Ky. Corporation Does Not Have ‘Religious Freedom’ Right To Discriminate, Says Americans United

Church-State Watchdog Group Says Hands On Originals Should Have Made T-Shirts For Gay-Pride Event

Hands On Originals, Inc., does not have a free-speech or free-exercise right to violate Lexington-Fayette Urban County, Ky., anti-discrimination laws, says Americans United for Separation of Church and State.

In a friend-of-the-court brief filed yesterday with the Commonwealth of Kentucky Court of Appeals, Americans United said Hands On Originals cannot use the religious beliefs of its owner as legal cover for refusing to make T-shirts for a gay-pride event.

“Lexington-Fayette Urban County’s anti-discrimination law means no one has the right to treat LGBT people as second-class citizens,” said the Rev. Barry W. Lynn, executive director of Americans United. “Hands On Originals does not get a special exemption from this regulation simply because of its owner’s religious convictions.”

The Gay and Lesbian Services Organization (GLSO) had asked Hands on Originals to make shirts commemorating the 2012 Lexington Pride Festival, but the company’s owner, Blaine Adamson, refused – citing his religious beliefs. Since Lexington-Fayette Urban County prohibits discrimination on the basis of sexual orientation, GLSO made a successful complaint against the company with the Lexington-Fayette Urban County Government Human Rights Commission. But the Fayette County Circuit Court overturned that ruling earlier this year.

Hands On Originals has claimed that its products are “artistic” in nature and therefore the company should not be forced to print shirts containing customers’ messages with which it does not agree. In its brief, Americans United explains that if that argument succeeds, it could be used to justify virtually any refusal of service.

“Accepting the arguments made by Hands On Originals in this case would not only put Kentucky courts in conflict with First Amendment decisions from across the country, but also would allow nearly any business alleging that its provision of goods or services is expressive to discriminate as it pleased,” the brief asserts. “Gay men, lesbians, and members of other protected classes (and their children) would not know which businesses they could patronize and could not expect the law to protect their rights of access to public accommodations.”

This brief was filed in conjunction with Americans United’s Protect Thy Neighbor project, an initiative launched this year that seeks to ensure no one uses religion as an excuse to discriminate against others.

“We’ve been down this road before,” said AU Senior Litigation Counsel Gregory M. Lipper. “In the 1960s, courts ruled against business owners who tried to use their religious beliefs as an excuse to discriminate on the basis of race. The outcome should be no different when it comes to discrimination on the basis of sexual orientation: The religious beliefs of business owners don’t give them a right to treat LGBT people as second-class citizens.”

The brief for Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals, Inc. was prepared by Lipper, AU Legal Director Richard B. Katskee, and AU Madison Fellow Carmen Green. (Green is admitted in Virginia only, and is supervised by Katskee, a member of the D.C. Bar.) David Tachau and Katherine E. McKune from the Kentucky law firm of Tachau Meek PLC served as co-counsel.

Kim Davis Must Issue Valid Marriage Licenses To All Qualified Couples, Says Americans United

Church-State Watchdog Group Says Davis Should Either Do Her Job Or Find A New One

Rowan County, Ky., Clerk Kim Davis must issue valid marriage licenses to all qualified couples, including those of the same sex, says Americans United for Separation of Church and State.

In a friend-of-the-court brief filed yesterday evening with the 6th U.S. Circuit Court of Appeals, Americans United said Davis' religious beliefs do not trump the U.S. Supreme Court's marriage-equality decision in Obergefell v. Hodges, nor does she have the right to prohibit Rowan County from issuing marriage licenses to anyone.

"The First Amendment is not the personal plaything of Kim Davis or any other government official," said the Rev. Barry W. Lynn, executive director of Americans United. "No official has the right to deny constitutional rights to others simply on the basis of their own religious beliefs."

After the Obergefell ruling, Davis refused to issue marriage licenses to anyone because of her opposition to marriage equality. She also stopped the Rowan County deputy clerks from issuing licenses, a decision that violated a court order and landed her in jail in September.

Rowan County deputy clerks began issuing licenses to all couples while Davis was  in jail, but after her release she altered Rowan County's marriage licenses to remove any mention of Rowan County, the name or title of any clerk or deputy clerk and even the signature of the official issuing the license. Kentucky law requires an issuing clerk's name to appear on these licenses, so it remains unclear if the documents are valid.

Davis claims that her religious beliefs permit her to withhold marriage licenses from same-sex couples, but so far federal courts have not supported her position.

In its brief, Americans United argued that Davis has no right to deny marriage licenses to Kentucky citizens.

"Davis could not give her church or her pastor the right to block Rowan County from issuing marriage licenses to eligible couples," the brief reads. "Nor, therefore, may she arrogate to herself the right to stop the County from issuing those licenses."

Kentucky's new governor, Matt Bevin, issued an executive order earlier this week directing the removal of the county clerk's name from Kentucky marriage licenses. The brief notes that this order itself appears to violate Kentucky law, and that Davis' unilateral decision to change the licenses would, if allowed, spawn chaos in Kentucky and undermine citizens' marriage rights..

"Each time a county clerk asserted a religious objection to the operative marriage license, the legislature would need to agree on and authorize a different form; the executive would need to design and distribute that new form; and, most importantly, the marrying couple would be unable to get a license unless and until both branches completed these tasks," asserts the brief.

Observed AU Senior Litigation Counsel Gregory M. Lipper, "Because we don't live in a theocracy, Kim Davis must comply with the Constitution and stop imposing her religious beliefs on the citizens of Rowan County. Davis may marry or not marry whomever she likes, but her religious objections to marriage equality do not allow her to block the lawful marriages of others."

The brief for Miller v. Davis was prepared by Lipper, AU Legal Director Richard B. Katskee and Madison Fellow Natacha Lam. (Lam is admitted in New York only and is supervised by Katskee, a member of the D.C. Bar.)

Colo. County Official Has No Right To Post Religious Sign Attacking MArriage Equality At Government Office, Says Americans United

Church-State Watchdog Group Says Elbert County Clerk Is Clearly Trying To Express Disapproval Of Same-Sex Couples

Elbert County Clerk Dallas Schroeder must remove a poster with a biblical passage disparaging the marriages of same-sex couples from his government office, says Americans United for Separation of Church and State.

Schroeder’s office is responsible for issuing marriage licenses, and it’s clear that the clerk put up the poster to express disapproval of same-sex unions, the organization asserts.

The poster depicts an image of a bride and a groom accompanied by a verse from the first Book of Corinthians that reads, “…each man should have his own wife and each woman her own husband.”

“Schroeder’s job is to issue marriage licenses to every legally qualified couple without bringing his moral disapproval into matters,” said the Rev. Barry W. Lynn, executive director of Americans United. “If he’s unable to do that, he needs to resign.”

Although Schroeder claims that the sign merely celebrates marriage, an email sent to other county clerks in the state last year has surfaced in which Schroeder wrote, “My thought process is that they have to see the poster. And if they choose to violate God’s written Word, then that is on their head.”

Americans United’s letter says the poster represents numerous constitutional problems, including a violation of the First Amendment.

“By posting a religious display at the County Clerk’s office to condemn the marriages of same-sex couples – in a manner intended to be viewed by couples as they visit the office to obtain their marriage licenses – the County is violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment as well as… the First Amendment,” the letter reads.

This action is part of Americans United’s new project, Protect Thy Neighbor, which seeks to stop religion-based discrimination against LGBT persons and others. Americans United has previously sent a memo to all 50 state attorneys general, and to many county clerks, reminding them that religious freedom does not give government officials the right to deny equal treatment to same-sex couples.

“Although he’s apparently more creative than Roy Moore and Kim Davis, the Elbert County Clerk is acting unlawfully all the same,” said AU Senior Litigation Counsel Gregory M. Lipper. “Just as the county clerk may not disparage interracial couples when they obtain their marriage licenses, he may not demean same-sex couples seeking the same government benefit.”

Elbert County residents who are seeking marriage licenses and object to the anti-gay poster may contact American United’s legal department, at legal@protectthyneighbor.org.

The letter asks for a response within 14 days. It was written by Lipper, AU Legal Director Richard B. Katskee and Legal Fellow John McGinnis.

U.S. Supreme Court Must Protect Birth Control Access For Non-Profit Employees, Americans United Says

Church-State Watchdog Group Says Accommodation Ensures Religious Organizations Are Not Harmed By Contraceptive Mandate

The U.S. Supreme Court should rule against employers demanding an additional exemption from the Affordable Care Act’s (ACA) birth control regulations, Americans United for Separation for Church and State says.

Today, the high court agreed to hear seven cases, including Roman Catholic Archbishop of Washington v. Burwell and Little Sisters of the Poor Home for the Aged v. Burwell, that concern challenges brought by religiously affiliated institutions. Although the plaintiffs are not required to include birth control in the insurance plans that they provide to their employees, they object to their employees receiving that coverage from a third party.   

“No employer – not even a religious one – has a right to stop its employees from accessing health care,” said the Rev. Barry W. Lynn, executive director of Americans United. “If the boss doesn’t want to use contraceptives that is his or her right. But employees should not have their personal medical decisions dictated by their bosses’ religious dogma, especially since the employers have already been relieved of their obligation to cover birth control.”

A regulation implementing the ACA provides that both for-profit corporations and religiously affiliated non-profits that object to offering employee health care plans that include birth control must simply sign a two-page form stating their objection. Or they can send the government a letter stating their objection and providing certain information. Once the form or letter is submitted, the government takes care of the rest in order to make contraceptives available to the objector’s employees. The employer is in no way obligated to endorse birth control, let alone pay for it.

But even that basic form or letter is too much for some employers, which claim that their “religious freedom” is somehow burdened if their employees use birth control – regardless of who foots the bill for it. Americans United says that objection is baseless, and seven of eight federal appeals courts have agreed and rejected such claims.

“The employers in these cases are giving the noble concept of religious freedom a bad name,” Lynn added. “They want to use the Religious Freedom Restoration Act to gain tremendous power for themselves at the expense of untold numbers of women. That is not how it should work in this country and I sincerely hope the Supreme Court agrees.”

Although the cases before the Supreme Court involve non-profit organizations, the challenged accommodation was also made available to for-profit corporations following the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores. If the non-profit employers in these cases win, for-profit corporations such as Hobby Lobby will almost certainly challenge the accommodation too, and their tens of thousands of employees would be left in the lurch as well.

Americans United is heavily involved with this issue, and is the only organization representing an affected woman as an intervenor opposing these dubious religious exercise claims. Americans United has successfully represented women at the University of Notre Dame who sought access to birth control over the university’s claim that it has a “religious freedom” right to deny employees and students access to vital medications; the outcome of these Supreme Court cases could also affect the disposition of the Notre Dame case.

A decision in the case is expected by next June.

Kim Davis Should Go Back To Jail If She Interferes With Deputy Clerks’ Ability To Issue Marriage Licenses, Says Americans United

Church-State Watchdog Group Says Recalcitrant Clerk
Must Be Closely Monitored

Controversial Rowan County, Ky., clerk Kim Davis should be sent back to jail if she interferes with her office’s ability to issue marriage licenses to same-sex couples, says Americans United for Separation of Church and State.

“Reports have surfaced that Kim Davis intends to violate the court order by again denying marriage licenses to same-sex couples,” said Barry W. Lynn, executive director of Americans United. “If Davis does that, she deserves to go back behind bars.”

U.S. District Judge David L. Bunning ordered Davis released today under the condition that she not interfere with the ability of her deputy clerks to issue licenses to all couples who are legally permitted to obtain them. Several media outlets, however, have reported that Davis doesn’t intend to abide by that condition.

Davis has refused to issue marriage licenses to any couples in Rowan County because she opposes same-sex marriage. Her staff was willing to issue the licenses, but she ordered them not to.

Lynn expressed dismay over the Davis saga and said efforts by Religious Right groups to portray her as a hero are offensive.

“Kim Davis’ supporters who believe she is akin to Martin Luther King are delusional,” Lynn said. “The woman is much more like George Wallace. Davis is abusing the authority of her office to restrict rights, not expand them. That makes all the difference.”

Added Lynn, “Davis believes her religious beliefs give her the right to tell others what to do. Her efforts to pose as a ‘religious freedom’ martyr are laughable. If she really believes she can’t do her job, she ought to do the honorable thing and resign.” 

Federal Appeals Court Correct To Reject Bogus ‘Religious Freedom’ Claims In Washington Birth Control Case, Says Americans United

Pharmacies Should Fill Prescriptions Regardless Of Owners’ Religious Views, Church-State Watchdog Asserts

The 9th U.S. Circuit Court of Appeals acted correctly today by upholding Washington state regulations that require pharmacies to fill prescriptions that their owners may find objectionable, Americans United for Separation of Church and State says.

Americans United filed a friend-of-the-court brief in the most recent version of the case, arguing that the regulations do not violate the religious freedom rights of pharmacy owners.

“The state of Washington has a clear interest in making sure women can get emergency contraception in a timely and safe manner,” said Alex J. Luchenitser, Americans United’s associate legal director. “A pharmacy owner’s personal religious beliefs shouldn’t be permitted to undermine that access.”

Washington pharmacy commissioners passed regulations in 2007 as a response to a spate of incidents involving pharmacists who refused to dispense birth control, emergency contraception and other medications. The same rules permit individual pharmacists to refuse to fill a prescription as long as a colleague will do so instead.

Pharmacies, however, may not refuse to dispense the drugs entirely. The Stormans family, who owns Ralph’s Thriftway pharmacy in Olympia, claimed that provision violated its religious freedom rights and filed suit the same year. The family prevailed before a federal trial court in 2012, but the state appealed, arguing that it had a rational basis for requiring pharmacies to stock emergency contraception and other birth control pills.

The appeals court held that the regulations are neutral and don’t single out religion. The court also said the rules have a secular rationale of ensuring that state residents are able to get the medication they need.

 “[T]he rules were rationally related to Washington’s legitimate interest in ensuring that its citizens have safe and timely access to their lawful and lawfully prescribed medications,” explained the court.

 The case is Stormans, Inc. v. Wiesman. The Stormans family is being represented by the Becket Fund and the Alliance Defending Freedom, two Religious Right legal groups.

 Americans United’s brief was prepared by Luchenitser and former AU attorney fellow Ben Hazelwood.  

New Birth Control Regulations Won’t Stem Religious Right Groups’ Attacks On Reproductive Health Care, Says Americans United

Far-Right Groups Are Determined To Curtail Access To Contraceptives, Church-State Watchdog Says

The Obama Administration today issued the latest in a series of regulations designed to ensure that Americans have access to affordable birth control, but the move isn’t likely to end litigation over the matter, says Americans United for Separation of Church and State.

The new regulations accommodate religious objections advanced by certain closely held for-profit corporations; they also finalize previous accommodations made available to religious non-profit entities, such as religiously affiliated colleges and universities. The new rules go beyond what is required by court decisions, but that’s unlikely to placate bosses who are determined to curtail women’s access to birth control.

“I blame this mess on the Supreme Court,” said the Rev. Barry W. Lynn, executive director of Americans United. “Although these accommodations preserve women’s access to contraception, the definition of religious freedom adopted by the high court in the Hobby Lobby case has spawned new legal challenges that put American women at risk.”

The Hobby Lobby ruling, issued in 2014, permits certain for-profit businesses to refuse to include contraceptives in employee health-care plans if employers disagree with it on religious grounds. The case concerned a chain of craft stores whose fundamentalist owners insist, incorrectly, that certain types of birth control cause abortion.

“The administration had to respond to this ruling, and today’s regulations are a good-faith effort to protect women,” Lynn said. “Although I hope I’m proven wrong, I fear that the Religious Right and its allies, the Catholic bishops, won’t stop until they have denied access to safe and affordable birth control to as many women as possible.”

Lynn pointed out that the Supreme Court’s decision in Hobby Lobby was based on a faulty interpretation of a 1993 federal law called the Religious Freedom Restoration Act (RFRA). In light of the manner in which the high court misconstrued that law, Lynn said it may be time to fix it and make clear that RFRA was never intended to allow harms to third parties.

“An employee’s decision to obtain and use birth control is a purely private matter,” Lynn said. “It in no way diminishes or even affects the religious freedom of her boss.”