Court Denies Preliminary Injunction Against Mississippi's Conscience Protection For County Clerks

In Alford v. Moulder, (SD MS, June 20, 2016), a Mississippi federal district court denied a preliminary injunction in a suit by a same-sex couple who are challenging Mississippi's recently enacted Freedom of Conscience Law, HB 1523.  The suit specifically challenges provisions in the law that allow county clerks to recuse themselves on religious or moral grounds from issuing marriage licences. (See prior posting.) The court held that plaintiffs failed to show that injury to them is "imminent" since they merely allege that they plan to apply for a marriage license sometime within the next three years.  Plaintiffs immediately filed a Motion for Reconsideration.

Meanwhile, the same judge heard oral arguments yesterday in a separate case that is also challenging HB 1523.  AP reports that in this suit, plaintiffs are arguing that provisions allowing clerks to recuse themselves in favor of another employee issuing the license could create public humiliation for a same-sex couple when they apply for a license.  "There can't be separate-but-equal marriage. There can't be Jim Crow kind of marriage," the couples' attorney told the court.  Four separate cases challenging HB 1523 have been filed, and the judge will hear oral arguments in the remaining two later this week.

District Court Again Enjoins Enforcement of Alabama's Same-Sex Marriage Ban

In Strawser v. Strange, (SD AL, June 7, 2016), an Alabama federal district court, noting actions by the Alabama judiciary seeking to defy the U.S. Supreme Court's Obergefell decision, issued a permanent injunction barring the enforcement of Alabama’s laws that bar same-sex marriage.  Rejecting defendants' assertion that the claim against them is moot, the court said:

Although Attorney General Strange is already subject to a permanent injunction from another case in this Court, Searcy v. Strange, ... the other Defendants in this case are not subject to that injunction and the Plaintiffs in this case lack standing to enforce the Searcy injunction. It is also apparent that certain Alabama state courts do not view this Court’s ruling in Searcy as binding precedent....

The Court notes that the Supreme Court of Alabama denied the pending mandamus petitions and entered judgment in Ex parte State of Alabama ex rel. Alabama Policy Institute.... However, the Alabama Supreme Court did not vacate or set aside its earlier writ of mandamus directing Alabama’s probate judges to comply with the Alabama laws that were held unconstitutional by this Court.... Chief Justice Moore also stated that the Eleventh Circuit’s finding that the Alabama Supreme Court's order was abrogated by the Supreme Court's decision in Obergefell “is plainly wrong.”...

This Court is aware that Chief Justice Moore is currently suspended from his position and is facing charges before the Alabama Court of the Judiciary. However, even if Chief Justice Moore is not reinstated to his position as Chief Justice, the concurring opinions of several other Alabama Supreme Court Justices also expressed disagreement with Obergefell.... It is clear that the decision by the United States Supreme Court in Obergefell does not provide certainty that the alleged violations will not recur.

A press release from Americans United has more on the decision.

Alabama Commission Hires Law Prof To Prosecute Charges Against Chief Justice

As previously reported, earlier this month the Alabama Judicial Inquiry Commission filed ethics charges against Alabama Supreme Court Chief Justice Roy Moore over his administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples despite federal court orders to the contrary. Now, as reported by AL.com, the Judicial Inquiry Commission has hired John Carroll,   professor and former dean of the Cumberland School of Law and former interim director of the Alabama Ethics Commission to prosecute the case against Moore.  In a strongly worded press release yesterday, Moore's attorneys, Liberty Counsel, objected to Carroll because of his service 32 years ago as Legal Director of the Southern Poverty Law Center. SPLC includes Liberty Counsel on its list of Extremist Groups.

Same-Sex Couple's Newest Battle Is With Catholic Cemetery

NewNowNext and Advocate reported yesterday that Greg Bourke and Michael De Leon, a same-sex couple who were among the plaintiffs in one of the same-sex marriage cases decided by the Supreme Court along with Obergefell v. Hodges, are now at odds with a Catholic cemetery in Louisville, Kentucky. The couple, who have been together for 34 years and members of Our Lady of Lourdes Parish for 28 years purchased a joint burial plot in Saint Michael Cemetery. However the cemetery has refused to approve the headstone design which the couple submitted.  It features their names, interlocking wedding bands, a cross and a depiction of the U.S. Supreme Court building.  A letter from the cemetery informed the couple that it could not approve depictions of wedding rings and the Supreme Court on the headstone because this conflicts with teachings of the Church. In 2015, National Catholic Reporter named Bourke and De Leon "persons of the year" for "their historic roles as plaintiffs in Obergefell v. Hodges and for their faithful public witness as gay Catholics."

Wedding Artists Challenge City's Public Accommodation Anti-Discrimination Ordinance

Two owners of an upscale hand painting and calligraphy business filed suit in an Arizona state court yesterday challenging the provision in the Phoenix city code, adopted in 2013, that bars public accommodations from discriminating on the basis of sexual orientation or gender identity. The 88-page pre-enforcement complaint (full text) in Brush & Nib Studio, LC v. City of Phoenix, (AZ Super. Ct., filed 5/12/2016), contends that plaintiffs' free speech, free exercise and equal protection rights are infringed by requiring them to produce wedding invitations and similar wedding art for same-sex marriages. It also asserts that the statutory provision barring advertisements or notices that suggest discriminatory practices prevents plaintiffs from explaining their religious and artistic reasons for refusing to create custom art for same-sex weddings. An ADF press release announced the filing of the lawsuit.

Lawsuit Challenges Mississippi's New Freedom of Conscience Law

ACLU of Mississippi announced yesterday that it has filed suit against the state's Registrar of Vital Records on its own behalf and on behalf of a same-sex couple challenging recently enacted Mississippi H.B. 1523, the Freedom of Conscience From Government Discrimination Act.  While the Act broadly protects various actions of government and private businesses based on religious or moral beliefs that marriage is a union of one man and one woman, that sexual relations should be reserved to heterosexual marriage, or that gender is an immutable characteristic determined at birth (see prior posting), the lawsuit largely focuses on provisions allowing county clerks to recuse themselves from issuing marriage licences. The complaint (full text) in Alford v. Moulder, (SD MS, filed 5/9/2016) seeks declaratory and injunctive relief that the law violates the equal protection and due process clauses of the 14th Amendment.  It argues that the requirement for the Registrar of Vital Records to keep a list of those who have opted out of performing same-sex marriages amounts to creation of a "no-same-sex couples allowed" list.  Alluding to the other provisions of the law, the complaint adds:

HB 1325 subjects same-sex married couples in Mississippi to a lifetime of potentially humiliating denials of ordinary assistance and places a badge of inferiority upon their marriages each time they celebrate one of the ordinary incidents of family life.

Judicial Inquiry Commission Files Complaint Against Alabama CJ

As reported by AP, the Alabama Judicial Inquiry Commission yesterday filed a Complaint (full text) against Alabama Supreme Court Chief Justice Roy Moore contending that Moore abused his authority and acted in violation of the Code of Judicial Ethics when in January he issued an administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples. (See prior posting.)  Moore's action ignored federal court orders to the contrary.

Church Sues Over Misrepresentation of Its Views On Same-Sex Marriage

A Hudsonville, Michigan church this week filed a false-light invasion of privacy lawsuit in Michigan state court against a gay rights activist whom it accuses of falsely representing that the church supports same-sex marriage. The complaint (full text) in Jenison Bible Church, Inc. v. VanderLey, (MI Cir. Ct., filed 5/3/2016), contends that when Bradlee Dean, a controversial Christian speaker opposed to same-sex marriage, was scheduled speak in the area, defendant Daniel VanderLey arranged a demonstration against him and sought to have local churches join it.  VanderLey sent demand letters to local churches, including Jenison Bible Church, telling them that unless they affirmatively opted out, VanderLey would arrange to have a sign saying that the church "stands for love not hate" displayed at the anti-Bradlee Dean rally.  The complaint contends that this public distortion of Jenison Bible Church's views on same-sex marriage and sexual immorality negatively impacts its ability to share the Gospel and damages its reputation in the eyes of other churches, it neighbors, and those potentially interested in joining the church. The suit seeks an injunction, a published retraction and a public apology. [Thanks to Brian D Wassom for the lead.]

Colorado Supreme Court Denies Review In Case of Baker Who Refused Wedding Cake For Gay Couple

According to yesterday's Denver Post, the Colorado Supreme Court has denied review in the widely watched case of  Craig v. Masterpiece Cakeshop, Inc. In the case, the state court of appeals affirmed a decision of the Colorado Civil Rights Commission that a bakery's refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law, and that the Commission's cease and desist order does not infringe the bakery owner's free exercise or free speech rights. (See prior posting.)

Louisiana Governor Rescinds Earlier Executive Order Protecting Discrimination Against Gay Couples

Last week, Louisiana Governor John Bel Edwards signed Executive Order No. JBE 2016-11 (April 13, 2016) (full text) barring state agencies and offices from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, political affiliation, disability or age.  The executive order also requires that all state contracts include a similar provision barring the contractor from discriminating. However, this does not apply to contracts with religious organizations or religious educational institutions.  The order rescinds an executive order issued last year by then-governor Bobby Jindal prohibiting the denial of benefits or government contracts to anyone who acts in accordance with a religious belief that marriage should be only between one man and one woman. (See prior posting.) [Thanks to Blog from the Capital for the lead.]

6th Circuit Dismisses County Clerk's Suit As Moot

In Miller v. Davis, (6th Cir., April 19, 2016), the U.S. 6th Circuit Court of Appeals dismissed as moot the appeal by Rowan County, Kentucky, Clerk Kim Davis seeking a preliminary injunction against a requirement that she issue marriage licenses to same-sex couples in violation of her religious beliefs.  The court said:

On December 22, 2015, the newly-elected Governor of Kentucky issued an executive order revising Kentucky's marriage license form to eliminate the need for the name and signature of the county clerk. Davis's counsel issued a press release stating that the revised form will permit Davis and the other county clerks "to do their jobs without compromising religious values and beliefs."

The Louisville Courier-Journal reports on the decision.

Texas Supreme Court Dismisses Attempt To Void Early Same-Sex Marriage

As reported by the Austin Statesman, the Texas Supreme Court today unanimously dismissed as moot a petition for mandamus filed by Texas Attorney General Ken Paxton seeking to invalidate a same-sex marriage performed in the state four months before the U.S. Supreme Court decided the Obergefell case creating marriage equality throughout the United States.  However in the Texas case, In re State of Texas, (April 15, 2016), Justice Willett in a concurring opinion joined by Justice Devine (full text) took the lower court to task for ignoring a procedural statute in Texas that requires Texas courts to notify the attorney general of state constitutional challenges and give the state 45 days to weigh in before the case is decided. Justice Brown in a concurring opinion joined by Justice Devine (full text) argued that the trial court procedurally should not have used the device of a temporary restraining order to allow the same-sex marriage to go forward, after which plaintiffs dismissed their lawsuit. [Thanks to How Appealing for the lead.]

Chinese Court In First Ruling of Its Kind Rejects Same-Sex Marriage

A court in China yesterday ruled that same-sex marriages are not legal.  As reported by the New York Times, this is the first case of its kind adjudicated in China.  In a decision handed down a few hours after the hearing, the court upheld a decision by the civil affairs bureau in Changsha, Hunan Province, to deny Sun Wenlin and Hu Mingliang a marriage license.  The two men plan an appeal.

1st Circuit Applies Obergefell To Puerto Rico

In In re Conde-Vidal, (1st Cir., April 7, 2016), the U.S. 1st Circuit Court of Appeals repudiated the holding by a federal district court in Puerto Rico (see prior posting) that the Supreme Court's Obergefell marriage equality decision does not bind Puerto Rico.  The appeals court said in part:

The district court's ruling errs in so many respects that it is hard to know where to begin....

In ruling that the ban is not unconstitutional because the applicable constitutional right does not apply in Puerto Rico, the district court both misconstrued that right and directly contradicted our mandate. And it compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course.

Error of this type is not so easily insulated from review. This court may employ mandamus jurisdiction when a district court has misconstrued or otherwise failed to effectuate a mandate issued by this court....

[T]he case is remitted to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly....

LifeSite News reports on the opinion.

Norway's State Church Approves Same-Sex Marriage

According to Fox News, Norway's state church-- the Evangelical Lutheran Church-- voted on Monday to approve same-sex marriages.  It will adopt procedures to implement the decision at next year's church synod. While 88 of the synod's 115 members voted in favor of the proposal, the resolution also allows objecting clergy to refrain from performing same-sex ceremonies.

Mississippi Legislature Sends Governor Broad "Freedom of Conscience" Bill

The Mississippi Legislature today gave final passage to H.B. 1523 (full text) and (adopted amendment). Titled Protecting Freedom of Conscience From Government Discrimination Act, the bill passed the Senate by a vote of 32-17 House by a vote of 69-44.

The statute, one of the broadest to date enacted by states, protects three separate beliefs if held on religious or moral grounds: (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.

The statute protects from any kind of adverse state action a religious organization that on one of these bases refuses to solemnize a marriage or refuses to provide services, accommodations, goods or facilities for a marriage.  It also allows religious organizations to use these beliefs in making employment decisions or decisions regarding the sale, rental or occupancy of housing facilities, or in providing adoption or foster care services.

The statute protects from adverse government action any adoptive or foster parents who guide or raise a child consistent with these beliefs.  It protects any person who refuses provide counseling or fertility services or treatment because of these beliefs (except for emergency medical treatment).

The statute goes on to protect anyone who refuses to provide specific kinds of wedding-related services because of these beliefs, including photography, wedding planning, printing, floral arrangements, dress making, hall or limousine rental or jewelry sales and services.  It also protects any person who imposes sex-specific policies based on these beliefs on students or employees or regarding access to rest rooms, locker rooms and showers.

The statute goes on to protect state employees who speak out on these issues in their private capacity or in the workplace to the extent other political, moral or religious beliefs can be expressed. It allows county clerks to recuse themselves from issuing marriage licences consistent with these beliefs, and allows judges and others to refuse to perform same-sex marriages.

According to CBS News, Republican Gov. Phil Bryant so far refuses to say whether or not he will sign the bill into law.

Virginia Governor Vetoes "Religious Freedom" Bill As Discriminatory

As he had promised, Virginia Governor Terry McAuliffe, a Democrat, yesterday vetoed Senate Bill 41 that protected clergy, religious and religiously affiliated organizations and their employees and volunteers acting in the scope of their employment from being required to participate in the solemnization of any marriage or from receiving adverse treatment of any kind by the state because the person acted on the basis of a sincere religious or moral belief that marriage should be only the union of one man and one woman. (See prior posting.) In his veto message (full text), McAuliffe described the bill as one that shields "those who actively discriminate against same-sex couples" from civil liability.  McAuliffe said in part:

Although couched as a “religious freedom” bill, this legislation is nothing more than an attempt to stigmatize.  Any legitimate protections  ... are duplicative of the First Amendment ...; Article I, Section 11 of the Constitution of Virginia; and the Virginia Religious Freedom Restoration Act.  Any additional protections are styled in a manner that prefers one religious viewpoint—that marriage can only validly exist between a man and a woman—over all other viewpoints.  Such a dynamic is not only unconstitutional, it equates to discrimination under the guise of religious freedom.

This legislation is also bad for business and creates roadblocks as we try to build the new Virginia economy.

Washington Times reports on the governor's action.

Wedding Chapel That Objects To Performing Same-Sex Ceremonies Lacks Standing For Most of Its Challenges

In 2014, two Christian ministers and their wedding chapel known as the Hitching Post brought suit in an Idaho federal district court to enjoin the city of Coeur d'Alene from enforcing its LGBT anti-discrimination ordinance against them, and for damages. In Knapp v. City of Coeur d'Alene, (D ID, March 25, 2016), the court held that because the city conceded within a week of the filing of the lawsuit that the religious chapel is exempt from the anti-discrimination law, plaintiffs lack standing to seek an injunction.  At most the chapel can sue for lost business on the one day after same-sex marriages became legal that it was closed out of fear it would be required to perform same-sex marriages.  The court did not reach the merits of whether plaintiffs' free speech, free exercise, equal protection and due process rights were in fact infringed on that day. (See prior related posting.)

UPDATE: The suit was eventually settled by the city paying plaintiffs $1000. (CDA Press, May 3, 2016).

Florida Governor Signs Pastor Protection Act

On March 10, Florida Governor Rick Scott signed HB 43, known as the Pastor Protection Act. (Full text) (Bill history).  The new law protects clergy as well as churches, religious organizations and their employees from liability or penalties for refusing to solemnize a marriage or refusing to provide goods, services, or facilities related to the marriage solemnization or celebration where doing so would violate a sincerely held religious belief. Liberty Counsel issued a press release on the governor's action.

Virginia Legislature Passes Bill To Protect Clergy and Religious Groups That Object To Same-Sex Marriage; Governor Threatens Veto

Yesterday the Virginia General Assembly gave final passage to S.41 (full text) that protects clergy, religious and religiously affiliated organizations and their employees and volunteers acting in the scope of their employment from being required to participate in the solemnization of any marriage or from receiving adverse treatment of any kind by the state because the person acted on the basis of a sincere religious or moral belief that marriage should be only the union of one man and one woman. As reported by the Washington Blaze, Virginia Gov. Terry McAuliffe has said he would veto the bill.  It should be noted that the language of the bill requires careful reading to avoid misinterpreting it as being broader than it is.  Section B. of the bill applies its protection to any "person," but that is limited by the narrow definition of "person" in Section A. The president of the Family Foundation of Virginia accurately, albeit not totally objectively, described the scope of the bill:

This legislation balances the recently discovered right to whatever definition of marriage you want with our nation’s longstanding principle of religious free exercise by ensuring that the heavy hand of government cannot penalize clergy or religious charities simply because of beliefs about marriage.