D.C. Catholic Archdiocese Threatens To End Social Services Over Gay Marriage Bill

In Washington, DC, the Catholic Archdiocese is threatening to end the social service programs it operates under contract with the city if City Council does not include broader religious exemptions in the same-sex marriage bill that it will vote on next month. In a press release issued on Tuesday, after the Council's Committee on Public Safety and the Judiciary voted to narrow the language on exemptions for religious organizations, the Archdiocese said:

Under the bill, religious organizations do not have to participate in the "solemnization or celebration" of a same-sex marriage ceremony. An earlier version of the bill also exempted them from "the promotion of marriage that is in violation of the entity’s religious beliefs." The revised language significantly narrows that exemption to the "promotion of marriage through religious programs, counseling, courses, or retreats."

As a result, religious organizations and individuals are at risk of legal action for refusing to promote and support same-sex marriages in a host of settings where it would compromise their religious beliefs. This includes employee benefits, adoption services and even the use of a church hall for non-wedding events for same-sex married couples. Religious organizations such as Catholic Charities could be denied licenses or certification by the government, denied the right to offer adoption and foster care services, or no longer be able to partner with the city to provide social services for the needy.

The Washington Post this morning says that Catholic Charities serves 68,000 people in the District, including one-third of the homeless, who go to city-owned shelters managed by the Church. From 2006 to 2008, the Catholic Church received $8.2 million in city contracts, and supplemented city social service funding with $10 million per year of its own funds. Jane G. Belford, chancellor of the Washington Archdiocese, told City Council that: "All of those services will be adversely impacted if the exemption language remains so narrow." However, City Councilman David A. Catania said he would rather end the city's relationship with Catholic charities than give in to the Church's demands. [Thanks to both Steven H. Sholk and Scott Mange for the lead.]

Maine Voters Reject Same-Sex Marriage

In a referendum yesterday, Maine voters rejected the state's recently-enacted law to permit same-sex marriage. The New York Times reported early Wednesday morning that with 87% of the precincts reporting, 53% of the voters had voted in favor of repeal. The Catholic Church was one of the primary supporters of the repeal referendum. It asked parishes to pass a second collection plate at Sunday Mass to support the repeal effort. The website of the Roman Catholic Diocese of Portland features a strong rebuke to a group of Catholics who had taken out an ad favoring marriage equality. It also features a Homily (full text) delivered in October, which supports legal recognition of domestic partnerships, but opposes same-sex marriage:

It is not discrimination to call things by their own names. We have different names for different things. A cat is not a dog; an oak tree is not a rose..... It is not discrimination to call one person a husband and another person a wife. It is not discrimination to say that one person is heterosexual and another person is homosexual. It is not discrimination to call the union of a man and a woman marriage and to call the committed relationship of homosexual persons something else -- you pick the word. It is difficult to believe that Maine people, much less Christian people, see no difference between marriage and homosexual unions, even when homosexual unions are perceived as desirable. There remains a difference and the difference should have its own name.

Marriage is an absolutely unique and irreplaceable relationship. Other relationships can be loving; other relationships can be committed; other relationships can even be permanent, but still not be marriage, but something else. Marriage is the miracle of the coming together to a man and a woman whose love and commitment is open to overflow to create the new life of a new person.

DC Council Holds Hearing On Same-Sex Marriage Proposal

Last week, the District of Columbia Council, Committee on Public Safety and the Judiciary, held a hearing on the proposed Religious Freedom & Civil Marriage Equality Amendment Act of 2009 which would allow same-sex marriages to be performed in the District of Columbia. (A video of the hearing is available online.) Under the bill, no clergy would be required to solemnize a marriage if it violated the clergy person's free exercise of religion. No religious organization is required to make facilities or services available for a marriage that is in violation of the group's religious beliefs unless the group makes the facilities available to the general public. The Pilot yesterday reported on written testimony submitted at the hearing by the Catholic Archdiocese of Washington. The Archdiocese urged broader religious exemptions, including exemptions for religious groups that provide services or rent space to those outside the group's faith. The Archdiocese warned that under the current bill, organizations that oppose same-sex marriages for religious reasons but serve the community could be denied government contracts or access to government facilities. It also claimed that under the bill, doctors, social workers and child-care workers opposed to same-sex marriage could have their licenses revoked, employers could be sued for not providing benefits to same-sex couples and religious colleges could have their accreditation revoked. (See prior related posting.)

James Dobson Will Step Down As Radio Host For Focus On Family

James C. Dobson, the 73-year old founder of Focus on the Family, will end 32 years as its primary spokesman in February when he steps down as host of its radio program. The announcement by Focus on the Family on Friday said that this "is just the 'third chapter in a transition that began in 2003,' when Dr. Dobson stepped down as Focus president." At that time, Jim Daly took over the presidency. The Colorado Springs Gazette reports that the powerful conservative Christian leader, who was asked for advice by Presidents Ronald Reagan and George H.W. Bush, has become a polarizing figure through his strong support of the traditional family and his opposition to pornography and same-sex marriage. Focus on the Family has suffered from declining donations in recent years. The Denver Post says that under Daly's presidency, Focus on the Family has become less confrontational and political as a younger generation of evangelical leadership is developing.

Signature Campaign Begins On California Anti-Divorce Amendment [Updated]

The California Secretary of State announced last week that the proponent of an initiative petition to amend California's Constitution to ban divorce in the state may begin to collect signatures. The proposed amendment would still allow annulments, but would completely eliminate the ability of married couples to get divorced in California. Proponents will need to collect the signatures of 694,354 registered voters to qualify the initiative for the ballot.

According to Huffington Post last month, the proponent, John Marcotte, introduced the amendment to mock the proponents of Proposition 8 who focused on protecting traditional marriage as a reason to oppose same-sex marriage. Last month, Cockeyed.com published an interview with Marcotte. Here is one exchange that gives the flavor of his remarks:

RC: well, this is a bold step. Do you think you face a strong opposition?

John: The opposition will always be there. The secular progressives, gays and MSNBC hosts -- but we beat them once with Prop 8 and we'll beat them again. If people are thinking about getting a divorce, just remember "Hell is eternal, just like your marriage was supposed to be." Jesus still loves you if you get divorced, just not as much as before.

Thanks to Not a Potted Plant and a commenter for correcting my initial incorrect interpretation of the proposal as as one that was meant to be serious in its approach. I guess it was a bad morning for my sense of humor that usually has a better compass than today.

Opposing Religious Coalitions Active On Maine's Same-Sex Marriage Ballot Issue

Yesterday' Bangor (ME) Daily News reports on religious coalitions on opposing sides of Maine's Question 1-- a referendum on the November ballot that would overturn a law passed earlier this year permitting same-sex couples to marry. (See prior posting.) The Religious Coalition for the Freedom to Marry in Maine held rallies around the state on Sunday to urge a "No" vote on Question 1. Rev. Bob Emrich, founder of the Maine Jeremiah Project which opposes same-sex marriage and urges a "yes" vote on the referendum, says the issue is not discrimination, but redefining marriage.

Recent Articles of Interest

From SSRN:

• Jackson Nyamuya Maogoto, Legalising Divorce in the Republic of Ireland: A Canonical Harness to the Legal Liberation of the Right to Marriage Among the Disenfranchised, (September 1, 2009).
• John D. Inazu, No Future Without (Personal) Forgiveness: Re-Examining the Role of Forgiveness in Transitional Justice, (Human Rights Review, Vol. 10, 2009).
• Patrick Parkinson, Christian Concerns with the Charter of Rights, (Sydney Law School Research Paper No. 09/72, Aug. 31, 2009).
• Louis J. Virelli, Administrative Evolution, (Stetson University College of Law Legal Studies Research Paper Series Research Paper No. 2009-05, Sept. 3, 2009).
• Pnina Lahav, Seeking Recognition: Women's Struggle for Full Citizenship in the Community of Religious Worship, (Boston University School of Law Working Paper No. 09-33, July 30, 2009).
• Steven Douglas Smith, Discourse in the Dusk: The Twilight of Religious Freedom, (Harvard Law Review, Vol. 122, p. 1869, 2009).

From SmartCILP:

• Joshua B. Gessling, From Ankara to Strasbourg: Developing a Comprehensive Supranational Litigation Strategy for Patriarchal Preservation in Turkey, 15 Buffalo Human Rights Law Review 109-157 (2009).
• Puja Kapai & Anne S. Y. Cheung, Hanging In a Balance: Freedom of Expression and Religion, 15 Buffalo Human Rights Law Review 41-79 (2009).
• Judith E. Koons, Engaging the Odd Couple: Same-Sex Marriage and Evangelicalism in the Public Square, 30 Women's Rights Law Reporter 255-288 (2009).
• Gerard Magill, Using Excess IVF Blastocysts for Embryonic Stem Cell Research: Developing Ethical Doctrine, Secular and Religious, 37 Hofstra Law Review 447-485 (2008).

Louisiana Governor's State-Paid Trips To Churches Raise Controversy

Controversy between Louisiana Governor Bobby Jindal and his critics has been escalating since an article in the New Orleans Advocate a week ago disclosed that at least 15 times this year Jindal used his state helicopter to attend church services around the state. Jindal says he also uses the occasssions to talk with local officials. (Last year, Americans United criticized similar visits by Jindal.) Rev. Welton Gaddy, president of the Interfaith Alliance, but also pastor of a Baptist Church in Monroe, Louisiana, this week wrote Jindal complaining about the taxpayer-funded trips. (Full text of letter.) He wrote in part: "For the sake of religion, please do not politicize houses of worship in Louisiana and rob those of us who minister there of the credibility that allows our faith to be a healing force in our state and across our land."

ABP reports that a Jindal spokesperson reacted to Gaddy's letter by saying : [The Interfaith Alliance] opposes putting crosses up in honor of fallen policemen, has attacked the National Day of Prayer and advocates for same-sex marriage, so it's not surprising that they are attacking the governor for accepting invitations to speak at Louisiana churches." [Thanks to Blog from the Capital for the lead.]

Former Miss California USA Sues Claiming Religious Discrimination

Former Miss California USA, Carrie Prejean, yesterday filed a lawsuit in a California state court against Miss California pageant officials accusing them of religious discrimination, as well as defamation , disclosure of private medical facts and intentional and negligent infliction of emotional distress. Prejean's title was taken away in June 2009, allegedly for breach of contract. The complaint (full text) in Prejean v. Lewis, (Los Angeles Superior Ct., filed 8/31/2009), alleges in part that defendants violated California's Unruh Civil righs Act (CA Civil Code Sec. 51) by conspiring to have Prejean dismissed as Miss California USA because she insisted on publicly expressing her religious beliefs opposing same-sex marriage. Entertainment Tonight reports on the lawsuit. (See prior related posting.)

Ted Kennedy Laid To Rest; His Complex Relationship With Catholic Church Is Explored

A funeral mass (background) was recited yesterday for Sen. Edward M. Kennedy (Boston Herald), with Cardinal Sean P. O’Malley, archbishop of Boston, in attendance (Boston Globe). Kennedy has been described by Tim Rutten in the Los Angeles Times as "America's most famous Catholic politician and its most visible link to the bonds of identity and solidarity that have for so long joined Catholics to the Democratic Party." President Obama delivered a eulogy (full text) at the funeral mass, held at the Basilica of Our Lady of Perpetual Help in Boston. As Kennedy was buried, the media carried a number of stories about his complicated relationship with the Catholic Church. Kennedy's support for abortion rights and same-sex marriage has drawn strong criticism from many Catholic leaders, and some pro-life advocates have argued that his stance on abortion should have disqualified him from having a public Catholic funeral mass. (Lifesite News).

At Kennedy's burial service at Arlington National Cemetery, retired Washington Cardinal Theodore McCarrick read long excerpts from a letter that Kennedy sent to Pope Benedict XVI last month and from the Pope's response. (Politics Daily.) The letter from Kennedy, hand delivered by President Obama during his July meeting with the Pope, asked the Pontiff to pray for the Senator's health. In the letter, Kennedy also reiterated his commitment to health care reform and said he believes in conscience protection for Catholics in the health care field. The Pope's response through a senior Vatican official, two weeks later, expressed the Pontiff's concern for Kennedy and said in part: "His Holiness prays that in the days ahead you may be sustained in faith and hope, and granted the precious grace of joyful surrender to the will of God our merciful Father." Meanwhile Time Magazine notes while the Vatican's official newspaper L'Osservatore Romano has reported on Kennedy's death, noticeably absent is a statement directly from the Pope.

Saskatchewan Court Says Marriage Commissioner May Not Refuse To Perform Gay Weddings

In Nichols v. M.J., (Sask. Q.B., July 17, 2009), the Queen's Bench for the Canadian province of Saskatchewan upheld a decision of the province's Human Rights Commission that a government marriage commissioner illegally discriminated against a gay man when the commissioner refused to perform a marriage ceremony for him. The marriage commissioner, Orville Nichols (who is a Baptist), asserted religious objections to performing same-sex marriages. The court, however, rejected his claim, saying:

M.J. and other members of the public do not have to depend upon encountering a marriage commissioner who has no moral or religious objection to performing a same sex marriage in order to gain access to an entitlement to be married without discrimination. Regardless of the religious basis of Mr. Nichols’ views, his acting on them in this manner constitutes discrimination in the provision of a public service on the basis of sexual orientation. Any accommodation of Mr. Nichols’ religious views, if the duty to accommodate exists, is not the responsibility of those who seek the services that he is legally empowered to provide. If any accommodation is due to Mr. Nichols for his religious views, it must be accomplished without risking what occurred here – where the complainant sought a service and was expressly denied it on the basis of his sexual orientation....

I am sympathetic to the argument that a public official acting as government is at the same time an individual whose religious views demand respect. However, a public official has a far greater duty to ensure that s/he respects the law and the rule of law. A marriage commissioner is, to the public, a representative of the state. She or he is expected by the public to enforce, observe and honour the laws binding his or her actions. If a marriage commissioner cannot do that, she or he cannot hold that position.

Reporting on the decision, the Regina (SK) Leader-Post says that provincial officials will still move ahead with plans to obtain a Court of Appeal ruling on the constitutionality of a proposed law that would exempt marriage commissioners from performing same-sex marriages if they object to doing so for religious reasons. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• William W. Van Alstyne, Religion in the Workplace: A Report on the Layers of Relevant Law in the United States, (Comparative Labor Law & Policy Journal, Vol. 30, No. 3, 2009).
• Reid K. Weisbord & Peter DeScioli, The Effects of Donor Standing on Philanthropy: Insights from the Psychology of Gift-Giving, (Gonzaga Law Review, Vol. 45, No. 2, January 2010).

From SmartCILP:

• Charlton C. Copeland, God-Talk in the Age of Obama: Theology and Religious Political Engagement, 86 Denver University Law Review 663-691 (2009).
• Josh Goodman, Divine Judgment: Judicial Review of Religious Legal Systems in India and Israel, 32 Hastings International & Comparative Law Review 477-528 (2009).
• Robin Fretwell Wilson, Same-Sex Marriage and Religious Liberty: Life After Prop 8, 14 NEXUS 101-111 (2008-2009).

State Agency Removes Website Links To "Open and Affirming" Churches

Connecticut's Department of Children and Families has removed from its website links to "open and affirming" churches-- i.e. churches that welcome gays, lesbians and persons who are bisexual and transgender. Yesterday's Hartford Courant reports that the links were removed after the Family Institute of Connecticut (FIC), a group that opposes same-sex marriage, threatened to sue. It claimed that placing the links on the state agency's website violates the Establishment Clause as well as parental rights. FIC also asked the Department to make sure that the organization training social workers on issues faced by GLBT youth does not provide information on "open and affirming" churches in its training sessions.

Court Enjoins Community College's Sexual Harassment Policy As Overbroad

In Lopez v. Candaele, (CD CA, July 10, 2009), a California federal district court issued a preliminary injunction enjoining enforcement of Los Angeles Community College District’s Sexual Harassment Policy. The court found that the policy is overbroad, prohibiting a substantial amount of protected speech. The case grew out of a class presentation by plaintiff, in which he spoke about his religion-based opposition to same-sex marriage. His professor called him a "fascist bastard," cut his speech short, and did not enter a grade on his evaluation sheet. (See prior posting.) However ultimately plaintiff was awarded a grade of A in the course. Alliance Defense Fund issued a release applauding the ruling, saying: "Christian students shouldn't be penalized for expressing their beliefs at a public college."

Massachusetts Sues Challenging Constitutionality of DOMA

Yesterday the state of Massachusetts filed suit in federal district court challenging the constitutionality of the federal Defense of Marriage Act (DOMA). The complaint (full text) in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (D MA, filed 7/8/2009), alleges that in enacting the law, the federal government violated the 10th Amendment and exceeded its powers under the Spending Clause. The complaint alleges in part:

In 2004, the Commonwealth of Massachusetts became the first state to end the exclusion of same-sex couples from marriage..... Congress’s decision to enact a federal definition of marriage rejected the long-standing practice of deferring to each state's definition of marriage and contravened the constitutional designation of exclusive authority to the states. From its founding until DOMA was enacted in 1996, the federal government recognized that defining marital status was the exclusive prerogative of the states and an essential aspect of each state's sovereignty, and consistently deferred to state definitions when the marital status of an individual was used as a marker of eligibility for rights or protections under federal law.

Now, because of Section 3 of DOMA, married individuals in same-sex relationships are both denied access to critically important rights and benefits and not held to the same obligations and responsibilities arising out of marriage or based on marital status. DOMA precludes same-sex spouses from a wide range of important protections that directly affect them and their families, including federal income tax credits, employment and retirement benefits, health insurance coverage, and Social Security payments. In enacting DOMA, Congress overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.

The Boston Globe reports on the lawsuit. State Attorney General Martha Coakley's office has issued a press release along with links to a transcript and recording of yesterday's press conference announcing the action.

Religious Conservatives Criticize Obama's Extension of Some Benefits To Gay Couples

Yesterday President Barack Obama signed a Memorandum (full text and full text of remarks at signing) extending certain benefits to same-sex domestic partners of government employees. (New York Times.) The White House also released an official statement along with the memorandum. Among the benefits made available are use of sick leave to care for their domestic partners or their partners' children; coverage of partners under long-term care insurance; and providing equal treatment for partners of American Foreign Service officers in use of medial facilities and visitation rights in case of an emergency. He also called for the Office of Personnel Management to conduct further reviews of possible benefits and of non-discrimination provisions.

Obama indicated that current federal law precludes him from going further by executive action, but announced his support for the Domestic Partners Benefits and Obligations Act that would extend the full range of benefits-- including health care and retirement benefits--to same-sex couples as are enjoyed by married heterosexual couples. Not surprisingly, a number of conservative Christian groups, as in a press release from the Family Research Council, have criticized the President's action. Dan Gilgoff reports that they contend the Memorandum essentially elevates same-sex partnerships to a status that approximates marriage, in violation of at least the spirit of the federal Defense of Marriage Act.

DC Elections Board Rejects Referendum On Recognition of Same-Sex Marriages From Elsewhere

Last month, the D.C. City Council, over the opposition of local ministers and others, passed an ordinance recognizing same-sex marriages performed elsewhere. (See prior posting.) Bishop Harry Jackson of Hope Christian Church in Beltsville (MD) led a group of largely African-American clergy seeking to place a referendum on the new law before D.C. voters. The Washington Post reported yesterday that the D.C. Board of Elections & Ethics has ruled the referendum illegal because under D.C. law no referendum can be used to authorized discrimination that is prohibited by the D.C. Human Rights Act.

The Board, in In re Referendum Concerning the Jury and Marriage Amendment Act of 2009, (DC Bd. Elec., June 15, 2009), ruled that: "The Council has, through the Act, expressed its determination to clearly state that discrimination against same-sex couples who are validly married elsewhere is prohibited. Simply stated, the Act means that the HRA now requires the District government and all public accommodations, inter alia, to refrain from discriminating against same-sex couples who are validly married elsewhere." The Board has also posted online the full text of legal comments it received on the proposed referendum.

UPDATE: On Wednesday, on behalf of several D.C. voters, the Alliance Defense Fund filed an appeal of the decision by the Board of Elections & Ethics. (Press release.) The complaint (full text) in Jackson v. D.C. Board of Elections & Ethics, (DC Super. Ct., filed 6/18/2009), claims that the "refusal to afford same-sex couples the status of 'marriage' does not run afoul of the DC-HRA."

Recent Articles Of Interest

From SSRN:

• Jeff Redding, Proposition 8 and the Future of American Same-Sex Marriage Activism, (Nexus, Vol. 14, p. 113, 2009).
• Anne Twomey, The Australian Crowns - Changing the Rules of Succession, (Quadrant, Vol. 53, No. 6, pp. 44-47, 2009).
• Barry McDonald, Getting Beyond Religion as Science: 'Unstifling' Worldview Formation in American Public Education, (Washington and Lee Law Review, Vol. 66, 2009).
• Amy Lavine & Patricia Salkin, God and the Land: A Holy War Between Religious Exercise and Community Planning and Development, (Albany Government Law Review, Vol. 2, 2009).

From SmartCILP:

• Donald Kerwin, Toward a Catholic Vision of Nationality, 23 Notre Dame Journal of Law, Ethics and Public Policy 197-207 (2009).
• Craig W. Mandell, Tough Pill to Swallow: Whether Catholic Institutions Are Obligated Under Title VII to Cover Their Employees' Prescription Contraceptives, 8 University of Maryland Law Journal of Race, Religion, Gender & Class 199-239 (2008).
• Lucian C. Martinez, Jr., Sovereign Impunity: Does the Foreign Sovereign Immunities Act Bar Lawsuits Against the Holy See in Clerical Sexual Abuse Cases?, 44 Texas International Law Journal 123-155 (2008).
• Nicholas A. Mirkay, Losing Our Religion: Reevaluating the Section 501(c)(3) Exemption of Religious Organizations That Discriminate, 17 William & Mary Bill of Rights Journal 715-764 (2009).
• Mark Strasser, Repudiating Everson: On Buses, Books, and Teaching Articles of Faith, 78 Mississippi Law Journal 567-636 (2009).

NH Governor Signs Same-Sex Marriage Bill After New Religious Protections Added

Yesterday the New Hampshire House and Senate enacted changes to the same-sex marriage bill that the legislature had already passed, going along with demands of Gov. John Lynch for further protections for religious institutions as a condition of his signing the law. (See prior posting.) The Concord Union Leader reports that the governor then signed the bill yesterday afternoon. It takes effect Jan. 1. Two amendments to the already-passed HB 436 were placed into HB 73 and HB 310. The new changes affirm that religious organizations retain control over who may marry within the faith and they may not be required to participate in a marriage ceremony in violation of their religious beliefs. No religious organization is required to provide in connection with a marriage that violates its religious beliefs any marriage counseling, programs, courses, retreats, or housing designated for married individuals. Finally, religious fraternal benefit societies need not provide insurance where it would violate the society's free exercise of religion.

Connecticut Diocese Sues To Avoid Registration As Lobbyist

The Catholic Diocese of Bridgeport on Friday filed a federal lawsuit against Connecticut's Office of State Ethics seeking to enjoin the Office from taking action to force the Diocese to register with the state as a lobbyist. Catholic Online reports that the state ethics office wrote the Diocese raising questions after the Diocese took part in a rally in March opposing Raised Bill 1098 that would have forced reorganization of financial oversight in Catholic parishes (see prior posting). The state also questioned a posting on the Diocese's website urging its members to oppose another bill relating to same-sex marriage. The complaint (full text) in Bridgeport Roman Catholic Diocesan Corporation v. Jones, (D CT, filed 5/29/2009), contends that the state's action violates the Diocese's constitutional rights of speech and assembly, its free exercise and equal protection rights, and violates the establishment clause. The Diocese also filed a Memorandum of Law in support of its motion for a preliminary injunction.