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.

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.

California Appellate Court Rules in Christian School's Favor

On January 26, the California Court of Appeal ruled in favor of a Christian school sued for "sexual orientation" discrimination.

The dispute arose when California Lutheran High School expelled two students for violating its code of conduct by engaging in a same-sex intimate relationship. The students' parents sued the school, claiming that it had committed discrimination on the basis of sexual orientation in violation of California's Unruh Act, which forbids discrimination on the basis of a variety of protected characteristics in "business establishments" (among other things).

California Lutheran argued that it, as a private religious school, was not a "business establishment." The trial court agreed, and the students' parents appealed. In its January 26 decision, the appellate court agreed that the school is not a business establishment. Because of this ruling, the court did not reach the religious liberty issues in the case.

The CLS Center attempted to intervene on behalf of the Association of Faith-Based Organizations (AFBO). The joint ADF-CLS press release is here.

More information about the case, including a link to the decision, is found on the relevant page of the CLS website. Congrats to my colleague Tim Tracey, who serves as lead counsel for AFBO in this case.

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.

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.

Heritage on Same-Sex Marriage and Religious Liberty

Thomas Messner has prepared a Heritage Foundation "Backgrounder" entitled "Same-Sex Marriage and the Threat to Religious Liberty."

The paper is thorough and well-done. Recommended reading.

NY Times Article on Religious Staffing Freedom and Government Funds

The New York Times has published an article regarding the Department of Justice's opinion about religious staffing freedom and government funds.

Former Center Director and University of Missouri law professor Carl Esbeck is quoted in the article, defending the DOJ opinion.

ACLU rep Christopher Anders calls the memo “the church-state equivalent of the torture memos,” referring to the Department's conclusion that the government does not have a compelling interest in forcing religious employers to hire people who reject the organization's religious beliefs.

This is incredible. Since when is it so awful for religious employers to consider religion in personnel decisions? Should the government intervene when a synagogue declines to hire a Muslim as a rabbi? Should a Unitarian congregation face liability if it won't choose a "fundamentalist" Christian to serve as its pastor? Adding government money to the mix doesn't change the analysis -- it is still not wrong for religious groups to draw their personnel from among those who voluntarily embrace the group's beliefs.

The fact of the matter is that both the Constitution and RFRA forbid the federal government from forcing religious groups to give up the exercise of a constitutional right in exchange for social service and education money.

Senator Obama has suggested that religious groups should not be allowed to preserve their religious character through staffing policies if they want to participate in government-funded programs. If Mr. Obama is elected president, it is conceivable that he will repudiate the Department's opinion and apply religion nondiscrimination rules to religious groups, thereby undermining genuine religious freedom.

Same-Sex "Marriage" in Connecticut

The Connecticut Supreme Court today held that a state statute defining marriage as "the union of one man and one woman" violated the equal protection provisions of the state constitution.

The court observes that "[m]uch of the condemnation of homosexuality derives from firmly held religious beliefs and moral convictions." To the extent the word "homosexuality" refers to homosexual conduct, the court's observation is undoubtedly correct. The court claims not to "equate religious beliefs with prejudice," but its rhetoric belies this assertion:

• "the history of pernicious discrimination faced by gay men and lesbians"
• "a group that historically has been the object of scorn, intolerance, ridicule or worse"
• referring to the "illegitimate reasons that gave rise to the past discrimination"
• "Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society"
• "gay persons have been subjected to such severe and sustained discrimination because of our culture’s long-standing intolerance of intimate homosexual conduct"

The Connecticut Supreme Court plainly has nothing but disgust for traditional sexual ethics, even those rooted in religious commitment. Such rhetoric hardly bodes well for theologically orthodox religious groups who seek constitutional protection from the growing movement to marginalize and punish them.

Important New Book on the Threat to Religious Freedom Posed by Same-Sex Marriage

Rowman and Littlefield has published Same-Sex Marriage and Religious Liberty: Emerging Conflicts, edited by Professor Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson. With an introduction by Picarello (General Counsel for the U.S. Conference of Catholic Bishops) and an an afterward by Laycock (Professor of Law at the University of Michigan Law School), the book contains six essays on the subject.

The book arises out of a conference organized by the Becket Fund in 2005. Chapter authors include Marc Stern of the American Jewish Congress, Professor Jonathan Turley of the George Washington University Law School, and Professor Chai Feldblum of Georgetown.

Much of the CLS Center's advocacy is predicated on our view that the "homosexual rights" movement poses the greatest current threat to religious freedom in the United States. This volume should help to illuminate the contours of the threat.

Analysis of North Coast Women's Care Medical Group v. San Diego County Superior Court: Part I

The Center recently filed its reply brief in the Doe v. California Lutheran High School case now pending in the California Court of Appeals. The Doe case presents the question of whether the Unruh Civil Rights Act prohibits private religious schools from using religious criteria when making admission and discipline decisions. Is it impermissible sexual orientation discrimination for a private religious school to expel students for engaging in homosexual conduct in violation of the school's code of conduct? Preparing the reply brief for Doe gave me ample opportunity to consider the California Supreme Court's recent decision in North Coast Women's Care Medical Group v. San Diego County Superior Court. I have a number of thoughts about the decision. This post is Part I of those thoughts.

At the outset, it is important to understand how overreaching the California Supreme Court's decision really is. When Benitez initially filed the case, the physicians raised a number of defenses. One of those defenses was that their refusal to perform the fertility procedure was constitutionally protected. The physicians asserted that their "'alleged misconduct, if any' was protected by the rights of free speech and freedom of religion set forth in federal and state Constitutions." The defense was specifically conditioned on the doctors' actions being a violation of the Unruh Civil Rights Act. If the Act was not violated, then the question of whether the rights of free speech and freedom of religion provided a defense simply was not presented.

The physicians also claimed that they refused to perform the fertility procedure not because Benitez was a lesbian but because she was unmarried. The doctors alleged that they would not perform fertility procedures for any unmarried woman regardless of sexual orientation. While the Act prohibits sexual orientation discrimination, it does not prohibit marital status discrimination. Thus, if the physicians could show that their refusal was based on marital status rather than sexual orientation, the Unruh Civil Rights Act was not even implicated and there was no reason to decide whether the rights of free speech or freedom of religion provided a defense.

The case reached the California Supreme Court on a "summary adjudication" of the physicians' constitutional defense. No determination had been made about whether the physicians' conduct constituted sexual orientation or marital status discrimination. The Court acknowledged that the reason for the physicians' refusal was an unsettled question and even said that the physicians could present evidence at trial demonstrating that their conduct was premised on marital status rather than sexual orientation. Yet the Court charged ahead to the constitutional issue and held that the physicians' rights of free speech and freedom of religion provided no defense to a charge of sexual orientation discrimination under the Unruh Civil Rights Act.

The only explanation for the decision is that the Court wanted to decide a case of "gay rights" versus "religion." Even if the issue was not presented in the case, the Court was determined to make that the issue.

California High Court Holds Physicians Subject to Unruh Act Despite Religious Objections

Today, the California Supreme Court held that the First Amendment rights of free exercise of religion and free speech do not exempt doctors from complying with the Unruh Act's prohibition on sexual orientation discrimination. A copy of the opinion can be found here.

For anyone interested, the Center filed an amicus brief in the case.

Maggie Gallagher on Same-Sex "Marriage" and Religious Freedom

On National Review Online, Maggie Gallagher has a terrific column about the ramifications of the California same-sex "marriage" decision for religious liberty.

Among other things, she demonstrates that homosexual advocacy groups are already thinking about attacking the tax-exempt status of nonprofits that "discriminate" on the basis of sexual orientation.

Marc D. Stern of American Jewish Congress: religious rights are likely to be "obliterated" by supporters of same-sex relationships

Marc D. Stern, general counsel of the American Jewish Congress, writing in the Los Angeles Times:

If past rulings are any guide, it is religious rights that are likely to be "obliterated" by an emerging popular majority supporting same-sex relationships -- and it seems unlikely that the California courts will intervene. That's a shame.

Homosexual Behavior and Brain Anatomy: Does It Matter?

The Chronicle of Higher Education's news blog reports as follows:

Swedish researchers are reporting today that brain patterns in homosexual people
resemble those seen in heterosexual members of the opposite sex, a finding that
will add to the debate about the origins of homosexuality.

Overall, the scientific evidence regarding the causation of homosexual behavior is inconclusive. (See Chapter 3 of the excellent Homosexuality: The Use of Scientific Research in the Church's Moral Debate by Stan Jones and Mark Yarhouse). Suppose for argument's sake, however, that science conclusively proves that genetics is the exclusive or most important explanation of one's inclination to engage in same-sex sexual behavior. The question, with respect to the conflict between religious associational freedom and sexual orientation nondiscrimination rules, is whether this matters.

It shouldn't.

Most of the cases that have reached litigation arose when governments tried to punish theologically conservative Christian groups that take extramarital sexual conduct (including same-sex sexual conduct) into account in their personnel decisions. Most of these groups -- and orthodox Christian ethics generally -- focus on whether a person engages in homosexual conduct rather than on his or her mere experience of sexual attraction to members of the same sex. The moral focus is on behavior rather than inclination. As a result, under traditional Christian sexual ethics, the morality of homosexual conduct does not turn on what causes one to experience same-sex sexual attraction.

Of course, the preceding paragraph offers a theological analysis rather than a legal one. I still haven’t answered the question – whether conclusive scientific proof that genes cause same-sex sexual attraction would affect a religious group’s constitutional defense to a sexual orientation nondiscrimination rule.

As a matter of doctrine, the first question a court should ask is whether the application of the nondiscrimination rule burdens the religious group's religious exercise. Conclusive scientific proof that genes cause same-sex sexual attraction should not affect the virtually inescapable conclusion that punishing religious groups for organizing around shared moral commitments substantially burdens their religious exercise. Nonetheless, Christian groups should be careful to accurately articulate their ethical calculus. They should clearly state that same-sex behavior is sinful without regard to the origin of same-sex sexual attraction. They should not state that such behavior is sinful on the ground that "people choose" to be attracted to members of the same sex.

The next doctrinal question is whether some compelling interest justifies this burden. Is the government's interest stronger if people don't "choose" to be sexually attracted to members of the same sex? I suppose one could argue that religious groups' conduct standards are more "unfair" if people don't choose their sexual attractions. And one could imagine some judges finding sympathy with such an argument. Nonetheless, the causation of same-sex attraction should not be relevant to a court's analysis of the state's interest. It does not affect the magnitude of the alleged social harm that supposedly flows from some religious groups' maintenance of conduct standards.