ACLU Sues Kentucky Clerk Who Is Refusing To Issue Marriage Licenses

Yesterday the Kentucky ACLU filed a federal class-action lawsuit against Rowan County Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. (ACLU press release). The complaint (full text) in Miller v. Davis, (ED KY, filed 7/2/2015) alleges that Davis' refusal "constitutes a substantial, direct and continuous infringement upon Plaintiffs’ fundamental right to marry," as well as amounting to a violation of the Establishment Clause. AP reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Nathan B. Oman, How to Judge Shari'a Contracts: A Guide to Islamic Marriage Agreements in American Courts, (Utah Law Review, Vol. 2011, No. 1, p. 287, 2011).
• Douglas NeJaime, Marriage Inequality: Religious Exemptions and the Production of Sexual Orientation Discrimination, (California Law Review, Forthcoming).
• Kishor Kunal, Freedom of Religion in Secular State, (December 6, 2011).
• Munir Ahmad Mughal, English Translation of Ibn Hashsham's Siratun-Nabi (Peace Be Upon Him), (December 11, 2011).
• Steven Aiello, 'Islam and Social Justice in Iran': The Merging of Economic, Political and Religious Dogmas in the Iranian Revolution, (December 6, 2011).
• Jeffrey A. Parness, Statutory Parenthood for Same-Sex Partners, (Illinois Bar Journal, Vol. 99, p. 636, December 2011).
• Mohammed Khnifer, Goldman Sachs Claims that its $2 billion Sukuk Programme Follows a Murabaha Structure, Mohammed Khnifer Claims Otherwise – That it's Nothing More than Areverse Tawarruq,(December 6, 2011).

Britain's Court of Appeal Rejects Christian Agency's Ban On Same-Sex Couples Becoming Foster Parents

In The Queen (On the Application of Cornerstone (Northeast) Adoption and Fostering Services, Ltd. v. Her Majesty's Chief Inspector of Education, Children's Services and Skills (OFSTED), (EWCA, Sept. 24, 2021), England's Court of Appeal held that Cornerstone, a Christian foster care agency, violated the Equality Act 2010 and the Human Rights Act 1998 when it required clients with which it placed children to:

Set a high standard in personal morality which recognises that God's gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication, adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex.

The court said in part:

The detrimental impact on society and on individuals of discrimination on the ground of sexual orientation has led the law to set a demanding standard of justification.... [W]e should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion....

... [T]here can be no doubting the value of its work or the sincerity of [Cornerstone's] motives. However, in order to justify a policy of this nature, it needed to provide credible evidence that there would otherwise be a seriously detrimental impact on carers and children. The evidence it actually advanced did not go beyond the level of general assertion.... [W]hile I would not rule out the possibility of an organisation in this position putting up a substantial evidence-based case on justification, Cornerstone simply did not do that....

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

Ballot Measures In 6 States Watched By Religious Groups

At least six states on Tuesday have ballot measures that are being watched by religious groups. Here they are, along with links to the official ballot language for each proposal:

• Florida- Proposal 2- Marriage Protection Amendment.
• California- Proposition 8- Initiative to Eliminate Right of Same-Sex Couples to Marry.
• Arizona- Proposition 102- Constitutional Amendment Relating to Marriage.
• Michigan- Proposal 08-12- Proposed Constitutional Amendment on Human Embryo and Embryonic Stem Cell Research.
• South Dakota- Initiated Measure 11- To Prohibit Abortions Except in Cases Where the Mother's Life or Health Is At a Substantial and Irreversible Risk, and In Cases of Reported Rape and Incest.
• Colorado- Amendment 48- Definition of Person.

Saturday's American Chronicle has a report on ballot measures around the country.

California Brings Back "Bride" and "Groom" On Marriage Licenses

As previously reported, some in California are objecting to the current form of California's marriage licenses. In order to take account of now-recognized same-sex marriages, the forms merely identify the parties to be married as Party A and Party B. In response, the California Department of Public Health last week announced a change. Effective November 17, new forms will be used. They will call for information about the "First Person" and "Second Person" applying for the license. In addition, optional boxes will be available that can be checked to identify the applicants as "Bride" and "Groom". Yesterday, the AP reported on the change. [Thanks to Alliance Alert for the lead.]

6th Circuit Dismisses County Clerk's Suit As Moot

In Miller v. Davis, (6th Cir., April 19, 2016), the U.S. 6th Circuit Court of Appeals dismissed as moot the appeal by Rowan County, Kentucky, Clerk Kim Davis seeking a preliminary injunction against a requirement that she issue marriage licenses to same-sex couples in violation of her religious beliefs.  The court said:

On December 22, 2015, the newly-elected Governor of Kentucky issued an executive order revising Kentucky's marriage license form to eliminate the need for the name and signature of the county clerk. Davis's counsel issued a press release stating that the revised form will permit Davis and the other county clerks "to do their jobs without compromising religious values and beliefs."

The Louisville Courier-Journal reports on the decision.

Democratic 2012 Platform: Provisions on Faith In America, Civil Rights, and Social Issues

As reported by Raw Story, the Democratic Party released it 2012 Platform (full text) on Monday night. It includes a number of provisions on the role of faith in America and on issues that have been of particular concern to religious groups.  The Platform section titled "Strengthening the American Community" includes the following:

Faith has always been a central part of the American story, and it has been a driving force of progress and justice throughout our history. We know that our nation, our communities, and our lives are made vastly stronger and richer by faith and the countless acts of justice and mercy it inspires. Faith- based organizations will always be critical allies in meeting the challenges that face our nation and our world – from domestic and global poverty, to climate change and human trafficking. People of faith and religious organizations do amazing work in communities across this country and the world, and we believe in lifting up and valuing that good work, and finding ways to support it where possible. We believe in constitutionally sound, evidence-based partnerships with faith-based and other non-profit organizations to serve those in need and advance our shared interests. There is no conflict between supporting faith-based institutions and respecting our Constitution, and a full commitment to both principles is essential for the continued flourishing of both faith and country.

The Platform supports "comprehensive immigration reform that supports our economic goals and reflects our values as both a nation of laws and a nation of immigrants;" "policies that truly value families," and "a woman’s right to make decisions regarding her pregnancy, including a safe and legal abortion, regardless of ability to pay." It also provides:

We support marriage equality and support the movement to secure equal treatment under law for same-sex couples. We also support the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference.

The Platform Section on Civil Rights says in part:

At the core of the Democratic Party is the principle that no one should face discrimination on the basis of race, ethnicity, national origin, language, religion, gender, sexual orientation, gender identity, or disability status. Democrats support our civil rights statutes and we have stepped up enforcement of laws that prohibit discrimination in the workplace and other settings. We are committed to protecting all communities from violence. We are committed to ending racial, ethnic, and religious profiling and requiring federal, state, and local enforcement agencies to take steps to eliminate the practice....

 ...we must continue our work to prevent vicious bullying of young people and support LGBT youth... The Administration has said that the word 'family' in immigration includes LGBT relationships in order to protect bi-national families threatened with deportation.

 The Platform also contains sections on "Combating Human Trafficking" and on "Gay Rights As Human Rights."

Recent Law Review Review Articles

From SSRN:

• Marie Ashe, Privacy and Prurience: An Essay on American Law, Religion, and Women, (American Journal of Legal History, Vol. 51, p. 461, 2011).
• Katherine Spencer, Mahr as Contract: Internal Pluralism and External Perspectives, (Oñati Socio-Legal Series, Vol. 1, No. 2, 2011).
• Paul Horwitz, Act III of the Ministerial Exception, (Northwestern University Law Review, Forthcoming).
• Richard W. Painter, The Moral Responsibilities of Investment Bankers, (University of St. Thomas Law Journal, Vol. 8, No. 1, 2010).
• Samuel T. Grover, Religious Conscience Exemptions to the PPACA Health Insurance Mandate, (American Journal of Law and Medicine, Vol. 37, No. 4, 2011).
• Leslie C. Griffin, Ordained Discrimination: The Cases Against the Ministerial Exception, (U of Houston Law Center No. 2011-A-9, Sept. 30, 2011).
• Susan E. Hauser, More Than Abstract Justice: The Defense of Marriage Act and the Equal Treatment of Same-Sex Married Couples Under Section 302(A) of the Bankruptcy Code, (American Bankruptcy Law Journal, Forthcoming).
• Anita Bernstein, Toward More Parsimony and Transparency in 'The Essentials of Marriage', (Michigan State Law Review, Vol. 81, 2011).
• Caroline Mala Corbin, The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, (Northwestern University Law Review Colloquy, Forthcoming).

SmartCILP:

• John Garvey, Intellect and Virtue: The Idea of a Catholic University, 60 Catholic University Law Review 563-573 (2011).
• Samuel J. Levine, Second Annual Holocaust Remembrance Lecture at Washington University. Jewish Law From Out of the Depths: Tragic Choices in the Holocaust, 10 Washington University Global Studies Law Review 133-142 (2011).

HHS To Allow Grantees To Refuse To Serve LGBT Clients

On Nov. 1, the U.S. Department of Health and Human Services announced actions that effectively allow agencies receiving HHS grants, including foster care and adoption agencies, to refuse to serve gay, lesbian and transgender individuals and families on religious grounds. First, HHS issued a Notice of Non-Enforcement of  rules adopted in 2016 that prohibit such discrimination. The non-enforcement decision was based on "significant concerns about compliance with the Regulatory Flexibility Act" in the promulgation of the 2016 rules.  HHS then issued a Notice of Proposed Rulemaking that would repromulgate the rules with narrower anti-discrimination protections. The proposed new rules would replace this section:

(c) It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.

(d) In accordance with the Supreme Court decisions in United States v. Windsor and in Obergefell v. Hodges, all recipients must treat as valid the marriages of same-sex couples. This does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law as something other than a marriage.

The new rules will instead provide:

(c) It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute.

(d) HHS will follow all applicable Supreme Court decisions in administering its award programs.

In its announcement, HHS said in part:

The proposed rule would better align its grants regulations with federal statutes, eliminating regulatory burden, including burden on the free exercise of religion.

New York Times reports on the HHS action.

Recent Articles and Book of Interest

From SSRN:

• Haider Ala Hamoudi, Religious Minorities and Shari’a in Iraqi Courts, (Boston University International Law Journal, 2013, Forthcoming).
• Mark Anthony Frassetto, Catholic Emancipation: 1760-1829, (January 9, 2013).
• Donn Short, Queering Schools, GSAs and the Law: Taking on God, (Gerald Walton, ed, The Gay Agenda: Claiming Space, Identity & Justice, New York: Peter Lang, 2013).
• Wayne Barnes, Render Unto Rawls: Law, Gospel, and the Evangelical Fallacy, (January 11, 2013).
• Adilson Jose Moreira, We are Family! Legal Recognition of Same-Sex Unions in Brazil, (American Journal of Comparative Law, Vol. 60, No. 4, 2012).
• Joseph Benjamin Landau, DOMA and Presidential Discretion: Interpreting and Enforcing Federal Law, (Fordham Law Review, Vol. 81, 2012).
• Joseph Benjamin Landau, Symposium Foreword to Defense of Marriage Act: Law, Policy, and the Future of Marriage, (Fordham Law Review, Vol. 81, p. 537, 2012).
• Shafi'i Abdul Azeez Bello, Application of 'Urf in Islamic Law, (January 11, 2013).

From SmartCILP and elsewhere:

• Stewart L. Harris, Which Bible? Which God?, (12 Appalachian Journal of Law 151-166, 2012).
• Faisal Kutty, Free Expression and an Elusive Middle Ground: Part Two, (JURIST - Forum, Jan. 7, 2012).

Recent Book:

• Andrew Koppelman, Defending American Religious Neutrality, (Harvard Univ. Press, Jan. 2013), reviewed by Daily Northwestern.

Suit By Web Designer Challenges LGBT Anti-Discrimination Law

Last week, Lorie Smith, the owner of a Colorado graphic and web design company, filed suit in federal district court challenging the constitutionality of Colorado's public accommodation anti-discrimination law.  The complaint (full text) in 303 Creative LLC v. Elenis, (D CO, filed 9/20/2016) alleges that the anti-discrimination provisions as they apply to plaintiffs violate various provisions of the 1st and 14th Amendments, including the free exercise clause.  The complaint alleges:

7. Colorado law makes it unlawful for Lorie and 303 Creative to publish, display, or mail any communication stating that they will not design, create, or publish websites celebrating same-sex marriages. See Colo. Rev. Stat. § 24-34-601(2)(a).

8. Colorado law also makes it unlawful for Lorie and 303 Creative to publish, display, or mail any communication indicating that a person’s patronage at 303 Creative is “unwelcome, objectionable, unacceptable, or undesirable” because of sexual orientation. See Colo. Rev. Stat. § 24-34-601(2)(a).

9. Therefore, Lorie and 303 Creative cannot explain on 303 Creative’s website their religious belief that God designed marriage as an institution between one man and one woman and why they cannot create wedding websites promoting and celebrating any other conception of marriage.

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

6th Circuit Denies Kim Davis Stay of Injunction Pending Appeal

Yesterday in Miller v. Davis, (6th Cir., Sept. 17, 2015), the U.S. 6th Circuit Court of Appeals denied a motion by Rowan County, Kentucky Clerk Kim Davis to stay the preliminary injunction against her, pending appeal. The district court had enjoined Davis from refusing to issue marriage licenses to same-sex couples.  The appeals court said that Davis had not sought a stay from the district court, as required by Federal Rules, before asking the Court of Appeals for a stay.  Davis argued that it would have been useless to go to the district court first.

UPDATE: Marty Lederman at Balkinization blog (9/19) has a lengthy discussion of whether Kim Davis or her office is in violation of the federal district court's injunction in the implementation of the issuance by a deputy clerk of marriage licences with modified language.

Recent Articles and Book of Interest

From SSRN:

• Cornelia Koch, The Sky is Falling If Judges Decide Religious Controversies! - Or is it? The German Experience of Religious Freedom under a Bill of Rights, (P. Babie and N. Rochow (eds), Freedom of Religion under the Bill of Rights', University of Adelaide Press, Adelaide 190-215, 2012).
• Paul T. Babie and Neville Grant Rochow, SC, Protecting Religious Freedom under Bills of Rights: Australia as Microcosm, (P. Babie and N. Rochow (eds), Freedom of Religion under the Bill of Rights', University of Adelaide Press, Adelaide 190-215, 2012).
• Ngaire Naffine, How Religion Constrains Law and the Idea of Choice, (P. Babie and N. Rochow (eds), Freedom of Religion under the Bill of Rights', University of Adelaide Press, Adelaide 190-215, 2012).
• Jonathan C. Augustine, Environmental Justice and Eschatology in Revelation, (Loyola Law Review, New Orleans, Vol. 58, No. 2, 2012, Forthcoming).
• Bruce MacDougall, Elsje Bonthuys, Kenneth Norrie, and Marjolein Van den Brink, Conscientious Objection to Creating Same-Sex Unions: An International Analysis, (Canadian Journal of Human Rights, Vol. 1, No. 1, pp. 127-164, 2012).
• Patrick McKinley Brennan, The Mighty Work of Making Nations Happy: A Response to James Davison Hunter, (Pepperdine Law Review, Forthcoming).
• Carl H. Esbeck, Defining Religion Down: Hosanna-Tabor, Martinez, and the U.S. Supreme Court, (First Amendment Law Review, Forthcoming).
• Terri Day and Leticia M Diaz, The Affordable Care Act and Religious Freedom: The Next Battleground, Georgetown Journal of Law & Public Policy, Vol. 11, No. 1, 2012.
• Rachel Gillum and David C. Wilson, American Muslims or Muslim Americans?: Impact of Perceived Discrimination on Confidence in Security Institutions, (August 27, 2012).
• Bradley T. Borden and Katherine E. David, Sales of Church Real Property to Parishioners, (24 Tax’N Exempts 3, July/Aug. 2012).

From SmartCILP:

• Jack B. Harrison, The Strange Intersection Between Law, Religion, and Government in the Regulation of Marriage, 6 Charleston Law Review 547-568 (2012).
• Kim Benita Vera, From Papal Bull to Racial Rule: Indians of the Americas, Race, and the Foundations of International Law, [Abstract], 42 California Western International Law Journal 453-472 (2012).

Recent Book:

• Shimon Gershon Rosenberg, Zot Briti (This Is My Covenant: Conversion, Secularization, Civil Marriage ), edited by Amnon S. Dukov, Zohar Maor, Moshe S. Faloch, The Institute for the Advancement of Rabbi Shagar's Writings, 258 pages (in Hebrew ). Reviewed in Haaretz.

Top 10 Religious Liberty and Church State Developments of 2019

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. This year has been a particularly active one, and 2020 promises to be even more eventful.  The selection of top stories obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Ten picks as another year comes to an end:

1. The ongoing battle over abortion rights, including the Supreme Court's action on Indiana's abortion law in Box v. Planned Parenthood, and Justice Thomas opinion focusing on abortion as eugenics; Supreme Court's granting of certiorari on Louisiana's abortion law; increasingly restrictive enactments by various states; and challenges to new HHS health care conscience rules.
   
2. Supreme Court's decision in American Legion v. American Humanist Society clarifying when religious-themed monuments on public property may remain.
   
3. Controversies over transgender rights, including Supreme Court's grant of review in cases on Title VII protections for LGBT employees, and DOD's amended policy on transgender service in the military.
   
4. Growth of anti-Semitism and governmental efforts to combat it, including controversial interpretation of Title VI.
   
5. Litigation and rule-making over whether adoption and foster care agencies receiving government funding can refuse to place children with same-sex couples.
   
6. Elimination of religious exemptions to vaccination requirements in wake of measles outbreaks, especially in New York.
   
7.  Supreme Court weighs in on inmates' access to chaplains during execution.
   
8. Extensions of statutes of limitations lead to flood of clergy abuse cases.
   
9. 7th Circuit upholds tax code's parsonage allowance.
   
10. India's courts and Parliament make major rulings that infringe on religious autonomy: Hindu Marriage Act covers transgender marriage; Parliament outlaws triple talaq; court bans animal sacrifice; power of ecclesiastical courts reduced; disputed holy site awarded to Hindus.

For other opinions on 2019's top stories, see the lists from Don Byrd at BJC, and from from the Religion News Association.

Teacher Reinstated After Anti-Gay Marriage Facebook Posting Now Charged With Improper Religious Statements

In Lake County, Florida on Wednesday, school Superintendent Susan Moxley ruled that Mount Dora High School social studies teacher Jerry Buell did not violate the district's code of ethics when he he posted an anti-gay marriage message on his personal Facebook page. The posting said that same-sex unions are a "cesspool" that make him want to throw up. WFTV News reports that the former Teacher of the Year was reinstated when school officials concluded that his posting did not "disrupt the orderly processes of the district." Yesterday, however, the Orlando Sentinel reported that officials have placed a "written directive" in Buell's personnel file because of religious postings on his school webpage and in his class syllabus.  On the webpage, Buell wrote that he tries to "teach and lead my students as if Lake Co. Schools had hired Jesus Christ himself."  On his syllabus, he tells students: "I teach God's truth, I make very few compromises. If you believe you may have a problem with that, get your schedule changed, 'cause I ain't changing!" The webpage has been removed and Buell has been instructed to delete some parts of his syllabus.

Meanwhile, at a rally yesterday, Liberty Counsel featured Buell "along with others who have received similar persecution for their Christian beliefs."

Seminarian Wins Preliminary Injunction Permitting Picketing of Wal-Mart

Yesterday's Shreveport Times reported that on Monday a Louisiana federal district court granted a preliminary injunction barring the enforcement of three Natchitoches, LA ordinances against Edwin Crayton, a Christian seminary student who opposes gay marriage on religious grounds. Crayton wished to picket a Wal-Mart store in Natchitoches, believing that Wal-Mart supports gay marriage rights. However he was told that he needed a permit from the mayor and police chief in order to protest on a public sidewalk in front of the store. His lawsuit alleges (full text of complaint) that the city's permit ordinances are unconstitutional because they grant excessive discretion to the mayor and police chief, they are not narrowly tailored to further a legitimate governmental interest, and, in any event, he did not engage in a public gathering or open-air meeting-- the activities covered by the ordinances. The case is Crayton v. City of Natchitoches, Civ. Action No. 06-1946-A (WD LA, Nov. 13, 2006).

Today's 365 Gay reports that other Christian groups have also criticized Wal-Mart's LGBT diversity program, including its definition of an employee's "immediate family" to include a same-sex partner.

More On The Marriage Protection Amendment Debate

As the Senate today debates the Marriage Protection Amendment (see prior posting), with a vote possible tomorrow, proponents warn that without it religious organizations may end up being forced to provide benefits to same-sex couples even if doing so violates the organizations' religious beliefs. Others say that this fear is exaggerated. (Chicago Tribune story.) Meanwhile some others note that the date set for a Senate vote, June 6, 2006, has the ominous abbreviation "6 6 06". (The Conservative Voice.)

Utah Enacts LGBT Anti-Discrimination Law With Extensive Religious Exemptions

As reported by JDSupra, on March 12, Utah Governor Gary Herbert signed S.B. 296,  Antidiscrimination and Religious Freedom Amendments to Utah's laws banning disrimination in employment and housing.  The bill reflected a compromise backed by the Mormon Church, as well as by supporters of LGBT rights, to ban discrimination based on sexual orientation and gender identity while giving broad religious exemptions from the anti-discrimination requirements. (See prior posting.)  Here is the full text of the religious exemptions:

  34A-5-102. Definitions -- Unincorporated entities
(i)(ii) "Employer" does not include:
(A) a religious organization, a religious corporation sole, a religious association, a religious society, a religious educational institution, or a religious leader, when that individual is acting in the capacity of a religious leader;
(B) any corporation or association constituting an affiliate, a wholly owned
subsidiary, or an agency of any religious organization, religious corporation sole, religious association, or religious society; or
(C) the Boy Scouts of America or its councils, chapters, or subsidiaries...

   34A-5-111. Application to the freedom of expressive association and the free exercise of religion.
       This chapter may not be interpreted to infringe upon the freedom of expressive association or the free exercise of religion protected by the First Amendment of the United States Constitution and Article I, Sections 1, 4, and 15 of the Utah Constitution....

    34A-5-112. Religious liberty protections -- Expressing beliefs and commitments in workplace -- Prohibition on employment actions against certain employee speech.

(1) An employee may express the employee's religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the  employer in the workplace, unless the expression is in direct conflict with the essential business-related interests of the employer.

(2) An employer may not discharge, demote, terminate, or refuse to hire any person, or  retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against any person otherwise qualified, for lawful expression or  expressive activity outside of the workplace regarding the person's religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer....

  57-21-3. Exemptions -- Sale by private individuals -- Nonprofit organizations --Noncommercial transactions....

(2) This chapter does not apply to a dwelling or a temporary or permanent residence  facility if:
(a) the discrimination is by sex, sexual orientation, gender identity, or familial status for reasons of personal modesty or privacy, or in the furtherance of a religious institution's free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution; and
(b) the dwelling or the temporary or permanent residence facility is:
(i) operated by a nonprofit or charitable organization;
(ii) owned by, operated by, or under contract with a religious organization, a religious association, a religious educational institution, or a religious society;
(iii) owned by, operated by, or under contract with an affiliate of an entity described in Subsection (2)(b)(ii); or
(iv) owned by or operated by a person under contract with an entity described in
Subsection (2)(b)(ii).

... (4) (a) (i) Unless membership in a religion is restricted by race, color, sex, or national origin, this chapter does not prohibit an entity described in Subsection (4)(a)(ii) from:
(A) limiting the sale, rental, or occupancy of a dwelling or temporary or permanent residence facility the entity owns or operates for primarily noncommercial purposes to persons of the same religion; or
(B) giving preference to persons of the same religion when selling, renting, or selecting occupants for a dwelling, or a temporary or permanent residence facility, the entity owns or operates for primarily noncommercial purposes.

       (ii) The following entities are entitled to the exemptions described in Subsection (4)(a)(i):
(A) a religious organization, association, or society; or
(B) a nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society.

... (7) This chapter does not prohibit a nonprofit educational institution from:
(a) requiring its single students to live in a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution;
(b) segregating a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution on the basis of sex or familial status or both:
 (i) for reasons of personal modesty or privacy; or
 (ii) in the furtherance of a religious institution's free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution....

Recent Articles of Interest

From SSRN:

• Muthoifin Muthoifin & Dimas Adi Saputra, Early Marriage in Islam and its Implementation in Indonesia, (May 27, 2024).
• David E. Guinn, Negotiating Peace in Ethno-Religious Infused Conflict: Applying Religiously Informed Socio-Secular Analysis to the Israeli-Palestinian Conflict, (May 16, 2024).
• Robert W. Gomulkiewicz, Separated by a Door Not a Wall: Replacing a Powerful Establishment Clause Metaphor, (University of Pennsylvania Journal of Constitutional Law, Forthcoming vol. 27 (2025)).
• Clark B. Lombardi, Reynolds Revisited: The Original Meaning of Reynolds v. United States and Free Exercise after Fulton, 75 Ala. L. Rev. 1009 (2024).
• Christopher C. Lund, Church Autonomy in the United States, (in Freedom of Religion and Religious Pluralism (Md Jahid Hossain Bhuiyan & Carla M. Zoethout, eds., Brill, 2023).
• Michael Lewyn, Intentional Discrimination and Haredi Jews, (51 Real Estate L.J. 25 (2022)).
• Holning Lau, Decriminalizing Same-Sex Sexual Activity: Jurisprudence from the Global South, (International Journal of Constitutional Law, Vol. 22 (2024 forthcoming)).
• An Qi Tan, The Impact of Charitable Giving on Financial Wellbeing: Aligning Values with Financial Security (May 28, 2024).
• S. Ernie Walton & Eric A. DeGroff, Brief as Amici Curiae in Support of Petitioners in John and Jane Parents 1 v. Montgomery County Bd. of Educ., (January 24, 2024).

From SSRN (Islamic Law):

• Fatima Idrees, Concept of Mal and Ownership: Comparison in Positive Law and Shariah Law (April 25, 2024).
• Fatima Idrees, Islamic Perspective: Terrorism and Human Rights (April 25, 2024).
• Fatima Idrees, A Comparative Analysis of the Responsibility and Limitations of an Agent in Contract Act, 1872 and Islamic Law of Contract, (April 25, 2024).
• Fatima Idrees, Charter of Madina: The First Constitutional Document, (April 25, 2024).
• Zainuddin Zainuddin, Islamic Economic Law Perspectives of Profit-Sharing Systems (Teseng) in the Cultivation of Rice Fields in Bugis-Makassar Community, South Sulawesi, Indonesia, (April 24, 2024).
• Murtala, Wazeer, Beyond Religious Divide: How the Muslim Community in Romania are Helping Refugees from Ukraine, (April 29, 2023).

From SmartCILP and elsewhere:

• Ahmed Al Rawi, Blocking Faith: How American Muslims Are Chilled through the New Anti-Muslim Statutes and the Security Agencies' Surveillance in the Era of Digital Policing, 39 Touro Law Review 1-42 (2023).
• Journal of Law and Religion, Vol. 39, Issue 1 (Jan 2024). (Open access until 6/30/2024).

Britain's Court of Appeals Rules Against Gay Priest's Employment Discrimination Claim

In Pemberton v Inwood, (EWCA , March 22, 2018), the England and Wales Court of Appeal ruled against Jeremy Pemberton, a gay Church of England priest who was prevented from taking a position as a hospital chaplain when he married his same-sex partner.  Pemberton sued claiming employment discrimination and harassment. Lady Justice Asplin's opinion held that the action taken against Pemberton falls within a statutory exception from the Equality Act's discrimination provisions for religious organizations that impose various requirements regarding marriage and sexual orientation.  Rejecting Pemberton's harassment claim, Justice Asplin said in part:

If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive.

 The Guardian reports on the court's decision. (See prior related posting.)