California Couple Refuses To Sign Gender-Neutral Marriage License

After the California Supreme Court earlier this year ruled that same-sex marriage is valid, the courts required the state to provide gender-neutral marriage license forms. So the words "bride" and "groom" are now replaced by "Party A" and "Party B". However, Roseville (CA) Pastor Doug Bird, of the Abundant Life Fellowship, is urging couples not to sign the new marriage forms. Yesterday's Sacramento Bee reports that one person following his advice is his daughter, who was recently been married at her father's church. The Placer County Clerk-Recorder Registrar of Voters office has refused to accept her marriage license for filing after she and her husband inserted "bride" and "groom" next to the language referring to Party A and B. Rachel Bird, who describes her stand as "personal-- not religious" has been unable to sign up on her husband's medical insurance since their marriage is not registered with the state. [Thanks to Scott Mange for the lead.] [Corrected].

California Prisons and Chaplains Deal With Same-Sex Marriage Ruling

AP reported yesterday that California prison officials are trying to determine the impact on prisons and prison chaplains of the California Supreme Court's ruling earlier this year legalizing same-sex marriage. The California Department of Corrections and Rehabilitation, in the midst of drafting new regulations on the subject, has decided that the same rules will apply that govern opposite-sex marriage. Inmates will be able to marry, but, for safety and security concerns, marriages between fellow inmates will not be allowed. Last year, California became the first state to allow conjugal visits and overnight stays for inmates with outside same-sex partners. Department lawyers also recommend that prison chaplains stop performing weddings for all inmates and leave that task to outsiders so chaplains who oppose same-sex marriage on religious grounds are not in the position of performing ceremonies only for some.

Recent Articles and Books of Interest

From SSRN:

• Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering, Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008.


• Josh Paul Davis & Joshua D. Rosenberg, The Immanent Structure of Free Speech Doctrine: Bong Hits, Jesus, and the Role of the Public Schools in Controlling Student Speech, (August 5, 2008).


• Christopher Scott Maravilla, The Diaspora Paradox: Integrating International Legal Norms into Domestic Law to Protect the Rights of Middle Eastern Diasporas (August 2, 2008).


• Malcolm Voyce, Buddhist 'Transgressions': The Violation of Rules by Buddhist Monks, Macquarie Law Working Paper No. 2008‐23 (June 17, 2008).

From SmartCILP:

• Diarmuid F. O'Scannlain, From Pierce to Smith: the Oregon Connection and Supreme Court Religion Jurisprudence, 86 Oregon Law Review 635-656 (2007).


• Jeffrey G. Sherman, Can Religious Influence Ever Be "Undue" Influence?, 73 Brooklyn Law Review 579-644 (2008).

New Books:

• Daniel Moeckli, Human Rights and Non-Discrimination in the "War on Terror", (Oxford University Press, Jan. 24, 2008), (Table of contents and introduction from SSRN).


• Douglas Laycock, Anthony R. Picarello, Jr. & Robin Fretwell Wilson (eds.), Same-Sex Marriage and Religious Liberty, (Rowman & Littlefield, August 28, 2008), reviewed in Becket Fund release.

British Registrar Wins Right To Refuse To Perform Civil Partnership Ceremonies

Times Online today reports on a decision by a British employment tribunal vindicating claims by civil marriage registrar Lillian Ladele who was "treated like a pariah" by fellow-emplyees after she refused on religious grounds to perform same-sex civil partnership ceremonies. The ruling said that Islington council wrongly "placed a greater value on the rights of the lesbian, gay, bisexual and transsexual community than it placed on the rights of Ms Ladele as one holding an orthodox Christian belief." It found that Ladele's colleagues created "an intimidating, hostile, degrading, humiliating or offensive environment" for Ladele. A further hearing on damages is scheduled for September. (See prior related posting.)

UPDATE: Here is the full text of the employment tribunal's decision in Ladele v. London Borough of Islingon. [Thanks to the Christian Institute for posting it and to the Anonymous comment to this post for the lead.]

UPDATE: The National Secular Society reported on July 18 that the Islington Council plans to appeal the employment tribunal ruling.

County Employees Will Not Be Forced To Perform Same-Sex Marriage Ceremonies

While the California Supreme Court has legalized same-sex marriage (see prior posting), San Diego county will not force objecting employees to perform same-sex ceremonies. Yesterday's San Diego Union-Tribune reports that County Assessor-Recorder-Clerk Greg Smith has told the 115 employees who are deputized to conduct ceremonies to inform him if they have objections. Smith says it would not be fair to same-sex couples to have their weddings performed by someone who objects to the ceremony. County Counsel says, however, that objecting employees must have "legitimate religious or moral reasons" for refusing.

British Registrar's Religious Discrimination Suit Heard By Tribunal

Today's London Mail reports that in Britain, a London employment tribunal yesterday heard arguments in a religious discrimination case brought by civil marriage registrar Lillian Ladele. Ladele says that the Islington council violated her rights when it insisted that in order for her to keep her position she would be required to perform civil partnership ceremonies for same-sex couples. Ladele, a Christian, claims that as a matter of religious principle she cannot perform the ceremonies. She told the hearing examiner that she was picked on and bullied on a daily basis at work.

Reactions To California Marriage Decision From Chief Justice and Religious Groups

Today's Los Angeles Times reports on its unusually candid interview with California Supreme Court Chief Justice Ronald M. George about the Court's ruling last week legalizing same-sex marriage. George told the paper: "there are times when doing the right thing means not playing it safe." Meanwhile today's San Jose Mercury News reports on the divided views about the decision among religious leaders of different faiths and denominations. Before the decision came down, a group known as ProtectMarriage.com already filed with the California Secretary of State petitions containing 1.1 million signatures to get a marriage amendment to the state constitution on the November ballot. The proposed amendment provides that only marriage between a man and a woman is valid or recognized in California. The Secretary of State is expected to announce in mid-June whether there are enough valid signatures for the measure to actually be placed on the ballot. Liberty Counsel announced Friday that it would file a motion with the California Supreme Court asking it to stay the effectiveness of its ruling until after the November vote on the marriage amendment.

California Supreme Court Rejects Gay Marriage Ban, But No Impact On Religious Doctrines

The California Supreme court today in a 4-3 decision ruled that under the California Constitution, same-sex couples have the same right to marry as do opposite-sex couples. In In re Marriage Cases, (CA Sup. Ct., May 15, 2008), the majority emphasized, however that "affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, § 4.)"

In reaching its decision on gay marriage, the court held that "sexual orientation [is] a characteristic that we conclude represents — like gender, race, and religion —a constitutionally suspect basis upon which to impose differential treatment...." In response to the argument that sexual orientation should not trigger strict scrutiny because it is not an "immutable" characteristic, the majority said that: "California cases establish that a person’s religion is a suspect classification for equal protection purposes ... and one’s religion, of course, is not immutable but is a matter over which an individual has control." Today's Los Angeles Times reports on the decision.

Here are links to the briefs and recordings of the oral arguments in the case.

Dutch Court Rejects Religious Objections of Marriage Registrars

In the Netherlands, the Equal Treatment Commission (CGB) ruled yesterday that the country's Equal Treatment Act is not violated when a municipality insists that applicants for the position of marriage registrar be willing to conduct same-sex marriage ceremonies as well as heterosexual ceremonies. NIS News says that the new ruling rejects arguments that religious objections to performing such ceremonies should be recognized. The CGB is an advisory court.

Obama Cites Sermon on Mount In Support of Civil Unions

Yesterday's Christian Post reports that Sen. Barack Obama created some consternation among evangelicals while campaigning in Ohio last Sunday. He cited Jesus' Sermon on the Mount to back his support for gay civil unions. Responding to a question from a local pastor, Obama said: "I believe in civil unions that allow a same-sex couple to visit each other in a hospital or transfer property to each other. I don't think it should be called marriage, but I think that it is a legal right that they should have that is recognized by the state. If people find that controversial, then I would just refer them to the Sermon on the Mount, which I think is, in my mind, for my faith, more central than an obscure passage in Romans." Commenting on Obama's position, Pastor John Barner, manager of pastoral care at Focus on the Family, said: "We believe isolated portions of Scripture should not be used to justify a personal preference or a social position that goes in a different direction than the overall message of Scripture."

Canada's Human Rights Commission Investigating Catholic Magazine

According to a release by Zenit on Tuesday, the Canadian Human Rights Commission is investigating the Canadian magazine, Catholic Insight, for publishing articles seen as offensive to gays and lesbians. A complaint filed by Rob Wells, a member of the Gay, Lesbian and Transgendered Pride Center of Edmonton, accuses the magazine of promoting "extreme hatred and contempt" against homosexuals. Catholic Insight editor Father Alphonse de Valk said some of the challenged statemets were from recent Vatican pronouncements. Others were political statements, medical studies, and news reports, a number of which focused on the campaign in Canada to legalize same-sex marriage.

Recent Articles and Books of Interest

From SSRN:

• Benjamin L. Berger, Moral Judgment, Criminal Law and the Constitutional Protection of Religion, (Supreme Court Law Review, Vol. 41, No. 2, 2008).


• Ira C. Lupu & Robert W. Tuttle, The Cross at College: Accommodation and Acknowledgment of Religion at Public Universities , (William & Mary Bill of Rights, Vol. 16, 2008).


• Frederick Mark Gedicks, Three Questions About Hybrid Rights and Religious Groups, (Yale Law Journal Pocket Part, Vol. 117, Forthcoming).

From SmartCILP:

• Patrick McKinley Brennan, The Contributions of Catholics to the Socio-Political Order, 56 Catholic University Law Review 1221-1235 (2007).


• Charles P. Kindregan, Jr., Religion, Polygamy, and Non-Traditional Families: Disparate Views On the Evolution of Marriage In History and In the Debate Over Same-Sex Unions, 41 Suffolk University Law Review 19-48 (2007).


• Samuel J. Levine, Reflections On Responsibilities In the Public Square, Through a Perspective of Jewish Tradition: A Brief Biblical Survey, 56 Catholic University Law Review 1203-1219 (2007).


• Gregory P. Magarian, The Jurisprudence of Colliding First Amendment Interests: From the Dead End of Neutrality to the Open Road of Participation-Enhancing Review, [Abstract], 83 Notre Dame Law Review 185-264 (2007).

The Journal of Law and Religion, Vol. XXIII, No. 1 (2007-08) has recently been published. It includes articles on Evangelicals and Politics, on the 60th Anniversary of the Everson Decision, and the AALS Jewish Law Section Papers.

Recent Books:

• Amy Sullivan, The Party Faithful: How and Why Democrats Are Closing the God Gap, (Scribner, Feb. 2008), (Reviewed by New York Times).
  
• E. J. Dionne Jr., Souled Out: Reclaiming Faith and Politics After the Religious Right, (Princeton University Press, Jan. 2008), (Reviewed by New York Times).
  
• Stephen Paine, A Crisis in America: An Urgent Message to My Fellow Americans, (Outskirts Press, Jan. 2008), (Review by Publisher).

In Spain, Church Is At Odds With PSOE Party As Elections Appoach

CNS News and the World Socialist Web Site today both report on the growing tensions in Spain between the Catholic Church and the country's ruling Spanish Socialist Workers Party (PSOE), as the country's March 9 elections approach. The Catholic Bishops have been attacking the PSOE's policies on abortion and same-sex marriage, as well as the government's dealings with the Basque separatist group ETA. Under Church pressure the PSOE has removed from its platform a call for extending aboirtion rights. Meanwhile, on January 30, the Spanish Bishops Conference issued a statement declaring that although: "Catholics may support and join different parties, it is also true that not all [electoral] programmes are equally compatible with the faith and Christian demands in life."

Watchdog Group Asks IRS To Investigate Funding of Texas Restoration Project

The Texas Freedom Nework has written the IRS (full text of letter) asking it to investigate whether the Niemoller Foundation, a 501(c)(3) organization, engaged in improper partisan political activity in 2005. In a press release yesterday, TFN said that the Foundation spent $1.26 million to fund the activities of the Texas Restoration Project. The Texas Restoration Project hosted thousands of pastors and their spouses at six "Pastors’ Policy Briefings", during which Governor Rick Perry, then seeking reelection, spoke. TFN charges that "speakers and organizers were enthusiastic in their praise for Gov. Perry at each of the events. They also encouraged pastors at the gatherings to mount voter registration drives and turn congregants out at the polls. The group's ostensible goal was to win voter approval in November 2005 for a state constitutional amendment barring same-sex marriage and civil unions. Those efforts, however, appear to have masked a sophisticated voter identification and mobilization strategy intended to benefit the Perry campaign in 2006..." Yesterday's Dallas News reports on developments and denials by the governor's office of any improper conduct.

Church and State Responses To Same-Sex Couples Continue To Evolve

As the debate over recognizing same-sex couples continues, both church groups and governmental bodies are responding in varied way. The AP today reports that in some liberal churches around the country-- such as some United Church of Christ congregations -- ministers have begun performing only religious marriage ceremonies. They refuse to act as agents of the state to sign civil marriage licenses so long as state law rejects same-sex marriage. Rev. Mark Wade, pastor of a Unitarian Universalist Church in Asheville, N.C., said that the move emphasizes the separation of church and state: "We tell couples to go to the magistrate. I felt I couldn't serve an unjust law." At the same time, in Massachusetts where same-sex marriage is recognized, some conservative pastors refuse to perform the civil portion of marriage ceremonies so that they are not pressured to officiate for same-sex couples.

Meanwhile, Toledo, Ohio yesterday became the largest city in the state to create a domestic partnership registry. Today's Toledo Blade reports that on its first day of operation, eight couples registered with the city as domestic partners. The city ordinance creates the registry for both same-sex and opposite-sex domestic partners. Toledo Mayor Carty Finkbeiner who signed the ordinance last month says that he is a "strong Christian believer" who does not advocate alternative lifestyles, but who does believe in minority rights and diversity. One of those who registered yesterday, Carol Bresnahan, vice provost at the University of Toledo, said that bigotry in the name of religious belief accounts for those who oppose the law. When the ordinance was passed last month, the Ohio's Gay People's Chronicle reported that there are 152 similar registries nationwide.

White House Threatens Veto of ENDA

Democratic leaders in the House of Representatives announced yesterday that they are postponing a vote on the Employment Non-Discrimination Act. (See prior posting.) The Washington Blade reports that differing reasons were given for the postponement. The announcement came several hours after the White House issued an interesting Statement of Administration Policy threatening a possible veto of ENDA:

H.R. 3685 is inconsistent with the right to the free exercise of religion as codified by Congress in the Religious Freedom Restoration Act (RFRA).... For instance, schools that are owned by or directed toward a particular religion are exempted by the bill; but those that emphasize religious principles broadly will find their religious liberties burdened by H.R. 3685.

A second concern is H.R. 3685’s authorization of Federal civil damage actions against State entities, which may violate States’ immunity under the Eleventh Amendment to the U.S. Constitution.

The bill turns on imprecise and subjective terms that would make interpretation, compliance, and enforcement extremely difficult. For instance, the bill establishes liability for acting on "perceived" sexual orientation, or "association" with individuals of a particular sexual orientation.... Provisions of this bill purport to give Federal statutory significance to same-sex marriage rights under State law. These provisions conflict with the Defense of Marriage Act, which defines marriage as the legal union between one man and one woman. The Administration strongly opposes any attempt to weaken this law, which is vital to defending the sanctity of marriage.

The White House concern about same-sex marriage stems from language in Section 8 of the Act: "An unlawful employment practice ... shall include [employment discrimination] ... that is conditioned, in a State in which a person cannot marry a person of the same sex, either on being married or being eligible to marry.

Recent Scholarly Articles of Interest

From SSRN:

• Robert W. McGee & Galina G. Preobragenskaya, The Ethics of Tax Evasion: An Empirical Study of Opinion in Kazakhstan, (October 2007).
  
• Hany Besada, Egypt's Constitutional Test: Averting the March Toward Islamic Fundamentalism, (CIGI Working Paper No. 28, August 2007).
  
• Edward J. Eberle, German Religious Freedoms: The Movement Toward Protection of Minorities, (Oregon Review of International Law, Forthcoming).
  
• Ian C. Bartrum, The Origins of Secular Public Education: The New York School Controversy, 1840-1842, (NYU Journal of Law & Liberty, Forthcoming).
  
• David A. Brennen, The Charitable Tax Exemption is About Much More than Efficiency, (2007).
  
• John Bernard Quigley, The International Court of Justice as a Forum for Genocide Cases, (Ohio State Public Law Working Paper No. 102, September 2007).

From SmartCILP and elsewhere:

• Russell Powell, Catharine MacKinnon May Not Be Enough: Legal Change and Religion in Catholic and Sunni Jurisprudence, 8 Georgetown Journal of Gender & Law 1-41 (2007).
  
• Roger Severino, "Or for Poorer?" How Same-Sex Marriage Threatens Religious Liberty, (Harvard Journal of Law & Public Policy, Vol. 30, pp. 939-82, 2007).

Amicus Says Upholding Gay Marriage In Iowa May Impact Churches

In Polk County, Iowa a suit is pending challenging the constitutionality of Iowa's Defense of Marriage Act. Six gay and lesbian couples have claimed that denying them marriage licenses violated the state constitution's equal protection and due process clauses. Yesterday's Iowa City Press-Citizen reported that an amicus brief filed in the case by the Becket Fund argues that recognizing same-sex marriage could lead to discrimination suits against religious institutions that refuse to extend employment benefits to such couples or which fire gay married employees to show church disapproval of such relationships. Such groups might also lose tax benefits or access to other government programs. The brief also raises the spectre of hate speech, incitement or conspiracy claims against preachers who have strongly denounced same-sex marriage if a congregant subsequently commits a hate crime against such a couple.

Recent Articles and Scholarship In Law and Religion

From SSRN:
Perry Dane, Exemptions for Religion Contained in Regulatory Statutes" . Encyclopedia of American Civil Liberties, Vol. 1, pp. 559-562 (2006).

Chaim Saiman, Legal Theology: The Turn to Conceptualism in Nineteenth-Century Jewish Law, Villanova Law/Public Policy Research Paper No. 2007-5.

From SmartCILP (mostly):
James Forman Jr., The Rise and Fall of School Vouchers: A Story of Religion, Race, and Politics (Abstract), 54 UCLA Law Review 547-604 (2007).

Kamran Hashemi, Religious Legal Traditions, Muslim States, and the Convention on the Rights of the Child: An Essay on the Relevant UN Documentation, 29 Human Rights Quarterly 194-227 (2007).

Thomas J. Paprocki, Marriage, Same-Sex Relationships, and the Catholic Church, 38 Loyola University Chicago Law Journal 247-264 (2007).

Theresa J. Pulley Radwan, Keeping the Faith: The Rights of Parishioners In Church Reorganizations, 82 Washington Law Review 75-120 (2007).

James A. Sonne, Firing Thoreau: Conscience and At-Will Employment, 9 University of Pennsylvania Journal of Labor & Employment Law 235-291 (2007).

Gerard V. Bradley, The Blaine Amendment: Harbinger of Secularism?, 8 Engage 138-143 (Feb. 2007).

Maine Bill Would Separate Clergy's Role In Marriages From Legal Recognition

A bill has been introduced into the Maine legislature that would separate the religious role of clergy in performing marriage ceremonies from the legal recognition of marriage. The bill, LD 779, titled An Act to Remove Clergy as Signatories on Marriage Licenses, was introduced by a legislator on behalf of Rev. Mark Rustin, a Congregationalist minister, who says that he does not want to be an agent for the state of Maine. The bill calls for the legal aspect of the marriage contract to be carried out by lawyers, justices, judges or notaries. Today's Village Soup Times reports that Rev. Rustin is concerned that the present role of clergy places them in a difficult position when they need help a couple get through a divorce. Also, he said, that sometimes older couples want the clergy’s blessing to live together, but do not want a legal marriage contract because they will then lose Social Security benefits. Some people think the bill will also impact the issue of same-sex marriages.