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.

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.

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.

Center Secures Teacher Participation in "See You at the Pole"

On November 20, the Carlisle Area School District (PA) rescinded an earlier decision to forbid teachers from being present at "See You at the Pole" activities. The Center assisted teachers adversely affected by the previous decision.

During the week of September 22, district officials declared that teachers could not be present at this year's SYATP event. An affected teacher contacted the CLS Center, and Litigation Counsel Tim Tracey communicated with the school district on her behalf. As a result of his efforts, the teacher was permitted to participate in this year's event, but the restrictive policy remained in place.

Tim subsequently made a presentation at a school board meeting and wrote a demand letter to the school district on behalf of the teachers whose religious freedom would be affected by the policy. The school board adopted a new policy allowing teachers to participate as long as they issue a verbal disclaimer, indicating that their presence is in their individual capacities. Media coverage is here, here and here.

Center attorneys were assisted by the law firm of Boyle, Neblett & Wenger.

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.

FoxNews Coverage of BYX v. Machen

FoxNews has done a story on the Beta Upsilon Chi lawsuit against the University of Florida. There are several versions of the story running on FoxNews today, but at least one of them is available here on the FoxNews website.

New Article on the Clash Between Nondiscrimination Laws and Religious Freedom

Greg Baylor and I have an article in the latest issue of Engage entitled, "Nondiscrimination Rules and Religious Associational Freedom." As the title suggests, the article deals with the interplay between the growing tide of federal, state, and local nondiscrimination laws and the religious freedom guaranties of the United States Constitution. The article concludes that "a proper regard for religious liberty should move government to exempt religious organizations from such nondiscrimination rules," and when this does not happen, "courts should--and must--find violations of the Constitution."

On air: Tim Tracey discusses BYX case on Sirius satellite radio

Tim Tracey discussed the Beta Upsilon Chi (BYX) case on today's afternoon edition of Across the Nation with Bob Dunning, on Sirius Satellite Radio Channel 159, the Catholic Channel.

Listen online (3 day free trial or paid subscription required).

Questioning Beta Upsilon Chi's Piety

The Independent Florida Alligator Online has a letter to the editor from Daniel Morgan, in which he accuses Beta Upsilon Chi (BYX) of not being "pious." He writes that truly "pious" Christians are "to use persecution and unfair treatment as a testimony to their moral rectitude," rather than resorting to lawsuits. He says that instead of bearing up under persecution, BYX is "clamor[ing] loudly for special privileges."

Morgan unfortunately has an incomplete grasp of what the Bible says regarding lawsuits. He relies on 1 Corinthians 6:7, which says, "To have lawsuits at all with one another is already a defeat for you. Why not rather suffer wrong? Why not rather be defrauded?" On its face, the verse seems to support Morgan's point. But in context, the verse's meaning is clearly limited to lawsuits between Christian believers.

In verse 1 of Corinthians 6, Paul talks of the believers within the Corinthian church having “a grievance against another” (i.e., another believer). Paul says in verses 5-6, "Can it be that there is no one among you wise enough to settle a dispute between the brothers, but brother goes to law against brother, and that before unbelievers?" So the passage only deals with lawsuits between believers.

Indeed, if Paul was prohibiting Christians from exercise their legal rights, then he failed to follow his own teaching. In Philippi, he asserted his rights as a Roman citizen and received an apology for having been wrongly beaten. In Jerusalem, he invoked his Roman citizenship to prevent a centurion from whipping him. He subsequently defended himself in a Roman court, and ultimately he exercised his right to appeal to Caesar.

For those interested, a great article dealing with this topic is Christians & Lawsuits: Bizarre or Biblical? by Travis Barham.

It's also worth noting that BYX is not seeking a "special privilege." The University of Florida recognizes a host of single-sex student organizations, such as the Women's Chorale, Men's Roller Hockey Club, Progressive Black Men, etc. BYX is only asking that it be treated the same.

Center Sues University of Florida for Excluding Christian Fraternity

UPDATE 5:00 p.m. EDT: Read the AP story on the lawsuit, Christian frat sues University of Florida claiming exclusion by Mitch Stacy.

The Center filed suit today against University of Florida officials on behalf of Brothers Under Christ/Beta Upsilon Chi (BYX), a Christian fraternity. University officials refuse to recognize BYX as a registered student organization because the fraternity limits membership to men, and refuses to allow the fraternity to go under the Greek system because it requires members to share the group's Christian beliefs.

BYX is caught in a conundrum. To be recognized by the University, it either needs to give up its identity as a men's organization or abandon its religious criteria for members. Obviously, neither option is acceptable to a Christian fraternity.

Interestingly, during the 2005-2006 and the 2006-2007 school years, the University of Florida actually recognized a Christian fraternity and a Christian sorority as registered student organizations. The University now claims it will no longer recognize any Christian fraternities and sororities as registered student organizations since they "discriminate" on the basis of sex. This despite the fact that the University recognizes a host of other single-sex organizations, such as the Women's Chorale and the Men's Roller Hockey Club.

ACLU: Not Just Silent on Free Speech, Actually Opposed

Today in The Wall Street Journal, Wendy Kaminer has an op-ed in which she chronicles the ACLU's move from being a legitimate defender of free speech to being simply another liberal advocacy group. "Once the nation's leading civil liberties group and a reliable defender of everyone's speech rights, the ACLU is being transformed into just another liberal human-rights group that reliably defends the rights of liberal speakers."

Kaminer notes several important, recent First Amendment cases, such as Harper v. Poway, in which the ACLU remained silent because of an unwillingness to defend anti-homosexual or anti-abortion speech. Kaminer mentions the Center's university student group cases, but mistakenly states that "the ACLU tends to absent itself from cases on college campuses involving the associational rights of Christian student groups to discriminate against gay students, in accordance with their religious beliefs." Far from "absenting itself," the ACLU filed amicus briefs in opposition to the Christian Legal Society chapters at Hastings College of the Law and Southern Illinois University.

Ironically, it was the ACLU in the 1960s and 1970s that was marginalized and barred from university campuses. Indeed, many of the cases the Center relies on in defending the free speech rights of Christian student groups are ACLU cases. Now that the ACLU and the gay and lesbian student groups have free reign on university campuses, the ACLU has had a dramatic change of heart. Once the champion of free speech on university campuses, the ACLU now outright opposes such speech.

Center Files Lawsuit Against Arlington Public Schools

The Center filed a lawsuit yesterday against Arlington Public Schools (APS) in Virginia. The lawsuit was brought after APS refused to distribute informational fliers to high school students for a community outreach organization called Parents and Friends of Ex-Gays and Gays (PFOX).

APS distributes fliers for a variety of community organizations. The school district's flier distribution policy in fact states that "[a]pproval is normally given to materials submitted from non-profit organizations in Northern Virginia." Surprisingly, APS's policy provides absolutely no criteria to guide school officials in determining whether to approve or disapprove a particular flier.

The law in the Fourth Circuit regarding flier distribution at public schools is particularly well-established. The Fourth Circuit in Child Evangelism Fellowship v. Montgomery County Public Schools I, 373 F.3d 589 (4th Cir. 2004) (subscription required), held that Montgomery County's refusal to distribute Child Evangelism Fellowship's flier was viewpoint discriminatory. Then last year, in Child Evangelism Fellowship v. Montgomery County Public Schools II, 457 F.3d 376 (4th Cir. 2006) (subscription required), the Fourth Circuit held that Montgomery County's second attempt at a flier policy was also unconstitutional because it failed to provide criteria to guide school officials in reviewing fliers.

Regardless of what one may think of PFOX, the law is clear.

Federal Government Agrees to Protect Religious Hiring Rights

A Joint Stipulation of Dismissal was filed on Thursday in Geneva College v. Chao (W.D. Pa. Apr. 26, 2006). The U.S. Department of Labor and the Pennsylvania Department of Labor & Industry agreed to allow Geneva College, a private Christian school, to use job listing services funded under the Workforce Investment Act (WIA). The Center sued officials from both departments late last year when Pennsylvania officials insisted that the WIA nondiscrimination provision precluded the state from posting jobs restricted on the basis of religion. Stories regarding the Center's victory can found on AP and Religion Clause.

The U.S. Department of Labor maintained that Pennsylvania misapplied the WIA nondiscrimination provision. The provision, according to the Department, only applies to recipients of WIA funding. Because Geneva does not receive WIA funds, the nondiscrimination provision has no application to the College and Pennsylvania should have permitted Geneva to post its jobs. The Pennsylvania Department of Labor & Industry conceded that it misconstrued the nondiscrimination provision and agreed to post Geneva's jobs.

The victory is a narrow one but nevertheless important. Religious employers, like Geneva, are now placed on equal footing with other employers. They both now have the same access to WIA funded services.

The case unfortunately leaves unanswered the question of whether a religious employer receiving WIA funds may discriminate on the basis of religion in hiring. The answer appears to be yes. The Religious Freedom Restoration Act, which still applies to the federal government, should be read to provide religious employers with an exemption from the WIA nondiscrimination provision.

Interesting Sidelight

I left out an interesting sidelight in my previous post, A Growing Consensus. The two cases to rule against the associational rights of student organizations, Kane and Truth, also happen to be unpublished. Perhaps this is an indication the courts deciding those cases aren't even sure themselves they got it right.

If you're interested, Kane is available on Westlaw at 2006 WL 997217, and Truth is available through the Western District of Washington's PACER website at docket no. 2:03-cv-00785. Both websites unfortunately require users to have a paid account to access content. If anyone knows of a free source for these opinions, I'm happy to post the links.

A Growing Consensus

I’m a little late to the party; nevertheless, it’s good to see yet another federal court hold that a public school cannot deny recognition or funding to a religious student group because of the group’s religious criteria for officers or members. Last month, in Roman Catholic Foundation v. Walsh, the Western District of Wisconsin enjoined the University of Wisconsin-Madison from applying its "non-discrimination" policy to deny the Roman Catholic Foundation recognition and funding.

Dare I say there is a consensus building? Out of the six courts to examine the issue only the Northern District of California in Christian Legal Society v. Kane and the Western District of Washington in Truth v. Kent School District have ruled against the expressive associational rights of student organizations.

The current case break down is as follows:

In favor of associational rights of student organizations:

• Christian Legal Society v. Walker
• Hsu v. Roslyn Union Free School District No. 3
• Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University
• Roman Catholic Foundation v. Walsh

Against associational rights of student organizations:

• Christian Legal Society v. Kane
• Truth v. Kent School District

Both Kane and Truth are now pending in the Ninth Circuit. Briefing concluded in Kane on February 2, 2007, and Truth was argued on July 27, 2006. I'm not too optimistic that the Ninth Circuit will get it right. But there's always the Supreme Court, right?