9th Circuit Hears Oral Arguments By Proposition 8 Backers For Disclosure Exemption

On Friday, the U.S.9th Circuit Court of Appeals heard oral arguments in ProtectMarriage.com - Yes on 8 v. Bowen. (Audio of full arguments.) As reported by the San Francisco Chronicle, at issue is the attempt by backers of California's 2008 Proposition 8 to avoid California's required filing of the names of contributors of $100 or more to the campaign to pass the now-overturned Prop 8 ban on same-sex marriage. Appellants say that backers have already suffered vandalism, hate mail, boycotts and death threats. While the names of contributors have already been released by state court order, appellants want the federal court to order the state to remove the names from its website, seal its files, and grant a filing exemption for future elections.

Former Miss California USA Sues Claiming Religious Discrimination

Former Miss California USA, Carrie Prejean, yesterday filed a lawsuit in a California state court against Miss California pageant officials accusing them of religious discrimination, as well as defamation , disclosure of private medical facts and intentional and negligent infliction of emotional distress. Prejean's title was taken away in June 2009, allegedly for breach of contract. The complaint (full text) in Prejean v. Lewis, (Los Angeles Superior Ct., filed 8/31/2009), alleges in part that defendants violated California's Unruh Civil righs Act (CA Civil Code Sec. 51) by conspiring to have Prejean dismissed as Miss California USA because she insisted on publicly expressing her religious beliefs opposing same-sex marriage. Entertainment Tonight reports on the lawsuit. (See prior related posting.)

Religious Advocacy Groups Issue Statements On Kagan Nomination

A number of religious advocacy groups have issued statements commenting on President Obama's nomination of Elena Kagan to the U.S. Supreme Court. The Baptist Joint Committee said it hopes Kagan, if confirmed, "will protect our most fundamental freedom — religious freedom — with a commitment to principles of both no establishment and free exercise embodied in our 'first freedom'." Catholic Families for America opposed the nomination, saying it had "'grave concerns' about her promotion of same-sex 'marriage' and abortion, as well as a 'dangerous internationalism' that has become fashionable among leftist jurists." The American Jewish Committee welcomed the nomination, saying: "We commend President Obama on nominating Elena Kagan, whose strong legal credentials make her a worthy candidate for the U.S. Supreme Court."

Americans United for Separation of Church and State said: "We simply don’t know much about Elena Kagan’s views on church-state separation.... It's the job of the Senate Judiciary Committee to fill in the picture by asking her questions about how religion and government should interact." Liberty Counsel also raised questions: "The Senate should press hard to question Elena Kagan on her judicial philosophy. The public deserves to know whether Kagan will use her transnational law philosophy as a lens through which she views the Constitution. And the public needs to know whether her personal views will trump the Constitution, as they appeared to do when she banned military recruiters from campus."

The Jewish Council for Public Affairs release said: "Supreme Court nominees should be held the highest standard and be fully committed to protecting justice for all and our nation's core values described in the Constitution and the Bill of Rights.... We encourage Senators to give Ms. Kagan full and fair consideration and hope all sides keep discussions and debate civil." The Muslim Public Affairs Council said: "We call upon Ms. Kagan, if she is confirmed, to follow in the footsteps of Justice Stevens in his commitment to preserving individual freedoms, checking executive power, and upholding the rule of law which have made America a better place for over 35 years."

Arizona Legislature Passes RFRA Amendments To Allow Businesses To Refuse To Serve Gays On Religious Grounds

The Arizona legislature on Thursday passed and sent to the governor SB 1062 which amends the state's Religious Freedom Restoration Act to extend its coverage to the exercise of religion by corporations and other business organizations. The bill also provides that its protections may be asserted in lawsuits even if the government is not a party. (Background form Arizona Center for Policy.) The controversial bill is designed to permit businesses that oppose homosexuality or same-sex marriage on religious grounds to refuse to provide goods or services if it violates their religious beliefs. ABC News reports that Gov. Jan Brewer is still deciding whether or not to sign the bill. Some suggest that if the controversial bill becomes law, it could lead to boycotts in connection with the Super Bowl scheduled for Arizona next year. AP reports further on the legislation.

Michigan Anti-Bullying Bill Criticized Over Religious Exemption

Michigan is one of three states without an anti-bullying law. Currently, Matt's Safe School Law, SB 45, is working its way through the state's legislature. ABC News reports that the state Senate passed the bill last Wednesday, but added a controversial exemption that provides the bill "does not prohibit a statement of a sincerely held belief or moral conviction." Columnist Dan Savage strongly criticized the exemption, saying:

It really is a God-hates-fags-special-rights-for-Christians-to-abuse-LBGT-kids-in-the-school law. It's a law that specifically empowers students, teachers, administrators [and] principals to bully LGBT kids if they can point to a moral justification."

Bill sponsor Rick Jones says this language was not intended to allow a child to be confronted or abused, but was merely designed to protect the child who says in class that his religion does not believe in same-sex marriage.  Jones says he is open to the language being changed, so long as students' 1st Amendment rights are protected.


UPDATE: The Michigan House of Representatives on Nov. 10 passed HB 4163, a version of the anti-bullying law that does not contain the language exempting statements motivated by religious or moral beliefs. (Huffington Post.)

7th Circuit: Ministerial Exception Doctrine Applies To State Tort Claims

In Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., (7th Cir., July 28, 2022), the U.S. 7th Circuit Court of Appeals held that the the Co-Director of Guidance at a Catholic high school was a "minister" for purposes of the ministerial exception doctrine. It went on to hold that the ministerial exception doctrine applies to state tort claims against the Archdiocese for Interference with Contractual Relationship and Intentional Interference with Employment Relationship. In the case, the school refused to renew its contract with Lynn Starkey, who had been employed by the school for nearly forty years, after the school learned of Starkey's same-sex marriage. Starkey sued both the school and the Archdiocese. Summarizing its holding, the court said in part:

Starkey was a minister because she was entrusted with communicating the Catholic faith to the school’s students and guiding the school’s religious mission. The ministerial exception bars all her claims, federal and state.

Becket issued a press release discussing the decision.

Ted Kennedy Laid To Rest; His Complex Relationship With Catholic Church Is Explored

A funeral mass (background) was recited yesterday for Sen. Edward M. Kennedy (Boston Herald), with Cardinal Sean P. O’Malley, archbishop of Boston, in attendance (Boston Globe). Kennedy has been described by Tim Rutten in the Los Angeles Times as "America's most famous Catholic politician and its most visible link to the bonds of identity and solidarity that have for so long joined Catholics to the Democratic Party." President Obama delivered a eulogy (full text) at the funeral mass, held at the Basilica of Our Lady of Perpetual Help in Boston. As Kennedy was buried, the media carried a number of stories about his complicated relationship with the Catholic Church. Kennedy's support for abortion rights and same-sex marriage has drawn strong criticism from many Catholic leaders, and some pro-life advocates have argued that his stance on abortion should have disqualified him from having a public Catholic funeral mass. (Lifesite News).

At Kennedy's burial service at Arlington National Cemetery, retired Washington Cardinal Theodore McCarrick read long excerpts from a letter that Kennedy sent to Pope Benedict XVI last month and from the Pope's response. (Politics Daily.) The letter from Kennedy, hand delivered by President Obama during his July meeting with the Pope, asked the Pontiff to pray for the Senator's health. In the letter, Kennedy also reiterated his commitment to health care reform and said he believes in conscience protection for Catholics in the health care field. The Pope's response through a senior Vatican official, two weeks later, expressed the Pontiff's concern for Kennedy and said in part: "His Holiness prays that in the days ahead you may be sustained in faith and hope, and granted the precious grace of joyful surrender to the will of God our merciful Father." Meanwhile Time Magazine notes while the Vatican's official newspaper L'Osservatore Romano has reported on Kennedy's death, noticeably absent is a statement directly from the Pope.

Kentucky Clerk Continues To Refuse To Issue Marriage Licenses, Despite Injunction

Continuing to maintain her religious objections to issuing marriage licenses to same-sex couples, Rowan County, Kentucky Clerk Kim Davis yesterday filed with the federal district court a motion (full text) to stay the court's Aug. 12 preliminary injunction pending appeal. (See prior posting.) Meanwhile, as reported by AP, Davis' office continued to refuse to issue marriage licenses. Staff said Davis was on vacation, and others in the office also authorized to issue licenses refused to do so.  The staff handed one couple a Post-it note with the phone number of Davis' lawyers, Liberty Counsel. Attorneys for plaintiffs in the case are considering asking the court to hold Davis in contempt.

More Certiorari Denials From SCOTUS Yesterday

Yesterday the U.S. Supreme Court issued it usual long beginning-of-term list of cases in which it is denying review. (Order List). In addition to the already widely reported denial of certiorari in same-sex marriage cases from five states (see prior posting), the Court also denied certiorari in the following cases of interest:

• Mehanna v. United States, (Docket No. 13-1125). At issue was whether a citizen's political or religious speech may constitute provision of material support or resources to a Foreign Terrorist Organization. (1st Circuit's opinion in the case.)
• Freshwater v. Mount Vernon School District, (Docket No. 13-1311). In the case, the Ohio Supreme Court upheld the firing of a middle school science teacher for insubordination in failing to comply with orders to remove religious materials from his classroom. (See prior posting.)
• Pittman-Bey v. Celum, (Docket No. 13-10031). In the case, the 5th Circuit held that defendants had qualified immunity in a suit by a Muslim inmate who was not allowed to participate in Ramadan activities without first having participated in Jumu'ah services. (See prior posting.)

Ministerial Exception Requires Dismissal Of Title VII Claims By Catholic School Guidance Counselor

In Roman Catholic Archdiocese of Indianapolis, Indiana v. Roncalli High School, Inc., (SD IN, Aug. 11, 2021), an Indiana federal district court  held that the ministerial exception doctrine bars Title VII retaliation, discrimination and hostile work environment claims as well as state law claims of interference with contractual and employment relationships in a suit brought by the former Co-Director of Guidance at a private Catholic high school. The school refused to renew its contract with Lynn Starkey, who had been employed by the school for nearly forty years, after the school learned of Starkey's same-sex marriage. The court said in part:

To be sure, the court does not mean to say that divergent understandings of the religious nature of an employee's role should always be resolved in the religious employer's favor. For example, it would be difficult to credit a religious employer's claim that a custodian or school bus driver qualifies as a minister simply because the employer said so.... But this case concerns the Co-Director of Guidance ... [who] performed "vital religious duties" at Roncalli.... Employees in that position met with every student throughout the year and discussed some of the most sensitive issues in a young person's life.... Roncalli expressly entrusted Starkey with the responsibility of communicating the Catholic faith to students and fostering spiritual growth.

Becket issued a press release announcing the decision.

Huge Mass In Spain Opposes Government's Social Reforms

Reflecting its opposition to social reforms enacted and proposed by Spain's Socialist government, the Catholic Church yesterday held an open-air Mass in Madrid attended by hundreds of thousands. AFP reports that Pope Benedict XVI addressed the crowd from the Vatican on large screens set up in Plaza Colon. The Pope urged families not to allow distortion of family life, and the Archbishop of Madrid attacked the "cruelty"of abortion. Since 2004, the Spanish government has legalized same-sex marriage and created quicker divorce procedures. It is proposing a new law to offer greater protections to women who wish to obtain abortions and to their doctors.

British Court Upholds Removal of Christian Social Work Student Over Facebook Comments

As reported by The Guardian and by a press release from Christian Concern, a British trial court judge yesterday upheld a decision by Sheffield University to remove graduate student Felix Ngole from his 2-year MA program in Social Work because of comments he posted on Facebook.  In 2015, commenting on the widely publicized case of Kentucky county clerk Kim Davis, Ngole, a devout Christian, said: "same sex marriage is a sin whether we like it or not. It is God’s words and man’s sentiments would not change His words." Ngole argued that the University's action infringed his free expression rights.  High Court Judge Rowena Collins Rice ruled, however:

Public religious speech has to be looked at in a regulated context from the perspective of a public readership. Social workers have considerable power over the lives of vulnerable service users and trust is a precious professional commodity.

Supreme Court Denies California Prop 8 Backers Review of Contribution Disclosure Law

The U.S. Supreme Court today denied certiorari in ProtectMarriage.com v. Padilla, (Docket No. 14-434, cert. denied 3/2/2015) (Order List).  In the case, the 9th Circuit in a 2-1 decision (full text) rejected a challenge by backers of California's Proposition 8 to the state's campaign contribution disclosure requirements. Challengers had argued that contributors to the campaign against same-sex marriage had been harassed.

New Articles and Book On Religion and Law

From SSRN:
Jaynie R. Randall, Sundays Excepted: Originalism, the Blue Laws, and the Christian Nation, (Dec. 2006).

Nicholas Aroney, The Constitutional (In)Validity of Religious Vilification Laws: Implications for Their Interpretation, (Federal Law Review, Vol. 34, p. 287, 2006 ).

David Burnett, Atheism and the Courts, (May 2006).

From SmartCILP:
Decisions and Families: A Symposium on Polygamy, Same-Sex Marriage, and Medical Decision Making. Articles by Armand H. Matheny Antommaria, John E.B. Myers, Elizabeth B. Cooper, Christine Talbot and Irwin Altman. 8 Journal of Law & Family Studies 293-394 (2006).

New Book:
Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts, (Cambridge University Press, 2006) (Abstract).

Competing Guides Issued For Catholic Voters

The Catholic social justice group Catholics In Alliance for the Common Good last week published Voting for the Common Good: A Practical Guide for Conscientious Catholics. It is described as "an essential tool for Catholics who wish to vote their faith this November". The Washington Post on Saturday reported that the group hopes to distribute at least 1 million of the guides before the November elections. A competing voting guide issued this year by Catholic Answers, Voting Guide For Serious Catholics, says that there are "five issues involving non-negotiable moral values in current politics": abortion, euthanasia, embryonic stem cell research, human cloning and same-sex marriage. In contrast, the guide issued by Catholics In Alliance says that Catholic voters should take into account a broader range of issues. It lists 18 issues that are important to Catholics, including poverty, immigration, the environment, global arms trade, workers' rights, nuclear disarmament and genocide.

Reacting to the new voter guide issued by Catholics In Alliance, Catholic League president Bill Donohue is quoted by LifeSite News as saying: "[It] is a slick attempt to get the abortion albatross off the necks of Catholic Democrats, but it's a failed effort-the noose is still there."

New Voter Registration Drive In Evangelical Churches

Today's Los Angeles Times reports that James Dobson's Focus on the Family is beginning a massive new voter registration drive through Christian evangelical churches. The program was announced in an e-mail to supporters last week. It is recruiting county and church coordinators in 8 states: Maryland, Montana, Tennessee, Michigan, Ohio, Pennsylvania, New Jersey and Minnesota. In Ohio, 3 million copies of voter registration instructions will be distributed in bulletins by 15,000 churches. Focus on the Family will also distribute voter guides detaiing candidates' views on issues such as same-sex marriage, abortion, and stem cell research. Critic Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, says that Dobson is jeopardizing the tax exemption of churches that take part in this project. Organizers of the project, however, say that they are within the law so long as they merely register voters and discuss values, and do not endorse a specific candidate or party.

Catholic Bishops Considering How To Treat Dissenting Politicians

According to the Associated Press, a Roman Catholic bishops' special task force on Catholic politicians who disagree with the Church on issues like abortion, euthanasia and same-sex marriage will confer with Democratic and Republican lawmakers in Washington this week. During the 2004 Presidential campaign, the issue of whether dissenting Catholic candidates should be barred from receiving Holy Communion became an important issue. Last year the U.S. bishops agreed that officeholders who support abortion rights or euthanasia are "cooperating in evil", but only individual bishops would decide whether they should receive communion. The new task force may have revised guidelines ready for the U.S. bishops' next meeting in June, in advance of the upcoming congressional campaign. Washington's Cardinal Theodore McCarrick who chairs the task force said the bishops were discussing with college presidents the possibility of denying awards and speech invitations to such candidates. Some bishops want a ban on all appearances while others would only ban speeches on topics where there is disagreement with church teaching.

Alberta to Protect Officials With Religious Objections to Performing Gay Marriage

Now that Canada has recognized same-sex marriages, individual provinces are concerned about protecting marriage commissioners who have religious scruples against performing such ceremonies. (See earlier posting.) Alberta Justice Minister Ron Stevens has promised to introduce legislation to shield commissioners from human rights complaints in such cases, even if it means invoking the "notwithstanding clause" of Sec. 33 of the Canadian Charter of Rights and Freedoms that permits laws to override the Charter, subject to re-enactment every 5 years. Today's Globe and Mail reports on these developments and says that the Canadian federal government is unlikely to oppose such a law. In Alberta, use of the "notwithstanding clause" requires a province-wide referendum. A marriage minister in Manitoba has already been sued by a gay couple after he refused to perform a wedding ceremony for them.

Recent Articles of Interest

 From SSRN:

• Michael A. Helfand, Religious Liberty and Religious Discrimination: Where Is the Supreme Court Headed?, (2021 University of Illinois Law Review Online 98 (2021)).
• Edward J. Larson, 46 at 100: Live by Faith and Lead with Science, (2021 University of Illinois Law Review Online 184 (2021)).
• Barbara P. Billauer, The Devil and the Dice; Job and Justice: Understanding the Misfortunes of Job in light of Modern Science & Law, (May 18, 2021).
• Swargodeep Sarkar, Protection Rohingyas through International Adjudication-Decoding Provisional Measures of International Court of Justice in The Gambia vs Myanmar, (Musamus Law Review, Volume 3, Issue 1, October 2020).
• Dr. Rifai Sulaiman Lebbe, Teaching Pedagogies of the Prophet Muhammad. Part 1 (May 19, 2021).
• Carlo A. Pedrioli, Goodridge v. Department of Public Health, Same-Sex Marriage, and the Massachusetts Supreme Judicial Court as Critical Social Movement Ally. (54 Loyola Los Angeles Law Review(2021)).

From SmartCILP:

• Marc Spindelman, Masterpiece Cakeshop's Homiletics, 68 Cleveland State Law Review 347-420 (2020).

9th Circuit Hears Arguments In California Proposition 8 Case

AP reports that yesterday the U.S. 9th Circuit Court of Appeals heard two sets of arguments on different aspects of Perry v. Brown, the case challenging the constitutionality of California's Proposition 8 that barred same-sex marriage in the state. One set of arguments (audio of arguments) focused on whether now-retired Judge  Vaughn Walker who presided over the district court trial should have disclosed that he was in a long-term relationship with a male partner, arguably a fact bearing on his impartiality in deciding the case. The second set of arguments (audio of arguments) dealt with whether the court should unseal video recordings of the trial made by Judge Walker.