Wedding Artists Challenge City's Public Accommodation Anti-Discrimination Ordinance

Two owners of an upscale hand painting and calligraphy business filed suit in an Arizona state court yesterday challenging the provision in the Phoenix city code, adopted in 2013, that bars public accommodations from discriminating on the basis of sexual orientation or gender identity. The 88-page pre-enforcement complaint (full text) in Brush & Nib Studio, LC v. City of Phoenix, (AZ Super. Ct., filed 5/12/2016), contends that plaintiffs' free speech, free exercise and equal protection rights are infringed by requiring them to produce wedding invitations and similar wedding art for same-sex marriages. It also asserts that the statutory provision barring advertisements or notices that suggest discriminatory practices prevents plaintiffs from explaining their religious and artistic reasons for refusing to create custom art for same-sex weddings. An ADF press release announced the filing of the lawsuit.

Court Refuses To Allow Amended Complaint On Building Code Application To Home Bible Study Groups

In Salman v. Phoenix, (D AZ, Jan. 27, 2016), an Arizona federal district court refused to permit an ordained minister who used his home for weekly Bible study meetings  and worship to file a third amended complaint seeking damages and injunctive relief against the city's application of its building code to his activities.

Arizona City Adopts Christian-Only Invocation Policy

At its September 14 meeting, the Coolidge, Arizona City Council had before it a resolution (full text) to open each Council meeting with a prayer.  The resolution was drafted to comply with the Supreme Court's Town of Greece guidelines.  However, according to the Coolidge Examiner, in passing the resolution, Council by a 4-2 vote also adopted an amendment offered by Councilman Rob Hudelson to limit invocations to Christian prayers.  The paper reports:

Speaking last was Hudelson, who himself is a preacher. He made clear his views that the United States is a Christian nation.

“I think it’s very important,” Hudelson said. “We just proclaimed Constitution Week. You know what was said at the end of the [Revolutionary] war? A treaty in Paris that said ‘In the name of the most holy and undivided trinity.’ You don’t get that from the Quran. You get it from the Bible. You get it from Christianity. That’s our heritage.”

After this, Hudelson motioned to accept the resolution with the stipulation that this be a Christian item

The City Attorney told Council that this amendment would violate the Establishment Clause, but nevertheless Council passed it.  The Resolution is subject to a 30-day review period, and the City Attorney will now rewrite it to comply with Council's amendment.

Minister's Challenge To Applying Building Code To Home Bible Study Group Is Dismissed

In Salman v. Phoenix, City of, (D AZ, July 14, 2015), an Arizona federal district court dismissed a 42 USC Sec. 1983 suit by a minister and his wife seeking to enjoin the city from applying its building code to weekly bible studies held in a 2000 square foot game room built in their backyard. The minister had already been convicted criminally in state court for building code violations. The court dismissed the claim on the basis that a federal habeas corpus action is the only federal court route available to bring a suit that would necessarily challenge the validity of a state criminal conviction. The court said:

A § 1983 plaintiff’s request that a federal court declare unconstitutional the very statute (or its application to the plaintiff) under which he was convicted in state court is no different than a request that a federal court invalidate the conviction itself.

The court also dismissed plaintiffs' RLUIPA and state law claims.

Arizona Says Judges Cannot Refuse To Perform Same-Sex Marriages If They Perform Others

The Arizona Supreme Court Judicial Ethics Advisory Committee has issued Revised Advisory Opinion 15-01 (March 9, 2015), Judicial Obligation To Perform Same-Sex Marriages. It provides in part that:

a judge who chooses to perform marriages may not discriminate between marriages based on the judge’s opposition to the concept of same-sex marriage.

Rule 2.3(B) of the Arizona Code of Judicial Conduct provides that a judge shall not, "in the performance of judicial duties," manifest bias or prejudice based upon sexual orientation....

Refusing to perform same-sex marriages, while agreeing to perform opposite sex marriages, also violates Rule 2.2 of the Code which provides that "[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially."

...  The JEAC concludes that a judge may choose for various reasons not to conduct any marriages at all because performing marriages is a discretionary, not mandatory, function. A judge may also choose to conduct marriages only for friends and relatives to the exclusion of all others. Such a choice would not run afoul of Rule 2.3(B) because it is not based on sexual orientation. Of course, a judge who performs marriages only for friends and relatives would violate Rule 2.3(B) if the judge refuses to perform marriages for same sex friends and relatives.

AP reports on reactions to the ruling.

Avalanche of Same-Sex Marriage Legal Developments

In the last several days there has been an avalanche of legal developments relating to same-sex marriages:

Alaska:  Yesterday in Parnell v. Hamby, the U.S. Supreme Court issued an order denying a stay of a federal district court's decision striking down Alaska's same-sex marriage ban.

Arizona: in Majors v. Horne,(D AZ, Oct. 17, 2014) and Connolly v. Jeanes, (D AZ, Oct. 17, 2014), an Arizona federal district court in two short and substantially identical opinions struck down Arizona's ban on same-sex marriages, citing the 9th Circuit's decision earlier this month in Latta v. Otter striking down bans in Nevada and Idaho. (See prior posting.) State Attorney General Tom Horne announced he would not appeal and sent a letter to the state's 15 county clerks telling them that they may not deny marriage licenses to same-sex couples. Arizona Republic reports on developments.

Wyoming: In Guzzo v. Mead, (D WY, Oct. 17, 2014), a Wyoming federal district court granted a preliminary injunction against Wyoming's ban on same-sex marriage and recognition of same-sex marriages performed elsewhere.  However the court also granted a stay of its injunction until Oct. 23 to allow an appeal to the 10th Circuit or until an earlier date at which the state informs the court that it will not appeal. Governor Matt Mead's office announced that the state will file a notice with the district court that it will not appeal the decision.

Idaho: Two Christian ministers and their for-profit wedding chapel located across the street from the Kootenai County (Idaho) Clerk’s office (which issues marriage licenses) brought suit in an Idaho federal district court to enjoin the city of Coeur d'Alene from enforcing its anti-discrimination ordinance against them. The 63-page complaint (full text) in Knapp v. City of Coeur d'Alene, (D ID, filed Oct. 17, 2014) contends that the Ordinance violates plaintiffs' 1st and 14th Amendment rights as well as their rights under state law. Plaintiffs also filed a motion for a temporary restraining order or preliminary injunction.  ADF issued a press release announcing the filing of the lawsuit.

North Carolina: In North Carolina, the general counsel of the state's Administrative Office of the Courts on Oct. 14 issued a memo (full text) to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. Refusal to do so could lead to suspension, removal or even criminal charges. In response, on Thursday Rockingham County Magistrate Judge John Kallam who has religious objections to performing same-sex marriages resigned.  Alamance County Judge Jim Roberson, who originally suggested that Magistrates with religious objections be excused from performing same-sex ceremonies, issued a statement yesterday saying that magistrates in his county are required to perform ceremonies for same-sex couples. (Qnotes.)  Time Warner Cable News reported on developments.

Federal Government: On Friday, the U.S. Department of Justice announced that the federal government will now recognize same-sex marriages performed in Indiana, Oklahoma, Utah, Virginia, and Wisconsin for purposes of extending federal benefits. The action came after the Supreme Court refused review of Circuit Court decisions affecting those states. Apparently (though there is some slight ambiguity in DOJ's announcement) the federal government will also recognize same-sex marriages performed in Nevada and Idaho after the Supreme Court refused to stay the 9th Circuit's decision as to those states. (See prior posting.)

Supreme Court Grants Review In Church's Challenge To Sign Ordinance

The U.S. Supreme Court today granted certiorari in Reed v. Gilbert, AZ, (Docket No. 13-502, cert. granted 7/1/2014.) (Order List.) In the case, 9th Circuit Court of Appeals, in a 2-1 decision, upheld an Arizona town's sign ordinance that limits the size, number and time frame in which non-profit groups can display temporary directional signs.  The limits on temporary event signs are stricter than limits placed on various other types of signs, having the effect of favoring political and ideological signs over religious ones.  The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services. (See prior posting.) Here is the petition for certiorari. An ADF press release has more background.

Child Parenting Time Order Did Not Violate Free Exercise Protections or Establishment Clause

In In re Peace v. Peace, (AZ App., May 8, 2014), an Arizona state appellate court rejected a divorced husband's claim that a trial court's order modifying parenting time violated his free exercise rights and the Establishment Clause.  At issue was a provision in the court's order providing that the wife will have the children on Christmas Day in odd-numbered years, and the husband shall have them in even-numbered years.  The husband complained that the court order did not mention the holy days of his Baha'i faith. The court concluded that the trial court's order does not endorse Christianity nor burden husband's religious exercise.

Arizona Governor Vetoes Anti-Gay Religious Freedom Bill

As reported by the Arizona Daily Star, yesterday Arizona Gov. Jan Brewer vetoed H.B. 1062, the controversial amendments to the state's Religious Freedom Restoration Act that would, among other things, have allowed businesses to invoke religious freedom claims to refuse to serve gays and lesbians, particularly in the context of same-sex marriages. (See prior posting.) Announcing her decision at a news conference (full text of remarks), Brewer said that the bill is unneeded and "could divide Arizona in ways we cannot even imagine and no one would ever want." In her formal Veto Letter (full text), Brewer said in part:

Senate Bill 1062 ... does not seek to address a specific and present concern related to Arizona businesses.  The out-of-state examples cited by proponents of the bill, while concerning, are issues not currently existing in Arizona.  Furthermore, the bill is broadly worded and could result in unintended and negative consequences.  The legislation seeks to protect businesses, yet the business community overwhelmingly opposes the proposed law.  Moreover, some legislators that voted for the bill have reconsidered their votes and now do not want this legislation to become law.

Catholic Diocese of Gallup Becomes Ninth To File For Bankruptcy Protection

Last week (Nov. 12), the Catholic Diocese of Gallup-- which encompasses parts of New Mexico and Arizona-- became the ninth Catholic diocese in the United States to file for Chapter 11 bankruptcy reorganization. As reported by the Albuquerque Journal, the diocese includes a large part of the Navajo Nation, as well as 6 other tribes and pueblos. The day before the filing, the diocese posted a letter (full text) from Bishop Wall reiterating a statement he made in September that bankruptcy reorganization is "the only way to equitably and mercifully deal with the mounting sex abuse claims, still meet our commitment to [parishioners] and continue the outreach mission of the Church." Two separate bankruptcy petitions, along with a motion for joint administration of the two cases, were filed in federal bankruptcy court in New Mexico since the diocese is organized through two separate entities-- a New Mexico corporation sole and an Arizona corporation sole.  The full text of all the legal documents involved are available from the Diocese's website. [Thanks to Douglas Carver for the lead.]