Religious Liberty After Today's Supreme Court Decision

The Supreme Court today held that the “Individual Mandate” is a constitutional tax on all Americans.  The Court’s ruling, however, did not address the major religious liberty issue regarding the constitutionality of the “HHS Mandate.” Since last August, the religious liberty community has criticized the Obama Administration’s HHS Mandate, which requires most religious employers to provide insurance coverage for contraceptives, abortion-inducing drugs, and sterilizations to which they have religious objections.  For many religious employers, the HHS Mandate begins to take effect in five weeks, on August 1, 2012. 

Had the Court struck down the entire Patient Protection and Affordable Care Act, the religious liberty issues would have vanished.  Because the Court left the law intact, the religious liberty community’s legal challenges to the HHS Mandate take on increased urgency.  (The HHS Mandate is not a part of the PPACA, and is arguably contrary to it.  But HHS relied on the PPACA in adopting the HHS Mandate.)

The HHS Mandate is a dramatic departure from the Nation’s bipartisan tradition of protecting religious conscience rights in the context of abortion funding.  By adopting an extremely narrow definition of “religious employer” for purposes of the HHS Mandate, the Obama Administration has unilaterally, and unacceptably, re-defined religion.  Religious institutions are only protected if they are entirely inwardly focused.  Religious institutions that provide assistance to all persons, regardless of religion or creed, are penalized.  By easing government’s burden and providing food, shelter, education, and health care for society’s most vulnerable, churches and charities lose their conscience rights because they are too inclusive. 

The Christian Legal Society recently provided comments to the Obama Administration regarding the numerous ways in which the HHS Mandate violates religious liberty.  

Please pray that the HHS Mandate will be abandoned by the Administration or held unconstitutional by the courts in coming months.  Please pray for President Obama.  Please pray specifically that he will take seriously his duty to protect religious liberty and will reverse course on this needlessly divisive mandate.  Please also pray for HHS Secretary Kathleen Sebelius, the government official most directly responsible for the mandate and a longstanding proponent of abortion.

This is Kim Colby's sixth post in a series celebrating, in an ironic twist, the Fortnight for Freedom. Kim is the Senior Counsel for the Center for Law and Religious Freedom at the Christian Legal Society. MS

CLS v. Martinez Oral Arguments

Monday morning at 10 am eastern, the Supreme Court will hear arguments in Christian Legal Society v. Martinez, a case that will have a lasting impact on how religious student groups are treated by public universities.

Video and transcript of PBS's Religion & Ethics Weekly piece on the case, airing on television tomorrow, are available already online. The reporting is fine, and it's a pretty balanced piece, yet the issues need more than a five-minute treatment. Here are just a few of the misconceptions that might remain after one watches the interview:

• "CLS discriminates based on sexual orientation, but thinks that its right to associational speech trumps the other issues." This isn't true. Conduct, not orientation is what is prohibited by CLS, and CLS asks all of its members, whatever their "orientation," to abstain from sex outside of traditional marriage.
• "This case is about public funds." Not so. Leo Martinez, in the PBS interview, says that because Hastings funds their groups with "public money," they can't fund a group like the Christian Legal Society. In reality, all student groups are funded by student activity fees. While CLS students are forced to pay for gay rights advocacy with their fees, their voice is silenced because of their particular beliefs about the way the world works.
• "CLS wants treatment that is different from other student groups on campus." This is not true, either. All groups, even religious groups, have the right to choose their leaders and members-- those who carry its message-- without being excluded from campus life. This is the gist of the case. CLS was kicked off campus-- no email server for its announcements, no classroom chalkboards, no web space, no funding-- because they have the temerity to actually believe orthodox Christian doctrine.
• "This is a case about the separation of church and state." It is not. Since at least 1981, the law has been clear that public universities don't violate the First Amendment's Establishment Clause when they recognize religious student groups, and in 1995, the court held that public universities can give money to religious student groups. In the 80's and 90's, hostile schools tried to de-fund groups through establishment clause litigation. Since that tactic didn't work, they now try to exclude them from campus by crying "discrimination."
  

When public schools are permitted to interfere if the Democratic Law Students' Association rejects republican members, or the Marxist Student group won't allow capitalists on the leadership ballot, something is wrong with world.

No student was ever excluded from a CLS meeting or banned from membership at Hastings, and to my knowledge, no gay student has ever been excluded from CLS. The case arose because the university didn't like the religious standards and requirements of the Christian Legal Society and refused them access to campus life.

The briefs from all parties and friends of the court are available online.

Be in prayer for the advocates and justices in this case.

Coolest. Brief. Ever.

I have just posted my podcast interview with Kim Colby, Senior Counsel at the Center for Law and Religious Freedom, over at the Cross & Gavel iTunesU page. Kim is lead counsel in the Christian Legal Society v. Martinez case, which I have mentioned before.

As readers will recall, the case involves a Christian Legal Society student chapter that was de-recognized by the Hastings Law School administration for allegedly running afoul of the law school's anti-discrimination policy. It will be heard by the Supreme Court in April, and we expect a decision in late June.

Kim Colby is a wonderful lawyer who has been involved in the religious liberty arena for three decades, and her expertise and insight have been invaluable in building a team to represent the Christian Legal Society's interests in this case. Michael McConnell, one of the finest and most respected first amendment scholars in the country, is on board to argue the case.

The case raises interesting and important issues, and I hope you'll listen to my discussion with Kim. If the iTunes link gives you trouble, access it through the Cross & Gavel homepage.

There is one fun and interesting side note that I'd like to highlight, and it involves one of the many amici that have weighed in with friend briefs on the CLS side. Of the 21 amicus curaie briefs, the most unique is the Brief of Amici Curaie Evangelical Scholars (Officers and 24 Former Presidents of the Evangelical Theological Society), Evangelicals for Social Action, and National Association of Evangelicals in Support of Petitioner. Fortunately, the brief is more interesting -- and a bit shorter-- than its title. In fact, it is downright amazing.

What is amazing about this short (even the standard appellate mega-margins, it is a mere 20 pages) piece of advocacy is that it is a beautiful and edifying theological primer . . . and a fine legal brief. All at once.

It has to be the coolest brief ever.

The purpose of the brief is to provide the historical-theological and biblical context of the position of organizations like CLS, who sometimes take unpopular or counter-cultural stands based on Scripture, and ask their members to act out their beliefs. With great economy of words and generosity of spirit, the brief meets this goal, setting out the basics of some fundamental Christian doctrines. Here is the outline of the argument:

A. Evangelical belief concerning the Bible

B. Evangelical belief in standards of conduct for leaders and regular members

C. Interpretation and application of the moral commands of the Bible to the present

D. Not based on animosity

E. A distinction between desires and conduct is common in evangelical ethical thinking

F. The Bible’s teaching on sexual conduct

G. Agreement among evangelical groups

H. CLS’s belief concerning the Bible leads to its Statement of Faith and its interpretation of the Statement

I. An attempt to compel disobedience to the Word of God

J. Evangelical Christian churches and organizations cannot comply with such a nondiscrimination policy

K. Broader implications

Read it and marvel. But here is a taste:

There is no animosity or malice toward any group of people (such as adulterers or homosexuals) that has played any role in the formulation of the CLS Statement of Faith and its interpretation, or in the practice of similar policies by Christian groups throughout history, or in the inclusion of these moral standards in the Bible in the first place. Indeed, animosity toward any such group would be contrary to the Bible itself, for it would violate the command of Jesus to “love your neighbor as yourself” (Matthew 22:39) and even to “[l]ove your enemies, do good to those who hate you, bless those who curse you, pray for those who abuse you” (Luke 6:27).

Therefore it would not be surprising that a student who was known to engage in homosexual conduct would nonetheless be regularly welcomed at CLS meetings at Hastings College of Law, though not invited to become a voting member. This is exactly what one would expect from Christian students seeking to be obedient to both the biblical standards of sexual conduct for leaders and members and the biblical commands to love one’s neighbor.

Good stuff.

(By the way, all the briefs are accessible from the CLS website).

Supreme Court to Hear CLS Student Group

Here is the press release from the Christian Legal Society:

WASHINGTON — The U.S. Supreme Court Monday agreed to decide whether a public university can refuse to recognize a religious student group because the group requires its leaders to share its religious beliefs. Attorneys with the Christian Legal Society and the Alliance Defense Fund Center for Academic Freedom represent a student chapter of CLS, which Hastings College of the Law in San Francisco refused to recognize because the group requires all of its officers and voting members to subscribe to its basic Christian beliefs.

“Public universities shouldn’t single out Christian student groups for discrimination. All student groups have the right to associate with people of like-mind and interest,” said Senior Counsel Kim Colby with the CLS Center for Law & Religious Freedom. “We trust the Supreme Court will not allow Hastings to continue to deprive CLS of this right by forcing the group to abandon its identity as a Christian student organization.”

“Christian students have the right to gather as Christians for a common purpose and around shared beliefs,” said ADF Senior Legal Counsel Gregory S. Baylor with the ADF Center for Academic Freedom. “It’s completely unreasonable--and unconstitutional--for a public university to disrupt the purposes of private student groups by forcing them to accept as members and officers those who oppose the very ideas they advocate.”

CLS Litigation Counsel Timothy J. Tracey, now with ADF, argued Christian Legal Society v. Martinez before the U.S. Court of Appeals for the 9th Circuit in March. The appellate court refused to reverse a district judge’s decision against CLS, so the case was appealed to the U.S. Supreme Court.

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There's some buzz, too:

Wall Street Journal Law Blog, Volokh Conspiracy, Christian Law Journal, Mirror of Justice, Fox News

Update: Touchstone's Mere Comments points us to Get Religion, and the NYT weighs in as well.