Christian Non-Profit Cannot Rescind Job Offer Because of Same-Sex Marriage

In McMahon v. World Vision, Inc., (WD WA, Nov. 28, 2023), a Washington federal district court held that a Christian non-profit organization violated Title VII and the Washington Law Against Discrimination when it rescinded a job offer originally made to plaintiff after it learned that she was in a same-sex marriage. Plaintiff had been offered the position of customer service representative which involved telephone cultivation of donor relationships. The court held that the religious employer exemption in Title VII only immunizes religious discrimination by such organizations; it does not immunize them from sex discrimination claims. It also held that the ministerial exception doctrine does not apply to the position offered to plaintiff.

Similarly, the rejected the bona fide occupational qualification defense, saying in part:

Nothing in the record indicates that being in a same-sex marriage affects one’s ability to place and field donor calls, converse with donors, pray with donors, update donor information, upsell World Vision programs, or participate in devotions and chapel.

The court went on to find that both Title VII and the WLAD are neutral laws of general applicability so that only rational basis review is required. Finally the court rejected defendants' free speech and expressive association claims.

New House Speaker Has Long Record of Conservative Advocacy on Religious Freedom Issues

Newly elected Speaker of the U.S. House of Representatives, Mike Johnson (R- LA), has a long record, before he was in Congress, of advocacy on conservative Christian religious issues.  Wikipedia reports:

Before his election to Congress, Johnson was a partner in the Kitchens Law Firm and a senior attorney and national media spokesman for the Alliance Defense Fund, now known as Alliance Defending Freedom. Johnson was also formerly chief counsel of the nonprofit law firm Freedom Guard.

In September 2016, Johnson characterized his legal career as "defending religious freedom, the sanctity of human life, and biblical values, including the defense of traditional marriage, and other ideals like these when they’ve been under assault."

Johnson served as a trustee of the Ethics and Religious Liberty Commission within the Southern Baptist Convention from 2004 to 2012.

Johnson came to some prominence in the late 1990s when he and his wife appeared on national television to represent Louisiana's newly passed marriage covenant laws, which made divorce more difficult legally.

Louisiana House of Representatives

After the 8th District seat was vacated in 2015, Johnson ran for the position unopposed....

In April 2015, Johnson proposed the Marriage and Conscience Act, a bill similar in content to Indiana's controversial Religious Freedom Restoration Act passed a few days earlier, though Johnson denied that his legislation was based on the Indiana law.

Johnson's Marriage and Conscience Act would have prevented adverse treatment by the State of any person or entity on the basis of the views they may hold with regard to marriage. Critics denounced the bill as an attempt to protect people who discriminate against same-sex married couples.

An e-mail statement from First Liberty Institute says that Johnson was also once a First Liberty attorney.

India's Supreme Court Refuses to Recognize Same-Sex Marriage

In Supriyo @ Supriya Chakraborty v. Union of India, (Sup. Ct. India, Oct. 17, 2023), a 5-judge bench of India's Supreme Court, in 4 opinions spanning 366 pages, refused to recognize same-sex marriages, but called on the government to study and implement further rights for same-sex couples. As summarized by BBC News:

The petitioners had argued that not being able to marry violated their constitutional rights and made them "second-class citizens".

They had suggested that the court could just replace "man" and "woman" with "spouse" in the Special Marriage Act - which allows marriage between people from different religions, castes and countries - to include same-sex unions.

The government and religious leaders had strongly opposed the petitions. The government had insisted that only parliament could discuss the socio-legal issue of marriage and argued that allowing same-sex marriage would lead to "chaos" in society.

On Tuesday, the judges agreed with the government, saying that only parliament could make law and the judges could only interpret them.

They accepted Solicitor General Tushar Mehta's proposal on behalf of the government to set up a committee, headed by the country's top bureaucrat, to consider "granting queer couples" rights and privileges available to heterosexual couples.

4th Circuit Hears Oral Arguments on Catholic School's Firing of Teacher Who Entered Same-Sex Marriage

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral arguments (audio of full oral arguments) in Billard v. Charlotte Catholic High School.  In the case, a North Carolina federal district court held that a Catholic high school is liable under Title VII of the 1964 Civil Rights Act for firing a substitute drama teacher after he entered a same-sex marriage and stated on Facebook his disagreement with Catholic teaching on marriage. (See prior posting.) As reported by Reuters, during oral argument the judges pressed the parties on the applicability of the ministerial exception doctrine, even though the school had stipulated that it would not raise the doctrine as a defense in order to avoid protracted discovery on the teacher's job duties.

Kim Davis Assessed $100K Damages In One Case, $0 in Another

Last year, in a long-running case, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. The court said that damages should be assessed by a jury.  (See prior posting.) That case, along with another making similar claims, were recently tired in parallel before two separate juries. In one of the cases-- Yates v. Davis -- the jury yesterday awarded zero damages.  In a second case-- Emold v. Davis-- a different jury awarded $100,000 damages. Liberty Counsel says the decision will be appealed. USA Today reports on the cases.

Bulgaria Violates European Convention by Failing to Recognize Same-Sex Married Couple

In Koilova and Babulkova v. Bulgaria, (ECHR, Sept 5, 2023) (full text of decision in French) (Court's English Summary of decision), the European Court of Human Rights ruled that Bulgaria violated Article 8 of the European Convention on Human Rights (Respect for private and family life) by failing to have a procedure for recognizing or registering a same-sex marriage entered in another country. According to the English language summary of the decision, the Court said in part:

... [I]n the absence of official recognition, same-sex couples were nothing more than de facto unions for the purposes of national law, even where a marriage had been validly contracted abroad. The partners were unable to regulate fundamental aspects of life as a couple such as those concerning property, family matters and inheritance, except as private individuals entering into contracts under the ordinary law, where possible, rather than as an officially recognised couple. They were not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities or with third parties. Even assuming that national law had allowed the applicants to apply to the domestic courts for protection of their basic needs as a couple, the necessity of taking such a step would have constituted in itself a hindrance to respect for their private and family life.

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

Church Autonomy Bars Court Adjudicating Dispute Over Withdrawal from Parent Body

 In Deutsche Evangelisch Lutherische Zions Gemeinde v. Evangelical Lutheran Church in America, (Kings Cty NY Sup. Ct., Aug. 16, 2023), a New York state trial court dismissed a suit brought by a German Lutheran church in Brooklyn that claims it has broken away from its parent bodies, the Evangelical Lutheran Church in America (ELCA) and ELCA's Metropolitan New York Synod over the parent bodies' stance accepting same-sex marriage and ordination of gay clergy. The parent bodies claim that the church is still affiliated with them. Plaintiff asks the court to determine that its membership with the parent bodies has been terminated and that the parent bodies lack authority to take control of church property. It also alleges in defamation claims that false statements about its affiliation injure its reputation and dissuade new members from joining. In rejecting those claims, the court said in part:

... [T]he neutral principles of law approach cannot be applied to adjudicate plaintiff's property claims which directly call into question the authority that has been vested in the synod to impose synodical administration which would allow it to dissolve the church and take control over its property....

The MNYS's power to impose synodical administration is far broader, however, than its authority to take control over a local church's property.... Plaintiff's argument ... ignores the inherent religious elements.... [T]he decision to impose synodical administration over a church involves consideration by the Synod of such issues as church governance, religious doctrine and practice, scripture, and the spiritual well-being of the local church's remaining members. Thus, it concerns subject matter with which this court is forbidden from entangling itself pursuant to the First Amendment. Indeed, synodical administration is an inherently religious matter although it incidentally concerns a local church's property.....

In order to resolve the dispute of whether plaintiff terminated its membership with defendants, this court would necessarily intrude into areas of church polity, religious doctrine, practice, and scripture in order to force the Synod to accept the votes taken by plaintiff's congregation in 2008 and 2009 to terminate the relationship. Whether plaintiff remains a member church of the ELCA and the MNYS is more than just a mere associational question but a religious one.

Recent Articles of Interest

From SSRN:

• Asma Uddin, Religious Liberty Interest Convergence, (William & Mary Law Review, Vol. 64, No. 1, 2022-2023).
• Nathon B. Oman,  'A Welding Link of Some Kind': A Minimalist Theology of Same-Sex Marriage Sealings, (in Nathan B. Oman, Law and the Restoration: Law and Latter-day Saint History, Thought, and Scripture (Salt Lake City, Utah: Kofford Books, Forthcoming)).
• Aaron Tang, Lessons From Lawrence: How "History" Gave Us Dobbs—And How History Can Help Overrule It, (133 Yale L.J. Forum ___ (forthcoming 2023)).
• Daffa Rizqi Prayudya & Solahuddin Al-Ayubi, Islamic Central Bank Digital Currency (CBDC) Design, (Al-Infaq: Jurnal Ekonomi Islam (2023).
• Milena Kojić, Markus Vogl, Petar Mitić & Aida Hanić, Nonlinear Dynamics of Islamic Fixed Income Securities: Evidence from Generalized Chaos Analysis Framework, (June 30, 2023).

Catholic School's Non-Renewal of Counsellor Who Entered Same-Sex Marriage Upheld

In Fitzgerald v. Roncalli High School, Inc., (7th Cir., July 13, 2023), the U.S. 7th Circuit Court of Appeals held that the ministerial exception doctrine requires dismissal of a suit which was brought by a Catholic high school guidance counselor whose contract was not renewed because her same-sex marriage was inconsistent with the Catholic school's religious mission. The court found this to be an easy case because last year in a different decision the 7th Circuit held that a suit by plaintiff's Co-Director of Guidance was barred by the ministerial exception doctrine. (See prior posting.) The court said in part:

Our precedent makes clear that Fitzgerald was a minister at Roncalli and that the ministerial exception bars this suit. But cases like today’s—involving two plaintiffs with the same title, at the same school, performing the same duties, and bringing the same claims in our court—are rare. A fact-specific inquiry remains necessary in cases where the ministerial exception is asserted as a defense to balance the enforcement of our laws against the protections of our Constitution.

Judge Brennan filed a concurring opinion pointing out that the case could also have been resolved by relying on the statutory religious employer exemption in Title VII which would have avoided the constitutional question. Becket issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Paolo Davide Farah, Global Issues in a Globalized World: The Unescapable Dialogue between Sharīʿa and the Constitution, (in Federico Lorenzo Ramaioli, Shari'a and the Constitution in Contemporary Legal Models: Two Worlds in Dialogue, Global Issues Series, Palgrave MacMillan, 2023).
• Robert L. Tsai & Mary Ziegler, Abortion Politics and the Rise of Movement Jurists, (UC Davis Law Review, Vol. 57, 2024).
• Bhumi Sharma, Inter-Religious Marriages in India - Still An Obstacle?, (November 5, 2022).
• Guy Baldwin, Same-Sex Marriage in Japan and the Role of Courts in a Dominant Party System,   (Comparative Constitutional Studies (2023) (forthcoming)).
• Afsha Moin, LGBTQIA and Feminism: All Individuals Are Entitled to Equal Rights, (April 9, 2023).
• Afrasiab Ahmed Rana & Fiza Zulfiqar, Role of Federal Shariat Court in Islamisation of Laws in Pakistan: A Case Law study of Leading Cases, (June 16, 2023).

From SmartCILP:

• Stephen M. Feldman, White Christian Nationalism Enters the Political Mainstream: Implications for the Roberts Court and Religious Freedom, 53 Seton Hall Law Review 667-742 (2023).

Supreme Court: Web Designer's Free Speech Rights Allow Her to Refuse to Design Websites for Same-Sex Weddings

The U.S. Supreme Court today in 303 Creative LLC v. Elenis, (Sup. Ct., June 30, 2023), in a 6-3 decision, held that the 1st Amendment's free speech protections bars Colorado from using its public accommodation anti-discrimination law to require a wedding website designer to design websites for same-sex weddings in violation of her religious beliefs. Justice Gorsuch's majority opinion says in part:

The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents.... We agree....

Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait.... Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages.....

Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.”... But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspapers....

In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.

Justice Sotomayor, joined by Justices Kagan and Jackson, filed a dissenting opinion, saying in part:

A public accommodations law has two core purposes. First, the law ensures “equal access to publicly available goods and services.”...

Second, a public accommodations law ensures equal dignity in the common market. Indeed, that is the law’s “fundamental object”: “to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’”...

Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks....

This Court has long held that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.”...

CADA’s Accommodation Clause and its application here are valid regulations of conduct. It is well settled that a public accommodations law like the Accommodation Clause does not “target speech or discriminate on the basis of its content.”... Rather, “the focal point of its prohibition” is “on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services.”...

Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws.... Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do....

The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’”... Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child.... And so on.....

AP reports on the decision.

Church Autonomy Doctrine Requires Dismissal of Title VII Claim By Non-Ministerial Employee

In McMahon v. World Vision Inc., (WD WA, June 12, 2023), a Washington federal district court dismissed a Title VII sex discrimination suit, finding it is barred by the Church Autonomy Doctrine.  A Christian ministry's job offer to plaintiff for the full-time position of Donor/Customer Service Representative Trainee was rescinded when defendant learned that plaintiff was in a same-sex marriage. The court discussed the relationship between the Church Autonomy Doctrine and the Ministerial Exception, concluding that the Church Autonomy Doctrine may be invoked when a non-ministerial employee brings a Title VII action.  The court said in part:

... [T]he Church Autonomy Doctrine requires the court to abstain from resolving employment discrimination claims where a religious institution takes an adverse action pursuant to a religious belief or policy—regardless of whether the employer allegedly discriminated on religious or other protected grounds—unless it is possible for the court resolve the claims without resolving underlying controversies over religious doctrine or calling into question the reasonableness, validity, or truth of a religious doctrine or practice....

The court joins other courts ... in cautioning religious employers against over-reading the impact of the court’s holding. It is by no means the case that all claims of discrimination against religious employers are barred....  [I]f a religious employer does not offer a religious justification for an adverse employment action against a non-ministerial employee or if the plaintiff presents sufficient secular evidence that would allow a factfinder to conclude that the religious justification was pretext without wading into the plausibility of the asserted religious doctrine, it is unlikely that serious constitutional questions will be raised by applying Title VII.

European Court: Ukraine Violates Human Rights Convention by Denying Legal Recognition to Same-Sex Couples

In Maymulakhin & Markiv v. Ukraine, (ECHR, June 1, 2023), the European Court of Human Rights in a Chamber Judgment held that Ukraine violated Article 14 (prohibition of discrimination) of the European Convention on Human Rights taken in conjunction with Article 8 (right to respect for private and family life) by denying any form of legal recognition to same-sex couples. The Court said in part:

While the Court has to date not interpreted Article 8 of the Convention as imposing a positive obligation on the States Parties to make marriage available to same-sex couples, it has confirmed that in accordance with their positive obligations under that provision, the member States are required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship.... The Court has also held that Contracting States enjoy a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same sex couples....

The Court ordered Ukraine to pay the two petitioners 5032 Euros each as damages and to pay 4000 Euros for costs and attorney's fees.

The Court also issued a press release (PDF download link) summarizing its decision.

Ministerial Exception and RFRA Defenses Rejected in Suit Over Firing of Bible Translation Company IT Employee

In Ratlliff v. Wycliffe Associates, Inc., (MD FL, May 26, 2023), a Florida federal district court refused to dismiss a Title VII employment discrimination suit brought against a Bible translation company by a software developer who was fired after the company learned that he had entered a same-sex marriage. The court rejected defendant's reliance on RFRA, concluding that "s RFRA does not apply to lawsuits in which the government is not a party."  It rejected defendant's "ministerial exception" defense, saying in part:

... Plaintiff does not qualify as a minister.

... Plaintiff was seemingly hired for his technological aptitude.... Accordingly, Plaintiff’s role was to employ his knowledge to develop software, not to act as a source of religious conveyance.... While the software’s purpose may have been to translate the Bible, Plaintiff himself was not doing so.... Further, Plaintiff’s direct interactions involved other software and database developers—not the individuals seeking out Defendant’s mission....

... [A]t bottom here, Plaintiff is a software developer, with no idiosyncratic religious title, background, education, or function.....

Recent Articles of Interest

From SSRN:

• Howard A. Palley, The Overturning of Roe v. Wade: A Theocratic and Anti-Democratic Decision, (March 31, 2023).
• Noura Erakat, Darryl Li & John Reynolds, Race, Palestine, and International Law, (AJIL Unbound, Vol. 117, No. 2, pp. 77-81, 2023).
• Andrew M. Koppelman, Religious Liberty as a Judicial Autoimmune Disorder: The Supreme Court Repudiates its Own Authority in Kennedy v. Bremerton, (Hastings Law Review, 2023 Forthcoming).
• Joel A. Nichols, Faith and Faithfulness: Vocation as Self, Others, and a Third Thing, (Touro Law Review, Vol. 38, 2023).
• Kelley Loper, Equality, Dignity and Same-sex Marriage: Reflections on Developments in Hong Kong, 53 Hong Kong Law Journal, Forthcoming.
• Malinda L. Seymore, Adoption as a Substitute for Abortion?, (University of Colorado Law Review, Vol. 95, 2023).
• Lu-in Wang, Reframing Hate,, (Journal of Criminal Law and Criminology, Vol. 112, p. 847, 2022).
• Daniel Bird & Eric Maier, Wayward Samaritans: 'Non-Profit' Hospitals and Their Tax Exempt Status, (University of Pittsburgh Law Review, Forthcoming,).

From SmartCILP:

• Khaled A. Beydoun, Killing an Arab, 101 North Carolina Law Revies 207-222 (2022).
• Blaine L. Hutchison, Revisiting Employment Division v. Smith, 91 University of Cincinatti Law Review 396-436 (2022).
• Justin Burnworth, Replacing Smith with a "Graduated Scale" Approach to the Free Exercise Clause, 54 University of Toledo Law Review 1-26 (2022).

Recent Articles of Interest

From SSRN:

• Carolyn Sharp, A Heart-Centered Defense, (March 18, 2023).
• Miranda McGowan, The Democratic Deficit of Dobbs, (Loyola University Chicago Law Journal, (forthcoming 2023)).
• Deborah Hellman, Defining Disparate Treatment: A Research Agenda for Our Times, (Indiana Law Review, Forthcoming).
• Francesca Laguardia, Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Rhetoric, (Journal of Law and the Biosciences, Volume 9, Issue 1, January-June 2022, lsac003).
• Carlos A. Ball, Balancing Abortion, (Santa Clara Law Review, Vol. 63, 2023, Forthcoming).
• Gerard Letterie & Dov Fox, Legal Personhood and Frozen Embryos: Implications for Fertility Patients and Providers in Post-Roe America, (Journal of Law and the Biosciences, Vol. 10 (2023)).
• Kyle Velte, The Supreme Court's Gaslight Docket (March 30, 2023).
• Sara Friedman & Chao-Ju Chen, Same-Sex Marriage Legalization and the Stigmas of LGBT Co-Parenting in Taiwan, (Law & Social Inquiry, 1-29 (2022).
• Shea Esterling, The Journey Home: The Repatriation of the Maaso Kova, (27 American Society of International Law Insights 3 (March 2023)).
• Rosemary Teele Langford & Miranda Webster, The Australian Charitable Incorporated Organisation: A Reform Proposal, ((2023) 39 Company and Securities Law Journal 347).

From SmartCILP:

• M. Mehdi Ali, Shi'i Legal Discourses in Iraq and Lebanon: Exploring the Intersection of Juristic Rulings and State Legal Regimes, 45 Loyola Los Angeles International & Comparative Law Review 249-280 (2022).

Christian Teacher Did Not Show That Her Removal Was Retaliation for Protected Speech or Beliefs

In Barr v. Tucker (SD GA, Feb. 21, 2023), a Georgia federal district court denied a preliminary injunction to plaintiff whose position as a substitute elementary school teacher was terminated after she complained to her own children's teachers and to the principal about the school librarian's reading aloud to classes a book that contains illustrations of same-sex couples with school-age children. The court explained:

Plaintiff told Defendant Tucker [the school principal] that she believed the book was '"inappropriate for young children, conflicted with her Christian faith, and appeared to bean effort to indoctrinate young children into a progressive ideological agenda[]" and asked that her children be excused from the read-aloud program.

Plaintiff contended that the school had retaliated against her for her exercising her free speech and free exercise rights. The court disagreed, saying in part:

... Plaintiff's inquiries principally addressed her personal concerns about exempting her children from the read-aloud program, and the context of her speech suggests she spoke on a matter of private or personal interest.

Accordingly ... Plaintiff has failed to establish a substantial likelihood of success in showing she spoke on a matter of public concern .... As a result. Plaintiff has also failed to establish a substantial likelihood of success on the merits of her First Amendment [free speech] retaliation claim....

The Court accepts, as Plaintiff alleges, that her sincerely held religious beliefs include ''that God created marriage to be between one man and one woman, and that family formation should occur within the confines of heterosexual marriage."... However, at this stage. Plaintiff has not established that she is substantially likely to succeed on showing that Defendants substantially burdened her religious beliefs by terminating her.

It is not clear that Defendants called for Plaintiff's removal due to her religious beliefs....

Defendants maintain they removed Plaintiff due to her inappropriately timed interactions with her children's teachers and concern about how she would support students or parents that identify as gay, not because of her beliefs about marriage and family formation.

European Court Says Russia Violated Rights of Same Sex Couples Who Were Denied Marriage Registration

In Fedotova and Others v. Russia, (ECHR, Jan. 17, 2023), the Grand Chamber of the European Court of Human Rights held that Russia violated the rights of three same-sex couples when it refused to permit them to marry. The court said in part:

 206.  The Government argued, firstly, that it was necessary to preserve the traditional institutions of marriage and the family, these being fundamental values of Russian society that were protected by the Constitution.... 

209.  Given that the Convention is a living instrument which must be interpreted in the light of present-day conditions, the State, in its choice of means designed to protect the family and secure respect for family life as required by Article 8, must necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life....

212.  In the present case, there is no basis for considering that affording legal recognition and protection to same-sex couples in a stable and committed relationship could in itself harm families constituted in the traditional way or compromise their future or integrity..... Indeed, the recognition of same-sex couples does not in any way prevent different-sex couples from marrying or founding a family corresponding to their conception of that term. More broadly, securing rights to same-sex couples does not in itself entail weakening the rights secured to other people or other couples. The Government have been unable to prove the contrary.

213.  Having regard to the foregoing, the Court considers that the protection of the traditional family cannot justify the absence of any form of legal recognition and protection for same-sex couples in the present case....

219.  ... [T]he allegedly negative, or even hostile, attitude on the part of the heterosexual majority in Russia cannot be set against the applicants’ interest in having their respective relationships adequately recognised and protected by law....

Law & Religion UK reports in greater detail on the decision.

Dismissal of Title VII Suit By Teacher Fired By Catholic School Is Denied

In Ference v. Roman Catholic Diocese of Greensburg, (WD PA, Jan. 18, 2022), a Pennsylvania federal magistrate judge recommended denying a motion to dismiss filed by the Catholic Diocese in a Title VII sex-discrimination lawsuit by a Lutheran 6th-grade teacher in a Catholic school who was fired shortly after being hired when the school discovered that he was in a same-sex marriage. The Diocese had raised defenses based on Title VII's exemption for religious discrimination, the church autonomy doctrine, the ministerial exception and RFRA.

Top 10 Religious Liberty and Church-State Developments of 2022

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. The selection of top stories obviously involves a good deal of subjective judgment. Here is a somewhat different list of top stories and newsmakers from the Religion News Association, the professional association of religion journalists. I welcome e-mail comment at religionclause@gmail.com on my choices. Here are my Top Ten picks:

1. In the Dobbs decision, the Supreme Court overrules Roe v. Wade after premature leak of Court's opinion. Newly imposed abortion restrictions are challenged on Free Exercise grounds by clergy and religious organizations with pro-choice beliefs. Some states act to ensure abortion rights.

2. In Kennedy v. Bremerton School District, Supreme Court repudiates the Lemon test for Establishment Clause violations.

3. In Carson v. Makin, Supreme Court says exclusion of sectarian schools from tuition reimbursement program violates Free Exercise clause.

4. Antisemitic incidents in the U.S. increase. White House creates inter-agency group to counter antisemitism.

5. Numerous lawsuits seek religious exemptions from COVID vaccine mandates. Congress in National Defense Authorization Act orders military to rescind its mandate.

6. Congress enacts Respect for Marriage Act, codifying recognition of same-sex and interracial marriages.

7. Accommodation of transgender students and treatment of minors with gender dysphoria remain highly charged political and legal issues.

8. Battles continue over whether anti-discrimination provisions of Title IX, the Affordable Care Act, and some state laws cover discrimination on the basis of sexual orientation and gender identity, and scope of exemptions from those provisions for religious institutions.

9. In Ramirez v. Collier, Supreme Court recognizes rights of pastor to lay hands on the prisoner and audibly pray with him during his execution.

10. In Shurtleff v. City of Boston, Supreme Court holds that group's free speech rights were violated by refusing to allow it to briefly fly its Christian flag from City Hall flagpole which is open to other groups for their ceremonies.