Recent Law Review Review Articles

From SSRN:

• Marie Ashe, Privacy and Prurience: An Essay on American Law, Religion, and Women, (American Journal of Legal History, Vol. 51, p. 461, 2011).
• Katherine Spencer, Mahr as Contract: Internal Pluralism and External Perspectives, (Oñati Socio-Legal Series, Vol. 1, No. 2, 2011).
• Paul Horwitz, Act III of the Ministerial Exception, (Northwestern University Law Review, Forthcoming).
• Richard W. Painter, The Moral Responsibilities of Investment Bankers, (University of St. Thomas Law Journal, Vol. 8, No. 1, 2010).
• Samuel T. Grover, Religious Conscience Exemptions to the PPACA Health Insurance Mandate, (American Journal of Law and Medicine, Vol. 37, No. 4, 2011).
• Leslie C. Griffin, Ordained Discrimination: The Cases Against the Ministerial Exception, (U of Houston Law Center No. 2011-A-9, Sept. 30, 2011).
• Susan E. Hauser, More Than Abstract Justice: The Defense of Marriage Act and the Equal Treatment of Same-Sex Married Couples Under Section 302(A) of the Bankruptcy Code, (American Bankruptcy Law Journal, Forthcoming).
• Anita Bernstein, Toward More Parsimony and Transparency in 'The Essentials of Marriage', (Michigan State Law Review, Vol. 81, 2011).
• Caroline Mala Corbin, The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, (Northwestern University Law Review Colloquy, Forthcoming).

SmartCILP:

• John Garvey, Intellect and Virtue: The Idea of a Catholic University, 60 Catholic University Law Review 563-573 (2011).
• Samuel J. Levine, Second Annual Holocaust Remembrance Lecture at Washington University. Jewish Law From Out of the Depths: Tragic Choices in the Holocaust, 10 Washington University Global Studies Law Review 133-142 (2011).

Military Clears Way For Same-Sex Marriage Ceremonies

In the wake of the final repeal of the military's "Don't Ask, Don't Tell" policy, the Pentagon has issued two memos that clear the way for same-sex marriages to be performed on military bases by military chaplains in states where such marriages are legal.  As reported last week by the Washington Blade, a Sept. 21 memo (full text) from DOD's General Counsel says that: "Determinations regarding the use of DoD real property and facilities for private functions, including religious and other ceremonies, should be made on a sexual-orientation neutral basis, provided such use is not prohibited by applicable state and local laws." It adds that making facilities available does not amount to DoD endorsement of the activities.

A second memo (full text) dated Sept. 30 from Under Secretary of Defense Clifford Stanley says that military chaplains "may participate in or officiate any private ceremony, whether on or off a military installation" so long as it is not prohibited by state or local law. However a chaplain is not required to do so if it "would be in variance with the tenets of his or her religion or personal beliefs."

Release of Tapes of Prop 8 Trial Again On Hold

In the latest skirmish over California's Proposition 8-- the ballot measure that barred same-sex marriage-- a panel of the U.S. 9th Circuit Court of Appeals yesterday issued a stay pending appeal of a district court order that authorized release of digital recordings of the original trial on Prop 8's constitutionality. (See prior posting.) Here full text of the 9th Circuit's order in Perry v. Brown. AP reported on court's action.

Court To Unseal Recording of Proposition 8 Trial

In Perry v. Schwarzenegger, (ND CA, Sept. 19, 2011), a California federal district court judge agreed to unseal the digital recording of last year's non-jury trial last on the constitutionality of California's Proposition 8-- the state constitutional amendment barring same-sex marriage.  Focusing on the importance of transparency of judicial proceedings, the court rejected as unsupported conjecture the argument that release of the recordings would have a chilling effect on expert witnesses' willingness to cooperate in future proceedings.The court, however, stayed the effectiveness of its order until Sept. 30 to give the parties time to file an appeal and seek a further stay. AP reports on the decision.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe, Witchcraft and the Constitution, (T.W. Bennett, eds, Traditional African Religions in South African Law p. 156, UTC Press, 2011).
• Mohammad Fadel, A Tragedy of Politics or an Apolitical Tragedy?, (Journal of the American Oriental Society, Vol. 131, No. 1, 2011).
• Kenneth Lasson, Hammerin’ Hank & the Golden Arm: Remembering Baseball’s Jewish Hall of Famers, (Baltimore Jewish Times, April 8, 2011).
• Tokufumi Joshua Noda, The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use, (Boston College Law Review, Vol.1, 2011).

Engage, Vol 12 No. 2:

• Robert F Wilson and Jana Singer, Same-Sex Marriage and Conscience Exemptions.
• Richard W. Garnett and Kurt T. Lash, The Establishment Clause.
• Gregory S. Baylor and Ronald Chen, Did the Supreme Court Properly Decide Christian Legal Society v. Martinez?
• William L. Saunders, European Court of Human Rights Finds No Right to Abortion Under European Human Rights Convention.

Recent Articles of Interest

From SSRN:

• Zachary R. Calo, Islamic Headscarves, Religious Pluralism, and Secular Human Rights, (International Consortium for Law and Religion Studies Conference, Santiago, Chile, September 2011).
• Zachary R. Calo, Human Dignity and Health Law: Personhood in Recent Bioethical Debate, (Notre Dame Journal of Law, Ethics and Public Policy, Forthcoming).
• Robert J. Miller, The International Law of Colonialism: A Comparative Analysis, (August 30, 2011).
• Mark Strasser, Parents, Religious Convictions, and Public School Curricula, (Brigham Young University Education and Law Journal, pp. 547-569, 2011).
• Howard Kislowicz, Judging the Rules of Belonging, (U.B.C. Law Review, Vol. 44, No. 2, p. 287, 2011).
• Zachary R. Calo, Catholicism, Liberalism and Human Rights, (Journal of Christian Legal Thought, Forthcoming).
• Lorin C. Geitner, Westboro Baptist and the Limits of Religious Speech, (Orange County Lawyer, Forthcoming).
• Victor M. Muniz-Fraticelli, The Distinctiveness of Religious Liberty, (July 29, 2011).
• Douglas E. Abrams, Reason and Passion: Justice Jackson and the Second Flag Salute Case (Part I), (Precedent, Vol. 5, No. 3, pp. 22-26, Summer 2011).
• Steve Sanders, The Constitutional Right to (Keep Your) Same-sex Marriage: Why the Due Process Clause Protects Marriages that Cross State Lines, Even if Conflict of Laws Cannot, (August 24, 2011).

From SmartCILP and elsewhere:

• Vol. 26, No.2, Journal of Law and Religion has recently appeared.
• Sept./Oct. 2011 issue of Liberty: A Magazine of Religious Freedom has recently appeared.

Teacher Reinstated After Anti-Gay Marriage Facebook Posting Now Charged With Improper Religious Statements

In Lake County, Florida on Wednesday, school Superintendent Susan Moxley ruled that Mount Dora High School social studies teacher Jerry Buell did not violate the district's code of ethics when he he posted an anti-gay marriage message on his personal Facebook page. The posting said that same-sex unions are a "cesspool" that make him want to throw up. WFTV News reports that the former Teacher of the Year was reinstated when school officials concluded that his posting did not "disrupt the orderly processes of the district." Yesterday, however, the Orlando Sentinel reported that officials have placed a "written directive" in Buell's personnel file because of religious postings on his school webpage and in his class syllabus.  On the webpage, Buell wrote that he tries to "teach and lead my students as if Lake Co. Schools had hired Jesus Christ himself."  On his syllabus, he tells students: "I teach God's truth, I make very few compromises. If you believe you may have a problem with that, get your schedule changed, 'cause I ain't changing!" The webpage has been removed and Buell has been instructed to delete some parts of his syllabus.

Meanwhile, at a rally yesterday, Liberty Counsel featured Buell "along with others who have received similar persecution for their Christian beliefs."

Initiative Proponents Take First Steps Toward Legalizing Same-Sex Marriage In Maine

According to yesterday's Portland Press Herald, proponents of an initiative to legalize same-sex marriage in Maine can now begin gathering signatures on their initiative petitions.  This week, the Secretary of State's office approved the language that would appear on the Novembeer 2012 ballot if at least 57,277 valid signatures are collected:

Do you favor a law allowing marriage licenses for same-sex couples that protects religious freedom by ensuring no religion or clergy be required to perform such a marriage in violation of their religious beliefs?

Proponents have until January to collect the required number of signatures.  If they are successful, the legislature will have an option to enact the legislation. If it does not, then the measure goes on the ballot.

Bachman's Religious Views Traced In New Yorker Article

The New Yorker this week carries a long article on Michelle Bachman titled Leap of Faith-- The Making of a Republican Front-Runner.  The piece, by Ryan Lizza, gives special attention to the content and development of Bachman's religious beliefs.  Lizza writes:

Bachmann belongs to a generation of Christian conservatives whose views have been shaped by institutions, tracts, and leaders not commonly known to secular Americans, or even to most Christians. Her campaign is going to be a conversation about a set of beliefs more extreme than those of any American politician of her stature, including Sarah Palin, to whom she is inevitably compared. Bachmann said in 2004 that being gay is “personal enslavement,” and that, if same-sex marriage were legalized, “little children will be forced to learn that homosexuality is normal and natural and that perhaps they should try it.” Speaking about gay-rights activists, that same year, she said, “It is our children that is the prize for this community.” She believes that evolution is a theory that has “never been proven,” and that intelligent design should be taught in schools.

U.S. House Files Memo In Court Supporting DOMA

As previously reported, after the Obama administration announced that it would no longer defend the constitutionality of the federal Defense of Marriage Act, the U.S. House of Representatives decided to defend the constitutionality of the statute.  New York Law Journal reports that on Monday, lawyers for the Bipartisan Legal Advisory Group of the U.S. House of Representatives filed a memorandum of law (full text) in one of the cases in which the House is defending DOMA.  The case is Windsor v. United States, (SD NY), in which the surviving spouse of a same-sex marriage performed in Canada is seeking to have her marriage recognized for federal estate tax purposes. The memo argues that the court should apply merely rational basis review in assessing the challenge to DOMA, and that the courts should leave any redefinition of marriage to the democratic process. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

New York Files Amicus Brief Arguing Federal DOMA Is Unconstitutional

New York's Attorney General announced Tuesday that its office has filed an amicus brief (full text) in Windsor v. United States, a case pending in federal district court in New York challenging the constitutionality of the federal Defense of Marriage Act. The case is one in which the surviving spouse of a same-sex couple legally married in Canada is challenging the federal government's refusal to recognize her as a spouse for federal estate tax purposes.  (Background and pleadings in case.) It is also one of the two cases in which the U.S. Department of Justice announced that it would not defend the constitutionality of DOMA. (See prior posting.)  New York's filing of the amicus brief comes only days after same-sex marriages began to be legally performed in the state, though New York had previously recognized the validity of same-sex marriages performed in other states or countries.  Here is an excerpt from the amicus brief:

By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the States, and undermines and denigrates New York’s law designed to ensure equality of same-sex and different-sex married couples. Thus DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex.

For each of these reasons, considered separately or together, DOMA should be subjected to heightened scrutiny under the equal protection component of the Fifth Amendment, and it cannot withstand such scrutiny.

Yesterday's New York Law Journal has more on the background of the case.

Suit Seeks To Invalidate New York Same-Sex Marriage Law For Procedural Irregularities

Liberty Counsel announced today that it has filed a lawsuit in New York asking a state court to declare the state's Marriage Equality Act void and to declare void any same-sex marriages that have taken place under the Act. (See prior posting.) The complaint (full text) in New Yorkers for Constitutional Freedoms v. New York State Senate, (Livingston Co. Sup. Ct., filed 6/25/2011), alleges that there were a number of procedural defects in the passage of the statute. These include violation of the Open Meetings Law, suspension of normal Senate committee hearings and voting procedures, denying lobbyists access to members of the legislature, and pressures on Republican Senators from Wall Street and the governor.

Obama Endorses Respect for Marriage Act That Would Repeal DOMA

The White House announced yesterday, both in a press briefing by Press Secretary Jay Carney, and in a post on the White House blog, that President Obama is "proud to support" S. 598, the Respect for Marriage Act, which would repeal the Defense of Marriage Act and recognize for purposes of federal law same-sex marriages that have been validly entered into in a state which recognizes such marriages. The Senate Judiciary Committee is scheduled to hold a hearing on the bill today. The same bill has been introduced in the House as H.R. 1116.

UPDATE: Transcripts of testimony at the hearing are now available online.

Can New York Municipal Clerks Require Accommodation of Objection To Licensing Same-Sex Marriages?

As previously reported, New York's recently-enacted same-sex marriage law protects from liability or penalty any clergy who refuse to officiate at a same-sex marriage, but does not contain any explicit conscience exception  to shield municipal clerks who have religious objections to issuing marriage licences to same-sex couples. At least one town clerk has already resigned over this. Now, however, Constitutional Law Prof Blog reports that the Alliance Defense Fund last week sent a memo (full text) to New York Municipal Clerks telling them that they are entitled to claim a religious accommodation to exempt them from issuing same-sex marriage licenses.  The accommodation provisions appear in the New York Human Rights Law, Executive Law Sec. 296(10)(a.). That section bars employers from requiring any employee

to violate or forego a sincerely held practice of his or her religion ... unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's ... sincerely held religious observance or practice without undue hardship on the conduct of the employer's business.

ADF's memo argues:

because New York law [Domestic Relations Law Sec. 15(3)] explicitly allows a municipality to delegate a clerk’s duties concerning marriage licenses to a deputy clerk or any other employee, a city or town should have no reason to deny a clerk’s request for an accommodation. It should be a simple matter to delegate those duties to others who do not object to issuing and signing marriage licenses for same-sex couples.

ADF's memo fails however to discuss two other provisions that may shed some question on its analysis. Executive Law Sec. 296(1)(d.) provides that:

an accommodation shall be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed.

In addition,  Domestic Relations Law Sec. 15(3) cited by ADF, appears to allow appointment of a deputy clerk or other employee by a city, but does not appear to provide for the same delegation by towns. [Thanks to Ruthann Robson for the lead.]

Recent Articles of Interest

From SSRN:

• Jay Wexler, Government Disapproval of Religion, (Boston University School of Law, Public Law & Legal Theory Research Paper No. 11-32, July 2011).
• Pol Morillas, Hezbollah’s Identities and their Relevance for Cultural and Religious IR, (ICIP Working Papers 2009/4, Dec. 2011).
• Kenneth L. Marcus, Bullying as a Civil Rights Violation: The U.S. Department of Education’s Approach to Harassment, (July 11, 2011).
• Christopher C. Lund, Understanding the Ministerial Exception, (North Carolina Law Review, Vol. 90, No. 1, Fall 2011).
• Haider Ala Hamoudi, Book Review: Constitutional Theocracy by Ran Hirschl, (Osgoode Hall Law Journal, Forthcoming).
• Nicole Stelle Garnett and Margaret F. Brinig, Catholic Schools, Charter Schools, and Urban Neighborhoods, (University of Chicago Law Review, 2012).
• Nicole Stelle Garnett, A Winn for Educational Pluralism, (Yale Law Journal Online, May 2011).
• Lucia Ann Silecchia, Pope John Paul II's Evangelium Vitae and the 'Horizon of the Good', (Journal of Christian Legal Thought, Vol. 1, No. 1, Spring 2011).
• Jonathan Caleb Landon, Usury and the Church: A Christian Response to Payday Lending, (May 6, 2011).
• Charles J. Russo and William E. Thro, Another Nail in the Coffin of Religious Freedom? Christian Legal Society v. Martinez, (Education Law Journal, Vol. 12, 2011).
• Jeffrey A. Parness, Civil Unions and Parenthood at Birth, (Illinois Bar Journal, Vol. 99, October 2011).

From SmartCILP and elsewhere:

• John R. Dorocak and Lloyd E. Peake, Political Activity of Tax-Exempt Churches, Particularly After Citizens United v. Federal Election Commission and California's Proposition 8 Ban On Same-Sex Marriage: Render Unto Caesar What Is Caesar's, [Abstract], 9 First Amendment Law Review 448-485 (2011).
• K. Eli Akhavan, Basic Principles of Estate Planning Within the Context of Jewish Law, Probate and Property, July/Aug. 2011, pg. 60.

Town Clerk Resigns Over New York Same-Sex Marriages

In the town of Barker, New York, 56-year old Laura Fotusky has become the first town clerk in the state to resign over the recently enacted same-sex marriage bill.  According to the International Business Times, Fotusky says that her religious beliefs preclude her from signing a marriage certificate for a same-sex couple. The full text of Fotusky's resignation letter is included in a posting on the website of New Yorkers for Constitutional Freedoms.  In the letter, which was presented to the Town Board on July 11, she says: "I would be compromising my moral conscience if I participated in the licensing procedure."

UK Equality Commission Wants European Court To Require Accommodation of Employees' Religious Beliefs

Britain's Equality and Human Rights Commission announced Monday that it has petitioned to intervene in four religious discrimination cases being appealed to the European Court of Human Rights, all involving attempt by employees to obtain accommodation of their religious practices.  In its applications to intervene, the Commission argues that past decisions have not sufficiently protected freedom of religion or belief.  It will urge the Court to adopt a principle of reasonable accommodation of religious beliefs.  Two of the cases involve female employees who wished to wear a cross on a necklace in violation of their employers' dress policies. (Applications of Nadia Eweida and Shirley Chaplin).  The second two cases involved employees with religous objections to same-sex unions.  One case involved a marriage registrar who objected to taking part in registration of same-sex civil partnerships.  The second involved a counselor who had concerns about providing sexual counselling to same-sex couples. (Applications of Lillian Ladele and Gary McFarlane).

House Amendments To Defense Bill Bar Using Military Facilities For Gay Marriages

On Thursday, the U.S. House of Representatives voted on a number of amendments to the 2012 Defense Appropriations Bill. The Daily Caller reports on one amendment, which passed 236-84, introduced by Rep. Tim Huelskamp of Kansas, that bars same-sex marriages being performed on military bases. The amendment provides: "None of the funds made available by this Act may be used to implement the curriculum of the Chaplain Corps Tier 1 DADT repeal training dated April 11, 2011."  From the Congressional Record, here is the explanation of the amendment by Rep. Huelskamp:

Earlier this year, the Navy chief of chaplains announced that military chaplains who desire to perform same-sex marriages would be allowed to do so following the repeal of the policy known as Don't Ask, Don't Tell. The directive said that chaplains could perform same-sex ceremonies in such States where such marriages and unions are legal. Apparently, the Navy has recently backed away from such instruction, but tepidly and weakly, and in a way that leaves the door open to the reinstatement of this policy.

This amendment I offer will prohibit the enforcement of the directive of allowing chaplains to perform same-sex marriages on Navy bases regardless of whatever a State's law is on gay marriage.

... As the Navy and other military branches prepare for the repeal of this 1993 law, hours upon hours of sensitivity training have been presented to men and women in uniform. Such instruction has included warning that the failure to embrace alternative lifestyles could result in penalties for serv ice mem bers.

What will happen to chaplains who decline to officiate over same-sex ceremonies? The directive states that chaplains ``may'' perform same-sex civil marriage ceremonies. I fear that chaplains who refuse to perform these ceremonies may find themselves under attack and their careers threatened.

Madam Chair, we must ensure the religious liberty of all military members, particularly that of chaplains. In my family, I've had a military chaplain who has served for more than approximately 4 decades, so this is particularly important to me, personally.

(See prior related posting.) The House on Thursday and Friday also passed two additional amendments to the Defense Appropriation Bill  (1, 2) that appear to achieve the same purpose. They prohibit use of any funds in contravention of the Defense of Marriage Act.

Mexican Electoral Tribunal Orders Sanctions Against Catholic Archdiocese

According to yesterday's National Catholic Reporter, Mexico's Federal Electoral Tribunal issued a ruling on July 1ordering the country's Interior Ministry to sanction the Catholic Archdiocese of Mexico City for critical comments made by the Archdiocese's spokesman last August.  The Tribunal found that comments urging Catholics vote against political parties that support more liberal abortion laws and same-sex marriage violated  Mexico's electoral code. The Electoral Tribunal pointed to the need to keep church and state separate.  Mexico's Interior Ministry is responsible for regulating religious associations, but it is unclear whether the Electoral Tribunal has jurisdiction to order the Interior Ministry to take action.  The Archdiocese plans to appeal.

Recent Articles of Interest

From SSRN:

• Sarah Beresford, Seeking Secularism: Resisting Religiosity in Marriage and Divorce- A Comparative Study of England and America, (Web JCLI, Vol. 3, 2011).
• Girjesh Shukla, Law, Religion and State: Constitutional Discourse and Judicial Interpretation, (2011).
• Howard Kislowicz, Richard Haigh and Adrienne Ng, Calculations of Conscience: The Costs and Benefits of Religious and Conscientious Freedom, (Alberta Law Review, Vol. 48, No. 3, 2011).
• David Bilchitz, Should Religious Associations Be Entitled to Discriminate?, (South African Journal of Human Rights, Vol. 2, 2011).
• Mariana Ardila Trujillo, Hacia La Resolución De Los Conflictos Entre La Protección De La Diversidad Cultural Y El Reconocimiento De Los Derechos De Las Mujeres (Toward the Conflict’s Resolution between the Protection of the Cultural Diversity and the Recognition of the Women´s Rights), (Revista Derecho del Estado, No. 26, 2011).
• Alejandro Rosas Martinez, Algunas Implicaciones Jurídicas Del Matrimonio Entre Personas Del Mismo Sexo En La Ciudad De México (Some Juridical Implications of the Same Sex Persons Marriage at México City), (Revista Derecho del Estado, No. 26, 2011).
• Sara Weinrib, An Exemption for Sincere Believers: The Challenge of Alberta versus Hutterian Brethren of Wilson Colony, (McGill Law Journal, Vol. 56, No. 3, pp. 719-750, 2011).
• Mark Strasser, Same-Sex Marriage and the Right to Privacy, (Journal of Law and Family Studies, Vol. 13, pp. 117-150, 2011).
• Wladimyr Mattos Albano, The Constitutional Immunity to Temples of Any Cult in the Municipalities and Their Interpretation, (Revista Brasileira de Direito Tributário e Finanças Públicas, Vol. 4, No. 22, p. 25, 2010).

From bepress:

• Anke I. Bouzenita, The Principle of Neutrality and “Islamic International Law” (Siyar), Global Jurist: Vol. 11: Iss. 1 (Advances), Article 4 (2011).

From SmartCILP:

• Barbara Oomen, Between Rights Talk and Bible Speak: The Implementation of Equal Treatment Legislation in Orthodox Reformed Communities in the Netherlands, [Abstract], 33 Human Rights Quarterly 175-200 (2011).
• Frederick V. Perry, The Corporate Governance of Islamic Banks: A Better Way of Doing Business?, 19 Michigan State Journal of International Law 251-277 (2011).