Supreme Court: Same-Sex Spouses Must Get Equal Treatment In Birth Certificates

In Pavan v. Smith, (Sup. Ct., June 26, 2017), the U.S. Supreme Court today granted certiorari and summarily (i.e. without further briefing or oral argument) reversed a decision of the Arkansas Supreme Court on the rights of same-sex married couples. The Supreme Court held that "Obergefell’s commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage'" means that the state must apply the same rules to same-sex and opposite-sex married couples in the issuance of birth certificates. Under Arkansas law, the male spouse of a woman who gives birth appeared on a birth certificate, but the female spouse of a woman who gives birth did not.  The Supreme Court struck this differentiation down, saying that in Arkansas birth certificates are more than just a marker of biological parentage.

Justice Gorsuch, in an opinion joined by Justices Thomas and Alito, dissented saying that this is an inappropriate case for summary reversal.

Israeli Court Rejects Reception Hall Owners' Religious Objections To Same-Sex Marriage

According to Haaretz today, the Jerusalem Magistrate's Court has for the first time under Israeli law held that owners of a reception hall may not refuse on religious grounds to host a same-sex wedding reception. The court awarded damages of 60,000 NIS ($15,196 US) and imposed 20,000 NIS in legal fees and court costs on the owners of the reception hall who are members of a sect of Messianic Jews. A lesbian couple, Tal Ya'akovovich and Yael Biran, booked the hall for a reception, but the owners canceled the reservation when they realized the reception was for a same-sex couple. The owners say that based on verses from the Old and New Testaments, they believe that homosexuality is an "abomination." The court refused to accept the owners' claim that their business has a religious character.  The court said:

Every person who opens a public business in Israel should know that they must serve the whole public equally, without discrimination, according to laws, which cover sexual orientation as well. As soon as the defendants opened their doors to all, they cannot close them for those who they believe do not meet the requirements found in the Bible or New Testament, thereby damaging their dignity and sensitivities.

The court also said:

Rejection, verbal abuse, and humiliation of another based on their sex or sexual orientation constitutes sexual harassment. Sexual harassment does not only include sexual exploitation, but also, and perhaps principally, ridiculing another person for their sex or sexual orientation… and in this case, the plaintiffs were ridiculed because of their sexual orientation

Oregon's Same-Sex Marriage Ban Is Invalidated

In Geiger v. Kitzhaber, (D OR, May 19, 2014), an Oregon federal district court held that Oregon's constitutional and statutory provisions that limit civil marriage to "one man and one woman" discriminate on the basis of sexual orientation in violation of the 14th Amendment's equal protection clause. Judge McShane concluded his opinion with these observations:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage.... Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing.... Even today I am reminded of the legacy that we have bequeathed today' s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay." 

.... It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities. 

.... With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community. 

.... I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

ACLU of Oregon issued a press release announcing the decision. According to the Los Angeles Times, marriage licenses were issued to same-sex couples in Multnomah County, home to Portland, as soon as the decision was handed down. In February, the state attorney general said she would not defend the ban in court.

4th Circuit Hears Oral Arguments on Catholic School's Firing of Teacher Who Entered Same-Sex Marriage

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral arguments (audio of full oral arguments) in Billard v. Charlotte Catholic High School.  In the case, a North Carolina federal district court held that a Catholic high school is liable under Title VII of the 1964 Civil Rights Act for firing a substitute drama teacher after he entered a same-sex marriage and stated on Facebook his disagreement with Catholic teaching on marriage. (See prior posting.) As reported by Reuters, during oral argument the judges pressed the parties on the applicability of the ministerial exception doctrine, even though the school had stipulated that it would not raise the doctrine as a defense in order to avoid protracted discovery on the teacher's job duties.

New York Trial Court Lets Open Meeting Challenge To Same-Sex Marriage Law Continue

In New Yorkers for Constitutional Freedom v. New York State Senate, (NY Sup. Ct. Livingston Co., Nov. 18, 2011), a New York trial court refused to dismiss a challenge to the procedures used by the New York legislature in enacting the Marriage Equality Act that legalizes same-sex marriage.  The court held that the complaint presents a justiciable issue as to whether the Senate violated New York's Open Meetings Law when the governor held a meeting with all the Republican members of the Senate to attempt to convince them to break their party's opposition to the bill and vote for it. The court dismissed a challenge to the governor's certification that waived the requirement that a bill be presented to legislators at least three days before a vote, even though, in the court's view the governor's statement of necessity for a more rapid vote was "logically and clearly ... disingenuous." LIberty Counsel issued a release calling the decision "a victory for the people of New York and a setback to the political arm-twisters who tried to thwart the open meetings process." (See prior related posting.)

Northern Ireland Appeals Court Upholds Anti-Gay Discrimination Finding Against Bakery

In a widely watched case, the Court of Appeal in Northern Ireland yesterday upheld the finding of a trial judge that a bakery had illegally discriminated on the basis of sexual orientation in the  provision of goods and services to the public when it refused an order for a cake for a private event marking the end of 'Northern Ireland Anti-homophobic Week' and the political momentum towards same-sex marriage legislation.  The cake was to feature a picture of 'Bert and Ernie' (the logo for QueerSpace) with the caption, "Support Gay Marriage."  In Lee v. McArthur, (NI CA, Oct. 24, 2016), the 3-judge panel rejected the religious freedom and compelled speech defenses advanced by Ashers Bakery.  The court rejected the notion that the cake forced the bakery to express approval for same-sex marriage, saying in part:

The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.

The court rejected broadly defendants' religious discrimination arguments, saying:

Anyone who applies a religious aspect or a political aspect to the provision of services may be caught by equality legislation, not because the legislation treats their religious belief or political opinion less favourably but because that person seeks to distinguish, on a basis that is prohibited, between those who will receive their service and those who will not....  In the present case the appellants might elect not to provide a service that involves any religious or political message. What they may not do is provide a service that only reflects their own political or religious belief in relation to sexual orientation.

The Guardian, reporting on the decision, says that the decision will be appealed to the UK's Supreme Court.

Washington Court Decision Allows Signature Collection In Anti-Gay Marriage Referendum

The Olympian reports that a Washington state court yesterday ruled on the language that should be used in a proposed referendum on the state's recently enacted same-sex marriage bill. (See prior posting.) The decision means that opponents of same-sex marriage can print petitions and begin to collect signatures.  They need almost 121,000 valid signatures by June 6 for the referendum to appear on this November's ballot. In its ruling, the court agreed with the ACLU's proposed language change in the ballot description of the measure.

More On Yesterday's Same-Sex Marriage Cases Cert. Grant-- Standing

In granting certiorari yesterday in two same-sex marriage cases (see prior posting), the U.S. Supreme Court (order list) instructed the parties to brief and argue specified standing issues, in addition to the questions presented in the petitions for certiorari.  In Dennis v. Perry, the California Proposition 8 case, the Court ordered the parties to brief and argue: "Whether  petitioners have standing under Article III, §2 of the Constitution in this case."  In United States v. Windsor, the Defense of Marriage Act case, the Court ordered the parties to brief and argue: "Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case."

Southern Baptist Convention Urges Prayer Sessions On Morning of Same-Sex Marriage Arguments

The U.S. Supreme Court hears oral arguments in the same-sex marriage cases on April 28.  The Ethics & Religious Liberty Commission of the Southern Baptist Convention in a web posting is urging organizations and churches to set aside time that morning "to appeal to God to preserve marriage in our land."  It sets out a sample prayer guide to use.  It adds:

The command to pray for leaders is an appeal to pray for leaders, who in Paul’s time were avowed enemies of Christ and his church. Still, despite their hostility to the burgeoning Christian movement, Paul says that government is a gift from God meant for our good, and that Christians should pray for government officials’ betterment and their wisdom; that they’d execute justice accurately and indiscriminately. So we must....

The outcome of this decision will shape the landscape of the church’s ministry in the United States for generations to come; and it will have significant consequences on the future of religious liberty.

[Thanks to Center for Inquiry for the lead.] 

Religious Leaders React To Same-Sex Marriage Decisions

Religion News Service has an extensive compilation of reactions by religious leaders to yesterday's Supreme Court decisions on same-sex marriage. They range from the U.S. Conference of Catholic Bishops statement that "Today is a tragic day for marriage and our nation", to the statement by head of The Episcopal Church's House of Deputies that: "I join with millions of Christians across the country in celebrating today’s Supreme Court rulings that extend equal protection under federal law to all marriages...."

Pennsylvania Same-Sex Marriage Ban Challenged In State Court

The Legal Intelligencer reported last week that 21 couples have filed a lawsuit in Pennsylvania's Commonwealth Court challenging the constitutionality of the state's ban on same-sex marriage.  The suit comes on the heels of  a challenge in federal court filed in July by the ACLU. (See prior posting.) Plaintiffs in the most recent case are couples who were issued marriage licences by Montgomery County clerk D. Bruce Hanes who began issuing them in July, despite the ban in state law. (See prior posting.)

DC Court Refuses To Delay Effectiveness of Same-Sex Marriage Law

In Washington, D.C. on Friday, the D.C. Superior Court tentatively rejected an attempt to prevent the city's Religious Freedom and Civil Marriage Equality Amendment Act of 2009 from going into effect on March 3. The Act authorizes same-sex marriage in D.C. Metro Weekly reports that challengers sought the delay while the court is deciding on their attempt to get a referendum on the new law. The DC Board of Elections and Ethics has rejected the referendum petition because it would undercut attempts to eradicate discrimination prohibited by the D.C. Human Rights Act. That ruling is on appeal to the Superior Court. (See prior posting.)

NY Assembly Passes Same-Sex Marriage Bill; Fate In Senate Unclear

The New York Assembly on Tuesday passed, by a vote of 89-52, A07732, a bill that would legalize same-sex marriage. The bill also provides that no member of the clergy is required to solemnize a marriage. The bill now goes to the state Senate where, according to NY1 News, it is unclear whether it will pass. Tuesday's New York Times says that conservative religious groups are mobilizing to fight against passage of the bill.

Recent Articles of Interest

From SSRN:

• Andrew Koppelman & Frederick Mark Gedicks, Is Hobby Lobby Worse for Religious Liberty than Smith?, (St. Thomas Journal of Law and Public Policy, Forthcoming).
• Annabelle Lever, Democratic Equality and Freedom of Religion: The Dilemma of Public Service Provision, (Forthcoming in Philosophy and Public Issues (July 2015)).
• James Lindgren, Measuring Diversity: Law Faculties in 1997 and 2013, (March 20, 2015).
• James E. Fleming, Introduction to the Symposium on Ronald Dworkin's Religion Without God, (94 Boston University Law Review 1201 (2014)).
• David S. Cohen & Krysten Connon, Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism, (Oxford University Press, 2015).

From SSRN (LGBT Rights and Same-Sex Marriage):

• Nan D, Hunter, Pluralism and its Perils: Navigating the Tension between Gay Rights and Religious Expression, (2015).
• Nelson Tebbe, Religion and Marriage Equality Statutes, (Harvard Law & Policy Review, Vol. 9, No. 25, 2015).
• Zachary Robert Herz, The Marrying Kind, (Tennessee Law Review, Vol. 82, 2015).
• Suja A. Thomas, Text-Bound Originalism (And Why Originalism Does Not Strictly Govern Same Sex Marriage), (March 16, 2015).

From SSRN (Non-U.S. Law and Society):

• Stephanie Farrior, Equality and Non-Discrimination under International Law, (in Equality and Non-Discrimination Under International Law, Stephanie Farrior, ed., Ashgate Publishing, 2015).
• Zulkarnain Muhamad Sori, Shamsher Mohamad & Mohamed Eskandar Shah, Shariah Governance Practices in Malaysian Islamic Financial Institutions, (March 16, 2015).
• Yinka Olomojobi, Islam: Between Peace and Violence, (March 17, 2015).
• Marc Lane Roark, Retelling English Sovereignty, (British J. Am. Legal Studies, Forthcoming).
• Manjeet Sahu, Preferential Treatment of Hindus Under Indian Tax Law: Emphasizing on Grant of Tax Benefit to Hindu Undivided Family, (April 21, 2014).

From SmartCILP:

• Martin Wishnatsky, The Disincorporation Proclamation: Emancipating the Establishment Clause from the Fourteenth Amendment, 5 Faulkner aw Review 259-307 (2014)

Maryland House Fails To Pass Same Sex Marriage Bill After Religious Opposition

Baptist Press reports that Maryland's House of Delegates yesterday voted to send the pending same-sex marriage bill back to committee after the leadership determined that they lacked the votes to pass it.  The Maryland Senate passed the bill last month (see prior posting), and it was expected that the House would also pass it.  However opposition from predominately black churches, as well as from the Maryland Catholic Conference, meant that the bill was unable to get enough Democratic support. Two members of the black caucus switched from being co-sponsors to opposing the bill. Del. Cheryl Glenn, a member of the black caucus said: "The black churches -- since I've been here -- have never asked us for anything, that I can recall. They are asking now, 'Don't use the word marriage.'" Leaders expect the House will take up the bill again next year.

Amended Gay Marriage Bill With Expanded Religious Exemptions Introduced In New York

The Wall Street Journal reports that Gov. Andrew Cuomo and lawmakers introduced an amended version of the same-sex marriage bill (full text)  into the state legislature today. The new version expands protections for religious organizations and clergy that object to same-sex marriage. Backers hope this will be enough to convince at least one more member of the state Senate to vote in favor of the bill and thereby secure its passage.  The prior version of the bill, already passed by the state Assembly, had somewhat less comprehensive exemptions in it, and Senate Republicans had been seeking this expansion. (See prior posting.)

California High Court Upholds Proposition 8, But Validates Pre-Prop 8 Marriages

The California Supreme Court today in Strauss v. Horton, (CA Sup. Ct., May 26, 2009), rejected a challenge to voters' approval of Proposition 8, thereby upholding the California constitutional amendment barring same-sex marriage. In a 6-1 decision, the court held that Proposition 8 was an "amendment" and not a "revision" of the state constitution, and therefore properly approved in an initiative process. However same-sex marriages entered into before the effective date of Proposition 8 will remain valid.

The majority opinion by Chief Justice George held that: Proposition 8 merely "carves out a narrow and limited exception" to privacy, due process and equal protection provision in the state constitution, "reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws."

Justices Kennard and Werdegar each wrote a concurring opinion. Justice Kennard also joined the majority opinion while Justice Werdegar only agreed with the result, but rejected much of the majority's analysis. Justice Moreno dissented arguing that Proposition 8 is a "revision" of the Constitution because it "strikes at the core of the promise of equality that underlies our California Constitution" by requiring discrimination on the basis of a suspect classification. The Court has also issued a press release describing the opinions. The New York Times reports on the decision.

Federal Court Rejects 1st Amendment Challenge To CA Gay Marriage Holding

In Wooten v. California, 2008 U.S. Dist. LEXIS 79078 (ED CA, Oct. 3, 2008), a California federal district court rejected claims by a pro se plaintiff that the California Supreme Court violated the federal Constitution's Free Exercise and Establishment clauses when it legalized same-sex marriage in the state. (See prior posting.) The court concluded that the state court’s ruling did not interfere with plaintiff's right to preach whatever he wishes about same –sex marriage. Nor did the decision elevate one religious view over another.

Update on Kim Davis and Marriage Licenses In Kentucky

On Monday, Rowan County, Kentucky Clerk Kim Davis, after spending 5 days in jail on contempt charges, returned to work still opposed on religious grounds to issuing marriage licences to same-sex couples.  However, as reported by CNN, she did not prevent her deputy clerks from issuing licences reading that they were issued "pursuant to federal court order." Kentucky Governor Steve Beshear said that the state will recognize these licenses as valid.  Meanwhile, yesterday in Davis v. Beshear, (6th Cir., Sept. 15, 2015), the U.S. 6th Circuit Court of Appeals denied Davis request for a preliminary injunction against the Governor and the Commissioner of the Kentucky Department of Libraries and Archives seeking to prevent them from enforcing the district court order that county clerks issue marriage licenses to same-sex couples and exempting her from issuing licenses pending appeal of the district court's delay in passing on her request for an injunction. (See prior related posting.) The court said in part:

Davis maintains that the issuance of marriage licenses to same-sex couples burdens her sincerely held religious beliefs in violation of the U.S. Constitution, the Kentucky Constitution, and the Kentucky Religious Freedom Restoration Act. Davis has not demonstrated a substantial likelihood of success on her federal constitutional claims. We need not address the merits of her claims under Kentucky law because the Eleventh Amendment of the U.S. Constitution precludes the federal courts from compelling state officials to comply with state law.

NY Governor Criticizes Rabbi's Comments Blaming Sandy On Same-Sex Marriage

Yesterday, New York Gov. Andrew Cuomo issued a press release strongly criticizing comments made by Rabbi Noson Leiter, Executive Director of Torah Jews for Decency. Leiter in an appearance on VC America's Crosstalk (audio recording of program) blamed the flooding from Hurricane Sandy in New York on the state's legalization of same-sex marriage. Cuomo said in part:

The comments made by Rabbi Noson Leiter that sought to link the devastation caused by Hurricane Sandy to our state's embrace of marriage equality are as offensive as they are ignorant.... This kind of hateful rhetoric has no place in our public discourse, and is particularly distasteful in times of tragedy.... I call on Rabbi Leiter to apologize immediately for his hurtful comments.

Vos Iz Neias? also reports on these developments.