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December 30, 2008

News in two con law cases, still in early stages

The New Jersey Civil Rights Division has issued a Final Report finding that the Ocean Grove Camp Meeting Association discriminated against Harriet Bernstein and Luisa Paster by refusing to rent them a boardwalk pavilion for a civil union ceremony. OGCMA describes itself as "a ministry organization, rooted in Methodist heritage." It argued that being forced to rent the pavilion for a civil union would violate its religious liberty and expressive association rights.

The agency found that the church was operating the pavilion as a public accommodation, not as a religious facility, evidenced by the fact that it rented it to any and all couples who wanted it for a wedding, regardless of religious affiliation, and had represented to the state that the pavilion was "open to the public" in order to obtain an exemption from property tax. (The group has now stopped renting the pavilion.) I am calling this an early stage in the case, despite the fact that it is the final agency action, because the defendant's lawyer, the Alliance Defense Fund, is announcing that it will seek reversal of the decision in court. An ACLU cooperating attorney is representing Bernstein and Paster.

Meanwhile, the ACLU LGBT Rights Project has filed a challenge to the statute adopted by Arkansas voters on election day that bars adoption and foster care placement with any unmarried couples.  The complaint alleges equal protection and due process violations on both federal and state constitutional grounds; the case was filed in state court. The law is scheduled to take effect January 1; no motion for a preliminary injunction has been filed.

Doubtless there will be more to come on both these cases in future months.

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