Times Ad Condemns Violence Against LDS Church For Its Prop 8 Support

A full-page ad titled "No Mob Veto" (full text) ran in today's New York Times. The ad condemns the "violence and intimidation" being directed at the Mormon Church by reason of its support of California's Proposition 8 that banned same-sex marriage. (See prior posting.) Coordinated by the Becket Fund, the ad is signed by thirteen prominent religious, academic and human rights leaders. The ad indicates that the signers have different views on the "wisdom and justice" of Proposition 8, but agree on their opposition to anti-religious bigotry and violence. Signers included individuals with Evangelical, Catholic and Jewish organizational affiliations.

In a press release on the ad, Interfaith Alliance President C. Welton Gaddy said: "I am pleased to see the newfound commitment of some of my friends on the right to fight against anti-religious bigotry and violence against houses of worship.... [However] I do wonder if the signers will be willing to spend tens-of-thousands of dollars along with their prestige the next time a primarily gay congregation’s legitimacy is called in to question, or a mosque is targeted for harassment." Towleroad blog has additional background on the ad.

North American Conservative Anglicans Create New Church Province

Over the last several years, courts in the United States and Canada have faced numerous lawsuits involving congregations and dioceses that have broken away from the Episcopal Church or the Anglican Church of Canada. The break-away congregations are more conservative and take issue with the parent Churches' policies on issues such as same-sex marriage, ordination of women and ordination of gay clergy. Yesterday these conservatives announced the formation of the Anglican Church in North America, a competing national Province still claiming to be part of the Anglican Communion. Yesterday's San Francisco Chronicle, reporting on developments, says that it is unprecedented for an Anglican national Province to be created where any other such national church already exists. However the new Province has the support of archbishops in three African countries and Argentina. The new Anglican Church in North America must still adopt a constitution and elect leaders. A Provisional Constitution and Provisional Canons have been published.

UPDATE: Episcopal News Service reported Thursday on a statement from the London office of the Archbishop of Canterbury on the proposed new Anglican province in North America. It said in part: "There are clear guidelines..., notably [Anglican Consultative Council] resolution 12, detailing the steps necessary for ... the creation of new provinces.... Once begun, any of these processes will take years to complete. In relation to the recent announcement from the meeting of the Common Cause Partnership in Chicago, the process has not yet begun."

Canadian Marriage Commissioner Sues Province Over Same-Sex Marriage Mandate

In Canada last May, the Saskatchewan Human Rights Tribunal held that government marriage commissioner Orville Nichols may not discriminate against same-sex couples in performing civil marriages. (See prior posting.) Not only is Nichols appealing the Tribunal's adverse decision but, according to the Regina Leader-Post, he also filed a separate suit last Monday against the government seeking to force a change in the rules that he says infringe his free exercise of religion. Saskatchewan Party Justice Minister Don Morgan said he would have preferred to grandfather in existing commissioners who had religious objections to performing same-sex marriages, but now that the Human Rights Tribunal has spoken the government must support its ruling. Morgan, however, has written all commissioners to tell them that they do have the option to surrender their civil marriage certificate and obtain only a certificate allowing them to perform religious marriages.

Recent Articles and Books of Interest

SSRN:

• Sylvie Bacquet, School Uniforms, Religious Symbols and The Human Rights Act 1998: The 'Purity Ring' Case, (Education Law Journal, 2008).
• Ehsan Zar Rokh & M. Rahman Gaeini, Iranian Legal System and Human Rights Protection,(November 20, 2008).
• Jack Lee Sammons, A Rhetorician's View of Religious Speech in Civic Argument, (Seattle University Law Review, Vol. 32, p. 367, 2008).
• Andrew F. March, Reading Tariq Ramadan: Political Liberalism, Islam, and 'Overlapping Consensus', (Ethics & International Affairs, Vol. 21, No. 4, pp. 399-413, Winter 2007).
• Richard W. Garnett, 'Excluding Religion': A Response, (University of Pennsylvania Law Review PENNUMBRA, Forthcoming).
• Robert K. Vischer, The Best Interests of the Child: Modern Lessons from the Christian Traditions, (THE VOCATION OF THE CHILD, P. Brennan, ed., Eerdmans, 2008; U of St. Thomas Legal Studies Research Paper No. 08-34).

SmartCILP and Other:

• Thomas M. Messner, Same-Sex Marriage and the Threat to Religious Liberty, (Backgrounder, Oct. 30, 2008).
• Jennifer E. Spreng, Conscientious Objectors Behind the Counter: Statutory Defenses to Tort Liability for Failure to Dispense Contraceptives, 1 St. Louis University Journal of Health Law & Policy 337-403 (2008).
• Geoffrey R. Stone, Melville B. Nimmer Memorial Lecture. The World of the Framers: A Christian Nation?, 56 UCLA Law Review 1-26 (2008).
• Roy Whitehead, Jr., Walter Block & Patrick C. Tinsley, Christian Landlords and the Free Exercise Clause: An Economic and Philosophical Analysis of Discrimination, 33 Oklahoma City University Law Review 115-150 (2008).

New Books:

• Kent Greenawalt, Religion and the Constitution: Volume 2: Establishment and Fairness, (Princeton Univ. Press, Nov. 2008).
• David Novak, In Defense of Religious Liberty, (ISI Books, Jan. 2009).
• Peter A. Lilliback, Wall of Misconception, (Providence Forum Press, 2008).
• Stephen Miller, The Peculiar Life of Sundays, (Harvard Univ. Press, Nov. 2008), reviewed in the Toronto Star.

ADL Covers A Range of Issues at Meeting Marking 95th Year

In a release issued Friday, the Anti-Defamation League summarized the proceedings of its annual meeting held earlier this month in Los Angeles. The ADL marks its 95th birthday this year. In the keynote address, ADL director Abraham Foxman reported that in the wake of the country's financial crisis, anti-Semitic conspiracy theories are spreading on the Internet. Separately, the ADL released a new poll showing that a majority of Americans believe that religious values are under attack in the U.S., but there has been a decline in concern about racial tensions. Finally the ADL adopted a resolution on religious accommodation in the workplace, favoring it if it does not infringe others' rights or create undue employer burdens. The resolution opposed "policies or laws that permit a pharmacist to interfere with the physician-patient relationship by refusing to fill prescriptions without simultaneously offering a referral source to the patient so that his or her medication can be promptly and timely obtained..." Also it opposed excusing government officials, in states where same-sex marriage is legal, from issuing licenses or performing civil ceremonies unless there is immediate access to another employee who will do so.

A Review of Same-Sex Marriage Developments In Connecticut

In the widespread coverage of the battle over gay marriage in California, less attention has been given to a decision by the Connecticut Supreme Court last month holding that limiting same-sex couples to civil unions, instead of marriage, violates the equal protection guarantees of the Connecticut state Constitution. An article in this week’s Yale Herald titled Gay Couples Marry as Campus Christians Sit Silent is occasion to look more closely at developments in Connecticut.

In Kerrigan v. Commissioner of Public Health, (CT Sup Ct, Oct. 10, 2008) (majority, dissents 1, 2, 3), the court, in a 4-3 decision, applied intermediate scrutiny to strike down Connecticut's statutory scheme barring same-sex marriage. Opponents then supported a proposal that is automatically on the November ballot every 20 years to call a state constitutional convention. [corrected]. The convention could have potentially proposed a constitutional amendment to overturn the court's decision. However, that proposal was overwhelmingly defeated at the polls earlier this month.

Of particular interest is the analysis by the majority in the Kerrigan case concluding that sexual orientation is a quasi-suspect classification that triggers heightened scrutiny. One part of the test for a quasi-suspect class is its "political powerlessness." As the court explained:

a group satisfies the political powerlessness factor if it demonstrates that, because of the pervasive and sustained nature of the discrimination that its members have suffered, there is a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process.

Interestingly, the court then went on to, in part, rely on the strong religious opposition to homosexual activity as evidence of the political powerlessness of gays and lesbians. The court said:

Feelings and beliefs predicated on such profound religious and moral principles are likely to be enduring, and persons and groups adhering to those views undoubtedly will continue to exert influence over public policy makers.

The court then added in a footnote (fn. 37):

Of course we do not suggest that there is anything untoward or improper about such efforts to mold public policy or opinion, for such activity lies at the core of our democratic system. Nor do we equate religious beliefs with prejudice. Our point is simply that gay persons face steep, if not insurmountable, hurdles in changing or even modifying deeply held beliefs that their manner of sexual intimacy is morally unacceptable.

California Supreme Court Will Hear Challenges To Proposition 8

The California Supreme Court yesterday agreed to accept original jurisdiction over challenges to voter approval of Proposition 8, the ballot measure that bans same-sex marriage. (Judicial Council press release.) Yesterday's Los Angeles Times reports on the court's action. The cryptic two-page order issued by the Supreme Court (full text) actually covers a good deal of ground. It agrees to hear three of the six cases filed challenging the validity of Proposition 8. It permits the official proponents of the ballot issue to intervene as a party. In the order, the Court agreed (over one dissent) to decide whether Proposition 8 is a "revision" rather than an "amendment" to California's Constitution. The Proposition was passed under procedures for amendments. The Court will also decide whether Proposition 8 violates the separation of powers doctrine under California's constitution. In addition, if the court decides that Proposition 8 is valid, it will determine its effect on pre-existing gay marriages performed in California.

Finally, the court (over one dissent) refused to stay the operation of Proposition 8 pending the court's decision in the matter. A release by ProtectMarriage.com called denial of the requested stay the most significant part of the order. It is unclear what the court will do as to three other challenges that have been filed, including one by a number of religious groups. (See prior posting.)

Meanwhile, other countries are facing legal issues involving gay marriage. Jurist reported yesterday that the Supreme Court of Nepal has ordered an end to government discrimination based on sexual orientation. It has told the government to draft legislation permitting same-sex partnership and marriage. This follows a decision last year by the Court holding that sexual minorities should be granted equal rights.

UPDATE: The Los Angeles Times reported Wednesday that Proposition 8 supporters are considering the possiblility of a recall campaign aimed at California Supreme Court justices who vote to invalidate the approval of Proposition 8.

UPDATE: All orders, pleadings and briefs in the Proposition 8 challenges are posted on a special page on the Supreme Court's website.

Religious Groups Ask California Supreme Court To Void Proposition 8

Yesterday the California Council of Churches along with a number of liberal Protestant and Jewish groups filed a "Petition for Writ of Mandate or Prohibition" (full text) with the California Supreme Court seeking to prevent enforcement of Proposition 8 that was approved by voters earlier this month. (Press release). The petition alleges that the state constitutional amendment barring same-sex marriage was adopted using improper procedures. California's constitution (Art. XVIII) has stricter requirements for constitutional "revisions" than it does for "amendments." Only amendments can be adopted through the initiative process-- the route used for Proposition 8. Revisions require a two-thirds vote of the legislature before being submitted to voters. The Petition filed with the Supreme Court reads in part:

The religious institutions that file this petition ... count on article XVIII to ensure that the California Constitution's guarantee of equal protection for religious minorities cannot be taken away without a deliberative process of the utmost care possible in a representative democracy. If Proposition 8 is upheld, however, the assurance will disappear-- for, just as surely as gay men and lesbians could be deprived of equal protection by a simple majority vote, so too could religious minorities be deprived of equal protection-- a terrible irony in a nation founded by people who emigrated to escape religious persecution.

Six separate legal challenges to Proposition 8 have been filed with the California Supreme Court. (San Jose Mercury News, Nov. 17). [Thanks to Don Clark for the lead.]

Focus Continues on Mormon Leadership of Proposition 8 Campaign

The AP reports that Fred Karger, founder of Californians Against Hate, filed a complaint Thursday with the California Fair Political Practices Commission. It alleges that the Church of Jesus Christ of Latter-day Saints failed to report the full value of its in-kind contributions to the campaign in support of California's Proposition 8 banning same-sex marriage. Meanwhile today's New York Times ran an article detailing the extensive funding and volunteer efforts by members of the Mormon Church in the campaign for Proposition 8. Leaders were careful to keep the activities volunteer ones that did not formally involve the Church. But, according to the Times, "Proposition 8, was to many Mormons a kind of firewall to be held at all costs." (See prior posting.) [Thanks to Alliance Alert for the lead.]

Study Released On State Anti-Discrimination Laws and Same-Sex Marriage

Earlier this week, the Becket Fund announced the release of a study titled Same-Sex Marriage and State Anti-Discrimination Laws. The Executive Summary says in part:

The survey revealed that over 350 separate state anti-discrimination provisions would likely be triggered by recognition of same-sex marriage.... Based on this data, we conclude that if same-sex marriage is recognized by courts or legislatures, people and institutions who have conscientious objections to facilitating same-sex marriage will likely be sued under existing anti-discrimination laws—laws never intended for that purpose. Lawsuits will likely arise when religious people or religious organizations choose, based on their sincerely held religious beliefs, not to hire individuals in same-sex marriages, refuse to extend spousal benefits to same-sex spouses, refuse to make their property or services available for same-sex marriage ceremonies or other events affirming same-sex marriage, or refuse to provide otherwise available housing to same-sex couples.

The study recommended that states "ensure that any recognition of same-sex marriage is preceded by robust exemptions to anti-discrimination rules." Along with the report, the Becket Fund published a useful chart on existing religious exemptions to anti-discrimination laws, by state.

California Catholic Bishops Defend Passage of Proposition 8

The Executive Committee of the California Catholic Conference yesterday issued statement defending its support of California's Proposition 8 banning same-sex marriage. The ballot measure passed last Tuesday, and its passage has generated continued controversy. The statement said in part:

The radical change in the definition of marriage to include same-sex partners discounts both history and biology and ignores how deeply marriage—as the union of a man and a woman—is embedded in our culture, language, and laws and how foundational it is for the well-being of children and the flourishing of society. To change the definition of marriage to include any two adults diminishes the institution to mean only a legal partnership.

Under present law domestic partners continue to have the rights and benefits of married couples in the State of California. It is our conviction that it is not necessary to change the definition of marriage to protect those rights and benefits.

California Same-Sex Marriage Backers Protest Against Mormon Church

Angry that California's Proposition 8 banning same-sex marriage passed, on Thursday some 2000 protesters demonstrated outside the Mormon Temple in Los Angeles. The Mormon Church was particularly active in campaigning for passage of the ballot measure. (See prior posting.) Reporting on the demonstrations, Britain's Independent says that a public relations war against the Mormon church is planned, with demonstrations likely across California, including during Mormon services today. A report on Thursday's demonstration from LifeSiteNews says one protester urged taxing the Mormon church and others carried signs with slogans such as: "Don't teach hate" and "Mormons have 10 wives - I can't have one?" Some argue that the LDS church and other religious groups violated principles of church-state separation by backing Tuesday's ballot measure. However the Episcopal church in California supports same-sex marriage and says it will continue to work to validate it.

Beyond California, on Friday, according to the New York Times, a rally and march around the headquarters of the Mormon church took place in Salt Lake City (UT). Speaking at the rally, Utah State Senator Scott D. McCoy, one of three openly gay Utah legislators, told the crowd of 2000: "The way to deal with this problem is to love more, not hate."

Meanwhile today's Los Angeles Times reports on more general protests around California over the passage of proposition 8.

UPDATE: On Nov. 7, The LDS Church issued a statement decrying the protests against it, saying "it is wrong to target the Church and its sacred places of worship for being part of the democratic process." The Roman Catholic diocese of Sacramento also issued a statement, saying: "Bigoted attacks on Mormons for the part they played in our coalition are shameful and ignore the reality that Mormon voters were only a small part of the groundswell that supported Proposition 8."

Advocacy Groups Have Varied Reactions To Tuesday's Election Results

The reactions to Tuesday's election results from advocacy groups have, not surprisingly, run the gamut. Americans United yesterday issued an election analysis titled "The Religious Right and Election 2008: Down But Not Out." It warned:

After eight years of unprecedented access to the White House and (until 2006) in the halls of Congress, Religious Right organizations are about to lose a lot of clout with much of official Washington and could see their influence at the national level diminished. But it’s unlikely any of these organizations will close down. Rather, they will organize to defeat individual-freedom initiatives put forward by President Barack Obama, and they will place more emphasis on state and local governments as a way to press their agenda forward.

Yesterday's Christian Post reported that Christian groups had varied reactions to Obama's win. The National Council of Churches USA issued a statement congratulating Obama and promising to work with him "to respond to the realities that a loving God places before us each day." Looking in a different direction, Focus on the Family took heart in the fact that Democrats failed to win the veto-proof 60 seats in the Senate. They were also encouraged by the passage of anti-gay marriage amendments in three states. The group said that these results "give values voters reason to stay tuned to development on Capitol Hill."

Yesterday's New York Times reports similarly that the approval of the bans on gay marriage, along with passage in Arkansas of a provision intended to bar gays and lesbians from adopting children, were "a stunning victory for religious conservatives, who had little else to celebrate on an Election Day." It points out that California will still be able to offer civil unions to same-sex couples.

Ballot Measure Results: Issues on Gay Marriage, Abortion and Stem Cells [UPDATED]

In yesterday's election, six ballot measures were of particular interest to some religious groups. In 3 states, bans on gay marriage were approved. In two states, abortion restrictions were defeated. In Michigan final results show passage of a proposed expansion of permitted stem cell research. The Secretary of State's website this morning is reporting different results than are tne news media:

• California's Proposition 8 banning same sex marriage passed by nearly 52% with most votes counted.
• Florida Marriage Amendment banning same-sex marriage passed by 62%.
• Arizona Proposition 102 banning same-sex marriage passed by 56.5%.
• Michigan proposal 08-102 to permit human and embryonic stem cell research, subject to various restrictions, passed by a 53% vote (99% of precincts reporting) according to reports by CNN and the Detroit Free Press . Earlier returns from the Secretary of State's office showing different results are just now being updated by that office.
• South Dakota's Initiated Measure 11 to prohibit abortions except where there is risk to life or substantial and irreversible health risk, or reported rape or incest, defeated by a 55% vote.
• Colorado Amendment 48 defining "person" to include any human being from the moment of fertilization, defeated by 73% (with 87% of precincts reporting) (CNN report).

See prior posting for links to texts of the ballot measures.

UPDATE: Also of relevance is the passage by an almost 57% vote (89% of counties reporting) of a ballot measure in Arkansas prohibiting adoptions or foster parenting by unmarried couples. Its backers were primarily concerned with barring adoptions by same-sex couples, though the amendment also covers heterosexual couples.

Ballot Measures In 6 States Watched By Religious Groups

At least six states on Tuesday have ballot measures that are being watched by religious groups. Here they are, along with links to the official ballot language for each proposal:

• Florida- Proposal 2- Marriage Protection Amendment.
• California- Proposition 8- Initiative to Eliminate Right of Same-Sex Couples to Marry.
• Arizona- Proposition 102- Constitutional Amendment Relating to Marriage.
• Michigan- Proposal 08-12- Proposed Constitutional Amendment on Human Embryo and Embryonic Stem Cell Research.
• South Dakota- Initiated Measure 11- To Prohibit Abortions Except in Cases Where the Mother's Life or Health Is At a Substantial and Irreversible Risk, and In Cases of Reported Rape and Incest.
• Colorado- Amendment 48- Definition of Person.

Saturday's American Chronicle has a report on ballot measures around the country.

Rector's Suit Against Bishop Opens In Pennsylvania Today

Today's Philadelphia Inquirer reports on an unusual trial that begins today in a Pennsylvania state trial court. Rev. David Moyer, former rector of Good Shepherd Episcopal parish in Rosemont (PA), is suing Episcopal Bishop Charles E. Bennison Jr. for fraud and deception allegedly used to remove Moyer as a priest six years ago. Moyer is a conservative, opposed to same-sex marriage and ordination of gays and women. Moyer and several other conservative rectors barred the liberal Bishop Bennison from preaching or administering sacraments in their parishes, arguing that Bennison's views on homosexuality were unbiblical and close to heresy. In response, Bennison "inhibited" Moyer, and in 2002 removed him, and denied him a church trial on the removal saying that Moyer had "broken communion" with the Episcopal Church by accepting (and then refusing) appointment as a bishop in the conservative Anglican Church in America. While civil courts usually refuse to adjudicate these kinds of internal church determinations, Common Pleas Court Judge Thomas Branca held otherwise last year after Moyer argued that he lacked other remedies since he had been improperly denied a church trial.

Meanwhile Bennison himself is facing possible removal on charges that 30 years ago he failed to take action and concealed information when his older brother John--then a youth minister-- sexually abused a teenage girl in his parish. [Thanks to James Maule via Religionlaw for the lead.]

UPDATE: As the trial reached its third day on Wednesday, Bennison's lawyers asked the court to dismiss the case on First Amendment grounds. Judge Joseph Smyth who is presiding at trial said that perhaps the case does not belong in civil court, but decided that he should honor the rulings to the contrary by Judge Thomas Branca and complete the trial. According to the Philadelphia Inquirer, Smyth said he anticipated important appellate issues would be raised.

California's Proposition 8 Pushed By Religious Groups, Especially Mormons

California's Proposition 8 on the ballot in November aims to overturn the California Supreme Court's recognition of same-sex marriage. (See prior posting.) Yesterday's News Blaze carries a long article about the involvement of religious organizations-- and particularly the Mormon Church-- in support of Proposition 8. Calls are being made into California by out-of-state Mormons, such as a group in Rexburg, Idaho. LDS volunteers are also going door-to-door in support in California. The article goes on to report on funding for the Proposition 8 campaign:

Proposition 8 has exploded into the most expensive, extensive gay-marriage battle ever. The forces pushing it include all the Mormons who've made individual campaign donations totaling more than $9 million (more than 40 percent of the war chest...). Conservative Catholics, including the Knights of Columbus, have kicked in more than $1 million. Other notable backers include Dobson's Focus on the Family (about $500,000), a wealthy board member of that group ($450,000), an Orthodox Jewish group based in New York City, evangelical groups from all over, miscellaneous Baptists and Muslims and Sikhs, the National Organization for Marriage (about $950,000), the American Family Association ($500,000), a couple of right-wing foundations ($1.5 million), and countless Republicans who don't necessarily belong to any of the other groups.

Federal Court Rejects 1st Amendment Challenge To CA Gay Marriage Holding

In Wooten v. California, 2008 U.S. Dist. LEXIS 79078 (ED CA, Oct. 3, 2008), a California federal district court rejected claims by a pro se plaintiff that the California Supreme Court violated the federal Constitution's Free Exercise and Establishment clauses when it legalized same-sex marriage in the state. (See prior posting.) The court concluded that the state court’s ruling did not interfere with plaintiff's right to preach whatever he wishes about same –sex marriage. Nor did the decision elevate one religious view over another.

California Brings Back "Bride" and "Groom" On Marriage Licenses

As previously reported, some in California are objecting to the current form of California's marriage licenses. In order to take account of now-recognized same-sex marriages, the forms merely identify the parties to be married as Party A and Party B. In response, the California Department of Public Health last week announced a change. Effective November 17, new forms will be used. They will call for information about the "First Person" and "Second Person" applying for the license. In addition, optional boxes will be available that can be checked to identify the applicants as "Bride" and "Groom". Yesterday, the AP reported on the change. [Thanks to Alliance Alert for the lead.]

Feds Raid Arkansas Church Headquarters In Child Pornography Investigation

In southwest Arkansas yesterday, federal authorities raided the 15-acre compound housing the Tony Alamo Christian Ministries. The Associated Press reports that the raid was part of a child pornography investigation. Social workers are talking with children who live at the complex located in the town of Fouke. In a phone call with the AP, Alamo said: "Where do these allegations stem from? The anti-Christ government. The Catholics don't like me because I have cut their congregation in half. They hate true Christianity." He argues that the raid is part of an effort by the federal government to make same-sex marriage legal while outlawing polygamy. He believes polygamy is permitted by the Bible, and that "anything that is in the Bible is law." He also says that in sexual matters, "consent is puberty".