Split 9th Circuit Invalidates Proposition 8 Without Broadly Ruling On Same-Sex Marriage Right

The 9th Circuit U.S. Court of Appeals today, 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. In Perry v. Brown, (9th Cir., Feb. 7, 2012), [opinion on alternate website in case of traffic overload] 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. Instead, the majority concluded:

Proposition 8 servers no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for "laws of this sort."

The court briefly discussed the argument that Proposition 8 furthered a legitimate interest in protecting religious liberty.  The majority said:

the religious-liberty interest that Proposition 8 supposedly promoted was to decrease the likelihood that religious organizations would be penalized, under California's antidiscrimination laws and other government policies concerning sexual orientation, for refusing to provide services to families headed by same-sex spouses. But Proposition 8 did nothing to affect those laws.... Amicus's argument is thus more properly read as an appeal to the Legislature, seeking reform of the state's antidiscrimination laws to include greater accommodations for religious organizations.

Judge Smith dissented on this issue, concluding that people of California might have rationally believed that Proposition 8 is related to responsible procreation and optimal parenting.

The Court unanimously held that the proponents of Proposition 8 had standing to bring the appeal, and unanimously refused to accept the argument that the decision should be vacated because of the trial judge's interest in being able to marry his own same-sex partner.

Washington Post reports on the decision.

9th Circuit Orders Recordings Of Proposition 8 Trial To Remain Under Seal

In Perry v. Brown, (9th Cir., Feb. 2, 2012), the U.S. 9th Circuit Court of Appeals held that a California district court abused its discretion in ordering the unsealing of a video recording of the trial proceedings in the case challenging the constitutionality of California's Proposition 8-- the ban on same-sex marriage. Judge Vaughn Walker had the recordings made solely for his in-chambers use. Those challenging Proposition 8 argued that release of the recordings would have a chilling effect on expert witnesses' willingness to cooperate in future proceedings. The unsealing was ordered by Judge Walker's successor following Walker's retirement. (See prior posting.) The 9th Circuit said:

the district court failed to appreciate the nature of the statements that the trial judge had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments. Upon this record, there is only one plausible application of the standard for sealing a record that is, arguendo, subject to the common-law right of public access: the interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release.

AP reports on the decision.

Washington State Likely To Approve Same-Sex Marriage

AP reported  yesterday that there are now enough votes in the Washington state legislature to pass SB 6239, a bill that legalizes same-sex marriage. The crucial 25th vote in the state Senate will come from state senator Mary Margaret Haugen who, in an announcement yesterday, said in part:

I have very strong Christian beliefs, and personally I have always said when I accepted the Lord, I became more tolerant of others. I stopped judging people and try to live by the Golden Rule. This is part of my decision. I do not believe it is my role to judge others, regardless of my personal beliefs.... For me personally, I have always believed in traditional marriage between a man and a woman.....

But this issue isn’t about just what I believe. It’s about respecting others, including people who may believe differently than I. It’s about whether everyone has the same opportunities for love and companionship and family and security that I have enjoyed.

Gov. Chris Gregoire has publicly endorsed the proposal which also appears to have sufficient support in the state House of Representatives to pass in that chamber. Nevertheless, the Washington State Catholic Conference has issued a public statement (full text) urging retention of the definition of marriage as a union between a man and a woman. The statement argues in part:

Upholding the present definition of marriage does not depend on anyone’s religious beliefs. Washington State’s present law defining marriage as "a civil contract between a male and a female" is grounded not in faith, but in reason and the experience of society. It recognizes the value of marriage as a bond of personal relationships, but also in terms of the unique and irreplaceable potential of a man and woman to conceive and nurture new life, thus contributing to the continuation of the human race. A change in legislation would mean that the state would no longer recognize the unique sacrifices and contributions made by these couples, thereby adding to the forces already undermining family life today.

Minnesota Appeals Court Remands Challenge To State Defense of Marriage Act

In Benson v. Alverson, (MN Ct. App., Jan. 23, 2012), three same-sex couples sued a county registrar for refusing to issue them marriage licenses, claiming that Minnesota's Defense of Marriage Act (MDOMA) violates their rights under the Minnesota constitution.  The appeals court held that the trial court properly dismissed the state as a party to the lawsuit, and correctly found that MDOMA did not violate the Single Subject clause or the Freedom of Conscience protections of the state constitution.  However, the appeals court remanded the case for further proceeding, holding that the trial court had improperly dismissed equal protection, due process and freedom of association challenges to MDOMA.  AP reports on the decision.

Recent Articles and Book of Interest

From SSRN:

• Sahar F. Aziz, From the Oppressed to the Terrorist: American Muslim Women Caught in the Crosshairs of Intersectionality, (Hastings Race & Poverty Law Journal, Vol 8, No. 1, Spring 2012).
• Sahar F. Aziz and Abdullah Musalem, Citizens, Not Subjects: Debunking the Sectarian Narrative of Bahrain's Pro-Democracy Movement, (Institute for Social Policy and Understanding, July 2011).
• David A. Skeel, Hauerwasian Christian Legal Theory, ( Law & Contemporary Problems, Forthcoming).
• Jessie Hill, (Dis)Owning Religious Speech, (Case Legal Studies Research Paper No. 2012-2, Jan. 2012).
• Peter Mazzacano, Puritanism, Godliness, and Political Development in Boston and the General Court (1630-1640), (The Journal Jurisprudence, Vol. 12, pp. 599-678, 2011).
• Aziz Z. Huq, Private Religious Discrimination, National Security, and the First Amendment, (Harvard Law and Policy Review, Vol. 5, p. 347, 2011).
• Jessica Feinberg, Exposing the Traditional Marriage Agenda, (Northwestern Journal of Law and Social Policy, Forthcoming).
• Assaf Likhovski, Taxation Without a State: Jewish Voluntary Taxes in Mandatory Palestine, 1938-1948 (January 11, 2012).

From SmartCILP and elsewhere:

• Hossein Esmaeili, The Nature and Development of Law in Islam and the Rule of Law Challenge in the Middle East and the Muslim World, 26 Connecticut Journal of International Law 329-366 (2011).
• Kevin Gibson, Making Sense of the Sacred, [Abstract], 27 Negotiation Journal 477-492 (2011).
• George W. Dent, Perry v. Schwarzenegger: Is Traditional Marriage Unconstitutional?, Engage Volume 12, Issue 3, November 2011.
• Mark P. Strasser, Perry, Same-Sex Marriage, and Federal Constitutional Guarantees, Engage Volume 12, Issue 3, November 2011.
• William L. Saunders, Does Neutrality Equal Secularism? The European Court of Human Rights Decides Lautsi v. Italy, Engage Volume 12, Issue 3, November 2011.

Forthcoming Book:

• Claudia E. Haupt, Religion-State Relations in the United States and Germany: The Quest for Neutrality, (Cambridge Univ. Press, Jan. 2012).

Suit Challenges Investigations Into Church Refusals To Host Civil Union Ceremonies

Hawaii's civil union law, permitting same-sex civil unions, enacted in February 2011 (see prior posting) takes effect January 1, 2012. On Wednesday, two Christian churches filed a lawsuit in Hawaii federal district court claiming that individuals who are planning civil union ceremonies have already filed complaints with the Hawaii Civil Rights Commission against churches that refuse to rent their facilities for same-sex civil union and marriage ceremonies. The complaint (full text) in Emmanuel Temple, The House of Praise v. Abercrombie, (D HI, filed 12/28/2011) claims that investigations launched by the Civil Rights Commission have a chilling effect on plaintiffs' free exercise of religion. HRS Sec. 489-3 prohibits discrimination on the basis of sexual orientation in places of public accommodation. Courthouse News Service reports on the filing of the lawsuit.

Top 10 Church-State and Religious Liberty Developments For 2011

Here are my nominations for the 2011 Top Ten Church-State and Religious Liberty Developments. The choices are based on the long-range implications of the developments on legal doctrines and on relations between government and religion. I have linked to representative postings on each issue:

1. Legalization of same-sex marriage expands, as religious objections continue to be voiced loudly.  New York passed a same-sex marriage statute and the Obama administration announced it would no longer defend the constitutionality of DOMA while the Defense Authorization Bill assured that military chaplains would not be forced to perform same-sex marriages. Meanwhile litigation over California's Proposition 8 continues and some Catholic social service agencies in Illinois end foster-care and adoption programs to avoid placement with couples in same-sex civil unions.

2. Christian crosses on public property become the focus of litigation. Utah Highway Patrol Association memorial crosses on public property violate the Establishment Clause (10th Circuit). Supreme Court review is denied over dissent by Justice Thomas. The Mt. Soledad Memorial cross violates the Establishment Clause (9th Circuit) and Sunrise Rock Cross litigation continues after a fragmented Supreme Court decision last year.

3. Under pressure from Western countries, the United Nations Human Rights Council and General Assembly pass freedom of belief resolutions that move away from the concept of "defamation of religion."

4. The Supreme Court in Snyder v. Phelps holds that the 1st Amendment protects offensive anti-gay funeral picketing by members of the Westboro Baptist Church.

5. Religion remains an important issue in the battle for the Republican presidential nomination.  Mitt Romney's Mormon faith raises questions for some Christians, while Republican debates have included significant discussion of candidates' attitudes toward church-state matters, religious liberty and Muslims in America.

6. Uncertainty remains on the role of religion in Egypt in the wake of its Arab Spring uprising.  Will religious liberty be assured for Christian Copts? What role will Shariah law play in the country's new constitution and legal system?

7. A measure to ban circumcision makes it onto the San Francisco ballot until a court forces it off on state pre-emption grounds. The proposal was seen by many as reflecting anti-Semitism.

8. The Supreme Court interprets standing narrowly in rejecting an Establishment Clause challenge to Arizona tax credits for contributions to organizations that provide scholarships to private and religious schools. The case is Arizona Christian School Tuition Organization v. Winn.

9. A Canadian trial court upholds Canada' anti-polygamy law against challenges under the Charter of Rights and Freedoms, except for prosecution of minors under the statute.

 10. The Supreme Court in Sossamon v. Texas holds that states which accept federal funding for their prisons retain sovereign immunity to monetary damage claims under RLUIPA.

For comparison, here is a roundup of top 2011 religion developments from BJC blogger Don Byrd  I invite your e-mails (religionclause@gmail.com) if you disagree with my picks.

Suit Challenges North Carolina's Marriage Laws As Free Exercise and Establishment Violations

An unusual lawsuit was filed earlier this month in state court in North Carolina challenging North Carolina's statutes that require any marriage to be solemnized by a magistrate or a member of the clergy (GS Sec. 51-1) and prohibit them from solemnizing a marriage unless the couple has obtained a marriage license (GS Sec. 51-6). The complaint (full text) in Thigpen v. Cooper, (NC Super. Ct., filed 12/8/2011), alleges 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. The complaint also alleges that the state's marriage requirements violate the personal liberty protections of the 14th Amendment and North Carolina's constitution. The Greensboro News-Record reported on the case last week.

Defense Authorization Bill Passes With Conscience Protection For Chaplains

Bloomberg reports that Congress yesterday gave final approval to HR 1540, the 2012 National Defense Authorization Act. (Full text of Conference Report.) The bill now goes to the President for his signature. Section 544 of the bill provides:

A military chaplain who, as a matter of conscience or moral principle, does not wish to perform a marriage may not be required to do so.

The section responds to concerns by some that, with the end of "Don't Ask, Don't Tell" in the military, chaplains may be pressured to perform same-sex marriages.  As reported by Mother Jones earlier this week, House Armed Services Committee Chairman Buck McKeon failed in his efforts to include in the bill a total ban on military chaplains performing same-sex marriages.

Recent Articles of Interest

From SSRN:

• Nathan B. Oman, How to Judge Shari'a Contracts: A Guide to Islamic Marriage Agreements in American Courts, (Utah Law Review, Vol. 2011, No. 1, p. 287, 2011).
• Douglas NeJaime, Marriage Inequality: Religious Exemptions and the Production of Sexual Orientation Discrimination, (California Law Review, Forthcoming).
• Kishor Kunal, Freedom of Religion in Secular State, (December 6, 2011).
• Munir Ahmad Mughal, English Translation of Ibn Hashsham's Siratun-Nabi (Peace Be Upon Him), (December 11, 2011).
• Steven Aiello, 'Islam and Social Justice in Iran': The Merging of Economic, Political and Religious Dogmas in the Iranian Revolution, (December 6, 2011).
• Jeffrey A. Parness, Statutory Parenthood for Same-Sex Partners, (Illinois Bar Journal, Vol. 99, p. 636, December 2011).
• Mohammed Khnifer, Goldman Sachs Claims that its $2 billion Sukuk Programme Follows a Murabaha Structure, Mohammed Khnifer Claims Otherwise – That it's Nothing More than Areverse Tawarruq,(December 6, 2011).

9th Circuit Hears Arguments In California Proposition 8 Case

AP reports that yesterday the U.S. 9th Circuit Court of Appeals heard two sets of arguments on different aspects of Perry v. Brown, the case challenging the constitutionality of California's Proposition 8 that barred same-sex marriage in the state. One set of arguments (audio of arguments) focused on whether now-retired Judge  Vaughn Walker who presided over the district court trial should have disclosed that he was in a long-term relationship with a male partner, arguably a fact bearing on his impartiality in deciding the case. The second set of arguments (audio of arguments) dealt with whether the court should unseal video recordings of the trial made by Judge Walker.

New York Trial Court Lets Open Meeting Challenge To Same-Sex Marriage Law Continue

In New Yorkers for Constitutional Freedom v. New York State Senate, (NY Sup. Ct. Livingston Co., Nov. 18, 2011), a New York trial court refused to dismiss a challenge to the procedures used by the New York legislature in enacting the Marriage Equality Act that legalizes same-sex marriage.  The court held that the complaint presents a justiciable issue as to whether the Senate violated New York's Open Meetings Law when the governor held a meeting with all the Republican members of the Senate to attempt to convince them to break their party's opposition to the bill and vote for it. The court dismissed a challenge to the governor's certification that waived the requirement that a bill be presented to legislators at least three days before a vote, even though, in the court's view the governor's statement of necessity for a more rapid vote was "logically and clearly ... disingenuous." LIberty Counsel issued a release calling the decision "a victory for the people of New York and a setback to the political arm-twisters who tried to thwart the open meetings process." (See prior related posting.)

California High Court Tells 9th Circuit: Initiative Proponents Have Standing

The California Supreme Court yesterday gave a substantial boost to backers of Proposition 8-- the initiative that amended the state constitution to bar recognition of same-sex marriage.  In a lengthy and unanimous decision in Perry v. Brown, (CA Sup. Ct., Nov. 17, 2911), the state's high court held that:

when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

Justice Kennard also filed a concurring opinion.  The court's decision came in response to a question certified to the California Supreme Court by the U.S. 9th Circuit Court of Appeals in a federal lawsuit challenging the constitutionality under the U.S. Constitution of Proposition 8. The federal district court held that Proposition 8 violated the due process and equal protection clauses of the U.S. Constitution.  State officials refused to defend the constitutionality of Proposition 8 and official proponents of Proposition 8 sought to intervene to defend the measure. (See prior posting). AP reports on yesterday's opinion.

Bishops Launch New Website Opposing Same-Sex Marriage

The U.S. Council of Catholic Bishops has created a new website-- Marriage: Unique for a Reason-- devoted to defending traditional marriage and opposing same-sex marriage.  A welcoming blog post from Bishop Salvatore J. Cordileone, chairman of the bishops' Subcommittee for the Promotion and Defense of Marriage, says in part:

Confusion about marriage's meaning is common today. What is marriage? Why does sexual difference matter for marriage? Do children have a right to a mom and a dad? Is marriage between one man and one woman discriminatory? These and many other questions are being raised with great urgency, and they call out for answers.

The Marriage: Unique for a Reason website is designed as a home of resources on what the Catholic Church teaches about the unique meaning of marriage, and why.

Michigan Anti-Bullying Bill Criticized Over Religious Exemption

Michigan is one of three states without an anti-bullying law. Currently, Matt's Safe School Law, SB 45, is working its way through the state's legislature. ABC News reports that the state Senate passed the bill last Wednesday, but added a controversial exemption that provides the bill "does not prohibit a statement of a sincerely held belief or moral conviction." Columnist Dan Savage strongly criticized the exemption, saying:

It really is a God-hates-fags-special-rights-for-Christians-to-abuse-LBGT-kids-in-the-school law. It's a law that specifically empowers students, teachers, administrators [and] principals to bully LGBT kids if they can point to a moral justification."

Bill sponsor Rick Jones says this language was not intended to allow a child to be confronted or abused, but was merely designed to protect the child who says in class that his religion does not believe in same-sex marriage.  Jones says he is open to the language being changed, so long as students' 1st Amendment rights are protected.


UPDATE: The Michigan House of Representatives on Nov. 10 passed HB 4163, a version of the anti-bullying law that does not contain the language exempting statements motivated by religious or moral beliefs. (Huffington Post.)

Britain To Permit Civil Partnership Ceremonies On Religious Premises

On Wednesday, Britain's Equalities Office published a summary of the responses to its consultation on regulatory changes that would permit same-sex civil partnership ceremonies to take place on the premises of religious institutions in England and Wales. The report includes a draft of The Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011 to implement the changes. (Full text of report.) The report says:

Making this change will allow those religious organisations that wish to do so to host civil partnership registrations on their religious premises. This voluntary provision is a positive step forward for both LGB rights and religious freedom.

The decision by any particular faith group on whether they wish their premises to be designated for civil partnership ceremonies is entirely voluntary.  The proposed regulations will leave it up to local authorities to decide whether they will as well designate clergy who apply to become civil partnership registrars. The draft Regulations will be laid before Parliament so they can come into force by the end of 2011.  The government also promised to publish a consultation document in March 2012 on equal civil marriage. Anglican Journal on Wednesday reported on developments.

Servicemembers Sue To Challenge DOMA and Obtain Equal Spousal Benefits

The Servicemembers Legal Defense Network announced last week that it had filed a federal lawsuit on behalf of a number of plaintiffs seeking the same benefits for same-sex spouses of current and former service members as is provided to opposite-sex spouses.  The complaint (full text) in McLaughlin v. United States, (D MA, filed 10/27/2011), asks the court to rule that the Defense of Marriage Act is unconstitutional as applied to military spousal benefits, and that the definition of "spouse" in federal statutes relating to military benefits is likewise unconstitutional. The complaint invokes the equal protection clause,the 10th Amendment's  principles of federalism, the fundamental right to marry, and the bill of attainder clause. Thursday's Christian Post reported on the case. [Thanks to Alliance Alert for the lead.]

NY Town Clerk Challenged In Election Over Marriage License Arrangement

AP reported yesterday that in Ledyard, New York, town clerk Rose Marie Belforti is being challenged in November's election by write-in candidate Ed Easter because of the way that Belforti is handling the issuance of marriage licenses.  Belforti decided that her Christian beliefs precluded her from issuing marriage licenses to same-sex couples, so she appointed a deputy clerk to handle marriage licenses for all couples.  Easter says that Belforti is being paid $12,000 per year for her part-time position, and the people should not be asked to pay another person to perform Belforti's duties.  Belforti says it is about accommodating her religious beliefs.

Recent Articles of Interest

From SSRN:

• Abhyuday Bhotika, Status and Role of a Karta – A Critical Study, (October 6, 2011).
• Daniel Kroslak, The Cultural Defense in Germany, (October 9, 2011).
• Abdulla Galadari, Inner Meanings of Islamic Finance: Understanding the Theory Behind All Theories, (5th IIUM International Accounting Conference, Kuala Lumpur, Malaysia, July 12-13, 2011).
• Anne Twomey, Changing the Rules of Succession to the Throne, (Sydney Law School Research Paper No. 11/71, Oct 12, 2011).
• Linda Ross Meyer, Book Review: Apology and Sympathy: On the Importance of ‘Training in Moral Discomfort’, (April 9, 2011).
• Christopher C. Lund, The New Victims of the Old Anti-Catholicism, (Connecticut Law Review, 2012).

From SmartCILP:

• Rachel Goldberg and Brian Blancke, God In the Process: Is There a Place for Religion in Conflict Resolution?, [Abstract], 28 Conflict Resolution Quarterly 377-398 (2011).
• Nathan J. McGrath, Reed v. UAW: An Adverse Ruling on Adverse Action, 23 Regent University Law Review 391-402 (2010-2011).
• David Skeel, Making Sense of the New Financial Deal, 5 Liberty University Law Review 181-199 (2011).
• Juan Marco Vaggione, Sexual Rights and religion: Same-sex Marriage and Lawmakers' Catholic Identity in Argentina, [Abstract], 65 University of Miami Law Review 935-954 (2011).
• Rev. Carlton W Veazey and Marjorie Brahms Signer, Religious Perspectives on the Abortion Decision: The Sacredness of Women's Lives, Morality and Values, and Social Justice, 35 N.Y.U. Review of Law and Social Change 281-302 (2011).
• Symposium: Critical Perspectives on the Criminalization of Islamic Philanthropy in the War on Terror. Articles by Jonathan Benthall, Nina J. Crimm, Sally Howell, Erica Caple James, Ramzi Kassem and Khalid Mustafa Medani. 10 UCLA Journal of Islamic & Near Eastern Law 1-137 (2010-2011).

U.S. Bishops Create New Committee On Religious Liberty

The U.S. Conference of Catholic Bishops announced last week that it has formed a new Ad Hoc Committee on Religious Liberty "to address growing concerns over the erosion of freedom of religion in America." USCCB president Archbishop Timothy Dolan also sent a letter to fellow bishops informing them directly of the new Committee, saying:

The Framers of the Constitution themselves understood [religious liberty] ...  to be based on the norms inherent in Natural Law – namely, "that all men are created equal, that they are endowed by their Creator with certain inalienable rights, and that among these are Life, Liberty, and the Pursuit of Happiness."  This basic right, in its many and varied applications for Christians and people of faith, is now increasingly and in unprecedented ways under assault in America.

The new committee will be chaired by Bishop William Lori of Bridgeport, Connecticut. Among the pressing issues identified by the bishops are federal policies regarding reproductive health services, administration opposition to the Defense of Marriage Act, the Justice Department's position on the "ministerial exception" doctrine, and the narrow religious exemptions in New York's same-sex marriage law.