The Catholic Bookstore, Inc. v. City of Jacksonville

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

THE CATHOLIC BOOKSTORE,

INC. d/b/a Queen of Angels Catholic

Bookstore,

Plaintiff,

v. Case No. 3:23-cv-192-TJC-MCR

CITY OF JACKSONVILLE,

Defendant.

ORDER

This case involves a challenge to Jacksonville’s Human Rights Ordinance

(HRO). The case is before the Court on Plaintiff Queen of Angels Catholic

Bookstore’s (QOA) Motion for Preliminary Injunction (Doc. 4) and Defendant

City of Jacksonville’s Motion to Dismiss (Doc. 23). The City responded in

opposition to the preliminary injunction motion (Doc. 24) and QOA filed a

combined response/reply to both motions (Doc. 32). Christian Family Coalition

Florida, Inc. (CFC) also filed an amicus brief with the Court’s permission. (Docs.

33, 37).1 On May 15, 2023, the Court held a hearing on the motions, the record

of which is incorporated by reference. (Doc. 42).

1 CFC’s Consent Motion to Have Filed Amicus Brief 3 Minutes After

Deadline Because of Internet Difficulties in Rural Southern New Jersey (Doc.

40) is GRANTED.

I. BACKGROUND

A. Queen of Angels’ Pronoun Policy

QOA is a Catholic bookstore located in Jacksonville. (Doc. 1 ¶ 14). QOA

is suing the City because it argues that the City’s HRO violates its

constitutional rights. QOA desires to adopt a pronoun policy, see (Doc. 1-1), and

“use its website, blog, and YouTube channel to teach and explain what the

Catholic Church believes about human sexuality and the immutability of

biological sex.” (Doc. 1 ¶¶ 92, 96). One such blog post explains the pronoun

policy. See (Doc. 1-2). QOA wishes to distribute printed copies of this blog post.

(Doc. 1 ¶ 99). QOA also wishes to be “honest and transparent” with prospective

customers and employees about “its policy on pronouns and titles.”

(Doc. 1 ¶¶ 93–94).

The pronoun policy states:

It is therefore the official policy of Queen of Angels Catholic

Bookstore that owners, and employed staff, while working for the

bookstore, may only use pronouns and titles that align with the

biologically originating sex of the person being referenced, whether

the individual is a coworker, customer, or any member of the public

visiting or interacting with the bookstore. This would apply to in

person, phone, online, or any other means of communications. The

use of “gender neutral” pronouns or neologisms when requested by

such referenced persons as noted above, to describe an individual’s

identity contrary to someone’s biologically originating sex, e.g.

“they,” “ze,” or “Mx.,” is also prohibited.

Should someone interacting with the bookstore request a pronoun

or form of address that would violate our policy, employees should

respectfully and charitably decline, and instead use a form of

address that does not contradict someone’s biologically originating

sex, such as the person’s first or last name.

(Doc. 1-1) (emphasis added). The policy does not require that the individual

leave the store. Importantly, QOA’s blog post explaining the pronoun policy also

states: “[W]e serve customers of all gender identities, but we address all our

customers based on their biological sex, as our Catholic beliefs require.” (Doc.

1-2) (emphasis added). QOA alleges that it has served transgender customers

in the past. (Doc. 1 ¶ 89).

B. Jacksonville Human Rights Ordinance

The City passed the HRO in its current form in 2020, in which the City

included sexual orientation and gender identity as protected classes. (Doc. 4-1

at 12–13); JACKSONVILLE, FLA., ORD. 2020-244-E. QOA argues that three

provisions in the HRO prevent it from formalizing, publishing, and discussing

its pronoun policy. QOA dubs these provisions the “Privilege,” “Denial,” and

“Unwelcome” clauses. See (Doc. 1 ¶¶ 142–43, 149–50).

Jacksonville Municipal Code Section 406.201 states:

It shall be unlawful to engage in any of the following acts because

of an individual’s race, color, religion, ancestry, national origin, age,

sex, sexual orientation, gender identity,2 pregnancy, disability,

marital status, or familial status.

2 Gender identity is defined as “the gender-related identity, appearance,

or expression of a person. Gender identity may be demonstrated by a person’s

consistent and uniform assertion of a particular gender identity, appearance or

expression, or by any other evidence that a person’s gender identity is sincerely

held, provided, however, that gender identity shall not be asserted for any

(a) To refuse, withhold or deny to a person any services, access,

advantages, goods, facilities or privileges of a public accommodation

including the extension of credit [“the Privilege clause”]; or

(b) To publish, circulate, issue, display, post or mail and [sic]

communication, notice or advertisement to the effect that

accommodations, services, goods [sic] advantages, facilities are

denied to a person [“the Denial clause”] or that the patronage of

such person is unwelcome, objectionable, or unacceptable [“the

Unwelcome clause”].

(Emphasis added).

Chapter 406 also provides limitations and exceptions. Section 406.301

defines public accommodations. Section 406.302 then provides:

(b) Nothing in this Chapter shall prohibit a religious

organization, as defined in this Chapter, from limiting facilities

and accommodations which it owns or operates for other than

commercial purpose to persons of the same religion, or from

giving preference to such persons;

. . . .

(f) With regard to discrimination based on sexual orientation or

gender identity, this Part 3 shall not apply with regard to any

action of, or decision made by, a religious organization as defined

in this Chapter.

The definition of religious organizations was amended in Ordinance 2022-244-

E and reads:

Religious Organization shall mean and include churches,

synagogues, mosques, and schools of religious instruction and non-

profit institutions or organizations affiliated therewith, as well as

any “religious corporation, association or society.” The phrase

“religious corporation, association or society” shall be interpreted

improper, illegal or criminal purpose.” § 406.104(h).

consistent with Section 2000e-(1)(a), United States Code.

§ 406.104(k) (emphasis added).

The HRO is enforced by the Human Rights Commission (the

Commission). An aggrieved person may file a complaint, then the Commission

investigates the complaint and makes a probable cause finding. §§ 406.401,

406.402, 406.405. If a complaint is sustained, it can lead to sanctions. § 406.405.

II. DISCUSSION

On February 22, 2023, QOA filed its complaint against the City and an

accompanying motion for preliminary injunction. (Docs. 1, 4). In the complaint,

QOA alleges 213 factual and legal allegations, but QOA incorporates none of its

allegations into the counts. See (Doc. 1). Further, the complaint alleges four

counts:

• Count I: First Amendment: Free Speech, Association, Press, and

Assembly. As-applied challenges to the Privilege, Denial, and Unwelcome

clauses and facial challenge to the Unwelcome clause.

• Count II: First Amendment: Free Exercise of Religion. As-applied

challenges to the Privilege, Denial, and Unwelcome clauses.

• Count III: Florida Statutory Free Exercise of Religion. (Fla.

Stat. § 761.03).

• Count IV: Fourteenth Amendment’s Due Process Clause: Vagueness. As-

applied and facial challenges to the Unwelcome clause.

Id. Each count includes challenges to each of the three provisions at issue

despite that each clause is distinct. In its motion to dismiss, the City asks the

Court to dismiss the complaint as a shotgun pleading. (Doc. 23 at 18–21). The

Court agrees with the City that QOA should be required to replead its complaint

to correct these deficiencies. However, the Court will first discuss standing and

ripeness.

A. Standing

Before the Court can address the merits of QOA’s claims, it must

determine whether it has standing over each of the claims. Standing requires

that the plaintiff show (1) an injury in fact—an invasion of a legally protected

interest which is (a) concrete and particularized, and (b) actual or imminent,

not conjectural or hypothetical; (2) causation; and (3) redressability. See Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). QOA’s alleged injury is

concrete and particularized with respect to all the counts because it has alleged

a deprivation of its First Amendment rights. See Spokeo, Inc. v. Robins, 578

U.S. 330, 340 (2016) (“[W]e have confirmed in many of our previous cases that

intangible injuries can nevertheless be concrete. See, e.g., Pleasant Grove City

v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (free speech);

Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217,

124 L.Ed.2d 472 (1993) (free exercise).”). There is also no dispute that the

alleged injuries are traceable to Chapter 406 and that any alleged harms would

be redressed if the offending provisions of Chapter 406 were struck down.

The remaining issue—as is true with most pre-enforcement actions—is

whether QOA’s alleged injuries are actual or imminent.3 The Eleventh Circuit

and the Supreme Court have both defined the appropriate standing analysis to

apply in pre-enforcement cases:

In Susan B. Anthony List v. Driehaus, the Supreme Court

enumerated three criteria that, as a general matter, govern a

plaintiff’s standing to bring [a] pre-enforcement

challenge[:] . . . The plaintiff must show (1) that he has “an

intention to engage in a course of conduct arguably affected with a

constitutional interest,” (2) that his conduct is “arguably

proscribed,” and (3) that he is subject to “a credible threat of

enforcement.” 573 U.S. 149, 159, 162, 134 S. Ct. 2334, 189 L.Ed.2d

246 (2014) (cleaned up).

Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1119–20 (11th Cir. 2022).

In the context of First Amendment pre-enforcement cases, the Eleventh

3 It is unclear at this stage whether QOA is a religious corporation

exempt from the provisions in § 406.201, and whether QOA’s desired actions

(i.e., the adoption and publication of the pronoun policy) would be covered by

§ 406.201. However, for standing purposes, if QOA is “arguably” governed by

§ 406.201 and its actions are “arguably” prohibited by § 406.201, then the Court

must proceed with the standing analysis. See Speech First, Inc. v. Cartwright,

32 F.4th 1110, 1122 (11th Cir. 2022) (holding the plaintiff had standing even

though the university’s attorney was not sure whether the speech the students

wished to engage in would be prohibited by the policy); Harrell v. The Fla. Bar,

608 F.3d 1241, 1254 (11th Cir. 2010) (holding that to allege standing the

plaintiff must show, among other things, that his speech “would arguably be

affected by the rules” and that the rules “are at least arguably vague” as they

apply to him (emphasis omitted)). The Court finds that it is arguable that QOA

and its desired actions fall under § 406.201; therefore, it will continue with the

standing analysis.

Circuit has emphasized “that ‘[t]he injury requirement is most loosely applied—

particularly in terms of how directly the injury must result from the challenged

governmental action—where [F]irst [A]mendment rights are involved, because

of the fear that free speech will be chilled even before the law, regulation, or

policy is enforced.’” Id. at 1120 (quoting Hallandale Pro. Fire Fighters Loc. 2238

v. City of Hallandale, 922 F.2d 756, 760 (11th Cir. 1991)). “Litigants who are

being chilled from engaging in constitutional activity suffer a discrete harm

independent of enforcement, and that harm creates the basis for our

jurisdiction.” Id. (internal alterations and quotation marks omitted) (quoting

Dana’s R.R. Supply v. Att’y Gen., Fla., 807 F.3d 1235, 1241 (11th Cir. 2015)).

Consistent with those principles, the Eleventh Circuit held:

[T]o determine whether a First Amendment plaintiff has standing

[in the pre-enforcement context], we simply ask whether the

“operation or enforcement,” Georgia Latino All. for Hum. Rts. v.

Governor of Ga., 691 F.3d 1250, 1257 (11th Cir. 2012) (cleaned up),

of the government policy would cause a reasonable would-be

speaker to “self-censor[],” [Wollschlaeger v. Governor, Fla., 848

F.3d 1293, 1305 (11th Cir. 2017)]—even where the policy “fall[s]

short of a direct prohibition against the exercise of First

Amendment rights,” Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318,

33 L.Ed.2d 154 (1972). In making that assessment, the threat of

formal discipline or punishment is relevant to the inquiry, but it is

not decisive. The fundamental question under our precedent . . . is

whether the challenged policy “objectively chills” protected

expression.

Id. (emphasis added).

It is unclear at this juncture whether any enforcement action would ever

occur against QOA; however, the question is whether QOA has alleged enough

to show that Chapter 406 could objectively chill speech. The provisions in

Chapter 406 are all enforced through the same process where an aggrieved

person may file a complaint and the Commission investigates the complaint

before making a probable cause finding. §§ 406.401, 406.402, 406.405.

The Privilege clause directs that the following actions are prohibited:

To refuse, withhold or deny to a person any services, access,

advantages, goods, facilities or privileges of a public accommodation

including the extension of credit . . . .

§ 406.201(a). The Privilege clause does not objectively chill speech because on

its face the Privilege clause does not relate to speech. It is not arguable that

formalizing or posting a pronoun policy is prohibited by the Privilege clause.

QOA has alleged no other injury with respect to the Privilege clause. It has not

alleged that it was required by § 406.201(a) to serve people that it did not want

to. In fact, QOA states that it will not withhold or deny service to anyone. See

(Doc. 1-2).

On the other hand, the Denial and Unwelcome clauses specifically

prohibit certain types of speech:

To publish, circulate, issue, display, post or mail and [sic]

communication, notice or advertisement to the effect that

accommodations, services, goods [sic] advantages, facilities are

denied to a person or that the patronage of such person is

unwelcome, objectionable, or unacceptable.

§ 406.201(b). QOA alleges that it has not formalized its pronoun policy nor

published the policy on its website or social media pages because it is concerned

about enforcement of the HRO against it. (Doc. 1 ¶¶ 157, 160, 190). Considering

the lenient standard in speech cases and that the Commission has the power to

enforce Chapter 406, as alleged, QOA has shown that its injuries are actual or

imminent with respect to the Denial and Unwelcome clauses. Having now found

that QOA’s alleged injuries are sufficiently actual or imminent, all elements of

standing are satisfied.

B. Ripeness

Next, the Court must determine whether QOA’s claims challenging the

Denial and Unwelcome clauses are ripe.

To determine whether a claim is ripe we must evaluate: (1) “the

fitness of the issues for judicial decision”; and (2) “the hardship4 to

4 As explained by the Eleventh Circuit,

In Ohio Forestry, the Supreme Court discussed the types of

hardship that might cause a case to be considered ripe. 523 U.S. at

733–36, 118 S.Ct. at 1670–71. First, the Court noted that hardship

might be present where a policy results in “adverse effects of a

strictly legal kind.” Id. at 733, 118 S.Ct. at 1670. The Court

explained that such effects are not present if the challenged policies

“do not command anyone to do anything or to refrain from doing

anything; they do not grant, withhold, or modify any formal legal

license, power, or authority; they do not subject anyone to any civil

or criminal liability; they create no legal rights or obligations.” Id.

Second, the Court stated that an “important consideration” in

modern ripeness cases is whether the challenged policy “inflicts

significant practical harm upon the interests that the [plaintiff]

advances.” Id. at 733–34, 118 S.Ct. at 1670. Such “practical harm”

is not likely to be present where a plaintiff “will have ample

opportunity later to bring its legal challenge at a time when harm

is more imminent and more certain.” Id. at 734, 118 S.Ct. at 1670.

the parties of withholding court consideration.” Coal. for the

Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d

1301, 1315 (11th Cir. 2000) (internal quotation marks omitted). In

applying the fitness and hardship prongs we must consider the

following factors: “(1) whether delayed review would cause

hardship to the plaintiffs; (2) whether judicial intervention would

inappropriately interfere with further administrative action; and

(3) whether the courts would benefit from further factual

development of the issues presented.” Ohio Forestry Ass’n, Inc. v.

Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 1670, 140 L.Ed.2d

921 (1998); see also Ala. Power Co. v. Fed. Energy Regulatory

Comm’n, 685 F.2d 1311, 1315 (11th Cir. 1982) (listing four similar

factors).

Beaulieu v. City of Alabaster, 454 F.3d 1219, 1227 (11th Cir. 2006). Review of a

suit’s ripeness is more permissive when a plaintiff asserts a violation of a First

Amendment right; even more so when invoking a core First Amendment right.

Id. at 1227–28 (differentiating the case from other ripeness cases because it

involved core political speech instead of sexually explicit speech or commercial

speech).

QOA’s facial claim is ripe because, as the Eleventh Circuit in Club

Madonna stated: “A facial challenge presenting a purely legal argument . . . ‘is

presumptively ripe for judicial review’ because that type of argument does not

rely on a developed factual record.” Club Madonna, Inc. v. City of Miami Beach,

Finally, the Supreme Court said that a court should consider

whether the plaintiff “pointed to any other way in which the [policy]

could now force it to modify its behavior in order to avoid future

adverse consequences . . . .” Id. at 734, 118 S.Ct. at 1671.

Pittman v. Cole, 267 F.3d 1269, 1280–81 (11th Cir. 2001).

924 F.3d 1370, 1380 (11th Cir. 2019) (quoting Harris v. Mexican Specialty

Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009)).

Regarding QOA’s as-applied claims, the Eleventh Circuit has previously

held that constitutional claims are not ripe when there is a process that

provides an opportunity for an advisory opinion regarding the conduct in

question. See Harrell v. The Fla. Bar, 608 F.3d 1241, 1261–65 (11th Cir. 2010).

Here, Chapter 406 does not have an advisory opinion process by which QOA

could discern whether its policy violates Chapter 406 before any enforcement

action commences. Even though the City itself has not indicated an intent to

enforce Chapter 406 against QOA, an aggrieved individual could nonetheless

file a complaint and trigger the investigative process. That investigative process

could require QOA to respond to interrogatories and subpoenas. §§ 406.402,

406.403. The investigative process alone constitutes a hardship. See Pittman,

267 F.3d at 1280–81 (describing the varying types of hardship).

While additional facts regarding how the Commission would

interpret §§ 406.201 and 406.302 would be helpful to the Court, requiring QOA

to go through this administrative process before allowing it to bring its claims

would be burdensome. QOA is currently in a position where it must choose

between not acting or acting and opening itself to a burdensome investigative

process and possible sanctions. Cf. id. at 1280 (“We have recognized that

‘[p]otential litigants suffer substantial hardship if they are forced to choose

between foregoing lawful activity and risking substantial legal

sanctions,’ . . . .”). True, the Court’s consideration of QOA’s claims might

interfere with the City’s administrative process because the Commission has

not had a chance to determine whether QOA’s actions would fall

under § 406.201 or if the religious exception applies to QOA; however, the

potential hardship to QOA outweighs the other factors. QOA’s claims regarding

the Denial and Unwelcome clauses are ripe.

C. Religious Exception

In researching the case, the Court came across the religious exception

in § 406.302(f) (and the incorporated definition of “religious organization” which

includes a “religious corporation” in § 406.104(k)). A week before the

preliminary injunction hearing, the Court asked the parties to file short briefs

regarding whether QOA qualified for the religious exception. (Doc. 36). The

parties discussed this issue at the hearing, but the uncertainty surrounding

standing and ripeness rightfully dominated the discussions.

Having now decided, at this juncture, that QOA has standing to bring

certain claims and that those claims are ripe, the Court can consider, on the

merits, whether the religious exception in § 406.302(f) applies to QOA. The

parties did not discuss this issue in their original briefs, and their supplemental

briefs were short. The parties acknowledged at the hearing that if the religious

exception applies, then § 406.201 does not pertain to QOA as it relates to gender

identity and sexual orientation policies. Because this is a threshold issue, the

Court directs QOA to file a motion for summary judgment limited to the

religious exception issue.

“In this Circuit, a preliminary injunction is an extraordinary and drastic

remedy not to be granted unless the movant clearly established the burden of

persuasion as to each of the four prerequisites.” Siegel v. LePore, 234 F.3d 1163,

1176 (11th Cir. 2000) (en banc) (per curiam) (internal alterations and quotation

marks omitted). At this point there is too much uncertainty as to whether the

religious exception in § 406.302 applies to QOA and whether QOA can

show § 406.201 is unconstitutional either facially or as applied to QOA.

Therefore, QOA has not shown “a substantial likelihood of success on the

merits” entitling it to a preliminary injunction. In re Sealed Search Warrant &

Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th 1235,

1248 (11th Cir. 2021). Accordingly, it is hereby

ORDERED:

1. Plaintiff’s Motion for Preliminary Injunction (Doc. 4) is DENIED

without prejudice.

2. Defendant’s Motion to Dismiss (Doc. 23) is GRANTED. Plaintiffs

Complaint (Doc. 1) is DISMISSED without prejudice. Plaintiff shall file an

amended complaint no later than July 7, 2023.5

3. Plaintiff shall file a motion for summary judgment limited to the

religious exception issue no later than July 28, 2023. Defendant shall respond

no later than August 25, 2023. Plaintiff shall reply no later than September

1, 2023. The parties may engage in limited discovery regarding the religious

exception issue if necessary.

DONE AND ORDERED in Jacksonville, Florida the 9th day of June,

2023.

G @ Cimotheg Corrig □□

(YS) TIMOTHY J. CORRIGAN

<=es" —*United States District Judge

ckm

Copies:

Counsel of record

5 Because of the threshold religious exception issue, the Court finds that

it is most efficient to resolve this issue before proceeding with the rest of the

case. See Chudasama v. Mazda Motor Corp., 123 F.3d 13538, 1366 (11th Cir.

1997) (“[D]istrict courts enjoy broad discretion in deciding how best to manage

cases before them.”) (citation omitted). Thus, the City is not required to respond

to the complaint in the interim. See FED. R. CIv. P. 56(b) (“Unless a different

time is set by local rule or the court orders otherwise, a party may file a motion

for summary judgment at any time until 30 days after the close of all

discovery.”).

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