Our last post about this litigation was Discovery Institute: Could They Win in Court? in which we discussed Casey Luskin’s latest claims about evidence of VD (viewpoint discrimination).
The next few indented paragraphs provide background information, which most of you can skip:
A lawsuit filed by the American Freedom Alliance (AFA) charges that the California Science Center (CSC) violated both the First Amendment and a contract to rent its theater when it canceled a screening of Darwin’s Dilemma. The AFA is an outfit promoting “the controversy” about evolution — in the interest of what they call “academic freedom.” The film they wanted to show includes appearances by Richard von Sternberg, Jonathan Wells, and Stephen Meyer, all “senior fellows” with the Discovery Institute, discussing that the Cambrian “explosion” is evidence of intelligent design.
The theater owner getting sued is the California Science Center, which canceled a contract for showing the film, alleging that a Discoveroid press release (which the Science Center hadn’t approved) violated a contract clause requiring their prior approval of all promotional materials. Technically, although two Discoveroid “senior fellows” were scheduled to conduct a discussion session after the showing of the film, the Discovery Institute wasn’t a party to the exhibition agreement.
Thus there’s an issue as to whether the unauthorized publicity sent out by the Discovery Institute gave the Science Center grounds to cancel the contract. It’s also an issue whether the Discovery Institute was working so closely with the AFA (the plaintiff) that their unauthorized publicity notices were issued with the AFA’s knowledge and tacit consent, breaching the contract.
The AFA alleges that the contract violation was a “false pretext” for cancellation of the exhibition contract. It’s really discrimination and a violation of the First Amendment, thus a violation of the AFA’s constitutional rights. The Science Center thinks this is a contract case; the AFA is treating it as a civil rights case.
The National Center for Science Education (NCSE) has many of the court pleadings available online. See: American Freedom Alliance v. California Science Center et al.
What we’re discussing today is the meaning of the court’s recent (08 October) Order Sustaining Defendant’s Demurrer. In a nutshell, the court granted the Science Center’s demurrer (motion to dismiss) and tossed out three of the plaintiff’s claims — the 5th, 6th, and 7th causes of action alleged in the third amended complaint (the TAC). Little attention was paid to the 5th and 6th causes of action (they alleged conspiracy), but dismissal of the 7th may have been very significant.
The 7th cause of action — which alleged a violation of California’s Unruh Civil Rights Act — was dismissed, without leave to amend — i.e., it can’t be refiled in yet another amended complaint. Why do we think that’s important?
The Third Amended Complaint (the TAC) claims that the same set of facts allows the plaintiff to recover under several other legal theories. The 2nd cause of action alleges a violation of the plaintiff’s 1st amendment free speech rights; the 3d cause of action is about their 1st amendment right of association; the 4th cause of action says their 14th Amendment equal protection rights were violated; and the 8th cause of action claims violations of the plaintiff’s state constitutional speech, religion, and association rights. So why does it matter that the 5th, 6th, and 7th causes of action are now permanently dismissed?
The key is what’s involved in the Unruh Act claim — the now-dismissed 7th cause of action. It seems to us that by alleging an Unruh Act violation, the plaintiff may have set itself up for an early failure.
The TAC (at page 20 of the pdf file) sets out the Unruh Act claim, alleging that the plaintiff was denied equal access to a business establishment (the Science Center), and that this was discrimination based on religious prejudice and prejudice against intelligent design. That may seem a stretch for a law that is usually invoked by wheelchair-bound people who can’t easily enjoy access to restaurants, hotels, public bathrooms, and the like, but that’s what the plaintiff chose to allege.
California’s Unruh Act is similar to the federal Americans with Disabilities Act of 1990 (the ADA). Any violation of the ADA is automatically deemed a violation of the Unruh Act, which provides for monetary damages and attorneys fees (a factor in encouraging such cases). In California, lawsuits often allege violations of both, but the creationists who brought the suit against the Science Center weren’t suffering any disability — at least not any physical disability — so the ADA isn’t part of their suit.
The plaintiff’s problem is that by throwing in what may have been an unnecessary Unruh Act claim, they provided an opportunity for the Science Center move to dismiss that claim (“file a demurrer” in California’s parlance) on the grounds that the TAC doesn’t allege discriminatory intent — apparently an Unruh Act requirement.
The Science Center’s demurrer zeroed in on this in their Reply in Support of their Demurrer. Starting at page 4 of the pdf file, they say that their demurrer on these same grounds (regarding the second complaint) had previously been sustained by the court, which is why the plaintiff filed the third complaint.
They say that the reasons for sustaining the earlier demurrer were mentioned in a court transcript dated 19 June. We don’t have a copy of that, but it’s interesting to note that this was right after the Discoveroids obtained some email from the Science Center, which Casey claimed was clear evidence of VD. We assume that the best of that newly-discovered material was included in the next complaint — the TAC. So at this point the TAC includes allegations of the plaintiff’s strongest evidence of the Science Center’s discriminatory intent.
You really ought to read what the Science Center says, starting at page 4 of their Reply in Support of their Demurrer. They discuss the email mentioned in the TAC — presumably the same material that had Casey so excited (see Discovery Institute Finds “Viewpoint Discrimination”). The Science Center discusses that email and says:
In fact, the only interpretation that can be drawn from these emails is that Defendants were concerned about the inaccurate press releases which inappropriately implied that Defendants were affiliated with Plaintiff in cosponsoring the Event and which violated clear contractual provisions specifically intended to prevent these inaccuracies.
In other words, the Science Center’s demurrer regarding the Unruh Act claim is directed at the very essence of the non-contractual aspect of this case. It says that the TAC fails to allege discriminatory intent. We think that brings the entire civil rights aspect of this case to a premature climax. And now we have the result.
The court’s Order Sustaining Defendant’s Demurrer, which is very brief, says:
Demurrer is sustained without leave to amend as to the fifth, sixth, and seventh causes of action.
In other words, on the issue of discrimination (at least under the Unruh Act), the plaintiff ain’t got squat. They don’t even have what a bear does in the woods. As the lawyers say, that part of the case is a dead-ass loser.
That same court order moves up the post-mediation status conference from 29 October to 22 October. In other words: “Hurry up and mediate.”
Where does that leave things? We don’t know, of course, but we’ve said before that we were doubtful of any early resolution of this case because the Science Center is treating this like a breach of contract case, while the plaintiff claims to be the victim in a civil rights case.
But now we suspect that the guts have been ripped out of the plaintiff’s civil rights case. If that’s correct, then maybe the the plaintiff will reconsider where this is going and the mediation process will accomplish something. We shall see.
Update: See “Darwin’s Dilemma” Case: Sudden Turnabout.
Copyright © 2010. The Sensuous Curmudgeon. All rights reserved.