Supreme Court Grants Review In 6th Circuit Same-Sex Marriage Cases

The U.S. Supreme Court today granted certiorari in four same-sex marriage cases from the Sixth Circuit: Obergefell v. James (Ohio); Tanco v. Haslam  (Tennessee); DeBoer v. Snyder (Michigan); and Bourke v. Beshear (Kentucky). (Order List). In a consolidated opinion, the 6th Circuit in a 2-1 decision upheld the same-sex marriage bans in the four states. (See prior posting.) In granting review, the Supreme Court defined the questions to be argued:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) 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?

Michigan Must Recognize Same-Sex Mariages Entered Before Stay of District Court's Order

In Caspar v. Snyder, (ED MI, Jan 15, 2015), a Michigan federal district court issued a preliminary injunction requiring Michigan to recognize some 300 same-sex marriages of couples who married in the less 24 hours between a district court's striking down of Michigan's same-sex marriage ban and the 6th Circuit's stay of the order. In a 47-page opinion, the court held that:

once a marriage has been solemnized pursuant to a validly issued marriage license, the authorizing state cannot withdraw the status that it has awarded, even if the couples had no right to demand to be married in the first place.

The court however stayed the effectiveness of its injunction for 21 days to allow an appeal to the 6th Circuit. Christian Science Monitor reports on the decision.

Minister Sues Michigan For Right To Perform Same-Sex and Polygamous Marriages

In Michigan, a Detroit minister filed a federal court lawsuit on Monday against the state's governor and attorney general alleging that the state is violating his religious freedom by barring him from performing same-sex and polygamous marriages.  According to the Detroit News, in the suit plaintiff Rev. Neil Patrick Carrick alleges that he has declined requests to perform same-sex marriage ceremonies because under Michigan law it is a crime punishable by up to a $500 fine to knowingly do so.

Developments In Marriage Equality Cases: Louisiana and South Dakota

There were two developments yesterday in the array of cases challenging same-sex marriage bans.  The U.S. Supreme Court denied the petition for direct review of a trial court decision in Robicheaux v. Devin, (Docket No. 14-596, cert. before judgment denied, Jan. 12, 2015) (Order List). The district court upheld Louisiana's same-sex marriage ban and the 5th Circuit last week heard oral arguments in the case. (See prior posting.)

Also yesterday in Rosenbrahn v. Daugaard, (D SD, Jan. 12, 2015), a federal district court held that  South Dakota's same-sex marriage ban violates the due process and equal protection clauses of the 14th Amendment.  However, the court stayed its injunction pending appeal to the 8th Circuit. Lyle Denniston at SCOTUSBlog reporting on the decision said:

Although most of Judge Schreier’s reasons for nullifying the South Dakota ban on Monday were familiar from other decisions, she was among the first to reject what has been a more recent claim by state officials: that is, that marriage is a domestic relations matter, and that federal courts have no jurisdiction over such matters.  There is such an exception, the Sioux Falls judge found, but that it does not go so far as to bar new constitutional claims against same-sex marriage bans.

Following the district court's decision, South Dakota Attorney General Marty Jackley reacted in a press release, saying in part: "It remains the State’s position that the institution of marriage should be defined by the voters of South Dakota and not the federal courts."

Over Strong Dissent, 9th Circuit Denies En Banc Review of Marriage Equality Decisions

In Latta v. Otter, (9th Cir., Jan. 9, 2015), the U.S. 9th Circuit Court of Appeals refused to grant en banc review of a 3-judge panel's decision striking down same-sex marriage bans in Idaho and Nevada. (See prior posting.) Judge O'Scannlain, joined by Judges Rawlinson and Bea, filed a 25-page dissent to the denial of review, saying in part:

Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy.

SCOTUSBlog reports on the 9th Circuit's action, calling Judge O'Scannlain's opinion "one of the strongest dissenting statements yet ... on same-sex marriages."

5th Circuit Hears Oral Arguments In 3 Same-Sex Marriage Cases

Yesterday, the U.S. Fifth Circuit Court of Appeals heard oral arguments in three same-sex marriage cases.  The cases argued were Robicheaux v. Caldwell, in which a district court upheld Louisiana's ban (see prior posting) (audio recording of full oral arguments); DeLeon v. Perry, in which a district court struck down the Texas bans (see prior posting) (audio recording of full oral arguments); and Campaign for Southern Equality v. Bryant, in which a district court found Mississippi's ban unconstitutional (see prior posting) (audio recording of full oral arguments). The Washington Times reports that supporters of marriage equality were encouraged by the questions from two of the three judges on the panel.

Florida Extends Health and Retirement Benefits To Same-Sex Spouses of State Employees

The Miami Herald reports that Florida officials have decided same-sex spouses of state employees will now be eligible for health insurance and retirement benefits. The rulings in memos from the Department of Management Services and from the State Retirement Director come after court decisions resulted in the legal recognition of same-sex marriage in Florida as of January 6. (See prior posting.)

Recent Articles, Book and Movie of Interest

From SSRN:

• Lina Triantafyllia Papadopoulou, Religious Jurisdictions and the Pluralisation of Legal Adjudication: The Emergence of Parallel Religious Jurisdictions in Greece, (August 28, 2014).
• M. Christian Green, From Social Hostility to Social Media: Religious Pluralism, Human Rights, and Democratic Reform in Africa, (African Human Rights Law Journal 14:1 (May 2014): 93-125).
• Mumtaz Ahmad Shah, Jammu and Kashmir: Understanding Identity and Difference, (December 21, 2014).
• Archana Mishra, Breaking Silence - Christian Women's Inheritance Rights Under Indian Succession Act, 1925, (December 25, 2014).
• Raphael Cohen-Almagor, Countering Hate on the Internet, (Annual Review of Law and Ethics, Vol. 22 (2014), pp. 431-443).
• Stephen G. Gilles, Does the Right to Elective Abortion Include the Right to Ensure the Death of the Fetus?, (January 2, 2015).
• Samuel William Bettwy, The Potential of Transnational Cinema to Counter Islamic Extremism, (CTX Journal, vol. 4, No. 4, November 2014).

From SmartCILP:

• Brett A. Geier, Texas Cheerleaders and the First Amendment: Can You Cheer for God At a Football Game?, 33 Mississippi College of Law Review 65-88 (2014).
• Rachel Wagley, The Quiet Audience: U.S. Responsibility To Call For an International Investigation Into Crimes Against Muslims in Burma, 28 Emory International Law Review 43-61 (2014).
• The Multicultural State and the Religiously Neutral State. Reply to Paul Cliteur by Phil Ryan [abstract]; rejoinder by Paul Cliteur [abstract]. 12 I.Con: Int'l J. Const. L. 457-467 (2014).

Recent book:

• Marc Solomon, Winning Marriage: The Inside Story of How Same-Sex Couples Took on the Politicians and Pundits—and Won, (ForeEdge, Nov. 2014), reviewed by The Daily Beast.

Recent movie:

• One Generation Away: The Erosion of Religious Liberty, (American Family Studios, Sept. 2014), reviewed by The Forward.

Florida District Court Judge Attempts To Clarify Injunction In Same-Sex Marriage Case

A Florida federal district court has ruled on a motion to clarify a preliminary injunction it previously issued in a suit challenging Florida's ban on same-sex marriage. (See prior related posting.) At issue was whether the court's ruling did more than require a marriage license be issued to the specific couple who filed suit. In Brenner v. Scott, (ND FL, Jan. 1, 2015), the court said:

Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.

The Clerk has acknowledged that the preliminary injunction requires her to issue a marriage license to the two unmarried plaintiffs. The Clerk has said she will do so. In the absence of any request by any other plaintiff for a license, and in the absence of a certified class, no plaintiff now in this case has standing to seek a preliminary injunction requiring the Clerk to issue other licenses. The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk’s obligation to follow the law arises from sources other than the preliminary injunction.

As reported by SCOTUSblog, immediately following this decision the law firm advising court clerks changed the advice it had previously given and said:

Greenberg Traurig has advised the Florida Association of Court Clerks and Comptrollers that clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle.

However, apparently Judge Hinkle's opinion still left some ambiguity.  Liberty Counsel issued a press release yesterday stating in part:

Nearly all media outlets... are grossly mischaracterizing the effect of the ruling....The error is likely the result of the order's condescending lecture to clerks on why they should bow to the August injunction even though they are not bound by it. Judge Hinkle’s lecture, however, has no force of law, and only invites lawlessness throughout the state.

Flurry of Court Filings Seeks To Clarify Status of Same-Sex Marriage In Florida

Florida counties find themselves uncertain about the legality of same-sex marriage in the state.  In August, in Grimsley v. Scott, a Florida federal district court issued a preliminary injunction barring various state officials from enforcing the state's ban on same-sex marriage, and ordering the Clerk of Court of Washington County, Florida to issue marriage licenses to a same-sex couple that brought the lawsuit. The court temporarily stayed these orders, but with the denial of further stays by higher courts (see prior posting), the orders are scheduled to take effect on Jan. 5. That leaves in some confusion the effect of the court's injunction.  On Dec. 24, the Clerk of Washington County filed an Emergency Motion for Clarification with the court asking it whether the court's injunction means that marriage licenses must be granted to all same-sex couples, or only to the couple specifically named in the injunction.

In response, the ACLU filed a legal memo (full text) arguing that because the court found Florida's same-sex marriage ban facially unconstitutional, the order means that all county clerks must issue marriage licenses to all same-sex couples. The court also ordered the state to respond to the motion for clarification. In its response (full text), the Attorney General said that the court is best situated to determine the reach of its own order.

Meanwhile this week an advocacy group filed state court lawsuits against two separate sets of local Florida officials seeking to prevent them from issuing licenses or performing same-sex marriages after Jan. 5. The complaint (full text) in Florida Family Action, Inc. v. Ramirez, (FL Cir. Ct., filed 12/29/2014), seeks a writ of mandamus ordering the Osceola County Clerk to deny any application for marriage license by same-sex couples.  The complaint (full text) in Florida Family Action, Inc. v. Dyer, (FL Cir. Ct., filed 12/30/2014) seeks a writ of mandamus barring the mayor of Orlando and a local judge from performing same-sex wedding ceremonies.  In both cases, the officials had expressed their intent to move ahead with same-sex marriages.

Top Dozen Church-State and Religious Liberty Developments In 2014

Each year in December, I attempt to highlight the most important  Church-State and Religious Liberty Developments of the past year.  Usually I identify the top ten stories.  This year however was so full of important developments that I have had to increase my nominations to the Top Dozen.  As always, I invite reader feedback on my selections and omissions.  Here they are:

1. The Supreme Court's Hobby Lobby decision allowed closely-held corporations to assert religious exercise rights of their owners.

2.  In the wake of the Supreme Court's Windsor decision, lower courts strike down same-sex marriage barriers in an increasing number of states.  The 6th Circuit is the main dissenter.

3.  Religiously-affiliated schools, hospitals and charities continue to object that administrative accommodations to the Affordable Care Act contraceptive coverage mandate are insufficient to protect their religious liberty rights.  Dozens of cases are in litigation over the issue.

4. In Town of Greece case, Supreme Court upholds non-coercive sectarian invocations at city council meetings.

5. The increasing strength of ISIS in Syria, Iraq and elsewhere threatens religious minorities in the Middle East and revives dream of a Caliphate.

6.  State RFRA proposals become more controversial as they clash with LGBT rights.

7.  Challenges to Internal Revenue Code parsonage allowance and church filing exemptions survive constitutional attack for plaintiffs' lack of standing.

8.  Satanic Temple becomes player in battle to diversify religious displays on public property, participate in literature distribution in schools and assert other religious rights.

9.  Courts continue to uphold New Jersey and California bans on sexual orientation change therapy for minors.

10. 6th Circuit requires strict causation to prove religiously motivated hate crimes against Amish.

11. Series of cases challenging definition of "church plan" under ERISA threatens legality of several Catholic hospital pension plans.

12. NLRB decision announces new test for asserting jurisdiction over unionization efforts at religiously-affiliated colleges and universities.

Earlier this month Religion Newswriters Association released their list of the Top 10 Religion Stories in 2014. (They too selected 12 stories, finding ties in two instances.) UPDATE: Also see the year's top picks from Don Byrd at Blog From the Capital.

Supreme Court Denies Stay of Florida Same-Sex Marriage Ruling

The U.S. Supreme Court late yesterday afternoon denied an application for a stay in a Florida same-sex marriage case while the decision is on appeal to the 11th Circuit.  The Supreme Court's order (full text) in Armstrong v. Brenner, (Dec. 19, 2014) results in a district court decision handed down in August taking effect on January 5. (See prior related posting.)  Justices Scalia and Thomas dissented from the Court's action.  SCOTUSblog reports on the Court's action.

Westboro Baptist Attempt To Intervene In Same-Sex Marriage Case Again Rejected

In Marie v. Moser, (D KA, Dec. 18, 2014), a Kansas federal district court for a second time (see prior posting) refused to allow Westboro Baptist Church to intervene as a party in a lawsuit challenging the Kansas ban on same-sex marriage. The court said that WBC's arguments were based on speculation about future possible claims by same-sex couples.  WBC was allowed to continue to file amicus briefs to assert arguments it would like the court to consider.

Pastor Brings Unusual Anti-Gay Marriage Protest To Courthouse

In Jackson, Mississippi on Friday, a Baptist pastor brought an unusual protest against the legalization of same-sex marriage to the federal courthouse. Christian Post reports that Reverend Edward James of Bertha Chapel Missionary Baptist Church brought a horse clothed in a wedding dress, with white flowers in its harness, to the courthouse, along with a protest sign reading in part: "Do you take this horse to be your unnatural wedded spouse.... This might even be possible if the ban on same-sex marriage is lifted...."  James hopes to change the mind of the federal district judge who struck down Mississipi's same-sex marriage ban last month.  The court's order has been stayed pending appeal. (See  prior posting.)

Recent Articles of Interest

From SSRN:

• Helen A. Alvare, Same-Sex Marriage and the 'Reconceiving' of Children, (Case Western Reserve Law Review, Vol. 64, No. 3, pp. 829-862, 2014).
• Odetayo Samson, A Critical Assessment of the Validity and Recognition of Same Sex Marriage Under the Nigerian Legal System, (October 16, 2014).
• Ankita Bharadwaj, Adultery- Judicial Interpretation and the Law Under Various Personal Laws in India, (November 22, 2014).
• Valentino Cattelan, Property (Mal) and Credit Relations in Islamic Law: An Explanation of Dayn and the Function of Legal Personality (Dhimma), (Arab Law Quarterly, Forthcoming).
• Christine A. Corcos, The Scrying Game: The First Amendment, State Regulation of the Crafty Sciences, and the Rise of Spiritualism, 1848-1944, (January 16, 2013).
• Ioanna Tourkochoriti, The New Regulation Against Hate Speech in Greece: Strengths and Weaknesses, (Council for European Studies, Reviews & Critical Commentary (CritCom) Columbia University, Forthcoming).
• George K. Yin, The IRS's Misuse of Scarce Compliance Resources in the Exempt Organization Area, (December 5, 2014).

From SmartCILP:

• Hossein Mir Mohammad Sadeghi, Filling the Gap In Favor of the Accused: The Approach of Islamic Criminal Law In Light of the Rule No Punishment In Case Of Doubt, [Abstract], 29 Tulane European & Civil Law Forum 147-156 (2014).

Marriage Equality Decision Stayed In Mississippi, But Not In Florida

In Campaign for Southern Equality v. Bryant, (5th Cir., Dec. 4, 2014), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a district court injunction invalidating Mississippi's ban on same-sex marriage. (See prior posting.) In granting the stay, the court said:

It is not our task today to resolve the merits of this conflict in deciding the instant motion, however, we are convinced by the opinions of our sister circuits that “a detailed and in depth examination of this serious legal issue” is warranted before a disruption of a long standing status quo.

Meanwhile in Brenner v. Armstrong, (11th Cir., Dec. 3, 2014), the U.S. 11th Circuit Court of Appeals refused to extend beyond January 5 a previous stay of a federal district court decision handed down last August invalidating Florida's ban on same-sex marriage.  As reported by SCOTUS blog, the situation in Florida, however, is confused because of several state court rulings that have been stayed pending state court appeals.

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.

Arkansas, Mississippi Same-Sex Marriage Bans Invalidated

Yesterday federal district courts in two more states-- Arkansas and Mississippi-- struck down state bans on same-sex marriage.  In each case, the ruling was stayed to permit an appeal.

In Austin v. Crane, (ED AR, Nov. 25, 2014), an Arkansas federal district court held that Arkansas' state constitutional and statutory restrictions on same-sex marriage "deny consenting adult same-sex couples their fundamental right to marry," and impose unconstitutional gender classifications. Issuance of an injunction was stayed to permit a timely appeal to the 8th Circuit. AP reports on developments.

In a separate case, last May an Arkansas state trial court struck down Arkansas' same-sex marriage ban (see prior posting), and that case is currently on appeal.  In yesterday's decision, the federal court rejected arguments that it should therefore abstain.

In Campaign for Southern Equality v. Bryant, (SD MS, Nov. 25, 2014), a Mississippi federal district court held that:

Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law. Gay and lesbian citizens cannot be subjected to such second-class citizenship. Mississippi’s same-sex marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The court issued a preliminary injunction, but stayed it for 14 days to permit an appeal to the 5th Circuit. The Clarion-Ledger reports.

Montana's Same-Sex Marriage Bans Falls; Becomes 34th State To Recognize Marriage Equality

On Wednesday, a Montana federal district court issued a permanent injunction barring Montana from enforcing statutory and constitutional provisions that prevent same-sex marriages or recognition of same-sex marriages performed in other jurisdictions.  The opinion in Rolando v. Fox, (D MT, Nov. 19, 2014), granting plaintiffs' motion for summary judgement on their equal protection claim, relies heavily on the 9th Circuit's decision last month striking down same-sex marriage bans in Idaho and Nevada. (See prior posting.) The Montana federal court's injunction, made effective immediately, makes Montana the 34th state to permit same-sex marriage.

AP reported today that in the Yellowstone County clerk's office in Billings, one deputy clerk has expressed religious objections, and three others have moral objections, to issuing same-sex marriage licenses. The County Human Relations Director, after consulting with the county attorney, has exempted the four, in part citing Title VII of the 1964 Civil Rights Act barring religious discrimination in employment.  Yellowstone County Clerk Kristie Lee Boelter is unhappy with the exemptions.  There are a total of 20 deputy clerks in the office.

Supreme Court Developments On Same-Sex Marriage

Yesterday the U.S. Supreme Court issued an Order (full text) in Wilson v. Condon denying a stay of a South Carolina federal district court's decision striking down South Carolina's ban on same-sex marriage. (See prior posting.) Justices Scalia and Thomas dissented from the denial of the stay. SCOTUSblog reports on developments.

Meanwhile, the state of Louisiana filed a petition for certiorari (full text) in Robicheaux v. George, seeking to bypass the 5th Circuit Court of Appeals and obtain Supreme Court review of a Louisiana federal district court decision that upheld Louisiana's ban on same-sex marriage. (See prior posting.) SCOTUSblog reports.