The report, Rising Restrictions on Religion, by the Pew Research Center’s Forum on Religion and Public Life, finds that restrictions on religious beliefs and practices rose between mid-2006 and mid-2009 in 23 of the world’s 198 countries (12%), decreased in 12 countries (6%) and remained essentially unchanged in 163 countries (82%).

Because several countries with increasing restrictions on religion are very populous, however, the increases affect a much larger share of people than of states. More than 2.2 billion people – nearly a third (32%) of the world’s total population of 6.9 billion – live in countries where either government restrictions on religion or social hostilities involving religion rose substantially over the three-year period studied

While Europe had the largest proportion of countries in which social hostilities related to religion were on the rise from mid-2006 to mid-2009, the study also found that social hostilities involving religion have been rising in Asia, particularly in China, Thailand and Vietnam.

Read the full report and an explanation of the methodology at pewforum.org

These and related lawsuits raise complex constitutional questions that have been troubling American courts for more than a century: Do the First Amendment’s religion clauses — which guarantee religious liberty and prohibit all laws “respecting the establishment of religion” — bestow a unique legal status on religious organizations that puts some of their decisions and actions beyond the reach of civil laws? To put it another way, are legal disputes involving churches and other religious institutions constitutionally different from those involving their secular counterparts, and if so, how?¹

These questions have been raised in four different types of court cases — property disputes, employment of clergy, treatment or discipline of members, and misconduct by employees of religious organizations.

The first type of case involves property disputes within a religious organization. These conflicts often arise after an internal disagreement within a denomination prompts a congregation or congregations to split from the larger religious organization, leading to lawsuits over who owns church property, financial assets and even the name of the group. In recent years, a number of these cases have involved disputes over moral or social issues, such as whether to sanction same-sex marriages or accept openly gay and lesbian members of the clergy.

In the late 19th century, the U.S. Supreme Court ruled that courts may resolve these types of property disputes by deferring to the religious body’s hierarchy or leadership, or, when appropriate, to a majority of the congregation (see Internal Property Disputes).²

But more than a century later, in 1979, the Supreme Court clarified this approach by holding that, in some circumstances, the First Amendment allows a court to apply the same legal principles to a church property dispute as it would apply to a similar lawsuit involving a secular group.³

The ongoing lawsuits involving divisions within the Episcopal Church over homosexuality provide a good example of how courts might reach different decisions depending on which of these approaches they decide to apply. On the one hand, if a court were to adjudicate such a dispute by deferring to church hierarchy, it would respect the decisions that had been made by the national and regional Episcopal Church bodies in determining which congregational faction is entitled to possession of church property. But if the court were to apply ordinary legal principles to the case, its decision would depend on the unique circumstances of each congregation, including the language of legal documents governing the property in question, such as the deed of title or the congregation’s articles of incorporation.

A second type of case also involves disputes within a religious organization, but instead of property, these cases relate specifically to the employment of clergy. Federal and state laws generally prohibit employers from discriminating against their employees on various bases, including race and gender. But many courts have found that the First Amendment exempts religious organizations from these anti-discrimination laws when they make employment decisions about their own clergy. For instance, the Roman Catholic Church is free to employ only men as priests. But the strength and extent of this exemption — known as the “ministerial exception” — is still uncertain because the U.S. Supreme Court has never expressly ruled on it, and lower courts often divide on exactly how to apply the doctrine. This uncertainty could soon end, however, as the high court has agreed to hear a ministerial exception case in the fall of 2011.

A third type of case involves religious organizations’ treatment of their members. This category includes a wide range of situations, such as lawsuits challenging a minister’s or congregation’s public chastisement of a current member. Courts have often held that the First Amendment allows civil authorities to resolve such disputes as long as the legal issues are not thoroughly entangled with core matters of religious doctrine. For example, courts may not review whether a particular member of a religious organization should have been excommunicated, but courts may determine whether the administrative body that took the action actually had the authority to do so under the religious group’s own rules.

A fourth type of case involves legal actions against a religious entity for the wrongdoing of one of its employees or a person otherwise affiliated with the institution. These cases often involve common legal actions, such as a lawsuit stemming from an automobile accident caused by a church employee. But these lawsuits also can involve very controversial issues, such as the criminal and civil cases that have been filed against dioceses and other entities within the Catholic Church for the actions of priests who have sexually abused minors. Courts generally have resolved such cases by applying the same principles of civil and criminal law to religious entities that they would apply to similar secular organizations.

Although the four types of cases raise different legal issues, court rulings on all these matters have been consistent regarding one important principle: The government must not regulate religious entities in any way that would require a judge or other government official to interpret religious doctrine or rule on theological matters. At times, this “hands-off” principle might require courts to treat religious organizations differently from their secular counterparts. For example, a court can easily rely on contract and corporate law to resolve a dispute between a secular company and one of its subsidiaries. However, it is more difficult to use these same legal precepts to resolve a dispute between the national denomination of a church and a local congregation in a fight over the qualifications for ordained ministry, such as whether noncelibate gays and lesbians may serve as ministers.

While the existence of the hands-off principle is well accepted, its precise constitutional source is not. Some courts have found that its source is the First Amendment’s Free Exercise Clause, which guarantees religious liberty. Other courts have located the principle in the First Amendment’s other religion clause, the Establishment Clause, which prohibits the government from promoting religion.⁴

Finally, some scholars and courts contend that the source of the hands-off approach is found in both religion clauses. But whatever its precise constitutional source, the hands-off principle is deeply entrenched in the nation’s constitutional tradition and is likely to continue to limit the government’s authority to regulate religious entities.

Download the Complete Report (PDF)

Read other analyses in the Pew Forum’s series on Religion and the Courts: The Pillars of Church-State Law.

_{1. Throughout this report, the term “churches” refers to churches, synagogues, temples, mosques and other houses of worship. Religious institutions include churches as well as other types of religious organizations that are exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code.}

_{2. This is known as the “deference to hierarchy” approach because it requires courts to resolve internal church disputes by deferring to the rulings of the church’s highest authority on the matter.}

_{3. This is known as the “neutral principles” approach because it permits courts to apply ordinary legal principles independent of the religious organization’s beliefs and internal structure.}

_{4. For background, see the following reports by the Pew Forum: A Fluid Boundary: The Free Exercise Clause and the Legislative and Executive Branches (October 2008), and A Delicate Balance: The Free Exercise Clause and the Supreme Court (October 2007).}

On Nov. 3, 2010, the U.S. Supreme Court will hear oral arguments in a pair of related cases involving a constitutional challenge to an Arizona tax policy aimed at providing scholarships for children to attend private — often religious — schools. The cases, Arizona Christian School Tuition Organization v. Winn and Arizona Department of Revenue v. Winn, involve a state tax credit for Arizona residents who contribute money to what are called scholarship tuition organizations (STOs), nonprofit groups that use taxpayer contributions to provide scholarships for children to attend private schools. Opponents of the tax credit contend that it violates the Establishment Clause of the First Amendment to the U.S. Constitution because, in their view, it allows the state to channel public money to religious schools. Those defending the tax credit maintain that it meets the constitutional standards set by the Supreme Court in Zelman v. Simmons-Harris, the 2002 ruling which upheld a school voucher program in Cleveland, Ohio. Before deciding the Establishment Clause issue, however, the court will consider whether those challenging the tax credit have legal standing, which is the right to bring such a lawsuit.

How did these cases arise, and how did they reach the Supreme Court?

In 1997, Arizona enacted a law that allows state residents to receive a dollar-for-dollar tax credit of up to $500 ($1,000 for married couples) for contributions to nonprofit organizations that provide scholarships to public school students who want to attend private schools. The sponsors of the law stated that its ultimate aim was to encourage greater educational choice for disadvantaged K-12 students whose families could not otherwise afford private schools. They also stated that the law was not specifically aimed at helping parents place their children in religious schools. Under the law, state residents may contribute to a host of different scholarship tuition organizations, including some that place students only in a particular type of school — either religious (such as a Catholic or Jewish school) or secular (such as a Montessori school).

In 2000, after the law had been upheld by the Arizona Supreme Court, Kathleen Winn and a number of other taxpayers in the state filed a lawsuit in federal district court alleging that the tax credit violated the Establishment Clause because a large portion of the money donated under the program — more than 50% in 2009 — went to students who attended religious schools. Furthermore, the taxpayers pointed out, some of the organizations receiving donations limited scholarships to students who agreed to go to a religious school. The district court rejected these arguments, and ruled that the program was neutral toward religion because it allowed state residents to receive the tax credit for donations to any STO and did not favor those organizations that provide scholarships only to religious schools.

Winn and the other taxpayers appealed the cases to the 9th U.S. Circuit Court of Appeals, which reversed the district court decision and sent the cases back to the lower court with instructions to examine how the law actually operates rather than just ruling on the law as written. In its instructions to the district court, the 9th Circuit said that while the tax credit might on its face appear to be neutral, in practice the statute might promote religion and thus violate the Establishment Clause. But before the lower court could reconsider the cases, the defendants in the cases — the state and several STOs — appealed the 9th Circuit’s ruling to the U.S. Supreme Court, which agreed to hear the cases.

What arguments do the two sides make regarding the question of standing — the legal right of the taxpayers to bring the lawsuit?

The state of Arizona and the STOs argue that the taxpayers who brought the suit against them do not have legal standing to do so. To have standing in a lawsuit, the person bringing that suit must show that he or she has been injured in some way by the opposing party. For example, a person injured in a car accident would have standing to sue the offending driver, but a driving instructor with a general interest in automobile safety would not have standing to sue that driver.

Ordinarily, taxpayers do not have standing in the federal courts to challenge the constitutionality of government expenditures. In other words, taxpayers generally cannot claim that particular government expenditures have injured them. But in its 1968 decision in Flast v. Cohen, the Supreme Court carved out an exception to this general rule for cases in which taxpayers are challenging government spending as a violation of the Establishment Clause. Later, in Hein v. Freedom From Religion Foundation (2007), the high court narrowed the Flast exception by ruling that taxpayers have standing in Establishment Clause cases only when a legislative body has explicitly authorized an expenditure of government funds for religion.

The state and the STOs assert that, in light of the general rule against taxpayer standing and the recent decision in Hein that narrowed the Establishment Clause exception, taxpayers should not be able to challenge Arizona’s tax credit. After all, they say, the Arizona legislature itself is not making the decision to spend tax dollars to pay for scholarships at religious schools — a condition they say would be required for standing under the ruling in Hein. Instead, they say, the state legislature has only created a benefit (the tax credit) aimed at empowering private generosity that in turn may benefit religious schools.

Winn and the other taxpayers contend that the existing case law does give them standing to sue. They point out that in Flast, the Supreme Court broadly recognized that taxpayers are injured when the government unconstitutionally provides funds for religion and religious institutions, which Winn and the other taxpayers argue Arizona is doing via the tax credit. This injury permits them to sue in federal court, they say, as long as they can credibly claim that those government expenditures violate the Establishment Clause.

Moreover, Winn and the other taxpayers say, the Supreme Court has bolstered Flast by allowing taxpayer standing in cases in which a state’s “expenditures” are the revenue lost from tax credits or deductions, rather than a direct outlay of money by the legislature. The taxpayers point out that in Committee for Public Education & Religious Liberty v. Nyquist (1973), the Supreme Court allowed state taxpayers to challenge a New York state law permitting low-income taxpayers to take a credit against state income tax for certain amounts paid by parents for tuition at religious schools. A decade later, in Mueller v. Allen (1983), the high court permitted state taxpayers in Minnesota to challenge state income tax deductions for tuition payments at private schools, including religious schools. The Arizona tax credit plan challenged in this case also creates a “tax expenditure,” they argue, in the sense that it reduces the funds in the Arizona state treasury by the amount of the credit against taxes otherwise owed to the state. As a result, the taxpayers say, existing law clearly supports their standing in this case.

Turning to the substance of the case, what arguments do the state of Arizona and the STOs make in their briefs before the Supreme Court to explain why the tax credit should be upheld?

The state and the STOs contend that the tax credit does not violate the Establishment Clause because the Arizona program meets all the requirements set down in the Supreme Court’s landmark 2002 voucher case, Zelman v. Simmons-Harris. In upholding the government-funded voucher program in Cleveland, Ohio, the court in Zelman ruled that such a program is constitutional as long as it meets some core criteria: it has a secular purpose, directs government funds to parents rather than schools, covers a broad class of beneficiaries and offers students enough secular options to create a meaningful choice.

The state and STOs argue that the Arizona tax credit has a clear secular purpose because nothing in the law’s language or in its legislative history would lead anyone to conclude that the state legislature intended to promote religion or religious schools when it created the tax credit. They say there is ample evidence that the statute was enacted to give a greater number of poor and middle-income students, who may be in underperforming public schools, an opportunity to attend private schools.

Next, they argue that the statute also does not advance religion because it offers taxpayers, the STOs and parents of students, rather than the state, the complete choice as to where the scholarship funds will end up. More specifically, they say, because the taxpayers choose which scholarship tuition organizations to contribute to, and parents and STOs choose which schools will ultimately receive the scholarship funds, the state is clearly not involved in making those choices. Thus, they contend, the tax credit meets the second of Zelman‘s core requirements.

In addition, the state and STOs argue, even though the bulk of the Arizona scholarship money may end up in religious schools, the same was true in the Cleveland program that the high court upheld in Zelman. Indeed, they point out that the majority opinion in Zelman specifically “rejected the argument that the amount of indirect aid provided to religious schools in a given year either created the imprimatur of government endorsement of religion or indicated that the government program must be favoring religion.”

The state and STOs also contend that the Arizona scholarship program includes a large class of potential beneficiaries, which includes all taxpayers (who can take advantage of the credit) and many students in the state (who are eligible to receive money from the scholarship organizations).

Finally, they argue that the tax credit meets Zelman’s requirement that students have ample secular options. They point out that any student in the state may choose to attend public school or a secular charter school, and that many of the STOs fund scholarships to secular private schools as well as their religious counterparts.

What arguments do Winn and the other taxpayers make in their brief before the Supreme Court to explain why the tax credit should be struck down?

Winn and the other taxpayers begin their argument by saying that they are not challenging the tax credit on its face but “as applied.” In other words, they say, while the law creating the tax credit may be religion-neutral in the abstract, in practice it favors religion. Specifically, they say, the state and the STOs have portrayed the tax credit as a program aimed at helping underprivileged students in failing public schools, but in practice it is largely a conduit to channel state money to religious schools and, as a result, it is in direct violation of the Establishment Clause.

To begin with, the taxpayers contend, the funds generated via the tax credit are not traditional charitable contributions. “Charity … involves giving something of your own, at some cost to yourself, for a charitable purpose,” they point out. In this case, Arizona residents contribute to the STOs instead of paying income taxes with those funds; this is generally not the case for traditional charitable contributions, which qualify for a tax deduction. Unlike deductions, which are subtracted from a person’s total taxable income, credits are subtracted from the amount a person actually owes in taxes. Indeed, unlike other charitable contributions, a contribution to an STO to directly offset taxes owed can literally be made on the day a state resident pays his or her taxes. In other words, a family that owes $1,500 in state taxes at the end of the year can give $1,000 to an STO and pay only $500 in taxes. Thus, the taxpayers argue, the program is not funded with private money but with public money, since the contribution directly offsets tax payments to the state. Likewise, they say, the STOs are not private charitable organizations in the traditional sense. Instead, the taxpayers claim, they are wholly creatures of the state, having been created in the wake of the tax credit law solely to disburse funds generated via the credit.

In addition, the taxpayers contend, a substantial portion of the funds generated by the tax credit, at least up to this point, have not been used to allow poor children in failing public schools to take advantage of private alternatives, as was the case in the Cleveland voucher program that the Supreme Court upheld in Zelman. Instead, many recipients of STO funds are not from low-income families but are living in middle- or higher-income households, and many are already in religious schools.

Winn and the other taxpayers also argue that even though the language of the law creating the tax credit defined STOs as organizations that would grant funds to parents to allow them to place their child in the school of their choice, the reality is quite different. For example, they point out, in 2009 more than half of the $50 million raised through the tax credit went to four STOs that provide scholarships only to faith-specific schools. This goes squarely against the court’s requirement in Zelman, they say, because it does not place the funds with parents who can then make a genuine choice. Instead, scholarships are awarded by STOs to parents willing to send their children solely to various religious schools, such as Catholic, Protestant or Jewish schools.

What might be the broad significance of these cases?

If the court rules that Winn and the other taxpayers have standing to sue, it will not break significant new ground because, as the taxpayers point out, the high court has recognized taxpayer standing in previous Establishment Clause cases involving tax credits and deductions. If, on the other hand, the taxpayers are denied standing, it would likely block or severely limit future Establishment Clause challenges in situations involving tax credits and deductions.

For example, taxpayers are currently challenging in the lower courts the special treatment in the Internal Revenue Code for the housing or housing allowances provided to clergy by their employers. A ruling against taxpayer standing in Winn might result in the dismissal of such a case. In addition, First Amendment scholars would see a denial of standing in Winn, along with the Supreme Court’s recent ruling in Hein, as part of a significant trend to narrow the Establishment Clause exception for taxpayer standing first articulated in Flast.

If the high court denies taxpayer standing, it will no longer need to rule on the Establishment Clause question in this case. If, however, standing is granted, the high court will rule on whether the Arizona tax credit potentially could violate the Establishment Clause. If the court rules for Winn and the other taxpayers and affirms the appeals court ruling, the case will go back to the district court, which will then have to determine whether or not the tax credit program, as it currently operates, unconstitutionally promotes religion. If, however, the court rules in favor of Arizona and the STOs and overturns the appeals court decision, it would make challenging similar tax plans harder in the future. Such a decision also would give states that have or create similar plans much greater certainty that they could survive a similar constitutional challenge.

Read more about church-state law and issues involving religion and eduation at pewforum.org.

This week, a divided Supreme Court ruled, 5-4, that a public law school can deny recognition to a student group that excludes gays and lesbians. The Court said the school could enforce a policy requiring official student organizations to accept all students who want to join.

The case, Christian Legal Society v. Martinez, arose in 2004 when a chapter of the Christian Legal Society (CLS), a nationwide, non-denominational organization of Christian lawyers, judges and law students, asked to register as an official student group at the University of California’s Hastings College of Law. Groups that are officially recognized by the school enjoy certain privileges, including access to school facilities and the opportunity to apply for school funding. But CLS membership requirements effectively bar non-Christians and non-celibate gays and lesbians from becoming voting members or assuming leadership positions, which conflicts with the law school’s stated policy of requiring registered student groups to accept any students as members.

After Hastings refused to exempt CLS from the policy — known as the “all-comers” policy — the group sued the law school, claiming the policy violated the group’s First Amendment rights to free speech, freedom of association and freedom of religious expression. Two lower federal courts sided with Hastings, and CLS appealed to the Supreme Court, which heard oral arguments in the case on April 19, 2010.

The case was widely viewed as a contest between the right of free association and non-discrimination policies. In its ruling, however, the court did not resolve any broad questions raised by this conflict. Instead, the majority handed down a narrowly tailored decision that upheld the specific policy of Hastings Law School — the “all-comers” policy — as long as it is applied in an evenhanded manner.

Writing for the high court’s majority, Justice Ruth Bader Ginsburg said that Hastings’ policy requiring officially registered student groups to allow anyone to join does not unconstitutionally discriminate against groups with particular viewpoints or missions. Quite the contrary, she wrote, the policy is completely neutral since it requires all organizations to open their membership and leadership to all students. Ginsburg argued that it is CLS that wants an exemption from the policy and thus threatens its neutrality. Moreover, she wrote, an “all-comers” policy is reasonable for an educational institution because it encourages all groups to accept and interact with students who hold diverse views.

Ginsburg also noted that even though the Christian Legal Society has been denied official recognition by the law school, the group can, and indeed still does, freely operate on campus and is even allowed to use school facilities to hold meetings. Furthermore, she disputed the argument put forth by CLS that the “all-comers” policy could lead to “hostile takeovers” of groups by students who oppose them. “This supposition strikes us as more hypothetical than real,” she wrote, adding: “Students tend to self-sort and presumably will not endeavor en masse to join — let alone seek leadership positions in — groups pursuing missions wholly at odds with their personal beliefs.”

Writing for the dissent, Justice Samuel Alito argued that by affirming Hastings’ policy, the majority sacrificed core First Amendment principles in favor of political correctness and armed “public educational institutions with a handy weapon for suppressing the speech of unpopular groups.” In addition, Alito asserted, the majority overlooked certain evidence that shows that Hastings was singling out CLS because of its beliefs. Prior to the lawsuit, he said, many officially recognized groups on the Hastings campus — not just CLS — had membership requirements written into their bylaws that were discriminatory. Justice Alito also disputed the majority’s contention that CLS, even without official recognition, can still effectively operate on campus, noting that the administration has ignored requests by the group to secure rooms for meetings and tables at campus events.

The case now returns to the lower courts, which have been instructed to determine whether CLS should be given the opportunity to prove that Hastings has selectively enforced its “all-comers” policy. As for the broader impact of the court’s ruling, many colleges and universities may now decide to impose requirements on student groups that are similar to or the same as the “all-comers” policy at Hastings.

The Pew Forum has a number of resources on the Christian Legal Society case and religion and education in general. These include an “In Brief” report on the facts of the dispute and the arguments made by both sides in the case and a detailed “legal backgrounder” on the constitutional questions surrounding religion in schools. The full text of the decision is available on the Supreme Court’s website.

Should doctors, pharmacists and other health care workers have the right to refuse to provide services that conflict with their religious beliefs? Until recently, the debate over “conscience protections” for health care workers centered largely on abortion and birth control. But in the past few years, new cases have emerged that have raised questions about the tensions between individuals’ rights of conscience and the need to protect certain groups against discrimination, notably gays and lesbians. These new cases involve health care workers — in one case doctors at a California fertility clinic, in another case a graduate student in Michigan studying to become a counselor — who refused to treat gay and lesbian patients because they felt that doing so would compromise their core religious beliefs. While religious organizations and institutions are exempt from certain nondiscrimination laws, there is debate over whether private individuals and businesses should have similar rights. To explore this issue, the Pew Forum turned to Professors Ira “Chip” Lupu and Robert Tuttle.

Featuring:
Ira “Chip” Lupu, F. Elwood and Eleanor Davis Professor of Law, The George Washington University Law School
Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, The George Washington University Law School
Interviewer:
David Masci, Senior Research Fellow, Pew Research Center’s Forum on Religion & Public Life

Briefly, describe the Michigan case, Ward v. Eastern Michigan University. What led to the lawsuit and what are the key legal issues involved?

In March 2009, Julea Ward, a student at Eastern Michigan University (EMU), was dismissed from her graduate-level counseling program when she refused to counsel a gay man about a same-sex relationship. The program, run by the University’s Department of Counseling and Education, aims to give students real-world experience by requiring them to counsel several clients, who pay a small fee, over the course of a semester. After reading this client’s file, Ms. Ward asked a supervisor to refer him to another student counselor and to assign her another client. In making this request, Ms. Ward stated that her Christian beliefs about homosexuality would prevent her from affirming the client’s relationship with another man. The supervisor claimed that Ms. Ward’s refusal violated the ethical obligations of a counselor not to discriminate against clients based on sexual orientation or to impose one’s personal beliefs on clients. Based on this judgment, the school expelled Ms. Ward from the counseling program.

Ms. Ward filed suit in federal district court in the Eastern District of Michigan, alleging that the school violated her constitutional rights to free exercise of religion and freedom of speech. In particular, she argued that she had been expelled because the supervisor objected to her religious beliefs about homosexuality. EMU, citing the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988), as well as several lower court decisions in which courts had shown deference to academic officials in disputes involving educational issues, asked the court to dismiss the lawsuit. Ms. Ward claimed, however, that the school’s rationale for her dismissal was merely a pretext for the faculty’s hostility to her religious beliefs about homosexuality, which she had expressed in class as well as to her supervisor. In addition, she argued that counselors do not have a professional obligation to counsel all clients about all issues. Instead, she said, they are permitted to refer clients to other counselors if a client’s needs conflict with the counselor’s moral convictions.

In March 2010, the court rejected the school’s motion to dismiss the case. The lawsuit will now go forward in district court, focusing on whether EMU’s expulsion of Ms. Ward arose from its application of a reasonable school policy or from hostility toward Ms. Ward’s religious beliefs.

Have other health care providers or people in related professions sought religiously-based exemptions from rules that would require them to serve gays and lesbians? If so, in what contexts did those requests arise, and what has happened in these cases?

Disputes over the duty to serve gays and lesbians on equal terms have arisen in a number of settings, from housing and adoption to online dating services and wedding photography. (See A Clash of Rights? Gay Marriage and the Free Exercise of Religion.) But only a few of these disputes have involved health care services.

Before Ward v. Eastern Michigan University, the most prominent case was North Coast Women’s Care Medical Group v. Benitez, which was decided by the California Supreme Court in 2008. In North Coast, Guadalupe Benitez, a lesbian, brought suit against North Coast Women’s Care, a medical clinic that was treating her for infertility. Two doctors at the clinic declined to perform artificial insemination for Ms. Benitez. Because no other doctors at the practice were qualified to perform the procedure, she was referred to another clinic for treatment. Ms. Benitez argued that the doctors’ refusal was based on her sexual orientation, and thus violated her rights under California’s Unruh Civil Rights Act (the Unruh Act), which prohibits discrimination based on a host of factors, including race, gender, religion, disability and sexual orientation. The doctors claimed that they had a religious objection to providing the treatment to Ms. Benitez, so they should be exempt from liability under the Unruh Act.

The California Supreme Court ruled against the doctors. The court concluded that their religious objections did not outweigh Ms. Benitez’s right to receive medical services without discrimination. Under the U.S. Constitution’s Free Exercise Clause, the court reasoned, individuals have no right to be exempted from general laws that incidentally burden their religious beliefs. Indeed, the court stated, the Free Exercise Clause protects only against laws that single out religion for special disfavor, which was not the case here. (See A Delicate Balance: The Free Exercise Clause and the Supreme Court.)

The lawsuit in Michigan and the decision in California are the only recent U.S. cases involving health care and gays and lesbians. However, a case very similar to the Michigan suit was decided in England in 2010. In that case, McFarlane v. Relate Avon Ltd., the England and Wales Court of Appeal ruled against a counselor who had been fired for refusing to work with a same-sex couple. While the counselor claimed that it would violate his religious beliefs to provide psycho-sexual therapy to same-sex couples, his employer said that all counselors were required to serve all couples. After he was fired, the counselor filed suit, alleging that he was being discriminated against based on his religious beliefs. The court ruled that the counselor had no legal right to be excused from serving same-sex couples.

How do the Michigan and California cases differ from cases involving doctors and abortion, or cases involving pharmacists and birth control?

The most important difference centers around the fact that federal and state legislatures have enacted laws granting exemptions for obstetricians and other health care professionals with respect to abortions (and, in a much more limited way, for pharmacists with respect to birth control). The abortion-related legislation reflects the view that people should not be forced to perform an act that they perceive as life-destroying. At the same time, legislatures have not been inclined to exempt health care professionals from laws forbidding discrimination based on characteristics such as race, gender or sexual orientation. Courts might not want to fill this gap and create those exemptions. Courts generally see anti-discrimination laws as serving important social purposes, and they are often concerned that such laws could be undermined by exemptions.

Another important distinction involves the possible extent to which services are withheld. Indeed, there might be a considerable difference, particularly from the government’s perspective, between an obstetrician’s refusal to perform abortions and a therapist’s refusal to counsel a gay man. The obstetrician has not refused to care for an individual or group of people, but only to perform a specific service. By contrast, the therapist’s refusal denies all services to anyone in a same-sex relationship with issues arising from that relationship, even though the therapist remains willing to provide comparable services to those in heterosexual relationships. The therapist’s decision could therefore be seen as undermining the state’s interest in protecting gays and lesbians from discrimination.

What arguments have been made by those who, like the student therapist in the Michigan case, seek moral or religious exemptions?

People who seek these exemptions usually make the following arguments. First, they assert that they are not opposed to serving gay or lesbian clients; rather, they are religiously opposed to aiding or facilitating certain aspects of same-sex relationships. For example, in the EMU case, Ms. Ward argued that she did not want to counsel a client with respect to his homosexual relationship but was willing to counsel him about other aspects of his life. Second, they contend that federal or state constitutional protections of religious liberty entitle them to these exemptions. Finally, proponents of such exemptions argue that granting an exemption will cause little or no harm to gay and lesbian clients because equally competent professionals are ordinarily willing to provide the services. Indeed, they say, as long as the number of exemption-seekers is small, and the number of professionals willing to serve such clients is large, gay and lesbian clients will have adequate service.

Ms. Ward explicitly relied on the American Counseling Association’s Code of Ethics in arguing that she should be entitled to refer a client to another counselor in the EMU program if she determines that her personal moral convictions make it impossible for her to work effectively with that client. In the California case, the North Coast Women’s Care Medical Group made a similar argument about referral, though in that case, the referral would have been to a fertility specialist outside the North Coast group, because no one within the group was both willing and qualified to treat Ms. Benitez.

What arguments have been made by those, like Eastern Michigan University, that oppose such exemptions?

The opponents of exemptions typically make several arguments. First, they deny that state or federal constitutional law authorizes any such exemption. In Employment Division v. Smith (1990), they point out, the U.S. Supreme Court ruled that the clause of the First Amendment protecting the “free exercise of religion” does not entitle individuals with religious objections to exemptions from generally applicable laws. Likewise, state courts in Michigan have interpreted their state constitution’s guarantees of religious liberty in a similar manner. Citing Smith, the university argues that because its nondiscrimination policies are “generally applicable” (they apply with equal force to all students in the program), they are not subject to religious exemption claims.

Second, opponents assert that the state has very good reasons for refusing to grant exemptions based on religion or conscience. Specifically, they contend that any refusal to provide services harms the dignity of gay and lesbian patients and reduces the availability of qualified professionals to treat them.

Third, some opponents of religious exemptions see them as being at odds with professional obligations. In the Eastern Michigan case, for example, the faculty in the Department of Counseling and Education asserted that Ms. Ward had behaved unethically by “imposing values that are inconsistent with counseling goals,” which include working to promote the psychological well-being of all eligible clients. The faculty also asserted that the professional code of ethics does not apply in this situation because it conflicts with the nondiscrimination requirements that apply to all clients served by the EMU counseling program’s curriculum.

Are we likely to see many more conscience-related disputes that involve sexual orientation? If so, how are these cases likely to be resolved?

As illustrated by the Michigan and California cases, future health care-related cases are likely to involve counseling for those clients who seek advice with respect to same-sex relationships and medical treatment on matters of fertility and reproduction. These are the areas in which some professionals who are religious may have difficulties because they do not want to facilitate or promote same-sex intimacy. In contrast, we do not expect to see cases in which medical professionals refuse to treat a patient for physical ailments or psychological problems solely on the ground of the patient’s sexual orientation.

Similarly, future conflicts also are likely to arise out of same-sex weddings and commitment ceremonies. There have already been disputes in England and Canada over whether public offiicials — marriage license clerks or officers empowered to preside at weddings — may refuse to participate in formalizing same-sex partnerships. In addition, there have been cases of photographers and others in the business of providing wedding-related services who have refused on religious grounds to work at same-sex wedding ceremonies and receptions. (See A Clash of Rights? Gay Marriage and the Free Exercise of Religion.)

In the roughly half of states that prohibit discrimination against gays and lesbians, we think the disputes are likely to be resolved against those seeking exemptions, unless state legislatures create specific rights of exemption with respect to same-sex wedding celebrations. Thus far, at least in the states that have legislatively recognized same-sex marriage, lawmakers have refused to recognize the right of public employees, or commercial providers of goods and services for weddings, to refrain from serving same-sex couples. Unless that political trend changes, we think most of these disputes will be decided against the person claiming the exemption.

Because medical services are more personal, the outcome of disputes about health care providers is somewhat harder to predict, especially if the objecting professionals are willing to refer the patient, in accordance with the ethical norms of their profession, to others willing and able to serve. Even in this context, however, the growing number of laws guaranteeing equal treatment for gays and lesbians suggests that professional organizations may not be as inclined as they once were to give any official ethical approval to their members’ refusal to treat such patients or clients.

Learn more about the intersection of religion and law, abortion and gay marriage & homosexuality, at pewforum.org.

The U.S. Supreme Court recently overturned a lower court ruling that had ordered the removal of a cross from a World War I memorial located in California’s Mojave National Preserve. Prior to the high court’s decision in this case, Salazar v. Buono, a federal district court had ruled that allowing the eight-foot-tall cross to remain on the preserve (which is a national park) violated the First Amendment’s Establishment Clause. The same district court later ruled that a 2003 federal law aimed at eliminating the Establishment Clause problem by transferring the property around the cross into private hands was an invalid attempt by the U.S. Congress to evade the district court’s earlier ruling. But in its decision today, a divided Supreme Court ruled 5-4 that the lower court had not properly considered the validity of the congressional statute transferring the property, known as Sunrise Rock, from public to private hands.

Justice Anthony Kennedy, in announcing the judgment of the court, stated that Congress’ intent in passing the land-transfer statute was to maintain a war memorial rather than to promote a particular religious creed. “By dismissing Congress’ motives as illicit, the District Court took insufficient account of the context in which the statute was enacted and the reasons for its passage,” Kennedy wrote. “Private Citizens put the cross on Sunrise Rock to commemorate American servicemen who died in World War I.” Accordingly, the high court ordered the district court to reconsider whether the land transfer changed circumstances enough to allow the cross to remain without violating the Establishment Clause.

In a dissenting opinion, Justice John Paul Stevens said the district court had been correct both in its original ruling that the cross should not be displayed in the preserve and in its subsequent decision that the land-transfer statute did nothing to alter the fact that a sectarian religious monument essentially remained in a national park. “The land-transfer statute mandated transfer of the land to an organization that has announced its intention to maintain the cross on Sunrise Rock,” Stevens wrote. “True, the government would no longer exert control over the cross. But the transfer itself would be an act permitting its display.”

The Pew Forum has a number of resources on the Salazar case and religious displays in general. These include an “In Brief” report on the facts of the dispute and the arguments made by both sides in the case and a detailed legal backgrounder on the constitutional questions surrounding religious displays. The full text of the decision is available on the Supreme Court’s website.

On April 19, 2010, the U.S. Supreme Court will hear oral arguments in Christian Legal Society v. Martinez, a case that will determine whether a public institution can refuse official recognition to a religiously-based organization that prevents those who do not share its religious and moral values from becoming voting members. The case arose in 2004 when a chapter of the Christian Legal Society (CLS) expressed a desire to register as an official student group at the University of California’s Hastings College of Law. Groups that are officially recognized by the school enjoy certain privileges, including public funding. But CLS requirements effectively bar non-Christians and non-celibate gays and lesbians from becoming voting members or assuming leadership positions, which is in direct conflict with the law school’s non-discrimination policy. After six years of litigation in lower courts, the case is now before the Supreme Court. In the folowing publication, David Masci, a senior researcher for the Pew Forum on Religion & Public Life, answers questions about the case and explains how the high court’s decision could affect the rules governing a wide array of groups that accept government funding.

How did this case arise and how did it reach the U.S. Supreme Court?

The Christian Legal Society is a nationwide, non-denominational organization of Christian lawyers, judges and law students with chapters at 165 law schools throughout the U.S., including the University of California’s Hastings College of Law. Although anyone is allowed to attend CLS meetings, voting members and those in a chapter’s leadership positions must sign and adhere to a Statement of Faith affirming their commitment to the group’s Christian beliefs and values. In addition, the group’s bylaws state that members and officers are expected to live according to certain principles, including refraining from sexual activity of any kind outside of heterosexual marriage.

In the fall of 2004, the local CLS chapter at Hastings applied to register as a student organization at the law school. Groups that are officially registered at Hastings benefit from certain privileges. For example registered organizations are given priority access to university facilities, such as rooms for meetings, and are entitled to apply for funds for specific activities, such as travel to professional conferences. Unregistered groups are allowed to operate on campus, but without school funding and other privileges.

After reviewing the CLS’s bylaws, Hastings officials questioned whether the organization could comply with the school’s open membership or anti-discrimination policy. Hastings’ non-discrimination policy states that the university and affiliated groups “shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” CLS agreed that its requirements that members be Christians and that they only be intimate with an opposite-sex spouse were not in line with two parts of the school’s non-discrimination policy: those concerning religion and sexual orientation. The group asked to be exempt from these two parts of the policy and allowed to register. When the law school refused this request, CLS sued Hastings in the U.S. District Court for the Northern District of California, arguing that the school had violated its First Amendment rights to speech, assembly and the free exercise of religion.

In April 2006, the district court ruled that Hastings did not violate CLS’s rights when it enforced its non-discrimination policy. Specifically, the district court judge stated that by denying official recognition to the group, the law school had done nothing to significantly “impair” the group’s ability to function or even express itself on campus. CLS then filed an appeal with the 9th Circuit Court of Appeals, which in March 2009 affirmed the district court’s ruling.

After these two lower federal courts ruled in favor of Hastings College of Law, the Supreme Court agreed to review the case.

What arguments does the Christian Legal Society make in its brief to the Supreme Court to explain why the law school should be required to officially recognize it?

In its brief to the Supreme Court, the CLS acknowledges that Hastings’ decision not to officially recognize the group does not deny it the right to exist or function on campus in a limited way. However, the Society contends that denial of recognition does burden the group’s First Amendment rights because it limits access to university rooms and denies access to communications resources and financial support available to other registered groups. The group argues that by creating a system whereby student groups register and are then given access to university resources, Hastings has created what courts have called a “public forum.” In other words, the university has created an environment on campus where groups can express themselves. As a result, CLS says, any group that is denied access to this public forum will not have the same ability as other groups to get its message out to the campus community. According to the CLS, this explains why courts have generally maintained that once a public forum is established, it cannot be limited to groups or individuals with certain beliefs.

Next, CLS argues that by making official recognition subject to acceptance of the university’s non-discrimination policy, Hastings is limiting access to the school’s public forum, and is therefore violating the group’s First Amendment right to what courts have called “expressive association.” The right to expressive association, which arises from both the freedoms of speech and assembly under the First Amendment, protects the right of an organization to control its mission, message and policies, and to choose members and leaders to carry out its objectives. According to CLS, Hastings’ non-discrimination policy would require the group to take anyone into its voting membership, and potentially into its leadership ranks, regardless of whether the person shares the group’s beliefs. CLS contends that courts have long recognized that the First Amendment right of expressive association includes the right to exclude those who are not committed to the group’s cause. Indeed, CLS points out that many other organizations that have registered at Hastings have statements in their bylaws allowing them to confine membership and leadership to individuals who believe in the group’s mission and objectives.

And in most cases, CLS says, groups at the law school can and do regulate membership. For instance, an environmental group could legally keep climate-change skeptics from leadership positions without running afoul of the Hastings anti-discrimination policy. But because Hastings’ policy prohibits bias based on religion and sexual orientation (rather than say, environmental views) CLS, unlike other groups, could conceivably be forced to allow into its leadership ranks those who do not share its religious or moral beliefs. In doing this, they say, Hastings is overtly discriminating against religious groups and thus violating the guarantee of religious liberty in the First Amendment’s free exercise clause.

Protecting the right to ensure that a group’s members share its basic beliefs is important for all organizations, CLS contends. The Society further argues that it is particularly important for smaller groups or those with broadly unpopular agendas — which, the Christian Legal Society says, is the case with their group on the Hastings campus — because these types of organizations are more vulnerable to being controlled or harassed by outsiders. In this case, they say, CLS could easily be compromised and even effectively shut down if large numbers of people hostile to the group were allowed to become voting members and eventually assume leadership positions.

What arguments does Hastings College of Law make in response to the Christian Legal Society?

In its brief before the Supreme Court, the Hastings College of Law contends that its non-discrimination policy does not violate the Christian Legal Society’s or any individual’s First Amendment rights. To begin with, the law school argues, it is settled law that government entities are allowed to set conditions when offering public subsidies to groups, as long as those conditions 1) do not favor certain views over others (a requirement known as “viewpoint neutrality”), 2) are reasonable in light of the purposes of the program and 3) are not coercive.

In this case, Hastings argues that its registration policy does not favor certain viewpoints over others since all officially registered groups on the campus are entitled to set their own policies and to openly express their views. Indeed, they say, other religious groups have long been registered at the law school without incident. The only thing registered groups cannot do, the law school points out, is to exclude students from membership. More specifically, Hastings rejects the claim that its non-discrimination policy imposes a special burden on religious groups (like CLS) because of the possibility that religious organizations could be overwhelmed by new members who do not share the group’s beliefs or mission.

The law school also points out that courts have consistently upheld similar laws banning discrimination, including discrimination based on religion and sexual orientation. In addition, Hastings says, courts generally recognize that these laws do not run afoul of the First Amendment because they regulate conduct (in this case, discriminatory conduct) and not speech.

Hastings also claims that, in addition to being fair and neutral, its non-discrimination policy is reasonable in light of its purpose, which is to ensure “that the leadership, educational, and social opportunities afforded by registered student organizations are available to all students.” The policy is reinforced by the fact that much of the money used to assist officially registered groups comes from the activity fees paid by all students. “It is reasonable for Hastings to conclude that students should not have to subsidize group activities that they are formally excluded from participating in,” the law school’s brief states. In addition, Hastings maintains, the non-discrimination policy is required by California state law, which provides that groups receiving funds from the state, including registered student groups, must comply with its anti-discrimination laws. This includes bans on discrimination based on religion and sexual orientation.

The law school also argues that the conditions it sets for registration, including its non-discrimination policy, are not coercive. “A group may abide by the School’s viewpoint neutral open-membership policy and obtain the modest funding and benefits that go with school recognition or forgo recognition and do as it wishes,” Hastings states in its brief. Moreover, they say, the benefits that come with recognition are so modest (primarily small amounts of funding and priority in reservations for rooms) that it is hard to argue (as CLS does) that loss of these benefits amounts to a significant burden on First Amendment rights of speech or association. Indeed, the university states that the group can still operate on campus without restriction and can even use rooms at the law school for meetings. And if CLS were to register, Hastings says, the open membership policy would not, as the group claims, force it to accept leaders who do not share its beliefs. Instead, according to the law school, the policy only requires that all students be allowed to become members and that they be eligible for leadership positions. The university asserts, moreover, that the Society’s fear that their opponents might take over the group’s leadership positions is at best hypothetical and is not supported by concrete examples of similar incidents at Hastings or other schools.

Finally, Hastings argues that the Supreme Court has long held that just because the state subsidizes groups that do not discriminate, it is not required to subsidize groups that do engage in discrimination. Furthermore, they say, allowing CLS to register and receive benefits while it discriminates on the basis of religion and sexual orientation would inevitably lead to similar cases. Indeed, the state could be forced to subsidize groups that discriminate in other ways — against, say, the disabled or those in the military. Under CLS’s logic, the law school contends, “the official Hastings Outdoor Club could refuse to let student [military] reservists participate in a school-subsidized hiking trip because the student leaders of that group disagree with the military’s conduct of the war on terror. And Hastings not only would be constitutionally precluded from doing anything about it, it would have to subsidize the group’s activities and let it use the School’s name.”

What might be the significance of Christian Legal Society v. Martinez?

If the justices rule in favor of Hastings and determine that its anti-discrimination provision does not burden CLS’s First Amendment right to expressive association, the decision is likely to have a limited impact outside of educational settings. At publicly funded educational institutions of all kinds, however, a ruling in favor of Hastings might embolden some schools to enact tighter restrictions on eligibility for student activity funding and resources. At these institutions, a decision for Hastings might give officials greater confidence that when they set conditions on groups that accept public money, they will not be violating their First Amendment freedoms.

If, however, the court finds that the non-discrimination rules impermissibly burden CLS’s rights, then the decision could have a broad impact that extends beyond educational institutions. Not only would this ruling protect the right of religiously-based groups, like the Christian Legal Society, to receive support at places like Hastings, it might also allow groups that discriminate based on other criteria, such as race or gender, to gain equal access to public forums. Furthermore, if the court extends the reach of this decision to all government funded programs (as opposed to only those, like the one at Hastings, that concern public forums for speech) then its potential impact would be very significant. Such a ruling could lead to dramatic changes in this area of law by inviting courts to scrutinize much more thoroughly the conditions that accompany government aid programs, ranging from public welfare funding to higher education scholarships.

Learn more about the intersection of religion and law, including backgrounders on the Establishment Clause and religious in public schools, at pewforum.org.