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.

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.

Kentucky Supreme Court Takes Blaine Amendment Case

The Kentucky Supreme Court has taken Pennybacker v. Beshear, a case involving a Blaine Amendment challenge to a state grant to a Christian university. The Kentucky legislature appropriated $11 million for a new pharmacy school at the University of the Cumberlands, a liberal arts institution affiliated with the Kentucky Baptist Convention. Strict separationist taxpayers sued, claiming that the proposed expenditure violated the state constitution. The trial court agreed, and the University and stated appealed to the Kentucky Court of Appeals. They simultaneously asked the Kentucky Supreme Court to take up the case immediately, without waiting for the Kentucky Court of Appeals to rule. This past Thursday, the state high court agreed. The CLS Center represents the University 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.

University of Iowa Restores Funding of CLS Chapter

On October 22, the University of Iowa rescinded its earlier decision to revoke the funding of the law school's Christian Legal Society chapter.

On or about September 25, 2008, the CLS chapter submitted a request for funding to the Student Assembly Budgeting & Allocating Committee. The Committee rejected the chapter's funding request based on the notion that the chapter commits "religious discrimination" by drawing its leaders and voting members from among those who voluntarily embrace the CLS Statement of Faith.

On October 20, Center Litigation Counsel Casey Mattox sent a letter to the university's general counsel. On October 22, the Committee informed chapter representatives that the general counsel had instructed them not to deny the chapter funding based upon the Statement of Faith requirement.

Iowa attorney L. Craig Nierman assisted the Center.

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.

Another Editorial Applauding 10th Circuit Decision in CCU Case

A house editorial in Pennsylvania's Reading Eagle applauds the Tenth Circuit's decision in the CCU case.

Third Circuit Strikes Down Temple U's Speech Code

The U.S. Court of Appeals for the Third Circuit has struck down Temple University's speech code. (DeJohn v. Temple University).

Christian Legal Society joined an amicus brief urging the court to reach that conclusion.

Congratulations to Nate Kellum and the Alliance Defense Fund, which represented the successful plaintiff.

Loyalty Oaths and Religious Freedom

Both the LA Times and the Chronicle of Higher Education report that Cal State Fullerton fired a lecturer because she declined to sign an oath to defend the California and U.S. Constitutions "against all enemies, foreign and domestic." Wendy Gonaver, a Quaker and pacifist, refused to sign the oath, as it implied that she was willing to take up arms against America's enemies. She apparently indicated her willingness to sign the oath if she could accompany it with a written statement explaining her position, an offer the university reportedly rejected.

It is difficult to argue that this is justifiable incursion upon Gonaver's religious freedom. According to The Chronicle, the loyalty oath was added to the state constitution in 1952 to prevent communists from getting government jobs. Gonaver is not a communist; nor does the defense of California or the United States depend upon the involvement of Quaker teachers in combat.

Without question, anti-communist loyalty oaths are a product of a different era. But most of today's public universities have what amount to new loyalty oaths -- pledges not to offend others with controversial expression. The "nondiscrimination" policies most public universities apply to student groups are not really about stopping widespread invidious discrimination. Instead, these policies are about forcing dissenters to toe the line.

Universities defend the application of religion and sexual orientation nondiscrimination polices to religious groups not because they truly believe that some great injustice occurs when an a atheist or sexually active homosexual is not permitted to be the president of student groups like the Christian Legal Society. Instead, these universities simply cannot tolerate those who believe that certain religious propositions are objectively true or that homosexual conduct is sinful and immoral. The point of these policies is not so much to protect minorities, but rather to marginalize orthodox believers in an effort to reduce their influence and numbers.

Given that Gonaver is a Quaker, it is reasonable to assume that she will not commence litigation against university officials. If she did, one can imagine what the university would argue. In response to any Free Exercise Clause claim, the state would argue that the oath requirement is a "facially neutral and generally applicable rule," and thus immune to scrutiny under the Clause. Thanks in large part to the secular and religious Left, which bailed out on efforts to restore "strict scrutiny" to free exercise claims out of fear that such a restoration would undermine the homosexual "rights" agenda, Gonaver would have a tough time making a winning free exercise claim.

A claim under the California free exercise provision might not fare much better. In a case involving a Christian landlord charged with discriminating on the basis of marital status by refusing to rent an apartment to an unmarried, cohabiting couple, the California Supreme Court essentially said, "too bad -- no one forced you to be a landlord; you should go into some other line of work." One wonders whether the court would tell Gonaver to go into some line of work other than teaching.

Moral of the story: evangelicals are not the only ones hurt by the Left's subordination of religious freedom to "gay rights."

Bans on "Marital Status" Discrimination: A Threat to Religious Freedom?

Various media outlets (ABC News, USAToday, AP, among others) have devoted attention to a recent situation involving Wheaton College, a Christ-centered liberal arts institution in suburban Chicago. Kent Gramm, a Professor of English, has decided to leave Wheaton. Professor Gramm and his wife are poised to divorce.

Prior to joining the Wheaton community, potential students and teachers review the college's Community Covenant. They then decide whether they will to voluntarily join a community that strives to adhere to the beliefs and values articulated in that covenant. The covenant addresses the issue of divorce; an extremely helpful "Q&A" with Wheaton President Duane Litfin about the covenant and its application to divorce is available here.

According to Christianity Today's blog, Wheaton's faculty handbook states that the college may retain a teacher getting a divorce "when there is reasonable evidence that the circumstances that led to the final dissolution of the marriage related to desertion or adultery on the part of the other partner." Media reports indicate that Professor Gramm declined to discuss with Wheaton the circumstances of his divorce.

Quoted in Inside Higher Education, Professor Gramm observes that the State of Illinois forbids employers from "discriminating" against employees and potential employees on the basis of "marital status." Apparently aware of legal protections of religious freedom, Professor Gramm does not seem to be saying that Wheaton is violating state law. He then implies, somewhat ironically, that by considering divorce in personnel decisions, Wheaton has "lower standards" than does the State of Illinois.

Most courts would agree that the Constitution forbids the state from punishing Wheaton through the application of a ban on "marital status" discrimination in employment. However, it is less clear that the relevant Illinois statute actually exempts religious employers from the ban on marital status discrimination in the first place -- as it should. The Illinois Human Rights Act defines "employer[s]" covered by the Act in such a way to protect them from certain discrimination claims. The Act says that "employer" does not include religious institutions "with respect to the employment of individuals of a particular religion."

This language clearly protects religious employers in Illinois from liability for "discriminating" on the basis of "religion." However, one might plausibly argue that it does not protect them, by itself, from charges of "marital status" discrimination. The phrase "of a particular religion" is inherently ambiguous. No Christian would argue that one must be sinless to be a Christian; in other words, no Christian could plausibly maintain that a person's commission of sin always means that the person is no long "of" the "particular religion" of Christianity. A foundation of Christianity is that all are sinful (and thus in need to Christ's atonement for their sins on the Cross).

That being said, adverse action against an employee who procures a biblically unjustified divorce should not be considered "marital status" discrimination in the first place. Wheaton was concerned about Professor Gramm not because he was single, but rather because he was divorcing (without sharing any information that would provide the college a basis for determining whether the divorce was biblically justified).

In any event, the Constitution (and probably Illinois' Religious Freedom Restoration Act) provides employers like Wheaton a defense to any charge of "marital status" discrimination in circumstances like these.

Decision in Georgia Tech Case

A federal district court issued a decision yesterday in Sklar v. Clough, a case in which two Georgia Tech's students challenged numerous university practices having some connection to religion. Those practices included (1) the creation of a Safe Space program; (2) a ban on funding "religious activities"; (3) the limitation of certain student expression to a "speech zone"; and (4) the adoption of a "speech code."

Inside Higher Education's article is here. The Chronicle of Higher Education's article is here. The Alliance Defense Fund's reaction is here. Georgia Tech's statement is here.

Among other things, the court concluded that the university's inclusion of religious materials in the "Safe Space" program violated the Establishment Clause. Those materials essentially declared that the orthodox view on homosexuality was theologically wrong.

"Equal access is the law, and equal access means equal treatment in every respect, including equal cost."

"Equal access is the law, and equal access means equal treatment in every respect, including equal cost," says Mathew D. Staver for Liberty Counsel. Liberty Counsel, representing Child Evangelism Fellowship of Virginia (CEF), challenges the Williamsburg-James City County Public Schools' discriminatory refusal to grant a waiver for the usage fee to CEF for use of its facilities, even though the district grants "grant[s] free use to Boy Scouts, Girl Scouts and other organizations the board has deemed patriotic and community service groups."

In an earlier blog post today, CLS Center Director Greg Baylor set forth the numerous Supreme Court decisions affirming the right of equal access. Following these key cases, the Courts of Appeals have also affirmed the right of equal access in precedent-setting victories obtained by the Center on behalf of other CEF chapters, including CEF of Maryland v. Stafford Township School District in the Third Circuit and CEF v. Montgomery County Public Schools in the Fourth Circuit.

The Rights of Public School Teachers

In addition to the inquiry about a student praying before lunch, we also got an email recently from a public school teacher in California who was apparently told that he could not have crosses or other religious items on his desk or on the walls of his classroom.

A thoughtful discussion of issues like these can be found in the excellent "Teachers and Religion in Public Schools," written by the CLS Center's own Kimberlee Wood Colby and published by Christian Educators Association International.

Prayer in Public Schools: US Dep't of Education Guidelines

I responded today to an inquiry about prayer in public schools. The sender of the email I received indicated that a student had been told by public school officials in Maryland that he was not permitted to thank God for his food prior to eating lunch.

The inquiry reminded me of the guidelines issued by the U.S. Department of Education back in 2003. They're available on the web here. Definitely a good resource.

Kentucky School Funding Case Update

Readers may remember that CLS's Center for Law & Religious Freedom represents the University of the Cumberlands (UC) in a challenge to its receipt of state funding to build a pharmacy school building. Strict separationists argued that the appropriation violated provisions of the Kentucky constitution governing church-state relations. UC got in their sights after the school took action against a student who had violated its conduct policy -- which the student had agreed to follow. (The male student wrote, on a social networking site, about waking up next to his boyfriend.)

On March 6, the Circuit Court in Franklin County ruled that the appropriation for the pharmacy building violated two church-state provisions of the Kentucky constitution. The court also ruled that the legislature's creation of a scholarship program for pharmacy school students violated a provision of the state constitution regarding the procedures for appropriations.

On March 31, UC appealed to the Kentucky Court of Appeals. On April 10, we asked the Kentucky Supreme Court to directly review the trial court's decision, without an intervening Court of Appeals decision.

CLS Sues University of South Carolina

On Friday, CLS's Center for Law & Religious Freedom and ADF commenced litigation against University of South Carolina officials who denied funding to the CLS chapter at the USC law school. USC maintains a categorical ban on funding religious groups.

In our view, such a policy is plainly unconstitutional under the U.S. Supreme Court's 1995 decision in Rosenberger v. Rector of the University of Virginia.

News account here. Complaint here. Press release here.

Stay tuned for more details.

MD School District Won't Charge CEF

Public school officials in Prince George's County, Maryland, were poised to charge Child Evangelism Fellowship a fee to use after-hours meeting space in public school buildings. Other community groups are not charged for such uses.

Center attorney Kim Colby communicated with school officials on CEF's behalf, explaining that such discrimination was unconstitutional. Today, school officials reversed course, informing us that no charge would be levied upon CEF.

In 2001, the Supreme Court held that the First Amendment required public schools to give CEF equal access to after-hours meeting space in public elementary schools. Although most school districts around the country comply with this decision, some of them have not applied its logic to other situations. School districts in Maryland and New Jersey refused to include CEF informational fliers in "backpack mail"; the CLS Center sued and won both cases. Other school districts, like Prince George's, have attempted to charge religious groups a fee while allowing secular groups to meet without charge.



It is certainly encouraging that these school officials eventually did the right thing, although one wonders why they went down the wrong path in the first place.

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.

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.