception that Flast created to the general rule against taxpayer standing, and reemphasized that "the Flast exception has a `narrow application in our precedent,' [DaimlerChrysler Corp. v.] Cuno, 547 U.S. [332, at 348], 126 S.Ct. [1854], at 1865, [164 L.Ed.2d 589 (2006)] that only `slightly lowered' the bar on taxpayer standing, Richardson, 418 U.S., at 173, 94 S.Ct. 2940, 41 L.Ed.2d 678, and that must be applied with `rigor,'" Valley Forge [Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464,] at 481, 102 S.Ct. 752[, 70 L.Ed.2d 700 (1982)].

Hein, 127 S.Ct. at 2568.

The defendants ask the court to find that a proper and rigorous application of the Flast test, as further refined by the Hein analysis, yields the conclusion that the taxpayers in this case lack standing to bring their Establishment Clause claim. We conclude that the defendants are correct, and that the proposed amendments offered by the plaintiffs in their tendered Second Amended Complaint would not alter this conclusion. Therefore the claim must be dismissed.

In order to meet the "case or controversy" requirement of Article III, the plaintiffs must demonstrate standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing is a necessary component of the court's subject matter jurisdiction. Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir.1996). Courts have the continuing obligation to examine their own subject matter jurisdiction. Zurich Insurance Co. v. Logitrans Inc., 297 F.3d 528, 531 (6th Cir.2002).

Background

The following facts, taken from our July 23, 2001 opinion, are restated herein for purposes of continuity only. The matters presently before the court have advanced well beyond the initial premises of the original complaint. Thus these facts are pertinent only insofar as they provide context for the reader.

On October 23, 1998, after approximately seven months of employment, Alicia Pedreira ("Pedreira") was terminated from her position as a Family Specialist at Spring Meadows Children's Home, a facility owned and operated by KBHC.

The decision to terminate her was made after a photograph taken of her together with her acknowledged "life partner" was displayed at the Kentucky State Fair, and her lesbian lifestyle became known to KBHC. The termination statement she received stated "Alicia Pedreira is being terminated on October 23, 1998, from Kentucky Baptist Homes for Children because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values."

KBHC then issued a public statement with respect to the termination to the effect that "[i]t is important that we stay true to our Christian values. Homosexuality is a lifestyle that would prohibit employment."

KBHC has required that all its employees "exhibit values in their professional conduct and personal lifestyles that are consistent with the Christian mission and purpose of the institution." KBHC also adopted an employment policy which stated that

[h]omosexuality is a lifestyle that would prohibit employment with Kentucky Baptist Homes for Children. The Board does not encourage or intend for staff to seek out people within the organization who may live an alternative lifestyle, we will however, act according to Board policy if a situation is brought to our attention.

Complaint, ¶¶ 25, 29, 34, 35.

Pedreira filed this action challenging her termination and the policies adopted by KBHC on the ground that its actions constitute religious discrimination.

A second plaintiff in this action, Karen Vance ("Vance"), a social worker living in California, alleged that she wished to relocate to Louisville to be closer to her aging parents. She claimed that there were employment positions open at KBHC for which she was qualified, but for which she had not applied because she is a lesbian. She asserted that her application for a position with KBHC would be futile in light of its formal and well-publicized policy prohibiting gays and lesbians from employment. Complaint, ¶¶ 41, 42, 43. Vance claimed that KBHC's hiring policy constitutes religion-based employment discrimination.

Seven individuals, identified in the complaint as Kentucky taxpayers, were also named plaintiffs in the action. They claimed that government funds provided to KBHC were used to finance staff positions which were filled according to religious tenets, and to provide services designed to instill Christian values and teachings in the children. These plaintiffs contended that state money was thus used for religious purposes, in violation of the United States Constitution.

The Commonwealth of Kentucky was sued on the ground that it violated the Establishment Clause of the First Amendment by providing government funds to KBHC. There is no dispute that KBHC has contracted with...