Recent Articles of Interest

From SSRN:

• Paul Benjamin Linton, Religious Freedom Claims and Defenses Under State Constitutions, (June 20, 2013).
• Muhammad Munir, Islamizing Custom or Customizing Islam: The Case of Female Genital Mutilation or Female Circumcision, (June 25, 2013).
• David B. Oppenheimer, Alvaro Oliveira,& Aaron Blumenthal, Religiosity and Same-Sex Marriage in the United States and Europe, (June 29, 2013).
• Samuel Flaks, Law, Religion, and Pluralism: The Thought and Experiences of Nathan Isaacs, (Touro Law Review, Vol. 29, No. 2, 2013).
• Michale J. Perry, Freedom of Conscience as Religious and Moral Freedom, (Journal of Law and Religion, Forthcoming).
• Haider Ala Hamoudi, Repugnancy in the Arab World, (Willamette Law Review, Vol. 48:427, 2012).
• Mark P. Franke, Ijara Under the Bankruptcy Code, (June 20, 2013).
• Dr. Julius B. Bertillo & Dr. Josefina Bertillo Salando, Principles and Practice of Islamic Finance Systems, (June 23, 2013).
• Dr. Julius B. Bertillo, Dr. Josefina Bertillo Salando & Dr. Florabel Ortega Nieva, Global Impact of Islamic Financial Systems in the Arab World, (June 30, 2013).

From SmartCILP:

• Allison M. Dussias, Friend, Foe, Frenemy: The United States and American Indian Religious Freedom, 90 Denver University Law Review 347-431 (2012).

Michigan Federal District Court Preliminarily Enjoins Ban On Health Benefits to Domestic Partners--Claiming Title of First to Cite Windsor

In Bassett v. Snyder, (ED MI, June 28, 2013), a Michigan federal district court issued a preliminary injunction barring enforcement of Michigan's Public Act 297 that prohibits public employers from providing medical and other fringe benefits to same-sex partners of state employees. Finding plaintiffs have standing, the court went on to hold that:

The plaintiffs have stated a viable and likely successful equal protection claim. They have provided strong evidence that the discriminatory classification established by Public Act 297 is not rationally related to a legitimate governmental purpose.

In reaching its conclusion, the court several times cited the then only 2-day old U.S. Supreme Court's decision in United States v. Windsor which struck down the federal Defense of Marriage Act.  This makes it the first case to cite the Windsor opinion, proving inaccurate my earlier posting that awarded the first-to-cite distinction to another Michigan judge in a case denying dismissal of a challenge to Michigan's ban on adoptions by same-sex couples. ACLU issued a press release announcing the decision. [Thanks to Michael Worley for the lead.]

Only 5 Days For Lower Court Opinion To Cite SCOTUS Decision On DOMA [Corrected]

It took only 5 days for a lower federal court to become one of the first to cite the U.S. Supreme Court's recent landmark Defense of Marriage Act decision. Relying on language in United States v. Windsor, a federal district court has refused to dismiss a same-sex couple's equal protection challenge to Michigan's ban on adoptions by same-sex couples and its state constitutional ban on same-sex marriage.  In DeBoer v. Snyder, (ED MI, July 1, 2013), a Michigan federal district court said:

Plaintiffs’ equal protection claim has sufficient merit to proceed. The United States Supreme Court’s recent decision in United States v. Windsor ... has provided the requisite precedential fodder for both parties to this litigation. Defendants will no doubt cite to the relevant paragraphs of the majority opinion espousing the state’s “historic and essential authority to define the marital relation.”... 

On the other hand, plaintiffs are prepared to claim Windsor as their own.... And why shouldn’t they? The Supreme Court has just invalidated a federal statute on equal protection grounds because it “place[d] same-sex couples in an unstable position of being in a second-tier marriage.”... Moreover, and of particular importance to this case, the justices expressed concern that ... such discriminatory legislation would ... impair the rights of “tens of thousands of children now being raised by same-sex couples” as well.... This is exactly the type of harm plaintiffs seek to remedy in this case..... [T]his Court cannot say that plaintiffs’ claims for relief are without plausibility.

Yahoo! News reports on the Michigan decision.

CORRECTION: This posting originally indicated that this was the first decision to cite the Supreme Court's Windsor case. As Michael Worley in a comment to this posting indicates, actually the first citation was only 2 days after the SCOTUS decision in a different Michigan federal court opinion on domestic partner benefits.  For details on that case, see this posting.

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.

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...."

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.

Recent Articles of Interest and Call For Papers

From SSRN:

• Vivian Grosswald Curran, Book Review: Gilles Cuniberti, Grands Systèmes De Droit Contemporains (2d ed., L.G.D.J., 2011), (American Journal of Comparative Law, Vol. 61, p. 721, 2013).
• Lucia Ann Silecchia, On 'Unease' and 'Idealism': Reflections on Pope Benedict XVI's Educating Young People in Justice and Peace and Its Message for Law Teachers, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 27, No. 2, 2013).
• Elizaeth Sepper, Doctoring Discrimination in the Same-Sex Marriage Debates, (Indiana Law Journal, Forthcoming 2014).
• Alan D. Miller & Ronen Perry, A Group's a Group, No Matter How Small: An Economic Analysis of Defamation, (Washington and Lee Law Review, Vol. 70, 2013).
• Amanda Reid, Private Memorials on Public Space: Roadside Crosses at the Intersection of the Free Speech Clause and the Establishment Clause, (Nebraska Law Review, Vol. 92, p. 501-561, 2013).

From SmartCILP amd elsewhere:

• Deepa Das Acevedo, Secularism in the Indian Context, (38 Law & Social Inquiry 138-167 (2013)).
• Anthony V. Alfieri, Community Education and Access to Justice in a Time of Scarcity: Notes from the West Grove Trolley Garage Case, (2013 Wisconsin Law Review 121-143).
• Brooke Goldstein & Benjamin Ryberg. The Emerging Face of Lawfare: Legal Maneuvering Designed to Hinder the Exposure of Terrorism and Terror Financing, (36 Fordham International Law Journal 634-656 (2013)).
• Abraham M. Lackman, The Collapse of Catholic School Enrollment: The Unintended Consequence of the Charter School Movement, 6 Albany Government Law Review 1-20 (2013).
• Clark B. Lombardi, Constitutional Provisions Making Sharia "A" or "The" Chief Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?, [Abstract], (28 American University International Law Review 733-774 (2013)).
• C.M.A. McCauliff, Dreyfus, Laicite and the Burqa, (28 Connecticut Journal of International Law 117-151 (2012)).
• SpearIt, Raza Islamica: Prisons, Hip Hop & Converting Converts, (22 Berkeley La Raza L.J. 175-201 (2012).)
• Seventh Annual John F. Scarpa Conference on Law, Politics, and Culture: Living the Catholic Faith in Public Life. Articles by Abp. Charles J. Chaput, Helen Alvare, Patrick McKinley Brennan and Michael J. White. [Abstract]. 58 Villanova Law Review 371-470 (2013).
• Symposium:  Law, Religion, and Lautsi v. Italy. Maine Law Review, Vol. 65, No. 2 (2013).

Call For Papers:

• Section on Law and Religion Call for Papers for January 2014 AALS Annual Meeting Program: “Cooperating With Evil, Complicity with Sin.”

Recent Articles of Interest

From SSRN:

• Louis-Philippe Raynault-Ollu & Giacomo Zucchi, Concepts de religion dans le droit: Une étude éclectique des approches juridiques à la définition et au droit à la liberté de religion (The Concepts of Religion in Law: An Eclectic Study of the Juridical Approaches to Define Religion and Religious Freedom), Revue Juridique Thémis (2012-2013) 46 R.J.T.649-677.)
• Sarah E. Hamill, Judges and Religious-Based Reasoning: A Response to Ginn and Blaikie, (March 31, 2012).
• Michael McMillen, Sequelae of the Dow Jones Fatwa and Evolution in Islamic Finance: The Real Estate Investment Example, (New Horizon - Institute of Islamic Banking and Insurance, Forthcoming).
• Mohammad Fadel, Theology, Torture and the United States: Do Abrahamic Religions Have Anything Meaningful to Say?, (The Muslim World. Volume 103, Issue 2, pages 223–228, April 2013).
• Michael McMillen, Islamic Capital Markets: A Selective Introduction, (Who's Who - International Legal, Forthcoming).
• Helen M. Alvare, No Compelling Interest: The 'Birth Control' Mandate and Religious Freedom, (Villanova Law Review, Vol. 58, No. 3, pp. 379-436, 2013).
• Daniel Golebiewski, Open Wide the Doors to Christ: Polish Catholicism Under Communist Rule, (December 22, 2011).
• Andrew M. Koppelman, Judging the Case Against Same-Sex Marriage, (University of Illinois Law Review, Forthcoming).
• Lama Abu-Odeh, Egypt's New Constitution: The Islamist Difference, (Constitutional Secularism in an Age of Religious Revival: the Challenges, Oxford University Press, Forthcoming).

From Academia.edu:

• Niels Valdemar Vinding, Muslim Positions in the Religio-Organisational Fields of Denmark, Germany and England, (University of Copenhagen Thesis, March 1, 2013).

Nigerian Parliament Passes Bill To Ban Gay Marriages and Criminalize Gay Advocacy

The Washington Post reports that yesterday Nigeria's House of Representatives passed by voice vote a bill that had been passed by the Senate in 2011 that would ban same-sex marriage ceremonies in any church or mosque. Same-sex couples who marry would face up to 14 years in prison, while anyone who assists them would face a sentence of up to 10 years.  Also under the bill, anyone involved in an organization that advocates for gay rights, or anyone who engages in a "public show" of affection also could face 10 years in prison. It is not clear whether President Goodluck Jonathan will sign the bill.  Britain has threatened to cut off aid to any country that discriminates against gays. If the bill becomes law, it will likely be challenged in court.

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

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

Florist Counter-Sues State AG Over Right To Refuse To Create Floral Arrangements For Same-Sex Wedding

As previously reported, last month the Washington state attorney filed a consumer protection lawsuit in state court against a retail florist for refusing, because of her religious opposition to same-sex marriage, to furnish floral arrangements for a customer's same-sex wedding. Now defendants Arlene's Flowers, Inc. and its owner Barronelle Stutzman, have not merely filed an answer, but at the same time filed a third-party complaint, counter-suing the state attorney general for violating the shop owner's free speech and free exercise rights under the U.S. and Washington state constitutions. The third party complaint (full text) in State of Washington v. Arlene's Flowers Inc., (WA Super Ct., filed 5/16/2013) alleges in part:

Barronelle  is being sued, and she fears future suits by the Attorney General, for following her conscience in her work, which has resulted in a chilling effect in the exercise of her constitutional rights and a chill in the exercise of constitutional rights by other small business owners in Washington.

Alliance Defending Freedom issued a press release announcing the filing of the counter-suit.

Minnesota Becomes 12th State To Legalize Same-Sex Marriage.

The Minnesota state Senate today, by a vote of 37-30, gave final passage to HF 1054, a bill authorizing same-sex civil marriage in the state.  The House of Representatives passed the bill last week by a vote of 75-59. (Legislative history.)  According to the New York Times, Governor Mark Dayton promised he will sign the bill tomorrow (Tuesday) afternoon.  This will make Minnesota the 12th state to legalize same-sex marriage.

The new law includes a number of protections for clergy and religious organizations that object to same-sex marriage. It provides that non-profit religious organizations and educational facilities they operate or supervise can take action on the basis of sexual orientation with respect to education, employment, housing and real property, or use of facilities, except as to secular business activities unrelated to the organization's religious or educational purposes. Also these religious and educational institutions may refuse to furnish goods, services, facilities, or accommodations directly related to the solemnization or celebration of a civil marriage that is in violation of the organization's religious beliefs. They may not be subject to any fine, liability or loss of tax exempt status for such refusal. No member of the clergy or other person authorized to solemnize marriages may be subject to liability or any penalty for refusing to solemnize a marriage for any reason.

The bill also changes all references in Minnesota statues from "marriage" to "civil marriage", and assures same-sex couples married in Minnesota that Minnesota courts will be available for any future dissolution of the marriage if the couple has moved to a state that refuses to recognize same-sex marriage and divorce.

Recent Articles and Books of Interest

From SSRN:

• Seval Yildirim, Global Tangles: Law, Headcoverings and Religious Identity, (Santa Clara Journal of International Law, Forthcoming).
• Faisal Bhabha, From Saumur to L. (S.): Tracing the Theory and Concept of Religious Freedom under Canadian Law, (58 Supreme Court Law Review (2d), 2012).
• Faisal Bhabha, R v. NS: What's Fair in a Trial? The Supreme Court of Canada's Divided Opinion on the Niqab in the Courtroom, (Alberta Law Review, Forthcoming).
• Carl H. Esbeck, Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause, (7 Charleston L. Rev. no. 1 ___ (forthcoming 2013)).
• Bruce Ledewitz, The Vietnam Draft Cases and the Pro-Religion Equality Project, (Duquesne University School of Law Research Paper (May 6, 2013)).
• Bryan Dearinger, The Future of Taxpayer Standing in Establishment Clause Tax Credit Cases, (Oregon Law Review, Forthcoming).
• Lapo Filistrucchi and Jens Prufer, Nonprofits are Not Alike: The Role of Catholic and Protestant Affiliation, (TILEC Discussion Paper No. 2013-013 (April 26, 2013)).

From SmartCILP:

• Radwa S. Elsaman and Mohamed A. 'Arafa, The Rights of the Elderly in the Arab Middle East: Islamic Theory versus Arabic Practice, 14 Marquette Elder's Advisor 1-53 (2012).
• Eric D. Yordy, Caught in the Clause: An Analysis of Same-Sex Marriage Through the Lens of the Establishment Clause, 22 Tulane Journal of Law & Sexuality 55-89 (2013).
• Invisible Constitutions: Culture, Religion, and Memory. Articles by Abdullahi Ahmed An-Na'im, Kathryn E. Fort, Jeffrey A. Redding, Jelte Olthof, Monica Eppinger, Semahagn G. Abebe and Michal Jan Rozbicki. 57 St. Louis University Law Journal 287-455 (2013).

Recent and Forthcoming Books of Interest:

• Michael D'Antonio, Mortal Sins: Sex, Crime, and the Era of Catholic Scandal, (Thomas Dunne Books, April 2013).
• Carolyn Renée Dupont, Mississippi Praying: Southern White Evangelicals and the Civil Rights Movement, 1945-1970, (New York Univ. Press, Aug. 2013).
• John Ragosta, Religious Freedom: Jefferson’s Legacy, America's Creed, (Univ. of Virginia Press, April 2013).

Delaware Becomes 11th State To Permit Same-Sex Marriages

As reported by the New York Times, Delaware today became the 11th state to authorize same-sex marriage. The new law also converts exiting Delaware civil unions into marriages.  House Bill No. 75 (full text) was passed last month by the state House of Representatives by a vote of 28-18.  The state Senate passed the bill just before 7:00 pm tonight by a vote of 12-9. (Legislative history.) Gov. Jack Markell signed the bill within minutes of its passage. The new law protects clergy who object to performing same-sex marriages.  It provides:

nothing in this section shall be construed to require any person (including any clergyperson or minister of any religion) authorized to solemnize a marriage to solemnize any marriage, and no such authorized person who fails or refuses for any reason to solemnize a marriage shall be subject to any fine or other penalty for such failure or refusal.  Notwithstanding the preceding sentence, a clerk of the peace who issues a marriage license, or a deputy thereof, shall be required to perform a solemnization of such marriage if requested by the applicants for such license.

Rhode Island Becomes 10th State To Legalize Same-Sex Marriage

AP reports that Rhode Island yesterday became the tenth state to legalize same-sex marriage as Gov. Lincoln Chafee signed the bill on the statehouse steps following its final passage by the House earlier in the day.  The new law (full text) includes provisions protecting the right of religious organizations and clergy to make their own decision regarding same-sex marriage:

[E]ach religious institution has exclusive control over its own religious doctrine, policy, and teachings regarding who may marry within its faith, and on what terms.... No court or ... governmental body ... shall compel, prevent, or interfere in any way with any religious institution's decisions about marriage eligibility within that particular faith's tradition....

[N]o regularly licensed or ordained clergyperson, minister, elder, priest, imam, rabbi, or similar official of any church or religious denomination ... is required to solemnize any marriage....

[A] religions organization, association, or society... shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges ... if ... related to:  (1) The solemnization ... or the celebration of a marriage, and such solemnization or celebration is in violation of its religious beliefs and faith; or  (2) The promotion of marriage through any social or religious programs or services, which violates the religious doctrine or teachings of religious organization, association or society.

9th Circuit Judge Rules Federal Public Defender Entitled To Same-Sex Spousal Health Benefits

In In re Alison Clark, (9th Cir., April 24, 2013), U.S. 9th Circuit Judge Harry Pregerson, acting in his capacity as Chair of the Federal Public Defender Standing Committee, held that the Administrative Office of the United States Courts acted wrongly in denying federal health care benefits to the same-sex spouse of an Oregon assistant federal public defender.  Pregerson held that the rejection violated the health care plan’s specific ban on discrimination on the basis of sexual orientation. He also concluded that Oregon’s constitutional ban on recognizing same-sex marriage, as well as the federal Defense of Marriage Act are unconstitutional as violations of equal protection and substantive due process rights.  He ordered the Administrative Office of the U.S. Courts to submit the public defender’s health benefits election form to the appropriate insurance carrier and, in the future, process applications without regard to the sex of the spouse or whether their marriage is recognized by their home state. He added that if the Office of Personnel Management blocks this relief, then plaintiff is entitled to monetary relief.  The Salem (OR) Statesman-Journal reports on the decision.