A Bit of Humor On A Serious Topic...

For those who have been promising themselves that they will listen to the full Supreme Court oral arguments in Obergefell v. Hodges, the same-sex marriage cases argued last week, but have not gotten around to it, the task has now perhaps become more inviting with the posting on YouTube of the arguments synchronized with John Oliver dog clips:

Transcripts and Audio of Today's Same-Sex Marriage Arguments In Supreme Court Are Now Available

The Supreme Court this morning heard oral arguments in four same-sex marriage cases. It first heard 90 minutes of argument on the question "Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?" Here is the full transcript and the audio recording of arguments on that question.  The Court then heard 60 minutes of arguments on the question "Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?" Here is the full transcript and the audio recording of arguments on that question.  A New York Times report on the oral arguments is titled "Gay Marriage Arguments Divide Supreme Court Justices."

UPDATE: Lyle Denniston at SCOTUSBlog has an excellent analysis of the oral argument.

Some Background For Tomorrow's Same-Sex Marriage Arguments At the Supreme Court

Tomorrow, the U.S. Supreme Court hears oral arguments in Obergefell v. Hodges and three related cases raising the question of whether states may constitutionally refuse to authorize same-sex marriages and, even if they may, whether a state may refuse to recognize a same-sex marriage validly performed in another state. Lyle Denniston at SCOTUSBlog has an excellent summary of the legal issues involved. The New York Times last week profiled lead plaintiff James Obergefell and traces the changes in attitude toward marriage equality in Obergefell's home town of Cincinnati, Ohio. And CNN profiles the lawyers who will argue the cases. SCOTUSBlog will live blog the oral arguments beginning at 10:45 am. at this link.  For those who want in depth background material, SCOTUSBlog's case page has links to all the briefs, other relevant legal documents and additional legal analysis. The Supreme Court will release both audio tapes and the written transcript of oral arguments later tomorrow.  CBS News reports that a line began forming Friday afternoon for the limited number of seats available for spectators in the courtroom.

Oklahoma Legislature Passes 2 Bills Protecting Clergy, Judges and Churches That Object To Same-Sex Marriage

The Oklahoma legislature this week gave final passage to HB 1007 (full text) protecting clergy and religious organizations that object to same-sex marriage.  The bill provides that clergy shall not be required to solemnize marriages that violate their conscience or religious beliefs.  Religious organizations shall not be required to provide religious-based services designed for engaged or married couples or couples where the services are directly related to solemnizing, celebrating, strengthening or promoting a marriage, such as religious counseling programs, courses, retreats and workshops, if doing so would violate the conscience or religious beliefs of an official of the organization.  Clergy and officials of religious organizations are immunized from civil liability for refusing to solemnize or furnish services for such marriages.

The legislature also gave final passage to SB 788 (full text) that (unless otherwise prohibited by law) protects judges who are authorized to perform marriages, as well as clergy, from being required to "perform or solemnize any marriage in violation of his or her right to the free exercise of religion guaranteed by the First Amendment to the United States Constitution." It also provides that no church or church-controlled organization shall be required to participate in a ceremony performing or solemnizing a marriage in violation of the church's or organization's religious beliefs.

North Carolina Magistrates Forced To Resign Over Same-Sex Marriage Now Seek Reinstatement

As previously reported, last October North Carolina's Administrative Office of the Courts issued a memo stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. The memo led a number of magistrates to resign rather than perform same-sex wedding ceremonies.  Now, according to ABC News, two of the magistrates who resigned filed a state court lawsuit earlier this month seeking reinstatement, injunctive relief, damages and attorneys' fees.  Former magistrates Gilbert Breedlove and Thomas Holland contend that their religious freedom rights were infringed by requiring them to officiate at same-sex marriages.

Utah Law Creates Uncertainty In Protections For County Clerks Refusing To Officiate At Same-Sex Marriages

Yesterday's Deseret News reports that in Utah, county clerks are closely examining one provision included in SB 297 titled "Protections for Religious Expression and Beliefs about Marriage, Family, or Sexuality." The law, signed by the governor last month and effective May 12, generally protects religious officials and religious organizations from being required to participate in, or furnish goods or services to, marriage ceremonies that violate their religious beliefs. (The 10th Circuit struck down Utah's ban on same-sex marriages last year. See prior posting.) SB 297 also protects individuals holding business or professional licenses from sanctions for expressing their religious views about marriage or sexuality in a nonprofessional setting. However amendments in SB 297 to Utah Code Sec. 17-20-4 for the first time require county clerks to assure a civil marriage official is available. It provides that county clerks shall

establish policies to ensure that the county clerk, or a designee of the county clerk who is willing, is available during business hours to solemnize a legal marriage for which a marriage license has been issued.

Designees do not need to be employees of the clerk's office.  It can be anyone in the county.  According to the Deseret News:

 Offering couples a list of designees seems to be the route many county clerks are going, though the definition of "designee" might be open to interpretation.

Some county officials believe it would allow them to delegate a person of their choosing such as a family member or friend to perform the ceremony on a one-time basis, something county clerks could do until the Legislature took that authority from them 10 years ago.

But that also raises the possibility that if a grandfather, for example, were designated to marry his granddaughter and her fiancé, he would be obligated to marry any couple who asks from then on.   

Recent Articles of Interest

From SSRN:

• Tadeusz Kugler, State-Sponsored Religion as Impediment To Assimilation and Immigration: A Look at Europe, (In Narratives and Negotiation: Agency, Religion and the State, edited by Autumn Quezada-Grant and Sargon Donabed. New York, NY: Lexington Books, 2015).
• Doulas Laycock & Thomas C. Berg, Brief of Douglas Laycock, Thomas Berg, David Blankenhorn, Marie Failinger, and Edward Gaffney as Amici Curiae in Support of Petitioners in Same-Sex Marriage Cases (Obergefell v. Hodges etc.), (April 12, 2015).
• Lucia Ann Silecchia, The Call to Stewardship: A Catholic Perspective on Environmental Responsibility, (Chapter 17 of American Law from a Catholic Perspective, Edited by Ronald J. Rychlak, 2015).
• Robert A. Kahn, The Overlapping of Fools? Drawing the Line between Anti-Semitism and Anti-Zionism in Wake of the 2014 Gaza Protests, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-11, 2015).
• Pamela Foohey, Secured Credit in Religious Institutions' Reorganizations, (2015 U Ill L Rev Slip Opinions 1).
• Daniel Ortner, The Terrorist's Veto: Why the First Amendment Must Protect Provocative Portrayals of the Prophet Muhammad, (April 8, 2015).
• J. Stephen Clark, But for Sex: Equal Protection and the Individual Opportunity to Marry One's Chosen Partner Without Regard to Sex, (South Dakota Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Robin Fretwell Wilson, When Governments Insulate Dissenters From Social Change: What Hobby Lobby and Abortion Conscience Clauses Teach About Specific Exemptions,48 UC Davis Law Review 703-790 (2014).
• Is Religion Outdated (As A Constitutional Category)?, Introduction by Steven D. Smith and Larry Alexander; articles by Christopher J. Eberle, Stanley Fish, William A. Galston, Larry Alexander, Frederick Mark Gedicks, Micah Schwartzman, Maimon Schwarzschild and Winnifred Fallers Sullivan; reply by Andrew Koppelman. 51 San Diego L. Rev. 971-1142 (2014). 
• Tengku Ahmad Hazri, Constitutional Governance and the Future of Islamic Civilisation, Islam and Civilisational Renewal (from Academia.edu).

Over 140 Amicus Briefs Filed In Upcoming SCOTUS Same-Sex Marriage Cases

Oral arguments before the U.S. Supreme Cout in the same-sex marriage cases are scheduled for April 28.  The Court has received over 140 amicus briefs in the cases-- with slightly more supporting petitioners than respondents.  Links to the full text of almost all the amicus briefs are available here from SCOTUSblog.

Suit Challenges Guam's Ban On Same-Sex Marriage

Yesterday a suit was filed in federal district court in Guam challenging the constitutionality of Guam's ban on same-sex marriage.  The complaint (full text) in Aquero v. Calvo, (D Guam, filed 4/13/2015) was brought by a lesbian couple who wish to marry on Guam where they live.  The complaint points out the distance plaintiffs would need to travel to go to a state where they could now legally marry. The 9th Circuit Court of Appeals that includes Guam has already held other states' same-sex marriage bans unconstitutional. (See prior posting,) Pacific News Center reports on the lawsuit.

Southern Baptist Convention Urges Prayer Sessions On Morning of Same-Sex Marriage Arguments

The U.S. Supreme Court hears oral arguments in the same-sex marriage cases on April 28.  The Ethics & Religious Liberty Commission of the Southern Baptist Convention in a web posting is urging organizations and churches to set aside time that morning "to appeal to God to preserve marriage in our land."  It sets out a sample prayer guide to use.  It adds:

The command to pray for leaders is an appeal to pray for leaders, who in Paul’s time were avowed enemies of Christ and his church. Still, despite their hostility to the burgeoning Christian movement, Paul says that government is a gift from God meant for our good, and that Christians should pray for government officials’ betterment and their wisdom; that they’d execute justice accurately and indiscriminately. So we must....

The outcome of this decision will shape the landscape of the church’s ministry in the United States for generations to come; and it will have significant consequences on the future of religious liberty.

[Thanks to Center for Inquiry for the lead.] 

Recent Articles of Interest

From SSRN:

• Marc O. DeGirolami, Free Exercise by Moonlight, (San Diego Law Review, Forthcoming).
• Twana A. Hassan, A Historical Analysis of the Development of Free Speech Justifications, (March 28, 2015).
• Frank S. Ravitch, Be Careful What You Wish for: Why Hobby Lobby Weakens Religious Freedom, (Brigham Young University Law Review, Forthcoming).
• Robert L. Howse, Joanna Langille & Katie Sykes, Pluralism in Practice: Moral Legislation and the Law of the WTO After Seal Products, (George Washington International Law Review, (2015 Forthcoming)).
• Mark Tushnet, Civil Rights Policy, (April 2, 2015).
• Marc Greendorfer, Brief of Tri Valley Law as Amicus Curiae in Support of Respondents in Same Sex Marriage Cases Nos. 14-556, 14-562, 14-571 and 14-574, (April 2, 2015).
• Scott D. Gerber, Law and Religion in Colonial Connecticut, (55 Am. J. Legal Hist. 205, (April 2015)).
• Christopher McCrudden, Transnational Culture Wars, (I.CON International Journal of Constitutional Law, Forthcoming).
• James M. Oleske, 'State Inaction,' Equal Protection, and Religious Resistance to LGBT Rights, (University of Colorado Law Review, Vol. 87, 2015, Forthcoming).

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

• Michael Ramsden & Luke Marsh, Same Sex Marriage in Hong Kong: The Case for a Constitutional Right, (The International Journal of Human Rights (Volume 19, Issue 1, January 2015, pages 90-103).
• M.B. Hooker, Succession to Muslim Estates in Singapore: Sources of Law and Choice of Law, (Australian Journal of Asian Law, Vol. 15, No. 2, article 5, 2014).
• Rebecca French, What Is Buddhist Law?, (Buffalo Law Review, Forthcoming).
• Haider Ala Hamoudi, Wasfi H. Al-Sharaa & Aqeel Al-Dahhan, The Resolution of Disputes in State and Tribal Law in the South of Iraq: Toward a Cooperative Model of Pluralism, (in Negotiating State and Nonstate Law: The Challenges of Global and Local Legal Pluralism (Michael A. Helfand, ed. Cambridge University Press 2015)).

From SmartCILP and elsewhere:

• Corri Zoli, Emily Schneider & Courtney Schuster, Armed Conflict and Compliance in Muslim States, 1947-2014: Does Conflict Look Different Under International Humanitarian Law?, 40 North Carolina Journal of International Law & Commercial Regulation 679-738 (2015).
• Church & State, April 2015 Issue.

Presidential Candidate Ted Cruz Praises Indiana RFRA, Says SCOTUS Ruling Upholding Marriage Equality Would Be Illegitimate

Sen. Ted Cruz, the only formally announced candidate so far for the 2016 Presidential race, spoke at Morningside College in Sioux City, Iowa yesterday, focusing on religious liberty and same-sex marriage. According to the Dallas Morning News, Cruz told his audience: "Religious liberty is not some fringe view. It is the basis of this country,"  He praised the recent action of the Indiana legislature in enacting its controversial Religious Freedom Restoration Act, saying:

We’re seeing in the news right now a lot of noise because the state of Indiana bravely stood up and passed a law defending religious liberty.

Criticizing Democrats and gay-rights activists, he added:

Because of their partisan desire to mandate gay marriage everywhere in this country, they also want to persecute anyone who has a good faith religious belief that marriage is a holy sacrament, the union of one man and one woman and ordained as a covenant by God.

Expressing concern over what the Supreme Court might rule this June in the same-sex marriage cases before it, he told his audience:

The first thing and I think the most important thing every one of us can do, is pray. Lift up in prayer.

Cruz said that if the Court legalizes same-sex marriage, he will urge Congress to pass legislation stripping courts of jurisdiction over the issue. He said that a ruling by the Court legalizing same-sex marriage would be "fundamentally illegitimate."  Cruz favors a Constitutional amendment that would leave the issue to the states.

Why Is Indiana's RFRA So Controversial? This Blogger's Analysis.

Since Indiana's passage of its Religious Freedom Restoration Act earlier this week (see prior posting), there has been a flood of commentary on what the Act really means and its true impact.  The commentary, some from those with a political agenda and some from those without one, ranges from the assertion that IRFRA does little to change current law to the assertion that it creates a license to discriminate against the LGBT community.  So here is my attempt to suggest some perspective on the statute.

(1)  The heart of the statute-- the substantial burden/ compelling interest/ least restrictive means requirement-- is similar to that in the federal RFRA and those of numerous other states.  What makes these tests stand out is the U.S. Supreme Court's recent decisions that give the tests new salience.  With Hobby Lobby and Holt v. Hobbs, the Supreme Court has transformed the substantial burden and least restrictive means tests into geometrically more powerful tools to use to challenge refusals to provide religious exemptions.

(2)  Traditionally it was assumed that the federal RFRA would be used by minority religions to fend off broad regulations that might be enacted without a careful weighing of idiosyncratic religious practices that are important to often discrete and insular groups with comparatively small numbers of adherents.  Since Hobby Lobby and the explosion of same-sex marriage cases, it is largely the Christian majority (or a segment of it) that asserts it is the victim of the majoritarian process, seeking exemptions that have a negative impact on minority groups that have broadly been the victims of past governmental discrimination.

(3)  Since Hobby Lobby. the power of RFRA exemptions has been magnified because they can be asserted by fairly large economic enterprises whose owners have religious reservations about a regulatory requirement.  Indiana's RFRA may have expanded the reach of RFRA exemptions beyond those contemplated by Hobby Lobby.  In defining the persons protected by the law, it enumerates all sorts of business entities, including "a corporation."  It does not limit this to a "closely-held corporation" as the Supreme Court did in Hobby Lobby.  It may be that a separate clause in the Indiana law has that effect, but that is unclear.  Under Sec. 7, a business entity is covered if it

exercises practices that are compelled or limited by a system of religious belief held by ... the individuals who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

It can be argued that only a closely held corporation would be controlled and substantially owned by the same individuals.  But this depends on whether "substantial ownership" means a substantial percentage of the business or merely that the person has a substantial amount of money invested in the company.  CEO's of publicly held corporations often own millions of dollars of the company's stock, but still own only a small percentage of the company.

(4)  Enacted as the Supreme Court is about to hear oral arguments in same-sex marriage cases, and in the wake of numerous high-profile cases on religious refusals by businesses to furnish goods and services to same-sex couples, the law has become a symbol of the clash between conservative Christian views on sexuality and the movement of expanded LGBT rights.  Some have pointed out, accurately, that Indiana's statewide public accommodation law does not include a ban on sexual orientation discrimination.  So business that wish to discriminate on that basis do not need an exemption. [corrected]

However, Indiana's statute also applies to local governmental entities in the state.  According to the Indiana ACLU, four localities have ordinances that provide enforceable protections against discrimination on the basis of sexual orientation and gender identity-- Indianapolis, Lafayette, New Albany and Tippecanoe County.  The new IRFRA will be able to be invoked as a defense in proceedings charging discrimination under these local laws.  This aspect of the law creates particular political and economic problems for the city of Indianapolis that hosts numerous national conventions and sporting events.

(5)  Indiana's new law makes it clear that IRFRA defenses can be asserted in lawsuits between private parties; not just in suits in which the government is a party.  Thus a same-sex couple suing for breach of contract when goods are initially promised and then refused might be met by a religious freedom defense. The sale of goods provisions of the Uniform Commercial Code arguably imposes a substantial burden on religious exercise of the business that discovers it has agreed to violate its own religious principles by facilitating a same-sex wedding.  (This argument is more difficult when services rather than goods are the subject of the contract, and the plaintiff relies on the common law of contracts for enforceability.  Although the statute covers not just statutes, but also "customs" and "usages" of any governmental entity.)

Affirmative relief (damages or an injunction) is only available however against a governmental entity.  And the statute specifically provides that it does not create a cause of action against a private employer by any applicant, employee or former employee.

For other commentaries on IRFRA, see Josh Blackman's Blog and the postings to which he links. And the Washington Post reports today that Indiana lawmakers now say they will act to amend IRFRA to make it clear that it does not permit discrimination against gays.

Preliminary Injunction Bars Extension of FMLA To Same-Sex Couples

In State of Texas v. United States, (ND TX, March 26, 2015), a Texas federal district court granted a preliminary injunction ordering the Department of Labor to stay application of a rule amendment that extends the Family and Medical Leave Act to same-sex married couples even in states that do not recognize sane-sex marriage. The court asserted that Congress does not have unlimited power to impose its definition of marriage on the states and that Congress did not authorize the Department of Labor to regulate spousal benefits to do so. Houston Chronicle reports on the decision.

Puerto Rico Concedes On Same-Sex Marriage Laws

Last October, a Puerto Rico federal district court gave a rare victory to opponents of same-sex marriage. (See prior posting.)  Plaintiffs appealed the decision to the U.S. 1st Circuit Court of Appeals.  Last week, Puerto Rican officials filed a brief with the 1st Circuit (full text) stating that Puerto Rico would no longer defend the constitutionality of its marriage laws.  Appellanats' brief states in part:

To the extent that Commonwealth law does not afford homosexual couples the same rights and entitlements that heterosexual couples enjoy, the Commonwealth recognizes that equal protection and substantive due process guarantees mandate application of heightened scrutiny in this case. Under said heightened standard, the Commonwealth cannot responsibly advance before this Court any interest sufficiently important or compelling to justify the differentiated treatment afforded so far to Plaintiffs.

Freedom to Marry website has more on the decision.

Recent Articles of Interest

From SSRN:

• Andrew Koppelman & Frederick Mark Gedicks, Is Hobby Lobby Worse for Religious Liberty than Smith?, (St. Thomas Journal of Law and Public Policy, Forthcoming).
• Annabelle Lever, Democratic Equality and Freedom of Religion: The Dilemma of Public Service Provision, (Forthcoming in Philosophy and Public Issues (July 2015)).
• James Lindgren, Measuring Diversity: Law Faculties in 1997 and 2013, (March 20, 2015).
• James E. Fleming, Introduction to the Symposium on Ronald Dworkin's Religion Without God, (94 Boston University Law Review 1201 (2014)).
• David S. Cohen & Krysten Connon, Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism, (Oxford University Press, 2015).

From SSRN (LGBT Rights and Same-Sex Marriage):

• Nan D, Hunter, Pluralism and its Perils: Navigating the Tension between Gay Rights and Religious Expression, (2015).
• Nelson Tebbe, Religion and Marriage Equality Statutes, (Harvard Law & Policy Review, Vol. 9, No. 25, 2015).
• Zachary Robert Herz, The Marrying Kind, (Tennessee Law Review, Vol. 82, 2015).
• Suja A. Thomas, Text-Bound Originalism (And Why Originalism Does Not Strictly Govern Same Sex Marriage), (March 16, 2015).

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

• Stephanie Farrior, Equality and Non-Discrimination under International Law, (in Equality and Non-Discrimination Under International Law, Stephanie Farrior, ed., Ashgate Publishing, 2015).
• Zulkarnain Muhamad Sori, Shamsher Mohamad & Mohamed Eskandar Shah, Shariah Governance Practices in Malaysian Islamic Financial Institutions, (March 16, 2015).
• Yinka Olomojobi, Islam: Between Peace and Violence, (March 17, 2015).
• Marc Lane Roark, Retelling English Sovereignty, (British J. Am. Legal Studies, Forthcoming).
• Manjeet Sahu, Preferential Treatment of Hindus Under Indian Tax Law: Emphasizing on Grant of Tax Benefit to Hindu Undivided Family, (April 21, 2014).

From SmartCILP:

• Martin Wishnatsky, The Disincorporation Proclamation: Emancipating the Establishment Clause from the Fourteenth Amendment, 5 Faulkner aw Review 259-307 (2014)

New Resource On Legality of Same-Sex Unions Around The World

American Lawyer reported this week the the Jones Day law firm has launched a new website that provides information on the legal treatment of same-sex relationships in some 300 jurisdictions around the world. The website describes its coverage:

This guide is intended to provide a resource to help answer questions regarding whether particular jurisdictions throughout the world afford legal recognition to same-sex couples. For all U.N. recognized countries, including their constituent parts such as each U.S. State, and Taiwan, the guide answers whether legal recognition of same-sex couples is granted and, if so, provides answers to various follow-up questions, such as whether marriage or some other status is afforded same-sex couples, whether foreign same-sex marriages are recognized in the jurisdiction, and the manner in which same-sex couples may dissolve their relationships.

The website is also now listed under "Resources" in the Religion Clause sidebar.

Utah Enacts LGBT Anti-Discrimination Law With Extensive Religious Exemptions

As reported by JDSupra, on March 12, Utah Governor Gary Herbert signed S.B. 296,  Antidiscrimination and Religious Freedom Amendments to Utah's laws banning disrimination in employment and housing.  The bill reflected a compromise backed by the Mormon Church, as well as by supporters of LGBT rights, to ban discrimination based on sexual orientation and gender identity while giving broad religious exemptions from the anti-discrimination requirements. (See prior posting.)  Here is the full text of the religious exemptions:

  34A-5-102. Definitions -- Unincorporated entities
(i)(ii) "Employer" does not include:
(A) a religious organization, a religious corporation sole, a religious association, a religious society, a religious educational institution, or a religious leader, when that individual is acting in the capacity of a religious leader;
(B) any corporation or association constituting an affiliate, a wholly owned
subsidiary, or an agency of any religious organization, religious corporation sole, religious association, or religious society; or
(C) the Boy Scouts of America or its councils, chapters, or subsidiaries...

   34A-5-111. Application to the freedom of expressive association and the free exercise of religion.
       This chapter may not be interpreted to infringe upon the freedom of expressive association or the free exercise of religion protected by the First Amendment of the United States Constitution and Article I, Sections 1, 4, and 15 of the Utah Constitution....

    34A-5-112. Religious liberty protections -- Expressing beliefs and commitments in workplace -- Prohibition on employment actions against certain employee speech.

(1) An employee may express the employee's religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the  employer in the workplace, unless the expression is in direct conflict with the essential business-related interests of the employer.

(2) An employer may not discharge, demote, terminate, or refuse to hire any person, or  retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against any person otherwise qualified, for lawful expression or  expressive activity outside of the workplace regarding the person's religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer....

  57-21-3. Exemptions -- Sale by private individuals -- Nonprofit organizations --Noncommercial transactions....

(2) This chapter does not apply to a dwelling or a temporary or permanent residence  facility if:
(a) the discrimination is by sex, sexual orientation, gender identity, or familial status for reasons of personal modesty or privacy, or in the furtherance of a religious institution's free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution; and
(b) the dwelling or the temporary or permanent residence facility is:
(i) operated by a nonprofit or charitable organization;
(ii) owned by, operated by, or under contract with a religious organization, a religious association, a religious educational institution, or a religious society;
(iii) owned by, operated by, or under contract with an affiliate of an entity described in Subsection (2)(b)(ii); or
(iv) owned by or operated by a person under contract with an entity described in
Subsection (2)(b)(ii).

... (4) (a) (i) Unless membership in a religion is restricted by race, color, sex, or national origin, this chapter does not prohibit an entity described in Subsection (4)(a)(ii) from:
(A) limiting the sale, rental, or occupancy of a dwelling or temporary or permanent residence facility the entity owns or operates for primarily noncommercial purposes to persons of the same religion; or
(B) giving preference to persons of the same religion when selling, renting, or selecting occupants for a dwelling, or a temporary or permanent residence facility, the entity owns or operates for primarily noncommercial purposes.

       (ii) The following entities are entitled to the exemptions described in Subsection (4)(a)(i):
(A) a religious organization, association, or society; or
(B) a nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society.

... (7) This chapter does not prohibit a nonprofit educational institution from:
(a) requiring its single students to live in a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution;
(b) segregating a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution on the basis of sex or familial status or both:
 (i) for reasons of personal modesty or privacy; or
 (ii) in the furtherance of a religious institution's free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution....

In Latest Installment, Alabama Federal District Court Refuses To Stay Same-Sex Marriage Order

In the latest episode of dueling orders, the Alabama federal district court in Strawser v. Strange. (SD AL, March 16, 2015), has denied a motion by Probate Judge Don Davis to stay its preliminary injunction finding Alabama's laws banning same-sex marriage unconstitutional. Davis argued that he has been placed in a potential conflict between the district court's injunction and orders of the Alabama Supreme Court. (See prior posting.) The district court said:

Judge Davis states that he complied with this court’s preliminary injunction order and that all of the current plaintiffs in this case have received marriage licenses. Judge Davis points to rulings by the Alabama Supreme Court ordering Alabama Probate Judges not to issue marriage licenses to same-sex couples. However, Davis has not shown how this court’s preliminary injunction results in irreparable harm to him.

Reuters reports on the decision.

Arizona Says Judges Cannot Refuse To Perform Same-Sex Marriages If They Perform Others

The Arizona Supreme Court Judicial Ethics Advisory Committee has issued Revised Advisory Opinion 15-01 (March 9, 2015), Judicial Obligation To Perform Same-Sex Marriages. It provides in part that:

a judge who chooses to perform marriages may not discriminate between marriages based on the judge’s opposition to the concept of same-sex marriage.

Rule 2.3(B) of the Arizona Code of Judicial Conduct provides that a judge shall not, "in the performance of judicial duties," manifest bias or prejudice based upon sexual orientation....

Refusing to perform same-sex marriages, while agreeing to perform opposite sex marriages, also violates Rule 2.2 of the Code which provides that "[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially."

...  The JEAC concludes that a judge may choose for various reasons not to conduct any marriages at all because performing marriages is a discretionary, not mandatory, function. A judge may also choose to conduct marriages only for friends and relatives to the exclusion of all others. Such a choice would not run afoul of Rule 2.3(B) because it is not based on sexual orientation. Of course, a judge who performs marriages only for friends and relatives would violate Rule 2.3(B) if the judge refuses to perform marriages for same sex friends and relatives.

AP reports on reactions to the ruling.