Iowa Recorders Are Told They Must Issue Same-Sex Marriage Licenses

According to yesterday's Gay & Lesbian Times, now that the Iowa Supreme Court has legalized same-sex marriage in the state (see prior posting), Victoria Hutton of the Iowa Department of Public Health has notified all 99 county recorders that they must issue marriage licenses to same-sex couples. Some of the recorders have religious objections to doing so. Meanwhile yesterday's Des Moines Register reports that Iowa magistrate Francis Honrath has decided he will stop performing all marriage ceremonies. A number of other judges and court officials are expected to take similar stands.

Connecticut Law Implements Same-Sex Marriage Ruling With Exemptions For Religious Organziations

Yesterday Connecticut Governor M. Jodi Rell signed S.B. No. 899, a bill to implement the state Supreme Court's 2008 decision validating same-sex marriages. (AP). The bill also recognizes same-sex civil unions from other states and merges Connecticut civil unions into marriages. On Wednesday, the Senate and House both adopted amendments granting extensive religious exemptions. Those exemptions provide:

[A] religious organization ... or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization ..., shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if the request for [them]... is related to the solemnization of a marriage or celebration of a marriage and such solemnization or celebration is in violation of their religious beliefs and faith....

... The marriage laws of this state shall not ... shall not require a fraternal benefit society ... which is operated, supervised or controlled by ... a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society's free exercise of religion as guaranteed by the first amendment to the Constitution of the United States and section 3 of article first of the Constitution of the state.

Nothing in this act shall be deemed or construed to affect the manner in which a religious organization may provide adoption, foster care or social services if such religious organization does not receive state or federal funds for that specific program or purpose.

The bill also provides that no member of the clergy shall be required to solemnize any marriage in violation of his or her right to the free exercise of religion and no church shall be required to participate in solemnizing a marriage in violation of its religious beliefs.

Yesterday's edition of The Edge reports on the amendments adopted Wednesday. Yesterday's Hartford Courant, reporting on the bill, points out that the state legislature rejected broader proposals that would have exempted objecting individuals and businesses from having to provide services in connection with same-sex marriages.

Vermont's Gay Marriage Law Contains Strong Religious Exemptions

Last week, Vermont's legislature overrode the veto of Gov. Jim Douglas and became the fourth state to authorize same-sex marriages. As the Burlington Free Press reported last week, this is the first time that gay marriage has been approved legislatively, rather than by the courts. Largely uncommented upon until an article in today's New York Daily News are the strong religious freedom exemptions included in the new law (full text of S. 115).

Statutory provisions on who may solemnize marriages were amended to include this provision:

[18 VAA Sec. 5144(b): ] This section does not require a member of the clergy ... to solemnize any marriage, and any refusal to do so shall not create any civil claim or cause of action.

The provisions of Vermont's Banking and Insurance law relating to Fraternal Benefit Societies was amended to include the following:

[8 VSA Sec. 4501(b):] The civil marriage laws shall not be construed to affect the ability of a society to determine the admission of its members ... or to determine the scope of beneficiaries..., and shall not require a society that has been established and is operating for charitable and educational purposes and which is operated, supervised, or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the society’s free exercise of religion, as guaranteed by the First Amendment to the Constitution of United States or by Chapter I, Article 3 of the Constitution of the State of Vermont.

Finally, the law amended Vermont's provisions banning discrimination in public accommodations to include the following:

[9 VSA Sec. 4502(l):] Notwithstanding any other provision of law, a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if the request for such services, accommodations, advantages, facilities, goods, or privileges is related to the solemnization of a marriage or celebration of a marriage. Any refusal to provide services, accommodations, advantages, facilities, goods, or privileges in accordance with this subsection shall not create any civil claim or cause of action.

This subsection shall not be construed to limit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization from selectively providing services, accommodations, advantages, facilities, goods, or privileges to some individuals with respect to the solemnization or celebration of a marriage but not to others.

Iowa Supreme Court Invalidates Ban On Same-Sex Marriage

Today Iowa joined Connecticut and Massachusetts in recognizing same-sex marriage. In Varnum v. Brien, (IA Sup. Ct., April 3, 2009), the Iowa Supreme Court held that the Iowa statute (IC Sec. 595.2) that limits marriage to unions between opposite-sex partners violates the equal protection clause of the Iowa Constitution (Art. I, Sec. 6). Conducting a lengthy analysis of equal protection precedent, the court concluded that "legislative classifications based on sexual orientation must be examined under a heightened level of scrutiny...." Finding that the same-sex marriage ban cannot survive intermediate scrutiny, the court did not need to decide whether a strict scrutiny analysis should be applied instead. Near the end of its opinion, the Court focused on the question of religious opposition to gay marriage:

[We] give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views.
A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

New York Times reports on the decision. Americans United issued a release praising the decision and saying it "has reaffirmed religious liberty." On the other hand, a release from the Traditional Values Coalition complains about judicial activism and warns of possible losses and mandates that it says could be imposed on religious groups.

Recent Articles and Books of Interest

From SSRN:

• Robert Eli Rosen, Samson the Judge: Religion and Violence in Milton's SAMSON AGONISTES, University of Miami Legal Studies Research Paper No. 2009-09, March 6, 2009).

From SmartCILP:

• Celine Abramschmitt, The Same-Sex Marriage Prohibition: Religious Morality, Social Science, and the Establishment Clause, 3 Florida International University Law Review 113-186 (2007).
• Mark W. Cordes, Religion as Speech: The Growing Role of Free Speech Jurisprudence in Protecting Religious Liberty, 38 Southwestern Law Review 235-286 (2008).
• Jay Michaelson, Chaos, Law, and God: The Religious Meanings of Homosexuality, 15 Michigan Journal of Gender & Law 41-119 (2008).
• Yuval Sinai, The Doctrine of Affirmative Defense in Civil Cases--Between Common Law and Jewish Law, 34 North Carolina Journal of International Law & Commercial Regulation 111-178 (2008).

Recent Books:

• Thomas F. Farr, World of Faith and Freedom: Why International Religious Liberty is Vital to American National Security, (Oxford Univ. Press, 2008).
• David Novak, In Defense of Religious Liberty, (ISI Books, 2009).
• Stephen Spector, Evangelicals and Israel: The Story of American Christian Zionism, (Oxford Univ. Press, Nov. 2008).

Connecticut Bill Would Reform Financial Management of Catholic Parishes

In Connecticut, the Catholic Church is strongly criticizing a bill introduced in the state legislature last week to reform oversight of finances in Catholic parishes. Yesterday's Stamford (CT) Advocate reports that Raised Bill No. 1098 (full text) was introduced in response to the conviction of a Darien (CT) priest who stole $1.4 million in donations over several years. Under the proposed bill, any Catholic parish organized as a religious corporation would be required to elect a lay board of between 7 and 13 members to manage and oversee its financial affairs. A nominee of the bishop or archbishop will serve as an ex-officio member of each parish board. The bill provides, however, that it shall not be construed to limit the power of the bishop or pastor in matters pertaining exclusively to religious tenets and practices. Complaining that the bill is an atttempt to interfere in the internal affairs of the Church, a statement by the Diocese of Bridgeport says in part:

This bill violates the First Amendment of the United States Constitution. It forces a radical reorganization of the legal, financial, and administrative structure of our parishes. This is contrary to the Apostolic nature of the Catholic Church because it disconnects parishes from their Pastors and their Bishop.... This bill, moreover, is a thinly-veiled attempt to silence the Catholic Church on the important issues of the day, such as same-sex marriage.

UPDATE: The Meriden (CT) Record and The Hour reported Tuesday that the bill has been withdrawn from consideration for this legislative session while constitutional issues surrounding laws currently governing religious groups are reviewed. Tuesday's scheduled hearing on the bill was cancelled.

UPDATE 2: Here is the full text of a letter sent by 12 prominent law professors challenging the constitutionality of the bill before it was withdrawn.

Connecticut Catholic Conference Wants Protections For Objectors To Same-Sex Marriage

On Friday, the Connecticut General Assembly's Joint Judiciary Committee held a hearing on Raised Senate Bill No. 899 that was introduced last month to implement the state Supreme Court's 2008 decision validating same-sex marriages. (Bill status.) (See prior posting.) The bill would recognize same-sex unions from other states and would merge Connecticut civil unions into marriages. One provision in the bill guaranties that clergy will not be required to solemnize same-sex marriages when doing so would violate their religious beliefs. According to Saturday's Hartford Courant, the Catholic Conference is asking the legislature to expand that provision to also protect individuals such as florists, wedding photographers and justices of the peace who refuse to be involved in same-sex wedding ceremonies.

9th Circuit: Treating Montana Church As Political Committee Violates Speech Rights

In Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, (9th Cir., Feb. 25, 2009), the U.S. 9th Circuit Court of Appeals held unconstitutional the application of Montana's campaign finance laws to a Church that engaged in limited activities in support of a 2004 constitutional initiative banning same-sex marriage. The Church advertised and hosted a one-time screening of a video in support of the amendment and made petitions available in its foyer for signing. The state Commission on Political Practices held that the Church should have registered as an incidental political committee, and complied with reporting requirements. (See prior posting.) The 9th Circuit, however, held that

the designation of the Church as an "incidental committee" because of its one-time, in-kind "expenditures" of de minimis economic effect violates the Church's First Amendment free speech rights.

The court also held that the Commission's interpretation of "in-kind expenditures" is unconstitutionally vague. Judge Noonan concurring argued that the case should have been decided on Free Exercise grounds. (See prior related posting.) Yesterday's Great Falls (MT) Tribune reported on the decision.

Op-Ed Suggests Compromise On Same-Sex Marriage

An op-ed in today's New York Times suggests an innovative compromise on the divisive issue of gay marriage. This is the crux of the proposal made by David Blankenhorn and Jonathan Rausch:

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

West Virginia Proponents of Marriage Amendment Create Controversy

In West Virginia, a group seeking to convince the legislature to propose a state constitutional amendment barring same-sex marriage has created controversy by a nearly 6-minute video it has posted on YouTube and on the WV 4Marriage website. At one point, the video shows a traditional family in the cross hairs of a rifle scope. The narrator says that activists are "working tirelessly to define marriage away from God's design" and says that same-sex marriage has created a crisis for the church. Yesterday's Times of West Virginia reports on the amendment efforts spearheaded by the Family Policy Council of West Virginia. A posting at Edge yesterday contains the video and discussion of further excerpts from it. Churches around the state will support the amendment efforts by participating in "Stand4Marriage Sunday" on March 1.

Christian College Student Sues Over Speech Prof's Treatment of His Presentation

On Wednesday, a student at Los Angeles City College filed a federal court lawsuit against a speech professor John Matteson, and against the trustees and various administrators at the College. The lawsuit revolves around a speech that plaintiff Jonathan Lopez delivered in class to fulfill an open-ended assignment for the course. His speech focused on his Christian beliefs including beliefs that marriage is a relationship between a man and a woman. Prof. Matteson had already made clear to the class that he was a supporter of same-sex marriage. Lopez believes that sharing his Christian beliefs is a religious duty.

The complaint Lopez v. Candaele, (CD CA, filed 2/11/2009) (full text) alleges that Prof. Matteson refused to permit Lopez to complete his speech, called him a "fascist bastard" and, instead of entering a grade on an evaluation sheet, wrote that Lopez should "ask God" for his grade. An appeal to the dean was unavailing. It led to threats of retaliation by Matteson and claims by administrators that Lopez was engaged in hate speech. The lawsuit challenges both the actions taken against Lopez and the College's speech code as violations of the 1st and 14th Amendments. Alliance Defense Fund issued a release yesterday reporting on the case and linking to additional background materials.

Proposed Nigerian Law Would Criminalize Clergy Performing Same-Sex Marriages

A press release yesterday from Amnesty International on behalf of several human rights groups expresses strong opposition to proposed legislation in Nigeria that would impose criminal penalties-- up to 3 years in prison-- on same-sex couples who marry. Existing Nigerian law already imposes up to 14 years in prison for consensual same-sex sexual activity. The proposed Same Gender Marriage (Prohibition) Bill 2008 would also impose a fine of US$14 and up to five years in prison on any person who "witnesses, abet and aids the solemnization of a same gender marriage." This would threaten with criminal sanctions a member of the clergy who conducts a same-sex marriage ceremony in Nigeria. Amnesty says this violates the International Covenant on Civil and Political Rights which Nigeria has signed. The bill would additionally impose a fine of up to US$340 on anyone who witnesses or aids and abets a same-sex marriage. This provision is apparently aimed at LGBT organizations and events.

Planned Defenses In Canadian Polygamy Case Disclosed

As previously reported, Canadian authorities in British Columbia have brought polygamy charges against two rival religious leaders in the town of Bountiful, home to polygamous religious communities, including the FLDS. Yesterday an AFP story outlined the defenses that attorneys say they will raise in the high-profile case. Blair Suffredine, lawyer for defendant Winston Blackmore, says he will argue that polygamy is protected under Canada's constitutional guarantee of freedom of religion, even though the Canadian Charter of Rights and Freedoms permits "reasonable limitations" on protected rights. He argues that if a man lived with ten women he did not marry, there would be no crime, and that there is not a societal interest in punishing so-called "celestial marriage" to multiple wives. He also says he will argue that since same-sex marriage is legal in Canada, polygamy should also be treated in the same way.

Episcopalian Schism Continues To Generate Litigation

Litigation involving break-away Episcopal congregations continues. In Milwaukee (WI), Episcopal Bishop Steven A. Miller says the Diocese will sue to retain the property of St. Edmund's Episcopal Church. Last month, the parish voted overwhelming to leave The Episcopal Church and affiliate with the more conservative Convocation of North American Anglicans. (Virtue Online, 1/8). St. Edmonds sent a strongly worded letter to Bishop Miller announcing their decision.

Meanwhile, according to Virtue Online (1/10), in Binghamton, NY a state trial court has ruled that the property of Church of the Good Shepherd belongs to the Episcopal Church, and not to the parish that broke away when the Diocese began to approve same-sex marriage. Yesterday's Modesto (CA) Bee analyzes why schisms in the Presbyterian Church have been less litigious than those among Episcopalians.

Huge Mass In Spain Opposes Government's Social Reforms

Reflecting its opposition to social reforms enacted and proposed by Spain's Socialist government, the Catholic Church yesterday held an open-air Mass in Madrid attended by hundreds of thousands. AFP reports that Pope Benedict XVI addressed the crowd from the Vatican on large screens set up in Plaza Colon. The Pope urged families not to allow distortion of family life, and the Archbishop of Madrid attacked the "cruelty"of abortion. Since 2004, the Spanish government has legalized same-sex marriage and created quicker divorce procedures. It is proposing a new law to offer greater protections to women who wish to obtain abortions and to their doctors.

Top 10 Church-State/ Free Exercise Stories of 2008

Again this year, I am publishing my nominations for the 2008 Top Ten Developments in Church-State Separation/ Free-Exercise of Religion. There were many potential nominees, so I invite your comments on these choices. I have focused not just on the attention which particular stories received, but also on the long-range implications of the developments selected. Religion Clause has posted numerous items on these developments over the past year. Links are to selections of the coverage:

1. Barack Obama reaches out to faith groups in the campaign and renounces his own pastor's statements.

2. The Mormon Church (Church of Jesus Christ of Latter Day Saints) gains widespread national attention after Mitt Romney seeks Republican nomination and LDS members are active in opposing California's Proposition 8.

3. Christians see increasing clash between religious freedom and push for both same-sex marriage and sexual orientation non-discrimination.

4. Regulations focus on clash between patient rights and conscience rights for pharmacists and health care workers.

5. Texas child protective services agency conducts high profile raid on compound of polygamous FLDS Church and takes children into temporary state custody.

6. IRS rules on church involvement in political campaigns increasingly invoked and challenged.

7. Church-state and free speech challenges to religious-themed license plates reach courts.

8. Turkey's ruling party challenged in Constitutional Court over secularism disputes.

9. 9th Circuit interprets RFRA in Navajo Nation v. U.S. Forest Service.

10. Massive Bernard Madoff fraud decimates numerous Jewish non-profits and philanthropists.

You may find it interesting to compare my picks with those of the Religious Newswriters Association and of Time Magazine.

British Marriage Registrar Loses Discrimination Appeal

In London Borough of Islington v. Ladele, (EAT, published Dec. 19, 2008), Britain's Employment Appeal Tribunal reversed a lower Tribunal's decision (see prior posting) and held 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. In a 47-page decision, the appellate tribunal said in part:

The claimant’s complaint on this score is not that she was treated differently from others; rather it was that she was not treated differently when she ought to have been.... That is a complaint about a failure to accommodate her difference, rather than a complaint that she is being discriminated against because of that difference....

[P]art of the commitment to the promotion of equal opportunities and fighting discrimination is that employees should not be permitted to refuse to provide services to the community for discriminatory reasons.... [R]equiring the staff to act in a non-discriminatory manner was entirely rationally connected with the legitimate objective....

The council were entitled to take the view that they were not willing to connive in that practice by relieving Ms Ladele of these duties, notwithstanding that her refusal was the result of her strong and genuinely held Christian beliefs. The council were entitled to take the view that this would be inconsistent with their strong commitment to the principles of nondiscrimination and would send the wrong message to staff and service users....

The claimant's beliefs were strong and genuine and not all of management treated them with the sensitivity which they might have done. However, we are satisfied that the Tribunal erred in finding that any of the grounds of discrimination was made out.

BBC News reported on the decision on Friday. The Christian Institute issued a release stating that claimant Lillian Ladele plans to appeal to the Court of Appeal.

Obama's Selection For Inauguration Invocation Creates Controversy

Barack Obama yesterday created one of the earliest controversies of his upcoming administration by inviting pastor Rick Warren, author of the popular book, The Purpose-Driven Life, to deliver the invocation at his inaugural. Warren is the founder of Lake Forest, California's Saddleback Church at which Obama and McCain held a candidate forum in August. CNN reports that the selection of Warren has particularly incensed gay rights supporters. Warren backed California's Proposition 8 banning same-sex marriage.

An Obama spokesperson defended the choice of Warren as an attempt to make the inauguration inclusive, even though Obama disagrees with Warren's views on gay rights. The Boston Globe says that "Warren has been a forceful advocate for reordering evangelical priorities.... [H]is public priority has been combating AIDS in Africa, and he has criticized the politicization of evangelical Protestantism." Dan Gilgoff of U.S. News says that this "is an early taste of the Democrats' post-election effort to reach evangelical Americans."

The benediction at the inauguration will be delivered by the 87-years old civil rights leader, Rev. Joseph E. Lowery, co-founder of the Southern Christian Leadership Conference. Yesterday's Atlanta Journal Constitution says that Yale poet Elizabeth Alexander will read a poem before Lowery's closing prayer. The Washington Post yesterday published the full schedule of the inauguration ceremony.

UPDATE: Here is an excerpt from a controversial Beliefnet interview with Pastor Rick Warren on the issue of gay marriage. Many opponents of Warren's participating in the inauguration point to language in this interview as being particularly insulting to gays and lesbians.

UPDATE2: AP reported on Sunday that Pastor Rick Warren defended the invitation extended to him to deliver the invocation at the Inaugural. In a speech to the Muslim Public Affairs Council annual convention in Long Beach (CA), Warren said that he loves people of other religions, of both political parties and he also loves "gays and straights."

Evangelical Lobbyist Resigns After Statement Supporting Gay Civil Unions

Richard Cizik has resigned as vice president for governmental affairs of the National Association of Evangelicals (NAE). Already under criticism from some of the evangelical community for his strong stance on global warming, Wednesday night's resignation came after Cizik told Terry Gross on on National Public Radio's Fresh Air that he now believes in civil unions for same-sex couples. He also expressed support for government programs that supply contraceptives to prevent unintended pregnancies. Christianity Today reports on developments. It also has the transcript of part of the NPR interview. NPR has a recording of the full program available on its website.

A statement issued yesterday by the NAE says: "in a December 2, 2008 broadcast interview on National Public Radio, Richard responded to questions and made statements that did not appropriately represent the values and convictions of NAE and our constituents. Although he has subsequently expressed regret, apologized and affirmed our values there is a loss of trust in his credibility as a spokesperson among leaders and constituents." Cizik was one of the signers of a New York Times ad earlier this month condemning violence against the LDS Church for its support of California's Proposition 8 banning same-sex marriage. (See prior posting.)

New Jersey Panel Recommends Permitting Same-Sex Marriage

The New Jersey Civil Union Review Commission yesterday submitted its final report titled The Legal, Medical, Economic & Social Consequences of New Jersey's Civil Union Law. The report recommends that the state legislature and Governor "expeditiously" change the law to permit same-sex couples to marry. A portion of the 79-page report discusses testimony in opposition to same-sex marriage. It states in part:

Some witnesses opposed to same-sex marriage testified concerning their understanding of the meaning and authority of Biblical scripture.... While the Commission also heard considerable testimony to the contrary, it is not the role of this Commission to comment on the merits of religious tenets or faiths of any of the witnesses who testified. This Commission recommends that the civil institution of marriage be extended to same-sex couples.

The Review Commission's website links to extensive background material, including transcripts of Commission hearings. An AP story discusses the Commission's report.