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.

President Obama Funds Overseas Abortions

A provision of the Foreign Assistance Act of 1961 prohibits the use of federal funds "to pay for the performance of abortions as a method of family planning, or to motivate or coerce any person to practice abortions." In what has come to be called the "Mexico City Policy," President Reagan instructed the US Agency for International Development to comply with this statutory directive in 1984. President Clinton rescinded the policy, but President George W. Bush reinstated it.

Yesterday, President Obama again rescinded the Mexico City Policy, thereby allowing nongovernmental organizations working overseas to encourage women to have abortions and to lobby foreign governments to eliminate legal protections of unborn children.

Millions of Americans don't want their tax dollars used to facilitate the killing of babies in their mothers' wombs. President Obama subordinated those Americans' desires to the objectives of the pro-abortion organizations. This is not an auspicious beginning for a president whom many thought (erroneously, in my view) would be comparatively moderate on sanctity of life issues.

FRC's comment is here. National Right to Life comments here. US Conference of Catholic Bishops comments here.

CLS Center and ADF attorneys move to intervene in conscience regulation lawsuit on behalf of pro-life medical associations

On behalf of pro-life professional medical associations, attorneys for the CLS Center for Law & Religious Freedom and the Alliance Defense Fund have filed motions to intervene in three lawsuits challenging a regulation that protects the medical professional right of conscience. View the press release here.

Last week, Planned Parenthood, a group of states including Connecticut, and the National Family Planning & Reproductive Health Association (NFPRHA) represented by the American Civil Liberties Union (ACLU) brought lawsuits seeking to invalidate a Health & Human Services regulation that protects doctors and other medical professionals from being forced to participate in abortions against their consciences.

CLS and ADF attorneys represent the Catholic Medical Association, the Christian Medical Association, and the American Association of Pro-Life Obstetricians and Gynecologists.

The complaints, briefs in support of motion for intervention, and the proposed answers for the respective cases are available from the CLS Center:

Connecticut v. United States

NFPRHA v. Leavitt

Planned Parenthood v. Leavitt

The Center previously submitted comments on behalf of the Christian Legal Society and the Fellowship of Christian Physician Assistants in support of the enactment of this rule.

CLS and ADF attorneys also successfully defended against two challenges to the Weldon Amendment, which is one the three underlying statutes implemented by the regulation; that is, California v. United States (press release), and National Family Planning and Reproductive Health Association v. Gonzales (press release).

Supreme Court Asked to Consider Jurors' Use of Bible

Attorneys for death row inmate Khristian Oliver recently asked the U.S. Supreme Court to review a lower court opinion rejecting their claim that jurors' use of the Bible in deliberations violated Oliver's constitutional rights.

Abortion Advocates Challenge Conscience Protection

According to the Washington Post, abortion advocates have filed three lawsuits challenging the newly final HHS rule protecting the consciences of health care providers.

Richard John Neuhaus and religious liberty

Mark Steyn reminds us of Richard John Neuhaus (1936-2009) constant defense of religious liberty as an important part of his voluminous writings on the pages of First Things, quoting this entry from Neuhaus' feature On the Square from October 2006, in which he responds to a New York Times editorial on the subject of religious exemptions:

The editors are also exercised that religious institutions are exempt from regulations having to do with religious and gender discrimination in hiring and promotion. But the key point, invoked over the years by opponents of free exercise, is that tax exemption is actually a government subsidy.

The underlying, and nascently totalitarian, assumption is that everything in the society belongs to the state and should be under state control. Government exemptions from tax and control are a privilege granted, not a right respected. From which it follows that an exemption is, in fact, a subsidy. This is a long way from the Founders’ understanding of the independent sovereignty of religion that the government is bound to respect.

Neuhaus, of course, wrote the following in 1984 in the prologue to The Naked Public Square: Religion and Democracy in America:

What is relatively new is the naked public square. The naked public square is the result of political doctrine and practice that would exclude religion and religiously grounded values from the conduct of public business. The doctrine is that America is a secular society. It finds dogmatic expression in the ideology of secularism. I will argue that the doctrine is demonstrably false and the dogma exceedingly dangerous.

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.