Recent Articles and Books of Interest

From SSRN:

Religious Law:

• Mohammed Khnifer, Maslaha and the Permissibility of Organized Tawarruq, (Opalesque Islamic Finance Intelligence, No. 8, p. 6-11, April 27. 2010).
• Rahul Shrivastava, Co Parcenary Rights of Daughters in Hindu Coparcenary In the light of Judgment of The Supreme Court Of India in: B Chandrashekhar Reddy v. State of Andhra Pradesh AIR 2003 SC 2322, (November 19, 2010).
• Mohammad Fadel, Is Historicism a Viable Strategy for Islamic Law Reform? The Case of 'Never Shall a Folk Prosper Who Have Appointed a Woman to Rule Them', (November 21, 2010).
• Mohammad Fadel, 'No Salvation Outside Islam': Muslim Modernists, Democratic Politics, and Islamic Theological Exclusivism, (November 21, 2010).

Non-U.S. Religious Institutions:

• Mitchell Landrigan, Voices in the Political Wilderness – Women in the Sydney Anglican Diocese, (Alternative Law Journal, Vol. 34, No. 3, 2009).
• Melissa A. Crouch, Implementing the Regulation on Places of Worship in Indonesia: New Problems, Local Politics and Court Action, (Asian Studies Review, Vol. 34, pp. 403-419, December 2010).

Same-Sex Marriage:

• Clifford J. Rosky, Just the Facts? Rethinking Same-Sex Marriage Law in Perry v. Schwarzenegger, (November 22, 2010).
• Wilson Ray Huhn, The Fourteenth Amendment Protects the Right to Same-Sex Marriage, (University of Akron Legal Studies Research Paper, Nov. 21, 2010).

Establishment and Free Exercise Issues:

• Steven Douglas Smith, Nonestablishment, Standing, and the Soft Constitution, (San Diego Legal Studies Paper No. 10-045, Nov. 22, 2010).
• Kevin Paul Lee, Free Exercise and Religious Mania: Neuroscience and Religious Free Exercise, (September 28, 2010).
• Lorenzo Zucca, The Classroom as a Tolerance Lab, (Law, Religious Freedoms and Education in Europe, Myriam Hunter Henin, ed., Ashgate, Forthcoming).
• Rose Jade, Current Research on the Human Experience of Spirituality Following the Ingestion of ‘Magic’ Psilocybin Mushrooms: An Annotated Bibliography for Social Workers and Other Health Care Professionals, (November 23, 2010).
• Deana Pollard-Sacks, Snyder v. Phelps, the Supreme Court's Speech-Tort Jurisprudence, and Normative Considerations, (Yale Law Journal Online, Forthcoming).

From SmartCILP and elsewhere:

• Michael J. Bazyler & Seth M. Gerber, Litigating the Pillage of Cultural Property in American Courts: Chabad v. Russian Federation and Lessons Learned, 32 Loyola L.A. International and Comparative Law Review 45-82 (2010).
• Jennifer Gerarda Brown, "For You Also Were Strangers in the Land of Egypt": How Procedural Law and Non-Law Enable Love for "Strangers" and "Enemies," 28 Quinnipiac Law Review 667-690 (2010).
• Stanley A. Goldman, The Jew Who Met Himmler--and Other Stories, 32 Loyola L.A. International and Comparative Law Review 1-18 (2010).
• J.H.H. Weiler, Editorial: State and Nation; Church, Mosque and Synagogue-- the Trailer, 8 I-Con: International Journal of Constitutional Law 157-166 (2010).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, Oct. 2010 revision, in PLI Course Handbook for Tax Strategies for Corporate Acquisitions.

Recent Books:

• John A. Ragosta, Wellspring of Liberty: How Virginia's Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty, (Oxford Univ. Press, April 2010).
• Daniel Williams, God's Own Party: The Making of the Christian Right, (Oxford Univ. Press, Sept. 2010).

9th Circuit Will Permit Live C-SPAN Broadcast of Arguments In Prop 8 Appeal

According to today's San Francisco Chronicle, the U.S. 9th Circuit Court of Appeals has decided that C-SPAN  will be permitted to broadcast live the appeals court arguments in Perry v. Schwarzenegger, the case challenging the constitutionality of California's Proposition 8 that bars same-sex marriage. The two-hour arguments scheduled for 10:00 a.m. on December 6 will be split between arguments on standing and arguments on the constitutionality of Proposition 8. (9th Circuit order on oral arguments.) Attempts to allow limited televising of the federal district court trial in the case were ultimately prevented by a U.S. Supreme Court decision finding that the district court followed improper procedures in adopting its rule permitting broadcasting. (See prior posting.)

3 Iowa Supreme Court Justices Voted Out of Office Because of Their Gay Marriage Ruling

In Iowa, for the first time since the judicial merit selection system was adopted in 1962, three state Supreme Court justices were voted out of office. Chief Justice Marsha Ternus and Justices David Baker and Michael Streit each received only 45% support for retention. (Unofficial results.) The vote came as a result of a campaign by those who are opposed to the state Supreme Court's ruling last year upholding same-sex marriage. In Varnum v. Brien, (IA Sup. Ct., April 3, 2009), the Iowa Supreme Court held that the Iowa statute limiting marriage to unions between opposite-sex partners violates the equal protection clause of the Iowa Constitution. (See prior posting.)  The Des Moines (IA) Register reports that the campaign to remove the justices spent $650,000, with much of the money from out-of-state conservative and religious groups. The Iowa Independent last month profiled the various groups supporting the campaign to oust the justices. The campaign in support of the justices spent $200,000. Two trial court judges in Polk County who were also targeted kept their seats.  Judge Robert Hanson who sided with same-sex couples at the trial court level received 66% support for retention, while Judge Scott Rosenberg, targeted for signing a gay couple's marriage waiver, was retained by a 69% vote.

Iowa Absentee Voting During Church Services Concerns ACLU

Iowa law provides that county auditors may approve satellite absentee voting stations at which voters can cast an absentee ballot prior to election day. Today's Des Moines Register reports that for the first time, two Ames Iowa churches will host absentee voting during church services. The Iowa ACLU is concerned about the move, especially because of the church-based campaign in Iowa to unseat state Supreme Court justices over their decision striking down the ban on same-sex marriage. (See prior posting.) However church representatives say they will not instruct their members how to vote.  Apparently the move to have churches host satellite voting was initiated by county auditor Mary Mosiman, not by the churches. Three other churches will also host satellite voting, but not during the time of church services.

Cert. Petition Filed In D.C.Refusal of Marriage Initiative

A petition for certiorari (full text) was filed in the U.S. Supreme Court yesterday seeking review of the D.C. Court of Appeals decision in Jackson v. District of Columbia Board of Elections and Ethics. In the case, D.C.'s highest appellate court, in a 5-4 decision, upheld election officials' refusal to accept a petition seeking an initiative vote to bar D.C. from recognizing same sex marriages. (See prior posting.) The petition asks the Supreme Court to decide whether the D.C. Council violated the Congressionally approved D.C. Charter in limiting the issues that can be put to an initiative vote. An Alliance Defense Fund press release announces the filing of the cert. petition.

En Banc Rehearing Sought In Christian Student's Challenge To College's Policy

A petition for an en banc rehearing by the 9th Circuit in Lopez v. Candaele was filed last week. (Full text of petition.)  In the case, a panel of the 9th Circuit held that a Christian student at Los Angeles City College lacks standing to challenge the school's sexual harassment policy because there was never any credible threat that the policy would be used to discipline the student despite a speech professor's objections to the student's religious opposition to same-sex marriage. (See prior posting.) The rehearing request argues that the panel holding is at odds with decisions in the 3rd and 6th Circuits which permit a challenge to overbroad statutes that chill speech without a threat of enforcement. Alliance Defense Fund issued a press release announcing the filing of the rehearing request.

9th Circuit: Christian Student Lacks Standing To Challenge College's Sexual Harassment Policy

In Lopez v. Candaele, (9th Cir., Sept. 17, 2010), the 9th Circuit Court of Appeals held that a Christian student at Los Angeles City College lacks standing to challenge the school's sexual harassment policy.  A speech professor interrupted and verbally attacked the student during a speech in which the student expressed religious opposition to same-sex marriage. The court concluded that there was never any credible threat to apply the sexual harassment policy to discipline the student for expressing his views. Courthouse News Service reports on the decision. (See prior related posting.)

Court Refuses To Mandamus California Governor and AG To Defend Prop 8

The Recorder reports that the Pacific Justice Institute on Tuesday filed a petition for a writ of mandamus in California's Third District Court of Appeal, seeking to force California's governor and attorney general to defend Proposition 8-- the state's ban on same sex marriage-- in court. Both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have said publicly that they do not intend to defend the constitutionality of the voter-approved state constitutional amendment. Brown is the Democratic candidate for governor this fall. Apex News Network reports that on Wednesday the court refused to grant the mandamus petition. The court gave no reasons for its decision.

Court Denies Stay of Prop 8 Decision But Delays Order 6-Days To Allow Appeal

A California federal district court today rejected a motion for a stay pending completion of an appeal of the court's order enjoining enforcement of California's Proposition 8 banning same-sex marriage. (See prior posting.) However the district court did grant a stay until 5:00 p.m. August 18 to permit an appeal on the issue of a stay to the 9th Circuit. In Perry v. Schwarzenegger, (ND CA, Aug. 12, 2010), the district court concluded that none of four factors normally considered in granting a stay weigh in favor of proponents. Those factors are:

(1) whether proponents have made a strong showing that they are likely to succeed on the merits; (2) whether proponents will be irreparably injured absent a stay; (3) whether the stay will substantially injure other interested parties; and (4) whether the stay is in the public interest. 

The city and county of San Francisco, California's governor and its attorney general all opposed a stay. Only the intervenors, who organized the campaign in support of Proposition 8, favored a stay. Focusing on the likelihood of success, Judge Vaughn Walker wrote:

Because proponents filed their motion to stay before the court issued its findings of fact and conclusions of law, proponents do not in their memorandum discuss the likelihood of their success with reference to the court’s conclusions. Neither do proponents discuss whether the court of appeals would have jurisdiction to reach the merits of their appeal absent an appeal by a state defendant.... If, however, no state defendant appeals, proponents will need to show standing in the court of appeals.... Proponents’ intervention in the district court does not provide them with standing to appeal.... The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English [v. Arizona], 520 US at 67.

The Los Angeles Times reports on the decision and says that the Proponents will appeal immediately to the 9th Circuit.

Religious Leaders React On Both Sides of Prop 8 Decision

USA Today this morning reviews the reaction of a number of religious leaders on both sides of the debate to a California federal district court's ruling yesterday (see prior posting) that Proposition 8, banning same-sex marriage, is unconstitutional. The Mormon Church, one of the strongest supporters of Proposition 8, urged all sides "to act in a spirit of mutual respect and civility toward those with a different opinion" as the debate continues. Rev. Susan Russell, head of Integrity-- an Episcopal group supporting gay rights-- said: "No one has the right to write their theology into our Constitution. (This) should be celebrated by people of all faiths, of any faith and of no faith." The California Catholic Conference said: "That the judge should find the marriage -- civilizations' longstanding public policy -- irrational and discriminatory does a great injustice to the institution itself and ultimately will further encourage the disintegration of mother-father families."

California Federal District Court Strikes Down Proposition 8, The State's Ban On Same-Sex Marriage

In a 138-page opinion today, a federal district court in San Francisco held that California's Proposition 8 that bans same-sex marriage is unconstitutional. In Perry v. Schwarzenegger,(ND CA, Aug. 4, 2010), the court held that

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same sex couples and has not suffered any demonstrated harm as a result....Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.

In approaching the substantive due process argument, the court said that

the parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.....

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.... Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.....

The court concluded that domestic partnerships do not fulfill the state's due process obligation, because they "do not provide the same social meaning as marriage."

Moving to the equal protection issue, the court said:

The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present.....

Ultimately the court avoided deciding whether that history of discrimination triggered a strict scrutiny review, because, in its view, Proposition 8 failed even the rational basis test. The court rejected a series of purported justification for treating same-sex couples differently.  It said the evidence showed that same-sex marriage has no adverse effect on society or the institution of marriage and that "tradition alone ... cannot form a rational basis for a law."  Proponents also argued that Proposition 8 protects the First Amendment freedom of those who oppose same-sex marriage. The court responded:

To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying ..., those individuals’ moral views are an insufficient basis upon which to enact a legislative classification.....

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples..... Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate..... [M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation..... Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.

Proponents of Prop 8, Anticipating Loss, File Advance Motion For Stay Pending Appeal

The federal district court for the Northern District of California has announced that it will issue its decision in Perry v. Schwarzenegger-- the challenge to the constituitonality of California's Proposition 8 banning same sex marriage-- today. In anticipation of the decision, yesterday proponents of Proposition 8 (apparently anticipating a loss) filed a Motion for Stay Pending Appeal accompanied by a memorandum in support of the motion. (Full text of filing.) Plaintiffs responded today with a letter (full text) saying they intend to respond if a response is warranted and asked to be heard on the motion. Today's Silicon Valley Mercury News reports on the filing.

New California Poll Probes Views On Same Sex Marriage By Religious Affiliation

On Wednesday, the Public Religion Research Institute released a poll examining religous-based attitudes about same-sex marriage among Californians. (Full text of poll report.) (Full text of questions and percentage responses.) Here are some excerpts from the press release's summary of poll findings:

•If another vote similar to Proposition 8 were held tomorrow, a majority (51%) say they would vote to allow gay and lesbian couples to marry....

• There are major religious groups on both sides of the debate.... Solid majorities of Latino Catholics and white mainline Protestants say they would vote to allow gay and lesbian couples to marry, while solid majorities of white evangelical Protestants, Latino Protestants, and African American Protestants say they would vote to keep same-sex marriage illegal.

• An overwhelming majority of Californians, and majorities of all major religious groups except Latino Protestants, say they both favor laws that would protect gay and lesbian people from job discrimination and favor allowing gay and lesbian people to serve openly in the military (75% and 69% respectively). A majority (56%) of Californians favor adoption rights for same-sex couples.

• .... A majority of Latino Catholics (57%) say they would vote to allow gay and lesbian couple to marry, compared to just 22% of Latino Protestants. The Catholic-Protestant divide in the Latino community is evident across a wide range of public policy issues related to gay and lesbian rights.

• In the wider California religious community, there are also significant Catholic-Protestant differences in the frequency with which each group hears about the issue of homosexuality from their clergy. Protestants are significantly more likely to hear about the issue than Catholics.... Mainline Protestants are the only major religious group that is more likely to hear positive than negative messages about homosexuality from their clergy.

• The messages about homosexuality that Californians hear at their place of worship are correlated with their views on same-sex marriage....

DC Appellate Court Upholds Refusal To Allow Initiative On Defining Marriage

In Jackson v. District of Columbia Board of Elections and Ethics, (DC Ct. App., July 15, 2010), D.C.'s highest appellate court [corrected], in a 5-4 decision, upheld the Board of Elections and Ethics refusal to accept a petition seeking an initiative vote on a proposed amendment to D.C. statutes to bar the recognition of same sex marriages. The majority concluded:

The Council acted within its authority under the CAA [Charter Amendment Act] and the Home Rule Act in enacting the Human Rights safeguard of the IPA [Initiative Procedures Act] and in directing the Board not to accept initiatives that contravene that safeguard. Because appellants' proposed initiative would authorize, or have the effect of authorizing, discrimination on a basis prohibited by the Human Rights Act, it was not a proper subject of initiative. Therefore, the Board acted lawfully in refusing to accept the initiative on that basis.

A dissenting of 4 judges opinion argued that D.C City Council exceeded its authority when it imposed the "Human Rights Act limitation" on the right of initiative. [See prior related posting.]

Prayer At South Carolina County Council Meetings Becomes Controversial

Today's Spartanburg, South Carolina Herald Journal reports on the controversy over prayer at Spartanburg County Council meetings. The Council's chaplain-- Jerry Clevenger, a Sheriff's Office employee-- usually closes invocations by invoking Jesus' name. However, apparently the prayer policy provoked scrutiny when in March Councilman O'Neal Mintz filled in for the chaplain at one meeting and delivered a prayer condemning abortion and same-sex marriage. Now Unitarian minister Don Rollins is organizing a "silent protest" against opening meetings with Christian prayer, seeking to have prayers delivered by members of different faith communities. Council chairman Jeff Horton says that as a Christian he could not ask anyone not to pray in Jesus' name.

Massachusetts Federal District Court Strikes Down DOMA

In two companion cases today, a Massachusetts federal district judge held Section 3 of the federal Defense of Marriage Act (1 USC Sec. 7) unconstitutional. That section provides that in interpreting any federal statute or regulation, "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Gill v. Office of Personnel Management, (D MA, July 8, 2010), is a suit brought by same-sex couples and survivors of deceased same-sex spouses who were denied various federal marriage-based benefits available to heterosexual couples. The court held that DOMA violates the equal protection clause. It held that it need not decide whether to apply strict scrutiny because the statute lacks a rational basis to support it. In the court's view: "Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves."

Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (D MA, July 8, 2010), was brought by Massachusetts-- which recognizes same-sex marriage-- contending that DOMA violates the 10th Amendment by intruding on areas of exclusive state authority. It also argued that the law exceeds Congress' Spending Clause powers by forcing the state to discriminate against its own citizens in order to receive federal funds. The court agreed with the challenge holding that DOMA imposes an unconstitutional condition on the receipt of federal funds, impermissibly interferes with state domestic relations laws, and regulates Massachusetts "as a state," interfering with its ability to structure its traditional functions. The New York Times reports on today's decisions.

Prop 8 Opponents Say CLS v. Martinez Supports Them

Earlier this month, lawyers made their closing argument in Perry v. Schwarzenegger, a federal constitutional challenge to California's Proposition 8 that bans same-sex marriage. A decision has not yet been handed down in the case. (See prior posting.) Plaintiffs, who claim that gays and lesbians are a protected class for constitutional purposes, say language in Monday's Supreme Court decision in Christian Legal Society v. Martinez supports their position. The Recorder yesterday reported that lawyers for those challenging Proposition 8 wrote a letter (full text) to U.S. District Judge Vaughn Walker, bringing the Supreme Court's language to his attention. The letter reads in part:

In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: "Our decisions have declined to distinguish between status and conduct in this context."

Trial Judge Hears Closing Arguments In Challenge To California's Prop 8

Yesterday in federal district court in San Francisco, Judge Vaugh Walker heard closing arguments in Perry v. Schwarzenegger, the federal constitutional challenge to California's Proposition 8 that bans same-sex marriage. The Washington Post and the San Francisco Chronicle report on the arguments in which Charles J. Cooper, arguing on behalf of supporters of Proposition 8, focused on the procreative role of marriage. In the two and one-half week trial, Cooper called only two witnesses, political scientist Kenneth Miller who said that gays and lesbians were not in need of special protection to vindicate their political rights, and author David Blankenhorn who testified that same-sex marriage could impact the number of marriages between men and women. David Boies and Theodore Olson, attorneys for the challengers, presented most of the witnesses in the 12-day trial in January-- same-sex couples and eight academics. In his closing argument, Olson contended that Proposition 8 involved discrimination on the basis of gender and focused on the 1967 Supreme Court decision in Loving v. Virginia which struck down state bans on interracial marriages. (See prior related posting.)

UPDATE: Here are the full transcripts of the closing arguments via the Sacramento News & Review.

Hawaii Governor Talks With Rabbis In Deciding On Civil Union Bill

AP reported yesterday that Hawaii Governor Linda Lingle, who is Jewish and is a Republican, has recently met with two rabbis as she is considering whether to sign or veto HB 444, a bill passed by the Hawaii legislature that allows civil unions for same-sex as well as opposite-sex couples. (Background from Wikipedia.) The two rabbis are on opposite sides of the issue. Rabbi Itchel Krasnjansky who leads Hawaii's Orthodox Jewish Habad movement, says that the Torah teaches that homosexuality, and by extension same-sex marriage, should not be condoned or legalized. However Reform Rabbi Peter Schaktman-- whose Temple Gov. Lingle attends-- says Judaism teaches that all people regardless of sexual orientation are "children of God" and they should not face discrimination. He argues: "Civil unions are a legal arrangement. Therefore, anyone who uses religion to oppose civil unions is purely using religion to further homophobia."

Mormon Church Agrees To Penalty For Late Reporting of Prop 8 Contributions

The Mormon Church has agreed to pay a proposed $5,539 monetary penalty to California's Fair Political Practices Committee (FPPC) for failing to properly report contributions of $36,968 (including staff time) it made in 2008 to support the passage of Proposition 8, California's ban on same-sex marriage. CBS News reported yesterday that the Church was late in reporting contributions it made to the Protect Marriage Coalition. During the last two weeks of the campaign, it failed to comply with the daily reporting requirements. A statement by the Human Rights Campaign argued that the Church's violations were likely purposeful. The FPPC will vote at its meeting today on whether to approve the proposed fine agreed to by the FPPC Executive Director.