Presidential Candidate Ted Cruz Praises Indiana RFRA, Says SCOTUS Ruling Upholding Marriage Equality Would Be Illegitimate

Sen. Ted Cruz, the only formally announced candidate so far for the 2016 Presidential race, spoke at Morningside College in Sioux City, Iowa yesterday, focusing on religious liberty and same-sex marriage. According to the Dallas Morning News, Cruz told his audience: "Religious liberty is not some fringe view. It is the basis of this country,"  He praised the recent action of the Indiana legislature in enacting its controversial Religious Freedom Restoration Act, saying:

We’re seeing in the news right now a lot of noise because the state of Indiana bravely stood up and passed a law defending religious liberty.

Criticizing Democrats and gay-rights activists, he added:

Because of their partisan desire to mandate gay marriage everywhere in this country, they also want to persecute anyone who has a good faith religious belief that marriage is a holy sacrament, the union of one man and one woman and ordained as a covenant by God.

Expressing concern over what the Supreme Court might rule this June in the same-sex marriage cases before it, he told his audience:

The first thing and I think the most important thing every one of us can do, is pray. Lift up in prayer.

Cruz said that if the Court legalizes same-sex marriage, he will urge Congress to pass legislation stripping courts of jurisdiction over the issue. He said that a ruling by the Court legalizing same-sex marriage would be "fundamentally illegitimate."  Cruz favors a Constitutional amendment that would leave the issue to the states.

Injunction, Civil Penalty Imposed On Florist That Refused To Sell For Same-Sex Wedding

As previously reported, last month a Washington state trial court held that a florist shop and its owner violated the Washington Law Against Discrimination and the state's Consumer Protection Act when the shop's owner advised a customer that for religious reasons she could not provide flower arrangements for his same-sex wedding ceremony. Now in State of Washington v. Arlene's Flowers Inc., (WA Super. Ct., March 27, 2015), the trial court entered an injunction against defendants prohibiting them from discriminating against anyone on the basis of sexual orientation in the furnishing of goods, merchandise and services.  In addition, the court imposed a civil penalty of $1000 and a nominal $1 for costs and attorneys' fees. Washington's Attorney General issued a press release announcing the decision. [Thanks to Tom Rutledge for the lead.]

Preliminary Injunction Bars Extension of FMLA To Same-Sex Couples

In State of Texas v. United States, (ND TX, March 26, 2015), a Texas federal district court granted a preliminary injunction ordering the Department of Labor to stay application of a rule amendment that extends the Family and Medical Leave Act to same-sex married couples even in states that do not recognize sane-sex marriage. The court asserted that Congress does not have unlimited power to impose its definition of marriage on the states and that Congress did not authorize the Department of Labor to regulate spousal benefits to do so. Houston Chronicle reports on the decision.

Puerto Rico Concedes On Same-Sex Marriage Laws

Last October, a Puerto Rico federal district court gave a rare victory to opponents of same-sex marriage. (See prior posting.)  Plaintiffs appealed the decision to the U.S. 1st Circuit Court of Appeals.  Last week, Puerto Rican officials filed a brief with the 1st Circuit (full text) stating that Puerto Rico would no longer defend the constitutionality of its marriage laws.  Appellanats' brief states in part:

To the extent that Commonwealth law does not afford homosexual couples the same rights and entitlements that heterosexual couples enjoy, the Commonwealth recognizes that equal protection and substantive due process guarantees mandate application of heightened scrutiny in this case. Under said heightened standard, the Commonwealth cannot responsibly advance before this Court any interest sufficiently important or compelling to justify the differentiated treatment afforded so far to Plaintiffs.

Freedom to Marry website has more on the decision.

New Resource On Legality of Same-Sex Unions Around The World

American Lawyer reported this week the the Jones Day law firm has launched a new website that provides information on the legal treatment of same-sex relationships in some 300 jurisdictions around the world. The website describes its coverage:

This guide is intended to provide a resource to help answer questions regarding whether particular jurisdictions throughout the world afford legal recognition to same-sex couples. For all U.N. recognized countries, including their constituent parts such as each U.S. State, and Taiwan, the guide answers whether legal recognition of same-sex couples is granted and, if so, provides answers to various follow-up questions, such as whether marriage or some other status is afforded same-sex couples, whether foreign same-sex marriages are recognized in the jurisdiction, and the manner in which same-sex couples may dissolve their relationships.

The website is also now listed under "Resources" in the Religion Clause sidebar.

In Latest Installment, Alabama Federal District Court Refuses To Stay Same-Sex Marriage Order

In the latest episode of dueling orders, the Alabama federal district court in Strawser v. Strange. (SD AL, March 16, 2015), has denied a motion by Probate Judge Don Davis to stay its preliminary injunction finding Alabama's laws banning same-sex marriage unconstitutional. Davis argued that he has been placed in a potential conflict between the district court's injunction and orders of the Alabama Supreme Court. (See prior posting.) The district court said:

Judge Davis states that he complied with this court’s preliminary injunction order and that all of the current plaintiffs in this case have received marriage licenses. Judge Davis points to rulings by the Alabama Supreme Court ordering Alabama Probate Judges not to issue marriage licenses to same-sex couples. However, Davis has not shown how this court’s preliminary injunction results in irreparable harm to him.

Reuters reports on the decision.

Arizona Says Judges Cannot Refuse To Perform Same-Sex Marriages If They Perform Others

The Arizona Supreme Court Judicial Ethics Advisory Committee has issued Revised Advisory Opinion 15-01 (March 9, 2015), Judicial Obligation To Perform Same-Sex Marriages. It provides in part that:

a judge who chooses to perform marriages may not discriminate between marriages based on the judge’s opposition to the concept of same-sex marriage.

Rule 2.3(B) of the Arizona Code of Judicial Conduct provides that a judge shall not, "in the performance of judicial duties," manifest bias or prejudice based upon sexual orientation....

Refusing to perform same-sex marriages, while agreeing to perform opposite sex marriages, also violates Rule 2.2 of the Code which provides that "[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially."

...  The JEAC concludes that a judge may choose for various reasons not to conduct any marriages at all because performing marriages is a discretionary, not mandatory, function. A judge may also choose to conduct marriages only for friends and relatives to the exclusion of all others. Such a choice would not run afoul of Rule 2.3(B) because it is not based on sexual orientation. Of course, a judge who performs marriages only for friends and relatives would violate Rule 2.3(B) if the judge refuses to perform marriages for same sex friends and relatives.

AP reports on reactions to the ruling.

Amicus Brief Targets Scalia and Thomas In Linking Same-Sex Marriage and Campaign Finance Equality

Dozens of amicus briefs have been filed in Obergefell v. Hodges and its companion cases-- the same-sex marriage cases that are set for oral argument before the U.S. Supreme Court on April 28. (Links to all briefs from SCOTUS blog). One of the most interesting (full text) is the brief of the Liberty Education Forum (a non-profit organization with ties to the Log Cabin Republicans), filed March 6, which focuses on the special treatment that contributions by married couples receive under state campaign finance laws. For example, each spouse can make campaign contributions up to the individual limit, even though only one of them brings income into the household.  The brief argues:

Respondents’ same-sex marriage prohibitions, when viewed together with their campaign finance laws, result in similarly situated couples having unequal rights to engage in the political process through political contributions. A state’s differential treatment with regard to core First Amendment rights violates the Fourteenth Amendment.

In a press release, Liberty Education Forum says that the brief is

targeted specifically at Justices Antonin Scalia and Clarence Thomas.... No two Justices on the Supreme Court have been more vocal about their opposition to curtailments of the First Amendment that exist because of restrictions on campaign contributions than Justices Scalia and Thomas.

BNA Daily Report for Executives (subscription required) reports on the brief.

Alabama Supreme Court Subjects Remaining Probate Judge To Its Order Banning Issuance of Same-Sex Marriage Licenses

On Tuesday the Alabama Supreme Court followed up its March 3 decision that ordered all Probate Court judges around the state to discontinue the issuance of marriage licenses to same-sex couples. (See prior posting.)  In that earlier decision, Mobile County Probate Judge Don Davis asked to be excluded as a respondent on the ground that he was subject to a conflicting federal court order in Strawser v. Strange. (See prior posting.)  In Ex parte State of Alabama ex. rel. Alabama Policy Institute, (AL Sup. Ct., March 10, 2015), in a 6-1 decision, the Alabama Supreme Court concluded that Davis is not subject to a conflicting order because the federal court had only granted injunctive relief requiring him to issue marriage licenses to the four couples who were plaintiffs in the Strawser case. Those license have now already been issued. The Supreme Court thus added Davis as a respondent who is bound by its March 3 order. AL.com reports on the decision.

District Court Invalidates Nebraska Bans on Same-Sex Marriages

In Waters v. Ricketts, (D NE, March 2, 2015), a Nebraska federal district court issued a preliminary injunction, effective March 9, prohibiting enforcement of the state's laws that bar same-sex marriage and recognition of same-sex marriages performed elsewhere, saying:

Under existing precedent, Nebraska's same-sex marriage ban is at least deserving of heightened scrutiny because the challenged amendment proceeds "along suspect lines," as either gender-based or gender-stereotype-based discrimination.

The court's order implementing its decision requires state officials:

to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.

ACLU issued a statement announcing the decision.  According to AP, Nebraska Attorney General Doug Peterson plans to ask the 8th Circuit Court of Appeals for an order barring county officials from issuing same-sex marriage licences while the district court opinion is appealed. 

Alabama Supreme Court Orders Probate Judges To Stop Issuing Same-Sex Marriage Licenses

Yesterday, in a 134-page per curiam opinion, the Alabama Supreme Court by a 7-1 vote issued a writ of mandamus ordering Probate Court judges around the state to discontinue the issuance of marriage licenses to same-sex couples. In Ex parte State of Alabama ex rel. Alabama Policy Institute, (AL Sup. Ct., March 3, 2015), those probate judges not specifically named as relators in the mandamus action were joined as defendants and given 5 days to show why they should not be bound by the order. In the meantime they were temporarily enjoined from issuing marriage licences to same-sex couples. The court dealt at length with procedural issues and went on to reject in a lengthy argument the rationale in federal district court cases that have held Alabama's ban on same-sex marriages unconstitutional. Justice Main filed a brief concurring opinion. Justice Shaw dissented.  Chief Justice Roy Moore did not participate in the decision.  Liberty Counsel issued a press release announcing the decision. New York Times  and Reuters report on the court's action.

Supreme Court Denies California Prop 8 Backers Review of Contribution Disclosure Law

The U.S. Supreme Court today denied certiorari in ProtectMarriage.com v. Padilla, (Docket No. 14-434, cert. denied 3/2/2015) (Order List).  In the case, the 9th Circuit in a 2-1 decision (full text) rejected a challenge by backers of California's Proposition 8 to the state's campaign contribution disclosure requirements. Challengers had argued that contributors to the campaign against same-sex marriage had been harassed.

3 Senior Faculty Attack Notre Dame's Granting of Benefits To Same-Sex Couples

Three senior faculty members at the University of Notre Dame earlier this week published an interesting attack on the decision by Notre Dame University and some other Catholic institutions to grant same-sex couples who are legally married the same employee benefits available to married heterosexual couples.  The statement (full text) by law professors Gerard V. Bradley and John Finnis and political science professor Daniel Philpott, published on the blog site Public Discourse, says in part:

[W]hen a university’s administration, knowing that “same-sex marriages” are in a Catholic understanding not truly marriages at all, nonetheless gives without legal coercion many signs and solid tokens of approving such commitments to non-marital sex acts, everyone can readily infer that the university actually does not regard any kind of sex acts between adults as grave matter, provided that these acts are consensual and, perhaps, linked to some notion of commitment. This inference and its logic apply to the vast majority of its students whose inclinations are heterosexual, and whose temptations—enhanced by the perceived indifference of the university—are rather to fornication (and pornography and self-abuse) than to sodomy....

The baneful effects of this structure of sin will be difficult to contain. It will be reinforced, for instance, if and when such a university accepts that an open commitment to an unchristian kind of sexual relationship is little or no impediment to being appointed to holding high office and high academic posts in it....

[B]y extending marriage benefits to same-sex couples, a university would directly cooperate in, encourage, and promote the grave injustices committed by those of its employees who, deeming themselves (and being legally deemed) married, will—usually in circumstances utterly remote from emergency rescue of orphans—adopt children. Even worse, some couples may use third-party reproduction to create children with the intent to bring them up motherless (if the couple is male) or fatherless (if the couple is female) and in a domestic educational context of active approval of intrinsically immoral sex. No Christian institution should ever cooperate with such gratuitous wronging of children....

Finally, institutions that assimilate civil same-sex “marriage” into the category of true marriage will lose their credibility in the fight to defend religious freedom against the federal judiciary, powerful currents of influence, and coercive laws.

[Thanks to Mirror of Justice for the lead.]

Will A Supreme Court Decision Legalizing Same-Sex Marriage Apply To Tribal Governments?

Today's New York Times carries an article titled Among the Navajos, a Renewed Debate About Gay Marriage.  The two largest Indian tribes-- the Navajo Nation and the Cherokee Nation-- ban same sex marriage, though at least ten smaller tribes have legalized same-sex unions.  The national debate on the issue is causing some Navajos to consider repealing a 2005 tribal law--  the Dine Marriage Act-- which prohibits same-sex unions on the Navajo reservation. The Times article quotes an expert as saying that even if the Supreme Court decides that bans on same-sex marriage are unconstitutional, this will not affect tribal bans. That conclusion is based on the principle that tribes were not signatories to the Constitution and are not bound by it. The Times article, however, fails to mention the Indian Civil Rights Act which does bind tribal governments.  25 USC Sec. 1302 provides in part:

No Indian tribe in exercising powers of self-government shall... deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law....

Thus the invalidation of same-sex marriage bans on either 14th Amendment equal protection of due process grounds would appear to demand a similar result under Section 1302.

Texas Probate Court Holds Same-Sex Marriage Ban Unconstitutional

While the U.S. 5th Circuit Court of Appeals considers whether to hold Texas' same-sex marriage bans unconstitutional (see prior posting), Jurist reports that a Travis County, Texas Probate Court judge in Estate of Powell, (Travis Co. Prob. Ct., Feb. 17, 2015), rather summarily held that Texas Family Code Sec. 2.401 limiting common law marriages to  heterosexual couples is unconstitutional, as are Sec. 6.204(b) and Texas Constitution Art. I, Sec. 32 that invalidate same-sex marriages.  The decision dismissed challenges by other relatives of the deceased, Stella Marie Powell, to a claim by her same-sex partner that she is entitled to Powell's estate.

Court Says Florist Violated Washington Public Accommodation Law In Refusing Flowers For Same-Sex Wedding

In State of Washington v. Arlene's Flowers, Inc., (WA Super. Ct., Feb. 18, 2015), a Washington state trial court held that a florist shop violated the Washington Law Against Discrimination and the state's Consumer Protection Act when the shop's owner advised a customer that for religious reasons she could not provide flower arrangements for his same-sex wedding ceremony. (See prior related posting.) The court rejected defendants' argument that application of the law to require the shop to provide flower arrangements for a same-sex wedding violates their free expression and free exercise rights.  Addressing the 1st Amendment speech claim, the court said:

Defendants offer no persuasive authority in support of a free speech exception (be it creative, artistic, or otherwise) to anti-discrimination laws applied to public accommodations.

Defendants' strongest constitutional argument turned on the Washington state constitution's free exercise clause, which gives greater protection than the 1st Amendment.  However the court rejected defendants' claims, concluding that even if the laws impose a substantial burden on defendants' religious exercise, the state has a compelling interest in combating discrimination in public accommodations. The court went on to reject defendants' argument that a more narrowly tailored approach would allow defendants to deny goods and services on the basis of sexual orientation and merely refer the customer to a non-discriminating business.  The court said: "This rule would, of course, defeat the purpose of combatting discrimination...."

Washington state Attorney General Bob Ferguson welcomed the decision, saying: "The law is clear: If you choose to provide a service to couples of the opposite sex, you must provide the same service to same-sex couples."

Groups Seek Alabama Supreme Court Mandaumus To Stop Same-Sex Marriage Licenses

While Probate Judges in 50 of Alabama's 67 counties have begun to issue marriage licenses to same-sex couples, opposition to a federal district court's invalidation of the state's same-sex marriage ban has not ended.  The Alabama Policy Institute and the Alabama Citizens Action Program filed a petition (full text) with the Alabama Supreme Court on Wednesday seeking a writ of mandamus ordering county probate judges not to issue marriage licenses to same-sex couples or recognize licenses issued to them. The petition argues that fededral court injunctions aimed at the state's attorney general do not bind probate judges. The Supreme Court yesterday issued an order, with two justices filing dissenting opinions, (full text) ordering respondents to file answers by Feb. 18.  Justice Shaw dissenting said: "I would urge restraint and would urge this Court not to interject more confusion into what is already a very confusing situation."  Also yesterday Equality Alabama filed and amicus brief (full text) urging dismissal of the petition. Meanwhile, a Mississippi Ku Klux Klan faction called for support of efforts to defy federal court same-sex marriage rulings.

Federal District Court Orders Alabama County To Resume Issuing Marriage Licenses

In Alabama, marriage equality litigants have finally found the procedural key to obtaining an injunction to require Mobile County Probate Judge Don Davis to open the marriage license division and issue marriage licenses to same-sex couples.  On Feb. 10, plaintiffs amended their complaint in their case challenging Alabama's same-sex marriage laws to name Judge Davis as a defendant. Two days later in Strawser v. Strange, (SD AL, Feb. 12, 2015)-- the case that had already led to an injunction against the attorney general-- the court issued a preliminary injunction barring Judge Davis, and "all his officers, agents, servants and employees, and others in active concert or participation with any of them" from refusing to issue marriage licenses to same-sex couples.

Meanwhile yesterday morning (before the district court issued its injunction against Judge Davis), Alabama Supreme Court Chief Justice Roy Moore gave a lengthy interview (full transcript) to CNN anchor Chris Cuomo, reiterating his view that Alabama courts are not bound by the district court decisions recognizing same-sex marriage.

Interposition Ordered By Alabama Chief Justice On Same-Sex Marriage

Interposition-- a doctrine rarely seen since the early days of the civil rights movement-- seems to be close to reappearing in Alabama's response to federal court same-sex marriage decisions.  As previously reported, on Jan. 27 Alabama Supreme Court Chief Justice Roy Moore sent a letter to Alabama Governor Robert Bentley urging defiance at least of lower federal court decisions validating same-sex marriage in the state.  With the U.S. Supreme Court's order earlier today refusing to stay a federal district court order in Strange v. Searcy invalidating the state's same-sex marriage ban, same-sex marriages began in some Alabama counties.  But as reported by the New York Times, at least 50 of Alabama's 67 county probate courts were not issuing licenses to same-sex couples.

The confusion stems in part from an Administrative Order issued yesterday by Alabama Chief Justice Moore providing in part:

To ensure the orderly administration of justice within the State of Alabama, to alleviate a situation adversely affecting the administration of justice within the State, and to harmonize the administration of justice between the Alabama judicial branch and the federal courts in Alabama:

Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.

Should any Probate Judge of this state fail to follow the Constitution and statutes of Alabama as stated, it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley....

However, in response Gov. Bentley issued a statement saying in part:

This issue has created confusion with conflicting direction for Probate Judges in Alabama. Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue.

 Earlier today, plaintiffs in the Searcy case filed a motion with an Alabama federal district court asking it to hold in contempt the Probate Court judge in Mobile County who, without explanation, has not opened the court's marriage license division today. [Thanks to Tom Rutledge for the lead on part of this post.]

UPDATE: In a Feb. 9 opinion (full text), the district court refused to hold the Probate Judge in contempt since the injunction did not directly order him to do anything.

Supreme Court Denies Stay Of Alabama Same-Sex Marriage Decision

The U.S. Supreme Court today in Strange v. Searcy refused to grant a stay of an Alabama federal district court order invalidating Alabama's ban on same-sex marriage, allowing same-sex marriages to begin in the state today. (See prior related posting.) Justice Thomas, joined by Justice Scalia, dissented from the denial of a stay, saying in part:

Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds.... It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.

Reuters reports on the Court's action.