The Center Blog

Ruling for Christian School Stands

2009-05-01T15:51:00.002-04:00

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.

Law Professors Urge Connecticut Legislature to Respect Religious Freedom

2009-04-28T22:58:00.002-04:00

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.

"Gay Rights" v. Religious Liberty

2009-04-13T18:40:00.002-04:00

Commentary by Nathan Diament, Keith Pavlischek, and the Washington Post.

National Press Club Event on Conscience Regulations TODAY

2009-04-08T07:15:00.003-04:00

Today at 10:00 AM at the National Press Club, medical professionals who have experienced discrimination as a result of their exercise of their conscience will talk about their stories and urge the Administration to protect their rights and not rescind the HHS regulations protecting rights of conscience.

Freedom2Care, a coalition of organizations (including CLS) that support conscience rights in the medical profession, will also announce the results of 2 national polls gauging popular support for conscience rights and the existing HHS conscience protection regulations that the Obama Administration has proposed to rescind.

I will be in attendance and available to answer any questions about the lawsuits filed in Connecticut challenging the HHS regulations.

If you have not yet commented to HHS in support of the existing HHS regulations and in opposition to the proposed rescission of these protections you can do so through the Freedom2Care website. The deadline is midnight TOMORROW, April 9.

Illinois Court Enjoins Blagojevich Anti-Conscience Rule

2009-04-04T19:36:00.002-04:00

A judge in Illinois has temporarily enjoined state officials from punishing pharmacists who conscientiously object to filling prescriptions for "Plan B," which sometimes acts as an abortifacient.

Despite the existence of the Illinois Health Care Right of Conscience Act, former Illinois Governor Rod Blagojevich promulgated a rule in 2005 forcing pharmacists to violate their consciences by filling Plan B prescriptions.

Pro-life pharmacists challenged the rule in court, and the trial court initially held that the matter was not ripe for adjudication. The Illinois Supreme Court ended up reviewing that ruling, and CLS's Center for Law & Religious Freedom filed a friend of the court brief urging the court to reverse (which it did).

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

2009-03-24T12:55:00.001-04:00

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

2009-03-24T11:28:00.005-04:00

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)

2009-03-18T19:30:00.002-04:00

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.

Tell the Obama Administration to Enforce Laws Protecting Conscience Rights

2009-03-16T16:37:00.003-04:00

As previously noted, the Department of Health and Human Services has now moved to rescind the federal regulations prohibiting federal grantees from discriminating against medical professionals and institutions that decline to perform or refer for abortions or against medical students that do not wish to train in the performance of abortions. The proposed rescission has now been published in the federal register, triggering a 30 day period for public comment on rescinding this rule. Despite earlier media statements from unnamed HHS officials, the Administration has not proposed simply to "clarify" the rule, but have proposed completely throwing out the conscience protection rule altogether.

The conscience protection rule imposes no new obligations on federal grantees, but requires HHS grantees to certify that they will comply with three federal laws, the Church Amendments, Coats-Snowe Amendment, and Weldon Amendment. It also provides for a process by which a medical professional or institution may report their discriminatory treatment to HHS so that the agency may take action.

HHS previously explained that the rule was necessary, in part, because grantees and the public are unaware of these statutory protections - a fact confirmed in the lawsuits CLRF has been involved in defending medical conscience rights. HHS also explained that discriminatory treatment of medical professionals and institutions also threatened access to health care by driving pro-life medical professionals from the profession and causing faith-centered medical institutions (like Catholic hospitals) to close their doors rather than perform abortions.

The public, whether medical professionals, patients, or others interested, are invited to file public comments on the proposed rescission of the HHS rule. While stories of discrimination you or others have faced is helpful, ANY comment, even a few sentences, is helpful.

A website [http://www.freedom2care.org/] has been created to help facilitate complaints of discrimination and submission of comments to HHS in support of the existing regulations and in opposition to their rescission. You can also share the link with your facebook and twitter friends.

Comments are due by April 8, but do it today!

Listen to the Christian Legal Society v. Kane oral argument

2009-03-11T02:05:00.010-04:00

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

2009-03-10T02:15:00.005-04:00

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.

Oral Argument Tomorrow in CLS Chapter Nondiscrimination Case

2009-03-09T18:10:00.002-04:00

CLS Center attorney Tim Tracey will present oral argument tomorrow to the U.S. Court of Appeals for the Ninth Circuit in Christian Legal Society v. Kane.

The case arose when the Hastings College of Law in San Francisco withdrew recognition and its benefits from the law school's Christian Legal Society chapter. The chapter draws its leaders and voting members from among those who voluntarily profess faith in Christ and who attempt to abide by CLS's standards of conduct. Hastings labeled this "discrimination" on the basis of religion and "sexual orientation."

Represented by CLS's Center for Law & Religious Freedom, the Center filed a civil rights lawsuit in federal court. The district court ruled against the chapter, and it appealed.

The U.S. Court of Appeals for the Seventh Circuit has already ruled for a CLS chapter in a virtually identical dispute. That court held that Southern Illinois University violated the Constitution by withholding recognition from its CLS chapter based upon its alleged violation of the school's nondiscrimination policy.

Breaking: Obama to Remove Anti-Discrimination Protections for Pro-Life Doctors

2009-02-27T10:25:00.004-05:00

Per the LA Times - Pres. Obama will move to rescind the HHS regulation protecting medical professionals and institutions from discrimination on the basis that they do not perform, assist in or refer for abortions. No notice of rulemaking has been filed yet, but more updates will be provided when it is issued.

The regulations at issue, codified at 45 CFR Part 88, were enacted by the Bush Administration in response to recent evidence that federal grantees were unaware of or not complying with decades of federal laws protecting the rights of conscience of medical professionals. You can read more about the regulations here.

The Center currently represents the Christian Medical Association, Catholic Medical Association, and American Association of Pro-Life Obstetricians and Gynecologists as intervenors defending the regulations in three lawsuits brought in federal district court in Connecticut. You can read more about the lawsuits here.

A Philosophical Case for Conscience

2009-02-24T19:30:00.003-05:00

Writing in the Public Discourse, Prof. Christopher O. Tollefsen presents a philosophical case for the protection of the right of conscience, discussing abortion and the pro-life physician:

In sum, under extremely serious circumstances, the state can forbid what is otherwise taken to be obligatory. But the state should never command that an agent do something that an agent takes himself to be forbidden from doing by an exceptionless moral norm, and, it seems, the state should make a considerable effort to protect its citizens from demands by others that they violate their conscience in this way. . . . Another straightforward consequence is that citizens opposed in principle to participating in abortion should not be compelled by the laws of the state to violate what they take to be exceptionless negative precepts. There can be no weak form of intrinsice malum in this domain.

DOJ & DC Transit System Settle Workplace Religious Exercise Case

2009-02-06T10:51:00.003-05:00

The Justice Department and the Washington DC area transit system have settled a lawsuit against it over its accommodation of religious exercise in the workplace.

President Obama to Name Council on Faith-Based Partnerships

2009-02-05T09:22:00.003-05:00

The Washington Post is reporting that President Obama is poised to name the members of a newly created Council on Faith-Based and Neighborhood Partnerships.

NPR Story on Faith-Based Initiative

2009-02-04T10:34:00.003-05:00

NPR did a story this morning about the future of the faith-based initiative under the Obama Administration. The story featured a CLS Center case, Pedreira v. Kentucky Baptist Homes for Children (KBHC). In that case, the ACLU and homosexual rights activists are attempting to exclude KBHC (now called Sunrise Children's Homes) from state partnerships with nongovernmental organizations serving abused and neglected children because KBHC draws its leadership and employees from among those who share its religious commitments. The federal district court adjudicating the case ruled in Sunrise's favor and the ACLU appealed. Briefing in the Sixth Circuit is complete and oral argument will occur on March 11.

Garnett:At its fullest, the American model of religious liberty is not a freedom from religion or a freedom of religion; it is a freedom for religion.

2009-02-03T19:30:00.005-05:00

Notre Dame Law Prof. Rick Garnett, a friend of the Center, writes a think piece on The Public Discourse that carefully distinguishes between three rival versions of American religious liberty: freedom from religion, freedom of religion, and freedom for religion.

Note his interesting discussion of the strengths and weaknesses of a freedom of religion position:

The second approach—“freedom of religion”—tends to emphasize toleration, neutrality, and equal-treatment. Religion, on this view, is something that matters to many people, and so the law does not permit it to be singled out for special hostility or discrimination. It is recognized and accepted that religious believers and institutions are at work in society, and the stance of the law is even-handedness. Because we are all entitled to express our views and to live in accord with our consciences, religious believers are so entitled, too. The law, it is thought, should be “religion-blind.”

Although this approach is not hostile to religion, it is also reluctant to regard religion as something special. Religious liberty is just “liberty,” and liberty is something to which we all have an “equal” right. Religion is not something to be “singled out,” for accommodations and privileges, or for burdens and disadvantages. Again, religious commitment, expression, and motivation are all, in the end, matters of taste and private preference.

This approach represents an improvement on its “freedom from” competitor, and it, too, has been and is reflected in American law. In fact, it is fair to say that its influence is much more pronounced in the Supreme Court’s recent decisions. The Justices have emphasized, for example, that officials may not treat religiously-motivated speech worse than speech that reflects other viewpoints. Similarly, courts have ruled that public funds may be allocated to religiously affiliated schools and social-welfare agencies—so long as they are providing a secular public good—on the same terms as non-religious ones. At the same time, governments are not required to provide special accommodations for religious believers, or to exempt religiously motivated conduct from the reach of generally applicable laws.

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

2009-02-03T19:12:00.005-05:00

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.

Advocates International moves to intervene in federal conscience case on behalf of Concerned Women for America and four pro-life medical asociations

2009-02-03T18:48:00.003-05:00

Yesterday, attorneys for Advocates International moved to intervene in the federal lawsuit challenging the conscience regulation on behalf of the women's advocacy group Concerned Women for America as well as four pro-life medical associations, Christian Pharmacists Fellowship International, Care Net, Heartbeat International and the New Jersey Physicians Resource Council.

Read their press release and the motion to intervene and the supporting brief.

As discussed earlier, Center and ADF attorneys represent the first group of proposed intervenors Catholic Medical Association, Christian Medical Association, and the American Association of Pro-Life Obstetricians and Gynecologists.

Christians on Campus: Great David French Blog Post

2009-02-03T07:12:00.002-05:00

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.

Religious Liberty CLE at CLS Regional Retreat

2009-02-02T15:13:00.006-05:00

I will be doing a presentation on religious liberty at the Christian Legal Society northeast/New England regional retreat, which runs from Friday, February 27 through Sunday, March 1.

The retreat is at the Frost Valley conference center in Claryville, NY. Sign up on the Christian Legal Society website here.

California Appellate Court Rules in Christian School's Favor

2009-02-01T11:56:00.005-05:00

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.

Presentation at CCCU Presidents Conference

2009-01-31T19:38:00.003-05:00

I participated in a panel discussion this morning at the Council for Christian Colleges & Universities Presidents Conference in Washington, DC. The topic was "Legal and Public Policy Issues." I talked about religious staffing freedom -- recent events and imminent threats.

I asserted the threat that religion and sexual orientation nondiscrimination rules pose stems from a more foundational problem: the growing cultural acceptance of same-sex sexual conduct and the corresponding cultural condemnation of those who hold the traditional position on marriage and human sexuality.

I then ran through some developments in this area over the last twelve months: the passage of Prop 8 in California; the discovery of a right to same-sex "marriage" in the Connecticut constitution by the state's supreme court; Congress's failure to enact ENDA; DOJ's publication of the OLC opinion regarding RFRA, federal money, and religious staffing freedoms; the bad decisions in Truth v. Kent and North Coast Women's Health v. Superior Court; and the good outcomes in AFBO v. Iowa and Doe v. California Lutheran.

With regard to what the near future holds, I pointed to the emphasis on "LGBT concerns" on the White House website's "civil rights agenda" page; the likely introduction of ENDA; continuing litigation [much of which the CLS Center is involved in]; and the Obama Administration's approach to religious staffing freedoms in the faith-based initiative.

Faith-Based Hiring and the Obama Administration

2009-01-31T19:17:00.005-05:00

The Pew Forum on Religion and Public Life has posted the transcript of a Q&A with GWU law professor Chip Lupu regarding faith-based hiring and the Obama Administration.

Professor Lupu predicts that the new president's Office of Legal Counsel will disagree with its predecessor's conclusion that the Religious Freedom Restoration forbids the federal government from imposing religion nondiscrimination strings on religious recipients of federal money.

Professor Lupu also observes that the new administration might seek to add new nondiscrimination strings to specific program funding and/or take away existing protections for religious staffing freedom in certain other programs (e.g., Temporary Assistance to Needy Families).