Baptist, Jewish Groups Join As Plaintiffs In Challenge To North Carolina Same-Sex Marriage Ban

The United Church of Christ announced today that two national religious bodies and a number of individual clergy have joined as plaintiffs in its lawsuit that contends that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony.  This, they argue, infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage.  The national groups joining the lawsuit are the Alliance of Baptists and the Central Conference of American Rabbis.

Recent Articles of Interest

From SSRN:

• Jeffrey A. Redding, Marriage ≠ Marriage: Querying the Relevance of Equality to the Interstate Recognition of Same-Sex Relationships, (University of Miami Law Review, Forthcoming).
• D. Brian Dennison, Faith Frieda Letacie & Heather M. Pate, Confronting Child Sacrifice in Uganda: A Multi-Layered View, (Kabarak University Law Review, Forthcoming).
• Kevin J. Murphy, Administering the Ministerial Exception Post-Hosanna-Tabor: Why Contract Claims Should Not Be Barred, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 28, No. 1, 2014).
• Brian D. Galle, How Do Nonprofit Firms Respond to Tax Policy?, (May 29, 2014).

From SmartCILP:

• Elizabeth A. Clark, Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia and Central Asia, 22 Transnational Law & Contemporary Problems 297-342 (2013).

South Dakota Suit Challenges Ban on Same-Sex Marriage

On Thursday, six couples filed a lawsuit in federal district court in South Dakota challenging the constitutionality of South Dakota's constitutional and statutory ban on same-sex marriage.  The complaint (full text) in Rosenbrahn v.  Daugaard, (D SD, filed 5/22/2014), contends that the ban violates the due process and equal protection clauses of the 14th Amendment, and that the refusal to recognize same-sex marriages performed elsewhere also violates plaintiffs' right to travel. As reported by AP, South Dakota Attorney General Marty Jackley says that he is obligated by law to defend the state's ban.  With the filing of this lawsuit, only North Dakota with a ban on same-sex marriage that has not been challenged in the courts.

Montana's Same-Sex Marriage Ban Challenged

According to Lambda Legal, as of last week only 3 states which do not allow same-sex marriage had no litigation challenging the ban pending.  Now that has dropped to two.  The ACLU of Montana announced yesterday the filing of a lawsuit on behalf of four same-sex couples seeking to marry in Montana or to have their out-of-state same-sex marriage recognized in Montana. The complaint (full text) in Rolando v. Fox, (D MT, filed 5/21/2014), asks the court to declare that Montana's constitutional and statutory bans on same-sex marriage violate the due process and equal protection clauses of the 14th Amendment. With the filing of this lawsuit, only North and South Dakota have marriage equality bans with no litigation pending.

Court Strikes Down Pennsylvania Ban On Same-Sex Marriage

In Whitewood v. Wolf, (MD PA, May 20, 2014), a Pennsylvania federal district court held that the Pennsylvania's prohibition of same-sex marriage and its refusal to recognize same-sex marriages validly entered elsewhere violate the 14th Amendment's due process and equal protection clauses. The court concluded that "the fundamental right to marry is a personal right to be exercised by the individual" and rejected "Defendants’ contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry."  In its lengthy equal protection analysis, the court concluded that classifications based on sexual orientation are quasi-suspect and applied intermediate scrutiny to find that Pennsylvania had not shown that the ban on same-sex marriage is substantially related to an important governmental interest.

The Washington Post reports that immediately after the court's ruling, same-sex couples hurried to obtain marriage licenses, fearing that Gov. Tom Corbett would appeal the ruling. County offices remained open late in Philadelphia to issue licenses, and the Pittsburgh office is taking marriage license applications online.  Pennsylvania has a 3-day waiting period after issuance of a license before a person can marry, unless a court waives the waiting period. The Governor's office said it was studying the court's ruling. The Governor defended the state's ban in court after the state's attorney general refused to do so.

UPDATE: On May 21, Gov. Tom Corbett announced that the state will not appeal the court's decision.

Utah Must Recognize Same-Sex Marriages Performed During 17-Days Before Stay; But This Order Temporarily Stayed Also

In Evans v. State of Utah, (D UT, May 19, 2014), a Utah federal district court granted a preliminary injunction requiring the state of Utah to recognize same-sex marriages solemnized under Utah marriage licenses between Dec. 20, 2013 when a federal district court struck down Utah's ban  on same-sex marriages, and Jan. 6, 2014 when the U.S. Supreme Court granted a stay of that order, pending appeals. The court concluded:

Even though the Supreme Court’s Stay Order put Utah’s marriage bans back in place, to retroactively apply the bans to existing marriages, the State must demonstrate some state interest in divesting Plaintiffs of their already vested marriage rights. The State has failed to do so.

However the court granted a 21-day stay to allow the state to file an emergency motion with the 10th Circuit for review. Fox News reports that Utah's attorney general had not made an immediate determination of whether or not to pursue an appeal. The court's decision affects some 1200 marriages performed during the 17 days involved here.

Oregon's Same-Sex Marriage Ban Is Invalidated

In Geiger v. Kitzhaber, (D OR, May 19, 2014), an Oregon federal district court held that Oregon's constitutional and statutory provisions that limit civil marriage to "one man and one woman" discriminate on the basis of sexual orientation in violation of the 14th Amendment's equal protection clause. Judge McShane concluded his opinion with these observations:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage.... Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing.... Even today I am reminded of the legacy that we have bequeathed today' s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay." 

.... It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities. 

.... With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community. 

.... I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

ACLU of Oregon issued a press release announcing the decision. According to the Los Angeles Times, marriage licenses were issued to same-sex couples in Multnomah County, home to Portland, as soon as the decision was handed down. In February, the state attorney general said she would not defend the ban in court.

Utah Supreme Court Stays Orders On Birth Certificates For Adoptees of Same-Sex Parents

According to AP and a release from the Utah Attorney General's Office, the Utah Supreme Court on Friday night issued a stay of several state trial judges' orders that required the Utah Department of Health to issue birth certificates in same-sex parent adoptions.  The stay came in response to a Petition for Emergency Relief filed by the Attorney General's office seeking clarification as to whether the trial court orders violate other provisions of Utah law that prohibit the state from recognizing same-sex marriages. Those provisions remain in effect while federal constitutional challenge to the ban on same-sex marriage is being appealed. (See prior posting.) Friday's state Supreme Court stay remains in effect until the issue of recognizing same-sex parent adoptions is resolved by the state Supreme Court.

9th Circuit Temporarily Stays Injunction That Allowed Same-Sex Marriage In Idaho

In Latta v. Otter, (9th Cir., May 15, 2014), the U.S. 9th Circuit Court of Appeals granted a temporary stay of a federal district court's order that struck down Idaho's statutory and constitutional same-sex marriage ban. (See prior posting.) The temporary stay will be in place while the 9th Circuit decides whether to grant state and local officials' emergency motion (full text) for a longer stay pending appeal. Idaho Statesman reports on the 9th Circuit's order.

Understanding The Procedural Tangle In The Arkansas Same-Sex Marriage Challenge

As lower courts strike down same-sex marriage bans in various states, and state officials scramble to stay the orders and file appeals, the procedural tangles sometimes become difficult to penetrate.  So here is an attempt to clarify where things stand procedurally in one state-- Arkansas.

On May 9, an Arkansas state trial court (the Pulaski County Circuit Court which includes the city of Little Rock) held that the state's constitutional and legislative bans on same-sex marriage violate the 14th Amendment's equal protection clause.  (See prior posting.) A number of state and county officials filed an appeal with the Arkansas Supreme Court seeking an emergency stay of the trial court's order.  In Smith v. Wright, (AR Sup. Ct., May 14, 2014), the Arkansas Supreme Court dismissed the appeal without prejudice on the ground that the trial court's order was not a final adjudication of all the claims of the parties and so could not yet be appealed.  However it also held that reading the trial court's order carefully, the trial court had not issued a ruling as to Ark. Code Ann. § 9-11-208(b), prohibiting circuit and county clerks from issuing same-sex marriage licenses.  So, according to the Supreme Court, that prohibition was still in effect.

The next day, May 15, the Pulaski County Circuit Court responded by issuing three separate orders: (1) it denied a stay of its earlier ruling (full text of order); (2) the Court issued a final order permanently enjoining both the bans on same-sex marriage and the provision prohibiting circuit and county clerks from issuing licenses to same sex couples (full text of order); and (3) the court issued an order making its May 15 ruling that covered the ban on issuing marriage licenses retroactive to May 9 by an order entering the ruling nunc pro tunc. It said that the original omission of a reference to the section on issuance of licenses was an inadvertent clerical error. (Full text of ruling.) Lyle Denniston at Scotus Blog suggests that the nunc pro tunc order serves to protect those clerks who issued licenses between May 9 and 15.

According to AP, the Pulaski County clerk resumed issuing marriage licenses to same-sex couples shortly after the trial court's new orders.  Other counties though are awaiting legal advice. And after same-sex marriages resumed in Pulaski County, the Arkansas attorney general's office returned to the state Supreme Court and again asked for a stay of the trial court's order, pending appeal. [Thanks to Tom Rutledge for the lead.]

More Same-Sex Marriage Developments-- 4th Circuit Oral Arguments; Idaho's Laws Invalidated By District Court

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments (audio of arguments) in Bostic v. Schaefer. In the case, a Virginia federal district court held that Virginia's constitutional and statutory provisions barring same-sex marriage and prohibiting recognition of lawful same-sex marriages performed elsewhere are unconstitutional. (See prior posting.) Reporting on the oral arguments, the Washington Post said: "The sharply opposing viewpoints of two of the jurists suggested that the third, independent-minded Circuit Judge Henry F. Floyd, might hold the deciding vote."

Also yesterday, an Idaho federal magistrate judge struck down Idaho's statutory and constitutional provisions barring same-sex couples from marrying in the state or having their marriages performed elsewhere recognized in Idaho.  In Latta v. Otter, (D ID, May 13, 2014), the court concluded that Idaho's marriage laws violate same-sex couples' rights under the Due Process and Equal Protection Clauses of the 14th Amendment. The court issued a permanent injunction, effective May 16. Idaho Statesman reports on the decision and on Idaho Governor Butch Otter's written statement after the decision saying that he will continue to defend the will of the people to limit marriage to the union of a man and a woman.  UPDATE: AP reports that on May 14 the magistrate judge refused to stay her order pending appeal, writing that the appeal is unlikely to succeed.

State Court Invalidates Arkansas Ban on Same-Sex Marriage

In Wright v. State of Arkansas, (AR Cir. Ct., May 9, 2014), an Arkansas state trial court held that Arkansas' state constitutional and legislative bans on same-sex marriage violate the 14th Amendment's equal protection clause. The suit was brought by 12 same-sex couples seeking to marry in Arkansas and 8 couples who have married in states allowing same-sex marriage who want their marriages recognized in Arkansas.  In striking down the state ban, the court added:

It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.

According to USA Today, while state Attorney General Dustin McDaniel personally supports same-sex marriage, his office said after the ruling:

in keeping with the Attorney General's obligation to defend the state constitution, we will appeal. We will request that Judge Piazza issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter.

  [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Muhammad Munir, Some Reflections on the Story of Banu Quraydha: A Re-Evaluation, (May 1, 2014).
• Akiva A. Miller, The Policing of Religious Marriage Prohibitions in Israel: Religion, State, and Information Technology, (April 30, 2014).
• Douglas Laycock, Imaginary Contradictions: A Reply to Professor Oleske, (67 Vand. L. Rev. En Banc 89 (2014)).
• Robert J. Delahunty, Does Animal Welfare Trump Religious Liberty? The Danish Ban on Kosher and Halal Butchering, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-19, 2014).
• Helen M. Alvare, A 'Bare…Purpose to Harm'? Marriage and Catholic Conscience Post-Windsor, (George Mason Law & Economics Research Paper No. 14-14, 2014).
• Meghan J. Ryan, Finality and Rehabilitation, (4 Wake Forest J.L. & Pol'y 121 (2014)).
• Patrick McKinley Brennan, Implementing Religious Law in Modern Nation-States: Reflections from the Catholic Tradition, (Villanova Law/Public Policy Research Paper No. 2014-1008, 2014).
• Linda C. McClain, Common and Uncommon Families and the American Constitutional Order, (67 Vanderbilt Law Review En Banc 19 (2014)).
• Patrick Parkinson & Nicholas Aroney, The Territory of Marriage: Constitutional Law, Marriage Law and Family Policy in the ACT Same Sex Marriage Case, (May 9, 2014).
• Jerg Gutmann & Stefan Voigt, The Rule of Law and Constitutionalism in Muslim Countries, (May 8, 2014).
• Amy L. Moore, Rife with Latent Power: Exploring the Reach of the IRS to Determine Tax-Exempt Status According to Public Policy Rationale in an Era of Judicial Deference, (South Texas Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Drew Stevens, By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage, 63 Emory Law Journal 979 (2014).
• Mark Goldfeder, Not All Dogs Go To Heaven: Judaism's Lessons In Beastly Morality, [Abstract], 20 Animal Law 107-118 (2013).
• Mark L. Rienzi, The Case for Religious Exemptions--Whether Religion Is Special Or Not (Reviewing: Brian Leiter, Why Tolerate Religion?; Andrew Koppelman, Defending American Religious Neutrality), 127 Harvard Law Review 1395-1418 (2014).
• Emerging Issues in First Amendment Jurisprudence: Interpreting the Relationship Between Religion and the State in the Modern Age. Articles by Alycee Lane, Bruce Ledewitz, Aaron R. Petty, Mark Strasser and Harry F. Tepker. 6 Elon Law Review 1-187 (2014).

Proponents Drop Oregon Conscience Initiative After Losing Challenge To Ballot Title

In Fidanque v. Rosenblum, (OR Sup. Ct., May 8, 2014), the Oregon Supreme Court in a brief order denied oral argument and rejected challenges to the ballot title certified by the Attorney General for a proposed ballot measure.  The initiative measure was designed to allow religious belief exceptions to anti-discrimination laws for refusals to provide goods or services for same-sex marriage or partnership ceremonies and their arrangements. The title, approved by the Court, is: "'Religious belief' exceptions to anti-discrimination laws for refusing services, other, for same-sex ceremonies, 'arrangements'". As reported by The Oregonian, after losing their objections, backers said they would drop the initiative in favor of legal action. A press release yesterday by Friends of Religious Liberty said in part:

Current Oregon law provides protection to religious institutions and clergy for choosing nonparticipation in same sex ceremonies. But the law discriminates against individuals of faith who wish to choose nonparticipation. A Jewish pianist or a Christian violinist who may not want to participate in a same sex ceremony based on deeply held religious beliefs is currently subject to government penalties and civil actions.... 

The intent of IP52 is to end this religious discrimination in Oregon by providing individuals of faith with protection equal under the law to that of religious clergy. But the certified ballot title does not acceptably state this. Indeed, it stages it as intolerant instead of protecting equal rights of conscience..... Thus, we have resolved to suspend IP52 and, instead, back an enforcement lawsuit that will be filed shortly in Oregon on behalf of individuals of faith in expressive professions who are currently being coerced to violate their faiths.... 

[Thanks to James Oleske via Religionlaw for the lead.]

Catholic Group Criticizes 20 Colleges For Inviting "Scandalous" Commencement Speakers

The Cardinal Newman Society yesterday issued a "Special Report" criticizing 20 Catholic colleges and universities for inviting as commencement speakers this year public figures or politicians who support abortion rights or same-sex marriage.  The detailed list of schools faulted for scheduling "scandalous commencement speakers and honorees" includes Boston College whose commencement speaker is Secretary of State John Kerry, Georgetown University whose commencement speaker is Treasury Secretary Jacob Lew, and Villanova University whose commencement speaker is Dr. Jill Biden.  As is typical, honorary degrees are being awarded by the various universities to their commencement speakers as well.

Suit Challenges Ohio's Refusal To Allow Same-Sex Marriages

In the wake of a federal district court ruling two weeks ago that Ohio's refusal to recognize same-sex marriages performed elsewhere is unconstitutional (see prior posting), a new federal lawsuit was filed yesterday challenging Ohio's ban on issuing marriage licenses to same-sex couples who wish to wed in Ohio.  The complaint (full text) in Gibson v. Himes, (SD OH, filed 4/30/2014), contends:

Ohio Rev. Code § 3101.01 and OH Const. Art. XV, §11 violate fundamental liberties that are protected by the Freedom of Association Clause of the First Amendment, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment on their face.

Cincinnati Enquirer reports on the filing of the lawsuit.

Church Synod and Various Clergy Sue Claiming North Carolina Same-Sex Marriage Ban Infringes Their Free Exercise Rights

A federal lawsuit with a different twist challenging North Carolina's ban on same-sex marriage was filed yesterday. In addition to same-sex couples, the plaintiffs are a religious denomination-- the United Church of Christ-- and individual clergy from UCC, Lutheran, Baptist, Unitarian-Universalist, and Reform Jewish congregations. The complaint (full text) in General Synod of the United Church of Christ v. Cooper, (WD NC, filed 4/28/2014), claims, among other things, that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony, and that this infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage. The same-sex couples also assert due process and equal protection claims.  UCC has issued a press release and created a website with additional information on the case. The Charlotte Observer also reports on the case. [Thanks to Don Clark for the lead.]

6th Circuit Stays Tennessee Same-Sex Marriage Ruling

In Tanco v. Haslam, (6th Cir., April 25, 2014), the U.S. 6th Circuit Court of Appeals granted a stay pending appeal of a district court preliminary injunction requiring the state of Tennessee to recognize the same-sex marriages of 3 couples who were legally married in other states. (See prior posting.) The Tennessean reports on the decision. [Thanks to How Appealing for the lead.]

Trinity Western Grads Will Not Be Eligible For the Ontario Bar

The controversy over Canada's newest proposed law school-- Christian affiliated Trinity Western-- continues. At the center of the controversy is a provision in the school's "community covenant" that calls for abstention from "sexual intimacy that violates the sacredness of marriage between a man and a woman." The Toronto Star reports that after receiving approval earlier this month from the Law Society of British Columbia-- the school's home province-- yesterday the school suffered a defeat in the province of Ontario.  The Law Society of Upper Canada voted 28-21 against granting the school accreditation. This means that the school's graduates will not be permitted to apply for admission to the bar in Ontario.  A vote is expected today by the Nova Scotia Barristers' Society, and in June by the Law Society of New Brunswick.

UPDATE: On April 25, the Nova Scotia Barristers' Society voted 10-9 to only give provisional accreditation to Trinity Western law school. Its graduates will be allowed to enroll in the province's bar admission program only if the school drops its Community Covenant that bars same-sex intimacy.  If the Covenant is not dropped graduates will not be allowed to article in the province, but they can still practice in Nova Scotia according to the Prince George Citizen.

Georgia Lawsuit Is Latest To Challenge Same-Sex Marriage Ban

Lambda Legal announced yesterday that it has filed suit in federal district court in Georgia on behalf of three same-sex couples and a widow challenging Georgia's statutory and state constitutional bans on same-sex marriage. The complaint (full text) in Inniss v. Aderhold, (ND GA, filed 4/22/2014) was filed as a class action and challenges both the ban on same-sex marriage and the non-recognition of same-sex marriages performed in other jurisdictions. According to a Washington Post compilation, with the filing of this lawsuit, only four states-- Alaska, Montana, North Dakota and South Dakota-- have same-sex marriage bans that are not being challenged in court; and a suit is in the offing in South Dakota.