FELLOWSHIP OF CHRISTIAN ATHLETES LAWSUIT UPDATE
After the Ninth Circuit Court of Appeals ruled that the San Jose School District must recognize the Fellowship of Christian Athletes (FCA) as student group, the school district filed a petition for a rehearing. In November, the Center filed FCA’s response to the petition.
CENTER FILES AMICUS BRIEF IN PENNSYLVANIA'S ONGING ABA MODEL RULE 8.4(g) CASE
The Center filed an amicus brief in Greenberg v. Lehocky, which is on appeal to the Third Circuit after a federal district court judge ruled that Pennsylvania’s newest misconduct rule – a version of ABA Model Rule 8.4(g) – is unconstitutional. The Center's brief urged the Third Circuit to uphold the district court’s ruling, as Pennsylvania Rule 8.4(g) is unconstitutional under U.S. Supreme Court precedent.
CENTER FILES MORE AMICUS BRIEFS
The Center followed up September's strong amicus brief filings with two more in early October:
- Groff v. DeJoy: On writ of certiorari to the U.S. Supreme Court, CLS filed a brief arguing that the Third Circuit erred when it relied on TWA v. Hardison to find that the USPS was not required to provide Groff a reasonable accommodation to observe the Sabbath because doing so would have caused an undue hardship.
- Klein v. Oregon Bureau of Labor and Industries: Also on writ of certiorari to the U.S. Supreme Court, in this brief, CLS urged the Court to take the case and use it as an opportunity to overrule Employment Division v. Smith, 494 U.S. 872 (1990), where the Court effectively eliminated the constitutional right to exercise religion, replacing religious freedom promised by the Free Exercise Clause with equal protection.
CENTER FILES AMICUS BRIEFS
The Center filed amicus briefs in several cases:
- Young Israel v. Hillsborough Regional Transit Authority: In an appeal to the Eleventh Circuit, CLS filed a brief in which it argued that HART’s policy forbidding advertisements that primarily promote a religious faith or religious organization is viewpoint discrimination and also discriminates against religion in violation of the Free Exercise Clause.
- Thai Meditation Association. v. City of Mobile: Also on appeal to the Eleventh Circuit, here CLS argued that the city’s denial the association’s application to build a mediation center violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) because the denial effectively deprives the plaintiffs of any viable means by which to engage in protected religious exercise.
- Charlotte Catholic High School v. Billard: In this case, the district court had ruled in favor of a teacher who alleged sexual discrimination under Title VII when the school removed him from the substitute teacher list after he posted publicly that he was marrying his same-sex partner and also criticized Catholic teaching. On appeal to the Fourth Circuit, CLS submitted a brief arguing that the district court erred because the Religious Freedom Restoration Act (FRFA) protects the high school’s actions.
CENTER FILES COMMENT LETTER OPPOSING NPRM
The U.S. Department of Health and Human Services (HHS) has proposed new regulations, as well as amendments to existing regulations, pertaining to discrimination as prohibited by the Patient Protection and Affordable Care Act (“ACA”). In response, CLS, in conjunction with the Thomas More Society and the National Association of Evangelicals, submitted comments providing reasoning as to why HHS should not adopt the proposed regulations.
HELPING CLS STUDENT CHAPTERS WITH CAMPUS ACCESS ISSUES
Leaders at Arizona State University and the University of Wisconsin recently denied re-recognition to Christian Legal Society Law Student chapters on their campuses. The Center issued letters to both universities explaining how their failure to recognize the CLS Law Student chapters violates federal regulations and federal case law.
CLS OPPOSES PROPOSED DEPARTMENT OF EDUCATION RULE CHANGES
The U.S. Department of Education (Department) is proposing amendments to the regulations implementing Title IX of the Education Amendments of 1972 to expand the scope of sex discrimination to include discrimination based on sexual orientation and gender identity. In response, CLS, in conjunction with the Thomas More Society and the National Association of Evangelicals, submitted comments providing reasoning as to why the Department should not adopt the proposed regulations.
WIN FOR FCA
On August 29, the Ninth Circuit Court of Appeals released its opinion ordering the San Jose School District to recognize the Fellowship of Christian Athletes as student group. School district officials had derecognized the FCA group because the school officials did not like its religious beliefs (while at the same time recognizing a Satanic Temple Club as an official club). The court’s ruling means that school officials cannot discriminate against FCA students and their religious leadership standards under the First Amendment and the Equal Access Act.
FCA LAWSUIT UPDATE
CLS continues to represent the Fellowship of Christian Athletes (FCA) in San Jose County. After the California district court judge denied FCA's preliminary injunction motion in this lawsuit against school district officials who derecognized the FCA group because the school officials did not like its religious beliefs (while recognizing a Satanic Temple Club as an official club), plaintiffs filed an appeal with the Ninth Circuit, including a motion for an injunction pending appeal. The appeal was argued August 9, 2022, before a three-judge panel, at which plaintiffs requested the panel issue an emergency ruling by August 15. An emergency ruling in favor of plaintiffs would allow FCA to re-apply as an official club for the coming year.
SEVENTH CIRCUIT FINDS IN FAVOR OF THE MINISTERIAL EXCEPTION
On July 28, the Seventh Circuit upheld the district court decision in Starkey v. Roman Catholic Archdiocese of Indianapolis, a case in which CLS had filed an amicus brief. The lower court had granted summary judgment dismissing Starkey’s employment discrimination suit, finding for the school and the archdiocese on the basis of the ministerial exception because the undisputed facts showed Starkey performed vital religious duties. Two of the judges on the Seventh Circuit panel agreed with the trial judge that the ministerial exception governed this case, and the third judge in a concurrence thought that the Title VII religious exemption doomed Ms. Starkey’s claim.
DISTRICT COURT PROTECTS CAMPUS FREE SPEECH
A federal court in Idaho granted a preliminary injunction in favor of students at the University of Idaho. CLS, along with attorneys from Alliance Defending Freedom, represent the students, who are members of the CLS Law Student Chapter at the university, and their chapter advisor after the university issued no-contact orders against them for expressing biblical views on marriage at a campus event. The court ordered the university to rescind the no-contact orders while the case, Perlot v. Green, continues. In doing so, the court found that “the University overstepped when it issued the no-contact orders against” the students.
CLS SUBMITS BRIEF SUPPORTING THE MINISTERIAL EXCEPTION
The Center joined an amicus brief filed in support of a petition for rehearing en banc in a case involving the ministerial exception after the Tenth Circuit issued a 2-1 ruling in Tucker v. Faith Bible Chapel, allowing a former chaplain to move ahead with suing his Denver-area religious school under Title VII after he was terminated over a dispute about how he led a chapel service. The court ruled the school couldn’t appeal the loss of its ministerial exception defense below and would have to go to jury trial. The brief argues that the court committed several errors including: (1) treating the ministerial exception as any other affirmative defense; (2) rejecting the immunity-like nature of the exception, which justifies interlocutory review; (3) ignoring the unconstitutional burdens and intrusion of litigating religious issues, which numerous other circuits have readily recognized; (4) refusing to acknowledge that the ministerial exception is a “structural” limitation on court powers; and (5) leaving constitutional religious defenses to be reviewed only after final judgment, when irreparable harm to religious bodies will have necessarily occurred.
U.S. SUPREME COURT FINDS FOR COACH IN SCHOOL PRAYER CASE
On June 26, the U.S. Supreme Court recognized a coach’s First Amendment right to pray on the field after football games in Kennedy v. Bremerton School District. In a 6-3 opinion by Gorsuch and joined by Roberts, Thomas, Alito, and Barrett, and in part by Kavanaugh, the Court held that the Bremerton School District violated the First Amendment’s Free Exercise and Free Speech Clauses by firing Coach Joseph Kennedy for kneeling on the football field after a game for a personal silent prayer. Since being hired in 2008, Kennedy offered a personal prayer at midfield after each game. CLS previously filed an amicus brief in support of Coach Kennedy.
U.S. SUPREME COURT OVERTURNS ROE AND CASEY
On June 24, the U.S. Supreme Court overturned both Roe v. Wade and Planned Parenthood v. Casey, ruling that there is no constitutional right to abortion. CLS previously submitted an amicus brief in this case, Dobbs v. Jackson Women’s Health, and now commends the decision of the High Court to return the authority to regulate to the states, and ultimately, the people. CLS’ Executive Director David Nammo shared, “Today is a great day for life, a day for which many have fought for far too long. The Roe decision has long been regarded as overreaching and political. Today is a day to start anew. We encourage every person to value life today – all life – including the lives of those that disagree with you. While today is emotional for many, we believe there is good is ahead.” CLS issued a press release heralding the much-anticipated decision.
U.S. SUPREME COURT RULES IN FAVOR OF RELIGIOUS EDUCATION CHOICES
On June 21, the U.S. Supreme Court ruled that Maine’s tuition assistance program violated the Free Exercise Clause because it excluded religious schools from the program, overturning the previous U.S. Court of Appeals ruling. In a 6-3 decision by Roberts, and joined by Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, the Court held that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.
"The state pays tuition for certain students at private schools – so long as the schools are not religious," Roberts wrote. "That is discrimination against religion."
In so ruling, the Court held that Maine’s program could not survive strict scrutiny, and that the principles the Court applied in Trinity Lutheran Church of Columbia v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020) resolved the case at hand. The Court found that Maine’s antiestablishment interest did not justify excluding members of the community from an otherwise generally available public benefit simply because of their religious exercise. CLS had previously filed an amicus brief in favor of the families who wished to send their children to religious schools.
FCA LAWSUIT UPDATE
CLS continues to represent the Fellowship of Christian Athletes (FCA) in San Jose County. The California district court judge denied FCA's preliminary injunction motion in this lawsuit against school district officials who derecognized the FCA group because the school officials did not like its religious beliefs (while recognizing a Satanic Temple Club as an official club). Plaintiffs have filed an appeal with the Ninth Circuit, as well as a motion for an injunction pending appeal.
CLS SUBMITS BRIEF SUPPORTING PRISONER’S RELIGIOUS RIGHTS
The Center filed an amicus brief with the U.S. Supreme Court in support of a Muslim prisoner denied the right to grow a full beard. At issue in the case, Smith v. Ward, is whether the Eleventh Circuit erred in applying the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it held that Georgia need not grant a religious accommodation – growing a full-length beard – offered in 39 other prison systems. CLS was instrumental in drafting and passing RLUIPA in the 90s.
CLS FILES BRIEF SUPPORTING RELIGIOUS FREEDOM
The Center filed an amicus brief with the U.S. Supreme Court on behalf of a web designer who does not want to design websites advertising same-sex marriages because of religious conviction. The sole “state interest” the Tenth Circuit supported is “preventing ongoing discrimination against LGBT people.” The brief argues that the refusal to provide a service or product because of what it is, rather than because of who requested it, is not, as a matter of constitutional fact, discrimination against a group based on that group’s identity. The distinction is important for maintaining liberty, including religious freedom and free speech. The case is 303 Creative v. Elenis, and Free Speech Advocates joined CLS on the brief.
CENTER SUPPORTS CLS STUDENTS IN IDAHO
The Center and Alliance Defending Freedom are representing three Christian law students and a professor who received no-contact orders from the university because they expressed a biblical view of marriage. The CLS students and the professor, who is the chapter’s faculty advisor, filed suit against officials at the University of Idaho for violating their First Amendment rights. A hearing on the preliminary injunction to stop enforcement of the orders was held in late May.
CLS URGES MISSOURI SENATE TO CONSIDER CAMPUS ACCESS LEGISLATION
The Missouri Senate currently has before it HB 1724, which passed the Missouri House on May 3, 2022. HB 1724 will protect the ability of religious students to meet on public college campuses. The Center submitted letters to both the senate majority leader and the senate president pro tem urging them to bring HB 1724 to the Missouri Senate floor for debate and vote.
CLS SUBMITS COMMENT LETTER TO NEBRASKA SUPREME COURT
On May 2, CLS submitted a comment letter to the Nebraska Supreme Court urging it to not adopt the proposed revision to rule § 3-804 of the Nebraska Rules of Professional Conduct. The Nebraska Attorney General also submitted a letter to the Nebraska Supreme Court recommending that the court not adopt the proposed amendments. Attorney General Peterson called the proposed amendment "unconstitutional" and opined that the "sweeping scope and vague language [of the proposed rule] will chill attorneys' constitutionally protected speech throughout Nebraska."
U.S. SUPREME COURT SETS DATE IN COACH KENNEDY CASE
The Supreme Court is scheduled to hear oral arguments in Kennedy v. Bremerton School District on April 25, 2022. The Center previously filed an amicus brief in support of Coach Kennedy. To listen to the arguments live or at a later date, argument audio is available at CSPAN.
U.S. SUPREME COURT FINDS IN FAVOR OF PRISONER'S RELIGIOUS FREEDOM
In an 8-1 decision in Ramirez v. Collier, the U.S. Supreme Court ruled that a prisoner on death row in Texas can have his pastor touch him and pray out loud while he is being executed, finding that “Ramirez is likely to succeed on his RLUIPA [Religious Land Use and Institutionalized Persons Act] claims because Texas’s restrictions on religious touch and audible prayer in the execution chamber burden religious exercise and are not the least restrictive means of furthering the State’s compelling interests.” Chief Justice Roberts, writing for the Court, observed that “there is a rich history of clerical prayer at the time of a prisoner’s execution” and that while prison officials may have a strong interest “in monitoring an execution and responding effectively during any potential emergency,” they have not shown the need to ban all audible prayer in the execution chamber to advance that interest. Indeed, Roberts noted, there are other ways to do so – for example, by limiting the volume of prayers or requiring spiritual advisers to remain silent at key moments. Roberts also noted that the same is true for the state’s ban on allowing the pastor to lay hands on inmates. Although the state’s interests, such as security and preventing interference with the intravenous line in the inmate’s arm, are “commendable,” Roberts acknowledged, there are other ways to address these concerns, such as requiring the spiritual adviser to limit his touch to the inmate’s leg. CLS had filed an amicus brief addressing the Religious Land Use and Institutionalized Person’s (RLUIPA’s) protections for the prisoner’s free exercise.
U.S. SUPREME COURT DECLINES TO HEAR SEATTLE'S UNION GOSPEL MISSION'S CASE
The Supreme Court decided not to the case of a Seattle-based Christian organization that was sued after declining to hire a bisexual lawyer who applied for a job. A state trial court judge ruled for Seattle’s Union Gospel Mission (SUGM) and dismissed the lawsuit., ruling that the organization is exempt from the state’s anti-discrimination law, but the Washington Supreme Court reversed the decision and let the lawsuit go forward. While the U.S. Supreme Court declined to hear the case, two justices, Justice Samuel Alito and Justice Clarence Thomas, agreed with the decision not to hear the case at this stage but said that “the day may soon come” when the court needs to confront the issue the case presents. CLS had filed a brief in support of SUGM's - and all faith-based legal aid clinics - First Amendment right to hire staff that agrees with their religious mission and beliefs, particularly Christian attorneys.
CLS SUBMITS BRIEF SUPPORTING THE FREE EXERCISE OF RELIGION
On March 3, the Center filed an amicus brief with the U.S. Supreme Court in Kennedy v. Bremerton School District. Coach Joe Kennedy was an assistant football coach for Bremerton High School, who, after his first football game in 2008, waited until the players had cleared the field before he took a knee and silently thanked God for his players in a brief prayer. Kennedy continued this practice for seven years. No students, coaches, or parents ever complained about the practice. When the practice came to the attention of school officials (after seven years), the Bremerton School District ordered Kennedy to stop praying, saying his conduct could be perceived as government endorsement of religion. When he refused, the district suspended – and later fired – Coach Kennedy over his brief prayers. Coach Kennedy filed a lawsuit defending his First Amendment right to engage in private religious expression. Both the District Court and the Ninth Circuit found for the school district, with the Ninth Circuit concluding that the school district’s goal of avoiding a purported Establishment Clause violation justified the district’s religious discrimination and trumped Kennedy’s rights under the Free Exercise Clause. Oral arguments are expected to be held in April 2022.
EQUAL ACCESS RULES FOR STATE INSTITUTIONS OF HIGHER LEARNING
The Center anticipates that the Department of Education will publish in April a Notice of Public Rulemaking (NPRM) that addresses the existing equal access rules for state institutions of higher education. Former Center Director Kim Colby was responsible for the existing regulation, something she achieved during the Trump Administration. The NPRM has been received by the Office of Information and Regulatory Affairs at OMB as of February 16, and the 90-day clock is running for the OMB to complete its work and get the draft rule back to the Department of Education so it can, in turn, publish the NPRM. The Center anticipates the Biden Administration will adversely modify or even eliminate the equal access regulation. If this is the case, the Center will file written comments to the NPRM once published in the Federal Register.
NEW ABA LAW SCHOOL ACCREDITATION STANDARDS
On February 14, the ABA House of Delegates approved changes to its law school accreditation standards. The first change requires each law school to provide training in cross-cultural competencies, bias, and racism when students begin law school and at least once more during their law school career. The second change is the requirement that law schools must have policies that prohibit “actions” that preclude the admission or retention of students on the basis of sexual orientation or gender identity or expression and that “foster and maintain equality of opportunity for students” without discriminating based on sexual orientation or gender identity or expression. Although the new standards carve out a religious exception, this exception may not be applied to preclude admission or retention of students based on sexual orientation or gender identity or expression and is limited to where the SOGI non-discrimination policy is contrary to the “essential elements of the religious values and beliefs held by the school.”
PROTECTING MISSOURI COLLEGE STUDENTS
The Center provided written testimony to the Missouri House Higher Education Committee in support of legislation that would protect religious student organizations.
COMMONWEALTH OF VIRGINIA CHANGES POSITION IN KEY ABORTION CASE
On January 21, Attorney General Jason S. Miyares submitted a letter from the Commonwealth of Virginia to the U.S. Supreme Court notifying the Court of the Commonwealth’s change in position in Dobbs v. Jackson Women's Health Organization. The purpose of the letter was to notify the Court that Virginia no longer adheres to the arguments contained in its previously filed brief and is now of the view that the Constitution is silent on the question of abortion, meaning that it is up to the people in the States to determine the legal status and regulatory treatment of abortion. The letter urges the Court to reverse the Fifth Circuit's ruling in the case. CLS previously filed an an amicus brief in the case urging the Court to overrule Roe v. Wade and Planned Parenthood v. Casey. The Court heard oral arguments in the Dobbs case on December 1, 2021.
CENTER SIGNS LETTER OPPOSING PROPOSED HHS RULE CHANGES
The Center signed onto a letter that provided comments regarding a proposed rule, published in 87 Fed. Reg. 584 (Jan. 5, 2022), which would amend HHS regulations to prohibit health exchanges, issuers, agents, and brokers from discriminating based on sexual orientation and gender identity. The signatories to the letter – the United States Conference of Catholic Bishops, Christian Legal Society, National Association of Evangelicals, National Association of Catholic Nurses, U.S.A., The National Catholic Bioethics Center, and Thomas More Society – object to language in the proposed regulations that can be read to mandate to cover gender transition procedures.
CLS SUBMITS AMICUS BRIEF SUPPORTING A SCHOOL'S FREE EXERCISE OF RELIGION
On January 18, CLS filed an amicus brief in Starkey v. Roman Catholic Archdiocese of Indianapolis. Lynn Starkey was the co-director of guidance counseling at Roncalli High School, a Catholic school operated for religious and educational purposes by the Archdiocese of Indianapolis. The high school declined to renew Starkey's contract when it was up for renewal because Starkey was in a same-sex marriage in violation of both her contract and Catholic teaching. Starkey sued Roncalli High School and the Archdiocese of Indianapolis alleging discrimination based on sexual orientation. The district court granted summary judgment dismissing Starkey’s employment discrimination suit, finding for the school and the archdiocese on the basis of the ministerial exception because the undisputed facts showed Starkey performed vital religious duties. Starkey appealed to the Seventh Circuit Court of Appeals. While CLS fully supports that conclusion, CLS' amicus brief focused on an alternative ground for affirming the decision, namely, the Religious Freedom Restoration Act (“RFRA”), which prohibits the federal government from imposing a substantial burden on religious exercise unless the application of that burden furthers a compelling governmental interest and does so by the least restrictive means. The brief pointed out that whether or not Starkey is a “minister,” the undisputed facts show the religious importance of her job functions and that penalizing the Archdiocese for dismissing her would substantially burdens its religious exercise. Special thanks to Professor Tom Berg and his students in the Religious Liberty Appellate Clinic at the University of St. Thomas (Minnesota) School of Law for their dedication in drafting CLS’ brief.
NEBRASKA SUPREME COURT CONSIDERS PROPOSAL TO AMEND ITS MISCONDUCT RULE
The Women in the Law Section of the Nebraska State Bar Association (NSBA), in consultation with the Nebraska Counsel for Discipline, drafted a proposed revision to rule § 3-804 to more specifically prohibit harassment and discrimination. The NSBA House of Delegates voted to petition the Nebraska Supreme Court to consider these proposed revisions. Prior to considering the petition, the Nebraska Supreme Court has posted the NSBA’s proposed revisions for comment. Anyone desiring to submit a public comment for the Supreme Court’s consideration should do so via email to email@example.com, with the following text listed in the email subject line: Neb. Ct. R. of Prof. Cond. § 3-508.4. Misconduct. Comments will be accepted through May 2, 2022.
CLS SIGNS ONTO LETTER OPPOSING BIDEN'S PICK FOR FDA COMMISSIONER
CLS joined a coalition letter to U.S. Senators requesting they reject the nomination of Dr. Robert Califf for FDA Commissioner. The letter highlights he following: (1) Califf's role in the FDA's 2016 decision to remove critical chemical abortion reporting requirements; (2) how the Califf-approved FDA reporting changes have recklessly undermined data on chemical abortion complications and obscured the true risks of the drug; and (3) exhaustive studies demonstrating the data that the FDA has chosen to use to assess the risk of mail-order abortion is “woefully inadequate.”
NINTH CIRCUIT PROTECTS RIGHTS OF RELIGIOUS EDUCATIONAL INSTITUTION
On December 13, 2021, in an unpublished opinion, a unanimous Ninth Circuit found in favor of Fuller Theological Seminary, thereby protecting the right of the seminary to freely direct its own religious community. Notably, the Ninth Circuit:
- held that Fuller did not need to seek assurance from the Department to claim the religious exemption. (“Reading the regulation to require an advance statement, however, conflicts with the clear language of 20 U.S.C. § 1681(a)(3), DOE’s longstanding practice, and the current text of section 106.12(b). . . . The language of Title IX does not condition an institution’s ability to claim the religious exemption on filing written notice or on any other process—the exemption is mandatory and automatic.”);
- rejected Maxon’s argument that the Title IX religious exemption does not apply to institutions like Fuller that lack an external control organization and is instead governed by a religious board of directors. (“For over 30 years, DOE has maintained that the statute does not contain ‘an independent requirement that the controlling religious organization be a separate legal entity than the educational institution.’”);
- agreed that it would be inappropriate to second-guess the religious beliefs of Fuller to determine whether there was a conflict between Title IX and Fuller’s religious beliefs; and
- held that the district court did not err in dismissing Plaintiffs' complaint because they “could allege no additional facts to save their challenge to Fuller’s differential treatment of same-sex marriages as compared to opposite-sex marriages, since Fuller’s actions fell squarely within Title IX’s religious exemption.”
Plaintiffs had sued Fuller Theological Seminary after the seminary dismissed them from the theology program and refunded their tuition for all classes that were left incomplete at the time of dismissal. In 2020, the federal district court dismissed the claims against Fuller, protecting the rights of religious educational institutions to uphold community standards. On November 3, 2020, Plaintiffs appealed the decision to the U.S. Court of Appeals for the Ninth Circuit. CLS, along with 14 other religious organizations, filed an amicus brief in support of the seminary's right to uphold its community standards.
COMMENT PERIOD ANNOUNCED FOR PROPOSED REPEAL OF CONTRACTOR EXEMPTION
On November 9, the Office of Federal Contract Compliance Programs (OFCCP) announced the proposed repeal of the contractor religious exemption. Comments are due by December 9. The Center will be submitting comments opposing the repeal and urges interested parties to do the same. Comments, identified by RIN 1250-AA09, may be submitted by any of the following methods: Federal eRulemaking Portal (follow the instructions for submitting comments); by fax at (202) 693-1304 (for comments of six pages or less); or by mail to Tina Williams, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, Room C–3325, 200 Constitution Avenue NW, Washington, DC 20210. CLS, along with the National Association of Evangelicals, the Thomas More Society, and the Institutional Religious Freedom Alliance, filed a joint comment letter on December 8.
CLS JOINS AMICUS BRIEF
CLS joined an amicus brief in Shurtleff v. Boston, a case challenging Boston's refusal to let a civic organization display the Christian flag while the organization used the public plaza. The U.S. Supreme Court is scheduled to hear oral argument on January 18, 2022.
IDAHO AGAIN IS CONSIDERING A MODIFIED VERSION OF ABA MODEL RULE 8.4(g)
At their October 9, 2021 meeting, the Idaho State Bar Board of Commissioners voted to support a proposed Resolution (the 2021 Proposed Rule) that would amend Idaho Rule of Professional Conduct 8.4 to include anti‑discrimination and anti‑harassment provisions. At the meeting, the Anti-Discrimination Anti-Harassment Committee of the Idaho State Bar Association's Professionalism & Ethics Section provided a presentation and a memorandum in support of the newly proposed amendment. A similar resolution was previously rejected by the Idaho Supreme Court in 2018.
The Resolution will be voted on by bar members who attend the 2021 Roadshow and will then proceed through the 2021 resolution process as outlined on the Idaho State Bar website. The Roadshow dates and locations are as follows:
1st District, Coeur d’Alene Nov. 4 - noon
2nd District, Moscow Nov. 4 - 6:00 p.m.
3rd District, Nampa Nov. 15 - 6:00 p.m.
4th District, Boise Nov. 16 - Noon (virtual meeting)
5th District, Twin Falls Nov. 10 - 6:00 p.m.
6th District, Pocatello Nov.10 - noon
7th District, Idaho Falls Nov. 9 - noon
CLS is urging Idaho attorneys to attend their district meeting and oppose the proposed Resolution and its proposed changes to Idaho Rule of Professional Conduct 8.4. CLS has prepared a memorandum and a presentation as to why Idaho should not adopt the proposed Resolution.
U.S. SUPREME COURT TO DECIDE CERT IN VIRGINIA CHURCH CASE
At its October 8 conference, the Supreme Court is scheduled to decide whether to grant the cert petition that CLS, a team of Gibson Dunn attorneys (led by Alysson Ho), and a team of First Liberty attorneys filed on August 2. New Life in Christ Church in Fredericksburg, Virginia, seeks review of the city’s denial of a parsonage tax exemption for its college ministers’ home. The city asserted that college ministers are not ministers under the Presbyterian Book of Church Order. It is axiomatic that the First Amendment gives religious congregations, not government officials, the authority to determine who serve as their ministers, as long as their decisions are sincere.
DEPARTMENT OF EDUCATION REVIEW OF CAMPUS ACCESS REGULATION
On August 19, the Department of Education posted on its blog that it is reviewing the Free Inquiry Rule. The campus access regulation, which protects religious student groups on public college campuses, is one component of the Free Inquiry Rule. CLS members did a tremendous job in February 2020 providing comments in support of the campus access regulation, which was adopted as a final rule on September 23, 2020. Two weeks ago, CLS sent a letter that was joined by 17 organizations and urged the Department to leave the campus access regulation as is. A similar letter on behalf of 22 religious campus organizations was sent to the Department on September 29. Please watch the CLS webpage for information in case there is a public comment period during which CLS members, students, and friends again need to express their support for this important regulation.
CENTER FILES AMICUS BRIEF IN "CLERGY IN THE EXECUTION CHAMBER" CASE
On September 8, the Supreme Court on September 8 granted expedited review of Ramirez v. Collier, in which a prisoner seeks to have his pastor pray aloud and lay his hands on him during his execution. CLS filed an amicus brief addressing the Religious Land Use and Institutionalized Person’s (RLUIPA’s) protection of the prisoner’s free exercise. The brief was joined by the National Association of Evangelicals, The Anglican Church in North America, Baptist Joint Committee for Religious Liberty, The Ethics & Religious Liberty Commission of the Southern Baptist Convention, The General Conference of Seventh-day Adventists, Queens Federation of Churches, and The Rutherford Institute. Special thanks to Professor Tom Berg and his students in the Religious Liberty Appellate Clinic at the University of St. Thomas (Minnesota) School of Law for their dedication in quickly drafting CLS’ brief. The Court is scheduled to hear the case November 1.
MAINE FAMILIES CHALLANGE DISCRIMINATORY TREATMENT
Maine pays students’ tuition to attend a different high school - public or private - if students live in a school district that lacks a high school, as is sometimes the case in rural Maine. Maine will not, however, pay tuition if students choose a "sectarian" school. On September 10, CLS filed an amicus brief on behalf of ten other religious or private school organizations. The brief urges the Court to require Maine to treat all Maine parents and children fairly, including those who choose religious schools. Professors Tom Berg and Doug Laycock wrote the brief with the assistance of the students at the Religious Liberty Appellate Clinic at the University of St. Thomas (Minnesota) School of Law. The Supreme Court will hear oral argument on December 8 regarding whether this Maine law that discriminates against religious families violates the Free Exercise Clause.
CLS AND THE CENTER FILE AMICUS BRIEF ON PETITION FOR CERT
Seattle’s Gospel Union Mission provides Christian Legal Aid to those who cannot pay for the legal counsel they need. When hiring a third lawyer for its legal aid clinic, the mission did not hire an applicant because he did not agree with the mission’s religious beliefs regarding marriage. The applicant then sued for sexual orientation discrimination. Washington State has a broad law giving nonprofits an exemption from the state nondiscrimination employment law. While the lower court found in favor of the mission, the Washington Supreme Court overturned the judge’s decision, kicking the case back to the lower court and questioning whether the ministerial exemption applied to a staff attorney at a legal aid clinic within a religious organization. The Center filed a brief urging the U.S. Supreme Court to hear the case arguing that without the Court's review, the ability of religious nonprofits to maintain their religious message and mission is at risk in every state, even where, as in Washington State, statutory exemptions exist.
CENTER DIRECTOR FEATURED ON WASHINGTON WATCH RADIO SHOW
Kim Colby, Director of the CLS’ Center for Law and & Religious Freedom, joined Joseph Backholm, who was filling in for Tony Perkins, on Washington Watch where Kim warned listeners that the Department of Education is poised to revoke protections for campus faith groups (Kim's interview starts at 36:56).
PRO-LIFE WOMEN ATTORNEYS INVITED TO JOIN BRIEF IN U.S. SUPREME COURT
Professors Helen Alvare, Erika Bachiochi, Teresa Collett, and Elizabeth Kirk are preparing a friend-of-the-court brief on behalf of women professionals holding terminal degrees (e.g., J.D., M.D., Ph.D.) and several pro-life feminist organizations in Dobbs v. Jackson Women's Health. The brief argues that the claim in Planned Parenthood v. Casey that abortion must be recognized as part of a woman's liberty interest under due process is based on a provably false premise. Historical and empirical evidence does not support Casey’s claim that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by the availability of abortion in the event that contraception should fail.” Casey was the 1992 Supreme Court decision that reinforced Roe v. Wade.
If you are a woman attorney who is interested in joining, please email your consent to representation as amicus and a short one-line description, including your highest academic degree, the degree awarded, and profession (e.g., Teresa Stanton Collett, University of Oklahoma College of Law, J.D., Professor of Law, University of St. Thomas (MN)) to Elizabeth Kirk at firstname.lastname@example.org.
CLS URGES SUPREME COURT TO OVERRULE ROE v. WADE
CLS filed an amicus brief in Dobbs v. Jackson Women's Health urging the Court to overrule Roe v. Wade and Planned Parenthood v. Casey. Written by Judge Ken Starr and the Robertson Center for Constitutional Law at Regent University, the brief argues that federalism has long protected liberty and sustained our pluralistic society, but open-ended conceptions of substantive due process undermine the fundamental principles of federalism. Abortion jurisprudence provides a singular example of the harms that result when courts sever our history and traditions from substantive due process analysis. Nor can the Court serve the rule of law by preserving precedents that subvert the rule of law and erode democratic discourse.
SUPREME COURT AGREES TO HEAR RELIGIOUS DISCRIMINATION CASE
In March 2021, CLS filed a friend-of-the-court brief urging the Court to review a Maine law that explicitly discriminates against religious schools. On Friday, July 2, the Court announced it would hear the case, Carson v. Makin, this fall. If a student lives in a school district that does not have its own public high school, the State of Maine will pay for the student’s tuition at another school district’s high school or a private secular school of the student’s choice. The Maine law, however, explicitly prohibits paying tuition at a religious school. Despite its seeming contradiction of the Court’s 2020 decision in Espinoza v. Montana Department of Revenue, the First Circuit upheld Maine’s law. CLS' brief was written by Professor Tom Berg and Professor Doug Laycock and was joined by a dozen other religious organizations. We have begun work on the merits amicus brief due in August.
SUPREME COURT UNANIMOUSLY RULES FOR CATHOLIC FOSTER CARE AGENCY
In the most-watched religious freedom case of the 2020 Term, the Supreme Court rules 9-0 in Fulton v. City of Philadelphia that the City of Philadelphia violated the free exercise rights of Catholic Social Services (CSS) when it would not renew its contract with the Catholic organization because of CSS’ religious refusal to certify same-sex couples as placement families. Had any same-sex couple sought its certification, CSS would have referred them to another agency. CLS filed a friend-of-the-court brief in support of CSS and Ms. Fulton, one of CSS’ foster parents. The brief was written by Professor Tom Berg and Professor Doug Laycock and joined by seven other religious organizations.
NEW YORK CONSIDERING ABA MODEL RULE 8.4(g)
The Administrative Board of the New York State Unified Court System proposes to replace New York’s current limited 8.4(g) with the deeply-flawed and highly-criticized ABA Model Rule 8.4(g). The public comment period ends June 18, 2021. Persons wishing to comment should send an email to email@example.com or write to: Eileen D. Millett, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York 10004, by June 18, 2021. For more information, visit the CLS webpage for New York 8.4(g).
CAMPUS ACCESS REGULATION
In 2020, CLS and its members, along with other campus ministries, provided numerous strong comments in support of a new federal regulation to protect religious student groups on public college campuses. In early May, the Department of Justice indicated to a federal district court that the Department of Education is reviewing the rule. Please pray that the Department does not change or weaken the rule, either through guidance or new rulemaking. Watch for future communication from CLS should a new comment period be announced.
MONTANA AND NORTH DAKOTA ENACT LEGISLATION TO PROTECT RELIGIOUS STUDENTS
On April 15, Montana Governor Gianforte signed into law HB 349, which will protect religious student groups’ right to meet on public university campuses. Lt. Gov. Kristen Juras had testified in favor of the bill. The Center also provided written statements in support of the Montana bill.
A day later, North Dakota Governor Burgum signed into law HB 1503, which will protect religious student groups on public college campuses in that state. The Center provided written statements in support of the North Dakota bill.
STATES CONSIDER LEGISLATION TO PROTECT RELIGIOUS STUDENTS
The Montana Legislature has passed HB349 to protect religious student groups meeting on public university campuses. Montana Governor Gianforte is expected to sign it into law. The North Dakota House passed HB 1503 to protect religious student groups. The North Dakota Senate Education Committee held a hearing on the bill last week. The Center provided written statements in support of the Montana law and the North Dakota bill.
GOOD NEWS REGARDING PENNSYLVANIA'S RULE 8.4(g)
In December 2020, a federal district court enjoined Pennsylvania’s new Rule 8.4(g), which is a modified version of the highly-criticized, deeply-flawed ABA Model Rule 8.4(g), from taking effect. On March 16, the Disciplinary Board of the Supreme Court of Pennsylvania dropped its appeal to the Third Circuit. The Disciplinary Board had filed notice of appeal in January 2021, after losing in federal district court in December 2020.
MAINE FAMILLIES CHALLENGE DISCRIMINATORY TREATMENT
Maine will pay the tuition for students to attend a different high school - public or private - if students live in a school district that lacks a high school, as is sometimes the case in rural Maine. Maine will not, however, pay tuition if students choose a “sectarian” school. A federal appellate court upheld the law as constitutional. CLS filed an amicus brief in the U.S. Supreme Court on behalf of a dozen religious freedom groups, seeking review and urging the Court to treat equally all Maine parents and children, including those who choose religious schools. The brief argues that the First Circuit erred by allowing Maine to authorize tuition payments for students attending secular private schools but not for students attending private religious schools.
CHRISTIAN COLLEGE STUDENT WINS IN U.S. SUPREME COURT
On March 8, the Supreme Court ruled 8-1 that a Christian student, who was stopped from speaking about his religious beliefs on the campus of Georgia Gwinnett College, may continue with his free speech lawsuit because he is seeking nominal damages claim, which keeps the case from being moot. The Center - in 2020 - filed an amicus brief in support of the student.
SEATTLE CHRISTIAN LEGAL AID CLINIC GAINS NARROW WIN
Seattle’s Gospel Union Mission provides Christian Legal Aid to those who cannot pay for the legal counsel they need. When hiring a third lawyer for its legal aid clinic, the mission did not hire an applicant because he did not agree with the mission’s religious beliefs regarding marriage. He sued for sexual orientation discrimination. Washington State has a broad law giving nonprofits an exemption from the state nondiscrimination employment law. In its decision, the Washington State Supreme Court narrowed its interpretation of the state law but, nonetheless, remanded to the trial court to determine whether the job fell within the “ministerial exception.” CLS had previously filed - in 2019 - an amicus brief with the Washington Supreme Court, which was joined by thirteen other religious organizations, in support of the legal aid clinic.
WISCONSIN STATE BAR SEEKING COMMENT ON ABA MODEL RULE 8.4(g)
The Wisconsin Standing Committee on Professional Ethics has a comment period until Friday, March 12, regarding proposed adoption of ABA Model Rule 8.4(g), as a modification to Wisconsin Supreme Court Rule 20:8.4(i). Comments opposing adoption of ABA Model Rule 8.4(g) should be emailed to Committee Chair Ben Kempinen at firstname.lastname@example.org and Ethics Counsel Tim Pierce at email@example.com. The Center filed the detailed CLS comment letter on March 1.
CONGRESS SEEKS TO PASS THE EQUALITY ACT
On February 25, 2021, the U.S. House of Representatives voted 224-206 to pass the Equality Act. While the name seems innocuous, in reality the Equality Act is an unqualified disaster for all Americans’ religious freedom. Proponents of the Equality Act deny it harms religious freedom, but a plain reading of its text shows that the denials simply are not true. Read more about the Equality Act here.
PROTECTING VIRGINIA CHURCH'S RIGHT TO DETERMINE ITS MINISTERS
On February 16, the Center’s Director of Litigation, Reed Smith, argued to a panel of the Virginia Supreme Court that the full court should hear a church’s appeal of the City of Fredericksburg’s denial of a parsonage tax exemption for its college minister’s home. The City asserted that college ministers are not ministers under the Presbyterian Book of Church Order. The First Amendment gives religious congregations, not government officials, the authority to determine their ministers, as long as their decisions are sincere. Despite a strong argument, the petition was denied.
FCA LAWSUIT MAY PROCEED IN CALIFRONIA FEDERAL COURT
San Jose Unified School District officials derecognized an FCA student group because they did not like its religious beliefs. The Center filed suit on behalf of FCA, bringing claims under the Equal Access Act and the First Amendment. The school district argued that the Defendants could not be held personally liable under qualified immunity. On January 28, a federal judge disagreed and ruled that FCA may proceed with its claims of discrimination against the district superintendent, a high school principal, and a teacher in their personal capacities.
DEFENDING RELIGIOUS STUDENTS IN CALIFORNIA
The Center represents the Fellowship of Christian Athletes and individual students in San Jose, California, where a school district withdrew official recognition from the religious student group after a teacher disparaged the group's religious beliefs in his class. A federal judge may rule this month on the school district’s request that it dismiss the students’ lawsuit. Please pray for a favorable ruling for the religious students.
CONNECTICUT COMMENT PERIOD EXTENDED TO DECEMBER 4
The Connecticut Rules Committee of the Superior Court extended the comment period on Proposed Rule 8.4(7), which is derived from the widely criticized ABA Model Rule 8.4(g), to December 4. CLS previously filed its comment letter with the committee in November. Comment letters should be submitted by December 4 to RulesCommittee@jud.ct.gov. Short emails simply expressing opposition to Proposed Rule 8.4(7), or this short comment letter, are helpful. More information can be found in this backgrounder and this list of ten reasons why Proposed Rule 8.4(7) should not be adopted.
ENSURING THE RIGHT TO ENGAGE IN PUBLIC RELIGIOUS SPEECH
When a group of students and a minister shared the faith in a public park in Colorado, police officers told the group they could not meet in the park to share Christ and asked them to leave the park. The Center stepped in to advocate their position to the city, writing a letter on behalf of the students and the minister explaining that they right to witness in a public place and how the city could not discriminate against religious speakers in their use of the park. The minister and students have now been able to return to doing public outreach in the park. The first time they returned to the park, four students made a decision for Jesus.
DEFENDING RELIGIOUS STUDENTS IN MICHIGAN
The Center submitted a friend-of-the-court brief to a Michigan federal district court, urging the court to protect InterVarsity Christian Fellowship’s right to remain on Wayne State University’s campus as an officially recognized student organization. The CLS brief was joined by Cru, Christian Medical and Dental Associations, Chi Alpha Campus Ministries USA, Fellowship of Catholic University Students (FOCUS), Ratio Christi, and Young Life. Professor Tom Berg and his students at the St. Thomas University School of Law Religious Liberty Appellate Clinic wrote the brief, and Tim Denney serves as co-counsel.
ENSURING MOTHER'S RIGHT TO ENGAGE IN RELIGIOUS FREE SPEECH IN PUBLIC
Mary Mason, who does religious outreach with her disabled daughter in Murphy, North Carolina, was told by town officials to stop because groups of two or more are not allowed to assemble without a permit. The Center sent a letter to the town council, explaining that its permit requirement was unconstitutional. The Town’s attorney responded and acknowledged that the Town would change its permitting requirements and not enforce them against Ms. Mason and her daughter.
FEDERAL REGULATIONS PROTECTING RELIGIOUS CAMPUS GROUPS EFFECTIVE NOVEMBER 23
The federal regulation that protects religious student groups on public college campuses will go into effect November 23. We are grateful to God for the new regulation and appreciate the comments from so many CLS attorneys and students in support of the regulation.
PROTECTING PATIENTS' RELIGIOUS RIGHTS
When Christopher Saba’s health took a turn for the worse, his family called Father Anthony Yazge to visit him, pray with him, and administer the Holy Unction. The hospital, however, refused to admit Father Yazge and later required him and Christopher’s family to leave the hospital entirely. The Center has filed a complaint with the HHS Office of Civil Rights on behalf of Father Anthony and Christopher’s mother asking them to intervene on behalf of religious patients’ rights to visitation.
CONNECTICUT 8.4(g) COMMENT PERIOD ENDS NOVEMBER 12
CLS filed its comment letter with the Connecticut Rules Committee of the Superior Court, as the committee considers Proposed Rule 8.4(7), which is derived from the widely criticized ABA Model Rule 8.4(g). Comments should be submitted by November 12 to RulesCommittee@jud.ct.gov. Short emails simply expressing opposition to Proposed Rule 8.4(7), or this short comment letter, are helpful. More information can be found in this backgrounder and this list of ten reasons why Proposed Rule 8.4(7) should not be adopted.
DEFENDING RELIGIOUS FOSTER CARE
On November 4, the United States Supreme Court heard oral argument in Fulton v. City of Philadelphia to decide whether the City of Philadelphia can prohibit Catholic Social Services from participating in the foster care system because it believes that marriage is between a man and a woman. CLS had previously filed an amicus brief urging the Court to rule in favor of the Catholic foster care agency and overrule its 1990 decision in Employment Division v. Smith, which has done such harm to religious freedom for three decades, as Center Director Kim Colby explained in this piece for Scotusblog.
A NUMBER OF STATES ARE CONSIDERING ABA MODELR RULE 8.4(g)
State bar associations in Illinois, North Carolina, South Carolina, and Texas are weighing the highly flawed ABA Model Rule 8.4(g). If you practice in these states, join with other lawyers and provide comments. It matters. Please email Laura at firstname.lastname@example.org to find out more about what is happening and check the CLS webpages.
THE NEXT FRONT FOR THE MINISTERIAL EXCEPTION
An Indiana music director in a same-sex marriage sued his church employer for employment discrimination by creating a hostile work environment because of his sexual orientation. The Supreme Court issued a strong ruling this summer in favor of the “ministerial exception,” which is the right of churches to hire and fire their ministers without government interference, but the music director argued, and a Seventh Circuit panel agreed, that the ministerial exception does not protect churches from lawsuits for creating a hostile work environment. CLS filed an amicus brief in support of the Catholic parish’s petition for rehearing en banc. Joining the CLS brief, which was written by Professor Tom Berg and his students at the St. Thomas Religious Liberty Appellate Clinic, were the Serbian Orthodox Diocese of New Gracanica—Midwestern America, Greek Orthodox Metropolis of Chicago, Orthodox Church in America Diocese of the Midwest, The Synod of Bishops of the Russian Orthodox Church Outside of Russia, and Agudath Israel of America.
DEFENDING THE RELIGIOUS FREEDOM RESTORATION ACT
On October 6, the Supreme Court heard oral argument in a case in which CLS filed a friend-of-the-court brief urging that the Religious Freedom Restoration Act (RFRA) allows money damages against individual federal employees when they violate a religious person’s rights under RFRA.
CLS URGES SUPREME COURT TO SUPPORT RELIGIOUS FREEDOM ON CAMPUS
On September 29, CLS' Center for Law and Religious Freedom filed an amicus brief with the Supreme Court in support of Chike Uzuegbunam, one of the petitioners in Uzuegbunam v. Preczewski. In that case, Georgia Gwinnett College (“GCC”) twice required Uzuegbunam to stop evangelizing on campus - once while distributing religious pamphlets, because he was not in the “free speech zones” that comprised .0015% of the campus area, and again after he received a permit to speak in the free speech zones, because certain people complained about his evangelistic message. GCC threatened to charge Uzuegbunam with disorderly conduc as a result of the complaints. After Uzuegbunam filed suit, GCC changed its policies, and both the district court and Eleventh Circuit declared that GCC’s change in policy ended the case. Although Uzuegbunam had asked for nominal damages for GCC’s violations of his constitutional rights, the Eleventh Circuit Court of Appeals held that the award of nominal damages would have no practical effect and, therefore, no judicial relief was available.
In its brief, the Center argued that the award of nominal damages is an important form of judicial relief that provides a remedy to people whose rights have been violated. Nominal damages are a particularly important form of relief for college students, such as Uzuegbunam, whose rights are violated because they are likely to graduate in the years that it takes cases to wind their way through the court system. If relief for past violations (nominal damages) is tied to relief preventing future violations (injunctive and declaratory relief), then many students will be left with no ability to turn to the courts when their constitutional rights are violated.
STATES CONSIDERING ABA MODEL RULE 8.4(g)
Hawaiʻi Connecticut, North Carolina, and Texas are all considering ABA Model Rule 8.4(g). CLS filed its comment letter with the Hawaiʻi Supreme Court during a comment period that ended September 25. The state bar associations in Connecticut, North Carolina, and Texas are trying to fast-track ABA Model Rule 8.4(g), but lawyers are raising their concerns about the highly-flawed rule.
FINAL RULE PROTECTS ALL RELIGIOUS CAMPUS GROUPS
The U.S. Department of Education’s final rule that protects religious student groups’ ability to meet on public college campuses was published in the Federal Register on September 23. Mike Schutt and Kim Colby discuss the regulation and what it means for students. Click here to listen online or subscribe to Cross and Gavel on your podcast app.
CENTER COMMENTS ON THE LATE JUSTICE GINSBURG'S IMPACT
Kim Colby, the director of CLS' Center for Law and Religious Freedom, joined John Stonestreet to discuss the legal legacy of Justice Ruth Bader Ginsburg on the Colson Center’s Breakpoint podcast. Kim also provided commentary to Christianity Today and The Washington Post.
CLS REPRESENTS CHURCH BEFORE VIRGINIA SUPREME COURT
On September 21, the Center, in representing a Virginia church, sought review by the Virginia Supreme Court of a trial court’s denial of state tax exemption for a pastor’s house. Government officials should never be allowed to overrule a church on the interpretation of its religious doctrine; however, when New Life in Christ Church (“NLICC”), in Fredericksburg, Virginia, applied for a parsonage tax exemption for the home of its directors of college outreach, the City of Fredericksburg denied the exemption. When NLICC challenged the denial, the City argued that the denial was proper because, despite their role in representing the church to the college student community, the directors are not “ministers” pursuant to the Presbyterian Book of Church Order. The court agreed and denied the exemption. Christian Legal Society represents NLICC in its appeal to the Supreme Court of Virginia.
HAWAI'I SUPREME COURT 8.4 COMMENT PERIOD ENDS SEPTEMBER 25
The Hawaiʻi Supreme Court is taking public comments on its Proposed Rule 8.4(h), which is modeled on the highly-flawed ABA Model Rule 8.4(g). This short backgrounder provides basic information about Proposed Rule 8.4(h) and how to file comments. Lawyers who belong to the Hawaiʻi Bar can use this sample comment letter and submit to the Hawai’i Supreme Court’s comment page. Or they can use these talking points, "Why Proposed Rule 8.4(h) Should Not Be Adopted in Hawai’i," to form their own comments. CLS filed its comment letter on September 16. Please submit comments no matter how brief because even individual short comments really are important.
NEW FEDERAL REGULATION PROTECTS CAMPUS GROUPS
On September 9, the U.S. Department of Education, along with the Department of Justice, announced a new final regulation to protect religious student groups on public college campuses that provides:
(d) As a material condition of the Department's grant, each grantee that is a public institution shall not deny to
any student organization whose stated mission is religious in nature and that is at the public institution any right,
benefit, or privilege that is otherwise afforded to other student organizations at the public institution (including but
not limited to full access to the facilities of the public institution, distribution of the student fee funds, and official
beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by
sincerely held religious beliefs.
Mike Schutt and Kim Colby discussed the regulation and what it means for students on CLS' Cross & Gavel podcast.
PROTECTING THE FELLOWSHIP OF CHRISTIAN ATHLETES
The Center represents the Fellowship of Christian Athletes (FCA) in a lawsuit against the San Jose Unified School District, when the school district denied recognition to a student group at a high school in San Jose while recognizing the Satanic Temple Club. On September 8, the Center filed its response to the San Jose School District’s motion to dismiss.
U.S. SUPREME COURT RECONSIDERING TITLE VII "UNDUE HARDSHIP"
CLS' Center for Law and Religious Freedom filed cert petitions in two cases urging the U.S. Supreme Court to reconsider its 1977 ruling in Hardison v. TWA as to what constitutes an "undue hardship" for purposes of denying an accommodation to religious employees under Title VII. The Center filed the first brief on July 17 in Small v. Memphis Electric, Water, and Gas and a second brief on August 6 in Dalbertiste v. GLE Associates Inc.
PROTECTING RELIGIOUS AUTONOMY
The Center is representing New Life in Christ Church, located in the City of Fredericksburg, Virginia. New Life requested a property tax exemption under Virginia law for the property where it runs its college ministry and where the Storms, its college outreach directors, live. The city denied the exemption, citing the Presbyterian Book of Church Order for its determination that the college outreach directors are not ministers under the law. It is well established that civil authorities are not qualified to interpret ecclesiastical texts or determine who has final authority within a church.
SUPREME COURT ROUNDUP
Center attorneys Kim Colby and Reed Smith held an incredible webinar covering the last Supreme Court term, in which the Court decided five cases with serious consequences for religious freedom and one case regarding state regulation of abortion clinics. Click here to watch the replay. Kim and Reed also joined CLS' Mike Schutt to discuss three recently decided Supreme Court cases on three separate podcasts. Click here to listen online.
U.S. SUPREME COURT SIDES WITH RELIGIOUS ORGANIZATIONS
On July 8, the United States Supreme Court issued two opinions in favor of religious organizations. In the first, Little Sisters of the Poor v. Burwell, the Court ruled that the U.S. government acted within its authority when it expanded exemptions to the Affordable Care Act’s requirement for employers to provide insurance coverage that includes contraception. Justice Clarence Thomas wrote the 7-2 opinion for the Court. CLS issued a press release applauding the Court's decision in favor of the Little Sisters in their seven-year court battle. Kim Colby, director of CLS' Center for Law and Religious Freedom, was featured in a World Magazine article about the case.
In the second case, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the Court reaffirmed that religious institutions and schools have a First Amendment right to select their employees, agreeing that religious schools, not the government, should decide who teaches their students. The Center had filed a brief in support of the religious schools that was joined by three key organizations representing a significant percentage of the Christian schools in our country. The 7-2 opinion was written by Justice Alito. Justice Alito wrote that the First Amendment protects the right of religious institutions "to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." CLS issued a press release praising the Court's decision.
DISCUSSION ON SUPREME COURT DECISIONS
On July 3, Kim Colby and Reed Smith joined Mike Schutt to discuss three recently decided Supreme Court cases on three separate podcasts. Click here to listen online to the episodes (#92, #93, and #94).
SUPREME COURT ENDS DISCRIMINATION AGAINST FAMILIES WHO CHOOSE RELIGIOUS SCHOOLS
On June 30, the Supreme Court ended discrimination against families who choose a religious school for their children. In Espinoza v. Montana, the Court ruled that the Montana Supreme Court could not use its state constitution’s Establishment Clause (or "Blaine Amendment") to justify discriminatory exclusion of religious parents from the benefits of a modest state tax credit program. The Center had filed a brief, mentioned at oral argument, on behalf of 16 faith organizations urging the Court to protect the families’ free exercise of religion.
SUPREME COURT STRIKES DOWN LOUISIANA LAW REGULATING ABORTION CLINICS
To our deep disappointment, on June 29, the Supreme Court (without a majority opinion) struck down a state law that required doctors who perform abortions to have admitting privileges at a nearby hospital. In December 2019, the Center had filed a brief highlighting the sound evidence that supported the law.
COURT RULES TITLE VII PROTECTS SEXUAL ORIENTATION AND GENDER IDENTITY IN EMPLOYMENT
On June 15, 2020, the United States Supreme Court issued its decision in the trio of Title VII cases (Bostock, Harris Funeral Homes, and Zarda). In a 6-3 decision with Justice Gorsuch writing the majority opinion, joined by the Chief Justice and four liberal justices, the Court ruled that Title VII’s prohibition on sex discrimination also prohibits discrimination on the basis of sexual orientation and gender identity. CLS had joined an amicus brief with other religious organizations urging the Court not to re-define “sex” in Title VII to include sexual orientation and gender identity.
MAJOR RELIGIOUS FREEDOM CASES BEFORE SCOTUS
Center Director Kim Colby sat down with LSM Director Mike Schutt on June 9 to discuss the five major religious freedom cases currently before the Supreme Court. Click here to listen to this episode.
CLS HOSTS COVID-19 WEBINAR
CLS and the Evangelical Council for Financial Accountability co-sponsored a webinar - "Resuming In-person Religious Activities: Legal and Practical Considerations - to walk churches and ministries through the many legal and practical factors they should weigh as they resume in-person activities. CLS members Theresa Sidebotham and Scott Ward joined the Center’s Litigation Director, Reed Smith, to present the June 9th webinar. CLS is pleased to provide the video of the webinar and additional resources for churches and ministries considering and praying over how and when to open. The Center also maintains a webpage with updates regarding the various cases brought by churches challenging states’ restrictions on their re-opening.
PENNSYLVANIA AMENDS MISCONDUCT RULE
On June 8, the Pennsylvania Supreme Court issued an Order adopting a highly-modified version of ABA Model Rule 8.4(g). The new rule makes it professional misconduct for a lawyer to “in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination” against anyone. One justice dissented. CLS had filed comment letters in 2017, 2018, and 2019, urging the Pennsylvania Disciplinary Board not to recommend adoption of any version of the deeply-flawed ABA Model Rule.
CENTER DEFENDS FAITH-BASED FOSTER CARE PROVIDERS
Catholic Social Services ("CSS") has provided foster care families to Philadelphia children for over a century. Philadelphia will no longer allow CSS to perform its invaluable work because city officials disapprove of CSS’ religious beliefs regarding marriage. On June 3, CLS' Center for Law and Religious Freedom filed an amicus brief with the U.S. Supreme Court urging the overruling of its 1990 decision in Employment Division v. Smith and the restoration of strong constitutional protection for religious freedom. The brief was prepared by Professor Doug Laycock and Professor Tom Berg. The case is Fulton v. City of Philadelphia.
CENTER FILES RELIGIOUS DISCRIMINATION COMPLAINT
After participating in a discussion of personal beliefs about faith while at work, Lisa Nelthrop was fired from her job for “bringing her personal beliefs into the workplace.” Though several employees participated in the discussion, Ms. Nelthrop was the only employee to be terminated. The Center for Law and Religious Freedom, in conjunction with the Whiting Law Firm, filed a religious discrimination complaint with the Maine Human Rights Commission and the U.S. Equal Employment Opportunity Commission on behalf of Ms. Nelthrop.
CENTER SUPPORTS RELIGIOUS SCHOOLS' RIGHT TO CHOOSE TEACHERS
The United States Supreme Court heard oral argument on May11 to answer the question: Does the First Amendment protect the right of a religious K-12 school to decide who does, and does not, teach its religious beliefs and values to its students? The Center had filed an amicus brief, prepared by Professor Tom Berg and the Religious Liberty Appellate Clinic at St. Thomas University School of Law, urging the Court to protect religious schools’ right to decide who will transmit their religious values to the next generation.
CENTER FILES COMPLAINT ON BEHALF OF THE FELLOWSHIP OF CHRISTIAN ATHLETES
On May 5, CLS' Center for Law and Religious Freedom, in conjunction with Seto Wood & Schweickert LLP, filed a federal complaint against the San Jose Unified School District and certain individual officials. This complaint was filed only after the District refused to take action after numerous complaints to the District. Previously, on January 14, 2020, the Center had sent a letter to the Superintendent of San Jose Unified School District documenting the District’s illegal refusal to recognize student-led FCA groups and subjecting the students to harassment from students and faculty.
CLS HOLDS TELEFORUM ON WHAT RELIGIOUS NONPROFITS NEED TO KNOW ABOUT CARES ACT
On April 9, Reed Smith, Center Director of Litigation, moderated an excellent teleforum, "Caring about CARES: What Religious Nonprofits Need to Know about Federal Emergency Relief." Anyone who represents a religious nonprofit or serves on a nonprofit board will want to visit the CLS resource page to download information and listen to the teleforum. The panel included CLS President Sally Wagenmaker of Wagenmaker & Oberly, LLC, explaining the unemployment benefits provisions that affect religious nonprofits; CLS member Stu Lark of Sherman & Howard and Center Director Kim Colby discussing the religious freedom issues to be considered by religious nonprofits that participate in the Paycheck Protection Program (PPP); and CLS CFO Peter Smith explaining the paperwork necessary to apply for the PPP.
CENTER HELPS TO PROTECT RELIGIOUS NONPROFIT EMPLOYERS
When Congress provided $349 billion in cash infusions to small businesses to help them avoid layoffs, Congress included religious nonprofit employers in the Paycheck Protection Program. The Small Business Administration is responsible for implementing the program. but some pre-existing SBA regulations posed special obstacles for participation by religious nonprofits. For several weeks, the Center worked with a coalition to ensure that the SBA administers the program in a way that allows religious nonprofits to participate while also maintaining their religious freedom. The Administration issued an Interim Final Rule and an FAQ guidance document on April 3, 2020. Kim Colby explains this guidance, as well as a remaining religious freedom concern, on an April 8 Federalist Society teleforum, "Religious Freedom in a Pandemic."
CENTER SUPPORTS RELIGIOUS CONGREGATIONS IN MISSOURI SUPREME COURT
CLS' Center for Law and Religious Freedom joined a friend-of-the-court brief, filed in the Missouri Supreme Court by CLS members Tim Belz, Matt Belz, and Carl Esbeck, which warned against the dangers of recognizing a tort of negligent supervision of clergy. The brief explained that such lawsuits would violate the Religion Clauses’ prohibition on government intrusion into religious institutions’ autonomy.
CENTER DEFENDS A CLS CHAPTER'S RIGHT TO REMAIN ON CAMPUS
The Center filed a friend-of-the-court brief explaining the problems that the CLS student chapter has encountered over the past 20 years at the University of Iowa. In 2018, the University threatened to de-recognize over 30 religious student groups because they require their leaders to agree with the groups’ religious beliefs. InterVarsity Christian Fellowship won in the district court, but the University appealed to the Eighth Circuit.
CENTER ONCE AGAIN FILES IN SUPPORT OF THE LITTLE SISTERS
The Little Sisters of the Poor returned to the Supreme Court yet again in their eight-year-long fight to protect their basic right to live according to their Church's teachings. The Center filed another amicus brief in support of their religious freedom. From 2012 to 2018, the Little Sisters were seeking a religious exemption from the HHS Mandate, but the Administration adopted regulations protecting the conscience rights of persons who objected to the Mandate, including the Little Sisters. Unfortunately, several states have successfully blocked in the lower courts the Administration's efforts to defend religious freedom, resulting the the Little Sisters trying again to protect their rights.
SOUTH DAKOTA REJECTS PROPOSED MISCONDUCT RULE
On March 9, the South Dakota Supreme Court announced in a letter to the South Dakota State Bar that the Court had unanimously denied the proposed Rule 8.4(g), which was an alternative version of ABA Model Rule 8.4(g). Specifically, the Court explained it "is not convinced that proposed Rule 8.4(g) is necessary or remedies an identified problem." The Court further announced the creation of a Commission “to study and make recommendations to the Court regarding how best to prevent and redress sexual harassment within the legal profession in South Dakota.” The Commission will consist of “justices, judges, lawyers, and others in the justice system.”
CENTER FILES BRIEF IN SUPPORT OF MONETARY DAMAGES UNDER RFRA
The Center filed an amicus brief on behalf of 14 religious freedom law professors, explaining the appropriate damages permitted under the Religious Freedom Restoration Act (RFRA). RFRA experts, Professor Doug Laycock and Professor Tom Berg, authored the well-documented brief that should be quite helpful to the justices.
CENTER FILES MINSTERIAL EXCEPTION BRIEF
The Center, with the help of Professor Tom Berg, filed an amicus brief in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel arguing that religious function should be the primary consideration in ministerial exception cases because courts and government bodies entangle themselves in religious questions when they attempt to grade the religiosity of credentials and education. The Ninth Circuit Court of Appeals had held that two teachers who had important religious functions, including creating religiously oriented curricula and leading class prayers, were not ministers because they lacked what the court considered to be appropriate credentials, training, and titles.
U.S. DEPARTMENT OF EDUCATION REGULATIONS WOULD PROTECT RELIGIOUS STUDENT GROUPS
The U.S. Department of Education announced two proposed regulations to protect religious student groups, including CLS student chapters, on public college campuses. Please submit supportive comments by the deadline of February 18. CLS members, their friends, and families are encouraged to submit comments in support of proposed regulations that would prohibit public colleges from excluding religious student groups because of their religious “beliefs, practices, policies, speech, membership standards, and leadership standards.” For 40 years, CLS chapters have experienced challenges to their right to be on various law school campuses. Please help end discrimination against religious students by submitting comments urging the Department of Education to finalize Proposed Regulations 34 CFR § 75.500(d) and § 76.500(d). Visit the CLS website to submit comments quickly and easily!
CENTER BRIEF NOTED DURING ORAL ARGUMENT
On January 22, the Supreme Court heard oral argument in an important religious freedom case - Espinoza v. Montana Department of Revenue. Justice Kavanaugh mentioned favorably the Center's amicus brief during oral argument. His reference to the Center's brief suggests the Court has found it helpful in considering the issues of this case in which parents are challenging Montana’s discriminatory treatment of the religious schools that their children attend. The Center brief was written by two leading religious freedom scholars, Professor Tom Berg and Professor Doug Laycock, and joined by 17 organizations from across the religious spectrum.
CENTER DEMANDS ACCESS FOR RELIGIOUS ORGANIZATIONS
After years of being allowed in the public schools, Anne Arundel County expelled Maryland Child Evangelism Fellowship ("Maryland CEF") out of the public schools in which Maryland CEF was meeting. The school system told Maryland CEF that it would have to pay thousands of dollars to return. Given CLS’ previous success in restoring Maryland CEF to schools in Anne Arundel County, Maryland CEF reached out to CLS to help regain access to schools in Anne Arundel County. On January 22, 2020, CLS' Center for Law and Religious Freedom sent a letter to Anne Arundel County Public Schools and Anne Arundel Recreation and Parks informing them that providing access to religious organizations on less favorable terms than similarly situated organizations violates the First Amendment to the U.S. Constitution. Within days of the letter, Maryland CEF regained access to one school in Anne Arundel County.
On the other side of the country, high school students in San Jose, California, for years have formed student groups associated with the Fellowship of Christian Athletes ("FCA") to discuss and encourage one another in their shared beliefs. These students met without incident until April 2019, when officials of San Jose Unified School District ("the District") unilaterally announced that the district was revoking its recognition of student FCA groups. In addition to not recognizing FCA, the district began to allow, and in some instances facilitate, harassment of FCA meeting participants. The Center sent a letter to the Superintendent of San Jose Unified School District documenting the District’s illegal refusal to recognize student-led FCA groups and subjecting the students to harassment from students and faculty.
CENTER FILES COMMENT LETTER WITH DEPARTMENT OF EDUCATION
On January 10, Christian Legal Society's Center for Law and Religious Freedom filed a comment letter with the Department of Education commending it for cleaning up outdated regulations governing many student aid programs that discriminated against religious student borrowers and faith-based organizations. The letter also urged the Department to delete all discriminatory language remaining in two regulations for which the Department sought further comments.
CENTER CO-AUTHORS LETTER PROTECTING ELDERLY IN VIRGINIA
The Center worked with local counsel to send a letter protecting the First Amendment rights of those at a senior citizen home to pray before meals. Employees at the home were ordering meal attendees not to engage in prayer - not even private prayer - over their meals and were even directing the senior citizens to pray separately in another room. These restrictions eliminated the ability of senior citizens to exercise their religious freedom to pray over their meals.