THE CATHOLIC BOOKSTORE, INC.

v.

CITY OF JACKSONVILLE

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).

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.

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

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

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 September¹, 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