European Court Says Countries Must Recognize Same-Sex Unions Entered Abroad

In Orlandi and Others v. Italy, (ECHR, Dec. 14, 2017), the European Court of Human Rights in a Chamber Judgment, by a vote of 5-2, held that Italy violated the rights of same-sex couples by refusing to register their marriages.  The Court summarized the decision on its website as follows:

the Court has found a violation of the right to respect for private and family life. [Art. 8, European Convention on Human Rights.]  In this case 6 homosexual couples complained that they had been unable to have their marriages, which had been entered into abroad, registered or recognised in Italy.

The Court observed in particular that States were free only to authorise heterosexual couples to marry, but that homosexual couples needed to be legally recognised and to ensure the protection of their relationship. It also noted that the situation in Italy had changed in 2016 with the enactment of new legislation on homosexual civil partnerships.

Antagonists In Same-Sex Marriage Saga will Now Face Each Other In 2018 Election

In 2015, Rowan County, Kentucky clerk Kim Davis was at the center of the battle over same-sex marriage as she was held in contempt for refusing to allow her office to issue marriage licenses to same-sex coupled. (See prior posting.)  One of the individuals who was denied a marriage license was David Ermold.  Last week, Ermold filed papers to run against Davis for the Clerk position next year. Papers, of course, were filed in Davis' office.  The Luxora Leader reports:

... Ermold, alongside his now-husband, filled out the paperwork to run for office with Davis sitting across from him:

Davis smiled and welcomed them, chatting with them about the state retirement system and the upcoming Christmas holiday. She made sure Ermold had all of his paperwork and signatures to file for office, softly humming the old hymn ‘Jesus Paid It All’ as her fingers clacked across a keyboard.

When it was over, she stood and shook hands with Ermold, telling him: ‘May the best candidate win.'

Australia Approves Same-Sex Marriage

As reported by the New Zealand Herald, Australia's Parliament has given final approval to same-sex marriage. The vote comes after a government mail survey showed that 61.6% of Australians favored marriage equality.  (See prior posting.) Marriage Amendment (Definition and Religious Freedoms) Bill 2017  passed the House of Representatives yesterday.  It was approved 43-12 last week by the Senate.  It now goes to the Governor General for royal assent.  The Herald reports further:

Amendments meant to safeguard freedoms of speech and religion for gay-marriage opponents were all rejected, though those issues may be considered later. The government has appointed a panel to examine how to safeguard religious freedoms once gay marriage is a reality in Australia....

The current bill allows churches and religious organizations to boycott gay weddings without violating Australian anti-discrimination laws.

Existing civil celebrants can also refuse to officiate at gay weddings, but celebrants registered after gay marriage becomes law would not be exempt from the anti-discrimination laws.

One of the rejected amendments would have ensured Australians could speak freely about their traditional views of marriage without fear of legal action.

ABC News says that the first same-sex weddings could take place as early as January 9.

Transcript of Oral Arguments In Masterpiece Cakeshop Is Now Available

The transcript (full text) of today's oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is now available.  Amy Howe at SCOTUSblog has posted an analysis of the argument.  She speculates that Justice Kennedy holds the key vote. She also observes:

[M]any of the more liberal justices’ questions seemed to focus on trying to convince their more conservative colleagues that, even if they might be inclined to vote for Masterpiece, it would be next to impossible to write a ruling for the baker that did not, as Justice Stephen Breyer put it, “undermine every civil rights law since year 2.”

SCOTUS Will Hear Arguments In Masterpiece Cakeshop Case Today

The U.S. Supreme Court this morning will hear oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the widely followed case that pits the religious and free speech rights of a Christian bakery owner against the rights of a same-sex couple under Colorado's public accommodation law.  SCOTUSblog has a preview of the arguments, as well as a case page with links to the many briefs filed in the case, to the opinion below and to extensive commentary.  The high profile which the case has assumed is encapsulated in this deck headline from the Christian Science Monitor:

As evidenced by the people who began camping outside the high court for a seat at Tuesday’s oral arguments, the Masterpiece Cakeshop case seems destined to be a historic ruling – with both sides warning that defeat could bring potentially seismic consequences.

Daily Signal has a profile of one of the lawyers who will be arguing before the court today.  The transcript of the oral arguments should become available later today.  I will post a link to it at that time.

Australian Government Survey By Mail Favors Same-Sex Marriage

The Australian Bureau of Statistics yesterday released the results of its national postal survey on whether the law should be changed to allow same-sex marriage.  (Press release; full survey results).  61.6% of respondents voted "yes"; 38.4% voted "no".  The press release expanded on the data:

All states and territories recorded a majority Yes response. Of the 150 Federal Electoral Divisions, 133 recorded a majority Yes response, and 17 Federal Electoral Divisions recorded a majority No response.

12,727,920 million people participated in the voluntary survey – representing 79.5 per cent of the more than 16 million eligible Australians.

CNN reports that celebrations broke out across Australia after the results were announced.  (See prior related posting.)

USDA Memo Gives Meat Packing Plants Broad Religious Speech Protection

ADF reported yesterday on a new Guidance Memorandum on First Amendment Policy issued by the U.S. Department of Agriculture Office of Food Safety (full text), and a related Q&A webpage.  While the Guidance Memorandum appears to flow from President Trump's Executive Order Promoting Free Speech and Religious Liberty issued in May (see prior posting), and a follow-on Memo from the Secretary of Agriculture, it also resolves a particular dispute relating to a Michigan meat-packing plant. Federal meat inspectors working at the plant had removed an article placed on the plant's break room table that expressed religious views opposed to same-sex marriage.  Apparently a USDA official, invoking an Obama-era Policy Statement on sexual harassment,  had threatened to withdraw all its inspectors if the article reappeared.  The new Guidance Memorandum gives broad permission for employees and supervisors at meat plants to express religious views, saying in part:

Employees are permitted to engage in religious expression directed at fellow employees and may attempt to persuade other employees of the correctness of their views.  Religious views should be treated the same as any other comparable speech not involving religion. Proselytizing is as entitled to constitutional protection as any other form of speech.

Supervisors are also free to engage in speech about religion.  While supervisors may not impose unfair work conditions on employees who do not share their religious beliefs, their personal views concerning religion are still protected by the First Amendment.  As a result, supervisors may also express their sincere religious views without fear of sanctions.

Some employers in facilities that are inspected by USDA may wish to display religious icons, religious pamphlets, or faith-based messages in publicly available work areas or on public websites.  Others may support employee religious organizations and openly express their own religious beliefs or practices in the workplace.  USDA employees must act to avoid the limiting or chilling of protected speech.

The Guidance Memorandum adds that USDA employees who believe they are subject to discrimination, harassment or intimidation may still exercise their rights.

Amicus Briefs In Masterpiece Cakeshop Now Available Online

The Masterpiece Cakeshop case will be argued before the Supreme Court on Dec. 5. Over 50 90 amicus briefs have been filed in the case. SCOTUSblog's case page has links to them, as well as to briefs of petitioner and respondent and to commentary on the case. The case pits the Colorado Civil Rights Commission against a baker who, for religious reasons, refused to create a wedding cake for a same-sex couple.

British Court Upholds Removal of Christian Social Work Student Over Facebook Comments

As reported by The Guardian and by a press release from Christian Concern, a British trial court judge yesterday upheld a decision by Sheffield University to remove graduate student Felix Ngole from his 2-year MA program in Social Work because of comments he posted on Facebook.  In 2015, commenting on the widely publicized case of Kentucky county clerk Kim Davis, Ngole, a devout Christian, said: "same sex marriage is a sin whether we like it or not. It is God’s words and man’s sentiments would not change His words." Ngole argued that the University's action infringed his free expression rights.  High Court Judge Rowena Collins Rice ruled, however:

Public religious speech has to be looked at in a regulated context from the perspective of a public readership. Social workers have considerable power over the lives of vulnerable service users and trust is a precious professional commodity.

Mississippi Suit On Gay Marriage Recusals Is Reopened

In June, the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a challenge to Mississippi's broad Conscience Protection Act. (See prior posting.) In October, an en banc rehearing was denied.  In light of this, yesterday a Mississippi federal district court in Campaign for Southern Equality v. Bryant, (SD MI, Oct. 27, 2017), issued an order (full text) reopening a challenge to the law insofar as it allows county clerks to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage.  The Order also authorized plaintiffs to serve interrogatories to determine how many Clerk's Offices have employees that have sought to recuse themselves, and how the recusals are handled. AP reports on the order.

Over Dissent, En Banc Rehearing Denied On Mississippi Conscience Protection Act

In Barber v. Bryant, (5th Cir., Sept. 29, 2017), the U.S. 5th Circuit Court of Appeals by a vote of 12-2 refused to grant an en banc rehearing in a challenge to a Mississippi law (HB 1523) that protects from discriminatory state action anyone who acts on religious or moral beliefs relating to traditional marriage, sex outside of marriage, or transgender rights.  In June, a 3-judge panel held that plaintiffs lack standing to challenge the law. (See prior posting.) Two judges dissented from the denial of an en banc rehearing in an opinion that argues:

... the panel opinion is wrong; the plaintiffs have standing to challenge HB 1523 under Supreme Court and Courts of Appeals precedents. The panel opinion misconstrues and misapplies the Establishment Clause precedent, and, as explained below, its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.

Court Upholds Anti-Discrimination Law Over Wedding Videographer's Challenge

In Telescope Media Group v. Lindsey, (D MN, Sept. 29, 2017), a Minnesota federal district court in a 63-page opinion rejected a challenge to a provision of the Minnesota Human Rights Act that requires plaintiffs, owners of a videography business that plans to offer wedding videos, to serve same-sex couples.  Responding to plaintiffs' free speech arguments, the court said in part:

Posting language on a website telling potential customers that a business will discriminate based on sexual orientation is part of the act of sexual orientation discrimination itself; as conduct carried out through language, this act is not protected by the First Amendment.

Plaintiffs also argued that the law, as applied, unconstitutionally affects the content of their videos. However the court concluded:

The MHRA’s application to the Larsens’ wedding video business, as a content neutral regulation of conduct with an incidental effect on speech, survives intermediate scrutiny.

The court went on to reject plaintiffs' free exercise challenge, finding that the law is neutral and of general applicability.

Suits Against Kim Davis Move Ahead

In two similar cases, Yates v. Davis, (ED KY, Sept. 15, 2017), and Ermold v. Davis,(ED KY, Sept. 15, 2017), a Kentucky federal district court allowed plaintiffs to move ahead with their damage actions against Rowan County, Kentucky Clerk, Kim Davis, who refused to issue them marriage licenses. Davis adopted a "no marriage license" policy because of her religious objections to issuing licenses for same-sex marriages. (See prior related posting.) While dismissing claims brought against Davis in her official capacity, the court refused to dismiss personal capacity claims against her.  It found that her refusal to issue licenses was subject to strict scrutiny. [Thanks to Tom Rutledge for the lead.]

Report Claims DOJ Was Divided Over Whether To File Amicus Brief In Masterpiece Cakeshop

As previously reported, earlier this month the Department of Justice filed an amicus brief in the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, siding with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  Last week National Law Journal reported that the Department was divided on whether to file an amicus brief, although a Justice Department spokesperson denied  the report.The paper says:

Senior lawyers in the civil and civil rights divisions and within the U.S. solicitor general’s office said the department should not take a position in the case...

[Acting Solicitor General Jeffrey] Wall was the lead attorney among what former Justice Department lawyers said was an unusually large group of attorneys—eight in all—whose names appeared on the cover of the court filing....

Absent from the government’s Masterpiece Cakeshop brief was any career deputy solicitor general, whose name routinely appears on amicus and merits filings from the Justice Department.

Farmer's Market Must Issue Vendor's Permit To Orchard That Refuses To Host Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (WD MI, Sept. 15, 2017), a Michigan federal district court issued a preliminary injunction requiring a Michigan city to allow an orchard owner to sell produce at its Farmer's Market even though he refuses on religious grounds to host same-sex weddings at his orchard.  After Country Mill posted its policy against hosting same-sex weddings on its Facebook page, the city amended its Farmer's Market Vendor Guidelines to require all vendors to comply with the city's civil rights ordinances not only at the Farmer's Market, but "as a general business practice." It denied Country Mill a vendor's license because of non-compliance with the public accommodation law which, among other things, prohibits publishing a statement that indicates a business will discriminate on the basis of sexual orientation.

The court found that Country Mill had shown a substantial likelihood of success on its First Amendment retaliation claim: The city took action chilling the orchard owner's speech about his religious beliefs. Plaintiff also showed a likelihood of success on his free exercise claim:

The context in which the Vendor Guidelines were amended and then applied to Country Mill supports Plaintiffs’ claim that their religious beliefs or their religiously motivated conduct was the target of the City’s actions.... [T]he City’s hostility to Plaintiffs’ religion or religious conduct was ... manifested when the City used its facially neutral and generally applicable ordinance to deny Plaintiffs’ Vendor Application.

ADF issued a press release on the decision, with links to some of the other pleadings in the case.

South African Court Reconciles Marriage Law With Gender Identity Change Statute

Under South African law, marriages may be performed only for heterosexual couples; however civil unions, which create the same legal rights as a marriage, may be performed for either heterosexual or same-sex couples.  South Africa also has a statute which allows transgender individuals to register their gender transition with the government if they have undergone medical or surgical treatment to alter their sexual characteristics. Registration leads to a change in the gender listed on birth certificates and in the population register. In KOS v. Minister of Home Affairs, (S.A. High Ct., Sept. 6, 2017), a South African trial court was faced with the question of how to treat couples who had entered a heterosexual marriage (not a civil union), where subsequently the husband underwent gender transitioning and registered the change in gender identity with the government.

The government argued that in such cases, a gender change should not be able to be registered since it would result in a same-sex marriage, which the law does not recognize. In one of the cases, the government had instead cancelled the couple's marriage record and insisted that they enter a civil union.  The court however, disagreed concluding that the couples must be allowed to register the gender reassignment and remain married.  Refusing to do this, the court said, violates the rights under the South African Constitution to administrative justice and to equality and human dignity. GroundUp reports on the decision.

DOJ Supports Christian Baker In Amicus Brief Filed With Supreme Court

In an amicus brief filed in the U.S. Supreme Court on Sept. 7 in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the U.S. Department of Justice sided with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  The brief (full text) argues:

Heightened scrutiny is appropriate at least where a law both compels the creation, for a particular person or entity, of speech or of a product or performance that is inherently communicative, and compels the creator’s participation in a ceremony or other expressive event....

Public accommodations laws compel expression— whether speech or expressive conduct— when they mandate the creation of commissioned goods or the provision of commissioned services that are inherently communicative. That situation might arise if a public accommodations law were applied to painters, photographers, poets, actors, musicians, or other professional artists. Assuming that those artists offer their creative services to the public, a State might attempt to bar a painter who agrees to paint a custom portrait of an opposite-sex couple at their wedding from declining to paint a same-sex couple, or vice versa. Or it might attempt to bar a freelance graphic designer who agrees to design fliers for the upcoming meetings of a Jewish affinity group from declining to do so for a neo-Nazi group or the Westboro Baptist Church. So long as the artist offers to produce expression for a fee, a public accommodations law might purport to restrict her ability to determine which art she will create and for whom....

A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion.

Some 15 other amicus briefs in support of petitioner have also been filed. Links to them are available on SCOTUSblog's case page.  The due date for amicus briefs in support of respondent has not yet arrived. Christian News reports on the filing of the amicus brief.

Australia's Top Court Upholds Planned Mail Survey of Voters On Same-Sex Marriage

In Wilkie v. Commonwealth of Australia, (High Ct. Australia, Sept. 7, 2017), Australia's highest court unanimously upheld the government's plan to conduct a voluntary survey by mail of the country's voters on whether same-sex marriage should be legalized.  At issue in the case was whether the government acted properly when it used a law permitting expenditures which are urgent and unforeseen to fund the survey.  As reported by news.com.au:

Ballots with the question, “Should the law be changed to allow same-sex couples to marry?” will be sent to households across the nation on September 12....

If a majority of people vote in favour, a vote will then be held in parliament which [Prime Minister Malcolm] Turnbull says he expects will make same-sex marriage legal. If Australians vote no, Mr Turnbull has said the parliamentary vote will not proceed.

The postal survey was conceived after Australia's Senate voted against government sponsored legislation for a binding plebiscite. Interestingly, advocates of marriage equality were among those challenging the plebiscite, arguing that Parliament should legalize same-sex marriage without this preliminary vote. (Marriage Equality Information Sheet).  Law & Religion Australia last month had a lengthy post on the religious liberty implications of the substantive legislation that is being considered.

Wedding Website Designer Has Standing To Challenge One of Colorado's Civil Rights Laws

In 303 Creative, LLC v. Elenis, (D CO, Sept. 1, 2017), a website designer challenged the constitutionality of two anti-discrimination provisions of Colorado law that protect, in part, against discrimination on the basis of sexual orientation.  One provision prohibits any place of public accommodation from withholding services on the basis of sexual orientation.  The second prohibits publishing of any communication that indicates services will be withheld on the basis of sexual orientation.  Plaintiff wants to promote and create wedding websites, but, because of her religious beliefs, not for same-sex couples. A Colorado federal district court held that plaintiff has standing to challenge the prohibition on publishing discriminatory communications since she plans to post a statement indicating that she will not create websites that violate her religious beliefs. However she does not have standing to challenge the ban on withholding services because a number of steps would need to occur before any enforcement of that provision against her would become likely.  The court also postponed any ruling on the merits pending the U.S. Supreme Court's decision on a similar issue in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. ADF issued a press release announcing the decision.

West Virginia County Settles Suit By Lesbian Couple Who Were Harassed By Clerk

Americans United announced yesterday that Gilmer County, West Virginia has agreed to settle a lawsuit brought by a lesbian couple who were harassed by a county clerk when they applied for a marriage license. Deputy Clerk Debbie Allen told the couple that they were an abomination to God. (See prior posting.) Under the settlement, the county apologized to the couple and issued a public statement admitting wrongdoing.  The County has also paid damages and has agreed to employee training to avoid future abuse.