Showing posts with label First Amendment. Show all posts
Showing posts with label First Amendment. Show all posts

Wednesday, May 13, 2009

DOMA Challenge in Federal Tax Court

05/12/09 FamilyFairness.org:

"Charles Merrill, millionaire and cousin of the co-founder of Merrill Lynch, joined by Kevin Boyle, his partner of 16 years, is making a challenge to the Defense of Marriage Act (DOMA), according to Pam's House Blend. DOMA, the 1996 statute permitting the federal government to ignore same-sex marriages performed by states, has been challenged in federal court before, but Merrill's case marks the first time the discriminatory law has been attacked in tax court ... Merrill's case has been referred to Washington D.C. for an en banc hearing before all 19 judges on the United States Tax Court."

Here are the dockets:

                                                    05/13/09 
U N I T E D S T A T E S T A X C O U R T
D O C K E T E N T R I E S

Docket No. 3058-08 INDEX
Charles E. Merrill
v. COMMISSIONER OF INTERNAL REVENUE



Petitioner Counsel Respondent Counsel
------------------ ------------------
PRO SE TK0079 Tagni,Kathleen A.
Chief Counsel - IRS
24000 Avila Rd., Suite 4404
M/S 8800
Laguna Niguel, CA 92677

NO. DATE EVENT FILINGS AND PROCEEDINGS ACT/STAT DTE SERVED M

0001 02/04/08 PF PETITION Filed:Fee Paid R 02/08/08
0002 02/04/08 DPT DESIGNATION of Trial at San R 02/08/08
Diego, CA
0003 03/28/08 ACS ANSWER (C/S 03/26/08).
0004 06/11/08 NTD NOTICE of Trial on 11/17/08 at
San Diego, CA. B 06/11/08 C
0005 06/11/08 SPTO STANDING PRE-TRIAL ORDER attached
to Notice of Trial B 06/11/08 C
0006 07/02/08 MOTR MOTION by resp. to continue trial
generally. N.obj. (C/S 7/1/08) GR 07/08/08 B 07/09/08
0007 12/02/08 NTD NOTICE of Trial on 05/04/09 at
San Diego, CA. B 12/02/08 C
0008 12/02/08 SPTO STANDING PRE-TRIAL ORDER attached
to Notice of Trial B 12/02/08 C
0009 04/06/09 MOTR MOTION by resp. for partial
summary judgment. w/Exhs. (C/S
4/3/09)
0010 04/06/09 MEMO MEMORANDUM by Resp. of points and
authorities in support of mot
for partial summary judgment. (C/S 4/3/09)
0011 04/13/09 O ORDER Petr. by 4-29-09 file and
serve response or obj. to mot B 04/14/09
for partial summary judgment

U N I T E D  S T A T E S  T A X  C O U R T                    
D O C K E T E N T R I E S

Docket No. 22608-07 INDEX
Charles Merrill
v. COMMISSIONER OF INTERNAL REVENUE



Petitioner Counsel Respondent Counsel
------------------ ------------------
PRO SE


NO. DATE EVENT FILINGS AND PROCEEDINGS ACT/STAT DTE SERVED M

0001 10/01/07 PF PETITION Filed:Fee Paid R 10/05/07
0002 10/05/07 OAPF ORDER for amended petition and B 10/05/07
filing fee on 11/19/07.
0003 10/19/07 AP AMENDED PETITION R 10/23/07
0004 10/19/07 DPT DESIGNATION of Trial at San
Diego, CA B 10/23/07
0005 12/18/07 AAP ANSWER TO AMENDED PETITION
(C/S 12/17/07).
0006 06/11/08 NTD NOTICE of Trial on 11/17/08 at
San Diego, CA. B 06/11/08 C
0007 06/11/08 SPTO STANDING PRE-TRIAL ORDER attached
to Notice of Trial B 06/11/08 C
0008 07/02/08 MOTR MOTION by resp. to continue trial
generally. N.obj. (C/S 7/1/08) GR 07/08/08 B 07/09/08
0009 12/02/08 NTD NOTICE of Trial on 05/04/09 at
San Diego, CA. B 12/02/08 C
0010 12/02/08 SPTO STANDING PRE-TRIAL ORDER attached
to Notice of Trial B 12/02/08 C
0011 04/06/09 MOTR MOTION by resp. for partial
summary judgment. w/Exhs. (C/S
4/3/09)
0012 04/06/09 MEMO MEMORANDUM by Resp. of points and
authorities in support of mot
for partial summary judgment. (C/S 4/3/09)
0013 04/13/09 O ORDER Petr. by 4-29-09 file and
serve response or obj. to mot B 04/14/09
for partial summary judgment.

Wednesday, April 29, 2009

ADF Senior Counsel Austin Nimocks on conflict between religious liberty and same-sex marriage

04/29/09 (Vermont) Argus Times:

Austin Nimocks is senior counsel for the Alliance Defense Fund. In this opinion article, he claims that supporters and opponents of same-sex marriage agree that

"that a serious conflict exists between same-sex 'marriage' and religious liberty. [ADF attorneys do not recognize same-sex marriage, so they add quotation marks to the word "marriage" when referencing same-sex marriage.] On this point, there is no debate, except among the uninformed. Even same-sex 'marriage' advocate, and Georgetown law professor Chai Feldblum understands this principle, if you read her Web site and writings."

Nimocks appears to have in mind the Moral Values Project website, which posts articles by Chai Feldblum. One of these is Moral Conflict and Conflicting Liberties, from Same-Sex Marriage and Religious Liberty, published by The Beckett Fund for Religious Liberties, 2008.

Nimocks also claims that "multiple cases continually arise where those who believe in [heterosexually-exclusive] marriage are being asked to face legal punishments and consequences for their beliefs."

Source: ADF Alliance Alert

Monday, April 27, 2009

ACLU of Iowa and the Alliance Defense Fund on religious-liberty exception for state wedding registrars

04/28/09 NY Times:

The NY Times reports widespread compliance by county recorders in issuing marriage licenses to over 200 same-sex couples today. (See the Washington Times on state Senator Merlin Bartz's "petition drive last week aimed at encouraging county recorders to reject marriage applications from same-sex couples until Iowans are able to vote on a same-sex marriage referendum.")

04/24/09 Iowa Independent:

"Caught in an interesting position between State Sen. Merlin Bartz (R-Grafton) on one side and same-sex marriage advocates on the other, the Iowa ACLU determined today that it would represent any same-sex couples who are denied marriage licenses by a county recorder while also offering to defend the man who is asking county recorders to deny them ...The Alliance Defense Fund, an organization founded by evangelical activists to counterbalance the ACLU, has already offered to defend county recorders against same-sex couples should they choose to defy the court." (For more on the role of ADF, see this 04/26/09 article of the Catholic News Agency.)

Will this controversy over county recorders prove to be a tempest in a teapot? Or is the Alliance Defense Fund right that county recorders may deny marriage licenses to same-sex couples if county recorders would otherwise violate tenets of religious faith? According to several legal scholars, the answer may depend on whether the result imposes substantive - and not just "symbolic" - harm on same-sex couples who apply for marriage licenses. (Of course, it's hardly unambiguous to try to distinguish between "substantive" and "symbolic" harm.)

These legal scholars are debating the proper extent of religious-liberty exemption in marriage equality legislation. In the context of this debate, several proponents of exemption for individuals offer the following observation on wedding registrars:

"If one wedding registrar objects to memorializing the marriage but another is immediately available, is there any measurable harm [to a same-sex couple seeking a marriage license] that's not merely symbolic? We think that putting a state employee to a choice between her faith and her job should require something more."

Source of article reference: Gay Marriage Watch

Thursday, April 23, 2009

Same-sex marriage: Gay couple in Louisiana sues over license denial

04/22/09 AP (posted to Shreveport Times):

"A gay couple in New Orleans is suing over being denied a marriage license in Louisiana, claiming their rights are being violated by a state constitutional ban of same-sex marriage. Kristoffer Bonilla, 33, and John Thomas Wray, 18, are asking a federal judge to strike down the constitutional amendment, which lawmakers and voters overwhelmingly approved in 2004."

Plaintiffs claim the state's marriage amendment violates the First Amendment "by curtailing the right to marry based upon a religious interpretation of the nature and purpose of marriage itself. By failing to articulate a legitimate, compelling and secular interest for the restriction on marriage, the state has necessarily established a wholly religious civil institution." (Click here for the complaint.)

This federal lawsuit involves a novel test of the First Amendment. (Plaintiffs also allege violation of the equal protection clause.) Except for an equal-protection challenge in the Central District of California, I am also unaware of any other federal lawsuit against a state's constitutional ban of same-sex marriage.

Randy Evans, an attorney for Forum For Equality, comments on the lawsuit, but the organization does not appear to be involved. The complaint shows that Bonilla and Wray filed the complaint pro se. Will they attract counsel to represent them?

Source of AP reference: ADF Alliance Alert

Tuesday, April 21, 2009

Same-sex marriage and religious liberty issues in Connecticut; Empire State Pride Agenda challenges claims of harm to religious liberty

04/21/09 Mirror of Justice Blog:

"Here are a couple of letters to the speaker of the Connecticut house arguing for meaningful religious liberty exemptions in the bill [to implement the state supreme court's October 2008 decision in Kerrigan v. Commissioner of Public Health]. One is from four religious liberty scholars, including Robin Fretwell Wilson (Washington and Lee, drafter), Carl Esbeck (Missouri), and MOJ's own Rick Garnett and Tom Berg, proposing a text of a broader exemption. The other is from Professor Doug Laycock, explicitly supporting both same-sex marriage and religious liberty and endorsing the text in our letter."

Source of reference to Mirror of Justice: ADF Alliance Alert

04/21/09 National Center for Lesbian Rights:

Empire State Pride Agenda Executive Director Alan Van Capelle said, “For too long, the religious right has controlled the religious debate around marriage for same-sex couples by promoting misinformation that marriage equality threatens religious freedom. Today a diverse group of [Massachusetts] clergy speaks directly to New Yorkers about their experiences since Massachusetts legalized marriage for same-sex couples.”

04/22/09 Boston Globe:

"Several prominent religious leaders from Massachusetts are lending their support to the campaign for the legalization of same-sex marriage in New York state, arguing in various venues yesterday that gay marriage has not affected religious freedom in the Bay State. The gay rights group, the Empire State Pride Agenda, said it sought out clergy in Masachusetts in an effort to rebut critics of same-sex marriage."

Gay Episcopal bishop V. Gene Robinson favors separation of civil and religious institutions of marriage

04/20/09 Los Angeles Times:

V. Gene Robinson is bishop of an Episcopal diocese in New Hampshire. Last summer, he "was barred from taking part in leadership meetings at the Lambeth Conference, a once-a-decade global gathering of Anglicans."

On 04/19/09, he told a church in Studio City, California, that he favors the exclusive role that France reserves to government officials for performing civil marriages. "In this country," he said, "it has become very confusing about where the civil action begins and ends and where the religious action begins and ends, because we have asked clergy to be agents of the state ... If we can get these two things [religious marriage and civil marriage] separated, we can assure every religious group, no matter how conservative, that they will never have to bless these [same-sex] marriages." If the California Supreme Court upholds Prop. 8, its ruling would, of course, moot the purpose of Robinson's proposal - to guarantee civil marriage of same-sex couples.

With its "2 Million for Marriage" ad campaign, the National Organization for Marriage has renewed controversy over perceived conflict between same-sex marriage and religious freedom. The controversy has inspired others to propose a more sweeping reform than Robinson's, in which the state would continue to recognize all the rights, duties, and benefits of marriage, except in name. During the Prop. 8 oral arguments, Justice Ming Chin had asked Kenneth Starr whether the proposal would provide equal protection to same-sex couples, and whether the Court could order it.

Tuesday, March 24, 2009

More on the federal challenge to disclosure of Prop. 8 donors

03/23/09 Washington Times:

The case in question is ProtectMarriage.com v. Bown, 2009 Westlaw 440211 (E.D.Cal.). "The lawsuit argues that those who contribute to traditional-marriage initiatives should be exempt from having their names disclosed, citing the widespread harassment and intimidation of donors to the Proposition 8 campaign ... The Proposition 8 lawsuit lost the first round in January when a federal judge refused to grant a preliminary injunction to stop the state from releasing the identities of those who made campaign donations after Oct. 18. "

06/03/09 update

06/03/09 Alliance Defense Fund press release


"ProtectMarriage.com and National Organization for Marriage are asking the Court to grant their motion for summary judgment, which asks the Court to find in their favor on all of the claims in their lawsuit. If successful, California will have to remove the names of donors who gave as little as $100 to the recent campaign for Proposition 8 from the state website, among other things."

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Thursday, March 19, 2009

Some clergy make case for same-sex marriage

The proposed Vermont Act to Protect Religious Freedom and Promote Equality in Civil Marriage (S.115) has been the subject of hearings this week. It accommodates a "religious conscience" exception based on the First Amendment, as do similar proposed acts in Maryland, Rhode Island, and Maine. The object is to protect, from state intervention, those religious organizations that choose not to perform same-sex marriages.

Clergy in the Vermont hearings showed a division in opinion over the proposed Vermont Act. However, at a meeting hosted by the Religious Coalition for the Freedom to Marry*, religious leaders in Maine expressed support that of that state's proposed Act to Prevent Discrimination in Civil Marriage and Affirm Religious Freedom. (124th Legislature, SP 384).

[*As of March 20th , the Coalition's website appears to have been the target of a cyber attack.]

03/18/09 Bangor Daily News
:

“'As a Christian theologian, I support marriage equality because I take the Bible seriously,' said [Rev. Marvin] Ellison, an ordained Presbyterian minister who lives in Portland [and a professor at Bangor Theological Seminary]. “'Denying marriage to loving, committed adult same-sex couples is based on the sinful assumption that gay men and lesbians are not made in the image of God and do not deserve full equality under the law.'”

Tuesday, March 3, 2009

Weeks after Proposition 8 passed, student says in lawsuit, his professor called him a "fascist bastard" for his stance against same-sex unions

UPDATE:

03/03/09 LA Times: "The suit, filed Feb. 12, has inspired a wave of blog and media commentary. Lopez's lawyer from the Alliance Defense Fund, co-founded by James Dobson of Focus on the Family, has appeared on the popular Fox News show 'The O'Reilly Factor.'"

02/16/09 LA Times: "[Los Anges City Community College] student Jonathan Lopez says his professor called him a 'fascist bastard' and refused to let him finish his speech against same-sex marriage during a public speaking class last November, weeks after California voters approved the ban on such unions." For the complaint filed by the Alliance Defense Fund, see my 02/12/09 post.

02/17/09 ADF Alert: "Attorney David Hacker of the ADF Center for Academic Freedom appeared on the Adam McManus show to discuss the case ADF filed against L.A. Community College District after professor calls student ‘fascist bastard’ for sharing beliefs on faith and marriage. The mp3 file runs just under 7 minutes."

02/18/09 ADF Alert: "ADF attorney David Hacker of the ADF Center for Academic Freedom appeared on the Frank Pastore Show to discuss the Lopez case ... The mp3 file ... runs just under 12 minutes."

02/19/09 Volokh Conspiracy: UCLA Law Professor Eugene Volokh believes that it is "pretty clear that refusal to give a grade because the teacher disapproves of the religiosity of the student's presentation, or of the student's opposition to same-sex marriage, is indeed a First Amendment violation." He repeats an allegation in the complaint - that the professor called "the student a 'fascist bastard' in front of the class for having supported the anti-same-sex-marriage Prop. 8, and refused to allow the student to finish the presentation." To this observation, he adds, "Lovely."

Volokh's comments have received over 100 replies. One news aggegator service provides evidence of widespread media publicity surrounding the ADF action.

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Sunday, March 1, 2009

Does a State Violate the First Amendment by Requiring Disclosure of the Identity of Donors in Ballot Initiative Campaigns?

03/01/09 Leonard Link: New York Law School Professor Arthur Leonard comments on ProtectMarriage.com v. Bown, 2009 Westlaw 440211 (E.D.Cal.), and Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 2009 Westlaw 455522. These rulings concern the reach of campaign disclosure laws with respect to supporters of Prop. 8 and Montana's constitutional initiative to deprive same-sex couples the right to marry.

Thursday, February 26, 2009

Montana church may shield donations to gay marriage ban

02/26/09 Los Angeles Times:

"The Canyon Ferry Road Baptist Church of East Helena isn't obliged to make campaign finance disclosures, a federal appeals court ruled Wednesday, because its support for the Montana Marriage Protection Amendment -- use of some printer ink and a foyer table -- was 'extremely minimal.' The 2004 state ballot initiative passed by a 2-to-1 margin."

"This is a very important precedent, and I think it will have far-ranging consequences as it validates that churches play a fundamental role in shaping our democracy and speaking out on important social issues like marriage," said Dale Schowengerdt, an Alliance Defense Fund attorney who represented the Church. Montana State Solicitor Anthony Johnstone doubts that the ruling will have such broad consequences.

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Wednesday, February 25, 2009

Court Refuses To Enjoin Contribution Reporting Requirement For California Prop 8

02/24/09 Religion Clause blog: Howard Friedman, Law Professor Emeritus at the University of Toledo, discusses the outcome in ProtectMarriage.com v. Bowen, 2009 U.S. Dist. LEXIS 13059 (E.D.Cal. Jan. 30, 2009).

Tuesday, February 24, 2009

A Reconciliation on Gay Marriage

02/23/09 NY Times:

David Blankenhorn is president of the Institute for American Values and the author of “The Future of Marriage.” Jonathan Rauch is a guest scholar at the Brookings Institution and the author of “Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America.” In this opinion article, they propose that Congress

"bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill."

02/23/09 The Corner (National Review Online): Maggie Gallagher, president of the National Organization for Marriage, claims that "gay rights groups have shown little willingness to offer any substantive religious-liberty protections at the state level," and that a federal civil-unions law would be used "to endanger DOMA and state marriage laws."

02/24/09 ADF Alert: According to the Alliance Defense Fund, "[t]his proposal has already been offered as a compromise by many leading pro-family organizations. But, it has been rejected [by] proponents of marriage redefinition, because the real battle here is about defining societal norms[,] not benefits." Glen Lavy, Senior Vice President of ADF's Marriage Litigation Center, has claimed that " 'same-sex "marriage' advocates want to force the government and their fellow citizens not just to extend benefits to same-sex couples, but to fully endorse such relationships by extending legal status to them.

02/24/09 comment by Michael Ginsborg: Australia has recently adopted the Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill of 2008. This sweeping reform represents an alternative model for extending the rights and benefits of marriage, even if it falls short of recognizing an equal right to marry. The Blankenhorn-Rauch proposal of federal civil unions involves, by its own terms, a "separate-but-equal" legal status for same-sex couples, with a First Amendment allowance for religious discrimination, and an allowance for "religious-conscience" forms of government discrimination. Australia's new law has been designed to ban discrimination against same-sex couples, without creating a separate legal status arguably at odds with that status' anti-discriminatory intent. Instead, the Australian Bill confers federal recognition of equal treatment with respect to federal rights of de facto couples. According to family law practitioner Andrew McCormack of HopgoodGanim, in Brisbane:

"The rationale behind the Bill was to ensure that same sex couples have the same rights and privileges under Commonwealth legislation as opposite sex couples. It provides legislative recognition to same sex partners and their children to ensure that children are not disadvantaged due to the construction of their family unit."

Thursday, February 12, 2009

ADF files complaint against L.A. Community College District after professor allegedly calls "Christian" student "fascist bastard": Prop. 8 implicated

02/12/09 ADF Alliance Alert: In its 02/11/09 complaint (C.D.Cal. 09-cv-0995), the Alliance Defense Fund Center for Academic Freedom alleges that the District violated a student's First Amendment rights before, during and after an assigned classroom speech about his religious views. The student, identified in the complaint as a "Christian," described "the ways in which he has witnessed God act both in his life and in the lives of others through miracles." The student also elaborated on his view of "morality," providing "two dictionary definitions of marriage as being between a man and a woman," and "reading two [related?] verses from the Bible." His professor allegedly interrupted him and called him a "fascist bastard." Several weeks before the student gave this speech, the professor is alleged to have told his class that "if you voted yes on Proposition 8, you are a fascist bastard." The complaint characterizes Prop. 8 as "a state ballot measure to amend the state constitution to define marriage as between one man and one woman," even though the California Attorney General, in the ballot summary, stated that Prop. 8 changes "the California Constitution to eliminate the right of same-sex couples to marry in California."

Commentators, Subjects and Cases