Suit Against Drag Queen Story Hour Dismissed

Last Friday a suit was filed in federal district court in Houston, Texas seeking to stop a city sponsored drag queen story hour that is scheduled for the Houston Public Library. Plaintiffs argued that the story hour violates their religious free exercise. (Houston Chronicle). Yesterday the court dismissed the suit in a four-sentence order, concluding that there is no basis for the requested relief. (Houston Chronicle).

EEOC Sued Over Enforcement of LGBT Protections Without Religious Exemption

A class action lawsuit was filed last week in a Texas federal district court against the EEOC on behalf of all churches that oppose homosexual or transgender behavior for sincere religious reasons and on behalf of all businesses with similar beliefs.  The complaint (full text) in U.S. Pastor Council v. EEOC, (ND TX, filed 10/6/2018), says that the EEOC interprets Title VII as covering employment discrimination on the basis of sexual orientation or gender identity, without a religious exemption. It contends that this violates RFRA and the First Amendment.  the suit seeks to enjoin the federal government from interpreting or enforcing Title VII in a manner that requires churches or businesses with religious objections to recognize same-sex marriage or extend spousal benefits to same-sex partners, or to require objecting businesses to allow employees to use rest rooms reserved for persons of the opposite biological sex.  It also asks the court to require that any future EEOC guidance on Title VII's application to gay or transgender individuals include a religious exemption. The lawsuit was filed by the same law firm that has recently filed two challenges to Austin, Texas' anti-discrimination ordinances. (See prior posting.) [Thanks to Jeff Pasek for the lead.]

Second Broad Challenge To Austin's Anti- Discrimination Ordinances Filed

Following a federal court lawsuit filed last week by churches challenging Austin, Texas' ban on employment discrimination (see prior posting), a broader lawsuit has been filed in state court challenging the application of Austin's public accommodation, housing and employment discrimination ordinances to any individual or business that has religious objections to homosexual or transgender behavior.  The complaint (full text) in Texas Values v. City of Austin, (TX Dist. Ct., filed 10/8/2018) asks the court to declare that the ordinances violate Texas Religious Freedom Restoration Act and the Texas Constitution

to the extent that they: (a) prohibit individuals and entities from refusing to hire or retain practicing homosexuals or transgendered people as employees for reasons based in sincere religious belief; (b) prohibit individuals and entities from refusing to rent their property to tenants who are engaged in non-marital sex of any sort, including homosexual behavior, for reasons based in sincere religious belief; (c) prohibit individuals and entities from declining to participate in or lend support to homosexual marriage or commitment ceremonies, for reasons based in sincere religious belief; and (d) prohibit individuals and entities from declining to provide spousal employment benefits to the same-sex partners or spouses of employees, for reasons based in sincere religious belief; (e) prohibit individuals and entities from establishing sex-specific restrooms and limiting them to members of the appropriate biological sex, for reasons based in sincere religious belief.

Austin Statesman reports on the lawsuit.

6th Circuit: Moving Street Preachers Away From Pride Festival Violated Their Free Speech Rights

In McGlone v. Metropolitan Government of Nashville, (6th Cir., Sept. 19, 2018), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that the free speech rights of two sidewalk preachers were infringed when they were required to move their amplified anti-homosexuality preaching across the street from the park where a Pride festival was being held. The majority held:

Nashville excluded McGlone and Peters from a traditional public forum for expressing a message opposed to homosexuality and Nashville provides no compelling reason for doing so. Indeed, Nashville does not even argue that its restriction of McGlone and Peters’ speech could survive strict scrutiny review. We therefore end our inquiry here.

Judge Moore dissented, saying in part:

I believe that it was a reasonable time, place, and manner restriction for ... Nashville ... to require ... John McGlone and Jeremy Peters ... to cross a downtown street if they wished to continue shouting disruptive messages through bullhorns during a permit-authorized event in a public park....

Suit Argues Drag Queen Story Time Violates Establishment Clause

KADN News reported yesterday on a lawsuit filed in federal district court in Louisiana by two religious groups-- Warriors for Christ and Special Forces of Liberty-- seeking to stop Drag Queen Story Time at the Lafayette, Louisiana public library.  The lawsuit argues that the program endorses secular humanism. According to a report last month by the Acadiana Advocate:

Drag Queen Story Time entails a group of male University of Louisiana at Lafayette students reading books to young children while dressed in women’s clothing. Library staff will select the books, which are to be appropriate for children ages three to six. It is scheduled for Oct. 6 at the main branch downtown.

The attorney filing the lawsuit for the religious groups is Christophe Sevier, who has filed numerous suits around the country contending that homosexuality is a "religion." (See prior posting).  Commenting on the Louisiana lawsuit, Sevier said:

The evidence would suggest that the self identified transgendered. They are using a government facility to show that the governments backs their worldview to then target children, to indoctrinate them under a faith based ideology.

Court Refuses To Dismiss Challenge To Michigan's Protection of Catholic Adoption Agencies

In an important decision, a Michigan federal district court in Dumont v. Lyon, (ED MI, Sept. 14, 2018), held that same-sex couples can move ahead with their Establishment Clause and equal protection claims against the Michigan Department of Health and Human Services for permitting child placing agencies that contract with the state and receive state funds to use religious criteria to refuse to place children with same-sex couples.  Laws enacted by the Michigan legislature in 2015 protect child-placing agencies from being required to provide adoption or foster care placements that conflict with their sincerely held religious beliefs, or being penalized for doing so. (See prior posting.)

In a 93-page opinion, the court first concludes that plaintiffs have Article III (but not taxpayer) standing to bring their challenges. Then, denying defendants' motion to dismiss, the court says in part:

Plaintiffs plausibly allege ... that the State’s practice of contracting with and permitting faith-based child placing agencies to turn away same-sex couples has both the subjective purpose of discriminating against those who oppose the view of the faith-based agencies ... and objectively endorses the religious view of those agencies that same-sex marriage is wrong, sending a “‘message [to Plaintiffs] that they are outsiders, not full members of the community.’”....

The child placing agencies are, in many ways, the gateway for a family seeking to adopt or foster a child into Michigan’s adoption and foster care system. The scope of their duties, and hence any “government exclusivity” of the functions they perform, must be the subject of further discovery. For purposes of analyzing Plaintiffs’ Establishment Clause claim, the Court must accept the allegations of the Complaint as true and such allegations surely “implicate” the Establishment Clause and plausibly suggest “excessive entanglement” such that the Court will allow Plaintiffs’ Establishment Clause claim to proceed further....

Plaintiffs are entitled to an opportunity to conduct discovery to support their claim that the State’s practice of continuing to contract with faith-based agencies that invoke PA53’s religious belief protection to turn away same-sex couples lacks a rational basis and to further develop their Equal Protection claim.

ACLU issued a press release announcing the decision.

India's Supreme Court Legalizes Consensual Homosexual Relations

In four separate opinions spanning 493 pages, India's Supreme Court yesterday struck down Section 377 of the India Penal Code insofar as it bans consensual homosexual relationships. In Johar v. Union of India, (India Sup. Ct., Sept. 6, 2018), Justice Misra wrote:

Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.

CNN reports on the decision.

Trinity Western Drops Community Covenant Requirement For Students

As previously reported, in June the Supreme Court of Canada upheld the decision by two provinces to refuse to accredit Trinity Western University's proposed new law school. The provinces took the action because of the University's religious-based Community Covenant which, among other things, barred students, faculty and staff from "sexual intimacy that violates the sacredness of marriage between a man and a woman."  In response, last week the University announced that the Covenant will no longer be mandatory for students.  However, as reported by Inside Higher Ed, the Covenant will remain mandatory for faculty, staff and administrators. [Thanks to Steven H. Sholk for the lead via TaxProf Blog.]

1st Circuit RefusesTo Change District Court's Language Criticizing Anti-LGBT Activist

In Sexual Minorities Uganda v. Lively, (1st Cir., Aug. 10, 2018), the U.S. 1st Circuit Court of Appeals refused to purge the opinion of a Massachusetts federal district court of language that harshly criticized the actions of anti-LGBT activist Pastor Scott Lively.  The 1st Circuit said that because Lively had won in the district court, it lacks jurisdiction over an appeal, noting:

federal courts of appeals have no roving writ to review ... a district court's word choices...

The case involved an Alien Tort Statute lawsuit against Lively growing out of his aid to anti-LGBT activists in Uganda. The district court held that there had been insufficient conduct in the United States to support a suit under the ATS. Courthouse News Service reports on the decision.

IRS Grants Non-Profit Church Status To Lesbian Anti-Trans Organization

TaxProf blog and Forbes report on the recent decision by the Internal Revenue Service to grant 501(c)(3) non-profit status to the Pussy Church of Modern Witchcraft.  The IRS also granted the organization tax status as a church. PCMW describes itself as "a congregation of adherents to our female born, lesbian-feminist-based religions beliefs and traditions." It goes on to say "We expressly reject the concepts of gender identity, transgenderism, and gender as being meaningful to defining what a Woman or Girl is." [Thanks to Steven H.Sholk for the lead.]

New Survey On Religious Refusals To Provide Service and More

On August 1, the Public Religion Research Institute announced the results of its July 2018 Survey on attitudes toward religiously-based service refusals, LGBT rights and other issues of discrimination. Here are some excerpts from its report:

Close to half (46%) of Americans believe that the owners of wedding-based businesses, such as caterers, florists, and bakers, should be allowed to refuse to serve same-sex couples if doing so violates their religious beliefs, while about as many (48%) say these types of businesses should be required to serve same-sex couples. One year earlier, a majority (53%) of the public said wedding-based businesses should be required to serve gay and lesbian couples, while only about four in ten (41%) said they should not.....

Among major religious groups, white evangelical Protestants express the strongest support for allowing wedding businesses to refuse services.

Nearly two-thirds (64%) of the public express support for same-sex marriage. Only 28% of Americans oppose allowing gay and lesbian couples to marry.... More than seven in ten (71%) Americans say they favor laws that would protect lesbian, gay, bisexual, and transgender (LGBT) people against discrimination in employment, housing, and public accommodations....

Relatively few Americans believe Jewish people in the U.S. are experiencing a considerable amount of discrimination. Only 30% say that Jewish people face a lot of discrimination..... Americans are far more likely to say Muslims are experiencing a substantial degree of discrimination in the U.S. More than six in ten (62%) Americans say there is a lot of discrimination against Muslims....

Lesbian Spouses Sue Senior Housing Community For Discrimination

A suit was filed in Missouri federal district court this week by a lesbian married couple against a senior housing community for refusing to rent to same-sex couples. The complaint (full text) in Walsh v. Friendship Village of South County, (ED MO, filed 7/25/2018), alleges that the senior housing community which is not religiously affiliated has a Cohabitation Policy that provides:

Friendship Village “will permit the cohabitation of residents within a single unit only if those residents, while residing in said unit, are related as spouses by marriage, as parent and child or as siblings,” defining “[t]he term ‘marriage’ as used in this policy means the union of one man and one woman, as marriage is understood in the Bible.”

The suit alleges violation of the Federal Fair Housing Act and Missouri's Human Rights Act. Friendly Atheist blog has more on the lawsuit.

Michigan AG and Civil Rights Commission At Odds Over Coverage of LGBTQ Discrimination

In May, the Michigan Civil Rights Commission issued an Interpretive Statement declaring that the protection against discrimination because of sex in the state's Elliott Larsen Civil Rights Act includes protection against discrimination on the basis of sexual orientation and gender identity.  On July 20, Michigan's Attorney General Bill Schuette issued Opinion No. 7305 concluding that the Civil Rights Commission's interpretation "is invalid because it conflicts with the original intent of the Legislature as expressed in the plain language of the Act, and as interpreted by Michigan’s courts." The Opinion elaborates:

The word “sex” was understood in 1976, when ELCRA was enacted, to refer to the biological differences between males and females, not to refer to the concepts of sexual orientation or gender identity.

Yesterday the Civil Rights Commission issued a press release taking issue with the Attorney General and reaffirming its earlier Interpretive Statement, saying in part:

The Michigan Civil Rights Commission is an independent, constitutionally created and established body.... The Commission is not bound by the opinion of the Attorney General.

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

In an Order (full text) entered July 10, the Hawaii Supreme Court in Cervelli v. Aloha Bed & Breakfast denied certiorari.  In the case, a Hawaii sate appeals court (see prior posting) 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.  The appeals court also rejected privacy and free exercise defenses. AP reports on the state Supreme Court's denial of review. [Thanks to Tom Rutledge for the lead.]

Canada's Supreme Court: Provinces Can Refuse Law School Accreditation Over LGBTQ Rights

In a pair of decisions today, the Supreme Court of Canada held that the bodies controlling the legal profession in British Columbia and Ontario can, without violating Canada's Charter of Rights and Freedoms, refuse to accredit Trinity Western University's proposed new law school.  At issue in Law Society of British Columbia v. Trinity Western University and in Trinity Western University v. Law Society of Upper Canada, (Sup. Ct. Canada, June 15, 2018), is the requirement by Trinity Western, an evangelical Christian university, that its students and faculty abide by a religiously-based code of conduct.  The so-called Community Covenant Agreement prohibits "sexual intimacy that violates the sacredness of marriage between a man and a woman."  In 7-2 decisions, the court concluded that the decision to refuse accreditation significantly advances the objective of maintaining equal access to and diversity in the legal profession and prevents the risk of significant harm to LGBTQ people.  In British Columbia decision, the court added:

The public confidence in the administration of justice could be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity in the most  private and personal of spaces for three years in order to receive a legal education.

In the Ontario decision, the court said in part:

The LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSUC chose an interpretation of the public interest which mandates access to law schools based on merit and diversity, rather than exclusionary religious practices.

CBC News reports on the decision.

Veteran Has Standing to Challenge Therapist Bill As Establishment Clause Violation

In Copas v. Haslam, (MD TN, May 25, 2018), a Tennessee federal district court held that a gay Army veteran, who also holds a degree in counseling, has standing to bring an Establishment Clause challenge to a Tennessee law that permits therapists to refuse to serve LGBT clients when doing so would violate the therapist's religious beliefs. Plaintiff suffers from PTSD and Chronic Adjustment disorder, and has sought therapy in the past. The court held that plaintiff's claim that he has been marginalized and "made to feel ostracized and
unworthy as a non-adherent to the religiously-based, anti-LGBT preference" in the law is a sufficiently concrete injury to grant standing.  It also held that he has been sufficiently personally injured by the law to satisfy Article III standing requirements for his Establishment Clause claim.  The court however dismissed several equal protection claims made by plaintiff.

Kansas, Oklahoma Pass Bills Protecting Religious Beliefs of Adoption Agencies

As reported by AP, last week both the Kansas an the Oklahoma legislatures  approved bills allowing faith-based social service agencies to provide adoption services consistent with their religious beliefs. Wichita Eagle had this report on Kansas SB 284 (legislative history) (full text):

A bill that ensures faith-based adoption agencies can turn away gay and lesbian couples based on religious beliefs will be signed into law by Gov. Jeff Colyer....

The Senate approved the bill 24-15 at 1:51 a.m. Friday after the House passed it Thursday night, 63-58. The bill had been dormant for weeks before lawmakers revived and passed it in a matter of hours....

The bill doesn’t apply to organizations that contract directly with DCF [Kansas Department of Chidren and Families], allowing DCF to prohibit discrimination in placements. Agencies that refuse to place children with LGBT couples can continue to receive reimbursement from the state if they are making placements on behalf of a DCF contractor.

The Oklahoma bill, SB 1140 (legislative history) (full text) covers both adoption and foster care placement by agencies that act in accordance with their "written religious or moral convictions or policies." However agencies may not refuse any services for children in custody of the state Department of Human Services.  Gov.Mary Fallin has not said whether she will sign the bill. 

UPDATE: On May 11, Gov. Fallin signed SB 1140, but also ordered the  Department of Human Services to publish a list of Oklahoma adoption and foster agencies on its website who are willing to serve everyone who meets the Department's criteria for being a foster or adoptive parent. (Press release from Governor's office.)

Missouri Supreme Court Hears Oral Arguments On Sexual Orientation and Gender Identity Discrimination

Yesterday, the Missouri Supreme Court heard oral arguments in two cases posing the question of whether the prohibition on "sex" discrimination in the state's civil rights laws includes discrimination on the basis of gender identity or sexual orientation. The first case, R.M.A. v. Blue Springs R-IV School District (audio of full arguments), involves discrimination claims by a middle school student who was born a female but transitioned to male, who has not been allowed by his school to use the boy's rest rooms or locker room.  Because of his female genitalia, the school required him to use a unisex bathroom.

The second case, Lampley v. Missouri Commission on Human Rights (audio of full arguments), Harold Lampley, a state department of social services employee, alleged discrimination and retaliation because he is gay and does not exhibit stereotypical attributes of male appearance and behavior. A second employee alleged discrimination and retaliation because of her association with Lampley.

The Missouri Supreme Court's Docket Summaries page includes more information on the cases and links to briefs (including amicus briefs) filed in each case case [scroll down to SC96683 and SC 96828.  AP reports on the oral arguments.

Establishment Clause Challenge To Rainbow Flags Is Dismissed

In Sevier v. Lowenthal, (D DC, March 26, 2018), the District of Columbia federal district court dismissed a suit which sought to require four members of the U.S. House of Representatives to remove Gay Pride Rainbow Colored Flags that they have placed in the hallways outside their offices.  The suit, filed by a vocal opponent of the Supreme Court's same-sex marriage decision, contends that display of these flags violates the Establishment Clause, as well as the equal protection and due process clauses.  As related by the court:

In Sevier’s view ... the gay pride flag “is a ‘religious symbol’ for the homosexual denomination,” ... and its “placement ... amounts to [Defendants’] endorsement of a particular religion.... Sevier’s “sex-based self-asserted identity narrative is that he prefers to be married to an inanimate object.” ... So, according to Sevier, unless Defendants “install a flag that represents people who self-identify as polygamists, machinists, zoophiles, and heterosexuals,”... their actions “treat ... the homosexual denomination of ... the church of moral relativism with disproportionate favor”....

Rejecting plaintiff's assertions, the court said that plaintiff's claims are premised on his argument that homosexuality is a religion, but he has offered "no legal support" for the argument. The court continued:

To be sure, the governing case law does not precisely define the contours of what constitutes “religion.”... But that does not mean there are no easy cases.... Whatever else religion might entail, it at minimum requires adherence to one or more fundamental beliefs.... “Homosexuality,” by contrast, is not a set of beliefs at all. It is a description of a person’s sexual orientation.... The gay rights movement bears no trappings of “religion” as that concept is widely understood, and Sevier has not plausibly alleged that a reasonable person would perceive the display of the rainbow flags as religious in nature.

Long Beach Post reports on the decision.

Tunisian Court Rejects Imams' Challenge To LGBTQ Radio Station

Slate reports on a Feb. 14 decision by a court in Tunisia dismissing a lawsuit filed by a union representing imams.  The suit asked the court to request the Tunisian Internet Agency to block access to the online LGBTQ radio station Shams Rad.  Petitioners argued that the station threatens "social and family values."  The court ruled that the union lacks standing to bring the suit, and that the radio station had not violated the rights of others.