Shooter At Family Research Council Was Supporter of LGBT Rights

The Washington Post report today on the 28-year old man charged with shooting and wounding a security guard at the D.C. office of the Family Research Council suggests that he was motivated by the Council's opposition to expansion of rights for gays and lesbians.  According to the FBI affidavit (full text) seeking to show probable cause to charge Floyd Lee Corkins II, the shooter told the guard, before opening fire, "I don't like your politics."  Corkins' backpack contained 15 sandwiches from Chick-fil-A, whose president recently made highly publicized statements in opposition to same-sex marriage.  Corkins' parents told investigators that Corkins has strong opinions about those he believes do not treat homosexuals in a fair manner. Corkins has been volunteering at a community center that serves LGBT clients.

German Constitutional Court Says Civil Partners Must Get Same Treatment As Spouses In Tax Law

In In re the Constitutional Complaints of Mr. P, (Fed. Const. Ct. Germany, July 21, 2012), Germany's Constitutional Court held that the prior version of Germany's Gift and Inheritance Tax Act was unconstitutional under Germany's Basic Law because it treated same-sex civil partners differently than spouses in a traditional marriage. Deutsche Welle reported on the decision.

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

In Jackson v. Abercrombie, (D HI, Aug. 8, 2012), an Hawaii federal district court, in a 120-page opinion, upheld as constitutional Hawaii's laws that bar same-sex marriage.  The court held that rational basis review applies in the federal equal protection and due process challenges to the state constitutional and statutory provisions involved.  The court explained:

The right to marry someone of the samesex, is not "objectively, deeply rooted in this Nation’s history and tradition" and thus it is not a fundamental right..... Hawaii’s marriage laws do not treat males and females differently as a class; consequently, the laws do not discriminate on the basis of gender.  The United States Supreme Court has never held that heightened scrutiny applies to classifications based on sexual orientation....

[T]he legislature could rationally conclude that defining marriage as a union between a man and woman provides an inducement for opposite-sex couples to marry, thereby decreasing the percentage of children accidently [sic.] conceived outside of a stable, long-term relationship.... The legislature could also rationally conclude that other things being equal, it is best for children to be raised by a parent of each sex.

Hawaii has enacted a law providing for civil unions that give partners all the same state legal rights as married couples. AP reports on the decision. Alliance Defending Freedom links to the pleadings in the case.

Scottish Government Will Move Ahead With Same-Sex Marriage Law; Will Protect Conscience Rights

After conducting a public consultation last year, the government of Scotland announced yesterday that it intends to move ahead with legislation to permit same-sex marriage and religious ceremonies for civil partnerships.  However it will also add protections for freedom of speech and religion. SDGLN reports on these developments and reprints the full text of the Scottish Government's announcement. No religious body will be required to conduct same-sex marriages.  The Government will also seek an amendment to the UK Equality Act to assure protection for clergy who disagree with their religious organization's decision to perform same-sex marriages. Currently the Equality Act grants an exemption from equality requirements only where necessary to comply with the doctrine of a religious organization or to avoid conflict with the strongly held religious convictions of a significant number of the followers of the religion or belief. The Scottish government will also include provisions to protect the beliefs of teachers and parents in schools. The curriculum in Catholic schools will continue to be controlled by the Scottish Catholic Education Service.

Canadian Tribunal Finds Christian B&B Owners Violated Human Rights Code By Cancelling Reservation For Gay Couple

In Eadie and Thomas v. Riverbend Bed and Breakfast, (BCHRT, July 17, 2012), the British Columbia Human Rights Tribunal held that a bed and breakfast in a small Canadian town, and its owners who are members of the Mennonite Brethren Church, violated the sexual orientation discrimination provisions of the  B.C. Human Rights Code when they cancelled a room reservation after learning that it had been made by a same-sex couple.  The Tribunal held that it lacks jurisdiction to determine whether the Human Rights Code conflicts with the freedom of religion provisions of Canada's Charter of Rights and Freedoms. That issue must be presented to a court.  Instead, the Tribunal is limited to determining whether respondents had a "bona fide and reasonable justification" to discriminate.  The Tribunal Member hearing the case wrote:

I accept that the Molnars [the B&B owners] hold a sincere, personal and core religious belief that marriage is between a man and a woman and that sex outside of such a marriage,including same-sex sexual relations, is a sin. I also accept that the Molnars sincerely believe that to allow a same-sex couple to stay in a single bed in their home would harm their relationship to their Lord, and that they would not rent a room in their home for a purpose that conflicted with, or was contrary to, their personal religious beliefs....

She concluded, however, that to be acceptable, a justification had to be rationally related to the function or purpose of the bed and breakfast.  Here the policy of restricting rooms with one bed to heterosexual couples was rationally related to the owners' religious beliefs, but not to the B&B's purpose of offering temporary accommodations to the general public. The Tribunal issued a cease and desist order and awarded damages, including $1500 to each of the complainants for injury to dignity, feelings and self-respect.

The Province, reporting on the decision, says that the Molnars stopped operating their bed and breakfast when the complaint was filed against them, and they do not intend to reopen. [Thanks to Alliance Alert for the lead.]

Early Cert. Petition Filed In Another DOMA Case

In an unusual tactical move announced yesterday, a petition for certiorari was filed with the U.S. Supreme Court in Windsor v. United States even though the case has not yet been decided by the Second Circuit where an appeal is pending.  In the case, a New York federal district court held that the Defense of Marriage Act is unconstitutional. (See prior posting.) At issue is whether the federal government must recognize the unlimited estate tax marital deduction in the case of the death of a same-sex spouse. The lesbian couple involved had been legally married in Canada. The ACLU explained its reasoning in petitioning on behalf of the parties that prevailed at trial before the government's appeal has been decided:

At this point petitions for Supreme Court review have been filed in two other DOMA cases – GLAD’s Gill v. OPM case, which has been decided by the First Circuit, and Lambda Legal’s Golinski v. OPM case, which, like Windsor v. United States, doesn’t have an appeals court decision yet.

The Court will likely decide the constitutionality of DOMA this coming term, using one or more of these cases as vehicles for addressing the issue. We filed because we believe that Edie [Windsor's] story is a strong addition to the striking collection of plaintiffs in the Gill case and to Karen Golinski’s story as well. Now the Court has three cases, offering a variety of harms, to choose from.

[Thanks to Alliance Alert for the lead.] 

NY Marriage Equality Act Survives Open Meeting Act Challenge

In New Yorkers for Constitutional Freedoms v New York State Senate, (NY App. Div., July 6, 2012) a New York state appeals court rejected a challenge to the state's Marriage Equality Law (which permits same-sex marriage) enacted last year. Plaintiffs claimed that private lobbying of the Republican Conference of the State Senate in favor of the law by New York City Mayor Michael Bloomberg and Governor Andrew Cuomo violated the Open Meetings Act. The court concluded that the exemption in the Open Meetings Law for deliberations of political caucuses, including invited staff or guests, covered the lobbying being challenged. It rejected the argument that the exemption for invited guests only includes guests of the same political party as the caucus. Advocate.com reports on the decision.

Ballot Title For Minnesota Same-Sex Marriage Ban Amendment Creates Controversy

Minnesota Secretary of State Mark Ritchie announced last week that the title of the proposed state constitutional amendment banning recognition same-sex marriage (full text) that will appear on the November ballot will be "Limiting the Status of Marriage to Opposite Sex Couples."  According to the Minneapolis Star-Tribune, backers of the amendment are furious. They had wanted the ballot title to read: "Recognition of Marriage Solely Between One Man and One Woman"-- the title chosen by the state legislature. Even though the legislature prescribed a title for the ballot measure, the governor vetoed the bill containing the proposed amendment. (Veto letter.) However the veto does not prevent the measure from appearing on the ballot because the Minnesota Constitution Art. IX provides that amendments are submitted to the voters by a majority of the members of each house. However apparently the portion of the bill setting the title for the ballot measure is treated as ordinary legislation so that the veto did invalidate that section. So then under Minnesota Statutes Sec. 204D.15, the choice of a title falls to the secretary of state, who must submit it to the attorney general for approval. Backers of the amendment believe that the new title may influence voters who do not like government restrictions to vote against the measure. They are considering whether to file a lawsuit over the title. [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, Extraordinary Sources of Jewish Law: the Example of Capital Punishment,, (Steven H. Resnicoff, Chapter 8 of Understanding Jewish Law, LexisNexis, 2012).
• Rene Provost, Magic and Modernity in Tintin au Congo (1930) and the Sierra Leone Special Court, (June 25, 2012).
• Nicolai N. Petro, The Role of the Orthodox Church in a Changing Russia, (ISPI Analysis #121, Institute for the Study of International Politics, Milan, Italy, June 2012).
• David A. Grenardo, Samuel D. Davis and Thomas M. Gutting, Take One Step Forward: Federal Courts Continue to Find that Volunteers are Shielded from Retaliation Based on Protected Speech Under the First Amendment, (First Amendment Law Review, Vol. 10, No. 1, 2011).
• Lewis D. Solomon, God and Human Destiny: A Jewish Perspective, (GWU Legal Studies Research Paper No. 2012-53).
• Richard S. Myers, Same-Sex Marriage, Education, and Parental Rights, (Brigham Young University Education and Law Journal, Vol. 2011, No. 2).
• Richard S. Myers, Assessing the Legal Bases for Conscientious Objection in Healthcare, (Life and Learning XVIII: The Proceedings of the Eighteenth University Faculty for Life Conference 57-82, J. Koterski ed. 2011).
• Mehmet Asutay and Zulkifli Bin Hasan, An Analysis of the Courts’ Decisions on Islamic Finance Disputes, (ISRA International Journal of Islamic Finance, 3 (2), 41-71, 2011).
• Kimberley Brownlee and Richard Child, Can the Law Help Us to Be Moral?, (Warwick School of Law Research Paper No. 2012/17).
• Kimberley Brownlee, Conscientious Objection and Civil Disobedience, (Warwick School of Law Research Paper No. 2012/15).

Cert. Petition Filed In Defense of Marriage Act Challenge

A petition for certiorari (full text) was filed Friday in Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. In the case, decided by the 1st Circuit under the title Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, the appeals court held unconstitutional Section 3 of the Defense of Marriage Act that denies federal benefits to same-sex couples (and surviving same-sex spouses) lawfully married in Massachusetts and other states. (See prior posting.)  The Bipartisan Legal Advisory Group that filed the cert. petition was intervenor-appellant in the court of appeals below.  SCOTUS Blog reports on the filing of the cert. petition. [Thanks to Alliance Alert for the lead.]

Same-Sex Couple Sues NY Catholic Hospital Over Family Health Benefits

The Advocate reported Friday on a class action lawsuit filed last week in federal district court in New York by a married lesbian couple who claim that a Catholic hospital illegally discriminated against them by refusing them the same family health benefits offered to other employees. The suit was filed against St. Joseph Medical Center in Yonkers, NY, as well as against the insurance company that administers the hospital’s self-insurance plan.  In a statement on the case, the New York State Catholic Conference said in part:

In 2011, when Governor Andrew Cuomo made the redefinition of marriage his top legislative priority, we warned not only that such action would have negative consequences for society, but also that it would infringe on the religious liberty of Catholic employers..... As we stated when the law was passed, the so-called "religious exemption" language included in the bill was insufficient to protect religious institutions.

(See prior related posting.)

Controversial Pastor Hangs Obama In Effigy To Protest Marriage and Abortion Stances

Terry Jones, pastor of the small Gainesville, Florida Dove Outreach Center, who gained notoriety in 2011 for burning a copy of the Qur'an (see prior posting), has now created another controversy.  As reported last week by the Huffington Post (along with a photo), Jones has hanged President Obama in effigy on the front lawn of his church:

The effigy is suspended from a makeshift gallows with a noose of yellow rope, has a doll in its right hand and a rainbow-colored gay pride flag in its left.

In a telephone interview with The Huffington Post, Jones said the flag was meant to call attention to Obama's stance on same-sex marriage and that the baby doll is there because the president is "favorable toward abortion."...

There is also an Uncle Sam dummy standing at the base of the gallows outside the DWOC. Jones told HuffPost that the Obama effigy had originally been positioned to be hanging Uncle Sam when the display went up two weeks ago, but that the church changed the display on Wednesday.

The words “Obama is Killing America” are printed on a trailer nearby.

The U.S. Secret Service is investigating the situation. [Thanks to Joseph K. Grieboski for the lead.]

Denmark Approves Full Wedding Ceremonies For Same-Sex Couples

AP and RT report that on Thursday, Denmark's parliament, by a vote of 85-24, approved a change to the country's marriage law that permits same-sex couples to be married in formal church weddings by the Church of Denmark. According to the Copenhagen Post, bishops will quickly develop a separate ceremony for such marriages. The change becomes effective June 15.  Previously, under a 1997 law, the state's Lutheran Church could only marry same-sex couples in a special short blessing ceremony at the end of a regular church service. Under the new law, any minister can refuse to conduct a same-sex ceremony, but the local bishop is then required to arrange for a replacement to do so. Also the new legislation automatically recognizes the 4,100 couples in registered civil partnerships as married.

Another Court Says DOMA Is Unconstitutional

Another court has held that the Defense of Marriage Act is unconstitutional.  In Windsor v. United States, (SD NY,June 6, 2012), a New York federal district court awarded plaintiff Edith Windsor damages equal to the $353,000 in estate taxes paid to the federal government on her same-sex spouse's estate. Edith and her long-time partner Thea Spyer, who were New York residents, were married legally in Canada in 2007. Spyer by will left her estate for the benefit of Windsor, but because of DOMA Spyer did not qualify for the unlimited estate tax marital deduction. Without invoking strict scrutiny, the court held that Section 3 of DOMA violates the equal protection component of the 5th Amendment because the government's asserted interests are inadequate to support the law. Jurist reports that this is the fourth federal court decision invalidating DOMA. (See prior related posting.)

9th Circuit Denies En Banc Review In Proposition 8 Case

As reported by The Recorder, the U.S. 9th Circuit Court of Appeals yesterday denied en banc review in Perry v. Brown.  In the case in February, a 3-judge panel (by a 2-1 vote) struck down Proposition 8 that eliminated the right for same-sex couples to marry. (See prior posting.) However the court stayed the mandate in the case pending any petition to the Supreme Court for review and until final disposition by the Supreme Court. In denying en banc review, the 9th Circuit issued an order along with a dissent by 3 judges, plus a response to the dissent by two others. (Full text.) The dissent, written by Judge O'Scannlain, said in part:

A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same sex marriage as a policy matter.  Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”  

Today our court has silenced any such respectful conversation.  Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia....  Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.

The response, written by Judge Reinhardt expressed puzzlement over the dissenters' "unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion."

Refusing To Provide Photography Services To Same-Sex Ceremony Violates State Anti-Discrimination Law

In Elane Photography, LLC v. Willock, (NM Ct. App., May 31, 2012), a New Mexico state appeals court held that a photography firm's refusal to provide its services to photograph a same-sex commitment ceremony violates the New Mexico Human Rights Act's prohibition on discrimination in public accommodations on the basis of sexual orientation.  According to the court:

Elane Photography’s owners are Christians who believe that marriage is a sacred union of one man and one woman.  They also believe that photography is an artistically expressive form of communication and photographing a same-sex commitment ceremony would disobey God and the teachings of the Bible by communicating a message contrary to their religious and personal beliefs.

Rejecting Elane Photography's free expression arguments, the court held:

the mere fact that a business provides a good or service with a recognized expressive element does not allow the business to engage in discriminatory practices.... While Elane Photography does exercise some degree of control over the photographs it is hired to take... this control does not transform the photographs into a message from Elane Photography.

The court also rejected Elane Photography claim that applying the Human Rights Act to it would violate its free exercise of religion protected by the U.S. and New Mexico constitutions. It held that the statute is a neutral law of general applicability. Finally it rejected a claim under the New Mexico Religious Freedom Restoration Act, concluding that it applies only to suits in which government agencies are the adverse parties, not to suits against a private individual or business.  Volokh Conspiracy has an extensive discussion of this aspect of the case, as well as a posting on its more general holding.

Judge Wechsler filed a concurrence in the case, arguing that the New Mexico constitution's free exercise clause is broader than that in the First Amendment, but also concluding that Elane Photography had not properly preserved that issue for appeal. WND reports on the decision.

1st Circuit Invalidates Defense of Marriage Act

Today in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (1st Cir., May 31, 2012), the U.S. First Circuit Court of Appeals held unconstitutional Section 3 of the Defense of Marriage Act that denies federal benefits to same-sex couples (and surviving same-sex spouses) lawfully married in Massachusetts. The 3-judge panel (composed of 2 judges nominated by Republican presidents and 1 nominated by a Democratic president) was unanimous in its decision. The court said:

This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.  In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation.  We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine--not to create some new category of "heightened scrutiny" for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.

Describing recent Supreme Court equal protection decisions, the 1st Circuit said:

In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification.  In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.

Concluding that "Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest," the court explained:

In reaching our judgment, we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality.  The many legislators who supported DOMA acted from a variety of motives, one  central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization.  ...

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute....  But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today.  One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.

CNN reports on the decision.

Lawsuits Seek Same-Sex Marriage Rights In Illinois

Two lawsuits were filed yesterday in federal district court in Illinois seeking to strike down provisions of Illinois law that bar the issuance of marriage licenses to same-sex couples and prevent legal recognition of same-sex marriages.  The suits allege that denial of same-sex couples the right to marry violates various provisions of the Illinois constitution.  As announced in an ACLU press release, one suit was filed by the ACLU on behalf of nine couples, and the other by Lambda Legal on behalf of 16 couples.  The suits are Lazaro v. Orr, (IL Cir. Ct., filed 5/30/ 2012) (full text of complaint) and Darby v. Orr,, (IL Cir. Ct., filed 5/30/2012) (full text of complaint). Illinois law provides for same-sex civil unions, but not same-sex marriages. (See prior posting.)

District Court Invalidates DOMA and Related Care Insurance Restrictions

In Dragovich v. U.S. Department of the Treasury, (ND CA, May 24, 2012), a California federal district court held unconstitutional Sec. 3 of the federal Defense of Marriage Act and federal provisions (26 USC Sec. 7702B(f)) that effectively bar states from permitting same-sex domestic partners or same-sex spouses from participating in state-maintained long-term care insurance policies. DOMA was defended by the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) since the administration refused to defend its constitutionality.  In striking down the provisions, the court said in part:

the legislative record contains evidence of anti-gay animus and the BLAG has failed to establish that § 3 of the DOMA is rationally related to a legitimate government interest.  Accordingly, Plaintiff same-sex spouses are entitled to summary judgment that § 3 of the DOMA is invalid under the Constitution’s equal protection principles to the extent that the law blocks their access to the CalPERS long-term care plan....

Because Congress’s restriction on state-maintained long-term care plans lacks any rational relationship to a legitimate government interest, but rather appears to be motivated by antigay animus, the exclusion of registered domestic partners of public employees from § 7702B(f)’s list of individuals eligible to enroll in state-maintained long-term care plans violates the Constitution’s equal protection guarantee.

Metro Weekly reports on the decision.

President Objects To House Passed Defense Bill's LGBT Related Provisions

The U.S House of Representatives last week passed, and sent to the Senate, HR 4310, the 2013 National Defense Authorization Act (full text.)  The bill contains two provisions relating to same-sex unions and to broader issues of conscience rights in relation to gays and lesbians.  Section 536 of the bill provides in part:

(a) Protection of Rights of Conscience- The Armed Forces shall accommodate the conscience and sincerely held moral principles and religious beliefs of the members of the Armed Forces concerning the appropriate and inappropriate expression of human sexuality and may not use such conscience, principles, or beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.....

(b) Protection of Chaplains- .... (2) No member of the Armed Forces may--

(A) direct, order, or require a chaplain to perform any duty, rite, ritual, ceremony, service, or function that is contrary to the conscience, moral principles, or religious beliefs of the chaplain, or contrary to the moral principles and religious beliefs of the endorsing faith group of the chaplain; or 

(B) discriminate or take any adverse personnel action against a chaplain, including denial of promotion, schooling, training, or assignment, on the basis of the refusal by the chaplain to comply with a direction, order, or requirement prohibited by subparagraph (A)....

Section 537 of the bill provides:

A military installation or other property owned or rented by, or otherwise under the jurisdiction or control of, the Department of Defense may not be used to officiate, solemnize, or perform a marriage or marriage-like ceremony involving anything other than the union of one man with one woman.

Last week the White House issued a Statement of Administration Policy objecting to several provisions in the bill.  The Statement says in part:

The Administration strongly objects to sections 536 and 537 because those provisions adopt unnecessary and ill-advised policies that would inhibit the ability of same-sex couples to marry or enter a recognized relationship under State law.  Section 536 would prohibit all personnel-related actions based on certain religious and moral beliefs, which, in its overbroad terms, is potentially harmful to good order and discipline.  Section 537 would obligate DOD to deny Service members, retirees, and their family members access to facilities for religious ceremonies on the basis of sexual orientation, a troublesome and potentially unconstitutional limitation on religious liberty.

LifeSite News on Tuesday reported on the controversy over these provisions.