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

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

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)

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.

Listen to the Christian Legal Society v. Kane oral argument

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

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.

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.

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

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.

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

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).

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.

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.

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

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.

"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.

Beta Upsilon Chi victory on Focus on the Family radio

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.

More BYX coverage in FL newspaper

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

Worldwide news coverage of Beta Upsilon Chi v. Machen decision

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

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

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

(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