Recap of Colorado Christian University 10th Cir. oral argument

Felisa Cardona, writing for the Denver Post, in Separation of Church, Aid Eyed, offers a snapshot of the oral argument yesterday in the CLS Center's Colorado Christian University case challenging the Colorado Commission on Higher Education's denial of financial aid to CCU students:

Judges Stephanie Seymour, Michael McConnell and Jerome Holmes questioned why Colorado taxpayers would be opposed to tuition aid for students attending CCU.

"My problem is why does Colorado care?" Seymour said. "Why do they have any interest if a CCU student goes to chapel every day or attends Regis and goes to chapel every day?"

McConnell questioned why the court should uphold the state law when it's not clear why the exclusion was put in place.

"We're looking to see whether the state had a purpose to sustain this," he said. "Why should we uphold it for a facetious purpose that it looks like the state never had?"

Holmes wondered whether the impact of the exclusion might force religious institutions to change their policies and beliefs in order to receive funding.

"Why wouldn't this law say you have to stop allowing these people to go to chapel if you want to get out of this regulation?" Holmes said.

Center Director Greg Baylor presented oral argument on behalf of CCU.

See previous blog commentary on this case.

For more information on CCU, visit the CCU website or the Peterson's profile of CCU.

Colorado Christian University v. Baker Tenth Circuit oral argument tomorrow/Wednesday

Tomorrow/Wednesday, CLS Center Director Greg Baylor will argue before the Tenth Circuit Court of Appeals on behalf of Colorado Christian University in CCU v. CCHE. The Center challenges the Colorado Commission on Higher Education's denial of financial aid to CCU students because of the commission labeling of CCU - a Christian, accredited, liberal arts university - as "pervasively sectarian." All of the Tenth Circuit briefs, including those of the parties and the numerous amici curiae, for example, the United States in support of CCU, are available from the Center's website. The oral argument is scheduled for Wednesday, May 14, 2008, at 9 a.m. at the Byron White Courthouse in Denver, Colorado, in Courtroom III, before Judges McConnell, Seymour, and Holmes.

Marriage Law Foundation publishes April 2008 digest

The Marriage Law Foundation released its Marriage Law Digest for April 2008 with recent cases and law review articles. There are several noteworthy items pertaining to the interaction between religious liberty and same-sex marriage and sexual orientation nondiscrimination, such as Willock v. Elane Photography (wedding photographer compelled against conscience to photograph same-sex commitment ceremony). For more information visit the Marriage Law Foundation and the Institute for Marriage and Public Policy.

Loyalty Oaths and Religious Freedom

Both the LA Times and the Chronicle of Higher Education report that Cal State Fullerton fired a lecturer because she declined to sign an oath to defend the California and U.S. Constitutions "against all enemies, foreign and domestic." Wendy Gonaver, a Quaker and pacifist, refused to sign the oath, as it implied that she was willing to take up arms against America's enemies. She apparently indicated her willingness to sign the oath if she could accompany it with a written statement explaining her position, an offer the university reportedly rejected.

It is difficult to argue that this is justifiable incursion upon Gonaver's religious freedom. According to The Chronicle, the loyalty oath was added to the state constitution in 1952 to prevent communists from getting government jobs. Gonaver is not a communist; nor does the defense of California or the United States depend upon the involvement of Quaker teachers in combat.

Without question, anti-communist loyalty oaths are a product of a different era. But most of today's public universities have what amount to new loyalty oaths -- pledges not to offend others with controversial expression. The "nondiscrimination" policies most public universities apply to student groups are not really about stopping widespread invidious discrimination. Instead, these policies are about forcing dissenters to toe the line.

Universities defend the application of religion and sexual orientation nondiscrimination polices to religious groups not because they truly believe that some great injustice occurs when an a atheist or sexually active homosexual is not permitted to be the president of student groups like the Christian Legal Society. Instead, these universities simply cannot tolerate those who believe that certain religious propositions are objectively true or that homosexual conduct is sinful and immoral. The point of these policies is not so much to protect minorities, but rather to marginalize orthodox believers in an effort to reduce their influence and numbers.

Given that Gonaver is a Quaker, it is reasonable to assume that she will not commence litigation against university officials. If she did, one can imagine what the university would argue. In response to any Free Exercise Clause claim, the state would argue that the oath requirement is a "facially neutral and generally applicable rule," and thus immune to scrutiny under the Clause. Thanks in large part to the secular and religious Left, which bailed out on efforts to restore "strict scrutiny" to free exercise claims out of fear that such a restoration would undermine the homosexual "rights" agenda, Gonaver would have a tough time making a winning free exercise claim.

A claim under the California free exercise provision might not fare much better. In a case involving a Christian landlord charged with discriminating on the basis of marital status by refusing to rent an apartment to an unmarried, cohabiting couple, the California Supreme Court essentially said, "too bad -- no one forced you to be a landlord; you should go into some other line of work." One wonders whether the court would tell Gonaver to go into some line of work other than teaching.

Moral of the story: evangelicals are not the only ones hurt by the Left's subordination of religious freedom to "gay rights."

Ninth Circuit protects conscience rights of pharmacists

In the case of Stormans v. Selecky, as reported on Religion Clause the Ninth Circuit kept in place the preliminary injunction barring enforcement of challenged pharmacy board rules thereby protecting the constitutional rights of pharmacists who, informed by their religious or moral beliefs, are bound by conscience to refrain from distributing the abortion-inducing Plan B contraceptive. The case continues with oral argument on June 3 in Seattle.

Yesterday the CLS Center filed an amicus brief supporting the pharmacists on behalf of Christian Legal Society, Christian Pharmacists Fellowship International, Christian Medical Association, American Association of Pro Life Obstetricians and Gynecologists, and Fellowship of Christian Physician Assistants.

Bans on "Marital Status" Discrimination: A Threat to Religious Freedom?

Various media outlets (ABC News, USAToday, AP, among others) have devoted attention to a recent situation involving Wheaton College, a Christ-centered liberal arts institution in suburban Chicago. Kent Gramm, a Professor of English, has decided to leave Wheaton. Professor Gramm and his wife are poised to divorce.

Prior to joining the Wheaton community, potential students and teachers review the college's Community Covenant. They then decide whether they will to voluntarily join a community that strives to adhere to the beliefs and values articulated in that covenant. The covenant addresses the issue of divorce; an extremely helpful "Q&A" with Wheaton President Duane Litfin about the covenant and its application to divorce is available here.

According to Christianity Today's blog, Wheaton's faculty handbook states that the college may retain a teacher getting a divorce "when there is reasonable evidence that the circumstances that led to the final dissolution of the marriage related to desertion or adultery on the part of the other partner." Media reports indicate that Professor Gramm declined to discuss with Wheaton the circumstances of his divorce.

Quoted in Inside Higher Education, Professor Gramm observes that the State of Illinois forbids employers from "discriminating" against employees and potential employees on the basis of "marital status." Apparently aware of legal protections of religious freedom, Professor Gramm does not seem to be saying that Wheaton is violating state law. He then implies, somewhat ironically, that by considering divorce in personnel decisions, Wheaton has "lower standards" than does the State of Illinois.

Most courts would agree that the Constitution forbids the state from punishing Wheaton through the application of a ban on "marital status" discrimination in employment. However, it is less clear that the relevant Illinois statute actually exempts religious employers from the ban on marital status discrimination in the first place -- as it should. The Illinois Human Rights Act defines "employer[s]" covered by the Act in such a way to protect them from certain discrimination claims. The Act says that "employer" does not include religious institutions "with respect to the employment of individuals of a particular religion."

This language clearly protects religious employers in Illinois from liability for "discriminating" on the basis of "religion." However, one might plausibly argue that it does not protect them, by itself, from charges of "marital status" discrimination. The phrase "of a particular religion" is inherently ambiguous. No Christian would argue that one must be sinless to be a Christian; in other words, no Christian could plausibly maintain that a person's commission of sin always means that the person is no long "of" the "particular religion" of Christianity. A foundation of Christianity is that all are sinful (and thus in need to Christ's atonement for their sins on the Cross).

That being said, adverse action against an employee who procures a biblically unjustified divorce should not be considered "marital status" discrimination in the first place. Wheaton was concerned about Professor Gramm not because he was single, but rather because he was divorcing (without sharing any information that would provide the college a basis for determining whether the divorce was biblically justified).

In any event, the Constitution (and probably Illinois' Religious Freedom Restoration Act) provides employers like Wheaton a defense to any charge of "marital status" discrimination in circumstances like these.

Decision in Georgia Tech Case

A federal district court issued a decision yesterday in Sklar v. Clough, a case in which two Georgia Tech's students challenged numerous university practices having some connection to religion. Those practices included (1) the creation of a Safe Space program; (2) a ban on funding "religious activities"; (3) the limitation of certain student expression to a "speech zone"; and (4) the adoption of a "speech code."

Inside Higher Education's article is here. The Chronicle of Higher Education's article is here. The Alliance Defense Fund's reaction is here. Georgia Tech's statement is here.

Among other things, the court concluded that the university's inclusion of religious materials in the "Safe Space" program violated the Establishment Clause. Those materials essentially declared that the orthodox view on homosexuality was theologically wrong.

Oral Argument Set in California Health Care Conscience Case

The California Supreme Court has scheduled oral argument for May 28, 2008, in North Coast Women's Care Medical Medical Group v. Superior Court, a potentially important case pitting the conscience rights of a health care provider against a sexual orientation non-discrimination rule.

Guadalupe Benitez was a patient of Dr. Christine Brody, an OB-GYN at North Coast Women's Care Medical Group. Brody provided a number of fertility-related services to Benitez, but declined to provide a particular procedure called intrauterine insemination. Brody had a moral objection to providing that service to an unmarried woman. Benitez intended to raise the child with her homosexual partner. Benitez quickly located another doctor willing to perform the procedure.

Benitez nonetheless sued Brody and her practice. She claimed that they violated California's Unruh Act, which prohibits discrimination on the basis of "sexual orientation" (among other things) in business establishments. Brody asserted religious freedom defenses, which the lower courts rejected. The California Supreme Court agreed to take the case.

The case implicates two of the CLS Center's current emphases: the application of nondiscrimination rules to religious individuals and religious institutions, and the conscience rights of health care providers. The Center filed a friend of the court brief supporting Dr. Brody.

Prof. Mark Noll and Judge Michael McConnell to co-lead DC seminar on religion and the Constitution June 8-14, 2008

Two distinguished scholars, Prof. Mark Noll of Notre Dame and Judge Michael McConnell of the Tenth Circuit Court of Appeals, are to co-lead a seminar, The Influence of Religion on Constitutional Thought, to be held in Washington, DC at the George Washington University from June 8-14, 2008. The deadline to apply was April 21, 2008; however, applications are still being accepted.

Readers may be interested in Judge McConnell's most recent scholarly writing: Justice Brennan's Accommodating Approach Toward Religion, 95 Cal. L. Rev. 2187 (2007), from a symposium on the legacy of Justice Brennan. Here is an excerpt from p. 2189:

Justice Brennan defended interpretations of the Constitution that were as favorable toward religion--and in most cases, more favorable--than the interpretations of his more conservative colleagues. This should give pause to those conservatives who think that progressive jurisprudence is necessarily a threat to religious freedom or religious values, and it should also give pause to those progressives who now advocate a jurisprudence more hostile to religion.

Department of Justice Religious Freedom in Focus on Bronx Household of Faith

The newest edition of the First Freedom Project Religious Freedom in Focus e-mail newsletter (March/April 2008 Volume 32) highlights the Department of Justice's amicus brief work in Bronx Household of Faith v. Board of Education of the City of New York.

The Bronx Household of Faith, an urban church in New York, has struggled for over ten years to obtain equal access to the after-hours use of school facilities for its worship services. The school board has flung open the doors of its facilities for use by a wide variety of community groups but has shut the door on religious worship.

In the brief filed on April 1, the United States reiterates its prior argument that “excluding religious activity because it is religious is presumptively unlawful.” The brief repeats its objection to the school board’s position that worship is an entirely different mode of speech that falls outside of traditional First Amendment analysis. The United States brief points out that the Supreme Court rejected such an argument more than 25 years ago in Widmar v. Vincent (1981), where the Court held that courts could not, under the First Amendment, distinguish categorically between religious speech generally and religious worship. The Widmar Court found that there was no principled basis to determine when “singing hymns, reading scripture, and teaching biblical principles, . . . cease to be ‘singing, teaching and reading’ – all apparently forms of speech despite their religious subject matter – and become unprotected worship.”

The CLS Center also submitted an amicus brief in the most recent round of litigation in this case, arguing that the school board's use of religion as a factor to exclude the Bronx Household of Faith from its forum also violates the Free Exercise Clause.