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.

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."