Colorado Legislature Approves Civil Unions; Governor Expected To Sign Bill

The Colorado legislature today gave final passage to SB 13-11, the Colorado Civil Union Act, authorizing both same-sex and opposite-sex civil unions and giving parties to a civil union the same rights and obligations as spouses. It provides that a civil union may be certified by a judge, a magistrate, the parties or "in accordance with any mode of recognition ... by any religious denomination."  AP reports that Governor John Hickenlooper has said he will sign the bill, Many Republicans have expressed concern about the absence in the bill of religious exemptions for those opposed to civil unions.  Supporters say this would invite discrimination.  In 2006, Colorado approved a state constitutional amendment barring gay marriage-- but not civil unions.

Free Exercise and Establishment Clause Challenges To NC Marriage Laws Dismissed On Procedural Grounds

In Thigpen v. Cooper, (NC Ct. App., March 5, 2013), a North Carolina state appellate court, without reaching the merits of the claim, dismissed a suit seeking a declaratory judgment that three of the state's marriage statutes are unconstitutional.  Plaintiff claimed that the statutes violate the Establishment Clause by making clergy agents of the state to perform a marriage ceremony; that  they violate free exercise protections because the state requires individuals entering into marriage to participate in a state-prescribed ceremony; and that it is unconstitutional for the state to prohibit members of the clergy from solemnizing the marriage of same-sex couples. (See prior posting.)  The only defendants named were the state of North Carolina and the state Attorney General in his official capacity. The court held that a state is not a "person" for purposes of 42 USC Sec. 1983, the federal statute giving plaintiffs a cause of action to challenge the state laws. It held further that the suit is not properly brought against the attorney general, because he plays no role in enforcing the marriage statutes being challenged.

Justice Department Briefs Its Position On Merits In Both SCOTUS Same-Sex Marriage Cases

The U.S. Department of Justice has now filed briefs setting forth its arguments on the merits in the two same-sex marriage cases that will be argued before the Supreme Court later this month.  On Feb. 22, the Justice Department filed a merits brief (full text) in United States v. Windsor, the challenge to the constitutionality of the Defense of Marriage Act.  Yesterday the Justice Department filed an amicus brief (full text) with the U.S. Supreme Court in Hollingsworth v. Perry, the federal equal protection challenge to California's Proposition 8. In both cases, the Justice Department argued that classifications based on sexual orientation should, when challenged under the Equal Protection Clause, be subject to heightened scrutiny. In its Hollingsworth brief, DOJ stated directly that: "The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes."

In its Windsor brief, DOJ argued rather straight forwardly that Section 3 of DOMA fails heightened scrutiny. In its Hollingsworth brief, however, the Department of Justice took a more complicated position.  As discussed by Lyle Denniston at SCOTUS Blog, DOJ took the position that California's Proposition 8 fails the heightened scrutiny test, but in an argument that stops short of contending that the U.S. Constitution requires all states to recognize same-sex marriage.  DOJ reasoned that California does not substantially further any important governmental interest by barring same-sex marriage since it already gives same-sex couples the right to enter domestic partnerships that confer all the same rights as marriage.  This argument would apply only to the 8 states that have granted domestic partners or those who have entered civil unions rights equal to those of married couples.

Religious Conservatives Around The World Object To Valentine's Day

Today is Valentine's Day-- a celebration that has become increasingly popular around the world.  As in past years, conservative religious authorities in some countries continue to express their opposition to the occasion. In Coimbatore, India, members of the All India Youth Federation have petitioned police for protection, according to yesterday's Deccan Chronicle. The group says that every year, religious parties and other protesters gather in city parks and elsewhere where young people meet, and try to catch them and force them to marry in public places.

In Indonesia, according to today's Tengri News, the country's largest Muslim organisation, Nahdlatul Ulama, says it does not want to ban Valentine's Day, but it should not be celebrated by teenagers. The Head of the conservative Islamic Defenders Front went further and declared the day "haram" (forbidden) for Muslims, saying it reflects the culture of "infidels."

According to OnIslam, in Pakistan, the head of Jammat-e-Islami, the country’s largest Islamic party, said: "We are going to observe February 14 as Hijab Day in all over the country, especially in the educational institutions in order to show to the world that the people of Pakistan totally reject this custom, which is a direct attack on the culture of modesty."

Meanwhile, according to Chicago's Daily Herald, in Illinois, supporters of same-sex marriage hope that the state Senate will use today to pass and send to the House a bill permitting same-sex marriage.

Archbishop Says Gays Should Be Protected From Discrimination

RNS reports that Archbishop Vincenzo Paglia, head of the Pontifical Council for the Family, in his first press conference sine he was appointed, urged protection of gays and lesbians from discrimination in countries where homosexuality is illegal. While emphasizing the Church's continued opposition to same-sex marriage, the Archbishop at a press conference yesterday said:

In the world there are 20 or 25 countries where homosexuality is a crime.  I would like the church to fight against all this.

Oregon AG Investigating Bakery's Refusal To Provide Cake For Same-Sex Wedding

The Oregon Attorney General's civil enforcement office has opened an investigation into a baker who refused to furnish a wedding cake for a lesbian couple's marriage.  According to today's New York Daily News, Aaron Klein, the owner of Sweet Cakes in Gresham, Oregon, says he was following his strong religious beliefs in deciding not to be a part of a same-sex marriage. Oregon's Equality Act of 2007 bars sexual orientation discrimination in public accommodations.

Amicus Briefs In Same-Sex Marriage Cases Now Available Online

Numerous amicus briefs have now been filed in the two Supreme Court same-sex marriage cases that will be argued on March 26 and 27. A number of the amici are religiously affiliated organizations.  Scotus Blog has links to the full text of all the briefs in Hollingsworth v. Perry and  in United States v. Windsor.

NYT: Same-Sex Married Couples Face Continuing Unequal Treatment In Military

A front-page article in today's New York Times explores the continuing unequal treatment of married same-sex couples in the military.  Despite the repeal of Don't Ask, Don't Tell, the Defense of Marriage Act still bars recognition of same-sex marriages for purposes of various benefits. There is also less formal discrimination. At a military retreat at Ft. Bragg designed to help couples cope with the pressures of deployments and relocations, a same-sex couple was asked to leave because they were making others uncomfortable. The retreat was organized by military chaplains, and the lesbian couple had been told in advance that they were welcome. The chaplains now say that was erroneous advice.

European Court of Human Rights Vindicates Britain In 3 of 4 Cases Denying Accommodation of Christian Beliefs

Yesterday, seven judges sitting as a Chamber of the European Court of Human Rights handed down a decision in four widely followed employment discrimination cases brought by Christians in Great Britain who sought accommodation of their religious beliefs. (See prior posting.) Two of the cases involve women employees whose employers prevented them from wearing a cross on a necklace.  The other two cases involve claims that religious beliefs opposed to same-sex marriage and homosexual relationships should be accommodated.  In Eweida and Others v. United Kingdom, (ECHR 4th Section, Jan. 15, 2013), the court held that there had been a violation of Art. 9 (Freedom of Religion) of the European Convention on Human Rights in only one of the cases.  By a vote of 5-2, the court held that the United Kingdom violated Art. 9 by failing to adequately protect British Airways employee Nadia Eweida who wanted an exception to the airline's uniform rules so she could wear a visible cross around her neck. The court awarded her damages of 2000 Euros and costs of 30,000 Euros.

British law bars employment discrimination unless the employer can show that its requirements constitute "a proportionate means of achieving a legitimate aim." As to Ms. Eweida, the Court majority said:

[A] fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief.... [T]his is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image.... [W]hile this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.

However in the case of Shirley Chaplain, a geriatric ward nurse at a state hospital, the court held unanimously that the requirement she remove her necklace displaying a cross to prevent injury when handling patients was justified.

The third case involved Lillian Ladele, a local registrar of births, deaths and marriages, who refused on religious grounds to conduct civil partnership ceremonies. In a 5-2 decision, the Court rejected Ladele's claims under Art. 9 and the non-discrimination requirements of Art. 14, holding that local authorities are given "a wide margin of appreciation" in balancing religious freedom rights with the mandate not to discriminate on the basis of sexual orientation. Two judges dissented, saying that the issue is primarily one of freedom of conscience. They continued:

Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal... Ms Ladele did not fail in her duty of discretion: she did not publicly express her beliefs to service users.  Her beliefs had no impact on the content of her job, but only on its extent. She never attempted to impose her beliefs on others, nor was she in any way engaged, openly or surreptitiously, in subverting the rights of others. Thus ... the means used were totally disproportionate.

The fourth case involved Gary McFarlane, who was a counselor at an organization that provides sex therapy and relationship counselling. He was dismissed after he expressed concern on grounds of his Christian religious beliefs about providing psycho-sexual therapy to same-sex couples. The court unanimously rejected  his claim of discrimination and infringement of religious freedom, saying:  "the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination."

The Chamber judgment can be appealed to the Court's 17-judge Grand Chamber. The Guardian reports on the decision, as does a press release from Alliance Defending Freedom.

Recent Articles and Book of Interest

From SSRN:

• Haider Ala Hamoudi, Religious Minorities and Shari’a in Iraqi Courts, (Boston University International Law Journal, 2013, Forthcoming).
• Mark Anthony Frassetto, Catholic Emancipation: 1760-1829, (January 9, 2013).
• Donn Short, Queering Schools, GSAs and the Law: Taking on God, (Gerald Walton, ed, The Gay Agenda: Claiming Space, Identity & Justice, New York: Peter Lang, 2013).
• Wayne Barnes, Render Unto Rawls: Law, Gospel, and the Evangelical Fallacy, (January 11, 2013).
• Adilson Jose Moreira, We are Family! Legal Recognition of Same-Sex Unions in Brazil, (American Journal of Comparative Law, Vol. 60, No. 4, 2012).
• Joseph Benjamin Landau, DOMA and Presidential Discretion: Interpreting and Enforcing Federal Law, (Fordham Law Review, Vol. 81, 2012).
• Joseph Benjamin Landau, Symposium Foreword to Defense of Marriage Act: Law, Policy, and the Future of Marriage, (Fordham Law Review, Vol. 81, p. 537, 2012).
• Shafi'i Abdul Azeez Bello, Application of 'Urf in Islamic Law, (January 11, 2013).

From SmartCILP and elsewhere:

• Stewart L. Harris, Which Bible? Which God?, (12 Appalachian Journal of Law 151-166, 2012).
• Faisal Kutty, Free Expression and an Elusive Middle Ground: Part Two, (JURIST - Forum, Jan. 7, 2012).

Recent Book:

• Andrew Koppelman, Defending American Religious Neutrality, (Harvard Univ. Press, Jan. 2013), reviewed by Daily Northwestern.

Scotland Announces Consultation On Marriage Bill That Will Introduce Same-Sex Marriage and Other Changes

On Dec. 12, the government of Scotland announced a Consultation, i.e. published for public comment, a bill that would substantially amend Scotland's law on marriage.  The Marriage and Civil Partnership (Scotland) Bill would introduce same-sex marriage and the religious registration of civil partnerships. Other changes include ones that would allow non-religious belief bodies, such as the Humanist Society of Scotland, to solemnize marriages in "belief ceremonies." (The Dec. 30 Scotsman reports on this.) The Consultation Paper sets out the proposed changes in detail and seeks comment on them.  Section 12 of the Bill assures that provisions for same-sex marriage do not affect freedom of thought, conscience, religion and expression protected by the European Convention on Human Rights. According to the Consultation Paper:

The Lord Advocate (who has responsibility for prosecutions in Scotland) intends, in due course, to publish prosecutorial guidelines on allegations of breach of the peace and threatening or abusive behaviour arising out of opposition to same sex marriage.

The Consultation Paper also deals with treatment of same-sex marriage in schools. The Government plans to introduce a bill in Parliament in 2013.

Top 10 Church-State and Religious Liberty Developments For 2012

Here are my nominations for the 2012 Top Ten Church-State and Religious Liberty Developments:

1.  The long-simmering tensions between the U.S. Conference of Catholic Bishops and the Obama Administration took on a greater focus when in May some 40 Catholic institutions, in 12 lawsuits, filed challenges to the Obama administration's mandate that health insurance policies include contraceptive coverage. Other suits followed. The Administration had granted a one-year moratorium to non-profit institutions, while it worked unsuccessfully to produce a compromise that might be acceptable to religiously affiliated non-profit institutions. Meanwhile, for-profit companies owned by Catholics and conservative Christians also filed an avalanche of suits seeking conscience exemptions from the mandate.

2.  The battle between religious conservatives and advocates of marriage equality continued to rage on numerous fronts.  Each side saw some victories and some defeats, but proponents of marriage equality had a good year.  Legislatures in Washington and Maryland approved same-sex marriage. In November, voters in 4 states also indicated approval of same-sex marriage, but earlier in the year North Carolina voters approved a ban on same-sex marriage.. The 9th Circuit in a narrow opinion struck down California's Proposition 8, and the Supreme Court has agreed to review that decision. The Defense of Marriage Act was struck down by the 1st Circuit, the 2nd Circuit and a California federal district court. The Supreme Court has agreed to review the 2nd Circuit case. Same-sex marriage bans in Nevada and Hawaii were upheld by federal district courts.

 3.  Mitt Romney lost the Presidential election, but his Mormon religious faith was not an important issue in the campaign. Indeed, Romney's activities as a lay Mormon pastor were used to his advantage at the Republican Convention.

4. The Supreme Court in Hosanna-Tabor v. EEOC adopted the "ministerial exception" doctrine for employment discrimination cases, finding it to be constitutionally-based.

5.  Egypt has struggled to draft and adopt a new constitution.  The role the new constitution will provide for Sharia law in the country has been one of the central issues in debates on the document.

6.  A 17-year long struggle by the New York City Board of Education to bar churches from renting out school buildings on weekends for church services, even though the buildings are available to other community groups, was revived by a federal district judge. Most observers had thought that a 2011 decision by the 2nd Circuit had ended the dispute in favor of the Board of Education, but the court held that the 2nd Circuit had not passed on the Bronx Household of Faith's free exercise and establishment clause claims. The district court's vindication of the free exercise claim is now on appeal.

7.  An online video promoting the obscure movie "Innocence of Muslims" triggers demonstrations against American embassies in the Muslim world. The video leads to an unusual set of legal proceedings-- litigation involving probation violations by the producer, attempt by an actress in the movie to have it removed from YouTube, and in abstentia convictions in Egypt.

8.  New questions are raised around the world regarding ritual circumcision of young boys by Muslims and Jews. Germany's Bundestag confirmed the legality of religious circumcision after a Cologne district court held that parents lack the right to decide that their young sons should be circumcised for non-medical reasons. Ritual circumcision is also questioned in Australia and Norway. Meanwhile, in the United States some Orthodox Jewish groups sue challenging the New York City health department's new regulation requiring informed consent from parents when a Jewish religious circumcision involves use of the oral suction technique (metzitzah b'peh).

9.  The court martial trial of accused Fort Hood mass shooter Maj. Nidal Hasan is delayed as the question of his right to wear a beard for religious reasons at his trial is litigated.  In December, an appeals court held there was insufficient evidence to show that the beard materially interfered with the court martial proceedings. It also ordered court martial judge Gregory Gross removed from the case for the appearance of bias.

10.  In the wake of Congress' reorganization of the U.S. Commission on International Religious Freedom in late 2011, developments demonstrated internal divisions and conflicts in the Commission. The pressure of expiring terms of 5 Commissioners led to early release of USCIRF's annual report and to a public statement by 5 of the Commissioners charging that the report wrongly reflected the votes of Commissioners on the status of Turkey.  Meanwhile a former USCIRF staff member sued alleging anti-Muslim bias against her.  In an unrelated case, a different employee was sentenced to prison for embezzling USCIRF funds. And Muslim groups criticized one of the new Commissioners, claiming he is anti-Muslim.

Some of my picks were rather obvious candidates for inclusion, while others may surprise some readers. A number of the top developments continue trends reflected in last year's list.  You may also find it interesting to compare two other "Top 10" lists: Religion Newswriters 2012 Top 10 Religion Stories and Blog from the Capital's Top Religious Liberty Stories of 2012. I invite you to post your comments or disagreements with my choices this year.

Developments From The Vatican Last Week

Several developments of interest came from the Vatican last week:

As reported by AP, Pope Benedict XVI met in the Vatican prison on Saturday with his former butler Paolo Gabriele and granted him a pardon. Gabriele had been sentenced to 18 months in jail for stealing the Pope's private correspondence, some of which were published in a best-selling book by Italian journalist Gianluigi Nuzzi. (See prior posting.)

On Saturday, the Vatican announced the appointment of Boston canon lawyer Rev. Robert W. Oliver as promoter of justice for the Congregation of the Doctrine of Faith, the Vatican office charged with protecting church doctrine. As reported by the Boston Globe, this makes Oliver the Vatican's chief prosecutor of priests charged with sexual abuse of minors. He succeeds Monsignor Charles Scicluna who has been named auxiliary bishop in Malta. The director of Survivors Network of those Abused by Priests criticized Oliver's appointment, saying that he lacks credibility because he never publicly called for the ouster of Boston's Cardinal Bernard Law.

On Friday, the Pope delivered his Christmas greetings to the Roman Curia. (Full text). As reported by Catholic World, while the Pope's extensive remarks were widely headlined as an attack on same-sex marriage, in fact he spoke in broader philosophical terms. Focusing on "a new philosophy of sexuality" in the western world, he said in part:

According to this philosophy, sex is no longer a given element of nature, that man has to accept and personally make sense of: it is a social role that we choose for ourselves, while in the past it was chosen for us by society.... People dispute the idea that they have a nature, given by their bodily identity, that serves as a defining element of the human being. They deny their nature and decide that it is not something previously given to them, but that they make it for themselves.... When the freedom to be creative becomes the freedom to create oneself, then necessarily the Maker himself is denied and ultimately man too is stripped of his dignity as a creature of God....

In Split Decision, Montana High Court Rejects Broad Challenge To Unequal Treatment Of Same-Sex Couples

In a 4-3 decision in Donaldson v. Montana, (MT Sup. Ct., Dec. 17, 2012), the Montana Supreme Court rejected a suit by couples in a committed same-sex relationship challenging their inability under Montana law to obtain the same protections and benefits available to heterosexual couples who can marry. The majority said in part:

In  the  present  case ... Plaintiffs  do  not  seek  a declaration that any particular statute is unconstitutional or that its implementation should be enjoined.  Rather, Plaintiffs seek a general declaration of their rights and seek orders enjoining the State to provide them a “legal status and statutory structure” that protects their rights.... Broadly  determining  the  constitutionality  of  a “statutory  scheme”  that  may,  according  to  Plaintiffs,  involve  hundreds  of  separate statutes, is contrary to established jurisprudence.

The majority held that plaintiffs could file an amended complaint more narrowly challenging specific laws.

Justice Nelson filed a strong 108-page dissent, saying in part:

The problem ... is that this Court has chosen to punt.  And in simply kicking  the  can  down  the  road,  the  Court  has  denied  Plaintiffs  the  dignity,  respect, fairness, justice, and equality to which they are entitled—foremost as human beings, and legally under Montana’s Constitution.... Sexual orientation is a big deal to those who demand that their personal religious beliefs, their Bible’s  abhorrence,  and their partisan ideology  concerning homosexuality must apply to everyone else, across the board, no exceptions.  But future generations—indeed, most young people today—will not fear, much less honor, the sexual-orientation taboo.... [T]he taboo will die because the scare tactics, propaganda, and misinformation of those who would hang on to the maledictions and stereotypes have proven to be so patently false, malicious, and absurd.  Most decent people  just hate  being  lied  to.

As part of his dissent, Justice Nelson concluded that Montana's "Marriage Amendment,"-- the provision in the state constitution barring the recognition of same-sex marriage-- is invalid:

Montana’s  Marriage  Amendment  is  an  unconstitutional  attempt  to  enforce  a sectarian belief (held by some) through Montana’s secular law.... Indeed, the Marriage Amendment is undisputedly grounded in religious doctrine.  That much is apparent not only from the federal district court’s findings, but particularly from the fulminations of numerous religious organizations in the present case, led by the Montana  Catholic  Conference,  against  the  prospect  that  gay,  lesbian,  and  bisexual Montanans  might  enjoy  some  measure  of  legal  protection  for  their  relationships.   If homosexuality and same-sex relationships were not a religious issue, it is highly doubtful that any of these amici would be so actively involved in this case.

Justices Cotter and Wheat filed a brief separate opinion concurring with most of Justice Nelson's dissent, but refusing to join the portion of the dissent dealing with the Marriage Amendment because plaintiffs did not challenge that amendment. They also disagreed with certain other language in Justice Nelson's opinion.

The Montana Supreme Court also published a Synopsis of the Case.  AP reports on the decision. [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Mark D. Rosen, The Educational Autonomy of Perfectionist Religious Groups in a Liberal State, (1 Journal of Law, Religion & State 16, 2012).
• Thomas G. Field, Crimes Involving Intangible Property, (December 11, 2012).
• Andrew M. Koppelman, The Story of Welsh v. United States: Elliott Welsh's Two Religious Tests, (Richard Garnett and Andrew Koppelman, eds., First Amendment Stories, Foundation Press, 2011).
• Andrew M. Koppelman, Defending American Religious Neutrality, (Richard Garnett and Andrew Koppelman, eds., First Amendment Stories, Foundation Press, October 2011).
• Chuck Henson, Title VII Works – That's Why We Don't Like It, (2 University of Miami Race & Social Justice Law Review 41, 2012).
• Peter Nicolas and Mike Strong, The Geography of Love: Same-Sex Marriage & Relationship Recognition in America (The Story in Maps) Third Edition, (December 12, 2012).
• Susannah William Pollvogt, Forgetting Romer, (Stanford Law Review Online, 2012).
• Andrew Kim, 'Standing' in the Way of Equality? The Myth of Proponent Standing and the Jurisdictional Error in Perry v. Brown, (American University Law Review, Vol. 61, No. 6, 2012).

From SmartCILP and elsewhere:

• Elizabeth Sepper, Taking Conscience Seriously, 98 Virginia Law Review 1501-1575 (2012).
• Jacob Turner, Towards A Synthesis Between Islamic and Western Jus in Bello, 21 Journal of Transnational Law & Policy 165-206 (2011-2012).
• Church & State: Blurring the Lines, Wisconsin Lawyer, Dec. 2012.
• Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations (2012 edition), PLI Course Handbook, Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings, Nov. 2012.

More On Yesterday's Same-Sex Marriage Cases Cert. Grant-- Standing

In granting certiorari yesterday in two same-sex marriage cases (see prior posting), the U.S. Supreme Court (order list) instructed the parties to brief and argue specified standing issues, in addition to the questions presented in the petitions for certiorari.  In Dennis v. Perry, the California Proposition 8 case, the Court ordered the parties to brief and argue: "Whether  petitioners have standing under Article III, §2 of the Constitution in this case."  In United States v. Windsor, the Defense of Marriage Act case, the Court ordered the parties to brief and argue: "Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case."

Supreme Court Will Review 2 Same-Sex Marriage Cases

The U.S. Supreme Court today granted certiorari in two same-sex marriage cases. (Order List.) The first of the cases is Hollingsworth v. Perry, (Docket No. 12-144, cert. granted 12/7/2012).  In the case, decided by the 9th Circuit under the caption Perry v. Brown, the appeals court in a 2-1 decision struck down California's Proposition 8 that eliminated the right-- previously created by the California Supreme Court's interpretation of the state constitution-- for same-sex couples to marry. Judge Reinhardt, in an opinion joined by Judge Hawkins, held that even though California may not have had the obligation to grant same-sex couples the right to marry, once it did, it could not take that right away without some legitimate reason for doing so. Here there was no legitimate reason. (See prior posting.) En banc review was denied, but in a decision generating dissenting and responding opinions. (See prior posting.) The certiorari petition (full text), however frames the issue more broadly:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Scotus blog has links to the 9th Circuit opinion and all the filings with the Supreme Court in the case.

The second case in which the Supreme Court granted review is United States v. Windsor, (Docket No. 12-307, cert. granted 12.7/2012).  In the case, the 2nd Circuit in a 2-1 decision held that Section 3 of the Defense of Marriage Act is unconstitutional under the equal protection component of the 5th Amendment. In a suit by the surviving spouse of a lesbian couple who was denied the spousal deduction under the federal estate tax law, the majority held that it must apply heightened (intermediate level) scrutiny because homosexuals are a quasi-suspect classification. (See prior posting.) The petition for certiorari (full text)-- which was filed before the 2nd Circuit came down with its decision-- defines the question presented as:

Does Section 3 of the Defense of Marriage Act,  1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,”  deprive same-sex couples  who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States?

Scotus blog has links to the 2nd Circuit opinion and all the filings with the Supreme Court in the case.

Press coverage of the Supreme Court's action today included the New York Times, Yahoo! News, and Wall Street Journal.

UPDATE: See follow-up post- "More On Yesterday's Same-Sex Marriage Cases Cert. Grant- Standing".

Supreme Court Asked To Bypass 9th Circuit To Review Nevada Same-Sex Marriage Case

On Wednesday, the Coalition for the Protection of Marriage filed a petition for certiorari with the United States Supreme Court asking it to take the unusual step of reviewing the district court decision in Sevcik v. Sandoval before the case is briefed, argued or decided by the 9th Circuit. (Full text of certiorari petition.)  In the case, a Nevada federal district court upheld Nevada's ban on same-sex marriages, rejecting an Equal Protection Clause challenge to the law. (See prior posting.) The certiorari petition essentially argues that this is a better case for the Supreme Court to use in deciding basic constitutional issues on same-sex marriage than are the other cases which the Court is currently considering for possible review. Dale Carpenter at Volokh Conspiracy discusses the Cert. petition and predicts the court will not grant review in the case.

Israeli Civil Court Asserts Jurisdiction Over Same-Sex Couple's Divorce

Jerusalem Post reported yesterday that a Tel Aviv Family Court has broken new legal ground by granting a divorce to a same-sex couple who had married in Canada but lived in Israel. In an earlier case, Israel's Supreme Court had ordered registration of these same-sex marriages. Normally under Israeli law, only religious courts have jurisdiction over divorces. However the rabbinical courts, which do not recognize same-sex marriage, had, at least so far, failed to rule in the case. The Tel Aviv court said that it would violate the couple's fundamental rights and liberties to prevent them from dissolving a marriage that the state had recognized.  The civil court held that it could exercise jurisdiction over divorces when the rabbinical courts failed to do so.

Federal Court Upholds Nevada's Ban On Same-Sex Marriage

In Sevcik v. Sandoval, (D NV, Nov. 26, 2012), a Nevada federal district court upheld against an Equal Protection Clause challenge the constitutionality of Nevada's ban on same-sex marriages. Nevada does recognize same-sex and opposite-sex domestic partnerships, with the parties having most, but not all, of the same rights and responsibilities as do spouses in a marriage. The court concluded that it need apply only rational basis scrutiny to Nevada's state constitutional provisions limiting marriage to heterosexual couples:

Here, there is no indication of any intent to maintain any notion of male or female superiority, but rather, at most, of heterosexual superiority or “heteronormativity” by relegating (mainly) homosexual legal unions to a lesser status....

The States are currently in the midst of an intense democratic debate about the novel concept of same-sex marriage, and homosexuals have meaningful political power to protect their interests. At the state level, homosexuals recently prevailed during the 2012 general elections on same-sex marriage ballot measures in the States of Maine, Maryland, and Washington, and they prevailed against a fourth ballot measure that would have prohibited same sex marriage under the Minnesota Constitution. It simply cannot be seriously maintained, in light of these and other recent democratic victories, that homosexuals do not have the ability to protect themselves from discrimination through democratic processes such that extraordinary protection from majoritarian processes is appropriate.

Applying rational basis scrutiny, the court concluded that "the protection of the traditional institution of marriage, which is a conceivable basis for the distinction drawn in this case, is a legitimate state interest."   The court also held that protection of Nevada's public policy is a valid reason for it to refuse to recognize same-sex marriages performed in other states.  AP reporting on the decision says that plaintiffs plan an appeal.