Court Refuses To Bar Enforcement of Anti-Discrimination Law Against Wedding Invitation Designers

In Brush & Nib Studio LC v. City of Phoenix, (AZ Super. Ct., Sept. 19, 2016), an Arizona trial court refused to issue a preliminary injunction to prevent enforcement of Phoenix, Arizona's public accommodation anti-discrimination ordinance against a business that designs custom wedding invitations. Refusing to dismiss on ripeness grounds, the court held that the law does not violate plaintiffs' free speech or free exercise rights. Rejecting plaintiffs' compelled speech argument, the court said in part:

Here, there is nothing about custom wedding invitations made for same-sex couples that is expressive.... The printing of the names of a same-sex couple on an invitation or thank you note does not compel Plaintiffs to convey a government mandated message, such as an endorsement or pledge in favor of same-sex marriages, nor does it convey any message concerning same-sex marriage.... It is absurd to think that the fabricator of a wedding invitation for a same-sex couple has endorsed same-sex marriage merely by creating or printing that invitation. Moreover, there is nothing about the creative process itself, such as a flower or vine or the choice of a particular font or color, that conveys any pledge, endorsement, celebration, or other substantive mandated message by Plaintiffs in regard to same-sex marriage.

Responding to plaintiffs' free exercise challenge, the court said in part:

the sale of wedding invitations free of the names of same-sex couples clearly is not the exercise of religion, and certainly is not a burden on the free exercise of their religion. Nothing about the ordinance has prevented the Plaintiffs from participating in the customs of their religious beliefs or has burdened the practice of their religion in any way.

ADF which represented plaintiffs in the case issued a press release responding to the decision. The press release is accompanied by links to pleadings in the case and to the relevant city ordinances.

Recent Articles of Interest

From SSRN:

• Steven Menashi, How Great is the Threat to Religious Freedom, Really?, (Mosaic Magazine, August 17, 2015).
• Michael W. McConnell, Mark E. Schneider, Jay P. Lefkowitz & Steven Menashi, Brief of Amici Curiae Former Justice Department Officials in Support of Petitioners in Zubik v. Burwell, (2016).
• Shachar Eldar & Elkana Laist, The Irrelevance of Motive and the Rule of Law, (New Criminal Law Review, Forthcoming).
• Marc O. DeGirolami, Religious Accommodation, Religious Tradition, and Political Polarization, (Lewis & Clark Law Review, Forthcoming).
• Christopher C. Lund, Religious Exemptions, Third-Party Harms, and the Establishment Clause, (Notre Dame Law Review, Vol. 91, p. 1375, 2016 (symposium)).
• John C. Eastman, No Free Lunch, But Dinner and a Movie (and Contraceptives for Dessert)?, (10 N.Y.U. J. L. & Liberty 282 (2016)).
• Robert Corn-Revere, Hate Speech Laws: Ratifying the Assassin's Veto, (Cato Institute Policy Analysis No. 791 (2016)).

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

• Effie Fokas, Directions in Religious Pluralism in Europe: Mobilizations in the Shadow of European Court of Human Rights Religious Freedom Jurisprudence, (Oxford Journal of Law and Religion, Vol 4, No.1, 54-74 (2015)).
• Luke Beck, The Case against Improper Purpose as the Touchstone for Invalidity under Section 116 of the Constitution, (Federal Law Review, Vol. 44, No. 3, Forthcoming).
• Gbohou Gnantin Hilaire Tegnan & Saldi Isra, Rule of Law and Human Rights Challenges in South East Asia: A Case Study of Legal Pluralism in Indonesia, (April 1, 2016).
• Preethi Kumar Mokshagundam, Dr. Ambedkar's Concept of Social Justice and Indian Constitution Protection for Dalits – A Recent Day Analysis, (August 23, 2016).
• Paul Dermine, Towards the Recognition of a Pan-European Right to Same-Sex Marriage – What If Light Came from the United States?, (June 1, 2016).
• Matthew S. Erie, Sharia, Charity, and Minjian Autonomy in Muslim China: Gift Giving in a Plural World, (American Ethnologist 43(2): 311-423 (2016)).

From SmartCILP:

• Walter C. Long, The Constitutionality and Ethics of Execution-Day Prison Chaplaincy, [Abstract], 21 Texas Journal on Civil Liberties & Civil Rights 1-33 (2015).
• Michael Stokes Paulsen, The Unconscionable War on Moral Conscience (reviewing Robert P. George, Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism), 91 Notre Dame Law Review Rev. 1167-1195 (2016).
• Mark Strasser, Hobby Lobby, RFRA, and Family Burdens, [Abstract], 25 Boston University Public Interest Law Journal 239-264 (2016).
• Special Issue: A Thousand Years of Infamy: The History of the Blood Libel. Edited by Richard H. Weisberg; preface by Richard H. Weisberg; articles by Jeffrey Mehlman, Hannah R. Johnson, Richard H. Weisberg, David Fraser and Vivian Grosswald Curran. 28 Law & Literature 1-95 (2016).

IRS Adopts Final Rules Recognizing Same-Sex Marriages For Tax Purposes

Yesterday the Internal Revenue Service published in the Federal Register a release (full text) adopting final rules recognizing same-sex marriages for federal tax purposes. The new rules provide in part:

[A] marriage of two individuals is recognized for federal tax purposes if the marriage is recognized by the state, possession, or territory of the United States in which the marriage is entered into, regardless of domicile....

Two individuals who enter into a relationship denominated as marriage under the laws of a foreign jurisdiction are recognized as married for federal tax purposes if the relationship would be recognized as marriage under the laws of at least one state, possession, or territory of the United States....

The terms spouse, husband, and wife do not include individuals who have entered into a registered domestic partnership, civil union, or other similar formal relationship not denominated as a marriage under the law of the state, possession, or territory of the United States where such relationship was entered into....

Catholic School's Firing of Guidance Counselor Over Same-Sex Marriage Remains In Litigation

In Drumgoogle v. Paramus Catholic High School, (NJ Super., Aug. 22, 2016), a New Jersey state trial court refused to grant summary judgment to a Catholic high school in a suit by its former dean of guidance who was fired after she entered a same-sex marriage.  The school terminated her under a provision of its collective bargaining contract that allows for-cause termination of a tenured teacher for "violating accepted standards of Catholic morality as to cause public scandal." Plaintiff claims that the school's policy on harassment bars discrimination against her on the basis of marital status and claims her firing violates the New Jersey Law Against Discrimination.  The court concluded that further discovery is required in order to determine whether plaintiff's status requires application of the "ministerial exception" to anti-discrimination laws and whether the dispute is secular or ecclesiastical. The Bergen County Record reports on the decision.

Ethics Complaints Are Newest Tool In Wars Over Same-Sex Marriage

Legal ethics complaints appear to have become the most recent weapon in the culture wars.  After the Southern Poverty Law Center filed a series of complaints with the Alabama Judicial Inquiry Commission against Alabama Chief Justice Roy Moore (see prior posting), an ally of Moore's has turned the tables.  On July 28, Alabama attorney Trent Garmon and his wife Holly filed a complaint against Richard Cohen, president of the Southern Poverty Law Center, over Cohen's comments attacking Moore for Moore's actions opposing same-sex marriage.  As reported by AL.com, the complaint alleges that Cohen's statements violated Alabama Rules of Professional Conduct, Rule 8.2 that provides;

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, 

Cohen's comments included a statement that Alabama "elected [Moore] to be a judge, not a pastor;" Cohen called Moore a demagogue and the "Ayatollah of Alabama," and said he is unfit for office.

Texas AG Cleared of Ethics Charges Over Reaction To Same-Sex Marriage Ruling

Texas Tribune reports that in an Aug. 3 notice, the State Bar of Texas announced that it is dismissing an ethics complaint signed by over 200 Texas lawyers claiming that Texas Attorney General Ken Paxton "violated his own official oath of office" last summer when he issued an Opinion and statement on the right of public officials to assert religious objections to issuing marriage licenses or performing same-sex marriages. According to the notice: "The Chief Disciplinary Counsel has determined that there is no just cause to believe that [Paxton] has committed professional misconduct."

Roy Moore's Trial On Ethics Charges Set For Next Month

After a hearing yesterday on charges against Alabama Supreme Court Chief Justice Roy Moore, the Alabama Court of the Judiciary issued an Order (full text) denying motions for summary judgment from both sides.  Yesterday's order also set the case for trial on Sept. 28. At issue are charges filed by the Alabama Judicial Inquiry Commission contending that Moore acted unethically when in January he issued an administrative order telling state probate judges that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples. (See prior posting.) Al.com reports on yesterday's developments.

Catholic Bishops React To Biden's Officiating At Same-Sex Marriage

As reported by the Washington Post, last Monday Vice President Joe Biden officiated at the same-sex wedding ceremony of two White House staffers.  In a blog post yesterday, three prominent members of the U.S. Conference of Catholic Bishops (including its president) reacted to Biden's action, without referring to him by name.  They said in part:

When a prominent Catholic politician publicly and voluntarily officiates at a ceremony to solemnize the relationship of two people of the same-sex, confusion arises regarding Catholic teaching on marriage and the corresponding moral obligations of Catholics. What we see is a counter witness, instead of a faithful one founded in the truth....

Faithful witness can be challenging—and it will only grow more challenging in the years to come—but it is also the joy and responsibility of all Catholics, especially those who have embraced positions of leadership and public service. 

Court Applies Younger Abstention To Alabama Chief Justice's Suit Over Temporary Removal

In Moore v. Judicial Inquiry Commission of the State of Alabama, (MD AL, Aug. 4, 2016), an Alabama federal district court, applying the Younger abstention doctrine, dismissed a suit brought by Alabama Chief Justice Roy Moore challenging a provision of the Alabama Constitution that provides a judge formally charged with misconduct shall be disqualified from acting as a judge while the complaint is pending.  Moore is charged with judicial misconduct because of his issuance, after the U.S. Supreme Court's Obergefell decision, of an administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples. (See prior posting.)   As reported by the Washington Times, Alabama is the only state with an automatic removal provision for judges charged with misconduct.   A hearing before the Judicial Inquiry Commission on the case is scheduled for Monday.

Roy Moore's Internal Court Memos Disclosed

As previously reported, in May the Alabama Judicial Inquiry Commission filed a Complaint against Alabama Supreme Court Chief Justice Roy Moore contending that Moore abused his authority and acted in violation of the Code of Judicial Ethics when in January he issued an administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples. Now, as reported by The Advocate, pleadings filed with the Judicial Inquiry Commission (full text) include redacted versions of two memos which Moore sent to the other Justices urging them to issue an opinion providing guidance to probate court judges.  He wrote in part:

Obergefell is particularly egregious because it mandates submission in violation of religious conscience (ask Kim Davis). Either go along or be disqualified from holding public office. In the near future Christians like Clerk Kim Davis will be driven out of public life, forced to forsake their faith or their livelihood....

 As Justice Alito stated, Obergefell "will be used to vilify Americans who are unwilling to assent to the new orthodoxy" and "to stamp out every vestige of dissent." ... The suppression of all dissent is now underway.

To paraphrase Martin Niemoller: They came for the florists, but I didn't deal in flowers; They came for the bakers, but I didn't bake cakes; They came for a county clerk in Kentucky, but that seemed far away; Then they came for me, and there was no one left to speak out.

Recent Articles of Interest

From SSRN:

• Paul T. Babie, Australia and Australian External Territories in Brill, Encyclopedia of Law and Religion (July 2016).
• Melissa Crouch, Promiscuity, Polygyny and the Power of Revenge: The Past and Future of Burmese Buddhist Law in Myanmar, (Asian Journal of Law and Society, Special Issue on Buddhism and Law in Asia, Forthcoming).
• Eva Brems, Objections to Anti-Discrimination in the Name of Conscience or Religion: A Conflicting Rights Approach, (Forthcoming in The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & Michel Rosenfeld eds., Cambridge University Press, 2017)).
• Claudia E. Haupt, Religious Outliers: Professional Knowledge Communities, Individual Conscience Claims, and the Availability of Professional Services to the Public, (Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen, & Elizabeth Sepper eds. Cambridge Univ. Press, 2017 Forthcoming)).
• Perry Dane, Scopes of Religious Exemption: A Normative Map, (Religious Exemptions, Oxford University Press, Forthcoming).
• Christopher McCrudden, Marriage Registrars, Same-Sex Relationships, and Religious Discrimination in the European Court of Human Rights, (July 20, 2016).
• Peter J. Boettke, Joshua C. Hall & Kathleen M. Sheehan, Was Adam Smith Right about Religious Competition?, (West Virginia University, Department of Economics, Working Paper No. 15-47 (2015)).
• Melissa Crouch, Introduction: Islam and the State in Myanmar, (Melissa Crouch (ed), Islam and the State in Myanmar: Muslim-Buddhist Relations and the Politics of Belonging. Oxford University Press, 2016, Forthcoming).
• Oonagh B. Breen, Guardians of the Charitable Realm: Charitable Trust Supervision Practice and Procedure in the Common Law World, (European Review of Private Law, Forthcoming).

From SmartCILP and elsewhere:

• Benjamin Porat, Ownership and Exclusivity: Two Visions, Two Traditions, 64 American Journal of Comparative Law 147-190 (2016).
• Richard A. Epstein, Religious Liberty Under Siege In Mississippi, (Hoover Institution, Defining Ideas, July 18, 2016).

Romania's Constitutional Court Upholds Proposed Traditional Marriage Amendment

Romania's Constitutional Court yesterday ruled unanimously that a proposal to amend Article 48 of the country's Constitution to preclude same-sex marriage is constitutional.  The Constitutional provision now reads: "The family is founded on the freely consented marriage of the spouses...."  According to Reuters, the proposed amendment would replace "the spouses" with "a man and a woman."  The petition proposing the amendment received 3 million signatures earlier this year.  The next steps will be for the amendment to be approved by Parliament and then submitted to a national referendum. The case has garnered international attention. The U.S. advocacy group Liberty Counsel submitted an amicus brief (full text) in support of the proposed amendment. Twenty-eight human rights groups, including Amnesty International, had urged the Court to reject the proposed amendment.

2016 Republican Platform on School Choice and Title IX

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the fifth in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Note that the excerpts continue after the jump. Here are portions of the sections titled Choice in Education, and Title IX:

We support options for learning, including home-schooling, career and technical education, private or parochial schools, magnet schools, charter schools, online learning, and early-college high schools. We especially support the innovative financing mechanisms that make options available to all children: education savings accounts (ESAs), vouchers, and tuition tax credits. Empowering families to access the learning environments that will best help their children to realize their full potential is one of the greatest civil rights challenges of our time. A young person’s ability to succeed in school must be based on his or her God-given talent and motivation, not an address, ZIP code, or economic status. We propose that the bulk of federal money through Title I for low-income children and through IDEA for children with special needs should follow the child to whatever school the family thinks will work best for them.....

2016 Republican Platform on Same-Sex Marriage

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the second in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Here is the Platform section titled Defending Marriage Against an Activist Judiciary:

Traditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society and has for millennia been entrusted with rearing children and instilling cultural values. We condemn the Supreme Court’s ruling in United States v. Windsor, which wrongly removed the ability of Congress to define marriage policy in federal law. We also condemn the Supreme Court’s lawless ruling in Obergefell v. Hodges, which in the words of the late Justice Antonin Scalia, was a “judicial Putsch” — full of “silly extravagances” — that reduced “the disciplined legal reasoning of John Marshall and Joseph Storey to the mystical aphorisms of a fortune cookie.” In Obergefell, five unelected lawyers robbed 320 million Americans of their legitimate constitutional authority to define marriage as the union of one man and one woman. The Court twisted the meaning of the Fourteenth Amendment beyond recognition. To echo Scalia, we dissent. We, therefore, support the appointment of justices and judges who respect the constitutional limits on their power and respect the authority of the states to decide such fundamental social questions.

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

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

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

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

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

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

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

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

Obergefell Decision Attacked By Suit Demanding License For Man-Object Marriage

As reported in a Liberty Counsel press release, in a rambling 44-page complaint filed last week Mark "Chris" Sevier, a Vanderbilt Law School graduate who was suspended from practice in 2011, filed suit challenging Kentucky's refusal to issue him a marriage license to allow him to marry his laptop computer.  Framed as a challenge to the U.S. Supreme Court's Obergefell decision, the complaint (full text) in Sevier v. Davis, (ED KY, filed 7/1/2016)) alleges in part:

The Plaintiff seek one of two forms of relief: (1) that the state be enjoined from enforcing any laws and policies that prevents him from legally marrying an inanimate object in light of the decision in Obergefell v. Hodge ... and United States v. Windsor ... or alternatively, (2) that all forms of marriage outside the traditional definition of marriage be nullified in reviving the original marriage laws and bans, since laws that try to establish the plausibility of gay rights violates the establishment clause of the first amendment....

If the plaintiffs request to many a machine is frivolous and "removed from reality," then certainly a man's request to many a man in order to call him his lawfully wedded wife in hopes that the society will whomp up more dignity for such marriages is equally "removed from reality" and culturally imperialistically arrogant. It is this kind of moral relativist that causes Middle Eastern Nations to hate the United States so much - because the adaptation of these values are a threat to the integrity of families - and they recognize that.

Sevier has previously filed similar lawsuits in Texas, Florida and Utah (see Above The Law). This time however he named as one of the defendants the equally adamant opponent of same-sex marriage, Rowan County Kentucky Clerk Kim Davis. (See prior posting.)  Alluding to this, the complaint alleges:

Unless total marriage equality is permitted as demanded by the Plaintiff, Mrs. Davis will have a valid cause of action under racketeering statutes against those who conspired to persecute and prosecute her maliciously as an an attempt to force her to convert to their sexually exploitative self-justifying world view.... Allowing the Plaintiff to marry an inanimate object will give those who put her in jail more credibility, since it will show that the Courts really believe that sexual orientation is based on civil rights matter and not an ideological religious one stemming from an attempt to legislate away feelings of shame and inadequacy.

Federal District Court Strikes Down Mississippi's Anti-LGBT Conscience Protection Law

In Barber v. Bryant, (SD MS, June 30, 2016), a Mississippi federal district court in a stinging 60-page opinion, issued a preliminary injunction against enforcement of Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act.  The new law protects a wide variety of conduct, or refusals to provide goods and service, based on a religious or moral belief that: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth.  The court concluded that the law, which would have gone into effect today, violates both the Establishment Clause and the Equal Protection Clause. Summarizing the history of the bill, the court said:

In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction..... Obergefell has led to HB 1523.

The court summarized its conclusions:

HB 1523 grants special rights to citizens who hold one of three “sincerely held religious beliefs or moral convictions” reflecting disapproval of lesbian, gay, transgender, and unmarried persons.... That violates both the guarantee of religious neutrality and the promise of equal protection of the laws.

The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells “nonadherents that they are outsiders, not full members of the political community, and . . . adherents that they are insiders, favored members of the political community.” ... And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons....

Responding to the state's argument that the law "is justified by a compelling government interest in accommodating the free exercise of religion," the court said that the state had "not identified 'even a single instance' in which Obergefell has led to a free exercise problem in Mississippi." The court added:

In this case, moreover, it is difficult to see the compelling government interest in favoring three enumerated religious beliefs over others....  It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly-divorced person. The government is not in a position to referee the validity of Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”) versus Leviticus 21:14 (“A widow, or a divorced woman, or profane, or an harlot, these shall he not take.”).

BuzzFeed and the Washington Post have additional coverage of the opinion.

Court Moves To Invalidate Mississippi's Law For Recusal By County Clerks Who Object To Same-Sex Marriage

In a decision issued yesterday, a Mississippi federal district court took the first step toward issuing an injunction that would have the effect of preventing county clerks in Mississippi from relying on the provisions in Mississippi HB 1523 that allow them to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage. (See prior posting.)  The decision came in an attempt to reopen and expand the injunction issued by the federal district court in 2015 baring enforcement of Mississippi's statutory and constitutional provisions barring same-sex marriage.

In Campaign for Southern Equality v. Bryant, (SD MS, June 27, 2016), the court explained:

The constitutional violation this case addressed in 2014 and 2015 was whether the Fourteenth Amendment permitted a State to treat same-sex couples differently than opposite-sex couples with respect to the issuance and recognition of marriage licenses.

Today’s motion concerns the same issue. In HB 1523 § 3(8)(a), the State is permitting the differential treatment to be carried out by individual clerks.***

Section 3(8)(a) is a significant change sufficient to reopen this case and reconsider the language of the Permanent Injunction....  The undersigned, though, is not persuaded that the 81 non-party Circuit Clerks are presently bound by the Permanent Injunction.... [T]he better course of action is to ensure that the remaining 81 Circuit Clerks have received actual notice of a Permanent Injunction that binds them before they are held accountable for it. The parties shall confer on an appropriate procedure for providing that notice....

No one has argued that the Permanent Injunction is invalid, but the briefing now suggests that it lacks all necessary parties. Judicial economy may be served by an Amended Permanent Injunction which enjoins § 263A of the Mississippi Constitution and Mississippi Code § 93-1-1(2), incorporates appropriate language from Rule 65, and clarifies that the persons it binds must issue marriage licenses “on the same terms and conditions as opposite-sex couples.” Obergefell, 135 S. Ct. at 2605....

The point of adding Obergefell’s language is simple: the Supreme Court’s ruling will be enforced. Obergefell “is the law of the land and, consequently, the law of this circuit.” 791 F.3d at 627. Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit – by advocating for a constitutional amendment to overturn the decision, for example. But the marriage license issue will not be adjudicated anew after every legislative session. And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly.

BuzzFeed reports on the decision.

Orthodox Church Lays Groundwork For Legal Enforcement of Ban on Church Use For Same-Sex Marriages

The Holy Synod of Bishops of the Orthodox Church in America last week adopted a statement (full text) titled Sincerely Held Religious Beliefs Regarding Marriage.  It is apparently designed to allow parishes and monasteries to legally enforce restrictions on use of their facilities for same-sex or transgender marriage ceremonies without courts invoking the ecclesiastical abstention doctrine to refuse to do so.  The introduction to the statement says in part:

The purpose of that statement was to articulate the basic and fundamental beliefs of the Orthodox Church in America regarding marriage and to do so in terms which could be understood and applied by federal, state, and local governmental officials without the necessity of any probing inquiry or interpretation which might require them to transgress limitations imposed on them by the First Amendment.

The statement says in part that "Marriage can only be between two people whose birth sex is male and female." It then calls for each diocese, parish, institution and monastery to adopt a statement declaring:

The (Name of the Parish/Hall/Facility) is the property of the (Name of the Parish/Institution/Monastery), a non-profit church organization located in (Location). Due to sincerely held religious beliefs, documented in the Biblical, dogmatic and canonical documents of the Orthodox Church, we do not permit the (Name of the Parish/Hall/Facility) to be used for the following purposes: events, services or receptions related to non-Orthodox sacraments (including, but not limited to, baptisms, weddings or funerals); non-Orthodox worship services; and partisan political or social rallies.

Court Denies Preliminary Injunction Against Mississippi's Conscience Protection For County Clerks

In Alford v. Moulder, (SD MS, June 20, 2016), a Mississippi federal district court denied a preliminary injunction in a suit by a same-sex couple who are challenging Mississippi's recently enacted Freedom of Conscience Law, HB 1523.  The suit specifically challenges provisions in the law that allow county clerks to recuse themselves on religious or moral grounds from issuing marriage licences. (See prior posting.) The court held that plaintiffs failed to show that injury to them is "imminent" since they merely allege that they plan to apply for a marriage license sometime within the next three years.  Plaintiffs immediately filed a Motion for Reconsideration.

Meanwhile, the same judge heard oral arguments yesterday in a separate case that is also challenging HB 1523.  AP reports that in this suit, plaintiffs are arguing that provisions allowing clerks to recuse themselves in favor of another employee issuing the license could create public humiliation for a same-sex couple when they apply for a license.  "There can't be separate-but-equal marriage. There can't be Jim Crow kind of marriage," the couples' attorney told the court.  Four separate cases challenging HB 1523 have been filed, and the judge will hear oral arguments in the remaining two later this week.