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.

A Supreme Court Chronicler Tackles the Kulturkampf

Peter Irons, emeritus professor of political science at the University of California - San Diego and co-editor of the groundbreaking May It Please the Court series of audiotapes and transcripts of key Supreme Court decisions, has published God On Trial (Viking 2007), a travelogue of sorts through half a dozen American communities that have been impacted by the religious cultural wars of the last twenty years.

Irons reminds us that just as “all politics is local,” so also is all jurisprudence, and particularly constitutional law. Irons’ thesis is that the big decisions about the constitutionality of religious symbols such as public memorial crosses and Ten Commandments displays that emanate from the Supreme Court have their genesis in local political struggles between factions that view the symbols as vibrant and meaningful and those who regard them as exclusionary and imperious. The seeds of the book, Irons says, are found in Oliver Wendell Holmes’ aphorism, “We live by symbols,” and he seeks to tell the stories of the people who have played key roles on both sides of these so-called “symbol cases.”

The book’s readability and unpretentiousness have Irons sounding like an Ernie Pyle of the Kulturkampf. Irons combines solid, fact-combing legal journalism with fascinating interviews of the personalities who instigated the cases or found themselves swept up in them, from trial lawyers and politicians to preachers and regular folks. These are presented in unbroken monologues spoken in the subjects' own voices, like an oral folk history, and are deftly edited and detailed. The effect is refreshingly different from the stale Q&A format - rather like being taken on a personal walking tour by, for example, Barry Lynn, through his early life as a Goldwater Republican in blue-collar Bethelehem Steel country, or by Jay Sekulow as he recounts growing up Jewish on Long Island.

As a strict separationist himself, and a veteran of several of the court battles he discusses, Irons cannot help but cast the conflict (perhaps unconsciously) as one between those who desire to impose their religious beliefs on others and those who want tolerance. He maintains the overall balance of the book fairly well, though, and he is clearly trying to be honest and accurate in his portrayals of both sides. For its small flaws, God On Trial is a delightful summer read.

AAUP Pulls an Imus on Evangelicals

American Association of University Professors (AAUP) president Cary Nelson is the soon-to-be-famous apologist for Academe, called upon to defend the Grove from charges that its husbandmen have been treating the ambassadors of the Kingdom rather shabbily. In a May 5th article by Washington post reporter Alan Cooperman, "Is There Disdain For Evangelicals In the Classroom?," Nelson answers to the finding in a recent survey by sociologists Neil Gross of Harvard and Solon Simmons of George Mason University that more than half the responding educators had high negative feelings toward Evangelicals. Nelson reassures us the poll results reflect not religious bias, but "political and cultural resistence" to Evangelicals. Based on precisely what about them? Two things, said Nelson -Evangelicals' "Republican Party activism" and "opposition to scientific objectivity." So thankfully, it's not about the Old Time Religion at all for the tutors of our children and the groomers of the next generation of leaders. It's just that Evangelicals tend to be active Republicans, and worse than that, they tend to be unscientific.

"The [gentleman] doth protest too much, methinks." Nelson, a English professor at the University of Illinois, surely knows the line comes from Shakespeare's Hamlet, and that it carries the Bard's gentle admonition to quit while you're behind. The devil is in the details, not the denial. Just ask Don Imus, who found himself out on the street after imperfectly executing the obligatory prostration before the Reverand Al Sharpton, declaring in frustration, "I can't get any place with you people." Like Imus, AAUP ought to pause anon to reflect upon the Bard's sage advice, stop protesting so much and start listening better.

Hat Tip to Constitutionally Correct

New England Journal of Medicine Editorial Debate on Health Care Right of Conscience

Discussing a study of controversial clinical practices associated with religious beliefs and physician rights of conscience published in the February 8, 2007 issue of the New England Journal of Medicine, (Curlin, et al., 356 N. Engl. J. Med. 565, 593-600 (2007)), readers of the Journal and the authors of the study engage in a revealing dialogue about conscience rights in the current issue. See "Religion, Conscience, and Controversial Clinical Practices," 356 N. Engl. J. Med. 18 (May 3, 2007), available here. The springboard for this discussion is the conclusion by Dr. Farr A. Curlin and his co-authors, of the University of Chicago, that "Patients who want information about and access to such procedures may need to inquire proactively to determine whether their physicians would accommodate such requests." A U. of Chicago colleague, Dr. Lainie F. Ross (with Dr. Ellen W. Clayton of Vanderbilt University), finds this conclusion "disturbing":

To impose the philosophy of caveat emptor is morally inadequate, given the differences in power and class between many physicians and their patients. Physicians must not be permitted to disavow responsibility on the grounds of conscientious objection; rather, such practitioners must choose careers in which their fundamental values do not interfere with the autonomy and well-being of patients.

Dr. Nada L. Stotland of Rush Medical College in Chicago concurs: "The onus is on our profession to confront the willingness of so many of our colleagues to substitute their personal values for the fundamental right of their patients to know their treatment options," she writes. Other correspondents compare the exercise of health care conscience rights motivated by sincerely held religious beliefs to the Roman Catholic Church's influence in post-Soviet Poland, which they claim "led to the systematic deprivation of services" and "de facto elimination of access to abortion, prenatal diagnosis, and most contraception" (Dr. Joanna Z. Mishtal and Dr. Wendy Chavkin of Columbia University); and to the Chilean government's current efforts to make emergency contraception available to minors as young as 14, where the Catholic Church's opposition and the exercise of individual physician conscience may present "difficulties" for the implementation of the policy. (Dr. Victor Zarate, University of York, U.K.)

For the defense, correspondents calling themselves "physicians in the 'high religiosity' category" remind readers that the dialogue is not just about "rights," but about doctors' respective responsibility to do moral good, especially to their patients. "If we truly believe that a given procedure violates patients' intrinsic human dignity, then our responsibility to our patients mandates that we not help them procure that procedure," say Dr. Patrick O'Connell of Raleigh, NC and Dr. Jacques Mistrot of Westchester Institute for Ethics and the Human Person. Dr. Kenneth Parsons of the University of Texas Health Science Center at Houston weighs in with anecdotal evidence of the dangers of vaulting patient autonomy over physicians' conscience. As an attending physician for patients with spinal cord injury during rehab, Dr. Parsons recalls, he heard many patients who were on life support voicing a request for physician assisted termination. Negotiations to "give life a try" were usually successful, he reports, and most of his patients found value in their lives after a frank dialogue about the patient's and the physician's respective values.

The authors of the study (along with Dr. Curlin, Ryan E. Lawrence, M.Div. and Dr. John D. Lantos), offer a thoughtful response:

If a judgment of conscience were merely a statement of personal preference or an expression of prejudice, the claims of Dr. Stotland and Drs. Ross and Clayton would be justified. But anyone who has been hounded by a sense that he or she has acted wrongly knows that is not how the conscience works. Those who act conscientiously do not "disavow responsibility" and "substitute their personal values for the fundamental rights of their patients." Rather, they are engaging in the struggle to know and do the right thing and to understand and fulfill their moral obligations in a particular situation. This task cannot be externalized or delegated. Indeed, acting conscientiously is the heart of the ethical life, and to the extent that physicians give it up, they are no longer acting as moral agents.

The authors heartily agree that the profession cannot permit all purported judgments of conscience, such as refusals to provide treatment based on a patient's race or sexual orientation, since such refusals "undermine the primary goal of medicine, which is to restore the health of those who are sick." But the practices about which they surveyed physicians, including abortion and terminal sedation, were not such examples, the authors note. Rather, they say, "These practices are controversial precisely because there is disagreement about whether they are consistent with the goals of medicine." Curlin, et al., conclude with a ringing defense of conscience rights:

Conscientious practice in a pluralistic world is messy even when peaceable. Yet the alternative is a society in which physicians are required to forfeit conscience in order to join the profession. Patients will not be well served by moral automatons who shape their practices, without struggle or reflection, to the desires of patients and the dictates of whatever regime is currently in power.

The entire correspondence, together with the original study report, are a fascinating glimpse into the thoughtful approaches to conscience rights being considered by practitioners and academics in medicine on both sides of the issue.

CLS Officially Dubbed a "Politically Incorrect Group" by Academe

Charles Russo and Bill Thro have published "The Constitutional Rights of Politically Incorrect Groups: Christian Legal Society v. Walker as an Illustration," in the Journal of College and University Law (Vol 33, no. 2 at 361). The Journal is published by the National Association of College and University Attorneys (NACUA), and bills itself as "the only national law review devoted exclusively to higher education law." Russo is an education professor and adjunct law faculty at University of Dayton as well as past president of the Education Law Association, and Thro is the Solicitor General of the Commonwealth of Virginia and currently chair of the Journal's editorial board. While the authors provide the official christening of CLS as "non-PC" by the standards of Academe and its scriveners, thereby confirming what we've long suspected, they also get the First Amendment analysis largely right.

The authors initially note in passing an "inevitable tension between the freedom of association and a college or university's desire to prevent discrimination." Id. at 372. (Why there should be a tension between a public institution's laudable desire to prevent religious discrimination and a religious student group's freedom to associate around religious ideals is puzzling, but the authors unfortunately spend little time dissecting this apparently ubiquitous academic sop.) But reviewing the Supreme Court caselaw governing the rights of student associations, including Healey v. James and Board of Regents v. Southworth, the authors nonetheless conclude what CLRF attorneys have been telling NACUA's members for a number of years in cases like CLS v. Walker - that religion is different from other protected statuses because religion is belief. Russo and Thro comment:

[R]egardless of whether an organization may discriminate based on immutable characteristics, it may discriminate based on belief. In other words, the Democrats can exclude Republicans, the Muslims can exclude the Christians and Jews, the Catholics can exclude Protestants, and the Students for Abstinence until Marriage can exclude those who believe in casual sex. An institution may not deny recognition, access to facilities, or funding because of a group's beliefs.

Id. at 375. "In sum," the authors pointedly conclude, "the constitutional rights of the politically incorrect student organizations largely trump a public college or university's desire to prevent student groups from engaging in discrimination. Discrimination on the basis of belief is absolutely protected." Id. at 386. Russo and Thro should be commended for speaking plain sense even though their conclusions may not be politically popular in the current environment on college and university campuses. Here's hoping NACUA's members, and the university adminstrators they counsel, are listening.

Has Ohio Gone from "Faith-Friendly" to "Faith-Hostile?"

What a difference a Chief Executive makes. After the Ohio gubernatorial election last fall, incoming Governor Ted Strickland virtually gutted the Governor’s Office of Faith-Based and Community Initiatives, reportedly firing over 90% of the staff two weeks after he took office. An office that had previously defended the religious hiring rights of faith-based organizations and encouraged active and equal participation by religious ministries in publicly financed social welfare projects seems to have become an arm of Rev. Barry Lynn's (Protestant and Other) Americans United for Separation of Church and State. In language Rev. Lynn must love, Governor Strickland called his predecessor's faith-based office “an ATM machine for some of the most politically right-wing organizations.” The previous administration's awardees and sub-awardees are now open targets for the administration and the media, as the state's main private partner in granting and administering faith-based contracts, We Care America, is under investigation by the state auditor at the behest of the governor. And the Governor's new faith-based office reportedly informed one grant recipient recently that it could not have a pubicly stated policy for its programs that contained the word “God” in it. Governor Strickland has also promised to go after abstinence education and school vouchers.

Ones wonders if this is a preview of the script a new administration would follow if the White House were to change hands in 2008. As we all know after the last election, as Ohio goes, so goes the Nation. Watch this space for developing news about the Buckeye State's newfound devotion to manning the ramparts of the "Wall of Separation."

Our Laffy-Taffy, Elastic Justice

Pity poor Anthony Kennedy, who surely must be waking up to the realization that being the “swing vote” on the Court sometimes just means you can’t win for losin’. Witness his Gumbyesque stretch across the aisle of the Court in Carhart v. Gonzales. Pulled from the right by Justices Antonin Scalia and Clarence Thomas, to whom he had to cater in order to keep his majority from splintering into a very unsatisfying three-judge plurality (been there-done that), and from the left by Justice Ruth Bader Ginsburg, who ardently horsewhips him for “disrespecting” Planned Parenthood v. Casey and Roe v. Wade. How to bridge the gap?

Step One: Placate Scalia and Thomas by assuming, hypothetically speaking, Casey is controlling authority, without really treating it as authoritative. “The principles set forth in the joint opnion in [Casey] did not find support from all those who join the instant opinion.” Slip op. at 14. Reminds me of the old joke about the economist who, stuck on a deserted island with only a can of beans, solves the problem by pronouncing, "First, assume a can opener." When was the last time the Court took this approach? “Assume Miranda v. Arizona was correctly decided. If it were, the defendant should not be on death row today, since he was not properly advised of his constitutional rights.” Sadly, this kind of unmoored “blue skying” seems to be par for the course in abortion jurisprudence, so let it go for now. Step Two: Pretend that “Whatever one’s views concerning the Casey joint opinion” (why can’t we all just get along?), a “central premise” of Casey was that “government has a legitimate and substantial interest in preserving and promoting fetal life.” Uh-oh, here she comes. Whack! “You’re refusing to take Casey and Stenberg seriously!” (Dissent at 3 - paraphrasing here.) Whack! “You said in Casey and Stenberg that we won’t legislate ‘basic principles of morality!’” (Id. at 15.) Whack! “You’re showing your hostility to reproductive rights by using right-wing code words like "baby” and “abortion doctor!” (Id. at 19) (Never mind that such terms are by no means confined to the Right – see Casey Mattox’s blog on this.) Even Justice Kennedy’s Step Three – Apologize to the Left by allowing that the door is wide open to “as-applied” challenges to the Act in situations where the “health exception” pertains – is too little, too late. By the time Justice Ginsburg is through with him, she’s made it pretty clear that it’ll be awhile before the Left allows him off the downstairs couch.

Justice Ginsburg completely misses the point here, which is, of course, that Casey is whatever Justice Kennedy makes it to be as the defining Fifth Vote. She can pretend all she wants that Casey’s disembodied Platonic meaning hovers penumbra-like over the Court, but we all know – including her – that Justice Kennedy made Casey, and he has now largely unmade Casey. All the old rules are new again in abortion jurisprudence: The People, through their state and federal legislatures, can express moral outrage and protect women and the medical profession by outlawing or regulating abortion procedures, and will be given deference instead of a “zero tolerance” approach when they do so. Most importantly, perhaps, the “reproductive rights” crowd will no longer be able to bring facial challenges to strike down abortion regulations or notice and consent laws on flimsy and hypothetical circumstances implicating risks to a woman’s health; they will be put to the proof in every instance

Is Casey a Lemon? Will Casey’s main lot in life (or walking death) be to suffer periodic exhumation, doomed to shuffle about at night, frightening abortionists and the reproductive rights gang? Time - and presidential politics - will tell. But the Casey of the Roberts Court is not the Casey of the last Court. Can Roe be far behind?