Recent Articles and Books of Interest

From SSRN:

• Travis Gasper, A Religious Right to Discriminate: Hobby Lobby and 'Religious Freedom' as a Threat to the LGBT Community, (Texas A&M Law Review, Forthcoming).
• Gila Stopler,The Challenge of Strong Religion in the Liberal State, (32(2) Boston University International Law Journal 411-448 (2014)).
• Joel Harrison & Patrick Parkinson, Freedom Beyond the Commons: Managing the Tension between Faith and Equality in a Multicultural Society, ((2014) 40 Monash University Law Review 413).
• Joel Harrison, Debating Rights and Same-Gender Relationships, (October 12, 2015).
• Jack Tsen-Ta Lee, Equality and Singapore's First Constitutional Challenges to the Criminalization of Male Homosexual Conduct, (Asia-Pacific Journal on Human Rights and the Law, vol 16(1-2), pp 150-185 (2015)).
• Stephen F. Befort & Michael Vargas, Same-Sex Marriage and Title VII, (Santa Clara Law Review, Vol. 56, 2015).
• Virgemarie A. Salazar, Islamic Perspectives on Democracy, (December 3, 2014).
• Jennifer Ann Urban, Islamic Financing - A Successful Takeoff or a Crash Landing? Whether or Not Islamic Financing Should Be Used to Finance and Lease Aircraft, (2015).
• Virgemarie A. Salazar, Theocracy in Iran: From an Ideology to an Islamic Republic, (February 1, 2014).

From SmartCILP:

• Isabelle R. Gunning, Lawyers of All Faiths: Constructing Professional Identity and Finding Common Ground, [Abstract], 39 Journal of the Legal Profession 231-272 (2015).
• Sr. Helen PreJean, Letter To a Law Student, Dear Young Person, 8 DePaul Journal for Social Justice 151-160 (2015).

Recent Books:

• John  Witte, Jr., The Western Case for Monogamy Over Polygamy, (Cambridge Univ. Press, May 2015).
• Robin Griffith-Jones & Mark Hill (eds.), Magna Carta, Religion and the Rule of Law, (Cambridge Univ. Press, April 2015).
• John Slight, The British Empire and the Hajj 1865-1956, (Harvard Univ. Press, Sept. 2015).
• John L. Esposito, Tamara Sonn & John O. Voll, Islam and Democracy after the Arab Spring, (Oxford Univ. Press, Nov. 2015).

Fragmented Decision Upholds Business' Refusal to Print LGBT Pride T-Shirts

In a 2-1 decision yesterday, the Kentucky Court of Appeals concluded that a business which prints customized T-shirts was not in violation of a county's public accommodation law when it refused to print T-shirts for a local LGBT Pride Festival. At issue in Lexington Fayette Urban County Human Rights Commission v. Hands On Originals, Inc., (KY Ct. App., May 12, 2017), was the policy of a business which prints customized t-shirts, mugs, pens, and other accessories "to refuse any order that would endorse positions that conflict with the convictions of the ownership."

Chief Judge Kramer, writing the court's opinion, held that the business, Hands On Originals (HOO), never refused goods or services to a customer on the basis the customer's sexual orientation or gender identity because the order was placed by an organization which has no sexual orientation of gender identity. Neither did HOO deny goods or services because the customer was engaging in conduct engaged in exclusively or predominantly by a protected class of people. Judge Kramer explained, saying in part:

The acts of homosexual intercourse and same-sex marriage are conduct engaged in exclusively or predominantly by persons who are homosexual. But anyone—regardless of religion, sexual orientation, race, gender, age, or corporate status—may espouse the belief that people of varying sexual orientations have as much claim to unqualified social acceptance as heterosexuals. Indeed, the posture of the case before us underscores that very point: this case was initiated and promoted by Aaron Baker, a non-transgendered man in a married, heterosexual relationship who nevertheless functioned at all relevant times as the President of the GLSO.

Judge Lambert concurred only in the result and filed a separate opinion contending that HOO is protected in its conduct because of the Kentucky Religious Freedom Restoration Statute.  She said in part:

HOO refused to print the shirts because the HOO owners believe the lifestyle choices promoted by GSLO conflict with their Christian values.

Judge Taylor dissented, saying in part:

The majority takes the position that the conduct of HOO in censoring the publication of the desired speech sought by GLSO does not violate the Fairness Ordinance. Effectively, that would mean that the ordinance protects gays or lesbians only to the extent they do not publicly display their same gender sexual orientation. This result would be totally contrary to legislative intent and undermine the legislative policy of LFUCG since the ordinance logically must protect against discriminatory conduct that is inextricably tied to sexual orientation or gender identity. Otherwise, the ordinance would have limited or no force or effect.

 Lexington Herald Leader reports on the decision.

Texas AG Says City's Ban On Officials Demonstrating Bias By Word or Deed is Unconstitutional

On Thursday, the San Antonio, Texas city council adopted, by a vote of 8-3 an ordinance (full text) expanding its non-discrimination bans to include discrimination on the basis of sexual orientation, gender identity and veteran status. It provides, however, that nothing in the ordinance "shall be construed as requiring any person or organization to support or advocate any particular lifestyle or religious view, or advance any particular message or idea." One of the most controversial portions of the new law is the provision that:

No appointed official or member of a board or commission shall engage in discrimination or demonstrate a bias, by word or deed, against any person, group of persons, or organization on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or disability, while acting in their official capacity while in such public position.

The Texas Tribune reported Friday that state attorney general Greg Abbott takes the position that this ban violates the free speech and free exercise provisions of the Texas and U.S. constitutions and opens the city to possible lawsuits. He says that the provision could expose officials to removal from office for speaking in favor of Texas' constitutional ban on same-sex marriage.

Fired Gay Church Music Director Files Discrimination Complaints

Yesterday's Chicago Tribune reports that Colin Collette, who had been employed for 17 years as a  music director at Holy Family Catholic Community in Inverness, Illinois, has filed discrimination complaints with the federal EEOC and the Cook County Human Rights Commission. Collette was fired in July after he announced that-- now that same-sex marriage is legal in Illinois-- he was engaged to be married to his longtime partner Will Nifong.  Collette says church leaders knew he was gay long before he posted his engagement notice on Facebook.  His complaints, naming a priest and a parish manager as respondents, allege discrimination on the basis of sex, sexual orientation and marital status.

Recent Articles and Books of Interest

From SSRN:

• Seval Yildirim, Global Tangles: Law, Headcoverings and Religious Identity, (Santa Clara Journal of International Law, Forthcoming).
• Faisal Bhabha, From Saumur to L. (S.): Tracing the Theory and Concept of Religious Freedom under Canadian Law, (58 Supreme Court Law Review (2d), 2012).
• Faisal Bhabha, R v. NS: What's Fair in a Trial? The Supreme Court of Canada's Divided Opinion on the Niqab in the Courtroom, (Alberta Law Review, Forthcoming).
• Carl H. Esbeck, Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause, (7 Charleston L. Rev. no. 1 ___ (forthcoming 2013)).
• Bruce Ledewitz, The Vietnam Draft Cases and the Pro-Religion Equality Project, (Duquesne University School of Law Research Paper (May 6, 2013)).
• Bryan Dearinger, The Future of Taxpayer Standing in Establishment Clause Tax Credit Cases, (Oregon Law Review, Forthcoming).
• Lapo Filistrucchi and Jens Prufer, Nonprofits are Not Alike: The Role of Catholic and Protestant Affiliation, (TILEC Discussion Paper No. 2013-013 (April 26, 2013)).

From SmartCILP:

• Radwa S. Elsaman and Mohamed A. 'Arafa, The Rights of the Elderly in the Arab Middle East: Islamic Theory versus Arabic Practice, 14 Marquette Elder's Advisor 1-53 (2012).
• Eric D. Yordy, Caught in the Clause: An Analysis of Same-Sex Marriage Through the Lens of the Establishment Clause, 22 Tulane Journal of Law & Sexuality 55-89 (2013).
• Invisible Constitutions: Culture, Religion, and Memory. Articles by Abdullahi Ahmed An-Na'im, Kathryn E. Fort, Jeffrey A. Redding, Jelte Olthof, Monica Eppinger, Semahagn G. Abebe and Michal Jan Rozbicki. 57 St. Louis University Law Journal 287-455 (2013).

Recent and Forthcoming Books of Interest:

• Michael D'Antonio, Mortal Sins: Sex, Crime, and the Era of Catholic Scandal, (Thomas Dunne Books, April 2013).
• Carolyn Renée Dupont, Mississippi Praying: Southern White Evangelicals and the Civil Rights Movement, 1945-1970, (New York Univ. Press, Aug. 2013).
• John Ragosta, Religious Freedom: Jefferson’s Legacy, America's Creed, (Univ. of Virginia Press, April 2013).

Church Autonomy Doctrine Requires Dismissal of Title VII Claim By Non-Ministerial Employee

In McMahon v. World Vision Inc., (WD WA, June 12, 2023), a Washington federal district court dismissed a Title VII sex discrimination suit, finding it is barred by the Church Autonomy Doctrine.  A Christian ministry's job offer to plaintiff for the full-time position of Donor/Customer Service Representative Trainee was rescinded when defendant learned that plaintiff was in a same-sex marriage. The court discussed the relationship between the Church Autonomy Doctrine and the Ministerial Exception, concluding that the Church Autonomy Doctrine may be invoked when a non-ministerial employee brings a Title VII action.  The court said in part:

... [T]he Church Autonomy Doctrine requires the court to abstain from resolving employment discrimination claims where a religious institution takes an adverse action pursuant to a religious belief or policy—regardless of whether the employer allegedly discriminated on religious or other protected grounds—unless it is possible for the court resolve the claims without resolving underlying controversies over religious doctrine or calling into question the reasonableness, validity, or truth of a religious doctrine or practice....

The court joins other courts ... in cautioning religious employers against over-reading the impact of the court’s holding. It is by no means the case that all claims of discrimination against religious employers are barred....  [I]f a religious employer does not offer a religious justification for an adverse employment action against a non-ministerial employee or if the plaintiff presents sufficient secular evidence that would allow a factfinder to conclude that the religious justification was pretext without wading into the plausibility of the asserted religious doctrine, it is unlikely that serious constitutional questions will be raised by applying Title VII.

Alabama Bill To Eliminate Marriage Licenses Dies In House Judiciary Committee

The Daily Caller reported yesterday that in Alabama SB 377 previously passed by the Alabama state Senate to eliminate marriage licenses died in the House Judiciary Committee last week. As previously reported, the bill which would have replaced issuance of licenses with marriage contracts entered into and recorded by the couple was seen in part as a way of dealing with religious objections by some probate court employees to issuing licenses to same-sex couples. One Republican member of the House Judiciary Committee who voted against the bill explained: "It didn’t make sense to me to make such a sweeping change about how we do marriage, just because of concern about some probate judges in a bit of a spot."

Recent Articles of Interest

From SSRN:

• Zalman Rothschild, Fulton’s Missing Question: Religious Adoption Agencies and the Establishment Clause, (Texas Law Review Online, Vol. 100 (2021)).
• Marc Spindelman, The Shower's Return: An Essay on the LGBT Title VII Sex Discrimination Cases, 82 Ohio State Law Journal Online 128 (2021).
• Marc Spindelman, Mississippi's Originalism: Dobbs v. Jackson Women's Health and the Attack on Sexual Freedom, The American Prospect (October 19, 2021).
• Frederick Mark Gedicks, Custom, Preference, or Nature? Mormon Polygamy, Same-Sex Marriage, and Natural Law Theory, (in Queer and Religious Alliances: Friendship in Family Law and Beyond (Anthem Press, forthcoming 2022)).

From SmartCILP and elsewhere:

• Jasmine R. Silver (Jason R. Silver), Binding Morality and Perceived Harm as Sources of Moral Regulation Law Support among Political and Religious Conservatives, 54 Law & Society Review 680-719 (2020).
• Dallin H. Oaks, Going Forward with Religious Freedom and Nondiscrimination, (2021 Joseph Smith Lecture at the University of Virginia, November 12, 2021).

Happy New Year 2014!

Dear Religion Clause Readers:

Happy New Year! The past year was unusual in the extent to which two developments often seemed to dominate Religion Clause's coverage-- reactions to same-sex marriage and opposition to the Affordable Care Act contraceptive coverage mandate.  However, many other interesting and challenging religious liberty and church-state items also filled 2013.

As we enter 2014, I want to again thank all of you who read Religion Clause-- both long-time followers and those who have discovered the blog more recently. And thanks to all of you who send me leads or corrections. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and comments and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want to be mentioned, I will be happy to honor that request if you let me know when sending me information.

Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has made it a widely-recognized authoritative source for keeping up on church-state and religious liberty developments around the world. Often Religion Clause carries a story well before mainstream media feature it. This year, for the fifth time in 7 years, Religion Clause was named by the ABA Journal as one of the 100 top blogs for a legal audience.

I am of course always considering whether any changes in format or coverage would make the blog more useful.  This year I changed the blog's template a bit-- to mixed reviews.  I have also begun to add subject tags to my posts to allow readers to find other blog entries covering similar subject matter.  I will not, however, have the time to retroactively add tags to the over 15,000 past blog posts that are in the Religion Clause database.  I welcome any comments or suggestions you have regarding Religion Clause. Feel free to post them as a comment to this blog entry, or to e-mail them to me at religionclause@gmail.com.

The Sitemeter shows that Religion Clause has attracted over 1,544,000 visits since I created the blog in 2005. Around 206,500 of these visits came in 2013. Sitemeter, however, is becoming a less and less reliable measure of readership.  First, the Sitemeter server which measures visits to Religion Clause suffered severe technical problems for at least two months this year. Also, a number of visits by automated bots are counted by Sitemeter. This overestimates real readers of the blog.  At the same time, readers are undercounted because of the increasing numbers who are following Religion Clause through Twitter, Facebook, Feedly, Blogger, FeedBlitz and similar services that make access more convenient. (Information about many of these alternatives are available in the blog's sidebar.)  Reading of posts, or of post headlines, through these routes is not measured by Sitemeter.  Only click-throughs are registered.

Ultimately, however, raw numbers are not as important as the quality of the audience and the usefulness of the blog to readers. On this score, I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, persons at governmental agencies, and others working professionally dealing with church-state relations and religious liberty concerns.  I encourage you to recommend Religion Clause to colleagues and friends who might find it of interest, and to link to specific posts and share them on social media.

Finally, I remind you that in addition to the postings, the Religion Clause sidebar contains links to a wealth of resources.

Best wishes for 2014!  It promises to be another year of interesting legal and political change.

Howard M. Friedman

New Orleans Mayor Issues Executive Order In Opposition To Jindahl's

Two days after Louisiana Governor Bobby Jindahl issued an executive order designed to prevent governmental entities from denying benefits to persons who act in accordance with their religious beliefs in opposition to same-sex marriage (see prior posting), New Orleans Mayor Mitch Landrieu yesterday issued a counter-Executive Order (full text).  Landrieu's order was designed to address the backlash to Jindahl's action that threatened tourist, convention and special event business in the state.  The heart of Landrieu's order is the purpose clause in Sec. 1:

The purpose of this Executive Order is to confirm for the residents of the City of New Orleans, its businesses and visitors that religious beliefs are protected from unjustified governmental burden, but that there is no tolerance in the City of New Orleans for discrimination on the basis of race, creed, national origin or ancestry, color, religion, gender or sex, sexual orientation, gender identification, marital or domestic partner status, age, physical condition or disability.

The Advocate reports on Landrieu's action and points out that New Orleans "has a history of embracing gays, lesbians, bisexuals and transgender individuals, not only culturally, through Carnival krewes and the annual Southern Decadence festival, but through its laws."

Establishment Clause Challenge To Rainbow Flags Is Dismissed

In Sevier v. Lowenthal, (D DC, March 26, 2018), the District of Columbia federal district court dismissed a suit which sought to require four members of the U.S. House of Representatives to remove Gay Pride Rainbow Colored Flags that they have placed in the hallways outside their offices.  The suit, filed by a vocal opponent of the Supreme Court's same-sex marriage decision, contends that display of these flags violates the Establishment Clause, as well as the equal protection and due process clauses.  As related by the court:

In Sevier’s view ... the gay pride flag “is a ‘religious symbol’ for the homosexual denomination,” ... and its “placement ... amounts to [Defendants’] endorsement of a particular religion.... Sevier’s “sex-based self-asserted identity narrative is that he prefers to be married to an inanimate object.” ... So, according to Sevier, unless Defendants “install a flag that represents people who self-identify as polygamists, machinists, zoophiles, and heterosexuals,”... their actions “treat ... the homosexual denomination of ... the church of moral relativism with disproportionate favor”....

Rejecting plaintiff's assertions, the court said that plaintiff's claims are premised on his argument that homosexuality is a religion, but he has offered "no legal support" for the argument. The court continued:

To be sure, the governing case law does not precisely define the contours of what constitutes “religion.”... But that does not mean there are no easy cases.... Whatever else religion might entail, it at minimum requires adherence to one or more fundamental beliefs.... “Homosexuality,” by contrast, is not a set of beliefs at all. It is a description of a person’s sexual orientation.... The gay rights movement bears no trappings of “religion” as that concept is widely understood, and Sevier has not plausibly alleged that a reasonable person would perceive the display of the rainbow flags as religious in nature.

Long Beach Post reports on the decision.

USDA Memo Gives Meat Packing Plants Broad Religious Speech Protection

ADF reported yesterday on a new Guidance Memorandum on First Amendment Policy issued by the U.S. Department of Agriculture Office of Food Safety (full text), and a related Q&A webpage.  While the Guidance Memorandum appears to flow from President Trump's Executive Order Promoting Free Speech and Religious Liberty issued in May (see prior posting), and a follow-on Memo from the Secretary of Agriculture, it also resolves a particular dispute relating to a Michigan meat-packing plant. Federal meat inspectors working at the plant had removed an article placed on the plant's break room table that expressed religious views opposed to same-sex marriage.  Apparently a USDA official, invoking an Obama-era Policy Statement on sexual harassment,  had threatened to withdraw all its inspectors if the article reappeared.  The new Guidance Memorandum gives broad permission for employees and supervisors at meat plants to express religious views, saying in part:

Employees are permitted to engage in religious expression directed at fellow employees and may attempt to persuade other employees of the correctness of their views.  Religious views should be treated the same as any other comparable speech not involving religion. Proselytizing is as entitled to constitutional protection as any other form of speech.

Supervisors are also free to engage in speech about religion.  While supervisors may not impose unfair work conditions on employees who do not share their religious beliefs, their personal views concerning religion are still protected by the First Amendment.  As a result, supervisors may also express their sincere religious views without fear of sanctions.

Some employers in facilities that are inspected by USDA may wish to display religious icons, religious pamphlets, or faith-based messages in publicly available work areas or on public websites.  Others may support employee religious organizations and openly express their own religious beliefs or practices in the workplace.  USDA employees must act to avoid the limiting or chilling of protected speech.

The Guidance Memorandum adds that USDA employees who believe they are subject to discrimination, harassment or intimidation may still exercise their rights.

Recent Articles and Book of Interest

From SSRN:

• Kenneth Einar Himma, An Unjust Dogma: Why a Special Right to Religion Wrongly Discriminates Against Non-Religious Worldviews, (San Diego Law Review, Vol. 54, No. 1, 2017).
• Caroline Mala Corbin, Is There Any Silver Lining to Trinity Lutheran Church, Inc. v. Comer?, (Michigan Law Review Online, Vol. 116, p. 137, 2018).
• Richard W. Garnett & Jackson C. Blais, Religious Freedom and Recycled Tires: The Meaning and Implications of Trinity Lutheran, (2016-17 Cato Supreme Court Review 105).
• Richard W. Garnett, Freedom 'for' Religion: (Yet) Another View of the Cathedral, (in Brett G. Scharffs, Asher Maoz, and Ashley Isaacson Woolley, eds., Religious Freedom and the Law: Emerging Contexts for Freedom for and Freedom From Religion (Routledge 2019 Forthcoming)).
• Nadia N. Sawicki, Disentangling Conscience Protections, (Hastings Center Report, Forthcoming).
• Richard W. Garnett, "Afterword," (in S. Hendrianto, S.J., ed., Priests, Lawyers, and Scholars: Essays in Honor of Robert J. Araujo, S.J." (Franciscan Univ. Press 2017)).
• Barry W. Bussey, The Right of Religious Hospitals to Refuse Physician-Assisted Suicide, ((2018) 85 S.C.L.R. (2d)).
• Netta Barak Corren, The War Within, (May 23, 2018).
• B. Jessie Hill, Sex, Lies, and Ultrasound, (89 University of Colorado Law Review 421 (2018)).
• Reva Siegel & Linda Greenhouse, The Unfinished Story of Roe v. Wade, (Yale Law School, Public Law Research Paper (2018)).
• Kevin M. Barry & Jennifer Levi, Blatt v. Cabela's Retail, Inc. and a New Path for Transgender Rights, (Yale Law Journal Forum, Vol. 127, p. 373, 2017).
• Albertina Antognini, Against Nonmarital Exceptionalism, (UC Davis Law Review, Vol. 51, 2018 (Forthcoming)).

From SSRN (Islamic law):

• Kerstin Steiner, Branding Islam: Islam, Law and Bureaucracies in Southeast Asia, (37(1) Current Journal of Southeast Asian Affairs (2018)).
• Dominik Müller & Kerstub Steiner, The Bureaucratisation of Islam in Southeast Asia: Transdisciplinary Perspectives,  (37 (1) Journal of Current Southeast Asian Affairs (2018)).
• Haider Ala Hamoudi & Mark Cammack, Islamic Law in Modern Courts (Introduction), (Aspen Casebook Series, 2018).

From SmartCILP and elsewhere:

• Valerie J. Munson, On Holy Ground: Church Sanctuary in the Trump Era, 47 Southwestern Law Review 49-60 (2017).
• Ian P. Farrell. Book Review. From Premodern Christianity to the Postmodern Jury. 53 Tulsa L. Rev. 247-259 (2018). 
• Jason E. Whitehead, Book Review. Faith, Reason, and Liberal Legal Neutrality, 53 Tulsa Law Review 375-393 (2018).
• Robert E. Rains, Icing on the Wedding Cake: Same-sex Marriage and Religious Objections--Is There an Accommodation That Will Make Everyone Equally Happy (Or Unhappy)?, 42 Vermont Law Review 191-225 (2017).
• Elise Goss-Alexander, Policy Focus: Women and Religious Freedom, (USCIRF, May 2018).

Recent Book:

• Mohammad Hashas, Jan Jaap de Ruiter & Niels Valdemar Vinding (eds), Imams in Western Europe: Developments, Transformations, and Institutional Challenges, (Amsterdam University Press, May 2018).

Chile Passes Anti-Discrimination Law That Had Been Pending For 7 Years

The Santiago Times and I Love Chile News both report on final passage by Chile's Senate on Wednesday of an anti-discrimination law that had been pending in Parliament for 7 years. The Senate's 25-3 vote in favor of the bill follows the killing in March of 24-year-old Daniel Zamudio in a neo-Nazi hate crime attack. The new law, which still needs to be approved by the Constitutional Tribunal as constitutional, punishes discrimination by fines of up to 1.8 million CLP ($3700 US). A fine of up to 733,000 CLP ($1500 US) will be imposed an a complainant if no discrimination is found. The new law defines discrimination as:

any distinction, exclusion or restriction, without reasonable justification, made by state officials or private individuals and causing deprivation, disruption or threat to the legitimate exercise of fundamental rights enshrined in the Constitution of the Republic or in international human rights treaties ratified by Chile.

It includes differential treatment based on a broad range of characteristics: race, ethnicity, nationality, socioeconomic status, ideology, political opinion, religious beliefs, participation in organizations or lack thereof, sex, gender, sexual orientation, appearance, health and disabilities. In the past, opponents of the law, including Protestant churches and the Catholic Church, had been concerned that it could be used to legalize same-sex marriage.  To deal with those concerns, the final version provides in Art. 18: "The precepts of this law cannot be interpreted as derogatory clauses or modifications of other legal norms."

Recent Articles of Interest

From SSRN:

• Hashika Durai & K. Niranjana, A Study on Religious Laws and Religious Crimes in India, (August 26, 2019).
• Cyra Akila Choudhury, Reflections on the Christchurch Massacre: Incorporating a Critique of Islamophobia and TWAIL, (TWAILR: Reflections - 9/2019).
• Perry Dane, Echad: A D’var Torah on Parshat Vaetchanan, (August 17, 2019).
• Mark Kelman, What is in a Name?, (Taxation and Regulation Across Constitutional Domains (Carolina Academic Press, 2019)).
• Richard W. Garnett, The Communitarian Work and Vision(s) of Robert Cochran (and Thomas Shaffer), (Pepperdine Law Review, Vol. 46, 2019).
• Thomas Charles Berg, Religious Freedom and the Common Good: A Summary of Arguments and Issues, (15 University of St. Thomas Law Journal 517 (2019)).
• Etienne Wain, The Blessing of Same Gender Relationships in the Anglican Church of Aotearoa New Zealand and Polynesia: A Mixed Blessing?, (Victoria University of Wellington Legal Research Paper (Sept. 2019)).
• Khaled Beydoun, The Ban and the Borderlands Within: The Travel Ban As a Domestic War on Terror Tool, (Stanford Law Review, Vol. 71, 2019).
• Shahnawaz Ahmed Malik, Minority Rights Protection in India; From Sachar Committee Recommendations to Mob Lynching, (Review Of Research Journal, 2018).
• Douglas NeJaime, The Constitution of Parenthood, (Stanford Law Review, Vol. 72, Forthcoming).

From SmartCILP:

• L. Darnell Weeden, A Functional Free Exercise Clause Analysis Requires a State To Prove a Compelling Interest Before Interfering With an Individual's Faith-Based Same-Sex Marriage Participation Objections, [Abstract], 18 Appalachian Journal of Law 113-150 (2018-2019).
• Rabea Benhalim, The Case for American Muslim Arbitration, [Abstract], 2019 Wisconsin Law Review 531-591.

NY Town Clerk Challenged In Election Over Marriage License Arrangement

AP reported yesterday that in Ledyard, New York, town clerk Rose Marie Belforti is being challenged in November's election by write-in candidate Ed Easter because of the way that Belforti is handling the issuance of marriage licenses.  Belforti decided that her Christian beliefs precluded her from issuing marriage licenses to same-sex couples, so she appointed a deputy clerk to handle marriage licenses for all couples.  Easter says that Belforti is being paid $12,000 per year for her part-time position, and the people should not be asked to pay another person to perform Belforti's duties.  Belforti says it is about accommodating her religious beliefs.

Ginsburg Becomes First SCOTUS Justice To Officiate At Same-Sex Wedding

Justice Ruth Bader Ginsburg yesterday became the first U.S. Supreme Court Justice to officiate at a same-sex wedding ceremony.  NBC reports that Ginsburg officiated at the marriage of John F. Kennedy Center for the Performing Arts President Michael M. Kaiser, to economist John Roberts. Kaiser is a long-time friend of Ginsburg.  The wedding took place in the atrium of the Kennedy Center.

Suit Challenges Investigations Into Church Refusals To Host Civil Union Ceremonies

Hawaii's civil union law, permitting same-sex civil unions, enacted in February 2011 (see prior posting) takes effect January 1, 2012. On Wednesday, two Christian churches filed a lawsuit in Hawaii federal district court claiming that individuals who are planning civil union ceremonies have already filed complaints with the Hawaii Civil Rights Commission against churches that refuse to rent their facilities for same-sex civil union and marriage ceremonies. The complaint (full text) in Emmanuel Temple, The House of Praise v. Abercrombie, (D HI, filed 12/28/2011) claims that investigations launched by the Civil Rights Commission have a chilling effect on plaintiffs' free exercise of religion. HRS Sec. 489-3 prohibits discrimination on the basis of sexual orientation in places of public accommodation. Courthouse News Service reports on the filing of the lawsuit.

Republican Senators Call For Roy Moore To Withdraw From Senate Race After Sex Charges

According to the Washington Post, a number of Republican senators are calling for Roy Moore, Alabama candidate for the U.S. Senate, to withdraw if charges in an earlier Washington Post article today are true.  The article, based on detailed interviews with named accusers, says that Moore engaged in improper sexual contact with a 14-year old girl nearly 40 years ago when Moore was a 32 year-old assistant district attorney.  Three other women say Moore tried to date them when they were between 16 and 18 years old.  Moore, well known for his battles defending a Ten Commandments monument and opposing same-sex marriage, says that the charges "are completely false and are a desperate political attack by the National Democrat Party and the Washington Post."  The special election in Alabama in which Moore faces Democratic nominee Doug Jones is scheduled for Dec. 12.

UPDATE: Defending Moore, Alabama State Auditor Jim Zeigler told the Washington Examiner:  "[T]ake Joseph and Mary. Mary was a teenager and Joseph was an adult carpenter. They became parents of Jesus. There’s just nothing immoral or illegal here. Maybe just a little bit unusual."

Court Clerk Violated Rights Of Same-Sex Couples

In Ermold v. Davis, (ED KY, March 18, 2022), a high-profile case that has been pending since 2015, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. Rejecting Davis' claim of qualified immunity, the court said: "Davis did not make a mistake. Rather, she knowingly violated the law."  Allowing plaintiffs to move ahead with their civil rights claim, the court said in part:

Ultimately, this Court’s determination is simple—Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official.

The court said that a jury should decide whether plaintiffs are entitled to compensatory and punitive damages. AP reports on the decision. [Thanks to Scott Mange for the lead.] [UPDATED]