6th Circuit Dismisses County Clerk's Suit As Moot

In Miller v. Davis, (6th Cir., April 19, 2016), the U.S. 6th Circuit Court of Appeals dismissed as moot the appeal by Rowan County, Kentucky, Clerk Kim Davis seeking a preliminary injunction against a requirement that she issue marriage licenses to same-sex couples in violation of her religious beliefs.  The court said:

On December 22, 2015, the newly-elected Governor of Kentucky issued an executive order revising Kentucky's marriage license form to eliminate the need for the name and signature of the county clerk. Davis's counsel issued a press release stating that the revised form will permit Davis and the other county clerks "to do their jobs without compromising religious values and beliefs."

The Louisville Courier-Journal reports on the decision.

Texas Supreme Court Dismisses Attempt To Void Early Same-Sex Marriage

As reported by the Austin Statesman, the Texas Supreme Court today unanimously dismissed as moot a petition for mandamus filed by Texas Attorney General Ken Paxton seeking to invalidate a same-sex marriage performed in the state four months before the U.S. Supreme Court decided the Obergefell case creating marriage equality throughout the United States.  However in the Texas case, In re State of Texas, (April 15, 2016), Justice Willett in a concurring opinion joined by Justice Devine (full text) took the lower court to task for ignoring a procedural statute in Texas that requires Texas courts to notify the attorney general of state constitutional challenges and give the state 45 days to weigh in before the case is decided. Justice Brown in a concurring opinion joined by Justice Devine (full text) argued that the trial court procedurally should not have used the device of a temporary restraining order to allow the same-sex marriage to go forward, after which plaintiffs dismissed their lawsuit. [Thanks to How Appealing for the lead.]

Chinese Court In First Ruling of Its Kind Rejects Same-Sex Marriage

A court in China yesterday ruled that same-sex marriages are not legal.  As reported by the New York Times, this is the first case of its kind adjudicated in China.  In a decision handed down a few hours after the hearing, the court upheld a decision by the civil affairs bureau in Changsha, Hunan Province, to deny Sun Wenlin and Hu Mingliang a marriage license.  The two men plan an appeal.

Norway's State Church Approves Same-Sex Marriage

According to Fox News, Norway's state church-- the Evangelical Lutheran Church-- voted on Monday to approve same-sex marriages.  It will adopt procedures to implement the decision at next year's church synod. While 88 of the synod's 115 members voted in favor of the proposal, the resolution also allows objecting clergy to refrain from performing same-sex ceremonies.

Mississippi Legislature Sends Governor Broad "Freedom of Conscience" Bill

The Mississippi Legislature today gave final passage to H.B. 1523 (full text) and (adopted amendment). Titled Protecting Freedom of Conscience From Government Discrimination Act, the bill passed the Senate by a vote of 32-17 House by a vote of 69-44.

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.

Court Strikes Down Mississippi's Ban On Adoption By Same-Sex Couples

In Campaign for Southern Equality v. Mississippi Department of Human Services, (SD MS, March 31, 2016), a Mississippi federal district court issued a preliminary injunction barring Mississippi from enforcing its statutory ban on adoption by same-sex couples. After devoting much of the opinion to issues of standing and 11th Amendment immunity, the court held that the Supreme Court's Obergefell decision requires striking down of the Mississippi adoption ban:

... [T]he majority opinion [in Obergefell] foreclosed litigation over laws interfering with the right to marry and “rights and responsibilities intertwined with marriage.”... It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit.

MS News Now reporting on the decision notes that Mississippi was the last state in the country to have a statutory ban on same-sex adoption.

Virginia Governor Vetoes "Religious Freedom" Bill As Discriminatory

As he had promised, Virginia Governor Terry McAuliffe, a Democrat, yesterday vetoed Senate Bill 41 that protected clergy, religious and religiously affiliated organizations and their employees and volunteers acting in the scope of their employment from being required to participate in the solemnization of any marriage or from receiving adverse treatment of any kind by the state because the person acted on the basis of a sincere religious or moral belief that marriage should be only the union of one man and one woman. (See prior posting.) In his veto message (full text), McAuliffe described the bill as one that shields "those who actively discriminate against same-sex couples" from civil liability.  McAuliffe said in part:

Although couched as a “religious freedom” bill, this legislation is nothing more than an attempt to stigmatize.  Any legitimate protections  ... are duplicative of the First Amendment ...; Article I, Section 11 of the Constitution of Virginia; and the Virginia Religious Freedom Restoration Act.  Any additional protections are styled in a manner that prefers one religious viewpoint—that marriage can only validly exist between a man and a woman—over all other viewpoints.  Such a dynamic is not only unconstitutional, it equates to discrimination under the guise of religious freedom.

This legislation is also bad for business and creates roadblocks as we try to build the new Virginia economy.

Washington Times reports on the governor's action.

Recent Articles of Interest

From SSRN:

• Avishalom Westreich, An International Perspective on Same-Sex Marriage Post Obergefell (and Some Thoughts on Legal Positivism as a Means of Reconciliation): The Israeli Case, (Brigham Young University Journal of Public Law, Forthcoming).
• Sahar F. Aziz, Security and Technology: Rethinking National Security, (2 Tex. A&M L. Rev. 791 (2015)).
• Pok Yin Stephenson Chow, Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights Treaty-Body Practice and the Issue of Ambivalence, (Human Rights Law Review, 2016 (Forthcoming)).
• Candace B. Ford, Marriage, Religion, and the Art of Judging in Post-Obergefell Louisiana, (43 S.U. L. REV. ___ (2016)).
• Casey E. Faucon, Polygamy after Windsor: What's Religion Got to Do with It?, (Harvard Law & Policy Review, Vol. 9, p. 471, 2015).
• Ruth Colker, Freedom to Choose to Marry, (Columbia Journal of Gender and Law, Vol. 30, No. 2, 2016).
• Uladzislau Belavusau & Dimitry Kochenov, On the 'Entry Options' for the 'Right to Love' : Federalizing Legal Opportunities for LGBT Movements in the EU, (EUI Department of Law Research Paper No. 2016/09 (2016)).

From SSRN (Islamic Law):

• Yusuf Sani Abubakar, Anowar Zahid & Ruzian Markom, Insurable Interest Under Life Insurance And Family Takaful, (Shariah Journal, Vol. 23, No. 2 (2015) 343-364).
• Anowar Zahid, et. al., Qarinah: Admissibility of Circumstantial Evidence in Hudud and Qisas Cases, (Mediterranean Journal of Social Sciences, Vol. 6, No. 2, March 2015).

Recent Articles and Books of Interest

From SSRN:

• Frederick Mark Gedicks, The Religious-Question Doctrine: Free-Exercise Right or Anti-Establishment Immunity?, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2016/10, March 2016).
• Nathan B. Oman, Doux Commerce, Religion, and The Limits of Antidiscrimination Law, (Indiana Law Journal, Forthcoming).
• Shannon Gilreath & Arley Ward, Same-Sex Marriage, Religious Accommodation, and the Race Analogy, (Wake Forest Univ. Legal Studies Paper March 2016).
• Stuart Chinn, Finding Common Ground Across Race and Religion: Judicial Conceptions of Political Community in Public Schools, (Utah Law Review, Forthcoming).
• Richard Moon, The Accreditation of Trinity Western University's Law Program, (Law Matters (CBA - Alberta), Summer 2015).
• Jeremiah A. Ho, Once We're Done Honeymooning: Obergefell v. Hodges, Incrementalism, and Advances for Sexual Orientation Anti-Discrimination, (Kentucky Law Journal, Vol. 104, 2016).
• Anshul Kumar Pandey & Nilotpal Bansal, Mutilating the Past -- The Islamic State and the Last Song of History, (Februrary 19, 2016).

From SmartCILP:

• Henry L.Chambers, Jr., Telescoping and Collectivizing Religious Free Exercise Rights, 75 Maryland Law Review 392-414 (2015).
• John W. Compton, Evangelical Reform and the Paradoxical Origins of the Right to Privacy, 75 Maryland Law Review 362-382 (2015).
• Hon. Kermit V. Lipez, George Washington, Elena Kagan, and the Town of Greece, New York: The First Amendment and Religious Minorities, [Abstract], 16 Journal of Appellate Practice and Process 1-14 (2015).
• Loren F. Selznick, Running Mom and Pop Businesses By the Good Book: The Scope of Religious Rights of Business Owners, 78 Albany Law Review 1353-1392 (2014/2015).
• Symposium: Victoria Saker Woeste's Henry Ford's War on Jews and the Legal Battle Against Hate Speech. Introduction by Donna C. Schuele; essays by Aviam Soifer, Carroll Seron, Clyde Spillenger and Victoria Saker Woeste. 40 Law & Social Inquiry 1032-1079 (2015).

Recent Books:

• Daniel O. Conkle. Religion, Law, and the Constitution (Concepts and Insights Series), (Foundation Press, March 2016).
• Shanruo Ning Zhang, Confucianism in Contemporary Chinese Politics: An Actionable Account of Authoritarian Political Culture, (Lexington Books, March 2016).

Virginia Legislature Passes Bill To Protect Clergy and Religious Groups That Object To Same-Sex Marriage; Governor Threatens Veto

Yesterday the Virginia General Assembly gave final passage to S.41 (full text) that protects clergy, religious and religiously affiliated organizations and their employees and volunteers acting in the scope of their employment from being required to participate in the solemnization of any marriage or from receiving adverse treatment of any kind by the state because the person acted on the basis of a sincere religious or moral belief that marriage should be only the union of one man and one woman. As reported by the Washington Blaze, Virginia Gov. Terry McAuliffe has said he would veto the bill.  It should be noted that the language of the bill requires careful reading to avoid misinterpreting it as being broader than it is.  Section B. of the bill applies its protection to any "person," but that is limited by the narrow definition of "person" in Section A. The president of the Family Foundation of Virginia accurately, albeit not totally objectively, described the scope of the bill:

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.

Federal District Judge Says Obergefell Does Not Bind Puerto Rico

In Vidal v. Garcia-Padilla, (D PR, March 8, 2016), a Puerto Rico federal district court held that the recognition of same-sex marriage in Obergefell v. Hodges  does not bind Puerto Rico until further action by the Supreme Court or Congress.  Relying on the so-called Insular Cases decided by the Supreme Court in the early 20th century, the court said "jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment...."  The court concluded:

It is in light of the particular condition of Puerto Rico in relation to the Federal Constitution, with due consideration of the underlying cultural, social and political currents that have shaped over five centuries of Puerto Rican history, that the court examines the effect of Obergefell in the instant case. The court’s analysis, therefore, does not end with the incorporation of the fundamental right to same-sex marriage in the States. Generally, the question of whether a constitutional guarantee applies to Puerto Rico is subject to determination by Supreme Court of the United States.

Lyle Denniston at SCOTUSblog has more on the decision.

Alabama Supreme Court Narrowly Avoids Confrontation With SCOTUS On Same-Sex Marriage

The Alabama Supreme Court yesterday in Ex parte State of Alabama ex rel. Alabama Policy Institute, (AL Sup. Ct., March 4, 2016), issued a per curiam order dismissing all pending motions and petitions in a suit that sought to require Alabama probate judges to refuse to issue marriage licenses to same-sex couples.  However the Order also generated six separate opinions from the 9 justices spanning 170 pages. Three of the opinions were particularly defiant of the U.S. Supreme Court's authority to hand down its Obergefell decision.

Chief Justice Roy Moore who has been in the lead in resisting same-sex marriage in Alabama (see prior posting) wrote the longest and most defiant opinion.  He actually submitted two opinions totaling 106 pages-- one an opinion on why he now decided not to recuse himself, even though he had done so at earlier stages of the case, and the second longer opinion attacking the U.S. Supreme Court's same-sex marriage decision. Explaining why he was willing to concur in the dismissal of the suit, Moore said:

Today this Court by order dismisses all pending motions and petitions and issues the certificate of judgment in this case. That action does not disturb the existing March orders in this case or the Court's holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional.

In perhaps his most radical attack, Moore said (at pp. 87-88):

The general principle of blind adherence to United States Supreme Court opinions as "the law of the land" is a dangerous fallacy that is inconsistent with the United States Constitution. Labeling such opinions as "the rule of law" confuses the law itself -- the Constitution -- with an opinion that purports to interpret that document.

Article VI, by its plain terms, binds "the judges in every state" to obedience to the Constitution itself, not to unconstitutional and illegitimate opinions of the United States Supreme Court. Just as the little boy in Hans Christian Andersen's tale pointed out that the Emperor, contrary to the assertions of his courtiers, was actually stark naked, so also the "judges in every state" are entitled to examine Supreme Court opinions to see if they are clothed in the majesty of the law of the Constitution itself rather than in naked propositions of men with no cognizable covering from that document.

Moore also emphasized religious liberty in his attack on the Obergefell majority, saying in part (at pg. 58):

The Obergefell majority, conspicuously overlooking the "essential and historic significance" of the connection between religious liberty and "supreme allegiance to the will of God," failed to appreciate the seriousness of imposing a new sexual-revolution mandate that requires Alabama public officials to disobey the will of God.

Justices Parker and Murdock also wrote defiant concurring opinions, while Justice Shaw's concurring opinion was highly critical of Chief Justice Moore's approach.

Justice Bolin's somewhat temperate concurrence is of particular interest. He said in part:

Although I have many times not agreed with a decision of the United States Supreme Court, or a decision of the Alabama Supreme Court for that matter, I have never criticized an opinion from any court in the manner in which I regrettably do so today. I am, however, able to count to five--and I know that five votes trump four; and, although that does not make it right, it does make it a majority opinion....

The foregoing being said, I am further compelled to concur specially to express my concern, which remains to be determined in future cases, that the Obergefell decision may have emasculated this State's entire statutory licensing scheme governing "marriage" to the point of rendering it incapable of being enforced prospectively.

Al.com reports at length on the decision.

Georgia's Republican Governor Opposes "Religious Freedom" Bill on Biblical Grounds

As a number of state legislatures consider enacting religious freedom bills to protect opponents of same-sex marriage, one of the most contentious of the bills has been Georgia's HB 757 which among other things would bar government from taking any adverse action against any person or faith-based organization based wholly or in part on the person or organization believing, speaking or acting in accordance with their belief that marriage should be between a man and a woman and sexual relations should be reserved to such a union.  The Atlanta Journal Constitution reported yesterday that Georgia's Republican Governor Nathan Deal took a surprisingly strong stand against the legislation:

Amid a growing outcry from powerful corporations over Georgia’s “religious liberty” proposal, Gov. Nathan Deal issued his strongest warning yet to lawmakers who are debating controversial legislation seen as a conservative answer to the Supreme Court’s same-sex marriage ruling.

In stark terms, the Republican said he would reject any measure that “allows discrimination in our state in order to protect people of faith,” and urged religious conservatives not to feel threatened by the ruling....

Standing in the lobby of a government building after a ribbon-cutting ceremony, he laid out a lengthy condemnation of the measure from a biblical perspective, first noting that he is a Southern Baptist who took religion courses at Mercer University.

“What the New Testament teaches us is that Jesus reached out to those who were considered the outcasts, the ones that did not conform to the religious societies’ view of the world … We do not have a belief in my way of looking at religion that says we have to discriminate against anybody. If you were to apply those standards to the teaching of Jesus, I don’t think they fit.”

Recent Articles of Interest

From SSRN:

• Kif Augustine-Adams, Religious Exemptions to Title IX, (February 19, 2016).
• Matthew W. Bourda, Turning the Water to Blood: How Burwell v. Hobby Lobby Drove the Religious Freedom and Restoration Act Out of Touch with Society, (41 T. Marshall L. Rev. Online 160 (2016)).
• Levi Cooper, Legislation for Education: The Munkács Regulations Enacted by Rabbi Tsevi Elimelekh of Dynów, (Polin: Studies in Polish Jewry 30 (2017), Forthcoming).
• Shaun Alberto de Freitas, Religious Associational Rights and Sexual Conduct in South Africa: Towards the Furtherance of the Accommodation of a Diversity of Beliefs, (February 20, 2016).
• Asim Jusic, From Formal Equality to Positive Neutrality to Positive Inferiority (for Some): The European Court of Human Rights’ Limited Influence on Constitutional Changes and Religion in Hungary, (Vienna Journal of International Constitutional Law, Vol. 10, 2016).
• Mohamed A. Arafa, Insights on Divine (Islamic) Law: Islamophobia versus Terrorism, Death Penalty, and Transitional Justice, (CALUMET: Intercultural Law & Humanities Review (Online) 2016).
• Kristine S, Knaplund, Becoming Charitable: Predicting and Encouraging Charitable Bequests in Wills, (77 U. Pitt. L. Rev. (Fall 2015).

From SSRN (Marriage):

• Robin Bradley Kar, Against Marriage Essentialism: A Legal Grounding for Obergefell and Same-Sex Marriage, (University of Illinois Law Review, Forthcoming).
• Gregg Strauss, The Positive Right to Marry, (February 24, 2016).
• Kaiponanea T. Matsumura, A Right Not to Marry, (Fordham Law Review, Vol. 84, 2016).

Former Employee's Fraud Claim Against Diocese Dismissed

In Simon v. Finn, (MO Cir. Ct., Feb. 16, 2016), a Missouri state trial court dismissed a fraud claim against the Catholic Diocese of Kansas City- St. Joseph brought by Colleen Simon, formerly the director for social ministries of a local parish.  Simon was dismissed after a newspaper article disclosed that she was in a same-sex marriage.  While Simon claimed that she was falsely assured by the Diocese that her same-sex marriage would not impact her employment, the court said:

For the Court to inquire into the knowing falsity of the Diocesan agents’ ... representations to Plaintiff about her sexual orientation relative to her position in the Diocese would impermissibly entangle the Court in matters and decisions purely canonical, since the Court must necessarily examine the religious views and practices of the Diocese in an attempt to perceive the reasonableness of Plaintiff’s reliance on the Diocese’s representations.

However the court permitted Simon to move ahead with her claim that the Diocese violated Missouri law requiring it to furnish any former employee requesting it a letter describing his or her service. It also permitted Simon to move ahead with her wage and hour claim. ADF issued a press release announcing the court's decision.

UPDATE: Catholic Culture reported Feb. 23 that the Diocese and Simon have entered an undisclosed settlement of the wage and hour and the severance letter claims.

South Dakota Legislature Passes Bill On Transgenders In School Restrooms; 3 Other LGBT Bills Pending

This week the South Dakota legislature passed and sent to  Gov. Dennis Daugaard HB 1008 (full text) that provides:

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.

Justice Scalia's Opinions on Religion Clauses and Religious Issues (Updated)

The media continue to be filled with tributes to Justice Antonin Scalia who died suddenly over the week end. (See prior posting).  Religion News Service and NPR review Justice Scalia's views on religion, the religion clauses of the 1st Amendment and on social issues that have become religious flash points.

Here are links to cases involving issues of religion, religious exercise or religious speech in which Scalia wrote opinions (either majority, concurring or dissenting):

• Edwards v. Aguillard, (1987) (dissenting opinion)
• Employment Division v. Smith, (1990) (majority opinion)
• Lee v. Weisman, (1992) (dissenting opinion)
• Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, (1993) (concurring opinion)
• Lamb's Chapel v. Center Moriches Union Free School District, (1993) (concurring opinion)
• Board of Education of Kiryas Joel Village School District v. Grumet, (1994) (dissenting opinion).
• Capitol Square Review and Advisory Board v. Pinette, (1995) (opinion of the court)
• City of Boerne v. Flores, (1997) (concurring opinion)
• Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, (2002) (concurring opinion)
• Locke v. Davey, (2004) (dissenting opinion)
• Van Orden v. Perry, (2005) (concurring opinion)
• McCreary County v. ACLU, (2005) (dissenting opinion)
• Elmbrook School District v. Doe, (2014) (dissent to denial of cert.)
• EEOC v. Abercrombie & Fitch Stores, Inc., (2015) (majority opinion)

Here are opinions he wrote on issues of abortion, homosexuality and same-sex marriage:

• Webster v. Reproductive Health Services, (1989) (concurring in part)
• Ohio v. Akron Center for Reproductive Health, (1990) (concurring opinion)
• Planned Parenthood of Southeastern Pennsylvania v. Casey, (1992) (concurring and dissenting)
• Shenck v. Pro-Choice Network of Western New York, (1997) (concurring and dissenting)
• Stenberg v. Carhart, (2000) (dissenting opinion)
• Lawrence v. Texas, (2003) (dissenting opinion)
• Obergefell v. Hodges, (2015) (dissenting opinion)

These lists are almost certainly incomplete.  I invite readers to continue to send along citations to others that should be added.

Recent Articles of Interest

From SSRN:

• Adriaan Lanni & Victor Bers, Disqualified Olympians: The Skeptical Greek View of Divine Judges, (Mermerlstein & Holtz, eds., The Divine Courtroom in Comparative Perspective (Brill 2014)).
• Michael A. Helfand, Identifying Substantial Burdens, (University of Illinois Law Review, Vol. 2016).
• Louis-Léon Christians, Ideologically Oriented Enterprises Faced with the Reconfiguration of Ethics and Spiritual Management, (BYU Law Review, Volume 2014, Issue 3, August 2015).
• Rene Provost, Centaur Jurisprudence: Culture Before the Law, (René Provost ed., Culture in the Domains of Law (Cambridge University Press), Forthcoming).

From SSRN (Non-U.S. Law):

• Amnon Lehavi, Residential Communities in a Heterogeneous Society: The Case of Israel, (in: Private Communities and Urban Governance: Theoretical and Comparative Perspectives, A. Lehavi (Ed.), New York: Springer (2016, Forthcoming)).
• Khaled A. Beydoun, Beyond the Paris Attacks: Unveiling the War within French Counterterror Policy, (American University Law Review, Forthcoming).
• Maria Elizabeth Marais & Loot J. Pretorius, A Contextual Analysis of the Hate Speech Provisions of the Equality Act, (Potchefstroom Electronic Law Journal, Vol. 18, No. 4, 2015).

From SSRN (Same-Sex Marriage):

• Robin Fretwell Wilson, Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT Rights, (Boston University Law Review, Vol. 95, No. 3, 2015).
• Robin Fretwell Wilson, Bargaining for Religious Accommodations: Same-Sex Marriage and LGBT Rights After Hobby Lobby, (The Rise of Corporate Religious Liberty (Micah Schwartzman, Chad Flanders, Zoë Robinson, eds., Oxford University Press, 2016)).
• Stephen Matthew Feldman, (Same) Sex, Lies, and Democracy: Tradition, Religion, and Substantive Due Process (With an Emphasis on Obergefell v. Hodges), (24 William & Mary Bill of Rights 341 (2015)).
• Yuvraj Joshi, The Respectable Dignity of Obergefell v. Hodges, (California Law Review Circuit, Vol. 6, 2015).

Court Says Enforcement Motion Against Kim Davis Is Moot

A decision by a Kentucky federal district court yesterday may have nearly ended the ongoing legal saga of Rowan County Clerk Kim Davis who, until court intervention, refused to allow her office to issue any marriage licenses once same-sex marriage was legalized in the state. (See prior posting.)  As recounted by the court:

On September 3, 2015, the Court held Defendant Kim Davis in contempt.... After remanding Davis to the custody of the United States Marshal’s Service, five of six Rowan County Deputy Clerks told the Court that they would issue marriage licenses in her absence. The next day, multiple same-sex and opposite-sex couples obtained marriage licenses.... Because Davis’ Office issued these licenses, the Court found that she had purged herself of the contempt and ordered her release from custody on September 8, 2015.

However when Davis returned to work, she insisted on modifying the license forms being issued. At that point plaintiffs asked to court to order the deputy clerks to go back to issuing licenses in the original form.  In Miller v. Davis, (ED KY, Feb. 9, 2016), the court held:

Since Plaintiffs filed this Motion, the Court has received numerous Status reports [indicating] ... that the Rowan County Clerk’s Office is issuing marriage licenses to individuals eligible to marry as needed.... There has been no indication that Davis has continued to interfere with the issuance of marriage licenses since September 20, 2015.... Moreover, there is every reason to believe that any altered licenses issued between September 14 ... and September 20 ... would be recognized as valid under Kentucky law.... Under these circumstances, the Court finds that Plaintiffs’ request for relief is now moot. The Court will continue to monitor Davis and the Rowan County Clerk’s Office to ensure compliance with its Orders.

Liberty Counsel issued a press release on the decision.

Suit In Nation of Georgia Seeks Marriage Equality

According to yesterday's EurasiaNet, in the Caucasus nation of Georgia for the first time a lawsuit has been filed seeking to legalize same-sex marriage.  Plaintiff Giorgi Tatishvili filed suit in the Constitutional Court challenging the constitutionality of a Georgian law that defines marriage as being only between a man and a woman. The country's influential Orthodox Church which opposes same-sex marriage nevertheless on Sunday called for the government to provide Tatishvili protection, saying that violence against him is likely for bringing the suit. Minority rights activists in Georgia have not supported the lawsuit, fearing that it will increase hostility against and marginalization of the country's LGBT community. Pro-Russian groups have used the specter of legalized same-sex marriage in their opposition to Georgia joining the European Union.