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.

Article Traces Evolution of Obama's Position On Same-Sex Marriage

Today's New York Times Magazine carries a lengthy article titled How the President Got to ‘I Do’ on Same-Sex Marriage. It traces the evolution of President Obama's public position on the issue.

University's Diversity Officer, Demoted For Anti-Gay Marriage Views, Loses Discrimination Lawsuit

In McCaskill v. Galludet University, (D DC, April 14, 2014), the District of Columbia federal district court dismissed a lawsuit brought by Angela McCaskill, Gallaudet University's former Chief Diversity Officer. The University placed McCaskill on administrative leave and eventually demoted her after it become known that at her church she had signed a petition to get a proposed state constitutional amendment to ban same-sex marriage on the Maryland ballot. The University justified its action on the ground that McCaskill's ability to advocate for her constituents, particularly the university's gay community, had been compromised.  McCaskill brought the suit alleging discrimination on the basis of race, religion, sexual orientation, marital status, and political affiliation in violation of D.C.'s Human Rights Act; infliction of emotional distress; and defamation. In rejecting McCaskill's religious discrimination  claim, the court said in part:

Even if Gallaudet knew of her religious convictions or was aware that those convictions motivated her to sign the petition – a fact that remains hazy on the face of the Complaint – there is no factual allegation that her religion somehow prompted her suspension or demotion. ... [A]lthough it may be true that McCaskill signed the petition because she is a Christian ... the university cannot be guilty of discrimination on that basis.

Washington Business Journal reports on the decision.

10th Circuit Hears Oral Arguments In Oklahoma Same-Sex Marriage Case

As reported by the Los Angeles Times, the U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in  Bishop v. Smith.  An audio recording of the full oral arguments is available from the court's website. In the case, an Oklahoma federal district court held that the provision in the Oklahoma constitution barring same-sex marriage in the state violates the equal protection clause of the 14th Amendment.  The same 10th Circuit panel heard arguments last week in a case challenging Utah's same-sex marriage ban. (See prior posting.)

Italian Court Orders Recognition of Same-Sex Marriage Performed In New York

In Italy for the first time last Thursday, a court ordered the recognition of a same-sex marriage.  UPI reports that a judge in Grosetto ordered the local registry to record the marriage of two men who were married in a civil ceremony in New York in 2012. The court said that the Italian civil code "contains no reference to sex in relation to the requisites" for marriage. The Italian Bishops' Conference issued a statement saying that the ruling raises serious questions.

TRO Requires Indiana To Recognize One Couple's Same-Sex Marriage

According to the Huffington Post, yesterday in Baskin v. Bogan, (SD IN, April 10, 2014) an Indiana federal district court issued a temporary restraining order requiring the state of Indiana to immediately recognize the same-sex marriage of Niki Quasney and Amy Sandler.  The TRO was granted because Quasney has stage 4 ovarian cancer, and recognition of the marriage that took place in Massachusetts is needed so Sandler can handle her spouse's affairs after her death and access benefits available for a surviving spouse and children of the marriage (who were born to Sandler through reproductive technology). The order comes as part of a case that more broadly challenges Indiana's ban on same-sex marriage. (Links to pleadings.) (See prior related posting.)

10th Circuit Hears Oral Arguments In Challenge To Utah's Ban On Same-Sex Marriage

Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments in the Utah same-sex marriage case, Kitchen v. Herbert. Audio of the full oral arguments is available online. Equality on Trial has a written summary of the oral arguments. In the case, a Utah federal district court declared Utah's state constitutional and statutory bans on same-sex marriage invalid under the due process and equal protection clauses of the federal constitution. (See prior posting.)

Missouri Court Denies TRO To Prevent Same-Sex Couples' Joint Tax Filings

In Messer v. Nixon, (MO Cir. Ct., April 4, 2014), a Missouri state court judge refused to issue a temporary restraining order to prevent state tax officials from accepting joint returns from same-sex couples. The court concluded that plaintiffs had not shown the irreparable injury necessary for issuance of a TRO.  The court said: "should the ultimate outcome of this litigation establish that such an income tax filing was improper resulting in state income taxes being illegally avoided or refunded, the State has, as it always has had, the right to challenge that filing and seek recovery." Links to all the pleadings in Messer v. Nixon at on Marriage Equality Wikia. Missouri Gov. Jay Nixon's office issued a statement after the April 4 decision, defending the Executive Order that permits same-sex joint filing as being consistent with Missouri law which requires state tax conformity to federal tax definitions.

Quick Ruling on Same-Sex Marriage Sought In North Carolina

The North Carolina ACLU yesterday announced several legal steps it has taken to get a quick ruling on recognition of same-sex marriages in the state. In a case that was initially filed in 2012 and expanded in 2013, plaintiffs this week filed a motion for a preliminary injunction so that a same-sex North Carolina couple married in Massachusetts can get their child who suffers from cerebral palsy on the private health insurance policy of one of the parents (instead of remaining on Medicaid).  Separately, the organization filed a new lawsuit on behalf of three same-sex couples married elsewhere seeking recognition in North Carolina of their marriages. The suit asks for a prompt ruling because one member of each couple has a serious medical condition. AP has more on the legal moves.

Class Action Challenge To Virginia's Same-Sex Marriage Ban Stayed As Plaintiffs Intervene In Appeal of Parallel Case

In Harris v. Rainey, (WD VA, March 31, 2014), Virginia federal district judge has cut through the procedural complexity of competing challenges to Virginia's ban on same-sex marriage by staying proceedings in one case while a separate challenge works its way through the 4th Circuit Court of Appeals.  In February, a different Virginia federal district court in Bostic v. Rainey issued a preliminary injunction striking down Virginia's ban on same-sex marriage, but stayed the injunction pending appeal. (See prior posting.) Just before the court handed down its decision in Bostic, Virginia's attorney general filed a Notice of Change of Legal Position with the court indicating that he will not defend the constitutionality of Virginia's ban. This However left two clerks of court who were also defendants to carry the case forward. (Attorney General's FAQ page on the case.) However in the Harris case-- a class action on behalf of 14,000 same sex couples filed by the ACLU (links to pleadings)-- no defendant was willing to defend the state's ban. Meanwhile the plaintiffs in Harris petitioned the 4th Circuit for, and on March 14 were granted, the right to intervene as a plaintiffs in the Bostic appeal (Legal Times), despite opposition to their intervening by the original lawyers of plaintiffs in Bostic. They preferred that the Harris plaintiffs merely file an amicus brief. (National Law Journal.) [Thanks to How Appealing for the lead.]

Recent Articles of Interest

From SSRN:

• Samuel J. Levine, Foreword: Conference on Religious Legal Theory: RLT IV: Expanding the Conversation, (30 Touro L. Rev. 1 (2014)).
• Dallan F. Flake, Image is Everything: Corporate Branding and Religious Accommodation in the Workplace, (University of Pennsylvania Law Review, Vol. 163, 2014-15).
• Asifa Quraishi-Landes, Rumors of the Sharia Threat are Greatly Exaggerated: What American Judges Really Do with Islamic Family Law in Their Courtrooms, (New York Law School Law Review, Vol. 57, No. 245, 2013).
• John M. A. DiPippa, God and Guns: The Free Exercise of Religion Problems of Regulating Guns in Churches and Other Houses of Worship, (March 21, 2014).
• John M. Breen & Lee J. Strang, The Forgotten Jurisprudential Debate: Catholic Legal Thought's Response to Legal Realism, (March 24, 2014).
• Micah Schwartzman, Religion as a Legal Proxy, (San Diego Law Review, Forthcoming).
• Micah Schwartzman, Religion, Equality, and Public Reason, (Boston University Law Review, Forthcoming).
• Yaniv Heled, On Patenting Human Organisms or How the Abortion Wars Feed into the Ownership Fallacy, (Cardozo Law Review, Vol. 36, 2014, Forthcoming).
• Jessica Feinberg, The Survival of Non-Marital Relationship Statuses in the Same-Sex Marriage Era: A Proposal, (Temple Law Review, Vol. 87, Forthcoming).

From SSRN (Affordable Care Act and Religious Freedom):

• Heidi Muller, Hobson's Choice: For-Profit Corporations and the Exercise of Religion, (November 17, 2013).
• Scott Harrington, No Soup for You! Religion in the Post-PPACA Era, (March 18, 2014).
• Zoe Robinson, The Contraception Mandate and the Forgotten Constitutional Question, (Wisconsin Law Review, Forthcoming 2014).
• Toni M. Massaro, Nuts and Seeds: Disclosure of Religious Exemptions, (Arizona Legal Studies Discussion Paper No. 14-10 (March 2014)).

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

• Lotem Perry-Hazan, From the Constitution to the Classroom: Educational Freedom in Antwerp's Ultra-Orthodox Jewish Schools, (Journal of School Choice, 2014, Forthcoming).
• Lotem Perry-Hazan, Court-Led Educational Reforms in Political Third Rails: The Cases of Israeli Haredi Schools' Curricula and Admission Policies, (March 18, 2014).
• Jill Marshall, The Legal Recognition of Personality: Full Face Veils and Permissible Choices, (10 International Journal of Law in Context 64-80 (2014)).
• Robert J. Delahunty, The Returning Warrior and the Limits of Just War Theory, (Rutgers Journal of Law and Religion, 2014).

From SmartCILP:

• Mark W. Cordes, The First Amendment and Religion After Hosanna-Tabor, 41 Hastings Constitutional Law Quarterly 299-355 (2014).
• Alvaro Hasani, Compatibility of Democracy and Islam...Or the Lack Thereof: A Closer Look At Whether the "Arab Spring" Was Ever Capable of Culminating Into a Viable Democracy in the Arab World, 15 Scholar 715-743 (2013).
• Ken Matheny, The Disappearance of Labor Unions and the Social Encyclicals of Popes John Paul II and Benedict XIV, 23 Southern California Interdisciplinary Law Journal 1-35 (2014).

Suit Challenging Ohio's Refusal to Recognize Same-Sex Marriage Dropped When Couple Gets Family Health Insurance Policy

AP reports that a gay couple in Cleveland on Friday voluntarily dismissed a lawsuit they had filed last month challenging Ohio's refusal to recognize same-sex marriages.  Al Cowger Jr. and Tony Wesley Jr., who were married in New York state in 2012, sued when they were unable to obtain family health insurance coverage for themselves and their adopted daughter through the federal health insurance marketplace. They were initially told that a family policy was not available because Ohio does not recognize their marriage.  However this week they were finally able to obtain a family policy through the Healthcare.gov website. On March 14, the Department of Health and Human Services told insurance companies that starting next year, if they offer policies to opposite-sex spouses, they cannot choose to deny coverage to same-sex spouses.

Developments In Missouri and Michigan On Same-Sex Marriage Recognition

Here is an update on the rapidly moving developments in two states relating to recognition of same-sex marriages.

In Missouri, where a suit seeking to require the state to recognize same-sex marriages performed elsewhere is pending, last November the governor in Executive Order 13-14 directed the state Department of Revenue to accept joint tax returns from same-sex couples who are legally married in other states. This led in February to the filing of articles of impeachment (full text) against the Democratic governor by a Republican lawmaker. (See prior posting.)  In January 2014 a lawsuit was filed seeking a declaratory judgment that the Executive Order is unconstitutional and an injunction against its enforcement.  The complaint (full text) in Messer v. Nixon, (MO Cir. Ct., filed 1/14/2014) contends that the executive order is inconsistent with Missouri Constitution Art. 1, Sec. 33 that provides the only marriages that will be recognized in the state are ones between a man and a woman. Now, as the April 15 filing date for tax returns approaches,  PoliticMO reports that plaintiffs in the lawsuit last Wednesday filed a motion asking the court to grant a temporary restraining order preventing enforcement of the Executive Order.

In Michigan, a federal district court earlier this month struck down the state's constitutional ban on same-sex marriage. The next day, the 6th Circuit granted a stay of the order, pending appeal. However in the hours in between, some 300 same-sex couples married. (See prior posting.) In an announcement today (full text), U.S. Attorney General Eric Holder announced that the federal government would recognize these 300 marriages for purposes of eligibility for federal benefits.  He said in part:

The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings.  For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled.