State Appeals Court Rejects Religious Defense By B&B That Rejected Lesbian Couple

In Cervelli v. Aloha Bed & Breakfast, (HI App., Feb. 23, 2018), 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.  The law prohibits discrimination on the basis of sexual orientation. The court held that an exemption in a separate housing discrimination statute for small rooming houses does not apply to the public accommodation law.  The court also rejected defendant's state and federal constitutional privacy and free exercise defenses, finding that the state has a compelling interest in prohibiting discrimination in public accommodations.  Hawaii News Now reports on the decision.

Suit Challenges Ban On Lesbian Foster Parents In Federally Funded Refugee Program

A lawsuit was filed yesterday against the federal government and the U.S. Conference of Catholic Bishops challenging discrimination against same-sex couples in administration of the Unaccompanied Refugee Minor Program and the Unaccompanied Alien Children Program. The complaint (full text) in Marouf v. Azar, (D DC, filed 2/20/2018), alleges that various federal agencies use taxpayer funds to finance grants to the USCCB to implement these programs based on impermissible religious criteria.  Plaintiffs, a lesbian couple, were told by Catholic Charities of Fort Worth, a sub-grantee of USCCB, that they did not qualify to become foster parents of an unaccompanied refugee child. An official of the organization told them that foster parents must "mirror the holy family."  The complaint alleges in part:

By working to ensure that none of the children for which they are responsible are placed in homes of same-sex spouses based on USCCB’s religious beliefs, USCCB and its sub-grantees not only discriminate against same-sex spouses, but also effectively erase the non-Catholic identities and beliefs of many of the unaccompanied refugee children for which they are responsible. This conduct potentially increases those children’s alienation and vulnerability, while denying them access to loving homes that could serve them best—all at federal taxpayers’ expense.

Lambda Legal issued a press release announcing the filing of the lawsuit. Washington Post reports on the filing of the suit.

NY Governor Issues Executive Order Barring State Contracts With Entities That Fail To Address Discrimination

Earlier this month (Feb. 3), New York Governor Andrew Cuomo issued an Executive Order (full text)  directing all state agencies and departments to amend their procurement procedures to prevent entering into contracts "with entities that have institutional policies or practices that fail to address the harassment and discrimination of individuals on the basis of their age, race, creed, color, national origin, sexual orientation, gender identity, military status, sex, marital status, disability, or other protected basis."  State departments and agencies must include non-discrimination provisions in all contracts for goods, services, technology or construction.  In a press release announcing the Executive Order, the governor's office said in part:

The Trump administration has banned transgender people from serving in the U.S. Military, removed guidance nationwide that helped protect young transgender students at school, and completely removed the LGBTQ community from the National Survey of Older Americans. Additionally, in October 2017, the federal government rescinded a contraceptive coverage mandate under the Affordable Car Act. This action has permitted employers and organizations to claim broad exemptions from nondiscrimination laws, which has increased the vulnerability of LGBTQ rights.

Following these actions, which perpetuate and tolerate discrimination and taken this nation in the wrong direction, New York is once again stepping up to ensure the rights of individuals across the state are protected.

The Director of Public Policy of the Archdiocese of New York strongly criticized the new Executive Order, saying in part:

the target of this new action is the very existence of religious agencies, and the intent is to suppress any deviation from the new orthodoxy of gender and sexual ideology.

LifeSite News reports further on these developments.

Republication of SPLC Hate Group Label Did Not Violate Lanham Act

The Southern Poverty Law Center  which tracks hate groups in the United States lists Liberty Counsel as an anti-LGBT hate group. GuideStar, an organization that provides information about non-profits to members of the public, picked up SLPC's hate group labels and included them in its descriptions of non-profits. In Liberty Counsel, Inc. v. GuideStar USA, Inc., (ED VA, Jan. 23, 2018), a Virginia federal district court dismissed a suit contending that GuideStar's republication of the hate group label for Liberty Counsel violated the Lanham Act.  The Lanham Act imposes civil liability on any person who "in a commercial advertising or promotion, misrepresents the nature, characteristics, qualities ... of ... another person's goods, services, or commercial activities...." The court held that GuideStar's use of SLPC's labels is not commercial speech, and thus is not covered by the Lanham Act, adding:

Defendant's review of Plaintiffs organization would fall under the laws of the First Amendment, not that of the Lanham Ac.... Specifically, Defendant has an expressive right to comment on social issues under the First Amendment.

In a press release announcing the decision, Liberty Counsel said it is considering an appeal.

Suit Challenges Canada's Denial of Grants to Pro-Life Group

In Canada last week, a pro-life group filed suit in Federal Court in Alberta challenging new rules that bar it from receiving grants under the Canada Summer Jobs Program.  According to Life Site News report on the lawsuit, Canada Summer Jobs provides grants to non-profit groups, small businesses, and public sector employers in order to create jobs for students between 15 an 30 years old.  The complaint (full text) in Right to Life Association of Toronto and Area v. Canada (Minister of Employment, Workforce and Labour), (Fed. Ct., filed 1/4/2018), contends that the grant restrictions infringe plaintiffs' freedom of religion, conscience and belief, as well as their equal protection rights, under Sections 2(a)-(b) and 15 of the Canadian Charter of Rights and Freedoms. Last December, Canada's Employment Ministry added a requirement that in order to receive a grant under the program, an organization had to attest to the following:

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.  These include reproductive rights, and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation, or gender identity or expression.

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.

Indonesia's Constitutional Court Refuses To Criminalize All Sex Outside of Marriage

Reuters reports that Indonesia's Constitutional Court yesterday in a 5-4 decision rejected a petition seeking to expand the definition of adultery in Indonesian law to cover not just married couples, but all sexual relations outside of marriage.  The petition was filed by the conservative Family Love Alliance (AILA).  Rights activists feared that the petition was particularly aimed at the LGBT community.  The Court majority held that any change in the law is a matter for Parliament, not the court.  Currently, same-sex relations between adults is outlawed only in the province of Aceh.

Canadian Christian Couple Sues Over Alberta's Policy On Adoptions

In a lawsuit filed in Canada at the beginning of this month, an Evangelical Christian couple is challenging a decision by the Province of Alberta's Child and Family Services to refuse to approve them to adopt a child.  the refusal stemmed from the couple's Biblical views on marriage, sexuality and gender.  The complaint (full text) in C.D and N.D. v. Province of Alberta, (Q.B. AL, filed 11/1/2017), says that "Child and Family Services considered the Applicants' religious beliefs regarding sexuality a 'rejection' of children with LGBT sexual identities...."  It contends that the decision violates their rights under Canada's Charter of Rights and Freedoms. The Justice Centre for Constitutional Freedoms issued a press release announcing the filing of the lawsuit.

Suit Challenges Tennessee's Therapist Bill

A suit was filed last week in a Tennessee federal district court challenging the constitutionality of  Tennessee's "Therapist Bill" (TN Code 63-22-302) that provides:

No counselor or therapist providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with the sincerely held principles of the counselor or therapist; provided, that the counselor or therapist coordinates a referral of the client to another counselor or therapist who will provide the counseling or therapy.

The complaint (full text) in Copas v. Haslam, (MD TN, filed 11/13/2017) contends that, despite the broad wording of the section:

The Tennessee Legislature intended for the Bill solely to allow religious counselors to discriminate against the LGBT community.

It asserts that the law violates the Equal Protection Clause and the Establishment Clause.  JURIST reports on the lawsuit.

Louisiana Governor Exceeded Authority In Expanding Non-Discrimination Protections

In Louisiana Department of Justice v. Edwards, (LA App, Nov. 1, 2017), a Louisiana state appeals court held that Louisiana Governor John Edwards exceeded his authority when he issued an Executive Order that extended non-discrimination provisions for state contracts and state employment to include sexual orientation and gender identity.  the court said in part:

[T]he Governor's Executive Order constituted an unconstitutional interference with the authority vested solely in the legislative branch of our state government by expanding the protections that currently exist in anti-discrimination laws rather than directing the faithful execution of the existing anti-discrimination laws of this state.

The Times-Picayune reports on the decision.

Mississippi Suit On Gay Marriage Recusals Is Reopened

In June, the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a challenge to Mississippi's broad Conscience Protection Act. (See prior posting.) In October, an en banc rehearing was denied.  In light of this, yesterday a Mississippi federal district court in Campaign for Southern Equality v. Bryant, (SD MI, Oct. 27, 2017), issued an order (full text) reopening a challenge to the law insofar as it allows county clerks to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage.  The Order also authorized plaintiffs to serve interrogatories to determine how many Clerk's Offices have employees that have sought to recuse themselves, and how the recusals are handled. AP reports on the order.

Wedding Invite Designers Lose Challenge To Public Accommodation Law

In Brush & Nib Studio L.C. v. City of Phoenix, (AZ Super. Ct., Oct. 25, 2017). an Arizona trial court rejected challenges by a studio that creates custom wedding invitation and wedding products to the city of Phoenix's public accommodation anti-discrimination law.  Plaintiffs, because of the Christian religious beliefs, intend to refuse to produce custom designed products for same-sex couples,  The court rejected plaintiffs' claim that this violates their free speech rights under the Arizona Constitution, concluding that any impact on speech is merely an incidental, content-neutral impact of an ordinance directed at combating discrimination on the basis of sexual orientation.  The law survives the intermediate level scrutiny applied in such cases.  The court also rejected plaintiffs' claim under the state's Free Exercise of Religion Act, saying in part:

Nothing about the ordinance has prevented the Plaintiffs from participating in the customs of their religious beliefs or has burdened the practice of their religion in any way.

In a press release, ADF says that an appeal is planned.  The press release also contains links to various pleadings in the case.  Arizona Republic reports on the decision.

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.]

Cert Petitions Filed In Two Religious Liberty Cases

Last week, petitions for certiorari were filed with the U.S. Supreme Court in two cases of interest. On Oct. 10, a cert. petition (full text) was filed in Barber v. Bryant.  In the case, the U.S. 5th Circuit Court of Appeals dismissed for lack of standing two suits challenging Mississippi's HB 1523 which protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions on three topics.  The protected beliefs are that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth.  (See prior posting). An en banc rehearing was denied by a vote of 12-2. (See prior posting.) Washington Blade reports on the petition for review.

On Oct. 12, a petition for certiorari (full text) was filed in Rowan County, North Carolina v. Lund.  In the case,  the U.S. 4th Circuit Court of appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners, in which commissioners themselves deliver invocations, violate the Establishment Clause. (See prior posting.)  WBTV reports on the filing of the cert. petition.

Defense Department Drops Training Material References To Southern Poverty Law Center

As previously reported, In August a Florida Christian Ministry filed suit against the Southern Poverty Law Center for damages allegedly suffered when the organization was placed on the SPLC's Anti-LGBT Hate Group list. Some other Christian groups have also sharply criticized the Southern Poverty Law Center for listing them as hate groups because of their stance on same-sex relationships.  Earlier this week, The Daily Caller reported that the Defense Department has officially severed all ties with the Southern Poverty Law Center.  DOD's Defense Equal Opportunity Management Institute has now removed all references to the SPLC in its training material.

District Court Nominee's Prior Speeches Create Concern

As previously reported, earlier this month President Trump nominated Texas Assistant Attorney General Jeff Mateer for a federal district court judgeship in Texas.  Mateer was previously general counsel and executive vice president of the First Liberty Institute.  Now, according to Wednesday's San Antonio Express-News, Texas Senator John Cornyn is expressing concern over the nomination after CNN discovered speeches in which Mateer referred to transgender children as part of "Satan’s plan" and defended the use of gay "conversion therapy."

Court Upholds Anti-Discrimination Law Over Wedding Videographer's Challenge

In Telescope Media Group v. Lindsey, (D MN, Sept. 29, 2017), a Minnesota federal district court in a 63-page opinion rejected a challenge to a provision of the Minnesota Human Rights Act that requires plaintiffs, owners of a videography business that plans to offer wedding videos, to serve same-sex couples.  Responding to plaintiffs' free speech arguments, the court said in part:

Posting language on a website telling potential customers that a business will discriminate based on sexual orientation is part of the act of sexual orientation discrimination itself; as conduct carried out through language, this act is not protected by the First Amendment.

Plaintiffs also argued that the law, as applied, unconstitutionally affects the content of their videos. However the court concluded:

The MHRA’s application to the Larsens’ wedding video business, as a content neutral regulation of conduct with an incidental effect on speech, survives intermediate scrutiny.

The court went on to reject plaintiffs' free exercise challenge, finding that the law is neutral and of general applicability.

Lawsuit Challenges Adoption Agencies' Refusal To Place Children With Same-Sex Couples

Today two same-sex couples and a Michigan taxpayer filed suit in a Michigan federal district court challenging the state's practice of contracting out foster-care and adoptive placement to social service agencies that apply religious criteria in placing children.  Statutes passed the state legislature in 2015 approve this practice.  The complaint (full text) in Dumont v. Lyon, (ED MI, filed 9/20/2017), alleges that religiously affiliated agencies' practice of turning away qualified families on the basis of sexual orientation, violates the Establishment Clause and the Equal Protection Clause.  ACLU issued a press release announcing the filing of the lawsuit.

Christian Group Sues Southern Poverty Law Center Over "Hate Group" Label

The Fort Lauderdale, Florida-based D. James Kennedy Ministries on Tuesday filed suit in an Alabama federal district court against the Southern Poverty Law Center for damages suffered when SPLC placed the Christian group on its Anti-LGBT Hate Group list. According to Al.com:

The lawsuit alleges that the SPLC "illegally trafficked in false and misleading descriptions of the services offered by DJKM and committed defamation against DJKM arising from the publication and distribution of false information that libels the ministry's reputation and subjects the ministry to disgrace, ridicule, odium, and contempt in the estimation of the public," according to a statement by the ministry....

Other defendants in the lawsuit include Amazon and Guidestar. The ministry alleges that it was excluded from the Amazon Smile program, which allows customers to donate to the charity of their choice when making a purchase.

Appeals Court Refuses To Order Recusal of Fundamentalist Christian Judge

In Ex parte Tiara Brooke Lycans, (AL App., July 28, 2017), an Alabama appellate court refused to issue a writ of mandamus ordering a trial judge who also serves as a preacher of a fundamentalist Christian church to recuse himself in a divorce action in which the wife, a lesbian, feared bias in the judge's custody ruling.  The court said in part:

Judge Bell's expressed belief that homosexual relationships and marriage are contrary to God's law, ... that God's law takes precedence over man-made law, and his placing paramount importance on the moral environment in which a child will live ... would tend to indicate to a reasonable person that a reasonable basis for questioning Judge Bell's impartiality in the divorce action exists; however, the standard is not whether there are some facts that would tend to indicate ... a reasonable basis.... Rather, the issue is "whether a reasonable person knowing everything that [Judge Bell] knows would have a "reasonable basis for questioning [Judge Bell's] impartiality."...  Judge Bell, in his pendente lite custody order ... granted the mother and the father joint physical custody of the child, with custody alternating weekly, and ... [he] has granted two other lesbian mothers and the fathers of their children joint physical custody.... [A] reasonable person who knows everything that Judge Bell knows would not have a reasonable basis for questioning Judge Bell's impartiality....

Christian Post reports on the decision.