3 States' Voters Remove Unenforceable Anti-Gay Marriage Provisions

On Tuesday, voters in three states approved measures recognizing same-sex marriage and eliminating now-unenforceable provisions to the contrary in their state constitutions. 

In California, voters declared marriage to be a fundamental right and repealed a state constitutional provision that defined marriage as a union between one man and one woman. The vote was 61.04% in favor and 38.96% opposed.

In Colorado, voters removed a constitutional provision that only permitted state recognition of marriages between one man and one woman. The vote was 63.88% in favor and 36.12% opposed.

In Hawaii, voters removed a constitutional provision that allowed the legislature to reserve marriage to opposite-sex couples. The vote was 55.99% in favor and 44.01% opposed.

Ballotpedia has additional details.

Ballot Measures to Watch in Tuesday's Elections

Tuesday's elections around the country will feature an unusually large number of ballot measures of particular interest to Religion Clause readers. According to Ballotpedia, there will be eleven proposals on abortion rights:

• Arizona Proposition 139
• Colorado Amendment 79
• Florida Amendment 4
• Maryland Question 1
• Missouri Amendment 3
• Montana CI-128
• Nebraska Initiative 434 and Initiative 439 (competing proposals)
• Nevada Question 6
• New York Proposal 1 (also includes sexual orientation, gender identity and other issues)
• South Dakota Constitutional Amendment G

Voters in three states will cast ballots on repeal of now unenforceable bans on same-sex marriage: California, Colorado, Hawaii. The California proposal would also affirmatively guarantee the right to marry.

Colorado proposal would guarantee the right to school choice and parental control of their children's education. A Kentucky proposal would allow state funding for students in non-public schools. A Nebraska referendum asks voters whether to repeal a state law providing for an educational scholarship program for students in non-public schools.

American United's magazine Church & State discusses Tuesday ballot measures relating to church-state separation that will be presented to voters in eleven states.

Texas Judicial Conduct Commission Withdraws Reprimand of Judge Who Refused to Perform Same-Sex Weddings

As previously reported, in 2019 the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because she refused on religious grounds to perform same-sex weddings, while continuing to perform other weddings. The Commission stated that her conduct cast doubt on her capacity to act impartially to persons appearing before her as a judge.  Hensley sued contending that the Commission's action violated the Texas Religious Freedom Restoration Act as well as her free speech rights. In July 2024, the Texas Supreme Court held that the suit could move forward. (See prior posting.) Now, in Public Statement PS-2024-1, (Sept. 9, 2024), the Commission on Judicial Conduct has withdrawn the prior Public Warning "in light of the decision handed down by the Texas Supreme Court and the underlying facts and evidence...." However, according to a report yesterday by KWTX News, Hensley will continue her lawsuit. Quoting her attorneys, First Liberty Institute:

Unfortunately, Judge Hensley has incurred damages and attorney fees fighting for religious liberty, the Constitution, other judges who feared coming forward and her own reputation. We intend to complete the mission. Other judges who feared retaliation from the Commission and hid in the shadows may now be able to step forward and file their own cases seeking damages up to $10,000, plus costs and fees.

2nd Circuit: Trial Court Must Make Further Findings in Wedding Photographer's Challenge to NY Public Accommodation Law

In Emilee Carpenter, LLC, dba Emilee Carpenter Photography v. James, (2d Cir., July 12, 2024), the U.S. 2nd Circuit Court of Appeals reversed and remanded a New York federal district court's dismissal of a free speech challenge by a wedding photographer to New York's public accommodation law that bars discrimination on the basis of sexual orientation.  The photographer refuses because of her religious and personal beliefs to photograph same-sex weddings.  The court held that the case must be remanded for further fact finding in light of the U.S. Supreme Court's intervening decision in 303 Creative LLC v. Elenis. The court said in part:

... [W]hether Carpenter’s actual wedding photography services constitute expressive conduct is an open threshold question for the district court to consider on remand...

To state a compelled speech claim, it is not enough for a plaintiff to show that the service at issue involves a medium of expression.  The plaintiff must also demonstrate that the expressive activity is her own – that is, she created the expressive content herself or, by compiling or curating third-party content in some forum, she is also engaged in her own expressive activity....

Here, to the extent Carpenter is using her photographs or website to host the expressive content of third parties (such as the wedding couple who hired her), rather than her own, the district court must determine ... whether the law compels Carpenter’s own speech....

Specifically, the court should assess whether Carpenter’s blogging is more akin to, for instance, advertisement than to a service Carpenter offers to the general public, which her customers purchase from her—in other words, whether Carpenter’s blogging is a good or service regulated by New York’s public accommodations laws....

The court rejected the photographer's expressive association, free exercise, Establishment Clause and vagueness claims, saying in part:

Nowhere in her complaint does Carpenter allege that she offers as a service to the public her active religious participation in the weddings that she photographs.  New York’s laws therefore do not require Carpenter to sing, pray, follow an officiant’s instructions, act as a “witness” of the union “before God,” or otherwise participate in any same-sex wedding....

Courthouse News Service and ADF report on the decision. 

Justice of the Peace's Challenge to Reprimand for Refusing Same-Sex Marriage Officiation Is Remanded

 In Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., June 28, 2024), the Texas Supreme Court, in an 8-1 decision, held that a Justice of the Peace may move ahead with her suit brought against members of the Judicial Conduct Commission who issued a formal warning to the Justice of the Peace because of her refusal to perform same-sex marriages. The Justice of the Peace would perform marriages for heterosexual couples, but referred same-sex couples to others that would perform a ceremony for them. She contended that the Commissioners' actions violated the Texas Religious Freedom Restoration Act as well as her free speech rights. The court held that there was no requirement to exhaust administrative remedies before filing suit, nor was the suit against individual commissioners (as opposed to the Commission itself) barred by sovereign immunity.

Justice Blacklock, joined by Justice Devine, filed a concurring opinion, agreeing that as a procedural matter the case can move forward, but said that the Supreme Court should have reached the substantive claims and dismissed them.  He said in part:

There are no victims. There was no crime. We have a Christian justice of the peace in a small Texas city doing her best to navigate her duties to God and to the public. We have no real people even claiming to be harmed by her actions. We certainly have no same-sex couples denied a marriage—or anything even close to that. There is no good reason for this case to exist.

But it does exist. It exists because of the Judicial Conduct Commission, which veered far outside its proper lane by self-initiating this victimless but politically and emotionally charged case. The Commission misinterpreted the Code of Judicial Conduct and violated Judge Hensley’s religious-freedom rights by publicly sanctioning her and by continuing to hold over her head the threat of a future, harsher sanction should she resume her marriage-referral policy. To her credit, Judge Hensley did not capitulate. And for the last several years, the Commission has doubled down again and again on this misbegotten case, all the way to the Texas Supreme Court.

Justice Young filed a brief concurring opinion. Justice Lehrmann filed a dissenting opinion contending that plaintiff failed to exhaust her administrative remedies before filing suit.

First Liberty Institute issued a press release announcing the decision.

4th Circuit: Ministerial Exception Bars Suit by Catholic School Teacher Fired Over Same-Sex Marriage Plans

In Billard v. Charlotte Catholic High School, (4th Cir., May 8, 2024), the U.S. 4th Circuit Court of Appeals held that a Catholic high school teacher's suit alleging sex discrimination in violation of Title VII should be dismissed. The court's majority held that the ministerial exception doctrine defeated the suit by the teacher of English and drama who was not invited back to teach after he announced plans to marry his same-sex partner. The majority, finding that the teacher should be classified as a "minister" for purposes of the ministerial exception, said in part:

[F]aith infused CCHS’s classes – and not only the expressly religious ones.  Even as a teacher of English and drama, Billard’s duties included conforming his instruction to Christian thought and providing a classroom environment consistent with Catholicism.  Billard may have been teaching Romeo and Juliet, but he was doing so after consultation with religious teachers to ensure that he was teaching through a faith-based lens....  The record makes clear that CCHS considered it “vital” to its religious mission that its teachers bring a Catholic perspective to bear on Shakespeare as well as on the Bible.   

Moreover, we note that Billard did – on rare occasions – fill in for teachers of religion classes.... CCHS’s apparent expectation that Billard be ready to instruct in religion as needed is another “relevant circumstance” indicating the importance of Billard’s role to the school’s religious mission.   

Our court has recognized before that seemingly secular tasks like the teaching of English and drama may be so imbued with religious significance that they implicate the ministerial exception.

The majority rejected the school's argument for broadening statutory defenses to the Title VII claim.

Judge King filed an opinion concurring in the result but differing as to rationale. He said in part:

... I would neither reach nor resolve the First Amendment ministerial exception issue on which the majority relies.  I would decide this appeal solely on Title VII statutory grounds, that is, § 702 of Title VII.... [M]y good friends of the panel majority have unnecessarily resolved the appeal on the First Amendment constitutional issue.  In so ruling, they have strayed from settled principles of the constitutional avoidance doctrine and our Court’s precedent.

District Court Enters Final Order in Wedding Website Designer Case

As previously reported, last year the U.S. Supreme Court in 303 Creative LLC v. Elenis held that the 1st Amendment's free speech protection bars Colorado from using its public accommodation anti-discrimination law to require a wedding website designer to design websites for same-sex weddings in violation of her religious beliefs. Now in the case on remand, 303 Creative LLC v. Elenis, (D CO, March 26, 2024), the Colorado federal district court entered a final Order in the case which provides in part:

ORDERED that the First Amendment’s Free Speech Clause prohibits Colorado from enforcing CADA’s Communication Clause to prevent plaintiffs from posting the following statement on her website or from making materially similar statements on her website and directly to prospective clients:  

I firmly believe that God is calling me to this work. Why? I am personally convicted that He wants me – during these uncertain times for those who believe in biblical marriage – to shine His light and not stay silent. He is calling me to stand up for my faith, to explain His true story about marriage, and to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.  

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage – the very story He is calling me to promote.

It is further ORDERED that defendants, their officers, agents, servants, employees, attorneys, and those acting in active concert or participation with them who receive actual notice of this order are permanently enjoined from enforcing:  

a. CADA’s Accommodations Clause to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise to create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same-sex marriage; and  

b. CADA’s Communication Clause to prevent plaintiffs from posting the above statement on her website and from making materially similar statements on her website and directly to prospective clients.

Japanese Appellate Court Says Failure to Recognize Same-Sex Marriage Is Unconstitutional

In Japan yesterday, the Sapporo High Court-- an intermediate appellate court-- held that Japan's refusal to recognize same-sex marriages is unconstitutional.  Japan Today reports on the decision:

The Sapporo High Court upheld the lower court's landmark verdict in 2021 that said non-recognition of same-sex marriage violates the right to equality protected under the Constitution but rejected a total of 6 million yen ($40,600) in damages sought by three same-sex couples in Hokkaido against the state for emotional distress.

The plaintiffs said they will appeal the ruling to the Supreme Court.

The ruling, the first by a high court among six lawsuits filed at five district courts questioning the current laws' unacceptance of same-sex marriage, said the provisions violate not only Article 14 on the right to equality but also Article 24, which says marriage shall be only on the mutual consent of "both sexes."

The court stated for the first time that Article 24 can be understood as also guaranteeing marriage between individuals of the same sexes.

The clause did not anticipate same-sex marriages when the Constitution was enacted but "it should be interpreted against the background where respect for individuals is more clearly considered," Presiding Judge Kiyofumi Saito said in handing down the ruling.

Several district (trial level) courts have ruled on the issue, including a ruling yesterday by a district court in Tokyo saying that lack of some sort of recognition of same-sex couples is "a deprivation of a key part of their personal identity." However, the court said that the Diet has many options for recognizing same-sex partnerships.

Virginia Legislature Passes Symbolic Bill Recognizing Same-Sex Marriages

In Virginia, Governor Glenn Youngkin has until tomorrow to decide whether or not to sign HB 174/ SB 101 (full text) which provides:

No person authorized by § 20-14 to issue a marriage license shall deny the issuance of such license to two parties contemplating a lawful marriage on the basis of the sex, gender, or race of such parties. Such lawful marriages shall be recognized in the Commonwealth regardless of the sex, gender, or race of the parties.

Religious organizations and members of the clergy acting in their religious capacity shall have the right to refuse to perform any marriage.

As reported by Dogwood, the bill was introduced because of concern that the U.S. Supreme Court might overrule its caselaw protecting same-sex marriages. Even if the Governor signs the bill, its impact on same-sex marriages would only be symbolic since the Virginia Constitution Sec. 15-A prohibits recognition of same-sex marriages in the state and would take precedence over the statute if the U.S. Supreme Court returned the issue of recognition of same-sex marriages to the states.

Tennessee Governor Signs Law Allowing Potential Officiants to Refuse to Solemnize a Marriage

Yesterday, Tennessee Governor Bill Lee signed into law HB 878 (full text) which adds to the Tennessee Code section which lists who may solemnize marriages (clergy as well as various current and former public officials) language that provides:

 A person shall not be required to solemnize a marriage.

As originally introduced, the bill would have allowed refusals only by those who had objections based on conscience or religious belief.  CNN reporting on the bill notes that LGBTQ advocates criticized the bill for allowing public officials to discriminate based on their personal beliefs.

Greek Parliament Approves Same-Sex Marriage

The Guardian reports that Greece's Parliament on Thursday, by a vote of 176- 76, legalized same-sex marriage, making Greece the first Christian Orthodox country to do so. The bill has been strongly supported by Greece's Prime Minister Kyriakos Mitsotakis. However, in a provision criticized by LGBT advocacy organizations, the bill denies same-sex couples access to parenthood through surrogacy. The entire bill was strongly opposed by the Orthodox Church, According to The Guardian:

Orthodox bishops had threatened to excommunicate lawmakers who voted for the measure while the leader of the far-right Spartans party had said the law would “open the gates to hell and perversion”.

Pope OK's Non-Marital Blessings for Same-Sex Couples

In a Declaration titled "Fiducia Supplicans: On the Pastoral Meaning of Blessings" (full text) issued by the Vatican's Dicastery for the Doctrine of the Faith and approved by Pope Francis, the Pope has given priests permission to give a blessing to same-sex or other unmarried couples. The Declaration says in part:

31. Within the horizon outlined here appears the possibility of blessings for couples in irregular situations and for couples of the same sex, the form of which should not be fixed ritually by ecclesial authorities to avoid producing confusion with the blessing proper to the Sacrament of Marriage. In such cases, a blessing may be imparted that ... descends from God upon those who—recognizing themselves to be destitute and in need of his help—do not claim a legitimation of their own status, but who beg that all that is true, good, and humanly valid in their lives and their relationships be enriched, healed, and elevated by the presence of the Holy Spirit. These forms of blessing express a supplication that God may grant those aids that come from the impulses of his Spirit ... so that human relationships may mature and grow in fidelity to the Gospel, that they may be freed from their imperfections and frailties, and that they may express themselves in the ever-increasing dimension of the divine love.

32. Indeed, the grace of God works in the lives of those who do not claim to be righteous but who acknowledge themselves humbly as sinners, like everyone else. This grace can orient everything according to the mysterious and unpredictable designs of God. Therefore ... the Church welcomes all who approach God with humble hearts, accompanying them with those spiritual aids that enable everyone to understand and realize God’s will fully in their existence.

Catholic News Service reported on the document, and summarized it as follows:

The Vatican offered a narrow set of conditions under which a priest or deacon could give a blessing to a same-sex or other unmarried couple, making it clear the church does not consider their unions a marriage but also recognizing how anyone can ask for a blessing when they are seeking God's assistance, mercy and grace.

Christian Non-Profit Cannot Rescind Job Offer Because of Same-Sex Marriage

In McMahon v. World Vision, Inc., (WD WA, Nov. 28, 2023), a Washington federal district court held that a Christian non-profit organization violated Title VII and the Washington Law Against Discrimination when it rescinded a job offer originally made to plaintiff after it learned that she was in a same-sex marriage. Plaintiff had been offered the position of customer service representative which involved telephone cultivation of donor relationships. The court held that the religious employer exemption in Title VII only immunizes religious discrimination by such organizations; it does not immunize them from sex discrimination claims. It also held that the ministerial exception doctrine does not apply to the position offered to plaintiff.

Similarly, the rejected the bona fide occupational qualification defense, saying in part:

Nothing in the record indicates that being in a same-sex marriage affects one’s ability to place and field donor calls, converse with donors, pray with donors, update donor information, upsell World Vision programs, or participate in devotions and chapel.

The court went on to find that both Title VII and the WLAD are neutral laws of general applicability so that only rational basis review is required. Finally the court rejected defendants' free speech and expressive association claims.

Texas Supreme Court Hears Oral Arguments from JP Sanctioned for Refusing to Perform Same-Sex Weddings

The Texas Supreme Court yesterday heard oral arguments (video of full oral arguments) in Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., Oct. 25, 2023). (Briefs filed in the case.) In the case, the state Court of Appeals affirmed the dismissal of a suit challenging a public warning issued by the Commission on Judicial Conduct that concluded plaintiff, a justice of the peace, had cast doubt on her ability to act impartially toward LGBTQ litigants. Plaintiff refused to perform same-sex weddings, while continuing to perform weddings for heterosexual couples. She contended that the Commission on Judicial Conduct violated her rights under the Texas Religious Freedom Act. (See prior posting.)  The appeals court held that the suit was an impermissible collateral attack on the Commission's order. Texas Tribune reports on the oral arguments.

New House Speaker Has Long Record of Conservative Advocacy on Religious Freedom Issues

Newly elected Speaker of the U.S. House of Representatives, Mike Johnson (R- LA), has a long record, before he was in Congress, of advocacy on conservative Christian religious issues.  Wikipedia reports:

Before his election to Congress, Johnson was a partner in the Kitchens Law Firm and a senior attorney and national media spokesman for the Alliance Defense Fund, now known as Alliance Defending Freedom. Johnson was also formerly chief counsel of the nonprofit law firm Freedom Guard.

In September 2016, Johnson characterized his legal career as "defending religious freedom, the sanctity of human life, and biblical values, including the defense of traditional marriage, and other ideals like these when they’ve been under assault."

Johnson served as a trustee of the Ethics and Religious Liberty Commission within the Southern Baptist Convention from 2004 to 2012.

Johnson came to some prominence in the late 1990s when he and his wife appeared on national television to represent Louisiana's newly passed marriage covenant laws, which made divorce more difficult legally.

Louisiana House of Representatives

After the 8th District seat was vacated in 2015, Johnson ran for the position unopposed....

In April 2015, Johnson proposed the Marriage and Conscience Act, a bill similar in content to Indiana's controversial Religious Freedom Restoration Act passed a few days earlier, though Johnson denied that his legislation was based on the Indiana law.

Johnson's Marriage and Conscience Act would have prevented adverse treatment by the State of any person or entity on the basis of the views they may hold with regard to marriage. Critics denounced the bill as an attempt to protect people who discriminate against same-sex married couples.

An e-mail statement from First Liberty Institute says that Johnson was also once a First Liberty attorney.

India's Supreme Court Refuses to Recognize Same-Sex Marriage

In Supriyo @ Supriya Chakraborty v. Union of India, (Sup. Ct. India, Oct. 17, 2023), a 5-judge bench of India's Supreme Court, in 4 opinions spanning 366 pages, refused to recognize same-sex marriages, but called on the government to study and implement further rights for same-sex couples. As summarized by BBC News:

The petitioners had argued that not being able to marry violated their constitutional rights and made them "second-class citizens".

They had suggested that the court could just replace "man" and "woman" with "spouse" in the Special Marriage Act - which allows marriage between people from different religions, castes and countries - to include same-sex unions.

The government and religious leaders had strongly opposed the petitions. The government had insisted that only parliament could discuss the socio-legal issue of marriage and argued that allowing same-sex marriage would lead to "chaos" in society.

On Tuesday, the judges agreed with the government, saying that only parliament could make law and the judges could only interpret them.

They accepted Solicitor General Tushar Mehta's proposal on behalf of the government to set up a committee, headed by the country's top bureaucrat, to consider "granting queer couples" rights and privileges available to heterosexual couples.

4th Circuit Hears Oral Arguments on Catholic School's Firing of Teacher Who Entered Same-Sex Marriage

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral arguments (audio of full oral arguments) in Billard v. Charlotte Catholic High School.  In the case, a North Carolina federal district court held that a Catholic high school is liable under Title VII of the 1964 Civil Rights Act for firing a substitute drama teacher after he entered a same-sex marriage and stated on Facebook his disagreement with Catholic teaching on marriage. (See prior posting.) As reported by Reuters, during oral argument the judges pressed the parties on the applicability of the ministerial exception doctrine, even though the school had stipulated that it would not raise the doctrine as a defense in order to avoid protracted discovery on the teacher's job duties.

Kim Davis Assessed $100K Damages In One Case, $0 in Another

Last year, in a long-running case, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. The court said that damages should be assessed by a jury.  (See prior posting.) That case, along with another making similar claims, were recently tired in parallel before two separate juries. In one of the cases-- Yates v. Davis -- the jury yesterday awarded zero damages.  In a second case-- Emold v. Davis-- a different jury awarded $100,000 damages. Liberty Counsel says the decision will be appealed. USA Today reports on the cases.

Bulgaria Violates European Convention by Failing to Recognize Same-Sex Married Couple

In Koilova and Babulkova v. Bulgaria, (ECHR, Sept 5, 2023) (full text of decision in French) (Court's English Summary of decision), the European Court of Human Rights ruled that Bulgaria violated Article 8 of the European Convention on Human Rights (Respect for private and family life) by failing to have a procedure for recognizing or registering a same-sex marriage entered in another country. According to the English language summary of the decision, the Court said in part:

... [I]n the absence of official recognition, same-sex couples were nothing more than de facto unions for the purposes of national law, even where a marriage had been validly contracted abroad. The partners were unable to regulate fundamental aspects of life as a couple such as those concerning property, family matters and inheritance, except as private individuals entering into contracts under the ordinary law, where possible, rather than as an officially recognised couple. They were not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities or with third parties. Even assuming that national law had allowed the applicants to apply to the domestic courts for protection of their basic needs as a couple, the necessity of taking such a step would have constituted in itself a hindrance to respect for their private and family life.

[Thanks to Law & Religion UK for the lead.]

1st Amendment Requires Exemption from Anti-Bias Law for Business That Discriminates Against Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (ED MI, Aug. 21, 2023), a Michigan federal district court held that the city of East Lansing violated the Free Exercise rights of Country Mill Farms and its owner when the city refused to invite Country Mill to be a vendor at East Lansing's Farmer's Market.  The refusal was based on Country Mill's violation of the city's anti-discrimination ordinance in another part of Country Mill's business.  Country Mill rents out a portion of its farm property for weddings, but for religious reason will not rent it out for same-sex weddings. The court held that the discrimination ban was not generally applicable because of exemptions in the anti-discrimination ordinance that would allow the city to do business with firms that discriminate on the basis of sexual orientation. The court concluded in part:

In light of the nondiscretionary and the discretionary exemptions in the ordinance, the City has not demonstrated a compelling interest in excluding Plaintiffs from the Farmer’s Market. The City’s nondiscrimination ordinance tolerates the same discrimination in other situations.

[Thanks to Eugene Volokh via Religionlaw for the lead.]