CENTER FILES STRONG PRO-LIFE BRIEF
On New Year’s Eve, the Center filed an amicus brief in support of a Louisiana law requiring doctors who perform abortions to maintain admitting privileges at a nearby hospital. The U.S. Supreme Court will hear oral argument in June Medical Services v. Gee on March 4, 2020.
BIBLE STUDY WINS BACK USE OF COMMUNITY CLUBHOUSE
The Center successfully helped a group of women regain their Bible study meeting space. Since 2015, Karen Kelly and Dottie Chapin have met on Fridays with other members of the Holiday City Retirement Community to study God’s Word. When a new Board of Trustees was elected, however, the Homeowners Association (HOA) not only told them to stop meeting, they called the police to keep them out of the clubhouse. The HOA told the police that religious groups were “no longer welcome to meet there based upon their religious beliefs.” Dottie called CLS and asked for help getting their Bible study reinstated. Without having the clubhouse available, these Bible study members who call themselves the “Oldies” were meeting on one member’s porch, and winter was rapidly approaching. CLS sent a demand letter to the HOA’s attorney. The letter explained that by allowing other groups to use the clubhouse, but not religious groups, the HOA was violating the Fair Housing Act and also demanded that the HOA restore the Bible study’s access to the clubhouse. At its next meeting, the HOA’s Board of Trustees voted to restore the use of the clubhouse for members of the Bible study.
CENTER DEFENDS MONTANA FAMILIES' ABILITY TO CHOOSE TO ATTEND RELIGIOUS SCHOOLS
The Center filed an amicus brief on behalf of CLS and 16 leading religious organizations in the only religious freedom case on the United States Supreme Court’s docket in the new 2019 Term, Espinoza v. Montana Department of Revenue. Written by Professor Tom Berg and Professor Doug Laycock, the CLS brief explains that the Montana Supreme Court erred when it struck down a tax credit for state taxpayers who donate to organizations that provide scholarships to students who attend private schools, including religious schools.
CLS AND AMICI ASK THE COURT TO FOCUS ON RELIGIOUS FUNCTIONS OF MINISTERS
CLS spearheaded a group of six religious educational and civil liberties organizations who submitted an amicus brief asking the U.S. Supreme Court to review the Ninth Circuit's decision in Our Lady of Guadalupe School v. Morrissey-Berru that a fifth-grade teacher at a Catholic school was not a minister despite having "important religious functions." In Hosanna-Tabor Lutheran School v. EEOC, the Supreme Court held that the First Amendment prevents ministers in religious organizations from suing the organization for employment discrimination. The Ninth Circuit held that an employee should have a religious title or religious training to be a minister. The brief, authored by Professor Tom Berg of the St. Thomas School of Law (Minneapolis) and students at the Religious Liberty Appellate Clinic, argues that government-required "credentialism" for ministers creates the very infringements on religious liberty that the First Amendment is intended to prevent.
PROPOSED DEPARTMENT OF LABOR RULE
The Department of Labor announced a critically important proposed rule, 84 Fed. Reg. 41677 (Aug. 15, 2019), which would protect all religious organizations’ freedom to hire persons who agree with their religious mission. Anyone can comment by clicking here or going to www.regulations.gov and entering “RIN: 1250-AA09” into the search box. Then type (or paste) a comment or upload a comment. Comment ideas and additional information are available for short or long comments. The comment period closes Monday, September 16.
CHRISTIAN SORORITY REMAINS RECOGNIZED STUDENT GROUP
A group of Christian women students were told by administrators at a public university in Georgia that they would no longer be a recognized student group and could not participate in the upcoming student activities fair. With the help of Center attorneys, the group’s recognition was restored in time to participate in the activity fair.
U.S. COMMISSION ON UNALIENABLE RIGHTS
CLS joined a coalition letter commending the Secretary of State for his recent formation of the U.S. Commission on Unalienable Rights. Its task is to re-examine the meaning of unalienable human rights in order to ground American foreign policy in pursuing fundamental human rights.
PROTECTING FIRST AMENDMENT RIGHTS
The Center filed a friend-of-the-court brief in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority. At issue is whether the Washington Metro Area Transit Authority's (WMATA) policy of refusing to accept advertisements that promote or oppose religion or reflect a religious perspective violates the First Amendment. Briefly, WMATA accepted a variety of advertisements for the exterior of its buses—including, during the winter holiday season, ads exhorting readers to shop for gifts and an ad exhorting readers to give to the Salvation Army’s charitable work. WMATA, however, rejected a Christmas ad from the Roman Catholic Archdiocese of Washington (“Archdiocese”) exhorting readers to “Find the Perfect Gift” and directing them to a website with information about opportunities to give to Catholic charitable work, as well as opportunities to attend Mass. WMATA rejected the Archdiocese’s ad on the ground that it contained religious language and an image of shepherds and a star, and thereby allegedly violated WMATA’s policy excluding advertisements that “promote or oppose any religion, religious practice or belief.
CLS OPPOSES SO-CALLED EQUALITY ACT
CLS joined a letter to all members of the House of Representatives outlining several reasons why the Equality Act, HR 5, is a dramatic threat to all Americans’ religious freedom, including that it severely cripples the Religious Freedom Restoration Act (RFRA). Unfortunately, the House passed HR 5 by a vote of 236-173. It is the first time that either the House or the Senate has voted to weaken RFRA – and every American’s religious freedom –- in the 25 years since President Clinton signed RFRA into law. The Senate is believed to be unlikely to vote on HR 5 this Congress.
PROTECTING MICHIGAN COLLEGE STUDENTS
The Center provided a written statement to the Michigan House Oversight Committee in support of legislation to protect religious student organizations. Hearings were held in April and May.
SENATORS INTRODUCE LEGISLATION TO PROTECT RELIGIOUS STUDENT GROUPS ON CAMPUS
Senator Blunt, together with Senator Scott and Senator Lankford, introduced legislation to keep religious student groups on campuses nationwide. On April 11, these senators introduced S. 1168 to prevent public universities from excluding religious student groups from campus because of their religious beliefs, speech, practices, or leadership standards. If you want to help protect religious student groups, like CLS student chapters, email and call your Senators today to respectfully ask them to co-sponsor S. 1168. Just that simple message will be great.
UNITED STATES DEPARTMENT OF EDUCATION AND RELIGIOUS FREEDOM IN HIGHER EDUCATION
Over the past four months, Center Director Kim Colby has spent many hours working to improve Department of Education regulations concerning religious freedom issues in higher education. Kim served as a member of the Faith-Based Entities Subcommittee of the Accreditation and Innovation Negotiated Rulemaking Committee for Higher Education 2018-2019, which completed its work last week. In a few months, the Department will call for public comment on these issues.
PROTECTING MISSOURI COLLEGE STUDENTS
The Center provided a written statement to the Missouri House Higher Education Committee in support of legislation to protect religious student organizations. The legislation has passed committees in both the House and Senate but awaits floor votes. A special thanks to the CLS student leaders at University of Missouri for providing written statements and testimony to the committees.
CLS BRIEF CITED IN MINISTERIAL HOUSING ALLOWANCE DECISION
In its recent ruling upholding the constitutionality of the ministerial housing allowance, the Seventh Circuit Court of Appeals cited CLS’ friend-of-the-court brief. Professor Thomas Berg and his students at the Religious Liberty Appellate Clinic at St. Thomas School of Law (Minneapolis) prepared the CLS amicus brief, which included an original analysis of the likely financial harm to the average pastor if the housing allowance were ruled unconstitutional. The Freedom From Religion Foundation had challenged the allowance as an Establishment Clause violation, but the court upheld its constitutionality.
PROTECTING IOWA CLS CHAPTERS
The Iowa Legislature enacted HF 661 to protect religious student groups on public university campuses, and Governor Reynolds signed it into law on March 27th. The Center provided a written statement to the Iowa Senate Education Committee and the House Judiciary Committee in support of the legislation. Because of its religious beliefs, the CLS chapter at the University of Iowa has been threatened with loss of recognition as an official student group several times over the past 15 years. A special thanks to the CLS student leaders at Drake University Law School and the University of Iowa College of Law for their faithfulness this past year!
PROTECTING STUDENTS' RIGHTS TO BE ON CAMPUS
The federal district court in Iowa ruled that the University of Iowa violated the rights of a religious organization for business students. The university de-recognized the group when the group would not allow a student to be a leader in the group because the student disagreed with the group's religious beliefs. CLS filed an amicus brief in the case back in October 2018, defending the right of religious student groups to require their leaders to agree with the groups' religious beliefs. The district court judge granted a permanent injunction banning the university from rejecting the groups.
PROTECTING RELIGIOUS EMPLOYERS
The Center in January filed an amicus brief in Woods v. Seattle's Union Gospel Mission on behalf of 15 religious nonprofit organizations from a variety of faiths in support of a gospel rescue mission in Seattle. The accompanying Motion to file the brief explained why the 15 organizations are concerned about this case. The issue is whether the state can interfere in a religious nonprofit’s hiring decisions when a job applicant, who is seeking employment with the religious nonprofit, admits during the application process that he or she does not agree with the nonprofit's religious beliefs. The Mission had won in the trial court, but the job applicant has appealed. The job applicant also asked the Washington Supreme Court to let him skip the intermediate state court of appeals and have his case heard next by the Washington Supreme Court itself. The court has not stated what it will do and whether the case will be heard in the court of appeals or the state supreme court.
CLS FILES TWO AMICUS BRIEFS
Protecting Religious Employees: On October 17, 2018, CLS filed a friend-of-the-court brief with the U.S. Supreme Court in Patterson v. Walgreen Co. in support of a religious employee who was fired because he needed a religious accommodation to observe his Sabbath. The brief urged the Court to grant review of an appellate court’s decision against the religious employee.
Protecting the CLS student chapter at the University of Iowa: On October 29, 2018, CLS filed a friend-of-the-court brief in BLinC v. University of Iowa in support of religious student groups on the University of Iowa campus. The University of Iowa is threatening the CLS student chapter, along with other religious student groups, with expulsion from campus because the CLS chapter requires its leaders to agree with its core Christian beliefs. In the brief, CLS defends the right of its student chapters to require their leaders to agree with basic Christian beliefs. A liberal commentator comes down on the side of the religious students in a recent article in which he confirms that many university administrators actually are hostile toward evangelical Christian student groups.
IDAHO SUPREME COURT REJECTS ABA MODEL RULE 8.4(g)
The Idaho Supreme Court, by a vote of 3-2, decided not to adopt a resolution that would have amended Idaho Rule of Professional Conduct 8.4 to include the language of ABA Model Rule 8.4(g). The Idaho Supreme Court sent official notice of the decision to the Idaho State Bar on September 6, 2018.
ARIZONA SUPREME COURT REJECTS ABA MODEL RULE 8.4(g)
The Supreme Court of Arizona issued a notice on August 30, 2018, stating it had denied the petition that would have amended Rule 42, Ethical Rule 8.4, Rules of the Supreme Court, to include the language of ABA Model Rule 8.4(g).
CHRISTIAN LEGAL SOCIETY'S KIM COLBY FEATURED ON THE FEDERALIST SOCIETY BLOG
On August 24, 2018, Kim Colby, the director of CLS' Center for Law & Religious Freedom, was featured on The Federalist Society Blog discussing the unconstitutionality of ABA Model Rule 8.4(g) in light of the U.S. Supreme Court decisions in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018) ("NIFLA") and Matal v. Tam, 137 S. Ct. 1744 (2017).
Also in August, CLS filed supplemental comments with both the Maine Supreme Judicial Court and the Utah Supreme Court regarding proposals in both states to adopt ABA Model Rule 8.4(g). CLS had previously submitted comments to both courts before the close of the comment periods there, but filed the supplemental comments to bring to the attention of justices the decision handed down by the U.S. Supreme Court in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018), which was after the close of the comment periods in both Maine and Utah.
CHRISTIAN LEGAL SOCIETY WELCOMES THE NOMINATION OF A TESTED FRIEND OF RELIGIOUS FREEDOM, JUDGE BRETT KAVANAUGH
Christian Legal Society (CLS) welcomes the nomination of a tested friend of religious freedom, Judge Brett Kavanaugh, to serve on the United States Supreme Court. As our Nation celebrates the 25th Anniversary of the passage of the Religious Freedom Restoration Act of 1993, it is particularly fitting that a Supreme Court nominee be someone who has demonstrated a keen appreciation for the importance of its role in protecting all Americans’ religious freedom. Judge Kavanaugh has demonstrated a real commitment to protecting citizens’ religious speech. CLS’ Center for Law and Religious Freedom’s primary focus for four decades has been to safeguard all Americans’ right to express their religious beliefs and values in the public square. Adding yet another strong voice for freedom of speech to the Supreme Court is a very positive development. Click here to read more.
SUPREME COURT AFFIRMS FIRST AMENDMENT RIGHTS IN MASTERPIECE CAKESHOP CASE
We celebrate with Jack Phillips for his win today in the U.S. Supreme Court. On June 4, 2018, in a 7-2 decision, the U.S. Supreme Court affirmed the First Amendment rights of religious individuals by protecting Jack Phillips in the Masterpiece case, while striking down the apparent hostility that had been voiced against people of faith. The Supreme Court "concluded that the State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed."
The Court's decision discussed many issues, including the Free Exercise rights of Jack, the baker. The CLS brief was mentioned at oral argument and provided the legal analysis of the Free Exercise claims that the Court majority seemed to follow in ruling for Jack Phillips. We are pleased with the decision and that the CLS brief seemed to have such a good influence on the outcome.
CLS issued a press release applauding the Supreme Court's respect for religious freedom.
Center Director Kim Colby spoke on the Federalist Society Religious Liberties Practice Group Teleforum after the Masterpiece ruling was announced. You can hear the hour long discussion here.
Kim Colby also spent an afternoon with Mike Schutt on the CLS podcast Cross & Gavel discussing the Masterpiece Cakeshop decision. Click here to listen to the podcast. A copy of the podcast transcript is available here.
CLS FILES COMMENT LETTER REGARDING ABA MODEL RULE 8.4(g) IN NEW HAMPSHIRE
On May 25, 2018, CLS filed a comment letter with the New Hampshire Supreme Court Advisory Committee on Rules, which is studying three versions of ABA Model Rule 8.4(g) for possible adoption there.
CLS FILES COMMENT LETTER REGARDING ABA MODEL RULE 8.4(g) IN ARIZONA
On May 3, 2018, CLS filed a comment letter with the Arizona Supreme Court, which is studying ABA Model Rule 8.4(g) for possible adoption there.
TENNESSEE SUPREME COURT REJECTS ABA MODEL RULE 8.4(g)
The Supreme Court of Tennessee issued an Order on April 23, 2018, denying the petition of the Tennessee Board of Professional Responsibility and the Tennessee Bar Association to adopt new Rule 8, RPC 8.4(g).
CLS DEFENDS CONGREGATIONS AND CLERGY OF ALL FAITHS FROM HISTORIC ATTACK ON THEIR ABILITY TO SERVE
CLS filed a brief to help protect clergy of all faiths from a higher tax bill. A group hostile to religion seeks to take away the housing allowance for clergy, a tax provision that is deeply embedded in the fabric of our national life.
PROTECTING DOCTORS' AND NURSES' RELIGIOUS CONSCIENCES
CLS submitted a comment letter to the U.S. Department of Health and Human Services (HHS) in support of new actions by HHS to defend health workers’ right not to participate in abortions.
CLS SUBMITS LETTERS IN SUPPORT OF IOWA LEGISLATION TO PROTECT CAMPUS RELIGIOUS GROUPS
CLS submitted two letters to Iowa state legislators (Support for Iowa SF 2344 and Overview of Other States' Laws) that are considering passing legislation to protect the ability of religious groups to have access to university campuses.
CLS FILES PRO-LIFE BRIEF IN THE SUPREME COURT
CLS filed a friend-of-the-court brief in First Resort v. Herrera in which CLS urged the Court to review a Ninth Circuit ruling that would allow the government to regulate religious ministries’ speech, including pro-life pregnancy resource centers.
CHURCHES AND RELIGIOUS SCHOOLS ARE ELIGIBLE FOR DISASTER RELIEF
For too long, FEMA denied churches and religious schools disaster relief that was available to other charities. On February 8, 2018, Congress changed that to end FEMA’s discrimination against religious ministries. Back in November 2017, CLS had joined a coalition letter urging Congress to act.
CLS SUPPORTS PROTECTIONS FOR RELIGIOUS STUDENTS IN SOUTH DAKOTA
CLS submitted a written statement urging the South Dakota state legislature to adopt protections for religious student groups that want to meet on public university campuses.
CLS FILES LETTER WITH FEMA
In November, CLS joined a coalition letter to the administration requesting that religious groups get fair and equal treatment after a natural disaster, especially given their role in providing essential services. As a result, FEMA changed its rules and now allows religious groups to receive federal aid following a natural disaster.
NEVADA SUPREME COURT ORDERS PETITION TO AMEND PROFESSIONAL CONDUCT RULES WITHDRAWN
On September 25, 2017, the Nevada Supreme Court issued an Order granting a Petition from the Board of Governors requesting that its Petition to amend the Nevada Rules of Professional Conduct to include the ABA's Model Rule 8.4(g) be withdrawn.
CLS FILES BRIEF IN FAVOR OF PROTECTING JUDGES
CLS filed a friend-of-the-court brief before the U.S. Supreme Court in support of a Christian judge in Neely v. Wyoming Commission of Judicial Conduct and Ethics. The judge is being disciplined for declining to perform any marriage ceremony after the Obergefell same-sex marriage case. Despite the facts that Wyoming law does not require judges to perform weddings and Judge Neely has never been asked to solemnize a same-sex wedding, the Wyoming Supreme Court ruled she cannot perform any marriage ceremonies unless she’s willing to violate her faith by performing same-sex wedding ceremonies. In its brief, CLS urges the Court to take this case and rule against a religious test for judges.
CLS FILES BRIEF IN MASTERPIECE CAKESHOP V. COLORADO CIVIL RIGHTS COMMISSION
CLS filed an amicus brief with the U.S. Supreme Court this week in support of a Christian baker’s right to decline to participate in wedding ceremonies that he religiously objects to. The brief urged the Court to protect religious freedom for people of faith now that the Court has recognized same-sex marriage.
CLS FILES LETTER REGARDING MODEL RULE 8.4 IN LOUISIANA
CLS filed a comment letter with the Louisiana State Bar Association, which is studying ABA Model Rule 8.4(g) for possible adoption in Louisiana.
CLS FILES BRIEF IN TING XUE V. SESSIONS
Mr. Xue was arrested when Chinese officials raided the unregistered house church in China where he and other Christians were worshipping. He was released from jail only after paying a fine equal to half his yearly income. After the house church was raided again, and those arrested put in imprisoned for a year, Mr. Xue came to America in search of religious freedom, where a lower court denied his application for asylum, claiming arrest and heavy fines for worshipping with other Christians were not religious persecution. CLS joined an amicus brief urging the Supreme Court to clarify the national standard for asylum for religious persecution. The brief explains Congress intended to give persons seeking asylum from religious persecution a refuge in America from regimes who punish those who only want to worship peacefully with others. The Supreme Court is expected to decide this summer whether to hear the case.
CLS FILES LETTER REGARDING MODEL RULE 8.4 IN SOUTH CAROLINA
CLS filed a comment letter with the South Carolina Supreme Court, which has been asked to consider Model Rule 8.4(g).
KIM COLBY TESTIFIES BEFORE THE U.S. HOUSE JUDICIARY COMMITTEE
Kim Colby testified before the House Judiciary Committee on the State of Religious Liberty in America. To read her testimony and watch the video, visit here: https://judiciary.house.gov/hearing/state-religious-liberty-america/.
CLS FILES LETTER REGARDING MODEL RULE 8.4 IN PENNSYLVANIA
CLS filed a comment letter with the Pennsylvania Supreme Court, which is considering adopting Model Rule 8.4(g).
CLS FILES BRIEF IN STERLING V. U.S.
The Center filed an amicus brief on behalf of a Marine Corporal who was court-martialed for refusing to take down a Bible verse she had posted in her work station. In ruling against her, the Court of Appeals for the Armed Forces severely watered down RFRA’s protections for all military personnel. The CLS brief urged the Supreme Court to review the case and ensure that military personnel keep their religious freedom while they serve our country. The Chaplain Alliance for Religious Liberty, along with eight other national organizations, joined the CLS brief.
CLS FILWA BRIEF PROTECTING THE RELIGIOUS LIBERTY OF MAGISTRATES IN NORTH CAROLINA
CLS, joined by National Association of Evangelicals (NAE), filed an amicus brief in the Fourth Circuit Court of Appeals in the case of Ansley v. Warren. At issue in the case is North Carolina Senate Bill 2, which permits magistrates to decline for faith-based reasons to perform any marriage while simultaneously ensuring that there is a ready alternate to perform the marriage ceremony for the couple. CLS argued that Senate Bill 2 is a constitutionally-permissible religious exemption and does not violate the Establishment, Equal Protection, and Due Process Clauses of the U.S. Constitution.
CLS FILES BRIEF DEFENDING CHURCH RIGHTS
CLS, along with National Association of Evangelicals and the National Legal Foundation, filed an amicus brief in the United States Supreme Court in the case of Advocate Health Care Network v. Stapleton. The Center urged the Court to uphold ERISA’s broad religious exemption for “church pension plans.” For decades, many religious organizations that are not technically churches have relied in good faith on the federal government’s ruling that their plans qualify as “church plans,” but now challengers are asking the Supreme Court to narrow the exemption to apply only to churches. The CLS brief, written by CLS members Rick Claybrook and Professor Carl Esbeck, urged the Court to keep the current broad exemption.
CLS FILES BRIEF IN SUPPORT OF JUDGE VANCE DAY
Christian Legal Society and Professor Mark David Hall filed an amicus brief in the Supreme Court for the State of Oregon in the Judge Vance Day case, urging the court to rule that a judge’s refusal to perform a marriage ceremony that violated his or her religious beliefs does not render him or her unfit to hold judicial office. The brief was written by Professor Robert Destro and CLS member Herb Grey.
CLS FILES LETTER REGARDING MODEL RULE 8.4 IN ILLINOIS
CLS filed a comment letter with the Illinois Supreme Court, which is considering adopting Model Rule 8.4(g).
CLS FILES LETTER REGARDING MODEL RULE 8.4 IN MONTANA
CLS filed a comment letter with the Montana Supreme Court, which is considering adopting Model Rule 8.4(g).
CLS FILES BRIEF IN BARBER V. BRYANT
CLS filed an amicus brief urging the United States Court of Appeals for the Fourth Circuit to reject the decision of a lower federal court regarding religious discrimination of an applicant by a public university. The applicant was denied admission to a program, and the evidence shows that his mentioning of religious faith was a factor in the denial. The brief argued that penalizing the applicant because he made a simple expression of faith is discrimination that violates both the Free Speech and Establishment Clauses, and the district court committed serious error in rejecting both as a matter of law.
CLS FILES BRIEF IN BUXTON V. KURTINITIS
CLS filed an amicus brief in support of plaintiff-appellant urging the United States Court of Appeals for the Fifth Circuit to reject the decision of a lower federal court in a case regarding Mississippi’s religious accommodation law. The lower court had held that a statutory religious accommodation that exempts people from otherwise applicable regulatory duties equates to unlawful discrimination. The CLS brief argued that the statute in question provides necessary and constitutionally-permissible religious exemptions and does not violate the Establishment Clause.
CLS FILES LETTER REGARDING CALIFORNIA ETHICS RULE CHANGE
CLS filed a comment letter with the California State Bar, which was seeking comments about two major proposed changes to their rules of professional conduct that would limit attorneys’ First Amendment freedoms.
CLS SENDS LETTER REGARDING HHS MANDATE
CLS filed a letter in response to an HHS request for information about ways it could provide certain drugs and devices to religious organizations’ employees without violating religious freedom after the Supreme Court’s decision in Zubik v. Burwell.
BLOG POST: WHOSE SHAME?
The Religious Freedom Institute published Kim Colby's blog post addressing California's attempt to punish religious colleges and their students for their religious beliefs regarding marriage.
CLS COMMENT LETTER ON HUMAN-ANIMAL RESEARCH
The National Institutes of Health is lifting their moratorium on human-animal research. CLS filed a comment letter requesting that they continue with a moratorium on such research, citing legal, procedural, and ethical concerns.
CLS ASSISTS CHRISTIAN GROUPS
CLS has helped a Bible study group stay in their high school in Loudon County, Virginia, as well as advised a CLS chapter so as to overcome difficulties at American University and kept a Christian group on campus at a North Carolina university.
UPDATE ON ABA MODEL RULE 8.4(g)
The ABA passed Model Rule 8.4(g), but with modifications thanks to the emails and letters from many CLS members. For those that wonder about the evolution of 8.4 and how it progressed, Kim Colby wrote an article for the Fall 2016 issue of The Christian Lawyer magazine outlining how things evolved for this ethics rule.
CONSCIENCE PROTECTION ACT PASSES HOUSE
On July 13, the U.S. House of Representatives passed the Conscience Protection Act. 245-182, which expands protections for individuals and institutions that object to participating in abortion. CLS urged the House leadership to pass the legislation, which now returns to the Senate for its vote.
SUCCESS AT INDIANA UNIVERSITY
In 2015, Indiana University enacted a policy requiring all student organizations to include within their constitutions a clause stating they did not discriminate in membership or leadership on the basis of several factors, including religion. CLS worked closely with other campus ministries to persuade Indiana University not to adopt this policy – a policy that the university acknowledged would have prohibited religious groups from requiring their leaders to be religious. A few weeks ago, Indiana University announced it would not adopt the proposed policy change. Click here to see Indiana University's Non-Discrimination Policy documents.
CLS JOINS BRIEF IN JUDGE RUTH NEELY V. WYOMING COMM. ON JUDICIAL CONDUCT AND ETHICS
CLS joined an amicus brief in a case before the Wyoming Supreme Court in which the Wyoming Commission on Judicial Conduct and Ethics has recommended the removal of a sitting judge from both her Municipal Court Judge and Circuit Court Magistrate positions for responding to a reporter’s question about same-sex marriage. The judge stated, in response to a reporter’s question, that she would not officiate and participate in a same-sex marriage because of her religious convictions. Under Wyoming law, a judge may, but need not, officiate in any wedding. Unfortunately, the Wyoming Supreme Court denied the motion to file the brief, along with similar motions by many other organizations.
CLS FILES BRIEF IN TRINITY LUTHERAN CHURCH OF COLUMBIA V. SARA PARKER PAULEY
CLS filed an amicus brief urging the nation's highest court to reject the decision of a lower federal court in a critical case regarding Missouri's discrimination against its religious citizens.
FAITH-BASED ORGANIZATIONS THAT RECEIVE FEDERAL FUNDING
On April 4, nine federal agencies announced their final regulations to implement Executive Order 13559. The regulations allow religious organizations to receive some federal funding to provide various social services without forfeiting their religious identities or religious hiring rights. The regulations are the culmination of work by Professor Carl Esbeck, Stanley Carlson-Thies, and CLS staff over nearly two decades.
GEORGIA LEGISLATION TO PROTECT RELIGIOUS FREEDOM
The Georgia General Assembly passed its version of a First Amendment Defense Act and a state Religious Freedom Restoration Act. The Center worked closely with Georgia legislators to draft the original bill and with local organizations to support passage and even sent a letter to Georgia's governor encouraging him to support religious liberty.
KANSAS CAMPUS ACCESS BILL
The Kansas legislature passed a bill to protect campus access for religious student groups. CLS helped work on the language of SB 175, and CLS member Craig Shultz testified before the Kansas Senate committee in support of its passage. The Center provided a written statement early in the process and a letter in mid-March explaining the need for the bill.
CLS STATEMENT ON JUDICIAL NOMINATION: CAUTION NEEDED IN SCOTUS NOMINATION PROCESS
CLS issued a statement regarding the nomination process to fill the vacancy on the Supreme Court left by the passing of Justice Scalia.
CLS LETTER TO THE ABA REGARDING MODEL RULE 8.4
CLS sent a comment letter to the American Bar Association in opposition to proposed changes to Model Rule of Professional Conduct 8.4, which could restrict the practice of law by Christian lawyers. Various CLS members also filed their comments with the ABA.
CLS FILES BRIEF IN STATE OF WASHINGTON V. ARLENE'S FLOWERS, INC.
CLS filed an amicus brief in this case before Washington State's highest court. The CLS brief argued that there is no compelling state interest to force small businesses, who will serve same-sex couples in general, to provide gay wedding services when there is ready access from others.
CLS FILES BRIEF IN CHABAD-LUBAVITCH OF MICHIGAN V. DR. DOV SCHUCHMAN
CLS filed an amicus brief in Chabad-Lubavitch of Michigan v. Dr. Dov Schuchman, et al. in favor of granting cert and challenging the refusal of the Michigan State Supreme Court to entertain an action to enforce a final decree of the religious dispute resolution process between feuding Chabad-Lubavitch state and local chapters because the Michigan State Supreme Court refused to toll the civil statute of limitations during the religious dispute resolution process. CLS was joined on the brief by Anglican Church in North America, National Association of Evangelicals, National Hispanic Christian Leadership Conference-Conel, Council for Christian Colleges and Universities, Institutional Religious Freedom Alliance, Peacemakers Ministries, and Conflict Resolution and Conciliation Center.
CLS FILES BRIEF IN WHOLE WOMEN'S HEALTH V. COLE
In this Texas abortion case before the United States Supreme Court, CLS joined an amicus brief that did a careful analysis of the “undue burden” standard in abortion case law, arguing that regulations such as those in Texas that focus on the health of the mother and general medical safety are subject only to the rational basis test because they do not impose an undue burden on those seeking an abortion.
CLS MOURNS THE PASSING OF JUSTICE ANTONIN SCALIA
CLS issued a statement on the untimely passing of Justice Scalia.
CLS LETTER TO THE OHIO LEGISLATIVE TO PROTECT RELIGIOUS EXPRESSION
The Center sent a letter to the Ohio House Education Committee in Support of HB 425, which would protect the religious expression of students in public schools.
CLS FILES BRIEF IN STORMANS CASE
CLS filed an amicus brief in support of the petition for cert. in Stormans v. Wiesman, the case in which Washington pharmacists are being required to carry and dispense abortifacients. CLS argued that the Ninth Circuit disregarded evidence that Washington State’s regulations were unnecessary to ensure timely access to medications, while also emphasizing the important national tradition of protecting conscience and religious objectors in the context of the “taking of life” issues.
CLS DEFENDS TEXANS IN BATTLE WITH STATE BAR OVER RELIGIOUS LIBERTY
CLS submitted a letter to the Texas State Bar in battle over religious liberty.
HHS MANDATE POSES A GRAVE THREAT TO RELIGIOUS LIBERTY AND PLURALISM IN AMERICA
CLS filed an amicus brief in Little Sisters of the Poor v. Burwell.
CLS SUBMITS CONGRESSIONAL TESTIMONY
Center Director Kimberlee Colby submitted a written statement to the Judiciary Committee of the U.S. House of Representatives, Subcommittee on the Constitution and Civil Justice, for the hearing “Oversight of the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act.” Professor Carl Esbeck, CLS board member and former Center Director, also filed written testimony with the committee.
VIDEO CELEBARTES 20th ANNIVERSARY OF THE RELIGIOUS FREEDOM RESTORATION ACT
November 16, 2013 marked the 20th anniversary of the Religious Freedom Restoration Act, for which CLS was instrumental in getting bipartisan support for passage of the Act. Our friends at The Becket Fund have created a wonderful video to commemorate the occasion. View this video here.
ANOTHER VICTORY FOR HHS MANDATE CHALLENGERS
On Friday, November 8, 2013, the Court of Appeals for the Seventh Circuit held that the plaintiffs in Korte v. Sebelius and Grote v. Sebelius may challenge the HHS Mandate. In these consolidated appeals, plaintiffs, who are two Catholic families and their closely held corporations, challenged the federal government’s contraception mandate,” a regulatory requirement imposed by the Department of Health and Human Services to implement the terms of the 2010 mandate. The businesses are secular and for-profit, but they operate in conformity with the faith commitments of the families that own and manage them. The court also held that compelling plaintiffs to cover these services substantially burdens their religious-exercise rights. Click here to read the decision.
VICTORY FOR HHS MANDATE CHALLENGERS
On November 1, 2013, the DC Circuit Court of Appeals held the HHS Mandate unconstitutional as to a religious owner of a for-profit business. In Gilardi v. U.S. Dept. of Health and Human Services, the court found that the contraceptive mandate imposed by the Affordable Care Act trammels the right of free exercise—a right that lies at the core of our constitutional liberties—as protected by the Religious Freedom Restoration Act. Click here to read the court’s ruling.
CLS JOINS INTER-FAITH COMMENT LETTER
CLS and 19 other organizations signed a letter addressed to Ms. Jeanne Jacobson of the U.S. Office of Personnel Management regarding the principle that American workers should be allowed to take time off for religious observance without risking their jobs. To read the letter, click here.
CLS FILES BRIEFS DEFENDING RELIGIOUS LIBERTY
In its amicus brief filed in the U.S. Supreme Court, CLS argued that a Massachusetts law prohibiting persons (with some exceptions) from knowingly entering a public street or sidewalk within 35 feet of an abortion facility violates the First Amendment. Under the law, within that zone, individuals are subject to fines or jail for entirely peaceful speech, including distributing pamphlets, holding signs, or praying. The CLS brief argued that the basic presumption that speech on sidewalks and streets cannot be banned should be understood to protect freedom of assembly, as well as freedom of speech. Beginning with William Penn's arrest for giving a sermon on a London street, the brief examines the close historical ties between religious liberty and freedom of assembly. The case is McCullen v. Coakley.
In the Court of Appeals for the Sixth Circuit, CLS filed an amicus brief supporting Christian business owners' challenge to the HHS Mandate's requirement that they provide insurance coverage for drugs to which they have religious objections. The case is Domino’s Farms Corp., et. al v. Sebelius.
STANDING TOGETHER FOR RELIGIOUS FREEDOM
Christian Legal Society CEO David Nammo and many other religious leaders and organizations joined in signing an open letter expressing opposition to the Department of Health and Human Services' contraceptives mandate, saying it "continues to breach universal principles affirmed and protected by the U.S. Constitution and other federal laws." The letter calls on HHS to expand conscience protections to cover any organization or individual that has religious or moral objections to covering, providing or enabling access to the mandated drugs and services. Click here to read the letter.
HOBBY LOBBY WINS IN TENTH CIRCUIT EN BANC
The Tenth Circuit just gave Christian business owners a big win against the HHS Mandate on June 27, 2013. Hobby Lobby and its sister organization, Mardel, which runs Christian bookstores, refused to provide coverage of drugs they believe cause abortion and, therefore, violated their religious beliefs. The district court in Oklahoma denied preliminary injunctive relief in December 2012. A three-judge Tenth Circuit panel denied an injunction pending appeal, and Justice Sotomayor denied relief. The Tenth Circuit then agreed to hear the appeal of the denial of the preliminary injunction en banc. Today, the Tenth Circuit held that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. The Tenth Circuit remanded the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.
SUPREME COURT ISSUES TWO MARRIAGE RULINGS
The U.S. Supreme Court issued two rulings today regarding the ability of the federal and state governments to define marriage as between one woman and one man. While striking one section of the federal Defense of Marriage Act (DOMA), the Court claimed to leave the States free to define marriage as between one woman and one man. In United States v. Windsor, Justice Kennedy, writing for the five-justice majority, ruled that Section 3 of DOMA violated the due process and equal protection principles of the Fifth Amendment. While the majority acknowledged that Congress sometimes must define marriage for federal purposes, it ruled that Congress could not "seek to injure the very class New York seeks to protect" – despite the fact that no State, including New York, recognized same-sex marriage at the time DOMA was enacted by bipartisan majorities in both Houses of Congress and was signed into law by President Clinton. One major concern is that a ruling based on equal protection grounds under the Fifth Amendment, which is closely related to the Fourteenth Amendment, may lay the groundwork for eventually applying this to the states. Thankfully, however, marriage continues to be a state-by-state decision.
In Hollingsworth v. Perry, Justice Roberts, writing for a five-justice majority, ruled that the supporters of Proposition 8 did not have standing to appeal the district court's ruling that Proposition 8 was unconstitutional. (California's governor and attorney general had refused to defend the voters' constitutional amendment.) This vacates the Ninth Circuit's decision. Further legal proceedings will determine what happens to marriage in California, but the decision is limited to California. CLS had filed an amicus brief in the Supreme Court explaining why re-definition of marriage is likely to harm traditional religious believers' ability to live their faith in the public square. Click here to read the brief.
CLS BOARD MEMBER ON THE FRONT LINES OF IRS SCANDAL
Todd Starnes of Fox News reported today about Sally Wagenmaker's efforts in representing Coalition of Life Iowa and Christian Voices for Life of Fort Bend County, Texas. From FoxNews.com:
The Internal Revenue Service allegedly told an Iowa pro-life group they had to sign documents promising not to protest or picket Planned Parenthood and they told a Texas pro-life organization they had to promote abortion, according to documents obtained by Fox News.
“The IRS was concerned about advocacy,” said Sally Wagenmaker, special counsel to the Thomas More Society. “The (agent) said picketing and protesting is not allowed.”
She said the IRS’s role “should only be to determine whether organizations fit the section 501(c)(3) test for ‘charitable, religious, or educational’ qualification, not to inquire about the content of prayers, protests, and petitions.”
“It’s high time that the IRS be called to account for its workers’ potential to trample on our constitutional rights, through such ostensibly innocuous means,” Wagenmaker said, hinting that this may only be the tip of the iceberg of IRS abuses.
An IRS spokesman said they would look into the cases.
Wagenmaker was representing Coalition for Life of Iowa and Christian Voices for Life of Fort Bend County, Texas. Both groups were seeking tax exempt status. Their requests were eventually granted, but only after they sought legal help from the Thomas More Society.
In 2009, the Coalition for Life received correspondence from the IRS raising questions about their prayer activity – specifically outside Planned Parenthood clinics.
“You then asked … to have all Coalition Board members sign a statement that the coalition will not ‘picket’ or ‘protest’ outside of Planned Parenthood or similar organizations and will not ‘organize’ others to do so,” Wagenmaker wrote in a letter to an IRS representative known only as “Ms. Richards.” Wagenmaker said the IRS’s demand was clearly a violation of the pro-life group’s constitutional rights.
“It really concerned me there would seem to be this protection of Planned Parenthood,” Wagenmaker told Fox News. “They had revenues of $55 million and the Coalition is just a group of volunteers.”
The attorney wrote in her letter to the IRS that their demands “come perilously close to violating the First Amendment constitutional rights of the Coalition’s supporters.”
“The IRS’s delay and questioning of the Coalition’s tax-exempt, legitimate activities constitutes unnecessary and prejudicial interference with the Coalition’s legal right to a tax-exempt determination,” she wrote. Wagenmaker said the IRS’s dogged pursuit of the Coalition was “intimidating” and “heavy-handed.”
In the case of Christian Voices, the IRS implied that the group had to include pro-abortion balance to their programming.
They were directed to explain whether the group’s educational programs educate both sides of the issues.
“Your question implies some sort of legal duty to provide a balanced presentation of educational information,” the attorney wrote.
She said it was incredible to think that the government wanted to require a pro-life group to give equal access to pro-choice groups.
“You can’t push an organization around like that,” she said. “You can’t impose your own out-dated, improper, unconstitutional views.”
Shortly after Wagenmaker began pushing back – the groups got their exemptions approved.
“They just needed someone to stand up for their rights and push back,” she said.
RELIGIOUS LIBERTY WIN IN THE ELEVENTH CIRCUIT
CLS filed an amicus brief last summer in Rich v. Secretary, Florida Department of Corrections to protect a Jewish prisoner's ability to observe kosher dietary requirements. The federal Religious Land Use and Institutionalized Persons Act ("RLUIPA") requires any prison that receives federal funds to accommodate prisoners' religious observances. A prison may avoid RLUIPA’s requirements by not taking federal funding or by demonstrating it has a compelling reason, such as prison security, that justifies a refusal to accommodate a specific prisoner’s religious request. CLS's brief argued that prison officials failed to justify denying kosher meals to Jewish prisoners. Although the prison claimed that kosher meals would cost too much, in reality, the prison increased its funding by respecting prisoners' religious needs in exchange for federal funding. Today, the Eleventh Circuit ruled in the prisoner's favor. Click here to read the decision.
CLS CONTINUES TO ADVOCATE FOR CHRISTIAN BUSINESS OWNERS
CLS filed an amicus brief today in support of the right of Christian business owners to follow their religious convictions when providing employee insurance coverage. The brief was filed in the U.S. Court of Appeals for the District of Columbia Circuit in Gilardi v HHS. The brief explains why the HHS Mandate’s definition of “religious employer” sharply departs from the American bipartisan tradition of respecting religious conscience rights. Brothers Francis A. Gilardi and Philip M. Gilardi, who own and operate Freshway Foods and Freshway Logistics, want to “run their business in accordance with their religious beliefs and moral values,” said Edward White, senior counsel for the American Center for Law and Justice, representing the Whites.
CLS FILES BRIEF IN LEGATUS V. SEBELIUS
On April 30, CLS filed an amicus brief in support of Christian business owners' rights to follow their religious convictions when providing insurance coverage for employees. The brief, filed in the Court of Appeals for the Sixth Circuit, explained why the HHS Mandate's definition of "religious employer" sharply departs from the American bipartisan tradition of respect for religious conscience rights.
HHA MANDATE OPPORTUNITY – ASSISTED REPRODUCTIVE TECHNOLOGIES SURVEY
Monday, April 8, 2013, is the deadline for submitting comments to the U.S. Department of Health and Human Services (HHS) regarding the February 6, 2013, Notice of Proposed Rulemaking. CLS continues to regard the proposed rule to be inadequate. The definition of "religious employer" is far too narrow and excludes many traditional religious employers, including religious colleges, hospitals, and ministries. The proposed "accommodation" for these employers, by which HHS proposes to make insurers or third party administrators pay for drugs that violate the employers' religious consciences, is considered an economic charade by many observers. Comments need not be lengthy or comprehensive and may be submitted electronically to http://www.regulations.gov, by midnight Monday.
CLS FILES BRIEFS IN HHS MANDATE CASES
In March, CLS submitted three amicus briefs in support of Christian business owners' rights to follow their religious convictions when providing insurance coverage for employees. The briefs were filed in the Third, Eighth, and Tenth Circuits. The briefs explained why the HHS Mandate’s definition of “religious employer” sharply departs from the American bipartisan tradition of respecting religious conscience rights.
CLS FILES BRIEF IN THE SEVENTH CIRCUIT
CLS filed another amicus brief in support of Christian business owners' rights to follow their religious convictions when providing insurance coverage for employees. This brief was filed in Grote v. Sebelius. The brief explained why the HHS Mandate's definition of "religious employers" sharply departs from the American bipartisan tradition of respecting religious conscience rights.
CLS FILES BRIEFS IN SIXTH AND TENTH CIRCUITS
CLS filed amicus briefs in two HHS mandate cases. The briefs support Christian business owners' rights to follow their religious convictions when providing insurance coverage for employees. One brief was filed in Hobby Lobby v. Sebelius in the Tenth Circuit. The other was filed in Autocam v. Sebelius in the Sixth Circuit. Both briefs explained why the HHS Mandate's definition of "religious employers" sharply departs from the American bipartisan tradition of respecting religious conscience rights.
CLS FILES BRIEF IN SEVENTH CIRCUIT
CLS filed an amicus brief in Korte v. Sebelius to support Christian business owners' rights to run their business according to their religious convictions. The case is one of nearly 40 cases challenging the constitutionality of the HHS Mandate, a federal regulation that requires employers to provide insurance coverage for Plan B and ella, which many regard as abortion-inducing drugs. While the Mandate exempts a handful of "religious employers," the exemption is so narrow that most non-profit - let alone for-profit -- religious employers do not qualify for the exemption. The brief explained why the HHS Mandate's definition of "religious employers" sharply departs from the American bipartisan tradition of respecting religious conscience rights.
CLS SUBMITS TWO BRIEFS
On January 29, 2013, CLS filed submitted two amicus briefs. The first brief asked the U.S. Supreme Court to preserve traditional marriage. The brief explained why the re-definition of marriage likely would heavily burden traditional religious believers' ability to live their faith in the public square. In United States v. Windsor, the Supreme Court will decide whether Congress acted constitutionally in defining marriage, for federal law purposes, as between one woman and one man. In Hollingsworth v. Perry, the Court will decide whether the People of California acted constitutionally in preserving the traditional definition of marriage for state law purposes.
In the second brief, CLS asked a federal court of appeals to implement the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) to allow prisoners to practice their religion. On this brief, CLS was pleased to be represented by the newly inaugurated Stanford Law School Religious Liberty Clinic. Through this collaboration, CLS served two of its fundamental purposes: encouraging law students in their professional development and protecting religious liberty.
ILLINOIS PHARMACISTS’ CONSCIENCE RIGHTS PREVIAL AGAINST “BLAGOEVICH RULE”
The Illinois Attorney General announced on December 5, 2012, that the State would not appeal a court ruling that protects Illinois pharmacists' conscience rights. This is a significant victory for Christian pharmacists and religious liberty. Throughout seven years of litigation, CLS filed several amicus briefs in Illinois courts against the “Blagojevich Rule,” a regulation aimed at forcing Illinois pharmacists to dispense abortion-inducing drugs despite their religious and moral convictions. Joining CLS on the latest brief were the Catholic Conference of Illinois, the National Catholic Bioethics Center, and the Christian Pharmacists Fellowship International. In September 2012, an Illinois appellate court ruled that the regulation violated state conscience laws. It upheld a 2011 trial court decision that found the regulation violated state laws and the federal First Amendment. In 2005, then-Governor Blagojevich ignored the Illinois legislature’s repeated protection of its citizens’ conscience rights. At a time of a severe pharmacist shortage, the Blagojevich Rule risked the health care of all Illinois citizens by forcing pharmacists to choose between their consciences and their jobs. The State had been expected to appeal, but fortunately, after seven years of litigation, the Attorney General finally chose to accept the courts' protection of pharmacists' conscience rights.
CLS FILES TWP BRIEFS TO PRESERVE AMERICANS’ RIGHTS TO LIVE THEIR RELIGIOUS BELIEFS IN THEIR PROFESSIONAL LIVES
In the Ninth Circuit, CLS defended the right of pharmacists to refuse to dispense drugs that they consider to be abortifacients. The brief provides the scientific evidence for the pharmacists’ reasonable belief that the drugs Plan B and ella may destroy human life. The brief also discussed the Christian tradition of respecting each individual unborn human as a unique moral being.
In the Eighth Circuit, CLS supported the right of a Christian business owner to run his business according to his prolife convictions. The case is one of nearly 40 cases challenging the legality of the HHS Mandate, a federal regulation that requires employers to provide insurance coverage for Plan B and ella. While the Mandate exempts a handful of "religious employers," the exemption is so narrow that most religious employers do not qualify for the exemption. The brief explains why the Mandate’s definition of “religious employer” sharply departs from the bipartisan tradition of respecting religious conscience rights.
CLS FILES BRIEF TO PROTECT THE RIGHTS OF RELIGIOUS ORGANIZATIONS
October 12, 2012, CLS filed an amicus brief in support of Wheaton College and Belmont Abbey College in their joint challenge to the "HHS Mandate." The Mandate is a federal regulation that requires employers to provide insurance coverage for Plan B and ella. While the Mandate exempts some "religious employers," the exemption is so narrow that these religious colleges do not qualify as "religious employers." Eleven groups joined the CLS brief to explain why the Mandate’s definition of “religious employer” sharply departs from the bipartisan tradition of respecting religious conscience rights.
RELIGIOUS GROUPS FILE BRIEF TO PROTECT RELIGIOUS LIBERTY IN NEW YORK CITY
Religious organizations, many of whom represent hundreds of New York City religious congregations, filed an amicus brief on October 10, 2012 to protect religious groups’ right to rent school facilities on the same basis as other community groups. The New York City Board of Education discriminatorily excludes any group that wishes to meet for a “religious worship service” on weekends or in the evenings. Organized by CLS, the friend-of-the-court brief was joined by thirteen other religious organizations. The brief was filed in the United States Court of Appeals for the Second Circuit in Bronx Household of Faith v. Bd. of Educ. of the City of New York. The brief urged the Second Circuit to protect the religious freedom of New York City congregations to meet for religious worship services on weekends in empty public schools and to uphold the injunction entered by the federal district court on June 29, 2012.
CLS FILES BRIEF IN RUILPA CASE
On August 9, 2012, CLS filed an amicus brief in Rich v. Secretary, Florida Dept. of Corrections, to protect a Jewish prisoner's ability to observe kosher dietary requirements. The federal Religious Land Use and Institutionalized Persons Act ("RLUIPA") requires any prison that receives federal funds to accommodate prisoners' religious observances. A prison may avoid RLUIPA’s requirements by not taking federal funding or by demonstrating it has a compelling reason, such as prison security, that justifies a refusal to accommodate a specific prisoner’s religious request. CLS's brief argued that prison officials in this case failed to justify denying kosher meals to Jewish prisoners. Although the prison claims that kosher meals would cost too much, in reality, the prison increases funding by respecting prisoners' religious needs in exchange for federal funding.
TWO WINS FOR RELIGIOUS FREEDOM IN THE PUBLIC SCHOOLS
This week CLS participated in two court victories protecting religious liberty in public schools – in New York City and Spartanburg, South Carolina.
A New York federal district court today issued a permanent injunction requiring New York City’s Board of Education to stop discriminating against churches that wish to rent school facilities for weekend use on the same basis as other community groups. For over 15 years, the Board has tried to deny churches their First Amendment right of equal access to government facilities otherwise available to other community groups. CLS’s amici brief in support of Bronx Household of Faith was joined by several co-amici. An expedited appeal to the Second Circuit is expected this summer, in which CLS will again file a brief.
In the second victory, the Court of Appeals for the Fourth Circuit upheld the constitutionality of a public school district accepting elective credits for high school students’ participation in a released time program in Spartanburg, South Carolina. If the Establishment Clause challenge had been successful, public schools’ acceptance of credits for students transferring from religious private schools might have been challenged next. Jim Lehman and Jay Thompson of Nelson Mullins Riley and Scarborough LLP in Columbia, South Carolina, filed an amici brief on behalf of CLS and its co-amici the National Committee for Furtherance of Jewish Education, National Association of Evangelicals, and Advocates for Faith and Freedom.
EDUCATION AND RELIGIOUS GROUPS RELEASE GUIDELEINES REGARDING BULLYING AND FREEDOM OF EXPRESSION IN PUBLIC SCHOOLS
On May 22, 2012, CLS joined a diverse group of religious and education groups, as well as two highly respected academic centers, to release a new publication entitled Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools. After months of deliberation, 17 organizations reached a commendable consensus for protecting freedom of expression while also punishing bullying and harassment. The purpose of the guidelines is to assist public school educators in their dual mission of protecting all students from bullying and harassment while simultaneously respecting all students’ legitimate freedom of expression, including religious speech. These guidelines provide teachers and administrators with balanced, reasonable criteria for protecting our Nation’s commitment to freedom of speech and religious liberty while protecting all students from harmful bullying and harassment. “The guidelines offer a valuable tool for teaching students to respect other students’ ideas and values, including religious beliefs, which may differ from their own,” said Kim Colby, senior counsel for Christian Legal Society. “Most importantly, the guidelines reinforce the vital cultural and religious pluralism that is essential to our democracy.”
CLS FILES BRIEF TO PROTECT CHURCHES' WORSHIP SERVICES
On April 20, 2012, CLS filed an amici brief supporting the right of New York City churches to rent school facilities for their weekend religious worship services. Many congregations rent school facilities for their religious worship services when they are just beginning to form, have outgrown their old facilities, or have suffered flood or fire. While most school districts welcome churches’ use of their facilities on weekends, for seventeen years, New York City’s Board of Education has tried to ban churches from meeting in the public schools on the weekends. In a recent decision, the Second Circuit allowed New York City’s Board of Education to target “religious worship services” for denial of access, even though hundreds of community groups rent school facilities for a variety of uses. The decision applies to New York, Connecticut, and Vermont, but could easily spread across the country.
Last December, the U.S. Supreme Court refused to review the Second Circuit decision, despite the urging of CLS and its amici to consider the churches’ free speech claim of equal access to government facilities. In January, however, the Supreme Court issued its robust decision in Hosanna-Tabor Evangelical Lutheran Church and School, which enforced the Religion Clauses’ protection of churches’ internal governance. In February, Bronx Household of Faith asked the district court to consider its free exercise claim, which had not been ruled upon earlier, particularly in light of Hosanna-Tabor. In March, the district court issued a preliminary injunction in favor of the New York churches and is now considering issuance of a permanent injunction.
SENATE VOTES AGAINST PROTECTING RIGHTS OF CONSCIENCE
Today, by a vote of 51-48 the Senate decided to table the Blunt Amendment. The Blunt Amendment would have amended the Patient Protection and Affordable Care Act (the 2010 health reform law) to protect rights of conscience. The amendment provided that mandated health plans need not cover items or services contrary to the religious beliefs of the issuer, purchaser, or beneficiary of the plan. The amendment also allowed health plans to safeguard healthcare providers’ rights of conscience.
On February 29, CLS sent a letter to all senators expressing its support for the amendment named for its lead sponsor, Senator Blunt of Missouri. The religious liberty community, including CLS, united in opposition to the extremely narrow exemption. On February 10, the President announced a "compromise" that simply made the narrow exemption final and left the previous policy in place. The "compromise" was to allow some religious employers an additional year -- until after the election -- to comply. During this time further discussions are to occur with an Administration that has been tone-deaf to religious liberty concerns.
Last August, the Administration announced regulations requiring all employers' health plans to cover contraceptives, including drugs that many consider to be abortifacients. The exemption for religious employers is limited to religious entities who serve only persons of the same faith, employ only persons of the same faith, and inculcate religious values -- a redefinition of "religious employer" that leaves Christian colleges, hospitals, homeless shelters, and even many churches unprotected.
PROTECTING RELIGIOUS GROUPS ON CAMPUS
CLS filed an amici brief with the U.S. Supreme Court, urging it to protect student religious groups’ right to choose leaders who agree with the groups’ religious beliefs. The Ninth Circuit has ruled that a public university may exclude religious student groups from campus because they have religious requirements for their officers and members.
In a decision reported at 648 F.3d 790 (9th Cir. 2011), the Ninth Circuit held that a public university could apply its nondiscrimination policy to deny recognition to a Christian fraternity and a Christian sorority because of their faith requirements for leaders and members. The panel observed that CLS v. Martinez did not reach the question of the application of nondiscrimination policies to religious student groups. The court went on to conclude, however, that the Martinez analysis should nonetheless be applied and held that the First Amendment was not violated by the university’s exclusion of the two groups -- unless the groups show on remand that the university applied the nondiscrimination policy unevenly, by recognizing other groups that violated the nondiscrimination policy, while excluding religious groups because they were religious.
Judge Ripple of the Seventh Circuit, sitting by designation, concurred because he agreed with the panel that its decision in Truth v. Kent School District compelled its result (which it does not), but then proceeded to provide an outstanding explication of why viewpoint discrimination occurs when a university applies nondiscrimination policies to prevent religious groups from selecting leaders who agree with the groups’ beliefs.
UNANIMOUS VICTORY IN SUPREME COURT
The Supreme Court unanimously held that the First Amendment bars employment discrimination suits brought on behalf of ministers against churches, a concept known as the “ministerial exception.” CLS had filed an amici brief in support of churches’ right to decide who their ministers will be and religious schools’ right to decide who their teachers will be. The Court’s decision in Hosanna-Tabor Evangelical Church and School v. Equal Employment Opportunity Commission is here, and CLS’s amici brief is here. The Court held that the “ministerial exception” exists and is anchored in both the Free Exercise and Establishment Clauses. The Court further held that a teacher at a religious school, who had been commissioned a minister by the church that controlled the school, was a “minister” under the ministerial exception; therefore, the teacher’s discrimination lawsuit against the school must be dismissed. Opposing the church and school, the United States government argued that if a ministerial exception existed, it was extremely narrow and applied only to employees who perform exclusively religious functions. The Supreme Court rejected that argument, noting that it was “unsure whether any such employees exist.” At oral argument, Chief Justice Roberts asked the government’s attorney whether the Pope would be a minister under its proposed test. The government also claimed that the Free Exercise Clause provided no protection for a church’s employment decisions. The government’s brief is here.
ELEVENTH CIRCUIT SAYS RELIGIOUS GROUP IS PREVAILING PARTY FOR PURPOSES OF FEES AWARD
The Eleventh Circuit Court of Appeals has reversed the district court’s denial of prevailing party status for attorneys’ fee purposes in Beta Upsilon Chi v Machen, 586 F.3d 908 (11th Cir. 2009). CLS attorneys represented the Christian fraternity Beta Upsilon Chi (“BYX”) in challenging its denial of recognition by the University of Florida because of its requirement that its members and leaders share its religious beliefs. In 2008, the district court denied a preliminary injunction on the merits. On appeal, the Eleventh Circuit granted an injunction pending appeal. Six weeks after the oral argument in the Eleventh Circuit, during which the panel appeared likely to rule in BYX’s favor, the University of Florida reversed course and adopted a new policy, allowing religious groups to have religious requirements for their leaders and members. The Eleventh Circuit then ruled that the new policy mooted the case. The district court determined that BYX was not a prevailing party except for the limited work done on the injunction pending appeal. Now the Eleventh Circuit has reversed and determined that BYX is the prevailing party, and the case returns to the district court.
MONTANA LAW SCHOOL AGREES TO ADOPT REFORMS TO SETTLE LAWSUIT WITH CHRISTIAN STUDENT GROUP
The law school at the University of Montana has agreed to several reforms to their system of allocating funding to student groups, prompting Christian Legal Society and Alliance Defense Fund attorneys representing the CLS student chapter to withdraw a federal lawsuit, Christian Legal Society v. Russell. The reforms include many safeguards that will ensure that funds from student activity fees are distributed in a manner that does not unconstitutionally discriminate on the basis of the student group’s viewpoint and beliefs.
CLS URGES THE PRESIDENT TO PRESERVE RELIGIOUS GROUPS’ RIGHTS TO BE RELIGIOUS
CLS joined a letter to President Obama encouraging him to continue the federal government's long-standing policy of allowing religious groups to participate in federal grant programs without forfeiting their ability to hire workers who agree with the groups' religious beliefs. CLS assisted in crafting this significant religious liberty statement. Federal programs often distribute funds through private secular and religious organizations to assist persons who are underprivileged, addicted, abused, or ill. Yet several activist groups have pressured the Obama Administration to force religious groups to choose between their faith-based hiring needs and participation in federal programs to help the underprivileged. On June 21, 2011, these opposing groups sent yet another letter to the President asking him to deny participation to religious groups with faith-based hiring practices. In a strong response, the July 14, 2011 letter -- signed by dozens of religious groups from across the faith and political spectrum -- urged the President to resist such a detrimental change. The letter respectfully reminded the President that religious liberty is itself a vital civil right and that faith-based hiring by religious groups has always been safeguarded in federal law and policy. Specifically, the letter assured the President that protecting faith-based hiring "upholds fundamental civil rights principles by eschewing the discrimination against religious organizations that would result if religious groups were denied eligibility to compete for federal contracts because they maintain their religious identity in their staffing decisions." The complete letter is here.
CLS FILES BRIEF TO PROTECT CHURCHES’ AND RELIGIOUS SCHOOLS’ HIRING DECISIONS
On June 20, 2011, CLS filed an amici brief in Hosanna-Tabor v. EEOC urging the government to protect the right of religious schools to employ the teachers who will best convey faith to students without governmental interference. The brief reminded the Supreme Court that every religious community is a mere generation away from extinction. Teachers in religious schools are commonly on the front line of conveying the faith to children. Given our nation's deeply rooted commitments to religious freedom and church-state separation, an employment-related lawsuit in a civil court is not a permissible vehicle for second-guessing a religious community's decision about who should be responsible for teaching religious belief to the next generation. The issue of whether the government may veto churches' and religious schools' employment decisions is a vital one. Click here to read the brief.
CLS SUPPORTS DOCTORS’ RIGHT TO NOT PARTICIPATE IN ABORTIONS
With the vote on HR 3 scheduled for this afternoon, CLS has signed onto a letter urging members of the U.S. House of Representatives to protect the right of doctors and nurses to refuse to participate in abortions. HR 3 would make permanent the Hyde/Weldon protections for health care workers' rights of conscience in the abortion context. HR 3 also would make permanent the Hyde Amendment ban on taxpayer funding of abortions.
SUPREME COURT WEAKENS PRISONERS’ RELIGIOUS FREEDOM
On April 20, 2011, the Supreme Court ruled that prisoners cannot obtain money damages against a State when it violates prisoners' religious rights under the federal Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The decision in Sossamon v. Texas, No. 08-1438, is here. CLS had filed an amici brief arguing that damages provide an important deterrent to state action that infringes prisoners' religious freedom. Click here to read the brief. With no fear of monetary damages, a State may ignore its responsibilities under RLUIPA until it is on the verge of losing a prisoner lawsuit. At that point, it may simply cease the violation without incurring any penalty for its RLUIPA violation. In this particular case, the State of Texas conceded that it had limited prisoners' use of the prison chapel and denied certain prisoners access to religious services, both in violation of RLUIPA.
CLS FILES BRIEF IN SUPPORT OF JEWISH PRISONER
Coinciding with the beginning of Passover, on April 19, 2011, CLS filed an amici brief in Willis v. Commissioner to protect a Jewish prisoner's ability to observe the kosher requirements of his faith. An Indiana prison stopped providing any kosher meals, claiming that the cost had become too great. Under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), any prison that receives federal funds must to accommodate prisoners' religious observances, unless the prison can demonstrate a compelling reason, such as prison security needs. CLS's brief argued that prison officials failed to demonstrate a sufficiently compelling interest to justify denying kosher meals to Jewish prisoners. The brief pointed out that, in exchange for federal funding, a prison agrees to accommodate prisoners' religious needs, so that the prison actually increases its funds by agreeing to respect prisoners' religious needs. Click here to read the brief.
CLS FILES BRIEF FOR STUDENTS’ RELIGIOUS SPEECH
On April 15, 2011, CLS filed an amici brief in Morgan v. Swanson supporting the right of elementary students to express their faith while at school. Students were allowed to distribute small gifts to their classmates at a "winter holiday" party at school. When three students tried to distribute pencils with the message "Jesus is the Reason for the Season" or candy canes with a message about its religious symbolism, two principals allegedly confiscated their gifts. The Fifth Circuit correctly held that the Supreme Court has clearly established that public school officials may not engage in viewpoint discrimination against elementary students' religious speech when the speech is not disruptive and not promoted by the school. That earlier decision Morgan v. Swanson is here. But then the Fifth Circuit decided to rehear the case en banc. Click here to read the brief filed in the en banc rehearing.
SUPREME COURT RELIGIOUS LIBERTY WIN
The Supreme Court, on April 4, 2011, announced an important decision for religious liberty. In a 5-4 decision written by Justice Kennedy, the Court held that state taxpayers lacked standing to challenge a state program allowing tax credits for state taxpayers' contributions to school tuition organizations that provided scholarships to private schools, including religious schools. Justices Scalia and Thomas concurred but would have overruled Flast v. Cohen, 392 U.S. 83 (1968). In dissent, Justice Kagan wrote on behalf of Justices Breyer, Ginsburg, and Sotomayor, urging that the taxpayers had standing under Flast. CLS had filed an amici brief in support of the program's constitutionality. Click here to read the brief.