Nigeria and Uganda Parliaments Pass Harsh Anti-Gay Laws; Final Approval By President/ Prime Minister Uncertain

Daily Trust reports that last week Nigeria's National Assembly gave final approval to the conference committee's version of the Same-Sex Marriage Prohibition Bill 2011.  It imposes a 14-year prison sentence on same-sex couples who enter a marriage or civil union.  Ten year prison sentences are prescribed for anyone who witnesses or aids or abets a same-sex union.  Section 2 of the bill provides:

Any person, who registers, operates or participates in gay clubs, societies and organisations or directly or indirectly make public show of same sex amorous relationship in Nigeria commits an offence and shall each be liable on conviction to a term of 10 years in prison.

The bill still needs the signature of President Goodluck Jonathan to become law.  Amnesty International on Friday called on the President to reject the bill. (AFP).

Meanwhile, on Friday, Uganda's Parliament passed an anti-homosexuality law described as draconian.  The Guardian reports on some of its provisions:

British campaigner Peter Tatchell noted that the bill extends the existing penalty of life imprisonment for same-sex intercourse to all other same-sex behaviour, including the mere touching of another person with the intent to have homosexual relations.

Promoting homosexuality and aiding and abetting others to commit homosexual acts will be punishable by five to seven years jail.... "These new crimes are likely to include membership and funding of LGBT organisations, advocacy of LGBT human rights, supportive counselling of LGBT persons and the provision of condoms or safer sex advice to LGBT people.

"A person in authority – gay or heterosexual – who fails to report violators to the police within 24 hours will be sentenced to three years behind bars."

He added: "Astonishingly, the new legislation has an extra-territorial jurisdiction. It will also apply to Ugandan citizens or foreign residents of Uganda who commit these 'crimes' while abroad, in countries where such behaviour is not a criminal offence. Violators overseas will be subjected to extradition, trial and punishment in Uganda.

The Guardian adds:

[The bill] was opposed by Ugandan prime minister Amama Mbabazi, who argued that not enough MPs were present for a quorum, a challenge that might yet discourage Museveni from signing the bill into law. The threat of a withdrawal of western aid could also play into his decision.

Federal Court Strikes Down Utah's Ban On Same-Sex Marriage

Yesterday, a Utah federal district court declared Utah's state constitutional and statutory bans on same-sex marriage invalid under the due process and equal protection clauses of the federal constitution and enjoined the state from enforcing provisions of Utah law that prevent a person from marrying another person of the same sex. In Kitchen v. Herbert, (D UT, Dec. 20, 2013), the court said in part:

If, as is clear from the Supreme Court cases discussing the right to marry, a heterosexual person’s choices about intimate association and family life are protected from unreasonable government interference in the marital context, then a gay or lesbian person also enjoys these same protections. ... The Supreme Court’s decision in Lawrence removed the only ground—moral disapproval—on which the State could have at one time relied to distinguish the rights of gay and lesbian individuals from the rights of heterosexual individuals.

Moving to plaintiffs' equal protection challenge, the court held that none of the reasons put forward to justify the ban-- responsible procreation, optimal child rearing, proceeding with caution, preserving the traditional definition of marriage-- survive even "rational basis" review.

Utah's Attorney General quickly moved to stay the court's order, filing a motion (full text) in district court as well as a motion (full text) in the 10th Circuit.  The court's decision and plans for appeal are discussed at Scotus Blog, Christian Science Monitor, and the Salt Lake Tribune. An op-ed in the St. George (UT) News contrasts the quick appeal of the ruling with the still-uncertain reaction of state officials to a federal court decision last week invalidating a large part of Utah's law banning polygamy.

In Ogden, Weber County officials had originally announced the the county Clerk's office would be open for one hour today to process marriage license applications, but reversed that decision, turning away over 200 people in line.  According to the Salt Lake Tribune, county Clerk Ricky Hatch apologized to those waiting, and later explained that the decision not to open was made in part because there was no security in place for the building and in part because he was "advised that opening the office for 'special circumstances' may violate equal-protection laws, as the county had never before opened on a Saturday to accommodate a particular group or event."

New Mexico Supreme Court Validates Same-Sex Marriages

In Griego v. Oliver, (NM Sup. Ct., Dec. 19, 2013), the New Mexico Supreme Court, in a unanimous opinion, held that the state must allow same-sex couples to marry.  New Mexico is the only state whose laws do not explicitly either permit or prohibit same-sex marriage. (See prior related posting.)  However in its decision, the Supreme Court concluded that "the statutory scheme reflects a legislative intent to prohibit same-gender marriages."  It went on to hold that this prohibition is unconstitutional:

We conclude that the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property. Prohibiting same-gender marriages is not substantially related to the governmental interests advanced by the parties opposing same-gender marriage or to the purposes we have identified. Therefore, barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.

In reaching its decision, the court added:

Although this question arouses sincerely-felt religious beliefs both in favor of and against same-gender marriages, our analysis does not and cannot depend on religious doctrine without violating the Constitution.... Our holding will not interfere with the religious freedom of religious organizations or clergy because (1) no religious organization will have to change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in contravention of his or her religious beliefs.

Bloomberg News reports on the decision which makes New Mexico the 17th state to recognize same-sex marriage. [Thanks to Tom Rutledge for the lead.]

Two Decisions Follow On Illinois Legalization Of Same-Sex Marriage

As previously reported, last month Illinois Governor Pat Quinn signed legislation legalizing same-sex marriage in the state, effective June 1, 2014. There have now been two follow-up judicial developments. As reported by Illinois Review, yesterday, with the backing of all parties, an Illinois state trial court judge dismissed as moot the complaint in Darby v. Orr, a suit filed last year by the ACLU and Lambda Legal challenging the constitutionality of Illinois' previous prohibition of same-sex marriage.

Meanwhile, in Lee v. Orr, (ND IL, Dec. 10, 2013), an Illinois federal district court issued an opinion in a class action lawsuit granting a temporary injunction allowing  individuals in same-sex relationships who need to marry before to June 1, 2014 due to a life-threatening illness of one or both parties the right to do so. The court said:

The putative subclass of medically critical plaintiffs here are likely to succeed on the merits of their claim that the provisions of the current Illinois law that deny them the right to marry based solely on their sexual orientation, as applied, violates their constitutional right to equal protection.

The court's decision was contingent on the parties agreeing on a satisfactory implementation method.  They have done so.  As announced by the ACLU,  the court finalized its order yesterday adopting a procedure that allows same-sex couples to marry before June 1 if they provide a doctor’s certification stating that one of them has a life-threatening illness. Still pending in the case is the broader attempt by plaintiffs to speed up the same-sex marriage implementation date for everyone.

North Dakota AG Says Non-Recognition of Same-Sex Marriage Allows Issuance of License For Heterosexual Marriage To Same-Sex Spouse

In Letter Opinion 2013-L-06, (ND AG, Dec. 12, 2013), North Dakota Attorney General Wayne Stenehjem concluded that since the state does not recognize same-sex marriages, a county recorder in North Dakota may issue a marriage license for a heterosexual marriage to an individual who previously entered a valid same-sex marriage in another state, even when the same-sex marriage has not been legally dissolved.  Consistent with this, the Attorney General also ruled that an individual who previously entered a same-sex marriage elsewhere would not be committing a criminal violation in North Dakota by checking the box on the marriage license application indicating that he or she is "Single/Never Married." The Attorney General concluded by stating that it would be inappropriate for him to give a legal opinion on whether the person married in these circumstances would be in violation of another state's bigamy statute if he returns to a state that recognizes both marriages. Forum News Service reports on the AG's opinion letter. [Thanks to Alliance Alert for the lead.]

Federal Financial Aid Forms Will Now Recognize Same-Sex Marriages

The U.S. Department of Education announced on Friday that, in light of the Supreme Court's Windsor decision, it will recognize same-sex marriages for purposes of eligibility for Federal Financial Aid. It said in part:

[T]he Department will recognize a student or a parent as legally married if the couple was legally married in any jurisdiction that recognizes the marriage, regardless of whether the marriage is between a couple of the same sex or opposite sex, and regardless of where the student or couple lives or the student is attending school.

It also posted on its website a "Dear Colleague" letter (full text) detailing how its new policy should be applied by those completing FAFSA financial aid forms and calculating the student's Expected Family Contribution. The new policy does not apply to civil unions, domestic partnerships and other arrangements short of marriage. However, as announced earlier this year, beginning with the 2014-2015 FAFSA, dependent students will be required to include on the FAFSA income and other information regarding their legal parents (biological or adoptive) regardless of marital status or gender, if those parents live together. FAFSA will include a new category: "unmarried and both parents living together." [Thanks to Alliance Alert for the lead.]

Australia's Highest Court Invalidates Capital Territory's Marriage Equality Law

In Commonwealth of Australia v. Australian Capital Territory, (Australia High Ct., Dec. 12, 2013), Australia's highest court invalidated the Australian Capital Territory's Marriage Equality (Same Sex) Act 2013 as inconsistent with federal law.  As summarized by the High Court's press release:

Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.

The decision comes only 5 days after the Australian Capital Territory's new law took effect. Some 27 same-sex couples got married during that period. According to CNN, those marriages will be annulled.

EU Directive Requires Companies To Give Same Benefits to Civil Partners Where Same-Sex Marriage Is Unavailable

In Hay v. Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, (Eur. Ct. Jus. 5th Chamber, Dec. 12, 2013), the 5th Chamber of the European Court of Justice held that under Council Directive 2000/78/EC that creates a framework for equal treatment in employment, it amounts to direct discrimination for a French firm to deny a same-sex couple entering a civil partnership the same benefits given couples being married. The court concluded that:

an employee who concludes a PACS [civil solidarity pact] with a person of the same sex [must be] allowed to obtain the same benefits, such as days of special leave and a salary bonus, as those granted to employees on the occasion of their marriage, where the national rules of the Member State concerned do not allow persons of the same sex to marry, in so far as, in the light of the objective of and the conditions relating to the grant of those benefits, that employee is in a comparable situation to an employee who marries.

Art Leonard Observations has analysis of the decision. [Thanks to Alliance Alert for the lead.]

Colorado Civil Rights Commission Initial Decision Holds Bakery Violated Law In Refusing Cake For Same-Sex Wedding

In Craig v. Masterpiece Cakeshop, Inc., (CO Civ. Rts. Commn., Dec. 6, 2013), an Administrative Law Judge for the Colorado Civil Rights Commission held that a bakery and its owner illegally discriminated against a same-sex couple on the basis of sexual orientation in refusing to sell them a wedding cake. The bakery owner claimed that creating cakes for same-sex weddings violates his religious beliefs. The ALJ held that the refusal violated the public accommodation anti-discrimination ban in C.R.S. Sec. 24-34-601(2), rejecting the argument that the refusal was not "because of" the couple's sexual orientation.

The ALJ also rejected respondents' claims that requiring them to prepare the cake would violate their free speech and free exercise rights protected by the U.S. and Colorado constitutions.  The ALJ held that this would not amount to compelled speech, saying that the bakery owner "was not asked to apply any message or symbol to the cake, or construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage." Also any impact on free speech "is 'plainly incidental' to the government's right to regulate objectionable conduct."  The ALJ rejected respondents' free exercise claim, finding that the anti-discrimination law is neutral and of general applicability.

The ALJ's initial decision may be appealed to the full Civil Rights Commission (Commn. Rule 10.13), and from their to the state court of appeals (C.R.S. Sec. 24-24-307). The ACLU issued a press release announcing the decision. Fox News and AP report on the decision. [Thanks to Alliance Alert for the lead.]

Pro-Marriage Equality Protesters Fined One Cent For Trespassing

The Louisville (KY) Courier-Journal reported last week on the trial of a same-sex couple-- Dominique James and the Rev. Maurice “Bojangles” Blanchard-- for criminal trespass after they refused to leave the Jefferson County Clerk of Court's office at its closing time in protest of being denied a marriage license. The couple insisted that they were "spiritually obligated" to stay.  The jury last Tuesday convicted the defendants, but imposed a fine of only one cent. The maximum fine could have been $250. Blanchard called the verdict a vindication of their protest. The couple had rejected a plea agreement under which charges would have been dismissed in exchange for their each working 5 hours at a charity of their choice. [Thanks to Tom Rutledge for the lead.]

Croatians Approve Constitutional Amendment Barring Same-Sex Marriage

In Croatia yesterday, voters authorized a constitutional amendment to bar same-sex marriage.  AP reports that with nearly all the votes counted, the state electoral commission said that 65% of those voting answered "yes" to the question: "Do you agree that marriage is matrimony between a man and a woman?" 34% voted "no". The amendment was strongly backed by the Catholic Church in the heavily Catholic nation. Croatia became the 28th member of the European Union in July.  Croatia’s liberal president, Ivo Josipovic, said that the government, however, will propose legislation granting some rights short of marriage to gays and lesbians living together. It was a government proposal to allow same-sex couples to register as "life partners" that initially triggered a call for the referendum by the conservative group "In the Name of the Family."  Jurist has additional background on the referendum.

9th Circuit Court Employees Entitled To Health Benefits For Same-Sex Domestic Partners

In In re Fonberg,(9th Cir. Jud. Council, Nov. 25, 2013), the Executive Committee of the Ninth Circuit Judicial Council held unconstitutional the U.S.Office of Personnel Management’s denial of health benefits to the same-sex domestic partner of a law clerk formerly employed by the Oregon federal district court.  The Executive Committee held that this discrimination against domestic partners, vis-a-vis married opposite-sex and married same-sex couples, violated the equal protection and due process rights of the law clerk. The San Francisco Chronicle reports on the decision. [Thanks to How Appealing for the lead.]

Proposed Oregon Initiative Would Exempt Objecting Businesses From Involvement In Same-Sex Unions

The Oregonian reported that this week that a group known as Friends of Religious Freedom have filed a proposed initiative measure (full text) with the Oregon Secretary of State. It is designed to protect private individuals and businesses that have deeply held religious objections from being required to furnish goods, facilities or services for same-sex weddings or civil unions. Last February, the Oregon Attorney General's office opened an investigation into a baker who refused to furnish a wedding cake for a lesbian couple's marriage. (See prior posting.)  The proposed initiative responds to this and to similar applications of anti-discrimination laws elsewhere.  It provides that no individual or business entity acting in a nongovernmental capacity may be penalized by the state or a political subdivision, or subjected to a civil action:

for declining to solemnize, celebrate, participate in, facilitate, or support any same-sex marriage ceremony or its arrangements, same-sex civil union ceremony or its arrangements, or same-sex domestic partnership ceremony or its arrangements.

In a related development, last July supporters of same-sex marriage in Oregon filed with the Oregon Secretary of State a proposed Right to Marry and Religious Protection Initiative (full text). Supporters are currently seeking the 116,284 signatures necessary to get the proposed constitutional amendment on the ballot. Their website says they now have over 115,000 signatures. [Thanks to Alliance Alert for the lead.]

Illinois Governor Signs Marriage Equality Law; Catholic Bishop Responds With Exorcism Prayers

The Chicago Tribune reports that yesterday Illinois Governor Pat Quinn signed into law the Religious Freedom and Marriage Fairness Act, legalizing same-sex marriage in the state. (See prior related posting.) The law takes effect June 1, though some are pressing for additional legislation to speed up the effective date.  Meanwhile, in Springfield, Illinois, Catholic Bishop Thomas Paprocki held a a service, largely in Latin, to offer Prayers of Supplication and Exorcism in Reparation for the Sin of Same-Sex Marriage.  In his homily (full text), he said in part:

Our prayers at this time are prompted by the fact that the Governor of Illinois today is signing into Illinois law the redefinition of civil marriage, introducing not only an unprecedented novelty into our state law, but also institutionalizing an objectively sinful reality....

Our prayer service today and my words are not meant to demonize anyone, but are intended to call attention to the diabolical influences of the devil that have penetrated our culture, both in the state and in the Church....

Since the legal redefinition of marriage is contrary to God's plan, those who contract civil same-sex marriage are culpable of serious sin. Politicians responsible for enacting civil same-sex marriage legislation are morally complicit as co-operators in facilitating this grave sin.....

We must also affirm the teaching of the Catholic Church that homosexual persons "must be accepted with respect, compassion, and sensitivity....." The Church loves homosexual persons and looks upon them with compassion, offering assistance through support groups such as the Courage Apostolate to live in accord with the virtue of chastity.

Hawaii Court Upholds State's New Marriage Equality Law

In Hawaii, a trial court judge rejected a state constitutional challenge to the Hawaii's marriage equality law that was signed by the governor yesterday. According to the Honolulu Star-Advertiser, Circuit Court Judge Karl Sakamoto held yesterday that the legislature has the inherent authority to define marriage. In 1998, Hawaii voters approved an anti-gay marriage constitutional amendment.  But unlike amendments in a number of other states, Hawaii's Art. I, Sec. 23 merely permits the state legislature to reserve marriage to opposite sex couples. Plaintiffs in the case, including a state representative, a Christian pastor and the head of Hawaii's Christian Coalition argued that in the 1998 amendment, voters intended to ban same-sex marriage. The court rejected this argument.

Hawaii Legislature Passes Marriage Equality Bill

Yesterday the Hawaii legislature gave final passage to SB1, the Hawaii Marriage Equality Act which will legalize same-sex marriage as of Dec. 2. One of the 19 representatives voting against the bill in the House was Rep. Jo Jordan, the first openly gay state legislator to vote against same-sex marriage.  She told Honolulu Magazine that her objections were in part based on a concern that the religious exemptions in the bill are too narrow.  The bill protects clergy who refuse to perform same-sex marriages or civil unions, and allows any religious organization or nonprofit that is "operated, supervised, or controlled by a religious organization" to refuse to provide goods, services or facilities for civil unions or marriages that are in violation of the organization's religious beliefs. According to the Honolulu Star-Advertiser, Gov. Neil Abercrombie has said he will sign the bill.  It is expected that he will do so today, beating Illinois to become the 15th state to legalize same-sex marriage.  The Illinois legislature passed marriage equality legislation last week (see prior posting), but Gov. Pat Quinn does not plan to sign it until Nov. 20. Shortly after the bill passed in Hawaii, President Obama issued a statement congratulating the legislature on its action, and saying that this made him even prouder to have been born in Hawaii.

Supreme Court Review Sought By Photographer Who Refused Employment For Same-Sex Wedding

A petition for certiorari (full text) was filed Friday with the U.S. Supreme Court in Elane Photography, LLC v. Willock. In the case, the New Mexico Supreme Court held that the state's Human Rights Act requires a commercial photography business to serve same-sex couples on the same basis as opposite-sex couples, and that the 1st Amendment does not require an exception for creative or expressive professions. (See prior posting.) The cert. petition frames the Question Presented as:

Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.

ADF issued a press release announcing the filing of the petition.

Federal Lawsuit Challenges Idaho's Refusal To Permit or Recognize Same-Sex Marriage

A suit was filed Friday in an Idaho federal district court challenging the constitutionality of Idaho's laws that exclude same-sex couples from marrying in the state, and refuse to recognize marriages of same-sex couples entered into lawfully elsewhere.  The complaint (full text) in Latta v. Otter, (D ID, filed 11/8/2013), claims that Idaho Const. art. III, § 28 and Idaho Code §§ 32-201 and 32-209 violate the due process and equal protection clauses of the 14th Amendment. The National Center for Lesbian Rights issued a press release on the case. [Thanks to Alliance Alert for the lead.]