Ruling for Christian School Stands

The California Supreme Court let stand a lower court ruling rejecting a "sexual orientation" discrimination claim against a Christian high school.

Consistent with its code of conduct, California Lutheran High School expelled two students it believed were in a lesbian relationship. The students' parents sued, claiming that the school committed discrimination on the basis of sexual orientation, something that the state Unruh Act forbids in "business establishments." The trial court and intermediate appellate court held that the school was not a business establishment and thus not subject to the act.

The plaintiffs asked the California Supreme Court to review that judgment. They also asked the state high court to depublish the Court of Appeal's opinion. On April 29, the court rejected both requests.

The CLS Center represented the Association of Faith-Based Organizations in the case. AFBO sought to intervene. Throughout the case, the Center argued on behalf of AFBO that application of the Unruh Act to Cal Lutheran in this case would violate the school's religious liberty.

Law Professors Urge Connecticut Legislature to Respect Religious Freedom

Legal scholars Tom Berg, Carl Esbeck, Rick Garnett, and Robin Fretwell Wilson recently urged the Connecticut legislature to protect religious freedom in the course of codifying the state supreme court's same-sex marriage decision. See their letter here.

Dale Carpenter reacted to their letter, and their response is here.

"Gay Rights" v. Religious Liberty

Commentary by Nathan Diament, Keith Pavlischek, and the Washington Post.

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?

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.

DOJ & DC Transit System Settle Workplace Religious Exercise Case

The Justice Department and the Washington DC area transit system have settled a lawsuit against it over its accommodation of religious exercise in the workplace.

President Obama to Name Council on Faith-Based Partnerships

The Washington Post is reporting that President Obama is poised to name the members of a newly created Council on Faith-Based and Neighborhood Partnerships.

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.

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.

Religious Liberty CLE at CLS Regional Retreat

I will be doing a presentation on religious liberty at the Christian Legal Society northeast/New England regional retreat, which runs from Friday, February 27 through Sunday, March 1.

The retreat is at the Frost Valley conference center in Claryville, NY. Sign up on the Christian Legal Society website here.

Presentation at CCCU Presidents Conference

I participated in a panel discussion this morning at the Council for Christian Colleges & Universities Presidents Conference in Washington, DC. The topic was "Legal and Public Policy Issues." I talked about religious staffing freedom -- recent events and imminent threats.

I asserted the threat that religion and sexual orientation nondiscrimination rules pose stems from a more foundational problem: the growing cultural acceptance of same-sex sexual conduct and the corresponding cultural condemnation of those who hold the traditional position on marriage and human sexuality.

I then ran through some developments in this area over the last twelve months: the passage of Prop 8 in California; the discovery of a right to same-sex "marriage" in the Connecticut constitution by the state's supreme court; Congress's failure to enact ENDA; DOJ's publication of the OLC opinion regarding RFRA, federal money, and religious staffing freedoms; the bad decisions in Truth v. Kent and North Coast Women's Health v. Superior Court; and the good outcomes in AFBO v. Iowa and Doe v. California Lutheran.

With regard to what the near future holds, I pointed to the emphasis on "LGBT concerns" on the White House website's "civil rights agenda" page; the likely introduction of ENDA; continuing litigation [much of which the CLS Center is involved in]; and the Obama Administration's approach to religious staffing freedoms in the faith-based initiative.

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).

ENDA, Illinois, and President Obama

President Obama outlines his civil rights agenda on the White House website. About half of the page is a description of his "Support for the LGBT Community." In articulating the president's desire to add "sexual orientation" and "gender identity" to the list of protected characteristics in federal laws and rules prohibiting discrimination in employment, the site observes that Mr. Obama sponsored similar legislation while serving in the Illinois State Senate.

The president's invocation of the Illinois legislation is troubling. The bill that State Sen. Obama sponsored did not exempt religious employers from the ban on sexual orientation discrimination -- a market departure from the statutes adopted in other states. Subsequent efforts to add such an exemption were rejected.

This, of course, does not necessarily mean that President Obama will push for a version of the federal Employment Non-Discrimination Act that lacks a religious exemption. However, it is not particularly reassuring that the president, earlier in his career, was, at a minimum, insufficiently sensitive to religious freedom concerns.

Christian Science Monitor on the Faith-Based Initiative

The Christian Science Monitor has published an article regarding the faith-based initiative under the Obama Administration. Our friend Stanley Carlson-Thies of the newly launched Institutional Religious Freedom Alliance is quoted extensively.

Although the article is generally good and informative, it does incorrectly suggest that the Administration encouraged faith-based grant recipients to use funds in unconstitutional ways. This is incorrect.

The article invokes "critics" of the freedom of religious organizations to staff on a religious basis. Those critics essentially argue that anyone who pays taxes should be eligible for every job at every employer that receives some sort of government support. This argument is hard to take seriously. President Obama is not required to ignore a person's political affiliation in selecting his nominees and appointees. The CIA is not required to ignore an applicant's relationships with al Qaeda in choosing its spies. Even moreso, private entities that merely receive some government benefit -- but are not the government -- have the freedom to take lawful factors into account in their personnel decisions.

The article quotes Melissa Rogers of Wake Forest Divinity School, who asserts that "government only funds tasks that are nonreligious in nature" and therefore, that recipients of government funds shouldn't be allowed to exercise the freedom they possess under Title VII and the First Amendment to staff on a religious basis. The problem with this argument is that it presupposes a particular and tendentious definition of "nonreligious." To illustrate, how would you characterize meeting the material needs of the homeless? One could plausibly characterize this as "nonreligious"; but one could just as easily characterize it as religious, particularly if the entity providing the services does so based on its religious commitments. In short, religious groups legitimately fill jobs with those who share their views even if those jobs are not limited to preaching sermons and administering sacraments.

Let us continue to hope and pray that the Obama Administration, for the sake of those served by faith-based social service providers, will preserve the freedom of these groups to maintain their unique religious identity.

Kentucky Supreme Court Takes Blaine Amendment Case

The Kentucky Supreme Court has taken Pennybacker v. Beshear, a case involving a Blaine Amendment challenge to a state grant to a Christian university. The Kentucky legislature appropriated $11 million for a new pharmacy school at the University of the Cumberlands, a liberal arts institution affiliated with the Kentucky Baptist Convention. Strict separationist taxpayers sued, claiming that the proposed expenditure violated the state constitution. The trial court agreed, and the University and stated appealed to the Kentucky Court of Appeals. They simultaneously asked the Kentucky Supreme Court to take up the case immediately, without waiting for the Kentucky Court of Appeals to rule. This past Thursday, the state high court agreed. The CLS Center represents the University in this case.

Brookings Releases Faith-Based Initiative Recommendations to Incoming Administration

The left-leaning Brookings Institution has made its recommendations to the incoming Obama administration regarding government and faith-based social service providers.

Although I hope to comment in more detail later, suffice it to say for now that the report recommends that the new administration curtail the freedom of religious organizations participating in government-funded programs to staff on a religious basis.

Oral Argument in Christian Fraternity Case

The U.S. Court of Appeals for the Eleventh Circuit heard oral argument yesterday in Beta Upsilon Chi v. Machen, a case in which the freedom of religious organizations to use religious criteria in personnel decisions is at stake. Christian Legal Society's Center for Law & Religious Freedom represents the fraternity in its civil rights lawsuit against University of Florida officials.

The dispute arose when UF withheld "registered student organization" status from Beta Upsilon Chi (also known as "Brothers Under Christ" and BYX). BYX draws its members and leaders from among those students who profess faith in Jesus Christ; the university deemed this a violation of its policy banning religious discrimination by student organizations.

UF's treatment of BYX violates the First Amendment. It infringes the right of expressive association and constitutes viewpoint discrimination. Rejecting BYX's motion for preliminary injunction, the district court disagreed. BYX appealed, and my colleague Tim Tracey presented an excellent oral argument yesterday.

The three judges on the Eleventh Circuit panel (Chief Judge Edmondson, Judge Tjoflat, and Senior Judge Hill) all expressed a large measure of skepticism towards the university's arguments. Judge Edmondson revealed his view that the university's denial of recognition undoubtedly disadvantaged BYX. The court questioned the magnitude of the university's interest in pressuring a Christian group dedicated to the inculcation of Christian principles to admit non-Christian members.

Of course, the tenor of an oral arguments does not always predict the outcome of a case. Nonetheless, most observers (including me) of yesterday's argument would not be surprised if the appellate panel ruled in BYX's favor.

Brookings to Release Report on Obama & Faith-Based Initiative

This Friday, the left-leaning Brookings Institution will make its recommendations to the incoming Obama administration regarding government and faith-based social service providers.

Our friend Stanley Carlson-Thies of the Center for Public Justice, an effective advocate for the autonomy of religious institutions, will comment.