Kim Colby Discusses RFRA on Cross & Gavel Podcast

On the latest episode of Cross & Gavel Audio, I asked Kim Colby to talk about the Religious Freedom Restoration Act, its history, and the basis for all the recent hubbub.

Fortnight for Freedom - Fourth of July

As the Fortnight for Freedom concludes today, I have “invited” James Madison to write this final entry.  His words remain an eloquent – and revolutionary – exposition of the reasons undergirding religious liberty, not just for Americans but for all human beings.

Within two years of the treaty ending the Revolutionary War, in 1785, Madison penned the “Memorial and Remonstrance Against Religious Assessments,” as a petition to the Virginia General Assembly for broader religious liberty.  Madison begins with a radical assertion that is fundamental to any robust understanding of religious liberty:

Because we hold it for a fundamental and undeniable truth, that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.   [Read the rest of the Memorial and Remonstrance here.]

Pray that our Society will take to heart the importance of “the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him.”  Pray for our remaining Supreme Court justice, Justice Sotomayor, and her work on the Court. 

My hope is that many of us will continue to take time to pray for religious liberty generally, and specific situations and government officials particularly, in the coming year.  Thank you for being part of the Fortnight for Freedom.  

The Methuselah of Litigation Lives On

Seventeen years ago, in 1995, a small New York City congregation, the Bronx Household of Faith, was told that it could not rent school facilities for weekend use because it would violate the Establishment Clause.  New congregations, congregations that outgrow their own buildings, and congregations whose facilities have suffered fire or flood – all need to rent space, particularly in the expensive real estate market of New York City.

Bronx Household went to court, claiming that the New York City school district was violating its free speech right.  The church lost in the district court and Second Circuit, but did not give up.

Then the Supreme Court issued its Good News Club v. Milford Central School opinion in 2000, in which the Court strongly suggested that the Bronx Household decisions were wrongly decided.  The church went to court again and won.  Since 2002, dozens of NYC churches have rented space on weekends for their services.

But the school district continued to rework its policy to keep the churches out.  In 2007, the Second Circuit upheld the school district’s latest policy that allowed churches to meet for religious speech and discussions -- but not for religious worship services.  When the Supreme Court turned down the church’s petition for review in December 2011, the case seemed over.

But then the Supreme Court issued its January 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, breathing new life into churches’ free exercise claims.  The congregation went back into the district court, claiming this time that the school district’s policy violated its free exercise rights.

Today the district court ruled in favor of the church and all NYC churches.  But the school district is quite likely to file another appeal in the Second Circuit.

Please pray for the Bronx Household of Faith and all churches in New York City that rent school facilities.  Pray that the Second Circuit will uphold their right to do so.  Pray for Jordan Lorence, the attorney faithfully representing the church for seventeen years, and Rick Claybrook who has drafted CLS’s most recent amici briefs in the case.  Finally, please pray for Justice Breyer and his work on the Supreme Court.

Common Sense or Religious Discrimination?

For over 35 years, some public university officials have looked for opportunities to exclude religious groups from campus.  At first, they claimed that the Establishment Clause prohibited religious activity on public educational property because of the “school prayer” decisions.  But in 1981, the Supreme Court held that religious student groups had a free speech right to meet on campus for prayer and Bible study.  In 1995, the Court ruled that religious student groups had a right to funding from student activity fee funding, if other student groups received funding.

Some university officials then adopted a new tack.  All student groups were required to agree to abide by nondiscrimination policies, including prohibitions on religious discrimination.  That would be an easy agreement, but only if nondiscrimination policies were interpreted in a common sense manner to allow religious groups to require their leaders to be religious. 

But a handful of university officials began to misinterpret nondiscrimination policies to mean that religious groups could not require their leaders to agree with their religious beliefs.  Nondiscrimination policies, intended to protect religious students, suddenly were being used to exclude them from campus.  Evangelical Christian groups were most affected because of their common requirement that their leaders affirm statements of faith defining the groups’ core beliefs.

A particularly egregious example of this tortured logic was seen at Vanderbilt University this past year.  In April, the Vanderbilt administration told a Christian student group that it could not require its leaders to have “a personal commitment to Jesus Christ.” Vanderbilt also told the Christian Legal Society that it could not expect its leaders to lead its Bible studies, prayer, and worship, because that indicated that CLS expected its leaders to have certain religious beliefs.  As a result, 15 Christian groups left the Vanderbilt campus this spring.

Please pray for Justice Ginsburg who seems to support exclusion of religious student groups from campus.  Please pray for the students and their faculty advisors at Vanderbilt University.  Pray that university administrators will change course and once again welcome true religious diversity and pluralism to the Vanderbilt campus.

This is the fifth in a series of posts from Kim Colby commemorating the Fortnight4Freedom

Fortnight4Freedom: Justice in the Middle

Please pray for Justice Anthony Kennedy and his work on the Court.  Pray that he would give appropriate value to religious liberty, free speech, and free assembly in his decisions.

The country awaits this week’s ruling regarding the constitutionality of the Patient Protection and Affordable Care Act’s “individual mandate.”  It is common wisdom that the deciding vote, which will determine whether a key component of the 2010 health reform legislation is constitutional, rests with Justice Kennedy.

Justice Kennedy has been a critical swing vote on the Court for several years.  Increasingly, he is the decisive vote in any 5-4 split.  On any social issue -- from religious liberty to abortion to traditional marriage -- his views often determine which way the law will go.  Please pray for him today – and often in the future – that he would give priority in his decisions to the First Amendment’s protections of religious liberty, speech, and assembly.

Fortnight4Freedom: Smith is the Problem

From Kim Colby, Senior Counsel at the Christian Legal Society's Center for Law & Religious Freedom, our guest blogger during the Fortnight for Freedom:

Please pray that the Court will overturn the Smith decision.  Please also pray for Justice Scalia and his work on the Court.

The problem is Smith.  Religious liberty has always been a fragile proposition.  But it moved to the top of the list of endangered constitutional rights with the Supreme Court’s 1990 decision in Employment Division v. Smith. 

Pre-Smith, the Court allowed religious citizens or religious institutions an exemption from the application of a neutral law of general applicability, unless the government could demonstrate a compelling interest, unachievable by less restrictive means.  In other words, even if the government prohibited the sale of wine in general, it must permit churches to purchase wine for use in Communion services.

In Smith, the Court, in an opinion written by Justice Scalia, removed this religion-protective test.  Religious citizens and institutions no longer are presumed to be exempt from neutral laws of general applicability. 

Over the past two decades, several loopholes have been found in the Smith decision.  But it’s why the government could argue to the Court a few months ago in Hosanna-Tabor that the government could review churches’ employment decisions under the nondiscrimination laws.  Fortunately, the Court distinguished Smith and protected churches’ employment decisions.  But it’s also why the Administration claims it can force religious employers to provide insurance coverage of contraceptives and abortifacients for employees, despite the employers’ religious objections.   

The Fortnight for Freedom - From Kim Colby

I want to welcome Kim Colby as my guest blogger for the next two weeks to help celebrate The Fortnight for Freedom.  

Kim is Senior Counsel at the Center for Law & Religious Freedom, where she has worked since graduating from Harvard Law School in 1981. She has represented religious groups in numerous appellate cases, including two cases that were heard in the United States Supreme Court.  She was involved in congressional passage of the Equal Access Act in 1984. With Kim's long history of service in the area of religious liberty, I thought it appropriate that she post for me during the Fortnight of Freedom. From Kim:

The Fortnight for Freedom begins today.   Please thank God that America has been a refuge for those seeking religious liberty for hundreds of years.  Specifically, thank God for the Supreme Court’s January decision protecting churches’ right to employ ministers without governmental interference (the Hosanna-Tabor case).   Please pray for Supreme Court Chief Justice John Roberts, who wrote the unanimous opinion, and for his work on the Court.  (We will pray for each Justice in the coming days.)

The “Fortnight for Freedom” is a national campaign of teaching, witness, and prayer against the abortifacient and contraceptive mandate and in favor of religious freedom. -MS

Journal of Christian Legal Thought, Volume 1, No. 3

The electronic version of the Journal of Christian Legal Thought is out. Access it here.

In this issue, there is a full edition of Scott Pryor's excellent essay, The Law of Contracts: A Place to Start, which serves as a primer for anyone who desires to see human law better conform to the justice of God.

Professor Pryor begins by outlining briefly the contextual foundations of Love, Sin, and Justice, and the historical matrix of creation-fall-redemption-consummation. He then builds on those foundations by discussing four doctrines in the context of Contract law:

The Creator-Creature Distinction

The Covenantal Structure of Understanding

The Law of God

Sin

He concludes with three interpretive perspectives by which we might begin applying the parts of the law of contracts to the "whole" described by the four doctrines.

You will also find Kim Colby's regular column, Speaking of Religious Freedom, in which she discusses the assault on pluralism signaled by the situation at Vanderbilt University and the Bronx Household of Faith case.

Your comments and submissions are welcome.