Recent Articles of Interest

From SSRN:

• Rafael Domingo, Toward the Spiritualization of Politics, (April 9, 2020).
• Beatrice Jessie Hill, The Deliberative Privacy Principle: Abortion, Free Speech, and Religious Freedom, (William & Mary Bill of Rights Journal, Vol. 28, 2019).
• Jason A. Cade, 'Water is Life!' (and Speech!): Death, Dissent and Democracy in the Borderlands, (Indiana Law Journal, Vol. 96 (Forthcoming)).
• Engy Abdelkader, China's Repression of Uigher Muslims: A Human Rights Perspective in Historical Context, (UCLA Law Journal of Islamic & Near Eastern Law (2020).
• Joseph Davis & Nicholas Reaves, Fruit of the Poisonous Lemon Tree: How the Supreme Court Created Offended-Observer Standing, and Why It's Time for it to Go, (Notre Dame Law Review, Forthcoming).
• Dimitry Kochenov & Uladzislau Belavusau, Same-Sex Spouses: More Free Movement, but What About Marriage? Coman: Case C-673/16, Coman et al. v. Inspectoratul General Pentru Imigrări, Judgement of the Court of Justice (Grand Chamber) of 5 June 2018, (Common Market Law Review 57(1), pp. 227–242, 2020).
• A.T. Mohd, A.M. Yunus & I. Hassan, Ideology, Communication, and Response to Terrorism: A Sharia-based Perspective, (International Journal of Academic Research in Business and Social Sciences, 10(3), 124–130 (2020).

Court Refuses To Dismiss Catholic School Teacher's Suit On Church Autonomy Grounds

In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Super. Ct., May 1, 2020), an Indiana trial court refused to dismiss a lawsuit against the Catholic Archdiocese brought by a teacher who claims that the Archdiocese interfered with his contractual relationship with Cathedral High School, an independent school that had a relationship with the Archdiocese. The teacher was ordered to be fired by a directive from the Archdiocese issued after the teacher entered a same-sex marriage. The school feared that if it did not comply, the Archdiocese would no longer recognize it as a Catholic institution. The Archdiocese argued that the lawsuit should be dismissed under the "church autonomy" doctrine. The court said in part:

In civil dispute involving church as party, the court has jurisdiction to resolve the case if it can be done without resolving an ecclesiastical controversy. The court can avoid the religious controversy by deferring to the highest authority within the ecclesiastical body....

... [T]his Court cannot determine that the directive by the Archdiocese to terminate Payne-Elliott was made by the highest authority in the ecclesiastical body of Cathedral or of the Roman Catholic Church.“

The court also questioned whether the case involved an ecclesiastical controversy at all:

... [A] letter from the President and Chairman of the Board of Cathedral elaborates as to ”What is at stake?” Therein, Cathedral states: ”Furthermore, Cathedral would lose its 501(c)(3) status thus rendering Cathedral unable to operate as nonprofit school." This rational for firing Payne-Elliott is important,... If Payne-Elliott was terminated by Cathedral for an economic benefit to Cathedral at the direction of the Archdiocese, then that is different matter than Catholic doctrine.

The court also refused to accept several other grounds for dismissal put forward by the Archdiocese.  Indiana Lawyer reports on the decision.

Texas Judge Sues Over Right To Oppose Same-Sex Marriage

A county judge in Jack County, Texas has filed suit in a Texas federal district court seeking declaratory and injunctive relief to prevent any future enforcement action by the Texas State Commission on Judicial Conduct against him. The complaint (full text) in Umphress v. Hall, (ND TX, filed 3/18/2020) alleges in part:

A few months ago, the Texas State Commission on Judicial Conduct issued a “public warning” to Dianne Hensley, a justice of the peace who recuses herself from officiating at same-sex marriage ceremonies on account of her Christian faith....  The Commission’s interpretation of Canon 4A(1) threatens every judge in Texas who refuses to perform same-sex marriages, as well as those who publicly evince disapproval of same-sex marriage or homosexual conduct in their extra-judicial activities.....

The Court should therefore declare that the First Amendment protects Judge Umphress’s right to conduct his extra-judicial activities in a manner that evinces disapproval of same-sex marriage and homosexual conduct.

Pink News reports on the lawsuit.

Justice Department Sides With Wedding Photographer In District Court Case

The Department of Justice announced yesterday that it has filed a Statement of Interest (full text) in Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 2/27/20).  As previously reported, in the case the owner of a wedding photography business seeks a preliminary injunction to prevent enforcement of Louisville's public accommodation ordinance against her. Plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. DOJ sides with the photographer, arguing in part:

Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny....

Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive.... By ... compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”

... That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny....  The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.

No Action Under Color of Law In Refusing To Rent Meeting Space To Speaker

In Pasadena Republican Club v. Western Justice Center, (CD CA, Dec. 30, 2019), a California federal district court dismissed a suit claiming viewpoint discrimination and religious belief discrimination by the Western Justice Center (WJC) that was leasing the historic Maxwell House from the city of Pasedena.  WJC refused to rent space to the Republican Club for a speech by the president of the National Organization for Marriage because NOM's position on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of WJC. In rejecting the Republican Club's civil rights claims, the court said in part:

The court will grant the Center’s and [its former executive director] Chirlin’s motion to dismiss because the complaint does not plausibly allege that the Center and Chirlin were acting under color of state law, as § 1983 requires, or that the City was involved in the alleged conspiracy, as § 1985(3) requires. Although a symbiotic relationship existed to some degree between the Center and the City, this case is distinguishable from Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), upon which the Club relies....

Recent Articles of Interest

From SSRN:

• Nathan S. Chapman, The Weight of Judgment, (Christianity and the Criminal Law, eds. Norman Doe, Dick Helmholz, Mark Hill, John Witte, Jr. (London: Routledge), Forthcoming).
• David A. Skeel, Christianity and Bankruptcy, (Forthcoming In Christianity and Market Regulation (Daniel Crane & Samuel Gregg eds., Cambridge University Press 2020).
• Carlo Pedrioli, Is Incitement on the Internet Easier to Punish than Incitement on Television? A Case Study of the Koran-Burning of Florida Pastor Terry Jones, (Free Speech, Privacy and Media: Comparative Perspectives 49 (Russell L. Weaver, Mark D. Cole, Steven I. Friedland, Duncan Fairgrieve, András Koltay & Arnaud Raynouard eds., 2019)).
• Richard F. Duncan, Defense Against the Dark Arts: Justice Jackson, Justice Kennedy and the No-Compelled-Speech Doctrine, (December 19, 2019).
• David S. Cohen, The Promise and Peril of a Common Law Right to Abortion (Symposium Review of Anita Bernstein's The Common Law Inside the Female Body), (Northwestern University Law Review, Vol. 114, 2019).
• Meghan Boone, Reproductive Due Process, (The George Washington University Law Review, 2020 (Forthcoming)).
• Kathy L. Cerminara, Cruzan's Legacy in Autonomy, (SMU Law Review, Forthcoming).

From SSRN (Non-US Law):

• Iqra Saleem Khan, Consent in Marriage: A Radical Feminist Analysis of Pakistani Law, (William & Mary Journal of Women and the Law, Vol. 26, No. 3, 2020).
• Derek Ross & Deina Warren, Religious Equality: Restoring Section 15's Hollowed Ground, (91 Supreme Court Law Review (2d), 2019).
• Assaf Likhovski, A Colonial Legal Laboratory? Jurisprudential Innovation in the British Empire, (American Journal of Comparative Law (Forthcoming)).
• Sahar F. Aziz, 'Whosoever Sees An Evil' - Muslim Americans' Human Rights Advocacy, (Oxford Research Encyclopedia of Religion (Spring 2020)).
• P. Y. Lo, Hong Kong Courts and Same-Sex Marriage: Could Judicial Recognition of Spouse of Same-Sex Marriage Celebrated in Foreign Jurisdictions Be the Prelude for Judicial Recognition of Same-Sex Marriage Locally? (December 21, 2019).
• Alessio Romarri, Do Far-Right Mayors Increase the Probability of Hate Crimes? Evidence From Italy, (December 19, 2019).

UPDATE: Vol. 34, Issue 2 of the Journal of Law and Religion has been published online and is available without charge until Feb. 15.

Happy New Year 2020 !

Dear Religion Clause Readers:

Happy New Year 2020! I hope you continue to find Religion Clause an important resource for news on religious liberty and church-state developments. I continue to strive for objectivity in my posts and to provide links to an abundance of primary source material underlying each post. I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world.

As we usher in 2020, it has become conventional wisdom that many of the most highly charged issues that divide our country politically also often divide it along religious lines.  Whether the issue is abortion, transgender rights, immigration, same-sex marriage, climate change, or campus free speech, activists have increasingly defined the debate in religious terms. As I watch this, I recall the words of Chief Justice Burger nearly 50 years ago in Lemon v. Kurtzman:

Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.

2019 has also been a year in which religious intolerance has grown.  Increasing anti-Semitic incidents in the United States and around the world remind us that this age-old manifestation of hate has not disappeared. Anti-Muslim attitudes and actions continue largely unabated in numerous countries, while minority Christian communities elsewhere are under siege.  2020 promises to be an important year for confronting religious liberty and church-state concerns.  Religion Clause will continue to cover all the developments.

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. All of you have made Religion Clause the most recognized and reliable source for keeping informed on the intersection of religion with law and politics. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.

I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Best wishes for 2020!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

Howard Friedman

Top 10 Religious Liberty and Church State Developments of 2019

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

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

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

Judge Who Refused To Perform Same-Sex Ceremonies Sues Over Reprimand

As previously reported, in November the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because of her refusal to perform same-sex marriage ceremonies. Now a lawsuit has been filled challenging the Commission's action.  The complaint (full text) in Hensley v. Texas State Commission on Judicial Conduct, (TX Dist. Ct., filed 12/16/2019) contends that the Commission's action violates Judge Hensley's rights under the Texas Religious Freedom Restoration Act. The complaint also seeks a class-wide declaratory judgment. Fox 44 News reports on the lawsuit.

British Court Enjoins Protests Against School's LGBT Curriculum

In Birmingham City Council v. Afsar, (EWHC, Nov. 26, 2019), a trial judge in the High Court in the British city of Birmingham held that an injunction should be issued limiting the manner in which demonstrators can protest an elementary school's curriculum on LGBT issues. According to the court:

The case has been pleaded and argued in various ways, but at its heart is the argument that the School’s teaching policy – described by the defendants as “the teaching of LGBT issues (ie teaching equalities)” – represents or involves unlawful discrimination against British Pakistani Muslim children at the School, and those with parental responsibility for them ... on grounds of race and/or religion. It is submitted that the core religious, philosophical and cultural values of this group “are centred on heterosexual relationships in marriage; this state of belief does not encompass same sex relationships”. ....

The court held that the Equality Act 2010 excludes from its coverage anything done in connection with the content of curriculum. In any event, the court concluded:

The teaching has been misunderstood and misinterpreted by the defendants, and misrepresented, sometimes grossly misrepresented, in the course of the protests. The matters that have actually been taught are limited, and lawful. 

The court went on:

The evidence – including but not limited to the expert evidence - persuades me that the levels of noise generated by this way of protesting is clearly excessive, amounting to an intrusion into the lives of those at the School and its neighbours that goes well beyond anything that could be justified as proportionate to the aims of persuasion. 

The court held, however, that an earlier injunction banning the use of social media by protesters should be lifted, saying in part:

The speech with which I am here concerned has been expressed in the context of a private, or limited, WhatsApp group. It was not aimed at the teachers, in the sense that they were intended to read it. It has come to their attention only as a result of disclosures made by one or more members of that group. The scale, frequency, nature and impact of the abuse to date, given its context, do not give rise to a sufficiently compelling case for interference.

The court also issued a summary of the decision. The British publication Conservative Women published an article highly critical of the decision.

Recent Articles of Interest

From SSRN:

• Ihsan Yilmaz, Religio-Secular Counter-Hegemonic Legal Knowledge Production and Its Glocal Dissemination, (January 12, 2019).
• Shaun Alberto de Freitas, A Critique of Ronald Dworkin’s Limitation of Passive Forms of Religious Expression in the Public Sphere, (NTKR 2019-1 (2019)).
• Neil Walker, Christianity and the Global Rule of Law, (Edinburgh School of Law Research Paper No. 2019/35 (2019)).
• Chao-Ju Chen, A Same-sex Marriage that is Not the Same: Taiwan’s Legal Recognition of Same-sex Unions and Affirmation of Marriage Normativity, (Australian Journal of Asian Law, Vol. 20, No. 1, Article 5, 2019).
• Wondong Lee, Joe Phillips & Joseph Yi,  LGBTQ+ Rights in South Korea – East Asia’s ‘Christian’ Country, (Australian Journal of Asian Law, Vol. 20, No. 1, Article 6, 2019).
• Nasir Qadri, Analysis of Triple Talaq Judgment Passed by Indian Supreme Court,(December 8, 2018).
• Elizabeth Ann Black, Casting the First Stone: The Significance of Brunei Darussalam’s Syariah Penal Code Order for LGBT Bruneians, (Australian Journal of Asian Law, Vol. 20, No. 1, Article 18, 2019).
• Ihsan Yilmaz, Islamist Turn in Turkey, State Transnationalism and Transnational Islamist Unofficial Law, (October 12, 2019).
• Beng Hui Tan, The LGBT Quandary in New Malaysia, (Australian Journal of Asian Law, Vol. 20, No. 1, article 15, 2019).

HHS To Allow Grantees To Refuse To Serve LGBT Clients

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

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

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

The new rules will instead provide:

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

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

In its announcement, HHS said in part:

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

New York Times reports on the HHS action.

Recent Articles of Interest

From SSRN:

• Shaakirrah Sanders, Religious Healing Exemptions and the Jurisprudential Gap Between Substantive Due Process and Free Exercise Rights, (8 U.C. Irvine L. Rev. 633 (2018)).
• Farnush Ghadery, 'Sticking to Their Guns': The United Nations' Failure to See the Potential of Islamic Feminism for the Promotion of Women's Rights in Afghanistan, (October 8, 2019).
• Perry Dane, 'Avinu, Malkeinu, Kin(g) of All the Earth': A Yom Kippur D’var Torah, (October 4, 2019).
• Dimitry Kochenov & Uladzislau Belavusau, Same-Sex Spouses in the EU after Coman: More Free Movement, But What about Marriage?, (EUI Working Paper (Florence) No. 2019/3).
• Deepa Das Acevedo, Just Hindus, (Law & Social Inquiry (2020, Forthcoming)).
• Joshua Jones, Title IX's Substantive Equity Mandate for Transgender Persons in American Law Schools: A Call to Disaggregate SOGI Data, (Forthcoming, Spring 2020, Vol. 44.3 NYU Review of Law and Social Change).
• Andrew T. Hayashi, The Law and Economics of Animus, (Virginia Public Law and Legal Theory Research Paper No. 2019-57).

Hong Kong Court: No Protection For Same-Sex Marriage or Civil Unions

In MK v. Government of HKSAR, (HKCFI, Oct. 18, 2019), the Hong Kong Court of First Instance ruled that Article 37 of Hong Kong's Basic Law  providing protection for the freedom of marriage applies only to heterosexual marriage.  It also held that the government does not have a duty to provide a legal framework, such as civil unions, as an alternative to protect same-sex couples. JURIST reports on the decision.

DOJ Backs Catholic Archdiocese In Firing of Teacher For Same-Sex Marriage

On Friday, the Department of Justice filed a Statement of Interest (full text) in an Indiana state trial court in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Super Ct., 9/27/2019).  In the suit, a teacher in a Catholic school in Indianapolis claims that the Archdiocese wrongly interfered with his contractual relationship with the school when the Archdiocese ordered the school to dismiss the teacher because of his public same-sex marriage. (See prior posting.)  DOJ argued that the First Amendment requires the court to dismiss the teacher's complaint:

The First Amendment bars this action for at least two independent reasons. First, Plaintiff’s action seeks to penalize an indisputably expressive association—the Archdiocese—for deciding which schools may identify as Catholic under its associational umbrella.....

Second, Plaintiff seeks to embroil this Court in a dispute over the Archdiocese’s application of Catholic law, in violation of the church-autonomy doctrine.

A Justice Department press release announced its filing with the court.

Michigan Catholic Adoption Agency Gets Preliminary Injunction Protecting Its Policy on LGBTQ Couples

In Buck v. Gordon, (WD MI, Sept. 26, 2019), a Michigan federal district court issued a preliminary injunction to prevent the state from requiring that a Catholic adoption and foster care agency place children with same-sex couples. The agency currently refers such couples to other agencies.  As summarized by the court:

The State pays St. Vincent to place children with foster or adoptive parents certified as suitable by the State. St. Vincent has done that faithfully, regardless of whether the certified parents were opposite sex, same-sex, or unmarried couples. St. Vincent would like to continue doing so under existing and renewed contracts with the State.  

What St. Vincent has not done and will not do is give up its traditional Catholic belief that marriage as instituted by God is for one man and one woman. Based on that belief, St. Vincent has exercised its discretion to ensure that it is not in the position of having to review and recommend to the State whether to certify a same-sex or unmarried couple, and to refer those cases to agencies that do not have a religious confession preventing an honest evaluation and recommendation. In 2015, the Michigan legislature enacted legislation designed to protect that choice, and until January of 2019, the State defended the right of the State and St. Vincent to make that choice.

That changed when Defendant Attorney General Nessel took office. Leading up to and during the 2018 general election campaign, she made it clear that she considered beliefs like St. Vincent’s to be the product of hate. She stated that the 2015 law seeking to protect St. Vincent’s practice was indefensible and had discriminatory animus as its sole purpose. After her election, she ... put St. Vincent in the position of either giving up its belief or giving up its contract with the State. That kind of targeted attack on a sincerely held religious belief is what calls for strict scrutiny in this case and supports entry of a preliminary injunction preserving the status quo while the case is fully litigated.

Detroit News reports on the decision.

Arizona Supreme Court Backs Wedding Invitation Artists In Their Free Speech Claim

In Brush & Nib. v. City of Phoenix, (AZ Sup Ct., Sept. 16, 2019), the Arizona Supreme Court in a 4-3 decision held that Phoenix's public accommodation law cannot be applied to force owners of a wedding and event supply business to create custom wedding invitations for same-sex ceremonies when doing so violates their religious beliefs. The several opinions generated span 78 pages.  The majority opinion of Justice Gould, focusing largely on the compelled speech doctrine, said in part:

[Plaintiffs] have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise of Religion Act.... Our holding is limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record.... We do not recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of other wedding products may be exempt from the Ordinance....

 Plaintiffs’ custom wedding invitations, and the creation of those invitations, constitute pure speech entitled to full First Amendment protection....

Here, Plaintiffs’ objection is based on neither a customer’s sexual orientation nor the sexual conduct that defines certain customers as a class. Plaintiffs will make custom artwork for any customers, regardless of their sexual orientation, but will not, regardless of the customer, make custom wedding invitations celebrating a same-sex marriage ceremony. Thus, although Plaintiffs’ refusal may ... primarily impact same sex couples, their decision is protected because it is not based on a customer’s sexual orientation.

Justice Bolick filed a concurring opinion. Three dissenting opinions were filed, one joined by all three dissenters. The primary dissent written by Justice Bales said in part:

Our constitutions and laws do not entitle a business to discriminate among customers based on its owners’ disapproval of certain groups, even if that disapproval is based on sincerely held religious beliefs. In holding otherwise, the majority implausibly characterizes a commercially prepared wedding invitation as “pure speech” on the part of the business selling the product and discounts the compelling public interest in preventing discrimination against disfavored customers by businesses and other public accommodations.

Arizona Republic reports on the decision.

Texans Sue Under the "Save Chick-fil-A" Law

As previously reported, in June Texas Gov. Greg Abbott signed a bill which prohibits any governmental entity in Texas from taking adverse action against any person because of the person's affiliation, contribution or support for a religious organization. The law was aimed at San Antonio's exclusion of Chick-fil-A from operating at the San Antonio's airport.  The restaurant chain has been criticized for its contributions to organizations that oppose same-sex marriage. Last week, five Texas residents filed suit in a state trial court under the new law seeking an injunction to prevent the city from continuing to exclude Chick-fil-A from the airport. The complaint (full text) in Von Dohlen v. City of San Antonio, (TX Dist. Ct., filed 9/5/2019), alleges in part:

The law of Texas prohibits governmental entities from taking “adverse action” against corporations based on their contributions to a religious organization. See Texas Gov’t Code § 2400.002. The City of San Antonio is violating this statutory command by excluding Chick-fil-A from the San Antonio airport on account of its donations to Christian organizations such as the Salvation Army and the Fellowship of Christian Athletes. 

20. For years, liberal activists have been attacking Chick-fil-A because it gives money to Christian organizations that accept the Bible as the Word of God.

21. Because these Bible-believing Christian organizations derive their notions of morality from the Bible rather than modern-day cultural fads, they oppose homosexual behavior and same-sex marriage.

San Antonio Family Association issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Hashika Durai & K. Niranjana, A Study on Religious Laws and Religious Crimes in India, (August 26, 2019).
• Cyra Akila Choudhury, Reflections on the Christchurch Massacre: Incorporating a Critique of Islamophobia and TWAIL, (TWAILR: Reflections - 9/2019).
• Perry Dane, Echad: A D’var Torah on Parshat Vaetchanan, (August 17, 2019).
• Mark Kelman, What is in a Name?, (Taxation and Regulation Across Constitutional Domains (Carolina Academic Press, 2019)).
• Richard W. Garnett, The Communitarian Work and Vision(s) of Robert Cochran (and Thomas Shaffer), (Pepperdine Law Review, Vol. 46, 2019).
• Thomas Charles Berg, Religious Freedom and the Common Good: A Summary of Arguments and Issues, (15 University of St. Thomas Law Journal 517 (2019)).
• Etienne Wain, The Blessing of Same Gender Relationships in the Anglican Church of Aotearoa New Zealand and Polynesia: A Mixed Blessing?, (Victoria University of Wellington Legal Research Paper (Sept. 2019)).
• Khaled Beydoun, The Ban and the Borderlands Within: The Travel Ban As a Domestic War on Terror Tool, (Stanford Law Review, Vol. 71, 2019).
• Shahnawaz Ahmed Malik, Minority Rights Protection in India; From Sachar Committee Recommendations to Mob Lynching, (Review Of Research Journal, 2018).
• Douglas NeJaime, The Constitution of Parenthood, (Stanford Law Review, Vol. 72, Forthcoming).

From SmartCILP:

• L. Darnell Weeden, A Functional Free Exercise Clause Analysis Requires a State To Prove a Compelling Interest Before Interfering With an Individual's Faith-Based Same-Sex Marriage Participation Objections, [Abstract], 18 Appalachian Journal of Law 113-150 (2018-2019).
• Rabea Benhalim, The Case for American Muslim Arbitration, [Abstract], 2019 Wisconsin Law Review 531-591.

8th Circuit Vindicates Wedding Videograhers' 1st Amendment Claims

In Telescope Media Group v. Lucero, (8th Cir., Aug. 23, 2019), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, held that the 1st Amendment protects wedding videographers who refuse on religious grounds to produce videos of same-sex weddings. Minnesota contended that the refusal violates two provisions of Minnesota's Human Rights Act.  Judge Stras, writing for the majority, said in part:

Minnesota’s interpretation of the MHRA interferes with the Larsens’ speech in two overlapping ways. First, it compels the Larsens to speak favorably about same-sex marriage if they choose to speak favorably about opposite-sex marriage. Second, it operates as a content-based regulation of their speech....

Laws that compel speech or regulate it based on its content are subject to strict scrutiny....

... [R]egulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be.

The majority also concluded that because the state's action burdens religiously motivated speech, the hybrid rights doctrine requires strict scrutiny. The majority remanded the case to the district court for it to decide whether the videographers are entitled to a preliminary injunction.

Judge Kelley dissenting, said in part:

 ... [T]he court tries to recharacterize Minnesota’s law as a content-based regulation of speech, asserting that it forces the Larsens to speak and to convey a message with which they disagree. Neither is true. The Larsens remain free to communicate any message they desire—about same-sex marriage or any other topic—or no message at all. What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake, that is what today’s decision affords them license to do.

Reuters reports on the decision.