Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Friday, January 23, 2015
Proposed Oklahoma Bill Would Eliminate Marriage Licenses
Friday, August 12, 2016
Texas AG Cleared of Ethics Charges Over Reaction To Same-Sex Marriage Ruling
Monday, February 04, 2013
Oregon AG Investigating Bakery's Refusal To Provide Cake For Same-Sex Wedding
Monday, December 26, 2016
Top Ten Religious Liberty and Church-State Developments of 2016
1. The unexpected death of Justice Scalia leaves the Supreme Court split on important issues, including the challenges to the Obamacare contraceptive coverage mandate.
2. Religion plays unusual roles in the Presidential election contest. Donald Trump raises issues of Muslim immigration, repeal of the Johnson amendment, draws support from Evangelicals despite a personal history that might raise questions with religious conservatives, and receives support from the alt-Right which includes anti-Semitic elements. Hillary Clinton who has deep personal religious roots does not emphasize these in her campaign.
3. Transgender rights-- particularly access to bathrooms-- become a religious as well as political issue as the Obama administration asserts that existing anti-discrimination provisions in federal law cover discrimination on the basis of sexual orientation and gender identity.
4. Supreme Court grants review in ERISA "church plan" exemption cases. Billions of dollars in potential underfunding of retirement plans by religiously-affiliated health care systems around the country are at issue.
5. Fallout from the legalization of same-sex marriage continues as various wedding service providers assert the right to refuse to serve same-sex couples, Mississippi's Conscience Protection Act is struck down, and Alabama Chief Justice Roy Moore appeals his suspension growing of his resistance to accepting the Supreme Court's marriage equality ruling.
6. Latin crosses as part of veterans' memorials, in parks, and on county seals and the like become the latest focus of the battle over religious displays on public property.
7. State "Blaine Amendments" again become the focus of attention as the Supreme Court grants review in the Trinity Lutheran Church case and Oklahoma voters defeat a proposal to eliminate Blaine Amendments from the state constitution.
8. Federal and state RFRA's continue to be asserted, often but not always unsuccessfully, in unusual contexts-- e.g. challenging "In God We Trust" on currency, as a defense to tax evasion charges, as a defense to food stamp fraud, in connection with bankruptcy discharges, and in treatment of transgender employees.
9. Congress expands the U.S. role in protecting international religious freedom by passing the Frank R. Wolf International Religious Freedom Act.
10. Justice Department sues cities under Religious Land Use and Institutionalized Persons Act for placing zoning impediments in the way of mosque construction.For an alternative view of the Top Ten Religious Liberty Stories of 2016, see this post by Baptist Joint Committee blogger Don Byrd.
Friday, December 09, 2022
Congress Gives Final Passage To Respect For Marriage Act
Yesterday the U.S. House of Representatives gave final passage to HR 8404 the Respect for Marriage Act (full text). By a vote of 258- 169, the House accepted the amendments added to the original bill by the Senate. The bill now goes to President Biden for his signature. Biden issued a statement yesterday praising Congress' passage of the bill. The bill assures federal recognition of same-sex and interracial marriages between two individuals and requires states to recognize same-sex and interracial marriages from other states. The bill goes on to provide:
Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action....
Nothing in this Act, or any amendment made by this Act, shall be construed to deny or alter any benefit, status, or right of an otherwise eligible entity or person which does not arise from a marriage, including tax-exempt status, tax treatment, educational funding, or a grant, contract, agreement, guarantee, loan, scholarship, license, certification, accreditation, claim, or defense.
Fox4 reports on contents of the bill.
UPDATE: On Sept. 13, President Biden signed the bill into law. (White House press release.)
Tuesday, July 14, 2015
Second Suit Filed Against Kentucky Clerk Who Is Refusing To Issue Marriage Licenses
Monday, July 25, 2011
Suit Seeks To Invalidate New York Same-Sex Marriage Law For Procedural Irregularities
Wednesday, June 06, 2012
9th Circuit Denies En Banc Review In Proposition 8 Case
A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”
Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia.... Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.The response, written by Judge Reinhardt expressed puzzlement over the dissenters' "unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion."
Thursday, March 09, 2017
Photographer Challenges Public Accommodation Law
Amy loves to photograph and post about weddings so that others can see God’s love and character displayed in the beauty of marriage. Amy also wants to photograph for and post about pro-life pregnancy health clinics so that others can see God’s love and character displayed in the sanctity of life. These desires have grown as Amy has seen our culture increasingly question the value of marriage and the sanctity of human life.
To counteract that trend, Amy not only promotes certain content, she avoids certain content. Amy can hardly promote her beliefs while glamorizing contrary ideas. Amy therefore cannot photograph or write about things celebrating pornography, racism, violence, abortion, or any marriage besides marriage between one man and one woman, such as same-sex marriage. Nor can she photograph or write about organizations that promote those beliefs.
But Madison’s and Wisconsin’s public accommodation laws forbid that freedom.
An ADF press release announced the filing of the lawsuit.
Monday, March 19, 2018
Recent Articles of Interest
- Ryan T. Anderson, Disagreement is Not Always Discrimination: On Masterpiece Cakeshop and the Analogy to Interracial Marriage, (Georgetown Journal of Law & Public Policy, Vol. 16, No. 1, 2018).
- Lee J. Strang, The Original Meaning of 'Religion' in the First Amendment: A Test Case of Originalism's Utilization of Corpus Linguistics, (Brigham Young University Law Review, Vol. 2017).
- Kathleen Brady, Religious Accommodations and Third-Party Harms: Constitutional Values and Limits, (106 Kentucky Law Journal, Issue No. 4, Forthcoming).
- James A. Davids, Religious Colleges' Employment Rights Under the 'Ministerial Exception' and When Disciplining an Employee for Sexually Related Conduct, (Texas Review of Law & Politics, Vol. 21, No. 3 (2018).
- Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, (March 8, 2018).
- Timothy Zick, Introduction to The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights, (Oxford Univ. Press, 2018).
- Michael J. Higdon, Biological Citizenship and the Children of Same-Sex Marriage, (March 11, 2018).
- Hiroshi Fukurai & Alice Yang Murray, The History of Japanese Racism, Japanese American Redress, and the Dangers Associated With Government Regulation of Hate Speech, (Hastings Constitutional Law Quarterly, Vol. 45, 2018).
- Joel S. Newman, Conspicuous Philanthropy: A Response, (American University Law Review Forum, Vol. 67, No. 1, 2018).
- M.C. Mirow, Léon Duguit, (In Olivier Descamps and Rafael Domingo, Great Christian Jurists in French History (Cambridge University Press, 2019) (Forthcoming)).
- Neil James Foster, Protection of Religious Freedom under Australia’s Amended Marriage Law: Constitutional and Other Issues, (Freedom of Religion or Belief: Creating the Constitutional Space for Other Fundamental Freedoms: 14th – 16th February 2018).
- Sheida Banasaznavaei, A Study on the Temporary Marriage Contract in Iranian Law — Are Women Safe in Temporary Marriage Contracts?, (January 5, 2018).
Sunday, May 18, 2008
Reactions To California Marriage Decision From Chief Justice and Religious Groups
Saturday, March 12, 2016
Virginia Legislature Passes Bill To Protect Clergy and Religious Groups That Object To Same-Sex Marriage; Governor Threatens Veto
This legislation balances the recently discovered right to whatever definition of marriage you want with our nation’s longstanding principle of religious free exercise by ensuring that the heavy hand of government cannot penalize clergy or religious charities simply because of beliefs about marriage.
Thursday, July 28, 2022
Respect For Marriage Act Receives Bipartisan Support But Is Opposed By Christian Groups
On July 19, by a bipartisan vote of 267-157, the U.S. House of Representatives passed and sent to the Senate HR 8404, the Respect For Marriage Act (full text). The bill provides in part:
No person acting under color of State law may deny—
(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or
(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.
On Tuesday, 83 Christian and other conservative organizations sent a letter (full text) to Senate Minority Leader Mitch McConnell asking him to oppose the bill, and saying in part:
anyone who supports this measure is crossing a line into aiding and abetting the persecution of people of faith.
The letter suggests that the bill may be interpreted to require religiously-affiliated child placement and social service agencies that receive government funding or work closely with the government to recognize same-sex marriages. Washington Times reports on the letter.
Tuesday, September 22, 2015
More On Rowan County, Kentucky, and Marriage Licenses
As of this filing, Mrs. Plank reports that, to the best of her knowledge, all requests for marriage licenses requested by legally qualified couples have been issued. The only denial of a marriage license application that has occurred within the last two weeks was to a gentleman who stated that he wanted a license that would permit him to marry “Jesus”. When it was explained to the individual that both parties had to be present, he stated, “Jesus is always present”. After being denied, the gentleman returned later and presented a type of Power of Attorney document issued by his church granting him authority to sign “Jesus’” name. Since both parties were not present these requests were denied.For those who want to follow all the filings in this case (and in other cases involving LGBT rights), a comprehensive source is the non-profit organization Equality Case Files which posts these primary source materials online. They are most easily accessed through the group's Twitter feed, its Facebook page or its library on Scribd. [Thanks to Marty Lederman via Religionlaw for the lead.]
UPDATE: On Sept. 21, the ACLU filed a motion (full text) with the court asking it to issue an order requiring marriage licences issued by the Rowan County Clerk's Office to be in the form that was used prior to Sept. 8, and not in the altered form that Davis has imposed. The motion argues that the changes-- especially listing the person signing it as "Notary Public" rather than "Deputy Clerk"-- cast question on the validity of the license and casts "a stamp of animus against the LGBT community."
Friday, November 20, 2009
New Catholic, Evangelical Declaration Reaffirms Pro-Life, Traditional Marriage Agenda
Today's New York Times reporting on the Declaration says that the document, written by Prison Fellowship founder Charles Colson, "is an effort to rejuvenate the political alliance of conservative Catholics and evangelicals that dominated the religious debate during the [Bush] administration.... They want to signal to the Obama administration and to Congress that they are still a formidable force that will not compromise on abortion, stem-cell research or gay marriage." [Thanks to Ira "Chip" Lupu for the lead.]While the whole scope of Christian moral concern, including a special concern for the poor and vulnerable, claims our attention, we are especially troubled that in our nation today the lives of the unborn, the disabled, and the elderly are severely threatened; that the institution of marriage, already buffeted by promiscuity, infidelity and divorce, is in jeopardy of being redefined to accommodate fashionable ideologies; that freedom of religion and the rights of conscience are gravely jeopardized by those who would use the instruments of coercion to compel persons of faith to compromise their deepest convictions.
.... We are Christians who have joined together across historic lines of ecclesial differences to affirm our right—and, more importantly, to embrace our obligation—to speak and act in defense of these truths.... Because we honor justice and the common good, we will not comply with any edict that purports to compel our institutions to participate in abortions, embryo-destructive research, assisted suicide and euthanasia, or any other anti-life act; nor will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family. We will fully and ungrudgingly render to Caesar what is Caesar’s. But under no circumstances will we render to Caesar what is God’s.
Monday, October 27, 2014
Westboro Baptist Church Seeks To Intervene In Kansas Same-Sex Marriage Case
WBC desires to assert that it is constitutional folly to suggest that a sinful-behavior-based union should be a union that is afforded civil rights and granted the imprimatur of respectability by a license from the government; and that in doing so the government violates its duty of religious neutrality; and puts itself in the position of imposing sin on the citizens, to the great detriment and harm of the health and welfare of the citizenry....
The Kansas Attorney General is unable to adequately represent WBC because to do so would cause the Attorney General to assert religious viewpoints and constitutionally protected religious rights, which is arguably contrary to the duty of the government to remain neutral on matters of religion, and would constitute a breach of the separation of church and state doctrine.
Friday, February 28, 2020
Justice Department Sides With Wedding Photographer In District Court Case
Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny....
Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive.... By ... compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”
... That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny.... The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.
Monday, December 05, 2022
Supreme Court Hears Arguments Today on Wedding Website Designer Who Opposes Same-Sex Marriage
Today the U.S. Supreme Court will hear oral arguments in 303 Creative v. Elenis. In the case, the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. The Court granted certiorari only on the question of "Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment." Over 75 amicus briefs have been filed in the case. The SCOTUSblog case page has links to them and to other filings in the case. The arguments will be broadcast live beginning at 10:00 AM at this link. SCOTUSblog has a preview of the arguments. I will update this post with links to the recording and transcript of the arguments when they become available later today.
UPDATE: Here are links to the transcript and audio of this morning's oral arguments.
Friday, September 19, 2014
Group Says Justice Ginsburg Made Improper Comment On Possible Review of Same-Sex Marraige Cases
Friday, December 09, 2016
Congress Gives Final Passage To Defense Authorization Act-- Some Sections Impact Religion
- Sec. 549 which calls for data collection on hazing notes that victims are often members of protected classes such as race and religion.
- Sec. 585 authorizes award of the distinguished service cross posthumously to Chaplain Joseph Verbis LaFleur for acts of valor while a Japanese prisoner of war during World War II.
- Sec. 591. Repeals the requirement for a chaplain at the United States Air Force Academy appointed by the President.
- Sec. 1085. A sense of Congress resolution that there should be within the National Security Council a Special Adviser to the President on International Religious Freedom who should serve as liaison with the Ambassador at Large for International Religious Freedom, the United States Commission on International Religious Freedom, Congress and religious nongovernmental organizations.
- Sec. 1263 (Part of the ‘Global Magnitsky Human Rights Accountability Act). Authorizes the President to impose sanctions on any foreign person who is responsible for extrajudicial killings, torture or other gross human rights violations against individuals in a foreign country who, among other things, exercise, defend or promote freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections.
- Section 2829F provides for return of certain lands at Fort Wingate, New Mexico to the Zuni Tribe and Navajo Nation. Certain of the land is to be held in trust with shared cultural and religious access by the Zuni and Navajos.