NPR Story on Faith-Based Initiative

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.

Richard John Neuhaus and religious liberty

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.

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

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.

"Colorado officials failed to keep faith with Constitution"

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

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

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.

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.

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

Colorado Christian University Tenth Circuit decision available

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

Sen. Obama & the Faith-Based Initiative

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

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

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

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

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

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

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

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

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

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

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

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

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.

Access to Public Meeting Space for Worship

Throughout the 1980s and 1990s, courts adjudicated numerous disputes between religious speakers and governments. The disputes arose when governments denied religious speakers equal access to public spaces, typically contending that the First Amendment's Establishment Clause required such discriminatory exclusions. Religious speakers argued that other parts of the First Amendment -- especially the Free Speech Clause -- required inclusion. These disputes illustrated the broader conflict between two visions of church-state relations: strict separationism vs. neutrality.

A number of these cases reached the U.S. Supreme Court: Widmar v. Vincent (1981) (student religious groups at public university); Westside Bd. of Educ. v. Mergens (1990) (student religious groups at public secondary schools); Lamb's Chapel v. Center Moriches Union Free Sch. Dist. (1993) (after hours use of public school to show religious film series on child rearing); Rosenberger v. Rector of the Univ. of Virginia (1995) (religious student publication access to public university financial support of speech activities); Capitol Square Review & Advisory Bd. v. Pinette (1995) (nongovernmental display of religious symbol in park near state capitol); Good News Club v. Milford Cent. Sch. (2001) (community religious group meeting at public elementary school). In each instance, the Court ruled in favor of the religious speaker, rejecting strict separationists' Establishment Clause arguments.

Despite these decisions, some governments are still reluctant to allow religious speakers to use public property. One such government is the New York City Board of Education, which has been defending its exclusion of the Bronx Household of Faith from meeting space for years. The board attempts to distinguish the Court's precedents by arguing that it is merely excluding a "subject matter" rather than a "viewpoint" on a subject that other speakers are permitted to address when using school meeting space after hours. The board's policy denies access to those wishing to engage in religious "worship." The board contends that "worship" is a "category" of speech that simply isn't permitted in the forum, in an effort to deflect a charge of discrimination on the basis of viewpoint.

The Bronx Household case is once again in the U.S. Court of Appeals for the Second Circuit, which has a notoriously poor record in equal access cases. (The Supreme Court reversed the Second Circuit in both Lamb's Chapel and Good News Club.) Briefing on the appeal was completed yesterday, when the board filed its reply brief.

The CLS Center filed a friend of the court brief in support of the church, arguing that the board's exclusion violates the Free Exercise Clause.

The Rights of Public School Teachers

In addition to the inquiry about a student praying before lunch, we also got an email recently from a public school teacher in California who was apparently told that he could not have crosses or other religious items on his desk or on the walls of his classroom.

A thoughtful discussion of issues like these can be found in the excellent "Teachers and Religion in Public Schools," written by the CLS Center's own Kimberlee Wood Colby and published by Christian Educators Association International.

Court Throws Out Lawsuit Against Christian Children's Home

Kentucky can continue paying faith-based organizations to provide residential care to abused and neglected children in state custody.

On March 28, a Kentucky federal district court dismissed a lawsuit alleging that the state's payments to Kentucky Baptist Homes for Children (KBHC) violated the Establishment Clause. The court concluded that the plaintiffs lacked standing to challenge the payments. The plaintiffs had argued that their status as state taxpayers gave them the right to challenge the financial relationship between various state agencies and KBHC.

CLS Center attorneys assisted Louisville attorney John Sheller in representing KBHC. The plaintiffs have not yet indicated whether they intend to appeal the ruling to the U.S. Court of Appeals for the Sixth Circuit.

CLS Sues University of South Carolina

On Friday, CLS's Center for Law & Religious Freedom and ADF commenced litigation against University of South Carolina officials who denied funding to the CLS chapter at the USC law school. USC maintains a categorical ban on funding religious groups.

In our view, such a policy is plainly unconstitutional under the U.S. Supreme Court's 1995 decision in Rosenberger v. Rector of the University of Virginia.

News account here. Complaint here. Press release here.

Stay tuned for more details.

MD School District Won't Charge CEF

Public school officials in Prince George's County, Maryland, were poised to charge Child Evangelism Fellowship a fee to use after-hours meeting space in public school buildings. Other community groups are not charged for such uses.

Center attorney Kim Colby communicated with school officials on CEF's behalf, explaining that such discrimination was unconstitutional. Today, school officials reversed course, informing us that no charge would be levied upon CEF.

In 2001, the Supreme Court held that the First Amendment required public schools to give CEF equal access to after-hours meeting space in public elementary schools. Although most school districts around the country comply with this decision, some of them have not applied its logic to other situations. School districts in Maryland and New Jersey refused to include CEF informational fliers in "backpack mail"; the CLS Center sued and won both cases. Other school districts, like Prince George's, have attempted to charge religious groups a fee while allowing secular groups to meet without charge.



It is certainly encouraging that these school officials eventually did the right thing, although one wonders why they went down the wrong path in the first place.

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.

The Constitution and America as a "Christian Nation"

A majority of Americans believe that "the U.S. Constitution establishes a Christian nation," according to a survey done by the First Amendment Center. Thirty-eight percent of respondents "strongly agreed" with that statement, and 17% "mildly agreed."

What should one make of this? Why do a majority of Americans seem to believe something that is so clearly wrong?

I suppose it's possible that at least some respondents didn't understand the question. Part of the problem may stem from the fact that the question posits something undefined. More specifically: what would it actually mean for the U.S. Constitution to "establish" a "Christian nation"? What exactly is a "Christian nation"? How would a constitution "establish" such a nation?

The question seems to presuppose that the Constitution established our nation. It did not. To the extent any document can be said to have established our nation, that document is the Declaration of Independence. The Constitution does not even purport to "establish a nation." The Constitution, more than anything else, is about the nature, structure, and limits of the national government. To be sure, a constitution typically both reflects and shapes the character of a nation, but our Constitution didn't establish our nation -- Christian or otherwise.

What does it mean to be a "Christian nation"? The answer to that question is far from self-evident. Does it mean that a majority of the nation's people consider themselves to be Christian? If that's all that it takes, how would a document like the Constitution ensure that the nation remained Christian? By giving power to the government to expel enough non-Christians so that at least 51% of the population professed faith in Christ? By giving government the responsibility and power to evangelize? Surely this is not what the survey respondents meant when they stated their agreement with the proposition that the Constitution establishes a Christian nation. I sure hope that's not what they meant.

Perhaps being a "Christian nation" means that Christianity and Christian people are somehow privileged, particularly in their relationship with the government? If that's what the phrase means, to say that the Constitution "establishes a Christian nation" is to say that the Constitution explicitly confers such privileges upon Christians and Christianity. But it plainly does not. Indeed, in at least one place, Article VI, Section 3 of the Constitution explicitly forbids the national government from requiring someone to embrace a particular religion as a requirement for serving in the national government. Less explicitly, but not less powerfully, the First Amendment denies government the power to do all kinds of things it might do to "establish" and maintain a "Christian nation." And that is surely a good thing.

Our Constitution limits the power of government when it comes to religion. It presupposes that the church and the state are distinct institutions -- something that was not always the case in Western history. It also prevents the federal government from establishing a national church. It also limits government power to regulate religious exercise and speech. The common theme running through all these realities is religious freedom -- government minimizing its influence on religious choices. That the Constitution guarantees this is a cause for celebration. That the Constitution does not "establish a Christian nation" -- whatever that means -- is not a defect in the document.

Deconstructing Hein: Federal Government, Faith-Based Provider and ACLU Offer Different Readings in Laskowski v. Spellings

The Supreme Court strives to provide clear guidance to the lower federal and state courts through its opinions. When a case results in a fractured plurality, however, the Court can't be faulted for lack of trying. A recent case in point is Hein v. Freedom From Religion Foundation, 2007 WL 1803960 (June 25, 2007), a case widely viewed as offering the first definitive pronouncement on Establishment Clause taxpayer standing in twenty years. (See CLRF's blog post regarding the Hein decision here.) But the debate about the meaning of the case among the parties to a similar Seventh Circuit case that was GVR'd for Hein, Laskowski v. Spellings, 443 F.3d 930 (7th Cir. 2006), brings to mind the proverbial trio of blind men describing an elephant.

Laskowski is a taxpayer action brought against the Secretary of Education challenging a congressional earmark of $500,000 to the University of Notre Dame. The university intervened to defend the grant. The Seventh Circuit held the action moot with respect to the claim against the Secretary because the grant had expired, but ruled that the case could go forward as an equitable restitution action for recoupment against the university. This holding and the Seventh Circuit's holding in Hein that taxpayers could bring suit challenging purely discretionary Executive expenditures were a double-barrelled expansion of taxpayer standing that might have significantly broadened the availability of taxpayer claims if they had gone unaddressed by the Supreme Court. After the GVR, the Court of Appeals ordered the parties's counsel to brief the applicability of Hein to the case. Experienced counsel for the Justice Department, the ACLU of Indiana and Notre Dame (Michael Carvin of Jones Day) offered somewhat divergent views of the meaning of Hein to guide the court in their submissions in late July.

To the Justice Department (still participating in order to defend the Secretary from charges of acting unconstitutionally, a necessary predicate to establishing that the equitable remedy of recoupment was caled for), Hein requires dismissal because the question remaining before the court -- whether Notre Dame reasonably relied on the Secretary's authority - "[has] nothing to do with any exercise by Congress of its taxing and spending power." Moreover, Justice argues, Hein counsels that there can be no claim for recoupment that can be stated by a taxpayer, since "Establishment Clause taxpayer standing under Flast is not based on any notion that a taxpayer has an individual Article III stake in recovering money spent in violation of the Establishment Clause."

Notre Dame's argument is simpler and more direct. Carvin argues that Hein offers sufficient guidance for the Court of Appeals to simply affirm the District Court's original dismissal of the case. The recoupment remedy revived by the Seventh Circuit from hoaried dicta in Establishment Clause jurisprudence is a "dramatic expansion of taxpayer standing," the university argues, and hence goes well beyond the standing afforded by Flast v. Cohen. What's more, since the Secretary retained the discretion not to award the earmark to Notre Dame, "the plaintiffs do not challenge congressional action at all, but Notre Dame's alleged use of federal funds in violation of Executive regulations."

The plaintiffs are predictably dismissive of Hein's application. "The only relevance the decision in Hein has to this case is that Hein reaffirmed the validity of federal taxpayer standing, first noted in Flast v. Cohen, to challenge expenditures expressly authorized by a specific congressional enactment pursuant to Congress' power to tax and spend under Art. I, Sec. 8...." Because the taxpayers challenge a directed "teacher quality initiative" grant made pursuant to a specific appropriation under the Higher Education Act, Flast and Hein are satisfied, plaintiffs contend.

Notre Dame's argument on this point may end up carrying more weight than it might appear at first blush. The Supreme Court has strongly signaled that it is interested in Article III cases of late, having decided Hein in this past term and DaimlerChrysler Corp v. Cuno, 126 S.Ct. 1854 (2006), last year. If the Seventh Circuit disagrees with Notre Dame and holds that recoupment of unconstitutionally spent funds passes muster under Hein despite that it is not the congressional appropriation per se that is challenged, but how the money was actually spent by the grantee, it may be inviting further review.

Oral argument is set for November 5, 2007.