No Jurisdiction Under ATS Over Anti-Gay Pastor's Activity In Uganda

In Sexual Minorities Uganda v. Lively, (D MA, June 5, 2017), a Massachusetts federal district court dismissed a suit that had been brought under the Alien Tort Statute against Scott Lively, a pastor and anti-LGBT activist. The court said in part:

Defendant's positions on LGBTI people range from the ludicrous to the abhorrent....  He has tried to make gay people scapegoats for practically all of humanity's ills.... 

This crackpot bigotry could be brushed aside as pathetic, except for the terrible harm it can cause. The record in this case demonstrates that Defendant has worked with elements in Uganda who share some of his views to try to repress freedom of expression by LGBTI people in Uganda, deprive them of the protection of the law, and render their very existence illegal.... 

Plaintiff has filed this lawsuit under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, seeking monetary damages and injunctive relief based on Defendant's crimes against humanity. Defendant now seeks summary judgment in his favor arguing that, on the facts of record, the ATS provides no jurisdiction over a claim for injuries -- however grievous -- occurring entirely in a foreign country such as Uganda. Because the court has concluded that Defendant's .jurisdictional argument is correct, the motion will be allowed.

Anyone reading this memorandum should make no mistake. The question before the court is not whether Defendant's actions in aiding and abetting efforts to demonize, intimidate, and injure LGBTI people in Uganda constitute violations of international law. They do. The much narrower and more technical question posed by Defendant's motion is whether the limited actions taken by Defendant on American soil in pursuit of his odious campaign are sufficient to give this court jurisdiction over Plaintiff's claims. Since they are not sufficient, summary judgment is appropriate for this, and only this, reason. 

Liberty Counsel which represented Lively issued a press release on the decision describing Lively's activities as "sharing his biblical views on homosexuality during three visits to Uganda...."

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.

Suit Challenges Funeral Home's LGBT Discrimination

A suit filed in March in a Mississippi state trial court against a Picayune, MS funeral home attracted attention yesterday after Lambda Legal issued a press release describing the case.  The complaint (full text) in Zawadski v. Brewer Funeral Services, Inc., (MS Cir. Ct., filed 3/7/2017), alleges that after the death of Robert Huskey, defendant funeral home backed out of its agreement to provide post-mortem transportation and cremation services for his body because it learned that he was a gay man whose next of kin was his lawful husband.  The funeral home's only explanation was that it did not "deal with their kind." The suit alleges infliction of emotional distress, breach of contract and misrepresentation.  Reporting on the lawsuit, WCYB News points out that Mississippi's Protecting Freedom of Conscience from Government Discrimination Act, which protects the refusal to provide goods or services on the basis of various religious and moral beliefs, has been enjoined while its constitutionality is litigated. The 5th Circuit heard arguments in the case last month. (See prior posting.)

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.

7th Circuit En Banc: Title VII Bars Sexual Orientation Discrimination

In an important decision handed down yesterday, the U.S. 7th Circuit Court of Appeals sitting en banc held in an 8-3 decision that under title VII of the 1964 Civil Rights Act, discrimination on the basis of sexual orientation is a form of sex discrimination.  In Hively v. Ivy Tech Community College of Indiana, (7th Cir., April 4, 2017), Chief Judge Wood in her majority opinion stated in part:

The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.

The lawsuit was filed by an adjunct professor who was rejected for full time positions and whose part-time contract was not renewed. She believes these actions were taken because she is a lesbian.

Judge Posner filed an interesting concurring opinion focusing on the issue of originalism in statutory interpretation.  He said in part:

It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII. I had graduated from law school two years before the law was enacted. Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered “only in the pages of À la recherche du temps perdu.” Homosexuality was almost invisible in the 1960s. It became visible in the 1980s as a consequence of the AIDS epidemic; today it is regarded by a large swathe of the American population as normal. But what is certain is that the word “sex” in Title VII had no immediate reference to homosexuality; many years would elapse before it could be understood to include homosexuality.

A diehard “originalist” would argue that what was believed in 1964 defines the scope of the statute for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute. But as I noted earlier, statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning.

Judge Flaum joined by Judge Ripple also filed a concurring opinion.

Judge Sykes, joined by Judges Bauer and Kanne dissented, saying in part:

The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion. So does Judge Posner in his concurrence. Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges. Judge Posner admits this; he embraces and argues for this conception of judicial power. The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents. Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.

Advocate reports on the decision.

New South Dakota Law Protects Religious Child-Placement Agencies

ACLU reports that on March 10, South Dakota Governor Dennis Daugaard  signed SB 149 (full text) into law.  The new law protects adoption and foster care agencies that act in accordance with religious or moral beliefs in placing children, providing in part:

No child-placement agency may be required to provide any service that conflicts with, or provide any service under circumstances that conflict with any sincerely-held religious belief or moral conviction of the child-placement agency.

It also explicitly bars any adverse action by the state against a child placement agency that acts in accordance with its religious or moral principles, except it does not authorize discrimination on the basis of race, ethnicity or national origin.  One of the primary effects of the legislation is to allow agencies to refuse to permit adoptions by same-sex couples.

Dakota Free Press reported on February hearings on the bill in which an ACLU witness pointed out that the bill would allow agencies to exclude adoptions or foster care placements by

not only same-sex couples, but also people who have a different religion [from] the agency, single parents, interfaith couples… families that don’t attend church weekly, service members or gun owners… based on the agency’s moral conviction regarding pacifism, all while children in need of homes languish in foster care and await permanent families. This bill even authorizes agencies to deny a child placement with a close relative and instead place that child with strangers if that relative is of the wrong religion….

No Bivens Claim By Vet Denied Psychological Care Because of Anti-Gay Views

In Waksmundski v. Williams, (SD OH, Feb. 27, 2017), Marine Corps veteran John Waksmundski who had been receiving psychological counseling for a number of years at a VA Hospital from defendant Dr. Crystal Williams sued when Williams excluded him from a new therapy group she was forming. She also refused to serve any longer as his counselor.  Waksmundski claims that the exclusion flowed from statements he made in a group therapy session expressing his opposition, based on his Catholic religious beliefs, to gays in the military and gay marriage. The denial of care created significant psychological damage.  Waksmundski sued claiming violations of his 1st Amendment speech and religion rights as well as his equal protection rights under the 14th Amendment. The court dismissed his claims, holding that the Veterans’ Judicial Review Act "is a comprehensive remedial scheme that precludes Bivens claims for damages against VA employees premised on the assertion that the employees denied, or interfered, with a party’s benefits."

Arkansas Supreme Court Invalidates City's LGBT Anti-Discrimination Law

In Protect Fayetteville v. City of Fayetteville, (AR Sup. Ct., Feb. 23, 2017), the Arkansas Supreme Court held that the City of Fayetteville is precluded by state statute from extending its anti-discrimination provisions to protect lesbian, gay, bisexual and transgender individuals. The Arkansas' Intrastate Commerce Improvement Act provides:

A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.

Fayetteville claimed that its expanded non-discrimination law is permitted because state laws on bullying, domestic abuse shelters and amendment of birth certificates include reference to sexual orientation and gender identity. The Court held, however, that municipalities are precluded from providing non-discrimination protection to categories beyond race, religion, national origin, gender and disability that are included in the Arkansas Civil Rights Act of 1993.  Arkansas Matters reports on the decision.

Administrative Law Judge Sues Over Requirement To Watch LGBT Diversity Training Video

According to yesterday's Houston Press, a Social Security Administrative Law Judge has filed a federal court lawsuit claiming religious discrimination after the agency refused to accede to his religious objections to viewing a 17-minute LGBT diversity training video.  In the lawsuit, ALJ Gary Suttles claims that the refusal by the Houston office's chief administrative law judge to grant him a religious accommodation and her insistence that he watch or read a transcript of the video created a hostile work environment.

Trump Keeps Special Envoy For LGBTI Rights At State Department

Foreign Policy this week reports that  the Trump Administration has decided to keep Obama-appointee Randy Berry in his State Department position of Special Envoy for the Human Rights of LGBTI Persons. According to Foreign Policy:

The special envoy position was created during the Obama years to fight back against the discrimination of lesbian, gay, bisexual, and transgender people around the globe. Conservative groups have called the office an attempt to “entrench the LGBTI agenda” into the United States government, and accuse it of browbeating countries opposed to gay-friendly school textbooks and same-sex marriage.

Berry repeatedly stressed that his goal was to convince foreign governments to stop violence against gays and lesbians rather than pressure every nation to allow same-sex marriage. 

Berry, who is an openly gay career Foreign Service officer, will also stay on as deputy assistant secretary to the Bureau of Democracy, Human Rights, and Labor, a position to which he was appointed in the last hours of the Obama administration. Christian evangelical groups had called for Trump to dismiss Berry.

Florida Judge Says Refusal To Sell Cake With Anti-Gay Message Is Not Religious Discrimination

A Florida Administrative Law Judge in a decision last week recommended to the Florida Commission on Human Relations that it find a Longwood, Florida bakery did not violate the state's public accommodation law when it effectively refused an order for a cake with the inscription "Homosexuality is an abomination unto the Lord." Cut the Cake bakery, owned by a mother and daughter, quoted a caller a price of $5,850 for the cake after the bakery had been the subject of thousands of calls per week when a You-Tube video was posted of a previous call in which the bakery refused to make a cake displaying an anti-homosexual message. In Mannarino v. Cut the Cake Bakery, (FL Div. Admin. Hearings, Feb. 9, 2017), petitioner claimed that the refusal constituted religious discrimination against him as a Christian.  The judge ruled, however, that the bakery did not fall within the definition of "public accommodation" under Florida law since it does not sell food for consumption on the premises. Additionally he ruled that petitioner had not shown religious discrimination, saying:

Cut the Cake refused to fulfill Petitioner’s order, not because he was Christian, but because of what it perceived to be the purpose of his message. Cut the Cake considered Petitioner’s message mean-spirited, regardless of his religion or the Quote’s source.

St. Augustine Record reports on the decision.

University Settles Suit By Christian Counseling Student

The Springfield News-Leader reports that last month Missouri State University agreed to pay former student Andrew Cash $25,000 to settle a lawsuit brought by him charging that he was suspended from the Masters program in Counseling because of his religious beliefs. (See prior posting.) Cash says he was not allowed to complete his internship at a Christian counseling institute because it refuses to counsel same-sex couples, a position which Cash embraces. Under the settlement, Cash cannot seek readmission to Missouri State University.

Court Invalidates Louisiana Executive Order Barring LGBT Discrimination

A Louisiana state trial court yesterday struck down as a violation of separation of powers Louisiana Governor John Bel Edwards Executive Order No. JBE 2016-11 (April 13, 2016) (See prior posting). The executive order bars state agencies and offices from discriminating on the basis of sexual orientation or gender identity, as well as on the basis of race, color, religion, sex, national origin, political affiliation, disability or age. In Louisiana Department of Justice v. Edwards, (LA Dist. Ct., Dec. 14, 2016), a challenge to the Democratic Governor's Executive Order brought by the state's Republican Attorney General was successful, the court stating in part:

Executive Order JBE-16-11 constitutes an unlawful ultra-vires act because, regardless of the defendant's intent, the effect of its adoption and implementation, creates new and/or expands upon existing Louisiana law as opposed to directing the faithful execution of existing laws of this state pursuant to the authority granted unto the office of the Governor to issue executive orders.

The New Orleans Times Picayune reports on the decision.

Candidate's Religious Views Become Issue In Montana Supreme Court Race

The conservative Christian religious beliefs of one of the candidates for Justice of the Montana Supreme Court-- attorney and law professor Kristen Juras-- has become a campaign issue. In endorsing her opponent Dirk Sandefur, the Bozeman Daily Chronicle last week said in part:

In an email sent to a colleague at the UM she stated, “After lots of prayer I decided to run…I think there are going to be a lot of cases affecting religious freedom that arise over the next several years, and I’d like to be part of the decision-making body that will be addressing those issues.”

Juras was quoted earlier this year by the Montana Christian Journal: “It is important to elect justices who respect all of our fundamental rights, including the free exercise of religion, and who have not pre-determined that one right should outweigh another.”

Just like [Republican nominee for Montana governor] Greg Gianforte, Juras uses “religious freedom” as a dog whistle in attempts to deny civil rights to the LGBTQ community. Juras’ bias and lack of experience make her unfit for the Supreme Court. Dirk Sandefur is hard-working, fair, and the only qualified candidate.

The Missoulian also raises questions about the impact of Juras' religious views.

Suit Challenges Utah's "Anti-Gay School Laws"

Suit was filed in Utah federal district court last week challenging Utah's so-called "Anti-Gay School Laws." As summarized in a press release from the National Center for Lesbian Rights:

The lawsuit challenges several Utah laws and regulations that prevent positive portrayals of gay, lesbian, and bisexual people in curricula, classroom discussions, and student clubs. The lawsuit claims that these discriminatory restrictions create a negative environment for LGBT students, perpetuate discrimination and bullying, and contribute to the high rates of anti-LGBT harassment in Utah schools. For instance, one plaintiff experienced severe physical and verbal harassment from other students in his kindergarten class based on his gender non-conformity. When his parents complained to school leaders about the harassment, they were told that the school district could not protect their son because of these discriminatory school laws.

The complaint (full text) in Equality Utah v. Utah State Board of Education,(D UT, filed 10/21/2016), contends that the statutes and regulations being challenged violate the 1st and 14th Amendments, as well as Title IX and the Equal Access Act.

Northern Ireland Appeals Court Upholds Anti-Gay Discrimination Finding Against Bakery

In a widely watched case, the Court of Appeal in Northern Ireland yesterday upheld the finding of a trial judge that a bakery had illegally discriminated on the basis of sexual orientation in the  provision of goods and services to the public when it refused an order for a cake for a private event marking the end of 'Northern Ireland Anti-homophobic Week' and the political momentum towards same-sex marriage legislation.  The cake was to feature a picture of 'Bert and Ernie' (the logo for QueerSpace) with the caption, "Support Gay Marriage."  In Lee v. McArthur, (NI CA, Oct. 24, 2016), the 3-judge panel rejected the religious freedom and compelled speech defenses advanced by Ashers Bakery.  The court rejected the notion that the cake forced the bakery to express approval for same-sex marriage, saying in part:

The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.

The court rejected broadly defendants' religious discrimination arguments, saying:

Anyone who applies a religious aspect or a political aspect to the provision of services may be caught by equality legislation, not because the legislation treats their religious belief or political opinion less favourably but because that person seeks to distinguish, on a basis that is prohibited, between those who will receive their service and those who will not....  In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflects their own political or religious belief in relation to sexual orientation.

The Guardian, reporting on the decision, says that the decision will be appealed to the UK's Supreme Court.

New California Law Requires Disclosure of Title IX Exemptions

As reported by The Advocate, last Friday California's Gov. Jerry Brown signed S.B. 1146 (full text) into law.  The new law requires religiously affiliated schools in California that have obtained an exemption from any of the anti-discrimination provisions of Title IX or California's Equity in Higher Education Act to publicly disclose that fact.  The federal Department of Education has granted exemptions nationwide to some 43 colleges and universities (6 in California) from non-discrimination requirements that conflict with the schools' religious tenets. These variously include bans on discrimination on the basis of sexual orientation or gender identity, as well as on other grounds. California schools now must disclose this fact to students, faculty and applicants for admission in publications, student orientation and other specified ways. Information on exemptions must also be filed with California's Student Aid Commission.

Gay Student Sues Catholic High School That Barred His Bringing Same-Sex Date To Homecoming

Lance Sanderson, a former student at Memphis, Tennessee's Christian Brothers High School, filed suit in a Tennessee state court on Tuesday alleging that the private Catholic boy's school-- which receives federal funds-- violated Title IX when it prohibited him from bringing his same-sex date from another school to the school's Homecoming Dance.  NBC News reports that the suit seeks $1 million in damages for breach of contract, intentional infliction of emotional distress, negligent training and a violation under Title IX of the 1972 Education Amendments.  The Obama administration, and several courts, have recently concluded that Title IX is broad enough to include sexual orientation discrimination. IdentitiesMic has more details on the failed attempts by the school to work out a compromise with Sanderson, and its ultimate policy statement that technically would have allowed him to bring a same-sex date from his own school.

Social Security Employee Fighting LGBTQ Awareness Training On Religious Grounds

A new controversy pitting Christian religious beliefs against LGBTQ rights has erupted at the Social Security Administration.  LGBTQ Nation reports today that David Hall, a 14-year employee at the Social Security office in Champaign, Illinois, has been suspended for two days and anticipates being fired for refusing to watch a training video on LGBTQ awareness.  Hall, a Christian, was refused a religious accommodation to excuse him from the requirement to sign a form acknowledging that he had completed the awareness training.  Hall, who has hired a lawyer, says: "I am not going to certify sin." He argues that the video is "promoting an agenda and lifestyle" that he does not agree with. Hall says he has LGBTQ friends and family and is not judging anyone.  He says: "I’m simply trying to live out my life, my faith and be obedient to the will of God."

In Canada, Gay Activists Sue Christian Group That Infiltrated Pride Parade

Last month in Canada, two LGBT activists filed a class action lawsuit against a group of Christian conservatives who, calling themselves the "Gay Zombies Cannabis Consumers Association," registered under false pretenses to march in the 2016 Toronto Pride Parade.  According to the complaint (full text) in Hudspeth v. Whatcott, (Ont. Super. Ct., filed 8/11/2016), the Gay Zombies, wearing green costumes that disguised their identities, handed out 3000 flyers showing graphic pictures of sexually transmitted diseases and vilifying homosexuality.  Alleging civil conspiracy, intentional infliction of mental distress, and defamation, the suit seeks an injunction to bar defendants from future participation in or attendance at the Toronto Pride Parade; an order barring them from further distribution of the offensive flyers; and damages totaling $103 million (Canadian). Daily Xtra (Aug. 12) reported on the lawsuit.