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.

Croatians Approve Constitutional Amendment Barring Same-Sex Marriage

In Croatia yesterday, voters authorized a constitutional amendment to bar same-sex marriage.  AP reports that with nearly all the votes counted, the state electoral commission said that 65% of those voting answered "yes" to the question: "Do you agree that marriage is matrimony between a man and a woman?" 34% voted "no". The amendment was strongly backed by the Catholic Church in the heavily Catholic nation. Croatia became the 28th member of the European Union in July.  Croatia’s liberal president, Ivo Josipovic, said that the government, however, will propose legislation granting some rights short of marriage to gays and lesbians living together. It was a government proposal to allow same-sex couples to register as "life partners" that initially triggered a call for the referendum by the conservative group "In the Name of the Family."  Jurist has additional background on the referendum.

European Court Says Russia Violated Rights of Same Sex Couples Who Were Denied Marriage Registration

In Fedotova and Others v. Russia, (ECHR, Jan. 17, 2023), the Grand Chamber of the European Court of Human Rights held that Russia violated the rights of three same-sex couples when it refused to permit them to marry. The court said in part:

 206.  The Government argued, firstly, that it was necessary to preserve the traditional institutions of marriage and the family, these being fundamental values of Russian society that were protected by the Constitution.... 

209.  Given that the Convention is a living instrument which must be interpreted in the light of present-day conditions, the State, in its choice of means designed to protect the family and secure respect for family life as required by Article 8, must necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life....

212.  In the present case, there is no basis for considering that affording legal recognition and protection to same-sex couples in a stable and committed relationship could in itself harm families constituted in the traditional way or compromise their future or integrity..... Indeed, the recognition of same-sex couples does not in any way prevent different-sex couples from marrying or founding a family corresponding to their conception of that term. More broadly, securing rights to same-sex couples does not in itself entail weakening the rights secured to other people or other couples. The Government have been unable to prove the contrary.

213.  Having regard to the foregoing, the Court considers that the protection of the traditional family cannot justify the absence of any form of legal recognition and protection for same-sex couples in the present case....

219.  ... [T]he allegedly negative, or even hostile, attitude on the part of the heterosexual majority in Russia cannot be set against the applicants’ interest in having their respective relationships adequately recognised and protected by law....

Law & Religion UK reports in greater detail on the decision.

British House of Commons Gives Final Approval To Same-Sex Marriage; Authorizes Study of Humanist Ceremonies

In Britain yesterday, the House of Commons approved the House of Lords amendments to the Marriage (Same Sex Couples) Bill (full text of bill), sending the bill to the Queen for Royal Assent-- a formality in Britain. Here is the full text of the debate in the House of Commons on the Lords' Amendments. Section 2 of the bill provides broad religious protections, assuring that no one may be compelled to participate in any way in conducting or authorizing a same-sex marriage.

On a separate issue, Section 14 of the bill provides for the Secretary of State to review whether humanist marriage ceremonies should be authorized in England and Wales (as they already are in Scotland). The debate in Commons includes the following as part of an exchange on the amendments relating to humanist ceremonies:

Does [a fellow-MP] agree that there are important protections in the amendments made in the other place to prevent the possibility of crazy things such as Jedi weddings? This is about humanist weddings, which are very specific. It is not about commercial weddings, Jedi weddings or any of the other scaremongering that we have heard.

(See prior related posting.)

UPDATE: July 17 Canadian Press reports that the Queen has given formal royal assent to the bill.

In Latest Installment, Alabama Federal District Court Refuses To Stay Same-Sex Marriage Order

In the latest episode of dueling orders, the Alabama federal district court in Strawser v. Strange. (SD AL, March 16, 2015), has denied a motion by Probate Judge Don Davis to stay its preliminary injunction finding Alabama's laws banning same-sex marriage unconstitutional. Davis argued that he has been placed in a potential conflict between the district court's injunction and orders of the Alabama Supreme Court. (See prior posting.) The district court said:

Judge Davis states that he complied with this court’s preliminary injunction order and that all of the current plaintiffs in this case have received marriage licenses. Judge Davis points to rulings by the Alabama Supreme Court ordering Alabama Probate Judges not to issue marriage licenses to same-sex couples. However, Davis has not shown how this court’s preliminary injunction results in irreparable harm to him.

Reuters reports on the decision.

D.C. Election Board Rejects Referendum on Same-Sex Marriage Law; Appeal Filed

In In re Referendum on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, (DCBOEE, Feb. 4, 2010), the District of Columbia Board of Elections and Ethics rejected an attempt to hold a referendum on recently passed DC legislation authorizing same-sex marriage. The D.C. Initiative, Referendum and Recall Procedures Act requires the Board to refuse to accept referendum measures that would would frustrate efforts to eradicate discrimination prohibited by the D.C. Human Rights Act. The D.C. Superior Court has recently, using the same rationale, rejected an initiative petition to define marriage as being only between a man and a woman. (See prior posting.)

Yesterday, Alliance Defense Fund and Stand4Marriage DC filed a petition in D.C. Superior Court for review of the Board's decision rejecting the referendum. (Press release.) The petition (full text) argues that the referendum does not have the effect of authorizing discrimination on the basis of sex or sexual orientation since the D.C. legislation does not make sexual orientation a determinative factor in authorizing issuance of marriage licenses.

Baptist, Jewish Groups Join As Plaintiffs In Challenge To North Carolina Same-Sex Marriage Ban

The United Church of Christ announced today that two national religious bodies and a number of individual clergy have joined as plaintiffs in its lawsuit that contends that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony.  This, they argue, infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage.  The national groups joining the lawsuit are the Alliance of Baptists and the Central Conference of American Rabbis.

Supreme Court Developments On Same-Sex Marriage

Yesterday the U.S. Supreme Court issued an Order (full text) in Wilson v. Condon denying a stay of a South Carolina federal district court's decision striking down South Carolina's ban on same-sex marriage. (See prior posting.) Justices Scalia and Thomas dissented from the denial of the stay. SCOTUSblog reports on developments.

Meanwhile, the state of Louisiana filed a petition for certiorari (full text) in Robicheaux v. George, seeking to bypass the 5th Circuit Court of Appeals and obtain Supreme Court review of a Louisiana federal district court decision that upheld Louisiana's ban on same-sex marriage. (See prior posting.) SCOTUSblog reports.

Suit Challenges Guam's Ban On Same-Sex Marriage

Yesterday a suit was filed in federal district court in Guam challenging the constitutionality of Guam's ban on same-sex marriage.  The complaint (full text) in Aquero v. Calvo, (D Guam, filed 4/13/2015) was brought by a lesbian couple who wish to marry on Guam where they live.  The complaint points out the distance plaintiffs would need to travel to go to a state where they could now legally marry. The 9th Circuit Court of Appeals that includes Guam has already held other states' same-sex marriage bans unconstitutional. (See prior posting,) Pacific News Center reports on the lawsuit.

Guam's Same-Sex Marriage Ban Struck Down

Pacific Daily News reports that in a ruling from the bench, Guam's chief federal judge this morning struck down the island's ban on same-sex marriage.  A written opinion is expected on Monday. Guam, a U.S. territory, is part of the 9th Circuit which has already held same-sex marriage bans unconstitutional. (See prior posting.) Guam is the last jurisdiction in the 9th Circuit to have its ban invalidated.

UPDATE: The full opinion in Aguero v. Calvo, (D Guam, June 8, 2015) is now available.

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.

Virginia's Attorney General Will Not Defend State's Ban On Same-Sex Marriage

In an NPR interview, Virginia's newly-elected Attorney General, Mark Herring, says that his office will no longer defend the state's ban on same-sex marriage. He has concluded that the ban violates the federal equal protection clause. The state's solicitor general will tell a federal court next week that the state is joining the plaintiffs in Bostic v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban. According to the Washington Post, defendants in the case include two county clerks who are represented by separate counsel, so there will still be a defense of the Virginia law presented.

California Same-Sex Marriage Backers Protest Against Mormon Church

Angry that California's Proposition 8 banning same-sex marriage passed, on Thursday some 2000 protesters demonstrated outside the Mormon Temple in Los Angeles. The Mormon Church was particularly active in campaigning for passage of the ballot measure. (See prior posting.) Reporting on the demonstrations, Britain's Independent says that a public relations war against the Mormon church is planned, with demonstrations likely across California, including during Mormon services today. A report on Thursday's demonstration from LifeSiteNews says one protester urged taxing the Mormon church and others carried signs with slogans such as: "Don't teach hate" and "Mormons have 10 wives - I can't have one?" Some argue that the LDS church and other religious groups violated principles of church-state separation by backing Tuesday's ballot measure. However the Episcopal church in California supports same-sex marriage and says it will continue to work to validate it.

Beyond California, on Friday, according to the New York Times, a rally and march around the headquarters of the Mormon church took place in Salt Lake City (UT). Speaking at the rally, Utah State Senator Scott D. McCoy, one of three openly gay Utah legislators, told the crowd of 2000: "The way to deal with this problem is to love more, not hate."

Meanwhile today's Los Angeles Times reports on more general protests around California over the passage of proposition 8.

UPDATE: On Nov. 7, The LDS Church issued a statement decrying the protests against it, saying "it is wrong to target the Church and its sacred places of worship for being part of the democratic process." The Roman Catholic diocese of Sacramento also issued a statement, saying: "Bigoted attacks on Mormons for the part they played in our coalition are shameful and ignore the reality that Mormon voters were only a small part of the groundswell that supported Proposition 8."

32 States Ask Supreme Court To Grant Cert In Same-Sex Marriage Cases

As reported yesterday by AP, in two separate amicus briefs a total of 32 states have asked the U.S. Supreme Court to grant certiorari to decide on the constitutionality of state bans on same-sex marriage. Led by Massachusetts, 15 states that allow same-sex marriage joined a brief in Herbert v. Kitchen, the 10th Circuit case invalidating Utah's ban. (Full text of brief.) (Mass. AG press release.)  17 other states led by Colorado filed a brief in Rainey v. Bostic, the 4th Circuit Virginia case and Smith v. Bishop, the 10th Circuit Oklahoma case.

10th Circuit Hears Oral Arguments In Challenge To Utah's Ban On Same-Sex Marriage

Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments in the Utah same-sex marriage case, Kitchen v. Herbert. Audio of the full oral arguments is available online. Equality on Trial has a written summary of the oral arguments. In the case, a Utah federal district court declared Utah's state constitutional and statutory bans on same-sex marriage invalid under the due process and equal protection clauses of the federal constitution. (See prior posting.)

Recent Articles and Books of Interest

From SSRN:

Religious Law:

• Mohammed Khnifer, Maslaha and the Permissibility of Organized Tawarruq, (Opalesque Islamic Finance Intelligence, No. 8, p. 6-11, April 27. 2010).
• Rahul Shrivastava, Co Parcenary Rights of Daughters in Hindu Coparcenary In the light of Judgment of The Supreme Court Of India in: B Chandrashekhar Reddy v. State of Andhra Pradesh AIR 2003 SC 2322, (November 19, 2010).
• Mohammad Fadel, Is Historicism a Viable Strategy for Islamic Law Reform? The Case of 'Never Shall a Folk Prosper Who Have Appointed a Woman to Rule Them', (November 21, 2010).
• Mohammad Fadel, 'No Salvation Outside Islam': Muslim Modernists, Democratic Politics, and Islamic Theological Exclusivism, (November 21, 2010).

Non-U.S. Religious Institutions:

• Mitchell Landrigan, Voices in the Political Wilderness – Women in the Sydney Anglican Diocese, (Alternative Law Journal, Vol. 34, No. 3, 2009).
• Melissa A. Crouch, Implementing the Regulation on Places of Worship in Indonesia: New Problems, Local Politics and Court Action, (Asian Studies Review, Vol. 34, pp. 403-419, December 2010).

Same-Sex Marriage:

• Clifford J. Rosky, Just the Facts? Rethinking Same-Sex Marriage Law in Perry v. Schwarzenegger, (November 22, 2010).
• Wilson Ray Huhn, The Fourteenth Amendment Protects the Right to Same-Sex Marriage, (University of Akron Legal Studies Research Paper, Nov. 21, 2010).

Establishment and Free Exercise Issues:

• Steven Douglas Smith, Nonestablishment, Standing, and the Soft Constitution, (San Diego Legal Studies Paper No. 10-045, Nov. 22, 2010).
• Kevin Paul Lee, Free Exercise and Religious Mania: Neuroscience and Religious Free Exercise, (September 28, 2010).
• Lorenzo Zucca, The Classroom as a Tolerance Lab, (Law, Religious Freedoms and Education in Europe, Myriam Hunter Henin, ed., Ashgate, Forthcoming).
• Rose Jade, Current Research on the Human Experience of Spirituality Following the Ingestion of ‘Magic’ Psilocybin Mushrooms: An Annotated Bibliography for Social Workers and Other Health Care Professionals, (November 23, 2010).
• Deana Pollard-Sacks, Snyder v. Phelps, the Supreme Court's Speech-Tort Jurisprudence, and Normative Considerations, (Yale Law Journal Online, Forthcoming).

From SmartCILP and elsewhere:

• Michael J. Bazyler & Seth M. Gerber, Litigating the Pillage of Cultural Property in American Courts: Chabad v. Russian Federation and Lessons Learned, 32 Loyola L.A. International and Comparative Law Review 45-82 (2010).
• Jennifer Gerarda Brown, "For You Also Were Strangers in the Land of Egypt": How Procedural Law and Non-Law Enable Love for "Strangers" and "Enemies," 28 Quinnipiac Law Review 667-690 (2010).
• Stanley A. Goldman, The Jew Who Met Himmler--and Other Stories, 32 Loyola L.A. International and Comparative Law Review 1-18 (2010).
• J.H.H. Weiler, Editorial: State and Nation; Church, Mosque and Synagogue-- the Trailer, 8 I-Con: International Journal of Constitutional Law 157-166 (2010).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, Oct. 2010 revision, in PLI Course Handbook for Tax Strategies for Corporate Acquisitions.

Recent Books:

• John A. Ragosta, Wellspring of Liberty: How Virginia's Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty, (Oxford Univ. Press, April 2010).
• Daniel Williams, God's Own Party: The Making of the Christian Right, (Oxford Univ. Press, Sept. 2010).

4th Circuit Refuses Stay In Invalidation of Virginia's Same-Sex Marriage Ban

By a 2-1 vote yesterday, the U.S. 4th Circuit Court of Appeals issued an Order (full text)  in Bostic v. Schaeffer refusing to delay the mandate in its decision last month invalidating Virginia's ban on same-sex marriage. (See prior posting.)  SCOTUSblog reports that attorneys representing the county clerk who is defending the same-sex marriage ban on appeal say they will seek a stay from the Supreme Court before the 4th Circuit's mandate takes effect next Wednesday. A petition for certiorari has already been filed seeking Supreme Court review of the underlying decision. (See prior posting.) Washington Post has more on the plans to seek a Supreme Court stay.

Federal District Court Strikes Down Texas Ban On Same-Sex Marriage

Yesterday in De Leon v. Perry, (WD TX, Feb. 26, 2014), a Texas federal district court held unconstitutional Texas' statutory and constitutional bans on same-sex marriages and their prohibition on recognizing same-sex marriages performed elsewhere. Granting a preliminary injunction, the court said:

[T]oday's Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation born out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).

Applying the United States Constitution and the legal principles binding on this Court by Supreme Court precedent, the Court finds that Article I, Section 32 of the Texas Constitution and corresponding provisions of the Texas Family Code are unconstitutional. These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex. The Court finds this denial violates Plaintiffs' equal protection and due process rights under the Fourteenth Amendment to the United States Constitution.

The court however stayed the execution of the preliminary injunction pending final disposition of any appeal to the 5th Circuit. According to the Dallas Morning News , state attorney general Greg Abbott says the state will appeal.  Washington Post places the decision in a broader context. Texas Gov. Rick Perry yesterday issued a statement (full text) reacting to the decision, saying in part:

it is not the role of the federal government to overturn the will of our citizens. The 10th Amendment guarantees Texas voters the freedom to make these decisions, and this is yet another attempt to achieve via the courts what couldn't be achieved at the ballot box.

Employers Pressing For Same-Sex Employees To Marry In Order To Retain Partner Benefits

The Wall Street Journal reports today that as same-sex marriage becomes legal in more states, increasingly employers who had offered health benefits to domestic partners are telling same-sex couples that they must marry in order to retain their partner benefits. However some say that this may pose a problem for same-sex couples.  Because marriage licenses are public, this may end up "outing" an employee who has not publicly disclosed his or her sexual orientation.  Also, because there are no anti-discrimination protections for the LGBT community in the majority of states, "outing" could lead to discriminatory actions against the employee or the partner. Employers say they are trying to treat everyone equally. A few large companies have taken an opposite approach and are offering domestic partner benefits to both same-sex and opposite-sex couples.

Public Accommodation Law Upheld Against Religious Claims In First Post-Masterpiece Cakeshop Decision

In the first case to present issues similar to those in the Supreme Court's Masterpiece Cakeshop decision, an Arizona appellate court has largely vindicated the rights of a same sex couple.  In Brush & Nib Studio, LC v. City of Phoenix, (AZ App, June 7, 2018), owners of an art studio that designs wedding products, citing their Christian religious beliefs, refused to create customer-specific merchandise for same-sex weddings. They sued to obtain an injunction against application of Phoenix's public accommodation anti-discrimination law to them.  Rejecting their free speech argument, the court said in part:

the conduct at issue is not the creation of words or images but the conduct of selling or refusing to sell merchandise—either pre-fabricated or designed to order—equally to same-sex and opposite-sex couples. This conduct, even though it may incidentally impact speech, is not speech. Further, allowing a vendor who provides goods and services for marriages and weddings to refuse similar services for gay persons would result in “a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” Masterpiece Cakeshop, Ltd., slip op. at 10.

The court goes on to note:

Although Appellants are prohibited from posting discriminatory statements about their intent to refuse services for same-sex weddings, they may post a statement endorsing their belief that marriage is between a man and a woman and may post a disclaimer explaining that, notwithstanding that belief, Section 18-4(B) requires them to provide goods and services to everyone regardless of sexual orientation. Or they may post a disclaimer that the act of selling their goods and services to same-sex couples does not constitute an endorsement of their customers’ exercise of their constitutional right to marry or any other activities.

The court did, however, strike as unconstitutionally vague a portion of the public accommodation law that prohibited advertisements or notices that states or implies that a person, because of sexual orientation would be "unwelcome, objectionable, unacceptable, undesirable or not solicited."

The court went on to reject the studio owners' free exercise claims:

Appellants have failed to prove that Section 18-4(B) substantially burdens their religious beliefs.... Appellants are not penalized for expressing their belief that their religion only recognizes the marriage of opposite-sex couples. Nor are Appellants penalized for refusing to create wedding-related merchandise as long as they equally refuse similar services to opposite-sex couples. Section 18-4(B) merely requires that, by operating a place of public accommodation, Appellants provide equal goods and services to customers regardless of sexual orientation. Appellants are free to discontinue selling custom wedding-related merchandise and maintain the operation of Brush & Nib for its other business operations. What Appellants cannot do is use their religion as a shield to discriminate against potential customers.

Slate reports on the decision.

UPDATE: AP reports that that attorneys for Brush & Nib plan an appeal.