Second Broad Challenge To Austin's Anti- Discrimination Ordinances Filed

Following a federal court lawsuit filed last week by churches challenging Austin, Texas' ban on employment discrimination (see prior posting), a broader lawsuit has been filed in state court challenging the application of Austin's public accommodation, housing and employment discrimination ordinances to any individual or business that has religious objections to homosexual or transgender behavior.  The complaint (full text) in Texas Values v. City of Austin, (TX Dist. Ct., filed 10/8/2018) asks the court to declare that the ordinances violate Texas Religious Freedom Restoration Act and the Texas Constitution

to the extent that they: (a) prohibit individuals and entities from refusing to hire or retain practicing homosexuals or transgendered people as employees for reasons based in sincere religious belief; (b) prohibit individuals and entities from refusing to rent their property to tenants who are engaged in non-marital sex of any sort, including homosexual behavior, for reasons based in sincere religious belief; (c) prohibit individuals and entities from declining to participate in or lend support to homosexual marriage or commitment ceremonies, for reasons based in sincere religious belief; and (d) prohibit individuals and entities from declining to provide spousal employment benefits to the same-sex partners or spouses of employees, for reasons based in sincere religious belief; (e) prohibit individuals and entities from establishing sex-specific restrooms and limiting them to members of the appropriate biological sex, for reasons based in sincere religious belief.

Austin Statesman reports on the lawsuit.

UK Supreme Court Rules In Favor of Baker Who Refused To Supply Cake Supporting Gay Marriage

In a widely followed case, the United Kingdom Supreme Court today ruled in favor of Christian bakers in a case that became particularly high profile after the U.S. Supreme Court's Masterpiece Cakeshop decision.  In Lee v. Ashers Baking Company Ltd, (UKSC, Oct. 10, 2018), the court framed the question-- which arose under anti-discrimination provisions in the law of Northern Ireland-- as follows:

The substantive question in this case is whether it is unlawful discrimination, either on grounds of sexual orientation, or on grounds of religious belief or political opinion, for a bakery to refuse to supply a cake iced with the message “support gay marriage” because of the sincere religious belief of its owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God.

Rejecting the claim that the bakery engaged in direct discrimination on the basis of sexual orientation, the court said in part:

The reason for treating Mr Lee less favourably than other would-be customers was not his sexual orientation but the message he wanted to be iced on the cake. Anyone who wanted that message would have been treated in the same way.... By definition, direct discrimination is treating people differently....

In a nutshell, the objection was to the message and not to any particular person or persons....

Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity, to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope.

The court also rejected the contention that the bakery had discriminated against Mr. Lee on the basis of his political opinion:

The objection was not to Mr Lee because he, or anyone with whom he associated, held a political opinion supporting gay marriage. The objection was to being required to promote the message on the cake. The less favourable treatment was afforded to the message not to the man.... The situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.

The court went on to hold that were the bakery required to furnish the cake, it would violate the owners' freedom of conscience and free expression rights protected by Articles 9 and 10 of the European Convention on Human Rights. The court gave a broad interpretation to the rights:

[T]here is no requirement that the person who is compelled to speak can only complain if he is thought by others to support the message. Mrs McArthur may have been worried that others would see the Ashers logo on the cake box and think that they supported the campaign. But that is by the way: what matters is that by being required to produce the cake they were being required to express a message with which they deeply disagreed.

In a Postscript, the court discussed the U.S. Supreme Court's Masterpiece Cakeshop opinion.  The court also issued a Press Summary of the opinion. Irish Times reports on the decision.
[Thanks to Marty Lederman and Seth Tillman via Religionlaw for the lead.] [This post has been updated to eliminate the statement that this case was "analogous" to Masterpiece Cakeshop.]

Alaska Borough's Invocation Policy Held Unconstitutional

KBBI News reports that an Alaska state trial court judge yesterday in Hunt v. Kenai Peninsula Borough (complaint) held that the Kenai Peninsula Borough's invocation policy violates the Establishment Clause of the Alaska Constitution.  The Borough implemented a policy that allows only representatives of pre-approved religious organizations to offer invocations at meetings of the Kenai Peninsula Borough Assembly. The move came after a member of the Satanic Temple offered an invocation that ended with "Hail Satan."

Churches Sue For Exemptions From City's Employment Non-Discrimination Ordinance

A Texas-based organization of churches has filed suit against the city of Austin claiming that the city's non-discrimination ordinance violates member churches' federal and state constitutional rights and Texas' Religious Freedom Restoration Act. The complaint (full text) in U.S. Pastor Council v. City of Austin, (WD TX, filed 10/6/2018), contends that the Austin ordinance which bans employment discrimination on the basis of sex, sexual orientation or gender identity infringes the rights of churches that will not hire women as senior pastors or which will not hire practicing homosexuals or transgendered individuals for any church position.  The only religious exemptions set out in the Austin ordinance are for religious institutions' hiring on the basis of religion.  The complaint declares that objecting churches "rely on the Bible rather than modern-day cultural fads for religious and moral guidance." KXAN News reports on the decision.

EEOC Sues Over Religious Objections To Flu Shot

The EEOC announced last week that it has filed suit against Saint Thomas Rutherford Hospital in Murfreesboro, Tennessee, for requiring an employee of the contractor providing food and environmental services to have a flu shot if the employee wished to continue to work there. The employee refused on religious grounds.  In prior years accommodation was provided by allowing employees to wear a protective mask instead.

Certiorari Denied In Suspension of Oregon Judge Who Refused To Perform Same-Sex Weddings

The U.S. Supreme Court today denied review in Day v. Oregon Commission on Judicial Ethics, (Docket No. 18-112), certiorari denied 10/9/2018). (Order List.)  In the case, the Oregon Supreme Court suspended Judge Day from office without pay for three years on six different charges, one of which was refusing to solemnize same-sex marriages. (See prior posting.) The petition for certiorari included the following among the questions presented:

Whether the Oregon Supreme Court, and certain Oregon ethical rules, violated the Free Exercise and Free Speech clauses of the First Amendment when he declined, on the basis of his sincerely-held religious beliefs,to perform the non-mandatory judicial function of solemnizing same-sex marriages.

Other filings in the case with the Supreme Court are available from the online docket.

Street Preacher's Suit Against Police Survives Dismissal Motion

In Craft v. Wright, (D NM, Sept. 26, 2018), a New Mexico federal district court refused to dismiss a street preacher's 1st and 4th Amendment claims against Hobbs, New Mexico police officials. The court concluded that plaintiff Al-Rashaad Craft was arrested without probable cause for assault and battery and disorderly conduct after an incident described as follows:

[Craft] was standing in the public square ... preaching a religious sermon, recording himself while doing so.... Susan Stone, began yelling at him, using obscenities, and waving a lighter only inches from Craft’s face and in front of the camera that Craft had set up to record his sermon.... Craft ignored the woman, but when he started to read from his Bible, Stone struck Craft in the face with his Bible.... In response, Craft pushed the woman away, and she lost her balance and fell.... Stone got up and continued to shout obscenities at Craft, walking in circles around him, smoking, and waving her lighter; she appeared intoxicated, which Craft later reported to the police.

No Immunity For Order That Kept Plaintiff Away From Her Church

In Krupien v. Ritcey, (MA App., Sept. 26, 2018), a Massachusetts appellate court held that officials of the state-run Chelsea Soldiers' Home do not have qualified immunity in a suit against them under the Massachusetts Civil Rights Act alleging free exercise infringement.  The multi-building campus on which the Home was located included a chapel open to the public.  The lawsuit grew out of a stay-away directive issued during the investigation of a complaint that Teresa Krupien injured her co-worker's wrist while transferring a patient from a bed to a wheelchair. Until modified, the order to keep off the campus prohibited Krupien from attending her church for 37 days, including Christmas. the court concluded that reasonable officials would have known that the order was not narrowly tailored.

Recent Prisoner Free Exercise Cases

In Young v. John, 2018 U.S. Dist. LEXIS 163439 (CD CA, Sept. 24, 2018), a California federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 163470, Aug. 14, 2018) and dismissed an inmate's claim that his free exercise rights were infringed by the chaplain's twice interrupting Nation of Islam services and threatening to cancel them.

In Walker v. Director., Texas Department of Criminal Justice- Correctional Institutions Division, 2018 U.S. Dist. LEXIS 163582 (ED TX, Sept. 24, 2018), a Texas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 164341, Aug. 9, 2018) and dismissed a Muslim inmate's complaint that the prison served inmates observing Ramadan insufficient calories.

In Cary v. Stewart, 2018 U.S. Dist. LEXIS 163938 (ED MI, Sept.25, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 164358, Aug. 17, 2018), and refused to dismiss a complaint by an inmate who follows Native American Traditional Ways that his possession of herbs is being wrongly restricted in violation of the Free Exercise clause. Various other claims were dismissed.

In Dyer v. Osterhout, 2018 U.S. Dist. LEXIS 163936 (ED MI, Sept. 25, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 165340, May 8, 2018), and allowed a Jewish female inmate to move ahead with her free exercise challenge to the cancellation of Jewish religious services for several months, as well as her retaliation claim, but dismissed claims under RLUIPA and other 1st, 8th and 14th Amendment claims.

In Rivera v. Raines, 2018 U.S. Dist. LEXIS 164284 (SD IL, Sept. 25, 2018), an Illinois federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 164298, Sept. 5, 2018) and allowed an inmate to move ahead with his free exercise claim alleging that prison officials did not allow Nation of Gods and Earths to conduct religious services.

In Heikkila v. Kelley, 2018 U.S. Dist. LEXIS 163562 ED AR, Sept. 25, 2018), an Arkansas federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 164411, Aug. 27, 2018) and dismissed a Native American inmate's complaint that his request to construct and use a sweat lodge was denied.

In Jones v. Sherman, 2018 U.S. Dist. LEXIS 164649 (EDCA, Sept. 25, 2018), a California federal magistrate judge recommended dismissing an inmate's complaint that he received only one meal for dinner on Yom Kippur, when he was told he would receive two meals.

South African Court Finds Online Postings To Be Hate Speech

In South African Human Rights Commission v. Khumalo, (S. Africa Equality Ct, Oct. 7, 2018), a South African Equality Court held that anti-White statements made on through Facebook and Twitter by Velaphi Khumalo, a youth sports officer, qualify as Hate Speech under Sec. 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000.  One of Khumalo's posts read in part: "I want to cleans this country of all white people. we must act as Hitler did to the Jews." The court summarized its holding:

[S]ection 10 must be understood as an instrument to advance social cohesion. The "othering" of whites or any other racial identity, is inconsistent with our Constitutional values. These utterances, in as much as they, with dramatic allusions to the holocaust, set out a rationale to repudiate whites as unworthy and that they ought deservedly to be hounded out, marginalised, repudiated, and subjected to violence in the eyes of a reasonable reader, could indeed, be construed to incite the causation of harm in the form of reactions by Blacks to endorse those attitudes, reactions by Whites to demoralisation and rachet up the invective by responding in like manner, and thus by such developments, on a large enough scale, derail the transformation of South African Society.

The court enjoined Khumalo from repeating his speech and ordered him to apologize to all South Africans, ordered him to pay costs, and referred the case to the public prosecutor for possible further action. Another action in a different court had already ordered the payment of damages. News24 reports on the decision.

Anti-Gay Marriage Amendment to Romanian Constitution Fails

In Romania, voters have failed to approve a proposed constitutional amendment that would have enshrined a ban on same-sex marriage into the constitution.  As reported by the Washington Post and Reuters, the two-day referendum failed to generate the 30% turnout needed for passage of the measure.  Only 20.4% of the voters cast ballots for the measure that was backed by the Social Democrat Party and the Orthodox church. According to the Post:

The referendum itself did not give voters a choice to vote in favor of allowing same-sex marriage, but only whether the constitutional definition of a “family” should continue to be gender-neutral. Either way, the result would not have had an immediate legal impact, but may have prevented possible future court rulings in favor of same-sex marriage or same-sex civil union.

But as a growing number of government critics urged Romanians to boycott the vote, the same-sex marriage referendum also became a de facto confidence vote over the Social Democratic government. The ruling party has repeatedly shocked domestic and international observers with corruption scandals and attempts to disrupt the rule of law that triggered large protests across the country.

Senate Hearing On International Religious Freedom

On Oct. 2, the U.S. Senate Judiciary committee held a hearing on Threats to Religious Liberty Around the World.  Transcripts of the witnesses' testimony and a video of the entire hearing are available on the committee's website.

Pastor Convicted of Sex Assault During Exorcism

The Minneapolis Star Tribune reports on last week's criminal sexual conduct conviction by a Minnesota state trial court jury of Morris Freeman, pastor of Grace Mountaineer Tabernacle Church. He was charged with sexually assaulting an unconscious woman while claiming to be exorcising a demon from her body. Sentencing is set for Nov. 9.

Recent Articles of Interest

From SSRN:

• Nomi Maya Stolzenberg, From Eternity to Here: Divine Accommodation and the Lost Language of Law, (USC Law Legal Studies Paper No. 18-2 (2018)).
• Patrick McKinley Brennan, Forgiveness No Matter What: Justice and Love Among Equals, (September 2018).
• Ioana Cismas, The Position of the Organization of Islamic Cooperation on Abortion: Not Too Bad, Ugly, or Just Confusing?, (Marie Juul Petersen and Turan Kayaoglu (eds), The Organization of Islamic Cooperation and Human Rights: The Good, the Bad, and the Ugly (University of Pennsylvania Press, 2018 Forthcoming)).
• Dana Phillips, Ishaq v Canada: 'Social Science Facts' in Feminist Interventions, (Windsor Yearbook of Access to Justice, Vol. 35, 2018).
• Joel Harrison, The Problem and the Promise of Religious Liberty, (Forthcoming, Paul Babie, Neville Rochow, and Brett Scharffs (eds), Freedom of Religion or Belief: Creating the Constitutional Space for Other Fundamental Freedoms (Edward Elgar)).
• Aliza Cover, The Pope and the Capital Juror, (Yale Law Journal Forum (Forthcoming)).
• Kyriaki Topidi, The Unfinished Education: Power, Religion and Education Struggles in Multicultural Israel, (Normative Pluralism and Human Rights: Social Normativities in Conflict, ed. by Kyriaki Topidi, Routledge, 2018).
• Muhammad Ahmad, Revisiting the Discourse on Islam and Human Rights, (Kardan Journal of Social Sciences and Humanities, 1:1 (2018), 93-99).

From SmartCILP:

• Albert C. Lin, Pope Francis' Encyclical on the Environment as Private Environmental Governance. 9 George Washington Journal of Energy & Environmental Law 33-44 (2018).
• Alex Deagon, Liberal Secularism and Religious Freedom in the Public Space: Reforming Political Discourse, 41 Harvard Journal of Law & Public Policy 901-934 (2018).
• Symposium, 46 Capital University Law Review, No.. 3, Summer, 2018.
• Responses to Early Drafts of Religious Freedom in an Egalitarian Age. Contributions by Nelson Tebbe, Alan Brownstein, Patricia Marino, Andrew Koppelman. 31 Journal of Civil Rights & Economic Development 1-130 (2018).
• Donald L. Beschle, No More Tiers? Proportionality as an Alternative to Multiple Levels of Scrutiny in Individual Rights Cases, 38 Pace Law Review 384-436 (2018).

Recent Prisoner Free Exercise Cases

In Cary v. Unknown Phol, 2018 U.S. Dist. LEXIS 161038 (WD MI, Sept. 20, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 161103, July 2, 2018) and dismissed a Native American inmate's complaint that he was deprived of his medicine bag while he was in administrative segregation.

In Williams v. Delaware County Board of Prison Inspectors, 2018 U.S. Dist. LEXIS 161342 (ED PA, Sept. 20, 2018), a Pennsylvania federal district court allowed a Muslim inmate to move ahead with his complaint regarding access to religious services, inability to wear his kufi outside his cell, and inability to speak with an Imam.

In California Department of State Hospitals v. A.H., 2018 Cal. App. LEXIS 838 (CA App., Sept. 21, 2018), a California appellate court rejected a religious defense to an order for involuntary administration of antipsychotic medication.

In Keystone v. Ponton, 2018 U.S. Dist. LEXIS 161505 (WD VA, Sept. 21, 2018), a Virginia federal district court dismissed a claim by a Mennonite inmate that he did not receive a diet compatible with his religious beliefs.

In Stewart v. Jackson, 2018 U.S. Dist. LEXIS 162473 (ND IN, Sept. 21, 2018), an Indiana federal magistrate judge allowed an inmate to file an amended complaint alleging religious discrimination when the chaplain refused to take him off the halal diet after he informed the chaplain that he had diabetes and could not continue Ramadan.

In Firewalker-Fields v. Lee, 2018 U.S. Dist. LEXIS 162565 (WD VA, Sept. 24, 2018), a Virginia federal district court allowed a Sunni Muslim inmate to move ahead with his complaint that Muslim inmates in segregation are not allowed to congregate for prayer, even by television programming, on Fridays and can only observe televised nondenominational Christian programs on Sundays.

In Gonzalez v. Rivera, 2018 U.S. Dist. LEXIS 162371 (ED AR, Sept. 21, 2018), an Arkansas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 163054, Aug. 17, 2018) and dismissed an inmate's complaint that he was not permitted to attend a Catholic Easter meal and was not given meal provisions for a Good Friday fast.

Recent Articles of Interest

From SSRN:

• Faisal Kutty, Blasphemy and Apostasy 'Laws' in the Muslim World: A Critical Analysis, (Research Handbook on Islamic Law and Society (Nadirsyah Hosen, ed., Forthcoming)).
• Bruce Ledewitz, The Resurrection of Trust in American Law and Public Discourse, (Duquesne University Law Review, Vol. 56, 2018; Duquesne University School of Law Research Paper No. 2018-16).
• D. A. Jeremy Telman, Originalism as Fable (Reviewing Eric Segall, Originalism as Faith), (August 29, 2018).
• Maliheh Zare, Creating Laws for Economic Growth in a Hybrid Islamic Legal System, (Southern California Interdisciplinary Law Journal, Forthcoming).
• Gila Stopler, How Could Religious Liberty Be a Human Right: A Reply to Andrew Koppelman, (Forthcoming in 16(3) INT’L J. CONST. L.).
• Joni Hersch & Blair Bullock, The Law and Economics of Employment Discrimination Law, (Vanderbilt Law Research Paper No. 18-41 (2018)).
• Giancarlo Anello, The Phenomenology of Arnaldo Bertola: Legal Categories, Cognitive Interests, Religious Habits, and Their Interaction into the Life of an Italian Colonialist, (July 1, 2018).
• Susanne Lilian Gössl, Open Issues in European International Family Law: Sahyouni, 'Private Divorces' and Islamic Law Under the Rome III Regulation, (The European Legal Forum 2017, pp. 68-74).
• Katie R. Eyer, Statutory Originalism and LGBT Rights, (Wake Forest Law Review, Forthcoming).
• Maliheh Zare, Creating Laws for Economic Growth in a Hybrid Islamic Legal System, (Southern California Interdisciplinary Law Journal, Forthcoming).

Dean's Contract Claim Not Barred By Ministerial Exception

In Sumner v. Simpson University, (CA App., Sept. 25, 2018), a California appellate court summarized its holding in a case brought by the former dean of Tozer Seminary who was terminated for insubordination:

[T]he trial court correctly concluded that Simpson University is a religious organization and that Sumner is a minister for purposes of the ministerial exception, but that her contract cause of action is not foreclosed by the ministerial exception. Defendants have failed to show that resolution of Sumner’s contract claim would excessively entangle the court in religious matters. However, her tort causes of action are part and parcel of the actions involved in her termination, and are therefore barred by the ministerial exception.

Suit Against Vatican Seeks Release of Names of Sex Offenders

A lawsuit was filed this week in a California federal district court seeking an injunction to require the Vatican to release to the public and law enforcement authorities the names of perpetrators involved in more than 3,400 credible cases worldwide of sexual misconduct with children, as well as the names of those previously convicted.  The complaint (full text) in Vega v. Holy See, (CD CA, filed 10/3/2018), charges that the Vatican has created a public nuisance, saying in part:

Defendant Holy See has created and exposed the public to these unsafe conditions continuously and on an ongoing basis before and since the time that Plaintiff was sexually abused and has continued to expose the public to that unabated threat until the present day.

The complaint also charges private nuisance, violation of California's Business and Professions Code, as well as violation of customary international law of human rights. Washington Post reports on the lawsuit.

5th Circuit: Nation of Gods and Earths Prevails On Prison Treatment

In Tucker v. Collier, (5th Cir., Oct. 3, 2018), the U.S. 5th Circuit Court of Appeals rejected under RLUIPA the Texas Prison System's treatment of adherents of the Nation of Gods and Earths.  Limits were placed on the ability of these adherents to congregate based on the state's categorization of the group as a racially supremacist organization.  The inmate bringing the suit disputed that characterization. The court held that the district court had not satisfied RLUIPA's requirement of an an individualized inquiry into the state's compelling interest and least restrictive means. The court said in part:

The justification for the government’s interest rests on the thin ice of two assumptions with little support in the record: (1) that Tucker and his fellow would-be congregants hold supremacist beliefs; and (2) that allowing this supremacist group to privately congregate threatens prison security. The record shows little evidence that Tucker himself, any other Nation adherent in the Coffield Unit, or even any other inmate in Texas, holds supremacist beliefs. In fact, much of the evidence points to the contrary, showing that Tucker and his fellow Nation adherents advocate racial inclusion and nonviolence....

The government rests its conclusion that Tucker and his friends hold supremacist views on haphazard research about Nation beliefs generally....

Beyond its failure to pass muster under RLUIPA’s individualized analysis, the state’s asserted interest fails for another reason: the policy is underinclusive....

The state knows of the purported link between Odinism and white supremacy in its prisons, and its prison officials admit this point openly.  Still, those groups are allowed to meet. Because the state fails to offer any explanation for this differential treatment, it fails to present sufficient evidence for summary judgment that its interest is compelling....

The state also failed to show that a categorical ban on Nation assembly is the least restrictive means of advancing its interest.

Ban Against Reproductive Choice Discrimination Enjoined As To Defendants With Religious Objections

In Our Lady's Inn v. City of St. Louis, (ED MO, Sept. 30, 2018), a Missouri federal district court enjoined enforcement against plaintiffs of a St. Louis ordinance enacted last year that prohibits discrimination in housing and employment because of a person's reproductive health decisions or pregnancy.  Plaintiffs were a non-profit agency that provides housing to pregnant, low-income women who seek an alternative to abortion; a group of Catholic elementary schools; and a closely held company whose principal owner adheres to Catholic teachings on birth control.

Construing exemptive language of the ordinance narrowly, the court concluded that the ordinance would require businesses to provide health insurance for reproductive services, and that the ordinance would thus be invalid under Missouri's RFRA.  The court went on to invalidate the employment and housing discrimination provisions, finding that they violate the expressive association rights of the women's shelter and the Catholic schools.  The Thomas More Society issued a press release announcing the decision.