Cert. Petitions Begin To Be Filed In 6th Circuit Same-Sex Marriage Cases

Plaintiffs who lost in the 6th Circuit last week in their challenges to same-sex marriage restrictions in four states (see prior posting) are seeking Supreme Court review rather than an en banc rehearing by the full 6th Circuit. Petitions for certiorari were filed on Friday in:

• Henry v. Hodges (Ohio) (full text of petition)
• Tanco v. Haslem (Tennessee) (full text of petition)

Detroit Free Press says a petition is expected Monday in DeBoer v. Snyder  (Michigan). A petition will also be filed in the near future in Love v. Beshear (Kentucky). (HRC Blog).

Teacher Sues Archdiocese For Directing Catholic High School To Fire Him Over Same-Sex Marriage

Catholic Herald reported yesterday on a lawsuit filed against the Archdiocese of Indianapolis by Joshua Payne-Elliott, a former teacher at Cathedral High School. The suit charges interference with the teacher's professional relationship with the school. The Archdiocese directed the high school to terminate Payne-Elliott's contract after he entered a same-sex marriage. The school made it clear it was following the directive in order to avoid the Archdiocese withdrawing recognition of the school as Catholic. One day before filing his lawsuit against the Archdiocese, the teacher reached what was apparently a friendly settlement with Cathedral High School. The school is helping him find a new teaching position. In response to the lawsuit, the Archdiocese issued this statement:

In the Archdiocese of Indianapolis’ Catholic schools, all teachers, school leaders and guidance counselors are ministers and witnesses of the faith, who are expected to uphold the teachings of the Church in their daily lives, both in and out of school. Religious liberty, which is a hallmark of the U.S. Constitution and has been tested in the U.S. Supreme Court, acknowledges that religious organizations may define what conduct is not acceptable and contrary to the teachings of its religion, for its school leaders, guidance counselors, teachers and other ministers of the faith.

Former Employee's Fraud Claim Against Diocese Dismissed

In Simon v. Finn, (MO Cir. Ct., Feb. 16, 2016), a Missouri state trial court dismissed a fraud claim against the Catholic Diocese of Kansas City- St. Joseph brought by Colleen Simon, formerly the director for social ministries of a local parish.  Simon was dismissed after a newspaper article disclosed that she was in a same-sex marriage.  While Simon claimed that she was falsely assured by the Diocese that her same-sex marriage would not impact her employment, the court said:

For the Court to inquire into the knowing falsity of the Diocesan agents’ ... representations to Plaintiff about her sexual orientation relative to her position in the Diocese would impermissibly entangle the Court in matters and decisions purely canonical, since the Court must necessarily examine the religious views and practices of the Diocese in an attempt to perceive the reasonableness of Plaintiff’s reliance on the Diocese’s representations.

However the court permitted Simon to move ahead with her claim that the Diocese violated Missouri law requiring it to furnish any former employee requesting it a letter describing his or her service. It also permitted Simon to move ahead with her wage and hour claim. ADF issued a press release announcing the court's decision.

UPDATE: Catholic Culture reported Feb. 23 that the Diocese and Simon have entered an undisclosed settlement of the wage and hour and the severance letter claims.

6th Circuit Hears Oral Arguments In Same-Sex Marriage Cases

The U.S. 6th Circuit Court of Appeals yesterday heard oral arguments in same-sex marriage cases from 4 states.  Here are links to the audio of the argument in each case:

• Michigan: DeBoer v. Snyder (Oral argument)
• Ohio: Obergefell v. Himes; Henry v. Himes (Oral argument).
• Kentucky: Bourke v. Beshar; Love v. Beshar (Oral argument).
• Tennessee: Tanco v. Haslem (Oral argument).

Detroit Free Press and MLive reported on the oral arguments.

Trump Keeps Special Envoy For LGBTI Rights At State Department

Foreign Policy this week reports that  the Trump Administration has decided to keep Obama-appointee Randy Berry in his State Department position of Special Envoy for the Human Rights of LGBTI Persons. According to Foreign Policy:

The special envoy position was created during the Obama years to fight back against the discrimination of lesbian, gay, bisexual, and transgender people around the globe. Conservative groups have called the office an attempt to “entrench the LGBTI agenda” into the United States government, and accuse it of browbeating countries opposed to gay-friendly school textbooks and same-sex marriage.

Berry repeatedly stressed that his goal was to convince foreign governments to stop violence against gays and lesbians rather than pressure every nation to allow same-sex marriage. 

Berry, who is an openly gay career Foreign Service officer, will also stay on as deputy assistant secretary to the Bureau of Democracy, Human Rights, and Labor, a position to which he was appointed in the last hours of the Obama administration. Christian evangelical groups had called for Trump to dismiss Berry.

District Court Strikes Down South Carolina Same-Sex Marriage Ban; 8-Day Stay Granted

In Condon v. Haley, (D SC, Nov. 12, 2014), a South Carolina federal district court struck down South Carolina's ban on same-sex marriage. The court held that the 4th Circuit's decision in Bostic v. Schaefer striking down a similar ban in Virginia is controlling. However the court granted a stay until Nov. 20 to allow the state to seek a stay pending appeal from the 4th Circuit. The State reports that South Carolina Attorney General Alan Wilson says he will appeal to the 4th Circuit.

Activist's Suit Argues Gay Pride Flags Are Religious Symbols

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

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

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

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

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

Nevada Tells 9th Circuit It Will No Longer Defend Its Same-Sex Marriage Ban

According to AP, Nevada's attorney general yesterday filed a statement with the U.S. 9th Circuit Court of Appeals informing the court that the state will no longer defend its ban on same-sex marriage. The move comes in the pending appeal in Sevcik v. Sandoval, in which a Nevada federal district court upheld the ban against an Equal Protection Clause challenge. (See prior posting.) The attorney general told the court:

After thoughtful review and analysis, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable.

Nevada's Governor Brian Sandoval agrees with the attorney general.

As described by SCOTUSblog, the state changed its position after considering the 9th Circuit's decision last month in SmithKline Beecham Corp. v. Abbott Laboratories, (9th Cir., Jan. 21, 2014) holding that heightened scrutiny must be applied to equal protection claims based on sexual orientation. The case held that peremptory jury challenges may not be made on the basis of sexual orientation.

Pennsylvania Federal Court Denies Intervention To Appeal Same-Sex Marriage Case

As previously reported, in May a Pennsylvania federal district court held Pennsylvania's laws banning same-sex marriage to be unconstitutional, and Pennsylvania Governor Tom Corbett announced that the state will not appeal the decision.  Some two weeks later, Theresa Santai-Gaffney, clerk of courts in Schuylkill County moved to intervene in order to appeal the court's decision to the 3rd Circuit.  In Whitewood v. Wolf, (MD PA, June 18, 2014), the federal district court rejected the motion to intervene.  The court held that Santai-Gafney has not met the criteria for either intervention as of right or permissive intervention.  The court said:

At bottom, we have before us a contrived legal argument by a private citizen who seeks to accomplish what the chief executive of the Commonwealth, in his wisdom, has declined to do.

AP reports on the decision.

Recent Articles of Interest

From SSRN:

• Geoffrey P. Miller, The Dark Age: How the Biblical Narratives Demonstrate the Necessity for Law and Government, (NYU School of Law, Public Law Research Paper No. 10-18, March 24, 2010).
• Geoffrey P. Miller, Of Floods and Towers: The Bible’s Affirmative Case for Law and Government, (NYU School of Law, Public Law Research Paper No. 10-19, March 24, 2010).
• Geoffrey P. Miller, Patriarchy: The Political Theory of Family Authority in the Book of Genesis, (New York University School of Law, Public Law Research Paper No. 10-23, April 2, 2010).
• Adham A. Hashish, Islamic Ijtihad: The Key to Islamic Democracy Bridging and Balancing Political Islam and Intellectual Islam, (Richmond Journal of Global Law & Business, Vol. 9, No. 61, Winter 2010).
• Hans-Martien Ten Napel Th.D., Protestantism, Globalization and the Democratic Constitutional State, (Reshaping Protestantism in a Global Context, Volker Küster, ed., LIT, 2009).
• Mark Rahdert, Forks Taken and Roads Not Taken: Standing to Challenge Faith-Based Spending, (March 19, 2010).
• Jennifer Gerarda Brown, Peacemaking in the Culture War between Gay Rights and Religious Liberty, (Iowa Law Review, Vol. 95, p. 747, 2010).
• Paul M. Secunda, District Court Amicus Brief of Law Professors in Support of Defendants, Associated Oregon Industries v. Avakian, No. 3:09-CV-1494-MO (March 22, 2010).
• Cyra Akila Choudhury, Globalizing the Margins: Legal Exiles in the War on Terror and Liberal Feminism’s War for Muslim Women, (International Review of Constitutionalism, Vol. 9, No. 2, 2010).
• Mostapha Benhenda, For Muslim Minorities, it is Possible to Endorse Political Liberalism, But This is not Enough, (Journal of Islamic Law and Culture, Vol. 11, No. 2, May 2009).
• Andrew F. March, The Post-Legal Ethics of Tariq Ramadan: Persuasion and Performance in 'Radical Reform: Islamic Ethics and Liberation' (A Review Essay), (Middle East Law and Governance, Forthcoming).
• Ilan H. Fuchs, 'Sephardic' Halakhah? The Attitude of Sephardic Decisors to Women’s Torah Study: A Test Case , (Bar Ilan Univ. Pub Law Working Paper No. 02-10, Dec. 31, 2009).
• Francesco Alicino, Constitutionalism as a Peaceful "Site" of Religious Struggles, Global Jurist, Vol. 10 : Iss. 1 (Advances) (2010).
• Lourens Du Plessis, Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law , (Potchefstroom Electronic Law Journal, Vol. 12, No. 4, 2009).

From SmartCILP:

• E. Gregory Wallace, Justifying Religious Freedom: The Western Tradition, 114 Penn State Law Review 485-570 (2009).
• Shannon Gilreath, Not a Moral Issue: Same-Sex Marriage and Religious Liberty (Reviewing Same-Sex Marriage and Religious Liberty, edited by Douglas Laycock, Anthony R. Picarello, Jr. and Robin Fretwell Wilson), 2010 University of Illinois Law Review 205-223.
• Timothy D. Lytton, Framing Clergy Sexual Abuse as an Institutional Failure: How Tort Litigation Influences Media Coverage, 36 Wm. Mitchell Law Review 169-185 (2009).
• Jared Rubin, Social Insurance, Commitment, and the Origin of Law: Interest Bans in Early Christianity, [Abstract], 52 Journal of Law & Economics 761-777 (2009).
• Ofrit Liviatan, Judicial Activism and Religion-Based Tensions in India and Israel, 26 Arizona Journal of International & Comparative Law 583-621 (2009).
• Teri Dobbins Baxter, Private Oppression: How Laws that Protect Privacy Can Lead to Oppression, 58 University of Kansas Law Review 415-471 (2010).

Britain's Appeals Court: Christian Social Work Student Improperly Suspended For Anti-Gay Facebook Postings

In Ngole v. University of Sheffield, (EWCA, July 3, 2019), England's Court of Appeal held that the University of Sheffield had unfairly removed a Christian student from its Master of Social Work program after the student posted his views on Facebook that homosexuality and same-sex marriage are sins.  The postings, in response to the jailing in 2015 of Kentucky court clerk Kim Davis for refusing to issue same-sex marriage licenses, appeared on MSNBC's Facebook page. The Court, ordering a new disciplinary hearing by the University, summarized its conclusions in part as follows:

(10) The University wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds. In the present case, there was positive evidence to suggest that the Appellant had never discriminated on such grounds in the past and was not likely to do so in the future (because, as he explained, the Bible prohibited him from discriminating against anybody).

(11) The University gave different and confusing reasons for suspending the Appellant. Initially, it was said (by the Fitness to Practice Committee) that he lacked “insight” into how his NBC postings might affect his ability to carry out “his role as a social worker”; and subsequently it was said (by the Appeals Committee) that he lacked “insight” into how his NBC postings “may negatively affect the public’s view of the social work profession”. Further, at no stage during the process or the hearings did the University properly put either concern as to perception to the Appellant during the hearings.

(12) The University’s approach to sanction was, in any event, disproportionate: instead of exploring and imposing a lesser penalty, such as a warning, the University imposed the extreme penalty of dismissing the Appellant from his course, which was inappropriate in all the circumstances.

The Guardian reports on the decision.

Canadian Lawyers Claim Pending Gay Marriage Bill Threatens Clergy

In Canada, in February the government proposed a bill to legalize same-sex marriage (Bill C-38). Today LifeSite News reports on a letter to members of Parliament from a group of lawyers claiming that enactment will lead to litigation against religious officials and groups that refuse to solemnize same-sex marriages. Even though the proposed bill provides that "officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs", the lawyers claim that "the Parliament of Canada cannot protect religious groups or officials from [lawsuits] because the solemnization of marriage lies within the exclusive competence of the provinces."

Alabama Asks Supreme Court For Stay of Same-Sex Marriage Injunction

As reported by Jurist, Tuesday the U.S. 11th Circuit Court of Appeals refused to grant a stay beyond the current Feb. 9 effective date of a district court order in Searcy v. Strange invalidating Alabama's bans on same-sex marriage. (See prior posting.)  The state immediately filed an application for a stay of the injunction (full text) with Supreme Court Justice Clarence Thomas, who has the option of ruling on the application himself or referring it to the full court. SCOTUSblog also reports on developments.

Federal Lawsuit Challenges Prop 8; Some Gay-rights Activists Question Strategy

The New York Times reports that at a news conference yesterday, David Boies and Theodore Olson-- attorneys best known as opponents in the Bush v. Gore litigation in 2000-- announced that they are jointly representing two couples who have filed a lawsuit in federal district court in San Francisco challenging California's Proposition 8 on federal constitutional grounds. The complaint (full text) in Perry v. Schwarzenegger, (ND CA, filed 5/22/2009), asks the court to enter a declaratory judgment and to enjoin enforcement or application of Proposition 8, arguing that it violates the due process and equal protection clauses of the U.S. Constitution. The complaint alleges that "California relegates same-sex unions to the separate-but-unequal institution of domestic partnership."

A number of gay rights activists criticized the filing of the lawsuit, arguing that it could backfire strategically. Yesterday's Examiner says these critics fear that the current Supreme Court would rule against the challenge, and that this would then undermine attempts to get state courts to protect gay marriage under state constitutions. These critics point to another case moving through the federal courts challenging the federal Defense of Marriage Act, which they say is a better first step toward getting federal courts to protect same-sex marriage.

Group Seeks To Place Christian Conservatives On California Lower Courts

Yesterday's Los Angeles Times reported on an unusual campaign to unseat four San Diego (CA) trial court judges in the June 8 primary. A group calling itself "Better Courts Now" is endorsing four Christian conservative candidates for Superior Court judgeships, saying it is attempting to unify the "moral vote" and make judges accountable. The movement was the brainchild of now-deceased Zion Christian Fellowship pastor Don Hammer who campaigned for California's Proposition 8, the ban on same-sex marriage. The socially conservative Better Courts Now is backed by pastors, gun rights advocates and opponents of same-sex marriage. One of the endorsed candidates, Craig Candelore, says: "We believe our country is under assault and needs Christian values. Unfortunately, God has called upon us to do this only with the judiciary." However,San Diego County District Attorney Bonnie Dumanis says that Better Courts Now threatens to undermine the independence of the judiciary.

UPDATE: None of the 4 Christian conservative candidates was successful in unseating the incumbent judges they were challenging. The challengers obtained only 35% to 40% of the vote in each race. (USA Today, June 9, 2010).

Michigan Catholic Adoption Agency Gets Preliminary Injunction Protecting Its Policy on LGBTQ Couples

In Buck v. Gordon, (WD MI, Sept. 26, 2019), a Michigan federal district court issued a preliminary injunction to prevent the state from requiring that a Catholic adoption and foster care agency place children with same-sex couples. The agency currently refers such couples to other agencies.  As summarized by the court:

The State pays St. Vincent to place children with foster or adoptive parents certified as suitable by the State. St. Vincent has done that faithfully, regardless of whether the certified parents were opposite sex, same-sex, or unmarried couples. St. Vincent would like to continue doing so under existing and renewed contracts with the State.  

What St. Vincent has not done and will not do is give up its traditional Catholic belief that marriage as instituted by God is for one man and one woman. Based on that belief, St. Vincent has exercised its discretion to ensure that it is not in the position of having to review and recommend to the State whether to certify a same-sex or unmarried couple, and to refer those cases to agencies that do not have a religious confession preventing an honest evaluation and recommendation. In 2015, the Michigan legislature enacted legislation designed to protect that choice, and until January of 2019, the State defended the right of the State and St. Vincent to make that choice.

That changed when Defendant Attorney General Nessel took office. Leading up to and during the 2018 general election campaign, she made it clear that she considered beliefs like St. Vincent’s to be the product of hate. She stated that the 2015 law seeking to protect St. Vincent’s practice was indefensible and had discriminatory animus as its sole purpose. After her election, she ... put St. Vincent in the position of either giving up its belief or giving up its contract with the State. That kind of targeted attack on a sincerely held religious belief is what calls for strict scrutiny in this case and supports entry of a preliminary injunction preserving the status quo while the case is fully litigated.

Detroit News reports on the decision.

Court Strikes Down Mississippi's Ban On Adoption By Same-Sex Couples

In Campaign for Southern Equality v. Mississippi Department of Human Services, (SD MS, March 31, 2016), a Mississippi federal district court issued a preliminary injunction barring Mississippi from enforcing its statutory ban on adoption by same-sex couples. After devoting much of the opinion to issues of standing and 11th Amendment immunity, the court held that the Supreme Court's Obergefell decision requires striking down of the Mississippi adoption ban:

... [T]he majority opinion [in Obergefell] foreclosed litigation over laws interfering with the right to marry and “rights and responsibilities intertwined with marriage.”... It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit.

MS News Now reporting on the decision notes that Mississippi was the last state in the country to have a statutory ban on same-sex adoption.

EEOC Sued Over Enforcement of LGBT Protections Without Religious Exemption

A class action lawsuit was filed last week in a Texas federal district court against the EEOC on behalf of all churches that oppose homosexual or transgender behavior for sincere religious reasons and on behalf of all businesses with similar beliefs.  The complaint (full text) in U.S. Pastor Council v. EEOC, (ND TX, filed 10/6/2018), says that the EEOC interprets Title VII as covering employment discrimination on the basis of sexual orientation or gender identity, without a religious exemption. It contends that this violates RFRA and the First Amendment.  the suit seeks to enjoin the federal government from interpreting or enforcing Title VII in a manner that requires churches or businesses with religious objections to recognize same-sex marriage or extend spousal benefits to same-sex partners, or to require objecting businesses to allow employees to use rest rooms reserved for persons of the opposite biological sex.  It also asks the court to require that any future EEOC guidance on Title VII's application to gay or transgender individuals include a religious exemption. The lawsuit was filed by the same law firm that has recently filed two challenges to Austin, Texas' anti-discrimination ordinances. (See prior posting.) [Thanks to Jeff Pasek for the lead.]

Obergefell Decision Attacked By Suit Demanding License For Man-Object Marriage

As reported in a Liberty Counsel press release, in a rambling 44-page complaint filed last week Mark "Chris" Sevier, a Vanderbilt Law School graduate who was suspended from practice in 2011, filed suit challenging Kentucky's refusal to issue him a marriage license to allow him to marry his laptop computer.  Framed as a challenge to the U.S. Supreme Court's Obergefell decision, the complaint (full text) in Sevier v. Davis, (ED KY, filed 7/1/2016)) alleges in part:

The Plaintiff seek one of two forms of relief: (1) that the state be enjoined from enforcing any laws and policies that prevents him from legally marrying an inanimate object in light of the decision in Obergefell v. Hodge ... and United States v. Windsor ... or alternatively, (2) that all forms of marriage outside the traditional definition of marriage be nullified in reviving the original marriage laws and bans, since laws that try to establish the plausibility of gay rights violates the establishment clause of the first amendment....

If the plaintiffs request to many a machine is frivolous and "removed from reality," then certainly a man's request to many a man in order to call him his lawfully wedded wife in hopes that the society will whomp up more dignity for such marriages is equally "removed from reality" and culturally imperialistically arrogant. It is this kind of moral relativist that causes Middle Eastern Nations to hate the United States so much - because the adaptation of these values are a threat to the integrity of families - and they recognize that.

Sevier has previously filed similar lawsuits in Texas, Florida and Utah (see Above The Law). This time however he named as one of the defendants the equally adamant opponent of same-sex marriage, Rowan County Kentucky Clerk Kim Davis. (See prior posting.)  Alluding to this, the complaint alleges:

Unless total marriage equality is permitted as demanded by the Plaintiff, Mrs. Davis will have a valid cause of action under racketeering statutes against those who conspired to persecute and prosecute her maliciously as an an attempt to force her to convert to their sexually exploitative self-justifying world view.... Allowing the Plaintiff to marry an inanimate object will give those who put her in jail more credibility, since it will show that the Courts really believe that sexual orientation is based on civil rights matter and not an ideological religious one stemming from an attempt to legislate away feelings of shame and inadequacy.

Pope Francis Addresses Clergy Sex Abuse and New Definitions of Marriage

As reported by Vatican Radio, Pope Francis today in Philadelphia held a private meeting with victims of clergy sexual abuse. He then addressed a meeting of bishops and departed from his prepared remarks to begin as follows:

I hold the stories and the suffering and the sorrow of children who were sexually abused by priests deep in my heart.  I remain overwhelmed with shame that men entrusted with the tender care of children violated these little ones and caused grievous harm.  I am profoundly sorry. God weeps.

The crimes and sins of the sexual abuse of children must no longer be held in secret.  I pledge the zealous vigilance of the Church to protect children and the promise of accountability for all.

They, the survivors of abuse, have become true heralds of hope and ministers of mercy. We humbly owe each one of them and their families our gratitude for their immense courage to shine the light of Christ on the evil of the sexual abuse of children.

I’m telling you this because I’ve just met with a group of sex abuse victims who are being helped and accompanied here in Philadelphia.

The remainder of his remarks to the bishops are also carried in the same Vatican Radio coverage. Those remarks included the following, which appears to be a reference to the legal recognition of same-sex marriage:

Needless to say, our understanding, shaped by the interplay of ecclesial faith and the conjugal experience of sacramental grace, must not lead us to disregard the unprecedented changes taking place in contemporary society, with their social, cultural – and now juridical – effects on family bonds.  These changes affect all of us, believers and non-believers alike.  Christians are not “immune” to the changes of their times.  This concrete world, with all its many problems and possibilities, is where we must live, believe and proclaim.

Until recently, we lived in a social context where the similarities between the civil institution of marriage and the Christian sacrament were considerable and shared.  The two were interrelated and mutually supportive.  This is no longer the case.