Obama Endorses Respect for Marriage Act That Would Repeal DOMA

The White House announced yesterday, both in a press briefing by Press Secretary Jay Carney, and in a post on the White House blog, that President Obama is "proud to support" S. 598, the Respect for Marriage Act, which would repeal the Defense of Marriage Act and recognize for purposes of federal law same-sex marriages that have been validly entered into in a state which recognizes such marriages. The Senate Judiciary Committee is scheduled to hold a hearing on the bill today. The same bill has been introduced in the House as H.R. 1116.

UPDATE: Transcripts of testimony at the hearing are now available online.

Can New York Municipal Clerks Require Accommodation of Objection To Licensing Same-Sex Marriages?

As previously reported, New York's recently-enacted same-sex marriage law protects from liability or penalty any clergy who refuse to officiate at a same-sex marriage, but does not contain any explicit conscience exception  to shield municipal clerks who have religious objections to issuing marriage licences to same-sex couples. At least one town clerk has already resigned over this. Now, however, Constitutional Law Prof Blog reports that the Alliance Defense Fund last week sent a memo (full text) to New York Municipal Clerks telling them that they are entitled to claim a religious accommodation to exempt them from issuing same-sex marriage licenses.  The accommodation provisions appear in the New York Human Rights Law, Executive Law Sec. 296(10)(a.). That section bars employers from requiring any employee

to violate or forego a sincerely held practice of his or her religion ... unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's ... sincerely held religious observance or practice without undue hardship on the conduct of the employer's business.

ADF's memo argues:

because New York law [Domestic Relations Law Sec. 15(3)] explicitly allows a municipality to delegate a clerk’s duties concerning marriage licenses to a deputy clerk or any other employee, a city or town should have no reason to deny a clerk’s request for an accommodation. It should be a simple matter to delegate those duties to others who do not object to issuing and signing marriage licenses for same-sex couples.

ADF's memo fails however to discuss two other provisions that may shed some question on its analysis. Executive Law Sec. 296(1)(d.) provides that:

an accommodation shall be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed.

In addition,  Domestic Relations Law Sec. 15(3) cited by ADF, appears to allow appointment of a deputy clerk or other employee by a city, but does not appear to provide for the same delegation by towns. [Thanks to Ruthann Robson for the lead.]

Recent Articles of Interest

From SSRN:

• Jay Wexler, Government Disapproval of Religion, (Boston University School of Law, Public Law & Legal Theory Research Paper No. 11-32, July 2011).
• Pol Morillas, Hezbollah’s Identities and their Relevance for Cultural and Religious IR, (ICIP Working Papers 2009/4, Dec. 2011).
• Kenneth L. Marcus, Bullying as a Civil Rights Violation: The U.S. Department of Education’s Approach to Harassment, (July 11, 2011).
• Christopher C. Lund, Understanding the Ministerial Exception, (North Carolina Law Review, Vol. 90, No. 1, Fall 2011).
• Haider Ala Hamoudi, Book Review: Constitutional Theocracy by Ran Hirschl, (Osgoode Hall Law Journal, Forthcoming).
• Nicole Stelle Garnett and Margaret F. Brinig, Catholic Schools, Charter Schools, and Urban Neighborhoods, (University of Chicago Law Review, 2012).
• Nicole Stelle Garnett, A Winn for Educational Pluralism, (Yale Law Journal Online, May 2011).
• Lucia Ann Silecchia, Pope John Paul II's Evangelium Vitae and the 'Horizon of the Good', (Journal of Christian Legal Thought, Vol. 1, No. 1, Spring 2011).
• Jonathan Caleb Landon, Usury and the Church: A Christian Response to Payday Lending, (May 6, 2011).
• Charles J. Russo and William E. Thro, Another Nail in the Coffin of Religious Freedom? Christian Legal Society v. Martinez, (Education Law Journal, Vol. 12, 2011).
• Jeffrey A. Parness, Civil Unions and Parenthood at Birth, (Illinois Bar Journal, Vol. 99, October 2011).

From SmartCILP and elsewhere:

• John R. Dorocak and Lloyd E. Peake, Political Activity of Tax-Exempt Churches, Particularly After Citizens United v. Federal Election Commission and California's Proposition 8 Ban On Same-Sex Marriage: Render Unto Caesar What Is Caesar's, [Abstract], 9 First Amendment Law Review 448-485 (2011).
• K. Eli Akhavan, Basic Principles of Estate Planning Within the Context of Jewish Law, Probate and Property, July/Aug. 2011, pg. 60.

Town Clerk Resigns Over New York Same-Sex Marriages

In the town of Barker, New York, 56-year old Laura Fotusky has become the first town clerk in the state to resign over the recently enacted same-sex marriage bill.  According to the International Business Times, Fotusky says that her religious beliefs preclude her from signing a marriage certificate for a same-sex couple. The full text of Fotusky's resignation letter is included in a posting on the website of New Yorkers for Constitutional Freedoms.  In the letter, which was presented to the Town Board on July 11, she says: "I would be compromising my moral conscience if I participated in the licensing procedure."

UK Equality Commission Wants European Court To Require Accommodation of Employees' Religious Beliefs

Britain's Equality and Human Rights Commission announced Monday that it has petitioned to intervene in four religious discrimination cases being appealed to the European Court of Human Rights, all involving attempt by employees to obtain accommodation of their religious practices.  In its applications to intervene, the Commission argues that past decisions have not sufficiently protected freedom of religion or belief.  It will urge the Court to adopt a principle of reasonable accommodation of religious beliefs.  Two of the cases involve female employees who wished to wear a cross on a necklace in violation of their employers' dress policies. (Applications of Nadia Eweida and Shirley Chaplin).  The second two cases involved employees with religous objections to same-sex unions.  One case involved a marriage registrar who objected to taking part in registration of same-sex civil partnerships.  The second involved a counselor who had concerns about providing sexual counselling to same-sex couples. (Applications of Lillian Ladele and Gary McFarlane).

House Amendments To Defense Bill Bar Using Military Facilities For Gay Marriages

On Thursday, the U.S. House of Representatives voted on a number of amendments to the 2012 Defense Appropriations Bill. The Daily Caller reports on one amendment, which passed 236-84, introduced by Rep. Tim Huelskamp of Kansas, that bars same-sex marriages being performed on military bases. The amendment provides: "None of the funds made available by this Act may be used to implement the curriculum of the Chaplain Corps Tier 1 DADT repeal training dated April 11, 2011."  From the Congressional Record, here is the explanation of the amendment by Rep. Huelskamp:

Earlier this year, the Navy chief of chaplains announced that military chaplains who desire to perform same-sex marriages would be allowed to do so following the repeal of the policy known as Don't Ask, Don't Tell. The directive said that chaplains could perform same-sex ceremonies in such States where such marriages and unions are legal. Apparently, the Navy has recently backed away from such instruction, but tepidly and weakly, and in a way that leaves the door open to the reinstatement of this policy.

This amendment I offer will prohibit the enforcement of the directive of allowing chaplains to perform same-sex marriages on Navy bases regardless of whatever a State's law is on gay marriage.

... As the Navy and other military branches prepare for the repeal of this 1993 law, hours upon hours of sensitivity training have been presented to men and women in uniform. Such instruction has included warning that the failure to embrace alternative lifestyles could result in penalties for serv ice mem bers.

What will happen to chaplains who decline to officiate over same-sex ceremonies? The directive states that chaplains ``may'' perform same-sex civil marriage ceremonies. I fear that chaplains who refuse to perform these ceremonies may find themselves under attack and their careers threatened.

Madam Chair, we must ensure the religious liberty of all military members, particularly that of chaplains. In my family, I've had a military chaplain who has served for more than approximately 4 decades, so this is particularly important to me, personally.

(See prior related posting.) The House on Thursday and Friday also passed two additional amendments to the Defense Appropriation Bill  (1, 2) that appear to achieve the same purpose. They prohibit use of any funds in contravention of the Defense of Marriage Act.

Mexican Electoral Tribunal Orders Sanctions Against Catholic Archdiocese

According to yesterday's National Catholic Reporter, Mexico's Federal Electoral Tribunal issued a ruling on July 1ordering the country's Interior Ministry to sanction the Catholic Archdiocese of Mexico City for critical comments made by the Archdiocese's spokesman last August.  The Tribunal found that comments urging Catholics vote against political parties that support more liberal abortion laws and same-sex marriage violated  Mexico's electoral code. The Electoral Tribunal pointed to the need to keep church and state separate.  Mexico's Interior Ministry is responsible for regulating religious associations, but it is unclear whether the Electoral Tribunal has jurisdiction to order the Interior Ministry to take action.  The Archdiocese plans to appeal.

Recent Articles of Interest

From SSRN:

• Sarah Beresford, Seeking Secularism: Resisting Religiosity in Marriage and Divorce- A Comparative Study of England and America, (Web JCLI, Vol. 3, 2011).
• Girjesh Shukla, Law, Religion and State: Constitutional Discourse and Judicial Interpretation, (2011).
• Howard Kislowicz, Richard Haigh and Adrienne Ng, Calculations of Conscience: The Costs and Benefits of Religious and Conscientious Freedom, (Alberta Law Review, Vol. 48, No. 3, 2011).
• David Bilchitz, Should Religious Associations Be Entitled to Discriminate?, (South African Journal of Human Rights, Vol. 2, 2011).
• Mariana Ardila Trujillo, Hacia La Resolución De Los Conflictos Entre La Protección De La Diversidad Cultural Y El Reconocimiento De Los Derechos De Las Mujeres (Toward the Conflict’s Resolution between the Protection of the Cultural Diversity and the Recognition of the Women´s Rights), (Revista Derecho del Estado, No. 26, 2011).
• Alejandro Rosas Martinez, Algunas Implicaciones Jurídicas Del Matrimonio Entre Personas Del Mismo Sexo En La Ciudad De México (Some Juridical Implications of the Same Sex Persons Marriage at México City), (Revista Derecho del Estado, No. 26, 2011).
• Sara Weinrib, An Exemption for Sincere Believers: The Challenge of Alberta versus Hutterian Brethren of Wilson Colony, (McGill Law Journal, Vol. 56, No. 3, pp. 719-750, 2011).
• Mark Strasser, Same-Sex Marriage and the Right to Privacy, (Journal of Law and Family Studies, Vol. 13, pp. 117-150, 2011).
• Wladimyr Mattos Albano, The Constitutional Immunity to Temples of Any Cult in the Municipalities and Their Interpretation, (Revista Brasileira de Direito Tributário e Finanças Públicas, Vol. 4, No. 22, p. 25, 2010).

From bepress:

• Anke I. Bouzenita, The Principle of Neutrality and “Islamic International Law” (Siyar), Global Jurist: Vol. 11: Iss. 1 (Advances), Article 4 (2011).

From SmartCILP:

• Barbara Oomen, Between Rights Talk and Bible Speak: The Implementation of Equal Treatment Legislation in Orthodox Reformed Communities in the Netherlands, [Abstract], 33 Human Rights Quarterly 175-200 (2011).
• Frederick V. Perry, The Corporate Governance of Islamic Banks: A Better Way of Doing Business?, 19 Michigan State Journal of International Law 251-277 (2011).

Catholic, Orthodox Jewish Spokesmen React To New York's Marriage Equality Law

New York last week enacted legislation permitting same-sex marriage despite particularly strong opposition from some religious groups, including Catholic and Orthodox Jewish organizations.  (See prior posting).  Here are statements that those two groups have now issued in reaction to the new law:

Bishop Nicholas DiMarzio, Catholic Bishop of Brooklyn, said in a press release:

Today, Governor Andrew Cuomo and the state legislature have deconstructed the single most important institution in human history. Republicans and Democrats alike succumbed to powerful political elites and have passed legislation that will undermine our families and as a consequence, our society.....

In light of these disturbing developments and in protest for this decision, I have asked all Catholic schools to refuse any distinction or honors bestowed upon them this year by the governor or any member of the legislature who voted to support this legislation. Furthermore, I have asked all pastors and principals to not invite any state legislator to speak or be present at any parish or school celebration.

The above request is intended as a protest of the corrupt political process in New York State. More than half of all New Yorkers oppose this legislation. Yet, the governor and the state legislature have demonized people of faith, whether they be Muslims, Jews, or Christians, and identified them as bigots and prejudiced, and voted in favor of same-sex “marriage.” It is mystifying that this bill would be passed on the last day of an extended session under the cover of darkness.

However a statement signed by all the bishops of New York state was considerably milder in tone. It said in part:

The passage by the Legislature of a bill to alter radically and forever humanity’s historic understanding of marriage leaves us deeply disappointed and troubled.

We strongly uphold the Catholic Church’s clear teaching that we always treat our homosexual brothers and sisters with respect, dignity and love. But we just as strongly affirm that marriage is the joining of one man and one woman in a lifelong, loving union that is open to children, ordered for the good of those children and the spouses themselves.

The Union of Orthodox Jewish Congregations of America issued a statement saying:

Consistent with our tradition and Jewish religious principles, we oppose the redefinition of marriage and the state sanction of same sex marriages. We opposed this legislation and believe it is a mistake to enact it in New York. We do note however that the legislation, as enacted, includes robust protections of religious liberties for organizations including synagogues, schools and social service agencies. For that at least, we are grateful. Just as we, in a democratic, pluralistic society do not seek to impose our religious beliefs on others, same sex marriage, now the law in New York, must not infringe on anyone's religious liberties.

FBI Says Mennonites In Nicaragua Aiding Mother To Avoid Custody Change To Former Lesbian Partner

AP today reports on the international kidnapping investigation by the FBI that is looking for Lisa Miller and her daughter who fled the country after her former same-sex partner, Janet Jenkins, was awarded custody of of the girl.  In 2003, Miller broke up with Jenkins, renounced homosexuality and became a Baptist, and then a Mennonite.  Miller, the birth mother, was originally granted custody, but after she refused to comply with visitation schedules for Jenkins, courts in both Virginia and Vermont granted custody to Jenkins. But Miller had already fled to Central America.  In April, the FBI arrested a Nicaraguan missionary, Timo Miller, and charged him with abetting an international kidnapping by arranging a flight for Lisa Miller and her daughter from Canada to Nicaragua. More than $30,000 has been raised for a Timo Miller defense fund.  Apparently the Mennonite community in Nicaragua is helping hide Lisa Miller and her daughter.  At one point, it appears she stayed at a beach house in Nicaragua owned by the father of an administrative assistant at Jerry Falwell's Liberty University Law School. Liberty Counsel represented Miller in her Vermont court proceedings.  Pablo Yoder, a Mennonite pastor in Nicaragua, said:

[T]he Nicaraguan Brotherhood felt it right and good to help Lisa not only free herself from the so called civil marriage and lesbian lifestyle, but especially to protect her nine year old daughter from being abducted and handed over to an active lesbian and a whole-hearted activist.

New York Legalizes Same-Sex Marriage With Lengthy Exemptions For Religious Organizations

Late last night, the New York state Senate voted 33-29 in favor of A8354, the bill passed earlier this month by the state Assembly legalizing same-sex marriage.  Then the Assembly and Senate both passed A8520 which expanded the protections for churches, religious organizations and clergy who object to same-sex marriage.   Gov. Cuomo immediately signed both bills into law. The New York Times has extensive coverage of the politics behind the governor's successful campaign to obtain passage of the legislation, reporting:

The story of how same-sex marriage became legal in New York is about shifting public sentiment and individual lawmakers moved by emotional appeals from gay couples who wish to be wed.

But, behind the scenes, it was really about a Republican Party reckoning with a profoundly changing power dynamic, where Wall Street donors and gay-rights advocates demonstrated more might and muscle than a Roman Catholic hierarchy and an ineffective opposition.

And it was about a Democratic governor, himself a Catholic, who used the force of his personality and relentlessly strategic mind to persuade conflicted lawmakers to take a historic leap.

The expanded religious protections were an important factor in obtaining final passage.  The protections apply to several categories of organizations and their employees: (1) religious entities, such as churches; (2) "benevolent orders", such as the Knights of Columbus; (3) any non-profit corporation operated, supervised or controlled by a religious corporation; (4) any employee of these organizations.

For these groups, notwithstanding any state or local law or regulation, they are not required to provide accommodations, facilities, goods or services for any marriage ceremony. Nor is any member of the clergy required to perform a same-sex marriage ceremony.  Refusal to provide facilities or perform a ceremony will not give rise to any civil claim or to any governmental action discriminating against the groups or clergy or imposing a penalty or withholding benefits.  The new law also assures religious organizations that provisions in New York's anti-discrimination law that allow them to favor members of their own religion in employment, sales, rental of housing, admission or other preferences and to take other action to promote their religious principles, are still in effect.

The new law does not create exemptions for individuals with religious objections who own private businesses that offer their facilities for weddings to refuse to make them available for same-sex ceremonies.

Amended Gay Marriage Bill With Expanded Religious Exemptions Introduced In New York

The Wall Street Journal reports that Gov. Andrew Cuomo and lawmakers introduced an amended version of the same-sex marriage bill (full text)  into the state legislature today. The new version expands protections for religious organizations and clergy that object to same-sex marriage. Backers hope this will be enough to convince at least one more member of the state Senate to vote in favor of the bill and thereby secure its passage.  The prior version of the bill, already passed by the state Assembly, had somewhat less comprehensive exemptions in it, and Senate Republicans had been seeking this expansion. (See prior posting.)

NY Assembly Passes Marriage Equality Bill Including Religious Protections

The New York state Assembly yesterday passed and sent to the state Senate a marriage equality bill, A8354.  The Advocate reports that the bipartisan 80-63 vote in favor of legalizing same-sex marriage followed an impassioned but civil debate that included remarks by various members on whether their religious faith should be an issue in their vote:

I wish it wasn't in the book," said Dov Hikind, who waved a copy of the Torah on the assembly floor. "The Torah's so clear on this subject," he said. "There is no choice for me. And I am open-minded."...

Deborah Glick, the first openly gay member of the state legislature, later addressed the separation of church and state head on, saying, "You do not put your hand on the Constitution and swear to uphold the Bible."

The bill provides that no religious organization will be required to  provide accommodations or facilities for same-sex marriages, and no clergy shall be required to perform same-sex marriages.

According to the New York Times yesterday, the state Senate is still apparently one vote short of the 32 needed for passage.   Final passage may depend on the decision on how to vote by Republican Sen. Stephen Saland from Poughkeepsie who, along with a small group of other Republicans, may vote for the bill if the protections for religious organizations that object to gay marriage are strong enough. (See prior related posting.)

Bankruptcy Court Says DOMA Is Unconstitutional; Same-Sex Couple Can File Joint Petition

A California federal bankruptcy court has declared the federal Defense of Marriage Act unconstitutional insofar as it would preclude a same-sex married couple from filing a joint bankruptcy petition under Chapter 13 of the Bankruptcy Code. 11 USC 302 permits joint petitions by a debtor and the debtor's spouse. The couple involved in the case was one of 18,000 same-sex couples legally married in California before the passage of Proposition 8. In In re Balas and Morales, (CD CA, June 13, 2011), the court held that DOMA violates  the couple's equal protection rights afforded by the 5th Amendment, whether the court applies heightened scrutiny or rational basis review.  The court explained:

Although individual members of Congress have every right to express their views and the views of their constituents with respect to their religious beliefs and principles and their personal standards of who may marry whom, this court cannot conclude that Congress is entitled to solemnize such views in the laws of this nation in disregard of the views, legal status and living arrangements of a significant segment of our citizenry that includes the Debtors in this case. To do so violates the Debtors’ right to equal protection of those laws embodied in the due process clause of the Fifth Amendment. 

This court cannot conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors. Debtors have urged that recent governmental defenses of the statute assert that DOMA also serves such interests as “preserving the status quo,” “eliminating inconsistencies and easing administrative burdens” of the government. None of these post hoc defenses of DOMA withstands heightened scrutiny..... In the court’s final analysis, the government’s only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law.... 

In an unusual move, all 20 judges of the bankruptcy court signed the opinion in the case. Wall Street Journal reports on the decision.

Federal Court Says Judge Did Not Need To Recuse Himself In Proposition 8 Case

Yesterday, California federal district judge James Ware held, in Perry v. Schwarzenegger, (ND CA, June 14, 2011), that now-retired federal judge Vaughn Walker did not act improperly in failing to recuse or disqualify himself from deciding a challenge to California's Proposition 8. That state constitutional amendment barred same-sex marriage in the state, and Judge Walker's decision found Proposition 8 to be inconsistent with the federal constitution. (See prior posting.) Judge Walker was involved in a same-sex relationship at the time he heard and decided the case. However in yesterday's decision, Judge Ware held:

The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification.

The New York Times reports on yesterday's decision.

Also yesterday in a separate opinion in the case (full text), Judge Ware found no reason to require the parties in the case to return to the court video copies of the trial proceedings that had been given to them. He also set an August 29 hearing date on a motion to lift the protective order that bars public disclosure of the trial videos.

UPDATE: AP reports that backers of Proposition 8 will appeal Judge Ware's decision that refused to disqualify Judge Walker.

Push In New York For Same-Sex Marriage, Opposed By Catholic Church

In the closing days of the legislative session in New York state, efforts are again under way by Gov. Andrew Cuomo to obtain passage of a bill to legalize same-sex marriage.  The state Senate defeated a same-sex marriage bill in 2009, but now, according to the Wall Street Journal yesterday, several senators have shifted their positions and the measure-- which has apparently not yet been formally introduced-- is only two votes shy of passage. So far only one Republican Senator has publicly pledged to vote in favor of the bill, but (according to AP) others Republican votes would follow if  the legislation contained exemptions so that churches, religious organizations and individuals opposed to gay marriage could not be required to perform or host them. New York's Catholic Archbishop Timothy Dolan has strongly opposed the measure.  In a posting yesterday on the Archdiocese's website, he said:

Last time I consulted an atlas, it is clear we are living in New York, in the United States of America – not in China or North Korea. In those countries, government presumes daily to “redefine” rights, relationships, values, and natural law. There, communiqués from the government can dictate the size of families, who lives and who dies, and what the very definition of “family” and “marriage” means.

But, please, not here! Our country’s founding principles speak of rights given by God, not invented by government, and certain noble values – life, home, family, marriage, children, faith – that are protected, not re-defined, by a state presuming omnipotence.

Please, not here! We cherish true freedom, not as the license to do whatever we want, but the liberty to do what we ought; we acknowledge that not every desire, urge, want, or chic cause is automatically a “right.” And, what about other rights, like that of a child to be raised in a family with a mom and a dad?
Our beliefs should not be viewed as discrimination against homosexual people. The Church affirms the basic human rights of gay men and women, and the state has rightly changed many laws to offer these men and women hospital visitation rights, bereavement leave, death benefits, insurance benefits, and the like. This is not about denying rights. It is about upholding a truth about the human condition.

Republican Presidential Debate Covers Gay Marriage, DADT, Abortion Rights

Last night's CNN debate between 7 Republican candidates for the Presidential nomination included a lengthy exchange on same-sex marriage, repeal of "don't ask, don't tell" and abortion rights.  Here is the excerpt from the full transcript:

[JOHN] DISTASO:... Congresswoman Bachmann, let's turn to a serious subject.
New Hampshire is one of five states where individuals who happen to be gay can marry legally. This is a question of conflicting interest. I know you're opposed to same-sex marriage.
As president, would you try to overturn -- what influence would you use from the White House to try to overturn these state laws despite your own personal belief that states should handle their own affairs whenever possible and in many circumstances?

BACHMANN: Well, I do believe in the 10th Amendment and I do believe in self-determination for the states.

I also believe that marriage is between a man and a woman. I carried that legislation when I was a senator in Minnesota, and I believe that for children, the best possible way to raise children is to have a mother and father in their life.

Now, I didn't come from a perfect background. My parents were divorced. And I was raised by a single mother. There's a lot of single families and families with troubled situations. That's why my husband and I have broken hearts for at-risk kids and it's why we took 23 foster children into our home.

DISTASO: What would a President Bachmann do to initiate or facilitate a repeal law on the state level? Anything at all from the White House? Would you come into the state of New Hampshire, for instance, and campaign on behalf of a repeal law?

BACHMANN: I'm running for the presidency of the United States. And I don't see that it's the role of a president to go into states and interfere with their state laws.

(CHEERS AND APPLAUSE)

KING: On that point -- on that point, to voters out there for whom this is an important issue, let's try to quickly go through it. Let me start at this end, we'll just go right through. I'll describe it this way. Are you a George W. Bush Republican, meaning a constitutional amendment to ban same-sex marriage, or a Dick Cheney who, like I believe, the congresswoman just said, this should be made -- this decision, same sex marriage, should be a state's decision?

CAIN: State's decision.

QUESTION: Yes.

PAWLENTY: I support a constitutional amendment to define marriage between a man and woman. I was the co-author of the state -- a law in Minnesota to define it and now we have courts jumping over this.

KING: OK. Let's just go through this.

PAUL: The federal government shouldn't be involved. I wouldn't support an amendment. But let me suggest -- one of the ways to solve this ongoing debate about marriage, look up in the dictionary. We know what marriage is all about.

But then, get the government out of it. Why doesn't it go to the church? And why doesn't it to go to the individuals? I don't think government should give us a license to get married. It should be in the church.

KING: Governor Romney, constitutional amendment or state decision? ROMNEY: Constitutional.

KING: Mr. Speaker?

GINGRICH: Well, I helped author the Defense of Marriage Act which the Obama administration should be frankly protecting in court. I think if that fails, at that point, you have no choice except to (ph) constitutional amendment.

KING: We heard the congresswoman's answer, Senator.

SANTORUM: Constitutional amendment. Look, the constitutional amendment includes the states. Three-quarters of the states have to -- have to ratify it. So the states will be involved in this process. We should have one law in the country with respect to marriage. There needs to be consistency on something as foundational as what marriage is.

KING: Very quickly?

BACHMANN: John, I do support a constitutional amendment on -- on marriage between a man and a woman, but I would not be going into the states to overturn their state law.

KING: All right, let me ask you another question. The Obama administration is in the process -- and Leon Panetta, who's the new defense secretary, will implement -- essentially, the repeal of "don't ask/don't tell" so gays will be allowed to serve openly in the military. I want to ask each of you -- and, again, if we can be quickly, because then we want to get to the voters question -- if you were president -- if you become president of the United States, now gays are allowed to serve openly in the military, would you leave that policy in place or would you try to change it, go back to "don't ask/don't tell," or something else?

CAIN: If I had my druthers, I never would have overturned "don't ask/don't tell" in the first place. Now that they have changed it, I wouldn't create a distraction trying to turn it over as president. Our men and women have too many other things to be concerned about rather than have to deal with that as a distraction.

KING: Leave it in place if you inherit the new Obama administration policy or try to overturn it?

PAWLENTY: John, we're a nation in two wars. I think we need to pay deference to our military commanders, particularly our combatant commanders, and in this case, I would take my cues from them as to how this affects the military going forward. I know they expressed concerns -- many of the combatant commanders did -- when this was originally repealed by the Obama administration.

KING: Congressman?

PAUL: I would not work to overthrow it. We have to remember, rights don't come in groups. We shouldn't have gay rights. Rights come as individuals. If we would (ph) have this major debate going on, it would be behavior that would count, not the person who belongs to which group.

(APPLAUSE)

KING: Leave it in place, what you inherit from the Obama administration or overturn it?

ROMNEY: Well, one, we ought to be talking about the economy and jobs. But given the fact you're insistent, the -- the answer is, I believe that "don't ask/don't tell" should have been kept in place until conflict was over.

KING: Mr. Speaker?

GINGRICH: Well, I think it's very powerful that both the Army and the Marines overwhelmingly opposed changing it, that their recommendation was against changing it. And if as president -- I've met with them and they said, you know, it isn't working, it is dangerous, it's disrupting unit morale, and we should go back, I would listen to the commanders whose lives are at risk about the young men and women that they are, in fact, trying to protect.

KING: Congresswoman?

BACHMANN: I would -- I would keep the "don't ask/don't tell" policy.

KING: So you would -- whatever the Obama administration does now, you would go -- try to go back? You'd try to reverse what they're doing?

BACHMANN: I would, after, again, following much what the speaker just said, I would want to confer with our commanders-in-chief and with -- also with the Joint Chiefs of Staff, because I'd want to know how it was being implemented and if it has -- had had the detrimental effects that have been suggested that will come.

KING: All right. Last word on this issue, Senator?

SANTORUM: The job of the United States military is to protect and defend the people of this country. It is not for social experimentation. It should be repealed. And the commanders should have a system of discipline in place, as Ron Paul said, that punishes -- that punishes bad behavior.

KING: Let's go back down to the floor here. Jennifer Vaughn has a question.

VAUGHN: Thanks, John.

Senator Santorum, staying with you for a moment, if I may, you are staunchly pro-life. Governor Romney used to support abortion rights until he changed his position on this a few years ago. This has been thoroughly discussed. But do you believe he genuinely changed his mind, or was that a political calculation? Should this be an issue in this primary campaign?

SANTORUM: I think -- I think an issue should be -- in looking at any candidate is looking at the authenticity of that candidate and looking at their -- at their record over time and what they fought for. And I think that's -- that a factor that -- that should be determined.

You can look at my record. Not only have I been consistently pro-life, but I've taken the -- you know, I've not just taken the pledge, I've taken the bullets to go out there and fight for this and lead on those issues. And I think that's a factor that people should consider when you -- when you look, well, what is this president going to do when he comes to office?

A lot of folks run for president as pro-life and then that issue gets shoved to the back burner. I will tell you that the issue of pro-life, the sanctity and dignity of every human life, not just at birth, not just on the issue of abortion, but with respect to the entire life, which I mentioned welfare reform and -- and the dignity of people at the end of life, those issues will be top priority issues for me to make sure that all life is respected and held with dignity.

(APPLAUSE)

KING: Governor Romney, let me give you -- take -- take 20 or 30 seconds, if there's a Republican out there for whom this important, who questions your authenticity on the issue?

ROMNEY: People have had a chance to look at my record and look what I've said as -- as I've been through that last campaign. I believe people understand that I'm firmly pro-life. I will support justices who believe in following the Constitution and not legislating from the bench. And I believe in the sanctity of life from the very beginning until the very end.

KING: Is there anybody here who believes that that's an issue in the campaign, or is it case closed?

(UNKNOWN): Case closed.

KING: Case closed it is. All right. Let's move on to the questions.
Tom Foreman is standing by up in Rochester.

FOREMAN: Hi, John. Representative Bachmann, I have a question for you. Governor Pawlenty says he opposes abortion rights except in cases of rape, incest, or when the mother's life is at stake. Do you have any problem with that position? And if so, why?

BACHMANN: I am 100 percent pro-life. I've given birth to five babies, and I've taken 23 foster children into my home. I believe in the dignity of life from conception until natural death. I believe in the sanctity of human life.

And I think the most eloquent words ever written were those in our Declaration of Independence that said it's a creator who endowed us with inalienable rights given to us from God, not from government. And the beauty of that is that government cannot take those rights away. Only God can give, and only God can take.

And the first of those rights is life. And I stand for that right. I stand for the right to life. The very few cases that deal with those exceptions are the very tiniest of fraction of cases, and yet they get all the attention. Where all of the firepower is and where the real battle is, is on the general -- genuine issue of taking an innocent human life. I stand for life from conception until natural death.

(APPLAUSE)

KING: All right. Governor Pawlenty, it was your position that was brought into the question. We'll give you a few seconds.

PAWLENTY: Well, this is a great example where we can look at our records. The National Review Online, which is a conservative publication, said based on results -- not just based on words -- I was probably the most pro-life candidate in this race.

As governor of the state of Minnesota, I appointed to the Supreme Court a conservative court for the first time in the modern history of my state. We passed the most pro-life legislation anytime in the modern history of the state, which I proposed and signed, including women's right to know, including positive alternatives to abortion legislation, and many others.

I'm solidly pro-life. The main pro-life organization in Minnesota gives me very, very high marks. And I haven't just talked about these things; I've done it.

Recent Articles of Interest

From SSRN:

• Alexander Volokh, Prison Vouchers, (University of Pennsylvania Law Review, Forthcoming).
• Nicholas Walter, The Status of Religious Arbitration in the United States and Canada, (Santa Clara Law Review, Forthcoming).
• Sadaf Mehmood, Islam and Modern Ideologies, (2011).
• Julio C. Colon, Choice of Law and Islamic Finance, (Texas International Law Journal, Vol. 46, No. 2, 2011).
• Edward A. Zelinsky, Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis, (Yale Law Journal Online, Vol. 121, p. 25, 2011).
• Mary Jean Dolan, The Cross National Memorial: At the Intersection of Speech and Religion, (Case Western Reserve Law Review, Vol. 61, No. 4, 2011).
• Michael Sant'Ambrogio and Sylvia A. Law, Baehr v. Lewin and the Long Road to Marriage Equality, (University of Hawaii Law Review, Vol. 33, 2011).
• Jackie Gardina, The Defense of Marriage Act, Same-Sex Relationships and the Bankruptcy Code, (May 23, 2011).
• Carolyn M. Evans and Beth Gaze, Discrimination by Religious Schools: Views from the Coal Face, (Melbourne Univeristy Law Review, Vol. 34, No. 2, 2010).

From SmartCILP:

• Conference: Laicite in Comparative Perspective. Foreword by Mark L. Movsesian; panel participation by Michael Simon, Mark L. Movsesian, and Marc O. DeGirolami, moderators; Douglas Laycock, Mark L. Movsesian, Nathalie Caron, Blandine Chelini-Pont, Rosemary C. Salomone, Emmanuel Tawil, Nina J. Crimm, Javier Martinez-Torr¢n and Elizabeth Zoller, panelists. 49 Journal of Catholic Legal Studies 1-142 (2010).

Recent Articles of Interest

From SSRN:

• Nelson Tebbe, Smith in Theory and Practice, (Cardozo Law Review, Vol. 32, No. 2055, 2011).
• Steven Aiello, Findings on Religious Freedom in Egypt, (December 21, 2010).
• Bernard M. Levinson and Joshua A. Berman, The King James Bible at 400: Scripture, Statecraft, and the American Founding, (The History Channel Magazine, pp. 1-11, November 2010).
• John M. Finnis, Religion and Public Reasons: Introduction, (John M. Finnis, Religion and Pulbic Reasons: Collected Essays, Vol. V, Oxford University Press, 2011).
• Yossi Nehushtan, The Links between Religion and Intolerance, (Philosophy and Theology, Vol. 23, No. 1, pp. 91-132, 2011).
• Christopher J. Eberle, Religion, Respect, and War: A Critical Examination of the Standard View on Religion and Coercion, (November 4, 2010).
• Yishai Blank, The Reenchantment of Law, (Cornell Law Review, Vol. 96, p. 633, 2011).
• Richard L. Cupp, Seeking Redemption for Torts Law – A Review of ‘Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse’ by Timothy D. Lytton (Harvard University Press 2008), (Journal of Law and Religion, Vol. 27, 2011).

From SmartCILP and elsewhere:

• Jana R. McCreary, Tell Me No Secrets: Sharing, Discipline, and the Clash of Ecclesiastical Abstention and Psychotherapeutic Confidentiality, 29 Quinnipiac Law Review 77-122 (2011).
• Mark Strasser, Public Policy, Same-Sex Marriage, and Exemptions for Matters of Conscience, [Abstract], 12 Florida Coastal Law Journal 135-161 (2010).
• Leonard A. Leo, Felice D. Gaer and Elizabeth K. Cassidy, Protecting Religions from “Defamation”: A Threat to Universal Human Rights Standards, 34 Harvard Journal of Law and Public Policy 769 (2011).

Navy Chief Chaplain Reverses Recent Policy On Same-Sex Marriages In Base Chapels

The Navy yesterday reversed its recently announced policy (see prior posting) that would have permitted Navy chaplains to perform same-sex marriages and civil unions in Navy chapels.  Navy Chief of Chaplains Rear Adm Mark Tidd said he was suspending the earlier guidance pending additional legal and policy review and closer coordination with the other branches of the military. The Los Angeles Times reports today that a letter from 63 House members to Navy Secretary Ray Mabus asked for reversal of the policy, saying that it violates federal law-- the Defense of Marriage Act. The Washington Post reported yesterday that members of the House Armed Services Committee are expected to introduce amendments to the defense authorization bill that would prohibit the use of Defense Department facilities for same-sex marriages, even if state law permits them.