Group Urges SEC To Expand Accredited Investor Rule To Cover Same-Sex Couples

The U.S. Supreme Court's Windsor decision striking down Section 3 of the Defense of Marriage Act is rippling through unexpected corners of federal regulation.  A group of investors and entrepreneurs calling themselves StartupEquality.org last week sent a letter (full text) to the Securities and Exchange Commission urging the expansion of SEC's Regulation D that allows businesses to raise capital from wealthy investors in private placements without filing a full registration statement. SEC Rule 501 defines "accredited investors"-- those who may purchase in private placements-- as including spouses who jointly meet certain income or net worth levels.  The group's letter says that the Windsor decision should be read to automatically extend Rule 501 to same-sex married couples, and urges the SEC to expand the rule so that same-sex couples in civil unions, domestic partnership arrangements and the like who are unable to marry may also aggregate their income and assets to determine accredited investor status.

Southern Baptist Convention Bars Its Military Chaplains From Participating In Same-Sex Weddings

The North American Mission Board on Aug. 29 released new Guidelines (full text) clarifying the expectations for all military and VA chaplains endorsed by the Southern Baptist Convention in light of the Supreme Court's invalidation of the Defense of Marriage Act. The new Guidelines provide in part:

All ministries regarding human sexuality will reflect the historic, natural and biblical view of marriage as God's lifelong gift of "the uniting of one man and one woman in covenant commitment for a lifetime."...

Southern Baptists believe that "all forms of  sexual immorality, including adultery, homosexuality and pornography" ... are condemned by Holy Scripture as sin.... Responsible pastoral care will seek to offer repentance and forgiveness, help and healing, and restoration through the mercy and grace of Jesus Christ;s sacrificial gift of love on the cross.

NAMB-endorsed chaplains will not conduct or attend a wedding ceremony for any same-sex couple, bless such a union or perform counseling in support of such a union, assist or support paid contractors or volunteers leading same-sex relational events, nor offer any kind of relationship training or retreat, on or off of a military installation, that would give the appearance of accepting the homosexual lifestyle or sexual wrongdoing. This biblical prohibition remains in effect irrespective of any civil law authorizing same-sex marriage or benefits to the contrary....

[NAMB-endorsed chaplains may not conduct] a service jointly with a chaplain, contractor or volunteer who personally practices a homosexual lifestyle or affirms a homosexual lifestyle or such conduct.

AP reports on the new Guidelines.

Texas AG Says City's Ban On Officials Demonstrating Bias By Word or Deed is Unconstitutional

On Thursday, the San Antonio, Texas city council adopted, by a vote of 8-3 an ordinance (full text) expanding its non-discrimination bans to include discrimination on the basis of sexual orientation, gender identity and veteran status. It provides, however, that nothing in the ordinance "shall be construed as requiring any person or organization to support or advocate any particular lifestyle or religious view, or advance any particular message or idea." One of the most controversial portions of the new law is the provision that:

No appointed official or member of a board or commission shall engage in discrimination or demonstrate a bias, by word or deed, against any person, group of persons, or organization on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or disability, while acting in their official capacity while in such public position.

The Texas Tribune reported Friday that state attorney general Greg Abbott takes the position that this ban violates the free speech and free exercise provisions of the Texas and U.S. constitutions and opens the city to possible lawsuits. He says that the provision could expose officials to removal from office for speaking in favor of Texas' constitutional ban on same-sex marriage.

Suit Challenges South Carolina's Refusal To Recognize Same-Sex Marriages

Last week, a suit was filed in a South Carolina federal district court challenging the state's refusal to allow same-sex marriages and its refusal to recognize same-sex marriages legally performed in other states.  The complaint (full text) in Bradacs v. Haley, (D SC, filed 8/28/2013), contends that South Carolina's statutory law (SC Code 20-1-15) and its constitutional provision barring recognition of plaintiffs' marriage (Art. XVII, Sec. 15) violate the due process, equal protection and full faith and credit clauses of the Constitution.  The State reports on the lawsuit that was filed by Highway Patrol Trooper Katherine Bradacs and her spouse, Tracie Goodwin, who were married in the District of Columbia last year.

Recent Articles of Interest

From SSRN:

• Daniel Tagliarina, Power, Privilege, and Rights: How the Powerful and Powerless Create a Vernacular of Rights, (APSA 2013 Annual Meeting Paper).
• Daniel O. Conkle, Evolving Values, Animus, and Same-Sex Marriage, (Indiana Law Journal, Volume 89 (January 2014, Forthcoming)).
• James G. Dwyer, The Parental Choice Fallacy in Education Reform Debates, (Notre Dame Law Review, Vol. 87, No. 5, 2012).
• Dan E. Stigall, The Civil Codes of Libya and Syria: Hybridity, Durability, and Post-Revolution Viability in the Aftermath of the Arab Spring, (Emory International Law Review, Vol. 28, No. 1, 2014).
• Carolyn M. Evans & Anna Hood, Religious Autonomy and Labour Law: A Comparison of Jurisprudence of the United States and the European Court of Human Rights, (Oxford Journal of Law and Religion, Volume 1, Issue 1, 2012).
• Michael J. Perry, Interrogational Torture as a Human Rights Issue: A Brief Further Reflection on the Morality of Human Rights, (August 29, 2013).
• Zvi H. Triger, The Self-Defeating Nature of 'Modesty'-Based Gender Segregation, (Israel Studies, Vol. 18, No. 3, pp. 19-28 (2013)).

From SmartCILP:

• Jennifer L. Bursch & Cassie Cox (student), Qualified Immunity and the Application of Pearson: C.F. ex rel. Farnan v. Capistrano Unified School District, 5 Regent Journal of Law & Public Policy 85-109 (2013).
• James A. Davids, The Establishment Clause and Public Funding of Religious Colleges, 5 Regent Journal of Law & Public Policy 11-83 (2013).
• Patrick T. Gillen, A Winn for Originalism Puts Establishment Clause Reform Within Reach, 21 William & Mary Bill of Rights Journal 1107-1151 (2013).

Ginsburg Becomes First SCOTUS Justice To Officiate At Same-Sex Wedding

Justice Ruth Bader Ginsburg yesterday became the first U.S. Supreme Court Justice to officiate at a same-sex wedding ceremony.  NBC reports that Ginsburg officiated at the marriage of John F. Kennedy Center for the Performing Arts President Michael M. Kaiser, to economist John Roberts. Kaiser is a long-time friend of Ginsburg.  The wedding took place in the atrium of the Kennedy Center.

IRS Rules That Legal Same-Sex Marriages Will Be Recognized For Tax Purposes, Regardless Of Couple's Current Domicile

The Internal Revenue Service announced yesterday that legally-married same-sex couples will be treated as married for federal tax purposes, even if they live in a state that refuses to recognize their legal marriage that was performed elsewhere. The new policy is formally reflected in Revenue Ruling 2013-17 which defends the gender-neutral reading of gender-specific terms in the Internal Revenue Code that the new policy requires. However, the ruling does not extend to domestic partnerships, civil unions, or other similar formal relationships recognized, but not called marriage, under state law. The IRS also issued updated Frequently Asked Questions for same-sex couples and updated FAQs for registered domestic partners and individuals in civil unions.

Two New Mexico Counties Begin Issuing Same-Sex Marriage Licenses

In New Mexico this week, according to the Santa Fe New Mexican, two county clerks began issuing licenses for same-sex marriages. On  Aug. 21, Doña Ana County Clerk Lynn Ellins began issuing the licenses, saying that there is nothing in state law to prohibit it.  The state attorney general said he would not intervene. Then on Aug. 22, a state trial court judge in Hanna v. Salazar issued a writ of mandamus ordering Santa Fe County Clerk Geraldine Salazar to issue a marriage licence to a same-sex couple who sued after their license application was denied. The county clerk responded enthusiastically, saying:

Now that Judge Singleton has ordered me to issue a license to Messrs. Hanna and Hudson on constitutional grounds, I intend to do so and to issue a license to any same-sex couple who desires one and are otherwise qualified. By complying with the judge’s order we will be issuing licenses legally and will not continue to use limited county resources on further litigation.

At least 45 same-sex couples were issued licenses yesterday.

Recent Articles and Books of Interest

From SSRN:

• Kara Loewentheil, When Free Exercise Is A Burden: Protecting 'Third Parties' in Religious Accommodation Law, (August 6, 2013).
• Susan C. Hascall, Islamic Commercial Law and Social Justice: Shari’ah Compliant Companies, Workers’ Rights, and the Living Wage, (St. John's Law Review, Vol. 88, No. 1, 2014).
• Engy Abdelkader, To Judge or Not to Judge: A Comparative Analysis of Islamic Jurisprudential Approaches to Female Judges in the Muslim World (Indonesia, Egypt and Iran), (Fordham International Law Journal, Forthcoming).
• Iain T. Benson, Religious Interfaith Work in Canada and South Africa with Particular Focus on the Drafting of a South African Charter of Religious Rights and Freedoms, (HTS Teologiese Studies/Theological Studies 69(1), Art. #1319, DOI: org/10.4102/hts.v69i1.1319 (2013)).
• Muhammad Munir, Freedom of Expression, Information, Thought and Religion in Islam and Convention on the Rights of the Child (CRC), (July 13, 2013).

From SmartCILP:

• William E. Nelson, The Persistence of Puritan Law: Massachusetts, 1660-1760, [Abstract], 49 Willamette Law Review 307-409 (2013).

New Books:

• Steven D. Smith, The Rise and Decline of American Religious Freedom, (Harvard Univ. Press, Feb. 2014).
• Kimberly D. Richman, License to Wed: What Legal Marriage Means to Same-Sex Couples, (NYU Press, Dec. 2013).

Same-Sex Marriage Developments Continue

Developments stemming from the U.S. Supreme Court's recent same-sex marriage decisions continue to be reported:

According to yesterday's Deseret News, Utah businessman Jonathan Johnson, executive vice chairman of  Overstock.com, is undertaking a national campaign, beginning in Utah, urging states to amend their constitutions to protect religious organizations from being required to  "solemnize, officiate in, or recognize any particular marriage or religious rite of marriage in violation of its beliefs."

Under American immigration law, an individual may receive a derivative visa if his or her spouse or first-degree relative is eligible for U.S. residency.  Haaretz reports that the American embassy in Israel has issued its first derivative visas to Israeli same-sex spouses who were married legally outside of Israel.

Pennsylvania Health Department Sues To Stop County From Issuing Same-Sex Marriage Licenses

As previously reported, in Montgomery County, Pennsylvania (suburban Philadelphia), the county's Register of Wills, D. Bruce Hanes, last week began to issue marriage licenses to same-sex couples, despite the legal ban on such marriages in the state. Now, according to the Philadelphia Inquirer, the state Department of Health on Tuesday filed suit in Commonwealth Court seeking a writ of mandamus to stop the county from issuing more licenses or accepting marriage certificates from same-sex couples. The suit claims that the county's actions are leading couples to erroneously believe that they have entered a valid marriage.  In response, County Solicitor Ray McGarry issued a statement saying:

While it comes as no surprise that the Corbett Administration has filed an action seeking to enjoin marriage equality in Montgomery County, the petition filed today in Commonwealth Court by the state Department of Health has serious flaws. Montgomery County will be filing a response shortly. In the meantime, the Register of Wills office will continue to issue marriage licenses to same-sex couples.

TRO Denied In Attempt To Stop Same-Sex Marriages In Rhode Island On Religious Freedom Grounds

According to the Providence Journal, a Rhode Island Superior Court judge yesterday denied a temporary restraining order in a suit challenging the constitutionality of the state's recently enacted same-sex marriage law which is scheduled to take effect Aug. 1. (See prior posting.) Plaintiff argued that the law will violate the state constitution's religious freedom protections by forcing people to accept in public spheres, such as schools, a practice that they oppose on religious grounds.

UPDATE: On Aug. 9, the court also denied a preliminary injunction in the case. (Providence Journal).

Suit Challenges Kentucky's Refusal To Recognize Same-Sex Marriage

On Friday, a same-sex couple, Gregory Bourke and Michael De Leon, and their two adopted children filed suit in federal district court challenging the constitutionality of Kentucky's refusal to recognize the couple's 2004 Canadian marriage.  The two men have been together for 31 years.  The complaint (full text) in Bourke v. Breshear, (WD KY, filed 7/26/2013) alleges that Kentucky laws barring same-sex marriage and recognition of same-sex marriages from other jurisdictions violate the 14th Amendment's due process and equal protection clauses. The Louisville Courier-Journal reports on the filing of the lawsuit. [Thanks to Tom E. Rutledge for the lead.]

Pennsylvania County Issues Same-Sex Marriage Licenses Despite State Law Ban

AP reports that in Montgomery County, Pennsylvania (suburban Philadelphia), the county's Register of Wills, D. Bruce Hanes, has begun to issue marriage licenses to same-sex couples, despite the legal ban on such marriages in the state.  Hanes says he wants to come down "on the right side of history and the law." At least 5 same-sex couples were issued marriage license yesterday.  The county's district attorney says that the marriage licenses are not legal, but that the remedy for issuing an invalid does not include intervention by the district attorney. The state's attorney general has previously said that she will not defend the state's same-sex marriage ban, leaving enforcement to the governor's office.

Would European Court Override Conscience Protections In British Same-Sex Marriage Law? Sikhs Fear So.

The Telegraph reported this week that in Britain the advisory group Sikhs In England has suggested to Sikh gurdwaras that they deregister themselves as venues for civil weddings to avoid possible legal challenges for refusing to conduct same-sex marriages which have recently been legalized in Britain. (See prior posting.) If Sikh temples follow the advice, they would be able to conduct religious marriage ceremonies, but couples would be required to have a separate civil ceremony elsewhere as well. While the new same-sex marriage law contains safeguards against compelling anyone with religious objections to perform or take part in same-sex ceremonies, Sikhs in England is concerned that the European Court of Human Rights might override these protections.

Ohio's Refusal To Recognize Maryland Same-Sex Marriage Held Likely Unconstitutional

In Obergefell v. Kasich, (SD OH, July 22, 2013), an Ohio federal district court granted a temporary restraining order requiring the state to recognize the validity of a same-sex marriage performed in Maryland.  The court, relying on the U.S. Supreme Court's recent Windsor decision, as well as its earlier decision in Roemer v. Evans, held in a 15-page opinion:

Quintessentially, Plaintiffs have established a substantial likelihood that they will prevail at trial on their claim that by treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied here, violates the United States Constitution which guarantees that "No State shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws."

Plaintiffs had been living together in a committed relationship for over 20 years. They recently traveled to Maryland to marry as one of the two, John Arthur, was approaching death from ALS. The court's TRO (full text) orders the local state registrar to only accept a death certificate that lists John Arthur as married at the time of his death and that lists James Obergefell as his surviving spouse. The Washington Blade reports on the decision.

British House of Commons Gives Final Approval To Same-Sex Marriage; Authorizes Study of Humanist Ceremonies

In Britain yesterday, the House of Commons approved the House of Lords amendments to the Marriage (Same Sex Couples) Bill (full text of bill), sending the bill to the Queen for Royal Assent-- a formality in Britain. Here is the full text of the debate in the House of Commons on the Lords' Amendments. Section 2 of the bill provides broad religious protections, assuring that no one may be compelled to participate in any way in conducting or authorizing a same-sex marriage.

On a separate issue, Section 14 of the bill provides for the Secretary of State to review whether humanist marriage ceremonies should be authorized in England and Wales (as they already are in Scotland). The debate in Commons includes the following as part of an exchange on the amendments relating to humanist ceremonies:

Does [a fellow-MP] agree that there are important protections in the amendments made in the other place to prevent the possibility of crazy things such as Jedi weddings? This is about humanist weddings, which are very specific. It is not about commercial weddings, Jedi weddings or any of the other scaremongering that we have heard.

(See prior related posting.)

UPDATE: July 17 Canadian Press reports that the Queen has given formal royal assent to the bill.

With Approval By Lords, Britain Moves Close To Final Approval of Same Sex Marriage Bill

The Telegraph reports that in Britain yesterday the House of Lords approved the Marriage (Same Sex Couples) Bill.  The transcript of all the House of Lords debates on the bill, along with links to other information on it, are available on Parliament's website.  The bill passed the House of Commons in May. (Report on House of Commons debates.)  The bill now goes back to Commons for approval of amendments that were made in the House of Lords. According to The Telegraph, unless unexpected objections arise in Commons, it is expected that the bill will receive Royal Assent within days, opening the way for the first same-sex marriages in England and Wales by next summer.

New Petition To California Supreme Court Argues That Proposition 8 Must Still Be Enforced

While it has been widely assumed (see prior posting) that last month's U.S. Supreme Court decision in Hollingsworth v. Perry reinstating a federal district court's injunction had the effect of legalizing same-sex marriage in California, a petition filed Friday with the California Supreme Court argues that this is not the case. (ADF press release). The petition and accompanying memorandum (full text) in Hollingsworth v. O'Connell, (CA Sup. Ct., filed 7/12/2013) seeks a writ of mandate ordering 58 county clerks to enforce Proposition 8. Petitioners, who were the official proponents of Proposition 8, argue in part in their filing with the California Supreme Court:

The Perry injunction is no bar to this outcome, for at least two reasons. First, that injunction does not require any county clerk to cease future enforcement of Proposition 8. The Perry court’s authority was limited to providing injunctive relief for the four plaintiffs in that case. Because those plaintiffs have recently been married, all relief due under that injunction has already been provided, and therefore none of the county clerks are required by that injunction to stop enforcing Proposition 8 in the future. Second, and alternatively, the Perry injunction does not require the 56 county clerks who were not defendants to that action to stop enforcing Proposition 8. The injunction purports to cover all persons under the supervision or control of the named state defendants. But none of those state officials have authority to supervise or control county clerks when issuing marriage licenses. Therefore, the Perry injunction does not bind the 56 county clerks not named as defendants in that case.

ACLU Moves To Challenge Several Same-Sex Marriage Bans

The ACLU yesterday announced a broad initiative to obtain a U.S. Supreme Court ruling on the constitutionality of same-sex marriage, in the wake of the Court's dismissal on standing grounds of the California Proposition 8 appeal. The organization said in part:

Even before today's announcement of the ACLU's federal marriage lawsuits, there were seven cases with federal marriage claims pending all around the country. Today we are adding three more cases to this mix in order to ensure that strong, well-resourced cases are presented to the federal appeals courts most likely to give the issue a fair hearing.

One of the new cases is Whitewood v. Corbett, (MD PA, filed 7/9/2013) (full text of complaint) challenging Pennsylvania's refusal to permit same-sex marriages or recognize same-sex marriages from other states. In North Carolina, the ACLU is asking North Carolina's Attorney General to allow plaintiffs to add an additional claim challenging the state's same-sex marriage ban to an already pending lawsuit challenging the state's ban on second parent adoptions. (ACLU- NC press release). Finally, the Virginia ACLU announced a planned lawsuit, to be brought with Lambda Legal, challenging constitutional and statutory bans in Virginia on same-sex marriage.