Recent Articles and Book of Interest

From SSRN:

• Daniel Hay, Baptizing O’Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct, (Vanderbilt Law Review, Vol. 68, No. 1, 2015).
• Alycia Michelle Wilson, Witches and Guns: The Intersection between Wicca and the Second Amendment, (February 4, 2015).
• Michael Schearer, God, Inc.: Hobby Lobby and Religious Freedom, (January 15, 2015).
• Aaron R. Petty, Accommodating 'Religion', (Tennessee Law Review, Forthcoming).
• Mohammad Fadel, Religious Law, Family Law and Arbitration: Shari'a and Halakha in America, (Chicago-Kent Law Review, Vol. 90, No. 1, 2015).
• Marie Ashe, Hosanna-Tabor, the Ministerial Exemption, and Losses of Equality: Constitutional Law and Religious Privilege in the US, (2 Oxford Journal of Law and Religion (2015)).
• Adam Lamparello, Why Chief Justice Roy Moore and the Alabama Supreme Court Just Made the Case for Same-Sex Marriage, (March 13, 2015).
• Andrew Koppelman & Ilya Somin, Amicus Brief in Obergefell v. Hodges, (Northwestern Public Law Research Paper No. 15-12). 

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

• Roberta Rosenthal Kwall, Living Gardens, Living Art, and Living Tradition, (5 IP Theory Journal 73 (2015)).
• Mark Walters, Succession to the Throne and the Architecture of the Constitution of Canada, (Queen's University Legal Research Paper No. 2015-001 (2014)).
• Lorenzo Zucca, A Secular Manifesto for Europe, (March 5, 2015).
• Anuradha Chadha, A Case for Reservation in Favour of Religious Minorities,(March 6, 2015).
• Mariano Croce, Secularization, Legal Pluralism, and the Question of Relationship-Recognition Regimes, (The European Legacy 20(2) (2015): 151–165).
• Marie Ashe & Anissa Helie, Realities of Religio-Legalism: Religious Courts and Women's Rights in Canada, the United Kingdom, and the United States, (20 U.Cal.-Davis J. International Law & Policy 139 (Spring 2014)).
• Muhammad Munir, Mechanisms for Child Protection with Focus on Child Custody: Islamic Law and Case Studies of Pakistan and Jordan, (March 8, 2015).
• Frank S. Ravitch, The Japanese Prime Minister's Visits to the Yasukuni Shrine Analyzed Under Articles 20 and 89 of the Japanese Constitution, (Michigan State University College of Law Journal of International Law, Vol. 22, No. 3, 2014).
• Tomas Berkmanas, Natural Law and Political Ontology: A Historico-Philosophical Outline of a Major Human Transformation, (Baltic Journal of Law & Politics 7:2 (2014): 119-151).

From SmartCILP:

• Moamen Gouda & Dawood I. Ahmed, Measuring Constitutional Islamization: the Islamic Constitutions Index, 38 Hastings International & Comparative Law Review 1-74 (2015).
• Sonja R. West, First Amendment Neighbors, 66 Alabama Law Review 357-374 (2014).

Recent Book:

• Carol Weisbrod, Kites and the Sabbath: Legal Transplants and Pluralism in Hawaii, (Vanderplas Publishing, Oct. 2014).

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

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

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

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

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

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

Britain's Equality Commission Reports On Religion In the Workplace and Service Delivery

Yesterday Britain's Equality and Human Rights Commission released a report on its Consultation launched last year seeking evidence on religious discrimination and accommodation in Britain. The 218-page report, titled Religion or Belief in the Workplace and Service Delivery, reports on information received from nearly 2500 individuals and organizations. Here is an excerpt from the Commission's summary of key findings:

Some employees or service users stated that they had experienced no or few negative issues in their workplace or in receiving a service which they attributed to the view of employers or service providers that religion or belief was a private matter and should not be discussed in the workplace or the service.

Some employees and students stated that they had encountered hostile and unwelcoming environments.... The issues raised concerned the recruitment process, working conditions, including the wearing of religious clothing or symbols, promotion and progression, and time off work for religious holidays and holy days. Some reported that particular beliefs were mocked or dismissed in the workplace or classroom, or criticised unwelcome 'preaching' or proselytising, or the expression of hurtful or derogatory remarks aimed at particular groups....

Many participants were concerned about the right balance between the freedom to express religious views and the right of others to be free from discrimination or harassment. Specific issues raised included conscientious objection in relation to marriage of same sex couples and how to protect employees from harassment and discrimination by staff, customers or service users with a religion. There was a marked divergence of opinion about when it was desirable and appropriate to discuss religious beliefs with service users during the delivery of a service.

The Commission's press release on the report emphasized some of the concerns expressed by respondents. The report is discussed further at Law & Religion UK blog.

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

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

District Court Invalidates Nebraska Bans on Same-Sex Marriages

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Thanks to Mirror of Justice for the lead.]

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

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

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

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

Texas Probate Court Holds Same-Sex Marriage Ban Unconstitutional

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

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

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

Federal District Court Orders Alabama County To Resume Issuing Marriage Licenses

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

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

Interposition Ordered By Alabama Chief Justice On Same-Sex Marriage

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

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

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

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

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

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

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

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

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

Supreme Court Denies Stay Of Alabama Same-Sex Marriage Decision

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

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

Reuters reports on the Court's action.

New Poll Shows Americans Favor Same-Sex Marriages, But Want To Protect Religious Objectors

Yesterday AP-GfK announced the release of their latest poll (full poll results) which asks respondents about their views on same-sex marriage and abortion rights. In the poll, 35% favor same-sex marriage, while 31% oppose. Respondents are divided 48% to 48% on how the Supreme Court should rule in its pending same-sex marriage cases. By 50% to 46%, respondents favor religious exemptions to the requirement to issue same-sex marriage licences for officials who object to doing so.  By 57% to 39%, respondents favor exemptions for wedding related businesses who object to providing services for same-sex couples. Finally poll showed a 51% to 45% margin favoring legalized abortion in most or all cases.

Alabama Asks Supreme Court For Stay of Same-Sex Marriage Injunction

As reported by Jurist, Tuesday the U.S. 11th Circuit Court of Appeals refused to grant a stay beyond the current Feb. 9 effective date of a district court order in Searcy v. Strange invalidating Alabama's bans on same-sex marriage. (See prior posting.)  The state immediately filed an application for a stay of the injunction (full text) with Supreme Court Justice Clarence Thomas, who has the option of ruling on the application himself or referring it to the full court. SCOTUSblog also reports on developments.

Alabama Same-Sex Marriage Developments: A Second Decision and Defiance

As previously reported, on Jan. 23 an Alabama federal district court invalidated Alabama statutory and constitutional provisions that bar recognition of same-sex marriages. The court however imposed a 14-day stay on its order to allow an appeal. (See prior posting),  Three days later, the same judge decided a second case, Strawser v. Strange, (SD AL, Jan. 26, 2015), reaching the same result, this time in a suit by plaintiffs seeking to marry in Alabama, rather than have their out-of-state marriage recognized in the state. The court again granted a 14-day stay to give an opportunity for an appeal.

Meanwhile, on Jan. 27 Alabama Supreme Court Chief Justice Roy Moore sent a letter to the state's governor urging defiance of the federal court's decisions. In his letter (full text) to Gov. Robert Bentley, Moore said in part:

I am dismayed by those judges in our state who have stated they will recognize and unilaterally enforce a federal court decision which does not bind them.  I would advise them that the issuance of such licenses would be in defiance of the laws and Constitution of Alabama.  Moreover, I note that "United States district court decisions are not controlling authority in this Court."...  As Chief Justice of the Alabama Supreme Court, I will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment.

... Be advised that I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority.

According to AL.com, the governor issued a statement after the release of Moore's letter, saying in part:

The people of Alabama voted in a constitutional amendment to define marriage as being between man and woman. As governor, I must uphold the Constitution. I am disappointed in Friday's ruling, and I will continue to oppose this ruling. The Federal government must not infringe on the rights of states.

In 2003, Roy Moore ,in his first term as Alabama Chief Justice, gained national attention by his fight against removal of a large Ten Commandments monument that he had place in the Alabama Judicial Building.

District Court Invalidates Alabama Same-Sex Marriage Bans

In Searcy v. Strange, (SD AL, Jan. 23, 2015), an Alabama federal district court invalidated Alabama statutory and constitutonal provisions that bar same-sex marriage.  The court found that the provisions are unconstitutional under the 14th Amendment's Due Process and Equal Protection clauses.  This makes Alabama the 37th state in which same-sex marriage is legal.  According to the Christian Science Monitor, Alabama's Attorney General has filed a motion asking the court to stay its ruling until the U.S. Supreme Court decides cases it has agreed to review on same-sex marraige.

UPDATE: In an opinion (full text) issued on Jan. 25, the district court denied an indefinite stay of its ruling, but granted a 14-day stay so the 11th Circuit can decide if a further stay is warranted. The court also said that before the expiration of its 14-day stay, it will issue an additional order addressing plaintiffs' request for a clarification of its injunction order.

Proposed Oklahoma Bill Would Eliminate Marriage Licenses

Oklahoma State Representative Todd Russ has introduced a bill into the Oklahoma legislature that would create a unique response to federal decisions requiring the issuance of marriage licenses to same-sex couples.  As reported by KSWO News, his bill would do away with marriage licenses.  Instead, under HB 1125 couples may be married in a religious ceremony, after which the member of the clergy performing the ceremony would file a "certificate of marriage" with the clerk of court.  Individuals who do not want to be married in a religious ceremony could file an "affidavit of common law marriage" with the clerk of court. Under the bill, judges would no longer be able to perform marriage ceremonies. The bill retains current language limiting marriage to opposite-sex couples, even though the 10th Circuit has invalidated that limitation. (See prior posting.)  Rep. Russ sees the bill as restoring marriage "to what it was supposed to be and was originally a holy matrimony and a very solemn and spiritual vow."  Any progress of the bill through the legislature may be followed here.

Civil Rights Complaint With A Twist-- Baker Refuses To Add Anti-Gay Message To Cake

AP today reports on a complaint filed with the Colorado Civil Rights Division against bakery owner Marjorie Silva by a customer who wanted her to create a cake with an anti-gay marriage message on it.  Silva agreed to bake a Bible-shaped cake for customer Bill Jack, but refused his request to put hateful anti-gay words on the cake along with two men holding hands with an X over them. Silva told Jack that she would give him icing and a pastry bag so he could write the words himself.  This did not satisfy Jack, and he filed a complaint alleging that he was discriminated against based on his creed. The complaint comes as Republicans in the Colorado legislature are looking at legislative changes to protect business owners who refuse to provide services for same-sex weddings. [Thanks to Tom Rutledge for the lead.]