CLS SUBMITS CONGRESSIONAL TESTIMONY
Center Director Kimberlee Colby submitted a written statement to the Judiciary Committee of the U.S. House of Representatives, Subcommittee on the Constitution and Civil Justice, for the hearing “Oversight of the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act.” Professor Carl Esbeck, CLS board member and former Center Director, also filed written testimony with the committee.
VIDEO CELEBARTES 20th ANNIVERSARY OF THE RELIGIOUS FREEDOM RESTORATION ACT
November 16, 2013 marked the 20th anniversary of the Religious Freedom Restoration Act, for which CLS was instrumental in getting bipartisan support for passage of the Act. Our friends at The Becket Fund have created a wonderful video to commemorate the occasion. View this video here.
ANOTHER VICTORY FOR HHS MANDATE CHALLENGERS
On Friday, November 8, 2013, the Court of Appeals for the Seventh Circuit held that the plaintiffs in Korte v. Sebelius and Grote v. Sebelius may challenge the HHS Mandate. In these consolidated appeals, plaintiffs, who are two Catholic families and their closely held corporations, challenged the federal government’s contraception mandate,” a regulatory requirement imposed by the Department of Health and Human Services to implement the terms of the 2010 mandate. The businesses are secular and for-profit, but they operate in conformity with the faith commitments of the families that own and manage them. The court also held that compelling plaintiffs to cover these services substantially burdens their religious-exercise rights. Click here to read the decision.
VICTORY FOR HHS MANDATE CHALLENGERS
On November 1, 2013, the DC Circuit Court of Appeals held the HHS Mandate unconstitutional as to a religious owner of a for-profit business. In Gilardi v. U.S. Dept. of Health and Human Services, the court found that the contraceptive mandate imposed by the Affordable Care Act trammels the right of free exercise—a right that lies at the core of our constitutional liberties—as protected by the Religious Freedom Restoration Act. Click here to read the court’s ruling.
CLS JOINS INTER-FAITH COMMENT LETTER
CLS and 19 other organizations signed a letter addressed to Ms. Jeanne Jacobson of the U.S. Office of Personnel Management regarding the principle that American workers should be allowed to take time off for religious observance without risking their jobs. To read the letter, click here.
CLS FILES BRIEFS DEFENDING RELIGIOUS LIBERTY
In its amicus brief filed in the U.S. Supreme Court, CLS argued that a Massachusetts law prohibiting persons (with some exceptions) from knowingly entering a public street or sidewalk within 35 feet of an abortion facility violates the First Amendment. Under the law, within that zone, individuals are subject to fines or jail for entirely peaceful speech, including distributing pamphlets, holding signs, or praying. The CLS brief argued that the basic presumption that speech on sidewalks and streets cannot be banned should be understood to protect freedom of assembly, as well as freedom of speech. Beginning with William Penn's arrest for giving a sermon on a London street, the brief examines the close historical ties between religious liberty and freedom of assembly. The case is McCullen v. Coakley.
In the Court of Appeals for the Sixth Circuit, CLS filed an amicus brief supporting Christian business owners' challenge to the HHS Mandate's requirement that they provide insurance coverage for drugs to which they have religious objections. The case is Domino’s Farms Corp., et. al v. Sebelius.
STANDING TOGETHER FOR RELIGIOUS FREEDOM
Christian Legal Society CEO David Nammo and many other religious leaders and organizations joined in signing an open letter expressing opposition to the Department of Health and Human Services' contraceptives mandate, saying it "continues to breach universal principles affirmed and protected by the U.S. Constitution and other federal laws." The letter calls on HHS to expand conscience protections to cover any organization or individual that has religious or moral objections to covering, providing or enabling access to the mandated drugs and services. Click here to read the letter.
HOBBY LOBBY WINS IN TENTH CIRCUIT EN BANC
The Tenth Circuit just gave Christian business owners a big win against the HHS Mandate on June 27, 2013. Hobby Lobby and its sister organization, Mardel, which runs Christian bookstores, refused to provide coverage of drugs they believe cause abortion and, therefore, violated their religious beliefs. The district court in Oklahoma denied preliminary injunctive relief in December 2012. A three-judge Tenth Circuit panel denied an injunction pending appeal, and Justice Sotomayor denied relief. The Tenth Circuit then agreed to hear the appeal of the denial of the preliminary injunction en banc. Today, the Tenth Circuit held:
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. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.
CLS had filed a brief in support of Hobby Lobby on behalf of several organizations.
SUPREME COURT ISSUES TWO MARRIAGE RULINGS
The U.S. Supreme Court issued two rulings today regarding the ability of the federal and state governments to define marriage as between one woman and one man. While striking one section of the federal Defense of Marriage Act (DOMA), the Court claimed to leave the States free to define marriage as between one woman and one man. In United States v. Windsor, Justice Kennedy, writing for the five-justice majority, ruled that Section 3 of DOMA violated the due process and equal protection principles of the Fifth Amendment. While the majority acknowledged that Congress sometimes must define marriage for federal purposes, it ruled that Congress could not "seek to injure the very class New York seeks to protect" – despite the fact that no State, including New York, recognized same-sex marriage at the time DOMA was enacted by bipartisan majorities in both Houses of Congress and was signed into law by President Clinton. One major concern is that a ruling based on equal protection grounds under the Fifth Amendment, which is closely related to the Fourteenth Amendment, may lay the groundwork for eventually applying this to the states. Thankfully, however, marriage continues to be a state-by-state decision.
In Hollingsworth v. Perry, Justice Roberts, writing for a five-justice majority, ruled that the supporters of Proposition 8 did not have standing to appeal the district court's ruling that Proposition 8 was unconstitutional. (California's governor and attorney general had refused to defend the voters' constitutional amendment.) This vacates the Ninth Circuit's decision. Further legal proceedings will determine what happens to marriage in California, but the decision is limited to California. CLS had filed an amicus brief in the Supreme Court explaining why re-definition of marriage is likely to harm traditional religious believers' ability to live their faith in the public square. Click here to read the brief.
CLS BOARD MEMBER ON THE FRONT LINES OF IRS SCANDAL
Todd Starnes of Fox News reported today about Sally Wagenmaker's efforts in representing Coalition of Life Iowa and Christian Voices for Life of Fort Bend County, Texas. From FoxNews.com:
The Internal Revenue Service allegedly told an Iowa pro-life group they had to sign documents promising not to protest or picket Planned Parenthood and they told a Texas pro-life organization they had to promote abortion, according to documents obtained by Fox News.
“The IRS was concerned about advocacy,” said Sally Wagenmaker, special counsel to the Thomas More Society. “The (agent) said picketing and protesting is not allowed.”
She said the IRS’s role “should only be to determine whether organizations fit the section 501(c)(3) test for ‘charitable, religious, or educational’ qualification, not to inquire about the content of prayers, protests, and petitions.”
“It’s high time that the IRS be called to account for its workers’ potential to trample on our constitutional rights, through such ostensibly innocuous means,” Wagenmaker said, hinting that this may only be the tip of the iceberg of IRS abuses.
An IRS spokesman said they would look into the cases.
Wagenmaker was representing Coalition for Life of Iowa and Christian Voices for Life of Fort Bend County, Texas. Both groups were seeking tax exempt status. Their requests were eventually granted, but only after they sought legal help from the Thomas More Society.
In 2009, the Coalition for Life received correspondence from the IRS raising questions about their prayer activity – specifically outside Planned Parenthood clinics.
“You then asked … to have all Coalition Board members sign a statement that the coalition will not ‘picket’ or ‘protest’ outside of Planned Parenthood or similar organizations and will not ‘organize’ others to do so,” Wagenmaker wrote in a letter to an IRS representative known only as “Ms. Richards.” Wagenmaker said the IRS’s demand was clearly a violation of the pro-life group’s constitutional rights.
“It really concerned me there would seem to be this protection of Planned Parenthood,” Wagenmaker told Fox News. “They had revenues of $55 million and the Coalition is just a group of volunteers.”
The attorney wrote in her letter to the IRS that their demands “come perilously close to violating the First Amendment constitutional rights of the Coalition’s supporters.”
“The IRS’s delay and questioning of the Coalition’s tax-exempt, legitimate activities constitutes unnecessary and prejudicial interference with the Coalition’s legal right to a tax-exempt determination,” she wrote. Wagenmaker said the IRS’s dogged pursuit of the Coalition was “intimidating” and “heavy-handed.”
In the case of Christian Voices, the IRS implied that the group had to include pro-abortion balance to their programming.
They were directed to explain whether the group’s educational programs educate both sides of the issues.
“Your question implies some sort of legal duty to provide a balanced presentation of educational information,” the attorney wrote.
She said it was incredible to think that the government wanted to require a pro-life group to give equal access to pro-choice groups.
“You can’t push an organization around like that,” she said. “You can’t impose your own out-dated, improper, unconstitutional views.”
Shortly after Wagenmaker began pushing back – the groups got their exemptions approved.
“They just needed someone to stand up for their rights and push back,” she said.
RELIGIOUS LIBERTY WIN IN THE ELEVENTH CIRCUIT
CLS filed an amicus brief last summer in Rich v. Secretary, Florida Department of Corrections to protect a Jewish prisoner's ability to observe kosher dietary requirements. The federal Religious Land Use and Institutionalized Persons Act ("RLUIPA") requires any prison that receives federal funds to accommodate prisoners' religious observances. A prison may avoid RLUIPA’s requirements by not taking federal funding or by demonstrating it has a compelling reason, such as prison security, that justifies a refusal to accommodate a specific prisoner’s religious request. CLS's brief argued that prison officials failed to justify denying kosher meals to Jewish prisoners. Although the prison claimed that kosher meals would cost too much, in reality, the prison increased its funding by respecting prisoners' religious needs in exchange for federal funding. Today, the Eleventh Circuit ruled in the prisoner's favor. Click here to read the decision.
CLS CONTINUES TO ADVOCATE FOR CHRISTIAN BUSINESS OWNERS
CLS filed an amicus brief today in support of the right of Christian business owners to follow their religious convictions when providing employee insurance coverage. The brief was filed in the U.S. Court of Appeals for the District of Columbia Circuit in Gilardi v HHS. The brief explains why the HHS Mandate’s definition of “religious employer” sharply departs from the American bipartisan tradition of respecting religious conscience rights. Brothers Francis A. Gilardi and Philip M. Gilardi, who own and operate Freshway Foods and Freshway Logistics, want to “run their business in accordance with their religious beliefs and moral values,” said Edward White, senior counsel for the American Center for Law and Justice, representing the Whites.
CLS FILES BRIEF IN LEGATUS V. SEBELIUS
On April 30, CLS filed an amicus brief in support of Christian business owners' rights to follow their religious convictions when providing insurance coverage for employees. The brief, filed in the Court of Appeals for the Sixth Circuit, explained why the HHS Mandate's definition of "religious employer" sharply departs from the American bipartisan tradition of respect for religious conscience rights.
HHA MANDATE OPPORTUNITY – ASSISTED REPRODUCTIVE TECHNOLOGIES SURVEY
Monday, April 8, 2013, is the deadline for submitting comments to the U.S. Department of Health and Human Services (HHS) regarding the February 6, 2013, Notice of Proposed Rulemaking. CLS continues to regard the proposed rule to be inadequate. The definition of "religious employer" is far too narrow and excludes many traditional religious employers, including religious colleges, hospitals, and ministries. The proposed "accommodation" for these employers, by which HHS proposes to make insurers or third party administrators pay for drugs that violate the employers' religious consciences, is considered an economic charade by many observers. Comments need not be lengthy or comprehensive and may be submitted electronically to http://www.regulations.gov, by midnight Monday.
CLS FILES BRIEFS IN HHS MANDATE CASES
In March, CLS submitted three amicus briefs in support of Christian business owners' rights to follow their religious convictions when providing insurance coverage for employees. The briefs were filed in the Third, Eighth, and Tenth Circuits. The briefs explained why the HHS Mandate’s definition of “religious employer” sharply departs from the American bipartisan tradition of respecting religious conscience rights.
CLS FILES BRIEF IN THE SEVENTH CIRCUIT
CLS filed another amicus brief in support of Christian business owners' rights to follow their religious convictions when providing insurance coverage for employees. This brief was filed in Grote v. Sebelius. The brief explained why the HHS Mandate's definition of "religious employers" sharply departs from the American bipartisan tradition of respecting religious conscience rights.
CLS FILES BRIEFS IN SIXTH AND TENTH CIRCUITS
CLS filed amicus briefs in two HHS mandate cases. The briefs support Christian business owners' rights to follow their religious convictions when providing insurance coverage for employees. One brief was filed in Hobby Lobby v. Sebelius in the Tenth Circuit. The other was filed in Autocam v. Sebelius in the Sixth Circuit. Both briefs explained why the HHS Mandate's definition of "religious employers" sharply departs from the American bipartisan tradition of respecting religious conscience rights.
CLS FILES BRIEF IN SEVENTH CIRCUIT
CLS filed an amicus brief in Korte v. Sebelius to support Christian business owners' rights to run their business according to their religious convictions. The case is one of nearly 40 cases challenging the constitutionality of the HHS Mandate, a federal regulation that requires employers to provide insurance coverage for Plan B and ella, which many regard as abortion-inducing drugs. While the Mandate exempts a handful of "religious employers," the exemption is so narrow that most non-profit - let alone for-profit -- religious employers do not qualify for the exemption. The brief explained why the HHS Mandate's definition of "religious employers" sharply departs from the American bipartisan tradition of respecting religious conscience rights.
CLS SUBMITS TWO BRIEFS
On January 29, 2013, CLS filed submitted two amicus briefs. The first brief asked the U.S. Supreme Court to preserve traditional marriage. The brief explained why the re-definition of marriage likely would heavily burden traditional religious believers' ability to live their faith in the public square. In United States v. Windsor, the Supreme Court will decide whether Congress acted constitutionally in defining marriage, for federal law purposes, as between one woman and one man. In Hollingsworth v. Perry, the Court will decide whether the People of California acted constitutionally in preserving the traditional definition of marriage for state law purposes.
In the second brief, CLS asked a federal court of appeals to implement the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) to allow prisoners to practice their religion. On this brief, CLS was pleased to be represented by the newly inaugurated Stanford Law School Religious Liberty Clinic. Through this collaboration, CLS served two of its fundamental purposes: encouraging law students in their professional development and protecting religious liberty.
ILLINOIS PHARMACISTS’ CONSCIENCE RIGHTS PREVIAL AGAINST “BLAGOEVICH RULE”
The Illinois Attorney General announced on December 5, 2012, that the State would not appeal a court ruling that protects Illinois pharmacists' conscience rights. This is a significant victory for Christian pharmacists and religious liberty. Throughout seven years of litigation, CLS filed several amicus briefs in Illinois courts against the “Blagojevich Rule,” a regulation aimed at forcing Illinois pharmacists to dispense abortion-inducing drugs despite their religious and moral convictions. Joining CLS on the latest brief were the Catholic Conference of Illinois, the National Catholic Bioethics Center, and the Christian Pharmacists Fellowship International. In September 2012, an Illinois appellate court ruled that the regulation violated state conscience laws. It upheld a 2011 trial court decision that found the regulation violated state laws and the federal First Amendment. In 2005, then-Governor Blagojevich ignored the Illinois legislature’s repeated protection of its citizens’ conscience rights. At a time of a severe pharmacist shortage, the Blagojevich Rule risked the health care of all Illinois citizens by forcing pharmacists to choose between their consciences and their jobs. The State had been expected to appeal, but fortunately, after seven years of litigation, the Attorney General finally chose to accept the courts' protection of pharmacists' conscience rights.
CLS FILES TWP BRIEFS TO PRESERVE AMERICANS’ RIGHTS TO LIVE THEIR RELIGIOUS BELIEFS IN THEIR PROFESSIONAL LIVES
In the Ninth Circuit, CLS defended the right of pharmacists to refuse to dispense drugs that they consider to be abortifacients. The brief provides the scientific evidence for the pharmacists’ reasonable belief that the drugs Plan B and ella may destroy human life. The brief also discussed the Christian tradition of respecting each individual unborn human as a unique moral being.
In the Eighth Circuit, CLS supported the right of a Christian business owner to run his business according to his prolife convictions. The case is one of nearly 40 cases challenging the legality of the HHS Mandate, a federal regulation that requires employers to provide insurance coverage for Plan B and ella. While the Mandate exempts a handful of "religious employers," the exemption is so narrow that most religious employers do not qualify for the exemption. The brief explains why the Mandate’s definition of “religious employer” sharply departs from the bipartisan tradition of respecting religious conscience rights.
CLS FILES BRIEF TO PROTECT THE RIGHTS OF RELIGIOUS ORGANIZATIONS
October 12, 2012, CLS filed an amicus brief in support of Wheaton College and Belmont Abbey College in their joint challenge to the "HHS Mandate." The Mandate is a federal regulation that requires employers to provide insurance coverage for Plan B and ella. While the Mandate exempts some "religious employers," the exemption is so narrow that these religious colleges do not qualify as "religious employers." Eleven groups joined the CLS brief to explain why the Mandate’s definition of “religious employer” sharply departs from the bipartisan tradition of respecting religious conscience rights.
RELIGIOUS GROUPS FILE BRIEF TO PROTECT RELIGIOUS LIBERTY IN NEW YORK CITY
Religious organizations, many of whom represent hundreds of New York City religious congregations, filed an amicus brief on October 10, 2012 to protect religious groups’ right to rent school facilities on the same basis as other community groups. The New York City Board of Education discriminatorily excludes any group that wishes to meet for a “religious worship service” on weekends or in the evenings. Organized by CLS, the friend-of-the-court brief was joined by thirteen other religious organizations. The brief was filed in the United States Court of Appeals for the Second Circuit in Bronx Household of Faith v. Bd. of Educ. of the City of New York. The brief urged the Second Circuit to protect the religious freedom of New York City congregations to meet for religious worship services on weekends in empty public schools and to uphold the injunction entered by the federal district court on June 29, 2012.
CLS FILES BRIEF IN RUILPA CASE
On August 9, 2012, CLS filed an amicus brief in Rich v. Secretary, Florida Dept. of Corrections, to protect a Jewish prisoner's ability to observe kosher dietary requirements. The federal Religious Land Use and Institutionalized Persons Act ("RLUIPA") requires any prison that receives federal funds to accommodate prisoners' religious observances. A prison may avoid RLUIPA’s requirements by not taking federal funding or by demonstrating it has a compelling reason, such as prison security, that justifies a refusal to accommodate a specific prisoner’s religious request. CLS's brief argued that prison officials in this case failed to justify denying kosher meals to Jewish prisoners. Although the prison claims that kosher meals would cost too much, in reality, the prison increases funding by respecting prisoners' religious needs in exchange for federal funding.
TWO WINS FOR RELIGIOUS FREEDOM IN THE PUBLIC SCHOOLS
This week CLS participated in two court victories protecting religious liberty in public schools – in New York City and Spartanburg, South Carolina.
A New York federal district court today issued a permanent injunction requiring New York City’s Board of Education to stop discriminating against churches that wish to rent school facilities for weekend use on the same basis as other community groups. For over 15 years, the Board has tried to deny churches their First Amendment right of equal access to government facilities otherwise available to other community groups. CLS’s amici brief in support of Bronx Household of Faith was joined by several co-amici. An expedited appeal to the Second Circuit is expected this summer, in which CLS will again file a brief.
In the second victory, the Court of Appeals for the Fourth Circuit upheld the constitutionality of a public school district accepting elective credits for high school students’ participation in a released time program in Spartanburg, South Carolina. If the Establishment Clause challenge had been successful, public schools’ acceptance of credits for students transferring from religious private schools might have been challenged next. Jim Lehman and Jay Thompson of Nelson Mullins Riley and Scarborough LLP in Columbia, South Carolina, filed an amici brief on behalf of CLS and its co-amici the National Committee for Furtherance of Jewish Education, National Association of Evangelicals, and Advocates for Faith and Freedom.
EDUCATION AND RELIGIOUS GROUPS RELEASE GUIDELEINES REGARDING BULLYING AND FREEDOM OF EXPRESSION IN PUBLIC SCHOOLS
On May 22, 2012, CLS joined a diverse group of religious and education groups, as well as two highly respected academic centers, to release a new publication entitled Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools. After months of deliberation, 17 organizations reached a commendable consensus for protecting freedom of expression while also punishing bullying and harassment. The purpose of the guidelines is to assist public school educators in their dual mission of protecting all students from bullying and harassment while simultaneously respecting all students’ legitimate freedom of expression, including religious speech. These guidelines provide teachers and administrators with balanced, reasonable criteria for protecting our Nation’s commitment to freedom of speech and religious liberty while protecting all students from harmful bullying and harassment. “The guidelines offer a valuable tool for teaching students to respect other students’ ideas and values, including religious beliefs, which may differ from their own,” said Kim Colby, senior counsel for Christian Legal Society. “Most importantly, the guidelines reinforce the vital cultural and religious pluralism that is essential to our democracy.”
CLS FILES BRIEF TO PROTECT CHURCHES' WORSHIP SERVICES
On April 20, 2012, CLS filed an amici brief supporting the right of New York City churches to rent school facilities for their weekend religious worship services. Many congregations rent school facilities for their religious worship services when they are just beginning to form, have outgrown their old facilities, or have suffered flood or fire. While most school districts welcome churches’ use of their facilities on weekends, for seventeen years, New York City’s Board of Education has tried to ban churches from meeting in the public schools on the weekends. In a recent decision, the Second Circuit allowed New York City’s Board of Education to target “religious worship services” for denial of access, even though hundreds of community groups rent school facilities for a variety of uses. The decision applies to New York, Connecticut, and Vermont, but could easily spread across the country.
Last December, the U.S. Supreme Court refused to review the Second Circuit decision, despite the urging of CLS and its amici to consider the churches’ free speech claim of equal access to government facilities. In January, however, the Supreme Court issued its robust decision in Hosanna-Tabor Evangelical Lutheran Church and School, which enforced the Religion Clauses’ protection of churches’ internal governance. In February, Bronx Household of Faith asked the district court to consider its free exercise claim, which had not been ruled upon earlier, particularly in light of Hosanna-Tabor. In March, the district court issued a preliminary injunction in favor of the New York churches and is now considering issuance of a permanent injunction.
SENATE VOTES AGAINST PROTECTING RIGHTS OF CONSCIENCE
Today, by a vote of 51-48 the Senate decided to table the Blunt Amendment. The Blunt Amendment would have amended the Patient Protection and Affordable Care Act (the 2010 health reform law) to protect rights of conscience. The amendment provided that mandated health plans need not cover items or services contrary to the religious beliefs of the issuer, purchaser, or beneficiary of the plan. The amendment also allowed health plans to safeguard healthcare providers’ rights of conscience.
On February 29, CLS sent a letter to all senators expressing its support for the amendment named for its lead sponsor, Senator Blunt of Missouri. The religious liberty community, including CLS, united in opposition to the extremely narrow exemption. On February 10, the President announced a "compromise" that simply made the narrow exemption final and left the previous policy in place. The "compromise" was to allow some religious employers an additional year -- until after the election -- to comply. During this time further discussions are to occur with an Administration that has been tone-deaf to religious liberty concerns.
Last August, the Administration announced regulations requiring all employers' health plans to cover contraceptives, including drugs that many consider to be abortifacients. The exemption for religious employers is limited to religious entities who serve only persons of the same faith, employ only persons of the same faith, and inculcate religious values -- a redefinition of "religious employer" that leaves Christian colleges, hospitals, homeless shelters, and even many churches unprotected.
PROTECTING RELIGIOUS GROUPS ON CAMPUS
CLS filed an amici brief with the U.S. Supreme Court, urging it to protect student religious groups’ right to choose leaders who agree with the groups’ religious beliefs. The Ninth Circuit has ruled that a public university may exclude religious student groups from campus because they have religious requirements for their officers and members.
In a decision reported at 648 F.3d 790 (9th Cir. 2011), the Ninth Circuit held that a public university could apply its nondiscrimination policy to deny recognition to a Christian fraternity and a Christian sorority because of their faith requirements for leaders and members. The panel observed that CLS v. Martinez did not reach the question of the application of nondiscrimination policies to religious student groups. The court went on to conclude, however, that the Martinez analysis should nonetheless be applied and held that the First Amendment was not violated by the university’s exclusion of the two groups -- unless the groups show on remand that the university applied the nondiscrimination policy unevenly, by recognizing other groups that violated the nondiscrimination policy, while excluding religious groups because they were religious.
Judge Ripple of the Seventh Circuit, sitting by designation, concurred because he agreed with the panel that its decision in Truth v. Kent School District compelled its result (which it does not), but then proceeded to provide an outstanding explication of why viewpoint discrimination occurs when a university applies nondiscrimination policies to prevent religious groups from selecting leaders who agree with the groups’ beliefs.
UNANIMOUS VICTORY IN SUPREME COURT
The Supreme Court unanimously held that the First Amendment bars employment discrimination suits brought on behalf of ministers against churches, a concept known as the “ministerial exception.” CLS had filed an amici brief in support of churches’ right to decide who their ministers will be and religious schools’ right to decide who their teachers will be. The Court’s decision in Hosanna-Tabor Evangelical Church and School v. Equal Employment Opportunity Commission is here, and CLS’s amici brief is here. The Court held that the “ministerial exception” exists and is anchored in both the Free Exercise and Establishment Clauses. The Court further held that a teacher at a religious school, who had been commissioned a minister by the church that controlled the school, was a “minister” under the ministerial exception; therefore, the teacher’s discrimination lawsuit against the school must be dismissed. Opposing the church and school, the United States government argued that if a ministerial exception existed, it was extremely narrow and applied only to employees who perform exclusively religious functions. The Supreme Court rejected that argument, noting that it was “unsure whether any such employees exist.” At oral argument, Chief Justice Roberts asked the government’s attorney whether the Pope would be a minister under its proposed test. The government also claimed that the Free Exercise Clause provided no protection for a church’s employment decisions. The government’s brief is here.
ELEVENTH CIRCUIT SAYS RELIGIOUS GROUP IS PREVAILING PARTY FOR PURPOSES OF FEES AWARD
The Eleventh Circuit Court of Appeals has reversed the district court’s denial of prevailing party status for attorneys’ fee purposes in Beta Upsilon Chi v Machen, 586 F.3d 908 (11th Cir. 2009). CLS attorneys represented the Christian fraternity Beta Upsilon Chi (“BYX”) in challenging its denial of recognition by the University of Florida because of its requirement that its members and leaders share its religious beliefs. In 2008, the district court denied a preliminary injunction on the merits. On appeal, the Eleventh Circuit granted an injunction pending appeal. Six weeks after the oral argument in the Eleventh Circuit, during which the panel appeared likely to rule in BYX’s favor, the University of Florida reversed course and adopted a new policy, allowing religious groups to have religious requirements for their leaders and members. The Eleventh Circuit then ruled that the new policy mooted the case. The district court determined that BYX was not a prevailing party except for the limited work done on the injunction pending appeal. Now the Eleventh Circuit has reversed and determined that BYX is the prevailing party, and the case returns to the district court.
MONTANA LAW SCHOOL AGREES TO ADOPT REFORMS TO SETTLE LAWSUIT WITH CHRISTIAN STUDENT GROUP
The law school at the University of Montana has agreed to several reforms to their system of allocating funding to student groups, prompting Christian Legal Society and Alliance Defense Fund attorneys representing the CLS student chapter to withdraw a federal lawsuit, Christian Legal Society v. Russell. The reforms include many safeguards that will ensure that funds from student activity fees are distributed in a manner that does not unconstitutionally discriminate on the basis of the student group’s viewpoint and beliefs.
CLS URGES THE PRESIDENT TO PRESERVE RELIGIOUS GROUPS’ RIGHTS TO BE RELIGIOUS
CLS joined a letter to President Obama encouraging him to continue the federal government's long-standing policy of allowing religious groups to participate in federal grant programs without forfeiting their ability to hire workers who agree with the groups' religious beliefs. CLS assisted in crafting this significant religious liberty statement. Federal programs often distribute funds through private secular and religious organizations to assist persons who are underprivileged, addicted, abused, or ill. Yet several activist groups have pressured the Obama Administration to force religious groups to choose between their faith-based hiring needs and participation in federal programs to help the underprivileged. On June 21, 2011, these opposing groups sent yet another letter to the President asking him to deny participation to religious groups with faith-based hiring practices. In a strong response, the July 14, 2011 letter -- signed by dozens of religious groups from across the faith and political spectrum -- urged the President to resist such a detrimental change. The letter respectfully reminded the President that religious liberty is itself a vital civil right and that faith-based hiring by religious groups has always been safeguarded in federal law and policy. Specifically, the letter assured the President that protecting faith-based hiring "upholds fundamental civil rights principles by eschewing the discrimination against religious organizations that would result if religious groups were denied eligibility to compete for federal contracts because they maintain their religious identity in their staffing decisions." The complete letter is here.
CLS FILES BRIEF TO PROTECT CHURCHES’ AND RELIGIOUS SCHOOLS’ HIRING DECISIONS
On June 20, 2011, CLS filed an amici brief in Hosanna-Tabor v. EEOC urging the government to protect the right of religious schools to employ the teachers who will best convey faith to students without governmental interference. The brief reminded the Supreme Court that every religious community is a mere generation away from extinction. Teachers in religious schools are commonly on the front line of conveying the faith to children. Given our nation's deeply rooted commitments to religious freedom and church-state separation, an employment-related lawsuit in a civil court is not a permissible vehicle for second-guessing a religious community's decision about who should be responsible for teaching religious belief to the next generation. The issue of whether the government may veto churches' and religious schools' employment decisions is a vital one. Click here to read the brief.
CLS SUPPORTS DOCTORS’ RIGHT TO NOT PARTICIPATE IN ABORTIONS
With the vote on HR 3 scheduled for this afternoon, CLS has signed onto a letter urging members of the U.S. House of Representatives to protect the right of doctors and nurses to refuse to participate in abortions. HR 3 would make permanent the Hyde/Weldon protections for health care workers' rights of conscience in the abortion context. HR 3 also would make permanent the Hyde Amendment ban on taxpayer funding of abortions.
SUPREME COURT WEAKENS PRISONERS’ RELIGIOUS FREEDOM
On April 20, 2011, the Supreme Court ruled that prisoners cannot obtain money damages against a State when it violates prisoners' religious rights under the federal Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The decision in Sossamon v. Texas, No. 08-1438, is here. CLS had filed an amici brief arguing that damages provide an important deterrent to state action that infringes prisoners' religious freedom. Click here to read the brief. With no fear of monetary damages, a State may ignore its responsibilities under RLUIPA until it is on the verge of losing a prisoner lawsuit. At that point, it may simply cease the violation without incurring any penalty for its RLUIPA violation. In this particular case, the State of Texas conceded that it had limited prisoners' use of the prison chapel and denied certain prisoners access to religious services, both in violation of RLUIPA.
CLS FILES BRIEF IN SUPPORT OF JEWISH PRISONER
Coinciding with the beginning of Passover, on April 19, 2011, CLS filed an amici brief in Willis v. Commissioner to protect a Jewish prisoner's ability to observe the kosher requirements of his faith. An Indiana prison stopped providing any kosher meals, claiming that the cost had become too great. Under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), any prison that receives federal funds must to accommodate prisoners' religious observances, unless the prison can demonstrate a compelling reason, such as prison security needs. CLS's brief argued that prison officials failed to demonstrate a sufficiently compelling interest to justify denying kosher meals to Jewish prisoners. The brief pointed out that, in exchange for federal funding, a prison agrees to accommodate prisoners' religious needs, so that the prison actually increases its funds by agreeing to respect prisoners' religious needs. Click here to read the brief.
CLS FILES BRIEF FOR STUDENTS’ RELIGIOUS SPEECH
On April 15, 2011, CLS filed an amici brief in Morgan v. Swanson supporting the right of elementary students to express their faith while at school. Students were allowed to distribute small gifts to their classmates at a "winter holiday" party at school. When three students tried to distribute pencils with the message "Jesus is the Reason for the Season" or candy canes with a message about its religious symbolism, two principals allegedly confiscated their gifts. The Fifth Circuit correctly held that the Supreme Court has clearly established that public school officials may not engage in viewpoint discrimination against elementary students' religious speech when the speech is not disruptive and not promoted by the school. That earlier decision Morgan v. Swanson is here. But then the Fifth Circuit decided to rehear the case en banc. Click here to read the brief filed in the en banc rehearing.
SUPREME COURT RELIGIOUS LIBERTY WIN
The Supreme Court, on April 4, 2011, announced an important decision for religious liberty. In a 5-4 decision written by Justice Kennedy, the Court held that state taxpayers lacked standing to challenge a state program allowing tax credits for state taxpayers' contributions to school tuition organizations that provided scholarships to private schools, including religious schools. Justices Scalia and Thomas concurred but would have overruled Flast v. Cohen, 392 U.S. 83 (1968). In dissent, Justice Kagan wrote on behalf of Justices Breyer, Ginsburg, and Sotomayor, urging that the taxpayers had standing under Flast. CLS had filed an amici brief in support of the program's constitutionality. Click here to read the brief.