hunter of justice

British appeals court: No religious exemption for employees registering civil partnerships

An England and Wales Court of Appeal decision this week held that public employees working as registrars can be required to provide services to same-sex couples regardless of the employee's religious beliefs. In Ladele v. London Borough of Islington, the court upheld the decision by the Islington registrar's office to require Lillian Ladele to register same-sex partners despite what Ladele described as her "orthodox Christian view" that marriage should be limited to male-female couples and that enabling same-sex unions was "contrary to God's instructions." The court also rejected Ladele's claim that she had been subjected to discrimination based on religion.

Moreover, the court found that the British anti-discrimination law prohibiting different treatment in public services based on sexual orientation required the Borough to act as it did:

[H]owever much sympathy one may have with someone such as Ms. Ladele..., the legislature has decided that the requirements of a modern liberal democracy ...include outlawing discrimination in the provision of goods, facilities and services on ground of sexual orientation, subject only to very limited exceptions. 

The court noted that the anti-discrimination law exempts "organizations the purpose of which is the practice or advancement or the like of religion or belief."

At the end of its decision, the court states that borough governments can elect not to designate persons who have religious objections as "civil partnership registrars." I am not familiar with how such offices function in the UK, but this appears to reflect the principle that employers may accommodate religious objections to performance of certain aspects of a job if it is feasible to do so. 

I am in basic agreement with this decision. In my view, public employees have a duty to serve the public, not merely a portion of the public. However, if offices can be organized so that religious objectors can be transferred or otherwise assigned to jobs that do not involve issuing licenses to the public, that seems a pragmatic and reasonable result.

The case is subject to one more level of appeal.

Uganda analysis: American religious conservatives and the global trade in culture wars

Pressure is building on Uganda's government to abandon or revise extremist anti-gay legislation that would imprison or, in some situations, execute persons for homosexuality. American political and religious leaders have condemned the bill, joined by other governments and the Vatican. (Photo below is from protest in London.) In the process, the role of conservative American churches in promoting anti-gay policies through various Christian churches in Africa has come to light. The same issue, in less extreme form, is being debated in Rwanda and may surface in Egypt.

 The best analysis that I have read is by Rev. Kapya Kaoma, an Anglican priest from Zambia. Rev. Kaoma's article (based on a recently published study) goes beyond dissing Rick Warren or describing how a March 2009 Family Life Network conference in Kampala, featuring right-wing evangelist Scott Lively, provided the trigger for the new bill. The story is more complex than the image of bigoted white guys yahooing it up in Africa. The heart of it is a mutually beneficial reciprocity of dollars from First World churches going to economically desperate populations and Third World moral authority being exported as a weapon to use against First World religious progressives.

Following are excerpts from his article in Public Eye:

...If they had faced strong opposition, U.S. conservatives might not have been so successful in promoting their homophobic politics. Traditionally, evangelical African churches have been biblically and doctrinally orthodox but socially progressive on such issues as national liberation and poverty, making them natural partners of the politically liberal western churches. But their religious orthodoxy also provides the U.S. Right with an opportunity. Africans resonate with the denunciation of homosexuality as a postcolonial plot; their homophobia is as much an expression of resistance to the West as it is a statement about human sexuality. Similarly campaigns for "family values" in Africa rest on rich indigenous notions of the importance of family and procreation. In Africa, "family" expresses the idea that to be human is to be embedded in community, a concept called "ubuntu." African traditional values also value procreation, making those hindering this virtue an enemy of life.

Although Rick Warren's involvement in Africa is the most celebrated, and Lively's perhaps the most notorious, they are not the first U.S. conservative evangelicals to influence African policies. Pat Robertson's television show The 700 Club is watched across sub-Saharan Africa. Yet most Africans are not aware that Robertson supported the civil war in Angola and the oppressive White governments of Rhodesia (now Zimbabwe) and South Africa. He was one of many U.S. conservative evangelicals, some of whom came to Africa as missionaries in the 1980s, who sided with those White minority governments in their effort to stop the spread of liberation theology. Allied with them was – and is – the Institute on Religion and Democracy (IRD), a U.S. neoconservative group that also supported the White regimes and challenged the National Council of Churches as a group of dangerous Marxists supporting subversion. The group formed in 1981 with the goal of weakening and splitting U.S. mainline denominations in order to block their powerful progressive social witness promoting social and economic justice....

The torrential flow of conservative Christian resources to Africa helps wash away the memory of their alliances with White regimes. Through their extensive communication networks in Africa, social welfare projects, Bible schools, and educational materials, U.S. religious conservatives warn of the dangers of homosexuals and present themselves as the true representatives of U.S. evangelicalism, effectively marginalizing mainline U.S. churches that once had strong relationships on the continent. Right-wing groups have enticed African religious leaders to reject funding from mainline denominations – which require documentation of how the money is spent – and instead to accept funds from conservatives, further empowering the U.S. evangelical viewpoint while giving local bishops the opportunity to line their pockets.

To reach Africans, U.S. evangelicals now broadcast their Christian Broadcasting Network (CBN) and Trinity Broadcasting Network (TBN) throughout sub-Saharan Africa. Although generally disinterested in helping poor Blacks in their own backyard, in Africa U.S. White conservatives driven to convert the continent dominate social services, run orphanages, schools and universities, and provide loans. These conservatives and evangelical charities like World Vision, Solar Light for Africa, and the IRD-founded Five Talents use their presence in Africa to address the question of homosexuality from a conservative albeit misleading position. In this way, almost all U.S. conservative Christians working in Africa are responsible for exporting homophobia to Africa.

Indeed, Africans do not distinguish between moderate evangelicals in World Vision and Hard Right figures like Scott Lively. For them, the term "evangelical" conveys the notion of Protestant Christianity as a whole, without the substantive distinctions made by U.S. religious groups. And U.S. conservative evangelicals support diverse Anglican, Presbyterian and Pentecostal church leadership in Africa with which they share no denominational tie. For instance, the Providence Christian Reformed Church in Holland, Michigan is not an Episcopal congregation yet it provides funding to the Anglican Church of Uganda. Some U.S. support goes directly to salaries, and has since 1998 ....

While U.S. evangelicals are actively disseminating their antigay views through their mission work, American mainline renewal movements reach out to African churches for support in fights against gay ordination and marriage, helping to further crystallize this as an African issue. At their behest, Anglican churches in Uganda, Kenya, and Nigeria rejected funding from The Episcopal Church USA in 2004 over disagreements about gay ordination and other culture war issues. While these attacks have resulted in schisms within the Episcopal Church USA and the Presbyterian Church USA and continue to threaten the unity of the United Methodist Church, they offer African churches financial and ideological benefits, including a voice in international circles. As Kenya's Rosemary Mbongo told me, "Africans, Asians, and Latin American evangelical Christians have the voice today; they owe it to American conservatives."

Continues after the jump -->

Who's intolerant? McConnell weighs in for CLS

Following are comments by Stanford Professor Michael McConnell in response to Mike Dorf (posted yesterday) regarding the Christian Legal Society case. McConnell, who wrote the Supreme Court brief for the Boy Scouts in the Dale case, will also represent the Christian Legal Society in the Supreme Court.

I strongly disagree with my friend Michael Dorf that Christian Legal Society v. Martinez raises the question of whether we should “tolerate the intolerant.”  The question presented is whether a public university may deny a small religious student group equal access to a forum for speech on the ground that it limits its leaders and voting members to those who adhere to its statement of religious belief.

There is nothing remotely “intolerant” about a religious group confining its leadership or spokesmen to adherents to its faith.  Must synagogues hire non-Jewish rabbis?  Must a Baptist Bible study group have a Catholic chair?  The reason the religious group confines its leadership positions to adherents is not some distaste or intolerance for others, but the desire to meet and worship with students sharing a common belief, and to communicate those views to a wider audience.  Others are free to attend the  CLS meetings and activities, but not to seize control of their podium. Even nonreligious groups at Hastings – the Democrats, the pro-life group, the trial lawyers group, and ironically even the respondent student gay rights group in Martinez, limit their leadership to students who agree with their core beliefs.  There is nothing wrong or “intolerant” about this.  It makes sense, especially for small or unpopular groups who might otherwise be taken over by students who do not like their message.  But only when it is the religious group has the Hastings administration cried foul.

And it is not “intolerant” for a Christian group to espouse a sexual morality based on marriage between a man and a woman.  Everyone this side of the Marquis de Sade draws the line somewhere and there is no need for everyone in this diverse and pluralistic land to draw our lines in the same place.  These students disapprove of “unrepentant” sex outside of marriage (whether gay or heterosexual).  Others do not.  But it is not accurate, or helpful, to brand those with whom we disagree as “intolerant.” 

It might be intolerant if the religious students sought to deny those who disagree with them the benefits of civil society – if they tried to shut them up or shut them out.  But it is not intolerant for people with a particular moral standard to form a group where they can provide mutual support and encouragement among themselves, or to communicate their opinions to a wider audience, along with everyone else.       

Which side in this case is being “intolerant”?  Those who want to meet and speak just like every other student organization, or those who have kicked them out?

After the jump, Dorf replies to McConnell -->

Debates begin on Christian Legal Society case

Now that the Supreme Court has granted cert in Christian Legal Society v. Martinez (background here), the conflict of rights at the heart of the case is beginning to draw commentators.  First out of the box is Mike Dorf (Cornell Law). He began blogging about the case with this summary:

The Supreme Court just granted cert in Christian Legal Society v. Martinez.  At the broadest level, the case presents a recurring and fundamentally unsolvable dilemma of liberalism: Must liberals tolerate even the intolerant?  In more mundane terms, the case poses the question of whether a public institution--here UC Hastings Law School--can apply its non-discrimination policy to deny official recognition (and thus eligibility for funding) to the Christian Legal Society (CLS) on the ground that the latter interprets its charter to forbid membership by any person who advocates or "unrepentantly engages in" "a sexually immoral lifestyle," an exclusion that would bar openly (and "urepentantly") gay law students from membership in the CLS.

Then in an essay posted at Writ, Mike analyzes two lines of precedent and argues that the best outcome would be a compromise.  Excerpted from Writ:

...[I]n two ... recent cases, Hurley v. Irish-American Gay Group of Boston and Boy Scouts of America v. Dale, the Court invalidated efforts by Massachusetts and New Jersey, respectively, to bar discrimination on the basis of sexual orientation by parade organizers and the Boy Scouts, again respectively....

...[T]he key to these rulings is that, in both Hurley and Dale, the Supreme Court thought that the private group's message would be undermined by the forced inclusion of persons whose very presence was inconsistent with that message. Significantly, Hurley was a unanimous decision:The liberals, no less than the conservatives, thought that the organizers of a private parade, who were engaging in an inherently expressive activity, should be able to decide whether the inclusion of openly gay marchers would undermine the message of the parade.

Dale, to be sure, was not unanimous. But the key point of the dissent simply underscores the distinction at issue: The dissenters thought that the Boy Scouts of America did not have a clearly-articulated message that would be undermined by having an openly gay troop leader. ...

In other words, it seems that the Court, at the time of these decisions, generally agreed that if inclusion would directly undermine a clear, specific message sent by an expressive organization, then forcing inclusion would presumptively violate the First Amendment right of association.

CLS argues that it is ... like the Boy Scouts and the parade organizers in the Hurley case ... [But} there is one very important difference between Dale and the CLS case: In Dale..., the state imposed a blanket rule: The Boy Scouts were told by the State of New Jersey that they simply had to admit gay members and troop leaders. By contrast, Hastings is not exercising that kind of regulatory authority over CLS. Hastings does nothing to stop individual law students enrolled at Hastings from getting together for meetings. All that Hastings does is deny official recognition to such groups of law students, if they are not open to all would-be members.

Accordingly, Hastings argues that this case is nothing like Hurley and Dale. The law school is not telling private organizations to admit anyone; it is only telling private organizations that want official recognition--and the eligibility for funding that comes with it--that they need to accept all interested students as members. It is well-established constitutional law that the government cannot suppress the speech of groups devoted to non-violent advocacy of racism, sexism or homophobia. But, Hastings says, it does not have to subsidize the activities of organizations that, in their admissions policies, discriminate on the basis of race, sex, or sexual orientation. It will tolerate such discriminatory speech, Hastings says, but it is not obligated to pay the bill for it.

In response, however, CLS can point to another line of cases involving so-called "public fora." These cases say that where the government opens up public property for speech, it cannot discriminate among speakers.

The Supreme Court case most closely on point is the 1995 decision in Rosenberger v. University of Virginia. There, the Court struck down a University of Virginia ("UVA") policy under which the university funded most student publications but not those that were religious in nature. Having created a forum for speech (as the Court called it, "more in a metaphysical than a spatial or geographic sense"), UVA was not permitted to discriminate among the viewpoints of those entitled to speak in that forum....

CLS argues that its case is just like Rosenberger, in that it is being denied access to the benefits of official recognition, including funding, based on the religious viewpoint it espouses. But there is at least one important distinction: Unlike the restrictions in Rosenberger ..., the trigger for the Hastings policy has nothing to do with the expression of a religious viewpoint, or with expression at all. Hastings would recognize CLS--even with a message that can reasonably be said to be homophobic--if only CLS would accept all students as members.

Who has the better of that argument? As I read the precedents, Hastings should prevail. However, there is enough wiggle room in the doctrine for the Justices to rule for CLS. For example, the Court could say that regulation of the membership of an expressive association is inherently a regulation of the association's expression, and that where the regulation takes the form of a requirement of inclusion, it is inherently hostile to a message that says certain forms of behavior are sufficiently immoral to warrant exclusion.

After the jump, the argument for a compromise outcome -->

Tomorrow: Michael McConnell - formerly a judge on the Tenth Circuit Court of Appeals, now a professor at Stanford and one of the nation's leading conservative legal scholars - responds to Dorf, who then replies.

Supreme Court grants cert in Christian Legal Society case

This morning, the Supreme Court agreed to hear a case in which the Christian Legal Society argues that it has a First Amendment right to recognition as a student organization, despite its refusal to allow lgbt students to become members. Both the trial court and the Ninth Circuit Court of Appeals had ruled that Hastings College of Law could enforce its anti-discrimination policy requiring that all student organizations be open to all students. CLS contends that the school's policy violates its expressive, association, and free exercise rights by not permitting it to require that all voting members and officers "share its core religious beliefs."

With this grant of certiorari, the conflict between religious liberty and lgbt equality will take center stage in the development of lgbt rights law. The case is likely to be argued in March or April.  The Court issues all opinions in pending cases before the term ends at the end of June.  Because this argument will be heard late in the term, the decision is likely to be announced relatively late as well, probably during June.

The Court had been delaying its decision on granting review, and took the highly unusual step of asking for the full record early last month. One imagines that at least one Justice wanted to see the record before voting to take the case; the votes of four Justices are required for the Court to grant cert.

For copies of the cert petition, opp cert and reply brief, plus the parties' briefs below, see CLS web page. Excerpts from the trial court decision, which was summarily affirmed by the Court of Appeals, after the jump -->

Toward a sensible religious accommodation in DC

In my view, when the legal consequences of same-sex marriage or civil rights laws affect religious providers of social services, both the law enforcement authorities and the sectarian groups should stretch to find a solution that allows the anti-discrimination principle to take effect while not forcing the religious entity to actively endorse a tenet which runs counter to its faith.  When this cannot be achieved and when the religious groups are receiving public funds, human services officials should have the discretion to suspend enforcement of an anti-discrimination mandate until equivalent services can be obtained, with the caveat that a transition must genuinely go forward.

In other words, I support a phase-in period when applying an anti-discrimination law to government contractors that claim a religious objection, if necessary to protect a vulnerable population.

In DC, this kind of situation has arisen because Archbishop Wuerl has threatened to stop providing a variety of services to indigent residents, for which Catholic agencies receive roughly $20 million a year in government funds. The top priority should be to insure that the people receiving those services experience no harm if a changeover to other providers is required, but there is no reason that an orderly transition cannot take place.

Compromise may still avert this kind of hostage-taking of defenseless people. Negotiations in DC are ongoing to find language that could be adopted a week from Tuesday (Dec 15), when the Council takes its final vote and will, with or without a workaround for the Archdiocese, adopt the marriage bill. (Because DC laws must remain in limbo for potential Congressional review, same-sex marriages are not likely to become actually available until sometime in the spring.)

From a Washington Post editorial:

Catholic Charities's intransigence is mystifying. The fight going on in the District today took place 13 years ago in San Francisco.

When that city's Board of Supervisors unanimously passed a law requiring city contractors to provide spousal benefits to domestic partners, Archbishop William J. Levada protested. He raised the same objections we're hearing today. But a compromise was reached after a meeting with then-Mayor Willie Brown and four supervisors. A business or agency with a city contract is in compliance with the law if it "allows each employee to designate a legally domiciled member of the employee's household as being eligible for spousal equivalent benefits." Georgetown University provides another model. It provides medical, dental and vision coverage to an employee's spouse or a "legally domiciled adult" defined as someone 18 or older who has lived with the employee for at least six months. A "Legally Domiciled Adult Certification Form" must be filed.

These two models [now being offered by DC Councilmembers] are worthy compromises that should allow the Catholic Charities to be within the law without violating church principles.

Will Supreme Court grant cert in Christian Legal Society case?

A cert petition that has been lingering before the Supreme Court since last summer raises the question of whether a Christian student group's constitutional rights were violated when a public law school refused to grant it official status because the group excluded gay and non-Christian students in violation of the school's non-discrimination policy. Clearly, someone on the Court is interested in granting cert: the case has been on the Court's conference calendar five times (counting today), but still no decision on cert has been announced. This week, the clerk of the Court sent a letter to the Ninth Circuit clerk's office requesting that the complete record in the case be transferred to the Supreme Court, a step that is normally taken only after cert is granted.

If the Court does add Christian Legal Society v. Martinez (No. 08-1371) to its docket, the debate over the conflict between religious liberty and anti-discrimination law will jump to the top of the list of important constitutional law issues related to sexual orientation. The decision could set the terms for what is increasingly the central philosophical question in lgbt rights law: the extent to which religious entities (or even individuals) should be exempt from civil rights protections for sexual orientation. (Additional background here)

If any decision is reached today on granting cert, it will be announced on Monday. Given that there is little chance that the Justices have fully reviewed the lower court documents yet, however, the case may well be rescheduled for its sixth time on the conference calendar.  The Court's next conference is November 24.

Excerpts from the lower court opinion after the jump -->

BC Law professor crosses line in ad supporting repeal of Maine marriage rights

Boston College Law Professor Scott Fitzgibbon appears in the ad below for the Yes on 1 campaign seeking to overturn the statute adopted last summer by the Maine legislature which granted equal marriage rights to same-sex couples.  No problem there - he's certainly got every right to do that. But Professor Fitzgibbon lends his imprimatur (he is a jurisprudence and business law scholar) to three canards from the Prop 8 wars that are false: that same-sex marriage will lead to a "flood" of lawsuits against individuals, small businesses and churches; that religious groups will lose their tax exemptions; and that "gay marriage will be taught in the schools -- whether parents want it or not."

How fitting that the ad is titled "Consequences," because it sure ain't the truth. The truth is that:

First - After five plus years of legalized same-sex marriage in Massachusetts, the number of oppressive lawsuits filed that have been based on that law is exactly ... zero.

Second - Not only is it the same number - zero - of  religious groups in Massachusetts that have lost their tax exemption, but no serious scholar believes that the charitable contribution exemption from federal income tax is at risk. The only tax exemption issue that has arisen was a property tax exemption for a church in New Jersey (where marriage for gay couples isn't even legal). There the issue involved a church which advertised that a space that it owned on the boardwalk was open to the public. When it refused to rent the space to a lesbian couple for a civil union ceremony, the property tax exemption (which had been specifically premised on the space being available for public use) was withdrawn. (More here)

Third - The case cited in the ad, Parker v. Hurley, involved whether parents could withdraw their children from a diversity curriculum that included sexual orientation. Some of the materials used by some teachers dealt with marriage. The courts upheld the discretion of the local school board to make curricular decisions. (More background here)

Does this mean that there are no legitimate or difficult issues raised by the conflict between religious beliefs and secular equality principles? No. But in fact they tend to arise more frequently with the application of anti-discrimination laws, not equal marriage laws. The arguments made in this ad are nothing more than scare tactics.

6th Circuit upholds religious group's firing of gay employee, but ACLU may have the last laugh

The Sixth Circuit ruled yesterday that firing an employee based on a religiously-inspired conduct rule is not discrimination based on religion. Instead, the court affirmed the dismissal of the openly lesbian plaintiff because it found that she could not show that it was the religious aspect of her conduct that triggered the firing. Pedreira v. Kentucky Baptist Homes for Children, 2009 WL 2707226 (6th Cir.)

There was no question that Alicia Pedreira was fired because of her sexual orientation; the defendant declared that a "homosexual lifestyle is contrary to [its] core values." Pedreira asserted that the KBHC had discriminated against her based on religion, i.e. because she failed to comply with its religious beliefs. The Sixth Circuit rejected that argument, relying on a nominalist understanding of religion as a possible basis for discrimination. "Plaintiff has not alleged any particulars about her religion that would even allow an inference that she was discriminated against on account of her religion or ... her religious differences with KBHC. ... Furthermore, Pedreira does not allege that her sexual orientation is based on her religious beliefs or her lack thereof..."

KBHC's "core values" defense may turn out to be a pyrrhic victory, however.  The ACLU, which represents Pedreira, also included an Establishment Clause claim in the case, alleging that KBHC used Kentucky state funds to promote religion. Although it shot down the religious discrimination claim, the Sixth Circuit found that the plaintiffs had state taxpayer standing in light of the $12.5 million annual state funding of KBHC for the last 10 years.  Several state officials had sought to terminate the contract with KBHC because of concerns about the use of state funds for religious activity, but the legislature responded with a special citation of appreciation for the group/s work.  Meanwhile, the report of an independent reviewer of the program included nearly 300 complaints from youth that KBHC's religious practices were coercive. In a final note, the court ruled that evidence concerning KBHC's employment policies would be relevant to the determination of whether it was using public funds to promote religion.

The upshot of the case (so far, since the Establishment Clause portion of it will continue on remand) is that a religiously-identified social services organization can fire lgbt employees, an outcome that ENDA - with its broad religious exemption - likely will not change. Although it relates to a different branch of law, the decision essentially leaves KBHC-like groups in the same posture as the Boy Scouts vis-a-vis anti-discrimination issues. In my view, the Establishment Clause questions raised by Pedreira are at least equally important, although that claim will provide no job remedy for the plaintiff.

Try a complete religious exemption: dis-establish religious marriage

The following post to the Social Science Research Council page is by Janet Jakobseen and Ann Pellegrini, authors of Love the Sin, a great read on the relationship between sex and religion:

This notion that religion and sexuality are somehow in opposition is one of the few beliefs shared by opponents and supporters of gay rights. Yet it has significant policy implications, particularly in recent moves to enact far-reaching “religious exemptions” as a condition of passing state laws permitting same-sex marriage. In New Hampshire, Governor John Lynch threatened to veto same-sex marriage unless state legislators also passed a bill framed as “protecting” religion and extending “religious liberty,” but that in practice exempt religious organizations and their employees from otherwise applicable state anti-discrimination laws. (Legal scholar Nan Hunter has predicted that the New Hampshire language could become a model for same-sex marriage laws nationally.)

In our 2003 book, Love the Sin: Sexual Regulation and the Limits of Religious Freedom, we offer an extensive argument that religious freedom and sexual freedom are actually interdependent rather than oppositional. Unfortunately, the impact of “religious exemptions” like those included in the New Hampshire law is to codify a narrow version of religious freedom in which religious liberty and sexual freedom can only be seen as mutually exclusive. This is not just a loss for sexual freedom; it also significantly narrows the parameters of religious freedom offered by the US Constitution.

If there is a “religion problem” posed by gay marriage, it is not that some religious organizations might be “forced” to provide secular benefits to same-sex couples, such as healthcare or equal access to residential housing; it is rather the entanglement of the state with the business of any couple’s religious marriage. The problem here is that the state legitimates religious marriages, performed by members of the clergy, rather than only civil unions performed by representatives of the state, thus entangling, rather than separating, state and religious practice. When such entanglements are maintained in law, religious practice is not “protected” from the state any more than citizens are “protected” from the imposition of religious convictions they do not share. New Hampshire and other states could actually “protect” both religious practice and those who are not religious (or who are differently religious) by providing civil unions on the basis of equality and letting religious bodies provide for religious marriages. No secular benefits would then flow from religious marriage, and the secular benefits that follow on civil unions would be separated from religious debates over homosexuality....

In a recent issue of the Nation, Lisa Duggan highlighted Equality Utah’s proposal for an Adult Joint Support Declaration, which would allow a legal framework for caretaking—medical decision-making, health insurance benefit designation, and inheritance—among adults who are not necessarily related by sexual or romantic partnerships. Such a proposal separates secular benefits not just from marriage but from sexuality as well, further removing the current entanglement between state benefits and religious debate over sexual practice. As Duggan points out, such a measure could spark unexpected political alliances as well as expand the support for caretaking in our society well beyond the question of marriage or domestic partnership, getting, in her words, “the AARP on board to lobby for medical next of kin, tax and inheritance rights for ‘Golden Girls’ households, or attract libertarians who want to take the state out of the business of ‘recognizing’ sexual or romantic relationships entirely.”

This shift in framework—from gay rights to the basic ground of freedom and equality—would do much not only for gay people and for the Obama administration’s standing with the oft-invoked “gay community;” it could significantly alter how controversial issues are approached in American public life. We might move beyond the identity politics of rights-based movements, even as we preserve the ability to act on identity- and rights-based claims. Who knows, but we might even create the basis for one of the most promising possibilities invoked by the early Obama campaign: not just change we can believe in on given political issues, but the possibility of creating a “new majority” that goes beyond individual issues to larger questions and practices of liberty and justice for all. Achieving this new majority cannot happen if we trade off some people’s sexual freedom for some other people’s religious freedom (or vice versa).

British group issues guide to balancing religion and gay equality in the workplace

The Stonewall Foundation has published a report on "Religion and Sexual Orientation: How to manage relations in the workplace" that Congress ought to read in advance of its consideration of ENDA. Aside from some platitudinous guidelines ("treat everyone with respect"), the core of the document is a series of case studies, including a local clerk who refused to conduct civil partnership ceremonies, a counselor who balked at providing psychosexual counseling to same-sex couples, and a senior employee who constantly quoted Bible passages to a junior employee. The rule in Britain is that religious organizations can discriminate only if the job position or activity in question is directly associated with the doctrine of the faith group.  By contrast, the religious exemption in ENDA would grant religious organizations essentially a blanket waiver of ENDA's requirements. As this report documents, the British system is workable and fair.

Supreme Court denies cert in school religious club case

In a little-noticed order on the last day of its 2008-2009 term, the Supreme Court denied cert last week in Truth v. Kent School District, a Ninth Circuit case in which a high school religious club sought to register with the school in order to use school facilities. In its opinion (542 F.3d 634, rehearing denied 551 F.3d 850), the Court of Appeals rejected the club's claim that enforcement of an anti-discrimination law constituted religious discrimination. The proposed charter filed by Truth restricted membership to those "complying in good faith with Christian character, Christian speech, Christian behavior and Christian conduct as generally described in the Bible." Voting members also had to sign a "statement of faith" and pledge "acceptance of Jesus Christ as my personal savior."

The school district denied recognition to Truth in part because of the implications of its name that other religions were false and in part because the membership criteria discriminated against non-Christians.  However, the Court of Appeals reversed summary judgment for the district on the ground that there was a triable factual dispute over whether the district consistently applied its anti-discrimination policy to all student clubs equally.

The cert petition filed by Truth challenged the Ninth Circuit's ruling that Truth had no viable claim under the Equal Access [to Schools] Act, absent the possible selective enforcement argument. Truth asserted that under that ruling, "schools are free to discriminate against student religious groups because of their membership criteria." Truth also argued that the Court of Appeals' rejection of its expressive association claim failed to properly apply Boy Scouts v. Dale.

Denials of certiorari in and of themselves do not create precedent, so one should not read too much into this one.  It does, however, seem to bode well for the defendants in Christian Legal Society v. Kane, in which the Ninth Circuit upheld judgment for UC-Hastings Law School (Mary Kay Kane was then dean), rejecting similar claims of expressive association and First Amendment rights by CLS. 2009 WL 69339. The Court of Appeals summarily affirmed a district court decision, citing simply its ruling in Truth v. Kent. Any risk that the latter opinion will be overturned is now over.

Meanwhile, CLS filed a cert petition in its case, which is before the Supreme Court this summer. Based on Truth v. Kent, the prospects for another denial of review, leaving in place a good decision, seem good.

Obama promises "robust" conscience clause exemption for health care workers

Both the Washington Post and the Catholic News Service are reporting that President Obama assured a group of religion writers that he would insist on strong conscience clause exemptions for health care workers who object to certain medical procedures. Shortly before the end of the Bush administration, HHS issued new regulations that would prevent any HCW or hospital from being required to perform an abortion or other procedure to which they had a moral objection. The ACLU filed a lawsuit to stop the regulations from taking effect. Obama withdrew them, but is now promising that his administration's version will also be "robust," although only in the sense that it will be equivalent in strength to the status quo prior to the Bush regs. Especially given the attention being paid to religious exemptions in the same-sex marriage context, I think it's going to be important to watch how the new administration conceptualizes the trade-offs between rights in framing the terms of an exemption.

Here's the more detailed Catholic News Service report:

President Barack Obama told a round table of religion writers July 2 that he continues to be profoundly influenced by the late Cardinal Joseph Bernardin of Chicago, whom he came to know when he was a community organizer in a project partially funded by the Catholic Campaign for Human Development.

Obama said his encounters with the cardinal continue to influence him, particularly his "seamless garment" approach to a multitude of social justice issues. He also told the group of eight reporters to expect a conscience clause protection for health care workers currently under review by the administration that will be no less protective than what existed previously....

The president [said]  that he expects an ongoing review of conscience clause regulations will result in a continuation of protections that have long existed, allowing people who are morally opposed to abortion or contraceptives to decline to provide them in the line of work without repercussions.

Obama said in some ways he sees his first meeting with the pope as the same as any contact with a head of state, "but obviously this is more than just that. The Catholic Church has such a profound influence worldwide and in our country, and the Holy Father is a thought leader and opinion leader on so many wide-ranging issues. His religious influence is one that extends beyond the Catholic Church."...

On conscience clauses, the president said he has consistently believed in them. As a state legislator, he said, he supported "a robust conscience clause in Illinois for Catholic hospitals and health care providers." Soon after he took office as president, the administration reversed what Obama described as "eleventh-hour change(s) in conscience clause provisions that were pushed forward by the previous administration."

According to Obama, the Bush administration change, which took effect two days before the new president was sworn in, hadn't been "properly reviewed and thought through, and he added that there were some concerns about how broad it might be and what its manifestations would be once implemented."

In general, that change codified longtime federal statutes that prohibit discrimination against health professionals who decline to participate in abortions or other medical procedures because of religious or moral objections.

In his speech at Notre Dame, Obama called for a "sensible conscience clause." and said he wished to "honor the conscience of those who disagree with abortion."...

"We will be coming out with, I think, more specific guidelines," he said. "But I can assure all of your readers that when this review is complete there will be a robust conscience clause in place. It may not meet the criteria of every possible critic of our approach, but it certainly will not be weaker than what existed before the (Bush administration's) changes were made."...

Will the New Hampshire religious exemption become a model for new marriage laws?

From The National Journal:

...When the New Hampshire law goes into effect Jan. 1, it will override the state's employee nondiscrimination laws that protect gays and lesbians. Religious organizations will be able to deny gay couples housing designated for married people and marriage counseling, and fraternal societies like the Knights of Columbus won't have to offer benefits to their employees' same-sex spouses, according to Robin Fretwell Wilson, a law professor at Washington and Lee Law School who lobbied for the New Hampshire protections.

In the Granite State, such exemptions were crucial to the bill's passage. Gov. John Lynch, who personally opposes gay marriage, refused to sign the bill until wide-ranging religious exemptions were added....

"At some point you've got to say, 'We're gonna get that law, and we've got to salvage religious liberties as the next best option,'" said William Duncan, president of the conservative Marriage Law Foundation....

Leading the charge on conscience exemptions are a half-dozen lawyers, some of whom support gay marriage and others focused on safeguarding religious freedoms. They lobbied Lynch this spring and even pressed for broader exemptions that would have allowed small-business owners to deny services to gay couples ...

In a May 22 letter to Lynch, law professors Andrew Koppelman (Northwestern), Michael Perry (Emory) and Douglas Laycock (University of Michigan), along with Marc D. Stern of the American Jewish Congress, argued that the exemptions would not "enshrine bigotry" but rather "enshrine religious liberty and the live-and-let-live traditions of the American people."

Many of those same lawyers and others are trying to push the needle this summer in New York, where they are encouraging lawmakers to include religious protections in a same-sex marriage bill there....

"In California, you only needed to flip 2 percent of voters," Laycock said, referring to Proposition 8's victory last November by a 52-48 margin. "If you put in the religious exemption, I think you flip that 2 percent."

That still leaves a sizable minority who support marriage restrictions, and talk of a truce may be premature. "This doesn't go to our deepest concern, which is that changing the definition of marriage is bad for society, because we believe children need a mother and a father," Duncan said. "I think the ideological polarization is a little bit sharper than some people think."...

Obama Catholics

From The Tablet, a British Catholic publication:

A new kind of Catholic Democrat is emerging in America's corridors of power - young, politically committed and often with the same community organising background as the President himself. So who are these new church advocates with a direct line to Obama? At the time of the Democratic ­primary campaign last year, the patriarch of America's iconic Catholic family, Senator Edward Kennedy, gave then-Senator Barack Obama's campaign a boost with his endorsement. Kennedy hails from an earlier era of Catholic political involvement. For him, as for other prominent Catholics such as Connecticut Senator Chris Dodd or House Speaker Nancy Pelosi, politics is the family business. The culture of Catholicism in the north-­eastern United States is tribal, heavily influenced by the ethnic immigrant experience and its hardships, built upon personal loyalties as much as ideological inclinations, and the politics reflects that culture.

While these traditional Catholics supported Obama, his victory and the power that goes with it have allowed him to patronise a new and different kind of Catholic Democrat, whose source of political involvement is more intentional than tribal and more rooted in ideas. Their curricula vitae are likely to include experience as an activist or community organiser. They are younger and they plug into their constituencies through blogs and emails, rather than visits to the union hall. They are as likely to hail from the Midwest or California as from New England or Maryland. Many of them are Latino. They are Obama's Catholics.

On 27 May, at 8.08 p.m., ... the White House announc[ed] the nomination of a new ambassador to the Holy See, Professor Miguel Diaz. A theologian at St John's University in Minnesota, Diaz is a scholar whose works bring together the ­theology of Karl Rahner with the experience of US Hispanic Catholics, with heavy nods to liberation theology. He is the first theologian to be appointed to the post and the first Hispanic to represent the US at the Vatican...

Catholics in Alliance for the Common Good is the paradigmatic new Catholic advocacy organisation. Chairman of its board is Elizabeth Bagley, an ambassador during the Clinton years, whose husband, Smith Bagley, donated $119,700 to the Democrats' campaign last year. The group's executive director and co-founder, Alexia Kelley, worked at the Campaign for Human Development, the Church's national anti-poverty programme, for years. The other co-founder of the group, Tom Perriello, is now a Democrat congressman from Virginia. ... Kelley is leaving Catholics in Alliance to become director of the Center for Faith-Based and Community Initiatives at the Obama administration's Department of Health and Human Services, a key post. Catholics United is another advocacy group in the new style....

... When Obama nominated Kathleen Sebelius to be Secretary of Health and Human Services, conservative Catholics howled. Sebelius is pro-choice and, as Governor of Kansas, had been prohibited by her bishop from receiving Communion because of her stance. Catholics in Alliance composed a petition of prominent Catholics in support of her nomination. Catholics United issued a press release supporting her as well .... Even four years ago, reporters could write that "Catholics oppose" such a nomination. These new groups have levelled the playing field. ...

...Of course, some Catholics with influence in the White House got there the old-fashioned way, through a career in politics, not a career in Catholic advocacy. Most prominent among them are vice president Joe Biden and former chairman of the Democratic National Committee Donna Brazile. ...

For John F. Kennedy's generation of Catholic politicians, the pressing need was to fight anti-Catholic prejudice and demonstrate their patriotic bona fides. Obama's Catholics, conversely, have had to demonstrate their Catholic credentials, not their American ones. Today, conservative Catholics charge their progressive counterparts with not being sufficiently influenced by their faith, backsliding from the efforts of some bishops to prioritise life issues and claiming the Catholic mantle for social justice concerns about which reasonable Catholics can disagree. The progressives counter that conservative Catholics abandoned the rich social justice teachings of the Church in favour of a one-issue approach to politics centred on abortion. Whether you agree with the Obama Catholics or not, so far they have the President's ear.