Atheist Firefighter Can Move Ahead With Hostile Work Environment Claim

In Queen v. City of Bowling Green, (WD KY, July 20, 2018), a Kentucky federal district court allowed an atheist firefighter to move ahead with his claim of hostile work environment based on religion. The court, analyzing his claim under the Kentucky Civil Rights Act, said in part:

Defendants argue that Queen cannot prove the religious harassment he  experienced was unwanted. Rather, Defendants contend that jokes,  pranks, and teasing are all part of the fraternal environment at the Fire Department that Queen enjoyed and participated in.  However, since the Defendants are  moving  for  summary  judgment, the Court must consider the facts in a light favorable to Queen.  According to Queen, none of the harassment he experienced was welcomed.  As he tells it, he was interrogated about his religion by coworkers and forced against his will to participate in Bible studies.  Ultimately, he claims that he was threatened and physically assaulted.  For this reason, there is enough evidence for a reasonable jury to conclude that the harassment Queen experienced was unwanted.

Friendly Atheist blog has more on the decision.

Refusal of "IM GOD" License Plate Can Be Challenged In Federal Court

In Hart v. Thomas, (ED KY, March 30, 2018), a Kentucky federal district court rejected an 11th Amendment sovereign immunity defense raised by the Secretary of the Kentucky Transportation Cabinet in a suit over an application for a personalized license plate.  Plaintiff Bennie Hart had applied for a license plate reading "IM GOD", to reflect his philosophy about religion.  Kentucky refused to issue the plate on the ground that it is offensive to good taste.  Hart sued contending that his First Amendment free speech rights were infringed when his application was denied. Friendly Atheist blog has more on the decision.

Judge Reprimanded For Gay Adoption Recusal Order

The Kentucky Judicial Conduct Commission has voted to reprimand now-retired Family Court Judge W. Mitchell Nance.  In In re Nance, (Jud. Con. Commn, Dec. 19, 2017), the Commission concluded that Nance had violated Canons of Ethics that require judges to decide cases fairly and impartially when, based on his religious views, he issued an Order recusing himself from any case involving adoption of a child by a gay or lesbian.  As described by the Commission:

On April 27th, 2017 the Respondent issued General Order 17-01 declaring that “under no circumstance” would the adoption of a child by a homosexual be in the child’s best interest. Acknowledging that this declaration constitutes a “personal bias or prejudice” against homosexuals seeking to adopt children, Judge Nance ordered that any attorney filing a motion for adoption on behalf of a homosexual party notify court staff so that he could recuse and disqualify himself from any such proceeding.

(See prior related posting.) The Richmond Register reports on the Commission's decision.

Antagonists In Same-Sex Marriage Saga will Now Face Each Other In 2018 Election

In 2015, Rowan County, Kentucky clerk Kim Davis was at the center of the battle over same-sex marriage as she was held in contempt for refusing to allow her office to issue marriage licenses to same-sex coupled. (See prior posting.)  One of the individuals who was denied a marriage license was David Ermold.  Last week, Ermold filed papers to run against Davis for the Clerk position next year. Papers, of course, were filed in Davis' office.  The Luxora Leader reports:

... Ermold, alongside his now-husband, filled out the paperwork to run for office with Davis sitting across from him:

Davis smiled and welcomed them, chatting with them about the state retirement system and the upcoming Christmas holiday. She made sure Ermold had all of his paperwork and signatures to file for office, softly humming the old hymn ‘Jesus Paid It All’ as her fingers clacked across a keyboard.

When it was over, she stood and shook hands with Ermold, telling him: ‘May the best candidate win.'

Ecclesiastical Abstention Doctrine Does Not Bar School Administrator's Contract Claim

In Saint Augustine School v. Cropper, (KY Sup. Ct., Nov. 2, 2017), the Kentucky Supreme Court held that the ecclesiastical abstention doctrine does not prevent the former lay administrator of a Catholic elementary school from asserting a breach-of-contract claim, saying in part:

Saint Augustine's justification for the Cropper's dismissal stems from declining student enrollment and shrinking revenues. No matter the extent of Cropper's involvement in the religious life of Saint Augustine; adjudicating her damages claim for breach of her employment contract does not require the secular court's "wading into doctrinal waters"; it is simply the termination of the lay administrator at a parochial school. Even if Cropper had been a prominent actor in the religious life of the community, unless Saint Augustine- fired her for reasons associated with the application of church doctrine or governance, the ecclesiastical-abstention doctrine would not apply.

In the case, the school had specifically disclaimed reliance on the ministerial exception defense.

Judge Resigns Over His Refusal To Handle Gay Adoptions

According to a report from WDRB yesterday, Kentucky Family Court  Judge W. Mitchell Nance has resigned rather than defend against charges filed against him by the Judicial Conduct Commission.  Nance had sent out a general order to attorneys informing them that he would not hear cases involving adoptions by gays or lesbians.  Nance had argued that his religious beliefs and convictions required him to recuse himself in such cases. (See prior related posting.) [Thanks to Tom E. Rutledge for the lead.]

Suits Against Kim Davis Move Ahead

In two similar cases, Yates v. Davis, (ED KY, Sept. 15, 2017), and Ermold v. Davis,(ED KY, Sept. 15, 2017), a Kentucky federal district court allowed plaintiffs to move ahead with their damage actions against Rowan County, Kentucky Clerk, Kim Davis, who refused to issue them marriage licenses. Davis adopted a "no marriage license" policy because of her religious objections to issuing licenses for same-sex marriages. (See prior related posting.) While dismissing claims brought against Davis in her official capacity, the court refused to dismiss personal capacity claims against her.  It found that her refusal to issue licenses was subject to strict scrutiny. [Thanks to Tom Rutledge for the lead.]

Ark Encounter Land Transfer Jeopardizes Tax Incentives

WHAS reported Saturday that Ark Encounter theme park may not get the $18 million in sales tax rebate incentives previously promised to it because the land on which the theme park sits has been sold for a nominal amount to a non-profit entity owned by the theme park's founder. The sale for $10 of the theme park land to Ken Ham's Crosswater Canyon-- a breach of contract-- means that Grant County, Kentucky where Ark Encounter is located will lose $700,000 in expected revenue from Safety Assessment fees as well as property taxes, even though the theme park has cost the county $715,000 for extra police and fire personnel. The Safety Assessments do not apply to non-profits. Officials are hopeful that negotiations will resolve the dispute.

UPDATE: According to Cincinnati.com, in  order to preserve its tax incentive, Ark Encounter on July 24 sold the theme park property back to its for-profit entity.

Plaintiffs Awarded Attorneys' Fees In Suit Against County Clerk Kim Davis

In Miller v. Davis, (ED KY, July 21, 2017) a Kentucky federal district court awarded $224,703 in attorney’s fees and costs to plaintiffs who previously obtained a preliminary injunction against Rowan County, Kentucky Clerk Kim Davis.  Davis, citing her religious beliefs, stopped issuing marriage licenses entirely in order to avoid issuing licenses to same-sex couples.  The court yesterday held that plaintiffs were entitled to attorneys' fees because they were the “prevailing party” --they obtained a preliminary injunction that granted the relief they sought. The ultimate dismissal of the case after a change in the law rendered it moot did not change this conclusion.  The court, in a 50-page opinion, said in part:

In this case, the Plaintiffs “prevailed by every measure of victory.” The relief Plaintiffs obtained—the ability to secure marriage licenses and marry—was “preliminary” in name only. It is not the “fleeting” success that fails to establish prevailing-party status.  After the Court obtained compliance with the Preliminary Injunction Orders, Plaintiffs received marriage licenses. And once the plaintiff-couples received their marriage licenses, their rights were not subject to revocation….

... Couples continued to receive marriage licenses after the Kentucky General Assembly amended the law – albeit, on a form Davis felt more comfortable with. Therefore, Plaintiffs’ preliminary-injunction success materially altered their legal relationship with Davis, and that court-ordered change was enduring and irrevocable. Accordingly, the Court concludes that the Plaintiffs “prevailed” within the meaning of § 1988 and are entitled to attorneys’ fees.

The court also held that the state of Kentucky, not Rowan County, is liable for the attorneys’ fees. AP reporting on the decision says Davis plans to appeal, but the state of Kentucky has not yet decided whether it will appeal the ruling. [Thanks to Tom Rutledge for the lead.]

Fragmented Decision Upholds Business' Refusal to Print LGBT Pride T-Shirts

In a 2-1 decision yesterday, the Kentucky Court of Appeals concluded that a business which prints customized T-shirts was not in violation of a county's public accommodation law when it refused to print T-shirts for a local LGBT Pride Festival. At issue in Lexington Fayette Urban County Human Rights Commission v. Hands On Originals, Inc., (KY Ct. App., May 12, 2017), was the policy of a business which prints customized t-shirts, mugs, pens, and other accessories "to refuse any order that would endorse positions that conflict with the convictions of the ownership."

Chief Judge Kramer, writing the court's opinion, held that the business, Hands On Originals (HOO), never refused goods or services to a customer on the basis the customer's sexual orientation or gender identity because the order was placed by an organization which has no sexual orientation of gender identity. Neither did HOO deny goods or services because the customer was engaging in conduct engaged in exclusively or predominantly by a protected class of people. Judge Kramer explained, saying in part:

The acts of homosexual intercourse and same-sex marriage are conduct engaged in exclusively or predominantly by persons who are homosexual. But anyone—regardless of religion, sexual orientation, race, gender, age, or corporate status—may espouse the belief that people of varying sexual orientations have as much claim to unqualified social acceptance as heterosexuals. Indeed, the posture of the case before us underscores that very point: this case was initiated and promoted by Aaron Baker, a non-transgendered man in a married, heterosexual relationship who nevertheless functioned at all relevant times as the President of the GLSO.

Judge Lambert concurred only in the result and filed a separate opinion contending that HOO is protected in its conduct because of the Kentucky Religious Freedom Restoration Statute.  She said in part:

HOO refused to print the shirts because the HOO owners believe the lifestyle choices promoted by GSLO conflict with their Christian values.

Judge Taylor dissented, saying in part:

The majority takes the position that the conduct of HOO in censoring the publication of the desired speech sought by GLSO does not violate the Fairness Ordinance. Effectively, that would mean that the ordinance protects gays or lesbians only to the extent they do not publicly display their same gender sexual orientation. This result would be totally contrary to legislative intent and undermine the legislative policy of LFUCG since the ordinance logically must protect against discriminatory conduct that is inextricably tied to sexual orientation or gender identity. Otherwise, the ordinance would have limited or no force or effect.

 Lexington Herald Leader reports on the decision.

6th Circuit: Damage Action Against Kim Davis Is Not Moot

In Ermold v. Davis, (6th Cir., May 2, 2017), the U.S. 6th Circuit Court of Appeals reinstated a damage action against Rowan County, Kentucky Clerk Kim Davis brought by a same-sex couple who had been denied a marriage license by Davis.  The district court had dismissed the case because subsequent legislative action and an Executive Order by the governor assured that marriage licenses are now being issued to same-sex couples. The court held, however, that where a suit only seeks damages for past injury, a change in defendant's conduct does not moot the controversy.  Judge Siler also filed a concurring opinion emphasizing that the district court still might find that Davis was protected by Kentucky's Religious Freedom Restoration Act. [Thanks to Tom Rutledge for the lead.]

Judge Recuses Himself Over Conscientious Objection To Gay Adoptions

The Louisville Courier Journal last week reported on Kentucky Family Court Judge W. Mitchell Nance who issued an order last Thursday stating that he will recuse himself from all adoption proceedings involving "homosexual parties." His order explains that "as a matter of conscience" he believes that "under no circumstance" would "the best interest of the child be promoted by the adoption by a practicing homosexual." He cited judicial ethics rules that require a judge to recuse himself when he has a personal bias or prejudice.

New Kentucky Law Authorizes Bible Courses In Schools

On April 11, Kentucky Governor Matt Bevin signed HB 128 (full text) which requires the Kentucky State Board of Education to create courses on the Hebrew Scriptures (Old Testament), the New Testament, and on both. The law provides that the purposes of these courses are to teach students the biblical content, characters, poetry, and narratives required to understanding contemporary society and culture, including literature, art, music, mores, oratory, and public policy. [Thanks to Tom Rutledge for the lead.]

Kentucky, Nebraska Enacts New Protections For Religion In Schools

Two states this month have enacted legislation aimed at enhancing free exercise rights in the public school context. In Kentucky, on March 16 Governor Matt Bevin signed SB 17 which protects the expression of religious and political opinions in public schools and colleges. The law assures that students can voluntarily express religious or political viewpoints in their assignments; bars schools from altering remarks of student speakers; provides equal access for religious organizations; allows students to display religious messages on clothing; allows public school teachers to teach about religion using the Bible or other scripture without providing religious instruction, and to teach about religious holidays in a secular manner, and allows schools to sponsor artistic or theatrical programs that advance knowledge of society's cultural and religious heritage. It also effectively bars public colleges from limiting speakers outdoors on campus to free speech zones.  An ADF press release has more on the new law.

In Nebraska, on March 27 Governor Pete Ricketts signed LB 62 eliminating a longstanding ban on teachers wearing religious garb in public schools.  Blog from the Capital has more.

Amish Drop Suit Against City Over Animal Waste Requirements

Bowling Green (KY) Daily News reported yesterday that two members of the Swartzentruber Amish community who had sued Auburn, Kentucky officials over an animal waste ordinance requiring horses to wear animal waste catching devices have now voluntarily dismissed their lawsuit. The sect's elders had ruled that it violates religious principles to comply with the requirement. (See prior posting.) Even though efforts to reach a compromise in the suit failed, plaintiffs dismissed their suit because of their discomfort with the publicity they were receiving.

Kentucky Enacts New Abortion Restrictions; Suit Filed Challenging Required Disclosures

In Kentucky yesterday, Gov. Matt Bevin signed into law H.B. 2 (full text), which, as described by CNN:

requires a physician or technician to perform an ultrasound, describe and display the ultrasound images to the mother, and provide audio of the fetal heartbeat to the mother before she may have an abortion. The text of the bill says the pregnant woman may choose to avert her eyes from the images, and request the volume of the heartbeat be turned down or off.

The law frames required disclosures in terms of providing information about the "unborn child."

The state's sole licensed abortion provider and three physicians immediately filed suit challenging the constitutionality of the law.  The complaint (full text) in EMW Women's Surgical Center, P.S.C. v. Beshear (WD KY, filed 1/9/2017), contends that the law violates rights of both physicians and patients. An ACLU press release announced the filing of the lawsuit.

The Governor also signed S.B. 5 which prohibits abortions after 20 weeks of pregnancy, with limited exceptions. Both H.B. 2 and S.B. 5 took effect immediately on signing. [Thanks to Tom Rutledge and Scott Mange for the leads.]

Amish Sue Over City Requirement For Equine Diapers

Two members of the Old Order Swartzentruber Amish sect filed suit last week in a Kentucky state court challenging a 2014 amendment to Auburn, Kentucky's animal waste ordinance requiring horses and other large animals to wear animal catching devices.  As reported by WBKO and Bowling Green Daily News, the ordinance targets the Amish, requiring their horses to wear equine diapers.  The sect's elders decided that it violates religious principles to comply with the requirement. A number of Amish have already been prosecuted under the ordinance. (See prior posting). The lawsuit contends that the ordinance violates state and federal constitutional provisions as well as the Kentucky Religious Freedom Restoration Act.

Kentucky Governor Declares 2017 As "Year of the Bible"

On Dec. 19, Kentucky Governor Matt Bevin signed a Proclamation (full text) declaring 2017 to be the "Year of The Bible."  A similar designation was given by the governor to 2016.  The Proclamation notes the Bible Reading Marathon that begins on January 1 in which leaders in each Kentucky county will take 15 minute shifts reading through the entire Bible. The Lexington Herald-Leader last week reported on the governor's signing of the proclamation.

Title VII Can Cover Transgender Discrimination

In Mickens v. General Electric Co., (WD KY, Nov. 29, 2016), s Kentucky federal district court ruled that Title VII of the 1964 Civil Rights Act supports a claim for employment discrimination brought by a transgender African American male employee.  The court said in part:

Significantly, Plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female should look and act like.

WFPL yesterday reported on the decision.

Amish Say They Are Targets of Law Requiring Horses To Wear Collection Bags

The Bowling Green Kentucky Daily News reported last week that Amish defendants are challenging an Auburn, Kentucky ordinance (Sec. 90.088(B)) that requires horses and other large animals on city streets to wear collection bags to catch their excrement.  Auburn officials say the law is needed to keep city streets clean and prevent the spread of disease, but the Amish say the bags will frighten their horses.  Defendants in some of the 30 pending cases are arguing that the law unconstitutionally targets a particular group of Amish residents. [Thanks to Scott Mange for the lead.]