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.

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.)