Ninth Circuit Issues Decision in "Choose Life" License Plate Case

The Ninth Circuit recently ruled that Arizona violated the Free Speech Clause rights of the Arizona Life Coalition by denying its request for a "Choose Life" license plate.

Congratulations to Jeff Shafer and his colleagues at the Alliance Defense Fund on their victory.

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.

What Will the Next President Do With the Faith-Based Initiative?

President Bush's Faith-Based and Community Initiative was designed to remove obstacles to the full participation of faith-based and community organizations in federally funded social service programs. Although Congress failed to enact much legislation implementing the initiative, the Bush Administration changed many of the rules and regulations governing the relationship between federal agencies and faith-based social service providers. For example, President Bush issued Executive Order 13279, which required federal agencies to respect the faith-based hiring practices of religious contractors.

The next president will be free to rescind or modify this EO 13279 and the other regulatory changes the current president made. I am aware of no good reason to think that any of the Republican candidates would un-do these positive developments. The real question is whether any of the Democratic candidates would do so. It appears that a majority of congressional Democrats oppose protecting the faith-based hiring practices of religious government contractors and grant recipients. Therefore, it is reasonable to speculate that most if not all of the Democratic presidential candidates hold the same view.

It is conceivable that the next president might add "sexual orientation" to the list of characteristics upon which federal contractors and grant recipients may not rely in choosing their personnel. It is conceivable that there will be no exemption for religious employers, many of whom consider extramarital sexual conduct in their employment decisions. Such a move would be an unwelcome development for theologically conservative social service providers seeking to participate in government-funded programs.

Another CLS Chapter Derecognized - This Time at The University of Montana School of Law

UPDATE Mon Dec. 17, 2007, 6:36 p.m. See also: the CLS v. U. Montana page on the CLS website with links to the press release, the complaint, and other material.

Over the past two decades CLS chapters have faced derecognition at approximately 17 Universities around the country on the basis that CLS's Statement of Faith requirement for its voting members and officers (it bears repeating for the umpteenth time that ANYONE is invited and welcome at CLS meetings and activities) violates a school nondiscrimination policy. In many cases the schools have argued that CLS commits religious discrimination. Increasingly however, schools are adopting "sexual orientation" nondiscrimination rules and claiming that because CLS interprets its Statement of Faith to include the belief that sexual conduct outside marriage (whether with someone of the same or opposite sex) is sinful, CLS discriminates on the basis of "sexual orientation."

In all but one of CLS's encounters with chapter derecognition CLS has succeeded - in or out of court - in regaining recognition for its chapter with its membership and leadership rules uncompromised. From settlement agreements in which the University altered its policies to accommodate CLS (Arizona State, Ohio State, etc.) to federal court decisions holding that applying such policies to religious organizations is unconstitutional (Southern Illinois University) to decisions on appeal by Student Bar panels that a religious organizations' faith requirements for membership and leadership are not properly termed "discrimination" at all (Idaho), CLS has been almost uniformly successful. The one exception is the University of California-Hastings College of Law where an appeal to the 9th Circuit is pending).

The University of Montana School of Law has decided to be #18. Although the Associated Students of the University of Montana, the main campus student association, has recognized CLS-UM, the law school will not. More properly, although the SBA originally recognized CLS earlier this year, with the SBA deciding that SBA nondiscrimination policies did not preclude CLS recognition, the SBA then effectively submitted CLS to a law school-wide popularity vote which CLS narrowly lost. In light of this, the SBA THEN decided that CLS-UM violated its nondiscrimination rules and derecognized the chapter.

We have filed a complaint in federal court in Missoula, Montana on behalf of CLS-UM and National CLS. The complaint is linked from the release linked above. Expect more here on this case in the weeks ahead.

Public School Teachers' Unions Don't Want Competition

More evidence that public school teachers' unions simply don't want competition: they recently filed a friend of the court brief arguing that states should have the power to discriminate against parents and students who choose religious schooling.

The state of Colorado provides higher ed tuition assistance to eligible students. There's a catch, though: if a student and his or parents choose a college that the state has deemed "too religious," then the assistance is revoked. Represented by the CLS Center, Colorado Christian University challenged this discriminatory system in court.

In an amicus brief filed earlier this month, the public school establishment (the National Education Association, the Colorado Education Association, the National School Boards Association, and the National Parent Teacher Association) once again demonstrated its opposition to educational choice and genuine religious freedom.

Why are they opposed to choice in education? According to their own "statement of interest" in the brief, they believe that giving parents and students choice might threaten public (i.e., government-run) schools -- meaning the interests of the public school teachers' unions and their members.

On Stem Cell Research and Media Portrayals of Christians as "Anti-Science"

If you haven't read this article in Opinion Journal today, you should. Since Roe v. Wade scientific progress has slowly undermined many of the underpinnings for the abortion right as, for example, unborn children are shown to feel pain and viability dates become earlier and earlier. With recent developments in adult stem cells, science once again appears to be on the side of the angels. But don't hold your breath expecting the media to change its narrative that conscientious and moral objections are the enemies of science. THAT would take a miracle.

ENDA Update

The House approved the Employment Non-Discrimination Act (H.R. 3685) (ENDA) 235-184 on November 7. ENDA forbids discrimination on the basis of "sexual orientation" in employment.

ENDA includes an exemption for religious organizations. The religious exemption is clearer and better than the exemption in the original version of the bill. See my prior post about the exemption in the original version. The exemption in the bill that passed the House mirrors the religious exemptions from Title VII's ban on religious discrimination:

This Act shall not apply to a corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Acts of 1964 pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a); 2000e-2(e)(2)).

The House-approved version of ENDA has been sent to the Senate for action.

Big Week for Healthcare Rights of Conscience

Last week was a significant one on the healthcare rights of conscience front. A federal court in Washington state issued a preliminary injunction prohibiting the enforcement of Washington regulations to force pharmacies and pharmacists to stock and dispense the morning after pill (Plan B). In Stormans v. Selecky, the Court addressed a Washington pharmacy rule that the pharmacy board adopted only after pressure by Planned Parenthood and the governor in response to its previous decision that - comparatively speaking - protected conscience rights. A pharmacy and two individual pharmacists who object to stocking and filling prescriptions for the drug challenged the rule on Free Exercise and Title VII grounds.

The Court held that the Washington rule was not a neutral and generally applicable rule that happened to burden religious persons, but was in fact "targeted at the religious practices of some citizens," and that the "burden [the regulations imposed] on the practices of plaintiffs is intentional not incidental, and substantial not minimal." Indeed, the Court cited "the prominent role played by Planned Parenthood and the Northwest Women's Law Center" as further proff "that Plan B and religious objection were the focus of the rulemaking process." "The regulations appear designed," the Court observed, "to impose a Hobson's choice for the majority of pharmacists who object to Plan B: dispense a drug that ends a life as defined by their religious teachings, or leave their present position in the State of Washington."

Having determined that the rule was targeted at religious objectors, the Court applied strict scrutiny and had no problem concluding that the state had no compelling interest to justify this imposition on objecting pharmacies and pharmacists.

Finally, a Court that understands exactly what is at stake in this fight. Not "access" to the morning after pill (the Court notes that even the state's pharmacy association recognizes that access is not a problematic in Washington state), but the pro-abortion lobby's desire to drive out any vestiges of pro-life sentiment from the medical profession. In the view of those on the radical side of "Choice," dissenting voices cannot be tolerated. Even the few pharmacists who for reasons of conscience and personal religious beliefs do not wish to stock or personally fill prescriptions for a drug that operates in many cases to stop an already fertilized egg from attaching to the womb and developing into a child cannot be permitted to remain in the profession.

The Court had no problem disposing of the argument that the regulations were justified by a concern that pharmacist objections amounted to gender discrimination. Noting that federal and state law both provide a clear right to health care providers not to participate in an abortion, the court held "refusal to participate in an act that one believes terminates a life has nothing to do with gender or gender discrimination." Again, pointing to the apparent lack of a problem of access to Plan B in Washington state, the Court held that "the interests promoted by the regulations have more to do with convenience and heartfelt feelings than with actual access to certain medications."

Exactly. One could hardly hope for better understanding by a court of the true dynamics of this debate than is evidenced in this opinion. Kudos to lead counsel Kristen Waggoner (who were proud to claim as a CLS member), the team at Ellis, Li & McKinstry, and the Alliance Defense Fund for this win.

The importance of the decision is demonstrated by the other big development last week, an Ethics Opinion by the American College of Obstetricians and Gynecologists that belittles the role of conscience and repeats many of the misguided arguments for setting aside the role of the conscience of the individual medical professional that the Washington defendants relied upon in Stormans. Relying only a caricaturized view of conscience as simple subjective feelings of distaste for abortion and buying the Planned Parenthood media spin that persons with conscientious objections typically seek to lecture others about their sinfulness, ACOG would effectively rule out conscience rights in the abortion context. More on this ACOG opinion and its serious flaws in the coming days.

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.