Pro-Marriage Equality Protesters Fined One Cent For Trespassing

The Louisville (KY) Courier-Journal reported last week on the trial of a same-sex couple-- Dominique James and the Rev. Maurice “Bojangles” Blanchard-- for criminal trespass after they refused to leave the Jefferson County Clerk of Court's office at its closing time in protest of being denied a marriage license. The couple insisted that they were "spiritually obligated" to stay.  The jury last Tuesday convicted the defendants, but imposed a fine of only one cent. The maximum fine could have been $250. Blanchard called the verdict a vindication of their protest. The couple had rejected a plea agreement under which charges would have been dismissed in exchange for their each working 5 hours at a charity of their choice. [Thanks to Tom Rutledge for the lead.]

Croatians Approve Constitutional Amendment Barring Same-Sex Marriage

In Croatia yesterday, voters authorized a constitutional amendment to bar same-sex marriage.  AP reports that with nearly all the votes counted, the state electoral commission said that 65% of those voting answered "yes" to the question: "Do you agree that marriage is matrimony between a man and a woman?" 34% voted "no". The amendment was strongly backed by the Catholic Church in the heavily Catholic nation. Croatia became the 28th member of the European Union in July.  Croatia’s liberal president, Ivo Josipovic, said that the government, however, will propose legislation granting some rights short of marriage to gays and lesbians living together. It was a government proposal to allow same-sex couples to register as "life partners" that initially triggered a call for the referendum by the conservative group "In the Name of the Family."  Jurist has additional background on the referendum.

Recent Articles and Books of Interest

From SSRN:

• Ashutosh Avinash Bhagwat, Religious Associations: Hosanna-Tabor and the Instrumental Value of Religious Groups, (November 26, 2013).
• Evelyn M. Tenenbaum, The Union of Contraceptive Services and the Affordable Care Act Gives Birth to First Amendment Concerns, (Albany Law Journal of Science and Technology, Vol. 23, No. 3, p. 539, 2013).
• Frederick Mark Gedicks & Pasquale Annicchino, Lautsi v. Italy: English Translations of Italian Trial and Appellate Decisions, (November 17, 2013).
• Frederick Mark Gedicks & Pasquale Annicchino, Cross, Crucifix, Culture: An Approach to the Constitutional Meaning of Religious Symbols, (November 17, 2013).
• Richard F. Duncan, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, (Texas Review of Law & Politics, Forthcoming).
• Paul Croushore, Not Getting Too Far Out in Front: The Supreme Court Decisions on Same-Sex Marriage, (November 25, 2013).
• Roger Colinvaux, Rationale and Changing the Charitable Deduction, (Tax Notes, Vol. 138, No. 1453, 2013).
• Agustín Elias Casagrande , Los Hijos de Belial. Paradigma religioso y criminalidad en el Río de la Plata hacia fines del siglo XVIII. (The Sons of Belial. Religious Paradigm and Criminality in the Río De La Plata in the Lateness of XVIII Century), (Max Planck Institute for European Legal History Research Paper Series No. 2013-08, 2013).

From SmartCILP:

• Nathan S. Chapman, Disentangling Conscience and Religion, 2013 University of Illinois Law Review 1457-1501.
• David Hollander, Resources To Begin the Study of Jewish Law In Conservative Judaism, 105 Law Library Journal 305-320 (2013).
• Priti Nemani, Piercing Politics: Religious Garb and Secularism In Public Schools, 20 Asian American Law Journal 53-82 (2013).
• The Arab Spring. Articles by George E. Bisharat, Omar M. Dajani, Intisar Rabb and M. Cherif Bassiouni. 17 UCLA Journal of International Law & Foreign Affairs 1-174 (2013).

Recent Books:

• Ronald Dworkin, Religion Without God, (Harvard University Press, Oct. 4, 2013), reviewed by The Guardian.
• Peter Gardella, American Civil Religion: What Americans Hold Sacred, (Oxford Univ. Press, Dec. 18, 2013).

Recent Articles of Interest

From SSRN:

• Giovanna Lanni & Alessandra Impellizzeri,  Recenti sviluppi costituzionali in Egitto ed Israele: la tensione fra democrazia e religione come costante del discorso costituzionale in Medio Oriente (Recent Constitutional Developments in Egypt and Israel: The Tension between Religion and Democracy as a Constant of the Constitutional Discourse in the Middle East), (October 23, 2013).
• Wilson Ray Huhn, Slaves to Contradictions: 13 Myths that Sustained Slavery, (November 6, 2013).
• Dian Kartika Rahajeng, The Role of Islamic Banking System as the Milestone Towards Indonesia Micro Economy Development: A Financial Reports Approach, (September 12, 2013).
• Ahmed Parvez, Corporate Governance and Ethics of Islamic Finance Institutions, (Journal of Islamic Economics, Banking and Finance, Forthcoming).
• Brynne Alexis Sharafi, American Multiculturalism, French Universalism, Antiblackness, and the French Headscarf Ban, (November 4, 2013).

From SmartCILP:

• Mark J. Chadsey, Abraham Baldwin and the Establishment Clause, 51 Journal of Catholic Legal Studies 1-40 (2012).
• Seth R. Payne, Mormonism and Same-Sex Marriage: Theological Underpinnings and New Perspectives, [Abstract] 51 Journal of Catholic Legal Studies 41-53 (2012).
• Rev. John A. Perricone, The Relation Between Justice and Love In the Natural Order, [Abstract], 51 Journal of Catholic Legal Studies 55-75 (2012).

Proposed Oregon Initiative Would Exempt Objecting Businesses From Involvement In Same-Sex Unions

The Oregonian reported that this week that a group known as Friends of Religious Freedom have filed a proposed initiative measure (full text) with the Oregon Secretary of State. It is designed to protect private individuals and businesses that have deeply held religious objections from being required to furnish goods, facilities or services for same-sex weddings or civil unions. Last February, the Oregon Attorney General's office opened an investigation into a baker who refused to furnish a wedding cake for a lesbian couple's marriage. (See prior posting.)  The proposed initiative responds to this and to similar applications of anti-discrimination laws elsewhere.  It provides that no individual or business entity acting in a nongovernmental capacity may be penalized by the state or a political subdivision, or subjected to a civil action:

for declining to solemnize, celebrate, participate in, facilitate, or support any same-sex marriage ceremony or its arrangements, same-sex civil union ceremony or its arrangements, or same-sex domestic partnership ceremony or its arrangements.

In a related development, last July supporters of same-sex marriage in Oregon filed with the Oregon Secretary of State a proposed Right to Marry and Religious Protection Initiative (full text). Supporters are currently seeking the 116,284 signatures necessary to get the proposed constitutional amendment on the ballot. Their website says they now have over 115,000 signatures. [Thanks to Alliance Alert for the lead.]

Illinois Governor Signs Marriage Equality Law; Catholic Bishop Responds With Exorcism Prayers

The Chicago Tribune reports that yesterday Illinois Governor Pat Quinn signed into law the Religious Freedom and Marriage Fairness Act, legalizing same-sex marriage in the state. (See prior related posting.) The law takes effect June 1, though some are pressing for additional legislation to speed up the effective date.  Meanwhile, in Springfield, Illinois, Catholic Bishop Thomas Paprocki held a a service, largely in Latin, to offer Prayers of Supplication and Exorcism in Reparation for the Sin of Same-Sex Marriage.  In his homily (full text), he said in part:

Our prayers at this time are prompted by the fact that the Governor of Illinois today is signing into Illinois law the redefinition of civil marriage, introducing not only an unprecedented novelty into our state law, but also institutionalizing an objectively sinful reality....

Our prayer service today and my words are not meant to demonize anyone, but are intended to call attention to the diabolical influences of the devil that have penetrated our culture, both in the state and in the Church....

Since the legal redefinition of marriage is contrary to God's plan, those who contract civil same-sex marriage are culpable of serious sin. Politicians responsible for enacting civil same-sex marriage legislation are morally complicit as co-operators in facilitating this grave sin.....

We must also affirm the teaching of the Catholic Church that homosexual persons "must be accepted with respect, compassion, and sensitivity....." The Church loves homosexual persons and looks upon them with compassion, offering assistance through support groups such as the Courage Apostolate to live in accord with the virtue of chastity.

Hawaii Court Upholds State's New Marriage Equality Law

In Hawaii, a trial court judge rejected a state constitutional challenge to the Hawaii's marriage equality law that was signed by the governor yesterday. According to the Honolulu Star-Advertiser, Circuit Court Judge Karl Sakamoto held yesterday that the legislature has the inherent authority to define marriage. In 1998, Hawaii voters approved an anti-gay marriage constitutional amendment.  But unlike amendments in a number of other states, Hawaii's Art. I, Sec. 23 merely permits the state legislature to reserve marriage to opposite sex couples. Plaintiffs in the case, including a state representative, a Christian pastor and the head of Hawaii's Christian Coalition argued that in the 1998 amendment, voters intended to ban same-sex marriage. The court rejected this argument.

Hawaii Legislature Passes Marriage Equality Bill

Yesterday the Hawaii legislature gave final passage to SB1, the Hawaii Marriage Equality Act which will legalize same-sex marriage as of Dec. 2. One of the 19 representatives voting against the bill in the House was Rep. Jo Jordan, the first openly gay state legislator to vote against same-sex marriage.  She told Honolulu Magazine that her objections were in part based on a concern that the religious exemptions in the bill are too narrow.  The bill protects clergy who refuse to perform same-sex marriages or civil unions, and allows any religious organization or nonprofit that is "operated, supervised, or controlled by a religious organization" to refuse to provide goods, services or facilities for civil unions or marriages that are in violation of the organization's religious beliefs. According to the Honolulu Star-Advertiser, Gov. Neil Abercrombie has said he will sign the bill.  It is expected that he will do so today, beating Illinois to become the 15th state to legalize same-sex marriage.  The Illinois legislature passed marriage equality legislation last week (see prior posting), but Gov. Pat Quinn does not plan to sign it until Nov. 20. Shortly after the bill passed in Hawaii, President Obama issued a statement congratulating the legislature on its action, and saying that this made him even prouder to have been born in Hawaii.

Federal Lawsuit Challenges Idaho's Refusal To Permit or Recognize Same-Sex Marriage

A suit was filed Friday in an Idaho federal district court challenging the constitutionality of Idaho's laws that exclude same-sex couples from marrying in the state, and refuse to recognize marriages of same-sex couples entered into lawfully elsewhere.  The complaint (full text) in Latta v. Otter, (D ID, filed 11/8/2013), claims that Idaho Const. art. III, § 28 and Idaho Code §§ 32-201 and 32-209 violate the due process and equal protection clauses of the 14th Amendment. The National Center for Lesbian Rights issued a press release on the case. [Thanks to Alliance Alert for the lead.]

Illinois Legislature Gives Final Approval To Same-Sex Marriages

As reported by the Chicago Sun-Times and the New York Times, the Illinois General Assembly yesterday gave final approval to SB10 legalizing same-sex marriage in the state.  The state Senate had originally passed the bill in February, but the crucial House vote did not come until yesterday, delayed by opposition form black clergy and the Catholic Archdiocese of Chicago.  The House vote, after  adding one amendment to the Senate bill, was 61-54 with 2 abstentions. The Senate then quickly approved the bill as amended by a vote of 32-21. Gov. Pat Quinn has said he will sign the bill.

The bill contains protections for objecting clergy and religious institutions:

Nothing in this Act shall interfere with or regulate the religious practice of any religious denomination or Indian Nation....

Nothing in this Act shall be construed to require any religious denomination or Indian Nation ... or any minister, clergy, or officiant acting as a representative of a religious denomination or Indian Nation ... to solemnize any marriage. Instead [it is] ... free to choose which marriages it  will solemnize. Notwithstanding any other law to the contrary, a refusal by a religious denomination or Indian Nation..., or any minister, clergy, or officiant ... to solemnize any marriage under this Act shall not create or be the basis for any civil, administrative, or criminal penalty, claim, or cause of action.

No church, mosque, synagogue, temple, nondenominational ministry, interdenominational or ecumenical organization, mission organization, or other organization whose principal purpose is the study, practice, or advancement of religion is required to provide religious facilities for the solemnization ceremony or celebration associated with the solemnization ceremony of a marriage if the ... ceremony or celebration ... is in violation of its religious beliefs. [Such] entity ... shall be immune from any civil, administrative, criminal penalty, claim, or cause of action based on its refusal to provide religious facilities .... As used in this subsection..., "religious facilities" means sanctuaries, parish halls, fellowship halls, and similar facilities. "Religious facilities" does not include facilities such as businesses, health care facilities, educational facilities, or social service agencies.

Defense Secretary Chastises State National Guards That Are Refusing To Issue ID To Same-Sex Spouses

According to a report this week from American Forces Defense Service, nine states are defying a Department of Defense directive instructing National Guard facilities to issue new ID cards to same-sex spouses.  The new IDs will allow them to obtain spousal and family military benefits in the wake of the U.S. Supreme Court's decision striking down Sec. 3 of the Defense of Marriage Act.  Indiana, Georgia, Florida, Mississippi, Louisiana, Oklahoma, South Carolina, Texas and West Virginia, however, are requiring their National Guard members to go to a federal military base if they want to obtain the new ID. In a speech (full text) to an Anti-Defamation League Dinner on Thursday, Defense Secretary Chuck Hagel said in part:

... [A]ll spouses of service members are entitled to DoD ID cards, and the benefits that come with them.  But several states today are refusing to issue these IDs to same-sex spouses at National Guard facilities.  Not only does this violate the states’ obligations under federal law, but their actions have created hardship and inequality by forcing couples to travel long distances to federal military bases to obtain the ID cards they’re entitled to.

This is wrong.  It causes division among our ranks, and it furthers prejudice, which DoD has fought to extinguish, as has the ADL.

Today, I directed the Chief of the National Guard Bureau, General Frank Grass, to take immediate action to remedy this situation.  At my direction, he will meet with the Adjutants General from the states where these ID cards are being declined and denied.  The Adjutants General will be expected to comply with both lawful direction and DoD policy, in line with the practices of 45 other states and jurisdictions.

Missouri Supreme Court Upholds Denial of Survivor Benefits To Patrolman's Same-Sex Partner

The Missouri Supreme Court, in a 5-2 decision this week, upheld the denial of survivor benefits to the same-sex partner of a deceased highway patrolman. In Glossip v. Missouri Department of Transportation, (MO Sup. Ct., Oct. 29, 2013), the court held that since plaintiffs were not challenging the state's constitutional ban on same-sex marriage, the issue is merely whether distinguishing between married and unmarried couples is permissible. The court held that it is; the survivor benefit statute passes "rational basis" scrutiny. Judges Teitelman and Draper dissented, arguing that the survivor benefit statutes intentionally discriminate against gay men and lesbians in violation of the constitutional guarantee of equal protection. Riverfront Times reports on the decision.

Oklahoma Indian Tribe Issuing Marriage Licenses To Same-Sex Couples Where One Is Tribal Member

While Oklahoma's state constitution bars same-sex marriage, according to yesterday's Tulsa World the Cheyenne and Arapaho Tribes have issued marriage licenses to three same-sex couples in the last year.  Indian tribes are not subject to state law, and the Cheyenne and Arapaho Tribal Code does not mention gender in its provisions for issuing marriage licenses.  A license can be issued, however, only if at least one of the partners is a tribal member.

New Jersey Governor Drops Appeal of Same-Sex Marriage Decision

AP reports that yesterday New Jersey Governor Chris Christie announced that he is dropping the state's appeal in Garden State Equality v. Dow, a case in which a trial court extended the right to marry to same-sex couples in New Jersey. The governor's decision comes after Friday's decision by the New Jersey Supreme Court refusing to stay the trial court's opinion pending appeal. (See prior posting.) Christie said he was dropping the appeal because the Supreme Court's opinion denying a stay made it clear that the Court agreed with the trial court's decision.

New Zealand Rights Tribunal Upholds Church's Exclusion of Man From Clergy Because of Same-Sex Relationship

In Gay and Lesbian Clergy Anti-Discrimination Society, Inc. v. Bishop of Aukland, (NZ Human Rts. Rev. Trib., Oct, 17, 2013), the New Zealand Human Rights Review Tribunal rejected a claim by a man seeking to enter the ordained ministry of the Anglican Church that his rejection violated the New Zealand Human Rights Act 1993.  The Bishop of Auckland refused to allow Eugene Sisneros to enter the preliminary discernment process because Sisneros was in an unmarried same-sex relationship.  Sisneros claimed that this amounted to illegal discrimination on the basis of marital status and sexual orientation.  The Tribunal held, however, that the exception in Sec. 39(1) of the Act precluded the discrimination claim. Sec. 39(1) provides that:

Nothing in section 38 shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion.

In concluding that the exemption applied, the Tribunal said:

it is clear that the purpose of s 39(1) was (in the present context) to preserve the institutional autonomy of organised religions in relation to their decisions concerning the appointment of clergy and ministers. The plaintiff’s interpretation would entirely negate that purpose. The Anglican Church would be required to ordain priests who taught that the right ordering of sexual relationships can only occur within a Christian marriage (defined by the Formularies as a physical and spiritual union of a man and a woman) but who themselves did not “live” that doctrine.  Ministers would not be exemplars, nor would they be bound by submission to the Constitution of the Church or by their declaration of allegiance to its doctrine and Formularies. This would undermine in the most fundamental way the religious autonomy of the Church, its right to be selective about those who will serve as the very embodiment of its message and its voice to the faithful.

Last Friday's New Zealand Herald reported on the decision.  [Thanks to Eric Rassbach for the lead.]

New Jersey Supreme Court Refuses Stay of Decision Allowing Same-Sex Marriage

The New Jersey Supreme Court yesterday denied a stay of a trial court's decision (see prior posting) extending the right to marry to same-sex couples. Before this decision, New Jersey law allowed same-sex couples to enter civil unions, but not to marry.  Beginning Monday they will now be able to marry.  In Garden State Equality v. Dow, (NJ Sup. Ct., Oct. 18, 2013), the state Supreme Court held unanimously that the state had not shown a reasonable probability of success on the merits in its appeal, saying:

The State's statutory scheme effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners.

Bergen County Record reports on the decision.

French Constitutional Council Rejects Mayors' Attempt To Avoid Performing Same-Sex Marriages

France's Constitutional Council, its highest constitutional tribunal, today rejected claims by seven mayors that their freedom of conscience is violated by imposing on them an obligation to perform same-sex marriages.  According to Reuters, French law requires all couples to be married in civil ceremonies conducted by mayors or their deputies, after which the couples may also have a religious ceremony. After several mayors announced they would not perform same-sex marriages, the Interior Minister issued a memo warning them that they risked five years in jail or a 7,500€ fine. Here is the full text (in French) of today's decision in M. Frank M. et autres, (Const. Counc., Oct. 18, 2013) rejecting the mayors' complaint that no conscience clause was included in France's same sex marriage law enacted last May.  It is expected that the case will be appealed to the European Court of Human Rights.  [Thanks to Scott Mange for the lead.]

Oregon Will Recognize Out-of-State Same Sex Marriages For Purposes Of Tax and Benefit Laws

In Oregon, an Oct. 16 opinion of the Deputy Attorney General (full text) concludes that state agencies can and should recognize same-sex marriages validly performed in other states, for purposes of administering tax laws and benefit programs. Oregon permits same-sex domestic partnerships, and under the Oregon Family Fairness Act, domestic partners are entitled to the same benefits as married couples.  This week's opinion allows similar treatment for couples not registered as domestic partners in Oregon but validly married elsewhere, despite Oregon's state constitutional provision (Art. XV, Sec. 5a) prohibiting same-sex marriage. The opinion concludes that construing the constitutional provision to prohibit the recognition of out-of-state same-sex marriages would likely violate the federal constitution. BuzzFeed discusses the opinion and reprints a memo from the state Department of Administrative Services to state agency directors directing that "Oregon agencies must recognize all out-of-state marriages for the purposes of administering state programs." [Thanks to Dale Carpenter at Volokh Conspiracy for the lead.]

Suit Challenges Oregon Same-Sex Marriage Ban

According to the Willamette Week, two same-sex couples filed suit in federal district court in Oregon this week challenging Oregon's state constitutional ban on same-sex marriage. One of the couples wants to marry in Oregon; the other couple wants its Canadian same-sex marriage recognized in Oregon. The complaint (full text) in Geiger v. Kitzhaber, (D OR, filed 10/15, 2013), contends that the Oregon constitutional ban violates the equal protection and due process clauses of the 14th Amendment. [Thanks to Alliance Alert for the lead.]

North Carolina County Official Takes Step To Advance Same-Sex Marriage [Corrected]

In North Carolina, AP reports that Buncombe County Register of Deeds Drew Reisinger said yesterday that he will begin accepting marriage license applications from same-sex couples, but will then merely hold the applications and seek legal advice from state Attorney General Roy Cooper. The county official's statement came just hours after Attorney General Cooper said he personally supports same-sex marriage, but will defend the state's constitutional ban on same-sex marriage in court. [An earlier version of this posting incorrectly referred to South Carolina.]