Posted on by Anthony Nania

Around the Web

WebHere are some important law-and-religion news stories from around the web:

Posted on by Marc O. DeGirolami

CLR Fellow Andrew Hamilton Wins Writing Prize

We are proud to announce that one of our talented student fellows, Andrew Hamilton, has won third place in the national “Religious Freedom Student Writing Competition,” sponsored by the Washington D.C. Mid-Atlantic Chapter of the J. Reuben Clark Law Society and the International Center for Law and Religion Studies.  Andy’s paper, The New York Marriage Equality Act and the Strength of its Religious Exceptions (supervised by Mark), explores whether the religious exceptions under the New York same-sex marriage law allow Catholic Charities to refuse to place foster children with same-sex couples.

The paper will be published in a forthcoming issue of the Journal of Catholic Legal Studies.  Andrew will be traveling down to Washington D.C. this Thursday to attend the  2012 International Religious Liberty Award Dinner, whose guest of honor is Douglas Laycock.

Warm congratulations to Andy!

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O’Halloran on The Profits of Charity

In August of this year, Oxford University Press will publish The Profits of Charity by Kerry O’Halloran (Australian Centre for Philanthropy and Nonprofit Studies at the Queensland U. of Tech.).  The book will appeal to those with an interest in faith-based organizations. The publisher’s description follows.

The Profits of Charity examines the contemporary law governing the involvement of charity in commerce and explores the reasons why this involvement is dramatically changing. From a perspective familiar to charity lawyers, NGO managers, and scholars, Kerry O’Halloran identifies the concepts and the law underpinning charities and their profits by tracing legal developments in the field and identifying the resulting opportunities and challenges for the future. At a time when many leading nations are confronting economic recession, the threat of terrorism, and the retreat of the ‘welfare state,’ this book explores why governments are turning to charities in their quest to cultivate social capital, consolidate civil society, and promote civic engagement.

In The Profits of Charity, Professor O’Halloran undertakes a comparative analysis of the balance struck among government, charity, and commerce in five leading common law nations, including the United States, Canada, England and Wales, New Zealand, and Australia. He uses analysis of legislation, outcomes of charity law reviews, and recent case law to illustrate jurisdictional differences, and concludes with an assessment of the extent and significance of the recalibrated relationship and considers the overarching issues that arise between charity law and social policy.

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Religious Exceptions and the NJ “Marriage Equality and Religious Exemption Act”

The New Jersey Star-Ledger reports that the NJ State Assembly has enough votes to pass a proposed same-sex marriage bill. The Assembly will officially vote on the bill on February 16, three days after the Senate takes up the bill. Governor Chris Christie has repeatedly promised to veto any same-sex marriage legislation and has instead urged a referendum on the issue.

As I noted in a previous post, exceptions for religious groups have been a prerequisite to the passing of same-sex marriage legislation in other states, most notably New Hampshire, Vermont and New York. These exceptions have focused on two areas. First, they allow clergy to refuse to solemnize same-sex marriages and prevent both state action (i.e. penalizing or withholding benefits) and individual causes of action resulting from such refusal. Second, these exceptions allow a religious organization, like Catholic Charities, to “tak[e] … action … calculated … to promote the religious principles for which it is established or maintained.” Arguably, this language would allow a foster care service, run by Catholic Charities, to refuse to place children with same-sex couples, a scenario that has become a kind of litmus test on the strength of religious exceptions to same-sex marriage laws.

With this in mind, it is surprising that there has not been more press coverage about the NJ law’s religious exceptions. Read more

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The NY Times on Catholic Charities and Same-Sex Marriage

A recent article in the NY Times reports on the effect of Illinois’ same-sex union law on Catholic Charities’ foster-care placement services.  In particular, the article notes that non-discrimination provisions in the law, which require Catholic Charities to treat couples in same-sex unions the same as those in traditional marriages when placing children in foster care, has caused the organization to cease offering foster-care services altogether. Catholic Charities also ceased foster-care services in Massachusetts and Washington DC when same-sex marriage became law those jurisdictions. Focusing on these three jurisdictions, the Times article suggests that these non-discrimination provisions are a form of increasing government religious persecution aimed at excluding religious groups from the public sphere. However, the article ignores those legislatures which have worked hard to protect the freedom of religious organizations through religious exceptions.

New York, New Hampshire and Vermont all allow wide exceptions for religious organizations that oppose same-sex unions. These states provide that religious organizations do not violate non-discrimination provisions when they take actions that are calculated to promote the religious principles for which they are established or maintained. Such exceptions have been integral to the passing of the same-sex marriage laws. In New Hampshire, Governor John Lynch refused to sign a same-sex marriage bill into law until the legislature increased the protections for religious organizations. In New York, the Republican members of the Senate who ultimately provided the necessary votes for same-sex marriage said that they could vote for the bill only because it protected religious organizations. Indeed, far from persecuting religion, these states have extensively debated how to balance the rights of these religious organizations with the policy of non-discrimination.