CLS COMMENTS ON HHS PROPOSED GRANT REGULATIONS
In July, the U.S. Department of Health and Human Services published for comment a Notice of Proposed Rulemaking that proposes to amend the rules governing its grants to private service organizations. The Center submitted a comment letter on September 5 on behalf of CLS, the Thomas More Society, the National Association of Evangelicals, and the Institutional Religious Freedom Alliance. The comment letter argues that the proposed rules overstepped the Department’s authority in declaring it would be guided by “public policy” and would extend sexual orientation and gender identity regulation to federal statutes that Congress never extended to sex discrimination.
CENTER FILES AMICUS BRIEF IN SIDEWALK COUNSELING CASE
The Center, on behalf of CLS, filed an amicus brief on August 24, in which it urged the U.S. Supreme Court to hear a challenge to a Westchester County, New York, ordinance that bars pro-life “sidewalk counselors” from talking with women and offering them alternatives to abortion within 100 feet of an abortion center, including public sidewalks, unless consent has been granted. CLS’ brief asks the Court to overrule its 2000 decision in Hill v. Colorado, which upheld a similar law against a free speech challenge. Debra Vitagliano, a Catholic mother who is also a trained counselor, wishes to counsel abortion-vulnerable women and seeks to engage in sidewalk counseling outside a clinic in Westchester County, but the ordinance bars her from doing so.
On March 27, Republican Sen. James Lankford of Oklahoma and Sen. Tim Scott of South Carolina and Rep. Tim Walberg of Michigan introduced the Equal Campus Access Act in the Senate and House, respectively. This act, if passed, would ensure that any public colleges or universities that discriminate against student organizations because of those groups’ “religious beliefs, practices, speech, leadership standards, or standards of conduct” will not be allowed to receive taxpayer dollars. CLS signed onto a letter supporting this campus access legislation.
CENTER FILES COMMENT OPPOSING RULE RESCISSION
In September 2020, the United States Department of Education adopted two common sense regulations that protect religious student organizations on public college campuses, which the Biden Administration has announced it now wants to rescind these important regulations. On March 24,2023, the Center submitted a comment letter with accompanying attachments opposing the proposed rescission. CLS’ Law Student Ministries signed onto a comment letter filed by numerous religious student organizations also opposed to the proposed rescission.
CENTER JOINS BRIEF IN TUCKER V. FAITH BIBLE CHAPEL INTERNATIONAL
The Center signed onto an amicus brief filed with the U.S. Supreme Court in favor of Faith Bible Chapel’s petition for Supreme Court review. Mr. Tucker, a former school chaplain at Faith Bible, sued the school under Title VII after he was terminated over a dispute about how he led a chapel service. Both the Colorado district court and the Tenth Circuit had previously ruled in Mr. Tucker’s favor.
CENTER SIGNS ONTO COMMENT LETTER ON PROPOSED RULE
The Center joined a comment letter regarding a new nine-agency proposed rule titled “Partnerships With Faith-Based and Neighborhood Organizations.” The proposed rule would alter regulations for faith-based organizations partnering with federally-funded social service programs across the nine agencies.
DEPARTMENT OF ED PROPOSES ELIMINATING PROTECTIONS FOR RELIGIOUS STUDENT GROUPS
The Department of Education issued a Notice of Public Rulemaking in which it is proposing to rescind current regulations that protect religious student organizations on public college campuses. In short, the Department of Education intends to eliminate protections for religious students who want the leaders of their religious groups to reflect their faith traditions with authenticity and integrity. Comments are due March 24, 2023, and may be submitted through the government website. For more background and information on why this rule matters, please visit the CLS website.
CENTER SUBMITS TESTIMONY IN SUPPORT OF STATE CAMPUS ACCESS LEGISLATION
Education Committees in both the Missouri House and New Hampshire House held hearings on HB 136 and HB 516, respectively. Both bills would provide protection for religious student groups on publics campuses in those states. The Center submitted written testimony to both the House Higher Education Committee in Missouri and the House Education Committee in New Hampshire and had CLS members testify in person as well. Seventeen states already have a similar law in place.
CLS FILES COMMENT ON PROPOSED CONSCIENCE REGULATION
The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) published for comment a Notice of Proposed Rulemaking (NPRM), entitled Safeguarding the Rights of Conscience as Protected by Federal Statutes. The Center submitted a comment letter on behalf of CLS.
The Center joined an amicus brief filed with the Sixth Circuit Court of Appeals in Tennessee v. Dep’t of Ed., a case in which 20 states sued to stop the unlawful actions of the U.S. Department of Education and the EEOC after they tried to rewrite federal antidiscrimination law and regulations to prohibit discrimination on the basis of gender identity or sexual orientation, without using proper rulemaking procedures.
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.
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 ASSISTS IN GETTING CLS CHAPTER RECOGNIZED ON UNIVERSITY CAMPUSES
The Student Bar Association at the University of New Hampshire Franklin Pierce School of Law denied tried to deny recognition to the university’s Christian Legal Society Law Student chapter. The dean’s office informed the SBA that, per the guidance of the university system’s general counsel, the SBA has no legal basis on which to refuse recognition to CLS-NH, yet the SBA held firm. The Center sent a letter to university administrators explaining how failure to recognize the CLS Law Student chapter would violate federal regulations and federal case law and also how university administrators could be held liable if the SBA failed to recognize the chapter. The university responded, yet the Center needed to send a second letter to the university administrators. In the end, the administration agreed and directed the SBA to recognize the CLS law student chapter. First Liberty wrote a similar letter to UNH administrators when the SBA also denied recognition to the Free Exercise Coalition, a group formed to equip religious students in their free exercise of religion, both on and off campus.
The Christian Legal Society Law Student chapter at the University of Wisconsin was denied re-recognition. When the students reached out to CLS, the Center issued a letter to university administrators explaining how their failure to recognize the CLS law student chapter violates federal regulations and federal case law and outlining potential legal consequences for university officials if the school did not recognize the CLS chapter. University administrators responded by suggesting the matter could be resolved if the students eliminated three words—“be a Christian”—from the constitution the CLS chapter had submitted with its application for re-recognition. The Center sent a follow-up letter explaining why the chapter did not have to do so. The university subsequently recognized the CLS law student chapter on a provisional basis.
The Christian Legal Society law student chapter at Arizona State University was also denied re-recognition. The Center issued a letter to the general counsel at ASU explaining how the failure to recognize the CLS law student chapter violates federal regulations and federal case law and outlining potential legal consequences for university officials if the school did not recognize the CLS chapter. Arizona State University subsequently recognized the CLS law student chapter.
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.
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.
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.
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.
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.
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 the National Association of Evangelicals 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.”
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.
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.
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.”
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 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).
FIGHTING FOR RELIGIOUS STUDENTS AT THE UNIVERSITY OF VIRGINIA
The Student Council at the University of Virginia announced that all student organizations would have to submit an Identity Inclusivity Disclosure Form in order to participate in the Fall Student Activities Fair. Organizations were to indicate on the form whether they “restrict” membership, leadership, programming, or activities based on the enumerated classes in UVA’s nondiscrimination policy. The Center sent a letter to the president of UVA outlining potential legal consequences if the Student Council proceeded with the form. The Student Council subsequently removed the disclosure form as a requirement for participation of student groups in the Fall Student Activities Fair.
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.
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.
ORGANIZATIONS ASK DEPARTMENT OF EDUCATION TO PROTECT RELIGIOUS STUDENTS ON CAMPUS
It appears likely that the Biden Administration will review the Free Inquiry Rule, which includes a campus access regulation that protects religious student groups on public college campuses. On June 1, 2021, 21 representatives of a diverse spectrum of religious organizations sent a letter to Secretary Cardona to ask him “to preserve the legal protections provided in 34 C.F.R. §§ 75.500 (d) and 76.500 (d) for individual students and religious student organizations so that students of all faiths will continue to feel welcome on their public college campuses.” A couple days later, on June 3, 2021, representatives of 22 religious campus organizations wrote a letter to Secretary Cardona to ask that 34 C.F.R. §§ 75.500 (d) and 76.500 (d) be preserved. The letter explained that the regulations “help ensure that faith-based student organizations will be treated like other student organizations. It is necessary because colleges often discriminate against religious clubs, including those of many minority faiths, just because they have religious expectations for leaders.” The letter described the fact that “[t]he regulations address a problem that has existed for four decades on too many public college and university campuses: Religious student groups too frequently are subjected to discriminatory treatment because of their religious beliefs, speech, and leadership standards.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.”
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.”
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!
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.
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.
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!
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.
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.
Protecting Religious Employees: On October 17, 2018, CLS filed a friend-of-the-court brief with the U.S. Supreme Court in Patterson v. Walgreen Co. in support of a religious employee who was fired because he needed a religious accommodation to observe his Sabbath. The brief urged the Court to grant review of an appellate court’s decision against the religious employee.
Protecting the CLS student chapter at the University of Iowa: On October 29, 2018, CLS filed a friend-of-the-court brief in BLinC v. University of Iowa in support of religious student groups on the University of Iowa campus. The University of Iowa is threatening the CLS student chapter, along with other religious student groups, with expulsion from campus because the CLS chapter requires its leaders to agree with its core Christian beliefs. In the brief, CLS defends the right of its student chapters to require their leaders to agree with basic Christian beliefs. A liberal commentator comes down on the side of the religious students in a recent article in which he confirms that many university administrators actually are hostile toward evangelical Christian student groups.
The Idaho Supreme Court, by a vote of 3-2, decided not to adopt a resolution that would have amended Idaho Rule of Professional Conduct 8.4 to include the language of ABA Model Rule 8.4(g). The Idaho Supreme Court sent official notice of the decision to the Idaho State Bar on September 6, 2018.
The Supreme Court of Arizona issued a notice on August 30, 2018, stating it had denied the petition that would have amended Rule 42, Ethical Rule 8.4, Rules of the Supreme Court, to include the language of ABA Model Rule 8.4(g).
CHRISTIAN LEGAL SOCIETY’S KIM COLBY FEATURED ON THE FEDERALIST SOCIETY BLOG
On August 24, 2018, Kim Colby, the director of CLS’ Center for Law & Religious Freedom, was featured on The Federalist Society Blog discussing the unconstitutionality of ABA Model Rule 8.4(g) in light of the U.S. Supreme Court decisions in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018) (“NIFLA”) and Matal v. Tam, 137 S. Ct. 1744 (2017).
Also in August, CLS filed supplemental comments with both the Maine Supreme Judicial Court and the Utah Supreme Court regarding proposals in both states to adopt ABA Model Rule 8.4(g). CLS had previously submitted comments to both courts before the close of the comment periods there, but filed the supplemental comments to bring to the attention of justices the decision handed down by the U.S. Supreme Court in National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. June 26, 2018), which was after the close of the comment periods in both Maine and Utah.
Christian Legal Society (CLS) welcomes the nomination of a tested friend of religious freedom, Judge Brett Kavanaugh, to serve on the United States Supreme Court. As our Nation celebrates the 25th Anniversary of the passage of the Religious Freedom Restoration Act of 1993, it is particularly fitting that a Supreme Court nominee be someone who has demonstrated a keen appreciation for the importance of its role in protecting all Americans’ religious freedom. Judge Kavanaugh has demonstrated a real commitment to protecting citizens’ religious speech. CLS’ Center for Law and Religious Freedom’s primary focus for four decades has been to safeguard all Americans’ right to express their religious beliefs and values in the public square. Adding yet another strong voice for freedom of speech to the Supreme Court is a very positive development. Click here to read more.
We celebrate with Jack Phillips for his win today in the U.S. Supreme Court. On June 4, 2018, in a 7-2 decision, the U.S. Supreme Court affirmed the First Amendment rights of religious individuals by protecting Jack Phillips in the Masterpiece case, while striking down the apparent hostility that had been voiced against people of faith. The Supreme Court “concluded that the State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed.”
The Court’s decision discussed many issues, including the Free Exercise rights of Jack, the baker. The CLS brief was mentioned at oral argument and provided the legal analysis of the Free Exercise claims that the Court majority seemed to follow in ruling for Jack Phillips. We are pleased with the decision and that the CLS brief seemed to have such a good influence on the outcome.
CLS issued a press release applauding the Supreme Court’s respect for religious freedom.
Center Director Kim Colby spoke on the Federalist Society Religious Liberties Practice Group Teleforum after the Masterpiece ruling was announced. You can hear the hour long discussion here.
Kim Colby also spent an afternoon with Mike Schutt on the CLS podcast Cross & Gavel discussing the Masterpiece Cakeshop decision. Click here to listen to the podcast. A copy of the podcast transcript is available here.
On May 25, 2018, CLS filed a comment letter with the New Hampshire Supreme Court Advisory Committee on Rules, which is studying three versions of ABA Model Rule 8.4(g) for possible adoption there.
CLS FILES COMMENT LETTER REGARDING ABA MODEL RULE 8.4(g) IN ARIZONA
On May 3, 2018, CLS filed a comment letter with the Arizona Supreme Court, which is studying ABA Model Rule 8.4(g) for possible adoption there.
The Supreme Court of Tennessee issued an Order on April 23, 2018, denying the petition of the Tennessee Board of Professional Responsibility and the Tennessee Bar Association to adopt new Rule 8, RPC 8.4(g).
CLS DEFENDS CONGREGATIONS AND CLERGY OF ALL FAITHS FROM HISTORIC ATTACK ON THEIR ABILITY TO SERVE
CLS filed a brief to help protect clergy of all faiths from a higher tax bill. A group hostile to religion seeks to take away the housing allowance for clergy, a tax provision that is deeply embedded in the fabric of our national life.
CLS submitted a comment letter to the U.S. Department of Health and Human Services (HHS) in support of new actions by HHS to defend health workers’ right not to participate in abortions.
CLS SUBMITS LETTERS IN SUPPORT OF IOWA LEGISLATION TO PROTECT CAMPUS RELIGIOUS GROUPS
CLS submitted two letters to Iowa state legislators (Support for Iowa SF 2344 and Overview of Other States’ Laws) that are considering passing legislation to protect the ability of religious groups to have access to university campuses.
CLS FILES PRO-LIFE BRIEF IN THE SUPREME COURT
CLS filed a friend-of-the-court brief in First Resort v. Herrera in which CLS urged the Court to review a Ninth Circuit ruling that would allow the government to regulate religious ministries’ speech, including pro-life pregnancy resource centers.
For too long, FEMA denied churches and religious schools disaster relief that was available to other charities. On February 8, 2018, Congress changed that to end FEMA’s discrimination against religious ministries. Back in November 2017, CLS had joined a coalition letter urging Congress to act.
CLS SUPPORTS PROTECTIONS FOR RELIGIOUS STUDENTS IN SOUTH DAKOTA
CLS submitted a written statement urging the South Dakota state legislature to adopt protections for religious student groups that want to meet on public university campuses.
In November, CLS joined a coalition letter to the administration requesting that religious groups get fair and equal treatment after a natural disaster, especially given their role in providing essential services. As a result, FEMA changed its rules and now allows religious groups to receive federal aid following a natural disaster.
On September 25, 2017, the Nevada Supreme Court issued an Order granting a Petition from the Board of Governors requesting that its Petition to amend the Nevada Rules of Professional Conduct to include the ABA’s Model Rule 8.4(g) be withdrawn.
CLS FILES BRIEF IN FAVOR OF PROTECTING JUDGES
CLS filed a friend-of-the-court brief before the U.S. Supreme Court in support of a Christian judge in Neely v. Wyoming Commission of Judicial Conduct and Ethics. The judge is being disciplined for declining to perform any marriage ceremony after the Obergefell same-sex marriage case. Despite the facts that Wyoming law does not require judges to perform weddings and Judge Neely has never been asked to solemnize a same-sex wedding, the Wyoming Supreme Court ruled she cannot perform any marriage ceremonies unless she’s willing to violate her faith by performing same-sex wedding ceremonies. In its brief, CLS urges the Court to take this case and rule against a religious test for judges.
CLS filed an amicus brief with the U.S. Supreme Court this week in support of a Christian baker’s right to decline to participate in wedding ceremonies that he religiously objects to. The brief urged the Court to protect religious freedom for people of faith now that the Court has recognized same-sex marriage.
CLS FILES LETTER REGARDING MODEL RULE 8.4 IN LOUISIANA
CLS filed a comment letter with the Louisiana State Bar Association, which is studying ABA Model Rule 8.4(g) for possible adoption in Louisiana.
Mr. Xue was arrested when Chinese officials raided the unregistered house church in China where he and other Christians were worshipping. He was released from jail only after paying a fine equal to half his yearly income. After the house church was raided again, and those arrested put in imprisoned for a year, Mr. Xue came to America in search of religious freedom, where a lower court denied his application for asylum, claiming arrest and heavy fines for worshipping with other Christians were not religious persecution. CLS joined an amicus brief urging the Supreme Court to clarify the national standard for asylum for religious persecution. The brief explains Congress intended to give persons seeking asylum from religious persecution a refuge in America from regimes who punish those who only want to worship peacefully with others. The Supreme Court is expected to decide this summer whether to hear the case.
CLS filed a comment letter with the South Carolina Supreme Court, which has been asked to consider Model Rule 8.4(g).
Kim Colby testified before the House Judiciary Committee on the State of Religious Liberty in America. To read her testimony and watch the video, visit here: https://judiciary.house.gov/hearing/state-religious-liberty-america/.
CLS FILES LETTER REGARDING MODEL RULE 8.4 IN PENNSYLVANIA
CLS filed a comment letter with the Pennsylvania Supreme Court, which is considering adopting Model Rule 8.4(g).
The Center filed an amicus brief on behalf of a Marine Corporal who was court-martialed for refusing to take down a Bible verse she had posted in her work station. In ruling against her, the Court of Appeals for the Armed Forces severely watered down RFRA’s protections for all military personnel. The CLS brief urged the Supreme Court to review the case and ensure that military personnel keep their religious freedom while they serve our country. The Chaplain Alliance for Religious Liberty, along with eight other national organizations, joined the CLS brief.
CLS FILWA BRIEF PROTECTING THE RELIGIOUS LIBERTY OF MAGISTRATES IN NORTH CAROLINA
CLS, joined by National Association of Evangelicals (NAE), filed an amicus brief in the Fourth Circuit Court of Appeals in the case of Ansley v. Warren. At issue in the case is North Carolina Senate Bill 2, which permits magistrates to decline for faith-based reasons to perform any marriage while simultaneously ensuring that there is a ready alternate to perform the marriage ceremony for the couple. CLS argued that Senate Bill 2 is a constitutionally-permissible religious exemption and does not violate the Establishment, Equal Protection, and Due Process Clauses of the U.S. Constitution.
CLS FILES BRIEF DEFENDING CHURCH RIGHTS
CLS, along with National Association of Evangelicals and the National Legal Foundation, filed an amicus brief in the United States Supreme Court in the case of Advocate Health Care Network v. Stapleton. The Center urged the Court to uphold ERISA’s broad religious exemption for “church pension plans.” For decades, many religious organizations that are not technically churches have relied in good faith on the federal government’s ruling that their plans qualify as “church plans,” but now challengers are asking the Supreme Court to narrow the exemption to apply only to churches. The CLS brief, written by CLS members Rick Claybrook and Professor Carl Esbeck, urged the Court to keep the current broad exemption.
CLS FILES BRIEF IN SUPPORT OF JUDGE VANCE DAY
Christian Legal Society and Professor Mark David Hall filed an amicus brief in the Supreme Court for the State of Oregon in the Judge Vance Day case, urging the court to rule that a judge’s refusal to perform a marriage ceremony that violated his or her religious beliefs does not render him or her unfit to hold judicial office. The brief was written by Professor Robert Destro and CLS member Herb Grey.
CLS FILES LETTER REGARDING MODEL RULE 8.4 IN ILLINOIS
CLS filed a comment letter with the Illinois Supreme Court, which is considering adopting Model Rule 8.4(g).
CLS filed a comment letter with the Montana Supreme Court, which is considering adopting Model Rule 8.4(g).
CLS filed an amicus brief urging the United States Court of Appeals for the Fourth Circuit to reject the decision of a lower federal court regarding religious discrimination of an applicant by a public university. The applicant was denied admission to a program, and the evidence shows that his mentioning of religious faith was a factor in the denial. The brief argued that penalizing the applicant because he made a simple expression of faith is discrimination that violates both the Free Speech and Establishment Clauses, and the district court committed serious error in rejecting both as a matter of law.
CLS filed an amicus brief in support of plaintiff-appellant urging the United States Court of Appeals for the Fifth Circuit to reject the decision of a lower federal court in a case regarding Mississippi’s religious accommodation law. The lower court had held that a statutory religious accommodation that exempts people from otherwise applicable regulatory duties equates to unlawful discrimination. The CLS brief argued that the statute in question provides necessary and constitutionally-permissible religious exemptions and does not violate the Establishment Clause.
CLS filed a comment letter with the California State Bar, which was seeking comments about two major proposed changes to their rules of professional conduct that would limit attorneys’ First Amendment freedoms.
CLS SENDS LETTER REGARDING HHS MANDATE
CLS filed a letter in response to an HHS request for information about ways it could provide certain drugs and devices to religious organizations’ employees without violating religious freedom after the Supreme Court’s decision in Zubik v. Burwell.
BLOG POST: WHOSE SHAME?
The Religious Freedom Institute published Kim Colby’s blog post addressing California’s attempt to punish religious colleges and their students for their religious beliefs regarding marriage.
CLS COMMENT LETTER ON HUMAN-ANIMAL RESEARCH
The National Institutes of Health is lifting their moratorium on human-animal research. CLS filed a comment letter requesting that they continue with a moratorium on such research, citing legal, procedural, and ethical concerns.
CLS ASSISTS CHRISTIAN GROUPS
CLS has helped a Bible study group stay in their high school in Loudon County, Virginia, as well as advised a CLS chapter so as to overcome difficulties at American University and kept a Christian group on campus at a North Carolina university.
UPDATE ON ABA MODEL RULE 8.4(g)
The ABA passed Model Rule 8.4(g), but with modifications thanks to the emails and letters from many CLS members. For those that wonder about the evolution of 8.4 and how it progressed, Kim Colby wrote an article for the Fall 2016 issue of The Christian Lawyer magazine outlining how things evolved for this ethics rule.
CONSCIENCE PROTECTION ACT PASSES HOUSE
On July 13, the U.S. House of Representatives passed the Conscience Protection Act. 245-182, which expands protections for individuals and institutions that object to participating in abortion. CLS urged the House leadership to pass the legislation, which now returns to the Senate for its vote.
SUCCESS AT INDIANA UNIVERSITY
In 2015, Indiana University enacted a policy requiring all student organizations to include within their constitutions a clause stating they did not discriminate in membership or leadership on the basis of several factors, including religion. CLS worked closely with other campus ministries to persuade Indiana University not to adopt this policy – a policy that the university acknowledged would have prohibited religious groups from requiring their leaders to be religious. A few weeks ago, Indiana University announced it would not adopt the proposed policy change. Click here and here to see Indiana University’s Non-Discrimination Policy documents.
CLS JOINS BRIEF IN JUDGE RUTH NEELY V. WYOMING COMM. ON JUDICIAL CONDUCT AND ETHICS
CLS joined an amicus brief in a case before the Wyoming Supreme Court in which the Wyoming Commission on Judicial Conduct and Ethics has recommended the removal of a sitting judge from both her Municipal Court Judge and Circuit Court Magistrate positions for responding to a reporter’s question about same-sex marriage. The judge stated, in response to a reporter’s question, that she would not officiate and participate in a same-sex marriage because of her religious convictions. Under Wyoming law, a judge may, but need not, officiate in any wedding. Unfortunately, the Wyoming Supreme Court denied the motion to file the brief, along with similar motions by many other organizations.
CLS filed an amicus brief urging the nation’s highest court to reject the decision of a lower federal court in a critical case regarding Missouri’s discrimination against its religious citizens.
FAITH-BASED ORGANIZATIONS THAT RECEIVE FEDERAL FUNDING
On April 4, nine federal agencies announced their final regulations to implement Executive Order 13559. The regulations allow religious organizations to receive some federal funding to provide various social services without forfeiting their religious identities or religious hiring rights. The regulations are the culmination of work by Professor Carl Esbeck, Stanley Carlson-Thies, and CLS staff over nearly two decades.
The Georgia General Assembly passed its version of a First Amendment Defense Act and a state Religious Freedom Restoration Act. The Center worked closely with Georgia legislators to draft the original bill and with local organizations to support passage and even sent a letter to Georgia’s governor encouraging him to support religious liberty.
KANSAS CAMPUS ACCESS BILL
The Kansas legislature passed a bill to protect campus access for religious student groups. CLS helped work on the language of SB 175, and CLS member Craig Shultz testified before the Kansas Senate committee in support of its passage. The Center provided a written statement early in the process and a letter in mid-March explaining the need for the bill.
CLS STATEMENT ON JUDICIAL NOMINATION: CAUTION NEEDED IN SCOTUS NOMINATION PROCESS
CLS issued a statement regarding the nomination process to fill the vacancy on the Supreme Court left by the passing of Justice Scalia.
CLS LETTER TO THE ABA REGARDING MODEL RULE 8.4
CLS sent a comment letter to the American Bar Association in opposition to proposed changes to Model Rule of Professional Conduct 8.4, which could restrict the practice of law by Christian lawyers. Various CLS members also filed their comments with the ABA.
CLS FILES BRIEF IN STATE OF WASHINGTON V. ARLENE’S FLOWERS, INC.
CLS filed an amicus brief in this case before Washington State’s highest court. The CLS brief argued that there is no compelling state interest to force small businesses, who will serve same-sex couples in general, to provide gay wedding services when there is ready access from others.
CLS FILES BRIEF IN CHABAD-LUBAVITCH OF MICHIGAN V. DR. DOV SCHUCHMAN
CLS filed an amicus brief in Chabad-Lubavitch of Michigan v. Dr. Dov Schuchman, et al. in favor of granting cert and challenging the refusal of the Michigan State Supreme Court to entertain an action to enforce a final decree of the religious dispute resolution process between feuding Chabad-Lubavitch state and local chapters because the Michigan State Supreme Court refused to toll the civil statute of limitations during the religious dispute resolution process. CLS was joined on the brief by Anglican Church in North America, National Association of Evangelicals, National Hispanic Christian Leadership Conference-Conel, Council for Christian Colleges and Universities, Institutional Religious Freedom Alliance, Peacemakers Ministries, and Conflict Resolution and Conciliation Center.
In this Texas abortion case before the United States Supreme Court, CLS joined an amicus brief that did a careful analysis of the “undue burden” standard in abortion case law, arguing that regulations such as those in Texas that focus on the health of the mother and general medical safety are subject only to the rational basis test because they do not impose an undue burden on those seeking an abortion.
CLS MOURNS THE PASSING OF JUSTICE ANTONIN SCALIA
CLS issued a statement on the untimely passing of Justice Scalia.
CLS LETTER TO THE OHIO LEGISLATIVE TO PROTECT RELIGIOUS EXPRESSION
The Center sent a letter to the Ohio House Education Committee in Support of HB 425, which would protect the religious expression of students in public schools.
CLS FILES BRIEF IN STORMANS CASE
CLS filed an amicus brief in support of the petition for cert. in Stormans v. Wiesman, the case in which Washington pharmacists are being required to carry and dispense abortifacients. CLS argued that the Ninth Circuit disregarded evidence that Washington State’s regulations were unnecessary to ensure timely access to medications, while also emphasizing the important national tradition of protecting conscience and religious objectors in the context of the “taking of life” issues.
Center Director Kimberlee Colby submitted a written statement to the Judiciary Committee of the U.S. House of Representatives, Subcommittee on the Constitution and Civil Justice, for the hearing “Oversight of the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act.” Professor Carl Esbeck, CLS board member and former Center Director, also filed written testimony with the committee.
November 16, 2013 marked the 20th anniversary of the Religious Freedom Restoration Act, for which CLS was instrumental in getting bipartisan support for passage of the Act. Our friends at The Becket Fund have created a wonderful video to commemorate the occasion. View this video here.
ANOTHER VICTORY FOR HHS MANDATE CHALLENGERS
On Friday, November 8, 2013, the Court of Appeals for the Seventh Circuit held that the plaintiffs in Korte v. Sebelius and Grote v. Sebelius may challenge the HHS Mandate. In these consolidated appeals, plaintiffs, who are two Catholic families and their closely held corporations, challenged the federal government’s contraception mandate,” a regulatory requirement imposed by the Department of Health and Human Services to implement the terms of the 2010 mandate. The businesses are secular and for-profit, but they operate in conformity with the faith commitments of the families that own and manage them. The court also held that compelling plaintiffs to cover these services substantially burdens their religious-exercise rights. Click here to read the decision.
VICTORY FOR HHS MANDATE CHALLENGERS
On November 1, 2013, the DC Circuit Court of Appeals held the HHS Mandate unconstitutional as to a religious owner of a for-profit business. In Gilardi v. U.S. Dept. of Health and Human Services, the court found that the contraceptive mandate imposed by the Affordable Care Act trammels the right of free exercise—a right that lies at the core of our constitutional liberties—as protected by the Religious Freedom Restoration Act. Click here to read the court’s ruling.
CLS and 19 other organizations signed a letter addressed to Ms. Jeanne Jacobson of the U.S. Office of Personnel Management regarding the principle that American workers should be allowed to take time off for religious observance without risking their jobs. To read the letter, click here.
In its amicus brief filed in the U.S. Supreme Court, CLS argued that a Massachusetts law prohibiting persons (with some exceptions) from knowingly entering a public street or sidewalk within 35 feet of an abortion facility violates the First Amendment. Under the law, within that zone, individuals are subject to fines or jail for entirely peaceful speech, including distributing pamphlets, holding signs, or praying. The CLS brief argued that the basic presumption that speech on sidewalks and streets cannot be banned should be understood to protect freedom of assembly, as well as freedom of speech. Beginning with William Penn’s arrest for giving a sermon on a London street, the brief examines the close historical ties between religious liberty and freedom of assembly. The case is McCullen v. Coakley.
In the Court of Appeals for the Sixth Circuit, CLS filed an amicus brief supporting Christian business owners’ challenge to the HHS Mandate’s requirement that they provide insurance coverage for drugs to which they have religious objections. The case is Domino’s Farms Corp., et. al v. Sebelius.
STANDING TOGETHER FOR RELIGIOUS FREEDOM
Christian Legal Society CEO David Nammo and many other religious leaders and organizations joined in signing an open letter expressing opposition to the Department of Health and Human Services’ contraceptives mandate, saying it “continues to breach universal principles affirmed and protected by the U.S. Constitution and other federal laws.” The letter calls on HHS to expand conscience protections to cover any organization or individual that has religious or moral objections to covering, providing or enabling access to the mandated drugs and services. Click here to read the letter.
The Tenth Circuit just gave Christian business owners a big win against the HHS Mandate on June 27, 2013. Hobby Lobby and its sister organization, Mardel, which runs Christian bookstores, refused to provide coverage of drugs they believe cause abortion and, therefore, violated their religious beliefs. The district court in Oklahoma denied preliminary injunctive relief in December 2012. A three-judge Tenth Circuit panel denied an injunction pending appeal, and Justice Sotomayor denied relief. The Tenth Circuit then agreed to hear the appeal of the denial of the preliminary injunction en banc. Today, the Tenth Circuit held that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. The Tenth Circuit remanded the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.
SUPREME COURT ISSUES TWO MARRIAGE RULINGS
The U.S. Supreme Court issued two rulings today regarding the ability of the federal and state governments to define marriage as between one woman and one man. While striking one section of the federal Defense of Marriage Act (DOMA), the Court claimed to leave the States free to define marriage as between one woman and one man. In United States v. Windsor, Justice Kennedy, writing for the five-justice majority, ruled that Section 3 of DOMA violated the due process and equal protection principles of the Fifth Amendment. While the majority acknowledged that Congress sometimes must define marriage for federal purposes, it ruled that Congress could not “seek to injure the very class New York seeks to protect” – despite the fact that no State, including New York, recognized same-sex marriage at the time DOMA was enacted by bipartisan majorities in both Houses of Congress and was signed into law by President Clinton. One major concern is that a ruling based on equal protection grounds under the Fifth Amendment, which is closely related to the Fourteenth Amendment, may lay the groundwork for eventually applying this to the states. Thankfully, however, marriage continues to be a state-by-state decision.
In Hollingsworth v. Perry, Justice Roberts, writing for a five-justice majority, ruled that the supporters of Proposition 8 did not have standing to appeal the district court’s ruling that Proposition 8 was unconstitutional. (California’s governor and attorney general had refused to defend the voters’ constitutional amendment.) This vacates the Ninth Circuit’s decision. Further legal proceedings will determine what happens to marriage in California, but the decision is limited to California. CLS had filed an amicus brief in the Supreme Court explaining why re-definition of marriage is likely to harm traditional religious believers’ ability to live their faith in the public square. Click here to read the brief.
Todd Starnes of Fox News reported today about Sally Wagenmaker’s efforts in representing Coalition of Life Iowa and Christian Voices for Life of Fort Bend County, Texas. From FoxNews.com:
The Internal Revenue Service allegedly told an Iowa pro-life group they had to sign documents promising not to protest or picket Planned Parenthood and they told a Texas pro-life organization they had to promote abortion, according to documents obtained by Fox News.
“The IRS was concerned about advocacy,” said Sally Wagenmaker, special counsel to the Thomas More Society. “The (agent) said picketing and protesting is not allowed.”
She said the IRS’s role “should only be to determine whether organizations fit the section 501(c)(3) test for ‘charitable, religious, or educational’ qualification, not to inquire about the content of prayers, protests, and petitions.”
“It’s high time that the IRS be called to account for its workers’ potential to trample on our constitutional rights, through such ostensibly innocuous means,” Wagenmaker said, hinting that this may only be the tip of the iceberg of IRS abuses.
An IRS spokesman said they would look into the cases.
Wagenmaker was representing Coalition for Life of Iowa and Christian Voices for Life of Fort Bend County, Texas. Both groups were seeking tax exempt status. Their requests were eventually granted, but only after they sought legal help from the Thomas More Society.
In 2009, the Coalition for Life received correspondence from the IRS raising questions about their prayer activity – specifically outside Planned Parenthood clinics.
“You then asked … to have all Coalition Board members sign a statement that the coalition will not ‘picket’ or ‘protest’ outside of Planned Parenthood or similar organizations and will not ‘organize’ others to do so,” Wagenmaker wrote in a letter to an IRS representative known only as “Ms. Richards.” Wagenmaker said the IRS’s demand was clearly a violation of the pro-life group’s constitutional rights.
“It really concerned me there would seem to be this protection of Planned Parenthood,” Wagenmaker told Fox News. “They had revenues of $55 million and the Coalition is just a group of volunteers.”
The attorney wrote in her letter to the IRS that their demands “come perilously close to violating the First Amendment constitutional rights of the Coalition’s supporters.”
“The IRS’s delay and questioning of the Coalition’s tax-exempt, legitimate activities constitutes unnecessary and prejudicial interference with the Coalition’s legal right to a tax-exempt determination,” she wrote. Wagenmaker said the IRS’s dogged pursuit of the Coalition was “intimidating” and “heavy-handed.”
In the case of Christian Voices, the IRS implied that the group had to include pro-abortion balance to their programming.
They were directed to explain whether the group’s educational programs educate both sides of the issues.
“Your question implies some sort of legal duty to provide a balanced presentation of educational information,” the attorney wrote.
She said it was incredible to think that the government wanted to require a pro-life group to give equal access to pro-choice groups.
“You can’t push an organization around like that,” she said. “You can’t impose your own out-dated, improper, unconstitutional views.”
Shortly after Wagenmaker began pushing back – the groups got their exemptions approved.
“They just needed someone to stand up for their rights and push back,” she said.
RELIGIOUS LIBERTY WIN IN THE ELEVENTH CIRCUIT
CLS filed an amicus brief last summer in Rich v. Secretary, Florida Department of Corrections to protect a Jewish prisoner’s ability to observe kosher dietary requirements. The federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) requires any prison that receives federal funds to accommodate prisoners’ religious observances. A prison may avoid RLUIPA’s requirements by not taking federal funding or by demonstrating it has a compelling reason, such as prison security, that justifies a refusal to accommodate a specific prisoner’s religious request. CLS’s brief argued that prison officials failed to justify denying kosher meals to Jewish prisoners. Although the prison claimed that kosher meals would cost too much, in reality, the prison increased its funding by respecting prisoners’ religious needs in exchange for federal funding. Today, the Eleventh Circuit ruled in the prisoner’s favor. Click here to read the decision.
CLS CONTINUES TO ADVOCATE FOR CHRISTIAN BUSINESS OWNERS
CLS filed an amicus brief today in support of the right of Christian business owners to follow their religious convictions when providing employee insurance coverage. The brief was filed in the U.S. Court of Appeals for the District of Columbia Circuit in Gilardi v HHS. The brief explains why the HHS Mandate’s definition of “religious employer” sharply departs from the American bipartisan tradition of respecting religious conscience rights. Brothers Francis A. Gilardi and Philip M. Gilardi, who own and operate Freshway Foods and Freshway Logistics, want to “run their business in accordance with their religious beliefs and moral values,” said Edward White, senior counsel for the American Center for Law and Justice, representing the Whites.
On April 30, CLS filed an amicus brief in support of Christian business owners’ rights to follow their religious convictions when providing insurance coverage for employees. The brief, filed in the Court of Appeals for the Sixth Circuit, explained why the HHS Mandate’s definition of “religious employer” sharply departs from the American bipartisan tradition of respect for religious conscience rights.
HHA MANDATE OPPORTUNITY – ASSISTED REPRODUCTIVE TECHNOLOGIES SURVEY
Monday, April 8, 2013, is the deadline for submitting comments to the U.S. Department of Health and Human Services (HHS) regarding the February 6, 2013, Notice of Proposed Rulemaking. CLS continues to regard the proposed rule to be inadequate. The definition of “religious employer” is far too narrow and excludes many traditional religious employers, including religious colleges, hospitals, and ministries. The proposed “accommodation” for these employers, by which HHS proposes to make insurers or third party administrators pay for drugs that violate the employers’ religious consciences, is considered an economic charade by many observers. Comments need not be lengthy or comprehensive and may be submitted electronically to https://www.regulations.gov, by midnight Monday.
In March, CLS submitted three amicus briefs in support of Christian business owners’ rights to follow their religious convictions when providing insurance coverage for employees. The briefs were filed in the Third, Eighth, and Tenth Circuits. The briefs explained why the HHS Mandate’s definition of “religious employer” sharply departs from the American bipartisan tradition of respecting religious conscience rights.
CLS filed another amicus brief in support of Christian business owners’ rights to follow their religious convictions when providing insurance coverage for employees. This brief was filed in Grote v. Sebelius. The brief explained why the HHS Mandate’s definition of “religious employers” sharply departs from the American bipartisan tradition of respecting religious conscience rights.
CLS FILES BRIEFS IN SIXTH AND TENTH CIRCUITS
CLS filed amicus briefs in two HHS mandate cases. The briefs support Christian business owners’ rights to follow their religious convictions when providing insurance coverage for employees. One brief was filed in Hobby Lobby v. Sebelius in the Tenth Circuit. The other was filed in Autocam v. Sebelius in the Sixth Circuit. Both briefs explained why the HHS Mandate’s definition of “religious employers” sharply departs from the American bipartisan tradition of respecting religious conscience rights.
CLS FILES BRIEF IN SEVENTH CIRCUIT
CLS filed an amicus brief in Korte v. Sebelius to support Christian business owners’ rights to run their business according to their religious convictions. The case is one of nearly 40 cases challenging the constitutionality of the HHS Mandate, a federal regulation that requires employers to provide insurance coverage for Plan B and ella, which many regard as abortion-inducing drugs. While the Mandate exempts a handful of “religious employers,” the exemption is so narrow that most non-profit – let alone for-profit — religious employers do not qualify for the exemption. The brief explained why the HHS Mandate’s definition of “religious employers” sharply departs from the American bipartisan tradition of respecting religious conscience rights.
On January 29, 2013, CLS filed submitted two amicus briefs. The first brief asked the U.S. Supreme Court to preserve traditional marriage. The brief explained why the re-definition of marriage likely would heavily burden traditional religious believers’ ability to live their faith in the public square. In United States v. Windsor, the Supreme Court will decide whether Congress acted constitutionally in defining marriage, for federal law purposes, as between one woman and one man. In Hollingsworth v. Perry, the Court will decide whether the People of California acted constitutionally in preserving the traditional definition of marriage for state law purposes.
In the second brief, CLS asked a federal court of appeals to implement the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) to allow prisoners to practice their religion. On this brief, CLS was pleased to be represented by the newly inaugurated Stanford Law School Religious Liberty Clinic. Through this collaboration, CLS served two of its fundamental purposes: encouraging law students in their professional development and protecting religious liberty.
The Illinois Attorney General announced on December 5, 2012, that the State would not appeal a court ruling that protects Illinois pharmacists’ conscience rights. This is a significant victory for Christian pharmacists and religious liberty. Throughout seven years of litigation, CLS filed several amicus briefs in Illinois courts against the “Blagojevich Rule,” a regulation aimed at forcing Illinois pharmacists to dispense abortion-inducing drugs despite their religious and moral convictions. Joining CLS on the latest brief were the Catholic Conference of Illinois, the National Catholic Bioethics Center, and the Christian Pharmacists Fellowship International. In September 2012, an Illinois appellate court ruled that the regulation violated state conscience laws. It upheld a 2011 trial court decision that found the regulation violated state laws and the federal First Amendment. In 2005, then-Governor Blagojevich ignored the Illinois legislature’s repeated protection of its citizens’ conscience rights. At a time of a severe pharmacist shortage, the Blagojevich Rule risked the health care of all Illinois citizens by forcing pharmacists to choose between their consciences and their jobs. The State had been expected to appeal, but fortunately, after seven years of litigation, the Attorney General finally chose to accept the courts’ protection of pharmacists’ conscience rights.
CLS FILES TWP BRIEFS TO PRESERVE AMERICANS’ RIGHTS TO LIVE THEIR RELIGIOUS BELIEFS IN THEIR PROFESSIONAL LIVES
In the Ninth Circuit, CLS defended the right of pharmacists to refuse to dispense drugs that they consider to be abortifacients. The brief provides the scientific evidence for the pharmacists’ reasonable belief that the drugs Plan B and ella may destroy human life. The brief also discussed the Christian tradition of respecting each individual unborn human as a unique moral being.
In the Eighth Circuit, CLS supported the right of a Christian business owner to run his business according to his prolife convictions. The case is one of nearly 40 cases challenging the legality of the HHS Mandate, a federal regulation that requires employers to provide insurance coverage for Plan B and ella. While the Mandate exempts a handful of “religious employers,” the exemption is so narrow that most religious employers do not qualify for the exemption. The brief explains why the Mandate’s definition of “religious employer” sharply departs from the bipartisan tradition of respecting religious conscience rights.
October 12, 2012, CLS filed an amicus brief in support of Wheaton College and Belmont Abbey College in their joint challenge to the “HHS Mandate.” The Mandate is a federal regulation that requires employers to provide insurance coverage for Plan B and ella. While the Mandate exempts some “religious employers,” the exemption is so narrow that these religious colleges do not qualify as “religious employers.” Eleven groups joined the CLS brief to explain why the Mandate’s definition of “religious employer” sharply departs from the bipartisan tradition of respecting religious conscience rights.
RELIGIOUS GROUPS FILE BRIEF TO PROTECT RELIGIOUS LIBERTY IN NEW YORK CITY
Religious organizations, many of whom represent hundreds of New York City religious congregations, filed an amicus brief on October 10, 2012 to protect religious groups’ right to rent school facilities on the same basis as other community groups. The New York City Board of Education discriminatorily excludes any group that wishes to meet for a “religious worship service” on weekends or in the evenings. Organized by CLS, the friend-of-the-court brief was joined by thirteen other religious organizations. The brief was filed in the United States Court of Appeals for the Second Circuit in Bronx Household of Faith v. Bd. of Educ. of the City of New York. The brief urged the Second Circuit to protect the religious freedom of New York City congregations to meet for religious worship services on weekends in empty public schools and to uphold the injunction entered by the federal district court on June 29, 2012.
On August 9, 2012, CLS filed an amicus brief in Rich v. Secretary, Florida Dept. of Corrections, to protect a Jewish prisoner’s ability to observe kosher dietary requirements. The federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) requires any prison that receives federal funds to accommodate prisoners’ religious observances. A prison may avoid RLUIPA’s requirements by not taking federal funding or by demonstrating it has a compelling reason, such as prison security, that justifies a refusal to accommodate a specific prisoner’s religious request. CLS’s brief argued that prison officials in this case failed to justify denying kosher meals to Jewish prisoners. Although the prison claims that kosher meals would cost too much, in reality, the prison increases funding by respecting prisoners’ religious needs in exchange for federal funding.
This week CLS participated in two court victories protecting religious liberty in public schools – in New York City and Spartanburg, South Carolina.
A New York federal district court today issued a permanent injunction requiring New York City’s Board of Education to stop discriminating against churches that wish to rent school facilities for weekend use on the same basis as other community groups. For over 15 years, the Board has tried to deny churches their First Amendment right of equal access to government facilities otherwise available to other community groups. CLS’s amici brief in support of Bronx Household of Faith was joined by several co-amici. An expedited appeal to the Second Circuit is expected this summer, in which CLS will again file a brief.
In the second victory, the Court of Appeals for the Fourth Circuit upheld the constitutionality of a public school district accepting elective credits for high school students’ participation in a released time program in Spartanburg, South Carolina. If the Establishment Clause challenge had been successful, public schools’ acceptance of credits for students transferring from religious private schools might have been challenged next. Jim Lehman and Jay Thompson of Nelson Mullins Riley and Scarborough LLP in Columbia, South Carolina, filed an amici brief on behalf of CLS and its co-amici the National Committee for Furtherance of Jewish Education, National Association of Evangelicals, and Advocates for Faith and Freedom.
On May 22, 2012, CLS joined a diverse group of religious and education groups, as well as two highly respected academic centers, to release a new publication entitled Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools. After months of deliberation, 17 organizations reached a commendable consensus for protecting freedom of expression while also punishing bullying and harassment. The purpose of the guidelines is to assist public school educators in their dual mission of protecting all students from bullying and harassment while simultaneously respecting all students’ legitimate freedom of expression, including religious speech. These guidelines provide teachers and administrators with balanced, reasonable criteria for protecting our Nation’s commitment to freedom of speech and religious liberty while protecting all students from harmful bullying and harassment. “The guidelines offer a valuable tool for teaching students to respect other students’ ideas and values, including religious beliefs, which may differ from their own,” said Kim Colby, senior counsel for Christian Legal Society. “Most importantly, the guidelines reinforce the vital cultural and religious pluralism that is essential to our democracy.”
On April 20, 2012, CLS filed an amici brief supporting the right of New York City churches to rent school facilities for their weekend religious worship services. Many congregations rent school facilities for their religious worship services when they are just beginning to form, have outgrown their old facilities, or have suffered flood or fire. While most school districts welcome churches’ use of their facilities on weekends, for seventeen years, New York City’s Board of Education has tried to ban churches from meeting in the public schools on the weekends. In a recent decision, the Second Circuit allowed New York City’s Board of Education to target “religious worship services” for denial of access, even though hundreds of community groups rent school facilities for a variety of uses. The decision applies to New York, Connecticut, and Vermont, but could easily spread across the country.
Last December, the U.S. Supreme Court refused to review the Second Circuit decision, despite the urging of CLS and its amici to consider the churches’ free speech claim of equal access to government facilities. In January, however, the Supreme Court issued its robust decision in Hosanna-Tabor Evangelical Lutheran Church and School, which enforced the Religion Clauses’ protection of churches’ internal governance. In February, Bronx Household of Faith asked the district court to consider its free exercise claim, which had not been ruled upon earlier, particularly in light of Hosanna-Tabor. In March, the district court issued a preliminary injunction in favor of the New York churches and is now considering issuance of a permanent injunction.
Today, by a vote of 51-48 the Senate decided to table the Blunt Amendment. The Blunt Amendment would have amended the Patient Protection and Affordable Care Act (the 2010 health reform law) to protect rights of conscience. The amendment provided that mandated health plans need not cover items or services contrary to the religious beliefs of the issuer, purchaser, or beneficiary of the plan. The amendment also allowed health plans to safeguard healthcare providers’ rights of conscience.
On February 29, CLS sent a letter to all senators expressing its support for the amendment named for its lead sponsor, Senator Blunt of Missouri. The religious liberty community, including CLS, united in opposition to the extremely narrow exemption. On February 10, the President announced a “compromise” that simply made the narrow exemption final and left the previous policy in place. The “compromise” was to allow some religious employers an additional year — until after the election — to comply. During this time further discussions are to occur with an Administration that has been tone-deaf to religious liberty concerns.
Last August, the Administration announced regulations requiring all employers’ health plans to cover contraceptives, including drugs that many consider to be abortifacients. The exemption for religious employers is limited to religious entities who serve only persons of the same faith, employ only persons of the same faith, and inculcate religious values — a redefinition of “religious employer” that leaves Christian colleges, hospitals, homeless shelters, and even many churches unprotected.
CLS filed an amici brief with the U.S. Supreme Court, urging it to protect student religious groups’ right to choose leaders who agree with the groups’ religious beliefs. The Ninth Circuit has ruled that a public university may exclude religious student groups from campus because they have religious requirements for their officers and members.
In a decision reported at 648 F.3d 790 (9th Cir. 2011), the Ninth Circuit held that a public university could apply its nondiscrimination policy to deny recognition to a Christian fraternity and a Christian sorority because of their faith requirements for leaders and members. The panel observed that CLS v. Martinez did not reach the question of the application of nondiscrimination policies to religious student groups. The court went on to conclude, however, that the Martinez analysis should nonetheless be applied and held that the First Amendment was not violated by the university’s exclusion of the two groups — unless the groups show on remand that the university applied the nondiscrimination policy unevenly, by recognizing other groups that violated the nondiscrimination policy, while excluding religious groups because they were religious.
Judge Ripple of the Seventh Circuit, sitting by designation, concurred because he agreed with the panel that its decision in Truth v. Kent School District compelled its result (which it does not), but then proceeded to provide an outstanding explication of why viewpoint discrimination occurs when a university applies nondiscrimination policies to prevent religious groups from selecting leaders who agree with the groups’ beliefs.
UNANIMOUS VICTORY IN SUPREME COURT
The Supreme Court unanimously held that the First Amendment bars employment discrimination suits brought on behalf of ministers against churches, a concept known as the “ministerial exception.” CLS had filed an amici brief in support of churches’ right to decide who their ministers will be and religious schools’ right to decide who their teachers will be. The Court’s decision in Hosanna-Tabor Evangelical Church and School v. Equal Employment Opportunity Commission is here, and CLS’s amici brief is here. The Court held that the “ministerial exception” exists and is anchored in both the Free Exercise and Establishment Clauses. The Court further held that a teacher at a religious school, who had been commissioned a minister by the church that controlled the school, was a “minister” under the ministerial exception; therefore, the teacher’s discrimination lawsuit against the school must be dismissed. Opposing the church and school, the United States government argued that if a ministerial exception existed, it was extremely narrow and applied only to employees who perform exclusively religious functions. The Supreme Court rejected that argument, noting that it was “unsure whether any such employees exist.” At oral argument, Chief Justice Roberts asked the government’s attorney whether the Pope would be a minister under its proposed test. The government also claimed that the Free Exercise Clause provided no protection for a church’s employment decisions. The government’s brief is here.
ELEVENTH CIRCUIT SAYS RELIGIOUS GROUP IS PREVAILING PARTY FOR PURPOSES OF FEES AWARD
The Eleventh Circuit Court of Appeals has reversed the district court’s denial of prevailing party status for attorneys’ fee purposes in Beta Upsilon Chi v Machen, 586 F.3d 908 (11th Cir. 2009). CLS attorneys represented the Christian fraternity Beta Upsilon Chi (“BYX”) in challenging its denial of recognition by the University of Florida because of its requirement that its members and leaders share its religious beliefs. In 2008, the district court denied a preliminary injunction on the merits. On appeal, the Eleventh Circuit granted an injunction pending appeal. Six weeks after the oral argument in the Eleventh Circuit, during which the panel appeared likely to rule in BYX’s favor, the University of Florida reversed course and adopted a new policy, allowing religious groups to have religious requirements for their leaders and members. The Eleventh Circuit then ruled that the new policy mooted the case. The district court determined that BYX was not a prevailing party except for the limited work done on the injunction pending appeal. Now the Eleventh Circuit has reversed and determined that BYX is the prevailing party, and the case returns to the district court.
MONTANA LAW SCHOOL AGREES TO ADOPT REFORMS TO SETTLE LAWSUIT WITH CHRISTIAN STUDENT GROUP
The law school at the University of Montana has agreed to several reforms to their system of allocating funding to student groups, prompting Christian Legal Society and Alliance Defense Fund attorneys representing the CLS student chapter to withdraw a federal lawsuit, Christian Legal Society v. Russell. The reforms include many safeguards that will ensure that funds from student activity fees are distributed in a manner that does not unconstitutionally discriminate on the basis of the student group’s viewpoint and beliefs.
CLS URGES THE PRESIDENT TO PRESERVE RELIGIOUS GROUPS’ RIGHTS TO BE RELIGIOUS
CLS joined a letter to President Obama encouraging him to continue the federal government’s long-standing policy of allowing religious groups to participate in federal grant programs without forfeiting their ability to hire workers who agree with the groups’ religious beliefs. CLS assisted in crafting this significant religious liberty statement. Federal programs often distribute funds through private secular and religious organizations to assist persons who are underprivileged, addicted, abused, or ill. Yet several activist groups have pressured the Obama Administration to force religious groups to choose between their faith-based hiring needs and participation in federal programs to help the underprivileged. On June 21, 2011, these opposing groups sent yet another letter to the President asking him to deny participation to religious groups with faith-based hiring practices. In a strong response, the July 14, 2011 letter — signed by dozens of religious groups from across the faith and political spectrum — urged the President to resist such a detrimental change. The letter respectfully reminded the President that religious liberty is itself a vital civil right and that faith-based hiring by religious groups has always been safeguarded in federal law and policy. Specifically, the letter assured the President that protecting faith-based hiring “upholds fundamental civil rights principles by eschewing the discrimination against religious organizations that would result if religious groups were denied eligibility to compete for federal contracts because they maintain their religious identity in their staffing decisions.” The complete letter is here.
CLS FILES BRIEF TO PROTECT CHURCHES’ AND RELIGIOUS SCHOOLS’ HIRING DECISIONS
On June 20, 2011, CLS filed an amici brief in Hosanna-Tabor v. EEOC urging the government to protect the right of religious schools to employ the teachers who will best convey faith to students without governmental interference. The brief reminded the Supreme Court that every religious community is a mere generation away from extinction. Teachers in religious schools are commonly on the front line of conveying the faith to children. Given our nation’s deeply rooted commitments to religious freedom and church-state separation, an employment-related lawsuit in a civil court is not a permissible vehicle for second-guessing a religious community’s decision about who should be responsible for teaching religious belief to the next generation. The issue of whether the government may veto churches’ and religious schools’ employment decisions is a vital one. Click here to read the brief.
CLS SUPPORTS DOCTORS’ RIGHT TO NOT PARTICIPATE IN ABORTIONS
With the vote on HR 3 scheduled for this afternoon, CLS has signed onto a letter urging members of the U.S. House of Representatives to protect the right of doctors and nurses to refuse to participate in abortions. HR 3 would make permanent the Hyde/Weldon protections for health care workers’ rights of conscience in the abortion context. HR 3 also would make permanent the Hyde Amendment ban on taxpayer funding of abortions.
SUPREME COURT WEAKENS PRISONERS’ RELIGIOUS FREEDOM
On April 20, 2011, the Supreme Court ruled that prisoners cannot obtain money damages against a State when it violates prisoners’ religious rights under the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The decision in Sossamon v. Texas, No. 08-1438, is here. CLS had filed an amici brief arguing that damages provide an important deterrent to state action that infringes prisoners’ religious freedom. Click here to read the brief. With no fear of monetary damages, a State may ignore its responsibilities under RLUIPA until it is on the verge of losing a prisoner lawsuit. At that point, it may simply cease the violation without incurring any penalty for its RLUIPA violation. In this particular case, the State of Texas conceded that it had limited prisoners’ use of the prison chapel and denied certain prisoners access to religious services, both in violation of RLUIPA.
CLS FILES BRIEF IN SUPPORT OF JEWISH PRISONER
Coinciding with the beginning of Passover, on April 19, 2011, CLS filed an amici brief in Willis v. Commissioner to protect a Jewish prisoner’s ability to observe the kosher requirements of his faith. An Indiana prison stopped providing any kosher meals, claiming that the cost had become too great. Under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), any prison that receives federal funds must to accommodate prisoners’ religious observances, unless the prison can demonstrate a compelling reason, such as prison security needs. CLS’s brief argued that prison officials failed to demonstrate a sufficiently compelling interest to justify denying kosher meals to Jewish prisoners. The brief pointed out that, in exchange for federal funding, a prison agrees to accommodate prisoners’ religious needs, so that the prison actually increases its funds by agreeing to respect prisoners’ religious needs. Click here to read the brief.
CLS FILES BRIEF FOR STUDENTS’ RELIGIOUS SPEECH
On April 15, 2011, CLS filed an amici brief in Morgan v. Swanson supporting the right of elementary students to express their faith while at school. Students were allowed to distribute small gifts to their classmates at a “winter holiday” party at school. When three students tried to distribute pencils with the message “Jesus is the Reason for the Season” or candy canes with a message about its religious symbolism, two principals allegedly confiscated their gifts. The Fifth Circuit correctly held that the Supreme Court has clearly established that public school officials may not engage in viewpoint discrimination against elementary students’ religious speech when the speech is not disruptive and not promoted by the school. That earlier decision Morgan v. Swanson is here. But then the Fifth Circuit decided to rehear the case en banc. Click here to read the brief filed in the en banc rehearing.
SUPREME COURT RELIGIOUS LIBERTY WIN
The Supreme Court, on April 4, 2011, announced an important decision for religious liberty. In a 5-4 decision written by Justice Kennedy, the Court held that state taxpayers lacked standing to challenge a state program allowing tax credits for state taxpayers’ contributions to school tuition organizations that provided scholarships to private schools, including religious schools. Justices Scalia and Thomas concurred but would have overruled Flast v. Cohen, 392 U.S. 83 (1968). In dissent, Justice Kagan wrote on behalf of Justices Breyer, Ginsburg, and Sotomayor, urging that the taxpayers had standing under Flast. CLS had filed an amici brief in support of the program’s constitutionality. Click here to read the brief.