Suit Against Catholic Diocese By Fired Lesbian Food Bank Manager Alleges Fraud

Kansas City Star reported yesterday on a lawsuit filed by a Kansas City (MO) woman who says she was fired from her position as a pastoral associate managing a food bank for St. Francis Xavier Catholic parish after her same-sex marital relationship was mentioned in a newspaper article.  Plaintiff Colleen Simon says that priests at the parish knew of her marriage to Rev. Donna Simon, a Lutheran minister, and had no problem with it. However it is alleged that when the relationship was publicly mentioned in an article about an area of Kansas City, Bishop Robert Finn ordered her fired.  The state court lawsuit against the Diocese and Finn claims that the diocese fraudulently encouraged her to take the food bank position knowing that it had no intention of keeping its commitments to her.

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, Circumcision Safety: A Case Study in the Failure of Leaderships, (Looking Forward, Vol. 1, No. 3, pp. 1-7, June 2014).
• Archana Mishra, Rights in Separate Property of Hindu Female – Challenge to Acquire a New Self , (June 20, 2014).
• Hendrik Gommer, The Biological Foundations of Global Ethics and Law, (Archives for Philosophy of Law and Social Philosophy (ARSP), 2014, Vol. 100, nr. 2, p. 151-175).
• Frederick Mark Gedicks, Religion, Meaning, Life, Truth, (San Diego Law Review, 2014, Forthcoming).
• Richard W. Garnett, Accommodation, Establishment, and Freedom of Religion, (67 Vand. L. Rev. En Banc 39 (2014)).
• Steve Sanders, Is the Full Faith and Credit Clause Still 'Irrelevant' to Same-Sex Marriage?: Toward a Reconsideration of the Conventional Wisdom, (Indiana Law Journal, Vol. 89, No. 1, 2014).
• Steve Sanders, Mini-DOMAs as Political Process Failures: The Case for Heightened Scrutiny of State Anti-Gay Marriage Amendments, (Northwestern University Law Review Online (June 2014)).

From SSRN (Islamic Law):

• Amir B. Izadyar & Feroza Ragnath, A New Perspective of Benevolent Loan, QARD Al-Hassan, Using Upfront Payment ‘Mesbah Point’, (International Journal of Economics 1:3, pp. 45-58, 2014).
• Jamhari Makruf, Jamhari & Iim Halimatussa'diyah, Shari’a and Regional Governance in Indonesia: A Study of Four Provinces, (Australian Journal of Asian Law, Vol. 15, No. 1, Article 4, 2014).

From SmartCILP:

• Mark Goldfeder, The Story of Jewish Polygamy, [Abstract], 26 Columbia Journal of Gender & Law 234-315 (2014).
• Peter T. Leeson, "God Damn": The Law and Economics of Monastic Malediction, 30 Journal of Law, Economics & Organization 193-216 (2014).
• Marin Lim, The Sanity of Faith: What Religious Fundamentalism Teaches About the Insanity Defense and the First Amendment, [Abstract], 17 New Criminal Law Review 252-311 (2014).

Supreme Court Rejects Attempt By County Clerk To Appeal Pennsylvania Same-Sex Marriage Decision

As reported by SCOTUS Blog, on July 9 U.S. Supreme Court Justice Samuel Alito denied an application for a stay filed by a Pennsylvania clerk of courts.  The applicant was seeking to intervene in a lawsuit decided by a district court in order to appeal the district court's invalidation of Pennsylvania's ban on same-sex marriage. State officials had declined to appeal.  The Supreme Court's docket entry in Santai-Gaffney v. Whitewood denying the application to intervene cited  the Court's denial of a stay last month in an attempt by the National Organization for Marriage to intervene to appeal the invalidation of Oregon's same-sex marriage ban.

Another Challenge To Idaho's Same-Sex Marriage Laws-- Now By Lesbian Veteran Over Burial Rights

A federal court challenge to Idaho's refusal to recognize same-sex marriages performed elsewhere was filed yesterday by a 74-year old Navy veteran who wants to be cremated and have her ashes interred together with those of her already-deceased same-sex spouse. Plaintiff Madelynn Lee Taylor brought her spouse's ashes with her back to Idaho where the couple had lived together. The complaint (full text) in Taylor v. Brasuell, (D ID, filed 7/7/2014), alleges that the sole reason the Idaho State Veterans Cemetery refused her request to make these advance arrangements is Idaho's laws prohibiting recognition of Taylor's 2008 California marriage to her long-time partner. NCLR issued a press release and AP reports on the case. In an unrelated case in May, a magistrate judge in the same federal district court struck down Idaho's laws barring same-sex marriage. (See prior posting.) However subsequently the 9th Circuit in Latta v. Otter (May 20, 2014), granted a stay of the decision while it is on appeal.

County Clerk Asking Supreme Court To Stay Decision Allowing Same-Sex Marriage In Pennsylvania

The Schuylkill County, Pennsylvania clerk of courts continues her efforts to intervene in order to appeal a federal district court's invalidation of Pennsylvania's ban on same-sex marriage.  Last week, the 3rd Circuit in Whitewood v. Secretary Pennsylvania Department of Health, (3d Cir., July 3, 2014) issued a summary order affirming the district court's refusal to permit her to intervene. Remaining unhappy with the Governor's decision not to appeal the underlying decision permitting same-sex marriage, county clerk Theresa Santai-Gaffney is now asking the U.S. Supreme Court to stay pending appeal the district court's order striking down the state's laws banning same-sex marriage.  In a petition filed Friday with Justice Alito (full text), she argues that when the Supreme Court granted a stay pending appeal to the state of Utah in a similar case, it signaled all lower federal courts that they should do the same. SCOTUS Blog reports more details.

Court Invalidates Kentucky's Same-Sex Marriage Ban; Stays Order

In Love v. Beshear, (WD KY, July 1, 2014), a Kentucky federal district court held that Kentucky's statutory and constitutional provisions barring same-sex marriage violate the 14th Amendment's Equal Protection clause and are unenforceable. Judge Heyburn wrote in part:

in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted. 

However, the court stayed its order until further order of the 6th Circuit Court of Appeals.  The same court earlier this year held that Kentucky must recognize valid same-sex marriages performed elsewhere. (See prior posting.) Washington Post reports on yesterday's decision. [Thanks to Tom Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Zvi H. Triger, Golda Meir's Reluctant Feminism: The Pre-State Years, (Israel Studies, 19.3 (Fall 2014), Forthcoming).
• Frederick Mark Gedicks & Andrew Koppelman, Invisible Women: Why an Exemption for Hobby Lobby Would Violate the Establishment Clause, (67 Vanderbilt Law Review En Banc 51 (2014)).
• Raphael Cohen-Almagor, Reconciling Liberalism and Judaism? Human Rights in Israel, (in Jo Carby-Hall (ed.), Essays on Human Rights: A Celebration of the Life of Dr Janusz Kochanowski (Warsaw: Jus et Lex Foundation, 2014), pp. 136-163).
• Robin Fretwell Wilson, Marriage of Necessity: Same-Sex Marriage and Religious Liberty Protections, (Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-35 (June 2014)).

From SmartCILP:

• David Pimentel & Brian Anderson, Judicial Independence In Postconflict Iraq: Establishing the Rule of Law In an Islamic Constitutional Democracy, 46 George Washington International Law Review 29-54 (2013).
• Sadiq Reza, Due Process In Islamic Criminal Law, 46 George Washington International Law Review 1-27 (2013).

7th Circuit Stays District Court's Invalidation of Indiana's Same-Sex Marriage Ban

In Baskin v. Bogan, (7th Cir., June 27, 2014), the U.S. 7th Circuit Court of Appeals issued a stay pending appeal of a federal district court' decision striking down Indiana's laws barring same-sex marriage. (See prior posting.) Fox59 reports on the appellate court's action and reactions to it.

Indiana's Same-Sex Marriage Ban Invalidated; Motion for Stay, Appeal Filed As Some Counties Issue Licenses

In Baskin v. Bogan, (SD IN, June 25, 2014), an Indiana federal district court held that Indian's ban on same-sex marriage, and on recognizing same-sex marriages from other jurisdictions, is unconstitutional. The court found that the ban infringes the fundamental right to marry protected by the due process clause, and discriminates on the basis of sexual orientation in violation of the equal protection clause, adding:

The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples, such as Plaintiffs, and refer to it simply as marriage-- not as same-sex marriage.  These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.

The Indianapolis Star reports that county clerks in several counties began issuing licenses for same-sex marriages yesterday. As reported by WTHR, Indiana's Attorney General quickly filed an emergency motion for a stay pending appeal (full text) and a notice of appeal to the 7th Circuit (full text). Two county clerks' offices also filed notices of appeal. Meanwhile the Attorney General contacted all counties stating that while only the five county clerks named in the lawsuits are required to comply with the court's order, everyone should "show respect for the judge and the orders that are issued."

10th Circuit Says Utah's Same-Sex Marriage Ban Is Unconstitutional

In Kitchen v. Herbert, (10th Cir., June 25, 2014), the U.S. 10th Circuit Court of Appeals in a 2-1 decision struck down Utah's ban on same-sex marriage, but stayed its mandate pending disposition of any appeal. The majority summarized its 66-page opinion:

We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.

Among the justifications rejected by the court was Utah's argument that allowing same-sex marriage "would create the potential for religious-related strife."  Judge Kelly dissenting in part argued that there is no fundamental right to same-gender marriage.

The Salt Lake Tribune reports on the decision. In a statement released yesterday, the Utah attorney general's office says it will file a petition for certiorari seeking Supreme Court review.

9th Circuit Denies En Banc Review On Strict Scrutiny For Sexual Orientation Classifications

Earlier this week, the U.S. 9th Circuit Court of Appeals refused to grant en banc review to an earlier decision by a 3-judge panel that concluded heightened scrutiny must be applied to equal protection claims based on sexual orientation. In SmithKline Beecham Corp. v. Abbott Laboratories, (9th Cir., June 24, 2014), the court reported that the call for en banc review did not receive a majority vote.  However Judge O'Scannlain, joined by Judges Bybee and Bee, filed a dissent to the refusal to review, saying in part:

This case ... came to our court in the posture of an appeal from a simple juror selection ruling during trial. Sadly, it has morphed into a constitutional essay about equal protection and sexual orientation.... The opinion’s unprecedented application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay bears significant implications for the same-sex marriage debate and for other laws that may give rise to distinctions based on sexual orientation.

Indeed, today’s opinion is the only appellate decision since United States v. Windsor ... to hold that lower courts are “required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection.” ... Such holding is wrong, egregiously so. Because of the danger that district courts will be misled by the opinion’s sweeping misinterpretation of Windsor, it is most unfortunate that we denied rehearing en banc.

SCOTUS Blog has more on the decision.

Break-Away Presbyterian Congregation Sues To Retain Property Ownership

The Milwaukee Journal-Sentinel reported yesterday that the Sheboygan County, Wisconsin First Church of Oostburg has filed a state court lawsuit against the Presbyterian Church USA in a bid to retain ownership of congregational property in the wake of its vote last week to disaffiliate from the Presbyterian Church USA and join the more conservative Covenant Order of Evangelical Presbyterians. The Church of Oostburg's vote to disaffiliate came just days ahead of the decision at the Presbyterian General Assembly to allow clergy to officiate at same-sex marriage ceremonies and to redefine marriage as a covenant between "two people".  The Presbyterian Church wants the Oostburg congregation to pay $500,000 in order to keep the property.

Pennsylvania Federal Court Denies Intervention To Appeal Same-Sex Marriage Case

As previously reported, in May a Pennsylvania federal district court held Pennsylvania's laws banning same-sex marriage to be unconstitutional, and Pennsylvania Governor Tom Corbett announced that the state will not appeal the decision.  Some two weeks later, Theresa Santai-Gaffney, clerk of courts in Schuylkill County moved to intervene in order to appeal the court's decision to the 3rd Circuit.  In Whitewood v. Wolf, (MD PA, June 18, 2014), the federal district court rejected the motion to intervene.  The court held that Santai-Gafney has not met the criteria for either intervention as of right or permissive intervention.  The court said:

At bottom, we have before us a contrived legal argument by a private citizen who seeks to accomplish what the chief executive of the Commonwealth, in his wisdom, has declined to do.

AP reports on the decision.

Order Stayed By Court After Enjoining Wisconsin's Same-Sex Marriage Ban

As previously reported, on June 6 a Wisconsin federal district court declared Wisconsin's constitutional and statutory provisions barring same-sex marriage unconstitutional and instructed the parties to submit proposed language for an injunction. Now in Wolf v. Walker, (WD WI, June 13, 2014), the court issued a carefully worded injunction against the governor, state registrar and three county clerks. However the court also stayed the injunction, as well as its earlier declaratory judgment, until the conclusion of any appeals or after the expiration of the deadline for filing appeals.  Judge Crabb wrote in part:

If I were considering these factors as a matter of a first impression, I would be inclined to agree with plaintiffs that defendants have not shown that they are entitled to a stay. However, I cannot ignore the Supreme Court’s order in Herbert v. Kitchen, 134 S. Ct. 893 (2014), in which the Court stayed a district court’s order enjoining state officials in Utah from enforcing its ban on same-sex marriage.....  [S]ince Herbert, every statewide order enjoining the enforcement of a ban on same-sex marriage has been stayed, either by the district court or the court of appeals, at least when the state requested a stay.....

It is true that the Supreme Court declined to issue a stay in a more recent case in which a district court in Oregon enjoined enforcement of that state’s ban on same-sex marriage. National Organization for Marriage v. Geiger .... (June 4, 2014). However, that order is not instructive because the district court’s injunction was not opposed by the state; rather, a nonparty had requested the stay. Thus, I do not interpret Geiger as undermining the Court’s order in Herbert.

Yesterday's Milwaukee Journal-Sentinel reports on the decision.

Suit Challenges North Dakota's Same-Sex Marriage Ban

Religion News Service reports that on Friday, a federal lawsuit was filed challenging North Dakota's state constitutional and statutory bans on same-sex marriage.  Up to now, North Dakota had been the last state with an unchallenged gay marriage ban.  The complaint (full text) in Ramsay v. Dalrymple, (D ND, filed 6/6/2014) challenges both the ban on same-sex marriages in the state and the state's refusal to recognize same-sex marriages performed elsewhere. It contends that the bans violate the equal protection and due process clauses of the 14th Amendment, and that the non-recognition of out-of-state marriages infringes on the fundamental right to travel. According to Freedom To Marry, there are now ongoing court challenges to same-sex marriage bans and/or non-recognition requirements in 31 states and Puerto Rico. Nineteen states and the District of Columbia already have full marriage equality.

Recent Articles of Interest

From SSRN:

• François Foret, Democratic Representation and Religion. Differences and Convergences between the European Parliament and the US House of Representatives, (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2014/58 (2014)).
• Paul T. Babie, Private Property in Post Secular Law: An Introductory Foray, (2013 University of Queensland Law Journal 32 (2) p238).
• D. Brian Dennison, The Resonance of Christian Political Conceptions within International Humanitarian Law, (Uganda's Paper Series on International Humanitarian Law, 2013).
• Ryan M. Hrobak & Robin Fretwell Wilson, Emergency Contraceptives or 'Abortion-Inducing' Drugs? Empowering Women to Make Informed Decisions, (Washington and Lee Law Review, Vol. 71, Issue 2, 2014).
• Brett G. Scharffs, Our Fractured Attitude Towards Corporate Conscience, (March 12, 2014).
• Sarah Schiesz, Hezbollah: Before and after the Syrian War, (May 12, 2014).
• Samuel Wolf Calhoune, Justice Lewis F. Powell's Baffling Vote in Roe v. Wade, (71 Wash. & Lee L. Rev. 925 ( 2014).
• Meg Mary Margaret Penrose, Unbreakable Vows: Same-Sex Marriage and the Fundamental Right to Divorce, (58 Villanova Law Review 169 (2013)).
• Muhammad Munir, The Law of Khul' in Islamic Law and the Legal System of Pakistan: The Sunnah of the Prophet or Judicial Ijtihad?, (May 24, 2014).

From SmartCILP and elsewhere:

• Mark Goldfeder, The Adoption of Children In Judaism and In Israel; A Conceptual and Practical Review, 22 Cardozo Journal of International & Comparative Law 321-353 (2014).
• Daniel Ross Goodman, Ethical Falsehood: Towards A Moral Values Paradigm In False-Speech Adjudication, [Abstract], 55 South Texas Law Review 71-112 (2013).
• Austin R. Nimocks, History and Recent Developments in Same-Sex Marriage Litigation, Federalist Society State Courts Project White Paper (May 28, 2014).
• Brian J. Grim, Greg Clark & Robert Edward Snyder, Is Religious Freedom Good for Business?: A Conceptual and Empirical Analysis, 10 Interdisciplinary Journal of Research on Religion, Article 4, 2014.

Wisconsin's Same-Sex Marriage Ban Struck Down; Marriages Begin Ahead of Motion To Stay Court's Order

Yesterday in Wolf v. Walker, (WD WI, June 6, 2014), a Wisconsin federal district court, in an 88-page opinion, struck down Wisconsin's ban on same-sex marriage. Judge Barbara Crabb wrote in part:

I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiffs’ right to marry, in violation of the due process clause, and discriminate against plaintiffs on the basis of sexual orientation, in violation of the equal protection clause.... To decide this case in favor of plaintiffs, it is not necessary, as some have suggested, to “cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools,”....  Rather, it is necessary to conclude only that the state may not intrude without adequate justification on certain fundamental decisions made by individuals and that, when the state does impose restrictions on these important matters, it must do so in an even-handed manner.

This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged....  Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.

 As reported by the Milwaukee Journal-Sentinel, the court's decision does not make clear whether counties may begin to immediately issue marriage licenses. The court declared the state constitutional and statutory provisions barring same-sex marriage unconstitutional and gave the parties until June 16 to submit proposed language for an injunction. The paper reports:

Dane County Clerk Scott McDonell, a Democrat, began issuing marriage licenses at 5 p.m. Friday as gay couples were married there throughout the night. He said state Department of Justice officials advised him not to issue the licenses but McDonell moved forward despite that.

Wisconsin Attorney General J.B. Van Hollen issued a news release announcing that he will file emergency motions in federal courts seeking a stay of the district court's order. Yesterday Van Hollen also issued a statement in a series of nine Tweets saying that his office will continue to defend the constitutionality of "our traditional marriage laws."

Another Temporary Stay For Same-Sex Couples Married In Utah During Gap Period

As previously reported, on May 19 in Evans v. Utah a Utah federal district court granted a preliminary injunction requiring the state to recognize same-sex marriages solemnized under Utah marriage licenses on the 17 days between a federal district court decision striking down Utah's ban  on same-sex marriages, and the U.S. Supreme Court's stay of that order. However the district court postponed the effectiveness of its order for 21 days to give the state time to decide how to proceed.  The 21-day period would expire on Monday.  Yesterday the Utah Attorney General's office announced that it has filed a notice of appeal and a request for a stay with the 10th Circuit in Evans.  In response, within hours, the 10th Circuit issued a temporary stay and ordered plaintiffs to respond by June 12 to the motion for a stay pending appeal. (AG office announcement.)

Supreme Court Denies Stay In Oregon Same-Sex Marriage Case

In May, an Oregon federal district court struck down Oregon's ban on same-sex marriage. (See prior posting.) The state declined to appeal, but the National Organization for Marriage (NOM) has been seeking to intervene as a plaintiff so it can appeal the decision.  So far it has been unsuccessful.  Yesterday the U.S. Supreme Court, in a one-sentence order, denied NOM's request for a stay of the district court's order while NOM appeals the district court's denial of its motion to intervene. All the pleadings in the complex procedural battle by NOM are here. The Oregonian reports on the Supreme Court's action, as does SCOTUSblog.

Israel's Justice Minister Officiates At Same-Sex Jewish Wedding; Marriage Not Legally Recognized

In Israel yesterday, Justice Minister Tzipi Livni officiated at a same-sex wedding ceremony, even though the marriage will not be recognized by the Israeli government.  Jerusalem Post reports that Livni conducted the ceremony for Tsach Sa'ar, a former aide to a member of the Knesset, and Guy Arad, an attorney.  The ceremony used a traditional huppah (wedding canopy), and the traditional breaking of a glass by the groom used two glasses, one for each man to break. Posting pictures on her Facebook page, Livni wrote that the ceremony was not intended to be a provocation against Judaism, but instead respected Jewish tradition.  She added, "In our eyes, Judaism is open, accepting and respects all people who were created in God's image."