Former Magistrate Receives Damages In Settlement Over Refusal To Perform Same-Sex Marriages

According to a press release this week from Becket, the North Carolina court system last November agreed to a settlement with a former North Carolina magistrate who was forced to resign in 2014 because of her objections to performing same-sex marriage ceremonies.  Under the settlement of a complaint filed with the EEOC, magistrate Sandra Myrick will receive $210,000 in damages and $115,000 in attorneys fees. (Full text of settlement agreement).  The settlement came 8 months after the decision by an Administrative Law Judge in Myrick v. Warren, (EEOC, March 8, 2017) holding that the EEOC has jurisdiction over Myrick's religious discrimination complaint under the Government Employees Rights Act of 1991.  The ALJ also concluded that Myrick had demonstrated a prima facie case of religious discrimination and that she had not been offered an accommodation.

Judge Who Refused To Perform Same-Sex Ceremonies Sues Over Reprimand

As previously reported, in November the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because of her refusal to perform same-sex marriage ceremonies. Now a lawsuit has been filled challenging the Commission's action.  The complaint (full text) in Hensley v. Texas State Commission on Judicial Conduct, (TX Dist. Ct., filed 12/16/2019) contends that the Commission's action violates Judge Hensley's rights under the Texas Religious Freedom Restoration Act. The complaint also seeks a class-wide declaratory judgment. Fox 44 News reports on the lawsuit.

Evangelical Lobbyist Resigns After Statement Supporting Gay Civil Unions

Richard Cizik has resigned as vice president for governmental affairs of the National Association of Evangelicals (NAE). Already under criticism from some of the evangelical community for his strong stance on global warming, Wednesday night's resignation came after Cizik told Terry Gross on on National Public Radio's Fresh Air that he now believes in civil unions for same-sex couples. He also expressed support for government programs that supply contraceptives to prevent unintended pregnancies. Christianity Today reports on developments. It also has the transcript of part of the NPR interview. NPR has a recording of the full program available on its website.

A statement issued yesterday by the NAE says: "in a December 2, 2008 broadcast interview on National Public Radio, Richard responded to questions and made statements that did not appropriately represent the values and convictions of NAE and our constituents. Although he has subsequently expressed regret, apologized and affirmed our values there is a loss of trust in his credibility as a spokesperson among leaders and constituents." Cizik was one of the signers of a New York Times ad earlier this month condemning violence against the LDS Church for its support of California's Proposition 8 banning same-sex marriage. (See prior posting.)

6th Circuit Stays Tennessee Same-Sex Marriage Ruling

In Tanco v. Haslam, (6th Cir., April 25, 2014), the U.S. 6th Circuit Court of Appeals granted a stay pending appeal of a district court preliminary injunction requiring the state of Tennessee to recognize the same-sex marriages of 3 couples who were legally married in other states. (See prior posting.) The Tennessean reports on the decision. [Thanks to How Appealing for the lead.]

Administrative Complaint Charges Catholic School With Discrimination For Terminating Employee In Same-Sex Marriage

The Boston Globe reports on the employment discrimination complaint  (full text) filed yesterday with the Massachusetts Commission Against Discrimination by Matthew Barrett who was hired as food services director at a Catholic school. Three days after he accepted the position with Fontbonne Academy, the school terminated his employment because it learned from paperwork he had filled out that he was gay and had a same-sex spouse.

The Massachusetts law against discrimination (MGL Title XXI, Ch. 151B, Sec. 1(5)) provides:

[N]othing herein shall be construed to bar any religious or denominational institution or organization, or any organization operated for ... educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, and which limits membership, enrollment, admission, or participation to members of that religion, from... taking any action with respect to matters of employment, discipline, faith, internal organization, or ecclesiastical rule, custom, or law which are calculated by such organization to promote the religious principles for which it is established or maintained.

In its press release on the case, GLAD says: "Our laws carefully balance the important values of religious liberty and non-discrimination.  When Fontbonne Academy fired Matt from a job that has nothing to do with religion, they came down on the wrong side of the law."

Supreme Court Lifts Stay On Same-Sex Marriages In Kansas

The U.S. Supreme Court issued an order (full text) late afternoon today vacating the temporary stay initially granted by Justice Sotomayor in Moser v. Marie.  Justices Thomas and Scalia dissented indicating they would grant the stay.  The Court's action gives effect to a preliminary injunction against Kansas' same-sex marriage ban that was issued by a federal district court last week. (See prior posting.) Washington Post reports on the Supreme Court's action. [Thanks to Tom Rutledge for the lead.]

New Jersey Governor Drops Appeal of Same-Sex Marriage Decision

AP reports that yesterday New Jersey Governor Chris Christie announced that he is dropping the state's appeal in Garden State Equality v. Dow, a case in which a trial court extended the right to marry to same-sex couples in New Jersey. The governor's decision comes after Friday's decision by the New Jersey Supreme Court refusing to stay the trial court's opinion pending appeal. (See prior posting.) Christie said he was dropping the appeal because the Supreme Court's opinion denying a stay made it clear that the Court agreed with the trial court's decision.

Military Clears Way For Same-Sex Marriage Ceremonies

In the wake of the final repeal of the military's "Don't Ask, Don't Tell" policy, the Pentagon has issued two memos that clear the way for same-sex marriages to be performed on military bases by military chaplains in states where such marriages are legal.  As reported last week by the Washington Blade, a Sept. 21 memo (full text) from DOD's General Counsel says that: "Determinations regarding the use of DoD real property and facilities for private functions, including religious and other ceremonies, should be made on a sexual-orientation neutral basis, provided such use is not prohibited by applicable state and local laws." It adds that making facilities available does not amount to DoD endorsement of the activities.

A second memo (full text) dated Sept. 30 from Under Secretary of Defense Clifford Stanley says that military chaplains "may participate in or officiate any private ceremony, whether on or off a military installation" so long as it is not prohibited by state or local law. However a chaplain is not required to do so if it "would be in variance with the tenets of his or her religion or personal beliefs."

Certiorari Petition Filed Again In Bakery's Refusal To Design Wedding Cake For Same-Sex Marriage

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Klein v. Oregon Bureau of Labor and Industries, (Sup. Ct., filed 9/7/2022). This is the second time the case has worked its way up to the Supreme Court. (See prior posting.) At issue is a finding by the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused on religious grounds to design and create a wedding cake for a same-sex wedding. In January, the state court of appeals remanded the case to the Bureau of Labor and Industries for it to determine a remedy after finding that the Bureau's first determination of damages was tainted by non-neutrality. (See prior posting.) In August, the Bureau imposed damages of $30,000. First Liberty has additional background.

Mississippi AG Will Not Appeal Injunction Against Conscience Protection Act, Despite Governor's Appeal of Decision [UPDATED]

In a strong statement (full text) issued yesterday, Mississippi state Attorney General Jim Hood announced that he will not appeal a federal district court's injunction against enforcing HB 1523 , Mississippi's anti-LGBT Conscience Protection Act, (See prior posting.) Hood said in part:

First, both HB 1523’s critics and supporters acknowledge that the bill did not change state or federal law. For example, there is no state law requiring pastors to marry same-sex couples, and I doubt that the Legislature would ever pass one.  Moreover, the Mississippi Legislature has already passed the Religious Freedom Restoration Act which protects a person’s right to exercise his or her religious beliefs.  HB 1523’s critics and supporters also recognize that HB 1523 cannot overturn or preempt federal law.  As acknowledged by our Governor, HB 1523 is not a defense to a federal lawsuit.

Simply stated, all HB 1523 has done is tarnish Mississippi’s image while distracting us from the more pressing issues of decaying roads and bridges, underfunding of public education, the plight of the mentally ill and the need to solve our state’s financial mess....

Second, to appeal HB 1523 and fight for an empty bill that dupes one segment of our population into believing it has merit while discriminating against another is just plain wrong. I don’t believe that’s the way to carry out Jesus’ primary directives to protect the least among us and to love thy neighbor....

Misinformation that, without HB 1523, pastors, churches, bakers, wedding planners or other private service providers will be forced to violate their religious beliefs has been used repeatedly to frighten our citizens into supporting the dogmatic politicians who use religion for political gain.

Hood added however that depending on the wording of the final order he might appeal a separate federal court decision extending the injunction in an earlier same-sex marriage case to all court clerks who were not parties.(See prior posting.)

UPDATE: It should be noted that Mississippi Governor Phil Bryant has already filed a Notice of Appeal in the case, so presumably he will pursue the appeal using counsel other than the Attorney General.

Recent Articles, Forthcoming Books and Movie, of Interest

From SSRN:

• Nicole Jones, Did Fortune Tellers See this Coming? Spiritual Counseling, Professional Speech, and the First Amendment, (February 13, 2014).
• Allison G. Morrow, Will Your Religion Allow You…to Live? The Mature Minor Doctrine, Religious Exemptions, and a Look into Louisiana Law, (December 1, 2013).
• Mark L. Movsesian, Defining Religion in American Law: Psychic Sophie and the Rise of the Nones, (Robert Schuman Centre for Advanced Studies Research Paper No. 2014/19 (2014)).
• Ian C. Bartrum, The Curious Case of Legislative Prayer: Town of Greece v. Galloway, (Northwestern University Law Review Online Vol. 108, p. 218, 2014).
• Steven Douglas Smith, Is God Irrelevant?, (Boston University Law Review, Forthcoming).
• Caroline King, The Most Reasonable Standard: Why Justice O'Connor's Endorsement Test Applying the Reasonable Observer Should Be the Preferred Test for Evaluating Establishment Clause Violations, (February 7, 2014).
• James M. Oleske, Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses, (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 50, Forthcoming).
• Priscilla J. Smith, Who Decides Conscience? RFRA's Catch 22, (Brooklyn Journal of Law and Policy, Forthcoming).
• Courtney M. Cahill & Geoffrey Christopher Rapp, Does the Public Care How the Supreme Court Reasons? Empirical Evidence from a National Experiment and Normative Concerns in the Case of Same-Sex Marriage, (93 North Carolina Law Review, 2014, Forthcoming).
• Cary Franklin, Discriminatory Animus, (A Nation of Widening Opportunities? The Civil Rights Act at Fifty (Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press 2014)).
• SpearIt, Muslim Radicalization in Prison: Responding with Sound Penal Policy or the Sound of Alarm?, (Gonzaga Law Review, Vol. 49, No. 1, 2014).

From SSRN (non-U.S. law):

• Steven Douglas Smith, West and East: the Continuity of Persons, (San Diego Legal Studies Paper No. 14-141 (Feb. 2014)).
• Paula Defensor Knack, Legal Frameworks and Land Issues in Muslim Mindanao, (in Land and Post-conflict Peacebuilding, Jon Unruh & Rhodri Williams (eds.), Earthscan, 2013, pp 451-474).
• Gustavo Ariel Kaufman, Racial Discrimination vs. Religious Freedom in the JFS Decision, (February 19, 2014).
• Ioanna Tourkochoriti, Should Hate Speech Be Protected? Group Defamation, Party Bans, Holocaust Denial and the Divide between (France) Europe and the United States, (45 Columbia Human Rights Law Review (2014), Forthcoming).

SCOTUS Blog Contraceptive Mandate Symposium (Feb. 24-28, 2014):

• Rick Garnett, Symposium: Accommodations, religious freedom, and the Hobby Lobby case
• Elizabeth Wydra, Symposium: Under a straight-forward reading of constitutional text and history and fundamentals of corporate law, Hobby Lobby’s claims fail
• Mailee Smith, Symposium: In a battle of semantics, the family businesses win with scientific facts
• Ilya Shapiro, Symposium: Mandates make martyrs out of corporate owners

From elsewhere:

• Mark E. Chopko, Regulating Religious Charity: Current Issues and Future Challenges, 44 Rutgers Law Journal 55-88 (2013).
• Eugene Volokh, Religious Law (Especially Islamic Law) In American Courts, 66 Oklahoma Law Review 431-458 (2014).

Forthcoming Books:

• Steven P. Miller, The Age of Evangelicalism: America's Born-Again Years,  (Oxford Univ. Press, June 2014).
• Jimmy Carter, A Call to Action: Women, Religion, Violence, and Power, (Simon & Schuster, March 2014).

Forthcoming Movie:

• Daniel Lusco, Persecuted, (May 9, 2014) (reviewed by the Christian Post).

TRO Denied In Attempt To Stop Same-Sex Marriages In Rhode Island On Religious Freedom Grounds

According to the Providence Journal, a Rhode Island Superior Court judge yesterday denied a temporary restraining order in a suit challenging the constitutionality of the state's recently enacted same-sex marriage law which is scheduled to take effect Aug. 1. (See prior posting.) Plaintiff argued that the law will violate the state constitution's religious freedom protections by forcing people to accept in public spheres, such as schools, a practice that they oppose on religious grounds.

UPDATE: On Aug. 9, the court also denied a preliminary injunction in the case. (Providence Journal).

Nigerian Parliament Passes Bill To Ban Gay Marriages and Criminalize Gay Advocacy

The Washington Post reports that yesterday Nigeria's House of Representatives passed by voice vote a bill that had been passed by the Senate in 2011 that would ban same-sex marriage ceremonies in any church or mosque. Same-sex couples who marry would face up to 14 years in prison, while anyone who assists them would face a sentence of up to 10 years.  Also under the bill, anyone involved in an organization that advocates for gay rights, or anyone who engages in a "public show" of affection also could face 10 years in prison. It is not clear whether President Goodluck Jonathan will sign the bill.  Britain has threatened to cut off aid to any country that discriminates against gays. If the bill becomes law, it will likely be challenged in court.

Unauthorized Class Action Sought Millions For Denial of Religious Freedom and Right To Marry By Utah and LDS Church

Last Friday, a class action was filed in federal district court in Utah against the state of Utah and the LDS Church on behalf of "all persons denied freedom of religion and the right to marry"-- at least 500 people according to the complaint.  The complaint (full text) in Winburn v. State of Utah, (D UT, filed Dec. 27, 2013), describes the LDS Church as "an entity of defendant State of Utah," and alleges violations of the Fair Debt Collection Act, the Utah Pattern of Unlawful Activity Act and intentional infliction of emotional distress. It seeks damages of at least $25,000 for each class member. Yesterday, the lead plaintiffs in the case filed a "Notice of Voluntary Dismissal" (full text). The plaintiffs, Pidge Winburn and Amy Fowler-- a same-sex couple who were married on Dec. 23 after a federal court invalidated Utah's ban on same-sex marriage-- say they did not authorize the lawsuit, never spoke to the attorney who filed it, and learned of it only through a phone call from a reporter.  Apparently attorney E. Craig Smay who filed the suit learned of Winburn and Fowler through a feature article about them in the Dec. 26 Salt Lake Tribune.  According to yesterday's Salt Lake Tribune, Fowler says she plans to file a formal bar complaint against the attorney.

Catholic Agency Challenges Michigan's Child-Placement Anti-Discrimination Policy

Last week, a second lawsuit was filed challenging a settlement entered into by Michigan's Attorney General in which she agreed to enforce anti-discrimination provisions against adoption and foster care agencies contracting with the state which refuse to place children with same-sex couples or LGBTQ individuals who are otherwise qualified as foster care or adoptive parents. The first challenge was filed earlier this month in federal court. In last week's lawsuit, Catholic Charities West Michigan v. Michigan Department of Health and Human Services, (MI Ct. Claims, filed 4/25/2019), filed in state court, the complaint (full text) cites protections for faith-based child placement agencies found in Michigan statutes such as MCL §722.124e and §722.124f, and alleges in part:

[T]he Michigan Legislature intended to-- and did-- protect the religious exercise of faith-based providers like Catholic Charities.... Defendants have adopted a new policy that forces Catholic charities to choose between violating its religious beliefs about same-sex marriage and shutting down its foster care and adoption ministry.  Defendants' new policy misinterprets state law, violates Catholic Charities' rights under the U.S. and Michigan Constitutions, and adopts the anti-religious views and policy preferences of Defendant Attorney General Dana Nessel-- who has previously criticized Michigan's statutory protections for faith-based foster care and adoption providers as "a victory for the hate mongers."

ADF issued a press release announcing the filing of the lawsuit.

Christian University Trustees Sued Over LGBTQ Hiring Policy

Suit was filed this week in a Washington state trial court against six members of the Board of Trustees of Seattle-Pacific University challenging the University's policy of refusing to hire LGBTQ faculty or staff if they are in a same-sex marriage or a same-sex relationship.  The complaint (full text) in Guillot v. Whitehead, (WA Super. Ct., filed 9/11/2022), brought by a group of students, faculty and staff, alleges breach of fiduciary duty, fraud, negligent misrepresentation and interference with contractual relationships. It contends that "rogue" members of the University Board of Trustees have misled other Board members about the vote necessary to eliminate the hiring policy. The University, which was founded by the Free Methodist Church of North America, defines itself as a Christian university. One-third of its board members and its president must be members of the Free Methodist Church. The complaint alleges in part:

1. This case is about six men who act as if they, and the educational institution they are charged to protect, are above the law.

2. They are powerful men who use their positions, as trustees of Seattle Pacific University (“SPU”), to advance the interests of a religious denomination at the expense of the students, alumni, staff, and faculty of the university....

102. SPU is a university in crisis, stemming from the abusive leadership of entrenched interests who usurped control of the BOT to place it in service of sectarian-motivated LGBTQ+ discrimination....

AP reports on the lawsuit.

Kansas Federal District Court Implements Obergefell Holding

Even though the U.S. Supreme Court decided in the Obergefell case that same-sex marriages must be recognized, lower courts still need to tie up loose to make the ruling effective nationwide.  In Marie v. Mosier, (D. KA, Aug. 10, 2015), a Kansas federal district court issued a declaratory judgment that Kansas’ same-sex marriage laws (and related policies) violate the Constitution and thus are void. However in light of claims by Kansas officials that the state is voluntarily complying with the Obergefell holding, the court delayed issuing a permanent injunction to determine whether the issue is moot, saying:

In the Court’s view, the prudent course of action is to let defendants finish updating their policies and practices to conform to Obergefell’s new rule of constitutional law. The Court thus defers, for now, the portion of plaintiffs’ summary judgment motion seeking injunctive relief. Should subsequent events reveal that the Court’s hopefulness about Kansas officials’ pledge to comply with Obergefell is misplaced, plaintiffs may supplement their motion for summary judgment on their claims for injunctive relief...

SCOTUSblog discusses the opinion.

Cuba Referendum Approves Family Code Allowing Same-Sex Marriage and More

AP reports that on Sunday, voters in Cuba approved a new Family Law Code that allows same sex couples to marry and to adopt. The over 400-Article Code also allows surrogate pregnancies and expands grandparent rights. Cuba's evangelical movement opposed the new Code. The Code was approved by 66.9% in favor to 33.1% opposed. [Thanks to Scott Mange for the lead.]

Another Challenge Filed To Mississippi's Freedom of Conscience Law

As reported by AP, on Friday a third lawsuit was filed challenging Mississippi's House Bill 1523, the Protecting Freedom of Conscience From Government Discrimination Act. Mississippi Center for Justice announced the filing of the federal lawsuit which was brought by a group of clergy, community leaders, activists and a Hattiesburg church.  The complaint (full text) contends:

With the passage and approval of that bill, the Legislature and the Governor breached the separation of church and state, and specifically endorsed certain narrow religious beliefs that condemn same-sex couples who get married, condemn unmarried people who have sexual relations, and condemn transgender people.

Last month the ACLU filed a lawsuit challenging the new law (see prior posting) and plaintiffs in a suit that helped bring down the barriers to same-sex marriage in Mississippi have moved to challenge the law by reopening their lawsuit.

Supreme Court Blocks Broadcast of California Proposition 8 Trial

The U.S. Supreme Court yesterday, in a 5-4 decision, blocked the broadcast by a California federal district court of the non-jury trial challenging the constitutionality of Proposition 8-- California's ban on same-sex marriage. In Hollingsworth v. Perry, (Sup. Ct., Jan. 13, 2010), the per curiam majority opinion concluded that the federal district court did not follow the proper procedures in amending its rules to permit broadcast of the trial. It did not give enough time for public comment on its proposal. The majority said:

The trial will involve various witnesses, including members of same-sex couples; academics, who apparently will discuss gender issues and gender equality, as well as family structures; and those who participated in the campaign leading to the adoption of Proposition 8. This Court has recognized that witness testimony may be chilled if broadcast.... Some of applicants' witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment....

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

Technically the court granted a stay of the district court's order pending filing of petitions for a writ of certiorari and mandamus. The decision only related to the proposal to broadcast the trial live to a number of other courthouses around the country. It did not relate to the proposal to post recordings of the trial on YouTube at the end of each day. The 9th Circuit never approved that portion of the district court's poposal because the district court's technical staff encountered difficulties in preparing video that was suitable for online posting. Justice Breyer dissenting, joined by Justices Stevens, Ginsburg and Sotomayor said:

The majority’s action today is unusual. It grants a stay in order to consider a mandamus petition, with a view to intervening in a matter of local court administration that it would not (and should not) consider. It cites no precedent for doing so. It identifies no real harm, let alone “irreparable harm,” to justify its issuance of this stay.

The New York Times reports on the decision. (See prior related posting.)