Preliminary Injunction Bars Extension of FMLA To Same-Sex Couples

In State of Texas v. United States, (ND TX, March 26, 2015), a Texas federal district court granted a preliminary injunction ordering the Department of Labor to stay application of a rule amendment that extends the Family and Medical Leave Act to same-sex married couples even in states that do not recognize sane-sex marriage. The court asserted that Congress does not have unlimited power to impose its definition of marriage on the states and that Congress did not authorize the Department of Labor to regulate spousal benefits to do so. Houston Chronicle reports on the decision.

Federal Court Says Judge Did Not Need To Recuse Himself In Proposition 8 Case

Yesterday, California federal district judge James Ware held, in Perry v. Schwarzenegger, (ND CA, June 14, 2011), that now-retired federal judge Vaughn Walker did not act improperly in failing to recuse or disqualify himself from deciding a challenge to California's Proposition 8. That state constitutional amendment barred same-sex marriage in the state, and Judge Walker's decision found Proposition 8 to be inconsistent with the federal constitution. (See prior posting.) Judge Walker was involved in a same-sex relationship at the time he heard and decided the case. However in yesterday's decision, Judge Ware held:

The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification.

The New York Times reports on yesterday's decision.

Also yesterday in a separate opinion in the case (full text), Judge Ware found no reason to require the parties in the case to return to the court video copies of the trial proceedings that had been given to them. He also set an August 29 hearing date on a motion to lift the protective order that bars public disclosure of the trial videos.

UPDATE: AP reports that backers of Proposition 8 will appeal Judge Ware's decision that refused to disqualify Judge Walker.

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

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

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

Recent Articles of Interest

From SSRN:

• Ihsan Yilmaz, Religio-Secular Counter-Hegemonic Legal Knowledge Production and Its Glocal Dissemination, (January 12, 2019).
• Shaun Alberto de Freitas, A Critique of Ronald Dworkin’s Limitation of Passive Forms of Religious Expression in the Public Sphere, (NTKR 2019-1 (2019)).
• Neil Walker, Christianity and the Global Rule of Law, (Edinburgh School of Law Research Paper No. 2019/35 (2019)).
• Chao-Ju Chen, A Same-sex Marriage that is Not the Same: Taiwan’s Legal Recognition of Same-sex Unions and Affirmation of Marriage Normativity, (Australian Journal of Asian Law, Vol. 20, No. 1, Article 5, 2019).
• Wondong Lee, Joe Phillips & Joseph Yi,  LGBTQ+ Rights in South Korea – East Asia’s ‘Christian’ Country, (Australian Journal of Asian Law, Vol. 20, No. 1, Article 6, 2019).
• Nasir Qadri, Analysis of Triple Talaq Judgment Passed by Indian Supreme Court,(December 8, 2018).
• Elizabeth Ann Black, Casting the First Stone: The Significance of Brunei Darussalam’s Syariah Penal Code Order for LGBT Bruneians, (Australian Journal of Asian Law, Vol. 20, No. 1, Article 18, 2019).
• Ihsan Yilmaz, Islamist Turn in Turkey, State Transnationalism and Transnational Islamist Unofficial Law, (October 12, 2019).
• Beng Hui Tan, The LGBT Quandary in New Malaysia, (Australian Journal of Asian Law, Vol. 20, No. 1, article 15, 2019).

Hawaii Governor Talks With Rabbis In Deciding On Civil Union Bill

AP reported yesterday that Hawaii Governor Linda Lingle, who is Jewish and is a Republican, has recently met with two rabbis as she is considering whether to sign or veto HB 444, a bill passed by the Hawaii legislature that allows civil unions for same-sex as well as opposite-sex couples. (Background from Wikipedia.) The two rabbis are on opposite sides of the issue. Rabbi Itchel Krasnjansky who leads Hawaii's Orthodox Jewish Habad movement, says that the Torah teaches that homosexuality, and by extension same-sex marriage, should not be condoned or legalized. However Reform Rabbi Peter Schaktman-- whose Temple Gov. Lingle attends-- says Judaism teaches that all people regardless of sexual orientation are "children of God" and they should not face discrimination. He argues: "Civil unions are a legal arrangement. Therefore, anyone who uses religion to oppose civil unions is purely using religion to further homophobia."

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.

European Court of Human Rights Vindicates Britain In 3 of 4 Cases Denying Accommodation of Christian Beliefs

Yesterday, seven judges sitting as a Chamber of the European Court of Human Rights handed down a decision in four widely followed employment discrimination cases brought by Christians in Great Britain who sought accommodation of their religious beliefs. (See prior posting.) Two of the cases involve women employees whose employers prevented them from wearing a cross on a necklace.  The other two cases involve claims that religious beliefs opposed to same-sex marriage and homosexual relationships should be accommodated.  In Eweida and Others v. United Kingdom, (ECHR 4th Section, Jan. 15, 2013), the court held that there had been a violation of Art. 9 (Freedom of Religion) of the European Convention on Human Rights in only one of the cases.  By a vote of 5-2, the court held that the United Kingdom violated Art. 9 by failing to adequately protect British Airways employee Nadia Eweida who wanted an exception to the airline's uniform rules so she could wear a visible cross around her neck. The court awarded her damages of 2000 Euros and costs of 30,000 Euros.

British law bars employment discrimination unless the employer can show that its requirements constitute "a proportionate means of achieving a legitimate aim." As to Ms. Eweida, the Court majority said:

[A] fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief.... [T]his is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image.... [W]hile this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.

However in the case of Shirley Chaplain, a geriatric ward nurse at a state hospital, the court held unanimously that the requirement she remove her necklace displaying a cross to prevent injury when handling patients was justified.

The third case involved Lillian Ladele, a local registrar of births, deaths and marriages, who refused on religious grounds to conduct civil partnership ceremonies. In a 5-2 decision, the Court rejected Ladele's claims under Art. 9 and the non-discrimination requirements of Art. 14, holding that local authorities are given "a wide margin of appreciation" in balancing religious freedom rights with the mandate not to discriminate on the basis of sexual orientation. Two judges dissented, saying that the issue is primarily one of freedom of conscience. They continued:

Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal... Ms Ladele did not fail in her duty of discretion: she did not publicly express her beliefs to service users.  Her beliefs had no impact on the content of her job, but only on its extent. She never attempted to impose her beliefs on others, nor was she in any way engaged, openly or surreptitiously, in subverting the rights of others. Thus ... the means used were totally disproportionate.

The fourth case involved Gary McFarlane, who was a counselor at an organization that provides sex therapy and relationship counselling. He was dismissed after he expressed concern on grounds of his Christian religious beliefs about providing psycho-sexual therapy to same-sex couples. The court unanimously rejected  his claim of discrimination and infringement of religious freedom, saying:  "the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination."

The Chamber judgment can be appealed to the Court's 17-judge Grand Chamber. The Guardian reports on the decision, as does a press release from Alliance Defending Freedom.

California Couple Refuses To Sign Gender-Neutral Marriage License

After the California Supreme Court earlier this year ruled that same-sex marriage is valid, the courts required the state to provide gender-neutral marriage license forms. So the words "bride" and "groom" are now replaced by "Party A" and "Party B". However, Roseville (CA) Pastor Doug Bird, of the Abundant Life Fellowship, is urging couples not to sign the new marriage forms. Yesterday's Sacramento Bee reports that one person following his advice is his daughter, who was recently been married at her father's church. The Placer County Clerk-Recorder Registrar of Voters office has refused to accept her marriage license for filing after she and her husband inserted "bride" and "groom" next to the language referring to Party A and B. Rachel Bird, who describes her stand as "personal-- not religious" has been unable to sign up on her husband's medical insurance since their marriage is not registered with the state. [Thanks to Scott Mange for the lead.] [Corrected].

Religious Conservatives Criticize Obama's Extension of Some Benefits To Gay Couples

Yesterday President Barack Obama signed a Memorandum (full text and full text of remarks at signing) extending certain benefits to same-sex domestic partners of government employees. (New York Times.) The White House also released an official statement along with the memorandum. Among the benefits made available are use of sick leave to care for their domestic partners or their partners' children; coverage of partners under long-term care insurance; and providing equal treatment for partners of American Foreign Service officers in use of medial facilities and visitation rights in case of an emergency. He also called for the Office of Personnel Management to conduct further reviews of possible benefits and of non-discrimination provisions.

Obama indicated that current federal law precludes him from going further by executive action, but announced his support for the Domestic Partners Benefits and Obligations Act that would extend the full range of benefits-- including health care and retirement benefits--to same-sex couples as are enjoyed by married heterosexual couples. Not surprisingly, a number of conservative Christian groups, as in a press release from the Family Research Council, have criticized the President's action. Dan Gilgoff reports that they contend the Memorandum essentially elevates same-sex partnerships to a status that approximates marriage, in violation of at least the spirit of the federal Defense of Marriage Act.

IRS Rules That Legal Same-Sex Marriages Will Be Recognized For Tax Purposes, Regardless Of Couple's Current Domicile

The Internal Revenue Service announced yesterday that legally-married same-sex couples will be treated as married for federal tax purposes, even if they live in a state that refuses to recognize their legal marriage that was performed elsewhere. The new policy is formally reflected in Revenue Ruling 2013-17 which defends the gender-neutral reading of gender-specific terms in the Internal Revenue Code that the new policy requires. However, the ruling does not extend to domestic partnerships, civil unions, or other similar formal relationships recognized, but not called marriage, under state law. The IRS also issued updated Frequently Asked Questions for same-sex couples and updated FAQs for registered domestic partners and individuals in civil unions.

2016 Republican Platform on Same-Sex Marriage

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the second in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Here is the Platform section titled Defending Marriage Against an Activist Judiciary:

Traditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society and has for millennia been entrusted with rearing children and instilling cultural values. We condemn the Supreme Court’s ruling in United States v. Windsor, which wrongly removed the ability of Congress to define marriage policy in federal law. We also condemn the Supreme Court’s lawless ruling in Obergefell v. Hodges, which in the words of the late Justice Antonin Scalia, was a “judicial Putsch” — full of “silly extravagances” — that reduced “the disciplined legal reasoning of John Marshall and Joseph Storey to the mystical aphorisms of a fortune cookie.” In Obergefell, five unelected lawyers robbed 320 million Americans of their legitimate constitutional authority to define marriage as the union of one man and one woman. The Court twisted the meaning of the Fourteenth Amendment beyond recognition. To echo Scalia, we dissent. We, therefore, support the appointment of justices and judges who respect the constitutional limits on their power and respect the authority of the states to decide such fundamental social questions.

D.C. Council Votes Final Passage of Gay Marriage Bill

Washington, D.C.'s City Council yesterday, by a vote of 11-2, gave final approval to the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. The bill, which permits same-sex marriages to be performed in D.C., now goes to Mayor Adrian A. Fenty, who, according to the Washington Post, is expected to sign the bill before Christmas. Congress then has 30 days to review the legislation and can block it only by a resolution passed by both houses of Congress and signed by the President. It appears unlikely that the law will be rejected through this route. The bill contains protections to assure that clergy can refuse to perform same-sex marriages and that religious organizations can refuse to provide goods, services, accommodations and facilities for same-sex marriages that violate their religious beliefs, except when those facilities are offered to the general public. A number of Christian clergy say they will continue to oppose the legislation. As previously reported, they have filed suit to force an initiative vote on a proposal to define marriages as only between a man and a woman. (See prior related posting.)

Reconstructionist Rabbis Support NJ Gay Marriage Law

The Reconstructionist Movement in Judaism has supported gay marriage since the 1980's. This week, the New Jersey Jewish Standard interviews Reconstructionist rabbis on the issue as New Jersey's legislature decides how to respond to a recent state Supreme Court decision requiring legislative action to extend equal rights to gay couples. These rabbis say that currently, by prohibiting same-sex marriages, the state legislature is interfering with their religious right to perform marriages in accord with their beliefs. The Reform Movement in Judaism leaves the decision of whether or not to perform same-sex marriages up to individual rabbis. The Conservative and Orthodox movements have not accepted same-sex marriages.

More On Presidential Voting By Religious Groupings

Earlier this week, the Pew Research Center, using exit polls, published How the faithful voted: A preliminary 2016 analysis.  It breaks down the vote in last Tuesday's Presidential election by faith group.  The group giving Donald Trump the largest percentage-- 81%-- of their vote were described in the survey as "White born-again/ evangelical Christians". The category overlaps some of the other categories reported: Protestant/ other Christian- 58%; White Catholic- 60%. Groups giving Trump the lowest percentage of their votes were: Jewish- 24%; Hispanic Catholic- 26%; Religiously unaffiliated- 26%.

In the same vein, yesterday the New York Times posted an article titled Religious Right Believes Donald Trump Will Deliver on His Promises, saying in part:

Now that he has won, evangelical leaders say they are confident Mr. Trump will deliver on the political promises he made to them. These include appointing a conservative to the Supreme Court, defunding Planned Parenthood, protecting businesses that refuse to provide services for same-sex weddings and rescinding the mandate in the Affordable Care Act that requires insurance coverage for birth control.

And with Gov. Mike Pence of Indiana, an evangelical with a record of legislating against abortion and same-sex marriage, as vice president, Christian leaders say they feel reassured they will have access to the White House and a seat at the table.

Navy Chief Chaplain Reverses Recent Policy On Same-Sex Marriages In Base Chapels

The Navy yesterday reversed its recently announced policy (see prior posting) that would have permitted Navy chaplains to perform same-sex marriages and civil unions in Navy chapels.  Navy Chief of Chaplains Rear Adm Mark Tidd said he was suspending the earlier guidance pending additional legal and policy review and closer coordination with the other branches of the military. The Los Angeles Times reports today that a letter from 63 House members to Navy Secretary Ray Mabus asked for reversal of the policy, saying that it violates federal law-- the Defense of Marriage Act. The Washington Post reported yesterday that members of the House Armed Services Committee are expected to introduce amendments to the defense authorization bill that would prohibit the use of Defense Department facilities for same-sex marriages, even if state law permits them.

Suit Seeks Florida Recognition of Same-Sex Marriages

In Florida on Wednesday, eight same-sex couples who were married in other states filed a federal lawsuit seeking to require Florida to recognize their marriages. The complaint (full text) in Grimsley and Albu v. Scott, (ND FL, filed 3/12/2014) contends that the refusal to do so violates the due process and equal protection clauses. ACLU announced the filing of the lawsuit. A state court lawsuit seeking to require Florida to issue marriage licenses to same-sex couples is already pending. (See prior posting.)

2nd Circuit: Free Speech and Free Exercise Claims of Christian Adoption Agency Can Move Forward

In New Hope Family Services, Inc. v. Poole, (2d Cir., July 21, 2020), the U.S. 2nd Circuit Court of Appeals, in an 84-page opinion, reversed the dismissal of free exercise and free speech claims brought by a Christian adoption agency.  The court summarized the issues:

New Hope Family Services, Inc., is a voluntary, privately funded Christian ministry devoted to providing adoption services and authorized to do so in the State of New York for more than 50 years. New Hope professes that, consistent with its religious beliefs, it cannot recommend adoptions by unmarried or same-sex couples. It does not itself disapprove such couples; rather, it refers them to other adoption agencies. In 2018, the State’s Office of Children and Family Services (“OCFS”) informed New Hope that its policy respecting unmarried and same-sex couples violates the antidiscrimination mandate of N.Y. Comp. Codes R. & Regs. tit. 18, § 421.3(d). OCFS advised New Hope that it either had to change its policy or close its operation.

In reversing and remanding the case to the district court, the 2nd Circuit said in part as to plaintiff's free exercise claim:

[W]e conclude that the pleadings give rise to a sufficient “suspicion” of religious animosity to warrant “pause” for discovery before dismissing New Hope’s claim as implausible. 

In connection with plaintiff's free speech claim, the court said:

New Hope asserts that, based on its religious beliefs about marriage and family, it does not believe and, therefore, cannot state, that adoption by unmarried or same-sex couples would ever be in the best interests of a child. It charges OCFS with requiring it to say just that—or to close down its voluntary, privately funded adoption ministry....

AP reports on the decision.

Court Issues Final Order On Recognition of Out-of-State Same-Sex Marriages In Kentucky; Intervenors Pursuing Additional Relief

As previously reported, earlier this month a Kentucky federal district court issued an opinion holding unconstitutional Kentucky provisions that deny recognition to same-sex marriages performed in other jurisdictions. As reported by the Louisville Courier Journal and Insider Louisville, after a hearing on Tuesday, the court issued its final order (full text) implementing the decision (Bourke v. Beshear,  (WD KY, Feb. 27, 2014)). At the hearing, the deputy attorney general told the court that he did not have authority at that time to ask for a stay of the decision, and the court's final order thus did not contain a stay pending appeal. However the state subsequently quickly filed a motion (full text) asking for a 90-day stay to "give Defendants time to determine if they will appeal the order, and the Executive Branch time to determine what actions must be taken to implement this Court’s Order if no appeal is taken."

Meanwhile, the court yesterday also allowed (full text of order) two other couples to intervene in the case to pursue their claims (full text of intervenors' complaint) that Kentucky laws banning the issuance of marriage licenses to same-sex couples are also unconstitutional. [Thanks to Tom Rutledge for the lead.]

Attorney General Tells Immigration Appeals Board To Reconsider Deportation of Partner In Civil Union

In Matter of Paul Wilson Dorman, (Atty. Gen., April 26, 2011), Attorney General Eric Holder vacated a decision of the Board of Immigration Appeal that had upheld the deportation of a man who had entered a same-sex civil union in New Jersey with a U.S. citizen. Holder, implementing the Administration's previously announced conclusion that the Defense of Marriage Act is unconstitutional (see prior posting), ordered the BIA to:

determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act....

AP reports on the decision. [Thanks to Alliance Alert for the lead.]

SEC Interprets Terms In Securities Laws To Include Same-Sex Marriages

The Securities and Exchange Commission on June 19 issued Release No. 33-9850 (full text) formally interpreting the terms "spouse" and "marriage" in the federal securities laws and rules to include same-sex spouses and same-sex marriages where the couple is lawfully married under state law, regardless of their domicile.