Ministerial Exception Does Not Apply To Exercise Science Teacher At Christian University

In Richardson v. Northwest Christian University, (D OR, March 16, 2017), an unmarried professor of exercise science at a Christian university sued for discrimination after she was fired because she became pregnant out of wedlock and refused to either marry her child's father or stop living with him.  The school contended that the professor's action were inconsistent with its policy that faculty are to live their lives in conformity with Biblical Christianity.  The court held that the "ministerial exception" doctrine does not require it to dismiss the lawsuit, saying in part:

[Plaintiff] was expected to integrate her Christianity into her teaching and demonstrate a maturing Christian faith. But any religious function was wholly secondary to her secular role: she was not tasked with performing any religious instruction and she was charged with no religious duties such as taking students to chapel or leading them in prayer. If plaintiff was a minister, it is hard to see how any teacher at a religious school would fall outside the exception.

The court granted plaintiff summary judgment on her marital status discrimination claim under Oregon law. It allowed her to move to trial on her claims of pregnancy discrimination and breach of contract.

Court Says Teacher Was Not Fired Because of His Religious Beliefs

In Diss v. Portland Public Schools, (D OR, Nov. 22, 2016), an Oregon federal magistrate judge granted summary judgment to defendants in a suit by former public school teacher William Diss who claims that he was fired because of his religious beliefs.  Diss, a devout Catholic, was active in the anti-abortion movement. When his school principal arranged for representatives of a federally-funded Teen Outreach Program to speak to students in various classes, Diss would not allow them to speak to his students because the outreach program was administered by the local Planned Parenthood organization. Diss pointed to this and to the principal's asking him to refrain from using religious phrases such as "God bless" in professional communications as evidence of violation of his First Amendment rights.  However, the court concluded:

Defendants have shown that they had valid, non-discriminatory reasons to discipline and terminate Plaintiff.  The record contains multiple reports from administrators and colleagues describing Plaintiff's ineffective and rigid teaching style, as well as a pattern of complaints about Plaintiff's disrespectful and demeaning conduct towards his students, colleagues, and administrators.

"Seven Drums" Believer Wins Right To Wear Fox Hat In License Photo

Willamatte Week and KTAU report on an Oregon man who recently won his administrative appeal to allow him to wear unusual head gear in his driver's license photo. The man, Jay Bishop, is a practitioner of the Washat religion, generally known as the Drummer-Dreamer or Seven Drums faith.  It is rooted in a Native American belief system held by Nez Perce tribes. Bishop wears a cable knit hat that looks like an orange and cream fox head-- the fox is his religious totem. While the local DMV office last summer allowed him to wear the hat in his license renewal photo, when the license got to the state level for review it was rejected because it was not compatible with the state's facial recognition software. Bishop was without a license for 9 months while his appeal was ongoing.  The DMV said it attempts to accommodate religious beliefs, but had never heard of this religion.

9th Circuit Hears Oral Arguments In Dispute Over Control of Sikh Dharma Company

The U.S. 9th Circuit Court of Appeals last Thursday heard oral arguments in Puri v. Khalsa (Docket No. 13-36024) (video of full oral arguments).  Courthouse News Service has extensive background on the case in which Bibiji Inderjit Kaur Puri, the widow of the leader of the Sikh Dharma faith, is seeking a seat on the board of the company that makes Yogi Tea and which also controls various parts of the Sikh Dharma religious movement. Here is an excerpt from CNS's excellent report:

Bibiji sued in Multnomah County [Oregon] Circuit Court, claiming that her husband had wanted her to be a board member and accusing the board of Unto Infinity of inflating their salaries and executing a self-serving sale of the company's cereal division that cheated Sikh Dharma....

The parties agreed to settle in arbitration. But Bibiji moved the case to Federal Court, claiming the settlement was never ratified and was unfair.... There, U.S. District Judge Michael W. Mossman dismissed the case, finding that Bibiji lacked standing to sue ... because she is not a board member. He also found that the First Amendment prohibited him from installing the leaders of a religious organization.

On Thursday, Bibiji's lawyer ... urged a panel of the Ninth Circuit to apply "neutral principles of law" rather than a First Amendment exception.

(See prior related posting.)

Commission Recommends Removal of State Judge On Various Grounds Including Resisting Same-Sex Weddings

In an opinion issued on Monday (full text), the Oregon Commission on Judicial Fitness and Disability recommended to the Oregon Supreme Court that Marion County Judge Vance Day be removed from office for violations of ten rules of the Code of Judicial Conduct.  Judge Day gained notice when he ordered his staff to screen wedding applicants to assure that any same-sex couples were directed to other judges.  The Commission found that this practice violated three separate rules of conduct.  In addition the Commission found that Judge Day violated Judicial Conduct Rules in connection with his interaction with individuals officiating at his son's soccer games; facilitating the handling of a firearm by a convicted felon who was on supervised probation, as well as personal out-of-court contacts with the felon who had been a Navy SEAL and awarded a Bronze Star; and by soliciting funds from attorneys to acquire military art to be hung in and around his Veterans Treatment Court.  Here is the written closing arguments submitted by Judge Day. Reuters reported on the Commission's opinion. (See prior related posting.)

Bakery Owners Pay Judgment To Pursue Appeal In Same-Sex Wedding Cake Case

The Willamette Week reported Monday that the Oregon bakery that had been ordered by the state Bureau of Labor and Industries to pay $135,000 in damages for refusing to bake a cake for a same-sex commitment ceremony, in order to appeal the ruling, paid the judgment (plus interest) on Monday. The owners of Sweet Cakes by Melissa decided to pay the $136,927 now due, instead of securing an appeal bond for the amount of the judgment. (See prior related posting.)  Supporters of the bakery owners have contributed at least $517,000 to them through crowdsourcing websites.

Oregon Supreme Court Upholds Convictions of Faith Healing Parents For Criminal Negligence

In State of Oregon v. Hickman, (OR Sup. Ct., Oct. 8, 2015), the Oregon Supreme Court unanimously upheld the second degree manslaughter convictions of Dale and Shannon Hickman.  The Hickmans, members of the Followers of Christ Church, were charged with criminal negligence in the death of their prematurely-born seriously ill infant son. The parents had prayed for their son and anointed him with olive oil instead of seeking medical help for him when, nine hours after he was born, he developed severe respiratory problems.  In upholding the convictions, the Supreme Court said:

In this case, the only issue before us is whether ... the state was required by free exercise principles to prove that defendants acted or failed to act with a knowing, rather than criminally negligent, mental state. We hold that it was not.

Oregon Live reports on the decision.  [Thanks to Charles Hinkle for the lead.]

Respondents In Oregon Wedding Cake Case Refuse To Post Bond For Their Appeal

As previously reported, in July the Oregon Bureau of Labor and Industries, as part of a cease and desist order, levied $135,000 in damages against the owners of Sweet Cakes by Melissa Bakery for their refusal to provide a wedding cake to a same-sex couple. Instead of paying the damages the owners have filed an appeal with the state court of appeals, but, according to yesterday's Oregonian, they refuse to provide the bond or irrevocable letter of credit that is required to pursue the appeal. Aaron and Melissa Klein apparently claim financial hardship even though crowdfunding sites set up to support them have raised some $515,000. State officials have now filed in court seeking a judgment that will allow them to attach assets belonging to the Kleins. [Thanks to Scott Mange for the lead.]

Oregon Judge Faces Ethics Charges Over Refusing Same-Sex Weddings and Other Matters

The Oregon Commission on Judicial Fitness and Disability announced in a press release issued Tuesday that a hearing is scheduled next month on ethics charges filed against Marion County Judge Vance Day.  (See prior related posting.) Day has religious objections to same-sex marriage, and one of the charges against him is that before he decided to discontinue entirely performing wedding ceremonies, he had his staff screen wedding applicants to assure that he was not presiding over a same-sex marriage.  However Day, who is head of the Veterans Treatment Court, also faces five other unrelated charges including false statements, improperly allowing a veteran with a prior felony conviction to handle firearms and posting a picture of Adolph Hitler in the county courthouse.  According to CBS News, the Hitler portrait was part of a collage included in memorabilia of a local doctor who had served in World War II. The portrait was surrounded and partially obscured by pages from the doctor's diary, medals and photos.

Meanwhile, The Oregonian reported yesterday that another Oregon state trial court judge, Washington County Judge Thomas Kohl, has also stopped performing weddings now that same-sex marriages are legal.  Kohl has written and speaks widely in churches and prisons about the transformative power of faith.

Oregon Judge Creates Legal Defense Fund After Refusal To Perform Same-Sex Marriages

In Marion County, Oregon, Circuit Judge Vance Day, former chairman of the state Republican Party, has apparently decided for religious reasons not to perform same-sex marriage ceremonies.  This has led to inquiries by the Oregon Commission on Judicial Fitness and Disability as to whether Day has violated the Oregon Code of Judicial Conduct or the Oregon Constitution.  The Oregonian reports that yesterday the Oregon Government Ethics Commission voted unanimously to approve Day's request to establish a legal defense fund in connection with these inquiries.

Final Order Issued In Oregon Same-Sex Wedding Cake Refusal

This week, the Commissioner of the Oregon Bureau of Labor and Industries went beyond the recommendations of the Administrative Law Judge (ALJ) (see prior posting) in finding violations of law by a bakery whose owner refused on religious grounds to provide a wedding cake to a same-sex couple.  In Matter of Melissa Elaine Klein dba Sweetcakes By Melissa, (Bur. Labor & Indus., July 2, 2015), the Commissioner agreed with the ALJ that co-owner Aaron Klein violated ORS 659A.403 that bars discrimination in public accommodations on the basis, among others, of sexual orientation, and that both owners are therefore liable for damages totaling $135,000.  However the Commissioner, rejecting the ALJ's contrary conclusion, held that in addition both co-owners violated ORS 659A.409 that prohibits anyone acting on behalf of a place of public accommodation from issuing any communication that indicates facilities or services will be denied to anyone on account, among others, of sexual orientation.  This finding was based largely on statements in an interview broadcast on radio and television that the bakery would continue to refuse to provide cakes for same-sex weddings, an on a note taped to the bakery door.

Finding the state law provisions constitutional, the Commissioner issued a cease and desist order barring the owners from

publishing, issuing, circulating or displaying ... any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of a place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of sexual orientation.

Oregon Tax Court Says Rectory Not Tax-Exempt

In St. Mary Star of the Sea Catholic Church, Astoria v. Clatsop County Assessor, (OR Tax Ct., May 6, 2015), an Oregon Tax Court magistrate held that a residential structure located 1.5 miles from the church used as a church rectory did not qualify for a property tax exemption "because the evidence shows the rectory is not reasonably necessary to carry out the religious aims of the church..."  The court said in part:

Although [the parish priest] does write sermons and homilies at the rectory, those duties do not require close physical proximity to the church.... The other uses of the rectory have no direct connection to the church; they certainly do not require a rectory in close proximity to the church. There was generalized testimony about the availability of guest bedrooms for visiting priests, deacons, and seminarians, but no specific testimony or other evidence that such officials have stayed at the subject property and, if so, how many and how often they were there....

Forbes reports on the decision.

Proposed Order On Damages Issued Against Oregon Bakery That Refused Same-Sex-Wedding Cake

The Oregon Bureau of Labor and Industries announced last Friday that an Administrative Law Judge has issued a Proposed Order relating to damages to be paid by the owners of an Oregon bakery (Sweet Cakes by Melissa).  Aaron Klein, a co-owner of the bakery, was previously found to have violated the Oregon Equality Act by refusing on religious grounds to provide a wedding cake for a same-sex couple. (See prior posting.) The 111-page Proposed Findings, Conclusions, Opinion and Order issued April 21 (full text) proposes an award of compensatory damages for emotional suffering of $135,000, to be apportioned $75,000 to Rachel Bowman-Cryer and $60,000 to Laurel Bowman-Cryer (who was not present at the cake refusal).  The Administrative Law Judge ruled that these are damages caused by the cake refusal, and that the couple is not entitled to additional damages for emotional suffering caused by media and social media attention. The ALJ also proposes issuance of a cease-and-desist order against the bakery owners.

Both sides have ten days to file exceptions to the Proposed Order.  The Labor Commissioner will then issue the agency's final order, which is appealable to the Oregon Court of Appeals.

As reported by the Daily Signal, last Friday, supporters of the bakery owners set up a crowdfunding page on GoFundMe to help the bakers raise funds to pay any final damage award.  Within a day the page raised $109,000, but was taken down by GoFundMe as being in violation of its Terms and Conditions because it involves formal charges. The money already raised will still go to the bakery owners, Melissa and Aaron Klein.  A new fundraising page has been set up on Franklin Graham's Samaritan's Purse website.

Supreme Court Denies Stay In Oregon Same-Sex Marriage Case

In May, an Oregon federal district court struck down Oregon's ban on same-sex marriage. (See prior posting.) The state declined to appeal, but the National Organization for Marriage (NOM) has been seeking to intervene as a plaintiff so it can appeal the decision.  So far it has been unsuccessful.  Yesterday the U.S. Supreme Court, in a one-sentence order, denied NOM's request for a stay of the district court's order while NOM appeals the district court's denial of its motion to intervene. All the pleadings in the complex procedural battle by NOM are here. The Oregonian reports on the Supreme Court's action, as does SCOTUSblog.

Oregon's Same-Sex Marriage Ban Is Invalidated

In Geiger v. Kitzhaber, (D OR, May 19, 2014), an Oregon federal district court held that Oregon's constitutional and statutory provisions that limit civil marriage to "one man and one woman" discriminate on the basis of sexual orientation in violation of the 14th Amendment's equal protection clause. Judge McShane concluded his opinion with these observations:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage.... Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing.... Even today I am reminded of the legacy that we have bequeathed today' s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay." 

.... It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities. 

.... With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community. 

.... I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

ACLU of Oregon issued a press release announcing the decision. According to the Los Angeles Times, marriage licenses were issued to same-sex couples in Multnomah County, home to Portland, as soon as the decision was handed down. In February, the state attorney general said she would not defend the ban in court.

Proponents Drop Oregon Conscience Initiative After Losing Challenge To Ballot Title

In Fidanque v. Rosenblum, (OR Sup. Ct., May 8, 2014), the Oregon Supreme Court in a brief order denied oral argument and rejected challenges to the ballot title certified by the Attorney General for a proposed ballot measure.  The initiative measure was designed to allow religious belief exceptions to anti-discrimination laws for refusals to provide goods or services for same-sex marriage or partnership ceremonies and their arrangements. The title, approved by the Court, is: "'Religious belief' exceptions to anti-discrimination laws for refusing services, other, for same-sex ceremonies, 'arrangements'". As reported by The Oregonian, after losing their objections, backers said they would drop the initiative in favor of legal action. A press release yesterday by Friends of Religious Liberty said in part:

Current Oregon law provides protection to religious institutions and clergy for choosing nonparticipation in same sex ceremonies. But the law discriminates against individuals of faith who wish to choose nonparticipation. A Jewish pianist or a Christian violinist who may not want to participate in a same sex ceremony based on deeply held religious beliefs is currently subject to government penalties and civil actions.... 

The intent of IP52 is to end this religious discrimination in Oregon by providing individuals of faith with protection equal under the law to that of religious clergy. But the certified ballot title does not acceptably state this. Indeed, it stages it as intolerant instead of protecting equal rights of conscience..... Thus, we have resolved to suspend IP52 and, instead, back an enforcement lawsuit that will be filed shortly in Oregon on behalf of individuals of faith in expressive professions who are currently being coerced to violate their faiths.... 

[Thanks to James Oleske via Religionlaw for the lead.]

Oregon Will Not Defend Its Same-Sex Marriage Ban In Pending Litigation

In its answer filed yesterday in Geiger v. Kitzhaber, a suit challenging Oregon's same-sex marriage ban, Oregon officials notified the federal district court:

State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.

The lawsuit was filed last October. (See prior posting.) SCOTUSblog reports on Oregon's decision not to defend its ban.

Oregon Agency Says Bakery Discriminated In Refusing To Furnish Cake For Same-Sex Wedding

The Oregonian reports that last Friday the state of Oregon Bureau of Labor and Industries found substantial evidence that a Gresham, Oregon bakery-- Sweet Cakes by Melissa-- violated Oregon's public accommodations anti-discrimination law (ORS 659A.403) when the bakery refused a year ago to furnish a cake for a lesbian couple's wedding.  The bakery owners said doing so would violate their Christian religious beliefs.  Under Oregon law, the finding leads to an informal conciliation process. If that does not result in a settlement, the state agency can bring charges before an administrative law judge. (See prior related posting.)

Proposed Oregon Initiative Would Exempt Objecting Businesses From Involvement In Same-Sex Unions

The Oregonian reported that this week that a group known as Friends of Religious Freedom have filed a proposed initiative measure (full text) with the Oregon Secretary of State. It is designed to protect private individuals and businesses that have deeply held religious objections from being required to furnish goods, facilities or services for same-sex weddings or civil unions. Last February, the Oregon Attorney General's office opened an investigation into a baker who refused to furnish a wedding cake for a lesbian couple's marriage. (See prior posting.)  The proposed initiative responds to this and to similar applications of anti-discrimination laws elsewhere.  It provides that no individual or business entity acting in a nongovernmental capacity may be penalized by the state or a political subdivision, or subjected to a civil action:

for declining to solemnize, celebrate, participate in, facilitate, or support any same-sex marriage ceremony or its arrangements, same-sex civil union ceremony or its arrangements, or same-sex domestic partnership ceremony or its arrangements.

In a related development, last July supporters of same-sex marriage in Oregon filed with the Oregon Secretary of State a proposed Right to Marry and Religious Protection Initiative (full text). Supporters are currently seeking the 116,284 signatures necessary to get the proposed constitutional amendment on the ballot. Their website says they now have over 115,000 signatures. [Thanks to Alliance Alert for the lead.]

Federal Jury Awards Portland City Employee Damages In Religious Harassment Case

In Portland, Oregon, a federal jury earlier this month awarded a former city employee damages of $14,080.  It found in its Nov. 8 special verdict (full text) that plaintiff was subjected to a hostile work environment based on her religion, and that the city knew or should have known about the situation and failed to take prompt effective remedial action.  As reported by yesterday's Oregonian, the complaint (full text) in Griffin v. City of Portland, (D OR, filed 4/9/2013) claimed that co-worker Theresa Lareau harassed plaintiff KellyMarie Griffin about her strong Christian beliefs, repeatedly making profane statements that offended Griffin and telling Griffin: "I’m tired of your Christian attitude and your Christian shit all over your desk and your Christian shit all over the place. I’m going to file a complaint against you the next time I sneeze and you say 'bless you'. You’re just doing it for the attention; you wear it on your sleeve like a badge and I’m sick of it. It offends me."