Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Friday, September 04, 2015
Oregon Judge Creates Legal Defense Fund After Refusal To Perform Same-Sex Marriages
Friday, July 10, 2015
AG Says U.S. Government Benefit Programs Will Recognize Same-Sex Spouses In All States
[C]ritical programs for veterans and elderly and disabled Americans, which previously could not give effect to the marriages of couples living in states that did not recognize those marriages, will now provide federal recognition for all marriages nationwide.... Just over a year ago, Attorney General Holder announced that agencies across the federal government had implemented the Supreme Court’s Windsor decision by treating married same-sex couples the same as married opposite-sex couples to the greatest extent possible under the law as it then stood. With the Supreme Court’s new ruling that the Constitution requires marriage equality, we have now taken the further step of ensuring that all federal benefits will be available equally to married couples in all 50 states, the District of Columbia and the US Territorie
Tuesday, April 14, 2009
Vermont's Gay Marriage Law Contains Strong Religious Exemptions
Statutory provisions on who may solemnize marriages were amended to include this provision:
[18 VAA Sec. 5144(b): ] This section does not require a member of the clergy ... to solemnize any marriage, and any refusal to do so shall not create any civil claim or cause of action.The provisions of Vermont's Banking and Insurance law relating to Fraternal Benefit Societies was amended to include the following:
[8 VSA Sec. 4501(b):] The civil marriage laws shall not be construed to affect the ability of a society to determine the admission of its members ... or to determine the scope of beneficiaries..., and shall not require a society that has been established and is operating for charitable and educational purposes and which is operated, supervised, or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the society’s free exercise of religion, as guaranteed by the First Amendment to the Constitution of United States or by Chapter I, Article 3 of the Constitution of the State of Vermont.Finally, the law amended Vermont's provisions banning discrimination in public accommodations to include the following:
[9 VSA Sec. 4502(l):] Notwithstanding any other provision of law, a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if the request for such services, accommodations, advantages, facilities, goods, or privileges is related to the solemnization of a marriage or celebration of a marriage. Any refusal to provide services, accommodations, advantages, facilities, goods, or privileges in accordance with this subsection shall not create any civil claim or cause of action.
This subsection shall not be construed to limit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization from selectively providing services, accommodations, advantages, facilities, goods, or privileges to some individuals with respect to the solemnization or celebration of a marriage but not to others.
Friday, December 03, 2021
Religious Child Placement Agency Challenges HHS Non-Discrimination Regulations
Suit was filed yesterday against the U.S. Department of Health and Human Services in a Tennessee federal district court by a religious child welfare agency that offers residential and foster care services for abused and neglected children. The suit challenges an HHS regulation that prohibits foster care and adoption programs receiving federal funds from discriminating on the basis of religion, sex, sexual orientation, gender identity or same-sex marriage status. The regulation expands upon the statutory prohibition on discrimination in such programs on the basis of race, color or national origin. The complaint (full text) in Holston United Methodist Home for Children v. Becerra,(ED TN. filed 12/2/2021), alleges that the regulation exceeds the federal agency's authority and that it violates RFRA and various 1st Amendment rights. The complaint alleges in part:
28. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with persons that do not agree with its Christian statement of faith and beliefs....
30. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with couples who may be romantically cohabitating but not married, or who are couples of the same biological sex.
The Trump Administration had issued waivers of the rule for faith-based agencies, but those waivers were rescinded by the Biden Administration last month. (See prior posting). ADF issued a press release announcing the filing of the lawsuit.
Sunday, July 08, 2012
NY Marriage Equality Act Survives Open Meeting Act Challenge
Monday, May 25, 2015
Official Results and Reactions To Ireland's Marriage Equality Referendum
So – the people went to the polls. It passed. The answer is YES. Yes to their future. Yes to their love. Yes to their equal marriage. That yes is heard loudly across the living world as a sound of pioneering leadership of our people and hopefully across the generations of gay men and women born as we say, before their time.In an inteview on Saturday (full text) ith Vatican Insider, Archbishop of Dublin, Diarmuid Martin said in part:
The Church needs to ask itself when this cultural revolution began and why some of its members refused to see this change. There also needs to be a review of youth pastoral care: the referendum was won with young people’s votes and 90% of young people who voted “yes” to the motion, attended Catholic schools....
An individualistic idea of the family prevails. The concept of marriage as a fundamental element of social cohesion has been lost. A reasoning based on respect for the rights of the individual is more successful than one based on social ethics.
Wednesday, June 26, 2019
Christian School Sues Over Exclusion From State Funding Programs
50. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that marriage is the union of one man and one woman.
51. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that biological sex as either male or female is an immutable gift from God, and therefore identify with, dress in accordance with, conduct themselves in keeping with, use the pronouns associated with, and use the facilities provided for, their biological sex....
53. Bethel’s conduct policy prohibits any communication of a sexual nature, such as identifying as the opposite sex, or expressing romantic attraction towards another student.The school alleges that disqualifying it on this basis violates its 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.
Friday, July 01, 2016
Federal District Court Strikes Down Mississippi's Anti-LGBT Conscience Protection Law
In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction..... Obergefell has led to HB 1523.The court summarized its conclusions:
HB 1523 grants special rights to citizens who hold one of three “sincerely held religious beliefs or moral convictions” reflecting disapproval of lesbian, gay, transgender, and unmarried persons.... That violates both the guarantee of religious neutrality and the promise of equal protection of the laws.
The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells “nonadherents that they are outsiders, not full members of the political community, and . . . adherents that they are insiders, favored members of the political community.” ... And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons....Responding to the state's argument that the law "is justified by a compelling government interest in accommodating the free exercise of religion," the court said that the state had "not identified 'even a single instance' in which Obergefell has led to a free exercise problem in Mississippi." The court added:
In this case, moreover, it is difficult to see the compelling government interest in favoring three enumerated religious beliefs over others.... It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly-divorced person. The government is not in a position to referee the validity of Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”) versus Leviticus 21:14 (“A widow, or a divorced woman, or profane, or an harlot, these shall he not take.”).BuzzFeed and the Washington Post have additional coverage of the opinion.
Monday, January 13, 2014
Recent Articles of Interest
- Bruce Bartlett, Tax Policy and the Bible, (Tax Notes, Vol. 141, No. 11, 2013).
- P.G. Monateri, Stasis in Moltmann e Schmitt (Stasis in Moltmann and Schmitt), (Cosmo. Comparative Studies in Modernism, 3 - 2013: Diritto e Religione, a cura di Cristina Costantini, pp. 9-17).
- Caroline Mala Corbin, Abortion Distortions, (Washington and Lee Law Review, Forthcoming).
- Charles J. Reid, 'May a Man Marry a Man?' Medieval Canon Lawyers Analyze Same-Sex Unions, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-02 (2014)).
- Mattheew I. Hall & Benjamin Means, The Prudential Third Party Standing of Family-Owned Corporations, (University of Pennsylvania Law Review Online, Forthcoming).
- Michael J. Perry, David C. Baum Memorial Lecture: Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States, (University of Illinois Law Review, 2014, Forthcoming).
- Brian Christopher Jones, SCOTUS Short Title Turmoil: Time for a Congressional Bill Naming Authority, (32(1) Yale Law & Policy Review Inter Alia 25-33 (2013)).
- Andrew A. Proia, Freeing the Prop 8 Tape: Perry v. Brown, the Presumption of Access to Civil Proceedings, and the Preservation of Judicial Integrity, (University of Florida Journal of Law and Public Policy, Vol. 24, No. 1, 2013).
- Suznne Bouclin, YouTube and Muslim Women's Legal Subjectivities, (Oñati Socio-Legal Series, Vol. 3, No. 7, 2013).
- Iris Sportel, 'Because It's an Islamic Marriage' Conditions Upon Marriage and after Divorce in Transnational Dutch-Moroccan and Dutch-Egyptian Marriages, (Oñati Socio-Legal Series, Vol. 3, No. 6, 2013).
- Javaid Rehman, Islam and Human Rights: Is Compatibility Achievable between the Sharia and Human Rights Law?, (January 2, 2014).
- Special Issue: Islamic Bioethics: Text and Context, [Table of Contents], Bioethics, Vol. 28, Issue 2 (Feb. 2014).
Thursday, August 04, 2011
U.S. House Files Memo In Court Supporting DOMA
Wednesday, April 04, 2018
Air Force Upholds Right of Commander To Refuse To Sign Certificate For Same-Sex Spouse
In a letter (full text) to members of Congress who had intervened on Bohannon's behalf, the Secretary of the Air Force wrote:
The Director concluded that Colonel Bohannon had the right to exercise his sincerely held religious beliefs and did not unlawfully discriminate when he declined to sign the certificate of appreciation.... The Air Force has a duty to treat people fairly and without discrimination on the basis of race, color, sex, national origin, or sexual orientation and met that duty by having a more senior officer sign the certificate.
The Air Force places a high value on the rights of its members to observe the tenets of their respective religions or to observe no religion at all. The decision on appeal applied current Air Force policy and the law. It is an example of a situation in which protected, and potentially competing, interests must be carefully examined and resolved.
Saturday, March 09, 2013
Free Exercise and Establishment Clause Challenges To NC Marriage Laws Dismissed On Procedural Grounds
Saturday, June 20, 2015
Texas Supreme Court: State Lacks Standing To Appeal Trial Court's Grant of Same-Sex Divorce
The Supreme Court's majority opinion by Justice Brown held that the state was too late in attempting to intervene as a party since it did not try to do so until after a decree was entered. It also held that the state did not show grounds to maintain a third-party appeal of the trial court's decision. Justice Boyd filed a concurring opinion emphasizing that the state is in no way bound by the trial court's decree.
Justice Willett delivered a dissenting opinion (which was joined by Justices Guzman and Devine) concluding:
In my view, the attorney general—constitutionally bound to “represent the State in all suits” has an interest sufficient to intervene to defend Texas law against perceived constitutional attack. His arguments may not prevail, but he should be allowed to make them.Justice Devine also filed a separate dissent reaching the merits and concluding that the Texas ban on same-sex marriages is constitutional. Thus, since the parties were not married, the trial court lacked jurisdiction over the divorce action. Dallas Morning News reports on the decision. [Thanks to How Appealing for the lead.]
Monday, October 21, 2013
New Zealand Rights Tribunal Upholds Church's Exclusion of Man From Clergy Because of Same-Sex Relationship
Nothing in section 38 shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion.In concluding that the exemption applied, the Tribunal said:
it is clear that the purpose of s 39(1) was (in the present context) to preserve the institutional autonomy of organised religions in relation to their decisions concerning the appointment of clergy and ministers. The plaintiff’s interpretation would entirely negate that purpose. The Anglican Church would be required to ordain priests who taught that the right ordering of sexual relationships can only occur within a Christian marriage (defined by the Formularies as a physical and spiritual union of a man and a woman) but who themselves did not “live” that doctrine. Ministers would not be exemplars, nor would they be bound by submission to the Constitution of the Church or by their declaration of allegiance to its doctrine and Formularies. This would undermine in the most fundamental way the religious autonomy of the Church, its right to be selective about those who will serve as the very embodiment of its message and its voice to the faithful.Last Friday's New Zealand Herald reported on the decision. [Thanks to Eric Rassbach for the lead.]
Thursday, February 18, 2016
South Dakota Legislature Passes Bill On Transgenders In School Restrooms; 3 Other LGBT Bills Pending
Every restroom, locker room, and shower room located in a public elementary or secondary school that is designated for student use and is accessible by multiple students at the same time shall be designated for and used only by students of the same biological sex. In addition, any public school student participating in a school sponsored activity off school premises which includes being in a state of undress in the presence of other students shall use those rooms designated for and used only by students of the same biological sex."Biological sex" is defined as "the physical condition of being male or female as determined by a person's chromosomes and anatomy as identified at birth." The bill goes on to provide that transgender students are to be provided with reasonable accommodation, which "may include a single-occupancy restroom, a unisex restroom, or the controlled use of a restroom, locker room, or shower room that is designated for use by faculty."
According to the Christian Science Monitor, the governor has not yet decided whether to sign the bill. The Argus Leader reports that the governor will meet both with transgender students and with the bill's sponsors before making a decision.
Human Rights Campaign says that two other anti-LGBT bills have been passed by the full House of Representatives, and another anti-transgender bill has passed through committee. HB 1112 passed by the House voids the current transgender policies of interscholastic activities associations and requires that their future policies determine sex by a student's chromosomes and the sex recorded on the student's birth certificate.
HB 1107 passed by the House bars the state from taking any action against a person because that person acts in accordance with a sincerely held religious or moral belief that marriage is between one man and one woman, that sexual relations should be reserved to marriage, or that the terms male and female refer to distinct and immutable biological sexes determined by anatomy and genetics by the time of birth.
Finally, HB 1209 which has recently cleared a House Committee provides:
Any public body ... that accepts any information on a South Dakota birth certificate as official and valid shall accept all information on a South Dakota birth certificate as official and valid in carrying out the public body's legal and official duties.
Friday, April 01, 2016
Mississippi Legislature Sends Governor Broad "Freedom of Conscience" Bill
The statute, one of the broadest to date enacted by states, protects three separate beliefs if held on religious or moral grounds: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth.
The statute protects from any kind of adverse state action a religious organization that on one of these bases refuses to solemnize a marriage or refuses to provide services, accommodations, goods or facilities for a marriage. It also allows religious organizations to use these beliefs in making employment decisions or decisions regarding the sale, rental or occupancy of housing facilities, or in providing adoption or foster care services.
The statute protects from adverse government action any adoptive or foster parents who guide or raise a child consistent with these beliefs. It protects any person who refuses provide counseling or fertility services or treatment because of these beliefs (except for emergency medical treatment).
The statute goes on to protect anyone who refuses to provide specific kinds of wedding-related services because of these beliefs, including photography, wedding planning, printing, floral arrangements, dress making, hall or limousine rental or jewelry sales and services. It also protects any person who imposes sex-specific policies based on these beliefs on students or employees or regarding access to rest rooms, locker rooms and showers.
The statute goes on to protect state employees who speak out on these issues in their private capacity or in the workplace to the extent other political, moral or religious beliefs can be expressed. It allows county clerks to recuse themselves from issuing marriage licences consistent with these beliefs, and allows judges and others to refuse to perform same-sex marriages.
According to CBS News, Republican Gov. Phil Bryant so far refuses to say whether or not he will sign the bill into law.
Saturday, July 22, 2017
Plaintiffs Awarded Attorneys' Fees In Suit Against County Clerk Kim Davis
In this case, the Plaintiffs “prevailed by every measure of victory.” The relief Plaintiffs obtained—the ability to secure marriage licenses and marry—was “preliminary” in name only. It is not the “fleeting” success that fails to establish prevailing-party status. After the Court obtained compliance with the Preliminary Injunction Orders, Plaintiffs received marriage licenses. And once the plaintiff-couples received their marriage licenses, their rights were not subject to revocation….
... Couples continued to receive marriage licenses after the Kentucky General Assembly amended the law – albeit, on a form Davis felt more comfortable with. Therefore, Plaintiffs’ preliminary-injunction success materially altered their legal relationship with Davis, and that court-ordered change was enduring and irrevocable. Accordingly, the Court concludes that the Plaintiffs “prevailed” within the meaning of § 1988 and are entitled to attorneys’ fees.The court also held that the state of Kentucky, not Rowan County, is liable for the attorneys’ fees. AP reporting on the decision says Davis plans to appeal, but the state of Kentucky has not yet decided whether it will appeal the ruling. [Thanks to Tom Rutledge for the lead.]
Sunday, February 25, 2007
Maine Bill Would Separate Clergy's Role In Marriages From Legal Recognition
Tuesday, November 24, 2015
Kim Davis' Case Continues to Defy Finality
those altered licenses are not fully consistent with Kentucky statute, but such deviations do not render the marriages ineffective. Thus, the Third-Party Defendants have and will continue to recognize as valid those marriages solemnized pursuant to the altered licenses for purposes of the governmental rights, benefits, and responsibilities conveyed by the Executive Branch agencies over which Governor Beshear exercises supervisory control.This led the ACLU to file a motion (full text) on Nov. 20 urging to court to require licenses to be issued in their original unaltered form, stating:
As Governor Beshear has now recognized, Davis’ actions have created considerable uncertainty regarding the legality of the altered marriage licenses. They impose significant and ongoing harm on Rowan County couples who are legally eligible to marry but now face doubt and fear that a marriage solemnized pursuant to an altered marriage license could be held invalid at some unknown time in the future. And Davis’ actions effectively brand the altered licenses with a stamp of animus against gay people. This Court can and should eliminate the uncertainty and harm by enforcing its prior orders....Meanwhile, accordidng to the Nov. 6 International Business Times, Republican Kentucky Gov.-elect Matt Bevin says that when he is sworn in on Dec. 8, he will issue an executive order removing county clerks' names from state marriage licenses, hoping that this will resolve the problem.