Thursday, July 31, 2008

Worldwide news coverage of Beta Upsilon Chi v. Machen decision

The Guardian - Court: Christian fraternity must be recognized

Chronicles of Higher Education - Court Orders U. of Florida to Recognize Christian Fraternity

Independent Florida Alligator - Court Orders UF to Recognize Christian Fraternity

Christian Post - Court Orders Fraternity to Recognize Christian Fraternity

Beta Upsilon Chi - Press Release

Christian Legal Society & Alliance Defense Fund - Press Release

Wednesday, July 30, 2008

Press release: 11th Circuit orders Univ. of Fla. to recognize Christian fraternity

See the press release for today's favorable 11th Circuit decision in Beta Upsilon Chi v. Machen ordering the University of Florida to recognize Beta Upsilon Chi while the case is on appeal.

For background on this case, see the updated CLS Center case summary here and download the 11th Circuit order as well as BYX's opening brief before the 11th Circuit.

Breaking News: 11th Circuit requires Univ. of FL to recognize Beta Upsilon Chi during appeal

The Eleventh Circuit has just ruled that the University of Florida must recognize Beta Upsilon Chi, aka Brothers Under Christ (BYX), during the appeal.

The University had previously denied recognition to BYX because the fraternity, which instills Christian values in college men through Bible studies, accountability groups, and other activities, requires its members to be Christians. Denial of recognition has hindered BYX's ability to grow and thrive on the university campus.

In a one line order, the Eleventh Circuit in Beta Upsilon Chi v. Machen granted appellants' Time Sensitive Motion for Injunction Pending Appeal. On the panel are judges Susan H. Black, Frank M. Hull (as per amended order), Ed Carnes, and William H. Pryor Jr. The docket number is 08-13332-E.

For background see the Center's case summary.

Tuesday, July 29, 2008

News roundup and scholarly commentary on Colorado Christian University v. Weaver victory

(Click here for the CLS Center's background and summary of the case along with the Tenth Circuit opinion and briefs of the parties and of amici curiae.)

Oglethorpe Univ. Prof. Joseph M. Knippenberg for First Things: Unfortunately, those efforts put the Colorado government in the business not only of closely scrutinizing religious doctrine and institutions but also of discriminating between denominations and institutions on the basis of their relative “sectarianism.” It’s hard to imagine two activities more at odds with the values inherent in the First Amendment religion clauses. (Well, not really: there are religious tests for office-holding, not to mention persecution, though Colorado was surely approaching the former in conditioning eligibility for student aid on the character of an institution’s professed religiosity.)

Notre Dame Law Prof. Rick Garnett on Mirror of Justice (Roman Catholic legal theory blog): Here's the key sentence: We find the exclusion unconstitutional for two reasons: the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice. More later ....

Univ. of Toledo Law Prof. Howard Friedman on Religion Clause Blog: In an important decision interpreting the scope of the Supreme Court's 2004 Locke v. Davey decision, yesterday the 10th Circuit Court of Appeals held that Colorado acted unconstitutionally in excluding from its college scholarship program students who attend "pervasively sectarian" institutions.

Howard J. Bashman on How Appealing (appellate law blog) provided early coverage of the opinion and early news articles.

Editorial of the Colorado Springs Gazette: It's shocking that state oficials needed a federal court to tell them not to discriminate on the basis of religion.

Joey Bunch for the Denver Post: Court: Colorado financial aid ban unconstitutional

Justin Pope for the Associated Press (AP): Another courtroom victory for religious colleges

Wednesday, July 23, 2008

Colorado Christian University Tenth Circuit decision available

To follow up Casey's earlier post, the Tenth Circuit Court of Appeals has posted the unanimous, published opinion in favor of Colorado Christian University, authored by Judge McConnell and joined by Judges Seymour and Holmes, reversing the district court's opinion.

Victory for Colorado Christian University Students!

The Tenth Circuit has just issued a decision in the Center's case, challenging Colorado's exclusion of students attending Colorado Christian University from state financial aid on the ground that the school is "pervasively sectarian." In a 47 page opinion written by Judge Michael McConnell, the Court unanimously held that the exclusion of CCU students from state financial aid violated both the free exercise and establishment clauses of the First Amendment.

More to follow...

Tuesday, July 22, 2008

Washington Post's Senseless Editorial on Religious Hiring Rights

In the Washington Post's editorial today, titled "Faith-Based Obama," (behind subscription), the Post finds that Obama's recent speech on the faith-based initiative and his plan to retain it while stripping religious organizations of their right to hire those who agree with their beliefs is a "sensible balance." The Post reaches this conclusion despite first acknowledging that laws prohibiting religious discrimination in employment exempt religious employers - exemptions that the Post says "only make sense." So, it is sensible to exempt religious employers from these nondiscrimination laws, but it is a "sensible balance" to prohibit them from hiring persons who agree with their views if they are receiving any government funds to provide services that the government believes are necessary. Makes perfect sense.

The flaws in the Post's thinking are many so I'll limit my comments here to a couple. First, the Post seems to approach this question, as many do, from a perspective that faith-based charities are benefitting from the government and thus must be willing to play by its rules. This approach treats faith-based nonprofits as just another government contractor. But while for-profit contractors are generally paid a market rate for a service rendered, charitable organizations receiving a grant under the faith-based initiative are not looking to profit and the grants typically cover only a part of their expenses. The remainder is paid for by the non-profit's donors. It is the government that benefits from these programs because instead of, for example, creating its own homeless shelters, soup kitchens, marriage counseling programs, etc., the government relies upon already existing faith-based and other programs at a much lower cost to the taxpayer. Approaching this matter then from the perspective of what the faith-based organization owes the government for IT's charity misunderstands the relationship.

The Post also claims that most faith-based groups that take federal funds have managed to thrive for years without discriminating in their hiring. It gives no examples, so it is unclear what the Post considers "faith-based." However, it is true that some organizations that are ostensibly religious see no need to limit hiring based on religion. That is unsurprising as an organization that does not limit its hiring to those who share its beliefs will very soon cease to represent those beliefs. And at that point there is no reason to limit hiring to those who agree with views that the organization no longer considers it important to represent.

The Post also cheerleads for imposing sexual orientation nondiscrimination rules on faith-based charities if the proposed Employment Non-Discrimination Act (ENDA) is enacted in an Obama presidency -- even if it contains exemptions for religious organizations (a topic Greg has written on several times here).

Were there any doubt, the Post's editorial unintentionally illustrates why Obama's proposal would create a faith-based initiative that that favors "progressive" religious organizations over "orthodox" religious organizations (more on this from Greg here).

Tuesday, July 15, 2008

Proposed Rule Would Protect Conscience Rights

The New York Times reports that Bush Administration will reportedly propose a rule protecting the consciences of health care providers who, for moral and religious reasons, decline to participate in abortion.

The Times article quotes a representative of National Family Planning and Reproductive Health Association, whose hostility to conscience rights was apparent in its (unsuccessful) legal challenge to the Weldon Amendment, a federal statute that protects conscience rights. The Center intervened in that challenge on behalf of pro-life medical professionals.

Monday, July 14, 2008

David Nammo of FRCAction on Obama's Faith-Based Initiative: "Works without faith is preferred."

To follow up on Greg's analysis of Obama's faith-based initiative plan today and his previous analysis on July 1, here is some additional commentary from David Nammo, past Director of Attorney & Law Student Ministries at CLS, and now Executive Director of FRCAction. Nammo was also quoted this weekend by the Denver Post in a Sunday article on Obama's faith-based plan.

According to Nammo:

Senator Obama’s proposition no longer keeps with a main tenet of charitable choice that was passed by a bipartisan majority in 1992 -- that faith-based organizations should not be required to relinquish their religious identity as a condition for participating in government-funded programs. Instead, the senator’s plan will require that religious organizations abandon their faith -- the very thing that makes them faith-based organizations in the first place.


An oft-quoted verse in the Biblical book of James is: “Faith without works is dead.”

Senator Obama appears to be attempting to rewrite
this passage to say: “Works without faith is preferred.”

Christian Marriage Registrar Punished For Refusing to Perform Gay "Marriages" Wins Religious Freedom Battle

A London tribunal has held that the North London council violated her religious freedom by punishing her for refusing to perform gay civil partnership ceremonies. The Daily Mail has more on her story and the decision here. The Evangelical Alliance (UK) called the decision "a triumph for the place of conscience in public duties." The unanimous decision by the Central London tribunal comes as the recent California Supreme Court decision declaring a right to same-sex marriage under the state constitution has set the stage for similar controversies in the U.S.

CLRF has been and is counsel in several cases in which Christian student organizations were denied recognition by their universities because their membership and leadership standards concerning extramarital sexual conduct were deemed to discriminate against homosexuals. Other conflicts between the recently created right to same-sex marriage and religious freedom, range from a Methodist Church sanctioned for refusing to rent its pavilion for a same sex civil union in New Jersey to Catholic Charities in Boston and San Francisco being forced to stop providing adoptions because they will not place children with same-sex couples.

As these conflicts grow more numerous in the wake of the California decision, it will be interesting to see whether American courts will follow this lead or whether, in an ironic turn four hundred years in the making, the English surpass their former colonies in defending religious freedom.

Obama's Vision of the Faith-Based Initiative Prefers "Progressive" Religion

Senator Barack Obama has indicated that he would not abolish the various "offices" and "task forces" within the executive branch dedicated to faith-based and community initiatives if he is elected president.

However, he also indicated that he would change the rules governing the partnerships between faith-based organizations and government. Most significantly, he would curtail the freedom of such religious groups to (1) preserve their religious character by drawing their personnel from among those who voluntarily share their religious commitments; and (2) engage in religious activities.

Some observers declared (incorrectly, in my view) that Sen. Obama's willingness to maintain the faith-based initiative at all was some sort of "Sister Souljah moment" in which he distanced himself from the secular left. These observers seemed surprised that a liberal Democrat was willing to allow any religious groups to participate in government-funded social service programs.

As I see it, and with all due respect, these observers misunderstand the mainstream liberal-left position on church-state relations. Very few on the left categorically oppose the participation of any religious group in a government-funded social service or education program. Instead, they favor the inclusion of a certain kind of religious group and the exclusion of another kind. More specifically, they tend to favor the inclusion of groups that do not integrate religion into their operations and do not draw their personnel from among co-religionists. (In constitutional jargon, such groups are "religiously affiliated.") On the other hand, under the liberal-left view of church-state relations, groups that do the opposite (i.e., integrate religion in their operations and engage in faith-based hiring) are generally ineligible. (Such groups are deemed "pervasively sectarian.") [All this is concededly a bit of an oversimplication, but the general thrust is accurate.]

Those who are surprised that Sen. Obama is willing to fund some religious groups are apparently unaware that the principal divide in American religion is not between religion and irreligion, but between "progressive" religion and "orthodox" religion. [Sociologist James Davison Hunter explores this reality in his indispensable book Culture Wars.] According to Hunter's thesis, evangelical Protestants have more in common with orthodox Jews than with liberal Protestants when it comes to cultural questions. [My own experience confirms this: the Center (part of the theologically orthodox Christian Legal Society) is more likely to be on an amicus brief with the Union of Orthodox Jewish Congregations than it is with the liberal United Church of Christ.]

"Progressive" religious organizations are less likely than "orthodox" ones to integrate religion into their operations or use religious criteria in choosing personnel. Therefore, progressive groups would be far freer than orthodox ones to participate in social service programs under Sen. Obama's proposed system. In other words, to put it bluntly, Sen. Obama would fund his cultural and religious friends while de-funding those with whom he tends to disagree.

The First Amendment (among other things) forbids government from preferring one religion over another. A set of rules that systematically prefer "progressive" religion over "orthodox" religion, in my opinion, is inconsistent with this fundamental First Amendment principle.

President Delivers Statement on International Religious Freedom Act Anniversary

President Bush issued a statement today regarding the tenth anniversary of the International Religious Freedom Act. Among other things, the Act created the U.S. Commission on International Religious Freedom. Former CLS Center Director Steven T. McFarland served as the Commission's first Executive Director.

Tuesday, July 1, 2008

Sen. Obama & the Faith-Based Initiative

Senator Barack Obama gave a speech today and issued a plan for how government would work with faith-based organizations were he to become president.

Legislators and advocacy groups have long disagreed about whether the government should work with (i.e., provide funding to) faith-based organizations that take religiously rooted considerations into account in their personnel decisions (something some incorrectly call "discrimination"). Therefore, a key question is this: what are Senator Obama's views? What would he do as president?

The plan states: "In order to receive federal funds to provide social services, faith-based organizations: [1] Cannot use federal funds to proselytize or provide religious sectarian instruction; [2] Cannot discriminate against nonmembers in providing services; [3] Must comply with federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964. Religious organizations that receive federal dollars cannot discriminate with respect to hiring for government-funded social service programs; and [4] Can only use taxpayers dollars on secular programs and initiatives."

Here's my quick take: some of this is bad, but it's not clear how bad.

Item 3 is probably the most problematic. The reference to Title VII, by itself, is fine. All covered employers, including religious ones, must comply with Title VII, whether or not they receive federal funds. However, Title VII (a) exempts otherwise covered religious employers from its ban on religious discrimination; and (b) does not forbid discrimination on the basis of "sexual orientation."

The main problem with item 3 lies in the next sentence: "Religious organizations that receive federal dollars cannot discriminate with respect to hiring for government-funded social service programs." First, it implies that the receipt of federal funds somehow vitiates the religious exemption from Title VII's ban on religious discrimination. This is an objectively incorrect view of the law, but it is one that the secular and religious Left have been pushing. Second, it contradicts a central premise of charitable choice -- that faith-based organizations should not be required to relinquish their religious identity as a condition on participating in government-funded programs. It appears as though Sen. Obama supports, for example, repeal of the charitable choice provision in the 1996 welfare reform law, which bipartisan majorities in Congress supported and which President Clinton signed.

There is an important ambiguity in the plan's language. It says that religious groups that receive federal dollars "cannot discriminate with respect to hiring for government-funded social service programs." What does "hiring for" mean? Is it limited to the circumstance in which the government gives a group a grant, which uses it for the sole purpose of hiring a particular individual (or individuals) to execute the task for which the grant was provided? This is not how non-profits typically use government money; instead, some or all employees are involved executing the task for which the grant was provided. Are such employees "hired for" the government-funded social service program? If so, then the Obama plan would disqualify faith-based groups that preserve their religious identity by drawing their employees from among those who voluntarily share the group's religious commitments.

There is another extremely important ambiguity in the plan. It refers variously to "federal grants," "federal funds," "federal dollars," and "taxpayer dollars." Although the phrase "federal grants" clearly refers to grants (i.e., direct funding), do the latter three phrases include funds that flow indirectly to religious groups? If so, then Obama is proposing a dramatic change -- one that is NOT required by the Constitution. Indeed, such a change is actually forbidden by the Constitution. Under current law, federal aid that flows indirectly to religious organizations can be used for what the plan calls "religious sectarian instruction." It use is not limited to "secular programs and initiatives."

[UPDATE: Although the plan on Senator Obama's website does not distinguish between direct and indirect funding, the written text of the speech he delivered today includes the following sentence: "Second, federal dollars that go directly to churches, temples, and mosques can only be used on secular programs." Note the word "directly."]

Another ambiguity lies in the phrase "social services." For example, are education programs "social services"? If so, then the potential problems with Sen. Obama's plan are profound more serious.

This may not be what Sen. Obama intended, but the ambiguity is nonetheless there.

An additional ambiguity lies in the phrase "secular programs and initiatives." What exactly does this mean? Is a church's practice of feeding the homeless a "secular program"? If so, if an employee of the church or rescue mission audibly thanks God for the food, does the program cease to be "secular"?