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.

"Colorado officials failed to keep faith with Constitution"

Quin Hillyer writes a substantial opinion piece on the CCU v. Weaver decision in today's edition of The Examiner.

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.

State announces that it will not appeal Tenth Circuit decision in Colorado Christian University v. Weaver

In a press release the Colorado Department of Higher Education announced that the Colorado Commission on Higher Education will not appeal the Tenth Circuit Court of Appeal's decision in Colorado Christian University v. Weaver. The 10th Circuit ruled that the state's exclusion of CCU students from financial aid because of the school's religious identity was unconstitutional.

From the press release:

Colorado Solicitor General Dan Domenico, who argued the State's case, remarked, "As we were obliged to do, we presented the strongest case we could to the court. The court has now made clear, though, that Colorado's law is outdated and must be changed. We are glad that the CCHE has agreed with our recommendation not to ask the Supreme Court to overturn this decision, and we look forward to working with interested parties to craft a solution that complies with the court's decision."

Also see the August 1 Rocky Mountain News story covering the state's announcement.

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.

News roundup and scholarly commentary on Colorado Christian University v. Weaver victory

(Click here for the CLS Center's background and summary of the case along with the Tenth Circuit opinion and briefs of the parties and of amici curiae.)

Oglethorpe Univ. Prof. Joseph M. Knippenberg for First Things: Unfortunately, those efforts put the Colorado government in the business not only of closely scrutinizing religious doctrine and institutions but also of discriminating between denominations and institutions on the basis of their relative “sectarianism.” It’s hard to imagine two activities more at odds with the values inherent in the First Amendment religion clauses. (Well, not really: there are religious tests for office-holding, not to mention persecution, though Colorado was surely approaching the former in conditioning eligibility for student aid on the character of an institution’s professed religiosity.)

Notre Dame Law Prof. Rick Garnett on Mirror of Justice (Roman Catholic legal theory blog): Here's the key sentence: We find the exclusion unconstitutional for two reasons: the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice. More later ....

Univ. of Toledo Law Prof. Howard Friedman on Religion Clause Blog: In an important decision interpreting the scope of the Supreme Court's 2004 Locke v. Davey decision, yesterday the 10th Circuit Court of Appeals held that Colorado acted unconstitutionally in excluding from its college scholarship program students who attend "pervasively sectarian" institutions.

Howard J. Bashman on How Appealing (appellate law blog) provided early coverage of the opinion and early news articles.

Editorial of the Colorado Springs Gazette: It's shocking that state oficials needed a federal court to tell them not to discriminate on the basis of religion.

Joey Bunch for the Denver Post: Court: Colorado financial aid ban unconstitutional

Justin Pope for the Associated Press (AP): Another courtroom victory for religious colleges

Colorado Christian University Tenth Circuit decision available

To follow up Casey's earlier post, the Tenth Circuit Court of Appeals has posted the unanimous, published opinion in favor of Colorado Christian University, authored by Judge McConnell and joined by Judges Seymour and Holmes, reversing the district court's opinion.

David Nammo of FRCAction on Obama's Faith-Based Initiative: "Works without faith is preferred."

To follow up on Greg's analysis of Obama's faith-based initiative plan today and his previous analysis on July 1, here is some additional commentary from David Nammo, past Director of Attorney & Law Student Ministries at CLS, and now Executive Director of FRCAction. Nammo was also quoted this weekend by the Denver Post in a Sunday article on Obama's faith-based plan.

According to Nammo:

Senator Obama’s proposition no longer keeps with a main tenet of charitable choice that was passed by a bipartisan majority in 1992 -- that faith-based organizations should not be required to relinquish their religious identity as a condition for participating in government-funded programs. Instead, the senator’s plan will require that religious organizations abandon their faith -- the very thing that makes them faith-based organizations in the first place.

***

An oft-quoted verse in the Biblical book of James is: “Faith without works is dead.”

Senator Obama appears to be attempting to rewrite
this passage to say: “Works without faith is preferred.”

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."

Ninth Circuit protects conscience rights of pharmacists

In the case of Stormans v. Selecky, as reported on Religion Clause the Ninth Circuit kept in place the preliminary injunction barring enforcement of challenged pharmacy board rules thereby protecting the constitutional rights of pharmacists who, informed by their religious or moral beliefs, are bound by conscience to refrain from distributing the abortion-inducing Plan B contraceptive. The case continues with oral argument on June 3 in Seattle.

Yesterday the CLS Center filed an amicus brief supporting the pharmacists on behalf of Christian Legal Society, Christian Pharmacists Fellowship International, Christian Medical Association, American Association of Pro Life Obstetricians and Gynecologists, and Fellowship of Christian Physician Assistants.

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.

Center urges court to protect equal access for religious charities seeking inclusion in Iowa state employee charitable campaign

The CLS Center filed a motion for preliminary injunction today in Association of Faith-Based Organizations v. Anderson to request the enjoining of the Iowa "One Gift" state employee charitable campaign requirements demanding that applying charities certify that they do not engage in religious activity, including advocacy for religious viewpoints.

Such certification requirements effectively exclude AFBO member religious charitable organizations that are honest and truthful about their religious expression; thus, these requirements deny equal treatment to religious charities.

One Gift includes over four hundred charities reflecting a variety of viewpoints to provide a broad range of choices for state employees to make voluntary donations via payroll deduction. The effective exclusion of charities that provide substantial services and also express religious viewpoints is puzzling and unconstitutional because they discriminate against religious viewpoints in violation of the Free Speech Clause and because they single out religion for special disfavor in violation of the Free Exercise Clause.

More information on AFBO v. Anderson will be available soon at the CLS website. See AFBO's website for general information on AFBO's work to protect the rights of faith-based organizations.

Would Government Penalties for "Too Many" Children Violate Religious Freedom?

Yesterday, USA Today published a column by Oliver "Buzz" Thomas entitled "Might Our Religion Be Killing Us?" Thomas answers the question with a "yes," arguing that the opposition of some religious groups to abortion and birth control and their encouragement of large families is harmful to the environment.

Thomas asks, "instead of providing tax breaks for having more children, shouldn't Congress be providing incentives for having fewer?"

What if the federal or state government imposed tax penalties upon couples who had, say, more than two children? Would this violate religious freedom?

It is not clear how courts would answer. At the outset, a court would consider whether having more than two children is the sort of "religious exercise" protected by the law. To be sure, having children is different, at some level, from prayer, evangelism, baptism, and communion. At the same time, many couples believe that having many children demonstrates obedience to God; even more believe that abortion and artificial birth control are sinful.

A courts would also ask whether the tax penalty is a legally cognizable "burden" on religious exercise. Assuming the court found that the tax penalty burdened religious exercise, it would then likely consider whether the burden was justified by some "compelling governmental interest." At this point, the government would likely invoke arguments about environmental Armageddon. In response, the couple with three kids would argue that the existence of their third child, by itself, will not bring about the ruination of the planet.

A claim under the Free Exercise Clause might not get very far, as the government would be able to argue that the tax penalty on "excess" children is a "facially neutral, generally applicable" rule that doesn't even implicate the Clause, as interpreted by the Supreme Court in Employment Division v. Smith. However, the Religious Freedom Restoration Act (for which Buzz Thomas actively lobbied) still applies to the federal government.

In any event, it is worth noting the irony of a liberal suggesting that the government should interfere with "reproductive freedom" by pressuring married couples to use birth control, have abortions, or abstain from sexual relations.

Access to Public Meeting Space for Worship

Throughout the 1980s and 1990s, courts adjudicated numerous disputes between religious speakers and governments. The disputes arose when governments denied religious speakers equal access to public spaces, typically contending that the First Amendment's Establishment Clause required such discriminatory exclusions. Religious speakers argued that other parts of the First Amendment -- especially the Free Speech Clause -- required inclusion. These disputes illustrated the broader conflict between two visions of church-state relations: strict separationism vs. neutrality.

A number of these cases reached the U.S. Supreme Court: Widmar v. Vincent (1981) (student religious groups at public university); Westside Bd. of Educ. v. Mergens (1990) (student religious groups at public secondary schools); Lamb's Chapel v. Center Moriches Union Free Sch. Dist. (1993) (after hours use of public school to show religious film series on child rearing); Rosenberger v. Rector of the Univ. of Virginia (1995) (religious student publication access to public university financial support of speech activities); Capitol Square Review & Advisory Bd. v. Pinette (1995) (nongovernmental display of religious symbol in park near state capitol); Good News Club v. Milford Cent. Sch. (2001) (community religious group meeting at public elementary school). In each instance, the Court ruled in favor of the religious speaker, rejecting strict separationists' Establishment Clause arguments.

Despite these decisions, some governments are still reluctant to allow religious speakers to use public property. One such government is the New York City Board of Education, which has been defending its exclusion of the Bronx Household of Faith from meeting space for years. The board attempts to distinguish the Court's precedents by arguing that it is merely excluding a "subject matter" rather than a "viewpoint" on a subject that other speakers are permitted to address when using school meeting space after hours. The board's policy denies access to those wishing to engage in religious "worship." The board contends that "worship" is a "category" of speech that simply isn't permitted in the forum, in an effort to deflect a charge of discrimination on the basis of viewpoint.

The Bronx Household case is once again in the U.S. Court of Appeals for the Second Circuit, which has a notoriously poor record in equal access cases. (The Supreme Court reversed the Second Circuit in both Lamb's Chapel and Good News Club.) Briefing on the appeal was completed yesterday, when the board filed its reply brief.

The CLS Center filed a friend of the court brief in support of the church, arguing that the board's exclusion violates the Free Exercise Clause.

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.

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.

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.

The Constitution and America as a "Christian Nation"

A majority of Americans believe that "the U.S. Constitution establishes a Christian nation," according to a survey done by the First Amendment Center. Thirty-eight percent of respondents "strongly agreed" with that statement, and 17% "mildly agreed."

What should one make of this? Why do a majority of Americans seem to believe something that is so clearly wrong?

I suppose it's possible that at least some respondents didn't understand the question. Part of the problem may stem from the fact that the question posits something undefined. More specifically: what would it actually mean for the U.S. Constitution to "establish" a "Christian nation"? What exactly is a "Christian nation"? How would a constitution "establish" such a nation?

The question seems to presuppose that the Constitution established our nation. It did not. To the extent any document can be said to have established our nation, that document is the Declaration of Independence. The Constitution does not even purport to "establish a nation." The Constitution, more than anything else, is about the nature, structure, and limits of the national government. To be sure, a constitution typically both reflects and shapes the character of a nation, but our Constitution didn't establish our nation -- Christian or otherwise.

What does it mean to be a "Christian nation"? The answer to that question is far from self-evident. Does it mean that a majority of the nation's people consider themselves to be Christian? If that's all that it takes, how would a document like the Constitution ensure that the nation remained Christian? By giving power to the government to expel enough non-Christians so that at least 51% of the population professed faith in Christ? By giving government the responsibility and power to evangelize? Surely this is not what the survey respondents meant when they stated their agreement with the proposition that the Constitution establishes a Christian nation. I sure hope that's not what they meant.

Perhaps being a "Christian nation" means that Christianity and Christian people are somehow privileged, particularly in their relationship with the government? If that's what the phrase means, to say that the Constitution "establishes a Christian nation" is to say that the Constitution explicitly confers such privileges upon Christians and Christianity. But it plainly does not. Indeed, in at least one place, Article VI, Section 3 of the Constitution explicitly forbids the national government from requiring someone to embrace a particular religion as a requirement for serving in the national government. Less explicitly, but not less powerfully, the First Amendment denies government the power to do all kinds of things it might do to "establish" and maintain a "Christian nation." And that is surely a good thing.

Our Constitution limits the power of government when it comes to religion. It presupposes that the church and the state are distinct institutions -- something that was not always the case in Western history. It also prevents the federal government from establishing a national church. It also limits government power to regulate religious exercise and speech. The common theme running through all these realities is religious freedom -- government minimizing its influence on religious choices. That the Constitution guarantees this is a cause for celebration. That the Constitution does not "establish a Christian nation" -- whatever that means -- is not a defect in the document.