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.

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).

Potential AG Eric Holder and Religion

Professor Howard Friedman at the Religion Clause Blog indicates that reported Attorney General choice Eric Holder doesn't have much of a record on religious freedom issues.

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.

Justice Department Posts Opinion on Religious Staffing and RFRA

The U.S. Department of Justice has finally put online its June 29, 2007, opinion stating that the Religious Freedom Restoration Act (RFRA) permits the government to exempt a federal grant recipient from a religion nondiscrimination attached to the money. The Department's Office of Legal Counsel issued the opinion.

The Department's Office of Justice Programs had awarded World Vision, a religious organization, a $1.5 million grant under the Juvenile Justice and Delinquency Prevention Act of 1974. As a condition of receiving grants under the Act, recipients may not discriminate on the basis of religion in "employment in connection with any programs or activity." World Vision takes religion into account in its personnel decisions.

The Religious Freedom Restoration Act of 1993 forbids the federal government from substantially burdening a person's exercise of religion, unless the imposition of that burden is the least restrictive means of furthering a compelling government interest.

OLC explained first that World Vision's operation of its government-funded program constituted the "exercise of religion" within the meaning of RFRA. It then stated that the government would "substantially burden" World Vision's religious exercise if it required World Vision to comply with the religion nondiscrimination rule. Finally, OLC concluded that applying the religion nondiscrimination rule to World Vision would not further a compelling governmental interest.

CCU v. Weaver victory featured in DOJ Religious Freedom in Focus

The Department of Justice's July/August issue of Religious Freedom in Focus highlights the Center's victory in CCU v. Weaver as well as the DOJ's amicus brief in favor of CCU.

Department of Justice Religious Freedom in Focus on Bronx Household of Faith

The newest edition of the First Freedom Project Religious Freedom in Focus e-mail newsletter (March/April 2008 Volume 32) highlights the Department of Justice's amicus brief work in Bronx Household of Faith v. Board of Education of the City of New York.

The Bronx Household of Faith, an urban church in New York, has struggled for over ten years to obtain equal access to the after-hours use of school facilities for its worship services. The school board has flung open the doors of its facilities for use by a wide variety of community groups but has shut the door on religious worship.

In the brief filed on April 1, the United States reiterates its prior argument that “excluding religious activity because it is religious is presumptively unlawful.” The brief repeats its objection to the school board’s position that worship is an entirely different mode of speech that falls outside of traditional First Amendment analysis. The United States brief points out that the Supreme Court rejected such an argument more than 25 years ago in Widmar v. Vincent (1981), where the Court held that courts could not, under the First Amendment, distinguish categorically between religious speech generally and religious worship. The Widmar Court found that there was no principled basis to determine when “singing hymns, reading scripture, and teaching biblical principles, . . . cease to be ‘singing, teaching and reading’ – all apparently forms of speech despite their religious subject matter – and become unprotected worship.”

The CLS Center also submitted an amicus brief in the most recent round of litigation in this case, arguing that the school board's use of religion as a factor to exclude the Bronx Household of Faith from its forum also violates the Free Exercise Clause.

Brief Filed in Colorado Student Aid Case

The CLS Center filed its opening appellant's brief September 12 in the Tenth Circuit in Colorado Christian University v. Baker, a case involving Colorado's discrimination against students attending seriously religious colleges and universities.

Like most states, Colorado has created various programs designed to help students and their families cover the cost of a college education. Students are permitted to direct their aid to virtually any institution of higher education in the state. However, the state statutes creating the programs exclude students attending "pervasively sectarian" schools. Through a subjective and intrusive process, the Colorado Commission on Higher Education decided that Colorado Christian University (CCU) was "pervasively sectarian," thereby denying aid to otherwise eligible students at the school.

In December 2004, CCU filed a civil rights lawsuit in federal court, asserting that the state's discrimination against it and its students violated the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. In May 2007, the district court granted the state defendants' summary judgment motion. CCU appealed, and filed its opening brief on September 12.

Among the groups who joined "friend of the court" briefs supporting CCU were the United States, the National Association of Evangelicals, the American Association of Presidents of Independent Colleges & Universities, the Council for Christian Colleges & Universities, the Becket Fund, and the American Center for Law & Justice.

Representing CCU along with the CLS Center are Eric V. Hall and L. Martin Nussbaum of Rothgerber Johnson & Lyons, LLP; Thom Scheffel of Thomas N. Scheffel & Associates, PC; and attorneys with the Alliance Defense Fund. ADF has also provided financial support of the legal work done in this case.

Deconstructing Hein: Federal Government, Faith-Based Provider and ACLU Offer Different Readings in Laskowski v. Spellings

The Supreme Court strives to provide clear guidance to the lower federal and state courts through its opinions. When a case results in a fractured plurality, however, the Court can't be faulted for lack of trying. A recent case in point is Hein v. Freedom From Religion Foundation, 2007 WL 1803960 (June 25, 2007), a case widely viewed as offering the first definitive pronouncement on Establishment Clause taxpayer standing in twenty years. (See CLRF's blog post regarding the Hein decision here.) But the debate about the meaning of the case among the parties to a similar Seventh Circuit case that was GVR'd for Hein, Laskowski v. Spellings, 443 F.3d 930 (7th Cir. 2006), brings to mind the proverbial trio of blind men describing an elephant.

Laskowski is a taxpayer action brought against the Secretary of Education challenging a congressional earmark of $500,000 to the University of Notre Dame. The university intervened to defend the grant. The Seventh Circuit held the action moot with respect to the claim against the Secretary because the grant had expired, but ruled that the case could go forward as an equitable restitution action for recoupment against the university. This holding and the Seventh Circuit's holding in Hein that taxpayers could bring suit challenging purely discretionary Executive expenditures were a double-barrelled expansion of taxpayer standing that might have significantly broadened the availability of taxpayer claims if they had gone unaddressed by the Supreme Court. After the GVR, the Court of Appeals ordered the parties's counsel to brief the applicability of Hein to the case. Experienced counsel for the Justice Department, the ACLU of Indiana and Notre Dame (Michael Carvin of Jones Day) offered somewhat divergent views of the meaning of Hein to guide the court in their submissions in late July.

To the Justice Department (still participating in order to defend the Secretary from charges of acting unconstitutionally, a necessary predicate to establishing that the equitable remedy of recoupment was caled for), Hein requires dismissal because the question remaining before the court -- whether Notre Dame reasonably relied on the Secretary's authority - "[has] nothing to do with any exercise by Congress of its taxing and spending power." Moreover, Justice argues, Hein counsels that there can be no claim for recoupment that can be stated by a taxpayer, since "Establishment Clause taxpayer standing under Flast is not based on any notion that a taxpayer has an individual Article III stake in recovering money spent in violation of the Establishment Clause."

Notre Dame's argument is simpler and more direct. Carvin argues that Hein offers sufficient guidance for the Court of Appeals to simply affirm the District Court's original dismissal of the case. The recoupment remedy revived by the Seventh Circuit from hoaried dicta in Establishment Clause jurisprudence is a "dramatic expansion of taxpayer standing," the university argues, and hence goes well beyond the standing afforded by Flast v. Cohen. What's more, since the Secretary retained the discretion not to award the earmark to Notre Dame, "the plaintiffs do not challenge congressional action at all, but Notre Dame's alleged use of federal funds in violation of Executive regulations."

The plaintiffs are predictably dismissive of Hein's application. "The only relevance the decision in Hein has to this case is that Hein reaffirmed the validity of federal taxpayer standing, first noted in Flast v. Cohen, to challenge expenditures expressly authorized by a specific congressional enactment pursuant to Congress' power to tax and spend under Art. I, Sec. 8...." Because the taxpayers challenge a directed "teacher quality initiative" grant made pursuant to a specific appropriation under the Higher Education Act, Flast and Hein are satisfied, plaintiffs contend.

Notre Dame's argument on this point may end up carrying more weight than it might appear at first blush. The Supreme Court has strongly signaled that it is interested in Article III cases of late, having decided Hein in this past term and DaimlerChrysler Corp v. Cuno, 126 S.Ct. 1854 (2006), last year. If the Seventh Circuit disagrees with Notre Dame and holds that recoupment of unconstitutionally spent funds passes muster under Hein despite that it is not the congressional appropriation per se that is challenged, but how the money was actually spent by the grantee, it may be inviting further review.

Oral argument is set for November 5, 2007.

Constitutional First? Court Approves Funding for Reconstruction of Church Buildings

American Atheists v. City of Detroit, --- F.Supp.2d ----, 2007 WL 2300693, Civ. No. 2:06-cv-11696 (E.Dist. Mich.) has spawned a hue and cry among strict separationists, who claim that it represents the first time in modern history that a court has approved the public funding of improvements to houses of worship.

American Atheists brought a federal Establishment Clause challenge to grants made by the City of Detroit Downtown Development Authority to three local churches for improvements to exterior facades, parking areas and landscaping as part of the city’s efforts to improve the downtown area in advance of the All-Star Game in 2005 and the Super Bowl in 2006. The stated purpose of the grants, which reimbursed qualifying landowners and long-term lessees for 50% of approved improvements, was to retain and attract downtown business and related civic purposes, and plaintiffs in fact did not deny that the "secular purpose" prong of Lemon was met. Neutral criteria for projects included structural and architectural qualifications, and a private project management company administered the grants. The court issued a decision in favor of the city and the churches on August 8th, upholding the constitutionality of the grants in substantial part except for improvements to the churches’ monolithic signage and stained glass iconography. As to these, the court concluded that the expression of religious messages on such structures would constitute a “diversion” of funding to religious speech – i.e., sectarian purposes. Improvements to church exterior facades, parking lots and landscaping were approved. The court held that Mitchell v. Helms was a “jurisprudential shift” that had modified the stricter requirements of the Tilton trilogy limiting capital funding for sectarian institutions. Mitchell dictates that as long as the criteria for eligibility are neutral, the “pervasively sectarian” nature of the institutional recipient is notwithstanding. Divertibility is not an issue, the court noted, where the improvements are capital in nature and do not directly serve religious services or messages.

Presuming an appeal is filed (final judgment was entered August 24th), this is certainly one to watch. Although Marty Lederman claims that the case “would likely be the vehicle for a wholesale 5-4 overturning of almost 40 years of Establishment Clause doctrine” if it reached the Supreme Court, I think he’s being a bit hyperbolic. There is no reason the Supreme Court, or the Sixth Circuit for that matter, could not issue a decision that simply notes that the Supreme Court has never ruled that the Establishment Clause prohibits churches from receiving public funds that are available to all similarly situated beneficiaries on the basis of criteria that are neutral to religion, even if the funds are for the renovation of a historic church structure, provided the funds further an important governmental purpose such as historical preservation or civic improvement, and where the funds are not used to indoctrinate such as by funding religious art or iconography. The Justice Department's Office of Legal Counsel recently offered the opinion that "[t]he Establishment Clause does not bar the award of historic preservation grants to the Old North Church or to other active houses of worship that qualify for such assistance, and the section of the National Historic Preservation Act authorizing the provision of historic preservation assistance to religious properties listed on the National Register of Historic Places is constitutional." Provided a legitimate public purpose unrelated to furthering religious speech and activity is served and no denominational preference is exhibited, government does not tear down the Wall of Separation of Church and State by shoring up the walls of historic churches.

DOJ "Religious Freedom in Focus"

The U.S. Department of Justice's Civil Rights Division has issued the April edition of its "Religious Freedom in Focus." The newsletter is a product of the Division's Special Counsel for Religious Discrimination.