District Court Holds Title VII Does Not Cover Sexual Orientation Discrimination

In Matavka v. Board of Education of J. Sterling Morton High School District 201, (N.D. Ill. 2016, Aug. 1, 2016), an Illinois federal district court dismissed a Title VII complaint by a former school employee alleging severe anti-gay harassment from his coworkers and supervisors.  The court indicated that it was required to follow the recent 7th Circuit decision in Hively v. Ivy Tech Comt. Coll that held Title VII does not cover discrimination on the basis of sexual orientation. (See prior posting.)  However the district judge expressed qualms about that conclusion similar to concerns expressed by two 7th Circuit judges in Hively.  Cook County Record reports on the decision.

Court Refuses Stay Pending Appeal In Challenge To Mississippi Anti-LGBT Conscience Law

In Barber v. Bryant, (SD MS, Aug. 1, 2016), a Mississippi federal district court refused to stay pending appeal its earlier order granting a preliminary injunction against Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act. (See prior posting.)  The Act protects a wide variety of conduct reflecting disapproval of, or refusals to provide goods and services to, members of the LGBT community.  The court rejected movants' claim that they are likely to succeed on the merits of their appeal that defends the law. Responding to movants' argument that "HB 1523 is akin to federal exemption laws protecting pacifists and abortion opponents," the court said:

issuing a marriage license to a gay couple is not like being forced into armed combat or to assist with an abortion. Matters of life and death are sui generis. If movants truly believe that providing services to LGBT citizens forces them to “tinker with the machinery of death,” their animus exceeds anything seen in Romer, Windsor, or the marriage equality cases.

Buzz Feed reports on the decision.

7th Circuit Reluctantly Holds Title VII Does Not Cover Sexual Orientation Discrimination

In Hively v. Ivy Tech Community College, (7th Cir., July 28, 2016), the U.S. 7th Circuit Court of Appeals adhered to its past precedent and held that Title VII of the 1964 Civil Rights Act does not cover employment discrimination on the basis of sexual orientation. However two of the three judges (Judge Rovner who wrote the opinion and Judge Bauer) apparently did so hesitantly, joining in the lengthy portions of the opinion that review the anomalies produced by this conclusion.  They said in part:

As things stand now, ... our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up— but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects “flamboyant” gay men and “butch” lesbians but not the lesbian or gay employee who act and appear straight....

In addition to the inconsistent application of Title VII to gender non‐conformity, these  sexual orientation cases highlight another inconsistency in courts’ applications of Title VII to sex as opposed to race....  [C]ourts and the Commission have consistently concluded that the statute prohibits discrimination based on an employee’s association with a person of another race, such as an interracial marriage or friendship..... But ... Title VII ... has not protected women employees who are discriminated against because of their intimate associations with other women, and men with men....

Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, ...; many of the federal courts to consider the matter have stated that they do not condone it...; and this court undoubtedly does not condone it.... But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent....

Judge Ripple concurred in the outcome, but did not join those part of the opinion expressing doubt about the continued viability of the past precedent.  The decision came in the case of a part-time adjunct professor at a community college who claimed that she was denied a full-time position. Indy Star reports on the decision.

2016 Democratic Platform On International Human Rights of LGBT Communities

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the sixth in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Here is the Platform provision on international human rights of the LGBT community:

Democrats believe that LGBT rights are human rights and that American foreign policy should advance the ability of all persons to live with dignity, security, and respect, regardless of who they are or who they love. We applaud President Obama’s historic Presidential Memorandum on International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons, which combats criminalization, protects refugees, and provides foreign assistance. We will continue to stand with LGBT people around the world, including fighting efforts by any nation to infringe on LGBT rights or ignore abuse.

2016 Democratic Platform on LGBT Rights

Yesterday the Democratic Party at its national convention adopted its 2016 Platform (full text).  This is the second in a series of seven posts that focus on Platform provisions dealing with religious discrimination and with social issues that often generate controversy defined in religious terms. Note that the excerpt continues after the jump. Here is the Platform section on Guaranteeing Lesbian, Gay, Bisexual, and Transgender Rights:

Democrats applaud last year’s decision by the Supreme Court that recognized that LGBT people—like other Americans—have the right to marry the person they love. But there is still much work to be done. LGBT kids continue to be bullied at school, restaurants can refuse to serve transgender people, and same-sex couples are at risk of being evicted from their homes. That is unacceptable and must change.

New Blog Focuses On Religious Freedom and LGBT Rights

Michigan State Law Professor Frank Ravitch has launched a new blog, Freedom's Edge.  The blog will focus on the relationship between Religious Freedom, LGBT Rights, and Reproductive Freedom. Freedom's Edge is now listed in the Religion Clause sidebar.  Welcome to the blogosphere!

Mississippi AG Will Not Appeal Injunction Against Conscience Protection Act, Despite Governor's Appeal of Decision [UPDATED]

In a strong statement (full text) issued yesterday, Mississippi state Attorney General Jim Hood announced that he will not appeal a federal district court's injunction against enforcing HB 1523 , Mississippi's anti-LGBT Conscience Protection Act, (See prior posting.) Hood said in part:

First, both HB 1523’s critics and supporters acknowledge that the bill did not change state or federal law. For example, there is no state law requiring pastors to marry same-sex couples, and I doubt that the Legislature would ever pass one.  Moreover, the Mississippi Legislature has already passed the Religious Freedom Restoration Act which protects a person’s right to exercise his or her religious beliefs.  HB 1523’s critics and supporters also recognize that HB 1523 cannot overturn or preempt federal law.  As acknowledged by our Governor, HB 1523 is not a defense to a federal lawsuit.

Simply stated, all HB 1523 has done is tarnish Mississippi’s image while distracting us from the more pressing issues of decaying roads and bridges, underfunding of public education, the plight of the mentally ill and the need to solve our state’s financial mess....

Second, to appeal HB 1523 and fight for an empty bill that dupes one segment of our population into believing it has merit while discriminating against another is just plain wrong. I don’t believe that’s the way to carry out Jesus’ primary directives to protect the least among us and to love thy neighbor....

Misinformation that, without HB 1523, pastors, churches, bakers, wedding planners or other private service providers will be forced to violate their religious beliefs has been used repeatedly to frighten our citizens into supporting the dogmatic politicians who use religion for political gain.

Hood added however that depending on the wording of the final order he might appeal a separate federal court decision extending the injunction in an earlier same-sex marriage case to all court clerks who were not parties.(See prior posting.)

UPDATE: It should be noted that Mississippi Governor Phil Bryant has already filed a Notice of Appeal in the case, so presumably he will pursue the appeal using counsel other than the Attorney General.

Settlement Requires ChristianMingle To Include Same-Sex Date Searching

As reported by the Wall Street Journal, last week a California trial court entered a consent decree settling an Unruh Civil Rights Act class action that had been brought by two gay men against the dating sites ChristianMingle.com, CatholicMingle.com, AdventistSinglesConnection.com and BlackSingles.com. Plaintiffs charged that the sites did not allow users to meet singles of the same sex, thus violating state anti-discrimination laws that require business establishments to offer equal services regardless of sexual orientation. The judgment (full text) in Sparks Network Unruh Act Cases, (CA Super. Ct., June 27, 2016), requires that for the next two years the home pages of the sites must no longer provide the choices of "man seeking woman" and "woman seeking man," but instead only ask whether the user is a Man or Woman.  Those seeking a same-sex match can then search using text searching and profile building tools.  After that, the sites can be reconfigured so long as there is an option for those seeking a same-sex match to do so without indicating they are seeking someone of the opposite sex. The judgment also calls for future changes to create equal matching services.  Finally the judgment calls for defendant to pay damages totaling $18,000 and attorneys fees of $450,000.

Canadian Court OK's Ontario's Refusal To Accredit Christian Law School

In Trinity Western University v. The Law Society of Upper Canada, (CA ON, June 29, 2016), a 3-judge panel of the Court of Appeal for Ontario upheld the decision of the Law Society of Upper Canada to deny accreditation to Trinity Western Law School because its religiously-grounded Community Covenant requires all students to "refrain from sexual intimacy that violates the sacredness of marriage between a man and a woman."  Finding that "the part of TWU’s Community Covenant in issue in this appeal is deeply discriminatory to the LGBTQ community," the Court held that the Law Society "did not violate its duty of state neutrality by concluding that the public interest in ensuring equal access to the profession justified a degree of interference with the appellants’ religious freedoms." In reaching that conclusion, the Court relied in part on the U.S. Supreme Court's 1983 Bob Jones University decision. Similar battles over accreditation of the Christian law school are in progress in the school's home province of British Columbia, as well as in Nova Scotia.  CBC News reports on yesterday's decision. [Thanks to Paul de Mello Jnr. for the lead.]

Suit Challenges Tennessee Law Allowing Counselors To Refuse To Counsel Gays

AP reports that a state court lawsuit has been filed in Clinton, Tennessee by two gay rights activists challenging HB 1840, a new Tennessee law that allows therapists to assert their conflicting sincerely held principles to refuse to counsel clients on goals or behaviors.  The suit contends that the law violates the equal treatment provisions of the Tennessee Constitution.

Another Challenge Filed To Mississippi's Freedom of Conscience Law

As reported by AP, on Friday a third lawsuit was filed challenging Mississippi's House Bill 1523, the Protecting Freedom of Conscience From Government Discrimination Act. Mississippi Center for Justice announced the filing of the federal lawsuit which was brought by a group of clergy, community leaders, activists and a Hattiesburg church.  The complaint (full text) contends:

With the passage and approval of that bill, the Legislature and the Governor breached the separation of church and state, and specifically endorsed certain narrow religious beliefs that condemn same-sex couples who get married, condemn unmarried people who have sexual relations, and condemn transgender people.

Last month the ACLU filed a lawsuit challenging the new law (see prior posting) and plaintiffs in a suit that helped bring down the barriers to same-sex marriage in Mississippi have moved to challenge the law by reopening their lawsuit.

Survey of State Legislative Action On Religious Freedom and LGBT Rights

An AP article posted yesterday provides a useful state-by-state summary of legislative activity and executive orders this year in 35 states relating to religious freedom, including bills that specifically protect religious views relating to sexual orientation and gender identity. The summary also includes other bills dealing with LGBT rights. In a number of the states surveyed, proposed bills failed to pass.

EU Criticizes New State Laws In U.S. Which Restrict LGBT Rights

On Thursday the European External Action Service (the European Union's diplomatic service) issued a statement (full text) criticizing laws recently enacted in several U.S. states dealing with religious objections to same-sex relationships and with transgender restroom concerns.  The EU's statement reads in part:

The recently adopted laws including in the states of Mississippi, North Carolina and Tennessee, which discriminate against lesbian, gay, bisexual, transgender and intersex persons in the United States contravene the International Covenant on Civil and Political Rights, to which the US is a State party, and which states that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection.

As a consequence, cultural, traditional or religious values cannot be invoked to justify any form of discrimination, including discrimination against LGBTI persons. These laws should be reconsidered as soon as possible.

Wedding Artists Challenge City's Public Accommodation Anti-Discrimination Ordinance

Two owners of an upscale hand painting and calligraphy business filed suit in an Arizona state court yesterday challenging the provision in the Phoenix city code, adopted in 2013, that bars public accommodations from discriminating on the basis of sexual orientation or gender identity. The 88-page pre-enforcement complaint (full text) in Brush & Nib Studio, LC v. City of Phoenix, (AZ Super. Ct., filed 5/12/2016), contends that plaintiffs' free speech, free exercise and equal protection rights are infringed by requiring them to produce wedding invitations and similar wedding art for same-sex marriages. It also asserts that the statutory provision barring advertisements or notices that suggest discriminatory practices prevents plaintiffs from explaining their religious and artistic reasons for refusing to create custom art for same-sex weddings. An ADF press release announced the filing of the lawsuit.

Student Sues After Suspension From M.S. Program Over Refusal To Counsel Gay Couples

A suit was filed last week in federal district court in Missouri by a former student in the Masters in Counseling program at Missouri State University alleging that he was removed from the program because of his religious views on counseling same-sex couples on their relationships.  The complaint (full text) in Cash v. Governors of Missouri State University, (WD MO, filed 4/19/2016), alleges in part:

Plaintiff’s experience at MSU has been devastating, crushing, and tormenting, culminating in his termination from the program -- all because he interned with a Christian organization and expressed his religious beliefs on a hypothetical question about counseling a gay couple on relationship issues.

... Plaintiff was targeted and punished for expressing his Christian worldview ... regarding a hypothetical situation.... Since he did not give the “correct” answer required by his counseling instructors, he was considered unsuitable for counseling and terminated from the program.

Thomas More Society announced the filing of the lawsuit. AP reports on the case.

U.S. Commission on Civil Rights Condemns Recent State Religious Liberty Bills

Yesterday the U.S. Commission on Civil Rights issued a statement (full text) condemning recent state enactments and proposals protecting religious liberty at the expense of equal treatment for the LGBT community.  The statement reads in part:

Religious freedom is an important foundation of our nation. However, in the past, ‘religious liberty’ has been used to block racial integration and anti-discrimination laws. Those past efforts failed and this new attempt to revive an old evasive tactic should be rejected as well. The North Carolina and Mississippi laws, and similar legislation proposed in other states, perverts the meaning of religious liberty and perpetuates homophobia, transphobia, marginalizes the transgender and gay community and has no place in our society.

The Commission said that it will shortly release a new report on the issue of religious liberty.

Two members of the 8- member Commission (Gail Heriot and Peter Kirsanow) issued a separate statement (full text) in their individual capacities asking their Commission colleagues "to please take a deep breath."  They argued in part:

none of [the state bills] deserves to be referred to in the derisive terms used by the Commission majority. Those that deal with religious liberty issues are not merely using religion as a “guise” or “excuse” as the Commission majority alleges. All of them address real issues in reasonable ways; none is simply an attack on the LGBT community.

This separate statement was not posted on the Commission's website, but instead on the website of The New American Civil Rights Project with a link to the statement appearing in an ADF press release.

Tennessee Legislature Protects Therapists Whose "Principles" Conflict With Client's Behaviors

The Tennessee General Assembly yesterday passed HB 1840/SB 1556 (full text) which provides in part:

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 bill insulates counselors and therapists from civil liability and criminal prosecution. It also protects them from license suspension or revocation except when their refusal to treat involves an individual who is in imminent danger of harming himself or others. The bill now goes to Gov. Bill Haslam for his signature.  As reported by the Christian Science Monitor, it is unclear whether Haslam will sign the bill or veto it.  He has 10 days to decide.

An earlier narrower version of the bill protected therapists' sincerely held religious beliefs, but the bill as passed protects any "sincerely held principles." The American Counseling Association, which strongly opposes the bill, says:

HB 1840 is an unprecedented attack on the American Counseling Association’s Code of Ethics....  If HB 1840 is signed into law, its enactment could also jeopardize federal healthcare funding for Tennessee because the U.S. Department of Health and Human Services has clearly stated that no state has the authority to deny healthcare to anyone based on religion, race, sexual orientation, or other federally protected populations.

North Carolina Governor Issues Executive Order Emphasizing LGBT Rights Retained After H.B. 2

As previously reported, last month the North Carolina General Assembly passed, and Gov. Pat McCrory signed, House Bill 2 regulating the use by transgender individuals of bathrooms and changing facilities in public schools and government offices.  The new law also pre-empts local employment and public accommodation anti-discrimination laws and prohibits civil actions in state courts based on discrimination complaints filed with the federal EEOC. After, in the language of the New York Times, "withering criticism" since the law was enacted, yesterday Gov. McCrory issued (signing statement) Executive Order No. 93 (full text) going as far as possible within the new law to protect LGBT rights.

The Executive Order emphasizes that House Bill 2 did not pre-empt local laws on housing discrimination, and that it allows state and local governments, as well as private businesses and non-profits, to set non-discrimination policies for their own employees. The Order provides that:

North Carolina is committed to administering and implementing all State human resources policies, practices and programs fairly and equitably, without unlawful discrimination, harassment or retaliation on the basis of race, religion, color, national origin, sex, sexual orientation, gender identity, age, political affiliation, genetic information, or disability.

It also calls on state and local governments and colleges to provide single occupancy restroom accommodations for transgender individuals wherever practicable. It provides that when state property is leased by private entities, those private entities may control restroom and locker room policies. It calls for the state Human Relations Commission to submit an annual report to the governor, and calls on the legislature to restore a state cause of action for wrongful discharge based on unlawful employment discrimination.

Mississippi Governor Signs "Freedom of Conscience" Bill Protecting Anti-LGBT Practices

CBS News reports that Mississippi Governor Phil Bryant today signed into law House Bill 1523, the Freedom of Conscience From Government Discrimination Act passed last week by the legislature. The law protects various actions of government and private businesses based on religious or moral beliefs that marriage is a union of one man and one woman, that sexual relations should be reserved to heterosexual marriage, or that gender is an immutable characteristic determined at birth. (See prior posting). In his signing statement (full text), Bryant said in part:

This bill does not limit any constitutionally protected rights or actions of any citizen of this state under federal or state laws.

Reacting to the governor's statement, the ACLU said (full text) in part:

This is a sad day for the state of Mississippi and for the thousands of Mississippians who can now be turned away from businesses, refused marriage licenses, or denied housing, essential services and needed care based on who they are. This bill flies in the face of the basic American principles of fairness, justice and equality and will not protect anyone's religious liberty.

Mississippi Legislature Sends Governor Broad "Freedom of Conscience" Bill

The Mississippi Legislature today gave final passage to H.B. 1523 (full text) and (adopted amendment). Titled Protecting Freedom of Conscience From Government Discrimination Act, the bill passed the Senate by a vote of 32-17 House by a vote of 69-44.

The statute, one of the broadest to date enacted by states, protects three separate beliefs if held on religious or moral grounds: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth.

The statute protects from any kind of adverse state action a religious organization that on one of these bases refuses to solemnize a marriage or refuses to provide services, accommodations, goods or facilities for a marriage.  It also allows religious organizations to use these beliefs in making employment decisions or decisions regarding the sale, rental or occupancy of housing facilities, or in providing adoption or foster care services.

The statute protects from adverse government action any adoptive or foster parents who guide or raise a child consistent with these beliefs.  It protects any person who refuses provide counseling or fertility services or treatment because of these beliefs (except for emergency medical treatment).

The statute goes on to protect anyone who refuses to provide specific kinds of wedding-related services because of these beliefs, including photography, wedding planning, printing, floral arrangements, dress making, hall or limousine rental or jewelry sales and services.  It also protects any person who imposes sex-specific policies based on these beliefs on students or employees or regarding access to rest rooms, locker rooms and showers.

The statute goes on to protect state employees who speak out on these issues in their private capacity or in the workplace to the extent other political, moral or religious beliefs can be expressed. It allows county clerks to recuse themselves from issuing marriage licences consistent with these beliefs, and allows judges and others to refuse to perform same-sex marriages.

According to CBS News, Republican Gov. Phil Bryant so far refuses to say whether or not he will sign the bill into law.