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).

"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.

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

Boy Scouts Sue Philly: Associational Freedom v. Nondiscrimination

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

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

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.

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.

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.

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.

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.

Strict Separationists Once Again Support Discrimination Against Religion

I suppose this is just a "dog bites man" story, but liberal strict separationist groups have once again expressed their support for government discrimination against religion.

The ACLU, People for the American Way, Americans United for Separation of Church and State, the American Jewish Congress, the American Jewish Committee, the Anti-Defamation League, and the American Federation of Teachers have together urged the U.S. Court of Appeals for the Tenth Circuit to uphold a district court decision that nothing in the federal Constitution stops Colorado from revoking college tuition assistance from those students who choose to attend Colorado Christian University. That revocation is based upon the state's conclusion that CCU is "too religious," even though it is an accredited four-year liberal arts institution that offers majors in computer science, business administration, and numerous other "secular" fields of study.

It matters not to these groups that Colorado financially assists students majoring in the same subjects at secular, public, and less religious institutions. It matters not that the state conducts an intrusive and subjective analysis of a college's religiosity in determining whether to revoke aid to its students. So much for "separation of church and state."

The bottom line is that these groups disagree with the theologically conservative Christian worldview that underlies the educational experience at CCU. They are comfortable with forcing religiously conservative taxpayers to support students at secular and "mildly" religious universities, because the education there is more consistent with their own worldview. But they cannot tolerate allowing economically disadvantaged students who choose CCU to keep their assistance.

Religious liberty is supposed to be about government neutrality towards religion. In the eyes of these groups, church-state law is simply a tool, to be used for marginalizing their ideological opponents.

Supreme Court Won't Review Two Bad Religious Freedom Decisions

The U.S. Supreme Court announced today that it would not review two bad lower court decisions in religious freedom cases.

In Faith Center Church v. Glover, the Ninth Circuit held it was permissible for government to exclude a religious speaker from otherwise available meeting space on the ground that the speaker would engage in "worship."

In Catholic Charities v. Dinallo, the Second Circuit held that it was permissible for New York State for force Catholic Charities to cover contraceptives in its employee health benefit plan.

CLS's Center for Law & Religious Freedom participated as friend of the Court in each case, urging the high Court to review the lower court decisions.

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.

Tom Berg Reviews Eisgruber and Sager's Religious Freedom and the Constitution

Can Religious Liberty Be Protected As Equality? Prof. Thomas C. Berg reviews Religious Freedom and the Constitution (Harvard, 2007) by Princeton Provost Christopher L. Eisgruber and Texas Law Dean Lawrence G. Sager in the April 2007 issue of the Texas Law Review.

Excerpt:

Christopher Eisgruber and Lawrence Sager are the most sophisticated proponents of an equality or nondiscrimination approach to the Religion Clauses. They began a dozen years ago with attacks on the idea, embodied in the Religious Freedom Restoration Act of 1993 (RFRA), that religiously motivated practices should be exempted from generally applicable legal restrictions in order to preserve a distinctive substantive freedom for religious exercise. They argued that showing special concern for freedom of religious practice "privileged" religion over deep nonreligious motives for action--violating a constitutional mandate of "equal regard" for such views--and that exempting religious conduct from restrictive laws was permissible only to protect religion from "hostility or indifference" compared with other "deep concerns of citizens."

With Religious Freedom and the Constitution, Eisgruber and Sager expand their approach to the full range of Religion Clause questions: free exercise exemptions, government-sponsored prayers and religious displays, and inclusion of religious entities in government funding programs. Their theory, "Equal Liberty," has two components. First, "in the name of equality," no persons "ought to be devalued on account of the spiritual foundations of their important commitments and projects"; beyond these concerns with "discrimination" or "hostility and neglect," religion should not be treated "as deserving special benefits or as subject to special disabilities." Second, there should be "a broad understanding of constitutional liberties generally": "rights of free speech, personal autonomy, associative freedom, and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow religious practice to flourish."
* * *
Most importantly, they confront the central problem for an equality-based theory of religious rights: how to square it with the special treatment of religion reflected in a good deal of constitutional case law, in widely held intuitions, and in the very fact that the First Amendment contains two clauses singling out religion for concern--one of which, the Free Exercise Clause, speaks by its terms of freedom rather than equality. To take the two cases Eisgruber and Sager first consider, why can there be a National Endowment for the Arts but not a National Endowment for Religion, and why are churches free to refuse women as clergy when other entities cannot practice sex discrimination in employment? Their answer to such questions is that every appropriate instance of special treatment for religion can be explained as "protecting persons from discrimination" or maintaining "parity, not advantage." They claim, among other things, that a nondiscrimination theory--protecting religious conduct from hostility or neglect--can generate a "robust" level of protection under the Free Exercise Clause.

The thesis of this Review, however, is that Eisgruber and Sager fail to show that special treatment of religion can be explained as nondiscrimination without reference to religious autonomy. Thus, although they reach many normatively attractive results--offering, for example, a rationale for potentially strong protection of free exercise rights--they can only do so by surrendering a primary focus on equality and nondiscrimination.

Download from SSRN or Westlaw. Citation: 85 Tex. L. Rev. 1185. Get more articles from Thomas Berg at SSRN and read his blogs at Mirror of Justice.