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.

Bill Proposed In California To Protect Clergy From Perfoming Same-Sex Marriages

As the federal court trial challenging the constitutionality of California's gay marriage ban continues (New York Times 1/27), proponents of same-sex marriage yesterday introduced a bill in the California legislature to make the prospect more appealing to opponents. The Civil Marriage Religious Freedom Act (SB 906) emphasizes the distinction between religious and civil marriage by changing language in state statutes relating to marriage to refer to "civil marriage." The bill goes on to add to the section which permits clergy to perform marriage ceremonies:

No person authorized by this subdivision shall be required to solemnize a marriage that is contrary to the tenets of his or her faith. Any refusal to solemnize a marriage under this subdivision shall not affect the tax exempt status of any entity.

According to LAist yesterday, both Equality California (press release) and the California Council of Churches back the measure.

DC Court Upholds Election Board's Rejection of Initiative To Define Marriage

In Jackson v. District of Columbia Board of Elections and Ethics, (DC Super. Ct., Jan. 14, 2010), the District of Columbia Superior Court agreed with the D.C. election board's rejection of an initiative petition seeking to amend the D.C. Code to provide that only marriage between a man and a woman would be recognized in D.C. Last year, D.C. City Council passed a law recognizing same-sex marriages validly performed elsewhere. (See prior posting.) The court held that Council appropriately implemented the Charter Amendment Act when it prohibited initiatives that would authorize discrimination in violation of the D.C. Human Rights Act. The proposed initiative would violate the Human Rights Act by authorizing discrimination based on sexual orientation. (See prior related posting.) Alliance Defense Fund (which filed the lawsuit on behalf of a local pastor and other voters) in a release yesterday says it will appeal the decision.

Supreme Court Blocks Broadcast of California Proposition 8 Trial

The U.S. Supreme Court yesterday, in a 5-4 decision, blocked the broadcast by a California federal district court of the non-jury trial challenging the constitutionality of Proposition 8-- California's ban on same-sex marriage. In Hollingsworth v. Perry, (Sup. Ct., Jan. 13, 2010), the per curiam majority opinion concluded that the federal district court did not follow the proper procedures in amending its rules to permit broadcast of the trial. It did not give enough time for public comment on its proposal. The majority said:

The trial will involve various witnesses, including members of same-sex couples; academics, who apparently will discuss gender issues and gender equality, as well as family structures; and those who participated in the campaign leading to the adoption of Proposition 8. This Court has recognized that witness testimony may be chilled if broadcast.... Some of applicants' witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment....

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

Technically the court granted a stay of the district court's order pending filing of petitions for a writ of certiorari and mandamus. The decision only related to the proposal to broadcast the trial live to a number of other courthouses around the country. It did not relate to the proposal to post recordings of the trial on YouTube at the end of each day. The 9th Circuit never approved that portion of the district court's poposal because the district court's technical staff encountered difficulties in preparing video that was suitable for online posting. Justice Breyer dissenting, joined by Justices Stevens, Ginsburg and Sotomayor said:

The majority’s action today is unusual. It grants a stay in order to consider a mandamus petition, with a view to intervening in a matter of local court administration that it would not (and should not) consider. It cites no precedent for doing so. It identifies no real harm, let alone “irreparable harm,” to justify its issuance of this stay.

The New York Times reports on the decision. (See prior related posting.)

Prop 8 Trial Begins Monday With Dispute Over Televising of Proceedings

In San Francisco tomorrow, the federal district court trial challenging the constitutionality of California's Proposition 8 barring same-sex marriage begins. (See prior posting.) Invoking a policy change instituted by the Ninth Circuit in December, the district court is permitting limited televising of the trial. Proceedings will be taped by court personnel and will be posted on YouTube at the end of the day. Intent on keeping the taping under the control of court personnel, Chief Judge John Walker rejected an offer by In Session (formerly Court TV) to broadcast the trial live. (The Recorder, 1/7.) Proponents of Proposition 8 are unhappy fearing intimidation of witnesses by same-sex marriage backers. Their appeal to the 9th Circuit of the district court's order permitting televising of the proceedings was denied by the appeals court on Friday. (Mercury News, 1/8.) Proposition 8 backers quickly filed an appeal with U.S. Supreme Court Justice Anthony Kennedy who has given the other side until noon today to respond. (New York Times, 1/9).

UPDATE: Justice Kennedy referred the appeal on broadcasting of the trial to the full court. On Monday the Court stayed the trial court's order thereby temporarily banning streaming of the proceedings to other court houses as well as any wider broadcasting of the proceedings. The stay remains in effect only until Wednesday to giver the Court more time to examine the issue. Justice Breyer dissented urging further consideration of the issue without a stay being imposed. (Order in Dennis v. Kristin, Sup. Ct., Jan. 11, 2010.) (CBN reports on the Supreme Court's action.)

Many Issues of Religon and Human Rights Remain In Latest Kenya Draft Constitution

Kenya is in the complex process of drafting and adopting a new constitution. (See prior posting.) The public comment period on the Committee of Experts' draft expired Dec. 15. It was supposed to be redrafted taking the comments into account, forwarded to the Parliamentary Select Committee on the Constitution, and then forwarded to the National Assembly which is to hold a referendum on it. (Sunday Nation 12/11/09). However today's Sunday Nation reports that the redraft forwarded to the Parliamentary Select Committee does not reflect some of the changes to the Bill of Rights proposed by churches, civil society organizations and human rights lobbies. Issues still remain over the document's language on abortion, its provisions on Islamic law, issues of family, of same-sex marriage, protection of religious institutions that wish to hire on the basis of religion, protection of children and the right to education and housing. The Parliamentary Select Committee is now expected to seek consensus on various issues and return the document to the Committee of Experts for redrafting.

New Jersey Senate Rejects Same-Sex Marriage Bill

The New Jersey Senate yesterday voted down A818, the proposed Civil Marriage and Religious Protection Act that would have legalized same-sex marriage in the state. Yesterday's Christian Science Monitor and the Asbury Park Press report that the vote was 20 opposed, and 14 in favor, with 5 senators not voting. New Jersey already recognizes civil unions, but supporters of gay marriage say that there are still restrictions on insurance benefits available to couples who are only in civil unions. Opponents argued for the traditional definition of marriage, and said any change should be through a referendum.

(See prior related posting.)

Mexico City Approves Gay Marriage, Adoptions

Mexico City yesterday became the first Latin American city to legislatively approve same-sex marriage. (A court decision in Buenos Aires, Argentina in November had approved same-sex marriages, but the issue is tied up in further litigation.) CNN and AP report that the city's legislative assembly approved the change by a vote of 39-20, with 5 abstentions. In a second vote of 31-24, with 9 abstentions, the assembly approved legalizing adoptions by same-sex couples. Mayor Marcelo Ebrard is expected to sign the law. The Roman Catholic Church which is the dominant religion in Mexico opposes the change. 91% of Mexico's population is Catholic. (Background.) The city had approved same-sex civil unions in 2007.

UK Court of Appeal: No Discrimination In Requring Official To Register Civil Partnerships

In Ladele v. London Borough of Islington, (EWCA, Dec. 15, 2009), the Court of Appeals of England and Wales agreed with Britain's Employment Appeals Tribunal (see prior posting) that a Christian marriage registrar was not subjected to illegal discrimination when she was disciplined and threatened with dismissal for refusing to register same-sex civil partnerships. Lillian Ladelle argued that requiring her to "facilitate the formation of a union which [she] sincerely believe[d] was contrary to God's law" violated her rights under the Employment Equality (Religion or Belief) Regulations 2003. The Court of Appeal, however, concluded unanimously that:

Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele's refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington's Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington's employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele's refusal was causing offence to at least two of her gay colleagues; Ms Ladele's objection was based on her view of marriage, which was not a core part of her religion; and Islington's requirement in no way prevented her from worshipping as she wished....

Ms Ladele's proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override Islington's concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community

Today's London Mail reports on the decision.

D.C. Council Votes Final Passage of Gay Marriage Bill

Washington, D.C.'s City Council yesterday, by a vote of 11-2, gave final approval to the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. The bill, which permits same-sex marriages to be performed in D.C., now goes to Mayor Adrian A. Fenty, who, according to the Washington Post, is expected to sign the bill before Christmas. Congress then has 30 days to review the legislation and can block it only by a resolution passed by both houses of Congress and signed by the President. It appears unlikely that the law will be rejected through this route. The bill contains protections to assure that clergy can refuse to perform same-sex marriages and that religious organizations can refuse to provide goods, services, accommodations and facilities for same-sex marriages that violate their religious beliefs, except when those facilities are offered to the general public. A number of Christian clergy say they will continue to oppose the legislation. As previously reported, they have filed suit to force an initiative vote on a proposal to define marriages as only between a man and a woman. (See prior related posting.)

New York Senate Defeats Same-Sex Marriage Bill; DC Bill Moves Ahead

Yesterday the New York State Senate, by a vote of 24-38, defeated a bill that would have permitted same-sex marriage in the state. The bill, strongly supported by Gov. David Patterson, had already passed the state Assembly. AP reports that the bill lost by a wider margin than had been expected. The New York Daily News has details of the roll-call vote. The Senate debate included references to religion and the Bible by those on both sides of the issue. (Baptist Press.) After the vote, the New York State Catholic Conference issued a statement saying that the bishops are "pleased and grateful" that the Senate "rejected the concept that marriage can be anything other than a union between one man and one woman."

Meanwhile, Washington, D.C.'s city council, by a vote of 11-2, gave tentative approval on Tuesday to the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. The Washington Times reports that a final Council vote is scheduled for December 15 on the bill that would authorize same-sex marriage in the District. Then Congress would have 30 days to review the law and disapprove it. (See prior related posting.)

New Catholic, Evangelical Declaration Reaffirms Pro-Life, Traditional Marriage Agenda

This afternoon, a coalition of 149 pro-life, Catholic, evangelical and Orthodox Christian leaders signed the 4700-word Manhattan Declaration, pledging to defend their pro-life views and their opposition to same-sex marriage. (LifeNews.) The Declaration says in part:

While the whole scope of Christian moral concern, including a special concern for the poor and vulnerable, claims our attention, we are especially troubled that in our nation today the lives of the unborn, the disabled, and the elderly are severely threatened; that the institution of marriage, already buffeted by promiscuity, infidelity and divorce, is in jeopardy of being redefined to accommodate fashionable ideologies; that freedom of religion and the rights of conscience are gravely jeopardized by those who would use the instruments of coercion to compel persons of faith to compromise their deepest convictions.

.... We are Christians who have joined together across historic lines of ecclesial differences to affirm our right—and, more importantly, to embrace our obligation—to speak and act in defense of these truths.... Because we honor justice and the common good, we will not comply with any edict that purports to compel our institutions to participate in abortions, embryo-destructive research, assisted suicide and euthanasia, or any other anti-life act; nor will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family. We will fully and ungrudgingly render to Caesar what is Caesar’s. But under no circumstances will we render to Caesar what is God’s.

Today's New York Times reporting on the Declaration says that the document, written by Prison Fellowship founder Charles Colson, "is an effort to rejuvenate the political alliance of conservative Catholics and evangelicals that dominated the religious debate during the [Bush] administration.... They want to signal to the Obama administration and to Congress that they are still a formidable force that will not compromise on abortion, stem-cell research or gay marriage." [Thanks to Ira "Chip" Lupu for the lead.]

Appeal Filed Seeking Acceptance of D.C. Marriage Initiative Petition

Having lost in their attempt to obtain a referendum (see prior posting), opponents of Washington, D.C.'s new law recognizing same-sex marriages performed elsewhere filed an initiative petition in September. The Marriage Initiative would provide that only a marriage between a man and a woman would be recognized in D.C. In an order issued on Tuesday, In Re: Marriage Initiative of 2009, (DC Bd. Elec. & Ethics, Nov. 17, 2009), the D.C. Board of Elections and Ethics ruled that because the initiative would violate the D.C. Human Rights Act, under D.C.'s Initiative, Referendum and Recall Procedures Act it was required to reject the initiative petition.

Yesterday, several proponents of the initiative filed suit seeking court review of the Election Board's ruling. The complaint (full text) in Jackson v. District of Columbia Board of Elections and Ethics, (DC Super. Ct., filed 11/18/2009), challenges the restriction in D.C. law that precludes using the initiative for any measure that would authorize discrimination in violation of the Human Rights Act. It also argues that the Initiative does not violate the HRA. Alliance Defense Fund issued a release announcing that the appeal had been filed.