Texas Judge Sues Over Right To Oppose Same-Sex Marriage

A county judge in Jack County, Texas has filed suit in a Texas federal district court seeking declaratory and injunctive relief to prevent any future enforcement action by the Texas State Commission on Judicial Conduct against him. The complaint (full text) in Umphress v. Hall, (ND TX, filed 3/18/2020) alleges in part:

A few months ago, the Texas State Commission on Judicial Conduct issued a “public warning” to Dianne Hensley, a justice of the peace who recuses herself from officiating at same-sex marriage ceremonies on account of her Christian faith....  The Commission’s interpretation of Canon 4A(1) threatens every judge in Texas who refuses to perform same-sex marriages, as well as those who publicly evince disapproval of same-sex marriage or homosexual conduct in their extra-judicial activities.....

The Court should therefore declare that the First Amendment protects Judge Umphress’s right to conduct his extra-judicial activities in a manner that evinces disapproval of same-sex marriage and homosexual conduct.

Pink News reports on the lawsuit.

Judge May No Deduct Litigation Expenses Borne By His Legal Defense Fund

As previously reported, in 2018 the Oregon Supreme Court suspended state circuit court judge Vance D. Day from his judicial office for three years without pay. The suspension was based in part on Judge Day's refusal to solemnize same-sex marriages.  Now in Vance v. Department of Revenue, (OR Tax Ct., March 13, 2020), the Oregon Tax Court held that Day improperly claimed as a deduction on his state income tax $128,000 in legal fees paid on his behalf by his legal defense fund.

Justice Department Sides With Wedding Photographer In District Court Case

The Department of Justice announced yesterday that it has filed a Statement of Interest (full text) in Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 2/27/20).  As previously reported, in the case the owner of a wedding photography business seeks a preliminary injunction to prevent enforcement of Louisville's public accommodation ordinance against her. Plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. DOJ sides with the photographer, arguing in part:

Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny....

Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive.... By ... compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”

... That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny....  The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.

Supreme Court Grants Review Of City's Refusal To Contract With Catholic Social Services

The U.S. Supreme Court today granted review in Fulton v. City of Philadelphia, (Docket No. 19-323, certiorari granted 2/24/2020) (Order List). The case will be argued next term. In the case, the U.S. 3rd Circuit Court of Appeals upheld held against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.)  Links to filings with the Supreme Court in the case are available from SCOTUSblog's case page.

Catholic Agency Charges County With Retaliation

Suit was filed in a Michigan federal district court last week by St. Vincent Catholic Charities of Ingham County, Michigan challenging the county's refusal to renew a grant for services to refugees,  The complaint (full text) in St. Vincent Catholic Charities v. Ingham County Board of Commissioners, (WD MI, filed 12/16/2019) contends that the county's action was in retaliation for a lawsuit by St Vincent's challenging a state requirement that Catholic adoption and foster care agencies place children with same-sex couples, (See prior posting.)  The current lawsuit claims that the county's action amounts to unconstitutional retaliation, and violates its free speech and free exercise rights. Detroit News reports on the lawsuit.

Another Ruling On Business Refusal To Serve Same-Sex Weddings

In Country Mills Farms, LLC v. City of East Lansing, (WD MI, Dec. 18, 2019), a Michigan federal district court refused to grant summary judgment to either side on most of plaintiff's claims growing out of plaintiff's refusal rent his farm venue for same-sex wedding ceremonies. That refusal led to plaintiff being excluded from participating in the city's farmer's market, The court summarized:

Plaintiffs used Facebook to announce both their religious beliefs and their business practices. The City reacted to the Facebook post, culminating in the denial of Country Mill’s application to participate in the East Lansing Farm’s Market. The parties disagree whether City’s actions were because of Plaintiffs’ statement about their religious beliefs or whether the City’s actions were because of Plaintiffs’ statement about their business practices.  Because the record contains evidence from which the finder of fact could conclude that the City reacted to Plaintiffs’ statements about their religious beliefs, the cross motions for summary judgment must be denied for many of the claims. The trier of fact must decide what the City’s motivation was.

The court, however, did hold that a portion of the city's non-discrimination ordinance is overbroad.  The court also dealt at length with plaintiff's free exercise claims. In part, the court rejected  plaintiff's argument that the Supreme Court's Trinity Lutheran decision precludes the city from denying him a public benefit because of his religious belief, saying: "the Trinity Lutheran opinion does not clearly extend beyond religious institutions "

Judge Who Refused To Perform Same-Sex Ceremonies Sues Over Reprimand

As previously reported, in November the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because of her refusal to perform same-sex marriage ceremonies. Now a lawsuit has been filled challenging the Commission's action.  The complaint (full text) in Hensley v. Texas State Commission on Judicial Conduct, (TX Dist. Ct., filed 12/16/2019) contends that the Commission's action violates Judge Hensley's rights under the Texas Religious Freedom Restoration Act. The complaint also seeks a class-wide declaratory judgment. Fox 44 News reports on the lawsuit.

Texas Justice of the Peace Warned Over Her Refusal To Perform Same-Sex Weddings

Last month, the Texas State Commission on Judicial Conduct issued a Public Warning (full text) to Justice of the Peace Dianne Hensley. The Nov. 12 warning reads in part:

Beginning on about August 1, 2016, Judge Hensley and her court staff began giving all same-sex couples wishing to be married by Judge Hensley a document which stated "I'm sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings." The document contained a list of local persons who would officiate a same-sex wedding....

... Judge Hensley testified that she would recuse herself from a case in which a party doubted her impartiality on the basis that she publicly refuses to perform same-sex weddings.....

... [T]he Texas State Commission on Judicial Conduct has determined that the Honorable Judge Dianne Hensley ... should be publicly warned for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person's sexual orientation in violation of Canon 4A(l) of the Texas Code of Judicial Conduct.

Wedding Photographer Sues Over City's Public Accommodation Ordinance

Suit was filed in a Kentucky federal district court this week raising a pre-enforcement challenge to the application of Louisville, Kentucky's public accommodation ordinance to plaintiff's wedding photography business. The complaint (full text) in Chelsea Nelson Photography LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 11/19/2019) says that plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. The complaint alleges that enforcement of the ordinance against plaintiff would violate her free speech, free exercise and due process rights. ADF issued a press release announcing the filing of the lawsuit.

Hong Kong Court: No Protection For Same-Sex Marriage or Civil Unions

In MK v. Government of HKSAR, (HKCFI, Oct. 18, 2019), the Hong Kong Court of First Instance ruled that Article 37 of Hong Kong's Basic Law  providing protection for the freedom of marriage applies only to heterosexual marriage.  It also held that the government does not have a duty to provide a legal framework, such as civil unions, as an alternative to protect same-sex couples. JURIST reports on the decision.

DOJ Backs Catholic Archdiocese In Firing of Teacher For Same-Sex Marriage

On Friday, the Department of Justice filed a Statement of Interest (full text) in an Indiana state trial court in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Super Ct., 9/27/2019).  In the suit, a teacher in a Catholic school in Indianapolis claims that the Archdiocese wrongly interfered with his contractual relationship with the school when the Archdiocese ordered the school to dismiss the teacher because of his public same-sex marriage. (See prior posting.)  DOJ argued that the First Amendment requires the court to dismiss the teacher's complaint:

The First Amendment bars this action for at least two independent reasons. First, Plaintiff’s action seeks to penalize an indisputably expressive association—the Archdiocese—for deciding which schools may identify as Catholic under its associational umbrella.....

Second, Plaintiff seeks to embroil this Court in a dispute over the Archdiocese’s application of Catholic law, in violation of the church-autonomy doctrine.

A Justice Department press release announced its filing with the court.

Arizona Supreme Court Backs Wedding Invitation Artists In Their Free Speech Claim

In Brush & Nib. v. City of Phoenix, (AZ Sup Ct., Sept. 16, 2019), the Arizona Supreme Court in a 4-3 decision held that Phoenix's public accommodation law cannot be applied to force owners of a wedding and event supply business to create custom wedding invitations for same-sex ceremonies when doing so violates their religious beliefs. The several opinions generated span 78 pages.  The majority opinion of Justice Gould, focusing largely on the compelled speech doctrine, said in part:

[Plaintiffs] have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise of Religion Act.... Our holding is limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record.... We do not recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of other wedding products may be exempt from the Ordinance....

 Plaintiffs’ custom wedding invitations, and the creation of those invitations, constitute pure speech entitled to full First Amendment protection....

Here, Plaintiffs’ objection is based on neither a customer’s sexual orientation nor the sexual conduct that defines certain customers as a class. Plaintiffs will make custom artwork for any customers, regardless of their sexual orientation, but will not, regardless of the customer, make custom wedding invitations celebrating a same-sex marriage ceremony. Thus, although Plaintiffs’ refusal may ... primarily impact same sex couples, their decision is protected because it is not based on a customer’s sexual orientation.

Justice Bolick filed a concurring opinion. Three dissenting opinions were filed, one joined by all three dissenters. The primary dissent written by Justice Bales said in part:

Our constitutions and laws do not entitle a business to discriminate among customers based on its owners’ disapproval of certain groups, even if that disapproval is based on sincerely held religious beliefs. In holding otherwise, the majority implausibly characterizes a commercially prepared wedding invitation as “pure speech” on the part of the business selling the product and discounts the compelling public interest in preventing discrimination against disfavored customers by businesses and other public accommodations.

Arizona Republic reports on the decision.

Cert. Filed In Florist's Refusal To Provide Same-Sex Wedding Flowers

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Arlene's Flowers, Inc. v. State of Washington, (Sup. Ct., cert. filed 9/11/2019).  In the long-running case, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

8th Circuit Vindicates Wedding Videograhers' 1st Amendment Claims

In Telescope Media Group v. Lucero, (8th Cir., Aug. 23, 2019), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, held that the 1st Amendment protects wedding videographers who refuse on religious grounds to produce videos of same-sex weddings. Minnesota contended that the refusal violates two provisions of Minnesota's Human Rights Act.  Judge Stras, writing for the majority, said in part:

Minnesota’s interpretation of the MHRA interferes with the Larsens’ speech in two overlapping ways. First, it compels the Larsens to speak favorably about same-sex marriage if they choose to speak favorably about opposite-sex marriage. Second, it operates as a content-based regulation of their speech....

Laws that compel speech or regulate it based on its content are subject to strict scrutiny....

... [R]egulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be.

The majority also concluded that because the state's action burdens religiously motivated speech, the hybrid rights doctrine requires strict scrutiny. The majority remanded the case to the district court for it to decide whether the videographers are entitled to a preliminary injunction.

Judge Kelley dissenting, said in part:

 ... [T]he court tries to recharacterize Minnesota’s law as a content-based regulation of speech, asserting that it forces the Larsens to speak and to convey a message with which they disagree. Neither is true. The Larsens remain free to communicate any message they desire—about same-sex marriage or any other topic—or no message at all. What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake, that is what today’s decision affords them license to do.

Reuters reports on the decision.

6th Circuit Decides 2 Cases Growing Out of Kim Davis' Marriage License Refusals

In Ermold v. Davis, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals held that sovereign immunity protects former Rowan County, Kentucky Clerk Kim Davis, and her successor in office, from suit for damages in their official capacity. However, the court went on, Davis may still be sued in her individual capacity, and she is not entitled to qualified immunity in that suit. The case grew out of the widely-publicized refusal of Davis to issue marriage licenses to same-sex couples, even after the U.S. Supreme Court's Obergefell decision. (See prior posting.) Two same-sex couples who were denied marriage licenses sued.

The 3-judge panel split 2-1 in their analysis of why Davis was not entitled to qualified immunity.  Judge Griffin, joined by Judge White, held that Obergefell clearly established a right for same-sex marriage and eliminated the need to use a tiers-of-scrutiny analysis in cases such as this.  Judge Bush held that a tiers-of-scrutiny analysis should be used, but that Davis' conduct does not survive even rational basis review.

In a related case, Miller v. Caudill, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals affirmed the award of $222,695 in attorneys' fees to several same-sex couples who had obtained a preliminary injunction against Davis' policy, but litigated no further after Davis' deputy clerks agreed to issue the licenses.  The 6th Circuit concluded that plaintiffs qualified as a "prevailing party" entitled to attorneys' fees under 42 USC §1988, and that these fees should be paid by the state of Kentucky rather than Rowan County.  The Court said in part:

A win is a win—regardless of whether the winner runs up the score. To prevail, then, plaintiffs didn’t need to obtain duplicative relief in every form that they originally sought it. They wanted the opportunity to obtain marriage licenses in Rowan County, and the preliminary injunction gave them exactly that.

Louisville Courier Journal reports on this decision. [Thanks to Tom Rutledge for the lead.]

Gay Couple Sue Over Citizenship of Child Born Through Surrogacy Abroad

A same-sex married couple has filed suit in a Georgia federal district court challenging the State Department's refusal to recognize their daughter as a U.S. citizen.  The complaint (full text) in Mize v. Pompeo, (MD GA, filed 7/23/2019), alleges that the due process and equal protection rights of James Mize and Jonathan Gregg were violated when the U.S. Embassy in Britain refused to issue a Consular Report of Birth Abroad and passport to their daughter who was born through assisted reproductive technology in Britain. It also contends that the State Department has misinterpreted the Immigration and Nationality Act (INA). The couple used the sperm of Mr. Gregg, an anonymous egg donor, and a surrogate who lives in Britain. Both fathers are U.S. citizens.  Mr. Gregg is a U.S. citizen by reason of birth in Britain to a U.S. citizen. He has lived in the U.S. less than five years. Mize and Gregg are listed as the only parents on the child's birth certificate.

Under Sec. 301 of the INA, a person born outside the United States to two married U.S. citizens is a U.S. citizen if at least one of the parents has resided in the U.S. at any time. However the State Department applies this provision only if the child has a biological relationship with both married parents. Otherwise it applies Sections 309 and 301(g) of the INA that govern when a child born out of wedlock is a citizen. In that case, the father must have lived in the U.S. for 5 years for the child to be a citizen.

The complaint alleges:

On information and belief, State Department officials are highly unlikely to ask different-sex parents who are identified as legal parents (e.g., on a child’s birth certificate) if their child is, in fact, biologically related to both legal parents. In contrast, same-sex parents will always trigger an investigation, and consular officials routinely ask same-sex parents for specific evidence of a biological tie and/or about the use of assisted reproductive technology.

CNN reports on the lawsuit.

Cert Filed In Challenge To Exclusion of Foster Care Agencies That Reject Same-Sex Couples

A petition for certiorari (full text) was filed this week in Fulton v. City of Philadelphia, (cert. filed 7/22/2019).  In the case, the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.)  Becket issued a press release announcing the filing of the petition.

Teacher Sues Archdiocese For Directing Catholic High School To Fire Him Over Same-Sex Marriage

Catholic Herald reported yesterday on a lawsuit filed against the Archdiocese of Indianapolis by Joshua Payne-Elliott, a former teacher at Cathedral High School. The suit charges interference with the teacher's professional relationship with the school. The Archdiocese directed the high school to terminate Payne-Elliott's contract after he entered a same-sex marriage. The school made it clear it was following the directive in order to avoid the Archdiocese withdrawing recognition of the school as Catholic. One day before filing his lawsuit against the Archdiocese, the teacher reached what was apparently a friendly settlement with Cathedral High School. The school is helping him find a new teaching position. In response to the lawsuit, the Archdiocese issued this statement:

In the Archdiocese of Indianapolis’ Catholic schools, all teachers, school leaders and guidance counselors are ministers and witnesses of the faith, who are expected to uphold the teachings of the Church in their daily lives, both in and out of school. Religious liberty, which is a hallmark of the U.S. Constitution and has been tested in the U.S. Supreme Court, acknowledges that religious organizations may define what conduct is not acceptable and contrary to the teachings of its religion, for its school leaders, guidance counselors, teachers and other ministers of the faith.

Britain's Appeals Court: Christian Social Work Student Improperly Suspended For Anti-Gay Facebook Postings

In Ngole v. University of Sheffield, (EWCA, July 3, 2019), England's Court of Appeal held that the University of Sheffield had unfairly removed a Christian student from its Master of Social Work program after the student posted his views on Facebook that homosexuality and same-sex marriage are sins.  The postings, in response to the jailing in 2015 of Kentucky court clerk Kim Davis for refusing to issue same-sex marriage licenses, appeared on MSNBC's Facebook page. The Court, ordering a new disciplinary hearing by the University, summarized its conclusions in part as follows:

(10) The University wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds. In the present case, there was positive evidence to suggest that the Appellant had never discriminated on such grounds in the past and was not likely to do so in the future (because, as he explained, the Bible prohibited him from discriminating against anybody).

(11) The University gave different and confusing reasons for suspending the Appellant. Initially, it was said (by the Fitness to Practice Committee) that he lacked “insight” into how his NBC postings might affect his ability to carry out “his role as a social worker”; and subsequently it was said (by the Appeals Committee) that he lacked “insight” into how his NBC postings “may negatively affect the public’s view of the social work profession”. Further, at no stage during the process or the hearings did the University properly put either concern as to perception to the Appellant during the hearings.

(12) The University’s approach to sanction was, in any event, disproportionate: instead of exploring and imposing a lesser penalty, such as a warning, the University imposed the extreme penalty of dismissing the Appellant from his course, which was inappropriate in all the circumstances.

The Guardian reports on the decision.

Supreme Court Vacates and Remands Same-Sex Wedding Cake Case

The U.S. Supreme Court today granted certiorari, vacated the judgment of the Oregon Court of Appeals and remanded for further consideration the case of Klein v. Bureau of Labor & Industries, (Docket No. 18-547, 6/17/2019). (Order List). In the case, the Oregon Court of Appeals agreed with the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused to design and create a wedding cake for a same-sex wedding. (See prior posting.)  The Supreme Court ordered reconsideration in light of its decision in Masterpiece Cakeshop last year.