Forced Coverage of Contraception

Catholic Charities of the Diocese of Albany has asked the U.S. Supreme Court to stop New York from pressuring it to pay for contraception. CLS has joined an amicus brief written by Sidley & Austin urging the Court to take the case.


The New York’s Women’s Health and Wellness Act ("WHWA") requires that all group insurance policies that include coverage for prescription drugs also provide coverage for prescribed contraceptive drugs or devices. The legislature exempted "religious employers" from this requirement, but defined that phrase narrowly.


Catholic Charities fell outside this exemption, and was thus required, contrary to its religious beliefs, to pay for contraceptives if it continued to provide prescription drug insurance coverage to its employees. It filed a religious freedom lawsuit, which the New York courts rejected. On May 18, it asked the U.S. Supreme Court to review the lower courts' rejection of its claims.



California adopted a similar law, and Catholic Charities of Sacramento filed a similar lawsuit. It lost in state court, and the U.S. Supreme Court refused to take its case. We hope that the Court takes the New York case and reverses the lower courts' decision that free contraception is more important than religious liberty.

Were Abortion Advocates Blowing Smoke or Have We Just Had 97 Days of Remarkable Luck?

The Supreme Court issued its decision in Planned Parenthood v. Gonzales (and Carhart v. Gonzales) on April 18, 2007, upholding the constitutionality of the Partial Birth Abortion Ban and holding that a "health" exception to the statute was not constitutionally required (the law contains a life exception). Abortion advocates argued to the Court that the lack of a health exception in the law would threaten women's health. In the wake of the decision, Planned Parenthood warned that it was "bad news for women's health and safety." A multitude of voices, both among the full-time abortion advocates and those advocates employed as newspaper editorialists warned of the imminent harm women faced as a result of the decision.

As Ramesh Ponnuru pointed out, the number of Partial Birth Abortions performed annually prior to the Court's decision was very much in doubt. But as he notes even the Guttmacher Institute, Planned Parenthood's research arm, admits that there were 2200 Partial Birth Abortions in 2000. Accepting this figure, likely a serious understatement, 6 partial birth abortions were performed every day. Ruling out such procedures when necessary to save a woman's life - a circumstance that has never been shown to exist in the real world but nonetheless exempted under the Act - as of today, July 23, 2007, that is 582 partial-birth abortions NOT performed since the Supreme Court's decision came down.

Although the Court noted that its decision would permit an as-applied challenge to the PBA Ban in the case of a woman whose health would actually be threatened were she not allowed to have a partial-birth abortion, and Justice Ginsburg invited such a case in her dissent, no such challenge seems to have been brought. Given that such a woman would presumably need immediate relief from a court - through a temporary restraining order - one would think that if such a circumstance presented itself that the case would almost immediately find its way to court on an emergency basis. At a minimum, one would think that we would have heard well-publicized stories of these women whose health was jeopardized by not being able to have their child delivered alive past the navel (or its head delivered) and THEN killed. It seems that experience is teaching us that the American Medical Association was right when it determined that partial-birth abortion is "not medically indicated."

582 averted partial-birth abortions and NO women harmed. Either an incredible run of luck or perhaps it underscores the biggest victory in the case for life - the unmasking of the abortion lobby's claims that abortion protects women's health.

New Article on the Clash Between Nondiscrimination Laws and Religious Freedom

Greg Baylor and I have an article in the latest issue of Engage entitled, "Nondiscrimination Rules and Religious Associational Freedom." As the title suggests, the article deals with the interplay between the growing tide of federal, state, and local nondiscrimination laws and the religious freedom guaranties of the United States Constitution. The article concludes that "a proper regard for religious liberty should move government to exempt religious organizations from such nondiscrimination rules," and when this does not happen, "courts should--and must--find violations of the Constitution."

On air: Tim Tracey discusses BYX case on Sirius satellite radio

Tim Tracey discussed the Beta Upsilon Chi (BYX) case on today's afternoon edition of Across the Nation with Bob Dunning, on Sirius Satellite Radio Channel 159, the Catholic Channel.

Listen online (3 day free trial or paid subscription required).

Questioning Beta Upsilon Chi's Piety

The Independent Florida Alligator Online has a letter to the editor from Daniel Morgan, in which he accuses Beta Upsilon Chi (BYX) of not being "pious." He writes that truly "pious" Christians are "to use persecution and unfair treatment as a testimony to their moral rectitude," rather than resorting to lawsuits. He says that instead of bearing up under persecution, BYX is "clamor[ing] loudly for special privileges."

Morgan unfortunately has an incomplete grasp of what the Bible says regarding lawsuits. He relies on 1 Corinthians 6:7, which says, "To have lawsuits at all with one another is already a defeat for you. Why not rather suffer wrong? Why not rather be defrauded?" On its face, the verse seems to support Morgan's point. But in context, the verse's meaning is clearly limited to lawsuits between Christian believers.

In verse 1 of Corinthians 6, Paul talks of the believers within the Corinthian church having “a grievance against another” (i.e., another believer). Paul says in verses 5-6, "Can it be that there is no one among you wise enough to settle a dispute between the brothers, but brother goes to law against brother, and that before unbelievers?" So the passage only deals with lawsuits between believers.

Indeed, if Paul was prohibiting Christians from exercise their legal rights, then he failed to follow his own teaching. In Philippi, he asserted his rights as a Roman citizen and received an apology for having been wrongly beaten. In Jerusalem, he invoked his Roman citizenship to prevent a centurion from whipping him. He subsequently defended himself in a Roman court, and ultimately he exercised his right to appeal to Caesar.

For those interested, a great article dealing with this topic is Christians & Lawsuits: Bizarre or Biblical? by Travis Barham.

It's also worth noting that BYX is not seeking a "special privilege." The University of Florida recognizes a host of single-sex student organizations, such as the Women's Chorale, Men's Roller Hockey Club, Progressive Black Men, etc. BYX is only asking that it be treated the same.

News coverage of Beta Upsilon Chi lawsuit against Univ. of Florida officials

A midday roundup of news stories on Beta Upsilon Chi v. Machen:

All-male Christian fraternity sues UF, by Alice Wallace, for the Gainesville Sun

Christian Fraternity Sues U. of Florida Over Denial of Recognition, by Andrew Mytelka, for the Chronicle of Higher Education

Anti-Discrimination Policy vs Student Religious Rights: Once More Unto the Breach, by Steve Sheinberg for Religion Clause

University Sued for Refusing to Recognize Christian Group, by CitizenLink (Focus on the Family Action)

Previously:

The AP story.

The original blog story.

The press release.

The filed complaint.

Center Sues University of Florida for Excluding Christian Fraternity

UPDATE 5:00 p.m. EDT: Read the AP story on the lawsuit, Christian frat sues University of Florida claiming exclusion by Mitch Stacy.

The Center filed suit today against University of Florida officials on behalf of Brothers Under Christ/Beta Upsilon Chi (BYX), a Christian fraternity. University officials refuse to recognize BYX as a registered student organization because the fraternity limits membership to men, and refuses to allow the fraternity to go under the Greek system because it requires members to share the group's Christian beliefs.

BYX is caught in a conundrum. To be recognized by the University, it either needs to give up its identity as a men's organization or abandon its religious criteria for members. Obviously, neither option is acceptable to a Christian fraternity.

Interestingly, during the 2005-2006 and the 2006-2007 school years, the University of Florida actually recognized a Christian fraternity and a Christian sorority as registered student organizations. The University now claims it will no longer recognize any Christian fraternities and sororities as registered student organizations since they "discriminate" on the basis of sex. This despite the fact that the University recognizes a host of other single-sex organizations, such as the Women's Chorale and the Men's Roller Hockey Club.

Summary of Opinions in Hein v. Freedom From Religion Foundation

The following summary of the Supreme Court's opinions in Hein v. Freedom From Religion Foundation was prepared by Pamela McElroy, a Blackstone intern spending her summer here at CLRF:

Hein v. Freedom From Religion Foundation, No. 06-157, slip op. (U.S. June 25, 2007), asked whether federal taxpayer status confers standing to challenge an executive action as a violation of the Establishment Clause. The Supreme Court, in a 5-4 decision, reversed the Seventh Circuit and answered no. Justice Alito, writing for a plurality of the Court comprised of himself, Chief Justice Roberts, and Justice Kennedy, rejected what he described as the Seventh Circuit’s broad reading of Flast v. Cohen. According to Alito’s opinion, Flast confers standing to federal taxpayers to raise challenges under the Establishment Clause only if the challenged activities are funded by specific congressional action or appropriation. Alito purports to “leave Flast as [he] found it,” but the logic of the holding fractured the Court, provoking sharp criticism from the four dissenters and from Justice Scalia, who, joined by Justice Thomas, concurred in the judgment only. Id. at 24.

The taxpayers in Hein alleged that national conferences held as part of President Bush’s Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment. The District Court dismissed the claim for lack of standing. The Seventh Circuit then reversed, reading Flast as granting standing to challenge any program on Establishment Clause grounds so long as the activities were financed by any congressional appropriation, even where no statutory program existed. In overturning the Seventh Circuit decision, Justice Alito emphasizes the importance of “the kind of redressable ‘personal injury’ required for Article III standing,” and characterizes Flast as a carved-out, narrow exception to the personal injury requirement. Id. at 8, 11.

Alito then proceeds to hold that the challenge presented did not satisfy the two-part standing test articulated in Flast. Flast stated that in order to show standing derived simply from federal taxpayer status, a taxpayer must first “establish a logical link between that status and the type of legislative enactment attacked.” Id. at 11 (quoting Flast v. Cohen, 392 U.S. 83, 102-103 (1968)). Essentially, this means that federal taxpayers can only challenge the constitutionality of exercises of congressional power under the taxing and spending clause of Article I, Section 8. Secondly, the taxpayer must show that the challenged legislation “exceeds specific constitutional limitations” imposed on Congress’ taxing and spending power, “not simply that the enactment is generally beyond the powers delegated to Congress by Article I, Section 8.” Id. at 11. Alito never reaches the second prong, finding that this particular challenge does not satisfy the first prong of the Flast test, because the challenged program is not funded by the correct “type of legislative enactment.” Id. at 13. “The expenditures at issue,” he writes, “were not made pursuant to any Act of Congress,” nor were they expressly authorized by Congress. Id. at 14. The programs were funded by general appropriations to the Executive Branch, and thus they could not be challenged by federal taxpayers.

Alito goes on to express concern that a reading of Flast that conferred standing to taxpayers in this case would “raise serious separation-of-powers concerns.” Id. at 20. He notes that “Flast itself gave too little weight to these concerns,” and seeks to avoid a situation in which federal courts would be enlisted to “superintend” the Executive Branch “at the behest of federal taxpayers.” Id. at 20, 21. Alito dismisses fears of federal agencies using general appropriations to “build houses of worship, or to hire clergy,…or… to make bulk purchases of Stars of David” noting that none of these things has yet happened, and that Congress could interfere if they did. Id. at 24.

In a concurring opinion, Justice Kennedy appears to share greatly in these separation-of-powers concerns. Though Kennedy emphatically states that “the result reached in Flast is correct and should not be called into question,” he fears the ramifications of “mak[ing] a narrow exception boundless.” Hein v. Freedom From Religion Foundation, No. 06-157, slip op. 1, 2 (U.S. June 25, 2007) (Kennedy, J., concurring). For whatever it is worth, Kennedy goes on to urge government officials to make a “conscious decision to obey the Constitution” even if their actions cannot be legally challenged. Id. at 3, (Kennedy, J. concurring). Given Kennedy’s position, the plurality seems joined around a compromise decision not to disturb Flast, but to prevent its extension.

Scalia makes it clear in his concurrence in the judgment that he, unlike Kennedy, would have been much happier with a decision that overruled Flast. Like the plurality opinion, Scalia’s opinion begins with a discussion of Article III restrictions on standing, specifically the requirement of a “concrete and particularized” “injury in fact.” Hein v. Freedom From Religion Foundation, No. 06-157, slip op. 2 (U.S. June 25, 2007) (Scalia, J., concurring in judgment). Scalia argues that financial injury to a taxpayer cannot satisfy the traceability and redressability requirements for standing due to the speculative nature of any inquiry into the effects of congressional spending on any particular person’s tax bill.

Scalia then moves on to what he labels “psychic injury,” which is exactly the type of injury at issue in Hein and in Flast— the mental displeasure of seeing tax money spent in an unlawful manner. Id. at 2 (Scalia, J., concurring in judgment). Scalia would find that psychic injury does not confer standing because it is exactly the generalized grievance that the standing requirement was created to avoid. He argues however, that if psychic injury is accepted at all, there is no principled way to limit in the way that the plurality opinion has done. There is no reason to limit the acceptability of psychic injury for standing purposes, as the first prong of the Flast test does, to cases arising under Congress’s taxing and spending power. Neither is there any reason to limit standing in such cases to violations of specific constitutional limitations, as though generally exceeding the taxing and spending power were somehow less unconstitutional than violating the Establishment Clause.

Finally, Scalia argues that the plurality’s new requirement that the government expenditure be expressly allocated by Congress has “absolutely no relevance to Article III criteria of injury in fact, traceability, and redressability.” Id. at 12 (Scalia, J., concurring in judgment). He ends with a flourish, characterizing the plurality position as essentially “beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive.” Id. at 20 (Scalia, J., concurring in judgment).

The dissent, authored by Justice Souter, rejects Alito’s separation-of-powers argument, stating that, on the spending question, “there is no difference between a Judicial Branch review of an executive decision and a judicial evaluation of a congressional one.” Hein v. Freedom From Religion Foundation, No. 06-157, slip op. 3 (U.S. June 25, 2007) (Souter, J., dissenting). Souter also argues that though “injury in fact” may be straightforward in cases of economic and physical injury, “subtle” enquiry may be required in cases alleging intangible harms. Id. at 6, (Souter, J., dissenting). Souter advocates a case by case evaluation of intangible harms. He and Justices Stevens, Ginsburg, and Breyer would have found standing in this case under Flast.

Because of Kennedy’s position in Hein, taxpayers will continue to have standing to challenge alleged Establishment Clause violations in fact situations that closely resemble Flast—federal taxpayers alleging that a specific congressional act appropriates funds for a program that violates the Establishment Clause. Incidentally, just three days after it decided Hein, the Supreme Court reversed and remanded Laskowski v. Spellings to the Seventh Circuit for consideration in light of Hein. Laskowski may ultimately give the Court cause to clarify its ruling in Hein, as it will likely require further consideration of what constitutes a “specific congressional appropriation.”

Summary of Opinions in Morse v. Frederick ("Bong Hits for Jesus")

The following summary of the Supreme Court's opinions in Morse v. Frederick was prepared by Julie Baworowsky, a Blackstone intern spending her summer here at CLRF.

Morse v. Frederick, No. 06-278, (U.S. June 25, 2007).
Procedural History: The Ninth Circuit had held that a school principal violated the First Amendment when she suspended a student for a banner reading “Bong Hits for Jesus” and displayed by him across the street from the school during a parade passing the school grounds. The Ninth Circuit also held that the principal could not assert qualified immunity from personal liability for her actions. The Principal and School Board argued in the Supreme Court that school officials must have the authority to censor student speech that is deemed “inconsistent with the school’s educational mission.” Organizations across the ideological spectrum, including the Christian Legal Society, filed amicus briefs in support of the student and warning that such a broad assertion of school authority could be and often is used to justify censorship of student religious speech in schools.

The Supreme Court reversed. Justice Roberts’s majority opinion, in which Justices Scalia, Kennedy, Thomas, and Alito joined, held that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use and hence the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick. The opinion holds:
(1) That adjudicating this case on grounds of qualified immunity alone is inadequate because it would only resolve the damages question, leaving injunctive relief unaddressed.
(2) That this case is to be analyzed as a student free speech case, since Frederick was among peers at a school-approved event during school hours near school with a message visible to students.
(3) Principal Morse’s reading of the banner as either an encouragement or an imperative to illegal drug use is one reasonable interpretation for students, teachers, and others. Additionally, although it does not express a political or religious message, the banner’s reference to illegal drugs prevents judges from treating it as gibberish.
(4) It reaffirmed Fraser’s holding that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings” and Tinker’s permission to circumscribe the rights “in light of the special characteristics of the school environment.” Morse v. Frederick, No. 06-278, slip op. at 11 (U.S. June 25, 2007)
(5) Tinker and Fraser do not provide the framework for analyzing every student speech case. It refused to categorize Frederick’s banner as either disruptive under Tinker or “offensive” under Fraser.
(6) The court stresses the danger of student drug use and the “important- indeed, perhaps compelling” interest of the state schools, in a tutelary capacity, to deter drug use. Id. at 12.
(7) The special characteristics of school and the important deterrence interest allow schools to restrict student expression that are reasonably viewed as promoting drug abuse.
(8) The court characterizes consensus between the majority and dissent: (a) on the permissibility of targeted viewpoint discrimination, (b) that schools do not need to tolerate advocacy of drug use, when that speech falls short of inviting imminent lawless action, (c) that the principal should enjoy qualified immunity for her actions. It describes the real dispute as “less about constitutional first principles than about whether Frederick’s banner constitutes promotion of illegal drug use. We have explained our view that it does.” Id. at 15.

Justice Alito’s concurrence, in which Justice Kennedy joined, supports the majority “on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” Morse v. Frederick, No. 06-278, at 1 (U.S. June 25, 2007) (Alito, J. concurring) (citation omitted). The opinion states:
(1) the Court correctly reaffirms Tinker and notes it is not the only grounds on which in-school student speech may be regulated by state actors in a way that would not be constitutional in other settings. Id. at 1-2. “But I do not read the opinion to mean that there are necessarily any grounds for such regulation that are not already recognized in the holdings of this Court…I join in the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions. Id. at 2.
(2) The court does not agree with, and Alito would reject, that schools may censor any student speech interfering with its “educational mission” due to wide abuse of the definition of that mission as “the inculcation of whatever political and social views are held by” school rule-makers.
(3) Alito rejects the dangerous fiction that the state agents in schools may stand in the shoes of parents to strip them of their limits as state actors, especially since few parents realistically have a choice about public education. “Any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting.” Id. at 3.
“The special characteristic that is relevant in this case is the threat to the physical safety of students.” School officials must have greater authority to intervene before speech leads to violence, as when Tinker’s substantial disruption standard. The grave and unique threat of illegal drug use to physical safety allows “regulation standing at the far reaches of what the First Amendment permits.” Id. at 4. Because Justice Alito’s concurrence is narrower than that of Justice Roberts’ opinion and qualifies the votes of Justice Alito and Kennedy that provided the majority, Justice Alito’s opinion should be considered the controlling opinion in the case.

Justice Thomas concurred in order to state his view that Tinker was wrongly decided:
(1) The First Amendment as originally understood does not protect student speech in schools, and so Tinker’s standard is without basis in the Constitution.
(2) The practices of “iron hand” private tutors, operating under the doctrine of in loco parentis, to restrict speech in order to instill “a core of common values” and self-control were adopted wholesale by 19th Century public schools. Broad local and democratic latitude existed to allow teachers to punish speech contrary to the school and its educational goals, subject to limitation on excessive physical punishment. Morse v. Frederick, No. 06-278, at 2 (U.S. June 25, 2007) (Thomas, J. concurring).
(3) Tinker surrendered control of schools to students, resulting in confused and vague case law stating that “students have a right to speak in schools except when they don’t- a standard continuously developed through litigation against local schools and their administrators.” Id. at 9-10.
(4) Those who do not wish to be under school rules should seek redress legislatively or through nonpublic education; voluntary enrollment in public education means they must follow the school rules.

Justice Breyer’s opinion concurring in judgment but disagreeing in the reasoning, would hold instead “that qualified immunity bars the student’s claim for monetary damages and say no more.” Morse v. Frederick, No. 06-278, at 1 (U.S. June 25, 2007) (Breyer, J. concurring in judgment and dissenting in part).
(1) Serious concerns about the extension of a holding permitting viewpoint discrimination, why drug use is so differently a justification for regulation, right means to avoid significant interference with school discipline, judicial unanimity, and judicial restraint, are reasons not to decide the issue unless the Court must.
(2) There is serious dispute over the law in this case.
(3) The Saucier v. Katz “order of battle” rule that the right must be examined before qualified immunity should be set aside. Id. at 6.
(4) The remaining issue of injunctive relief (to expunge his punishment from school records) may be dealt with as unnecessary, since his punishment may be justified on other grounds upon remand to a lower court.

Justice Stevens dissent, joined by Justices Souter and Ginsburg, argues that the principal should not be held liable but that the ambiguous reference to drugs on the banner cannot be censored because of “the school’s interest in protecting its students from exposure to speech reasonably regarded as promoting illegal drug use.” Morse v. Frederick, No. 06-278, at 1 (U.S. June 25, 2007) (Stevens, J. dissenting).
(1) The limits on the school’s assertion of such compelling interests and deference to the “reasonable” interpretations of listeners are unclear.
(2) Since case law favors protecting speech short of actual harm, in this setting the dissent would employ some relaxed imminence requirement, to protect student speech unless it “expressly advocates conduct that is illegal and harmful to students.” Id.
(3) The majority permits punishment based upon a listener’s disagreement with or misunderstanding of a viewpoint and invites “stark viewpoint discrimination,” id. at 2, instead of “some targeted viewpoint discrimination.”
(4) The dissent would require a judicial determination of Frederick’s message. The majority’s characterization of it as drug advocacy, through deference to a listener’s interpretation of the speech, ignores a judge’s duty to objectively analyze speech for its most reasonable interpretation. “[I]t would be a strange constitutional doctrine that would allow the prohibition of only the narrowest category of speech advocating unlawful conduct…yet would permit a listener’s perceptions to determine which speech deserved constitutional protection.” Id. at 9.
(5) Frederick’s speech is better categorized as “never meant to persuade anyone to do anything” and therefore, not to be regulated for drug deterrence.
(6) Students are likely now to avoid any mention of illegal activity, since anyone may “reasonably” perceive it as drug advocacy.
(7) If this is a close case, the tie should go to the speaker, not the school.
(8) Justice Stevens personally reminisces about the Vietnam War protests and Prohibition-era disagreement as analogies in favor of open discussion, suggesting that perhaps one day illegal drugs will be legalized.