The Center Blog

Ruling for Christian School Stands

2009-05-01T15:51:00.002-04:00

The California Supreme Court let stand a lower court ruling rejecting a "sexual orientation" discrimination claim against a Christian high school.

Consistent with its code of conduct, California Lutheran High School expelled two students it believed were in a lesbian relationship. The students' parents sued, claiming that the school committed discrimination on the basis of sexual orientation, something that the state Unruh Act forbids in "business establishments." The trial court and intermediate appellate court held that the school was not a business establishment and thus not subject to the act.

The plaintiffs asked the California Supreme Court to review that judgment. They also asked the state high court to depublish the Court of Appeal's opinion. On April 29, the court rejected both requests.

The CLS Center represented the Association of Faith-Based Organizations in the case. AFBO sought to intervene. Throughout the case, the Center argued on behalf of AFBO that application of the Unruh Act to Cal Lutheran in this case would violate the school's religious liberty.

Law Professors Urge Connecticut Legislature to Respect Religious Freedom

2009-04-28T22:58:00.002-04:00

Legal scholars Tom Berg, Carl Esbeck, Rick Garnett, and Robin Fretwell Wilson recently urged the Connecticut legislature to protect religious freedom in the course of codifying the state supreme court's same-sex marriage decision. See their letter here.

Dale Carpenter reacted to their letter, and their response is here.

"Gay Rights" v. Religious Liberty

2009-04-13T18:40:00.002-04:00

Commentary by Nathan Diament, Keith Pavlischek, and the Washington Post.

National Press Club Event on Conscience Regulations TODAY

2009-04-08T07:15:00.003-04:00

Today at 10:00 AM at the National Press Club, medical professionals who have experienced discrimination as a result of their exercise of their conscience will talk about their stories and urge the Administration to protect their rights and not rescind the HHS regulations protecting rights of conscience.

Freedom2Care, a coalition of organizations (including CLS) that support conscience rights in the medical profession, will also announce the results of 2 national polls gauging popular support for conscience rights and the existing HHS conscience protection regulations that the Obama Administration has proposed to rescind.

I will be in attendance and available to answer any questions about the lawsuits filed in Connecticut challenging the HHS regulations.

If you have not yet commented to HHS in support of the existing HHS regulations and in opposition to the proposed rescission of these protections you can do so through the Freedom2Care website. The deadline is midnight TOMORROW, April 9.

Illinois Court Enjoins Blagojevich Anti-Conscience Rule

2009-04-04T19:36:00.002-04:00

A judge in Illinois has temporarily enjoined state officials from punishing pharmacists who conscientiously object to filling prescriptions for "Plan B," which sometimes acts as an abortifacient.

Despite the existence of the Illinois Health Care Right of Conscience Act, former Illinois Governor Rod Blagojevich promulgated a rule in 2005 forcing pharmacists to violate their consciences by filling Plan B prescriptions.

Pro-life pharmacists challenged the rule in court, and the trial court initially held that the matter was not ripe for adjudication. The Illinois Supreme Court ended up reviewing that ruling, and CLS's Center for Law & Religious Freedom filed a friend of the court brief urging the court to reverse (which it did).

Casey Mattox discusses religious student groups and nondiscrimination rules on Freedom's Ring Radio

2009-03-24T12:55:00.001-04:00

The Center's Casey Mattox discusses religious student groups and nondiscrimination rules at public universities with attorney Alan J. Reinach on Freedom's Ring Radio. Download the fourteen minute interview podcast here. Note: this show was recorded prior to the Ninth Circuit's ruling in CLS v. Kane (UC Hastings).

David French comments on CLS v. Kane at Phi Beta Cons

2009-03-24T11:28:00.005-04:00

David French, ADF Senior Legal Counsel and Director of ADF’s Center For Academic Freedom, comments on Christian Legal Society v. Kane at Phi Beta Cons on National Review Online:

From a common-sense standpoint, this is absurd. Imagine telling a Baptist church that its search for a new pastor had to include equal consideration of Buddhist or Hindu candidates. Imagine telling a synagogue that they were engaged in unlawful "discrimination" if they categorically refused to permit imams from
functioning as rabbis. How can student guarantee that they can maintain their distinctive voice if each group essentially has to be open to all students, regardless of those students' beliefs or intentions?

Center attorney on CBN discussing CLS v. Kane (video)

2009-03-18T19:30:00.002-04:00

Center attorney Timothy J. Tracey appeared on CBN News today to discuss the Ninth Circuit panel's decision in Christian Legal Society v. Kane. Read the story and watch the video here.

Tell the Obama Administration to Enforce Laws Protecting Conscience Rights

2009-03-16T16:37:00.003-04:00

As previously noted, the Department of Health and Human Services has now moved to rescind the federal regulations prohibiting federal grantees from discriminating against medical professionals and institutions that decline to perform or refer for abortions or against medical students that do not wish to train in the performance of abortions. The proposed rescission has now been published in the federal register, triggering a 30 day period for public comment on rescinding this rule. Despite earlier media statements from unnamed HHS officials, the Administration has not proposed simply to "clarify" the rule, but have proposed completely throwing out the conscience protection rule altogether.

The conscience protection rule imposes no new obligations on federal grantees, but requires HHS grantees to certify that they will comply with three federal laws, the Church Amendments, Coats-Snowe Amendment, and Weldon Amendment. It also provides for a process by which a medical professional or institution may report their discriminatory treatment to HHS so that the agency may take action.

HHS previously explained that the rule was necessary, in part, because grantees and the public are unaware of these statutory protections - a fact confirmed in the lawsuits CLRF has been involved in defending medical conscience rights. HHS also explained that discriminatory treatment of medical professionals and institutions also threatened access to health care by driving pro-life medical professionals from the profession and causing faith-centered medical institutions (like Catholic hospitals) to close their doors rather than perform abortions.

The public, whether medical professionals, patients, or others interested, are invited to file public comments on the proposed rescission of the HHS rule. While stories of discrimination you or others have faced is helpful, ANY comment, even a few sentences, is helpful.

A website [http://www.freedom2care.org/] has been created to help facilitate complaints of discrimination and submission of comments to HHS in support of the existing regulations and in opposition to their rescission. You can also share the link with your facebook and twitter friends.

Comments are due by April 8, but do it today!

Listen to the Christian Legal Society v. Kane oral argument

2009-03-11T02:05:00.010-04:00

The Ninth Circuit Court of Appeals has posted the audio recording of the CLS v. Kane (Newton/UC Hastings) (# 06-15956) oral argument before Chief Judge Alex Kozinski, Judge Proctor Hug, Jr., and Judge Carlos T. Bea.

Timothy J. Tracey of the Center for Law & Religious Freedom presented the argument for CLS and Ethan P. Schulman of Folger Levin & Kahn, LLP presented the argument for UC Hastings.

The audio file can be streamed or downloaded (Windows Media Player required).

RE: Oral Argument Tomorrow in CLS Chapter Nondiscrimination Case

2009-03-10T02:15:00.005-04:00

To follow up on Greg's post, please see the CLS webpage on Christian Legal Society v. Kane (aka Christian Legal Society v. Newton) for a summary of the case, a copy of the opinion below, and the parties' briefs, as well as other documents.

The Seventh Circuit's opinion in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006) (Southern Illinois University) may be downloaded here.

Also of interest: a recent law review article by Joan Howarth, Dean of the Michigan State University College of Law, Teaching Freedom: Exclusionary Rights of Student Groups, 42 U.C. Davis L. Rev. 889 (2009), which discusses CLS v. Walker and CLS v. Kane, as well as related cases. From the abstract:

Progressive, antisubordination values support robust First Amendment protection for high school and university students, including strong rights of expressive association, even when those rights clash with educational institutions’ nondiscrimination policies.

Oral Argument Tomorrow in CLS Chapter Nondiscrimination Case

2009-03-09T18:10:00.002-04:00

CLS Center attorney Tim Tracey will present oral argument tomorrow to the U.S. Court of Appeals for the Ninth Circuit in Christian Legal Society v. Kane.

The case arose when the Hastings College of Law in San Francisco withdrew recognition and its benefits from the law school's Christian Legal Society chapter. The chapter draws its leaders and voting members from among those who voluntarily profess faith in Christ and who attempt to abide by CLS's standards of conduct. Hastings labeled this "discrimination" on the basis of religion and "sexual orientation."

Represented by CLS's Center for Law & Religious Freedom, the Center filed a civil rights lawsuit in federal court. The district court ruled against the chapter, and it appealed.

The U.S. Court of Appeals for the Seventh Circuit has already ruled for a CLS chapter in a virtually identical dispute. That court held that Southern Illinois University violated the Constitution by withholding recognition from its CLS chapter based upon its alleged violation of the school's nondiscrimination policy.

Breaking: Obama to Remove Anti-Discrimination Protections for Pro-Life Doctors

2009-02-27T10:25:00.004-05:00

Per the LA Times - Pres. Obama will move to rescind the HHS regulation protecting medical professionals and institutions from discrimination on the basis that they do not perform, assist in or refer for abortions. No notice of rulemaking has been filed yet, but more updates will be provided when it is issued.

The regulations at issue, codified at 45 CFR Part 88, were enacted by the Bush Administration in response to recent evidence that federal grantees were unaware of or not complying with decades of federal laws protecting the rights of conscience of medical professionals. You can read more about the regulations here.

The Center currently represents the Christian Medical Association, Catholic Medical Association, and American Association of Pro-Life Obstetricians and Gynecologists as intervenors defending the regulations in three lawsuits brought in federal district court in Connecticut. You can read more about the lawsuits here.

A Philosophical Case for Conscience

2009-02-24T19:30:00.003-05:00

Writing in the Public Discourse, Prof. Christopher O. Tollefsen presents a philosophical case for the protection of the right of conscience, discussing abortion and the pro-life physician:

In sum, under extremely serious circumstances, the state can forbid what is otherwise taken to be obligatory. But the state should never command that an agent do something that an agent takes himself to be forbidden from doing by an exceptionless moral norm, and, it seems, the state should make a considerable effort to protect its citizens from demands by others that they violate their conscience in this way. . . . Another straightforward consequence is that citizens opposed in principle to participating in abortion should not be compelled by the laws of the state to violate what they take to be exceptionless negative precepts. There can be no weak form of intrinsice malum in this domain.

DOJ & DC Transit System Settle Workplace Religious Exercise Case

2009-02-06T10:51:00.003-05:00

The Justice Department and the Washington DC area transit system have settled a lawsuit against it over its accommodation of religious exercise in the workplace.

President Obama to Name Council on Faith-Based Partnerships

2009-02-05T09:22:00.003-05:00

The Washington Post is reporting that President Obama is poised to name the members of a newly created Council on Faith-Based and Neighborhood Partnerships.

NPR Story on Faith-Based Initiative

2009-02-04T10:34:00.003-05:00

NPR did a story this morning about the future of the faith-based initiative under the Obama Administration. The story featured a CLS Center case, Pedreira v. Kentucky Baptist Homes for Children (KBHC). In that case, the ACLU and homosexual rights activists are attempting to exclude KBHC (now called Sunrise Children's Homes) from state partnerships with nongovernmental organizations serving abused and neglected children because KBHC draws its leadership and employees from among those who share its religious commitments. The federal district court adjudicating the case ruled in Sunrise's favor and the ACLU appealed. Briefing in the Sixth Circuit is complete and oral argument will occur on March 11.

Garnett:At its fullest, the American model of religious liberty is not a freedom from religion or a freedom of religion; it is a freedom for religion.

2009-02-03T19:30:00.005-05:00

Notre Dame Law Prof. Rick Garnett, a friend of the Center, writes a think piece on The Public Discourse that carefully distinguishes between three rival versions of American religious liberty: freedom from religion, freedom of religion, and freedom for religion.

Note his interesting discussion of the strengths and weaknesses of a freedom of religion position:

The second approach—“freedom of religion”—tends to emphasize toleration, neutrality, and equal-treatment. Religion, on this view, is something that matters to many people, and so the law does not permit it to be singled out for special hostility or discrimination. It is recognized and accepted that religious believers and institutions are at work in society, and the stance of the law is even-handedness. Because we are all entitled to express our views and to live in accord with our consciences, religious believers are so entitled, too. The law, it is thought, should be “religion-blind.”

Although this approach is not hostile to religion, it is also reluctant to regard religion as something special. Religious liberty is just “liberty,” and liberty is something to which we all have an “equal” right. Religion is not something to be “singled out,” for accommodations and privileges, or for burdens and disadvantages. Again, religious commitment, expression, and motivation are all, in the end, matters of taste and private preference.

This approach represents an improvement on its “freedom from” competitor, and it, too, has been and is reflected in American law. In fact, it is fair to say that its influence is much more pronounced in the Supreme Court’s recent decisions. The Justices have emphasized, for example, that officials may not treat religiously-motivated speech worse than speech that reflects other viewpoints. Similarly, courts have ruled that public funds may be allocated to religiously affiliated schools and social-welfare agencies—so long as they are providing a secular public good—on the same terms as non-religious ones. At the same time, governments are not required to provide special accommodations for religious believers, or to exempt religiously motivated conduct from the reach of generally applicable laws.

Prof. Michael Stokes Paulsen legal memo on the consequences of the Freedom of Choice Act

2009-02-03T19:12:00.005-05:00

Prof. Michael Stokes Paulsen of the University of St. Thomas School of Law has written a detailed 4000 word legal memorandum describing the consequences of the Freedom of Choice Act on Moral Accountability, a new website providing scholarly analysis of the Obama administration's policies as they relate to abortion and same-sex marriage.

From the conclusion:

While there is room for uncertainty or disagreement concerning a
few issues, in the main, FOCA’s legal effects are clear. FOCA would
invalidate nearly every state and federal law bearing on, or attempting to
influence, the exercise of a choice of abortion. FOCA would invalidate
nearly every state or federal law substantively disfavoring abortion in the
provision of benefits, services, and information. FOCA would invalidate
nearly every state or federal law protecting the conscience of medical workers
or religious hospitals from participating in abortion. FOCA would likely
invalidate nearly any state law prohibiting partial birth abortion. And
FOCA would entrench abortion rights against further meaningful legal challenge.

Advocates International moves to intervene in federal conscience case on behalf of Concerned Women for America and four pro-life medical asociations

2009-02-03T18:48:00.003-05:00

Yesterday, attorneys for Advocates International moved to intervene in the federal lawsuit challenging the conscience regulation on behalf of the women's advocacy group Concerned Women for America as well as four pro-life medical associations, Christian Pharmacists Fellowship International, Care Net, Heartbeat International and the New Jersey Physicians Resource Council.

Read their press release and the motion to intervene and the supporting brief.

As discussed earlier, Center and ADF attorneys represent the first group of proposed intervenors Catholic Medical Association, Christian Medical Association, and the American Association of Pro-Life Obstetricians and Gynecologists.

Christians on Campus: Great David French Blog Post

2009-02-03T07:12:00.002-05:00

David French of the Alliance Defense Fund has a terrific blog post up at National Review Online's "Phi Beta Cons" blog regarding conservatives and Christians on campus. Check it out.

Religious Liberty CLE at CLS Regional Retreat

2009-02-02T15:13:00.006-05:00

I will be doing a presentation on religious liberty at the Christian Legal Society northeast/New England regional retreat, which runs from Friday, February 27 through Sunday, March 1.

The retreat is at the Frost Valley conference center in Claryville, NY. Sign up on the Christian Legal Society website here.

California Appellate Court Rules in Christian School's Favor

2009-02-01T11:56:00.005-05:00

On January 26, the California Court of Appeal ruled in favor of a Christian school sued for "sexual orientation" discrimination.

The dispute arose when California Lutheran High School expelled two students for violating its code of conduct by engaging in a same-sex intimate relationship. The students' parents sued the school, claiming that it had committed discrimination on the basis of sexual orientation in violation of California's Unruh Act, which forbids discrimination on the basis of a variety of protected characteristics in "business establishments" (among other things).

California Lutheran argued that it, as a private religious school, was not a "business establishment." The trial court agreed, and the students' parents appealed. In its January 26 decision, the appellate court agreed that the school is not a business establishment. Because of this ruling, the court did not reach the religious liberty issues in the case.

The CLS Center attempted to intervene on behalf of the Association of Faith-Based Organizations (AFBO). The joint ADF-CLS press release is here.

More information about the case, including a link to the decision, is found on the relevant page of the CLS website. Congrats to my colleague Tim Tracey, who serves as lead counsel for AFBO in this case.

Presentation at CCCU Presidents Conference

2009-01-31T19:38:00.003-05:00

I participated in a panel discussion this morning at the Council for Christian Colleges & Universities Presidents Conference in Washington, DC. The topic was "Legal and Public Policy Issues." I talked about religious staffing freedom -- recent events and imminent threats.

I asserted the threat that religion and sexual orientation nondiscrimination rules pose stems from a more foundational problem: the growing cultural acceptance of same-sex sexual conduct and the corresponding cultural condemnation of those who hold the traditional position on marriage and human sexuality.

I then ran through some developments in this area over the last twelve months: the passage of Prop 8 in California; the discovery of a right to same-sex "marriage" in the Connecticut constitution by the state's supreme court; Congress's failure to enact ENDA; DOJ's publication of the OLC opinion regarding RFRA, federal money, and religious staffing freedoms; the bad decisions in Truth v. Kent and North Coast Women's Health v. Superior Court; and the good outcomes in AFBO v. Iowa and Doe v. California Lutheran.

With regard to what the near future holds, I pointed to the emphasis on "LGBT concerns" on the White House website's "civil rights agenda" page; the likely introduction of ENDA; continuing litigation [much of which the CLS Center is involved in]; and the Obama Administration's approach to religious staffing freedoms in the faith-based initiative.

Faith-Based Hiring and the Obama Administration

2009-01-31T19:17:00.005-05:00

The Pew Forum on Religion and Public Life has posted the transcript of a Q&A with GWU law professor Chip Lupu regarding faith-based hiring and the Obama Administration.

Professor Lupu predicts that the new president's Office of Legal Counsel will disagree with its predecessor's conclusion that the Religious Freedom Restoration forbids the federal government from imposing religion nondiscrimination strings on religious recipients of federal money.

Professor Lupu also observes that the new administration might seek to add new nondiscrimination strings to specific program funding and/or take away existing protections for religious staffing freedom in certain other programs (e.g., Temporary Assistance to Needy Families).

ENDA, Illinois, and President Obama

2009-01-25T14:06:00.006-05:00

President Obama outlines his civil rights agenda on the White House website. About half of the page is a description of his "Support for the LGBT Community." In articulating the president's desire to add "sexual orientation" and "gender identity" to the list of protected characteristics in federal laws and rules prohibiting discrimination in employment, the site observes that Mr. Obama sponsored similar legislation while serving in the Illinois State Senate.

The president's invocation of the Illinois legislation is troubling. The bill that State Sen. Obama sponsored did not exempt religious employers from the ban on sexual orientation discrimination -- a market departure from the statutes adopted in other states. Subsequent efforts to add such an exemption were rejected.

This, of course, does not necessarily mean that President Obama will push for a version of the federal Employment Non-Discrimination Act that lacks a religious exemption. However, it is not particularly reassuring that the president, earlier in his career, was, at a minimum, insufficiently sensitive to religious freedom concerns.

President Obama Funds Overseas Abortions

2009-01-24T13:50:00.004-05:00

A provision of the Foreign Assistance Act of 1961 prohibits the use of federal funds "to pay for the performance of abortions as a method of family planning, or to motivate or coerce any person to practice abortions." In what has come to be called the "Mexico City Policy," President Reagan instructed the US Agency for International Development to comply with this statutory directive in 1984. President Clinton rescinded the policy, but President George W. Bush reinstated it.

Yesterday, President Obama again rescinded the Mexico City Policy, thereby allowing nongovernmental organizations working overseas to encourage women to have abortions and to lobby foreign governments to eliminate legal protections of unborn children.

Millions of Americans don't want their tax dollars used to facilitate the killing of babies in their mothers' wombs. President Obama subordinated those Americans' desires to the objectives of the pro-abortion organizations. This is not an auspicious beginning for a president whom many thought (erroneously, in my view) would be comparatively moderate on sanctity of life issues.

FRC's comment is here. National Right to Life comments here. US Conference of Catholic Bishops comments here.

CLS Center and ADF attorneys move to intervene in conscience regulation lawsuit on behalf of pro-life medical associations

2009-01-22T18:28:00.001-05:00

On behalf of pro-life professional medical associations, attorneys for the CLS Center for Law & Religious Freedom and the Alliance Defense Fund have filed motions to intervene in three lawsuits challenging a regulation that protects the medical professional right of conscience. View the press release here.

Last week, Planned Parenthood, a group of states including Connecticut, and the National Family Planning & Reproductive Health Association (NFPRHA) represented by the American Civil Liberties Union (ACLU) brought lawsuits seeking to invalidate a Health & Human Services regulation that protects doctors and other medical professionals from being forced to participate in abortions against their consciences.

CLS and ADF attorneys represent the Catholic Medical Association, the Christian Medical Association, and the American Association of Pro-Life Obstetricians and Gynecologists.

The complaints, briefs in support of motion for intervention, and the proposed answers for the respective cases are available from the CLS Center:

Connecticut v. United States

NFPRHA v. Leavitt

Planned Parenthood v. Leavitt

The Center previously submitted comments on behalf of the Christian Legal Society and the Fellowship of Christian Physician Assistants in support of the enactment of this rule.

CLS and ADF attorneys also successfully defended against two challenges to the Weldon Amendment, which is one the three underlying statutes implemented by the regulation; that is, California v. United States (press release), and National Family Planning and Reproductive Health Association v. Gonzales (press release).

Supreme Court Asked to Consider Jurors' Use of Bible

2009-01-15T16:27:00.001-05:00

Attorneys for death row inmate Khristian Oliver recently asked the U.S. Supreme Court to review a lower court opinion rejecting their claim that jurors' use of the Bible in deliberations violated Oliver's constitutional rights.

Abortion Advocates Challenge Conscience Protection

2009-01-15T16:24:00.002-05:00

According to the Washington Post, abortion advocates have filed three lawsuits challenging the newly final HHS rule protecting the consciences of health care providers.

Richard John Neuhaus and religious liberty

2009-01-09T11:33:00.006-05:00

Mark Steyn reminds us of Richard John Neuhaus (1936-2009) constant defense of religious liberty as an important part of his voluminous writings on the pages of First Things, quoting this entry from Neuhaus' feature On the Square from October 2006, in which he responds to a New York Times editorial on the subject of religious exemptions:

The editors are also exercised that religious institutions are exempt from regulations having to do with religious and gender discrimination in hiring and promotion. But the key point, invoked over the years by opponents of free exercise, is that tax exemption is actually a government subsidy.

The underlying, and nascently totalitarian, assumption is that everything in the society belongs to the state and should be under state control. Government exemptions from tax and control are a privilege granted, not a right respected. From which it follows that an exemption is, in fact, a subsidy. This is a long way from the Founders’ understanding of the independent sovereignty of religion that the government is bound to respect.

Neuhaus, of course, wrote the following in 1984 in the prologue to The Naked Public Square: Religion and Democracy in America:

What is relatively new is the naked public square. The naked public square is the result of political doctrine and practice that would exclude religion and religiously grounded values from the conduct of public business. The doctrine is that America is a secular society. It finds dogmatic expression in the ideology of secularism. I will argue that the doctrine is demonstrably false and the dogma exceedingly dangerous.

Christian Science Monitor on the Faith-Based Initiative

2009-01-05T17:40:00.002-05:00

The Christian Science Monitor has published an article regarding the faith-based initiative under the Obama Administration. Our friend Stanley Carlson-Thies of the newly launched Institutional Religious Freedom Alliance is quoted extensively.

Although the article is generally good and informative, it does incorrectly suggest that the Administration encouraged faith-based grant recipients to use funds in unconstitutional ways. This is incorrect.

The article invokes "critics" of the freedom of religious organizations to staff on a religious basis. Those critics essentially argue that anyone who pays taxes should be eligible for every job at every employer that receives some sort of government support. This argument is hard to take seriously. President Obama is not required to ignore a person's political affiliation in selecting his nominees and appointees. The CIA is not required to ignore an applicant's relationships with al Qaeda in choosing its spies. Even moreso, private entities that merely receive some government benefit -- but are not the government -- have the freedom to take lawful factors into account in their personnel decisions.

The article quotes Melissa Rogers of Wake Forest Divinity School, who asserts that "government only funds tasks that are nonreligious in nature" and therefore, that recipients of government funds shouldn't be allowed to exercise the freedom they possess under Title VII and the First Amendment to staff on a religious basis. The problem with this argument is that it presupposes a particular and tendentious definition of "nonreligious." To illustrate, how would you characterize meeting the material needs of the homeless? One could plausibly characterize this as "nonreligious"; but one could just as easily characterize it as religious, particularly if the entity providing the services does so based on its religious commitments. In short, religious groups legitimately fill jobs with those who share their views even if those jobs are not limited to preaching sermons and administering sacraments.

Let us continue to hope and pray that the Obama Administration, for the sake of those served by faith-based social service providers, will preserve the freedom of these groups to maintain their unique religious identity.

Kentucky Supreme Court Takes Blaine Amendment Case

2008-12-20T11:28:00.004-05:00

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

2008-12-19T17:54:00.003-05:00

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

2008-12-19T16:50:00.006-05:00

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

2008-12-19T10:44:00.002-05:00

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

2008-12-18T16:26:00.000-05:00

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

2008-12-18T14:53:00.003-05:00

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

2008-12-18T12:37:00.003-05:00

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

2008-12-13T10:58:00.004-05:00

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

2008-12-13T10:51:00.004-05:00

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

2008-12-11T21:57:00.004-05:00

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

2008-12-02T21:42:00.003-05:00

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.

Heritage on Same-Sex Marriage and Religious Liberty

2008-11-24T16:28:00.003-05:00

Thomas Messner has prepared a Heritage Foundation "Backgrounder" entitled "Same-Sex Marriage and the Threat to Religious Liberty."

The paper is thorough and well-done. Recommended reading.

Prof. Garnett on "Excluding Religion"

2008-11-24T16:19:00.002-05:00

Professor Rick Garnett of Notre Dame has prepared a critical response to "Excluding Religion," an article in which Professor Nelson Tebbe argues that government may sometimes selectively exclude religion from its support programs.

One of the CLS Center's primary objectives is to establish that the Constitution generally forbids governments (especially state governments relying upon "Blaine Amendments") from selectively excluding religion from social service and education support programs. We welcome Prof. Garnett's contribution to the scholarly literature on this subject.

University of Iowa Restores Funding of CLS Chapter

2008-11-21T18:50:00.002-05:00

On October 22, the University of Iowa rescinded its earlier decision to revoke the funding of the law school's Christian Legal Society chapter.

On or about September 25, 2008, the CLS chapter submitted a request for funding to the Student Assembly Budgeting & Allocating Committee. The Committee rejected the chapter's funding request based on the notion that the chapter commits "religious discrimination" by drawing its leaders and voting members from among those who voluntarily embrace the CLS Statement of Faith.

On October 20, Center Litigation Counsel Casey Mattox sent a letter to the university's general counsel. On October 22, the Committee informed chapter representatives that the general counsel had instructed them not to deny the chapter funding based upon the Statement of Faith requirement.

Iowa attorney L. Craig Nierman assisted the Center.

Potential AG Eric Holder and Religion

2008-11-21T18:45:00.003-05:00

Professor Howard Friedman at the Religion Clause Blog indicates that reported Attorney General choice Eric Holder doesn't have much of a record on religious freedom issues.

Center Secures Teacher Participation in "See You at the Pole"

2008-11-21T18:34:00.002-05:00

On November 20, the Carlisle Area School District (PA) rescinded an earlier decision to forbid teachers from being present at "See You at the Pole" activities. The Center assisted teachers adversely affected by the previous decision.

During the week of September 22, district officials declared that teachers could not be present at this year's SYATP event. An affected teacher contacted the CLS Center, and Litigation Counsel Tim Tracey communicated with the school district on her behalf. As a result of his efforts, the teacher was permitted to participate in this year's event, but the restrictive policy remained in place.

Tim subsequently made a presentation at a school board meeting and wrote a demand letter to the school district on behalf of the teachers whose religious freedom would be affected by the policy. The school board adopted a new policy allowing teachers to participate as long as they issue a verbal disclaimer, indicating that their presence is in their individual capacities. Media coverage is here, here and here.

Center attorneys were assisted by the law firm of Boyle, Neblett & Wenger.

NY Times Article on Religious Staffing Freedom and Government Funds

2008-10-20T13:00:00.003-04:00

The New York Times has published an article regarding the Department of Justice's opinion about religious staffing freedom and government funds.

Former Center Director and University of Missouri law professor Carl Esbeck is quoted in the article, defending the DOJ opinion.

ACLU rep Christopher Anders calls the memo “the church-state equivalent of the torture memos,” referring to the Department's conclusion that the government does not have a compelling interest in forcing religious employers to hire people who reject the organization's religious beliefs.

This is incredible. Since when is it so awful for religious employers to consider religion in personnel decisions? Should the government intervene when a synagogue declines to hire a Muslim as a rabbi? Should a Unitarian congregation face liability if it won't choose a "fundamentalist" Christian to serve as its pastor? Adding government money to the mix doesn't change the analysis -- it is still not wrong for religious groups to draw their personnel from among those who voluntarily embrace the group's beliefs.

The fact of the matter is that both the Constitution and RFRA forbid the federal government from forcing religious groups to give up the exercise of a constitutional right in exchange for social service and education money.

Senator Obama has suggested that religious groups should not be allowed to preserve their religious character through staffing policies if they want to participate in government-funded programs. If Mr. Obama is elected president, it is conceivable that he will repudiate the Department's opinion and apply religion nondiscrimination rules to religious groups, thereby undermining genuine religious freedom.

Prof. Rick Garnett on Prof. Doug Kmiec

2008-10-17T14:23:00.001-04:00

Prof. Rick Garnett, a friend of CLS's Center for Law & Religious Freedom, has an insightful post about Prof. Doug Kmiec's apparently changing views on abortion here.

Justice Department Posts Opinion on Religious Staffing and RFRA

2008-10-17T11:08:00.005-04:00

The U.S. Department of Justice has finally put online its June 29, 2007, opinion stating that the Religious Freedom Restoration Act (RFRA) permits the government to exempt a federal grant recipient from a religion nondiscrimination attached to the money. The Department's Office of Legal Counsel issued the opinion.

The Department's Office of Justice Programs had awarded World Vision, a religious organization, a $1.5 million grant under the Juvenile Justice and Delinquency Prevention Act of 1974. As a condition of receiving grants under the Act, recipients may not discriminate on the basis of religion in "employment in connection with any programs or activity." World Vision takes religion into account in its personnel decisions.

The Religious Freedom Restoration Act of 1993 forbids the federal government from substantially burdening a person's exercise of religion, unless the imposition of that burden is the least restrictive means of furthering a compelling government interest.

OLC explained first that World Vision's operation of its government-funded program constituted the "exercise of religion" within the meaning of RFRA. It then stated that the government would "substantially burden" World Vision's religious exercise if it required World Vision to comply with the religion nondiscrimination rule. Finally, OLC concluded that applying the religion nondiscrimination rule to World Vision would not further a compelling governmental interest.

From the Presidential Debates: the "Health of the Mother" Canard Demonstrated.

2008-10-16T12:34:00.004-04:00

In last night's presidential debate, Senator John McCain criticized Barack Obama for his opposition to proscriptions on abortion, including partial birth abortion. Obama countered that he had only opposed a Partial Birth Abortion Ban because it did not include an exception for cases where it was necessary to protect the "health of the mother."

Planned Parenthood has argued strenuously that the partial birth abortion procedure -- in which a child is pulled up to halfway outside the birth canal before its skull is crushed, it's brains sucked out, and it is delivered dead -- is necessary to protect a woman's health. In Gonzales v. Carhart the Supreme Court turned away a facial challenge to the law, holding that this procedure was unnecessary to protect a woman's health, deferring to Congress's finding after extensive hearings that the procedure was never necessary to protect a woman's health. However, the Court left open the possibility of as-applied challenges to the PBA ban if a woman's health was ever threatened by the unavailability of the procedure. Justice Ginsburg invited and predicted such challenges.

But after 18 months no such challenge has been brought. 547 days have now passed after the Supreme Court's decision upholding the PBA Ban and permitting it to go into effect. By Planned Parenthood's estimates, likely very low, six partial birth abortions were occurring daily prior to this decision. By these figures, 3,282 partial birth abortions have NOT occurred since the Supreme Court allowed the statute to go into effect without a health exception. Yet, not a single as-applied challenge has been brought claiming that the PBA Ban endangered a woman's health in a specific case.

I have discussed this point previously here and here. Again, either women have experienced a remarkable streak of luck in the past 18 months, the abortion advocacy groups are terribly understaffed in their legal departments, or Planned Parenthood and others were lying about the medical necessity of partial birth abortion. But in any case, someone now arguing for such an exception should bear the burden to demonstrate why the lack of a health exception for partial birth abortions has been a burden on women for the past 18 months.

Seventh Circuit Rejects Taxpayer Standing to Seek Repayment of Funds from Notre Dame

2008-10-16T10:33:00.004-04:00

The Seventh Circuit Court of Appeals has issued an opinion holding that taxpayers have no standing to seek restitution from Notre Dame of funds provided to the school by the federal government for a teacher training program. The 3-0 decision is a reversal from the same panel's prior decision holding that the taxpayers had standing to seek repayment to the federal treasury from Notre Dame of a $500,000 grant for a secondary school teacher training program.

The new decision followed a remand by the Supreme Court for reconsideration in light of its decision last term in Hein v. Freedom From Religion Foundation that limited taxpayer standing. The 7th Circuit interprets Hein to limit the establishment clause exception to the general prohibition on taxpayer standing to the facts of the decision that created the exception, Flast v. Cohen. Thus, the 7th Circuit rejected taxpayer standing to seek restitution, a remedy not sought in Flast. The Court explained:

Accordingly, we read Hein to mean that taxpayers continue to have standing to
sue for injunctive relief against specific congressional appropriations alleged
to violate the Establishment Clause, but that is all. Permitting a taxpayer to
proceed against a private grant recipient for restitution to the Treasury as a remedy in an otherwise moot Establishment Clause case would extend the Flast exception beyond the limits of the result in Flast. After Hein, such an extension is unwarranted.

Judge Sykes wrote the decision for the unanimous panel. She dissented from the prior Laskowski panel decision by Judge Posner that found taxpayer standing to seek restitution from Notre Dame.

Same-Sex "Marriage" in Connecticut

2008-10-10T19:54:00.011-04:00

The Connecticut Supreme Court today held that a state statute defining marriage as "the union of one man and one woman" violated the equal protection provisions of the state constitution.

The court observes that "[m]uch of the condemnation of homosexuality derives from firmly held religious beliefs and moral convictions." To the extent the word "homosexuality" refers to homosexual conduct, the court's observation is undoubtedly correct. The court claims not to "equate religious beliefs with prejudice," but its rhetoric belies this assertion:

"the history of pernicious discrimination faced by gay men and lesbians"
"a group that historically has been the object of scorn, intolerance, ridicule or worse"
referring to the "illegitimate reasons that gave rise to the past discrimination"
"Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society"
"gay persons have been subjected to such severe and sustained discrimination because of our culture’s long-standing intolerance of intimate homosexual conduct"

The Connecticut Supreme Court plainly has nothing but disgust for traditional sexual ethics, even those rooted in religious commitment. Such rhetoric hardly bodes well for theologically orthodox religious groups who seek constitutional protection from the growing movement to marginalize and punish them.

Christian Legal Society and Fellowship of Christian Physician Assistants supports proposed rule protecting health care right of conscience

2008-09-27T06:30:00.001-04:00

On Thursday, the Center for Law & Religious Freedom (CLRF), on behalf of the Christian Legal Society (CLS) and the Fellowship of Christian Physician Assistants (FCPA), submitted comments in support of a rule proposed by the Department of Health & Human Services "Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law." Dep't of Health & Human Services, 73 Fed. Reg. 50279 (proposed Aug. 26, 2008) (to be codified at 45 C.F.R. pt. 88) (read the full text of the provider conscience regulation)

From the comments:

The pending regulations do not impose any new substantive obligations on HHS
grantees. Rather, they simply require grantees to certify that they comply with
the existing protections for medical professionals' rights of conscience. But as
the above illustrates, holding HHS grantees responsible for legal requirements
that they have ignored for decades is no small thing. The unfortunate fact is
that while federal law explicitly protects medical professionals from being
forced to perform or refer for abortions against their conscience, in practice
HHS grantees have been unaware of or ignored these laws. The pending regulations
are a necessary and important insurance that HHS grantees will not use federal
taxpayers' money to compel persons to perform abortions or provide abortion
referrals in violation of their consciences. Please issue these regulations at
the earliest possible date.

CLS Supports Religious Liberty Housing Bill

2008-09-26T14:14:00.003-04:00

Christian Legal Society, through its Center for Law & Religious Freedom, supports the Freedom of Religious Expression in the Home Act of 2008.

See my recent blog post for further details.

Bill Introduced to Protect Religious Expression in the Home

2008-09-22T11:44:00.008-04:00

On September 17, the "Freedom of Religious Expression in the Home Act of 2008" (H.R. 6932) was introduced in the U.S. House of Representatives. The bill would amend the Fair Housing Act to enhance the legal protection of the display of religious symbols.

The bill would make it unlawful:

[t]o establish a rule or policy that prevents a person from displaying on the basis of that person's religious belief, a religious symbol, object, or sign on the door, doorpost, entrance, or otherwise on the exterior of that person's dwelling, or that is visible from the exterior of that dwelling, unless the rule or policy is reasonable and is necessary to prevent significant damage to property, physical harm to persons, a public nuisance, or similar undue hardship.

The bill is a direct response to the Seventh Circuit's decision in Bloch v. Frischholz, 533 F.3d 562 (7th Cir. Jul. 10, 2008). That dispute arose after a Chicago condo association reinterpreted one of its rules to forbid the posting of a mezuzah and other items on the exterior of owners' doors. An owner who had been displaying a mezuzah filed suit against the condo association, invoking the Fair Housing Act's ban on religious discrimination. The Seventh Circuit rejected the owner's claim, reasoning that the association's rule and enforcement were not discriminatory.

The bill essentially requires those subject to the Fair Housing Act to accommodate the display of religious symbols, subject to certain limitations.

HHS Conscience Regulations - Your Comment Needed by September 25

2008-09-19T12:53:00.002-04:00

The U.S. Department of Health & Human Services has issued proposed regulations that would require most recipients of HHS funds to certify that they comply with federal laws protecting the conscience rights of pro-life medical professionals. For over three decades the Church Amendment has prohibited recipients of HHS funding from compelling employees to participate in activities that violate their conscience. Two other federal statutes, the Coats-Snowe Amendment to the Public Health Services Act, enacted in 1996, and the Weldon Amendment, an appropriations rider first enacted in 2004, prohibit federal and state governments and other recipients of certain federal funds from discriminating against medical professionals who do not perform or refer for abortions.

Despite these clear protections of the rights of conscience of pro-life medical professionals, those on the ground see a different story. Medical students and professionals report pressure to perform, be trained to perform, or to otherwise be involved in assisting with abortions. (Link is to website of the Christian Medical Association which CLS has represented in defending its members’ conscience rights.) Moreover, CLRF’s own experience defending the Weldon Amendment illustrated the utter lack of understanding that some of the largest grantees of federal funds (including the State of California and abortion advocacy groups) have of their own obligations not to discriminate against pro-life medical professionals. The existing federal laws prohibiting the rampant discrimination in the healthcare profession are simply being ignored. The Department’s proposed regulations are urgently needed in order to ensure that pro-life physicians, nurses, physician assistants, and others are able to remain in the practice and that the next generation of medical professionals can enter the profession with the confidence that they will not be forced to choose between their career and their conscience.

Please take the time to submit a brief comment encouraging Secretary Leavitt to issue the proposed regulations. The email address is consciencecomment@hhs.gov. You may also go to www.Regulations.gov, click on the link “comment or submission” and enter the keywords “provider conscience” to submit a comment there. THE DEADLINE FOR SUBMITTING COMMENTS IS THURSDAY SEPTEMBER 25, 2008.

As abortion advocates have launched postcard campaigns opposing the regulations, any comment is helpful, even if just a brief 1-2 sentences urging their adoption. Of course, if you can relate an example of your own or a friend or client’s discriminatory treatment for their exercise of their rights of conscience that would be particularly helpful. And please encourage others to do the same. Some additional points you may want to make are below:

The Department should enforce existing conscience protections, passed with bipartisan support and on the books for as long as three decades.
Discrimination against pro-life medical professionals does not expand access to abortion. It drives a critical segment of the medical workforce from the profession, diminishing access to medical care and increasing costs.
Urge the Secretary to interpret the existing regulations to explicitly protect medical professionals from being forced to dispense or refer for chemical abortifacients like RU-486 and “Plan B.”

Important New Book on the Threat to Religious Freedom Posed by Same-Sex Marriage

2008-09-17T20:26:00.007-04:00

Rowman and Littlefield has published Same-Sex Marriage and Religious Liberty: Emerging Conflicts, edited by Professor Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson. With an introduction by Picarello (General Counsel for the U.S. Conference of Catholic Bishops) and an an afterward by Laycock (Professor of Law at the University of Michigan Law School), the book contains six essays on the subject.

The book arises out of a conference organized by the Becket Fund in 2005. Chapter authors include Marc Stern of the American Jewish Congress, Professor Jonathan Turley of the George Washington University Law School, and Professor Chai Feldblum of Georgetown.

Much of the CLS Center's advocacy is predicated on our view that the "homosexual rights" movement poses the greatest current threat to religious freedom in the United States. This volume should help to illuminate the contours of the threat.

Analysis of North Coast Women's Care Medical Group v. San Diego County Superior Court: Part I

2008-09-02T11:50:00.007-04:00

The Center recently filed its reply brief in the Doe v. California Lutheran High School case now pending in the California Court of Appeals. The Doe case presents the question of whether the Unruh Civil Rights Act prohibits private religious schools from using religious criteria when making admission and discipline decisions. Is it impermissible sexual orientation discrimination for a private religious school to expel students for engaging in homosexual conduct in violation of the school's code of conduct? Preparing the reply brief for Doe gave me ample opportunity to consider the California Supreme Court's recent decision in North Coast Women's Care Medical Group v. San Diego County Superior Court. I have a number of thoughts about the decision. This post is Part I of those thoughts.

At the outset, it is important to understand how overreaching the California Supreme Court's decision really is. When Benitez initially filed the case, the physicians raised a number of defenses. One of those defenses was that their refusal to perform the fertility procedure was constitutionally protected. The physicians asserted that their "'alleged misconduct, if any' was protected by the rights of free speech and freedom of religion set forth in federal and state Constitutions." The defense was specifically conditioned on the doctors' actions being a violation of the Unruh Civil Rights Act. If the Act was not violated, then the question of whether the rights of free speech and freedom of religion provided a defense simply was not presented.

The physicians also claimed that they refused to perform the fertility procedure not because Benitez was a lesbian but because she was unmarried. The doctors alleged that they would not perform fertility procedures for any unmarried woman regardless of sexual orientation. While the Act prohibits sexual orientation discrimination, it does not prohibit marital status discrimination. Thus, if the physicians could show that their refusal was based on marital status rather than sexual orientation, the Unruh Civil Rights Act was not even implicated and there was no reason to decide whether the rights of free speech or freedom of religion provided a defense.

The case reached the California Supreme Court on a "summary adjudication" of the physicians' constitutional defense. No determination had been made about whether the physicians' conduct constituted sexual orientation or marital status discrimination. The Court acknowledged that the reason for the physicians' refusal was an unsettled question and even said that the physicians could present evidence at trial demonstrating that their conduct was premised on marital status rather than sexual orientation. Yet the Court charged ahead to the constitutional issue and held that the physicians' rights of free speech and freedom of religion provided no defense to a charge of sexual orientation discrimination under the Unruh Civil Rights Act.

The only explanation for the decision is that the Court wanted to decide a case of "gay rights" versus "religion." Even if the issue was not presented in the case, the Court was determined to make that the issue.

Pray for this child

2008-08-18T16:37:00.002-04:00

A woman in Israel had an abortion at 5 months on a doctor's instruction that the child was showing no signs of life after the mother's bleeding. Hours after she was delivered and placed in a freezer the baby girl moved and opened her mouth just as she was being taken to be buried. She is still in neonatal intensive care right now.

I realize this is a blog for religious freedom and life issues and that thoughts about those issues are impossible to avoid in connection with this story. And that's a shame. I long for a world where there is no perceived political axe to grind in simply praying for the survival of this little girl.

California High Court Holds Physicians Subject to Unruh Act Despite Religious Objections

2008-08-18T14:19:00.005-04:00

Today, the California Supreme Court held that the First Amendment rights of free exercise of religion and free speech do not exempt doctors from complying with the Unruh Act's prohibition on sexual orientation discrimination. A copy of the opinion can be found here.

For anyone interested, the Center filed an amicus brief in the case.

HHS Secretary Leavitt Blogs on Medical Professionals' Conscience Rights, Possible Regulatory Protections

2008-08-12T09:58:00.002-04:00

A couple of weeks ago, Greg blogged about a New York Times article describing a leaked proposed rule from inside the Department of Health and Human Services. The rule, if adopted, would protect require recipients of federal funds to certify in writing that they adhere to the three federal statutes prohibiting discrimination against healthcare workers who refuse to perform abortions.

On August 9, Secretary Leavitt posted an entry on his blog explaining that the draft regulation would not, as the abortion lobby would like to frighten people into believing, "define contraception as abortion." He explained:

"The Bush Administration has consistently supported the unborn. However, the issue I asked to be addressed in this regulation is not abortion or contraceptives, but the legal right medical practitioners have to practice according to their conscience and patients should be able to choose a doctor who has beliefs like his or hers."

Today he has posted a new entry noting that "with the help of Planned Parenthood, my blog -- for the first time -- received more visits than my teenage son’s MySpace page." He goes on to explain that he did find one comment from Mary Gallagher, President of the National Family Planning and Reproductive Health Ass'n, helpful. Ms. Gallagher said that IF the regulation is adopted, medical professionals "get to pick and choose what they want to do." Secretary Leavitt responded:

"So, according to Ms. Gallagher’s ideology, if a person goes to medical school they lose their right of conscience. Freedom of expression and action is surrendered with the issuance of a medical degree.

There is something I’d like to point out to Ms Gallagher and the people she represents. It is currently a violation of three separate federal laws to compel medical practitioners to perform a procedure that violates their conscience.

Obviously, some disagree with the federal law and would have it otherwise, so they have begun using the accreditation standards of physician professional organizations to define the exercise of conscience unprofessional and thereby make doctors choose between their capacity to practice in good standing and their right of conscience. In my view, that is simply unfair and a clear effort to subvert the law in favor of their ideology.

This is not a discussion about the rights of a woman to get an abortion. The courts have long ago identified that right and continue to define its limits. This regulation would not be aimed at changing or redefining any of that. This is about the right of a doctor to not participate if he or she chooses for reasons they consider a matter of conscience. Does the National Family Planning and Reproductive Health Association believe we can protect by Constitution, statute and practice rights of free speech, race, religion, and abortion—but not conscience?

Is the fear here that so many doctors will refuse that it will somehow make it difficult for a woman to get an abortion? That hasn’t happened, but what if it did? Wouldn’t that be an important and legitimate social statement?

I want to reiterate. If the Department of Health and Human Services issues a regulation on this matter, it will aim at one thing, protecting the right of conscience of those who practice medicine. From what I’ve read the last few days, there’s a serious need for it."

Exactly. I encourage you to go to Secretary Leavitt's blog and urge the Secretary to issue the proposed regulation protecting the conscience rights of medical professionals. Were there any doubt that it is necessary to remind abortion advocacy groups receiving federal grants that they cannot force medical professionals to perform abortions against their conscience, the abortion lobby's own reaction to these draft regulations eliminates those doubts.

"Colorado officials failed to keep faith with Constitution"

2008-08-08T12:07:00.003-04:00

Quin Hillyer writes a substantial opinion piece on the CCU v. Weaver decision in today's edition of The Examiner.

CCU v. Weaver victory featured in DOJ Religious Freedom in Focus

2008-08-07T13:42:00.003-04:00

The Department of Justice's July/August issue of Religious Freedom in Focus highlights the Center's victory in CCU v. Weaver as well as the DOJ's amicus brief in favor of CCU.

State announces that it will not appeal Tenth Circuit decision in Colorado Christian University v. Weaver

2008-08-05T12:07:00.005-04:00

In a press release the Colorado Department of Higher Education announced that the Colorado Commission on Higher Education will not appeal the Tenth Circuit Court of Appeal's decision in Colorado Christian University v. Weaver. The 10th Circuit ruled that the state's exclusion of CCU students from financial aid because of the school's religious identity was unconstitutional.

From the press release:

Colorado Solicitor General Dan Domenico, who argued the State's case, remarked, "As we were obliged to do, we presented the strongest case we could to the court. The court has now made clear, though, that Colorado's law is outdated and must be changed. We are glad that the CCHE has agreed with our recommendation not to ask the Supreme Court to overturn this decision, and we look forward to working with interested parties to craft a solution that complies with the court's decision."

Also see the August 1 Rocky Mountain News story covering the state's announcement.

Beta Upsilon Chi victory on Focus on the Family radio

2008-08-05T11:57:00.004-04:00

Today's edition of Focus on the Family's Family News in Focus features a segment on the Beta Upsilon Chi victory with comments from BYX board member Chuck James and CLS Center attorney Isaac Fong. Stream the audio here in the embedded Flash player today on a time-sensitive link that expires tonight, or download the August 5, 2008 show. The BYX segment begins at 3:38 and ends at 5:16.

UPDATE: Here is a partial transcript of the segment.

Another Editorial Applauding 10th Circuit Decision in CCU Case

2008-08-05T11:52:00.002-04:00

A house editorial in Pennsylvania's Reading Eagle applauds the Tenth Circuit's decision in the CCU case.

Third Circuit Strikes Down Temple U's Speech Code

2008-08-05T07:42:00.004-04:00

The U.S. Court of Appeals for the Third Circuit has struck down Temple University's speech code. (DeJohn v. Temple University).

Christian Legal Society joined an amicus brief urging the court to reach that conclusion.

Congratulations to Nate Kellum and the Alliance Defense Fund, which represented the successful plaintiff.

More BYX coverage in FL newspaper

2008-08-01T01:43:00.003-04:00

Gainesville Sun - Appeals court: UF must recognize Christian-only frat

Worldwide news coverage of Beta Upsilon Chi v. Machen decision

2008-07-31T13:58:00.004-04:00

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

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

2008-07-30T18:24:00.003-04:00

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

2008-07-30T14:12:00.009-04:00

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.

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

2008-07-29T12:39:00.006-04:00

(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

Colorado Christian University Tenth Circuit decision available

2008-07-23T16:23:00.003-04:00

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!

2008-07-23T13:47:00.002-04:00

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...

Washington Post's Senseless Editorial on Religious Hiring Rights

2008-07-22T00:00:00.003-04:00

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).

Proposed Rule Would Protect Conscience Rights

2008-07-15T12:30:00.002-04:00

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.

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

2008-07-14T16:08:00.004-04:00

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

2008-07-14T16:02:00.005-04:00

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

2008-07-14T14:34:00.011-04:00

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

2008-07-14T14:26:00.003-04:00

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.

Sen. Obama & the Faith-Based Initiative

2008-07-01T14:23:00.013-04:00

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"?

AP: Religious groups agree to drop suit against USC

2008-06-24T15:53:00.000-04:00

The AP in Columbia, South Carolina reports on the favorable settlement in CLS v. Sorenson previously discussed here. The University of South Carolina has rescinded its policy against funding religious student organizations and is working with CLS to create new policies to ensure equal treatment in the future.

U. of S. C. ceases discrimination against religious student organizations in funding and works with CLS to create viewpoint neutral policies

2008-06-24T13:36:00.001-04:00

The University of South Carolina, responding to a lawsuit filed by the Center, has lifted its viewpoint discriminatory restriction against granting funds to religious student organizations. This positive change protects the rights of the Christian Legal Society chapter at USC's law school as well as the rights of all other religious student organizations at the University.

Furthermore, the University has agreed to work with CLS to craft policies that protect against the threat of future viewpoint discrimination in funding, consistent with recommendations provided by Center attorneys.

View the press release on these welcome developments and the agreement between CLS and USC as well as other materials on this case.

Maggie Gallagher on Same-Sex "Marriage" and Religious Freedom

2008-06-23T12:42:00.002-04:00

On National Review Online, Maggie Gallagher has a terrific column about the ramifications of the California same-sex "marriage" decision for religious liberty.

Among other things, she demonstrates that homosexual advocacy groups are already thinking about attacking the tax-exempt status of nonprofits that "discriminate" on the basis of sexual orientation.

Marc D. Stern of American Jewish Congress: religious rights are likely to be "obliterated" by supporters of same-sex relationships

2008-06-17T15:28:00.003-04:00

Marc D. Stern, general counsel of the American Jewish Congress, writing in the Los Angeles Times:

If past rulings are any guide, it is religious rights that are likely to be "obliterated" by an emerging popular majority supporting same-sex relationships -- and it seems unlikely that the California courts will intervene. That's a shame.

Homosexual Behavior and Brain Anatomy: Does It Matter?

2008-06-16T15:35:00.018-04:00

The Chronicle of Higher Education's news blog reports as follows:

Swedish researchers are reporting today that brain patterns in homosexual people
resemble those seen in heterosexual members of the opposite sex, a finding that
will add to the debate about the origins of homosexuality.

Overall, the scientific evidence regarding the causation of homosexual behavior is inconclusive. (See Chapter 3 of the excellent Homosexuality: The Use of Scientific Research in the Church's Moral Debate by Stan Jones and Mark Yarhouse). Suppose for argument's sake, however, that science conclusively proves that genetics is the exclusive or most important explanation of one's inclination to engage in same-sex sexual behavior. The question, with respect to the conflict between religious associational freedom and sexual orientation nondiscrimination rules, is whether this matters.

It shouldn't.

Most of the cases that have reached litigation arose when governments tried to punish theologically conservative Christian groups that take extramarital sexual conduct (including same-sex sexual conduct) into account in their personnel decisions. Most of these groups -- and orthodox Christian ethics generally -- focus on whether a person engages in homosexual conduct rather than on his or her mere experience of sexual attraction to members of the same sex. The moral focus is on behavior rather than inclination. As a result, under traditional Christian sexual ethics, the morality of homosexual conduct does not turn on what causes one to experience same-sex sexual attraction.

Of course, the preceding paragraph offers a theological analysis rather than a legal one. I still haven’t answered the question – whether conclusive scientific proof that genes cause same-sex sexual attraction would affect a religious group’s constitutional defense to a sexual orientation nondiscrimination rule.

As a matter of doctrine, the first question a court should ask is whether the application of the nondiscrimination rule burdens the religious group's religious exercise. Conclusive scientific proof that genes cause same-sex sexual attraction should not affect the virtually inescapable conclusion that punishing religious groups for organizing around shared moral commitments substantially burdens their religious exercise. Nonetheless, Christian groups should be careful to accurately articulate their ethical calculus. They should clearly state that same-sex behavior is sinful without regard to the origin of same-sex sexual attraction. They should not state that such behavior is sinful on the ground that "people choose" to be attracted to members of the same sex.

The next doctrinal question is whether some compelling interest justifies this burden. Is the government's interest stronger if people don't "choose" to be sexually attracted to members of the same sex? I suppose one could argue that religious groups' conduct standards are more "unfair" if people don't choose their sexual attractions. And one could imagine some judges finding sympathy with such an argument. Nonetheless, the causation of same-sex attraction should not be relevant to a court's analysis of the state's interest. It does not affect the magnitude of the alleged social harm that supposedly flows from some religious groups' maintenance of conduct standards.

Oral Argument Today in Health Care Conscience/Nondiscrimination Case

2008-05-28T11:46:00.002-04:00

The California Supreme Court hears oral argument today in North Coast Women's Care Medical Group v. Superior Court, a case involving both health care rights of conscience as well as the conflict between religious freedom and nondiscrimination rules.

The dispute arose when Dr. Christine Brody declined to perform intrauterine insemination on Guadalupe Benitez on the ground that Benitez is unmarried. Benitez intended to raise a child with her lesbian partner. Benitez quickly located another doctor willing to perform the procedure. She eventually conceived and gave birth to a child.

Benitez sued Brody and her practice, claiming a violation of a California state forbidding sexual orientation discrimination in business establishments.

The CLS Center filed an amicus brief in support of Dr. Brody and her practice. More information about the case, including a link to the Center's amicus brief can be found here.

Tax Exemptions and Nondiscrimination

2008-05-28T11:26:00.002-04:00

According to a recent New York Times article, local tax assessors in Northampton, Massachusetts, tried to impose taxes on Smith College, arguing that the women's college engaged in sex discrimination and was thus not charitable.

This sort of thing does not bode well for religious freedom. Homosexual rights advocates frequently argue that taking adverse action against a person who has engaged in homosexual conduct is akin to race discrimination. They then invoke Bob Jones University v. United States, in which the Supreme Court upheld the IRS's determination that BJU was not entitled to tax-exempt status because it discriminated on the basis of race; to invoke the Bob Jones case is to suggest that charities that hold and enforce traditional views on human sexuality should lose their tax-exempt status.

Boy Scouts Sue Philly: Associational Freedom v. Nondiscrimination

2008-05-27T18:56:00.006-04:00

In another conflict between associational freedom and nondiscrimination rules, the Cradle of Liberty Council of the Boy Scouts of American has sued the City of Philadelphia. According to the complaint, the city intends to evict the Scouts from city-owned property they lease unless they allow atheists and homosexuals to become members.

The Philadelphia Inquirer story is here.

The Scouts, of course, prevailed in the landmark Dale case, in which the Supreme Court held that the application of New Jersey's ban on sexual orientation discrimination in public accommodations to the Scouts would violate the Scouts' constitutionally protected right of expressive association. The Scouts had declined to permit an openly homosexual man to serve as a Scoutmaster.

Many governments have declined to follow the logic and spirit of this opinion, conditioning religious groups' access to benefits upon compliance with such rules.

As readers of this blog know, the CLS Center's number one priority is to establish that the Constitution forbids government from applying religion and sexual orientation nondiscrimination rules to religious groups.

Recap of Colorado Christian University 10th Cir. oral argument

2008-05-15T04:20:00.000-04:00

Felisa Cardona, writing for the Denver Post, in Separation of Church, Aid Eyed, offers a snapshot of the oral argument yesterday in the CLS Center's Colorado Christian University case challenging the Colorado Commission on Higher Education's denial of financial aid to CCU students:

Judges Stephanie Seymour, Michael McConnell and Jerome Holmes questioned why Colorado taxpayers would be opposed to tuition aid for students attending CCU.
"My problem is why does Colorado care?" Seymour said. "Why do they have any interest if a CCU student goes to chapel every day or attends Regis and goes to chapel every day?"
McConnell questioned why the court should uphold the state law when it's not clear why the exclusion was put in place.
"We're looking to see whether the state had a purpose to sustain this," he said. "Why should we uphold it for a facetious purpose that it looks like the state never had?"
Holmes wondered whether the impact of the exclusion might force religious institutions to change their policies and beliefs in order to receive funding.
"Why wouldn't this law say you have to stop allowing these people to go to chapel if you want to get out of this regulation?" Holmes said.

Center Director Greg Baylor presented oral argument on behalf of CCU.

See previous blog commentary on this case.

For more information on CCU, visit the CCU website or the Peterson's profile of CCU.

Colorado Christian University v. Baker Tenth Circuit oral argument tomorrow/Wednesday

2008-05-13T16:28:00.001-04:00

Tomorrow/Wednesday, CLS Center Director Greg Baylor will argue before the Tenth Circuit Court of Appeals on behalf of Colorado Christian University in CCU v. CCHE. The Center challenges the Colorado Commission on Higher Education's denial of financial aid to CCU students because of the commission labeling of CCU - a Christian, accredited, liberal arts university - as "pervasively sectarian." All of the Tenth Circuit briefs, including those of the parties and the numerous amici curiae, for example, the United States in support of CCU, are available from the Center's website. The oral argument is scheduled for Wednesday, May 14, 2008, at 9 a.m. at the Byron White Courthouse in Denver, Colorado, in Courtroom III, before Judges McConnell, Seymour, and Holmes.

Marriage Law Foundation publishes April 2008 digest

2008-05-02T16:11:00.003-04:00

The Marriage Law Foundation released its Marriage Law Digest for April 2008 with recent cases and law review articles. There are several noteworthy items pertaining to the interaction between religious liberty and same-sex marriage and sexual orientation nondiscrimination, such as Willock v. Elane Photography (wedding photographer compelled against conscience to photograph same-sex commitment ceremony). For more information visit the Marriage Law Foundation and the Institute for Marriage and Public Policy.

Loyalty Oaths and Religious Freedom

2008-05-02T16:10:00.007-04:00

Both the LA Times and the Chronicle of Higher Education report that Cal State Fullerton fired a lecturer because she declined to sign an oath to defend the California and U.S. Constitutions "against all enemies, foreign and domestic." Wendy Gonaver, a Quaker and pacifist, refused to sign the oath, as it implied that she was willing to take up arms against America's enemies. She apparently indicated her willingness to sign the oath if she could accompany it with a written statement explaining her position, an offer the university reportedly rejected.

It is difficult to argue that this is justifiable incursion upon Gonaver's religious freedom. According to The Chronicle, the loyalty oath was added to the state constitution in 1952 to prevent communists from getting government jobs. Gonaver is not a communist; nor does the defense of California or the United States depend upon the involvement of Quaker teachers in combat.

Without question, anti-communist loyalty oaths are a product of a different era. But most of today's public universities have what amount to new loyalty oaths -- pledges not to offend others with controversial expression. The "nondiscrimination" policies most public universities apply to student groups are not really about stopping widespread invidious discrimination. Instead, these policies are about forcing dissenters to toe the line.

Universities defend the application of religion and sexual orientation nondiscrimination polices to religious groups not because they truly believe that some great injustice occurs when an a atheist or sexually active homosexual is not permitted to be the president of student groups like the Christian Legal Society. Instead, these universities simply cannot tolerate those who believe that certain religious propositions are objectively true or that homosexual conduct is sinful and immoral. The point of these policies is not so much to protect minorities, but rather to marginalize orthodox believers in an effort to reduce their influence and numbers.

Given that Gonaver is a Quaker, it is reasonable to assume that she will not commence litigation against university officials. If she did, one can imagine what the university would argue. In response to any Free Exercise Clause claim, the state would argue that the oath requirement is a "facially neutral and generally applicable rule," and thus immune to scrutiny under the Clause. Thanks in large part to the secular and religious Left, which bailed out on efforts to restore "strict scrutiny" to free exercise claims out of fear that such a restoration would undermine the homosexual "rights" agenda, Gonaver would have a tough time making a winning free exercise claim.

A claim under the California free exercise provision might not fare much better. In a case involving a Christian landlord charged with discriminating on the basis of marital status by refusing to rent an apartment to an unmarried, cohabiting couple, the California Supreme Court essentially said, "too bad -- no one forced you to be a landlord; you should go into some other line of work." One wonders whether the court would tell Gonaver to go into some line of work other than teaching.

Moral of the story: evangelicals are not the only ones hurt by the Left's subordination of religious freedom to "gay rights."

Ninth Circuit protects conscience rights of pharmacists

2008-05-02T13:17:00.002-04:00

In the case of Stormans v. Selecky, as reported on Religion Clause the Ninth Circuit kept in place the preliminary injunction barring enforcement of challenged pharmacy board rules thereby protecting the constitutional rights of pharmacists who, informed by their religious or moral beliefs, are bound by conscience to refrain from distributing the abortion-inducing Plan B contraceptive. The case continues with oral argument on June 3 in Seattle.

Yesterday the CLS Center filed an amicus brief supporting the pharmacists on behalf of Christian Legal Society, Christian Pharmacists Fellowship International, Christian Medical Association, American Association of Pro Life Obstetricians and Gynecologists, and Fellowship of Christian Physician Assistants.

Bans on "Marital Status" Discrimination: A Threat to Religious Freedom?

2008-05-02T12:56:00.007-04:00

Various media outlets (ABC News, USAToday, AP, among others) have devoted attention to a recent situation involving Wheaton College, a Christ-centered liberal arts institution in suburban Chicago. Kent Gramm, a Professor of English, has decided to leave Wheaton. Professor Gramm and his wife are poised to divorce.

Prior to joining the Wheaton community, potential students and teachers review the college's Community Covenant. They then decide whether they will to voluntarily join a community that strives to adhere to the beliefs and values articulated in that covenant. The covenant addresses the issue of divorce; an extremely helpful "Q&A" with Wheaton President Duane Litfin about the covenant and its application to divorce is available here.

According to Christianity Today's blog, Wheaton's faculty handbook states that the college may retain a teacher getting a divorce "when there is reasonable evidence that the circumstances that led to the final dissolution of the marriage related to desertion or adultery on the part of the other partner." Media reports indicate that Professor Gramm declined to discuss with Wheaton the circumstances of his divorce.

Quoted in Inside Higher Education, Professor Gramm observes that the State of Illinois forbids employers from "discriminating" against employees and potential employees on the basis of "marital status." Apparently aware of legal protections of religious freedom, Professor Gramm does not seem to be saying that Wheaton is violating state law. He then implies, somewhat ironically, that by considering divorce in personnel decisions, Wheaton has "lower standards" than does the State of Illinois.

Most courts would agree that the Constitution forbids the state from punishing Wheaton through the application of a ban on "marital status" discrimination in employment. However, it is less clear that the relevant Illinois statute actually exempts religious employers from the ban on marital status discrimination in the first place -- as it should. The Illinois Human Rights Act defines "employer[s]" covered by the Act in such a way to protect them from certain discrimination claims. The Act says that "employer" does not include religious institutions "with respect to the employment of individuals of a particular religion."

This language clearly protects religious employers in Illinois from liability for "discriminating" on the basis of "religion." However, one might plausibly argue that it does not protect them, by itself, from charges of "marital status" discrimination. The phrase "of a particular religion" is inherently ambiguous. No Christian would argue that one must be sinless to be a Christian; in other words, no Christian could plausibly maintain that a person's commission of sin always means that the person is no long "of" the "particular religion" of Christianity. A foundation of Christianity is that all are sinful (and thus in need to Christ's atonement for their sins on the Cross).

That being said, adverse action against an employee who procures a biblically unjustified divorce should not be considered "marital status" discrimination in the first place. Wheaton was concerned about Professor Gramm not because he was single, but rather because he was divorcing (without sharing any information that would provide the college a basis for determining whether the divorce was biblically justified).

In any event, the Constitution (and probably Illinois' Religious Freedom Restoration Act) provides employers like Wheaton a defense to any charge of "marital status" discrimination in circumstances like these.

Decision in Georgia Tech Case

2008-05-02T12:10:00.002-04:00

A federal district court issued a decision yesterday in Sklar v. Clough, a case in which two Georgia Tech's students challenged numerous university practices having some connection to religion. Those practices included (1) the creation of a Safe Space program; (2) a ban on funding "religious activities"; (3) the limitation of certain student expression to a "speech zone"; and (4) the adoption of a "speech code."

Inside Higher Education's article is here. The Chronicle of Higher Education's article is here. The Alliance Defense Fund's reaction is here. Georgia Tech's statement is here.

Among other things, the court concluded that the university's inclusion of religious materials in the "Safe Space" program violated the Establishment Clause. Those materials essentially declared that the orthodox view on homosexuality was theologically wrong.

Oral Argument Set in California Health Care Conscience Case

2008-04-30T18:20:00.006-04:00

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

2008-04-29T16:32:00.001-04:00

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.