NY Times Article on Religious Staffing Freedom and Government Funds

The New York Times has published an article regarding the Department of Justice's opinion about religious staffing freedom and government funds.

Former Center Director and University of Missouri law professor Carl Esbeck is quoted in the article, defending the DOJ opinion.

ACLU rep Christopher Anders calls the memo “the church-state equivalent of the torture memos,” referring to the Department's conclusion that the government does not have a compelling interest in forcing religious employers to hire people who reject the organization's religious beliefs.

This is incredible. Since when is it so awful for religious employers to consider religion in personnel decisions? Should the government intervene when a synagogue declines to hire a Muslim as a rabbi? Should a Unitarian congregation face liability if it won't choose a "fundamentalist" Christian to serve as its pastor? Adding government money to the mix doesn't change the analysis -- it is still not wrong for religious groups to draw their personnel from among those who voluntarily embrace the group's beliefs.

The fact of the matter is that both the Constitution and RFRA forbid the federal government from forcing religious groups to give up the exercise of a constitutional right in exchange for social service and education money.

Senator Obama has suggested that religious groups should not be allowed to preserve their religious character through staffing policies if they want to participate in government-funded programs. If Mr. Obama is elected president, it is conceivable that he will repudiate the Department's opinion and apply religion nondiscrimination rules to religious groups, thereby undermining genuine religious freedom.

Prof. Rick Garnett on Prof. Doug Kmiec

Prof. Rick Garnett, a friend of CLS's Center for Law & Religious Freedom, has an insightful post about Prof. Doug Kmiec's apparently changing views on abortion here.

Justice Department Posts Opinion on Religious Staffing and RFRA

The U.S. Department of Justice has finally put online its June 29, 2007, opinion stating that the Religious Freedom Restoration Act (RFRA) permits the government to exempt a federal grant recipient from a religion nondiscrimination attached to the money. The Department's Office of Legal Counsel issued the opinion.

The Department's Office of Justice Programs had awarded World Vision, a religious organization, a $1.5 million grant under the Juvenile Justice and Delinquency Prevention Act of 1974. As a condition of receiving grants under the Act, recipients may not discriminate on the basis of religion in "employment in connection with any programs or activity." World Vision takes religion into account in its personnel decisions.

The Religious Freedom Restoration Act of 1993 forbids the federal government from substantially burdening a person's exercise of religion, unless the imposition of that burden is the least restrictive means of furthering a compelling government interest.

OLC explained first that World Vision's operation of its government-funded program constituted the "exercise of religion" within the meaning of RFRA. It then stated that the government would "substantially burden" World Vision's religious exercise if it required World Vision to comply with the religion nondiscrimination rule. Finally, OLC concluded that applying the religion nondiscrimination rule to World Vision would not further a compelling governmental interest.

From the Presidential Debates: the "Health of the Mother" Canard Demonstrated.

In last night's presidential debate, Senator John McCain criticized Barack Obama for his opposition to proscriptions on abortion, including partial birth abortion. Obama countered that he had only opposed a Partial Birth Abortion Ban because it did not include an exception for cases where it was necessary to protect the "health of the mother."

Planned Parenthood has argued strenuously that the partial birth abortion procedure -- in which a child is pulled up to halfway outside the birth canal before its skull is crushed, it's brains sucked out, and it is delivered dead -- is necessary to protect a woman's health. In Gonzales v. Carhart the Supreme Court turned away a facial challenge to the law, holding that this procedure was unnecessary to protect a woman's health, deferring to Congress's finding after extensive hearings that the procedure was never necessary to protect a woman's health. However, the Court left open the possibility of as-applied challenges to the PBA ban if a woman's health was ever threatened by the unavailability of the procedure. Justice Ginsburg invited and predicted such challenges.

But after 18 months no such challenge has been brought. 547 days have now passed after the Supreme Court's decision upholding the PBA Ban and permitting it to go into effect. By Planned Parenthood's estimates, likely very low, six partial birth abortions were occurring daily prior to this decision. By these figures, 3,282 partial birth abortions have NOT occurred since the Supreme Court allowed the statute to go into effect without a health exception. Yet, not a single as-applied challenge has been brought claiming that the PBA Ban endangered a woman's health in a specific case.

I have discussed this point previously here and here. Again, either women have experienced a remarkable streak of luck in the past 18 months, the abortion advocacy groups are terribly understaffed in their legal departments, or Planned Parenthood and others were lying about the medical necessity of partial birth abortion. But in any case, someone now arguing for such an exception should bear the burden to demonstrate why the lack of a health exception for partial birth abortions has been a burden on women for the past 18 months.

Seventh Circuit Rejects Taxpayer Standing to Seek Repayment of Funds from Notre Dame

The Seventh Circuit Court of Appeals has issued an opinion holding that taxpayers have no standing to seek restitution from Notre Dame of funds provided to the school by the federal government for a teacher training program. The 3-0 decision is a reversal from the same panel's prior decision holding that the taxpayers had standing to seek repayment to the federal treasury from Notre Dame of a $500,000 grant for a secondary school teacher training program.

The new decision followed a remand by the Supreme Court for reconsideration in light of its decision last term in Hein v. Freedom From Religion Foundation that limited taxpayer standing. The 7th Circuit interprets Hein to limit the establishment clause exception to the general prohibition on taxpayer standing to the facts of the decision that created the exception, Flast v. Cohen. Thus, the 7th Circuit rejected taxpayer standing to seek restitution, a remedy not sought in Flast. The Court explained:

Accordingly, we read Hein to mean that taxpayers continue to have standing to
sue for injunctive relief against specific congressional appropriations alleged
to violate the Establishment Clause, but that is all. Permitting a taxpayer to
proceed against a private grant recipient for restitution to the Treasury as a remedy in an otherwise moot Establishment Clause case would extend the Flast exception beyond the limits of the result in Flast. After Hein, such an extension is unwarranted.

Judge Sykes wrote the decision for the unanimous panel. She dissented from the prior Laskowski panel decision by Judge Posner that found taxpayer standing to seek restitution from Notre Dame.

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.

Christian Legal Society and Fellowship of Christian Physician Assistants supports proposed rule protecting health care right of conscience

On Thursday, the Center for Law & Religious Freedom (CLRF), on behalf of the Christian Legal Society (CLS) and the Fellowship of Christian Physician Assistants (FCPA), submitted comments in support of a rule proposed by the Department of Health & Human Services "Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law." Dep't of Health & Human Services, 73 Fed. Reg. 50279 (proposed Aug. 26, 2008) (to be codified at 45 C.F.R. pt. 88) (read the full text of the provider conscience regulation)

From the comments:

The pending regulations do not impose any new substantive obligations on HHS
grantees. Rather, they simply require grantees to certify that they comply with
the existing protections for medical professionals' rights of conscience. But as
the above illustrates, holding HHS grantees responsible for legal requirements
that they have ignored for decades is no small thing. The unfortunate fact is
that while federal law explicitly protects medical professionals from being
forced to perform or refer for abortions against their conscience, in practice
HHS grantees have been unaware of or ignored these laws. The pending regulations
are a necessary and important insurance that HHS grantees will not use federal
taxpayers' money to compel persons to perform abortions or provide abortion
referrals in violation of their consciences. Please issue these regulations at
the earliest possible date.

CLS Supports Religious Liberty Housing Bill

Christian Legal Society, through its Center for Law & Religious Freedom, supports the Freedom of Religious Expression in the Home Act of 2008.

See my recent blog post for further details.

Bill Introduced to Protect Religious Expression in the Home

On September 17, the "Freedom of Religious Expression in the Home Act of 2008" (H.R. 6932) was introduced in the U.S. House of Representatives. The bill would amend the Fair Housing Act to enhance the legal protection of the display of religious symbols.

The bill would make it unlawful:

[t]o establish a rule or policy that prevents a person from displaying on the basis of that person's religious belief, a religious symbol, object, or sign on the door, doorpost, entrance, or otherwise on the exterior of that person's dwelling, or that is visible from the exterior of that dwelling, unless the rule or policy is reasonable and is necessary to prevent significant damage to property, physical harm to persons, a public nuisance, or similar undue hardship.

The bill is a direct response to the Seventh Circuit's decision in Bloch v. Frischholz, 533 F.3d 562 (7th Cir. Jul. 10, 2008). That dispute arose after a Chicago condo association reinterpreted one of its rules to forbid the posting of a mezuzah and other items on the exterior of owners' doors. An owner who had been displaying a mezuzah filed suit against the condo association, invoking the Fair Housing Act's ban on religious discrimination. The Seventh Circuit rejected the owner's claim, reasoning that the association's rule and enforcement were not discriminatory.

The bill essentially requires those subject to the Fair Housing Act to accommodate the display of religious symbols, subject to certain limitations.

HHS Conscience Regulations - Your Comment Needed by September 25

The U.S. Department of Health & Human Services has issued proposed regulations that would require most recipients of HHS funds to certify that they comply with federal laws protecting the conscience rights of pro-life medical professionals. For over three decades the Church Amendment has prohibited recipients of HHS funding from compelling employees to participate in activities that violate their conscience. Two other federal statutes, the Coats-Snowe Amendment to the Public Health Services Act, enacted in 1996, and the Weldon Amendment, an appropriations rider first enacted in 2004, prohibit federal and state governments and other recipients of certain federal funds from discriminating against medical professionals who do not perform or refer for abortions.

Despite these clear protections of the rights of conscience of pro-life medical professionals, those on the ground see a different story. Medical students and professionals report pressure to perform, be trained to perform, or to otherwise be involved in assisting with abortions. (Link is to website of the Christian Medical Association which CLS has represented in defending its members’ conscience rights.) Moreover, CLRF’s own experience defending the Weldon Amendment illustrated the utter lack of understanding that some of the largest grantees of federal funds (including the State of California and abortion advocacy groups) have of their own obligations not to discriminate against pro-life medical professionals. The existing federal laws prohibiting the rampant discrimination in the healthcare profession are simply being ignored. The Department’s proposed regulations are urgently needed in order to ensure that pro-life physicians, nurses, physician assistants, and others are able to remain in the practice and that the next generation of medical professionals can enter the profession with the confidence that they will not be forced to choose between their career and their conscience.

Please take the time to submit a brief comment encouraging Secretary Leavitt to issue the proposed regulations. The email address is consciencecomment@hhs.gov. You may also go to www.Regulations.gov, click on the link “comment or submission” and enter the keywords “provider conscience” to submit a comment there. THE DEADLINE FOR SUBMITTING COMMENTS IS THURSDAY SEPTEMBER 25, 2008.

As abortion advocates have launched postcard campaigns opposing the regulations, any comment is helpful, even if just a brief 1-2 sentences urging their adoption. Of course, if you can relate an example of your own or a friend or client’s discriminatory treatment for their exercise of their rights of conscience that would be particularly helpful. And please encourage others to do the same. Some additional points you may want to make are below:

• The Department should enforce existing conscience protections, passed with bipartisan support and on the books for as long as three decades.
• Discrimination against pro-life medical professionals does not expand access to abortion. It drives a critical segment of the medical workforce from the profession, diminishing access to medical care and increasing costs.
• Urge the Secretary to interpret the existing regulations to explicitly protect medical professionals from being forced to dispense or refer for chemical abortifacients like RU-486 and “Plan B.”