Casey Mattox discusses religious student groups and nondiscrimination rules on Freedom's Ring Radio

The Center's Casey Mattox discusses religious student groups and nondiscrimination rules at public universities with attorney Alan J. Reinach on Freedom's Ring Radio. Download the fourteen minute interview podcast here. Note: this show was recorded prior to the Ninth Circuit's ruling in CLS v. Kane (UC Hastings).

David French comments on CLS v. Kane at Phi Beta Cons

David French, ADF Senior Legal Counsel and Director of ADF’s Center For Academic Freedom, comments on Christian Legal Society v. Kane at Phi Beta Cons on National Review Online:

From a common-sense standpoint, this is absurd. Imagine telling a Baptist church that its search for a new pastor had to include equal consideration of Buddhist or Hindu candidates. Imagine telling a synagogue that they were engaged in unlawful "discrimination" if they categorically refused to permit imams from
functioning as rabbis. How can student guarantee that they can maintain their distinctive voice if each group essentially has to be open to all students, regardless of those students' beliefs or intentions?

Center attorney on CBN discussing CLS v. Kane (video)

Center attorney Timothy J. Tracey appeared on CBN News today to discuss the Ninth Circuit panel's decision in Christian Legal Society v. Kane. Read the story and watch the video here.

Listen to the Christian Legal Society v. Kane oral argument

The Ninth Circuit Court of Appeals has posted the audio recording of the CLS v. Kane (Newton/UC Hastings) (# 06-15956) oral argument before Chief Judge Alex Kozinski, Judge Proctor Hug, Jr., and Judge Carlos T. Bea.

Timothy J. Tracey of the Center for Law & Religious Freedom presented the argument for CLS and Ethan P. Schulman of Folger Levin & Kahn, LLP presented the argument for UC Hastings.

The audio file can be streamed or downloaded (Windows Media Player required).

RE: Oral Argument Tomorrow in CLS Chapter Nondiscrimination Case

To follow up on Greg's post, please see the CLS webpage on Christian Legal Society v. Kane (aka Christian Legal Society v. Newton) for a summary of the case, a copy of the opinion below, and the parties' briefs, as well as other documents.

The Seventh Circuit's opinion in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006) (Southern Illinois University) may be downloaded here.

Also of interest: a recent law review article by Joan Howarth, Dean of the Michigan State University College of Law, Teaching Freedom: Exclusionary Rights of Student Groups, 42 U.C. Davis L. Rev. 889 (2009), which discusses CLS v. Walker and CLS v. Kane, as well as related cases. From the abstract:

Progressive, antisubordination values support robust First Amendment protection for high school and university students, including strong rights of expressive association, even when those rights clash with educational institutions’ nondiscrimination policies.

Christians on Campus: Great David French Blog Post

David French of the Alliance Defense Fund has a terrific blog post up at National Review Online's "Phi Beta Cons" blog regarding conservatives and Christians on campus. Check it out.

Oral Argument in Christian Fraternity Case

The U.S. Court of Appeals for the Eleventh Circuit heard oral argument yesterday in Beta Upsilon Chi v. Machen, a case in which the freedom of religious organizations to use religious criteria in personnel decisions is at stake. Christian Legal Society's Center for Law & Religious Freedom represents the fraternity in its civil rights lawsuit against University of Florida officials.

The dispute arose when UF withheld "registered student organization" status from Beta Upsilon Chi (also known as "Brothers Under Christ" and BYX). BYX draws its members and leaders from among those students who profess faith in Jesus Christ; the university deemed this a violation of its policy banning religious discrimination by student organizations.

UF's treatment of BYX violates the First Amendment. It infringes the right of expressive association and constitutes viewpoint discrimination. Rejecting BYX's motion for preliminary injunction, the district court disagreed. BYX appealed, and my colleague Tim Tracey presented an excellent oral argument yesterday.

The three judges on the Eleventh Circuit panel (Chief Judge Edmondson, Judge Tjoflat, and Senior Judge Hill) all expressed a large measure of skepticism towards the university's arguments. Judge Edmondson revealed his view that the university's denial of recognition undoubtedly disadvantaged BYX. The court questioned the magnitude of the university's interest in pressuring a Christian group dedicated to the inculcation of Christian principles to admit non-Christian members.

Of course, the tenor of an oral arguments does not always predict the outcome of a case. Nonetheless, most observers (including me) of yesterday's argument would not be surprised if the appellate panel ruled in BYX's favor.

University of Iowa Restores Funding of CLS Chapter

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

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

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

Iowa attorney L. Craig Nierman assisted the Center.

Beta Upsilon Chi victory on Focus on the Family radio

Today's edition of Focus on the Family's Family News in Focus features a segment on the Beta Upsilon Chi victory with comments from BYX board member Chuck James and CLS Center attorney Isaac Fong. Stream the audio here in the embedded Flash player today on a time-sensitive link that expires tonight, or download the August 5, 2008 show. The BYX segment begins at 3:38 and ends at 5:16.

UPDATE: Here is a partial transcript of the segment.

More BYX coverage in FL newspaper

Gainesville Sun - Appeals court: UF must recognize Christian-only frat

Worldwide news coverage of Beta Upsilon Chi v. Machen decision

The Guardian - Court: Christian fraternity must be recognized

Chronicles of Higher Education - Court Orders U. of Florida to Recognize Christian Fraternity

Independent Florida Alligator - Court Orders UF to Recognize Christian Fraternity

Christian Post - Court Orders Fraternity to Recognize Christian Fraternity

Beta Upsilon Chi - Press Release

Christian Legal Society & Alliance Defense Fund - Press Release

Press release: 11th Circuit orders Univ. of Fla. to recognize Christian fraternity

See the press release for today's favorable 11th Circuit decision in Beta Upsilon Chi v. Machen ordering the University of Florida to recognize Beta Upsilon Chi while the case is on appeal.

For background on this case, see the updated CLS Center case summary here and download the 11th Circuit order as well as BYX's opening brief before the 11th Circuit.

Breaking News: 11th Circuit requires Univ. of FL to recognize Beta Upsilon Chi during appeal

The Eleventh Circuit has just ruled that the University of Florida must recognize Beta Upsilon Chi, aka Brothers Under Christ (BYX), during the appeal.

The University had previously denied recognition to BYX because the fraternity, which instills Christian values in college men through Bible studies, accountability groups, and other activities, requires its members to be Christians. Denial of recognition has hindered BYX's ability to grow and thrive on the university campus.

In a one line order, the Eleventh Circuit in Beta Upsilon Chi v. Machen granted appellants' Time Sensitive Motion for Injunction Pending Appeal. On the panel are judges Susan H. Black, Frank M. Hull (as per amended order), Ed Carnes, and William H. Pryor Jr. The docket number is 08-13332-E.

For background see the Center's case summary.

AP: Religious groups agree to drop suit against USC

The AP in Columbia, South Carolina reports on the favorable settlement in CLS v. Sorenson previously discussed here. The University of South Carolina has rescinded its policy against funding religious student organizations and is working with CLS to create new policies to ensure equal treatment in the future.

U. of S. C. ceases discrimination against religious student organizations in funding and works with CLS to create viewpoint neutral policies

The University of South Carolina, responding to a lawsuit filed by the Center, has lifted its viewpoint discriminatory restriction against granting funds to religious student organizations. This positive change protects the rights of the Christian Legal Society chapter at USC's law school as well as the rights of all other religious student organizations at the University.

Furthermore, the University has agreed to work with CLS to craft policies that protect against the threat of future viewpoint discrimination in funding, consistent with recommendations provided by Center attorneys.

View the press release on these welcome developments and the agreement between CLS and USC as well as other materials on this case.

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."

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.

Associational Freedom and Nondiscrimination Rules: An AZ Legislative Proposal

In a number of cases, the CLS Center is arguing that the Constitution forbids public universities from applying religion and "sexual orientation" nondiscrimination rules to religious groups. We are often told that if a religious student group is permitted to draw its leaders from among those who share the group's religious commitments, then a white supremacist group will be able to exclude racial minorities.

There are a lot of answers to such an assertion, including the fact that religion is different from race, both inherently and in the context of American history. In addition, when a religious group organizes around shared religious commitments and maintains its identity through statements of faith, it is not committing an act of invidious discrimination.

Against this backdrop, the recent action of an Arizona legislative committee is quite interesting. As reported in the Chronicle of Higher Education, the committee has passed a bill that contains a provision that forbids students from forming student groups based on race. It would be interesting to see how a court would deal with a claim by a Black Law Students Association chapter that this provision violates its associational freedom.

CLS Sues University of South Carolina

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

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

News account here. Complaint here. Press release here.

Stay tuned for more details.

FSU Reinstates CLS Chapter Funding

Last night, the Student Government Association at Florida State University reinstated funding of the Christian Legal Society chapter at FSU's law school.

Earlier this month, the student government froze funding already allocated to the chapter on the ground that it "discriminates" on the basis of religion and sexual orientation because it draws its leaders and those who select them from among those to voluntarily profess faith in Christ and strive to comply with certain conduct standards. Homosexual rights activists had sought the revocation of funding.

A media account of the original suspension of funding is here.