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.

Center urges court to protect equal access for religious charities seeking inclusion in Iowa state employee charitable campaign

The CLS Center filed a motion for preliminary injunction today in Association of Faith-Based Organizations v. Anderson to request the enjoining of the Iowa "One Gift" state employee charitable campaign requirements demanding that applying charities certify that they do not engage in religious activity, including advocacy for religious viewpoints.

Such certification requirements effectively exclude AFBO member religious charitable organizations that are honest and truthful about their religious expression; thus, these requirements deny equal treatment to religious charities.

One Gift includes over four hundred charities reflecting a variety of viewpoints to provide a broad range of choices for state employees to make voluntary donations via payroll deduction. The effective exclusion of charities that provide substantial services and also express religious viewpoints is puzzling and unconstitutional because they discriminate against religious viewpoints in violation of the Free Speech Clause and because they single out religion for special disfavor in violation of the Free Exercise Clause.

More information on AFBO v. Anderson will be available soon at the CLS website. See AFBO's website for general information on AFBO's work to protect the rights of faith-based organizations.

So, I ask again. Was Planned Parenthood Lying?

Or perhaps they're just understaffed?

One year ago last Friday, on April 18, 2007, the Supreme Court rejected facial challenges to the constitutionality of the federal Partial Birth Abortion Ban. Before and after the Court's ruling in Gonzalez v. Carhart, Planned Parenthood attorneys had warned that permitting the ban on partial birth abortions to go into effect would threaten women's health. Expressing the same concerns, Justice Ginsburg predicted and invited as-applied challenges to the PBA ban to protect womens' health.

Ninety-seven days after the decision I noted here that it was odd then that Planned Parenthood had not brought such an as-applied challenge. After all, according to Planned Parenthood, 6 partial birth abortions were occurring per day. Assuming the truth of this figure - and it was likely a gross understatement - there have now been 2232 partial birth abortions that have NOT happened as a result of the Court's decision last April. Ed Whalen also notes that the attempted explanations for Planned Parenthood's failure to bring an as applied challenge on behalf of one of these thousands of women no longer hold water (and never did).

So, I ask again. Is it possible that Planned Parenthood wasn't being entirely truthful when it told the Court that partial birth abortion was necessary to protect womens' health? Or have we just witnessed 372 remarkably lucky days?

Prof. Douglas Laycock on the future of gay rights and religious liberties

The Emory Center for the Study of Law and Religion recently posted complete transcripts of the talks delivered at its 25th anniversary conference, From Silver to Gold: The Next 25 Years of Law and Religion, held in October, 2007.

Here is an excerpt from Prof. Douglas Laycock's talk on The Future of Religious Liberty, A Conscripted Prophet’s Guesses About the Future of Religious Liberty in America. Prof. Laycock is Yale Kamisar Collegiate Professor of Law at the University of Michigan. Here is his glimpse of the shape of things to come:

It was the gay rights movement that rallied the broader civil rights movement to kill the proposed Religious Liberty Protection Act. That was a case where the evangelicals were willing to put much more on the bargaining table, surrender much more than the gay rights side was. The evangelicals still lost. Gay rights said we want an absolute exception or we’ll kill the bill, and they killed the bill.

So there will be gay rights laws with absurdly narrow religious exemptions, perhaps eventually with no religious exemptions at all, and there will be conservative believers who impose [sic] enactment of those laws, who resist compliance, who seek exemptions. As the gay rights movement continues to make progress, we are likely to see more and more serious religious liberty issues arising out of its success.

"Equal access is the law, and equal access means equal treatment in every respect, including equal cost."

"Equal access is the law, and equal access means equal treatment in every respect, including equal cost," says Mathew D. Staver for Liberty Counsel. Liberty Counsel, representing Child Evangelism Fellowship of Virginia (CEF), challenges the Williamsburg-James City County Public Schools' discriminatory refusal to grant a waiver for the usage fee to CEF for use of its facilities, even though the district grants "grant[s] free use to Boy Scouts, Girl Scouts and other organizations the board has deemed patriotic and community service groups."

In an earlier blog post today, CLS Center Director Greg Baylor set forth the numerous Supreme Court decisions affirming the right of equal access. Following these key cases, the Courts of Appeals have also affirmed the right of equal access in precedent-setting victories obtained by the Center on behalf of other CEF chapters, including CEF of Maryland v. Stafford Township School District in the Third Circuit and CEF v. Montgomery County Public Schools in the Fourth Circuit.

Would Government Penalties for "Too Many" Children Violate Religious Freedom?

Yesterday, USA Today published a column by Oliver "Buzz" Thomas entitled "Might Our Religion Be Killing Us?" Thomas answers the question with a "yes," arguing that the opposition of some religious groups to abortion and birth control and their encouragement of large families is harmful to the environment.

Thomas asks, "instead of providing tax breaks for having more children, shouldn't Congress be providing incentives for having fewer?"

What if the federal or state government imposed tax penalties upon couples who had, say, more than two children? Would this violate religious freedom?

It is not clear how courts would answer. At the outset, a court would consider whether having more than two children is the sort of "religious exercise" protected by the law. To be sure, having children is different, at some level, from prayer, evangelism, baptism, and communion. At the same time, many couples believe that having many children demonstrates obedience to God; even more believe that abortion and artificial birth control are sinful.

A courts would also ask whether the tax penalty is a legally cognizable "burden" on religious exercise. Assuming the court found that the tax penalty burdened religious exercise, it would then likely consider whether the burden was justified by some "compelling governmental interest." At this point, the government would likely invoke arguments about environmental Armageddon. In response, the couple with three kids would argue that the existence of their third child, by itself, will not bring about the ruination of the planet.

A claim under the Free Exercise Clause might not get very far, as the government would be able to argue that the tax penalty on "excess" children is a "facially neutral, generally applicable" rule that doesn't even implicate the Clause, as interpreted by the Supreme Court in Employment Division v. Smith. However, the Religious Freedom Restoration Act (for which Buzz Thomas actively lobbied) still applies to the federal government.

In any event, it is worth noting the irony of a liberal suggesting that the government should interfere with "reproductive freedom" by pressuring married couples to use birth control, have abortions, or abstain from sexual relations.

Access to Public Meeting Space for Worship

Throughout the 1980s and 1990s, courts adjudicated numerous disputes between religious speakers and governments. The disputes arose when governments denied religious speakers equal access to public spaces, typically contending that the First Amendment's Establishment Clause required such discriminatory exclusions. Religious speakers argued that other parts of the First Amendment -- especially the Free Speech Clause -- required inclusion. These disputes illustrated the broader conflict between two visions of church-state relations: strict separationism vs. neutrality.

A number of these cases reached the U.S. Supreme Court: Widmar v. Vincent (1981) (student religious groups at public university); Westside Bd. of Educ. v. Mergens (1990) (student religious groups at public secondary schools); Lamb's Chapel v. Center Moriches Union Free Sch. Dist. (1993) (after hours use of public school to show religious film series on child rearing); Rosenberger v. Rector of the Univ. of Virginia (1995) (religious student publication access to public university financial support of speech activities); Capitol Square Review & Advisory Bd. v. Pinette (1995) (nongovernmental display of religious symbol in park near state capitol); Good News Club v. Milford Cent. Sch. (2001) (community religious group meeting at public elementary school). In each instance, the Court ruled in favor of the religious speaker, rejecting strict separationists' Establishment Clause arguments.

Despite these decisions, some governments are still reluctant to allow religious speakers to use public property. One such government is the New York City Board of Education, which has been defending its exclusion of the Bronx Household of Faith from meeting space for years. The board attempts to distinguish the Court's precedents by arguing that it is merely excluding a "subject matter" rather than a "viewpoint" on a subject that other speakers are permitted to address when using school meeting space after hours. The board's policy denies access to those wishing to engage in religious "worship." The board contends that "worship" is a "category" of speech that simply isn't permitted in the forum, in an effort to deflect a charge of discrimination on the basis of viewpoint.

The Bronx Household case is once again in the U.S. Court of Appeals for the Second Circuit, which has a notoriously poor record in equal access cases. (The Supreme Court reversed the Second Circuit in both Lamb's Chapel and Good News Club.) Briefing on the appeal was completed yesterday, when the board filed its reply brief.

The CLS Center filed a friend of the court brief in support of the church, arguing that the board's exclusion violates the Free Exercise Clause.

Associational Freedom and Nondiscrimination Rules: An AZ Legislative Proposal

In a number of cases, the CLS Center is arguing that the Constitution forbids public universities from applying religion and "sexual orientation" nondiscrimination rules to religious groups. We are often told that if a religious student group is permitted to draw its leaders from among those who share the group's religious commitments, then a white supremacist group will be able to exclude racial minorities.

There are a lot of answers to such an assertion, including the fact that religion is different from race, both inherently and in the context of American history. In addition, when a religious group organizes around shared religious commitments and maintains its identity through statements of faith, it is not committing an act of invidious discrimination.

Against this backdrop, the recent action of an Arizona legislative committee is quite interesting. As reported in the Chronicle of Higher Education, the committee has passed a bill that contains a provision that forbids students from forming student groups based on race. It would be interesting to see how a court would deal with a claim by a Black Law Students Association chapter that this provision violates its associational freedom.

"Nondiscrimination" and Tax-Exempt Status

We at the CLS Center believe that the application of religion and sexual orientation nondiscrimination rules to religious organizations is the greatest threat to religious freedom in America today. It appears as though many homosexual rights advocates want the law to treat those who hold traditional views on human sexuality the same way the law treats racists. The race analogy inevitably brings to mind the Supreme Court's decision in Bob Jones University, in which the Court upheld the IRS's decision to revoke the tax-exempt status of the university because of its policy forbidding interracial dating. If the race analogy is taken to its logical extreme, religious institutions that reserve the right to take homosexual conduct into account in the personnel decisions would lose their tax-exempt status.

More evidence that this is not just a paranoid fantasy: Widener law professor Nicholas Mirkay is publishing a second article urging the denial of tax-exempt status to religious entities that "discriminate" on the basis of sexual orientation or marital status.

This is why the pending cases pitting religious associational freedom against certain nondiscrimination rules are so important. If these cases are decided correctly, there will be clearer constitutional protection from those that want to punish religious groups for holding traditional views on human sexuality.

HT: Walter Weber of ACLJ.

The Rights of Public School Teachers

In addition to the inquiry about a student praying before lunch, we also got an email recently from a public school teacher in California who was apparently told that he could not have crosses or other religious items on his desk or on the walls of his classroom.

A thoughtful discussion of issues like these can be found in the excellent "Teachers and Religion in Public Schools," written by the CLS Center's own Kimberlee Wood Colby and published by Christian Educators Association International.

Prayer in Public Schools: US Dep't of Education Guidelines

I responded today to an inquiry about prayer in public schools. The sender of the email I received indicated that a student had been told by public school officials in Maryland that he was not permitted to thank God for his food prior to eating lunch.

The inquiry reminded me of the guidelines issued by the U.S. Department of Education back in 2003. They're available on the web here. Definitely a good resource.

RFRA and Bans on Religious Discrimination

As readers of this blog know, the freedom of religious organizations to take religious considerations into account in their personnel decisions is under attack. Certain federal statutes forbid participants in federally funded programs from "discriminating" on the basis of religion, even in their employment decisions. One objective of President Bush's faith-based initiative was to exempt religious organizations from these requirements. Legislation designed to accomplish that purpose never garnered the 60 votes necessary to get out of the Senate. As a result, these federal statutory provisions remain.

Of course, the continued existence of these provisions isn't the end of the story. In our view -- and in the view of some courts -- government violates the Constitution when it forbids religious organizations from taking religion into account in personnel decisions. The Constitution isn't the only limit on federal power over religious associational freedom; the Religious Freedom Restoration Act (RFRA) also restrains this power. In essence, RFRA declares that the federal government may not substantially burden religious exercise unless the burden is the least restrictive means of achieving a compelling governmental interest.

The question arises, then, whether federal statutes that condition receipt of federal money upon compliance with a religion non-discrimination rule violate RFRA (when applied to religious organizations). Professor Carl Esbeck of the University of Missouri has a forthcoming essay addressing this question. It is entitled, "The Application of RFRA to Override Employment Nondiscrimination Clauses Embedded in Federal Social Service Programs." An abstract of the article is on SSRN, and the paper can be downloaded from that site.

Kentucky School Funding Case Update

Readers may remember that CLS's Center for Law & Religious Freedom represents the University of the Cumberlands (UC) in a challenge to its receipt of state funding to build a pharmacy school building. Strict separationists argued that the appropriation violated provisions of the Kentucky constitution governing church-state relations. UC got in their sights after the school took action against a student who had violated its conduct policy -- which the student had agreed to follow. (The male student wrote, on a social networking site, about waking up next to his boyfriend.)

On March 6, the Circuit Court in Franklin County ruled that the appropriation for the pharmacy building violated two church-state provisions of the Kentucky constitution. The court also ruled that the legislature's creation of a scholarship program for pharmacy school students violated a provision of the state constitution regarding the procedures for appropriations.

On March 31, UC appealed to the Kentucky Court of Appeals. On April 10, we asked the Kentucky Supreme Court to directly review the trial court's decision, without an intervening Court of Appeals decision.

Court Throws Out Lawsuit Against Christian Children's Home

Kentucky can continue paying faith-based organizations to provide residential care to abused and neglected children in state custody.

On March 28, a Kentucky federal district court dismissed a lawsuit alleging that the state's payments to Kentucky Baptist Homes for Children (KBHC) violated the Establishment Clause. The court concluded that the plaintiffs lacked standing to challenge the payments. The plaintiffs had argued that their status as state taxpayers gave them the right to challenge the financial relationship between various state agencies and KBHC.

CLS Center attorneys assisted Louisville attorney John Sheller in representing KBHC. The plaintiffs have not yet indicated whether they intend to appeal the ruling to the U.S. Court of Appeals for the Sixth Circuit.