Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, September 30, 2016

Religiously Affiliated Law Schools: Potential Accreditation Issues after Obergefell

The second panel at RALS features Bill Piatt (St. Mary's), Rena Linevaldsen (Liberty), Johnny Rex Buckles (Houston), Hon. Stuart Adams (Utah Senate), and Robin Wilson (Illinois).

Prof. Piatt spoke about his struggles to have a Christian Legal Perspectives CLE program approved by the Texas state bar. The CLE board denied approval on the ground that the programs pertained to individual moral or religious responsibilities, rather than the duties of an attorney.  Bill and his colleagues filed a formal challenge, and many rallied to their cause.  The state bar agreed to grant credit for training on moral and religious topics in the context of legal ethics training, but these challenges will continue.

Prof. Linevaldsen discussed ABA Standard 205 (non-discrimination and equality of opportunity) in light of Obergefell.  She emphasized the need for schools to articulate a strong religious mission in terms that will justify honor code policies. The student experience must be tied to the mission.  Imposition of non-discrimination norms must be shown to impair the mission-centered community.  Standard 205 provides a safe harbor for law schools that is coextensive with First Amendment protections.

Prof. Buckles spoke about the public policy doctrine and the Bob Jones case, arguing that religious institutions should maintain their tax-exempt status despite Obergefell. Even if 501(c)(3)'s restraint of Free Exercise rights is constitutional, it should not be applied in these cases -- the public policy doctrine should be applied narrowly.  There is nothing that attributes a lack of dignity to a person excluded from a faith community on the basis of holding a contrary faith perspective. 

Sen. Adams and Prof. Wilson spoke about the Utah compromise on religious liberty and LGBT rights.  The Supreme Court decided a case between litigants, but the Court does not have the responsibility or ability to decide what that decision means for everyone else.  We will need to help state legislatures reach prudent compromises on this issue, as Utah has done.  Fairness for all means that firing a judge who won't perform same-sex marriages is wrong, and firing an employee for being gay is also wrong.  They addressed the need to recognize gradations of the contexts in which religious liberty interests are implicated -- e.g., discrimination in the use of church property is not the same as discrimination by large commercial corporations, with different degrees of concern represented by the cases in between.


Vischer, Rob | Permalink