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.

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.

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.

Marriage Law Foundation publishes April 2008 digest

The Marriage Law Foundation released its Marriage Law Digest for April 2008 with recent cases and law review articles. There are several noteworthy items pertaining to the interaction between religious liberty and same-sex marriage and sexual orientation nondiscrimination, such as Willock v. Elane Photography (wedding photographer compelled against conscience to photograph same-sex commitment ceremony). For more information visit the Marriage Law Foundation and the Institute for Marriage and Public Policy.

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.

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.

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.

Court Throws Out Lawsuit Against Christian Children's Home

Kentucky can continue paying faith-based organizations to provide residential care to abused and neglected children in state custody.

On March 28, a Kentucky federal district court dismissed a lawsuit alleging that the state's payments to Kentucky Baptist Homes for Children (KBHC) violated the Establishment Clause. The court concluded that the plaintiffs lacked standing to challenge the payments. The plaintiffs had argued that their status as state taxpayers gave them the right to challenge the financial relationship between various state agencies and KBHC.

CLS Center attorneys assisted Louisville attorney John Sheller in representing KBHC. The plaintiffs have not yet indicated whether they intend to appeal the ruling to the U.S. Court of Appeals for the Sixth Circuit.

Ninth Circuit Issues Decision in "Choose Life" License Plate Case

The Ninth Circuit recently ruled that Arizona violated the Free Speech Clause rights of the Arizona Life Coalition by denying its request for a "Choose Life" license plate.

Congratulations to Jeff Shafer and his colleagues at the Alliance Defense Fund on their victory.

Supreme Court Won't Review Two Bad Religious Freedom Decisions

The U.S. Supreme Court announced today that it would not review two bad lower court decisions in religious freedom cases.

In Faith Center Church v. Glover, the Ninth Circuit held it was permissible for government to exclude a religious speaker from otherwise available meeting space on the ground that the speaker would engage in "worship."

In Catholic Charities v. Dinallo, the Second Circuit held that it was permissible for New York State for force Catholic Charities to cover contraceptives in its employee health benefit plan.

CLS's Center for Law & Religious Freedom participated as friend of the Court in each case, urging the high Court to review the lower court decisions.

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.

Academic Media Suggests CLS is Prevailing in Campaign Against Discriminatory University Student Organization Rules

A September 17th article by by Scott Jaschlik of Inside Higher Ed (http://www.insidehighered.com/) has as its context a Second Circuit decision affirming that a state-run college may constitutionally put the kibosh on Greeks on campus. But it is the subtext of the article that we found intruiging - that Christian Legal Society and similar religious liberty advocacy groups are making headway with the academy in their campaign to establish that prohibiting a religious student group from "discriminating" in membership on the basis of religion is in fact religious discrimination.

For some reason, Jaschlik closely links the issues in Chi Iota Colony v. City University of New York to the ongoing debate over whether universities may condition registration for student organizations -and the benefits that accompany same - on agreeing not to restrict membership on the basis of religion, creed and/or sexual orientation. See, e.g., Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006); Christian Legal Society v. Kane, 2006 WL 997217 (N.D. Cal. May 19, 2006). One wonders why, as the cases have little resemblance; Chi Iota involved a fraternity's claim of intimate association as against a gender discrimination policy, not expressive association involving the highly protected status of religious belief and association. But "Public colleges' anti-bias policies have been taking a beating in the courts in recent years," Jaschlik writes. "Many lawyers who advise colleges... have urged colleges to recognize that the force of their anti-bias policies has been severely weakened." The "emerging conventional wisdom" among university administrators, he reports, is that "Students' First Amendment rights of freedom of religion and expression will end up trumping strong anti-bias principles."

We hope so, at least where it comes to sincerely religious groups who know that defining and perpetuating their religious message depends on selecting leaders and members who agree with its views. University officials who are looking to Chi Iota to "challenge" the "conventional wisdom," as Jaschlik reports, may look for encouragement for their unconstitutional views where they like, but when most public colleges and universities that have tried to exclude CLS and similar groups simultaneously sponsored Greek systems - and the Chi Iota decision does not call into question their constitutional authority to embrace Greek life if they choose to - the Second Circuit's decision seems to offer shaky support to those who would shore up an increasingly untenable double standard for Greek and religious student groups.

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.