Law Professors Urge Connecticut Legislature to Respect Religious Freedom

Legal scholars Tom Berg, Carl Esbeck, Rick Garnett, and Robin Fretwell Wilson recently urged the Connecticut legislature to protect religious freedom in the course of codifying the state supreme court's same-sex marriage decision. See their letter here.

Dale Carpenter reacted to their letter, and their response is here.

Prof. Michael Stokes Paulsen legal memo on the consequences of the Freedom of Choice Act

Prof. Michael Stokes Paulsen of the University of St. Thomas School of Law has written a detailed 4000 word legal memorandum describing the consequences of the Freedom of Choice Act on Moral Accountability, a new website providing scholarly analysis of the Obama administration's policies as they relate to abortion and same-sex marriage.

From the conclusion:

While there is room for uncertainty or disagreement concerning a
few issues, in the main, FOCA’s legal effects are clear. FOCA would
invalidate nearly every state and federal law bearing on, or attempting to
influence, the exercise of a choice of abortion. FOCA would invalidate
nearly every state or federal law substantively disfavoring abortion in the
provision of benefits, services, and information. FOCA would invalidate
nearly every state or federal law protecting the conscience of medical workers
or religious hospitals from participating in abortion. FOCA would likely
invalidate nearly any state law prohibiting partial birth abortion. And
FOCA would entrench abortion rights against further meaningful legal challenge.

Same-Sex "Marriage" in Connecticut

The Connecticut Supreme Court today held that a state statute defining marriage as "the union of one man and one woman" violated the equal protection provisions of the state constitution.

The court observes that "[m]uch of the condemnation of homosexuality derives from firmly held religious beliefs and moral convictions." To the extent the word "homosexuality" refers to homosexual conduct, the court's observation is undoubtedly correct. The court claims not to "equate religious beliefs with prejudice," but its rhetoric belies this assertion:

• "the history of pernicious discrimination faced by gay men and lesbians"
• "a group that historically has been the object of scorn, intolerance, ridicule or worse"
• referring to the "illegitimate reasons that gave rise to the past discrimination"
• "Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society"
• "gay persons have been subjected to such severe and sustained discrimination because of our culture’s long-standing intolerance of intimate homosexual conduct"

The Connecticut Supreme Court plainly has nothing but disgust for traditional sexual ethics, even those rooted in religious commitment. Such rhetoric hardly bodes well for theologically orthodox religious groups who seek constitutional protection from the growing movement to marginalize and punish them.

Important New Book on the Threat to Religious Freedom Posed by Same-Sex Marriage

Rowman and Littlefield has published Same-Sex Marriage and Religious Liberty: Emerging Conflicts, edited by Professor Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson. With an introduction by Picarello (General Counsel for the U.S. Conference of Catholic Bishops) and an an afterward by Laycock (Professor of Law at the University of Michigan Law School), the book contains six essays on the subject.

The book arises out of a conference organized by the Becket Fund in 2005. Chapter authors include Marc Stern of the American Jewish Congress, Professor Jonathan Turley of the George Washington University Law School, and Professor Chai Feldblum of Georgetown.

Much of the CLS Center's advocacy is predicated on our view that the "homosexual rights" movement poses the greatest current threat to religious freedom in the United States. This volume should help to illuminate the contours of the threat.

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.

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.

Breaking News: Massachusetts legislature blocks constitutional amendment on marriage from going to the ballot

Today the Massachusetts legislature blocked the proposed constitutional amendment on marriage from being placed on the ballot in 2008. The AP reports that the vote was 151-45 with no debate, in contrast to previous joint sessions. Fifty votes were needed.

The Boston Globe notes that proponents of a marriage amendment will have to wait until 2012 to get it onto the ballot.

The Massachusetts Family Institute/VoteOnMarriage.org allege "bribery" by the Governor and "arm-twisting" by the House Speaker in its press release.

The text of the amendment:

"When recognizing marriage entered after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage as only the union of one man and one woman."