Barry, I do believe the constitutional challenges against the health care law will succeed.  Specifically, in my view, it will be the Commerce Clause violation that ultimately will result in this law being declared unconstitutional.  It also seems very likely that this case will wind through the legal process and end up at the Supreme Court.

There is a case before the Supreme Court currently that I want to focus on for a moment.  It’s a religion case and as you know there haven’t been many at the high court lately.  This case is certainly being watched closely and will have significant ramifications.

The case is Christian Legal Society v. Martinez and the central issue before the court involves the protection of the constitutional rights of religious groups to set membership and leadership criteria according to the dictates of their religious beliefs. 

The case involves a decision by the U.S. Court of Appeals for the Ninth Circuit siding with the Hastings College of the Law in San Francisco. Hastings denied official recognition to a student group – the Christian Legal Society (CLS) – after CLS said it could not abide by the school’s non-discrimination policy. That policy forbids student groups from discriminating on the basis of, among other things, “religion.” CLS says its religious beliefs prevent non-Christians from exercising control over the group by becoming voting members or serving in leadership positions.

And that’s the key issue before the court.

Barry, it is fundamental to religious freedom that religious groups are free to define their own mission, select their own leaders and determine their own membership criteria.

The First Amendment protections afforded to religious organizations are clear.  The appeals court decision discriminates against religion, undermines Supreme Court precedent, and injects the government into an area that the Constitution forbids.

That’s exactly why we filed an amicus brief in this case – representing a number of Christian leaders and organizations active on college and university campuses.

In our friend-of-the-court brief, we contend that religious groups are constitutionally protected in following their religious beliefs.

“Religious groups by their nature embrace religious principles and, as a matter of organizational identity and coherence, will normally require adherence to such principles as a criterion for membership and certainly for leadership,” the brief asserts.  “This is not ‘discrimination’ but rather part and parcel of what defines them as religious groups.  Wooden application of religious ‘non-discrimination’ policies therefore forces religious groups to choose between their religious identity and access to the forum.  That ‘choice’ is an unconstitutional one between yielding to government intermeddling and no access at all.  Far from a permissible condition on benefits, this is a choice that the government, under the Religion Clauses, has no business imposing on religious groups.”

Our legal argument is clear:  the appeals court decision violates the constitutional protections afforded to religious groups.

Our brief states:  “A policy of non-discrimination by the government promotes a wholesome neutrality.  But when the government extends that same policy to private religious groups and directs them not to discriminate on religious grounds, it strays into forbidden territory.  Such a policy inevitably undermines the Court’s equal access cases, discriminates against religion, and injects the government into matters–the leadership and membership criteria of religious groups–that the Religion Clauses put squarely out of bounds.”

We believe the appeals court decision should be reversed.  The Supreme Court is scheduled to hear oral arguments in this case on April 19th.

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