How Maine Q. 1 is different from Prop 8

The campaign has mostly stayed below the radar, but voters in Maine will soon decide whether same-sex marriage will be legalized in their state.  Question 1 on this November’s ballot is very similar to last year’s California Proposition 8, but there are some big differences that I think are important.

Same-sex marriage was briefly legalized in California as a result of the state Supreme Court decision In re Marriage Cases.  The court refused to stay its holding to allow legal challenges, resulting in the voter initiative know as Prop. 8.  That vote and the subsequent California Supreme Court review brought gay marriages to a halt in California, but did not invalidate those already performed.

Contrast that tumultuous history with the background in Maine.  Like in New Hampshire, same-sex marraige was legalized in Maine through legislative act rather than judicial opinion.  I consider this to be a far preferable method of implementing new laws, for several reasons.  For example, the Maine statute included specific language about religious freedoms and addressed how the new law would (and would not) alter the obligations of religious organizations, clergy, and individuals.  I don’t think the Maine statute went far enough to protect individuals, but it’s a lot better than the silence in California on the topic.

Maine was also prudent enough to delay issuing marriage licenses to gay couples pending the outcome of Question 1.  While this may delay the ability of some couples to marry, I think it is much better to avoid the legal limbo and further litigation that happened in California.  The Maine statute also seems to address legitimate interests of gay citizens, rather than the ephemeral social acceptance the California Supreme Court attempted to mandate.  In general, I think legislators and officials in Maine have taken a far better approach to the question of legalizing same-sex marriage than their counterparts in California.

For Mormons, one of the biggest differences in the two campaigns is that the LDS Church has not taken an active role in the Maine initiative like it did in California. Individual Mormons are active in the campaign, but there have been no letters read from the pulpit or public statements from Mormon officials like in Prop. 8. I think this may be due to the fact that there is a smaller LDS population in Maine than in California, and perhaps the legislative approach to the law change and religious protections were more palatable to Mormon leaders. However, given the backlash and hostility following the outcome of Prop. 8, perhaps Mormon leaders are reluctant to get involved in a firefight again.

Despite their differences, Maine Question 1 and California Proposition 8 do have one thing in common: just days before the election, both initiatives were too close to call.  Maine Question 1 is running about even in the polls, so it won’t be until November 3 before we know the outcome.

Photo credit: J. Stephen Conn.This content is cross-posted from LDS Law.

Athiests Sue to Block ‘In God We Trust’ Engraving


The Freedom From Religion Foundation filed a lawsuit Tuesday seeking to block an architect from engraving “In God We Trust” and the Pledge of Allegiance at the Capital Visitor Center in Washington D.C. The lawsuit claims the taxpayer-funded engraving would be an unconstitutional endorsement of religion.

The Visitor Center took years to build and cost $621 million. The “In God We Trust” engravings are estimated to only add $100K to the project. The foundation is also challenging the constitutionality of the National Day of Prayer.
Is putting “In God We Trust” on a building or coin really an endoresement of religion? Does this really violate the separation between church and state? I don’t think this case has merit and should be shot down pretty easily.

9th Cir. rejects challenge to SF anti-Catholic resolution

(Note: This is a more thorough treatment of last week’s Legal Brief about Catholic League for Religious and Civil Rights v. City and County of San Francisco.)

In 2006 the City Council of San Francisco adopted a resolution that criticized the Catholic Church’s stance on homosexuality. Catholic Charities, like LDS Social Services, acts as an adoption agency. The Archdiocese of San Francisco had instructed the agency to not place children with gay couples, and the San Francisco City Council’s response called the policy an “insult to all San Franciscans” and “unacceptable to the citizenry of San Francisco, and also stated:

Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors 

The Catholic League for Religious and Civil Rights filed a 42 U.S.C. § 1983 civil rights suit against the City for violations of the Establishment Clause. That action was quickly tossed out on a 12(b)(6) motion for failure to state a claim, and the Catholic League appealed to the Ninth Circuit Court of appeals. The Ninth Circuit issued its ruing on Wednesday, and once again rejected the Catholic League’s claims.

At its heart, this case is an application of the misnomered Lemon test. As the Ninth Circuit cites it, the Lemon test permits government action if  it “(1) has a secular purpose; (2) has a principal or primary effect that neither advances nor disapproves of religion; and (3) does not foster excessive governmental entanglement with religion.” Failure to meet any of the three factors will cause the action to fail constitutional scrutiny.

In what I believe is a flawed analysis, the Ninth Circuit held that the City’s statement passed the Lemon test. As an initial matter, it is worth pointing out that the so-called Lemon test can be somewhat misleading, since the balancing process was really established in two previous Supreme Court cases. Under U.S. v. O’Brien and Clark v. Community for Creative Non-Violence, the courts are to balance the secular purposes of the government with the principal or primary effect of advances/prohibits religion. This is essentially the same framework the Supreme Court established to deal with accidental interferences with religion or free speech. Under the O’Brien/Clark doctrine, an interference with religion is unconstitutional if the interference is intentional. I think it is clear that the City of San Francisco’s pointed statement intentionally targeted a specific denomination and criticized its beliefs.

The Ninth Circuit found that the City’s purpose was primarily secular. I can see good arguments on both sides, since sexual orientation equality is a valid secular purpose under California law. I’m not sure I agree that the City’s purpose was to establish equality — more likely it was to criticize the Catholic Church — but reasonably minds could differ. What I find untenable is the Ninth Circuit’s finding that the primary effect of the City’s resolution did not disapprove of religion.

This is not a well-crafted opinion. The Ninth Circuit’s language on pages 11-12 of the preliminary copy of the opinion is ambiguous at best, and may even evince the judges’ predispositions. That portion of the decision refers to the City’s secular interest in promoting same-sex adoption; if the City indeed had such a goal to support same-sex adoptions over heterosexual adoptions it would be unconstitutional.

Another significant flaw in the decision was pointed out by Richard Thompson, who argued the case on behalf of the Catholic League:

“This dismissal was based on grounds that the pleadings failed to state a claim under the rules of civil procedure.  Although the panel correctly posited the rule that they must accept all of Plaintiffs’ allegations as true and draw all reasonable inferences in favor of the Plaintiffs, the court totally ignored the rule in its opinion and drew all inferences in favor the San Francisco including their intent in enacting the resolution without allowing Plaintiffs to engage in any discovery.”

Even though the decision was unanimous, Judge Marsha Berzon filed a concurring opinion that signaled at least some discomfort with government criticism of religious views. Citing Judge John Noonan’s dissent in the similar case American Family Association v. City and County of San Francisco, Judge Berzon wrote:

“. . .I am acutely aware that ‘the Constitution assures religious believers that units of government will not take positions that amount to the establishment of a policy condemning their religious belief,’ . . . and that resolutions such as the ones in American Family and the one in this case are near – if not at – the line that separates establishment of such a policy.”

In my opinion, that line was crossed in both American Family and Catholic League.

The issue is probably not settled yet — the Thomas Moore Law Center, which conducted the appeal, plans on seeking rehearing en banc.

                                                                                                                                                                                 Catholic League for Religious and Civil Righst v. City and County of San Francisco            peterrtenn                             A Ninth Circuit Court of Appeals ruling rejecting a challenge to a San Francisco City Board resolution that criticized the Catholic Church’s policies on homosexuality.                                      
 
Photo credit: brothergrimm.

Legal Briefs: No Establishment Clause Violation in San Francisco’s Condemning the Catholic Church’s Refusal To Help With Adoptions by Same-Sex Couples

New Hampshire Governor John Lynch signs same-sex marriage bill

Last month we covered the debate in New Hampshire over Governor John Lynch’s proposed amendments to a same-sex marriage bill that would provide certain religious protections for clergy and religious organizations. The New Hampshire house refused to accept Governor Lynch’s proposed language and the bill had stalled. Today various media outlets are reporting that the bill has been signed into law, and that most of the religious protections survived committee review.

I think this is an encouraging first step in reconciling religious liberties and the seemingly inevitable expansion of same-sex marriage. As his signing statement indicated, Governor Lynch clearly recognized this tension and sought to address it in a way that had not been done in any other state so far. (This, by the way, is one of the reasons why such measures are best performed by the legislature rather than the judiciary.) Governor Lynch’s proposed language didn’t go far enough in my opinion because it fails to protect the religious liberties of individual that are not clergy or managed by a religious organization. But at least New Hampshire recognized those religious rights, which is more than can be said for Massachusetts or California.

Photo credit: marcn.

Arizona Judge Prohibits Mormonism


Is it proper for a judge to prohibit a father from taking his children to the Mormon Church? I found myself asking this question after I read an article written by Sarah Fenske of the Phoenix New Times.

Fenske gives some background on the case. “Two years ago, Maricopa County Superior Court Judge Robert Budoff decreed that Richard Franco could not take his children to a Mormon church.”

“Never mind that Franco had been a Mormon his whole life. Or that on weekends when he had custody of his 14-year-old son and 10-year-old daughter, the extended Franco clan attended Sunday services together. Nope, Judge budoff ordered in writing that the Franco kids’ ‘only religious training shall be in the Catholic faith and that they not be taken to an LDs church or LDS church training.”

Judge “Budoff’s decision was upheld by the appellate court in December. More recently, this spring, the Arizona Supreme Court took a pass, refusing to give Franco so much as a hearing.”

Fenske continues “reading the court file, it’s clear that Judge Budoff found Franco abrasive, arrogant, and annoying. But Budoff never found Franco to be an unfit parent. The children’s parenting coordinator, in fact, described the kids as ‘thriving, intelligent, and articulate’ and said that they ‘remain bonded to both their parents,’ despite a difficult divorce.”

Mike McCormack, executive director of the Washington, D.C.-based American Coalition for Fathers and Children offered that “without a finding that he (Franco) was unfit, he was informed—make that, flat-out told—‘You can’t expose these children to your religious beliefs. That’s over the top. Do we want that micromanagement from our judiciary? From our perspective, this was a real over-reach. This is an area where judges are getting ahead of themselves, to say that children will or will not be raised a particular way…The religious training question should be left in the hands of the parents.”

Fenske raises a valid question: (religious) “plurality can make things rough once the kids reach school age. But it can also be awesome. How to better learn tolerance than to have relatives with whom you disagree? How better to sort out how you really feel about God than understanding that good people see Him in different ways?” I agree with Fenske that some of the best learning experiences I’ve had in life have come through sharing ideas with people who have different beliefs then I have. Also, growing up in Maricopa County these children are going to be exposed to Mormonism whether it’s through their father, class-mates, or friends.

Below I highlight the pertinent part of Judge Budoff’s ruling. (Read the Entire Ruling Here)

2. The Decree provided that the parties would share joint custody of the children and contained a parenting time schedule which provided that Mother would be the primary residential parent and that Father would have regularly scheduled parenting time with the children including alternating weekends.

7. Extensive testimony was presented at the September 6, 2007, hearing from the parties and others relative to the parties’ communication and cooperation with each other, the circumstances surrounding the incidences of April 13, May 27 and July 11, 2007, and the matter of the children’s religious upbringing, and from the testimony presented the following findings are made:

a. Father has been aggressive, abusive and intimidating to Mother in phone conversations, e-mails and in conference with the Parenting Coordinator.

b. Father has been rude and intimidating to Daughter’s dance director and teacher.

c. Father is controlling and dictatorial with Mother over parenting schedule issues as he does not discuss issues with her and merely dictates to her as to how issues should be resolved immediately after she refuses to accede to his wishes.

g. Father has failed to return the children on time from his parenting time periods. The Court considers this behavior to be an example of passive-aggressive behavior towards Mother which adds to the parties’ inability to trust each other and to work together with regard to co-parenting.

h. Notwithstanding that the Decree provides that the children would be raised in the Catholic faith and only attend the Mormon church if they desired to do so, it is clear that Father has intimidated and coerced the children to attend Mormon church services when they are in his care although Father has agreed that the children be raised in the Catholic religion and the children appear to be committed to this religion, Father apparently believes that regardless of the children’s wishes he should be able to take the children to his church and expose them to his religion when they are in his care. Parenting Coordinator, Dr. Waldman, believes that this is not generally in the children’s best interest. Waldman opined that the children should not be forced to choose between religions and must be directed towards one, and only one religion, during their childhood.

k. The children’s Best Interest Attorney reports that the children have a good relationship with and enjoy their time with both parents except for those times when Father forces them to go to the Mormon church.

Based upon the foregoing and having considered the relevant factors of A.R.S. 25-403 and 25-403.01, the Court finds that continuation of joint legal custody for the parents is not in the children’s best interest.

IT IS FURTHER ORDERED awarding Mother sole legal custody of the children with full final decision-making authority relative to all educational, medical and religious issues.

(the Mother) is most supportive of the children’s Catholic upbringing to which the parties previously agreed and which they affirmed in open Court

IT IS FURTHER ORDERED in accordance with the recommendations of Parenting Coordinator, Dr. Larry Waldman, and to avoid further confusion and conflict in the children’s lives, that their only religious training shall be in the Catholic faith and that they not be taken to an LDS church or LDS church training. In making this decision relative to the religious issue, a decision that this Court has, in the past, avoided when at all possible, the Court determines that the conflict between the parents over this issue and the need for the children to have consistency in this area requires that such an order be entered in their best interest.

Under ARS 25-410(A)- the parent with custody chooses the children’s religion but that is completely different than a total ban on Mormonism. When this Father has his children over the weekend is he supposed to leave them home alone while he goes to church or is he not supposed to attend church either?

Could this Court ordered ban on Mormonism be seen as an endorsement of Catholicism? Would that be a violation of the First Amendment?

Even if the situation were the same I can’t see Judge Budoff, ruling the same way if the father were a member of a different religion; he would not have banned this father from sharing his beliefs with them.

New Hampshire gay marriage bill stalled over religious exemption

I saw yesterday (via the Mirror of Justice) that the Democratically-controlled New Hampshire House of Representatives blocked passage of a bill that would have allowed same-sex marriages in the state. You may have seen news reports that New Hampshire Governor John Lynch promised to sign the bill if a provision was added to allow clergy to decline to perform such marriages. Here’s the significant portion of the added language:

Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if such request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of their religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods or privileges in accordance with this section shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from such religious organization, association or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society.

As Minnesota Law prof Dale Carpenter pointed out, the language is fairly broad but it could be broader. It doesn’t cover state employees, for example, or private individuals who are not actually managed or directed by a religious entity.  But it’s definitely the broadest protection included in same-sex marriage legislation so far, and it will likely set the pattern for states in the future. This is the first concrete attempt I have seen to reconcile the conflict between religious liberties and the gay rights movement, and though I oppose same-sex marriage, I found it quite hopeful. It even seemed to reinforce the argument of Dave Banack of Times & Seasons that the LDS Church should focus on defending religious liberties rather than opposing same-sex marriage.

But the New Hampshire House killed the bill. At first glance it appears that same-sex marriage proponents were willing to have the bill defeated before conceding any ground. This is not a productive approach, and it is precisely the type of behavior that has created the clash between religious groups and same-sex marriage supporters. As an opponent of same-sex marriage, perhaps I should be glad that the measure was defeated. But I’m really disappointed that the New Hampshire legislators were so unwilling to recognize appropriate accomodations to First Amendment religious rights.

For more information on the intersection of religious rights and gay marriage, see the Pew Forum’s Question & Answer session today with George Washingoton Law professors Chip Lupu and Robert Tuttle.

Photo credit: NASAVideographer.

Recommended Reading: The Importance of the Right Question

The speaker materials from the last J. Reuben Clark Law Society Conference are now available online. When I spoke with people who attended, I heard the most buzz about an address by Harvard Business Professor Clayton Christensen entitled, “The Importance of the Right Question.” Professor Christensen argues:

Unfortunately, too many of us are so eager to debate and get on with the right answer and the solution, that we often forget even to think about whether the right question has been asked. Lawyers pride themselves on their ability to ask penetrating questions, but I honestly think that the only people who are worse than lawyers at asking the right questions are business managers; and that the only people who are worse than managers at asking the right questions are Mormons.

The rest of the address gives examples of business and church leaders who ask the right questions.  One of the legal examples he cited was the question of separation of church and state. A Chinese colleague of Professor Christensen pointed out to him how vital religion was in American democracy:

[A]s religion loses its power over the lives of Americans, we are living on momentum.  It is a momentum that was established by vibrant religions, and then became a part of our culture.  Today there are many people in America who are not religious, who still voluntarily obey the law, follow through on their contracts and respect other people’s rights and property.  This is because certain religious teachings have become embedded in our culture.  But culture is not a stalwart protector of democracy’s enabling values.  When people stop going to their churches, or if our churches lose their power over our culture, our system will not sustain itself.  What other institutions will teach these values to Americans with the power required to guide their daily behavior?

The debate on the extent to which religious expression can be allowed in public life has been vigorous, and religion is monotonically losing ground. Whether it is the Ten Commandments etched into the stone of state and court houses, nativity scenes in public squares, the ability of school choirs to sing religious songs or having prayers at public school graduation exercises, religion increasingly is being pushed out of public view and public discourse. We have let the enemies of religion frame this debate incorrectly. Somehow the advocates of separation of church and state can’t understand what my Chinese friend saw so clearly – that the religious institutions whose role on the public stage they hope to minimize are in fact among the fundamental enablers of the civil liberties that we all now enjoy.

It’s worth reading the whole thing. You can view the talk here or download it here.

Uproar in Connecticut

The Mirror of Justice blog reports that the last week’s controversial Connecticut legislation aimed at the Catholic Church has been tabled. According to Archbishop Henry Mansell of Hartford, the bill would “force a radical reorganization of the legal, financial, and administrative structure of [Catholic] parishes.” In case you think that wasn’t descriptive enough, PrawfsBlawg’s Rick Hills called the measure “The Connecticut Legislature’s preposterously unconstitutional attack on Catholicism.” Sensational enough for you now?

Professor Hills points out that, among other things, the proposed Connecticut measure is patently unconstitutional under Church of Lukumi Babalu Aye v. City of Hialeah. (For a brief but excellent analysis of all the issues, see the open letter written by several prominent law professors to the Connecticut legislature.) For all the ugliness directed towards Mormons after Proposition 8 in California, there hasn’t been such an overt legislative assault on the LDS Church in any jurisdiction.

I certainly don’t see this as a Catholic or Mormon issue. Even with in a divisive political climate, I am utterly surprised that any legislator in the nation would sign his or her name to such a bill. In a Q&A on the National Review Online, Katheryn Jean Lopez asked Brian Brown (executive director of the National Organization for Marriage) “Why should anyone who’s not Catholic in Connecticut or Mormon in California care?” He responded:

All Americans, whatever their political leanings, should care when politicians propose to take out a specific religious group because partisans in one party don’t like its moral stands on important public issues.

Brown goes on to call for “a response that makes these partisans regret it.” I don’t support Brown’s vindictive approach, but I certainly agree that all Americans should be concerned that such a provision was ever contemplated.

Photo credit: Brent Danley

Supreme Court says park monument is government speech

The Supremes are back in town, and this session is already looking interesting. Yesterday’s unanimous decision in Pleasant Grove City, Utah v. Summum (slip opinion here) held that a government may accept certain permanent religious monuments in public parks without violating the Free Speech rights of other groups who were not permitted to place similar monuments in the park. The city of Pleasant Grove already had a donated Ten Commandments monument in its Pioneer Park but it had refused to place a similar monument from a small religious group named Summum. (More background here.) Justice Alito’s majority opinion overruled two separate 10th Circuit decisions by holding that such monuments are “a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.”As SCOTUSblog noted, there were several concurring opinions, so Justice Alito’s decision may not be concrete law, but this seems to be the direction in which the Court is moving.


I think it is interesting to compare Pleasant Grove with the 1995 case Capitol Square Review Board v. Pinette, where the State of Ohio had set up an area on the Ohio Capitol grounds where any group could display their poltiical or religious beliefs. The KKK wanted to put up a huge white cross and the Ohio government balked. Representatives of the KKK filed suit to force the Ohio government to let them put up the cross and won. This decision was affirmed by the Sixth Circuit and the Supreme Court on Establishment Clause grounds. Justice Scalia’s majority opinion held that the Capitol grounds were a traditional public forum, and that the speech was permissible as long as the restrictions placed on the speech were content-neutral. Since this was clearly a content-based exclusion it was not permitted. 

Clearly, the nature of these two arenas made the difference in the outcomes. Whereas the posters and displays on the Ohio Capitol square were speech by other groups in a traditional public forum, the public park monuments were fundamentally different enough for the justices to declare them government speech. It is also important to note that this case was not decided on Establishment Clause grounds, although that may be where the case is headed.


In the background of this discussion is the fact that most of the city of Pleasant Grove is Mormon. That isn’t central to the First Amendment analysis, but the parties mentioned it in a NY Times article last year:

The Ten Commandments monument here stands in Pioneer Park, which pays tribute to the city’s frontier heritage, one that is mostly Mormon. The two sides differ about how best to honor that heritage.

[Pleasant Grove Mayor Michael] Daniels said the monument broadly reflected local history. Mr. Barnard, the Summum lawyer, said the Ten Commandments did not play a central role in the Mormon faith. “If they wanted to quote from the Book of Mormon,” he said, “that would, at least, relate to the pioneers.”

“Mormons came to Utah because of religious persecution,” Mr. Barnard added. “The pioneer heritage in Utah has to be escape from persecution.” 

I was amused by the idea that the Ten Commandments do not play a central role in the Mormon faith — I think the LDS Church and most of its members would refute that assertion. The reason commonly given for Ten Commandment monuments on government property is that those principles are central to the Judeo-Christian tradition out of which the Anglo-American legal system was formed. You probably couldn’t say the same about the Book of Mormon, even in Utah. I know there were court systems run by the Mormon Church in the early Deseret Territory days, but I don’t know of any legal legacy remaining in the Utah State courts.