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.

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.