Group Seeks To Place Christian Conservatives On California Lower Courts

Yesterday's Los Angeles Times reported on an unusual campaign to unseat four San Diego (CA) trial court judges in the June 8 primary. A group calling itself "Better Courts Now" is endorsing four Christian conservative candidates for Superior Court judgeships, saying it is attempting to unify the "moral vote" and make judges accountable. The movement was the brainchild of now-deceased Zion Christian Fellowship pastor Don Hammer who campaigned for California's Proposition 8, the ban on same-sex marriage. The socially conservative Better Courts Now is backed by pastors, gun rights advocates and opponents of same-sex marriage. One of the endorsed candidates, Craig Candelore, says: "We believe our country is under assault and needs Christian values. Unfortunately, God has called upon us to do this only with the judiciary." However,San Diego County District Attorney Bonnie Dumanis says that Better Courts Now threatens to undermine the independence of the judiciary.

UPDATE: None of the 4 Christian conservative candidates was successful in unseating the incumbent judges they were challenging. The challengers obtained only 35% to 40% of the vote in each race. (USA Today, June 9, 2010).

Recent Articles of Interest

From SSRN:

• Ian S. Speir, Clemency in Jewish Law, (May 18, 2010).
• Ellen P. Aprill, An Overview of Tax Issues for Synagogues (and Other Religious Congregations), (Loyola-LA Legal Studies Paper No. 2010-24, May 19, 2010).
• Kristen Stilt, How is Islam the Solution?: Constitutional Visions of Contemporary Islamists, (Texas International Law Journal, Forthcoming).
• Jeff Redding, Dignity, Legal Pluralism, and Same-Sex Marriage, (Brooklyn Law Review , Vol. 75, 2010).
• Hussin Iza, Where is the Local Online? Internet Fatwa and the Making of New Muslim Spaces, (Western Political Science Association 2010 Annual Meeting Paper).
• Mohamad Mova Al 'Afghani, Religious Freedom in Indonesia Before and after Constitutional Amendments, (Critical Thinkers For Islamic Reform, Brainbow Press, 2009).
• Michael Young, In Defense of the Constitutionality of Critically Discussing Religion and Ethics in Schools in Light of Free Exercise and Parental Rights, (Ohio State Law Journal, Vol. 70, p. 1565, 2009).
• Aziz Z. Huq, Modeling Terrorist Radicalization, Duke Journal of Law and Social Change, Forthcoming).

From SmartCILP:

• Nancy D. Perkins, Form and Norm: The Transformative Potential of Sub-National Environmental Solidarity, 20 Fordham Environmental Law Review 469-514 (2010).

Recent Articles and Books of Interest

From SSRN:

• Steven Lubet, Why the Dreyfus Affair Does and Doesn't Matter, (Green Bag, Vol. 13, No. 2, p. 331, 2010).
• Timothy Stewart-Winter & Simon Stern, Picturing Same-Sex Marriage in the Antebellum United States: The Union of 'Two Most Excellent Men' in Longstreet's 'A Sage Conversation', (Journal of the History of Sexuality, Vol. 19, No. 2, pp. 197-222, May 2010).
• Gail F. Mason, Hate Crime Laws in Australia: Are They Achieving Their Goals?, (Criminal Law Journal, Vol. 33, No. 6, pp. 326-340, 2009).
• Mark J. Cowan, Nonprofits and the Sales and Use Tax, (Florida Tax Review, Forthcoming).

Recent Books:

• Amy Scobee, Scientology: Abuse At the Top, (Scobee Publishing, May 2010).
• Melanie Phillips, The World Turned Upside Down: The Global Battle over God, Truth, and Power, (Encounter Books, April 2010).
• S.E. Cupp, Losing Our Religion: The Liberal Media's Attack on Christianity, (Threshold Editions, April 2010).
• Ian Johnson, A Mosque in Munich: Nazis, the CIA, and the Rise of the Muslim Brotherhood in the West, (Houghton Mifflin Harcourt, May 2010).

Canadian Court Hearing Arguments On Conscience Rights For Marriage Commissioners

Today's Vancouver Sun reports that for the first time in 20 years, the government of Canada's province of Saskatchewan has invoked the Constitutional Questions Act to obtain an opinion from the Court of Appeal on the constitutionality of proposed legislation. At issue are two alternative drafts of proposed legislation that would permit some or all of the province's 326 marriage commissioners to refuse to perform marriage ceremonies that are contrary to their religious beliefs. One draft would limit the exemption to individuals who were commissioners in 2004 when the province authorized same-sex marriages. The other draft would cover all commissioners.

Regina lawyer Mike Megaw was appointed by the government to argue in favor of the constitutionality of the law. Eighteen other individuals and groups were allowed to intervene in the case. Yesterday the court heard six hours of argument, and returns today to hear the remaining presentations. Some of the arguments yesterday focused on the breadth of the proposed law. It is not limited to same-sex marriage, and some claim that it could allow refusals on religious grounds to perform interracial marriages or marriages between people of different castes as well. (See prior related posting.)

Religious Advocacy Groups Issue Statements On Kagan Nomination

A number of religious advocacy groups have issued statements commenting on President Obama's nomination of Elena Kagan to the U.S. Supreme Court. The Baptist Joint Committee said it hopes Kagan, if confirmed, "will protect our most fundamental freedom — religious freedom — with a commitment to principles of both no establishment and free exercise embodied in our 'first freedom'." Catholic Families for America opposed the nomination, saying it had "'grave concerns' about her promotion of same-sex 'marriage' and abortion, as well as a 'dangerous internationalism' that has become fashionable among leftist jurists." The American Jewish Committee welcomed the nomination, saying: "We commend President Obama on nominating Elena Kagan, whose strong legal credentials make her a worthy candidate for the U.S. Supreme Court."

Americans United for Separation of Church and State said: "We simply don’t know much about Elena Kagan’s views on church-state separation.... It's the job of the Senate Judiciary Committee to fill in the picture by asking her questions about how religion and government should interact." Liberty Counsel also raised questions: "The Senate should press hard to question Elena Kagan on her judicial philosophy. The public deserves to know whether Kagan will use her transnational law philosophy as a lens through which she views the Constitution. And the public needs to know whether her personal views will trump the Constitution, as they appeared to do when she banned military recruiters from campus."

The Jewish Council for Public Affairs release said: "Supreme Court nominees should be held the highest standard and be fully committed to protecting justice for all and our nation's core values described in the Constitution and the Bill of Rights.... We encourage Senators to give Ms. Kagan full and fair consideration and hope all sides keep discussions and debate civil." The Muslim Public Affairs Council said: "We call upon Ms. Kagan, if she is confirmed, to follow in the footsteps of Justice Stevens in his commitment to preserving individual freedoms, checking executive power, and upholding the rule of law which have made America a better place for over 35 years."

Student Paper Publishes Controversial Interview With Mike Huckabee

The College of New Jersey's student news magazine, The Perspective, last week reported on an interview with former Arkansas Governor and Republican Presidential candidate Mike Huckabee. In the interview, Huckabee took strong stands against same-sex civil unions as well as same-sex marriage, and expressed support for an Arkansas law that bars same-sex couples from adopting children or becoming foster parents. Huckabee, now a Fox News celebrity, said he believes an atheist could serve as President: "I'd rather have an honest atheist than a dishonest religious person," he commented. In a statement on Monday, Huckabee criticized the article as distorting and sensationalizing his views. The editor of The Perspective responded to Huckabee's criticism and posted a recording of the interview with Huckabee to counter the claim that Huckabee's statements were sensationalized.

Recent Articles of Interest

From SSRN:

• Thomas Charles Berg, What Same-Sex Marriage and Religious Liberty Claims Have in Common, (Northwestern Journal of Law and Social Policy, Forthcoming).
• Julie A. Oseid, The Power of Metaphor: Thomas Jefferson’s 'Wall of Separation between Church & State', (U of St. Thomas Legal Studies Research Paper No. 10-14, 2010).
• Thomas Charles Berg, Religious Displays and the Voluntary Approach to Church and State, (Oklahoma Law Review, Forthcoming).
• T. John O'Dowd, Pilate’s Paramount Duty: Constitutional 'Reasonableness' and the Restriction of Freedom of Speech and Assembly, (Comparative Constitutionalism In South Asia, Khilnani, Sunil, Raghavan, Vikram and Thiruvengadam, Arun, eds., Oxford Univ Press India, 2010).
• Richard W. Garnett, Religious Liberty, Church Autonomy, and the Structure of Freedom, (Christianity and Human Rights : An Introduction, John Witte, Jr. and Frank S. Alexander eds., pp. 226-238, Cambridge University Press, 2010).
• Nathan B. Oman, Bargaining in the Shadow of God’s Law: Islamic 'Mahr' Contracts and the Perils of Legal Specialization , (Wake Forest Law Review, Forthcoming).
• Yossi Nehushtan, Female Segregation for Religious Justifications: The Unfortunate Israeli Case, (Droit et Religions, Vol. 4, pp. 441-459, 2009-2010).
• Arnold H. Loewy, Intelligently Designing a Course in Intelligent Design, (February 22, 2010).
• John A. Humbach, Free Will Ideology: Experiments, Evolution and Virtue Ethics, (March 25, 2010).

From SmartCILP and elsewhere:

• Molly Greene, Goodbye to the Despot: Feldman on Islamic law in the Ottoman Empire, (Reviewing Noah Feldman, The Fall and Rise of the Islamic State), 35 Law & Social Inquiry 219-242 (2010).
• Journal of Law and Religion, Vol. XXV, No. 1 (2009-10) has recently appeared.
• Journal of Church & State, Vol. 51, No. 4 (Autumn 2009) has recently appeared.

British Religious Leaders Want Special Judicial Panel To Hear Religious Rights Cases

Today's London Times reports that Lord Carey, the former Archbishop of Canterbury, and other church leaders will support a motion being filed by attorneys for Christain relationship counsellor Gary McFarlane calling for a special Court of Appeals panel of five judges who understand religious issues to be appointed to hear McFarlane's appeal and future appeals involving religious rights. At issue in McFarlane's case is a ruling by the Employment Appeal Tribunal that religious discrimination prohibitions were not violated when McFarlane was dismissed by a counselling service for refusing to counsel same-sex couples. (See prior posting.) Critics of the court say that a series of rulings have shown a lack of understanding of Christian beliefs. They point especially to an opinion by Lord Neuberger, the Master of the Rolls, rejecting a complaint by marriage registrar Lillian Ladele who was disciplined when she refused to perform civil partnership ceremonies for same-sex couples. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Geoffrey P. Miller, The Dark Age: How the Biblical Narratives Demonstrate the Necessity for Law and Government, (NYU School of Law, Public Law Research Paper No. 10-18, March 24, 2010).
• Geoffrey P. Miller, Of Floods and Towers: The Bible’s Affirmative Case for Law and Government, (NYU School of Law, Public Law Research Paper No. 10-19, March 24, 2010).
• Geoffrey P. Miller, Patriarchy: The Political Theory of Family Authority in the Book of Genesis, (New York University School of Law, Public Law Research Paper No. 10-23, April 2, 2010).
• Adham A. Hashish, Islamic Ijtihad: The Key to Islamic Democracy Bridging and Balancing Political Islam and Intellectual Islam, (Richmond Journal of Global Law & Business, Vol. 9, No. 61, Winter 2010).
• Hans-Martien Ten Napel Th.D., Protestantism, Globalization and the Democratic Constitutional State, (Reshaping Protestantism in a Global Context, Volker Küster, ed., LIT, 2009).
• Mark Rahdert, Forks Taken and Roads Not Taken: Standing to Challenge Faith-Based Spending, (March 19, 2010).
• Jennifer Gerarda Brown, Peacemaking in the Culture War between Gay Rights and Religious Liberty, (Iowa Law Review, Vol. 95, p. 747, 2010).
• Paul M. Secunda, District Court Amicus Brief of Law Professors in Support of Defendants, Associated Oregon Industries v. Avakian, No. 3:09-CV-1494-MO (March 22, 2010).
• Cyra Akila Choudhury, Globalizing the Margins: Legal Exiles in the War on Terror and Liberal Feminism’s War for Muslim Women, (International Review of Constitutionalism, Vol. 9, No. 2, 2010).
• Mostapha Benhenda, For Muslim Minorities, it is Possible to Endorse Political Liberalism, But This is not Enough, (Journal of Islamic Law and Culture, Vol. 11, No. 2, May 2009).
• Andrew F. March, The Post-Legal Ethics of Tariq Ramadan: Persuasion and Performance in 'Radical Reform: Islamic Ethics and Liberation' (A Review Essay), (Middle East Law and Governance, Forthcoming).
• Ilan H. Fuchs, 'Sephardic' Halakhah? The Attitude of Sephardic Decisors to Women’s Torah Study: A Test Case , (Bar Ilan Univ. Pub Law Working Paper No. 02-10, Dec. 31, 2009).
• Francesco Alicino, Constitutionalism as a Peaceful "Site" of Religious Struggles, Global Jurist, Vol. 10 : Iss. 1 (Advances) (2010).
• Lourens Du Plessis, Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law , (Potchefstroom Electronic Law Journal, Vol. 12, No. 4, 2009).

From SmartCILP:

• E. Gregory Wallace, Justifying Religious Freedom: The Western Tradition, 114 Penn State Law Review 485-570 (2009).
• Shannon Gilreath, Not a Moral Issue: Same-Sex Marriage and Religious Liberty (Reviewing Same-Sex Marriage and Religious Liberty, edited by Douglas Laycock, Anthony R. Picarello, Jr. and Robin Fretwell Wilson), 2010 University of Illinois Law Review 205-223.
• Timothy D. Lytton, Framing Clergy Sexual Abuse as an Institutional Failure: How Tort Litigation Influences Media Coverage, 36 Wm. Mitchell Law Review 169-185 (2009).
• Jared Rubin, Social Insurance, Commitment, and the Origin of Law: Interest Bans in Early Christianity, [Abstract], 52 Journal of Law & Economics 761-777 (2009).
• Ofrit Liviatan, Judicial Activism and Religion-Based Tensions in India and Israel, 26 Arizona Journal of International & Comparative Law 583-621 (2009).
• Teri Dobbins Baxter, Private Oppression: How Laws that Protect Privacy Can Lead to Oppression, 58 University of Kansas Law Review 415-471 (2010).

Argentine Court Invalidates Marriage of Same-Sex Couple

According to a CNA report this week, a federal judge in Argentina has nullified the same-sex marriage of two men that was performed at Buenos Aires' Civil Registry earlier this month. The court ruled that the marriage was invalid "because of the absence of the institution's structural elements." The court ordered the men to return their marriage license and ruled that any legal effects derived from the marriage ceremony are suspended. The marriage was originally performed after a City Court judge ordered the Civil Registry to provide the couple with a date for their ceremony. (Buenos Aires Herald.)

Britain's Supreme Court Denies Christian Marriage Registrar Permission To Appeal

According to Pink News, the Supreme Court of the United Kingdom on Monday refused permission to appeal the decision in Ladele v. London Borough of Islington. In the case the Court of Appeals of England and Wales agreed with Britain's Employment Appeals Tribunal that a Christian marriage registrar was not subjected to illegal discrimination when she was disciplined and threatened with dismissal for refusing on religious grounds to register same-sex civil partnerships. (See prior posting.) The Supreme Court said the case did not raise legal issues of "general public importance." Ladele is now considering whether to take her case to the European Court of Human Rights.

D.C. Catholic Charities Ends New Spousal Benefits To Avoid Recognizing Same-Sex Partners

Following up on their pledge to be in compliance with D.C. same-sex marriage law that takes effect today, Catholic Charities of Washington has stopped offering benefits to spouses of new employees. This avoids charges that the organization is illegally discriminating on the basis of marital status were it to refuse to recognize same-sex partners. CNS and Beliefnet report that the change will not affect employees whose spouses are currently covered. A letter to Catholic Charities employees from its CEO said: "We sincerely regret that we have to make this change, but it is necessary to allow Catholic Charities to continue to provide essential services to the clients we serve in partnership with the District of Columbia while remaining consistent with the tenets of our religious faith." While Catholic Charities CEO Edward J. Orzechowski says that the new D.C. statute requires that same-sex couples receive the same spousal benefits as heterosexual couples, in fact that requirement seems to stem from the anti-discrimination provisions of the D.C. Human Rights Law that prohibits employment discrimination based on sexual orientation or marital status.

Chief Justice Refuses To Stay Effectiveness of D.C. Same-Sex Marriage Law

U.S. Supreme Court Chief Justice John Roberts has refused to grant a stay to prevent the District of Columbia’s Religious Freedom and Civil Marriage Equality Amendment Act from taking effect today. In an in chambers opinion in Jackson v. District of Columbia Board of Elections and Ethics, (Sup. Ct., March 2, 2010), the Chief Justice said that it has been the practice of the Court to defer to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern. Congress has chosen not to override the D.C. statute, and petitioners can raise many of the same arguments in their pending litigation attempting to get an initiative on the ballot to repeal the law that permits same-sex marriage. AP reports on the decision, saying that while couples may apply for licenses beginning today, there is a 3-day waiting period before they get the licenses and can actually be married. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

DC Catholic Archdiocese Says It Will Be In Compliance When Same-Sex Marriage Takes Effect

Washington, D.C.'s new law legalizing same-sex marriage takes effect this Wednesday. (See prior posting.) Yesterday's Washington Post reports that the Washington Catholic Archdiocese that receives significant social service funding from the city says it will be in compliance with law, though it has not specified exactly what it will do. D.C. law appears to require groups receiving public funds to offer benefits to spouses of married employees, whether traditional or same-sex marriages. The Archdiocese has already transferred its foster care program to avoid having to allow same-sex couples to serve as foster parents. (See prior posting.)

Maryland AG Says Same-Sex Marriages From Other States May Be Recognized

Maryland Attorney General Douglas F. Gansler has issued a 55-page Attorney General's Opinion concluding that same-sex marriages validly entered in other states may be recognized in Maryland. The opinion (94 Op. Att'y. Gen. 3, Feb. 23, 2010) says in part:

While the matter is not free from all doubt, in our view, the Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction. In light of Maryland's developing public policy concerning intimate same sex relationships, the Court would not readily invoke the public policy exception to the usual rule of recognition.

Three Catholic Archbishops of Maryland issued a joint statement (full text) criticizing the ruling. Today's Baltimore Sun reports on developments.

DC Court Refuses To Delay Effectiveness of Same-Sex Marriage Law

In Washington, D.C. on Friday, the D.C. Superior Court tentatively rejected an attempt to prevent the city's Religious Freedom and Civil Marriage Equality Amendment Act of 2009 from going into effect on March 3. The Act authorizes same-sex marriage in D.C. Metro Weekly reports that challengers sought the delay while the court is deciding on their attempt to get a referendum on the new law. The DC Board of Elections and Ethics has rejected the referendum petition because it would undercut attempts to eradicate discrimination prohibited by the D.C. Human Rights Act. That ruling is on appeal to the Superior Court. (See prior posting.)

DC Archdiocese Ends Foster Care Services Over New Same-Sex Marriage Law

CBN News reported yesterday that in Washington, DC, the Catholic Archdiocese has transferred its entire program of foster care services to the non-profit National Center for Children and Families. The Archdiocese made the move, after 80 years of furnishing services, because DC's new same-sex marriage law that will take effect shortly could require it to allow same sex couples to serve as foster parents, in violation of Church teachings. (See prior related posting).

New Hampshire House Refuses To Backtrack On Same-Sex Marriage

The Concord (NH) Union Leader reports that on Monday the New Hampshire House of Representatives voted down two proposals that would have backed away from the state's recognition of same-sex marriage. By a vote of 201-135, the House defeated a proposed state constitutional amendment (CACR 28) that would have defined marriage as being only between a man and a woman. An hour later, by a vote of 210-109, the House defeated HB 1590 that would have enacted a statutory repeal of same-sex marriage in the state.

First Step in Mexico On Church-State Separation Amendment to Constitution

Business Week reports last week that the lower house of Mexico's Congress has approved a constitutional amendment that formally establishes separation of church and state. The amendment "guarantees the autonomy of institutions from religious norms, rules and convictions or individual ideologies, as well as the equality of people before the law independent of their convictions." The overwhelming vote was 363-1 with 8 abstentions. Analysts say the amendment is designed to limit the Catholic Church's influence over political decisions. The Church has criticized enactments by Mexico City legalizing first-trimester abortions, and permitting same-sex marriage and adoptions. The amendment measure still has a long way to go. It must still be approved by Mexico's Senate, signed by President Felipe Calderon and ratified by a majority of Mexico's state legislatures. [Thanks to Bob Ritter for the lead.]

D.C. Election Board Rejects Referendum on Same-Sex Marriage Law; Appeal Filed

In In re Referendum on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, (DCBOEE, Feb. 4, 2010), the District of Columbia Board of Elections and Ethics rejected an attempt to hold a referendum on recently passed DC legislation authorizing same-sex marriage. The D.C. Initiative, Referendum and Recall Procedures Act requires the Board to refuse to accept referendum measures that would would frustrate efforts to eradicate discrimination prohibited by the D.C. Human Rights Act. The D.C. Superior Court has recently, using the same rationale, rejected an initiative petition to define marriage as being only between a man and a woman. (See prior posting.)

Yesterday, Alliance Defense Fund and Stand4Marriage DC filed a petition in D.C. Superior Court for review of the Board's decision rejecting the referendum. (Press release.) The petition (full text) argues that the referendum does not have the effect of authorizing discrimination on the basis of sex or sexual orientation since the D.C. legislation does not make sexual orientation a determinative factor in authorizing issuance of marriage licenses.