Showing posts with label Same-sex marriage. Show all posts
Showing posts with label Same-sex marriage. Show all posts

Friday, March 15, 2024

Japanese Appellate Court Says Failure to Recognize Same-Sex Marriage Is Unconstitutional

In Japan yesterday, the Sapporo High Court-- an intermediate appellate court-- held that Japan's refusal to recognize same-sex marriages is unconstitutional.  Japan Today reports on the decision:

The Sapporo High Court upheld the lower court's landmark verdict in 2021 that said non-recognition of same-sex marriage violates the right to equality protected under the Constitution but rejected a total of 6 million yen ($40,600) in damages sought by three same-sex couples in Hokkaido against the state for emotional distress.

The plaintiffs said they will appeal the ruling to the Supreme Court.

The ruling, the first by a high court among six lawsuits filed at five district courts questioning the current laws' unacceptance of same-sex marriage, said the provisions violate not only Article 14 on the right to equality but also Article 24, which says marriage shall be only on the mutual consent of "both sexes."

The court stated for the first time that Article 24 can be understood as also guaranteeing marriage between individuals of the same sexes.

The clause did not anticipate same-sex marriages when the Constitution was enacted but "it should be interpreted against the background where respect for individuals is more clearly considered," Presiding Judge Kiyofumi Saito said in handing down the ruling.

Several district (trial level) courts have ruled on the issue, including a ruling yesterday by a district court in Tokyo saying that lack of some sort of recognition of same-sex couples is "a deprivation of a key part of their personal identity." However, the court said that the Diet has many options for recognizing same-sex partnerships.

Thursday, March 07, 2024

Virginia Legislature Passes Symbolic Bill Recognizing Same-Sex Marriages

In Virginia, Governor Glenn Youngkin has until tomorrow to decide whether or not to sign HB 174/ SB 101 (full text) which provides:

No person authorized by § 20-14 to issue a marriage license shall deny the issuance of such license to two parties contemplating a lawful marriage on the basis of the sex, gender, or race of such parties. Such lawful marriages shall be recognized in the Commonwealth regardless of the sex, gender, or race of the parties.

Religious organizations and members of the clergy acting in their religious capacity shall have the right to refuse to perform any marriage.

As reported by Dogwood, the bill was introduced because of concern that the U.S. Supreme Court might overrule its caselaw protecting same-sex marriages. Even if the Governor signs the bill, its impact on same-sex marriages would only be symbolic since the Virginia Constitution Sec. 15-A prohibits recognition of same-sex marriages in the state and would take precedence over the statute if the U.S. Supreme Court returned the issue of recognition of same-sex marriages to the states.

Thursday, February 22, 2024

Tennessee Governor Signs Law Allowing Potential Officiants to Refuse to Solemnize a Marriage

Yesterday, Tennessee Governor Bill Lee signed into law HB 878 (full text) which adds to the Tennessee Code section which lists who may solemnize marriages (clergy as well as various current and former public officials) language that provides:

 A person shall not be required to solemnize a marriage.

As originally introduced, the bill would have allowed refusals only by those who had objections based on conscience or religious belief.  CNN reporting on the bill notes that LGBTQ advocates criticized the bill for allowing public officials to discriminate based on their personal beliefs.

Friday, February 16, 2024

Greek Parliament Approves Same-Sex Marriage

The Guardian reports that Greece's Parliament on Thursday, by a vote of 176- 76, legalized same-sex marriage, making Greece the first Christian Orthodox country to do so. The bill has been strongly supported by Greece's Prime Minister Kyriakos Mitsotakis. However, in a provision criticized by LGBT advocacy organizations, the bill denies same-sex couples access to parenthood through surrogacy. The entire bill was strongly opposed by the Orthodox Church, According to The Guardian:

Orthodox bishops had threatened to excommunicate lawmakers who voted for the measure while the leader of the far-right Spartans party had said the law would “open the gates to hell and perversion”.

Tuesday, December 19, 2023

Pope OK's Non-Marital Blessings for Same-Sex Couples

In a Declaration titled "Fiducia Supplicans: On the Pastoral Meaning of Blessings" (full text) issued by the Vatican's Dicastery for the Doctrine of the Faith and approved by Pope Francis, the Pope has given priests permission to give a blessing to same-sex or other unmarried couples. The Declaration says in part:

31. Within the horizon outlined here appears the possibility of blessings for couples in irregular situations and for couples of the same sex, the form of which should not be fixed ritually by ecclesial authorities to avoid producing confusion with the blessing proper to the Sacrament of Marriage. In such cases, a blessing may be imparted that ... descends from God upon those who—recognizing themselves to be destitute and in need of his help—do not claim a legitimation of their own status, but who beg that all that is true, good, and humanly valid in their lives and their relationships be enriched, healed, and elevated by the presence of the Holy Spirit. These forms of blessing express a supplication that God may grant those aids that come from the impulses of his Spirit ... so that human relationships may mature and grow in fidelity to the Gospel, that they may be freed from their imperfections and frailties, and that they may express themselves in the ever-increasing dimension of the divine love.

32. Indeed, the grace of God works in the lives of those who do not claim to be righteous but who acknowledge themselves humbly as sinners, like everyone else. This grace can orient everything according to the mysterious and unpredictable designs of God. Therefore ... the Church welcomes all who approach God with humble hearts, accompanying them with those spiritual aids that enable everyone to understand and realize God’s will fully in their existence.

Catholic News Service reported on the document, and summarized it as follows:

The Vatican offered a narrow set of conditions under which a priest or deacon could give a blessing to a same-sex or other unmarried couple, making it clear the church does not consider their unions a marriage but also recognizing how anyone can ask for a blessing when they are seeking God's assistance, mercy and grace.

Friday, December 01, 2023

Christian Non-Profit Cannot Rescind Job Offer Because of Same-Sex Marriage

In McMahon v. World Vision, Inc., (WD WA, Nov. 28, 2023), a Washington federal district court held that a Christian non-profit organization violated Title VII and the Washington Law Against Discrimination when it rescinded a job offer originally made to plaintiff after it learned that she was in a same-sex marriage. Plaintiff had been offered the position of customer service representative which involved telephone cultivation of donor relationships. The court held that the religious employer exemption in Title VII only immunizes religious discrimination by such organizations; it does not immunize them from sex discrimination claims. It also held that the ministerial exception doctrine does not apply to the position offered to plaintiff.

Similarly, the rejected the bona fide occupational qualification defense, saying in part:

Nothing in the record indicates that being in a same-sex marriage affects one’s ability to place and field donor calls, converse with donors, pray with donors, update donor information, upsell World Vision programs, or participate in devotions and chapel.

The court went on to find that both Title VII and the WLAD are neutral laws of general applicability so that only rational basis review is required. Finally the court rejected defendants' free speech and expressive association claims.

Thursday, October 26, 2023

Texas Supreme Court Hears Oral Arguments from JP Sanctioned for Refusing to Perform Same-Sex Weddings

The Texas Supreme Court yesterday heard oral arguments (video of full oral arguments) in Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., Oct. 25, 2023). (Briefs filed in the case.) In the case, the state Court of Appeals affirmed the dismissal of a suit challenging a public warning issued by the Commission on Judicial Conduct that concluded plaintiff, a justice of the peace, had cast doubt on her ability to act impartially toward LGBTQ litigants. Plaintiff refused to perform same-sex weddings, while continuing to perform weddings for heterosexual couples. She contended that the Commission on Judicial Conduct violated her rights under the Texas Religious Freedom Act. (See prior posting.)  The appeals court held that the suit was an impermissible collateral attack on the Commission's order. Texas Tribune reports on the oral arguments.

Wednesday, October 25, 2023

New House Speaker Has Long Record of Conservative Advocacy on Religious Freedom Issues

Newly elected Speaker of the U.S. House of Representatives, Mike Johnson (R- LA), has a long record, before he was in Congress, of advocacy on conservative Christian religious issues.  Wikipedia reports:

Before his election to Congress, Johnson was a partner in the Kitchens Law Firm and a senior attorney and national media spokesman for the Alliance Defense Fund, now known as Alliance Defending Freedom. Johnson was also formerly chief counsel of the nonprofit law firm Freedom Guard.

In September 2016, Johnson characterized his legal career as "defending religious freedom, the sanctity of human life, and biblical values, including the defense of traditional marriage, and other ideals like these when they’ve been under assault."

Johnson served as a trustee of the Ethics and Religious Liberty Commission within the Southern Baptist Convention from 2004 to 2012.

Johnson came to some prominence in the late 1990s when he and his wife appeared on national television to represent Louisiana's newly passed marriage covenant laws, which made divorce more difficult legally.

Louisiana House of Representatives

After the 8th District seat was vacated in 2015, Johnson ran for the position unopposed....

In April 2015, Johnson proposed the Marriage and Conscience Act, a bill similar in content to Indiana's controversial Religious Freedom Restoration Act passed a few days earlier, though Johnson denied that his legislation was based on the Indiana law.

Johnson's Marriage and Conscience Act would have prevented adverse treatment by the State of any person or entity on the basis of the views they may hold with regard to marriage. Critics denounced the bill as an attempt to protect people who discriminate against same-sex married couples.

An e-mail statement from First Liberty Institute says that Johnson was also once a First Liberty attorney.

Wednesday, October 18, 2023

India's Supreme Court Refuses to Recognize Same-Sex Marriage

In Supriyo @ Supriya Chakraborty v. Union of India, (Sup. Ct. India, Oct. 17, 2023), a 5-judge bench of India's Supreme Court, in 4 opinions spanning 366 pages, refused to recognize same-sex marriages, but called on the government to study and implement further rights for same-sex couples. As summarized by BBC News:

The petitioners had argued that not being able to marry violated their constitutional rights and made them "second-class citizens".

They had suggested that the court could just replace "man" and "woman" with "spouse" in the Special Marriage Act - which allows marriage between people from different religions, castes and countries - to include same-sex unions.

The government and religious leaders had strongly opposed the petitions. The government had insisted that only parliament could discuss the socio-legal issue of marriage and argued that allowing same-sex marriage would lead to "chaos" in society.

On Tuesday, the judges agreed with the government, saying that only parliament could make law and the judges could only interpret them.

They accepted Solicitor General Tushar Mehta's proposal on behalf of the government to set up a committee, headed by the country's top bureaucrat, to consider "granting queer couples" rights and privileges available to heterosexual couples.

Friday, September 22, 2023

4th Circuit Hears Oral Arguments on Catholic School's Firing of Teacher Who Entered Same-Sex Marriage

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral arguments (audio of full oral arguments) in Billard v. Charlotte Catholic High School.  In the case, a North Carolina federal district court held that a Catholic high school is liable under Title VII of the 1964 Civil Rights Act for firing a substitute drama teacher after he entered a same-sex marriage and stated on Facebook his disagreement with Catholic teaching on marriage. (See prior posting.) As reported by Reuters, during oral argument the judges pressed the parties on the applicability of the ministerial exception doctrine, even though the school had stipulated that it would not raise the doctrine as a defense in order to avoid protracted discovery on the teacher's job duties.

Friday, September 15, 2023

Kim Davis Assessed $100K Damages In One Case, $0 in Another

Last year, in a long-running case, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. The court said that damages should be assessed by a jury.  (See prior posting.) That case, along with another making similar claims, were recently tired in parallel before two separate juries. In one of the cases-- Yates v. Davis -- the jury yesterday awarded zero damages.  In a second case-- Emold v. Davis-- a different jury awarded $100,000 damages. Liberty Counsel says the decision will be appealed. USA Today reports on the cases.

Tuesday, September 12, 2023

Bulgaria Violates European Convention by Failing to Recognize Same-Sex Married Couple

In Koilova and Babulkova v. Bulgaria, (ECHR, Sept 5, 2023) (full text of decision in French) (Court's English Summary of decision), the European Court of Human Rights ruled that Bulgaria violated Article 8 of the European Convention on Human Rights (Respect for private and family life) by failing to have a procedure for recognizing or registering a same-sex marriage entered in another country. According to the English language summary of the decision, the Court said in part:

... [I]n the absence of official recognition, same-sex couples were nothing more than de facto unions for the purposes of national law, even where a marriage had been validly contracted abroad. The partners were unable to regulate fundamental aspects of life as a couple such as those concerning property, family matters and inheritance, except as private individuals entering into contracts under the ordinary law, where possible, rather than as an officially recognised couple. They were not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities or with third parties. Even assuming that national law had allowed the applicants to apply to the domestic courts for protection of their basic needs as a couple, the necessity of taking such a step would have constituted in itself a hindrance to respect for their private and family life.

[Thanks to Law & Religion UK for the lead.]

Tuesday, August 22, 2023

1st Amendment Requires Exemption from Anti-Bias Law for Business That Discriminates Against Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (ED MI, Aug. 21, 2023), a Michigan federal district court held that the city of East Lansing violated the Free Exercise rights of Country Mill Farms and its owner when the city refused to invite Country Mill to be a vendor at East Lansing's Farmer's Market.  The refusal was based on Country Mill's violation of the city's anti-discrimination ordinance in another part of Country Mill's business.  Country Mill rents out a portion of its farm property for weddings, but for religious reason will not rent it out for same-sex weddings. The court held that the discrimination ban was not generally applicable because of exemptions in the anti-discrimination ordinance that would allow the city to do business with firms that discriminate on the basis of sexual orientation. The court concluded in part:

In light of the nondiscretionary and the discretionary exemptions in the ordinance, the City has not demonstrated a compelling interest in excluding Plaintiffs from the Farmer’s Market. The City’s nondiscrimination ordinance tolerates the same discrimination in other situations.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Wednesday, August 16, 2023

MD Supreme Court: State Law Sex Discrimination Ban Does Not Include Sexual Orientation Discrimination

In Doe v. Catholic Relief Services, (MD Sup. Ct., Aug. 14, 2023), the Maryland Supreme Court, responding to certified questions from a federal district court, refused in interpreting state law to follow the analogous holding of the U.S. Supreme Court in its Title VII Bostick decision.  The Maryland court held that, in light of the separate prohibition on sexual orientation discrimination in state law, the ban on sex discrimination in the Maryland Fair Employment Practices Act does not also cover discrimination on the basis of sexual orientation. It went on to hold that in light of the specific ban on pay disparities based on sex or gender identity, the Maryland Equal Pay for Equal Work Act does not bar pay disparities based on sexual orientation. Finally the court held that the exemption in the Maryland Fair Employment Practices Act for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion, sexual orientation, or gender identity to perform work connected with the activities of the religious entity" covers "claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity." It is not co-extensive with the ministerial exception doctrine.

Justice Hotten, joined by Justice Eaves, filed a dissenting opinion contending that the ban on sex discrimination in both statutes includes sexual orientation discrimination. They would also read the religious institution exemption more narrowly than the majority, contending that it only applies when a nexus exists between the employer’s religious activities and the work that an employee performs.

The underlying case that led to the certified questions involved a complaint by a Program Data Analyst employed by Catholic Relief Services who was denied spousal health benefits for his same-sex spouse.

[Thanks to Arthur Spitzer for the lead.]

Friday, August 04, 2023

New Jersey Issues Guidance On Public Accommodation Law Coverage After 303 Creative Decision

Earlier this week (July 31), the New Jersey Division on Civil Rights issued a Guidance on the New Jersey Law Against Discrimination Following the U.S. Supreme Court’s Decision in 303 Creative LLC v. Elenis (full text) (press release). The Release says in part:

The Supreme Court’s ruling exempts from anti-discrimination laws like the LAD only a narrow set of services offered by some places of public accommodation. In order to assert an exemption, at a minimum, a public accommodation must establish that (1) its creative services are “original” and “customized and tailored” for each customer; (2) the creation is “expressive” and expresses the creator’s own First Amendment-protected speech; and (3) the public accommodation’s refusal to provide the creative service to a customer is based on the message it conveys, not the customer’s identity or protected characteristic standing alone. As a practical matter, many of the products or services that meet that narrow definition—for example, a documentary film created by a movie director—are created by artists or businesses that fall outside the LAD’s definition of a public accommodation already. Moreover, because the overwhelming majority of places of public accommodation do not provide “customized,” “original,” and “expressive” products or services to the public that express the creator’s own speech, the Court’s decision does not exempt most places of public accommodation—or most goods and services—from the LAD. That is why, as the Court itself acknowledged, state civil rights law still applies to “a vast array of businesses” selling “innumerable goods and services.”

[Thanks to Jeff Pasek for the lead.] 

Monday, July 31, 2023

6th Circuit Hears Oral Arguments In Wedding Photographer Case

On Friday, the U.S 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Chelsey Nelson Photography LLC v Louisville Jefferson Co KY. In the case, a Kentucky federal district court held that Louisville's public accommodation ordinance violates the free speech rights of a Christian wedding photographer who has moral and religious objections to same-sex marriages. (See prior posting.) Louisville Public Media reports on the oral arguments.

Friday, July 14, 2023

Catholic School's Non-Renewal of Counsellor Who Entered Same-Sex Marriage Upheld

In Fitzgerald v. Roncalli High School, Inc., (7th Cir., July 13, 2023), the U.S. 7th Circuit Court of Appeals held that the ministerial exception doctrine requires dismissal of a suit which was brought by a Catholic high school guidance counselor whose contract was not renewed because her same-sex marriage was inconsistent with the Catholic school's religious mission. The court found this to be an easy case because last year in a different decision the 7th Circuit held that a suit by plaintiff's Co-Director of Guidance was barred by the ministerial exception doctrine. (See prior posting.) The court said in part:

Our precedent makes clear that Fitzgerald was a minister at Roncalli and that the ministerial exception bars this suit. But cases like today’s—involving two plaintiffs with the same title, at the same school, performing the same duties, and bringing the same claims in our court—are rare. A fact-specific inquiry remains necessary in cases where the ministerial exception is asserted as a defense to balance the enforcement of our laws against the protections of our Constitution.

Judge Brennan filed a concurring opinion pointing out that the case could also have been resolved by relying on the statutory religious employer exemption in Title VII which would have avoided the constitutional question. Becket issued a press release announcing the decision.

Saturday, July 01, 2023

Supreme Court GVR's Case on Bakers' Refusal To Design Cake For Same-Sex Wedding

On Friday, in Klein v. Oregon Bureau of Labor and Industries, (Docket No. 22-204, GVR'd June 30, 2023) (Order List) the U.S. Supreme Court granted certiorari, vacated the lower court's judgment and remanded the case to the Oregon Court of Appeals for further consideration in light of the Supreme Court's decision the same day in 303 Creative LLC v. Elenis. At issue in Klein was a finding by the state Bureau of Labor and Industries that the owners of Sweetcakes bakery violated Oregon's public accommodation law when they refused on religious grounds to design and create a wedding cake for a same-sex wedding. (See prior posting.)

Friday, June 30, 2023

Supreme Court: Web Designer's Free Speech Rights Allow Her to Refuse to Design Websites for Same-Sex Weddings

The U.S. Supreme Court today in 303 Creative LLC v. Elenis, (Sup. Ct., June 30, 2023), in a 6-3 decision, held that the 1st Amendment's free speech protections bars Colorado from using its public accommodation anti-discrimination law to require a wedding website designer to design websites for same-sex weddings in violation of her religious beliefs. Justice Gorsuch's majority opinion says in part:

The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents.... We agree....

Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait.... Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages.....

Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.”... But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspapers....

In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.

Justice Sotomayor, joined by Justices Kagan and Jackson, filed a dissenting opinion, saying in part:

A public accommodations law has two core purposes. First, the law ensures “equal access to publicly available goods and services.”...

Second, a public accommodations law ensures equal dignity in the common market. Indeed, that is the law’s “fundamental object”: “to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’”...

Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks....

This Court has long held that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.”...

CADA’s Accommodation Clause and its application here are valid regulations of conduct. It is well settled that a public accommodations law like the Accommodation Clause does not “target speech or discriminate on the basis of its content.”... Rather, “the focal point of its prohibition” is “on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services.”...

Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws.... Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do....

The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’”... Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child.... And so on.....

AP reports on the decision.

Thursday, June 15, 2023

Church Autonomy Doctrine Requires Dismissal of Title VII Claim By Non-Ministerial Employee

In McMahon v. World Vision Inc., (WD WA, June 12, 2023), a Washington federal district court dismissed a Title VII sex discrimination suit, finding it is barred by the Church Autonomy Doctrine.  A Christian ministry's job offer to plaintiff for the full-time position of Donor/Customer Service Representative Trainee was rescinded when defendant learned that plaintiff was in a same-sex marriage. The court discussed the relationship between the Church Autonomy Doctrine and the Ministerial Exception, concluding that the Church Autonomy Doctrine may be invoked when a non-ministerial employee brings a Title VII action.  The court said in part:

... [T]he Church Autonomy Doctrine requires the court to abstain from resolving employment discrimination claims where a religious institution takes an adverse action pursuant to a religious belief or policy—regardless of whether the employer allegedly discriminated on religious or other protected grounds—unless it is possible for the court resolve the claims without resolving underlying controversies over religious doctrine or calling into question the reasonableness, validity, or truth of a religious doctrine or practice....

The court joins other courts ... in cautioning religious employers against over-reading the impact of the court’s holding. It is by no means the case that all claims of discrimination against religious employers are barred....  [I]f a religious employer does not offer a religious justification for an adverse employment action against a non-ministerial employee or if the plaintiff presents sufficient secular evidence that would allow a factfinder to conclude that the religious justification was pretext without wading into the plausibility of the asserted religious doctrine, it is unlikely that serious constitutional questions will be raised by applying Title VII.