Ministerial Exception In Hostile Work Environment Cases

In Demkovich v. St. Andrew the Apostle Parish, Calumet City, (ND IL, Sept. 30, 2018), an Illinois federal district court set out an extensive analysis of when the ministerial exception doctrine bars claims for a hostile work environment, as opposed to claims involving firing or refusal to hire, under Title VII and the ADA.  In the case, a parish music director claimed damages because of abusive and harassing behavior growing out of his engagement and marriage to a same-sex partner.  The court said in part:

[W]hen a minister brings a claim that does not challenge a tangible employment action, then whether the First Amendment bars the claim depends on a case-by-case analysis on the nature of the claim, the extent of the intrusion on religious doctrine, and the extent of the entanglement with church governance required by the particular litigation. If the nature of the claim would require that a court take stance on a disputed religious doctrine, then that weighs in favor of First Amendment protection for the church....

If, on the other hand, no religious justification is offered at all (for a nontangible employment action), then there would be little or no risk of violating the Free Exercise Clause....

... [L]itigation over Reverend Dada’s alleged harassment based on Demkovich’s sex, sexual orientation, and marital status would excessively entangle the government in religion. To start, the Archdiocese offers a religious justification for the alleged derogatory remarks and other harassment....

... [H]arassing statements and conduct are motivated by an official Church position (or at least the Archdiocese would defend the case on those grounds). Of course, regulating how the official opposition is expressed is not as directly intrusive as outright punishing the Church for holding that position (which a federal court cannot do). But it comes close, and must weigh in favor of barring the claim under the Religion Clauses. 

Recent Articles of Interest

From SSRN:

• Kyle Fields, Tohono O'odham Legal Systems, (August 1, 2018).
• Shahbaz Ahmad Cheema, Indigenization of Restitution of Conjugal Rights in Pakistan: A Plea for its Abolition, (August 28, 2018).
• Stephen M. Bainbridge, Restoring Confidence in the Roman Catholic Church: Corporate Governance Analogies, (UCLA School of Law, Public Law Research Paper No. 18-32 (2018).
• Amanda Shanor, First Amendment Coverage, (93 New York University Law Review 318 (2018)).
• Steven Douglas Smith, 'Fixed Star' or Twin Star? the Ambiguity of Barnette, (San Diego Legal Studies Paper No. 18-363 (2018)).
• Serena Mayeri, Intersectionality and the Constitution of Family Status, (Constitutional Commentary, Vol. 32, Pg. 377, 2017).
• Lisa Chiyemi Ikemoto, Reproductive Rights and Justice: A Multiple Feminist Theories Account, (in Research Handbook on Feminist Jurisprudence (Robin West and Cynthia Bowman eds., Elgar Press, Forthcoming).
• Shannon Gilreath, A Comprehensive Rethinking of Equal Protection Post-Obergefell: A Plea for Substantivity in Law, (Wake Forest Univ. Legal Studies Paper (2018)).
• Shahbaz Ahmad Cheema, Revisiting Abdul Kadir v Salima: Locus Classicus on Civil Nature of Marriage?, (August 01, 2018).
• Avishai Benish, Dana Halevy & Shimon Spiro, Regulating Social Welfare Services: Between Compliance and Learning, (Forthcoming in International Journal of Social Welfare).

From SSRN (Legal issues relating to sexual orientation and religion):

• John G. Culhane, The Right to Say, But Not to Do: Balancing First Amendment Freedom of Expression with the Anti-Discrimination Imperative, (Widener Law Review, Vol. 24, 2018).
• Robert Leckey, Religion and Same-Sex Marriage, (In David Koussens, Benjamin Prud’homme & Safa Ben Saad (eds), La religion en droit de la famille: Le religieux comme variable de prise de décision dans un droit familial laïcisé [2019 Forthcoming]).
• Nausica Palazzo, The Strange Pairing: Building Alliances between Queer Activists and Conservative Groups to Recognize New Families, )Michigan Journal of Gender & Law, Vol. 25, No. 2, Fall 2018, Forthcoming).
• Thomas C. Berg, Masterpiece Cakeshop: A Romer for Religious Objectors?, (2017 Cato Supreme Court Review 139).
• Jordan Blair Woods, Religious Exemptions and LGBTQ Child Welfare, (Minnesota Law Review, Vol. 103 (May 2019, Forthcoming)).
• Robert C. Blitt, Leveraging Regional Human Rights Mechanisms Against Universal Human Rights: The OIC Independent Permanent Human Rights Commission Study on Sexual Orientation, (William & Mary Law Review Online, Vol. 60(1) 2018).
• Steven Douglas Smith, Obergefell and the Reconstituting of America, (San Diego Legal Studies Paper No. 18-364 (2018)).
• Justin O'Neill, The Queer Case of the LGBT Movement, (41 University of Hawaii Law Review (2019 Forthcoming)).

From SmartCILP:

• Ziaulrahman Mushkalamzai, Justifications for the Three-Tiered Judicial System in Afghanistan: Comparative Perspectives on Islamic Jurisprudence, 48 California Western International Law Journal 85-121 (2017).
• Faraz Siddiqui & Aleea Stanton, Blocking the Means to Exploit: Ending Kafala Under the Principle of Sadd al-Dhara'i, [Abstract], 61 Howard Law Journal 341-368 (2018).
• Nicole B. Godfrey, Holding Federal Prison Officials Accountable: The Case for Recognizing a Damages Remedy for Federal Prisoners' Free Exercise Claims, 96 Nebraska Law Review 924-976 (2018).
• JD Hsin, Defending the Public's Forum: Theory and Doctrine In the Problem of Provocative Speech, 69 Hastings Law Journal 1099-1145 (2018).

Court Refuses To Dismiss Challenge To Michigan's Protection of Catholic Adoption Agencies

In an important decision, a Michigan federal district court in Dumont v. Lyon, (ED MI, Sept. 14, 2018), held that same-sex couples can move ahead with their Establishment Clause and equal protection claims against the Michigan Department of Health and Human Services for permitting child placing agencies that contract with the state and receive state funds to use religious criteria to refuse to place children with same-sex couples.  Laws enacted by the Michigan legislature in 2015 protect child-placing agencies from being required to provide adoption or foster care placements that conflict with their sincerely held religious beliefs, or being penalized for doing so. (See prior posting.)

In a 93-page opinion, the court first concludes that plaintiffs have Article III (but not taxpayer) standing to bring their challenges. Then, denying defendants' motion to dismiss, the court says in part:

Plaintiffs plausibly allege ... that the State’s practice of contracting with and permitting faith-based child placing agencies to turn away same-sex couples has both the subjective purpose of discriminating against those who oppose the view of the faith-based agencies ... and objectively endorses the religious view of those agencies that same-sex marriage is wrong, sending a “‘message [to Plaintiffs] that they are outsiders, not full members of the community.’”....

The child placing agencies are, in many ways, the gateway for a family seeking to adopt or foster a child into Michigan’s adoption and foster care system. The scope of their duties, and hence any “government exclusivity” of the functions they perform, must be the subject of further discovery. For purposes of analyzing Plaintiffs’ Establishment Clause claim, the Court must accept the allegations of the Complaint as true and such allegations surely “implicate” the Establishment Clause and plausibly suggest “excessive entanglement” such that the Court will allow Plaintiffs’ Establishment Clause claim to proceed further....

Plaintiffs are entitled to an opportunity to conduct discovery to support their claim that the State’s practice of continuing to contract with faith-based agencies that invoke PA53’s religious belief protection to turn away same-sex couples lacks a rational basis and to further develop their Equal Protection claim.

ACLU issued a press release announcing the decision.

New Survey On Religious Refusals To Provide Service and More

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

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

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

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

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

Lesbian Spouses Sue Senior Housing Community For Discrimination

A suit was filed in Missouri federal district court this week by a lesbian married couple against a senior housing community for refusing to rent to same-sex couples. The complaint (full text) in Walsh v. Friendship Village of South County, (ED MO, filed 7/25/2018), alleges that the senior housing community which is not religiously affiliated has a Cohabitation Policy that provides:

Friendship Village “will permit the cohabitation of residents within a single unit only if those residents, while residing in said unit, are related as spouses by marriage, as parent and child or as siblings,” defining “[t]he term ‘marriage’ as used in this policy means the union of one man and one woman, as marriage is understood in the Bible.”

The suit alleges violation of the Federal Fair Housing Act and Missouri's Human Rights Act. Friendly Atheist blog has more on the lawsuit.

Court Rejects Challenges To Foster Care Agency Non-Discrimination Requirement

In Fulton v. City of Philadelphia, (ED PA, July 13, 2018), a Pennsylvania federal district court rejected Catholic Social Services challenges to the requirement that it not discriminate against same-sex couples in foster care placement.  CSS argued that the requirement violates the Free Exercise, Free Speech and Establishment Clauses of the 1st Amendment as well as Pennsylvania's Religious Freedom Act. The court refused to issue a preliminary injunction against enforcement of the requirement, saying in part:

CSS’s compliance with the terms of the Services Contract does not: constrain or inhibit CSS from conduct or expression mandated by its religious beliefs, curtail CSS’s ability to express adherence to CSS’s religious faith, deny CSS a reasonable opportunity to “provide foster care to children,” or compel CSS to engage in conduct or expression that violates a “specific tenet” of CSS’s religious faith....

CSS contends that the provision of certification services for same-sex couples would require CSS to express its religious approval of same-sex relationships in contravention of Catholic teaching about marriage. This is not the case. To illustrate this point, if, for example, CSS were to certify a couple where one spouse is previously divorced, CSS’s certification would not suggest that CSS approved of divorce as a religious matter.

Philadelphia Inquirer reports on the decision.

Recent Articles of Interest

From SSRN:

• Kaiponanea T. Matsumura, Consent to Intimate Regulation, (North Carolina Law Review, Vol. 96, No. 4, 2018).
• Margo A. Bagley, The Morality of Compulsory Licensing as an Access to Medicines Tool, (Minnesota Law Review, Forthcoming).
• Paul T. Babie, Parliamentary Prayer and the Establishment of Religion, (February 2018) 40(1) the Bulletin of the Law Society of South Australia 12-15).
• Noel D. Johnson & Mark Koyama, The State, Toleration, and Religious Freedom, (Advances in the Economics of Religion, Edited by Iyer, Rubin and Carvalho. Palgrave, 2018).
• Robert G. Natelson, Why Nineteenth Century Bans on 'Sectarian' Aid are Facially Unconstitutional: New Evidence on Plain Meaning, (19 Federalist Soc. Rev. 98 (2018)).
• Thaddeus Mason Pope, How to Respond to a Patient's Discriminatory Request for a Different Clinician, (ASCO Post (April 10, 2018)).
• Raphael Cohen-Almagor, Taking North American White Supremacist Groups Seriously: The Scope and the Challenge of Hate Speech on the Internet, (International Journal of Crime, Justice, and Social Democracy, Vol. 7, No. 2 (2018): 38-57).

From SSRN (Religious Law):

• Ghassan Abdul-Jabbar, The Major Themes of Hadith and Its Characteristics, (The Different Aspects of Islamic Culture, Vol. 1, Foundations of Islam (2016)).
• Mohammed A. Arafa, Transitional Justice, the Seeds of Change: Secular Law or Divine (Islamic) Law, Quo Vadis?, (Creighton Law Review, Vol. 9, No. 2, 2018).
• Christopher P. Guzelian, Silver: A Morally Good Money, (Procesos de Mercado, vol. 15 (2018).
• Doron M. Kalir, Rethinking Religious Objections (Old-Testament Based) to Same-Sex Marriage, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 33, 2018, Forthcoming).
• Jonathan C. Augustine, The Fiery Furnace, Civil Disobedience and the Civil Rights Movement: A Biblical Exegesis on Daniel 3 and Letter from Birmingham Jail, (Richmond Public Interest Law Review, Vol. 21, No. 3, 2018).

From SmartCILP and elsewhere:

• Ran Hirschl, Ayelet Shachar, Competing Orders? The Challenge of Religion to Modern Constitutionalism, 85 University of Chicago Law Revies 425-455 (2018).
• J. William Callison, Dangling Threads: Hobby Lobby and Corporate Law Issues, 48 University of Memphis Law Review 447-461 (2017).
• Andrew L. Seidel, Dating God: What Is “Year of Our Lord” Doing in the U.S. Constitution?, [Abstract], 3 Constitutional Studies 129-151 (2018).

Recent Articles and Book of Interest

From SSRN:

• Kenneth Einar Himma, An Unjust Dogma: Why a Special Right to Religion Wrongly Discriminates Against Non-Religious Worldviews, (San Diego Law Review, Vol. 54, No. 1, 2017).
• Caroline Mala Corbin, Is There Any Silver Lining to Trinity Lutheran Church, Inc. v. Comer?, (Michigan Law Review Online, Vol. 116, p. 137, 2018).
• Richard W. Garnett & Jackson C. Blais, Religious Freedom and Recycled Tires: The Meaning and Implications of Trinity Lutheran, (2016-17 Cato Supreme Court Review 105).
• Richard W. Garnett, Freedom 'for' Religion: (Yet) Another View of the Cathedral, (in Brett G. Scharffs, Asher Maoz, and Ashley Isaacson Woolley, eds., Religious Freedom and the Law: Emerging Contexts for Freedom for and Freedom From Religion (Routledge 2019 Forthcoming)).
• Nadia N. Sawicki, Disentangling Conscience Protections, (Hastings Center Report, Forthcoming).
• Richard W. Garnett, "Afterword," (in S. Hendrianto, S.J., ed., Priests, Lawyers, and Scholars: Essays in Honor of Robert J. Araujo, S.J." (Franciscan Univ. Press 2017)).
• Barry W. Bussey, The Right of Religious Hospitals to Refuse Physician-Assisted Suicide, ((2018) 85 S.C.L.R. (2d)).
• Netta Barak Corren, The War Within, (May 23, 2018).
• B. Jessie Hill, Sex, Lies, and Ultrasound, (89 University of Colorado Law Review 421 (2018)).
• Reva Siegel & Linda Greenhouse, The Unfinished Story of Roe v. Wade, (Yale Law School, Public Law Research Paper (2018)).
• Kevin M. Barry & Jennifer Levi, Blatt v. Cabela's Retail, Inc. and a New Path for Transgender Rights, (Yale Law Journal Forum, Vol. 127, p. 373, 2017).
• Albertina Antognini, Against Nonmarital Exceptionalism, (UC Davis Law Review, Vol. 51, 2018 (Forthcoming)).

From SSRN (Islamic law):

• Kerstin Steiner, Branding Islam: Islam, Law and Bureaucracies in Southeast Asia, (37(1) Current Journal of Southeast Asian Affairs (2018)).
• Dominik Müller & Kerstub Steiner, The Bureaucratisation of Islam in Southeast Asia: Transdisciplinary Perspectives,  (37 (1) Journal of Current Southeast Asian Affairs (2018)).
• Haider Ala Hamoudi & Mark Cammack, Islamic Law in Modern Courts (Introduction), (Aspen Casebook Series, 2018).

From SmartCILP and elsewhere:

• Valerie J. Munson, On Holy Ground: Church Sanctuary in the Trump Era, 47 Southwestern Law Review 49-60 (2017).
• Ian P. Farrell. Book Review. From Premodern Christianity to the Postmodern Jury. 53 Tulsa L. Rev. 247-259 (2018). 
• Jason E. Whitehead, Book Review. Faith, Reason, and Liberal Legal Neutrality, 53 Tulsa Law Review 375-393 (2018).
• Robert E. Rains, Icing on the Wedding Cake: Same-sex Marriage and Religious Objections--Is There an Accommodation That Will Make Everyone Equally Happy (Or Unhappy)?, 42 Vermont Law Review 191-225 (2017).
• Elise Goss-Alexander, Policy Focus: Women and Religious Freedom, (USCIRF, May 2018).

Recent Book:

• Mohammad Hashas, Jan Jaap de Ruiter & Niels Valdemar Vinding (eds), Imams in Western Europe: Developments, Transformations, and Institutional Challenges, (Amsterdam University Press, May 2018).

Public Accommodation Law Upheld Against Religious Claims In First Post-Masterpiece Cakeshop Decision

In the first case to present issues similar to those in the Supreme Court's Masterpiece Cakeshop decision, an Arizona appellate court has largely vindicated the rights of a same sex couple.  In Brush & Nib Studio, LC v. City of Phoenix, (AZ App, June 7, 2018), owners of an art studio that designs wedding products, citing their Christian religious beliefs, refused to create customer-specific merchandise for same-sex weddings. They sued to obtain an injunction against application of Phoenix's public accommodation anti-discrimination law to them.  Rejecting their free speech argument, the court said in part:

the conduct at issue is not the creation of words or images but the conduct of selling or refusing to sell merchandise—either pre-fabricated or designed to order—equally to same-sex and opposite-sex couples. This conduct, even though it may incidentally impact speech, is not speech. Further, allowing a vendor who provides goods and services for marriages and weddings to refuse similar services for gay persons would result in “a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” Masterpiece Cakeshop, Ltd., slip op. at 10.

The court goes on to note:

Although Appellants are prohibited from posting discriminatory statements about their intent to refuse services for same-sex weddings, they may post a statement endorsing their belief that marriage is between a man and a woman and may post a disclaimer explaining that, notwithstanding that belief, Section 18-4(B) requires them to provide goods and services to everyone regardless of sexual orientation. Or they may post a disclaimer that the act of selling their goods and services to same-sex couples does not constitute an endorsement of their customers’ exercise of their constitutional right to marry or any other activities.

The court did, however, strike as unconstitutionally vague a portion of the public accommodation law that prohibited advertisements or notices that states or implies that a person, because of sexual orientation would be "unwelcome, objectionable, unacceptable, undesirable or not solicited."

The court went on to reject the studio owners' free exercise claims:

Appellants have failed to prove that Section 18-4(B) substantially burdens their religious beliefs.... Appellants are not penalized for expressing their belief that their religion only recognizes the marriage of opposite-sex couples. Nor are Appellants penalized for refusing to create wedding-related merchandise as long as they equally refuse similar services to opposite-sex couples. Section 18-4(B) merely requires that, by operating a place of public accommodation, Appellants provide equal goods and services to customers regardless of sexual orientation. Appellants are free to discontinue selling custom wedding-related merchandise and maintain the operation of Brush & Nib for its other business operations. What Appellants cannot do is use their religion as a shield to discriminate against potential customers.

Slate reports on the decision.

UPDATE: AP reports that that attorneys for Brush & Nib plan an appeal.

Bermuda Court Invalidates Bar On Same-Sex Marriage

In Ferguson v. Attorney General, (Bermuda Sup. Ct., June 6, 2018), a Bermuda trial court held unconstitutional Bermuda's Domestic Partnership Act 2018 that rejects recognition of same-sex marriage.  The Act was passed to reverse an earlier court decision that held existing anti-discrimination laws validated same-sex marriage. (See prior posting.)  In yesterday's decision, the court held that the effect of the Domestic Partnership Act is to limit those desiring recognition of their same-sex relationship to choosing domestic partnerships. It held that while it is not invalid as a law enacted substantially for religious purposes, it is an invalid infringement of  belief:

Prior to the DPA coming into force, same-sex couples who believed in the institution of marriage could manifest their beliefs by participating in legally recognised marriage ceremonies. Just as PMB and its members genuinely believe that same-sex marriages should not be legally recognised, the Applicants and many others equally sincerely hold opposing beliefs. It is not for secular institutions of Government, without constitutionally valid justification, to direct the way in which a citizen manifests their beliefs.

... The Applicants do not seek the right to compel persons of opposing beliefs to celebrate or enter into same-sex-marriages. They merely seek to enforce the rights of those who share their beliefs to freely manifest them in practice. Persons who passionately believe that same-sex marriages should not take place for religious or cultural reasons are entitled to have those beliefs respected and protected by law. But, in return for the law protecting their own beliefs, they cannot require the law to deprive person who believe in same-sex marriage of respect and legal protection for  their opposing beliefs.

 The court also issued a summary of its decision, and Skift reports on the decision.

Recent Articles of Interest

From SSRN:

• Perry Dane, Jury Nullification: Features, Bugs, and the Possibility of Granular Law, (Journal of Law Culture and the Humanities, Forthcoming).
• Stephen R. Munzer, Examining Nontherapeutic Circumcision, (28 Health Matrix 1 (2018)).
• Leora F. Eisenstadt, Enemy and Ally: Religion in Loving v. Virginia and Beyond, (Fordham Law Review, Vol. 86, No. 2659, 2018).
• Prakash Shah, Secularism's Threat to Tradition: A Reading of Europe, India and the Limits of Secularism, (Queen Mary School of Law Legal Studies Research Paper No. 277/2018).
• Paul Barker, Vocation, Expressive Conduct, and Religious Liberty, (January 16, 2018).
• Abadir Ibrahim, Religion-State Identification and Religious Freedom in Ethiopia, (Pieter Coertzen, M. Christian Green, and Len Hansen (eds.) Religious Freedom and Religious Pluralism in Africa: Prospects and Limitations (2016)).
• Nuna Zekić, An Open and Diverse European Union?, (Tilburg Law Review, 22 (2017), 259-266).
• Dallan Flake, Religion as Key to Protecting Transgender Employees From Discrimination, (May 15, 2018).
• Johnny Rex Buckles, Unashamed of the Gospel of Jesus Christ: On Public Policy and Public Service by Evangelicals, (41 Harv. J.L. & Pub. Pol'y 813 (2018)).
• Blaine Hutchison, Protecting Religious Pluralism: How the Liberty that Supports Same-Sex Marriage Protects Religious Convictions, (Regent University Law Review, Vol. 30, No. 2, 2018).

From SSRN (Islamic Law):

• Abdel-Hameed M. Bashir, Reducing Poverty and Income Inequalities: Current Approaches and Islamic Perspective, (Journal of King Abdulaziz University: Islamic Economics, Vol. 31, No. 1, 2018).
• Samantha Bielen, Peter Grajzl & Wim Marneffe, Blame Based on One's Name? Extralegal Disparities in Criminal Conviction and Sentencing, (May 26, 2018).
• Tanya Monforte, Broad Strokes and Bright Lines: A Reconsideration of Shari'a Based Reservations, (May 8, 2018).
• Fajiri Muhammadin & Hanindito Danusatya, De-Secularizing Legal Education in Indonesian Non-Islamic Law Schools: Examining the ‘Introduction to Jurisprudence’ Textbooks on the ‘Norm Classification’ Chapter, (Ulul Albab: Jurnal Studi dan Pemikiran Hukum Islam, Vol. 1, No. 2 (2018)).
• Munawar Iqbal, Poverty, Inequalities and the Perceptions on Distributive Justice, (Journal of King Abdulaziz University: Islamic Economics, Vol. 31, No. 1, January 2018).
• Asad Zaman, An Islamic Approach to Inequality and Poverty, (Journal of King Abdulaziz University: Islamic Economics, Vol. 31, No. 1, January 2018).
• Aaron Z. Pitluck & Adhikari Shikshya, Islamic Banking and Finance in the Global North: Secular Incubators, Elementary Accommodation and Strategic Negligence, (in Mark Woodward and Ronald Lukens-Bull (eds). Handbook of Contemporary Islam and Muslim Lives. Springer, Forthcoming).
• Salman Syed Ali, Issues Involved in the Proposal of ‘A Global Currency to Stabilize the Monetary System, (Journal of King Abdulaziz University: Islamic Economics, Vol. 30, No. 2, July 2017).
• Ihsan Yilmaz, Semi-Official Turkish Muslim Legal Pluralism: Encounters between Secular Official Law and Unofficial Shari’a, (in A. Possamai et al. (eds.), The Sociology of Shari’a: Case Studies from around the World, Boundaries of Religious Freedom: Regulating Religion in Diverse Societies (2015)).

Supreme Court In Narrow Decision Reverses Order Against Wedding Cake Baker

Today, by a vote of 7-2, the U.S. Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, (Sup. Ct., June 4, 2018), reversed on narrow grounds a Colorado appellate court's decision upholding the state Civil Rights Commission's cease and desist order against a baker who refused on religious grounds to create a wedding cake for a same-sex couple.  The Supreme Court's majority decision, written by Justice Kennedy, focused on what was seen as the unfairness of the hearing provided to the baker by the Commission, and the difference between this case and the approach in others decided by the Commission:

The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

In reaching that conclusion, the Court acknowledged the difficulties involved in deciding the broader issues posed by the case:

The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all.... 

The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of  possibilities that seem all but endless.

Justice Kagan filed a concurring opinion joined by Justice Breyer.  Justice Gorsuch filed a concurring opinion joined by Justice Alito.  Justice Thomas filed a opinion concurring in part, joined by Justice Gorsuch.

Justice Ginsburg, joined by Justice Sotomayor, filed a dissenting opinion arguing that there was not sufficient evidence of unfair hostility by the Commission to the baker's religious beliefs.

Politico reports on the decision, as does SCOTUSblog.

Therapist Sues After Dismissal For Refusing To Counsel Gay Couple

A religious discrimination lawsuit was filed last week in Michigan federal district court by a licensed clinical social worker against her former employer, HealthSource Saginaw.  The complaint (full text) in Lorentzen v. Healthsource Saginaw, Inc., (ED MI, filed 5/11/2018) alleges that Kathleen Lorentzen was informed that she would be terminated, and was subjected to demeaning, threatening and abusive actions, after she insisted on referring a same-sex couple to a different therapist for marriage counseling. Lorentzen says that continuing to counsel the couple would violate her Catholic religious beliefs. The complaint alleges violations of Title VII and of various state law provisions. Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Dolphins Cheerleader Claims Religious Discrimination In Limits On Her Social Media Posts

According to USA Today, former Miami Dolphins cheerleader Kristan Ann Ware this week filed a complaint with the Florida Commission on Human Relations against the Dolphins and the National Football League alleging religious and gender discrimination.  She says that in her annual work review, she was told not to discuss on social media her religious decision to abstain from sex before marriage.  She had posted a photo of her baptism online.  She contends that the players are not held to the same standards regarding discussion of religion on social media.

Air Force Upholds Right of Commander To Refuse To Sign Certificate For Same-Sex Spouse

Stars and Stripes reported yesterday that the Director of the Air Force Review Boards Agency has granted an appeal by an Air Force Colonel who had been disciplined for refusing to sign a "certificate of appreciation" for the same-sex spouse of a master sergeant in his unit who was retiring.  Col. Leland Bohannon refused to sign the certificate because he thought it would signify his personal endorsement of a marriage that violates his religious beliefs.  Eventually the certificate was instead signed by a two-star General.  The retiring master sergeant however filed an Equal Opportunity complaint, and Bohannon was stripped of command of the Air Force Inspection Agency and removed from consideration for a promotion to brigadier general.

In a letter (full text) to members of Congress who had intervened on Bohannon's behalf, the Secretary of the Air Force wrote:

The Director concluded that Colonel Bohannon had the right to exercise his sincerely held religious beliefs and did not unlawfully discriminate when he declined to sign the certificate of appreciation.... The Air Force has a duty to treat people fairly and without discrimination on the basis of race, color, sex, national origin, or sexual orientation and met that duty by having a more senior officer sign the certificate.

The Air Force places a high value on the rights of its members to observe the tenets of their respective religions or to observe no religion at all. The decision on appeal applied current Air Force policy and the law.  It is an example of a situation in which protected, and potentially competing, interests must be carefully examined and resolved.

Establishment Clause Challenge To Rainbow Flags Is Dismissed

In Sevier v. Lowenthal, (D DC, March 26, 2018), the District of Columbia federal district court dismissed a suit which sought to require four members of the U.S. House of Representatives to remove Gay Pride Rainbow Colored Flags that they have placed in the hallways outside their offices.  The suit, filed by a vocal opponent of the Supreme Court's same-sex marriage decision, contends that display of these flags violates the Establishment Clause, as well as the equal protection and due process clauses.  As related by the court:

In Sevier’s view ... the gay pride flag “is a ‘religious symbol’ for the homosexual denomination,” ... and its “placement ... amounts to [Defendants’] endorsement of a particular religion.... Sevier’s “sex-based self-asserted identity narrative is that he prefers to be married to an inanimate object.” ... So, according to Sevier, unless Defendants “install a flag that represents people who self-identify as polygamists, machinists, zoophiles, and heterosexuals,”... their actions “treat ... the homosexual denomination of ... the church of moral relativism with disproportionate favor”....

Rejecting plaintiff's assertions, the court said that plaintiff's claims are premised on his argument that homosexuality is a religion, but he has offered "no legal support" for the argument. The court continued:

To be sure, the governing case law does not precisely define the contours of what constitutes “religion.”... But that does not mean there are no easy cases.... Whatever else religion might entail, it at minimum requires adherence to one or more fundamental beliefs.... “Homosexuality,” by contrast, is not a set of beliefs at all. It is a description of a person’s sexual orientation.... The gay rights movement bears no trappings of “religion” as that concept is widely understood, and Sevier has not plausibly alleged that a reasonable person would perceive the display of the rainbow flags as religious in nature.

Long Beach Post reports on the decision.

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.)

Recent Articles of Interest

From SSRN:

• Ryan T. Anderson, Disagreement is Not Always Discrimination: On Masterpiece Cakeshop and the Analogy to Interracial Marriage, (Georgetown Journal of Law & Public Policy, Vol. 16, No. 1, 2018).
• Lee J. Strang, The Original Meaning of 'Religion' in the First Amendment: A Test Case of Originalism's Utilization of Corpus Linguistics, (Brigham Young University Law Review, Vol. 2017).
• Kathleen Brady, Religious Accommodations and Third-Party Harms: Constitutional Values and Limits, (106 Kentucky Law Journal, Issue No. 4, Forthcoming).
• James A. Davids, Religious Colleges' Employment Rights Under the 'Ministerial Exception' and When Disciplining an Employee for Sexually Related Conduct, (Texas Review of Law & Politics, Vol. 21, No. 3 (2018).
• Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, (March 8, 2018).
• Timothy Zick, Introduction to The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights, (Oxford Univ. Press, 2018).
• Michael J. Higdon, Biological Citizenship and the Children of Same-Sex Marriage, (March 11, 2018).
• Hiroshi Fukurai & Alice Yang Murray, The History of Japanese Racism, Japanese American Redress, and the Dangers Associated With Government Regulation of Hate Speech, (Hastings Constitutional Law Quarterly, Vol. 45, 2018).
• Joel S. Newman, Conspicuous Philanthropy: A Response, (American University Law Review Forum, Vol. 67, No. 1, 2018).

From SSRN (Non-U.S. Law):

• M.C. Mirow, Léon Duguit, (In Olivier Descamps and Rafael Domingo, Great Christian Jurists in French History (Cambridge University Press, 2019) (Forthcoming)).
• Neil James Foster, Protection of Religious Freedom under Australia’s Amended Marriage Law: Constitutional and Other Issues, (Freedom of Religion or Belief: Creating the Constitutional Space for Other Fundamental Freedoms: 14th – 16th February 2018).
• Sheida Banasaznavaei, A Study on the Temporary Marriage Contract in Iranian Law — Are Women Safe in Temporary Marriage Contracts?, (January 5, 2018).

Judge Suspended, In Part For Refusal To Conduct Same-Sex Weddings

In In re Day, (OR Sup. Ct., March 15, 2018), the Oregon Supreme Court in a 91-page opinion suspended state circuit court judge Vance D. Day from his judicial office for three years without pay. The state's Commission on Judicial Fitness and Disability had recommended the harsher penalty of removal from office. (Commission report).  A number of unrelated charges were involved; the court concluded that six of the counts had been proven.  One of those was described as follows by the court in its press release on the case:

Count 12 concerned a change in respondent's chambers relating to marriage requests that he received after issuance of a federal court ruling, in May 2014, that had invalidated Oregon's constitutional ban on same-sex marriage. Before that ruling, respondent had made himself available to solemnize marriages. After that ruling, he told his staff that, upon receiving any marriage request, they should check for any personal gender information available in the court's case register system, to try to determine whether the request involved a same-sex couple. If so, they should tell the couple that he was not available on the requested date or otherwise notify him so that he could decide how to proceed. If the request were from an opposite-sex couple, however, then they should schedule the wedding date.  Respondent's judicial assistant checked the system one time and determined that a requesting couple might be a same-sex couple, but respondent had an actual scheduling conflict, so she truthfully told the couple that he was not available.  Several weeks after that, respondent stopped solemnizing all marriages. The Court concluded that respondent's conduct had been willful and had violated Rule 3.3(B) (prohibiting manifestation of bias or prejudice in the performance of judicial duties) and related constitutional provisions. The Court did not address a number of constitutional challenges that respondent had raised as affirmative defenses to Count 12. It explained that, in light of the other, notably serious misconduct that the commission had proved by clear and convincing evidence, the misconduct at issue under Count 12 would not affect its consideration of the appropriate sanction, regardless of whether those constitutional challenges were meritorious or not.

Progressive Secular Humanist blog reports on the decision.

"Parody Marriage" Bills Are Newest Attempt To Challenge To Same-Sex Marriage

A bill titled Marriage and Constitution Restoration Act (H 4949) was introduced into the South Carolina legislature last week (Feb. 15). A similar bill with the same title (HB 0167) was received for introduction in the Wyoming legislature on Feb. 14.  Taking a new approach to challenging same-sex marriage, the bills define marriage that does not involve one man and one woman as "parody marriage."  The bills then declare that parody marriages, as well as treating sexual orientation as a suspect class, violate the Establishment Clause because they are part of the religion of Secular Humanism.  They declare, on the other hand, that marriages between one man and one woman are secular because they arise "out of the nature of things" and are "natural, neutral and noncontroversial."   According to the Charleston City Paper, the bills in both states were written with the advice of Chris Sevier. Sevier has gained notice by filing lawsuits seeking to have his marriage to his computer recognized--- suits filed in an attempt to discredit non-traditional marriages. (See prior posting.)