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.

Canadian Marriage Commissioner Charged For Refusing To Perform Gay Marriage

In Regina, Saskatchewan yesterday the Saskatchewan Human Rights Tribunal held a hearing on a discrimination complaint against one of the Canadian province's marriage commissioners who refused to perform a same-sex wedding ceremony on religious grounds. Canadian Press yesterday reported on the hearing. A lawyer for the Saskatchewan Human Rights Commission said that marriage commissioners are required by law to provide civil wedding services for gay couples since same-sex marriage has been legalized in the province. However Orville Nichols, a devout Baptist, said he would have never taken the position as a marriage commissioner if at the time he was appointed there had been a requirement that he perform same-sex marriages.

Liberal Clergy Question Goal Of Proposed New Hampshire Bill On Marriages

In New Hampshire, House Bill 69 recently introduced into the legislature may interfere with the right of liberal clergy to perform religious wedding ceremonies for same-sex couples. Yesterday's Concord Monitor says, however, that the the bill's sponsor, Republican Representative Daniel Itse, denies that this is the bill's goal. He says it is aimed at strengthening separation of church and state and is neutral on the issue of same-sex ceremonies.

The bill would amend RSA 457.37 that currently exempts some religious officials from obtaining licenses to perform marriages. The amended statute would read: "Nothing contained in this chapter shall affect the right of ... religious officiants authorized by their church, religion, sect, or denomination to solemnize marriages in the way usually practiced among them, and all marriages so solemnized shall be valid unless proscribed by RSA 457:1 or RSA 457:2". Sections 457:1 and 2 prohibit, among other things, same-sex marriages.

Reform Rabbi Richard Klein of Temple Beth Jacob in Concord says the bill is a response to the growing practice among liberal clerics to stop asking for licenses from couples, gay or straight, who seek religious marriages. He fears that the statute implies some kind penalty-- such as loss of the right to perform any marriages-- for clergy who perform same-sex marriage ceremonies. He says that interferes with freedom of religion. Rev. Jed Rardin, pastor of South Congregational Church in Concord, says he officiates at marriage ceremonies for same-sex couples even though they are not legally recognized.

New Articles and Book On Religion and Law

From SSRN:
Jaynie R. Randall, Sundays Excepted: Originalism, the Blue Laws, and the Christian Nation, (Dec. 2006).

Nicholas Aroney, The Constitutional (In)Validity of Religious Vilification Laws: Implications for Their Interpretation, (Federal Law Review, Vol. 34, p. 287, 2006 ).

David Burnett, Atheism and the Courts, (May 2006).

From SmartCILP:
Decisions and Families: A Symposium on Polygamy, Same-Sex Marriage, and Medical Decision Making. Articles by Armand H. Matheny Antommaria, John E.B. Myers, Elizabeth B. Cooper, Christine Talbot and Irwin Altman. 8 Journal of Law & Family Studies 293-394 (2006).

New Book:
Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts, (Cambridge University Press, 2006) (Abstract).

Minister Uses Invocation To Lobby Against Civil Union Bill

What are the appropriate limits on the content of an invocation opening a legislative session? The Newark Star-Ledger yesterday reported that Rev. Vincent Fields, pastor of Greater Works Ministries, offered a controversial prayer at the opening of the New Jersey Senate on Monday. Just as the Senate's Judiciary Committee approved legislation to allow gays and lesbians to form civil unions with the same rights as married couples, the minister in his invocation said: "We curse the spirit that would come to bring about same-sex marriage." Sen. Loretta Weinberg, sponsor of the civil union bill, said that it is inappropriate to use the invocation to lobby for or against legislation.

UPDATE: New Jersey Senate President Richard Codey said that Rev. Fields will not be invited back to deliver an invocation. In the past, Fields has also been criticized for not keeping his invocations non-sectarian. (Newark Star-Ledger, Dec. 13.)

Seminarian Wins Preliminary Injunction Permitting Picketing of Wal-Mart

Yesterday's Shreveport Times reported that on Monday a Louisiana federal district court granted a preliminary injunction barring the enforcement of three Natchitoches, LA ordinances against Edwin Crayton, a Christian seminary student who opposes gay marriage on religious grounds. Crayton wished to picket a Wal-Mart store in Natchitoches, believing that Wal-Mart supports gay marriage rights. However he was told that he needed a permit from the mayor and police chief in order to protest on a public sidewalk in front of the store. His lawsuit alleges (full text of complaint) that the city's permit ordinances are unconstitutional because they grant excessive discretion to the mayor and police chief, they are not narrowly tailored to further a legitimate governmental interest, and, in any event, he did not engage in a public gathering or open-air meeting-- the activities covered by the ordinances. The case is Crayton v. City of Natchitoches, Civ. Action No. 06-1946-A (WD LA, Nov. 13, 2006).

Today's 365 Gay reports that other Christian groups have also criticized Wal-Mart's LGBT diversity program, including its definition of an employee's "immediate family" to include a same-sex partner.

South Africa's National Assembly Approves Gay Marriage Over Religious Objections

South Africa's National Assembly today approved by a vote of 230-41 (with 3 abstentions) a controversial Civil Unions Bill that would make the country the first in Africa to approve same-sex marriage. The bill permits marriage officials to refuse to perform a same-sex marriage ceremony on religious or personal grounds. (Voice of America).

African Christian Democratic Party leader Kenneth Meshoe condemned the action in religious terms. The Mail & Guardian reports that he called the passage of the bill the saddest day in Parliament's history. He said that God considered homosexuality "an abomination". He warned that voting in favor of same-sex marriage was a rejection of God's laws, and said that MPs who did so would face divine wrath. The National Council of Provinces also needs to approve the Bill for it to become effective. Last year, South Africa's Constitutional Court ruled that the 1996 Constitution's prohibition on sexual orientation discrimination guarantees the right of gay men and lesbians to marry. The court gave the government until December 1 to extend marital rights to all same-sex couples.

Reconstructionist Rabbis Support NJ Gay Marriage Law

The Reconstructionist Movement in Judaism has supported gay marriage since the 1980's. This week, the New Jersey Jewish Standard interviews Reconstructionist rabbis on the issue as New Jersey's legislature decides how to respond to a recent state Supreme Court decision requiring legislative action to extend equal rights to gay couples. These rabbis say that currently, by prohibiting same-sex marriages, the state legislature is interfering with their religious right to perform marriages in accord with their beliefs. The Reform Movement in Judaism leaves the decision of whether or not to perform same-sex marriages up to individual rabbis. The Conservative and Orthodox movements have not accepted same-sex marriages.

Sexual Charges Against Evangelical Leader Have Political Implications

Today's Washington Post says reports on the resignation of Ted Haggard as president of the National Association of Evangelicals over accusations that Haggard paid to maintain a 3-year gay sexual relationship with a Denver man, Mike Jones. Today's Rocky Mountain News says that Haggard was also accused of buying methamphetamine, a drug that enhances sexual experience. Apparently Haggard has admitted that some of the charges are accurate, saying he bought the drugs, but never used them. He says he only received a massage from Jones. A polygraph test taken by Haggard's accuser indicated deception on questions about sexual contact with Haggard. However Jones' lack of sleep, and a migrane from which he was suffering, may have affected the polygraph results. Analysis of a voice mail message reportedly implicated Haggard.

The Post speculates that the charges may have a negative impact on Republicans trying to rally their conservative Christian base to turn out for Tuesday's mid-term elections. Prof. William Martin of Rice University says. "This is one more factor that could increase the disillusionment of evangelicals with prominent leaders on the Christian right and with the political process as a whole, and some may conclude that perhaps their forebears were wise to be wary about politics."

Haggard today also stepped down as pastor of his 14,000-member New Life Church in Colorado Springs, Colorado. The Post says that Jones was impelled to come forward with his accusations at this time in part because in Colorado there are two issues on Tuesday's ballot relating to same-sex marriage. (Amendment 43 defining marriage as between one man and one woman, and Referendum I proposing a domestic partnership law.) Haggard has been an outspoken opponent of same-sex marriage. The May 2005 issue of Harpers carried a very long portrait of Haggard and his influence in an article titled Soldiers of Christ.

Wisconsin Diocese Charged With Election Violations

Wisconsin election law requires any group that spends over $25 to support or oppose a state referendum to register with the State Elections Board. The Wisconsin Democracy Campaign (WDC) has sent a memo to the State Elections Board charging that the Catholic Diocese of Madison violated this provision when Bishop Robert Morlino passed out a flier to all parishioners urging them to support a November 7 constitutional amendment to ban same-sex marriages. Channel 3000 today reports Morlino's response: "a law that tells me I should have recourse to the state or commission in order to teach the truth of Christ about marriage in my own churches is an obstacle to our own free expression of religion." WDC has also issued a release on the matter.

Canadian Marriage Commissioner Appeals Gay-Marriage Requirement

LifeSite News yesterday reported on a case pending in a Manitoba (Canada) Court of Queen's Bench brought by a former provincial marriage commissioner who was forced to surrender his license after he refused to perform same-sex marriages. After the legalization of same-sex unions in Canada in 2004, Manitoba adopted a policy requiring commissioners to perform them. However Ken Kisilowsky says that the policy violates his evangelical Christian beliefs. Clergy are not required to perform same-sex marriage, but others who hold licenses as marriage commissioners are. After the Manitoba Human Rights Commission rejected his religious discrimination claim, he filed the pending appeal. A number of marriage commissioners in Manitoba, Saskatchewan, Newfoundland and British Columbia have resigned over similar requirements. [Thanks to Alliance Alert for the lead.]

New Debate Over Same-Sex Marriage In Canada

In Canada, reports surfaced yesterday that the country's Conservative government was considering a new Defense of Religions Act that would protect public officials, such as Justices of the Peace, who refuse to perform same-sex marriages, and would protect the rights of religious leaders and others to criticize homosexual behavior or refuse to do business with gay-rights organizations. (Globe and Mail). The legislation is seen as an alternative if the government loses its bid to try to repeal the same-sex marriage law passed by Parliament last year. Prime Minister Stephen Harper denied reports that new legislation was being drafted, but speculation continues. (Halifax Chronicle Herald). Today, legal and provincial authorities said that any such legislation would be struck down as a violation of the Charter of Rights and as an improper intrusion into provincial affairs. (Globe and Mail).

Competing Guides Issued For Catholic Voters

The Catholic social justice group Catholics In Alliance for the Common Good last week published Voting for the Common Good: A Practical Guide for Conscientious Catholics. It is described as "an essential tool for Catholics who wish to vote their faith this November". The Washington Post on Saturday reported that the group hopes to distribute at least 1 million of the guides before the November elections. A competing voting guide issued this year by Catholic Answers, Voting Guide For Serious Catholics, says that there are "five issues involving non-negotiable moral values in current politics": abortion, euthanasia, embryonic stem cell research, human cloning and same-sex marriage. In contrast, the guide issued by Catholics In Alliance says that Catholic voters should take into account a broader range of issues. It lists 18 issues that are important to Catholics, including poverty, immigration, the environment, global arms trade, workers' rights, nuclear disarmament and genocide.

Reacting to the new voter guide issued by Catholics In Alliance, Catholic League president Bill Donohue is quoted by LifeSite News as saying: "[It] is a slick attempt to get the abortion albatross off the necks of Catholic Democrats, but it's a failed effort-the noose is still there."