ACLU: Not Just Silent on Free Speech, Actually Opposed

Today in The Wall Street Journal, Wendy Kaminer has an op-ed in which she chronicles the ACLU's move from being a legitimate defender of free speech to being simply another liberal advocacy group. "Once the nation's leading civil liberties group and a reliable defender of everyone's speech rights, the ACLU is being transformed into just another liberal human-rights group that reliably defends the rights of liberal speakers."

Kaminer notes several important, recent First Amendment cases, such as Harper v. Poway, in which the ACLU remained silent because of an unwillingness to defend anti-homosexual or anti-abortion speech. Kaminer mentions the Center's university student group cases, but mistakenly states that "the ACLU tends to absent itself from cases on college campuses involving the associational rights of Christian student groups to discriminate against gay students, in accordance with their religious beliefs." Far from "absenting itself," the ACLU filed amicus briefs in opposition to the Christian Legal Society chapters at Hastings College of the Law and Southern Illinois University.

Ironically, it was the ACLU in the 1960s and 1970s that was marginalized and barred from university campuses. Indeed, many of the cases the Center relies on in defending the free speech rights of Christian student groups are ACLU cases. Now that the ACLU and the gay and lesbian student groups have free reign on university campuses, the ACLU has had a dramatic change of heart. Once the champion of free speech on university campuses, the ACLU now outright opposes such speech.

Southern Illinois University Settles With CLS Chapter

After over two years in court and a landmark decision in the 7th Circuit Court of Appeals, Southern Illinois University School of Law and the CLS Chapter at SIU have reached a settlement in CLS's lawsuit challenging SIU's derecognition of the chapter under the university's Affirmative Action/Equal Employment Opportunity Policy. Under its terms, SIU will now interpret its policies in a manner that does not prohibit a religious student organization like CLS from restricting membership and leadership to persons who agree to its Statement of Faith and do not unrepentantly engage in sexual conduct (including same sex sexual conduct) outside of a traditional marriage. SIU also agreed to pay an undisclosed sum in attorneys fees and costs and to award $10,000 for scholarships for meritorious SIU students to be administered by CLS.

We will likely have more to say on the settlement on this blog in the coming days. You can also visit the ADF website for the press release and settlement agreement.

Honest Polling on Roe v. Wade, Abortion Views

Polls on abortion and Roe v. Wade typically so completely misstate the law and the effect of overturning Roe that they are of little value in actually assessing opinion.

Here's a fresh approach. The Ethics and Public Policy Center and Judicial Confirmation Network teamed up for a poll, first asking for views on overturning Roe and THEN explaining what overturning Roe would actually mean and asking the question again. Despite the fact that people would have to admit to changing their views on this hot button question in the space of a few minutes, the poll shows a notable shift in the direction of support for overturning Roe once people are given even a brief summary of what that means, from 55 to 34 against overturning Roe to only 48-43 against - within the margin of error. And 60% believe abortion should be illegal in the vast majority of cases. A memo describing the poll results is here. The polling results themselves are here. Or for a shorter version of all this, just read Ed Whelan's post at Bench Memos.

More on the ENDA Religious Exemption

In an earlier post, I observed that the religious exemption in the recently introduced Employment Nondiscrimination Act (H.R. 2015) was narrower than the more categorical exemption that was in versions of the legislation introduced in previous Congresses.

Instead of categorically exempting religious employers, the new version of ENDA has a more complex, three-part exemption. Although I concede the following characterization is an oversimplification, it is fair to say that the first part exempts houses of worship and the second part exempts from liability other religious employers with respect to their employment of ministers. [The religious exemption is section 6 of the bill. If you're looking at the GPO's PDF, it starts on page 10.]

The third part is, at least to this reader, a little more difficult to understand. It states in part as follows:

Under this Act, a religious corporation, association, educational institution, or society may require that applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant.

One might plausibly ask what the phrase "similar positions" means. Similar to what? One conceivable reading is that the positions in question must be similar to those identified in the second part of the three-part exemption, i.e., ministers. If that is what is intended, however, then it is unclear what the third part of the exemption adds, since the second part of the exemption already exempts ministers who don't work in churches.

Perhaps the sentence refers to the scenario in which a religious employer asks employees in jobs that are similar to one another to conform to a religious tenet, e.g., refrain from homosexual conduct. In other words, the sentence is referring to the scenario in which the employer is drawing employees for a particular type of job from among those who share a particular religious commitment. If this is what is intended, then the third part of the exemption does add something to the first two parts. More on what exactly it might add . . . later.

The Wheels of Justice Grind Slowly...

but they grind exceedingly fine. Just ask Joseph Scheidler.

After twenty-one years and three trips to the Supreme Court, a federal district judge in the Northern District of Illinois has entered a final judgment (hat tip to Howard Bashman) in National Organization for Women v. Scheidler, et. al., vacating awards of over $250,000 and permanent nationwide injunctions against individuals and organizations (Operation Rescue and the Pro-Life Action League) who protested at abortion clinics. The case began over two decades ago when NOW filed its complaint arguing that the anti-abortion protests violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO). In February 2006 the Supreme Court had finally foreclosed that argument by an 8-0 vote (newly seated Justice Alito did not participate). Scheidler v. NOW (III), 547 U.S. 9 (2006).

Despite having fought the case since the time when Ronald Reagan was meeting with Mikhail Gorbachev in Iceland, Lindsey Lohan was among the unborn, and Bill Buckner was still a well-loved Red Sox first baseman, NOW now seems to think its loss is really not a big deal. Others, of course, disagree.

New Article: 60 Years of Establishment Clause Jurisprudence

Professor Carl Esbeck of the University of Missouri School of Law has published an intriguing new article examining the six decades of Establishment Clause jurisprudence since the U.S. Supreme Court's extremely important decision in Everson.

The article is entitled, "The 60th Anniversary of the Everson Decision and America's Church-State Proposition."

AAUP Pulls an Imus on Evangelicals

American Association of University Professors (AAUP) president Cary Nelson is the soon-to-be-famous apologist for Academe, called upon to defend the Grove from charges that its husbandmen have been treating the ambassadors of the Kingdom rather shabbily. In a May 5th article by Washington post reporter Alan Cooperman, "Is There Disdain For Evangelicals In the Classroom?," Nelson answers to the finding in a recent survey by sociologists Neil Gross of Harvard and Solon Simmons of George Mason University that more than half the responding educators had high negative feelings toward Evangelicals. Nelson reassures us the poll results reflect not religious bias, but "political and cultural resistence" to Evangelicals. Based on precisely what about them? Two things, said Nelson -Evangelicals' "Republican Party activism" and "opposition to scientific objectivity." So thankfully, it's not about the Old Time Religion at all for the tutors of our children and the groomers of the next generation of leaders. It's just that Evangelicals tend to be active Republicans, and worse than that, they tend to be unscientific.

"The [gentleman] doth protest too much, methinks." Nelson, a English professor at the University of Illinois, surely knows the line comes from Shakespeare's Hamlet, and that it carries the Bard's gentle admonition to quit while you're behind. The devil is in the details, not the denial. Just ask Don Imus, who found himself out on the street after imperfectly executing the obligatory prostration before the Reverand Al Sharpton, declaring in frustration, "I can't get any place with you people." Like Imus, AAUP ought to pause anon to reflect upon the Bard's sage advice, stop protesting so much and start listening better.

Hat Tip to Constitutionally Correct

Is Academic Freedom Dead in the 4th Circuit?

Last week, the 4^th Circuit Court of Appeals decided Lee v. York County School Division, __ F.3d ___ (May 2, 2007), holding that officials of a Virginia school district did not violate a high school teacher’s First Amendment rights when it removed from his classroom bulletin board items the officials deemed “too religious.” The items included a poster of George Washington praying and articles on prayer meetings in the Ashcroft-era Justice Department among others. The Plaintiff had urged for application of the line of school speech cases beginning with Tinker v. Des Moines Independent School District. Instead, the Court held that the teacher’s speech was subject to the Pickering balancing test for speech by government employees and protecting such speech only when it is “on a matter of public concern.” The Court then concluded that the teacher’s speech was “curricular” and therefore categorically not “a matter of public concern.” Hence, the school district did not violate the teacher’s 1^st Amendment rights in removing the items from the bulletin board.

“Academic freedom” is a much heralded though rarely protected (at least on the level of the individual teacher/professor) right in Supreme Court decisions. By treating all “curricular” speech as categorically outside First Amendment protection, the Lee decision would seem to make the concept a dead letter in the Fourth Circuit. Even admitted viewpoint discrimination is permissible if the speech is deemed “curricular” - no matter how paltry the school's justification - because such speech is completely outside the protection of the First Amendment. See Slip Opinion, 19 n 17. Certainly, schools must have authority to determine their curriculum, but this decision would seem to eliminate any freedom a teacher may have had in how to present that curriculum.

Further, while this rule would not apply to "non-curricular" teacher speech, that may simply prove a tautology. The Court invoked the Supreme Court's Hazelwood decision as a test for whether speech is curricular, and this decision has been applied to situations that would not meet the common sense definition of "curriculum." See e.g. Bannon v. Sch. Dist. of Palm Beach County, 387 F.3d 1208, 1214-15 (11th Cir. 2004) (after school, voluntary, student-initiated painting project on school construction panels was curricular under Hazelwood). Indeed, the Bannon decision was cited approvingly by the Fourth Circuit.

You can read more about the decision here and here. The Rutherford Institute's press release on the case is available here.

Honey, I Shrunk the Exemption!

Starting with the 103rd Congress in 1994, various Representatives and Senators have been introducing legislation that would ban discrimination in employment on the basis of "sexual orientation." The bills generally are called the "Employment Non-Discrimination Act" (ENDA). [There is an informative timeline on the Human Rights Campaign website.]

Until now, the bills have included broad exemptions for religious employers. This Congress' version (H.R. 2015) is significantly narrower.

It categorically exempts only those employers that "ha[ve] as [their] primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief."

With respect to religious employers that don't fall within this categorical exemption, the ban on sexual orientation discrimination:

shall not apply with respect to the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship.

An additional subsection permits a religious employer to require employees in "similar positions" to conform to those religious tenets that the employer deems significant.

One could plausibly contend that this bill, if enacted into law, would subject to liability a Christ-centered, liberal arts college that disciplined a chemistry professor for engaging in homosexual activity. One could plausibly contend that this version of ENDA would forbid the CLS Center for Law & Religious Freedom from declining to hire an attorney who was unrepentently and consistently engaged in homosexual activity. In each example, one can easily imagine a court concluding that the primary purposes of the college and CLS were not the performance of ritual or the dissemination of doctrine. One can easily imagine a court concluding that the positions in question did not fall within the language in the block quote above.

Whatever ambiguity there might be about the precise scope of the exemption, there can be no doubt the ENDA's supporters intentionally narrowed the religious exemption. I suspect that they did so because they concluded that they might be able to get away with it. I have long suspected that religious exemptions in sexual orientation nondiscrimination proposals are merely concessions to political reality rather than reflective of some principled commitment to religious freedom. In other words, proponents of the homosexual legal agenda are willing to eliminate as much religious associational freedom as they can get away with.

New England Journal of Medicine Editorial Debate on Health Care Right of Conscience

Discussing a study of controversial clinical practices associated with religious beliefs and physician rights of conscience published in the February 8, 2007 issue of the New England Journal of Medicine, (Curlin, et al., 356 N. Engl. J. Med. 565, 593-600 (2007)), readers of the Journal and the authors of the study engage in a revealing dialogue about conscience rights in the current issue. See "Religion, Conscience, and Controversial Clinical Practices," 356 N. Engl. J. Med. 18 (May 3, 2007), available here. The springboard for this discussion is the conclusion by Dr. Farr A. Curlin and his co-authors, of the University of Chicago, that "Patients who want information about and access to such procedures may need to inquire proactively to determine whether their physicians would accommodate such requests." A U. of Chicago colleague, Dr. Lainie F. Ross (with Dr. Ellen W. Clayton of Vanderbilt University), finds this conclusion "disturbing":

To impose the philosophy of caveat emptor is morally inadequate, given the differences in power and class between many physicians and their patients. Physicians must not be permitted to disavow responsibility on the grounds of conscientious objection; rather, such practitioners must choose careers in which their fundamental values do not interfere with the autonomy and well-being of patients.

Dr. Nada L. Stotland of Rush Medical College in Chicago concurs: "The onus is on our profession to confront the willingness of so many of our colleagues to substitute their personal values for the fundamental right of their patients to know their treatment options," she writes. Other correspondents compare the exercise of health care conscience rights motivated by sincerely held religious beliefs to the Roman Catholic Church's influence in post-Soviet Poland, which they claim "led to the systematic deprivation of services" and "de facto elimination of access to abortion, prenatal diagnosis, and most contraception" (Dr. Joanna Z. Mishtal and Dr. Wendy Chavkin of Columbia University); and to the Chilean government's current efforts to make emergency contraception available to minors as young as 14, where the Catholic Church's opposition and the exercise of individual physician conscience may present "difficulties" for the implementation of the policy. (Dr. Victor Zarate, University of York, U.K.)

For the defense, correspondents calling themselves "physicians in the 'high religiosity' category" remind readers that the dialogue is not just about "rights," but about doctors' respective responsibility to do moral good, especially to their patients. "If we truly believe that a given procedure violates patients' intrinsic human dignity, then our responsibility to our patients mandates that we not help them procure that procedure," say Dr. Patrick O'Connell of Raleigh, NC and Dr. Jacques Mistrot of Westchester Institute for Ethics and the Human Person. Dr. Kenneth Parsons of the University of Texas Health Science Center at Houston weighs in with anecdotal evidence of the dangers of vaulting patient autonomy over physicians' conscience. As an attending physician for patients with spinal cord injury during rehab, Dr. Parsons recalls, he heard many patients who were on life support voicing a request for physician assisted termination. Negotiations to "give life a try" were usually successful, he reports, and most of his patients found value in their lives after a frank dialogue about the patient's and the physician's respective values.

The authors of the study (along with Dr. Curlin, Ryan E. Lawrence, M.Div. and Dr. John D. Lantos), offer a thoughtful response:

If a judgment of conscience were merely a statement of personal preference or an expression of prejudice, the claims of Dr. Stotland and Drs. Ross and Clayton would be justified. But anyone who has been hounded by a sense that he or she has acted wrongly knows that is not how the conscience works. Those who act conscientiously do not "disavow responsibility" and "substitute their personal values for the fundamental rights of their patients." Rather, they are engaging in the struggle to know and do the right thing and to understand and fulfill their moral obligations in a particular situation. This task cannot be externalized or delegated. Indeed, acting conscientiously is the heart of the ethical life, and to the extent that physicians give it up, they are no longer acting as moral agents.

The authors heartily agree that the profession cannot permit all purported judgments of conscience, such as refusals to provide treatment based on a patient's race or sexual orientation, since such refusals "undermine the primary goal of medicine, which is to restore the health of those who are sick." But the practices about which they surveyed physicians, including abortion and terminal sedation, were not such examples, the authors note. Rather, they say, "These practices are controversial precisely because there is disagreement about whether they are consistent with the goals of medicine." Curlin, et al., conclude with a ringing defense of conscience rights:

Conscientious practice in a pluralistic world is messy even when peaceable. Yet the alternative is a society in which physicians are required to forfeit conscience in order to join the profession. Patients will not be well served by moral automatons who shape their practices, without struggle or reflection, to the desires of patients and the dictates of whatever regime is currently in power.

The entire correspondence, together with the original study report, are a fascinating glimpse into the thoughtful approaches to conscience rights being considered by practitioners and academics in medicine on both sides of the issue.

Hate Crimes Bill Passes House

By a vote of 237-180, the House passed the Local Law Enforcement Hate Crimes Prevention Act (H.R. 1592).

The Executive Office of the President issued a "Statement of Administration Policy" indicating that if H.R. 1592 were presented to the president, his senior advisors would recommend that he veto the bill.

Many religious conservatives (e.g., Chuck Colson, James Dobson) have argued that the Act would undermine the freedom to express moral disapproval of homosexual conduct. The EOP's statement does not raise that concern.

CLS Officially Dubbed a "Politically Incorrect Group" by Academe

Charles Russo and Bill Thro have published "The Constitutional Rights of Politically Incorrect Groups: Christian Legal Society v. Walker as an Illustration," in the Journal of College and University Law (Vol 33, no. 2 at 361). The Journal is published by the National Association of College and University Attorneys (NACUA), and bills itself as "the only national law review devoted exclusively to higher education law." Russo is an education professor and adjunct law faculty at University of Dayton as well as past president of the Education Law Association, and Thro is the Solicitor General of the Commonwealth of Virginia and currently chair of the Journal's editorial board. While the authors provide the official christening of CLS as "non-PC" by the standards of Academe and its scriveners, thereby confirming what we've long suspected, they also get the First Amendment analysis largely right.

The authors initially note in passing an "inevitable tension between the freedom of association and a college or university's desire to prevent discrimination." Id. at 372. (Why there should be a tension between a public institution's laudable desire to prevent religious discrimination and a religious student group's freedom to associate around religious ideals is puzzling, but the authors unfortunately spend little time dissecting this apparently ubiquitous academic sop.) But reviewing the Supreme Court caselaw governing the rights of student associations, including Healey v. James and Board of Regents v. Southworth, the authors nonetheless conclude what CLRF attorneys have been telling NACUA's members for a number of years in cases like CLS v. Walker - that religion is different from other protected statuses because religion is belief. Russo and Thro comment:

[R]egardless of whether an organization may discriminate based on immutable characteristics, it may discriminate based on belief. In other words, the Democrats can exclude Republicans, the Muslims can exclude the Christians and Jews, the Catholics can exclude Protestants, and the Students for Abstinence until Marriage can exclude those who believe in casual sex. An institution may not deny recognition, access to facilities, or funding because of a group's beliefs.

Id. at 375. "In sum," the authors pointedly conclude, "the constitutional rights of the politically incorrect student organizations largely trump a public college or university's desire to prevent student groups from engaging in discrimination. Discrimination on the basis of belief is absolutely protected." Id. at 386. Russo and Thro should be commended for speaking plain sense even though their conclusions may not be politically popular in the current environment on college and university campuses. Here's hoping NACUA's members, and the university adminstrators they counsel, are listening.

The Employment Non-Discrimination Act and the Definition of "Sexual Orientation"

The Employment Non-Discrimination Act (H.R. 2015) has been introduced again in Congress by Rep. Barney Frank (D-MA) and numerous others. ENDA amends Title VII to forbid discrimination in employment on the basis of "sexual orientation" and "gender identity."

Section 3(a)(9) of the bill states that "[t]he term 'sexual orientation' means homosexuality, heterosexuality, or bisexuality."

The definition of "sexual orientation" has been a point of controversy in many of the lawsuits in which the CLS Center has challenged the application of nondiscrimination policies to religious groups. The use of the word "orientation" suggests that it refers to a person's sexual attraction to members of the same sex, the opposite sex, or both. CLS itself -- and virtually all of the theologically conservative Christian organizations we have encountered -- do NOT discriminate on the basis of "orientation" per se. In other words, the fact that a person experiences same-sex sexual attraction does not disqualify him or her from employment, membership, or leadership. It is his or her conduct that primarily matters; whether the person engages in extramarital sexual activity (whether homosexual or heterosexual) is the key thing.

It is hard to imagine that homosexual rights advocates would be satisfied with rules that merely barred discrimination on the basis of orientation per se and thus allowed employers to take conduct into account.

It is not clear to me that ENDA's definition of "sexual orientation" entirely resolves the ambiguity about the phrase. However, I suspect that ENDA supporters would argue that the word "homosexuality," for example, refers not only to one's sexual attraction to members of the same sex, but also to one's participation in same-sex sexual intimacy.

Press Coverage of PFOX Lawsuit Against Arlington (VA) Schools

One place the Associated Press story can be found is here.

The Washington Post story is here. (It's the third story in the "Virginia Briefing.")

The Washington Times item is here.

Center Files Lawsuit Against Arlington Public Schools

The Center filed a lawsuit yesterday against Arlington Public Schools (APS) in Virginia. The lawsuit was brought after APS refused to distribute informational fliers to high school students for a community outreach organization called Parents and Friends of Ex-Gays and Gays (PFOX).

APS distributes fliers for a variety of community organizations. The school district's flier distribution policy in fact states that "[a]pproval is normally given to materials submitted from non-profit organizations in Northern Virginia." Surprisingly, APS's policy provides absolutely no criteria to guide school officials in determining whether to approve or disapprove a particular flier.

The law in the Fourth Circuit regarding flier distribution at public schools is particularly well-established. The Fourth Circuit in Child Evangelism Fellowship v. Montgomery County Public Schools I, 373 F.3d 589 (4th Cir. 2004) (subscription required), held that Montgomery County's refusal to distribute Child Evangelism Fellowship's flier was viewpoint discriminatory. Then last year, in Child Evangelism Fellowship v. Montgomery County Public Schools II, 457 F.3d 376 (4th Cir. 2006) (subscription required), the Fourth Circuit held that Montgomery County's second attempt at a flier policy was also unconstitutional because it failed to provide criteria to guide school officials in reviewing fliers.

Regardless of what one may think of PFOX, the law is clear.

Ruling Soon in Student Aid Case?

U.S. District Court Judge Marcia S. Krieger appears to be poised to rule on cross-motions for summary judgment in Colorado Christian University v. Weaver, a case challenging various Colorado statutes denying state student aid to students attending "pervasively sectarian" schools. The state deemed Colorado Christian University (CCU) to be pervasively sectarian. Its students are ineligible for aid without regard to what they major in.

Today, Judge Krieger vacated a May trial date and declined to schedule a pretrial conference. Judge Krieger also indicated that a substantive ruling on the cross-motions for summary judgment "shall issue." One could reasonably infer that the ruling will issue in the near future.

The outcome of this case is obviously important to CCU and its students. It also might be important doctrinally. In Locke v. Davey, the U.S. Supreme Court held that Washington did not violate the Free Exercise Clause by denying aid to students training for the clergy. Some have argued that the Locke decision gives government carte blanche to discriminate against religion in the funding context. Others -- including the CLS Center, which represents CCU in this case -- contend that Locke hardly stands for such a broad and problematic proposition.

Stay tuned.

Hate Crimes Legislation

The CLS Center has not studied the legislation or taken a position, but many religious conservatives appear to be opposed to the hate crimes legislation moving through the House of Representatives.

In a Breakpoint commentary, Chuck Colson articulates his reasons for opposing the proposed Local Law Enforcement Hate Crimes Prevention Act (H.R. 1592). Colson asserts that the bill is:

about outlawing peaceful speech—speech that asserts that homosexual behavior is morally wrong.

90's Flashback: An attempt to force a judge with "fervently-held" views on abortion to recuse himself

Don't you love the life you killed
The priest is on the phone
Your father hit the wall
Your ma disowned you
Don't supposed I'll ever know
What it means to be a man
Something I can't change
I'll live around it

Goo Goo Dolls, Slide, on Dizzy Up The Girl (Warner Bros. 1998) (deciding between abortion or marriage).

Modern adult contemporary radio stations have 90's flashbacks during the lunch hour; now blogs do too.

In light of Prof. Geoffrey Stone's "Our Faith-Based Justices" -- certainly the most famous law professor piece of 2007 -- here is a historical footnote in the abortion wars. Attempts to erode the legitimacy of judicial decisions on account of the judge's religious beliefs are not new, of course. However, direct attacks on the judge's ability to preside over a case are to my knowledge rare. Here is one example from the mid-1990's. In an abortion clinic's civil action brought against protesters under RICO, plaintiffs moved that Judge John T. Noonan, Jr. -- a Roman Catholic -- recuse himself because his "fervently-held religious beliefs would compromise [his] ability to apply the law." Feminist Women's Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995) (subscription required). Noonan denied plaintiffs' motion, citing Article VI's Religious Test Clause. Here is an excerpt of the judge's order:

[T]he plaintiffs qualify my beliefs as “fervently-held” as if to distinguish my beliefs from those that might be lukewarmly maintained. A moment's consideration shows that the distinction is not workable. The question is whether incapacitating prejudice flows from religious belief. The question is to be judged objectively as a reasonable person with knowledge of all the facts would judge. As long as a person holds the creed of one of the religious bodies condemning abortion as sinful he must be accounted unfit to judge a case involving abortion; the application of an objective, reasonable-person standard leads inexorably to this conclusion if the plaintiffs' contention is supportable. No thermometer exists for measuring the heatedness of a religious belief objectively. Either religious belief disqualifies or it does not. Under Article VI it does not.

The plaintiffs may object that the disqualification applies only to cases involving abortion; they are not disqualifying Catholics, Jews, Mormons and others from all judicial office. This distinction, too, is unworkable. The plaintiffs are contending that judges of these denominations cannot function in a broad class of cases that have arisen frequently in the last quarter of a century. The plaintiffs seek to qualify the office of federal judge with a proviso: no judge with religious beliefs condemning abortion may function in abortion cases. . . .The proviso effectively imposes a religious test on the federal judiciary.

Id. at 400-01.

It seems clear that a frontal assault on judges because of their religion is bound to fail, and thus critics are reduced to mere skirmishes. Indeed, Ed Whelan at Bench Memos reported Monday that Prof. Stone has engaged in some tactical redeployment in the wake of criticism. Perhaps there are creative thinkers who are framing legal arguments on recusal to avoid the Religious Test Clause, but at the moment, the battle appears to be on the grounds of the court of public opinion.

More on Staffing Freedoms and Head Start

In my post earlier today, I criticized those groups that oppose protecting the religious staffing freedom of religious organizations that seek to operate federally funded Head Start programs.

On its blog, the Baptist Joint Committee has posted the text of a joint letter to Congress urging it not to add religious staffing protections. Among other things, the joint letter states:

For 35 years, religious organizations have enthusiastically and effectively participated in the program while upholding this statutory standard. We are not aware of any call by these religiously based Head Start programs for congressional authority to begin to discriminate in this federally-funded program.

It is unsurprising that current Head Start program operators have not called for increased protection of religious staffing freedoms. After all, it is safe to assume that such operators elected to participate in the program despite its failure to protect hiring rights either because they did not staff on a religious basis or because they concluded that receiving federal funding to operate Head Start programs was a higher priority than continuing to staff on a religious basis.

One might also reasonably speculate that current providers are uninterested in opening the door to greater competition for funding by eliminating a barrier to the participation of groups that staff on a religious basis.

Religious Staffing Rights & Head Start

The U.S. House of Representatives is set to consider a bill reauthorizing the Head Start program. Rep. Luis Fortuno (R-PR) has offered an amendment that would protect the religious staffing freedoms of religious employers participating in Head Start-funded programs.

The Education and Labor Committee rejected the amendment during mark-up in March, but there is reason to believe that Fortuno's amendment might pass on the floor.

Many of the usual suspects oppose the Fortuno amendment. A group called the Coalition Against Religious Discrimination (CARD) has sent a letter to House members urging them to vote against the amendment. CARD's leaders include Americans United for Separation of Church and State, the ACLU, and People for the American Way.

The most interesting of their arguments is the assertion that when religious employers preserve their religious identity by hiring co-religionists, they behave in a condemnable, invidious fashion. This is a remarkable charge, one that contradicts the accommodation of religious freedom found in virtually every police power rule banning religious discrimination in employment. If CARD is right that taking religion into account in hiring is always wrong, why should Title VII continue to exempt religious employers from the ban on religious discrimination? The presence of government dollars doesn't change the morality of religious staffing.

Another interesting note: a number of liberal religious groups oppose religious staffing freedoms. CARD's members include the American Baptist Churches (USA), the American Friends Service Committee, the American Jewish Committee, the American Jewish Congress, the Baptist Joint Committee, the Episcopal Church USA, and the Washington Office of the PCUSA. Presumably, each of these entities preserves its particular identity by selecting its leaders from among those who share its religious commitments. As a result, their opposition to religious staffing freedom, although concededly limited to circumstances where public money is involved, undermines the foundation of their own religious liberty.

The reality is that theologically conservative groups are more likely to have and apply religious criteria in the employment context than are theologically liberal groups. Therefore, restrictions on religious staffing freedom generally don't gore the left's ox, and gore the ox of those with different theological and religious views -- views with which the left disagrees.

Hat tip: the Coalition to Preserve Religious Freedom, headed up by the Center for Public Justice.