Recent Articles of Interest

From SSRN:

• John D. Moore, The First Amendment Case for Corporate Religious Rights, (16 Nev. L.J. 1 (2015)).
• Micah Schwartzman, Chad Flanders & Zoe Robinson, The Rise of Corporate Religious Liberty, (Virginia Public Law and Legal Theory Research Paper No. 14 (Feb. 2016)).
• Howard Kislowicz, Developments in Religious Freedom: What Saguenay and Loyola Tell Us -- and Don't -- About the Trinity Western University Law School Cases, ((2016) 72 S.C.L.R. (2d) 75-95).
• Mark Hill QC, Reasonable Accommodation: Faith and Judgment, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2016/07, Feb. 2016).
• Ronan McCrea, Rights, Recourse to the Courts and the Relationship between Religion, Law and State in Europe and the United States, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2016/09, Feb. 2016).
• Jonathan Backer, Thou Shalt Not Electioneer: Religious Nonprofit Political Activity and the Threat 'God PACs' Pose to Democracy and Religion, (114 Mich. L. Rev. 619 (2016)).
• Chad Flanders, Insubstantial Burdens, (June 2015).

From SSRN (Islamic Law):

• Sardar M. A. Waqar Khan Arif, The Legal System of Sultans of Delhi: An Overview, (January 28, 2016).
• Sardar M. A. Waqar Khan Arif, Contractual Stipulations in Muslim Marriage Contract with Reference to Classic Islamic Law and the Case Study of USA,(January 27, 2016).

From SSRN (Same-sex marriage):

• Rodgrick Hickman, Will Love Win Again: When Religious Organizations, Government Subsidies, Adoption and the Establishment Clause Collide?,(February 4, 2016).
• Barbara J. Cox, From One Town's 'Alternative Families' Ordinance to Marriage Equality Nationwide, (California Western Law Review, Vol. 52, 2015).
• Charles E. Colman, About Ned, (129 Harv. L. Rev. F. 128 (2016)).

From SmartCILP:

• Eric Rassbach, Are Houses of Worship "House[s]" Under the Third Amendment?, [Abstract], 82 Tennessee Law Review 611-626 (2015).
• Elizabeth Sepper, Free Exercise Lochnerism, 115 Columbia Law Review 1453-1519 (2015).

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.

NY Appeals Court Upholds Penalty On Wedding Venue That Refused To Host Same-Sex Ceremony

In Matter of Gifford v. McCarthy, (NY App. Div., Jan. 14, 2016), a New York state intermediate appellate court upheld a decision by the State Division of Human Rights imposing compensatory damages of $3000 and a civil fine of $10,000 on a for-profit wedding venue for refusing to host a same-sex marriage ceremony.  Liberty Ridge Farm rents space for, among other things, religious and secular wedding ceremonies and receptions.  One of the farm's owners told Melissa McCarthy that the farm did not host same-sex marriage ceremonies, though apparently it would have been willing to host the reception.  The court held that Liberty Ridge's wedding facilities are a "place of public accommodation" under the NY Human Rights Law and that discrimination against same-sex weddings is discrimination on the basis of sexual orientation.

The court went on to reject respondents federal and state free exercise claims, as well as their First Amendment compelled speech and expressive association defenses. It found the Human Rights Law to be a neutral law of general applicability.  The New York state constitution's free exercise clause requires a balancing of interests.  The court said:

While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination....  Balancing these competing interests, we conclude that petitioners failed to show that SDHR's determination constituted an unreasonable interference with the Giffords' religious freedom.

Rejecting respondents' First Amendment compelled speech argument, the court said:

Here, SDHR's determination does not compel the Giffords to endorse, espouse or promote same-sex marriages, nor does it require them to recite or display any message at all. The Giffords remain free to express whatever views they may have on the issue of same-sex marriage. The determination simply requires them to abide by the law and offer the same goods and services to same-sex couples that they offer to other couples. Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage.

The Blaze reports on the decision.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe, Religion and Social Coherentism, (Notre Dame Law Review, Vol. 91, No. 363, 2015).
• Julie A. Nice, Conjuring 'Equal Dignity': Mapping the Constitutional Dialogue to and from Same-Sex Marriage, (31 Civil Rights Litigation Handbook 373 (Steven Saltzman ed. 2015)).
• Laura M. Weinrib, Freedom of Conscience in War Time: World War I and the Civil Liberties Path Not Taken, (Emory Law Journal, Vol. 65, No. 4, Forthcoming).
• Simone Chriss & Danaya C. Wright, After Obergefell v. Hodges: The Continuing Battle Over Equal Rights for Sexual Minorities in the United States, (GenIUS, December 2015, at 18).
• Philip T. Hackney, Charitable Organization Oversight: Rules v. Standards, (Pittsburgh Tax Review, Forthcoming).
• Alan D. Viard, The Basic Economics of Pease and PEP, (Tax Notes, Vol. 146, No. 6, 2015).

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

• Shauna Van Praagh, 'Open House' - 'Portes Ouvertes': Classrooms as Sites of Interfaith Interface, (B. Berger and R. Moon, eds., Religion and the Exercise of Public Authority (forthcoming, 2016, Hart Publishing)).
• David Schneiderman, Multiculturalism in Canadian Constitutional Culture: Domesticating Difference, (January 4, 2016).
• Bina D'Costa, 'You Cannot Hold Two Watermelons in One Hand': Gender Justice and Anti-State Local Security Institutions in Pakistan and Afghanistan, (In Hitoshi Nasu and Kim Rubenstein (eds) Legal Perspectives on Security Institutions, Cambridge: Cambridge University Press (2015), pp. 47-72).
• Sean Davidson, Necessary Questions in Free Religion Cases: Application of 'General Applicability' to the French Veil Case, (Charles University in Prague Faculty of Law Research Paper No. 2015/III/2).
• András Koltay, Privacy in Public Places – Celebrities, Suicides, Outsiders, Naked Men and Muslim Veils on the Street, (January 6, 2016).
• Maria Gloria Polimeno, The 2014 Egyptian Constitution: Balancing Leadership with Civil Rights (Al-Wataniyya), (Electronic Journal of Islamic and Middle Eastern Law. Vol. 3 issue 1 p. 1-67 (2015)).
• Mohammad Fadel, Islamic Law and Constitution-Making: The Authoritarian Temptation and the Arab Spring, (Osgoode Legal Studies Research Paper No. 24/2015).

From SmartCILP:

• Journal of Law & Religion, Vol. 30, No. 2 (June 2015) has recently appeared.

First Same-Sex Marriage Case In China Moves Forward

In China's Hunan Province, a court has accepted jurisdiction for the first time in a case seeking to legalize same-sex marriage in the country.  According to a Reuters report yesterday, plaintiff Sun Wenlin says that last June an official in the Furong district civil affairs bureau rejected his application to marry his same-sex partner. Wenlin argues that China's marriage law protects the freedom to marry and provides for gender equality.

Alabama Chief Justice Tells Probate Judges To Continue Refusing To Issue Same-Sex Marriage Licenses

Alabama Chief Justice Roy Moore is once again seeking to defy federal courts on the issue of same-sex marriage. (See prior posting.)  In March 2015, the Alabama Supreme Court in the Alabama Policy Institute ("API")  case ordered probate judges in the state to discontinue issuing marriage licenses to same-sex couples despite federal district court orders already holding Alabama's ban on same-sex marriage unconstitutional. (See prior posting.)  Of course, in June 2015, the U.S. Supreme Court handed down the Obergefell decision, finding bans on same-sex marriage in Ohio, Tennessee, Michigan and Kentucky unconstitutional.  Three days later, the Alabama Supreme Court invited parties in the API case to file briefs addressing the effect of the Obergefell decision on the Alabama order in API.  Subsequently two probate court judges petitioned the Alabama Supreme Court for orders protecting their refusals to issue same-sex marriage licenses.  All of these matters remain pending before the Alabama Supreme Court.

Today, Alabama Supreme Court Chief Justice Roy Moore issued an Administrative Order (full text) addressing what he described as the "confusion and uncertainty" that exists among Alabama probate judges.  He says that "an elementary principle of federal jurisdiction [is that] a judgment only binds the parties to the case before the court," suggesting that technically Obergefell  is not binding on Alabama judges.  He went on:

As Administrative Head of the Unified Judicial System of Alabama, authorized and empowered pursuant to Section 12-2-30(b)(7), Ala. Code 1975, to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state," and under Section 12-2-30(b)(8), Ala. Code 1975, to "take any such other, further or additional action as may be necessary for the orderly administration of justice within the state, whether or not enumerated in this section or elsewhere"...

IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.

AL.com reports on today's order.

Suit Challenges Requirement of Marriage License For Religious Ceremony

While it might seem that the Supreme Court's Obergefell decision last June mooted the many pending cases seeking to make inroads into now invalid bans on same-sex marriage, the Detroit News reported yesterday on a lawsuit that shows this is not universally so.  A year ago, Detroit minister Neil Patrick Carrick filed a lawsuit in Michigan federal district court challenging two Michigan statutes which at that time effectively fined clergy for performing same-sex marriages. (See prior posting.) MCL Sec. 551.14  imposes a $500 penalty on any member of the clergy or other person who "knowingly joins any persons in marriage" in violation of Michigan law. MCL Sec. 551.106 provides that : "Any clergyman or magistrate who shall join together in marriage parties who have not delivered to him a properly issued license ... shall be adjudged guilty of a misdemeanor" and fined $100 or sentenced to 90 days in jail.

The complaint (full text) in Carrick v. Snyder, (ED MI, filed 1/12/2015). alleged that these provisions violate the 1st Amendment free exercise and expressive association rights of clergy whose faith and religious beliefs allow them to perform marriages that are not authorized by civil law.  In May 2015, the district court entered an order holding the case in abeyance as the Supreme Court considered the issue of same-sex marriage.  In September, after the Supreme Court's Obergefell decision, the district court reactivated the case (Order lifting stay).  While the challenged statutory provisions no longer totally bar same-sex marriages, they still threaten clergy with fines if they "join in marriage" a couple that has not obtained a marriage license.  On December 8, the district court, seeking to avoid the constitutional question, issued an Order (full text) calling for additional briefing on whether these penalties under state law apply to "purely private ceremonies that are not intended to give legal effect to a marriage."

Plaintiff's attorney pointed out the importance of the issue to "elderly or widowed couples who want to marry, but are afraid they will lose their Social Security benefits if they are legally wed."

Happy New Year 2016 !

Dear Religion Clause Readers:

Happy New Year 2016!  It is difficult to believe that I have been blogging on Religion Clause for over ten years, and have posted over 18,000 stories.  As I have been reminded, this means that for those who rely on Religion Clause as a resource, there are many who do not remember the time when there was not a central source for keeping current on church-state and religious liberty developments.

Last year was important.  Issues surrounding same-sex marriage and responses to it riveted the attention of much of the U.S. population.  The challenge by religious non-profits to the Obamacare regulations on contraceptive coverage brought to the fore the question of whether courts must give complete deference to assertions by individuals and groups that their religious exercise has been substantially burdened.  The Supreme Court gave unusual attention to civil rights claims by prisoners, including their religious freedom claims.  Increasing concern about ISIS-inspired terrorism tempted some-- including some seeking the highest office in the land-- to question whether America's traditional welcome to all religious believers (and non-believers) is as firmly established as we had once believed.

Religion Clause has attempted to provide the raw materials-- as objectively as possible-- so that readers can make informed judgments on the difficult policy decisions facing us.  And I have continued to cover parallel issues arising outside the United States in order to give additional perspective.

2016 promises to be an equally challenging year.  Many of the high profile issues of last year will remain with us.  In addition there will likely be some new ones.  How will religion factor into the Presidential race?  What are the implications of establishment clause and free exercise clashes being increasingly handled by well-funded advocacy groups that are repeat players before the courts, legislatures and local government officials?  Will transgender rights be the next battle in the culture wars that will become a religious as well as a civil rights issue?

And then there is often a "sleeper"-- an issue that becomes unexpectedly dominant.  My nomination for that in 2016 is the question of whether the retirement plans of many religiously-affiliated healthcare organizations will, as the 3rd Circuit recently held, be found not to qualify for the "church plan" exemption from ERISA on which they have relied.  Many of these plans will be underfunded by tens or hundreds of millions of dollars if they are required to comply with ERISA.  What kind of financial risk will that pose to them?  Many of these healthcare organizations have complicated relationships with a diocese or other church body of their denomination.  Will liability for underfunding, or for non-compliance with other ERISA requirements, jeopardize assets of the affiliated church bodies?

As we enter 2016, I want to again thank all of you who read Religion Clause-- both long-time followers and those who have discovered the blog more recently. Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has produced a loyal readership.  Often Religion Clause carries a story well before mainstream media feature it. The world of social media continues to evolve.  Increasing numbers of readers follow Religion Clause on Twitter or Facebook, and perhaps in other ways as well.  Meanwhile, the ability to comment on postings, while available, apparently has little attraction to readers-- other than the occasional spammer who evades my anti-spam efforts.  I am always eager to receive suggestions of other formats that would be useful.

And thanks to all of you who send me leads or corrections. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and comments and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want to be mentioned, I will be happy to honor that request if you let me know when sending me information.

I continue to be pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, and others working professionally dealing with church-state relations and religious liberty concerns.  I encourage you to recommend Religion Clause to colleagues and friends who might find it of interest.

Finally, I remind you that the Religion Clause sidebar contains links to a wealth of resources.  If you find broken links on the sidebar, please let me know.

Best wishes for 2016!  Feel free to contact me by e-mail (religionclause@gmail.com) or through comments to this or other posts throughout the year.

Howard M. Friedman

Top Ten Religious Liberty and Church-State Developments of 2015

Each year in December I attempt to pick the most important church-state and religious liberty developments of the past year.  This year was rich with possibilities, and some of my picks actually arose in a broader context but have will have an important impact on religious liberty claims or church-state challenges.  So here are my Top Ten picks.  I welcome readers' comments since I am sure that not everyone will agree with all the choices.

1. In Obergefell v. Hodges, the U.S. Supreme Court holds that the Constitution requires marriage equality, striking down state laws that bar same-sex marriages.
   
   
2. The battle continues over the adequacy of the Obama administration's accommodation for religious non-profits that object to the Affordable Care Act contraceptive coverage mandate. The U.S. Supreme Court will decide the issue this term after granting certiorari in seven cases.
   
   
3. Some states expand RFRA laws to protect objectors to same-sex marriage. Indiana's law provokes particular controversy forcing the legislature to backtrack. Meanwhile around the country some Christian-owned businesses continue to refuse to provide services they see as furthering same sex marriage or LGBT rights, while Kentucky county clerk Kim Davis garners national attention for her refusal to issue same-sex marriage licenses.
   
   
4. The U.S. Supreme Court becomes active on prisoners' rights issues, including claims for religious accommodation by inmates.  The Supreme Court gives RLUIPA a broad interpretation in Holt v. Hobbs.  It also interprets the "three strikes" provision that limits indigent prisoner litigation; hears oral arguments in a case on maximum fee payments by indigent prisoners litigating multiple cases; and grants certiorari on a question of exhausting administrative remedies before suing.
   
   
5. The rise of ISIL creates questions about the proper label to apply to the struggle against jihadists.  The dispute centers over the use of terminology such as "the war against radical Islam" that could be misinterpreted to suggest the U.S. is broadly at war with all Muslims.
   
   
6. The Supreme Court interprets the elements of Title VII employment discrimination claims (including claims for accommodation of religious practices) in Abercrombie & Fitch (employer motives) and Mach Mining (EEOC conciliation requirement).
   
   
7. The expression of virulent anti-Muslim sentiment raises free speech and anti-discrimination issues in cases involving anti-Muslim bus ads and a business seeking to create a "Muslim free zone."
   
   
8. The EEOC rules that discrimination on basis of sexual orientation is barred by the "sex discrimination" ban in Title VII of the 1964 Civil Rights Act.
   
   
9. The Supreme Court holds that specialty license plates  are government speech, thus impacting the many cases on license plates with religious themes or symbols.
   
   
10. The successful referendum to overturn Houston's Equal Rights Ordinance positions the battle over transgender rights as next struggle between conservative religious groups and civil rights advocates.

Kentucky's New Governor Eliminates County Clerks' Names From Marriage License Forms

Kentucky's new Republican governor, Matt Bevin, fulfilled a campaign promise yesterday (press release) by issuing Executive Order 2015-048 instructing the Kentucky Department for Libraries and Archives to distribute to all County Clerks a marriage license form that no longer includes the name of the County Clerk on it. Instead the form merely calls for the name and title of the issuing official-- who might be a deputy clerk.  The change was in response to the widely-followed resistance of Rowan County Clerk Kim Davis who refused on religious grounds to allow her office to authorize same-sex marriage licenses. (See prior posting.) In a press release, Liberty Counsel call the new form "a clear, simple accommodation on behalf of Kim Davis and all Kentucky clerks."

Slovenia Rejects Same-Sex Marriage In Referendum

In a referendum in the central European nation of Slovenia yesterday, voters by a margin of 63% to 37% rejected same-sex marriage.  Politco reports that the overall voter turnout for the referendum was only 35.6%.  This defeat of a bill passed by Parliament last March returns the country to its old rules that allow civil partnership but not adoption of children by same-sex couples. [Thanks to Paul de Mello for the lead.]

Catholic School Violates Mass. Law By Refusing To Hire Applicant Who Is In A Same-Sex Marriage

In Barrett v. Fontbonne Academy, (MA Super. Ct., Dec. 16, 2015), a Massachusetts state trial court held that a Catholic women's preparatory school unlawfully discriminated on the basis of sexual orientation and gender in violation of 21 MGL Chap. 151B when it withdrew an offer of employment as Food Services Director to Matthew Barrett after it discovered he was a spouse in a same-sex marriage.  The school said that same-sex marriage is inconsistent with the teachings of the Catholic Church.  In finding a statutory violation, the court rejected the school's argument that it came within the statutory exemption for religious organizations in Sec. 1(5) of the statute, because that exemption is limited to organizations that limit membership, enrollment, admission, or participation to members of the same religion. The court held that this limitation takes precedence over seemingly broader exemptive language for religious organizations in Sec. 4(18).  It also held that imposing these anti-discrimination provisions on the school did not violate the school's right of expressive association.  Finally the court rejected the school's reliance on the "ministerial exception" doctrine, concluding that Barrett would not be considered a minister "under any version of this doctrine." The Advocate reports on the decision.

Suit Challenges Non-Discrimination Fix To Indiana's RFRA ; Local Anti-Discrimination Laws

In Indiana yesterday, two pro-family advocacy groups filed suit in state court challenging the constitutionality of this year's anti-discrimination "fix" to Indiana's Religious Freedom Restoration Act.  The suit also challenges the legality of two local anti-discrimination ordinances-- one adopted by the city of Carmel and one by Indianapolis-Marion County.  The 178-paragraph complaint (full text) in Indiana Family Institute, Inc. v. City of Carmel, Indiana, (IN Super. Ct., filed 12/10/2015), says that plaintiff organizations believe in the Biblical teaching that marriage must be between one man and one woman, and that sexual relations must be within that marriage context.  They want to follow these teachings in their employment decisions and their programs.  They contend that the challenged laws preclude this, and in doing so violate a variety of state and federal constitutional provisions.  In a press release announcing the filing of the lawsuit, plaintiffs' attorneys said in part:

RFRA originally protected all religious viewpoints and insured a high level of protection for peoples' free exercise of religion.  The 'fix,' however, stripped that protection based on a person's particular religious view, such as, opposition to same-sex marriage.  This pits some religions that the government protects against other religions that will suffer government punishment if they don't fall in line.  We believe this discrimination between religious views is unconstitutional...

Indianapolis Star reports on the lawsuit.

UPDATE: In January 2016 plaintiffs filed an amended complaint adding Bloomington and Columbus, Indiana as defendants.

Suit Challenges North Carolina Law Allowing Officials To Opt Out of Same-Sex Marriage Duties

As previously reported, last June the North Carolina General Assembly overrode the governor's veto to pass to pass Senate Bill 2 that gives individual magistrates have the right to recuse themselves from performing marriages based on any sincerely held religious belief and gives individual register of deeds personnel the right to opt out of issuing marriage licenses on similar grounds. (See prior related posting.) Yesterday three couples filed suit in federal district court challenging the constitutionality of the new law.  One of the couples is already in a same-sex marriage; a second same-sex couple acting as plaintiffs are engaged to be married; and the third are a blind, heterosexual interracial couple who in 1976 had to sue in order to marry because two North Carolina magistrates refused to perform the ceremony on religious grounds.

The complaint (full text) in Ansley v. State of North Carolina, (WD NC, filed 12/9/2015) contends that Senate Bill 2 violates the Establishment Clause, the Equal Protection Clause, and the Due Process Clause.  WNCN News reports on the filing of the lawsuit.  Rev. Mark Creech of the Christian Action League called the lawsuit "an effort by gay activism to run people of faith completely out of the public sector."  On the other side, Rev. Jamine Beach-Ferrara of the Campaign for Southern Equality argued that the bill "distorts the true meaning of religious freedom."

Another County Clerk's Religious Response To Issuing Same-Sex Marriage Licenses

The latest kerfuffle over marriage equality has surfaced in Kiowa, Colorado where the Ebert County Clerk-- responsible for marriage licenses-- has hung a controversial poster above the desks where marriage licenses are issued. According to Denver7 News, the poster, made specifically in response to the legalization of same-sex marriage, shows a bride and groom along with a Biblical quotation (I Corinthians 7:2) reading "...each man should have his own wife and each woman her own husband."  County Clerk Dallas Schroeder explained in an e-mail to other county clerks:

My thought process is that they [same-sex couples] have to see the poster, and if they choose to violate God’s written Word, then that is on their head.

Restrictions On Anti-Gay Marriage Protester Upheld

In Braun v. Terry, (ED WI, Nov. 30, 2015), a Wisconsin federal district court rejected claims by an anti-gay marriage protester that his free speech, equal protection and due process rights were infringed when authorities restricted the area in which he could carry his signs.  The events at issue occurred on the first day that same-sex marriage licenses were issued and marriages were conducted at the Milwaukee County Courthouse.  Plaintiff complains that he was not permitted to enter the courthouse to protest, and that the area in the park outside the courthouse where he could protest was restricted. The court found the restrictions imposed reasonable, non-discriminatory and narrowly tailored.

Recent Articles and Books of Interest

From SSRN:

• Prakash Shah, Does Durkheim Enhance Our Understanding of Law and Religion?, (Queen Mary School of Law Legal Studies Research Paper No. 212/2015, Nov. 2015).
• Jeffrey M. Hirsch, EEOC v. Abercrombie & Fitch Stores, Inc.: Mistakes, Same-Sex Marriage, and Unintended Consequences, (Texas Law Review, Vol. 94, 2015, Forthcoming).
• Nicholas Aroney, Faith in Public Office: The Meaning, Persistence and Importance of Oaths, (November 23, 2015).
• Lucia Ann Silecchia, Pope Francis and the Vocation of the Lawyer: Reflections on Service and Responsibility, (54 J. of Cath. Legal Stud. 23 (2015)).
• Lewis A. Grossman, Orthodoxy and 'The Other Man's Doxy': Medical Licensing and Medical Freedom in the Gilded Age, (November 19, 2015).
• Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, (Yale Journal of Law & Feminism, Vol. 28:1, 2016).
• Cynthia Godsoe, Marriage Equality and the 'New' Maternalism, (California Law Review Circuit, Vol. 6, No. 145, 2015).
• Jay P. Greene & Cari A. Bogulski, The Effect of Public and Private Schooling on Anti-Semitism, (EDRE Working Paper No. 2015-10, Nov. 2015).
• Abdul Azeez Maruf Olayemi, et. al., Islamic Interbank Money Market: A Comparative Legal Study between Malaysia And Some Notable Jurisdictions, (2015 1 SHR, SHARIAH REPORT, A Journal of Islamic Law, Banking & Finance, Malaysian Current Law Journal (MCLJ)).
• Eric C. Chaffee, Collaboration Theory: A Theory of the Charitable Tax Exempt Nonprofit Corporation, (November 22, 2015).
• UPDATE: Netta Barak Corren, Does Anti-Discrimination Law Influence Religious Behavior?, (Hastings Law Journal, Forthcoming).

Recent Books:

• William Lazarus (with Sid Kleiner), Passover In Prison, (CreateSpace, July 2015).
• Saba Mahmood, Religious Difference in a Secular Age: A Minority Report, (Princeton Univ. Press, Nov. 2015).
• Katherine Franke, Wedlocked: The Perils of Marriage Equality, (NYU Press, Nov. 2015).
• William A. Schabas, The European Convention on Human Rights-- A Commentary, (Oxford Univ. Press, Nov. 2015).

Kim Davis' Case Continues to Defy Finality

The controversy surrounding Rowan County, Kentucky, Clerk Kim Davis' refusal to issue marriage license to same-sex couples is not over.  As previously reported, after being released from custody on contempt charges, Davis allowed others in her office to issue licenses, but only with revised wording. On Nov. 13, outgoing Governor Steven Beshear filed a response (full text) with the federal district court that had held Davis in contempt stating that:

those altered licenses are not fully consistent with Kentucky statute, but such deviations do not render the marriages ineffective.  Thus, the Third-Party Defendants have and will continue  to  recognize  as  valid  those  marriages  solemnized  pursuant  to  the  altered licenses for purposes of the governmental rights, benefits, and responsibilities conveyed by the Executive Branch agencies over which Governor Beshear exercises supervisory control.

This led the ACLU to file a motion (full text) on Nov. 20 urging to court to require licenses to be issued in their original unaltered form, stating:

As Governor Beshear has now recognized, Davis’ actions have created considerable uncertainty regarding the legality of the altered marriage licenses.  They impose significant and ongoing harm on Rowan County couples who are legally eligible to marry but now face doubt and fear that a marriage solemnized pursuant to an altered marriage license could be held invalid at some unknown time in the future. And Davis’ actions effectively brand the altered licenses with a stamp of animus against gay people. This Court can and should eliminate the uncertainty and harm by enforcing its prior orders....

Meanwhile, accordidng to the Nov. 6 International Business Times, Republican Kentucky Gov.-elect Matt Bevin says that when he is sworn in on Dec. 8, he will issue an executive order removing county clerks' names from state marriage licenses, hoping that this will resolve the problem.

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.]

Recent Articles of Interest

From SSRN:

• Lotem Perry-Hazan, Curricular Choices of Ultra-Orthodox Jewish Communities: Translating International Human Rights Law to Education Policy, (Oxford Review of Education, Forthcoming).
• Mark Strasser, The Protection of Conscience: On ACA, RFRA and Free Exercise Guarantees, (82 Tennessee Law Review 345-404 (2015)).
• Jill I. Goldenziel, The Curse of the Nation-State: Refugees, Migration, and Security in International Law, (Arizona State Law Journal, 2016).
• Harry G. Hutchison, Religious Liberty for Employers as Corporations, Natural Persons or Mythical Beings? A Reply to Gans, (Penn State Law Review, Vol. 120, 2015, Forthcoming).
• Barry Sullivan, Access to Information: Citizenship, Representative Democracy, and Catholic Social Thought, (From Democracy, Culture, Catholicism: Voices from Four Continents (Fordham University Press 2015)).
• Khaled A. Beydoun, Between Indigence, Islamophobia, and Erasure: Poor and Muslim in 'War on Terror' America, (104 California Law Review ___ (2016 Forthcoming)).
• Richard J. Ross, Binding in Conscience: Early Modern English Protestants and Spanish Thomists on Law and the Fate of the Soul, (Law and History Review 33(4) (November 2015): 803-37).
• Partners for Law in Development, Piecing Together Perspectives on Witch Hunting: A Review of Literature, (2013).
• Ian Murray, The Australian Charities and Not-for-Profits Commission: Reform or Un-Reform?, (2014) 17 Charity Law and Practice Review 151

From SSRN (Obergefell decision):

• Carlos A. Ball, Bigotry and Same-Sex Marriage, (University of Missouri-Kansas City Law Review, Vol. 84, No. 3, 2016).
• Laurence H. Tribe, Equal Dignity: Speaking its Name, (Harvard Law Review Forum, Vol. 129, pp. 16-32, 2015).
• Nan D. Hunter, Interpreting Liberty and Equality Through the Lens of Marriage, (6 Cal. L. Rev. Circuit 107 (2015)).
• Cynthia Godsoe, Perfect Plaintiffs, Yale Law Journal Forum, Vol. 125, No. 136, 2015.
• Carl H. Esbeck, A Post-Obergefell America: Is a Season of Legal and Civic Strife Inevitable?, (University of Missouri School of Law Legal Studies Research Paper No. 2015-24).

From SSRN (Islamic law):

• Michael J. T. McMillen, The Arcapita Group Bankruptcy: A Restructuring Case Study, (Global Trends in Islamic Commercial Law: International Shari'ah Research Academy for Islamic Finance and Thomson Reuters Report, 2015).
• Yusuf Roque Santos Morales, A Community Development Framework Based on the Maqasid Shariah and the Millenium Development Goals, (June 4, 2015).

From SmartCILP:

• John D. Haskell & Jessica Fish, Law As Eschatology, 53 Journal of Catholic Legal Studies 185-209 (2014).
• John O. Hayward, The Free Exercise Clause: Fealty to God or Caesar?, 53 Journal of Catholic Legal Studies 211-252 (2014).