A Philosophical Case for Conscience

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.

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.

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

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.

Christians on Campus: Great David French Blog Post

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.

Faith-Based Hiring and the Obama Administration

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).

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

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

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

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

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

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

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

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

Prof. Garnett on "Excluding Religion"

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.

Another Editorial Applauding 10th Circuit Decision in CCU Case

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

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.

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

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

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

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

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

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

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

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

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

Decision in Georgia Tech Case

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.

Prof. Mark Noll and Judge Michael McConnell to co-lead DC seminar on religion and the Constitution June 8-14, 2008

Two distinguished scholars, Prof. Mark Noll of Notre Dame and Judge Michael McConnell of the Tenth Circuit Court of Appeals, are to co-lead a seminar, The Influence of Religion on Constitutional Thought, to be held in Washington, DC at the George Washington University from June 8-14, 2008. The deadline to apply was April 21, 2008; however, applications are still being accepted.

Readers may be interested in Judge McConnell's most recent scholarly writing: Justice Brennan's Accommodating Approach Toward Religion, 95 Cal. L. Rev. 2187 (2007), from a symposium on the legacy of Justice Brennan. Here is an excerpt from p. 2189:

Justice Brennan defended interpretations of the Constitution that were as favorable toward religion--and in most cases, more favorable--than the interpretations of his more conservative colleagues. This should give pause to those conservatives who think that progressive jurisprudence is necessarily a threat to religious freedom or religious values, and it should also give pause to those progressives who now advocate a jurisprudence more hostile to religion.