Kentucky Supreme Court Takes Blaine Amendment Case

The Kentucky Supreme Court has taken Pennybacker v. Beshear, a case involving a Blaine Amendment challenge to a state grant to a Christian university. The Kentucky legislature appropriated $11 million for a new pharmacy school at the University of the Cumberlands, a liberal arts institution affiliated with the Kentucky Baptist Convention. Strict separationist taxpayers sued, claiming that the proposed expenditure violated the state constitution. The trial court agreed, and the University and stated appealed to the Kentucky Court of Appeals. They simultaneously asked the Kentucky Supreme Court to take up the case immediately, without waiting for the Kentucky Court of Appeals to rule. This past Thursday, the state high court agreed. The CLS Center represents the University in this case.

Heritage Foundation Religious Freedom Memo to President-Elect Barack Obama

Ryan Messmore and Thomas M. Messner have authored "Protecting and Strengthening Religious Freedom: A Memo to President-elect Obama" on behalf of the Heritage Foundation.

The memo begins with a quotation from candidate Obama's much-discussed keynote address at the Call to Renewal conference back in June 2008. The quotation includes Sen. Obama's statement that "[s]ecularists are wrong when they ask believers to leave their religion at the door before entering into the public square."

Teasing out the natural implications of that statement, Heritage recommends that President Obama:

• "Protect the ability of faith-based social service providers to honor their religious identity and integrity by maintaining their right to make employment decisions based on religious ideals"
• "Ensure the availability of federal conscience protections that free physicians and other medical professionals to serve patients without violating their religious beliefs"
• "Call on all citizens to respect the ability of religious citizens to participate in public policy debates--including debates about marriage--without fear of intimidation and reprisal"

All three of these are excellent recommendations. We hope and pray that President-elect Obama and his advisors will follow them.

People For the American Way President on Rick Warren

Kathryn Kolbert, president of People for the American Way, disapproves of President-Elect Obama's decision to ask Rev. Rick Warren to deliver the invocation at the January 20 inauguration.

Her statement reflects the sentiments of People For and other hard Left groups about their fellow citizens who disagree with them about human sexuality and the definition of marriage. In her email, Ms. Kolbert calls Rev. Warren a "divisive Religious Right demagogue." The dictionary defines "demagogue" as someone "who gains power and popularity by arousing the emotions, passions, and prejudices of the people."

Does this word accurately describe Rick Warren? I think that a fair-minded person who has heard Rev. Warren or read his writings would be hard pressed to call him a demagogue. I fear that, in the eyes of Ms. Kolbert and her allies, any well-known person with a platform who disagrees with them is a "demagogue."

Ms. Kolbert also declares that Rick Warren is a "powerful leader who marginalizes and dehumanizes those who disagree with him." Really? The hard Left seems to believe that those who are not willing to affirm the morality of homosexual conduct (a group that includes millions of theologically orthodox Christians) think that those who engage in such conduct are not human beings. To be sure, in a big country like America, there are some number of unfortunate souls who hold such a view. But it is wrong and unfair to suggest that the tens of millions of individuals who share Rick Warren's traditional views about marriage and sexuality don't believe that homosexuals are human beings.

I have personally encountered this. In the oral argument in the Seventh Circuit in Christian Legal Society v. Walker, Judge Diane Wood expressed her view that Christian Legal Society members believe those who engage in homosexual conduct are "less than human." [Judge Wood ended up dissenting from the judgment of her two colleagues that Southern Illinois University violated the Constitution by withholding recognition from the CLS chapter on the ground that it allegedly "discriminated" on the basis of religion and "sexual orientation."]

Ms. Kolbert's email concludes as follows: "[Rev. Warren's] views on basic equality, human rights and core constitutional values cannot be legitimized as reasonable." Talk about "marginalizing." As Ms. Kolbert sees its, Rick Warren's views on marriage, abortion, and destructive embryonic stem cell research are so beyond the pale that he is not a fit participant in the public discussion. Indeed, he is not fit to perform a function (deliver the inaugural invocation) that almost certainly will have nothing to any of those issues.

As a matter of public argumentation, it is probably easier to slap unfair labels on your opponents than it is to take seriously and engage their arguments. And I realize that Ms. Kolbert's email is "preaching to the choir." Nonetheless, her over-the-top characterizations of those that disagree with her is not without social cost. It increases the polarization of our country and debases our national conversation about important issues. It's probably too much to ask that she tone it down a bit.

Illinois Supreme Court: Pharmacies Can Challenge Governor Blagojevich's Anti-Conscience Rule

The Illinois Supreme Court ruled yesterday that pharmacies that do not wish to stock Plan B, a drug used as an "emergency contraceptive" but which can prevent the development of an already fertilized egg, may challenge a rule issued by Governor Rod Blagojevich mandating that they fill such prescriptions despite their conscientious objections.

The plaintiffs challenged the rule in state court under state and federal laws protecting conscience, including the Illinois Health Care Right of Conscience Act, the Illinois Religious Freedom Restoration Act, and the First Amendment. The Illinois trial court ruled against the plaintiffs, holding that the case was not yet ripe for adjudication.

The Center, on behalf of the Christian Legal Society and Christian Pharmacists Fellowship International, and with substantial assistance from attorneys with the Columbia, SC firm, Nelson, Mullins, Riley & Scarborough, filed an amicus brief arguing that the case was ripe. The Illinois Supreme Court reversed the trial court, holding that the claim was indeed ripe for adjudication.

The case will now return to the state trial court for a decision on the merits of the Plaintiffs' claims. While the State Supreme Court's opinion does not weigh in on the merits directly, language used in the opinion may indicate that the justices believe that the pharmacies have a strong case. The court noted, "In our opinion, this is largely a case involving a question of law–whether pharmacists and pharmacies can be compelled to violate their consciences and religious beliefs inviolation of two Illinois statutes and the first amendment."

Law Review Articles by Tom Berg on Religious Organizational Freedom in the Benefits/Funding Context

Here are two law review articles from Tom Berg that help to advance the debate surrounding the freedom of religious organizations

Religious Organizational Freedom and Conditions on Government Benefits
Thomas C. Berg
Georgetown Journal of Law & Public Policy (2009)

This article is from the 2008 Church Autonomy Conference - "The Things That Are Not Caesar’s: Religious Organizations as a Check on the Authoritarian Pretensions of the State," (video of Tom Berg's segment) co-sponsored by Federalist Society and held at Georgetown Law School in March.

Berg takes concepts of church autonomy and church-state separation and argues that they call for respect for the freedom of religious organizations in a number of situations when the government is providing funding or other benefits and imposing conditions on them.

He defends religious organizations' freedom in three important contexts: freedom for religion-based hiring by religious organizations receiving funding, and freedom for engagement in political activity and for selection of clergy by tax-exempt organizations.

Religious Choice and Exclusions of Religion
Thomas C. Berg
PENNumbra, 2008

This an invited short reply piece in the U. Penn. Law Review's online format, PENNumbra. Here Berg responds to and criticizes a piece by Nelson Tebbe of Brooklyn Law School that defends the singling out of religion for exclusion from government benefits programs. Berg argues that preserving religious choice is a central concern of the Religion Clauses and based on precedent, tradition and concepts pertaining to the Religion Clauses, as well as the fact that they are counter-majoritarian while Tebbe's position gives majorities great discretion over religious matters.

CLRF Challenges Boise State's Religious Discrimination in Student Group Funding

The Center has filed suit in the Federal District Court for the District of Idaho, Boise Division, today against Boise State University officials, challenging their discriminatory exclusion of religious student groups from student activity fee funding available to all other groups. CLRF attorneys also filed a Motion for Preliminary Injunction asking the Court to prohibit the Defendants from mandating and allocating student fees unless they halt their discriminatory policies.

Boise State collects a mandatory Student Activity Fee for the purpose of allowing the student government to distribute this money to student groups. However, the university expressly prohibits religious student organizations from receiving these funds, citing a provision of the Idaho constitution. In Widmar v. Vincent, the Supreme Court rejected a Missouri university's attempt to justify excluding religious student groups from university recognition, deeming its claim that the state constitution compelled it to do so was insufficient to trump the First Amendment rights of the religious student group. In Rosenberger v. Rector and Visitors of the University of Virginia the Supreme Court likewise held that the First Amendment prohibits a public university from excluding religious student groups from student activity fees available to other groups.

Boise State does provide student fee funding to the Secular Student Alliance, an atheist student group that proclaims a purpose to advocate for "non-religious world views."


In addition to the exclusion of religious student groups, the complaint also alleges that Boise State’s policies permit discrimination against other student groups on the basis of their views.

Bruce Skaug of Goicoechea Law Offices in Nampa, Idaho also represents the Plaintiffs.

The Complaint and Motion for Preliminary Injunction filed in Cordova v. Laliberte with the Federal District Court for the District of Idaho, Boise Division can be viewed here.

HHS Issues New Conscience Regs

The U.S. Department of Health and Human Services has issued final regulations protecting healthcare workers from being forced to perform or assist in abortions against their conscience. The full text of the regulations are available here.

The Center for Law & Religious Freedom filed comments on the proposed rules in September on behalf of the Christian Legal Society and the Fellowship of Christian Physician Assistants. The Center's comments pointed out that the proposed rule did not add any additional obligations to employers but merely required them to certify that they complied with federal conscience protections with which they have been required by law to comply for decades. A previous post on the Center's comment is available here.

Despite the fact that the regulations impose no new legal obligations on federal grantees, the Center's comment pointed out that the State of California, Planned Parenthood of California, the California Medical Association, and the National Family Planning and Reproductive Health Association had all evidenced ignorance of existing federal laws protecting the conscience rights of healthcare workers in two federal court cases challenging the Weldon Amendment. In both of those cases, California v. United States, and National Family Planning and Reproductive Health Association v. Gonzales, the Center for Law and Religious Freedom served as counsel for intervening pro-life medical groups defending the Weldon Amendment. The federal courts sided with the Center and the medical groups in both cases.

The new rule will take effect 30 days from tomorrow, Dec. 19. It will require federal grantees to specifically certify that they comply with the Church Amendment, Coats-Snowe Amendment to the Public Health Services Act, and the Weldon Amendment.

Victory in Iowa State Employee Charitable Campaign Case

In response to a lawsuit filed by CLS's Center for Law & Religious Freedom on behalf of the Association of Faith-Based Organizations, the State of Iowa has repealed unconstitutional rules governing access to its state employee charitable campaign.

The rules excluded any charitable organization that “engages in any way in sectarian activities,” advocates “religious viewpoints,” or “discriminates” on the basis of religion in employment.

See the joint CLS-Alliance Defense Fund press release or the CLS Center website for more information.

Brookings Releases Faith-Based Initiative Recommendations to Incoming Administration

The left-leaning Brookings Institution has made its recommendations to the incoming Obama administration regarding government and faith-based social service providers.

Although I hope to comment in more detail later, suffice it to say for now that the report recommends that the new administration curtail the freedom of religious organizations participating in government-funded programs to staff on a religious basis.

Oral Argument in Christian Fraternity Case

The U.S. Court of Appeals for the Eleventh Circuit heard oral argument yesterday in Beta Upsilon Chi v. Machen, a case in which the freedom of religious organizations to use religious criteria in personnel decisions is at stake. Christian Legal Society's Center for Law & Religious Freedom represents the fraternity in its civil rights lawsuit against University of Florida officials.

The dispute arose when UF withheld "registered student organization" status from Beta Upsilon Chi (also known as "Brothers Under Christ" and BYX). BYX draws its members and leaders from among those students who profess faith in Jesus Christ; the university deemed this a violation of its policy banning religious discrimination by student organizations.

UF's treatment of BYX violates the First Amendment. It infringes the right of expressive association and constitutes viewpoint discrimination. Rejecting BYX's motion for preliminary injunction, the district court disagreed. BYX appealed, and my colleague Tim Tracey presented an excellent oral argument yesterday.

The three judges on the Eleventh Circuit panel (Chief Judge Edmondson, Judge Tjoflat, and Senior Judge Hill) all expressed a large measure of skepticism towards the university's arguments. Judge Edmondson revealed his view that the university's denial of recognition undoubtedly disadvantaged BYX. The court questioned the magnitude of the university's interest in pressuring a Christian group dedicated to the inculcation of Christian principles to admit non-Christian members.

Of course, the tenor of an oral arguments does not always predict the outcome of a case. Nonetheless, most observers (including me) of yesterday's argument would not be surprised if the appellate panel ruled in BYX's favor.

Brookings to Release Report on Obama & Faith-Based Initiative

This Friday, the left-leaning Brookings Institution will make its recommendations to the incoming Obama administration regarding government and faith-based social service providers.

Our friend Stanley Carlson-Thies of the Center for Public Justice, an effective advocate for the autonomy of religious institutions, will comment.