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.

Navy Chaplains May Perform Same-Sex Marriages

Navy Times reported yesterday that Navy Chief of Chaplains Rear Adm. Mark Tidd has issued a memo allowing Navy chaplains to officiate at same-sex marriage and civil union ceremonies. The memo was issued as part of the updated training guidance to implement the repeal of "Don't Ask, Don't Tell."  The memo reads in part:

Consistent with the tenets of his or her religious organization, a chaplain may officiate a same-sex, civil marriage: if it is conducted in accordance with a state that permits same-sex marriage or union; and if that chaplain is, according to the applicable state and local laws, otherwise fully certified to officiate that state’s marriages.... [I]f the base is located in a state where same-sex marriage is legal, then base facilities may normally be used to celebrate the marriage. This is true for purely religious services (e.g., a chaplain blessing a union) or a traditional wedding (e.g., a chaplain both blessing and conducting the ceremony).

House Armed Services Committee Chairman Todd Aikin says that the memo violates the Defense of Marriage Act.

Attorney General Tells Immigration Appeals Board To Reconsider Deportation of Partner In Civil Union

In Matter of Paul Wilson Dorman, (Atty. Gen., April 26, 2011), Attorney General Eric Holder vacated a decision of the Board of Immigration Appeal that had upheld the deportation of a man who had entered a same-sex civil union in New Jersey with a U.S. citizen. Holder, implementing the Administration's previously announced conclusion that the Defense of Marriage Act is unconstitutional (see prior posting), ordered the BIA to:

determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act....

AP reports on the decision. [Thanks to Alliance Alert for the lead.]

Backers of Prop 8 Seek To Have Ruling Invalidating It Vacated Because of Judge's Same-Sex Relationship

In Perry v. Brown, the California federal court challenge to the constitutionality of Proposition 8-- California's ban on same-sex marriage-- defendant-intervenors yesterday filed a motion (full text) to vacate the decision handed down by federal district judge Vaughn Walker last summer. Walker held that the state ban violates the U.S. Constitution. (See prior posting.)  The new motion argues:

The district judge who issued this judgment, retired Chief Judge Vaughn R. Walker, has now disclosed to the press on April 6, 2011, that he is gay and that he has been in a committed relationship for more than 10 years....The published reports of former Chief Judge Walker’s statements to the press note that he had heretofore refused to comment on these issues when asked by the press.... The published reports do not address the question whether former Chief Judge Walker and his partner have, or have had, any interest in marriage should the injunction he issued be upheld on appeal.

Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his “impartiality might reasonably [have been] questioned” from the outset. 28 U.S.C. § 455(a). He therefore had, at a minimum, a waivable conflict and was obligated either to recuse himself or to provide “full disclosure on the record of the basis for disqualification,” id, § 445(e), so that the parties could consider and decide, before the case proceeded further, whether to request his recusal.

AP reports on these developments.

New Arizona Law Exempts Churches From Political Committee Registration

On Monday, Arizona Governor Jan Brewer signed S.B. 1282 that provides no religious assembly or institution will be required to register as a political committee, so long as it does not spend a substantial amount of time or assets influencing legislation, or any referendum, initiative or constitutional amendment. The American Independent reported Monday that the new law is aimed at assuring-- as required by 9th Circuit precedent-- that campaign finance laws do not apply to speech by churches on issues of public importance that appear on the election ballot. A 2009 case decided by the 9th Circuit invalidated application of Montana's campaign finance laws to a Church that engaged in limited activities in support of a constitutional initiative banning same-sex marriage. (See prior posting.)

Recent Articles of Interest

From SSRN:
      Church-State and Religious Liberty:

• Diane Webber, Education as a Counterterrorism Tool and the Curious Case of the Texas School Book Resolution, (Maryland Law Journal of Race, Religion, Gender and Class, Forthcoming).
• Winnifred Fallers Sullivan, Religion, Land, and Rights, (Berkeley Journal of Middle Eastern and Islamic Law, Spring 2011).
• Iain T. Benson, That False Struggle between Believers and Non-Believers, (Oasis, Vol. 12, December 2010).
• Christoph Engel, Law as a Precondition for Religious Freedom, (MPI Collective Goods Preprint No. 2011/6, April 2011).
• Robert J. Miller, Christianity, American Indians, and the Doctrine of Discovery, (Remembering Jamestown: Hard Questions About Christian Mission, Amos Yong, Barbara Brown Zikmund, eds., Pickwick Publications, 2010).
• Nancy J. Kippenhan, Seeking Truth on the Other Side of the Wall: Greenleaf’s Evangelists Meet the Federal Rules, Naturalism, and Judas, (Liberty Law Review, Vol. 5, No. 1, 2010).
• Jeffrey Shulman, Epic Considerations: The Speech that the Supreme Court Would Not Hear in Snyder v. Phelps, (Cardozo Law Review de Novo, pp. 35-42, 2011).
• Richard Schragger, The Politics of Free Exercise After Employment Division v. Smith: Same-Sex Marriage, the 'War on Terror,' and Religious Freedom, (April 5, 2011).
• William A. Fischel, Do Amish One-Room Schools Make the Grade? The Dubious Data of Wisconsin v. Yoder, (March 31, 2011).

      Religious Law:

• Avishalom Westreich, Umdena as a Ground for Marriage Annulment: Between Mistaken Transaction (Kiddushei Ta‘ut) and Terminative Condition, (Jewish Law Association Studies, Vol. 20, pp. 330-352, 2010).
• Muhammad Munir, The Causes of War in Islam: Infidelity or the Defence of Faith?, (April 3, 2011).
• Omar Salah, Islamic Finance: Developments in the Sukuk Market, (Law and Financial Markets Review, Vol. 4, No. 5, pp. 507-517, September 2010).
• John J. Coughlin, Antinomianism and Legalism in Canon Law, (Contemporary Issues In Canon Law, Patricia M. Dugan, ed., Wilson and Lafleur, 2011).
• Qazi Irfan, Riba and Hadith of Six Commodities, (March 18, 2011).
• Geoffrey P. Miller, Law and Economics Versus Economic Analysis of Law, (NYU Law and Economics Research Paper No. 11-16, April 7, 2011).

From SmartCILP and elsewhere:

• Fatou Kine Camara and Abdourahmane Seck, Secularity and Freedom of Religion in Senegal: Between a Constitutional Rock and a Hard Reality, 2010 Brigham Young University Law Review 859-884.
• Hugo Leonel Ruano, In Search of New Believers: How the Guatemalan Religious Panorama Has Changed in Recent Decades, 2010 Brigham Young University Law Review 895-920.
• Paul Babie and Neville Rochow, Feels Like Deja Vu: Religious Freedom Under a Proposed Australian Bill of Rights, 2010 Brigham Young University Law Review 821-854.
• Tayseir M. Mandour, Islam and Religious Freedom: Role of Interfaith Dialogue in Promoting Global Peace, 2010 Brigham Young University Law Review 885-893.
• Kanak Bikram Thapa, Religion and Law in Nepal 2010 Brigham Young University Law Review 921-930.
• Ira C. Lupu, David Masci, Jesse R. Merriam, and Robert W. Tuttle, Churches in Court: The Legal Status of Religious Organizations in Civil Lawsuits, Pew Forum on Religion and Public Life, March 2011.

Recent Articles of Interest

From SSRN:

• Michael Heise and Gregory C. Sisk, Ideology 'All the Way Down'? An Empirical Study of Establishment Clause Decisions in the Federal Courts, (Michigan Law Review, Vol. 110, 2012).
• Mark L. Movsesian, Foreword: Laicite in Comparative Perspective, (Journal of Catholic Legal Studies, Vol. 49, 2010).
• Alexander Volokh, Everything We Know About Faith-Based Prisons, (March 17, 2011).
• Will Shen and Rohan Bruce Edward Price, Confucianism, Employee Activism and the Case for Moral Relativism, (March 18, 2011).
• Snehashish Ghosh, The Tryst of Destiny: Political Obligation and Religion, (March 25, 2011).
• Luke Goodrich, The Health Care and Conscience Debate: Obama Strikes a Blow Against Conscience, (March 15, 2011).
• Chase D. Anderson, A Quest for Fair and Balanced: The Supreme Court, State Courts, and the Future of Same-Sex Marriage Review after Perry, (Duke Law Journal, Vol. 60, No. 6, p. 1413, 2011).
• Stephen Thuku Mbaaro, Freedom of Expression and Public Order: Exploring the Need for Hate Speech Legislation in Kenya, (March 26, 2011).
• Mridushi Swarup, Protection of Scheduled Tribes Under the Indian Constitution: Promise and Performance, (March 20, 2011).
• James E. Pfander, Resolving the Qualified Immunity Dilemma: Constitutional Tort Claims for Nominal Damages, (Columbia Law Review, Forthcoming).

From SmartCILP:

• A Dialogue Commemorating the Fiftieth Anniversary of To Kill a Mockingbird's Publication. Article by Lance McMillian; response by Judy M. Cornett; reply by Lance McMillian, [Table of Contents], 77 Tennessee Law Review 701-802 (2010).

Democrats In Congress Introduce Bill To Repeal DOMA

The Hill reported yesterday that Democrats in both the House and Senate have introduced the Respect for Marriage Act (full text). The bill would repeal the Defense of Marriage Act and instead recognize as valid for federal law purposes any same-sex marriage that was legally entered into in the jurisdiction where it was performed. On the Senate side, the bill was introduced by Sen. Dianne Feinstein and is co-sponsored by 18 other Senate Democrats. (Press release.) In the House, the bill was introduced by Representatives Jerrold Nadler and John Conyers, and is co-sponsored by four gay and lesbian members of Congress. The Hill says that the chances of the bill passing the House are slim.

Maryland House Fails To Pass Same Sex Marriage Bill After Religious Opposition

Baptist Press reports that Maryland's House of Delegates yesterday voted to send the pending same-sex marriage bill back to committee after the leadership determined that they lacked the votes to pass it.  The Maryland Senate passed the bill last month (see prior posting), and it was expected that the House would also pass it.  However opposition from predominately black churches, as well as from the Maryland Catholic Conference, meant that the bill was unable to get enough Democratic support. Two members of the black caucus switched from being co-sponsors to opposing the bill. Del. Cheryl Glenn, a member of the black caucus said: "The black churches -- since I've been here -- have never asked us for anything, that I can recall. They are asking now, 'Don't use the word marriage.'" Leaders expect the House will take up the bill again next year.