Canadian Court Refuses To Enjoin Law Allowing Gay Student Associations

In PT v Alberta, (Alberta Ct. App., April 29, 2019), the Alberta (Canada) Court of Appeal in a 2-1 decision upheld a trial court's refusal to issue an interim injunction staying operation of challenged provisions of the School Act while its constitutionality is being litigated.  At issue are provisions which empower students to create voluntary student organizations that create a welcoming environment, especially for LGBTQ+ students. Parents, along with numerous Christian schools and organizations, sued claiming that the law infringed their rights under the Canadian Charter of Rights and Freedoms by depriving parents of choice in the education of their children and their ability to educate their children in accordance with their moral and religious values. Calgary Star reports on the decision.

Catholic Agency Challenges Michigan's Child-Placement Anti-Discrimination Policy

Last week, a second lawsuit was filed challenging a settlement entered into by Michigan's Attorney General in which she agreed to enforce anti-discrimination provisions against adoption and foster care agencies contracting with the state which refuse to place children with same-sex couples or LGBTQ individuals who are otherwise qualified as foster care or adoptive parents. The first challenge was filed earlier this month in federal court. In last week's lawsuit, Catholic Charities West Michigan v. Michigan Department of Health and Human Services, (MI Ct. Claims, filed 4/25/2019), filed in state court, the complaint (full text) cites protections for faith-based child placement agencies found in Michigan statutes such as MCL §722.124e and §722.124f, and alleges in part:

[T]he Michigan Legislature intended to-- and did-- protect the religious exercise of faith-based providers like Catholic Charities.... Defendants have adopted a new policy that forces Catholic charities to choose between violating its religious beliefs about same-sex marriage and shutting down its foster care and adoption ministry.  Defendants' new policy misinterprets state law, violates Catholic Charities' rights under the U.S. and Michigan Constitutions, and adopts the anti-religious views and policy preferences of Defendant Attorney General Dana Nessel-- who has previously criticized Michigan's statutory protections for faith-based foster care and adoption providers as "a victory for the hate mongers."

ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Will Decide Whether Title VII Protects Gays and Transgender Individuals

The U.S. Supreme Court today granted review in three cases involving important questions of LGBT rights under Title VII of the 1964 Civil Rights Act.  First the Court granted certiorari in Bostock v. Clayton County, Georgia, (Docket No. 17-1618) (SCOTUSblog Case Page) and consolidated it with Altitude Express, Inc. v. Zarda (Docket No.17-1623) (SCOTUSblog Case Page) (see prior posting) in which it also granted certiorari (Order List 4/22/2019). The cases raise the question of whether Title VII's prohibition on discrimination "because of ... sex" covers discrimination against employees on the basis of sexual orientation.

Second, the Court granted review in R.G. & G.R. Harris Funeral Homes v. EEOC, (Docket No. 18-107, certiorari granted 4/22/2019 (SCOTUSblog Case Page) (See prior posting). The grant of certiorari was specifically on:

Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).

New York Times reports on the Supreme Court's action.

8th Circuit Hears Arguments Over Title VII's Applicability To Sexual Orientation

Yesterday, the U.S. 8th Circuit Court of Appeals heard oral arguments in Horton  v.  Midwest Geriatric Management (audio of full oral argument). As reported by the National Law Journal, at issue is whether Title VII's prohibition on discrimination "because of sex" covers discrimination on the basis of sexual orientation. In the case, a health care specialist sued after his offer of employment was rescinded, claiming the rescission came because his employer discovered he was gay.

Catholic Agency Sues Michigan Over Adoption Agency Non-Discrimination Policy

As previously reported, last month Michigan Attorney General Dana Nessel announced that the state has entered into a settlement agreement that calls for the state to enforce non-discrimination provisions in agreements with foster care and adoption agencies.  The settlement applies to any agency contracting with the state that discriminates against same-sex couples or LGBTQ individuals otherwise qualified as foster care or adoptive parents.  Yesterday suit was filed in a Michigan federal district court by a Catholic adoption and foster care agency, and by some of its clients, challenging Michigan's new policy.  The complaint (full text) in Buck v. Gordon, (WD MI, filed 4/15/2019), contends that the new policy violates plaintiffs' 1st and 14th Amendment rights as well as RFRA. The Federalist reports on the lawsuit.

Senate Will Investigate Yale's Application of Its Non-Discrimination Policy To Public Interest Stipends

Senator Ted Cruz, Chairman of the Constitution Subcommittee of the U.S. Senate Judiciary Committee told Yale Law School Dean Heather Gerken in a letter (full text) sent last week that the Subcommittee is opening an investigation into the Law School's recent extension of its non-discrimination policy to summer and post-graduate public interest fellowships and loan forgiveness for public interest careers. According to Yale Daily News, the move comes in reaction to the law school's announcement:

We recently decided that the Law School will require that any employment position it financially supports be open to all of our students. If an employer refuses to hire students because they are Christian, black, veterans, or gay, we will not fund that position.

The policy change came after negative reaction, particularly by LGBTQ groups, to the Federalist Society's speaking invitation to a lawyer from Alliance Defending Freedom. In his letter, Sen Cruz said in part:

[I]t appears that the policy arose from unconstitutional animus and a specific discriminatory intent both to blacklist Christian organizations like the Alliance Defending Freedom and punish Yale students whose values or religious faith lead them to work there.

UPDATE: Here is Yale Law School's response to Sen. Cruz's letter, emphasizing that its policy only applies to hiring practices, and not to policy objectives of the organization. [Thanks to Jim Oleske for this update item].

Brunei Further Implements Its Sharia Penal Law-- The Details

There has been extensive coverage in the press in recent days regarding the Sultan of Brunei's further implementation of Sharia law in his southeast Asian nation.  Press coverage has focused on implementation of the provisions on stoning for the offences of adultery and homosexual sex. (CNN, ABC). Here is a closer look at the legal steps the nation has taken.

In 2013, Brunei adopted Syariah Penal Code Order, 2013 (full text). The law was to be implemented in stages, beginning with crimes involving only jail terms. Last December, the Ministry of Religious Affairs published a Notice (full text) of the remaining provisions that will go into effect April 3.  These are provisions in Chapter I of the law imposing Sharia penalties, among other things, for theft offenses (Sariqah, Hirabah), adultery (Zina), rape (Zina Bil-Jabar), sodomy (Liwat), apostasy (Irtidad), and drinking intoxicating liquors. Section 94 on pregnancy out of wedlock was excluded from the provisions taking effect.

A new Criminal Procedure Code (full text) was also ordered effective as of January 1, 2019.

Iowa Governor Signs Campus Free Speech Bill

Yesterday, Iowa Governor Kim Reynolds signed SF 274 (full text), a bill that is designed to protect free speech at public universities. The new law requires the state Board of Regents and the board of each community college to adopt an extensive policy to protect speech and expression. Among other things, it bars public universities from limiting non-commercial speakers to a free-speech zone.  As reported by Iowa State Daily, the section of the new law that has raised the most controversy is Section 3(3) which prohibits denying benefits to a student organization because it requires that its leaders agree to and support the organization's beliefs as interpreted by the organization.  This presumably allows religious organizations that oppose same-sex relations to bar members of the LGBTQ community from leadership positions.

South African Court Invalidates Dutch Reformed Church's LGBT Policy

In South Africa, a 3-judge panel of the North Gauteng High Court set aside as unlawful and invalid a decision on same-sex relationships made by the General Synod of the Dutch Reformed Church during the Synod's November 2016 meeting. That decision reversed a 2015 policy that recognized same-sex civil unions and allowed the ordination of gays and lesbians.  In Gaum v. Van Rensburg, S.A. High Ct., March 8, 2019), the court said in part:

The Church denied that the 2016 decision prevents the participation of the LGBTQIA+ community in the church community, or that it impedes their private lives, or that the decision violates their constitutional rights.... On behalf of the Church it was submitted that the 2016 decision did not restrict Gaum’s right to freedom of association; Gaum is free to join another Church that interprets the Bible in the way that Gaum does....

The differentiation caused by the 2016 decision does inherently diminish the dignity of Gaum because same-sex relationships are tainted as being unworthy of mainstream church ceremonies and persons in a same-sex relationship cannot be a Minister in the Church....

There is an argument to be made that a Court cannot prescribe who must be appointed as a Minister in a Church. But, if a member of the Church is permitted to study to become a Minister in that Church, but disallowed to engage in his or her profession only due to the fact that he or she would be in same sex relationship there is an inherent contradiction in the conduct of the Church....

The threshold requirement in section 36 of the Constitution is that any limitation of a fundamental right must be “law of general application …” Where a church discriminates, it constitutes private discrimination, with the law of general application not likely to apply.

eNCA reports on the decision.

Supreme Court Denies Review In B&B's Refusal To Rent To Lesbian Couple

The U.S. Supreme Court today denied review in Aloha Bed & Breakfast v. Cervelli, (Docket No. 18-451, certiorari denied 3/18/2019). (Order List).  In the case, a Hawaii sate appeals court held that a 3-room bed & breakfast violated the state's public accommodation law when the B&B owner refused on religious grounds to accept a room reservation from a lesbian couple. (See prior posting.) The Hawaii Supreme Court denied review. (See prior posting.)

Colorado and Masterpiece Cakeshop Agree To End Their Litigation

In a press release yesterday, the Colorado Attorney General's Office announced that the state and Masterpiece Cakeshop have agreed to end their battle over the right of a bakery owner to refuse to design cakes celebrating LGBT events. As previously reported, while the U.S. Supreme Court appeal involving Masterpiece Cakeshop owner Jack Phillip's refusal to design a cake for a same-sex wedding ceremony was pending, another customer, Autumn Scardina, sought a cake from Masterpiece Cakeshop to celebrate her gender transition. Phillips refused and the Commission issued a probable cause determination.  In response, Phillips filed a federal lawsuit claiming that the Commission was targeting him in violation of his constitutional rights.  In yesterday's announcement, the state said:

Under the terms of the agreement, the Colorado Civil Rights Commission will voluntarily dismiss the state administrative action against Masterpiece Cakeshop and its owner, Jack Phillips, and Mr. Phillips will voluntarily dismiss his federal court case against the State.... This agreement does not affect the ability of Autumn Scardina ... to pursue a claim on her own.

“After careful consideration of the facts, both sides agreed it was not in anyone’s best interest to move forward with these cases. The larger constitutional issues might well be decided down the road, but these cases will not be the vehicle for resolving them. Equal justice for all will continue to be a core  value that we will uphold as we enforce our state’s and nation’s civil rights laws,” said [Attorney General] Weise...

ADF, which represents Phillips, issued a press release yesterday saying that the dismissal of litigation comes "in the wake of newly discovered evidence of the state’s ongoing hostility toward religious freedom."

Missouri Supreme Court Rules On Transgender and Sex Stereotyping Discrimination

In R.M.A. v. Blue Springs R-IV School District, (MO Sup. Ct., Feb. 26, 2019), the Missouri Supreme Court in a 4-2 decision held that a transgender male middle-school student stated a claim for sex discrimination under Missouri's Human Rights Act when he alleged that he was not permitted to use the boys' restrooms or locker room.

In Lampley v. Frost, (MO Sup. Ct., Feb. 26, 2019), a case involving complicated procedural issues, the Missouri Supreme Court reversed and remanded a lower court's dismissal of a case in which a gay man claims harassment and retaliation at work.  As summarized in a Court press release:

Five judges agree the circuit court’s judgment should be reversed and the case remanded. Five judges agree the employees sufficiently stated a claim for sex discrimination under the state’s human rights act. Three agree the claims here were based on sex stereotyping rather than sexual orientation; two believe the Court should not have considered whether sex discrimination can be proved by evidence of sex stereotyping. Six judges agree it is unnecessary to reach the issue of whether the state’s act covers claims of discrimination based on sexual orientation; one would hold the act does not extend to discrimination based on sexual orientation.

St. Louis Post Dispatch reports on the decision.

United Methodist Church Risks Split Over Position On LBTQ Ordination and Marriage

HuffPost reports that the United Methodist Church will likely break apart after a close vote yesterday at its 2019 General Conference on LGBTQ roles in the Church. As reported by United Methodist News Service, the delegates adopted the so-called "Traditional Plan" by a vote of 438 to 384.  This plan continues the Church's ban on ordaining LGBTQ clergy and the prohibition on officiating at or hosting same-sex weddings. The opposing "One Church Plan" was defeated by a vote of  449 to 374.  It would have allowed ordination LGBTQ pastors, and allowed, but not required, churches to host and pastors to officiate at same-sex marriages.  Later, by a vote of 405 to 395, the Conference asked the Church's Judicial Council to rule on the constitutionality of the Traditional Plan at its scheduled April meeting.

Michigan's New AG Withdraws From Amicus Briefs In 8 Controversial Cases

Detroit News reports that Michigan's Democratic Attorney General Dana Nessel who last month replaced Republican Attorney General Bill Schuette has withdrawn Michigan's support of amicus briefs in eight high profile lawsuits. According to the paper:

The state’s newly appointed solicitor general Fadwa Hammoud filed the motions to withdraw from the cases Tuesday, noting in each motion that the amicus briefs filed in support of the cases by Republican former Attorney General Bill Schuette “no longer represents the legal position of the State of Michigan.”...

The four cases related to reproductive rights included litigation challenging a Kentucky law requiring a doctor to perform an ultrasound before an abortion; an Ohio law that criminalized abortions performed because of a fetal indication of Down syndrome; a federal case that required permission from the Office of Refugee Resettlement before an unaccompanied minor could have an abortion at a Texas holding facility; and an Ohio law that banned government funding for Planned Parenthood non-abortion health care programs and education programs because the agency provided abortion services.

Another case that Nessel withdrew from alleged a geriatric management facility in Missouri had discriminated against a gay man when the facility allegedly withdrew an offer of employment....

Three other cases ... were filed by ... Freedom of Religion Foundation. One case challenged the presence of a Latin cross on the Lehigh County, Pennsylvania, seal and flag; another in Wisconsin challenged laws that allowed for income tax exemptions for religious clergy, but not for members of the Freedom of Religion Foundation; and a third challenged the U.S. House chaplain’s unwillingness to allow the co-president of Freedom From Religion Foundation to deliver an invocation on the House floor.

Egyptian TV Host Sentenced For Program Featuring Gay Sex Worker

New York Post reported yesterday that an Egyptian trial court has sentenced a television host Mohammed el-Gheiti to one year in prison at hard labor followed by one year of surveillance, and a fine equivalent to $167 US for promoting debauchery and homosexuality.  Gheiti was also charged with contempt of religion.  The conviction stems from the appearance on his show of journalist Mustafa Mekki who posed as a gay man on the gay dating app Grindr in order to learn more about the Egyptian gay community. Also on the show was an anonymous sex worker who Mekki met on the app who said he wanted to warn other young men not to repeat his mistake.

New York Legislature Passes Gender Expression Non-Discrimination Act

Last week, the New York legislature passed and sent to Gov. Andrew Cuomo for his signature A00747, the Gender Expression Non-Discrimination Act (full text).  As reported by the National Law Review, the bill amends New York's anti-discrimination laws to expressly ban discrimination on the basis of gender identity or expression, and adds to the list of offenses subject to treatment as hate crimes offenses regarding gender identity or expression. The Governor is expected to sign the bill.

Establishment Clause Challenge To Drag Queen Storytime Dismissed

In Christopher v. Lawson, (SD TX, Jan. 3, 2018), a Texas federal district court dismissed a lawsuit that claimed the Houston Public Library's "Drag Queen Storytime" violates the Establishment Clause. Plaintiffs claimed that the program promotes secular humanism over other religions, including Christianity,  The court first held that plaintiffs lack standing. Because they avoided the event to protect their children, they suffered no harm.  The court held that they also lack taxpayer standing.  The court went on to find that even if plaintiffs had standing, they failed to show an Establishment Clause violation, saying in part:

Here, the plaintiffs argue that “Drag Queen Storytime” is a religious event because of an alleged connection between “Drag Queen Storytime,” the LGBTQ community, and secular humanism.... [E]ven accepting that secular humanism could be a religion for Establishment Clause purposes, the plaintiffs fail to allege any facts or basis showing that “Drag Queen Storytime” is a religious activity. There is no allegation that a reader discussed secular humanism at the event, or that any story the Library selected invoked secular humanism or any religion at all. The plaintiffs instead make only conclusory statements associating secular humanism with the event.

Houston Chronicle reports on the decision,

Christian Activist Charged After Video Of Book Burning

KCRG TV9 News reports that an Orange City, Iowa Christian activist has been charged with misdemeanor 5th Degree Criminal Mischief after making a Facebook Live video of himself burning four children's books checked out of the Orange City Public Library.  The video, made on the first day of the city's gay pride festival, showed him burning books titled "Two Boys Kissing," "This day in June," "Morris Micklewhite and the tangerine dress," and "Families, families, families."

Canada's Youth Job Program Changes Attestation Requirement After Objections By Pro-Life Groups

Global News reports that this year the Canada Summer Jobs program is changing its grant application process after objections last year from religious organizations to the requirement that they attest, in applying for funds, that "both the job and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights."  The rights covered included reproductive rights and non-discrimination on the basis of sexual orientation or gender identity. Anti-abortion groups sued arguing that the required attestation violated their freedom of expression and religious freedom. (See prior posting.) This year, no attestation is required. Instead the burden is on Service Canada to determine whether grant funds will be used to hire young people for work that will restrict reproductive right or promote prejudice or discrimination.

European Court Finds Russia's Ban On Public LGBT Events A Convention Violation

In Alekseyev v. Russia, (ECHR, Nov. 27, 2018), the European Court of Human Rights in a chamber judgment by a panel of 7 judges held that Russia violated the protections on freedom of assembly (Art. 11) and the prohibition against discrimination (Art. 14) in the European Convention on Human Rights when it banned the holding of public LGBT events. It also found a violation of Art. 13's guarantee of a remedy in national courts for Convention violations. The Court emphasized that it had rendered a similar opinion in a 2010 case against Russia.  Judge Keller dissenting in part argued that damages should have been awarded in the case, rather than just entering a finding of violations of the Convention.  AP reports on the decision.