Thursday, July 02, 2015

Inspired By Supreme Court Decision, Montanans Apply For License For Polygamous Marriage

AP reported yesterday that in Billings,. Montana, a man and his two wives, citing the Supreme Court's Obergefell decision, have applied for marriage licenses to legitimize their polygamous marriage. The man, Nathan Collier, a former Mormon who was excommunicated for polygamy, said: "It's about marriage equality, You can't have this without polygamy." Officials in the Yellowstone County clerk's office are consulting with the county attorney's office before giving a final answer.  The county's chief civil litigator says that his research so far shows that  "the law simply doesn't provide for that yet." [Thanks to How Appealing for the lead.]

7th Circuit Affirms Denial of Preliminary Injunction In Wheaton College Challenge To Contraceptive Mandate Accommodation

In Wheaton College v. Burwell, (7th Cir., July 1, 2015), the U.S. 7th Circuit Court of Appeals affirmed the denial of a preliminary injunction, upholding the Obama administration's accommodation of religious non-profits' objections to the Affordable Care Act's contraceptive coverage mandate. Wheaton College argued that the government is using its health plan to get around its objections to furnishing contraceptive coverage. Under the regulations, when the government informs the non-profit's insurer of the organization's religious objections, the insurer must offer coverage directly to plan participants.  The court said in part:
We can’t order the U.S. government not to ask particular insurers to insure Wheaton’s students and employees— especially the insurers that are experienced in dealing with the members of the Wheaton community. As for Wheaton’s apparent preference that the government discover through its own research the names of Wheaton’s insurers, we cannot imagine that insistence on this roundabout path to imparting essential information to the government could justify a preliminary injunction, at least in the absence of any explanation by Wheaton of why it thinks the difference between direct and roundabout identification of its insurers pertinent to its religious commitments. 
[Thanks to How Appealing for the lead.]

Courts Move To Finalize Compliance With Obergefell, With Scattered Resistance

In the wake of the Supreme Court's Obergefell decision, the U.S. 5th Circuit Court of Appeals yesterday issued opinions in three same-sex marriage cases pending on appeal, ordering federal district courts in Mississippi (Campaign for Southern Equality v. Bryant), Louisiana (Robichearx v. Caldwell) and Texas (DeLeon v. Abbott) to enter final judgments for plaintiffs challenging same-sex marriage bans by July 17. In the Louisiana case, the court noted that speedy action was particularly necessary because of the declining health of one of the plaintiffs.

In Alabama, a federal district court judge issued an opinion yesterday in Strawser v. Strange, clarifying that the court's preliminary injunction barring enforcement of Alabama laws barring same-sex marriage is now in effect.  Meanwhile, AP reports scattered resistance to the Supreme Court's decision, with a a few judges and clerks in Alabama, Kentucky and Texas deciding to stop issuing any marriage licenses to anyone.

Suit Challenges Library Meeting Room Rules

In a lawsuit filed last Tuesday, a Christian advocacy group has challenged rules regarding the use of meeting rooms at the Lawrence, Massachusetts public library.  The complaint (full text) in Liberty Counsel, Inc. v. City of Lawrence, Massachusetts, (D MA, filed 6/30/2015), challenges the Meeting Room Policy which provides: "Political and religious groups may use the Library’s meeting rooms for administrative purposes but shall not be allowed use for the sake of proselytizing, campaigning, or otherwise influencing people to a particular belief or point of view." The policy also prohibits use of meeting rooms for religious services.  The complaint alleges that the policy violates the 1st and 14th Amendments as well as provisions of the state constitution. A Liberty Counsel press release announced the filing of the lawsuit.

Priest Sues Claiming Discrimination After Molestation Charges Are Dropped

As reported by the St. Louis Post-Dispatch, Catholic priest Xiu Hui "Joseph" Jiang, who had been charged with abusing a boy, but then had charges dropped, filed a federal lawsuit last week charging the boy's parents and others with religious and ethnic discrimination.  Jiang separately had been charged with having improper contact with a teenage girl and paying hush money to her family. Those charges have also been dropped.  The complaint (full text) in Jiang v. Porter, (ED MO, filed 6/25/2015), alleges in part:
This is a case of false accusations that have destroyed the life of a promising young man and priest. Father Xiu Hui “Joseph” Jiang (“Fr. Joseph”) fled religious persecution in his native land of China, only to face religious persecution in America in the form of unconstitutional discrimination by state officials. Defendants A.M. and N.M. falsely and maliciously accused Fr. Joseph of sexually abusing their minor son for the crass motive of monetary gain. Acting in conjunction with A.M. and N.M., officers Tonya Porter and Jaimie Pitterle engaged in invidious religious discrimination against Fr. Joseph under color of law, targeting him for differential treatment and selective prosecution because he is a Catholic priest. Defendants SNAP, David Clohessy, and Barbara Dorris have led a shameless smear campaign in the St. Louis community against Fr. Joseph, relentlessly accusing him of molesting the same minor child, with malice and reckless disregard for the actual facts of the case. All defendants fomented and participated in a tragic rush to judgment against Fr. Joseph, and all conspired to deprive Fr. Joseph of his constitutional rights,

Wednesday, July 01, 2015

Another Suit Against Local Michigan Police For Forcing Removal of Hijab During Booking

MLive reports that a federal lawsuit was filed yesterday against the Dearborn, Michigan police department for requiring a Muslim woman arrested on traffic charges to remove her headscarf (hijab) during the booking process.  The complaint (full text) in Aldhalimi v. City of Dearborn, (ED MI, filed 6/30/2015), contends that when police booked plaintiff for an unpaid parking violation, they required her to remove her hijab to be photographed despite her religious objections.  This is the third similar suit against local Michigan law enforcement officials this year.

Oklahoma Supreme Court Says 10 Commandments Monument Is Unconstitutional

In Prescott v. Oklahoma Capitol Preservation Commission, (OK Sup. Ct., June 30, 2015), the Oklahoma Supreme Court in a 7-2 decision held that a Ten Commandments Monument placed on the statehouse grounds must be removed. The Court held that even though no state funds were used to acquire the monument, it still operates for the use, benefit or support of a sect or system of religion in violation of Oklahoma Constitution Art. 2, Sec. 5. Rejecting the legislature's claim that the monument serves a non-religious historical purpose, the Court said: "the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths." (See prior related posting.)

ACLU Sues Louisiana Governor Over Order On Protection of Anti-Gay Marriage Beliefs

The ACLU of Louisiana announced yesterday that it has filed suit in Louisiana state court challenging Governor Bobby Jindal's May 19 Marriage and Conscience Order. The challenged executive order prohibits government departments, commissions, boards, agencies and local governments from denying various benefits because a person acts in accordance with his religious belief that marriage should be only between one man and one woman. (See prior posting.)  The complaint (full text) in ACLU Foundation of Louisiana v. Jindal, (LA Dist. Ct., filed 6/30/2015), contends that Jindal's Order "is an unauthorized usurpation of the powers vested in the legislature." As reported by the Bayou Buzz, Gov. Jindal issued a statement in response to the lawsuit, saying in part: "The ACLU used to defend civil liberties, now it appears they attack them."  Meanwhile on Monday the Governor's Office posted on its website a legal memorandum (full text) on religious liberty in light of the Supreme Court's marriage equality ruling.

Ecclesiastical Abstention Doctrine Prevents Suit Over Catholic Health Care Directive

In Means v. United States Conference of Catholic Bishops, (WD MI, June 30, 2015), plaintiff sued for negligence claiming that policies promulgated by the U.S. Conference of Catholic Bishops and adopted by Catholic Health Ministries, the sponsor of a health care system, resulted in her receiving improper information and treatment for a condition that led to a miscarriage.  She was not informed of the serious risk to her health if she continued her pregnancy after a membrane rupture and was not informed of the option of terminating her pregnancy.  A Michigan federal district court held that it lacked jurisdiction under Michigan's long-arm statute over USCCB. It held that the ecclesiastical abstention doctrine precludes it from adjudicating the claims against the other defendants:
Plaintiff has not sufficiently demonstrated that Michigan law recognizes a duty to a patient by a sponsor of a hospital network....  Even if Plaintiff could articulate a cognizable legal duty, the Court could not adjudicate the elements of breach and proximate cause because it necessarily implicates the ecclesiastical abstention doctrine... which prevents the Court from interpreting religious doctrinal texts. Plaintiff has not presented a way for this Court or a jury to analyze CHM’s duty, breach, or causation without reference to the text of the [Ethical and Religious Directives for Catholic Health Care Services], which are an expression of Catholic doctrine.

California's Governor Signs New Law Ending Religious and Personal Belief Exemptions To Immunization Requirements

California Governor Jerry Brown yesterday signed SB 277 (full text), a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing California's prior personal belief and religious belief exemptions.  Under the new law, only medical exemptions, certified by a licensed physician, are permitted. The personal belief exemption, however, is preserved for any additional diseases that the Department of Health by regulation adds to the ten listed in the statute. In his signing statement (full text), Gov. Brown said in part:
The science is clear that vaccines dramatically protect children against a number of infectious and dangerous diseases.
 Los Angeles Times reports on the governor's action.

Tuesday, June 30, 2015

Supreme Court Orders Stay of Sorts In Non-Profit Contraceptive Mandate Case

In Zubik v. Buwell, the U.S. 3rd Circuit Court of Appeals upheld the Obama Administration's rules accommodating the Affordable Care Act contraceptive coverage mandate to religious non-profits. (See prior posting.)  Plaintiffs sought a stay from the Supreme Court, and in April Justice Alito issued an order temporarily staying the mandate as to the Catholic Diocese of Erie and the Catholic Diocese of Pittsburgh along with affiliated charities and schools in the two dioceses (See prior posting.) He then referred the plaintiffs' motion to the full Court, and yesterday the Court issued the following Order :
The application for an order recalling and staying the issuance of the mandate of the Court of Appeals pending the filing and disposition of a petition for a writ of certiorari, having been submitted to Justice Alito and by him referred to the Court, the application as presented is denied. The Court furthermore orders: If the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a) or 29 CFR §2590.715-2713A(a) or 45 CFR §147.131(b) (as applicable), the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of their petition for certiorari.
Nothing in this interim order affects the ability of the applicants’ or their organizations’ employees to obtain, without cost, the full range of FDA approved contraceptives. Nor does this order preclude the Government from relying on the information provided by the applicants, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act. See Wheaton College v. Burwell, 573 U. S. ___ (2014).
This order should not be construed as an expression of the Court’s views on the merits. Ibid.
Justice Sotomayor would deny the application. 

School District Settles Anti-Semitic Harassment Claims For $4.48M

The New York Times reported yesterday that upstate New York's Pine Bush School District has agreed to a $4.48 million settlement in a suit against it by five current and former Jewish students who claimed pervasive anti-Semitism. The suit claimed that school officials showed deliberate indifference to anti-Semitic harassment from fellow-students in 3 of the district's schools.  The settlement also calls for teacher and staff training on recognizing and reporting anti-Semitism, revision of policies on bullying and discrimination, and curricular reform. (See prior related posting.)

Colorado Supreme Court Invalidates Choice Scholarship Pilot Program

In a fragmented decision in Taxpayers for Public Education v. Douglas County School District, (CO Sup. Ct., June 29, 2015), the Colorado Supreme Court struck down Douglas County's elaborate Choice Scholarship Pilot Program. The Program creates a public Choice Scholarship Charter School to which  public funds are paid.  Then through scholarship awards 75% of those funds are shared with the Charter School student's Private School Partner (often a religiously sponsored institution) which is the student's actual school.

Chief Justice Rice wrote the Court's plurality opinion for 3 justices, concluding that the scholarship program is unconstitutional under Art. IX, Sec. 7 of the Colorado Constitution that prohibits the state from using public money to fund sectarian schools. The plurality dismissed the other challenge to the Program-- that it violates the state's Public School Finance Act of 1994-- concluding that the legislature did not intend to imply a private right of action under that law and so petitioners lack standing.

Justice Marquez concurred in the result, filing an opinion concluding that the Scholarship Program violates the School Finance Act and that petitioners have taxpayer standing to challenge the program.

Justice Eid, in an opinion joined by two other Justices, argued that the scholarship program was permissible under Art. IX, Sec. 7. In addition he argued that the court should have examined whether Art. IX, Sec. 7 of the state Constitution is unconstitutional under the federal Constitution because of the provision's anti-Catholic bias.

Fox31 reports on the decision.

Monday, June 29, 2015

Texas AG, Critical of Obergefell, Issues Opinion On Religious Accommodation For Clerks and Judges

Texas Attorney General Ken Paxton issued a strong statement (full text) on Friday criticizing the U.S. Supreme Court's decision on same sex marriage, saying in part:
Today’s ruling by five Justices of the U.S. Supreme Court marks a radical departure from countless generations of societal law and tradition. The impact of this opinion on our society and the familial fabric of our nation will be profound. Far from a victory for anyone, this is instead a dilution of marriage as a societal institution.
What is most disturbing is the extent to which this opinion is yet another assault on the actual text of the U.S. Constitution and the rule of law itself....  The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely-held religious beliefs about marriage.
Then on Sunday, Paxton issued an Attorney General's Opiinion (full text) on the right of public officials to assert religious objections to issuing marriage licenses or performing same-sex marriages. His statement (full text) accompanying the issuance of the opinion is a good deal more strident than the full opinion itself.  Paxton's statement says in part:
A ruling by the U.S. Supreme Court is considered the law of the land, but a judge-made edict that is not based in the law or the Constitution diminishes faith in our system of government and the rule of law.
Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution. Here is where things currently stand:
Pursuant to the Court’s flawed ruling, the U.S. District Court for the Western District of Texas issued an injunction against the enforcement of Texas marriage laws that define marriage as one man and one woman and therefore those laws currently are enjoined from being enforced by county clerks and justices of the peace. There is not, however, a court order in place in Texas to issue any particular license whatsoever – only the flawed direction by the U.S. Supreme Court on Constitutionality and applicable state laws.
Importantly, the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty
Paxton's opinion itself carefully provides that religious accommodation "may" be permitted:
A county clerk has a statutory right to delegate a duty to a deputy clerk, including theissuance of same-sex marriage licenses that would violate the county clerk's sincerely held religious beliefs. Regarding deputy clerks and other employees, state and federal employment laws allow them to seek reasonable accommodation for a religious objection to issuing same-sex marriage licenses. And under the Religious Freedom Restoration Acts, deputy clerks and other employees may have a claim that forcing the employee to issue same-sex marriage licenses over their religious objections is not the government's least restrictive means of ensuring a marriage license is issued, particularly when available alternatives would not impose an undue burden on the individuals seeking a license.... Importantly, the strength of any claim under employment laws or the Religious Freedom Restoration Acts depends on the particular facts of each case....
Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.
If instead, a county clerk chooses to issue no marriage licenses at all, it raises at least two questions. First, a clerk opting to issue no licenses at all may find himself or herself in tension with the requirement under state law that a clerk "shall" issue marriage licenses to conforming applications.
Moving then to the question of whether judges and justices of the peace may refuse on religious grounds to conduct same-sex marriage ceremonies, Paxton says in part:
Under the Religious Freedom Restoration Acts, justices of the peace and judges may claim that the government forcing them to conduct a same-sex wedding ceremony over their religious objection, when other authorized individuals have no objection, is not the least restrictive means of the government ensuring that the ceremonies occur, assuming that is compelling governmental interest. Again, the strength of any such claim depends on the particular facts.
The Houston Chronicle reports on developments.

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, June 28, 2015

Commentary: Justice Kennedy's Equal Protection Analysis In Obergefell

One of the most interesting and least-commented upon aspects of Justice Kennedy's majority opinion (see prior posting) in Obergefell v. Hodges , last Friday's marriage equality decision, is his treatment of appellants' equal protection arguments.  The traditional approach-- and that used by most lower courts in their same-sex marriage decisions--is to determine the level of scrutiny that should be given to laws that discriminate on the basis of sexual orientation.  Do such classifications deserve "strict" scrutiny, "heightened" scrutiny or does there merely need to be a "rational basis" for use of the classification?  Past Supreme Court decisions on LGBT rights have been particularly opaque on this question.

Early in his opinion, Justice Kennedy laid groundwork that might have been used to flesh out a decision on the appropriate level of scrutiny.  He reviewed the history of discrimination against gays and lesbians-- one of the factors that traditionally figures into a determination of whether heightened scrutiny is called for.  However when he gets to the discussion of equal protection, Justice Kennedy largely ignores that groundwork, mentiioning the history of discrimination only in passing. Instead he treats the equal protection clause as a provision that primarily serves to emphasize the correctness of the fundamental-right-to-marriage conclusion that he has already reached.  That is, unlke most past cases in which substantive due process arguments were made largely to emphasize the severity of the denial of equal protection, here the roles of the two clauses are reversed. Justice Kennedy says in part:
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.  The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right....
The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause....
Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged....
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.  And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.
Justice Kennedy thus muddies the water even more as to the test for when discrimination against gays and lesbians, outside the context of marriage, violates the equal protection clause.    He also implicitly suggests that future governmental action burdening in some fashion the right to same-sex marriage should be tested primarily under the due process clause.  Thus if states enact laws permitting business owners with religious objections to refuse to provide goods or services for a same-sex marriage, it would seem that the provision's constitutionality should now be tested not by whether the government has a compelling interest to treat same-sex marriages differently than other marriages, but rather by whether the governmental action places a substantial obstacle or undue burden on the liberty interest of the marriage partners.

Recent Prisoner Free Exercise Cases

In Jones v. Williams, (9th Cir., June 25, 2015), the 9th Circuit held that prison authorities are not entitled to qualified immunity on a Muslim inmate's cliam that he was ordered to cook pork loins as part of his job duties.  The court however dismissed claims that cooks added pork to a tamale pie, and that the grill cleaning method left residual pork grease on the grill.

In Speed v. Neal, 2015 U.S. Dist. LEXIS 81606 (ED MO, June 24, 2015), a Missouri federal district court dismissed a Muslim inmate's complaint that on one occasion he did not receive a non-pork tray. It also dismissed his claim for damages of $30 million because of failure to receive pre-dawn meals, a copy of the Qur'an, a place to congregate for prayer and a clock to tell the correct time for prayer.

In Koenig v. Maryland, 2015 U.S. Dist. LEXIS 81696 (D MD, June 23, 2015), a Maryland federal district court dismissed a Jewish inmate's claims that the kosher diet menu was made unattractive to discourage inmates from signing up for it, and that study sessions occur infrequently and religious texts are not available.

In Linares v. Department of Homeland Security, 2015 U.S. Dist. LEXIS 83379 (ND AL, May 28, 2015), an Alabama federal magistrate judge recommended that a Jewish Immigrations and Customs civil detainee be permitted to proceed with his claim that his free exercise rights were infringed by denial of kosher meals, Sabbath services and access to a rabbi, but recommended dismissal of his class action claims and claims for injunctive relief.  The federal district court (2015 U.S. Dist. LEXIS 82492, June 25, 2015) held that while the magistrate's recommendation was well taken, the suit should be dismissed without prejudice because plaintiff culd no longer be located.

Saturday, June 27, 2015

Suit Proceeds Claiming Admissions Denial Because of Religious Statements In Interview

In Buxton v. Kurtinitis, (D MD, June 25, 2015), plaintiff sued five employees of the Community College of Baltimore County (MD) alleging that he was unconstitutionally denied admission to the school's radiation therapy program.  Dustin Buxton claimed that he was denied admission because of his expression of religious belief during his admissions interview. A Maryland federal district court dismissed Buxton's free speech claim, concluding that the First Amendment does not protect speech expressed in an admissions interview from admissions consequences in a competitive process. However the court permitted Buxton to proceed with an Establishment Clause and and equal protection claim.

Friday, June 26, 2015

The Dissents In Today's Supreme Court Same-Sex Marriage Decision

Following up my earlier posting on Justice Kennedy's majority opinion today in Obergefell v. Hodges (the Supreme Court's decision deciding that states must permit and recognize same-sex marriage), here is a summary of the four dissents:

Chief Justice Roberts dissent (joined by Justices Scalia and Thomas) argued that the majority opinion was a return to the long-rejected judicial policy-making symbolized by the Lochner case:
[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. ...
The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition....
The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry.... In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policy making that characterized discredited decisions such as Lochner v. New York.... Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society....
Emphasizing his central theme, the Chief Justice ended his dissent with the following paragraph:
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Justice Scalia's dissent (joined by Justice Thomas) makes a similar point in somewhat more strident language:
Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. ...
But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.
In making his point, Justice Scalia pointed out the unrepresentative character of the Supreme Court:
nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.
Justice Thomas' dissent (joined by Justice Scalia) included a lengthy historical critique of the majority's understanding of the term "liberty" in the due process clause, saying in part:
Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it. 
Justice Alito's dissent (which Justices Scalia and Thomas joined) included a more direct discussion than did the other opinions of the position of those who continue to oppose same-sex marriage:
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.... We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
.... If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Supreme Court Says States Must License and Recognize Same-Sex Marriage-- A Review of Justice Kennedy's Majority Opinion

Today in Obergefell v. Hodges, (Sup. Ct., June 26, 2015), in a 5-4 decision the U.S. Supreme Court held that the 14th Amendment's due process and equal protection clauses require states to license same-sex marriages and to recognize same-sex marriages lawfully licensed and performed in other states. Justice Kennedy wrote a rather tightly reasoned majority opinion which was joined by Justices Ginsberg, Breyer, Sotomayor and Kagan.  He began by tracing changes in the concept of marriage that have occurred over time, saying in part:
There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex. That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex.... 
The petitioners acknowledge this history but contend that these cases cannot end there.... Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment....
The history of marriage is one of both continuity and change.... For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman.... As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity....  As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned.... 
[T]he Court has long held the right to marry is protected by the Constitution... It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.... In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond.... The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.
A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.... A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. ... A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.... Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order ...
Justice Kennedy expanded on the third of these premises:
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. ...
Justice Kennedy went on:
[B]y virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.... 
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied....
The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other.... Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry....
Justice Kennedy then addressed the concerns of those who oppose same-sex marriage on religious grounds:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Each of the 4 dissenting justices filed a separate dissent.  A later posting will review those.  UPDATE: Here is a posting summarizing the dissents.

Film Producer Says Its Ads For Comedy About U.S. Muslims Is Permitted Under New York MTA Revised Guidelines

As previously reported, in late April the New York Metropolitan Transportation Authority changed its policy on display advertising to exclude all ads of a political nature. Yesterday a lawsuit was filed on behalf of a movie production company that claims ads for its movie "The Muslims Are Coming!" was wrongfully rejected under that policy.  The complaint (full text) in Vaguely Qualified Productions LLC v. Metropolitan Transportation Authority, (SD NY, filed 6/25/2015), alleges that acceptance of ads for the film-- created by two American Muslim comedians-- was unconstitutionally delayed before the policy change, and then wrongfully rejected under the new policy because the ads are not political.  The complaint alleges in part:
55. With its Revised Policy, Defendants seeks to convert the MTA’s property from a designated public forum into a limited public forum....
57. In a limited public forum, strict scrutiny is accorded to restrictions on speech that fall within the designated category for which the forum has been opened. Restrictions on speech that fall outside that designated category must only be viewpoint neutral and reasonable.
58. VQP’s Advertisements fall within a designated category for which Defendants have opened the forum. Specifically, VQP’s Advertisements are “commercial advertising,”... because, in a manner consistent with VQP’s brand, the Advertisements “promote” and “solicit the sale” of VQP’s product, “The Muslims Are Coming!,” by promoting the underlying message of the film—that American Muslims are ordinary people.
A Muslim Advocates press release announced the filing of the lawsuit. Newsweek reports on the lawsuit.

Jury Awards Consumer Fraud Damages In Conversion Therapy Lawsuit

The Southern Poverty Law Center reported that a New Jersey state trial court jury yesterday awarded treble damages of $72,400 to a total of five plaintiffs who sued a provider of "conversion therapy" under the state's consumer fraud law. The award against JONAH (Jews Offering New Alternatives for Healing), its founder and a counselor, compensated plaintiffs for fees paid and for mental health counseling needed by one of the plaintiffs. The jury found that claims JONAH could change clients from gay to straight were fraudulent and unconscionable. In coming weeks the judge will also decide whether to cancel JONAH's business license. (See prior related posting.) SPLC's case docket furnishes links to all the pleadings and orders in the case as it proceeded through the court since it was filed in 2012.

Tribe Sues Over California Solar Project In Ancestral Lands

According to the Parker (AZ) Pioneer, on June 12 the Colorado River Indian Tribes filed suit in a California state court challenging the state's approval of a solar project near Blythe, Calif.  Invoking California's environmental quality act, the tribes say the the impact of the project was not adequately analyzed. This is one of ten solar projects that will cover 35,000 acres of tribal ancestral homeland.  The Parker Pioneer adds:
Historical and ancestral trails run through the land proposed for development (which lies about eight miles outside of the tribe’s reservation boundary) that were once used for physical and spiritual migration. The project site also house “burial grounds, grindstones, hammerstones, and petroglyphs” created by the tribes’ ancestors.

2nd Grade Teacher Sued For Intimidating Student Who Said He Did Not Believe In God

Yesterday's Fort Wayne (IN) Journal Gazette reported on a federal lawsuit filed last week by the Indiana ACLU on behalf of a 2nd grade student and his mother against the boy's teacher at Fort Wayne's Forest Park Elementary School.  According to the complaint, after the boy, identified only as A.B., had a playground discussion with a classmate whom he told he did not go to church or believe in God, the classmate complained to the teacher, Michelle Meyer. The teacher told A.B. she was very concerned about what he had done, and for three days required him to sit by himself at lunch and not talk to other students because he had offended them.  A.B. is now anxious and fearful about school, believing many teachers and students hate him, even though teachers subsequently told him he could believe what he wants.

The lawsuit only names the teacher personally as defendant, and not the school district.  According to WTHR News, the district released a statement saying that "It is clear that it is not the province of a public school to advance or inhibit religious beliefs or practices...."