Court Upholds Military Reprimand To Enlistee For Objecting To Same-Sex Wedding

In Wilson v. James, (D DC, Oct. 13, 2015), the D.C. federal district court dismissed RFRA, 1st and 5th Amendment and various other challenges by an enlisted member of the Utah Air National Guard to letters of reprimand he received for his opposition to a same-sex wedding ceremony held at West Point's chapel.

After reading about the wedding ceremony, Layne Wilson, a Mormon, sent an e-mail using his military account to a major whom he believed to be the chaplain at the U.S. Military Academy, saying in part: "Our base chapels are a place of worship and this [is] a mockery to God and our military core values." His commander issued a letter of reprimand for this, which led to Wilson to rebuke his commander on Facebook, posting: "You embarrass me, our country, and our unit!!!...." That led to a second letter of reprimand and suspension of Wilson's security clearance. Wilson sued, bringing, in the court's words, "a bevy of claims." Rejecting Wilson's RFRA claim, the court said in part:

A substantial burden on one’s religious beliefs—as distinct from such a burden on one’s exercise of religious beliefs—does not violate RFRA....

Admittedly, the First LOR likely chilled Plaintiff’s speech regarding his religious beliefs, especially within the military setting. But nowhere does Plaintiff assert that LDS doctrine requires him to publicly voice his dissent about homosexuality or same-sex marriage.... Plaintiff only contends that, under LDS doctrine, homosexuality is a sin.... His religious belief, however, does not become a protected religious exercise under RFRA simply because Plaintiff expressed it through speech.

Rejecting Wilson's free speech claim, the court held:

An email from an enlisted member of the military that protests the decision of a senior military official outside the sender’s chain of command and urges that official to reverse his decision receives no First Amendment protection.

European Court Hears 4 British Cases On Accommodating Christian Employees' Beliefs

Yesterday the European Court of Human Rights held a Chamber hearing on four cases from the United Kingdom raising issues of religious accommodation.  The cases are Chaplin v. the United Kingdom (application no. 59842/10), Eweida v. the United Kingdom (no. 48420/10), Ladele v. the United Kingdom (no. 51671/10) and McFarlane v. the United Kingdom (no. 36516/10). (Links are to prior postings on each case.) As reported by EurActiv, two of the cases involved Christians women who were not permitted by their employers to wear a cross around their neck. The other two cases involve Christian employees who object on religious grounds to same-sex marriage. One refused to provide counseling to same-sex couples. The other case involves a registrar who refused to officiate at same-sex civil union ceremonies. The European Court has issued a press release describing the cases, and has posted a webcast of the hearing.

New Survey On Religious Refusals To Provide Service and More

On August 1, the Public Religion Research Institute announced the results of its July 2018 Survey on attitudes toward religiously-based service refusals, LGBT rights and other issues of discrimination. Here are some excerpts from its report:

Close to half (46%) of Americans believe that the owners of wedding-based businesses, such as caterers, florists, and bakers, should be allowed to refuse to serve same-sex couples if doing so violates their religious beliefs, while about as many (48%) say these types of businesses should be required to serve same-sex couples. One year earlier, a majority (53%) of the public said wedding-based businesses should be required to serve gay and lesbian couples, while only about four in ten (41%) said they should not.....

Among major religious groups, white evangelical Protestants express the strongest support for allowing wedding businesses to refuse services.

Nearly two-thirds (64%) of the public express support for same-sex marriage. Only 28% of Americans oppose allowing gay and lesbian couples to marry.... More than seven in ten (71%) Americans say they favor laws that would protect lesbian, gay, bisexual, and transgender (LGBT) people against discrimination in employment, housing, and public accommodations....

Relatively few Americans believe Jewish people in the U.S. are experiencing a considerable amount of discrimination. Only 30% say that Jewish people face a lot of discrimination..... Americans are far more likely to say Muslims are experiencing a substantial degree of discrimination in the U.S. More than six in ten (62%) Americans say there is a lot of discrimination against Muslims....

Florida Extends Health and Retirement Benefits To Same-Sex Spouses of State Employees

The Miami Herald reports that Florida officials have decided same-sex spouses of state employees will now be eligible for health insurance and retirement benefits. The rulings in memos from the Department of Management Services and from the State Retirement Director come after court decisions resulted in the legal recognition of same-sex marriage in Florida as of January 6. (See prior posting.)

Federal Lawsuit Challenges Idaho's Refusal To Permit or Recognize Same-Sex Marriage

A suit was filed Friday in an Idaho federal district court challenging the constitutionality of Idaho's laws that exclude same-sex couples from marrying in the state, and refuse to recognize marriages of same-sex couples entered into lawfully elsewhere.  The complaint (full text) in Latta v. Otter, (D ID, filed 11/8/2013), claims that Idaho Const. art. III, § 28 and Idaho Code §§ 32-201 and 32-209 violate the due process and equal protection clauses of the 14th Amendment. The National Center for Lesbian Rights issued a press release on the case. [Thanks to Alliance Alert for the lead.]

Women File Administrative Complaint Over NY Farm's Religious Objections To Hosting Same-Sex Wedding

In New York this month, two Albany women, Jennie McCarthy and Melissa Erwin, have filed a discrimination complaint with the New York Division of Human Rights after Liberty Ridge Farm, a Shcaghticoke (NY) tourist attraction, refused to host the women's same-sex wedding. According to yesterday's Lichtfield County (CT) Register Citizen, Robert and Cynthia Gifford, the farm's owners, have religious objections to same-sex marriage.  Their spokesman argued that "they ought to have the opportunity to say that this is a behavior that they just don’t agree with and they just don’t condone on their privately owned property."  The New York Human Rights Law bars places of public accommodation from discriminating on the basis of sexual orientation.

New Jersey Judge Refuses Stay Pending Appeal of Same-Sex Marriage Ruling

A New Jersey trial court judge yesterday refused to grant a stay pending appeal of her decision that beginning Oct. 21,  New Jersey must extend the right to marry to same-sex couples. (See prior posting.)  According to the New York Times, in her decision Judge Mary C. Jacobson wrote that the state had not shown that is is likely to succeed on appeal, and a stay would delay the ability of same-sex couples to become eligible for federal tax and retirement benefits, spousal coverage under Medicare and the ability to sponsor a non-citizen spouse for residency.  The state immediately appealed the denial of a stay.

UPDATE:  The New Jersey Supreme Court on Oct. 11 issued an order granting a direct expedited appeal of the decision, and also taking jurisdiction over the motion to stay pending appeal. [Thanks to Volokh Conspiracy for the lead,]

Student Paper Publishes Controversial Interview With Mike Huckabee

The College of New Jersey's student news magazine, The Perspective, last week reported on an interview with former Arkansas Governor and Republican Presidential candidate Mike Huckabee. In the interview, Huckabee took strong stands against same-sex civil unions as well as same-sex marriage, and expressed support for an Arkansas law that bars same-sex couples from adopting children or becoming foster parents. Huckabee, now a Fox News celebrity, said he believes an atheist could serve as President: "I'd rather have an honest atheist than a dishonest religious person," he commented. In a statement on Monday, Huckabee criticized the article as distorting and sensationalizing his views. The editor of The Perspective responded to Huckabee's criticism and posted a recording of the interview with Huckabee to counter the claim that Huckabee's statements were sensationalized.

New Jersey Trial Court Says State Equal Protection Guarantee Requires Allowing Same-Sex Marriage; Appeal Planned

In Garden State Equality v. Dow, (NJ Super. Ct., Sept. 27, 2013), a New Jersey State trial court held that after the U.S. Supreme Court's Windsor decision extending federal spousal benefits to same-sex married couples (but not to couples merely in civil unions), the equal protection guaranties of the New Jersey state constitution requires the state to extend the right to marry to same-sex couples. Previously New Jersey only recognized civil unions. The court ordered that its decision not take effect until Oct. 21 in order to give the state time to either effectuate or appeal the ruling. Friday's New Jersey Star-Ledger reports on the decision. According to PolitickerNJ on Friday, a spokesman for New Jersey Governor Chris Christie said that the administration would appeal the ruling to the New Jersey Supreme Court.

New Lawsuit Challenges Nebraska's Ban On Same-Sex Marriage

A lawsuit was filed yesterday in federal district court in Nebraska by 7 couples challenging the constitutionality of Art. I, Sec. 29 of Nebraska's state constitution.  The provision prohibits same-sex couples from marrying and bars recognition of the marriages of same-sex couples performed in other jurisdictions. The complaint (full text) in Waters v. Heineman, (D NE, filed 11/17/2014) contends that the provision violates the due process and equal protection clauses of the 14th Amendment. ACLU announced the filing of the lawsuit. Sioux City Journal has additional background. In 2006, in Citizens for Equal Protection v. Bruning, the 8th Circuit upheld the Nebraska ban.

Missouri Supreme Court Upholds Denial of Survivor Benefits To Patrolman's Same-Sex Partner

The Missouri Supreme Court, in a 5-2 decision this week, upheld the denial of survivor benefits to the same-sex partner of a deceased highway patrolman. In Glossip v. Missouri Department of Transportation, (MO Sup. Ct., Oct. 29, 2013), the court held that since plaintiffs were not challenging the state's constitutional ban on same-sex marriage, the issue is merely whether distinguishing between married and unmarried couples is permissible. The court held that it is; the survivor benefit statute passes "rational basis" scrutiny. Judges Teitelman and Draper dissented, arguing that the survivor benefit statutes intentionally discriminate against gay men and lesbians in violation of the constitutional guarantee of equal protection. Riverfront Times reports on the decision.

Kentucky To Hire Outside Counsel To Defend Its Refusal To Recognize Same-Sex Marriages, Over AG's Dissent

As previously reported, last month a federal district court ordered Kentucky to recognize same-sex marriages performed in other jurisdictions. The state quickly however filed a motion asking for a stay while it considered its options, and last Friday the court granted a stay until March 20. (Louisville Courier Journal). As reported by AP, yesterday Kentucky Attorney General Jack Conway announced that he will not appeal the decision or seek further stays. In a statement (full text) posted on the Attorney General's website, he said that the federal court's decision was correct and that he should not be wasting state resources on a case the state is unlikely to win.  He added that he "came to the inescapable conclusion" that defending Kentucky's refusal to recognize same-sex marriage would be defending discrimination. However moments after the Attorney General's announcement, Kentucky Governor Steve Beshear announced (full text) that the state will hire other counsel to seek a further stay and pursue an appeal to the 6th Circuit in order to "bring certainty and finality to this important matter." [Thanks to Tom Rutledge for the lead.]

9th Circuit Says Same-Sex Marriages Can Go Ahead In Idaho

In what could be the final procedural step in the challenge to Idaho's ban on same-sex marriage, the U.S. 9th Circuit Court of Appeals yesterday issued an order dissolving its prior stay of its decision invalidating the Idaho ban.  According to KVPI News, the court's order provides that the lifting of the stay is effective at 10 a.m. tomorrow, at which time same-sex marriages will be legal in the state.

New Mexico's Attorney General Says Out-of-State Gay Marriages Are Valid In State

New Mexico's Attorney General, in Opinion No. 11-01 (Jan. 4, 2011), has ruled that same-sex marriages which are valid under the law of the state or country where the marriage was consummated are likewise valid in New Mexico. Attorney General Gary King reasoned that while the federal Defense of Marriage Act permits states to prohibit recognition of out-of-state same-sex marriages, New Mexico has not enacted a prohibition on their recognition. Therefore principles of comity codified in New Mexico law, that call for recognition of marriages validly performed elsewhere, control. Even though same-sex marriages cannot be performed in New Mexico, that is not enough to bring them within the exception to the comity principle that applies when a marriage is contrary to the state's public policy. Yesterday's Santa Fe New Mexican reports on the Opinion. [Thanks to Alliance Alert for the lead.]

Kentucky Clerk, Continuing Fight Against Issuing Marriage Licenses To Same-Sex Couples, Gets Short Reprieve

Rowan County, Kentucky Clerk Kim Davis is continuing her battle to obtain a religious exemption from the requirement that her office issue marriage licenses to same-sex couples.  As previously reported, last week a federal district court issued a preliminary injunction requiring her to end her resistance, at least as to the two same-sex couples suing her.  Davis' office has been refusing to issue marriage licences to anyone.  Yesterday in Miller v. Davis, (ED KY, Aug. 17, 2015), the district court refused to stay its injunction while an appeal to the 6th Circuit plays out.  The court found that Davis is not likely to succeed on the merits in the appeal nor is she likely to suffer irreparable harm without a stay. However the court did grant a shorter stay. The court said "realizing that emotions are running high on both sides of the debate," it would grant a stay while Davis appeals the denial of a longer stay during the appeal.

The Lexington Herald-Leader reports on these developments and reactions to them:

"Here in Morehead, we have a fairness ordinance (protecting the civil rights of gays and lesbians) that our city council passed unanimously in 2013," said Mary Hargis, a retired state worker holding a sign that read "Obey the law."

"So to have a county official on her own turn around and negate all that progress by making us look like backward, inbred hillbillies, she's just reinforcing all the stereotypes people had about us...

[Thanks to Tom Rutledge for the lead.]

UPDATE: On Aug. 19, the district court, saying the Federal Rules of Appellate Procedure require it to set an expiration date, issued an order (full text) providing that the stay it issued two days earlier will expire on Aug. 31 unless the 6th Circuit orders something else.

Utah Must Recognize Same-Sex Marriages Performed During 17-Days Before Stay; But This Order Temporarily Stayed Also

In Evans v. State of Utah, (D UT, May 19, 2014), a Utah federal district court granted a preliminary injunction requiring the state of Utah to recognize same-sex marriages solemnized under Utah marriage licenses between Dec. 20, 2013 when a federal district court struck down Utah's ban  on same-sex marriages, and Jan. 6, 2014 when the U.S. Supreme Court granted a stay of that order, pending appeals. The court concluded:

Even though the Supreme Court’s Stay Order put Utah’s marriage bans back in place, to retroactively apply the bans to existing marriages, the State must demonstrate some state interest in divesting Plaintiffs of their already vested marriage rights. The State has failed to do so.

However the court granted a 21-day stay to allow the state to file an emergency motion with the 10th Circuit for review. Fox News reports that Utah's attorney general had not made an immediate determination of whether or not to pursue an appeal. The court's decision affects some 1200 marriages performed during the 17 days involved here.

Challenge To DOMA's Impact on Tax Treatment of Long Term Care Policies Moves Ahead

In Dragovich v. U.S. Department of Treasury, (ND CA, Jan 18, 2011), a California federal district court allowed three California public employees and their same-sex spouses to proceed with a lawsuit challenging Sec. 3 of the federal Defense of Marriage Act and Sec. 7702B(f) of the Internal Revenue Code which interfere with plaintiffs' ability to participate in a state-maintained long term care insurance program.  Taken together, the challenged provisions deny favorable federal tax treatment to state employee long-term care plans that cover same-sex spouses. Finding that plaintiffs have standing to challenge the provisions, the court refused to dismiss plaintiffs' equal protection and substantive due process claims, holding:

Section three of the DOMA ...  impairs the states’ authority to define marriage, by robbing states of the power to allow same-sex civil marriages that will be recognized under federal law.... Plaintiffs have sufficiently stated a claim that section three of the DOMA bears no rational relationship to a legitimate governmental interest. The section does not preserve the status quo of the states’ authority to define marriage because it instead impairs their customary and historic authority in the realm of domestic relations.

The Silicon Valley Mercury News yesterday reported on the decision. [Thanks to Alliance Alert for the lead.]

Recalcitrant Kentucky County Clerk Jailed For Contempt; Deputies Will Issue Marriage Licenses

In Ashland, Kentucky today, federal district judge David Bunning ordered Rowan County Clerk Kim Davis to be remanded to the custody of U.S. Marshals after she told the court that her religious objections to same-sex marriage prevent her from complying with the court's preliminary injunction ordering her to end her office's refusal to issue marriage licences. (See prior posting.)  According to the ACLU, the court also granted its motion and clarified that the preliminary injunction requires Davis' office to issue marriage licenses to all eligible couples in Rowan County, and not just to the four couples named as plaintiffs in the case.  [UPDATE: Full text of order.] The Lexington Herald-Leader reports on what happened then:

After U.S. marshals took Davis into custody, where she is expected to remain until she agrees to comply with Bunning's order, the judge ordered her six deputy clerks to stand and tell him if they would comply with his order to issue marriage licenses, at the risk of facing their own contempt penalties.

All but one of the deputies — Nathan Davis, Kim Davis' son — said they would obey the judge, some more reluctantly than others..... Bunning said he would not hold the younger Davis in contempt since the rest of his colleagues are willing to obey the law.

So on Friday, the Rowan County clerk's office is set to open without its clerk, for the first time recognizing the Supreme Court's landmark gay marriage decision....

Later in the day, after Bunning established that five of Davis' deputy clerks were willing to issue marriage licenses, Davis' lawyers asked the judge to reconsider sending her to jail. If the people of Rowan County can get a marriage license from the clerk's office, even if it's over Davis' objections, then surely the judge's order is satisfied, the lawyers said.

But Davis scotched that effort by informing Bunning, from a courthouse holding cell, that she would not agree to let her deputies obey the judge's order if she is released. With a shrug, Bunning said Davis will remain incarcerated for at least a week, until he can review how her office operates in her absence. She was taken to the Carter County jail but can free herself by agreeing to comply with his order, Bunning said.

Davis' lawyers released a statement today, saying in part:

All [Davis] asks is to be true to God and her conscience. And the tragedy is that there are simple ways to accommodate her convictions. Just remove her name from the marriage licenses. That’s all she has asked from the beginning. Today’s events will escalate this debate to a new level. This is not the kind of America the Founders envisioned or that most Americans want.”

According to the Louisville Courier-Journal, there remains a question of whether licenses issued by deputy clerks are legally valid under Kentucky law if issued without Davis' consent. Judge Bunning said that couples would need to assess that risk on their own.

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.

Texans Sue Under the "Save Chick-fil-A" Law

As previously reported, in June Texas Gov. Greg Abbott signed a bill which prohibits any governmental entity in Texas from taking adverse action against any person because of the person's affiliation, contribution or support for a religious organization. The law was aimed at San Antonio's exclusion of Chick-fil-A from operating at the San Antonio's airport.  The restaurant chain has been criticized for its contributions to organizations that oppose same-sex marriage. Last week, five Texas residents filed suit in a state trial court under the new law seeking an injunction to prevent the city from continuing to exclude Chick-fil-A from the airport. The complaint (full text) in Von Dohlen v. City of San Antonio, (TX Dist. Ct., filed 9/5/2019), alleges in part:

The law of Texas prohibits governmental entities from taking “adverse action” against corporations based on their contributions to a religious organization. See Texas Gov’t Code § 2400.002. The City of San Antonio is violating this statutory command by excluding Chick-fil-A from the San Antonio airport on account of its donations to Christian organizations such as the Salvation Army and the Fellowship of Christian Athletes. 

20. For years, liberal activists have been attacking Chick-fil-A because it gives money to Christian organizations that accept the Bible as the Word of God.

21. Because these Bible-believing Christian organizations derive their notions of morality from the Bible rather than modern-day cultural fads, they oppose homosexual behavior and same-sex marriage.

San Antonio Family Association issued a press release announcing the filing of the lawsuit.