U.S. SUPREME COURT TO DECIDE GRANT 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’s 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.
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 ABAB 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 sign the sample comment letter found on the CLS webpage 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
Please join us in thanking God for a new federal regulation that protects religious student groups on public college campuses. On September 9, the U.S. Department of Education, along with the Department of Justice, announced a final rule 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 and 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.
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.