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.

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.

Federalist Society Church Autonomy Conference

The Federalist Society is sponsoring what promises to be a really terrific conference on church autonomy at Georgetown Law on March 14. Speakers include Professors Carl Esbeck and Tom Berg, both of whom advise CLS's Center for Law & Religious Freedom.

Briefing Complete in CO Student Aid Case

Briefing is complete in Colorado Christian University v. Baker now that the CLS Center filed a reply brief on behalf of CCU in the U.S. Court of Appeals for the Tenth Circuit.

Colorado takes away state student aid from otherwise eligible economically disadvantaged students who choose universities the state deems "pervasively sectarian." In other words, if a poor high school senior chooses a public university, a thoroughly secular college (e.g., Colorado College), or a "less religious" university (e.g., Regis University), he or she keeps his or her aid. But if he or she chooses CCU, aid is revoked -- no matter what sort of degree the student plans to earn.

In the lawsuit, CCU alleged that the state violated the Free Exercise and Establishment Clauses of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. The district court disagreed, and CCU appealed.

Eric V. Hall of Rothgerber Johnson & Lyons LLP and I prepared the brief. We expect oral argument to occur in May or September.

Brief Filed in Colorado Student Aid Case

The CLS Center filed its opening appellant's brief September 12 in the Tenth Circuit in Colorado Christian University v. Baker, a case involving Colorado's discrimination against students attending seriously religious colleges and universities.

Like most states, Colorado has created various programs designed to help students and their families cover the cost of a college education. Students are permitted to direct their aid to virtually any institution of higher education in the state. However, the state statutes creating the programs exclude students attending "pervasively sectarian" schools. Through a subjective and intrusive process, the Colorado Commission on Higher Education decided that Colorado Christian University (CCU) was "pervasively sectarian," thereby denying aid to otherwise eligible students at the school.

In December 2004, CCU filed a civil rights lawsuit in federal court, asserting that the state's discrimination against it and its students violated the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. In May 2007, the district court granted the state defendants' summary judgment motion. CCU appealed, and filed its opening brief on September 12.

Among the groups who joined "friend of the court" briefs supporting CCU were the United States, the National Association of Evangelicals, the American Association of Presidents of Independent Colleges & Universities, the Council for Christian Colleges & Universities, the Becket Fund, and the American Center for Law & Justice.

Representing CCU along with the CLS Center are Eric V. Hall and L. Martin Nussbaum of Rothgerber Johnson & Lyons, LLP; Thom Scheffel of Thomas N. Scheffel & Associates, PC; and attorneys with the Alliance Defense Fund. ADF has also provided financial support of the legal work done in this case.

High Court Passes on Church Autonomy Case

The Supreme Court today denied cert in Petruska v. Gannon University (No. 06-985), leaving in place a correct Third Circuit opinion applying the Church Autonomy Doctrine to dismiss a sex discrimination claim against a Roman Catholic university.

One manifestation of the Church Autonomy Doctrine is Title VII's "ministerial exception." By its terms, Title VII of the Civil Rights Act of 1964 exempts religious employers from its ban on religious discrimination. Above and beyond this, the courts have created the ministerial exception, which deprives the civil magistrate of the power to review a religious organization's decisions regarding clergy and their equivalents.

The first Third Circuit panel to adjudicate the case declined to embrace the ministerial exception. After the author of the majority opinion died, the court granted rehearing before a new panel. The new panel agreed with seven sister circuits and embraced the ministerial exception. It is that opinion that the Supreme Court let stand today.

The unsuccessful petitioner was represented by Prof. Marci Hamilton, author of God and the Gavel, a book deemed a "poorly executed rant" by none other than Prof. Douglas Laycock, one of the most prominent and thoughtful church-state legal academics in the country.