Australian Catholic Bishops React To Planned Plebiscite On Same-Sex Marriage

As reported earlier this month by CBC News, Australia's government is planning a mail survey beginning Sept. 12 of Australians on the issue of same-sex marriage. However it is facing a court challenge arguing that the government does not have authority to conduct this type of plebiscite without obtaining authority from Parliament.  Meanwhile the Sydney Morning Herald reported yesterday that Catholic bishops in Australia have threatened that if same-sex marriage is legalized, parish employees, including teachers in Catholic schools, who marry a same-sex partner may well be fired.

Northern Ireland Court Says No Right To Same-Sex Marriage

A trial court judge in the High Court of Northern Ireland yesterday held that the rights of same-sex couples under the European Convention on Human Rights are not infringed by the law of Northern Ireland which allows them only enter civil partnerships rather than full marriage.  As reported by The Independent, the decision comes in two cases heard together.  A press release by the court describes the opinion in one of the cases.  The judge pointed out that the European Court of Human Rights has already held that same-sex marriage is not a right under the Convention.  The judge observed, however:

To the frustration of supporters of same sex marriage the Assembly has not yet passed into law any measure to recognise and introduce same sex marriage. Their frustration is increased by the fact that the Assembly has voted by a majority in favour of same sex marriage, but by reason of special voting arrangements which reflect the troubled past of this State, that majority has not been sufficient to give the vote effect in law.

The Democratic Unionist Party has blocked passage of a law to allow same-sex marriage in Northern Ireland, even though it is recognized in the Irish Republic, England, Scotland and Wales. Law & Religion UK reports on the decision.

Federal Suit By Houston Employees Seeks To Preserve Benefits For Same-Sex Couples

A suit was filed yesterday in a Texas federal district court by Houston city employees and their same-sex spouses seeking to preserve the same spousal benefits that are received by other city employees. In a decision handed down last month, the Texas Supreme Court kept alive a suit by Houston taxpayers challenging the city's extending spousal benefits to same-sex married couples. (See prior posting.) In the complaint (full text) filed yesterday in Freeman v. Turner, (SD TX, filed 8/10/2017), plaintiffs asked the federal district court to declare that the city may not rely on the Texas DOMA Statute and the Texas Marriage Amendment, which have previously been held unconstitutional by federal courts, to justify depriving city employees with same-sex spouses to to the same spousal benefits extended to other married employees. The complaint also asks the court to find that denial or withdrawal of such benefits would be unconstitutional under the equal protection and due process clauses. Texas Observer reports on the lawsuit.

Cert. Filed In Wyoming's Disciplining of Judge For Refusing To Perform Same-Sex Marriages

A petition for certiorari (full text) was filed with the U.S. Supreme Court today in Neely v. Wyoming Commission on Judicial Conduct and Ethics, (cert. filed 8/4/2017).  In the case, the Wyoming Supreme Court held that a judge who, because of religious objections, refuses to perform same-sex marriages violates the Wyoming Code of Judicial Conduct. (See prior posting). ADF issued a press release announcing the filing of the petition for review.

Plaintiffs Awarded Attorneys' Fees In Suit Against County Clerk Kim Davis

In Miller v. Davis, (ED KY, July 21, 2017) a Kentucky federal district court awarded $224,703 in attorney’s fees and costs to plaintiffs who previously obtained a preliminary injunction against Rowan County, Kentucky Clerk Kim Davis.  Davis, citing her religious beliefs, stopped issuing marriage licenses entirely in order to avoid issuing licenses to same-sex couples.  The court yesterday held that plaintiffs were entitled to attorneys' fees because they were the “prevailing party” --they obtained a preliminary injunction that granted the relief they sought. The ultimate dismissal of the case after a change in the law rendered it moot did not change this conclusion.  The court, in a 50-page opinion, said in part:

In this case, the Plaintiffs “prevailed by every measure of victory.” The relief Plaintiffs obtained—the ability to secure marriage licenses and marry—was “preliminary” in name only. It is not the “fleeting” success that fails to establish prevailing-party status.  After the Court obtained compliance with the Preliminary Injunction Orders, Plaintiffs received marriage licenses. And once the plaintiff-couples received their marriage licenses, their rights were not subject to revocation….

... Couples continued to receive marriage licenses after the Kentucky General Assembly amended the law – albeit, on a form Davis felt more comfortable with. Therefore, Plaintiffs’ preliminary-injunction success materially altered their legal relationship with Davis, and that court-ordered change was enduring and irrevocable. Accordingly, the Court concludes that the Plaintiffs “prevailed” within the meaning of § 1988 and are entitled to attorneys’ fees.

The court also held that the state of Kentucky, not Rowan County, is liable for the attorneys’ fees. AP reporting on the decision says Davis plans to appeal, but the state of Kentucky has not yet decided whether it will appeal the ruling. [Thanks to Tom Rutledge for the lead.]

Activist's Suit Argues Gay Pride Flags Are Religious Symbols

The San Diego Union Tribune reported yesterday that anti-gay marriage activist Chris Sevier has filed suit against four members of Congress seeking to force them to remove rainbow flags they have in the hallways outside their Congressional offices.  According to the Union Tribune:

Sevier’s 38-page complaint asks the federal District Court in the District of Columbia to determine that “‘homosexuality’ and other forms of self-asserted sex-based identity narratives are a ‘religion,’” and that the colorful banners are a religious symbol for the “homosexual denomination.” ...

Sevier also asked the court to overturn Supreme Court rulings that ended a prohibition against sodomy and federal policies that only recognized opposite-sex marriages, as well as Obergefell V. Hodges, the 2015 ruling that found that same-sex couples have a fundamental right to marry.

Further, he said the members who displayed the flag should be removed from office.

Sevier has previously lost suits, aimed at discrediting same-sex marriage, in which he challenged state refusals to allow him to marry his laptop. (See prior posting.)

SCOTUS Review Sought In Florist's Refusal To Sell For Same-Sex Wedding

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Arlene's Flowers, Inc. v. State of Washington, (cert. filed, 7/14/2017).  In the case, the state of Washington's Supreme Court held that a florist's religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination. (See prior posting.) The petition for review asks the U.S. Supreme Court to combine this case with the Masterpiece Cake Shop case in which it has already granted review (see prior posting), or to at least hold this case until it decides Masterpiece Cake Shop. Tri-City Herald reports on the cert. petition.

Germany's Bundestag Approves Same-Sex Marriage

As reported by BBC and the New York Times, on Friday Germany's Bundestag passed legislation permitting same-sex marriage.  Currently only civil unions are allowed for same-sex couples.  The vote was 393-226 with 4 abstentions.  Chancellor Angela Merkel, while voting against the change, told members of her governing coalition to vote on the issue according to their consciences. The legislation changes Germany's law to read: "Marriage is entered into for life by two people of different or the same sex."  The legislation must still be approved by the Bundesrat (the upper house of parliament) and signed by Germany's president, but neither of those steps appears to be in doubt.

Texas Supreme Court Keeps Life In Challenge To City's Same-Sex Couple Benefits

In a complex opinion, the Texas Supreme court has given two Houston taxpayer-voters another chance to challenge the legality of the city's extending spousal benefits to same-sex married couples.  At issue in Pidgeon v. Turner, (TX Sup. Ct., June 30, 2017), is the instructions on remand given by a state appeals court in reversing a trial court's temporary injunction against the city's action.  Plaintiffs' suit is based on the contention that Texas' Defense of Marriage Act still has residual effect and that the state appeals court incorrectly indicated to the trial court that the 5th Circuit's DeLeon decision invalidating the state's DOMA is binding on it.  The Texas Supreme Court agreed that the appeals court was incorrect in telling the trial court to proceed "consistent with" DeLeon:

We agree with Pidgeon that De Leon does not bind the trial court in this case and the court of appeals should not have instructed the trial court to conduct further proceedings “consistent with” De Leon. Penrod Drilling, 868 S.W.2d at 296.17 That does not mean, however, that the trial court should not consider De Leon when resolving Pidgeon’s claims. Fifth Circuit decisions, particularly those regarding federal constitutional questions, can certainly be helpful and may be persuasive for Texas trial courts. Moreover, De Leon could potentially affect the relief the trial court might provide on remand, since De Leon has enjoined the Governor from enforcing the Texas DOMAs and the State of Texas is thus providing benefits to state employees’ same-sex spouses. The trial court should certainly proceed on remand “in light of” De Leon, but it is not required to proceed “consistent with” it.

The Texas Supreme Court refused to reach another argument by plaintiffs that they have standing to seek a clawback of payments the city made to same-sex couples before the U.S. Supreme Court's Obergefell decision.  Plaintiff's cited the U.S. Supreme Court's Hobby Lobby decision, contending that as taxpayers they have been injured by the payments "because they are devout Christians who have been compelled by the mayor’s unlawful edict to subsidize homosexual relationships that they regard as immoral and sinful."  NPR reports on the decision.

No Taxpayer Standing To Challenge North Carolina Conscience Law Excusing Magistrates From Performing Marriages

In Ansley v. Warren, (4th Cir., June 28, 2017), the U.S. 4th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to North Carolina's Senate Bill 2 which allows state magistrates who have religious objections to same-sex marriage to recuse themselves from performing all marriages.  (See prior posting.)  The court said in part:

The outcome here is in no way a comment on same-sex marriage as a matter of social policy. The case before us is far more technical—whether plaintiffs, simply by virtue of their status as state taxpayers, have alleged a personal, particularized injury for the purposes of Article III standing. Based on a century of Supreme Court precedent, we conclude that they have not.

Asheville Citizen-Times reports on the decision.

Supreme Court: Same-Sex Spouses Must Get Equal Treatment In Birth Certificates

In Pavan v. Smith, (Sup. Ct., June 26, 2017), the U.S. Supreme Court today granted certiorari and summarily (i.e. without further briefing or oral argument) reversed a decision of the Arkansas Supreme Court on the rights of same-sex married couples. The Supreme Court held that "Obergefell’s commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage'" means that the state must apply the same rules to same-sex and opposite-sex married couples in the issuance of birth certificates. Under Arkansas law, the male spouse of a woman who gives birth appeared on a birth certificate, but the female spouse of a woman who gives birth did not.  The Supreme Court struck this differentiation down, saying that in Arkansas birth certificates are more than just a marker of biological parentage.

Justice Gorsuch, in an opinion joined by Justices Thomas and Alito, dissented saying that this is an inappropriate case for summary reversal.

Cert. Granted In Dispute Over Refusal To Create Cake For Same-Sex Wedding

The U.S. Supreme Court today granted review in Masterpiece Cake Shop v. Colorado Civil Rights Commission, (Docket No. 16-111, cert. granted  6/26/2017). (Order List).  In the case, a Colorado Court of Appeals held that a bakery owner's free exercise and free speech rights were not infringed when the Colorado Civil Rights Commission found that the refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law  (See prior posting.)  The Colorado Supreme Court denied review. (See prior posting.)  The SCOTUSblog case page has links to briefs in the case.

5th Circuit: Plaintiffs Lack Standing to Challenge Mississippi's Anti-LGBT Conscience Law

In Barber v. Bryant, (5th Cir., June 22, 2017), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing two suits challenging Mississippi's HB 1523 which protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions on three topics.  The protected beliefs are that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth.  The district court had concluded that the statute violates the Establishment Clause and Equal Protection Clause. (See prior posting.) However the 5th Circuit concluded that plaintiffs had alleged nothing more than "a general stigmatic injury," and this is insufficient for standing. MS News Now reports on reactions to the decision.

Farmers' Market's Exclusion of Vendor Over Same-Sex Marriages Views Is Challenged

A suit was filed on Wednesday in a Michigan federal district court challenging on 1st and 14th Amendment grounds the City of East Lansing's Vendor Guidelines for its Farmers' Market. The complaint (full text) in Country Mill Farms, LLC v. City of East Lansing, (WD MI, filed 5/31/2017), claims that the city modified its Guidelines to target Country Mill Farms because its owner, Stephen Tennes, shared on Facebook his Catholic belief opposing same-sex marriage.  Tennes posted that while his Farm hosts weddings, it only hosts those that conform to his belief that marriage is a sacramental union between one man and one woman. Following this post, city officials unsuccessfully attempted to pressure Country Mill to end its participation in the Farmer's Market.  When that was unsuccessful, the city changed its Guidelines to require all Farmers' Market participants to abide by the city's Civil Rights Ordinance both while at the market and as a general business practice.  The complaint also alleges that this is an attempt by the city to extend the reach of its ordinances beyond its borders in violation of the Michigan Home Rule City Act.  ADF issued a press release announcing the filing of the lawsuit.

4th Circuit Hears Oral Arguments On North Carolina's Magistrate Recusal Law

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral argument (audio of full arguments) in Ansley v. Warren (Docket No. 16-2082). In the case, a North Carolina federal district court dismissed for lack of standing an Establishment Clause challenge to North Carolina's S.B. 2 that allows magistrates who have religious objections to performing same-sex marriages to recuse themselves from performing any marriages. (See prior posting.)  AP reports on the oral arguments.

Bermuda Court Legalizes Same-Sex Marriage

In a 49-page opinion handed down last week, a Bermuda trial court judge legalized same-sex marriage in the island nation (which is classified as a British Overseas Territory).  In Godwin v. Registrar General, (Bermuda Sup. Ct., May 5, 2017), the court held that the Registrar General violated the Human Rights Act of 1981 (HRA) when it denied a  marriage license to a same-sex couple. The court concluded that the provision of the HRA that prohibits discrimination on the basis of sexual orientation in the provision of services applies to the Registrar General's action.  The Royal Gazette reports on reaction to the ruling.

6th Circuit: Damage Action Against Kim Davis Is Not Moot

In Ermold v. Davis, (6th Cir., May 2, 2017), the U.S. 6th Circuit Court of Appeals reinstated a damage action against Rowan County, Kentucky Clerk Kim Davis brought by a same-sex couple who had been denied a marriage license by Davis.  The district court had dismissed the case because subsequent legislative action and an Executive Order by the governor assured that marriage licenses are now being issued to same-sex couples. The court held, however, that where a suit only seeks damages for past injury, a change in defendant's conduct does not moot the controversy.  Judge Siler also filed a concurring opinion emphasizing that the district court still might find that Davis was protected by Kentucky's Religious Freedom Restoration Act. [Thanks to Tom Rutledge for the lead.]

Alabama Supreme Court Affirms Suspension of Chief Justice Over Defiance of Same-Sex Marriage

Yesterday, a specially composed panel of judges sitting as the Supreme Court of Alabama unanimously affirmed the judgment of the Alabama Court of the Judiciary suspending Alabama Supreme Court Chief Justice Roy Moore for the remainder of his term. Six judges joined in the court's opinion, while one judge concurred only in the result. In Moore v. Alabama Judicial Inquiry Commission, (AL Sup. Ct., April 19, 2017), the court in a 66-page opinion agreed that Moore violated various provisions of the Code of Judicial Ethics when he issued directions to Alabama judges to refuse to issue marriage licenses to same-sex couples despite federal court decisions and orders to the contrary, including the Supreme Court's Obergefell decision.  AL.com reports that Moore remains defiant

Suit Says Clerk Harassed Same-Sex Couples Seeking Marriage Licenses

A suit was filed earlier this week in a West Virginia federal district court contending that personnel in the Gilmer County Clerk's Office harassed same-sex couples applying for marriage licenses.  The complaint (full text) in Brookover v. Gilmer County, (D WV, filed 4/17/2017), alleges in part:

When Deputy Clerk Debbie Allen saw that a same-sex couple was applying for a marriage license, she ... launched into a tirade of harassment and disparagement. She slammed her paperwork down on her desk, screaming that the couple was an “abomination” to God and that God would “deal” with them.... Another clerk joined in ... by shouting “it’s [Allen’s] religious right” to harass same-sex couples while performing the official state duties of the Clerk’s office.

Americans United issued a press release announcing the filing of the lawsuit.

5th Circuit Hears Arguments On Mississippi's Conscience Protection Law

The U.S. 5th Circuit Court of Appeals on Monday heard oral arguments (audio of full arguments) in Barber v. Bryant.  In the case, a Mississippi federal district court issued a preliminary injunction against enforcement of Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act.  The law protects a wide variety of conduct, or refusals to provide goods and service, based on a religious or moral belief that: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth. (See prior posting.)  Buzzfeed has extensive coverage of the oral arguments.