Recent Articles and Books of Interest

From SSRN:

• Dwight G. Newman, On the Trinity Western University Controversy: An Argument for a Christian Law School in Canada, (Canadian Association of Law Teachers Annual Meeting in Victoria, British Columbia, June 4, 2013).
• John Copeland Nagle, What Hath Lynn White Wrought?, (2 Fare Forward 44 (2012)).
• Lida Sugin, The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, (78 Brook. L. Rev. 777 (2013)).
• Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Impact on Marriage, (California Law Review, Vol. 102, 2014, Forthcoming).
• Pinkeshwar Gangwar, Discrimination Against Dalits, (June 20, 2013).
• Erik James Girvan, & Grace M. Deason, Social Science in Law: A Psychological Case for Abandoning the 'Discriminatory Motive' under Title VII, (Cleveland State Law Review, Vol. 60, 1057 (2013)).

From SmartCILP:

• Giorgio Bernini, The Parties' Right to Choose Their Arbitrator and the Prohibition Against Discrimination: An Unstable Balance. A Comment on the Judgments in Jivraj v. Hashwan, [Abstract], 24 American Review of International Arbitration 27-62 (2013).
• Michael Blakeney, Protecting the Spiritual Beliefs of Indigenous Peoples--Australian Case Studies, 22 Pacific Rim Law & Policy Journal 391-427 (2013).
• The Legacy of the Arab Spring. Introduction by Ayodeji K. Perrin; symposium keynote lectures by Khaled Abou El Fadl and Lina Khatib; essays by Lama Abu Odeh, Ann Elizabeth Mayer, Amit K. Chhabra, Amos N. Guiora and Jordan J. Paust. 34 University of Pennsylvania Journal of International Law 305-446 (2013).

New Books:

• Marie A. Failinger, Elizabeth R. Schiltz & Susan J. Stabile (eds.), Feminism, Law, and Religion, (Ashgate Publishing, July 2013).
• James P. Byrd, Sacred Scripture, Sacred War: The Bible and the American Revolution, (Oxford University Press, June 2013).
• George Anastaplo, Reflections on Religion, the Divine, and the Constitution, (Lexington Books, August 2013).

Limits On Nude Sunbathing Are Not Violation of Naturist's Free Exercise Rights

In Wittbold v. Miami-Dade County, (SD FL, June 27, 2013), a Florida federal district court dismissed a lawsuit claiming that the county, by limiting nude sunbathing to one fenced area of the 177 acre Haulover Beach Park, violated plaintiff's 1st Amendment right to practice his religion of Naturism as well as his due process rights. According to the court, plaintiff's complaint "is a cacophony of irrelevant facts, biblical quotations and personal opinions that fail to state any cause of action."

Recent Prisoner Free Exercise Cases

[Note to readers: LEXIS Links in this and future postings are to Lexis Advance]

In Scott v. Shamsiddeen, 2013 U.S. Dist. LEXIS 86522 (ND NY, June 20, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 86474,  May 28, 2013) and dismissed an inmate's complaint that on two dates in 2011 he was deprived of Eid-ul-Adha religious meals. The problem resulted from authorities mistakenly believing plaintiff had been transferred.

In Jack-Bey v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 86645 (WD MI, June 20, 2013), while rejecting class action certification and damage claims, a Michigan federal district court permitted an inmate to proceed with his injunctive action claim that "Moorish Science Temple of America-1928 Grand Body" should be recognized by prison authorities (and its practices accommodated) as a separate religious group from "Moorish Science Temple of America, Inc. (1934 Portion)".

In Fabre v. Thompson, 2013 U.S. Dist. LEXIS 88116 (D OR, June 24, 2013), an Oregon federal district court dismissed a claim brought by plaintiff who was involuntarily committed for psychiatric treatment that his free exercise rights were violated when authorities invaded his soul and psyche, blocking the pathways to commune with God.

In Olmos v. Ryan, 2013 U.S. Dist. LEXIS 88118 (D AZ, June 24, 2013), an Arizona federal district court rejected a convicted child sex offender's claim that his probation conditions requiring that he obtain permission before going to places frequented by children under 18 violate his free exercise rights by preventing him from engaging in the close, frequent association with fellow believers.

In Lindsey v. Butler, 2013 U.S. Dist. LEXIS 88601 (SD NY, June 18, 2013), a New York federal district court permitted plaintiff, a Muslim, to file an amended complaint alleging that his free exercise and due process rights were infringed when he was forcibly shave while being detained at a police station following his arrest. Police shaved petitioner because others in the planned police line-up did not have beards.

In Calhoun-El v. Maynard, 2013 U.S. Dist. LEXIS 89945 (D MD, June 24, 2013), a Maryland federal district court dismissed an inmate's complaint that Muslim inmates do not receive ceremonial food packages equal to those given to inmates who keep a kosher diet.

In Turner v. Weikal, 2013 U.S. Dist. LEXIS 90463 (MD TN, June 27, 2013), a Tennessee federal magistrate judge recommended that a Muslim inmate be permitted to proceed with his 1st Amendment free exercise claims alleging that on 3 occasions he was not permitted to pray as required by his religious beliefs, he could not gather with other Muslims during Ramadan, he was not provided a correct religious diet, religious materials were removed from his room on two separate occasions, and he was retaliated against because of his Muslim faith. However his RLUIPA damage claims were dismissed.

Cert. Denied In Other DOMA Cases

Last Thursday, a day after issuing its same-sex marriage decisions, the U.S. Supreme Court cleaned up its docket by denying certiorari in several other cases challenging the constitutionality of DOMA.  The Court denied review in Windsor v. United States (Docket No. 12-63) and Bipartisan Legal Advisory Group v. Windsor, (Docket No. 12-785). It also denied review in Bipartisan Legal Advisory Group v. Gill (Docket No. 12-13), Department of Health & Human Services v. Massachusetts, (Docket No. 12-15), and Massachusetts v. Department of Health & Human Services, (Docket No. 12-97). (See prior related posting.) (June 27 Order List.)

Procedural Wrangling Tries To Delay Same-Sex Marriages In California

In its widely reported decision in Hollingsworth v. Perry last Wednesday, the U.S. Supreme Court held that petitioners lacked standing to challenge California's anti-gay marriage Proposition 8. SCOTUS remanded the case and ordered the 9th Circuit to dismiss the appeal from the district court. However it will be at least 25 days from the decision date until the Supreme Court formally certifies a copy of its judgment to the 9th Circuit.  Nevertheless, acting quickly, yesterday the 9th Circuit issued an Order (full text) dissolving the stay it had previously entered. That stay was the last impediment to same-sex marriage in California. Today, as same-sex marriages were being performed in the state, the proponents of Proposition 8 filed a motion (full text) with the U.S. Supreme Court asking it to vacate yesterday's 9th Circuit order on the ground that the 9th Circuit has no jurisdiction to act until the Supreme Court formally issues a certified copy of its judgment to it. Proponents argued that the premature termination of the stay deprives them of a meaningful opportunity to petition the Supreme Court for a rehearing. The Los Angeles Times and SCOTUS Blog report on this latest procedural wrangling.

UPDATE: AP reports that on June 30, Justice Anthony Kennedy denied the motion to vacate the 9th Circuit's order. Kennedy is the Justice assigned to receive motions regarding 9th Circuit cases.

Suit For Ministry Candidate's File Dismissed Under "Ecclesiastical Deference" Doctrine

In Mason v. Presbytery of San Francisco, (CA App., June 25, 2013), a California state appellate court dismissed under the "ecclesiastical deference" doctrine a lawsuit by a candidate for the Presbyterian ministry who sought access to her full candidacy file when, after ten years in the process, her candidacy was terminated. The court said that deciding whether there had been a contractual agreement to furnish the file to plaintiff at the end of her candidacy process, even if she did not receive a call to the ministry:

would require the courts to become embroiled in matters of church polity relating to the consideration of candidates for ministry and the handling of confidential or sensitive information received during the candidacy process. Thus, it is not possible for the courts to resolve the contract dispute alleged in the [complaint] without becoming entangled in matters of church polity.

The court also noted that in 2003:

the Permanent Judicial Commission of the General Assembly of the Presbyterian Church ,,, concluded, in a different matter, that respondent was not required to provide a candidate confidential documents relating to termination of the candidate.

Final Contraceptive Coverage Mandate Exemptions and Accommodations Issued For Religious Non-Profits

The Department of Health and Human Services announced today that it has adopted final rules on non-profit religious organizations and the contraception-coverage mandate under the Affordable Care Act. The rules (full text) deal both with the definition of those religious employers that are totally exempt from the requirement, and arrangements for coverage to be provided directly from health insurers in connection with other non-profit religious organizations that object to contraception coverage. According to the press release:

Today’s final rules finalize the proposed simpler definition of “religious employer” for purposes of the exemption from the contraceptive coverage requirement in response to concerns raised by some religious organizations.  These employers, primarily houses of worship, may exclude contraceptive coverage from their health plans for their employees and their dependents.

The final rules also lay out the accommodation for other non-profit religious organizations - such as non-profit religious hospitals and institutions of higher education - that object to contraceptive coverage.   Under the accommodation these organizations will not have to contract, arrange, pay for or refer contraceptive coverage to which they object on religious grounds, but such coverage is separately provided to women enrolled in their health plans at no cost.  The approach taken in the final rules is similar to, but simpler than, that taken in the proposed rules, and responds to comments made by many stakeholders.

With respect to an insured health plan, including a student health plan, the non-profit religious organization provides notice to its insurer that it objects to contraception coverage.  The insurer then notifies enrollees in the health plan that it is providing them separate no-cost payments for contraceptive services for as long as they remain enrolled in the health plan. 

Similarly, with respect to self-insured health plans, the non-profit religious organization provides notice to its third party administrator that objects to contraception coverage.  The third party administrator then notifies enrollees in the health plans that it is providing or arranging separate no-cost payments for contraceptive services for them for as long as they remain enrolled in the health plan.

According to a Fact Sheet on the new rules eliminate the requirements that a "religious employer" have the inculcation of religious values as its purpose; primarily employ persons who share its religious tenets; and primarily serve persons who share its religious tenets. For other non-profits, coverage directly from the insurer is available for any organization that:

on account of religious objections, opposes providing coverage for some or all of any contraceptive services otherwise required to be covered; is organized and operates as a nonprofit entity; holds itself out as a religious organization; and self-certifies that it meets these criteria in accordance with the provisions of the final regulations.

Pope Appoints Commission To Investigate Vatican Bank Amid Money Laundering Arrests

AKI reports today that the Vatican says it will cooperate fully with Italian authorities in their investigation of the Vatican Bank's (IOR) involvement in money laundering.  Today authorities arrested Monsignor Nunzio Scarano, a Vatican accountant on suspicion of fraud, corruption and slander. Scarano was suspended last month from the Vatican's Administration of the Patrimony of the Apostolic See which manages the Vatican's assets. Also arrested today were an Italian secret services agent and a financial broker who are suspected of involvement in an attempt to illegally move 20 million Euros to Italy. According to Deutsche Welle:

Earlier this week the AP ... reported that Scarano had withdrawn more than half a million euros in charitable donations without any flags being raised, walked out of Vatican City with the cash, and then used it to pay off a personal mortgage.

On Friday, dpa quoted Italian prosecutors as saying Bishop Scarano had paid Zito [the former intelligence officer] 400,000 euros ($520,000) to transport 20 million euros in cash from Switzerland to Italy onboard a private jet.

On Wednesday the Vatican announced that Pope Francis has set up a 5-member Pontifical Commission to investigate IOR's activities. It is charged with "gather[ing] accurate information on the Institute's legal position and various activities, in order to allow, if necessary, a better harmonization of the same with the universal mission of the Apostolic See."  (Chirograph establishing the Commission.) Among the Commission members is Harvard Law Professor Mary Ann Glendon, a former U.S. Ambassador to the Vatican.

UPDATE: The Director and Deputy Director of the Vatican Bank resigned on July 1. (National Catholic Reporter.)

Russian Upper House Sends Ban on Insulting Religion to Putin For Signature; USCIRF Criticizes Bill

As previously reported, earlier this month the Russian Duma (lower house of Parliament) passed amendments to the Russian Criminal Code to punish insulting the religious beliefs and feelings of citizens. Yesterday the law was approved by the Federation Council (the upper house of Parliament). (Legislative history in Russian).  The bill must still be signed by President Vladimir Putin in order for it to become law. Today the U.S. Commission on International Religious Freedom issued a press release strongly critical of the new law, saying in part:

The bill now awaits only a presidential signature before becoming law, most likely on July 1. The bill would punish alleged offenses against religious sentiments by up to three years in prison. 

 “With space for free expression shrinking rapidly in Russia, enactment of this bill would further erode human rights protections in Russia,” said U.S. Commission on International Religious Freedom (USCIRF) Chair Dr. Katrina Lantos Swett.  “Speech limitations violate Russia’s international commitments, and this law will lead to abuse and arbitrary rulings against permissible speech that some deem ‘offensive..... [I]f enacted, this new law gives credence to the view Russian human rights activists expressed to me that Russia is in full retreat from democracy and the rule of law.” 

UPDATE: Radio Free Europe reported on June 30 the President Putin signed the bill into law, along with a second controversial bill that prohibits disseminating to minors any propaganda involving "nontraditional sexual relations."

Former Guantanamo Detainee's Suit Alleging Free Exercise Violations Dismissed For Lack of Jurisdiction

In Ameur v. Gates, (ED VA, June 29, 2013), plaintiff, an Algerian citizen arrested in Pakistan and subsequently transferred to Guantanamo Bay for five years, sued various former government officials for damages alleging that his treatment violated customary international law, the Geneva Convention, the 5th Amendment, the 1st Amendment's free speech and free exercise protections, and the Religious Freedom Restoration Act. The court dismissed his claims finding that the Military Commission Act divests the court of jurisdiction. Lawfare blog has more on the decision.

Former School Employees State Claims For Anti-Mormon Bias

In Hunt v. Central Consolidated School District, (D NM, June 12, 2013), a New Mexico federal district court in a long opinion held that a former Transportation Director and former Custodial Supervisor could proceed with claims that their reassignments as part of a school district administrative restructuring were motivated by anti-Mormon bias. The court held that plaintiffs had stated plausible claims of discrimination, conspiracy and breach of contract. The suit alleged that the school board president and his campaign manager were involved in anti-Mormon comments that were posted on a local newspaper's blog.

10th Circuit En Banc Gives Big Win To Hobby Lobby In Challenge To Contraceptive Coverage Mandate

Yesterday an 8-judge en banc panel of the U.S. 10th Circuit Court of Appeals gave an important win in a high profile case to for-profit businesses challenging the Affordable Care Act's contraceptive coverage mandate. In Hobby Lobby Stores, Inc. v. Sebelius, (10th Cir., June 27, 2013), in six separate opinions spanning 165 pages, the court held that two related family-owned corporate businesses, Hobby Lobby Stores and Mardel, Inc., had demonstrated a likelihood of success on their claim that their free exercise rights were substantially burdened in violations of the Religious Freedom Restoration Act.  The corporations and their owners objected to providing coverage for those contraceptives they regard as abortifacients.  Four of the 8 judges would have remanded with instructions for the district court to issue a preliminary injunction, but lacking a 5th vote for that, the court instead remanded for the district court to resolve two other issues as to whether an injunction should issue-- the balance of equities and the public interest-- before issuing the injunction.

Five of the 8 judges (those who joined Part V of Judge Tymkovich's opinion) held that corporations have free exercise rights, and that here they were substantially burdened without a compelling governmental interest.  Judge Tymkovich said in part:

... Congress did not exclude for-profit corporations from RFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute.  ....  It is beyond question that associations—not just individuals—have Free Exercise rights: “An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.” ....

[T]he protections of the Religion Clauses extend beyond the walls of a church, synagogue, or mosque to religiously motivated conduct, as well as religious belief.... The distinction gains force here because religious conduct includes religious expression, which can be communicated by individuals and for-profit corporations alike......

... [S]incerely religious persons could find a connection between the exercise of religion and the pursuit of profit. Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices? The kosher butcher, of course, might directly serve a religious community—as Mardel, a Christian bookstore, does here. But we see no reason why one must orient one’s business toward a religious community to preserve Free Exercise protections. A religious individual may enter the for profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values. As a court, we do not see how we can distinguish this form of evangelism from any other.....

Judge Tymkovich went on to find that the corporation's religious beliefs were substantially burdened. Saying that "substantial burden" is a question of the intensity of coercion, not the theological merit of the belief, and explaining:

It is not the employees’ health care decisions that burden the corporations’ religious beliefs, but the government’s demand that Hobby Lobby and Mardel enable access to contraceptives that Hobby Lobby and Mardel deem morally problematic.... [W]e must accept Hobby Lobby and Mardel’s beliefs.

Judge Tymkovich then rejected the argument that the government has a compelling interest in imposing the mandate. The asserted interests in public health and gender equality are broadly formulated and do not justify refusal to grant exemptions for religious objectors. Moreover, tens of millions of people are already exempt from the mandate because they are insured under grandfathered plans or work for small employers.

Four, but only 4, of the 8 judges also concluded that the individual shareholders have standing to assert claims here as well. The other judges concluded that they need not reach that issue. Becket Fund issued a press release announcing the decision. AP reports on the decision.

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...."

In Broad Win, Small Business Gets Preliminary Injunction Against Required ACA Emergency Contraception Coverage

In Beckwith Electric Company, Inc. v. Sebelius, (MD FL, June 25, 2013), a Florida federal district court granted a for-profit small business and its owner a preliminary injunction barring the government from enforcing the contraceptive coverage mandate to require plaintiffs to cover emergency contraceptives for the company's 168 employees. Plaintiffs claim these operate as abortifacients. Siding with plaintiffs on virtually all issues, the court held both  that corporations have the right to exercise religion under the free exercise clause and RFRA, and that closely held corporations can also assert the free exercise rights of their owners. The court held broadly:

When an individual is acting through an incorporeal form, whether secular or religious, nonprofit or for-profit, incorporated or a partnership, the individual does not shed his right to exercise religion merely because of the "corporate identity" he assumed.

The court also concluded that plaintiffs' religious beliefs are substantially burdened by the mandate:

It is not within the province of the Court to question the soundness or validity of a religious belief; it is enough that plaintiffs say they have the belief.... Plaintiffs are not objecting to the use of emergency contraceptives by Beckwith Electric's employees. Rather, the particular burden to which plaintiffs object is the provision of group insurance premiums that covers emergency contraception.

Finally the court held that the government has not shown it has a compelling interest in enforcing the mandate, both because of the large number of individuals that are exempt from the mandate and because:

there is no empirical data or other evidence... that would support the conclusion that the provision of the FDA-approved emergency contraceptives (in addition to the contraceptives to which plaintiffs do not object) would result in fewer unintended pregnancies, an increased propensity to seek prenatal care, or a lower frequency of risky behavior endangering unborn babies.

The Tampa Tribune reports on the decision. [Thanks to Hillary Byrnes for the lead.]

Analysis of Today's Same-Sex Marriage Decisions-- Installment 3: The Amazing Power of A Decision Based On Standing

In Hollingsworth v. Perry today, the U.S. Supreme Court was able to reach a result which, but for the case's odd procedural posture, would seem impossible.  Chief Justice Roberts writing for the majority handed down an opinion which has the effect of re-instituting same-sex marriage in California, but only there.  By avoiding any broader holding, the Court escaped the risk of creating the same kind of religiously-grounded political controversy that has extended for decades after Roe v. Wade. At the same time, it places no barriers in the way of supporters of marriage equality elsewhere who may now litigate the broader constitutional issues. Indeed, as Justice Scalia suggested, in United States v. Windsor the majority opinion gave potent ammunition to proponents of marriage equality who will likely press the constitutional issue if the political process in state legislatures bogs down.

In California, from the beginning state executive officials refused to defend Proposition 8-- a state constitutional amendment adopted by voters through the initiative process.  However when Proposition 8 was challenged in federal district court, the court permitted the official initiative proponents to intervene as defendants.  Reaching the merits, the district court enjoined enforcement of Proposition 8. That placed the initiative proponents in the posture of appellants, and it is that role the U.S. Supreme Court held they could not assume:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

The Supreme Court vacated the 9th Circuit's opinion, remanded the case and instructed the 9th Circuit to dismiss the appeal from the district court for lack of jurisdiction. Thus the district court's opinion invalidating Proposition 8 stands as the operative one on the merits.  The Supreme Court was silent as to whether it was error for the district court to allow initiative proponents to intervene as defendants.  If they had not intervened. presumably the court would still have invalidated Proposition 8 since no one would have been defending it.

Hollingsworth was a 5-4 decision, but with an odd alignment of justices.  The dissent arguing in favor of standing was written by Justice Kennedy, and joined by Justices Thomas, Alito and Sotomayor.  It seems likely that if the Court had reached the merits of the Proposition 8 challenge, these 4 justices would have been equally divided on opposite sides.

The case raises the broader question of when it is appropriate for state officials to refuse to defend the constitutionality of a state law, or a state constitutional provision.  Their oath to uphold the Constitution of the United States presumably obligates them to refuse to defend unconstitutional provisions. However, in states like California with broad initiative provisions, this case suggests a route by which initiatives adopted by popular vote can be effectively eliminated by a legislature and executive who disagree with the initiative.  An opponent of the initiative need merely file a federal lawsuit challenging its constitutionality under federal law, and existing state officials need merely to refuse to defend the initiative's legality. That spectre is reflected in the dissent's observation:

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.

Analysis of Today's Same-Sex Marriage Decisions-- Installment 2: What About Section 2 of DOMA?

Today's Supreme Court decision in United States v. Windsor invalidated Section 3 of the Defense of Marriage Act which provided that same-sex marriages valid under state laws would not be recognized for purposes of federal law.  The majority in its opinion says nothing about Section 2 of DOMA that provides:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

However, can Section 2 escape the majority's broad-brush conclusion that DOMA's "purpose and effect [is] to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity"?  Indeed, it is interesting to note that in most of the passages in which Justice Kennedy attributes discriminatory motivations to Congress, he refers broadly to "DOMA", and not just to Section 3.

Even if Section 2 of DOMA is also unconstitutional, this does not automatically mean that other states must give full faith an credit to same-sex marriages performed elsewhere.  There is a long-standing notion that states need not recognize foreign marriages that violate a strong public policy of the state.  The more difficult question, however, is whether after today's decision, a state's refusal to recognize same-sex marriages from other states can be seen as reflecting a constitutionally permissible strong public policy. Justice Kennedy, in referring to states' interest in defining marriage makes a point of adding that this power is "subject to constitutional guarantees."

To the extent that states are still permitted to refuse to recognize same-sex marriages performed elsewhere, difficult questions arise, particularly when a same-sex couple moves to a state which refuses to recognize their marriage.  As Justice Scalia suggests in dissent:

Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.”... When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules?

Must the federal government continue to respect the marriage valid in the state in which it was performed, even though the state in which the couple now lives refuses to do so? That leads to the "two contradictory marriage regimes" applicable to the same marriage that the Court said it was attempting to avoid by its decision today.

Analysis of Today's Same-Sex Marriage Cases-- Installment 1: A Separate Test For LGBT Discrimination?

[This is the first in what will be a series of posts discussing the holdings in today's same-sex marriage cases decided by the U.S. Supreme Court. This post focuses on the Court's invalidation of Section 3 of the federal Defense of Marriage Act.]

In United States v. Windsor today, the Supreme Court in a majority decision by Justice Kennedy held that DOMA's refusal to recognize a New York couple's same-sex marriage under federal law is unconstitutional. One important element of the majority's opinion is the court's continued development of a unique equal protection test for cases involving discrimination against gays and lesbians. The majority said in part:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government....  The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.... The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States....

DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.... By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect....

DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.  By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

As in other cases involving sexual orientation, the Court does not attempt to decide if gays and lesbians fit the traditional "suspect classification" test. Nor does it make fine distinctions regarding the level of scrutiny that must be applied in assessing the government's justifications for its actions. Instead, the majority asks more simply merely whether the legislative body's principal purpose was to harm or discriminate against gays and lesbians. In the past, this kind of "discriminatory purpose" analysis was used primarily in cases involving statutes that were facially neutral but had a disparate impact on a class of individuals. Where, as here, the discrimination was clear, traditionally the analysis was different.  It focused on the government's justification for the disparate treatment. Justice Scalia makes this point in dissent:

even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act....

[The majority] makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them.... I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them...

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. 

In rejecting an overarching equal protection paradigm, and instead developing separate tests for separate kinds of equal protection cases, the Court follows an earlier history of 1st Amendment free expression jurisprudence. The Court has often attempted to create an overarching 1st Amendment theory-- be it prior restraints, or "clear-and-present danger," or viewpoint neutrality.  However the Court in the end has moved to a Balkanized free expression jurisprudence-- separate tests for subversive speech, obscenity, symbolic expression, defamation, speech in the classroom... and more. We are perhaps witnessing the same development in equal protection cases.

Supreme Court Will Issue Same-Sex Marriage Decisions This Morning [UPDATED-Decisions In]

The Supreme Court in its session that begins at 10:00 am this morning will issue opinions in the two same-sex marriage cases argued earlier this year-- Hollingsworth v. Perry, the challenge to California's Proposition 8, and United States v. Windsor, the challenge to the federal Defense of Marriage Act. The opinions will be available here on the Supreme Court's website as soon as they are issued. I will post analysis of the decisions on Religion Clause later today. The Wall Street Journal has a preview of the decisions.

UPDATE: In United States v. Windsor today, the Supreme Court in a 5-4 decision held that DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. In Hollingsworth v. Perry, the challenge to California's Proposition 8, the Court in a 5-4 decision held that the initiative's proponents lacked standing to appeal the district court's decision declaring Proposition 8 unconstitutional. Postings later today will provide analysis of the decisions.

Suit Challenges Display of Crosses On Indiana Riverfront

The ACLU of Indiana announced yesterday that it has filed a lawsuit challenging the decision of the Evansville, Indiana Board of Public Works to allow a Christian church to display 30 eight-foot tall plastic crosses on riverfront public land.  According to AP, the crosses are to be decorated by students in the church's vacation Bible school. The case is Cabral v. City of Evansville, Indiana, (SD IN, filed 6/25/2013).

Another Contraceptive Coverage Mandate Challenge Filed By Small Business

New lawsuits by small for-profit businesses challenging on religious freedom grounds the Affordable Care Act's contraceptive coverage mandate are still being filed.  As reported by the Charleston (WV) Daily Mail, the latest lawsuit was brought in federal court this week by a West Virginia auto dealership and its born-again Christian owner who claim that some of the emergency contraceptives required to be covered are abortifacients. The complaint (full text) in Holland v. U.S. Department of Health and Human Services, (SD WV, filed 6/24/2013), contends that required coverage for ella and Plan B, along with related counseling, violates plaintiffs' rights under the First Amendment and RFRA:

Plaintiffs believe it would violate the Sixth Commandment for them to engage in any manner in the facilitation or endorsement of abortion.

Claiming that the incorporated auto dealership has its own free exercise rights, the complaint alleges:

Holland Chevrolet, as a cognizable legal person, embraces and conducts itself in accordance with the same religious principles that animate its president, chairman of the board, and principal stockholder. In Mr. Holland's view, his right to free exercise of religion should not be limited by the form in which he elects to do business.