West Virginia Proponents of Marriage Amendment Create Controversy

In West Virginia, a group seeking to convince the legislature to propose a state constitutional amendment barring same-sex marriage has created controversy by a nearly 6-minute video it has posted on YouTube and on the WV 4Marriage website. At one point, the video shows a traditional family in the cross hairs of a rifle scope. The narrator says that activists are "working tirelessly to define marriage away from God's design" and says that same-sex marriage has created a crisis for the church. Yesterday's Times of West Virginia reports on the amendment efforts spearheaded by the Family Policy Council of West Virginia. A posting at Edge yesterday contains the video and discussion of further excerpts from it. Churches around the state will support the amendment efforts by participating in "Stand4Marriage Sunday" on March 1.

D.C. Catholic Charities Ends New Spousal Benefits To Avoid Recognizing Same-Sex Partners

Following up on their pledge to be in compliance with D.C. same-sex marriage law that takes effect today, Catholic Charities of Washington has stopped offering benefits to spouses of new employees. This avoids charges that the organization is illegally discriminating on the basis of marital status were it to refuse to recognize same-sex partners. CNS and Beliefnet report that the change will not affect employees whose spouses are currently covered. A letter to Catholic Charities employees from its CEO said: "We sincerely regret that we have to make this change, but it is necessary to allow Catholic Charities to continue to provide essential services to the clients we serve in partnership with the District of Columbia while remaining consistent with the tenets of our religious faith." While Catholic Charities CEO Edward J. Orzechowski says that the new D.C. statute requires that same-sex couples receive the same spousal benefits as heterosexual couples, in fact that requirement seems to stem from the anti-discrimination provisions of the D.C. Human Rights Law that prohibits employment discrimination based on sexual orientation or marital status.

South African Court Reconciles Marriage Law With Gender Identity Change Statute

Under South African law, marriages may be performed only for heterosexual couples; however civil unions, which create the same legal rights as a marriage, may be performed for either heterosexual or same-sex couples.  South Africa also has a statute which allows transgender individuals to register their gender transition with the government if they have undergone medical or surgical treatment to alter their sexual characteristics. Registration leads to a change in the gender listed on birth certificates and in the population register. In KOS v. Minister of Home Affairs, (S.A. High Ct., Sept. 6, 2017), a South African trial court was faced with the question of how to treat couples who had entered a heterosexual marriage (not a civil union), where subsequently the husband underwent gender transitioning and registered the change in gender identity with the government.

The government argued that in such cases, a gender change should not be able to be registered since it would result in a same-sex marriage, which the law does not recognize. In one of the cases, the government had instead cancelled the couple's marriage record and insisted that they enter a civil union.  The court however, disagreed concluding that the couples must be allowed to register the gender reassignment and remain married.  Refusing to do this, the court said, violates the rights under the South African Constitution to administrative justice and to equality and human dignity. GroundUp reports on the decision.

Court Invalidates Kentucky's Same-Sex Marriage Ban; Stays Order

In Love v. Beshear, (WD KY, July 1, 2014), a Kentucky federal district court held that Kentucky's statutory and constitutional provisions barring same-sex marriage violate the 14th Amendment's Equal Protection clause and are unenforceable. Judge Heyburn wrote in part:

in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted. 

However, the court stayed its order until further order of the 6th Circuit Court of Appeals.  The same court earlier this year held that Kentucky must recognize valid same-sex marriages performed elsewhere. (See prior posting.) Washington Post reports on yesterday's decision. [Thanks to Tom Rutledge for the lead.]

European Court: Ukraine Violates Human Rights Convention by Denying Legal Recognition to Same-Sex Couples

In Maymulakhin & Markiv v. Ukraine, (ECHR, June 1, 2023), the European Court of Human Rights in a Chamber Judgment held that Ukraine violated Article 14 (prohibition of discrimination) of the European Convention on Human Rights taken in conjunction with Article 8 (right to respect for private and family life) by denying any form of legal recognition to same-sex couples. The Court said in part:

While the Court has to date not interpreted Article 8 of the Convention as imposing a positive obligation on the States Parties to make marriage available to same-sex couples, it has confirmed that in accordance with their positive obligations under that provision, the member States are required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship.... The Court has also held that Contracting States enjoy a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same sex couples....

The Court ordered Ukraine to pay the two petitioners 5032 Euros each as damages and to pay 4000 Euros for costs and attorney's fees.

The Court also issued a press release (PDF download link) summarizing its decision.

Probate Judge Asks Alabama Supreme Court To Protect His Refusal To Issue Same-Sex Marriage Licences

As reported by AL.com, on Wednesday Alabama Probate Judge Nick Williams filed an "Emergency Petition for Declaratory Judgment and/or Protective Order In Light of Jailing of Kentucky Clerk Kim Davis" (full text of petition) and a Memorandum In Support of the motion (full text). Williams objects on religious grounds to issuing marriage licenses to same-sex couples. The petition begins:

The jailing of Kentucky Clerk Kimberly B. Davis puts at immediate risk the liberty interest of all faithful and religiously sincere public officials in Alabama whose office has responsibility for making decisions as to whether to give sanction and honor to homosexual relationships to include the issuance of a license to engage in sodomy.  These officers need this Court's declaration that their sincerely held religious beliefs do not disqualify them from holding their office.

Last March, the Alabama Supreme Court issued a writ of mandamus ordering Probate Court judges around the state to discontinue the issuance of marriage licenses to same-sex couples, (See prior posting.)  Judge Williams emergency motion was technically filed as a motion in that case, captioned in the motion as Ex parte State of Alabama ex rel Alabama Policy Institute v. King (Case No. 1140460). .

Michigan Must Recognize Same-Sex Mariages Entered Before Stay of District Court's Order

In Caspar v. Snyder, (ED MI, Jan 15, 2015), a Michigan federal district court issued a preliminary injunction requiring Michigan to recognize some 300 same-sex marriages of couples who married in the less 24 hours between a district court's striking down of Michigan's same-sex marriage ban and the 6th Circuit's stay of the order. In a 47-page opinion, the court held that:

once a marriage has been solemnized pursuant to a validly issued marriage license, the authorizing state cannot withdraw the status that it has awarded, even if the couples had no right to demand to be married in the first place.

The court however stayed the effectiveness of its injunction for 21 days to allow an appeal to the 6th Circuit. Christian Science Monitor reports on the decision.

California Governor Signs Law Excusing Objecting Clergy From Performing Same-Sex Weddings

In California, on Sept. 30, Gov. Jerry Brown signed SB 1140 making it clear that clergy who object to same-sex marriage need not perform same-sex ceremonies.  The new law defines marriage as a civil, not a religious, contract. It also provides that no member of the clergy shall be required to solemnize a marriage that is contrary to his or her faith. Refusal to do so will not affect the tax exempt status of any entity. LGBT Weekly reports on the new law.

Some Scottish Religious Groups Want To Be Able To Perform Same-Sex Marriages

In Scotland yesterday, a coalition of faith groups (United Reformed Church, the Quakers, Buddhists and the Pagan Federation) calling themselves Faith in Marriage launched a campaign to end the ban on religious groups performing same-sex marriages.  Gay Star News reports that the group released an open letter to members of the Scottish Parliament asking them to change the law. A few days earlier, an anti-gay Christian group calling itself Scotland for Marriage announced that it would deliver leaflets to 300,000 homes in Glasgow warning of the dangers of same-sex marriage.

California Baker May Refuse To Create Cake For Same-Sex Wedding

A California state trial court has held that a bakery owner has the right to refuse to create a wedding cake for a same-sex couple when the owner has religious objections to same-sex marriage. The court pointed out:

The Unruh Act prohibits discrimination on the basis of religion, as well as sexual orientation.

The bakery had arranged to refer orders from same-sex couples to a competing bakery that has no objections. In Department of Fair Employment and Housing v. Miller, (CA Super., Feb. 5, 2018), the court said in part:

The right of freedom of thought guaranteed by the First Amendment includes the right to speak, and the right to refrain from speaking. Sometimes the most profound protest is silence....

No artist, having placed their work for public sale, may refuse to sell for an unlawful discriminatory purpose. No baker may place their wares in public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.

The difference here is that the cake in question is not yet baked. The State is not petitioning the court to order defendants to sell cake. The State asks this court to compel Miller to use her talents to design and create cake she has not yet conceived with the knowledge that her work will be displayed in celebration of marital union her religion forbids. For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.

The Bakersfield Californian reports on the decision.

New Jersey Supreme Court Refuses Stay of Decision Allowing Same-Sex Marriage

The New Jersey Supreme Court yesterday denied a stay of a trial court's decision (see prior posting) extending the right to marry to same-sex couples. Before this decision, New Jersey law allowed same-sex couples to enter civil unions, but not to marry.  Beginning Monday they will now be able to marry.  In Garden State Equality v. Dow, (NJ Sup. Ct., Oct. 18, 2013), the state Supreme Court held unanimously that the state had not shown a reasonable probability of success on the merits in its appeal, saying:

The State's statutory scheme effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners.

Bergen County Record reports on the decision.

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.

French Constitutional Council Rejects Mayors' Attempt To Avoid Performing Same-Sex Marriages

France's Constitutional Council, its highest constitutional tribunal, today rejected claims by seven mayors that their freedom of conscience is violated by imposing on them an obligation to perform same-sex marriages.  According to Reuters, French law requires all couples to be married in civil ceremonies conducted by mayors or their deputies, after which the couples may also have a religious ceremony. After several mayors announced they would not perform same-sex marriages, the Interior Minister issued a memo warning them that they risked five years in jail or a 7,500€ fine. Here is the full text (in French) of today's decision in M. Frank M. et autres, (Const. Counc., Oct. 18, 2013) rejecting the mayors' complaint that no conscience clause was included in France's same sex marriage law enacted last May.  It is expected that the case will be appealed to the European Court of Human Rights.  [Thanks to Scott Mange for the lead.]

Proponents Drop Oregon Conscience Initiative After Losing Challenge To Ballot Title

In Fidanque v. Rosenblum, (OR Sup. Ct., May 8, 2014), the Oregon Supreme Court in a brief order denied oral argument and rejected challenges to the ballot title certified by the Attorney General for a proposed ballot measure.  The initiative measure was designed to allow religious belief exceptions to anti-discrimination laws for refusals to provide goods or services for same-sex marriage or partnership ceremonies and their arrangements. The title, approved by the Court, is: "'Religious belief' exceptions to anti-discrimination laws for refusing services, other, for same-sex ceremonies, 'arrangements'". As reported by The Oregonian, after losing their objections, backers said they would drop the initiative in favor of legal action. A press release yesterday by Friends of Religious Liberty said in part:

Current Oregon law provides protection to religious institutions and clergy for choosing nonparticipation in same sex ceremonies. But the law discriminates against individuals of faith who wish to choose nonparticipation. A Jewish pianist or a Christian violinist who may not want to participate in a same sex ceremony based on deeply held religious beliefs is currently subject to government penalties and civil actions.... 

The intent of IP52 is to end this religious discrimination in Oregon by providing individuals of faith with protection equal under the law to that of religious clergy. But the certified ballot title does not acceptably state this. Indeed, it stages it as intolerant instead of protecting equal rights of conscience..... Thus, we have resolved to suspend IP52 and, instead, back an enforcement lawsuit that will be filed shortly in Oregon on behalf of individuals of faith in expressive professions who are currently being coerced to violate their faiths.... 

[Thanks to James Oleske via Religionlaw for the lead.]

Colorado Civil Rights Commission Initial Decision Holds Bakery Violated Law In Refusing Cake For Same-Sex Wedding

In Craig v. Masterpiece Cakeshop, Inc., (CO Civ. Rts. Commn., Dec. 6, 2013), an Administrative Law Judge for the Colorado Civil Rights Commission held that a bakery and its owner illegally discriminated against a same-sex couple on the basis of sexual orientation in refusing to sell them a wedding cake. The bakery owner claimed that creating cakes for same-sex weddings violates his religious beliefs. The ALJ held that the refusal violated the public accommodation anti-discrimination ban in C.R.S. Sec. 24-34-601(2), rejecting the argument that the refusal was not "because of" the couple's sexual orientation.

The ALJ also rejected respondents' claims that requiring them to prepare the cake would violate their free speech and free exercise rights protected by the U.S. and Colorado constitutions.  The ALJ held that this would not amount to compelled speech, saying that the bakery owner "was not asked to apply any message or symbol to the cake, or construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage." Also any impact on free speech "is 'plainly incidental' to the government's right to regulate objectionable conduct."  The ALJ rejected respondents' free exercise claim, finding that the anti-discrimination law is neutral and of general applicability.

The ALJ's initial decision may be appealed to the full Civil Rights Commission (Commn. Rule 10.13), and from their to the state court of appeals (C.R.S. Sec. 24-24-307). The ACLU issued a press release announcing the decision. Fox News and AP report on the decision. [Thanks to Alliance Alert for the lead.]

Quick Ruling on Same-Sex Marriage Sought In North Carolina

The North Carolina ACLU yesterday announced several legal steps it has taken to get a quick ruling on recognition of same-sex marriages in the state. In a case that was initially filed in 2012 and expanded in 2013, plaintiffs this week filed a motion for a preliminary injunction so that a same-sex North Carolina couple married in Massachusetts can get their child who suffers from cerebral palsy on the private health insurance policy of one of the parents (instead of remaining on Medicaid).  Separately, the organization filed a new lawsuit on behalf of three same-sex couples married elsewhere seeking recognition in North Carolina of their marriages. The suit asks for a prompt ruling because one member of each couple has a serious medical condition. AP has more on the legal moves.

Maryland AG Says Same-Sex Marriages From Other States May Be Recognized

Maryland Attorney General Douglas F. Gansler has issued a 55-page Attorney General's Opinion concluding that same-sex marriages validly entered in other states may be recognized in Maryland. The opinion (94 Op. Att'y. Gen. 3, Feb. 23, 2010) says in part:

While the matter is not free from all doubt, in our view, the Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction. In light of Maryland's developing public policy concerning intimate same sex relationships, the Court would not readily invoke the public policy exception to the usual rule of recognition.

Three Catholic Archbishops of Maryland issued a joint statement (full text) criticizing the ruling. Today's Baltimore Sun reports on developments.

Washington Supreme Court Says Florist's Refusal To Sell For Same-Sex Wedding Violated State Law

In a widely followed case, the state of Washington's Supreme Court yesterday unanimously upheld a trial court's decision that a florist's religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination.  In State of Washington v. Arlene's Flowers, Inc.,WA Sup. Ct., Feb. 16, 2017), the court, summarizing its 59-page decision, said:

Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation. We therefore hold that the conduct for which Stutzman [the florist shop owner] was cited and fined in this case-refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding-constitutes sexual orientation discrimination under the WLAD. We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection. As applied in this case, the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman's religious free exercise, the WLAD does not violate her right to religious free exercise under either the First Amendment or article I, section 11 [of the state constitution] because it is a neutral, generally applicable law that serves our state government's compelling interest in eradicating discrimination in public accommodations.

A press release from ADF says that florist Barronelle Stutzman will seek U.S. Supreme Court review in the case. Links to pleadings and court rulings in the case can also be found on ADF's case page. (See prior related posting.) Tri-City Herald reports on the decision.

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.

Recent Articles of Interest

From SSRN:

• Meital Pinto, The Absence of the Right to Culture of Minorities Within Minorities in Israel: A Tale of a Cultural Dissent Case, (4 Laws 579–601 (2015)).
• Janne Elisabeth Nijman, Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium, (Martti Koskenniemi, Monica García-Salmones, and Paolo Amoroso (Eds.), International law and Religion (Forthcoming)).
• Eric Heinze, Hate Speech and Democratic Citizenship, (in Hate Speech and Democratic Citizenship, Oxford University Press, February 2016).
• Darryl Li, Jihad in a World of Sovereigns: Law, Violence, and Islam in the Bosnia Crisis, (Law and Social Inquiry, 2015).
• Christopher R. Hoyt, Income Tax Deductions for Charitable Bequests of IRD, (September 24, 2015).

From SSRN (Same-Sex Marriage):

• James M. Donovan, Half-Baked: The Demand by For-Profit Businesses for Religious Exemptions from Selling to Same-Sex Couples, (Loyola of Los Angeles Law Review, Vol. 49, 2015).
• Patrick Talbot, Same-Sex Marriage and Religious Liberty Clashes in the U.S., After Obergefell v. Hodges: (An American Constitutional Challenge), (Anthology on Religious Freedom by Center of Ethics and Socio-Religiosity Studies Petra Christian University (PCU), Forthcoming).
• Anthony C. Infanti, Victims of Our Own Success: The Perils of Obergefell and Windsor, (Ohio State Law Journal Furthermore, Forthcoming).
• Peter Nicolas, Obergefell's Squandered Potential, (California Law Review Circuit, 2015 Forthcoming).