United Methodist Church Risks Split Over Position On LBTQ Ordination and Marriage

HuffPost reports that the United Methodist Church will likely break apart after a close vote yesterday at its 2019 General Conference on LGBTQ roles in the Church. As reported by United Methodist News Service, the delegates adopted the so-called "Traditional Plan" by a vote of 438 to 384.  This plan continues the Church's ban on ordaining LGBTQ clergy and the prohibition on officiating at or hosting same-sex weddings. The opposing "One Church Plan" was defeated by a vote of  449 to 374.  It would have allowed ordination LGBTQ pastors, and allowed, but not required, churches to host and pastors to officiate at same-sex marriages.  Later, by a vote of 405 to 395, the Conference asked the Church's Judicial Council to rule on the constitutionality of the Traditional Plan at its scheduled April meeting.

Tax Preparer Refuses To Prepare Joint Return For Same-Sex Couple

Washington Post reports on the latest clash between religious liberty assertions and non-discrimination principles:

For four years, Bailey Brazzel says, she had employed the same tax preparer, Nancy Fivecoate of Carter Tax Service in Russiaville, Ind. Fivecoate prepared the taxes without issue each time — until this year, when Brazzel brought her new wife, Samantha.

Fivecoate declined to serve the couple, citing her religious beliefs.

This was the first year the Brazzels, who wed in July, were filing jointly as a married couple. According to Samantha, Fivecoate explained that she believed marriage was between a man and a woman and that she would therefore not be able to prepare their taxes.

Indiana does not have a statewide law barring discrimination on the basis of sexual orientation. (See prior related posting.) [Thanks to Nathan Walker for the lead.]

Senate Resolution Says "No Religious Test" Clause Bars Disqualification For K of C Membership

On Wednesday, the U.S. Senate passed Senate Resolution 19 by unanimous consent.  The Resolution was introduced by Nebraska Sen. Ben Sasse in response to questions raised in connection with last month's Judiciary Committee hearing on the nomination of Brian C. Buescher for a seat on the United States District Court for the District of Nebraska. At that hearing, Senators Mazie Hirono (D-HI) and Kamala Harris (D-CA) questioned whether Buescher's membership in the Knights of Columbus would bias his consideration on issues such as abortion rights and same-sex marriage. (Background). Resolution 19 after a lengthy Preamble, provides:

That it is the sense of the Senate that disqualifying a nominee to Federal office on the basis of membership in the Knights of Columbus violates clause 3 of article VI of the Constitution of the United States, which establishes that Senators ‘‘shall be bound by Oath or Affirmation, to support th[e] Constitution’’ and ‘‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States’’.

National Catholic Register reports on the Resolution.

Albany Episcopal Bishop Defies Parent Body On Same-Sex Marriage Rites

In July, the General Convention of the Episcopal Church passed Resolution B012 Marriage Rites for the Whole Church, which was designed to give local congregational access to all couples wishing to have a same-sex marriage ceremony.  The Resolution stated in part:

[I]n dioceses where the bishop exercising ecclesiastical authority ... holds a theological position that does not embrace marriage for same-sex couples, and there is a desire to use such rites by same-sex couples in a congregation or worshipping community, the bishop exercising ecclesiastical authority ... shall invite, as necessary, another bishop of this Church to provide pastoral support to the couple...

Last week, in response to Resolution B012 that is to become effective on Dec. 3, the Bishop of Albany, William Love, who has been an opponent of same-sex marriage, issued a Pastoral Letter (full text) that reads in part as follows:

I cannot in good conscience as a bishop in God’s holy Church agree to what is being asked for in B012. While I respect the authority of General Convention as an institutional body, my ultimate loyalty as a bishop in God’s holy Church is to God....

Until further notice, the trial rites authorized by Resolution B012 of the 79th General Convention of the Episcopal Church shall not be used anywhere in the Diocese of Albany by diocesan clergy (canonically resident or licensed)....

Albany Times-Union reports on the Bishop's action.

Kim Davis Loses Re-election Bid

According to the Lexington Herald-Leader, in Rowan County, Kentucky on Tuesday, county clerk Kim Davis lost her re-election bid by some 650 votes. Davis garnered national attention in 2015 by her adamant refusal to sign marriage licenses for same-sex couples. (See prior posting).

EEOC Sued Over Enforcement of LGBT Protections Without Religious Exemption

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

Second Broad Challenge To Austin's Anti- Discrimination Ordinances Filed

Following a federal court lawsuit filed last week by churches challenging Austin, Texas' ban on employment discrimination (see prior posting), a broader lawsuit has been filed in state court challenging the application of Austin's public accommodation, housing and employment discrimination ordinances to any individual or business that has religious objections to homosexual or transgender behavior.  The complaint (full text) in Texas Values v. City of Austin, (TX Dist. Ct., filed 10/8/2018) asks the court to declare that the ordinances violate Texas Religious Freedom Restoration Act and the Texas Constitution

to the extent that they: (a) prohibit individuals and entities from refusing to hire or retain practicing homosexuals or transgendered people as employees for reasons based in sincere religious belief; (b) prohibit individuals and entities from refusing to rent their property to tenants who are engaged in non-marital sex of any sort, including homosexual behavior, for reasons based in sincere religious belief; (c) prohibit individuals and entities from declining to participate in or lend support to homosexual marriage or commitment ceremonies, for reasons based in sincere religious belief; and (d) prohibit individuals and entities from declining to provide spousal employment benefits to the same-sex partners or spouses of employees, for reasons based in sincere religious belief; (e) prohibit individuals and entities from establishing sex-specific restrooms and limiting them to members of the appropriate biological sex, for reasons based in sincere religious belief.

Austin Statesman reports on the lawsuit.

Anti-Gay Marriage Amendment to Romanian Constitution Fails

In Romania, voters have failed to approve a proposed constitutional amendment that would have enshrined a ban on same-sex marriage into the constitution.  As reported by the Washington Post and Reuters, the two-day referendum failed to generate the 30% turnout needed for passage of the measure.  Only 20.4% of the voters cast ballots for the measure that was backed by the Social Democrat Party and the Orthodox church. According to the Post:

The referendum itself did not give voters a choice to vote in favor of allowing same-sex marriage, but only whether the constitutional definition of a “family” should continue to be gender-neutral. Either way, the result would not have had an immediate legal impact, but may have prevented possible future court rulings in favor of same-sex marriage or same-sex civil union.

But as a growing number of government critics urged Romanians to boycott the vote, the same-sex marriage referendum also became a de facto confidence vote over the Social Democratic government. The ruling party has repeatedly shocked domestic and international observers with corruption scandals and attempts to disrupt the rule of law that triggered large protests across the country.

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.