The U.S. Supreme Court has declined to review a case filed in 2018 by the Pasadena Republican Club against the Western Justice Center, then-Western Justice Center Executive Director Judith Chirlin, and the city of Pasadena for alleged political and religious discrimination.
“The Court declined our request for review,” Anthony Caso, the attorney who filed the case on behalf of the Pasadena Republican Club, said of the Supreme Court’s decision last Friday. “The case is now at an end.”
Reputation in Danger
In early 2017, the Pasadena Republican Club rented space in the Western Justice Center’s Maxwell House in west Pasadena for $190 for their April 20, 2017, meeting, which was to feature as a speaker Dr. John Eastman, a conservative lawyer and former dean of Chapman University’s Fowler School of Law. Eastman had also previously chaired the National Organization for Marriage, an organization that spearheaded Proposition 8 in 2008 to ban same-sex marriage in California.
Upon finding out about Eastman’s views, the Western Justice Center’s executive committee, which included federal judges, decided to cancel the Pasadena Republican Club’s meeting less than three hours before it was set to begin. That, according to Eastman and Caso, a clinical professor of law at Chapman and director of the Claremont Institute’s Center for Constitutional Jurisprudence, which is based at Fowler, was a civil rights violation.
“While I knew that Prof Eastman was a professor and author, we learned just today that he is the President [sic] of the National Organization for Marriage [NOM],” Chirlin, a retired L.A. Superior Court judge, wrote in an email to the Pasadena Republican Club the day of the event. “NOM’s positions on same-sex marriage, gay adoption and transgender rights are antithetical to the values of the Western Justice Center. The Western Justice Center works to improve campus climates with a special focus on LGBT bias and bullying. We work to make sure that people recognize and stop LGBT bullying. Through these efforts we have built a valuable reputation in the community, and allowing your event in our facility would hurt our reputation in the community.”
The Western Justice Center also adopted a policy banning political organizations from future rentals of the Maxwell House, including the Pasadena Republican Club. The Maxwell House is owned by the city of Pasadena, which leases the space to the Western Justice Center for $1 a month. The Pasadena Republican Club had held meetings with other speakers there before.
Caso filed a complaint on Nov. 28, 2018, in federal district court on behalf of the Pasadena Republican Club alleging viewpoint discrimination, religious belief discrimination and violation of the free exercise of religion in violation of the First Amendment, as well as an additional charge of conspiracy to deny civil rights against Chirlin. It sought declaratory and injunctive relief and unspecified monetary damages.
“The essence of the complaint is that they’ve taken public property and they’ve decided who can use it based upon political or religious viewpoint,” Caso told this reporter at the time. “Take your pick; both are unconstitutional.”
On KPCC’s “AirTalk with Larry Mantle” in November 2018, Eastman said that if the city were to rent the Maxwell House out as a public forum, “there’s no question constitutionally it would be required to lease it out without discriminating on the basis of viewpoint. The real question is, by signing a dollar-a-month lease, can it avoid those constitutional duties and pass the buck to a nonprofit organization to do the discriminating for it? I don’t believe it can do so.
“The Western Justice Center has some decisions it’s going to have to make,” he continued. “If they want to continue to discriminate on the basis of viewpoint, they can’t do that with sweetheart deals using publicly owned facilities. If they want to continue serving as an agent of the city, renting out this spectacular facility for community organizations’ meetings, then they have to comply with the Constitution just like the city does.”
Two courts, however, did not agree. According to Caso, both the trial court and the Ninth Circuit Appeals Court ruled that the Western Justice Center was not a state actor and that the city of Pasadena could not be held responsible for its actions in discriminating against the Pasadena Republican Club because “there was no allegation that the city participated in or had knowledge of the Western Justice Center’s viewpoint and religious discrimination.”
Caso argued that these rulings contradicted previous court rulings that established that a government entity isn’t required to have direct knowledge or participation in order to be held liable for the illegal activity of a private group to which it delegated authority to manage city-owned property.
Caso, on behalf of the Pasadena Republican Club, filed a petition for writ of certiorari — a request for judicial review of a lower court’s decision — with the Supreme Court on June 16.
“The Ninth Circuit’s decision allows governmental agencies to wash their hands of viewpoint discrimination on public properties by delegating away their authority,” Caso wrote in the petition to the Supreme Court. “This may be a welcome development for those entities concerned about liability in the current climate of ‘cancel culture.’ It is not, however, consistent with the Constitution. There is no ‘delegation exception’ to the First Amendment.”
The Supreme Court considered Caso’s petition at its conference on Oct. 8 and declined to review the case.
“We’re pleased,” said Lisa Derderian, Pasadena’s public information officer, when asked for comment on the Supreme Court’s decision.