7th Circuit Stays District Court's Invalidation of Indiana's Same-Sex Marriage Ban

In Baskin v. Bogan, (7th Cir., June 27, 2014), the U.S. 7th Circuit Court of Appeals issued a stay pending appeal of a federal district court' decision striking down Indiana's laws barring same-sex marriage. (See prior posting.) Fox59 reports on the appellate court's action and reactions to it.

Recent Articles of Interest

From SSRN:

• Helen A. Alvare, Same-Sex Marriage and the 'Reconceiving' of Children, (Case Western Reserve Law Review, Vol. 64, No. 3, pp. 829-862, 2014).
• Odetayo Samson, A Critical Assessment of the Validity and Recognition of Same Sex Marriage Under the Nigerian Legal System, (October 16, 2014).
• Ankita Bharadwaj, Adultery- Judicial Interpretation and the Law Under Various Personal Laws in India, (November 22, 2014).
• Valentino Cattelan, Property (Mal) and Credit Relations in Islamic Law: An Explanation of Dayn and the Function of Legal Personality (Dhimma), (Arab Law Quarterly, Forthcoming).
• Christine A. Corcos, The Scrying Game: The First Amendment, State Regulation of the Crafty Sciences, and the Rise of Spiritualism, 1848-1944, (January 16, 2013).
• Ioanna Tourkochoriti, The New Regulation Against Hate Speech in Greece: Strengths and Weaknesses, (Council for European Studies, Reviews & Critical Commentary (CritCom) Columbia University, Forthcoming).
• George K. Yin, The IRS's Misuse of Scarce Compliance Resources in the Exempt Organization Area, (December 5, 2014).

From SmartCILP:

• Hossein Mir Mohammad Sadeghi, Filling the Gap In Favor of the Accused: The Approach of Islamic Criminal Law In Light of the Rule No Punishment In Case Of Doubt, [Abstract], 29 Tulane European & Civil Law Forum 147-156 (2014).

States In Total Liable For Over $13.6M In Lawyers' Fees In Same-Sex Marriage Case Losses

National Law Journal yesterday reported on its compilation of legal fees that 26 states which unsuccessfully defended same-sex marriage bans have agreed to pay or been ordered by courts to pay to successful plaintiffs.  They total more than $13.6 million (including the later-reported $100,000 settlement with Montana)-- with 6 states each being required to pay over $1 million.  The NLJ also published a chart showing the award or settlement amount by case. Fee petitions are still pending in three states.

French President Signs Same-Sex Marriage Bill After Constitutional Council Upholds It

The New York Times reports that in France today, President Francois Hollande signed into law Projet de Loi Ouvrant le Mariage aux Couples de Personnes de Même Sexe, making France the 14th country to legalize same-sex marriage. Hollande's action follows a decision handed down yesterday by France's Constitutional Council rejecting constitutional challenges to the new law. (Full text of decision in French; Council's press release in French). Parliament passed the law last month. (See prior posting.)

California Supreme Court Will Hear Challenges To Proposition 8

The California Supreme Court yesterday agreed to accept original jurisdiction over challenges to voter approval of Proposition 8, the ballot measure that bans same-sex marriage. (Judicial Council press release.) Yesterday's Los Angeles Times reports on the court's action. The cryptic two-page order issued by the Supreme Court (full text) actually covers a good deal of ground. It agrees to hear three of the six cases filed challenging the validity of Proposition 8. It permits the official proponents of the ballot issue to intervene as a party. In the order, the Court agreed (over one dissent) to decide whether Proposition 8 is a "revision" rather than an "amendment" to California's Constitution. The Proposition was passed under procedures for amendments. The Court will also decide whether Proposition 8 violates the separation of powers doctrine under California's constitution. In addition, if the court decides that Proposition 8 is valid, it will determine its effect on pre-existing gay marriages performed in California.

Finally, the court (over one dissent) refused to stay the operation of Proposition 8 pending the court's decision in the matter. A release by ProtectMarriage.com called denial of the requested stay the most significant part of the order. It is unclear what the court will do as to three other challenges that have been filed, including one by a number of religious groups. (See prior posting.)

Meanwhile, other countries are facing legal issues involving gay marriage. Jurist reported yesterday that the Supreme Court of Nepal has ordered an end to government discrimination based on sexual orientation. It has told the government to draft legislation permitting same-sex partnership and marriage. This follows a decision last year by the Court holding that sexual minorities should be granted equal rights.

UPDATE: The Los Angeles Times reported Wednesday that Proposition 8 supporters are considering the possiblility of a recall campaign aimed at California Supreme Court justices who vote to invalidate the approval of Proposition 8.

UPDATE: All orders, pleadings and briefs in the Proposition 8 challenges are posted on a special page on the Supreme Court's website.

Recent Articles of Interest

From SSRN:

• Ronald Niezen, Power Through Testimony: Reframing Residential Schools in the Age of Reconciliation (Foreword), (March 2017, ISBN: 978-0774833899).
• Katherine M. Franke & Elizabeth Reiner Platt, Amicus Brief to U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Human Rights Commission, (Columbia Public Law Research Paper No. 14-566 (Oct. 2017)).
• Paul Johnson, Robert M. Vanderbeck & Silvia Falcetta, Religious Marriage of Same-Sex Couples: A Report on Places of Worship in England and Wales Registered for the Solemnization of Same-Sex Marriage, (November 24, 2017).
• Steven G. Calabresi, The Free Exercise of Religion, (Northwestern Public Law Research Paper No. 17-26 (Nov. 2017)).
• Douglas NeJaime & Reva Siegel, Religious Accommodation, and Its Limits, in a Pluralist Society, (Religious Freedom and LGBT Rights: Possibilities and Challenges for Finding Common Ground (Robin Fretwell Wilson & William N. Eskridge, Jr. eds., Cambridge Univ. Press 2018 Forthcoming).
• Santiago Legarre, A New Natural Law Reading of the Constitution, (78:3 Louisiana Law Review (2018 Forthcoming)).
• Ellen P. Aprill, Amending the Johnson Amendment in the Age of Cheap Speech, (University of Illinois Law Review On-Line (Forthcoming)).
• Khaled A. Beydoun & Abed Ayoub, Executive Disorder: The Muslim Ban, Emergency Advocacy, and the Fires Next Time, (22 Michigan Journal of Race & Law 215 (2017)).
• Abenaa Owusu-Bempah, Hate Crime and the Legal Process: Options for Law Reform, (LSE Law - Policy Briefing Paper No. 29 (Nov. 2017)).
• Robert Leckey, Judging in Marriage's Shadow, (Feminist Legal Studies, Forthcoming).

From SSRN (Comparative religion and law, jurisprudence):

• Jainlin Chen, Chapter 2, The Law and Religious Market Theory: China, Taiwan and Hong Kong, (Cambridge University Press 2017).
• Joseph E. David, Love, Law and the Judeo-Christian Separation-Individuation,(November 15, 2017).
• Joseph E. David, Divinity, Law, and the Legal Turn in the Study of Religions, (May 15, 2017).
• Lua K. Yuille, Creating a Babel Fish for Rights & Religion: Defining 'Rights' Through Sacred Texts, (25 Transnational Law & Contemporary Problems 309-361 (2016)).

From SSRN (Islamic law and society):

• Intisar A. Rabb, The Curious Case of Bughaybigha, 661–883: Land and Leadership in Early Islamic Societies, (Justice and Leadership in Early Islamic Courts, Edited by Intisar A. Rabb and Abigail Krasner Balbale (2017)).
• Fajri Matahati Muhammadin & Hanindito Danusatya, De-Secularizing Legal Education in Indonesia: Examining the 'Introduction to Jurisprudence' Textbooks on Norm Classification, (International Seminar on Islamic Civilization and Thought (2017), Conference Proceeding).

From SmartCILP:

• Shai Silverman, Before the Godly: Religious Arbitration and the U.S. Legal System, 65 Drake Law Review 719-779 (2017).
• Lucien J. Dhooge, The Equivalence of Religion and Conscience, [Abstract], 31 Notre Dame Journal of Law, Ethics & Public Policy 253-292 (2017).

Mississippi Suit On Gay Marriage Recusals Is Reopened

In June, the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a challenge to Mississippi's broad Conscience Protection Act. (See prior posting.) In October, an en banc rehearing was denied.  In light of this, yesterday a Mississippi federal district court in Campaign for Southern Equality v. Bryant, (SD MI, Oct. 27, 2017), issued an order (full text) reopening a challenge to the law insofar as it allows county clerks to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage.  The Order also authorized plaintiffs to serve interrogatories to determine how many Clerk's Offices have employees that have sought to recuse themselves, and how the recusals are handled. AP reports on the order.

Article Traces Evolution of Obama's Position On Same-Sex Marriage

Today's New York Times Magazine carries a lengthy article titled How the President Got to ‘I Do’ on Same-Sex Marriage. It traces the evolution of President Obama's public position on the issue.

Supreme Court Issues Stay In Virginia Same-Sex Marriage Case

Yesterday the U.S. Supreme Court issued an order (full text) in McQuigg v. Bostic, staying the U.S. 4th Circuit Court of Appeals order that invalidated Virginia's ban on same-sex marriage. (See prior posting.)  The order delays the 4th Circuit's mandate until a petition for Supreme Court review is disposed of.  SCOTUS Blog reports on the stay..

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.

District Court Again Enjoins Enforcement of Alabama's Same-Sex Marriage Ban

In Strawser v. Strange, (SD AL, June 7, 2016), an Alabama federal district court, noting actions by the Alabama judiciary seeking to defy the U.S. Supreme Court's Obergefell decision, issued a permanent injunction barring the enforcement of Alabama’s laws that bar same-sex marriage.  Rejecting defendants' assertion that the claim against them is moot, the court said:

Although Attorney General Strange is already subject to a permanent injunction from another case in this Court, Searcy v. Strange, ... the other Defendants in this case are not subject to that injunction and the Plaintiffs in this case lack standing to enforce the Searcy injunction. It is also apparent that certain Alabama state courts do not view this Court’s ruling in Searcy as binding precedent....

The Court notes that the Supreme Court of Alabama denied the pending mandamus petitions and entered judgment in Ex parte State of Alabama ex rel. Alabama Policy Institute.... However, the Alabama Supreme Court did not vacate or set aside its earlier writ of mandamus directing Alabama’s probate judges to comply with the Alabama laws that were held unconstitutional by this Court.... Chief Justice Moore also stated that the Eleventh Circuit’s finding that the Alabama Supreme Court's order was abrogated by the Supreme Court's decision in Obergefell “is plainly wrong.”...

This Court is aware that Chief Justice Moore is currently suspended from his position and is facing charges before the Alabama Court of the Judiciary. However, even if Chief Justice Moore is not reinstated to his position as Chief Justice, the concurring opinions of several other Alabama Supreme Court Justices also expressed disagreement with Obergefell.... It is clear that the decision by the United States Supreme Court in Obergefell does not provide certainty that the alleged violations will not recur.

A press release from Americans United has more on the decision.

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.

Over 140 Amicus Briefs Filed In Upcoming SCOTUS Same-Sex Marriage Cases

Oral arguments before the U.S. Supreme Cout in the same-sex marriage cases are scheduled for April 28.  The Court has received over 140 amicus briefs in the cases-- with slightly more supporting petitioners than respondents.  Links to the full text of almost all the amicus briefs are available here from SCOTUSblog.

Amicus Briefs In Same-Sex Marriage Cases Now Available Online

Numerous amicus briefs have now been filed in the two Supreme Court same-sex marriage cases that will be argued on March 26 and 27. A number of the amici are religiously affiliated organizations.  Scotus Blog has links to the full text of all the briefs in Hollingsworth v. Perry and  in United States v. Windsor.

Catholic School's Firing of Guidance Counselor Over Same-Sex Marriage Remains In Litigation

In Drumgoogle v. Paramus Catholic High School, (NJ Super., Aug. 22, 2016), a New Jersey state trial court refused to grant summary judgment to a Catholic high school in a suit by its former dean of guidance who was fired after she entered a same-sex marriage.  The school terminated her under a provision of its collective bargaining contract that allows for-cause termination of a tenured teacher for "violating accepted standards of Catholic morality as to cause public scandal." Plaintiff claims that the school's policy on harassment bars discrimination against her on the basis of marital status and claims her firing violates the New Jersey Law Against Discrimination.  The court concluded that further discovery is required in order to determine whether plaintiff's status requires application of the "ministerial exception" to anti-discrimination laws and whether the dispute is secular or ecclesiastical. The Bergen County Record reports on the decision.

Federal District Judge Says Obergefell Does Not Bind Puerto Rico

In Vidal v. Garcia-Padilla, (D PR, March 8, 2016), a Puerto Rico federal district court held that the recognition of same-sex marriage in Obergefell v. Hodges  does not bind Puerto Rico until further action by the Supreme Court or Congress.  Relying on the so-called Insular Cases decided by the Supreme Court in the early 20th century, the court said "jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment...."  The court concluded:

It is in light of the particular condition of Puerto Rico in relation to the Federal Constitution, with due consideration of the underlying cultural, social and political currents that have shaped over five centuries of Puerto Rican history, that the court examines the effect of Obergefell in the instant case. The court’s analysis, therefore, does not end with the incorporation of the fundamental right to same-sex marriage in the States. Generally, the question of whether a constitutional guarantee applies to Puerto Rico is subject to determination by Supreme Court of the United States.

Lyle Denniston at SCOTUSblog has more on the decision.

DOJ Backs Catholic Archdiocese In Firing of Teacher For Same-Sex Marriage

On Friday, the Department of Justice filed a Statement of Interest (full text) in an Indiana state trial court in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Super Ct., 9/27/2019).  In the suit, a teacher in a Catholic school in Indianapolis claims that the Archdiocese wrongly interfered with his contractual relationship with the school when the Archdiocese ordered the school to dismiss the teacher because of his public same-sex marriage. (See prior posting.)  DOJ argued that the First Amendment requires the court to dismiss the teacher's complaint:

The First Amendment bars this action for at least two independent reasons. First, Plaintiff’s action seeks to penalize an indisputably expressive association—the Archdiocese—for deciding which schools may identify as Catholic under its associational umbrella.....

Second, Plaintiff seeks to embroil this Court in a dispute over the Archdiocese’s application of Catholic law, in violation of the church-autonomy doctrine.

A Justice Department press release announced its filing with the court.

Now Stymied Lawsuit In Russia Seeks To Invalidate Sale of Alaska To Protect Its Orthodox Christians From Same-Sex Marriage

RIA Novosti reports today on an attempt in Russia by an obscure ultraconservative Russian Orthodox religious group--  Pchyolki ("Bees)-- to sue the United States to invalidate Russia's sale of Alaska to the U.S. in 1867. Pchyolki says that the suit was motivated by President Barack Obama's support for legalizing same-sex marriage. Pchyolki says this threatens freedom of religion for Alaska’s Orthodox Christians, who "would never accept sin for normal behavior." The lawsuit cites technical violations of the terms of the 1867 treaty. Art. VI of the treaty called for the U.S. to pay Russia $7.2 million "in gold."  The complaint filed in a Moscow arbitrage court says payment was made instead by check.

The suit was originally filed in Moscow in January, and Pchyolki had until this week to file certain additional papers and notify the U.S. government of the lawsuit. It failed to do so, and the court has therefore not processed the lawsuit.

British Employment Tribunal: Church of England Can Refuse To License Clergy Who Have Entered Same-Sex Marriage

In Pemberton v. Inwood, (Empl. Trib., Oct. 28, 2015), a British Employment Tribunal held that the Church of England had not violated the Equality Act when it refused to grant Rev. Jeremy Pemberton an Extra Parochial Ministry License that would qualify him to be appointed as a chaplain at the Sherwood Forest Hospitals.  The license was denied because Pemberton had entered into a same-sex marriage in contravention of Church of England doctrine. The Guardian last week reported on the decision. [Thanks to Law & Religion UK for the lead.] [Corrected-- an earlier version of this post had the parties reversed.]

IRS Commissioner Says No Non-Profit Revocations In His Term For Colleges That Oppose Gay Marriage

At a July 29 hearing conducted by the Senate Judiciary Committee's Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts (video and testimony at hearing), Sen. Mike Lee (R-UT) had a lengthy exchange with IRS Commissioner John Koskinen over whether the IRS would revoke the tax-exempt status of Christian colleges and universities that remain opposed to same-sex marriage.  According to the Christian Post, Koskinen pledged:

that he will commit to making sure that the IRS does not punish religious schools for not adopting policies to accommodate gay marriage — such as allowing married same-sex couples to live in married student housing — as long as he is in charge of the IRS..... However, Koskinen did leave the door wide open for tax-exempt statuses to be a problem for Christian schools in the future....

All we do is follow whatever the public policy is that is set by other organizations," Koskinen argued. "At this point other actions would have to take place before the IRS can consider issuing a regulation, which would give people notices to what we think the public policy was and then cases and exams would be conducted under that.

[Thanks to Steven H. Sholk for the lead.]