Defamation Suit Between Ukrainian Orthodox Church Factions Dismissed

In Nykoriak v. Bilinski, (MI App., March 17, 2015), a Michigan appeals court dismissed a suit that apparently grew out of the rivalry in a Michigan parish between the Ukrainian Orthodox Church controlled by Moscow, and the Ukrainian Orthodox Church-Kyiv Patriarchate that was created to be independent of Moscow. [See prior posting for background]. The suit was brought by Bishop Paisiy and a deacon who apparently decided to embrace the Moscow Patriarchate.  They sued the Kyiv Patriarchate in the United States and Canada and its leaders.  Bishop Paisiy asserted that the defendants

released a press release on March 23, 2013, which falsely alleged that plaintiff Bishop Paisiy resigned as bishop; he transferred to the Moscow Patriarchate; he could no longer serve as bishop; ... and that ... St. Andrew Church [in  Hamtramck, Michigan] was placed under the direction of the [Kyiv] Vicariate. Plaintiffs also alleged that on March 24, 2013, ... defendants arrived at St. Andrew and behaved in an unruly manner, used profanity, interrupted services, took pictures of plaintiffs, called them, "The Devil, Criminal Thief, and other inappropriate, immoral and unlawful terms," and then distributed the [Kyiv] Vicariate's press release to the congregation.

The court held first that defendants' alleged conduct did not rise to the level of intentional infliction of emotional distress. As to the defamation claim, the heckling in which plaintiffs were called devil and criminal could not reasonably be understood a stating actual facts.  The remaining defamation claims, the court held, are barred by the ecclesiastical abstention doctrine:

In order to adjudicate plaintiffs’ claims, a court would have to engage in an impermissible excursion into their religious doctrine pertaining to ordination, the religious authority needed for succession of their church leaders, and the organization and form of their church government.

Pediatrician, "After Much Prayer," Refuses To Treat Lesbian Couple's Infant

The Detroit Free Press yesterday reported on a new arena for religious objections to providing services to same-sex couples.  A suburban Detroit lesbian couple were told by a pediatrician that they had chosen that "after much prayer" she decided that she could not provide medical services to their newborn.  The news was given to the couple by a different staff physician as the mothers sat in the exam room waiting for their newborn's first checkup. The two mothers had previously met with Dr. Venesa Roi and chosen her particularly because of her holistic approach to treating children.  In a subsequent letter to the couple, Roi told them she was sorry that her decision hurt them, but she decided she could not develop the proper personal doctor-patient relationship with them.  She added that they were always welcome in the office to be seen by another physician on staff.  Michigan's Elliott-Larsen Civil Rights Act does not ban discrimination on the basis of sexual orientation, though the ethics rules of the AMA and American Academy of Pediatrics do.

6th Cirucit Upholds Damage Award To Critic of Judge For Expressing Religious Views

In Pucci v. Nineteenth District Court, (6th Cir., Feb. 13, 2015), the U.S. 6th Circuit Court of Appeals affirmed the $734,000 damage award to court employee Julie Pucci who was fired after she complained to the Michigan State Court Administrative Office about Judge Mark W. Somers' expressing of religious views in the course of performing his judicial duties. It also affirmed the award of over $416,.000 in attorneys' fees. The court upheld the jury's findings that in complaining to SCAO, Pucci was speaking as a citizen on a matter of public concern. (See prior related posting.)

6th Circuit: Ministerial Exception Is Non-Waivable

In Conlon v. InterVarsity Christian Fellowship/ USA, (6th Cir., Feb. 5, 2015), the U.S. 6th Circuit Court of Appeals faced its first "ministerial exception" case since the Supreme Court's 2012 Hosanna-Tabor decision.  In the case, InterVarsity Christian Fellowship, a Christian campus organization, asserted a "ministerial exception" defense in a sex discrimination suit against it by its former spiritual director who claimed that her firing because her marriage was heading toward divorce violated Title VII of the 1964 Civil Rights Act and Michigan's Elliot-Larsen Act.  The 3-judge panel's majority opinion held first that IVCF, while not a church, is still a religious organization that can claim the ministerial exception for a ministerial employee such as plaintiff.

Conlon claimed that IVCF had waived the ministerial exception, but the majority held:

The ministerial exception is a structural limitation imposed on the government by the Religion Clauses, a limitation that can never be waived....

Finally the majority held that the First Amendment's ministerial exception can be asserted as a defense against state law claims, and can be raised by individuals when they are personally sued for discrimination as the agents of a religious employer.

Judge Rogers concurred in the result, but contended that the majority went further than necessary in reaching its conclusion.  He said:

Our decision today does not require us to decide whether a religious employer could enter into a judicially-enforceable employment contract with a ministerial employee not to fire that employee on certain grounds (such as pregnancy). Judicial enforcement of such a contract might unduly interfere with the independence of religious institutions, but barring religious institutions from offering such a legally binding guarantee might make it harder for some religious institutions to hire the people they want. Conlon in this case now disavows any contractual argument. Thus, to the extent that any analysis in the majority opinion might be read to govern non-Title VII employer obligations, such analysis is not necessary to our judgment. 

Acton Institute Power Blog reports on the decision. [Thanks to Paul deMello Jr. for the lead.] 

Police Sued For Requiring Muslim Woman To Remove Hijab While Being Booked

The Detroit News reports on a lawsuit filed Thursday in a Michigan federal district court by a Muslim woman who was required by Dearborn Heights (MI) police to remove her hijab while she was being booked on a traffic misdemeanor charge.  Malak Kazan was charged with driving with an expired license.  Her Muslim religion requires her to have her head covered when she is in public and when she is in the presence of men outside her immediate family.  Police officers also denied Kazan's request for assistance from a female police officer.  The suit seeks an injunction and damages.

Michigan Must Recognize Same-Sex Mariages Entered Before Stay of District Court's Order

In Caspar v. Snyder, (ED MI, Jan 15, 2015), a Michigan federal district court issued a preliminary injunction requiring Michigan to recognize some 300 same-sex marriages of couples who married in the less 24 hours between a district court's striking down of Michigan's same-sex marriage ban and the 6th Circuit's stay of the order. In a 47-page opinion, the court held that:

once a marriage has been solemnized pursuant to a validly issued marriage license, the authorizing state cannot withdraw the status that it has awarded, even if the couples had no right to demand to be married in the first place.

The court however stayed the effectiveness of its injunction for 21 days to allow an appeal to the 6th Circuit. Christian Science Monitor reports on the decision.

Minister Sues Michigan For Right To Perform Same-Sex and Polygamous Marriages

In Michigan, a Detroit minister filed a federal court lawsuit on Monday against the state's governor and attorney general alleging that the state is violating his religious freedom by barring him from performing same-sex and polygamous marriages.  According to the Detroit News, in the suit plaintiff Rev. Neil Patrick Carrick alleges that he has declined requests to perform same-sex marriage ceremonies because under Michigan law it is a crime punishable by up to a $500 fine to knowingly do so.

Satanic Temple Temporary Display At Michigan Capitol OK'd As Nativity Scene Plans Falter

Under rules of the Michigan State Capitol Commission (full text), temporary displays, which may not remain over night, may be scheduled on the Capitol grounds.  The Detroit Free Press reports that the Commission has approved a request from the Detroit chapter of the Satanic Temple for a display from Dec. 21-23. The display will consist of a snake wrapped around the Satanic cross presenting a book as a holiday gift. John Truscott, a member of the State Capitol Commission, said the Commission could not discriminate in approving applications, but added: "Personally, I think this is absolutely repulsive and I'm very frustrated by it. I don't appreciate a group trying to hijack a Christian holiday."

Meanwhile an already-approved request to place a Nativity Scene on the Capitol grounds is not moving ahead because the out-of-stater who requested it has been unable to find someone to remove the display each evening as required by state rules.  All of this takes place as the Michigan legislature is debating a controversial religious freedom bill. HB 5958, the Michigan Religious Freedom Restoration Act, has been approved by the House and is now under consideration by the state Senate.

6th Circuit Upholds Same-Sex Marriage Bans

In DeBoer v. Snyder, (6th Circuit, Nov. 6, 2014), in a 2-1 decision, the U.S. 6th Circuit Court of Appeals today became the first federal circuit court to uphold state bans on same-sex marriage and on recognition of same sex-marriages performed elsewhere.  Departing from decisions by the Fourth, Seventh, Ninth and Tenth Circuits, the court upheld state statutory and constitutional provisions from Michigan, Ohio, Kentucky and Tennessee. Judge Sutton, writing for the majority, summarized his approach:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Judge Daughtry dissenting said in part:

In the main, the majority treats both the issues and the litigants here as mere abstractions.  Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status....

SCOTUSblog reporting on the 6th Circuit's decision speculated that the split among circuits that it creates is likely to lead to Supreme Court review unless en banc review from the 6th Circuit is sought and granted.

Developments In Missouri and Michigan On Same-Sex Marriage Recognition

Here is an update on the rapidly moving developments in two states relating to recognition of same-sex marriages.

In Missouri, where a suit seeking to require the state to recognize same-sex marriages performed elsewhere is pending, last November the governor in Executive Order 13-14 directed the state Department of Revenue to accept joint tax returns from same-sex couples who are legally married in other states. This led in February to the filing of articles of impeachment (full text) against the Democratic governor by a Republican lawmaker. (See prior posting.)  In January 2014 a lawsuit was filed seeking a declaratory judgment that the Executive Order is unconstitutional and an injunction against its enforcement.  The complaint (full text) in Messer v. Nixon, (MO Cir. Ct., filed 1/14/2014) contends that the executive order is inconsistent with Missouri Constitution Art. 1, Sec. 33 that provides the only marriages that will be recognized in the state are ones between a man and a woman. Now, as the April 15 filing date for tax returns approaches,  PoliticMO reports that plaintiffs in the lawsuit last Wednesday filed a motion asking the court to grant a temporary restraining order preventing enforcement of the Executive Order.

In Michigan, a federal district court earlier this month struck down the state's constitutional ban on same-sex marriage. The next day, the 6th Circuit granted a stay of the order, pending appeal. However in the hours in between, some 300 same-sex couples married. (See prior posting.) In an announcement today (full text), U.S. Attorney General Eric Holder announced that the federal government would recognize these 300 marriages for purposes of eligibility for federal benefits.  He said in part:

The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings.  For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled.

District Court Invalidates Michigan Ban on Same-Sex Marriage; 6th Circuit Stays Order

In DeBoer v. Snyder, (ED MI, March 21, 2014), a Michigan federal district court held that Michigan's state constitutional ban on same-sex marriage violates the 14th Amendment's equal protection clause.  The case began as a constitutional challenge to Michigan's adoption laws which only allow single persons or married couples to adopt.  Plaintiffs were a same-sex couple who were precluded from marrying under Michigan law.  The court invited plaintiffs to amend their complaint to challenge the Michigan Marriage Amendment which the court saw as the underlying reason plaintiffs could not jointly adopt children. Plaintiffs did so, and the court held a two-week trial, largely devoted to expert testimony about whether children raised by heterosexual parents did better than those raised by same-sex couples. The court's opinion discusses the expert testimony at length, ultimately concluding that the state has no rational basis for preventing same-sex couples from marrying. ACLU of Michigan issued a press release announcing the decision.

Ten minutes after the district court's March 21 opinion was handed down, Michigan state attorney general Bill Schuette filed an emergency motion asking the 6th Circuit to stay the district court's order, pending appeal. (Detroit Free Press.) On March 22, the 6th Circuit issued an order directing plaintiffs to respond by March 25, and a second order temporarily staying the district court's judgment until March 26 "to allow a more reasoned consideration of the motion."

Meanwhile, clerk's offices in four Michigan counties opened Saturday morning to allow same-sex couples to obtain licenses, and, according to AP, over 300 licenses were issued before the 6th Circuit called a halt to their issuance by its stay.  The attorney general's office declined to say whether the state would recognize these marriages, saying "the courts will have to sort it out."

Fired Police Officer Sues Claiming Anti-Semitic Harassment

Courthouse News Service reported yesterday on a lawsuit filed in a Michigan state trial court (Oakland County) by Lowell Phillips, a former officer in the Ferndale, Michigan police department. Phillips was the only Jewish officer on the force, and he contends that he was subjected to a barrage of anti-Semitic harassment and discriminatory treatment.  After he was involved in a high-speed chase in which he ultimately killed a suspect in self-defense, the police department fired him. Phillips claims the police department used the shooting as a pretext, and that he was actually fired because he is Jewish and in retaliation for his complaining about harassment and discrimination.