Group Claims Baptist Church Violated Limits On Non-Profit Political Involvement

According to a press release yesterday from Americans United, the organization has written the Internal Revenue Service (full text of letter) asking it to investigate whether a Kentucky Baptist church has violated the rules that preclude Sec. 501(c)(3) non-profit organizations from becoming involved in political elections by endorsing or opposing candidates. At issue is the sermon delivered by Pastor Ronnie Spriggs of Hager Hill Freewill Baptist Church in Hager Hill, Kentucky in which he took issue with President Obama's backing of same-sex marriage and said:

We need to really be prayerful, and we need to get active. If you’ve ever opened your mouth, you better open it now. Between now and November, God’s people ought to thunder this country. We ought to let this country know that we will not be silent on these issues....

You know why that Obama said he believes that? Because the polls represent more people in the United States believe they ought to marry than others do. So this is an advantageous time. You know what we got to show him? There’s more saved people in the United States then he thinks there are. And if we don’t voice our opinion now, we’ll lose our country….

Recent Articles of Interest

From SSRN:

• Jill I. Goldenziel, Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts, (American Journal of Comparative Law, Forthcoming).
• Jeremy Waldron, What is Natural Law Like? (May 17, 2012).
• Michael Stokes Paulsen, The Priority of God (a Theory of Religious Liberty), (Pepperdine Law Review, 2012, Forthcoming).
• Erica A. Holzer, Defense of Marriage Acts: A Fifty State Survey, (March 5, 2012).
• Erica A. Holzer, DoMA Statutes and Same-Sex Divorce Litigation, (March 5, 2012).
• Pramudya A. Oktavinanda, Choice of Financing Schemes in Islamic Finance Industry: Failed Legal Formalism and Economic Inefficiencies, (May 14, 2012).

From SmartCILP:

• Pascale Fournier, Pascal McDougall and Merissa Lichtsztral, Secular Rights and Religious Wrongs? Family Law, Religion and Women in Israel, 18 William & Mary Journal of Women & Law 333-362 (2012).
• Janine Marie Idziak, Forgoing Drugs on Grounds of Cost: A Perspective from Catholic Health Care Ethics and Social Teaching, 13 Marquette Elder's Advisor 89-105 (2011).
• David E. Steinberg, The Myth of Church-State Separation, 59 Cleveland State Law Review 623-644 (2011).

Obama Campaign Hires Religious Outreach Director

CNN reported yesterday that the Obama re-election campaign is hiring a staffer from the White House Office of Faith Based and Neighborhood Partnerships to be the campaign's religious outreach director. Michael Wear has resigned his position as executive assistant to the executive director of the White House faith-based office, and will join the Obama campaign in Chicago as its Faith Vote Director. This report follows one in the New York Times yesterday that just two hours after announcing his support for same-sex marriage last week, the President had a conference call with eight African-American pastors to explain how he had reached his decision.

Recent Articles of Interest

From SSRN:

• Gary J. Simson, Religion by Any Other Name? Prohibitions on Same-Sex Marriage and the Limits of the Establishment Clause, (Columbia Journal of Gender and Law, Vol. 23, p. 132, 2012).
• John M. Kang, Martin v. Malcolm: Democracy, Nonviolence, Manhood, (West Virginia Law Review, Vol. 114, No. 937, 2012).
• Brian D. Galle, Charities in Politics: A Reappraisal, (William & Mary Law Review, Forthcoming).
• Randall P. Bezanson, Sheila Anne Bentzen and C. Michael Judd, Mapping the Forms of Expressive Association, (Pepperdine Law Review, Forthcoming).
• Patrick S. Metze, Troy Davis, Lawrence Brewer, and Timothy Mcveigh Should Still Be Alive: Certainty, Innocence, and the High Cost of Death and Immorality, (6 Charleston L. Rev. 333, Winter 2012).
• Nan D. Hunter, Animus Thick and Thin: The Broader Impact of the Ninth Circuit Decision in Perry v. Brown, (Stanford Law Review Online, Vol. 64, pp. 111-116, 2012).
• Zubair Abbasi, God’s Law v. Corporations: A Critique of Islamic Law Matters Thesis, (May 6, 2012).

Chile Passes Anti-Discrimination Law That Had Been Pending For 7 Years

The Santiago Times and I Love Chile News both report on final passage by Chile's Senate on Wednesday of an anti-discrimination law that had been pending in Parliament for 7 years. The Senate's 25-3 vote in favor of the bill follows the killing in March of 24-year-old Daniel Zamudio in a neo-Nazi hate crime attack. The new law, which still needs to be approved by the Constitutional Tribunal as constitutional, punishes discrimination by fines of up to 1.8 million CLP ($3700 US). A fine of up to 733,000 CLP ($1500 US) will be imposed an a complainant if no discrimination is found. The new law defines discrimination as:

any distinction, exclusion or restriction, without reasonable justification, made by state officials or private individuals and causing deprivation, disruption or threat to the legitimate exercise of fundamental rights enshrined in the Constitution of the Republic or in international human rights treaties ratified by Chile.

It includes differential treatment based on a broad range of characteristics: race, ethnicity, nationality, socioeconomic status, ideology, political opinion, religious beliefs, participation in organizations or lack thereof, sex, gender, sexual orientation, appearance, health and disabilities. In the past, opponents of the law, including Protestant churches and the Catholic Church, had been concerned that it could be used to legalize same-sex marriage.  To deal with those concerns, the final version provides in Art. 18: "The precepts of this law cannot be interpreted as derogatory clauses or modifications of other legal norms."

President Obama Says He Supports Same-Sex Marriage

ABC News reports that in an interview recorded today, President Barack Obama told ABC News' Robin Roberts that he now supports same-sex marriage. Obama said in part:

I have to tell you that over the course of several years as I have talked to friends and family and neighbors, when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together; when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that 'don't ask, don't tell' is gone, because they are not able to commit themselves in a marriage, at a certain point I've just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.

The President added that this is his personal position, but that he still supports the right of individual states to decide whether or not they will recognize same-sex marriages.

UPDATE: The New York Times reports that presumptive Republican presidential nominee Mitt Romney today reiterated his position opposing same-sex marriage and at least some types of civil unions:

"My view is the same as it’s been from the beginning," Mr. Romney told a CBS affiliate in Denver. "I don’t favor civil unions if it’s identical to marriage, and I don’t favor marriage between people of the same gender." Asked why he opposed civil unions, in particular, he explained that in many cases they represent marriage by a different name for gay couples.

North Carolina Voters Approve Constitutional Amendment Preserving Traditional Definition of Marriage

CNN reports that yesterday North Carolina voters, by a 61%-39% majority, approved a state constitutional amendment barring same-sex marriage and civil unions. The vote was 1,303,952 for, and 831,788 against. The amendment (full text) provides:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

With this vote, North Carolina becomes the 31st state to add a constitutional amendment preserving the traditional definition of marriage. Six states and the District of Columbia issue marriage licences to same-sex couples.

Some Scottish Religious Groups Want To Be Able To Perform Same-Sex Marriages

In Scotland yesterday, a coalition of faith groups (United Reformed Church, the Quakers, Buddhists and the Pagan Federation) calling themselves Faith in Marriage launched a campaign to end the ban on religious groups performing same-sex marriages.  Gay Star News reports that the group released an open letter to members of the Scottish Parliament asking them to change the law. A few days earlier, an anti-gay Christian group calling itself Scotland for Marriage announced that it would deliver leaflets to 300,000 homes in Glasgow warning of the dangers of same-sex marriage.

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, Expanding the Bob Jones Compromise, (Matters of Faith: Religious Experiences and Legal Responses in the United States, Austin Sarat, ed., Cambridge University Press, Forthcoming).
• Wilson Ray Huhn, The Growing Acceptance and Legal Recognition of Same-Sex Marriage in America Constitutes a Victory for Reality-Based Thinking, (April 22, 2012).

From SmartCILP and elsewhere:

• Robert Audi, Natural Reason, Religious Conviction, and the Justification of Coercion in Democratic Societies, [Abstract], 4 Journal of Law, Philosophy & Culture. 1-28 (2009).
• Susanna Frederick Fischer, Catholic Social Teaching, the Rule of Law, and Copyright Protection, 4 Journal of Law, Philosophy & Culture 63-72 (2009).
• Haider Ala Hamoudi, Judicial Review of Islamic Law Under Iraq's Constitution, Jurist, April 2012.

Charles Colson, Watergate Offender Turned Evangelist, Dies At Age 80

Charles Colson, a key figure in the Nixon White House Watergate scandal died today at the age of 80.  After serving a prison term for his role in the burglarizing of the psychiatric files of Daniel Ellsberg who had leaked the Pentagon Papers to the media, Colson became an influential evangelical Christian.  As Time reports in his obituary today:

Colson would turn incarceration into resurrection. Seeing the conditions of his fellow prisoners, he would be inspired to start Prison Fellowship shortly after he regained his freedom to evangelize the inmates of America's penitentiary system.... 

As the years went by, Colson would use his celebrity as one of America's most famous redeemed sinners to crusade for prison reform — as well as buttress the country's burgeoning evangelical movement, which was finding its political legs in the 1980s. Among evangelicals and conservative Christian groups, he became a fount of carefully worded argument, without the bombast and grandstanding of politically-ambitious preachers, even as he defended the same positions on evolution and abortion, same-sex marriage and the use of the Bible in public schools. In 2009, he started the Chuck Colson center, an online research site that he calls "the Lexis-Nexis of resources on the Christian worldview." Colson was key to forming an amalgam of conservative Christian principles that would come together as an ecumenical political front of great potency.

ACLU Criticizes Operations of US Commission on International Religious Freedom

The ACLU in a blog posting yesterday charges that the U.S. Commission on International Religious Freedom has failed to operate effectively. The ACLU says in part:

[S]ince its inception, the commission's been beset by controversy. People who watch the commission closely say it was created to satisfy special interests, which has led to bias in the commission's work. Past commissioners and staff have reported that the commission is "rife, behind-the-scenes, with ideology and tribalism." They've said that commissioners focus "on pet projects that are often based on their own religious background." In particular, past commissioners and staff reported "an anti-Muslim bias runs through the Commission's work."

The commissioners' personal biases have led to sharp divides both within the commission and with the State Department, which it is supposed to advise. One expert calls the commission's relationship with the State Department "adversarial," and "not conducive to effective dialogue, let alone cooperation."

The posting goes on to raise questions about two of the recent appointments to the Commission:  Zuhdi Jasser who the ACLU describes as someone who validates manufactured myths about Muslims; and Robert George who has been actively involved in battling against same-sex marriage. (See prior related posting.)

California Federal Judge Says Same-Sex Spouse of Court Employee Entitled To Health Insurance Coverage

On Tuesday in San Francisco (CA), federal district judge James Ware, acting as administrator of the federal district court's employee dispute resolution program, ruled that denying law clerk Christopher Nathan the right to enroll his same-sex spouse in the government's health insurance program violates the court's guarantee of a discrimination-free workplace. According to the San Francisco Chronicle, Ware ordered reimbursement of Nathan for the cost of past and future private insurance for his spouse. The court's clerk, Richard Wieking, says that Ware's order is in conflict with a directive of the Administrative Office of the U.S. Courts requiring compliance with the Defense of Marriage Act.

Challenge To North Carolina Marriage Laws Dismissed

According to the Greensboro (NC) News & Record, a North Carolina state trial court judge on Friday dismissed a lawsuit filed last year by 11 clergy challenging the state's requirement that marriages be solemnized by clergy or a magistrate.  The complaint claimed that (1) it violates the Establishment Clause for the state to make a member of the clergy an agent of the state to perform a marriage ceremony and submit a state granted license; (2) it violates state and federal free exercise protections for the state to require individuals entering into marriage to participate in a state-prescribed ceremony and licensing of the marriage; and (3) it is unconstitutional for the state to prohibit members of the clergy from solemnizing the marriage of same-sex couples. (See prior posting.) Plaintiffs say they will appeal the decision.

Britain Begins Consultation Process On Same-Sex Civil Marriage

Yesterday, Britain's Home Office launched a Consultation seeking public input on how to provide equal access to civil marriage for same-sex couples. According to the 25-page consultation document (full text), the government's proposals are designed to:

• enable same-sex couples to get married through civil ceremonies.

• retain civil partnerships for same-sex couples, including the ability to have a civil partnership registration on religious premises (on a voluntary basis and retaining the ban on any religious elements forming part of the registration).

• allow transsexual people to change their legal gender without having to legally end their existing marriage or civil partnership.

• make no changes to how religious marriages are solemnized.

Expanding on the issue of religious marriage, the consultation document says:

marriages solemnized through a religious ceremony and on religious premises would still only be legally possible between a man and a woman. The Government is not seeking to change how religious organisations define religious marriage and any subsequent legislation would be clear that no religious organisation could conduct a religious marriage ceremony on religious premises for same-sex couples.

Annex B of the document sets out specific consultation questions. Interested parties have until June 14 to file responses and comments on the proposals.  BBC News reports on these developments.

Washington Court Decision Allows Signature Collection In Anti-Gay Marriage Referendum

The Olympian reports that a Washington state court yesterday ruled on the language that should be used in a proposed referendum on the state's recently enacted same-sex marriage bill. (See prior posting.) The decision means that opponents of same-sex marriage can print petitions and begin to collect signatures.  They need almost 121,000 valid signatures by June 6 for the referendum to appear on this November's ballot. In its ruling, the court agreed with the ACLU's proposed language change in the ballot description of the measure.

Maryland Legislature Passes Same-Sex Marriage Bill; Governor Will Sign It

WBAL-TV reports that the Maryland legislature yesterday gave final passage to House Bill 438, the Civil Marriage Protection Act, which legalizes same-sex marriage in Maryland. A statement issued by the Governor immediately after the bill's passage made clear that he will sign the bill. The state Senate passed the bill yesterday by a vote of 25-22, following passage last week in the House of Delegates by a vote of 72-67. When effective, this will make Maryland the 8th state to recognize same-sex marriage.

The bill provides that clergy may not be required to perform marriage ceremonies that violate their free exercise rights. It also provides a religious organization, or any nonprofit institution supervised or controlled by a religion organization, "may not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual ... related to:  (1) the solemnization of a marriage or celebration of a marriage that is in violation of the entity’s religious beliefs; or (2) the promotion of marriage through any social or religious programs or services, in violation of the entity’s religious beliefs, unless State or federal funds are received for that specific program or service." The bill also contains a non-severability clause, calling for invalidation of the entire law if any part or application of it is found unconstitutional.

In the hard-fought debate in the legislature, opponents raised numerous issues, including a concern that the bill would threaten Mothers Day and Fathers Day.  Opponents promise to seek a referendum on the bill and placed language in it attempting to assure that it would not become effective until after a referendum on it.

DOMA Held Unconstitutional By Federal District Court

A California federal district court has held that the Defense of Marriage Act is unconstitutional.  In Golinski v. United States Office of Personnel Management, (ND CA, Feb. 22, 2012), the court held that the equal protection rights of a female staff attorney employed by the U.S. 9th Circuit Court of Appeals were infringed when the Administrative Office of the U.S. Courts refused to process her application to add her same-sex spouse to her family coverage health insurance plan. The court concluded that heightened scrutiny should apply when reviewing statutory classifications based on sexual orientation. It added, however, that even under rational basis review, the statute fails.

In applying heightened scrutiny, the court rejected four justifications identified by Congress in enacting DOMA: (1) encouraging responsible procreation and child-rearing; (2) defending and nurturing the institution of traditional, heterosexual marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources. In applying rational basis review, the court also examined three other justifications that Congress might have had:  (1) preserving the status quo in the federal definition of marriage while waiting for the states to tinker with the traditional definition of marriage; (2) an interest in remaining cautious in an area of so much social divisiveness; and (3) avoiding the inconsistency of eligibility for federal benefits turning on the vagaries of state law. The San Jose Mercury News reports on the decision. [Thanks to Volokh Conspiracy for the lead.]

New Jersey Legislature Passes Same-Sex Marriage Bill; Veto Expected

In New Jersey yesterday the Assembly gave final legislative approval to a bill legalizing same-sex marriage. However, according to a report by AP, it is expected that Gov. Chris Christie will veto the bill. The bill (full text) earlier this week passed the state Senate by a vote of 24-16, and then passed the lower house yesterday by a vote of 41-33.

Mexican Catholic Church Criticized Over Voter Guidelines

Mexico's Constitution (Art. 130) provides that: "priests and ministers cannot form political associations nor carry out propaganda for any candidate, party or political group." AP reported yesterday that Mexico's Catholic Church is being criticized for releasing voter guidelines for the faithful as the July 1 presidential elections approach. The guidelines appear to be in technical compliance with the constitutional requirement, but they implicitly endorse certain candidates. The guidelines say that Catholics may not "choose as a political option those who support or promote false rights or liberties that attack the teachings contained in the Holy Scriptures, tradition and doctrine of the Church." They also say that Catholics should watch for whether candidates and parties support the right to life. These warnings appear to be directed against candidates from the Democratic Revolutionary Party which, in control of the Mexico City government, has legalized abortion and same-sex marriage.

Washington State Legislature Passes Same-Sex Marriage Bill With Protections For Religious Organizations

The Washington state legislature yesterday gave final passage, and sent to the governor for her signature, SB 6239 legalizing same-sex marriage in the state. The House of Representatives passed the bill by a vote of 55-43, after the state Senate passed it last week by a vote of 28-21. (See prior related posting.)  CNN reports that Gov. Christine Gregoire will sign the bill that will go into effect in June at the end of the legislative session-- unless opponents place it on the November ballot to seek voter disapproval. The bill contains a number of provisions to protect churches, religious organizations and clergy. No member of the clergy is required to perform or recognized a same-sex marriage. No religious organization or religiously affiliated educational institution is required to provide accommodations, facilities (including campus chapels), goods or services related to the solemnization of a marriage. The bill also provides that:

No state agency or local government may base a decision to penalize, withhold benefits from, or refuse to contract with any religious organization on the refusal of a person associated with such religious organization to solemnize or recognize a marriage under this section.

 The bill defines "religious organization" to include faith-based social service organizations even if they offer services to the broader community.