Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

Lutheran Church — Missouri Synod Radio Station Escapes FCC Affirmative Action Demands

The Federal Communications Commission (FCC) regulates the licensure of radio stations and scrutinizes applications for license renewals. One such FCC regulation requires license renewal applicants to satisfy equal employment opportunity (EEO) guidelines forbidding discrimination because of race, color, religion, national origin, or sex. Moreover, stations are specifically compelled to “adopt an affirmative action EEO program targeted to minorities and women.”

The Lutheran Church — Missouri Synod owns and operates an AM station and an FM station, both located on the Concordia Seminary Campus in Clayton, Missouri. The AM station’s format was religious and non-commercial, while the FM station featured a classical music format with a religious orientation and some religious programming. Citing the stations’ religious mission, the church insisted that most employees of the stations have knowledge of essential Lutheran doctrine.

After review of the church’s radio renewal application, the FCC determined that the church’s hiring practices were illegal. Admitting that FCC policies exempt religious broadcasters from the ban on religious discrimination, the FCC nonetheless limited this exemption to “employees reasonably connected to the espousal of religious philosophy over the air.” Thus the FCC ruled that the exemption from religious discrimination would not apply to religious station employees such as receptionists, secretaries, engineers, and business managers, for whom knowledge of Lutheran doctrine would presumably be “unnecessary.” The FCC also found that the church had not made sufficient efforts to recruit minorities for these positions.

The church appealed this remarkable FCC ruling to a federal court of appeals, arguing that the FCC imposed EEO regulations as a whole interfered with the church’s ability to prefer Lutherans in hiring station employees. The church also contended that the EEO guidelines as applied to the religious radio station violated the Religious Freedom Restoration Act, the Free Exercise Clause, and other constitutional guarantees.

The federal court ruled in favor of the Lutheran Church — Missouri Synod, declaring unconstitutional the FCC’s requirement that religiously formatted radio stations must give preferential treatment to minorities in its hiring decisions as opposed to hiring those persons with knowledge of Lutheran doctrine. Rejecting the FCC notion of requiring the religious station “to make race-based hiring decisions” while ignoring knowledge of religious doctrine for most employees, the court ruled that unless the FCC had evidence that the church had demonstrated actual racial preference in its hiring decisions, the government claims of discrimination must be dismissed.

Commentators have suggested that this is an important ruling, not only for churches, but also for other religious organizations as well. This federal court decision reaffirms the right of a Christian organization to practice hiring preferences for employees who embrace a knowledge of the organization’s faith commitment.

Federal Appellate Court Affirms Convictions of Abortion Protesters

Several years ago Congress adopted a new federal criminal law primarily targeting abortion clinic protesters. The Freedom of Access to Clinic Entrances Act (FACE) provides criminal and civil penalties for those convicted of obstructing ingress or egress to abortion clinics. Eleven members of an anti-abortion group called the Lambs of Christ physically blockaded all the entrances of a New York Planned Parenthood clinic. They prevented access to the building by chaining themselves to the doors or welding themselves to large objects such as a car or picnic table. Although they did not engage in any violence, they practiced “passive resistance” while being removed by local law enforcement agencies.

The federal trial court convicted all defendants of violating FACE, imposed sentences, and ordered restitution to the clinic for the property damage caused by their activities. On appeal, the defendants argued that FACE was unconstitutional under the Commerce Clause and the Free Speech Clause.

Addressing the defendants’ Commerce Clause argument, the federal appellate court declared that Congress has the power to enact legislation “to prevent the inhibition or diminution of interstate commerce.” But how are abortions related to “interstate commerce”? Reviewing the legislative history of FACE, the court found that Congress had stated that “women travel interstate to obtain reproductive health services” and that “doctors travel state to state and often cover great distances to perform abortions.” Moreover, the court found that “clinics purchase medical and other supplies in interstate commerce.” Accordingly, because abortion clinics are in these ways involved in “interstate commerce,” Congress has the raw legislative power to regulate such activities.

The protesters also argued that FACE discriminates against those persons who are “ideologically or morally opposed to abortions.” The court disagreed, claiming that “pro-choice” protesters are also prosecuted for violating the statute.

The court also pointed out that the protesters may nonetheless exercise their free speech rights by displaying signs, distributing literature, and by “speaking conversationally anywhere or anytime they choose,” activities which are quite different from blockading entrances to the clinics.

Finally, the convicted protesters argued they lacked the requisite criminal intent since their sole objective was “to save the lives of unborn children.” The court disagreed, holding that regardless of what the protesters’ “ultimate purpose” may have been, they nonetheless blocked the clinic intending to prevent abortions, and accordingly violated FACE.

U.S. Supreme Court Allows Wisconsin Tuition Voucher Plan to Stand

The school choice movement promoting tuition vouchers for private and parochial schools gained unprecedented momentum recently when the U.S. Supreme Court refused to review Wiscon—sin’s controversial school voucher program. Early last summer, Wisconsin’s top court had ruled that the Milwaukee Parental Choice Program (MPCP) was constitutional even though it made state money available to religious schools, because the tuition reimbursement was payable to the parents, who then had the choice of selecting a public or private school. The controversial decision was immediately appealed to the U.S. Supreme Court by voucher opponents who insist that such vouchers breach the constitutionally mandated separation of church and state.

But, by an 8-1 vote, the U.S. Supreme Court refused to review the Wisconsin decision, thus lending its informal “approval” to the Milwaukee voucher program. The supreme courts of four other states are currently considering voucher programs similar to the Wisconsin tuition reimbursement plan, and any or all of those decisions will likely also be appealed to the highest court in the land. But for now, anyway, the Supreme Court justices are declining to embroil themselves in a growing national debate over the use of public funds by private religious and parochial schools.

The experimental Milwaukee program currently would provide up to $70 million for some 15,000 low-income students to attend private schools, whether religious or secular. The detractors insist that such schemes will divert sorely needed resources from public schools already in desperate financial need. Proponents argue vouchers allow poor students the opportunity to choose quality schools and force inferior public schools competitively to improve their educational programs.

The U.S. Supreme Court’s refusal to consider the Wisconsin voucher program will be interpreted as a partial victory for both sides, although it is clear that the Wisconsin program will now serve as a prototype for other states considering similar tuition reimbursement schemes. Still unanswered also is the ongoing concern of parental schools regarding the nature and extent of government regulations and intrusion that is inevitably linked to state funding of private organizations.