Saturday, September 27, 2008

Christian Legal Society and Fellowship of Christian Physician Assistants supports proposed rule protecting health care right of conscience

On Thursday, the Center for Law & Religious Freedom (CLRF), on behalf of the Christian Legal Society (CLS) and the Fellowship of Christian Physician Assistants (FCPA), submitted comments in support of a rule proposed by the Department of Health & Human Services "Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices In Violation of Federal Law." Dep't of Health & Human Services, 73 Fed. Reg. 50279 (proposed Aug. 26, 2008) (to be codified at 45 C.F.R. pt. 88) (read the full text of the provider conscience regulation)

From the comments:

The pending regulations do not impose any new substantive obligations on HHS
grantees. Rather, they simply require grantees to certify that they comply with
the existing protections for medical professionals' rights of conscience. But as
the above illustrates, holding HHS grantees responsible for legal requirements
that they have ignored for decades is no small thing. The unfortunate fact is
that while federal law explicitly protects medical professionals from being
forced to perform or refer for abortions against their conscience, in practice
HHS grantees have been unaware of or ignored these laws. The pending regulations
are a necessary and important insurance that HHS grantees will not use federal
taxpayers' money to compel persons to perform abortions or provide abortion
referrals in violation of their consciences. Please issue these regulations at
the earliest possible date.

Friday, September 26, 2008

CLS Supports Religious Liberty Housing Bill

Christian Legal Society, through its Center for Law & Religious Freedom, supports the Freedom of Religious Expression in the Home Act of 2008.

See my recent blog post for further details.

Monday, September 22, 2008

Bill Introduced to Protect Religious Expression in the Home

On September 17, the "Freedom of Religious Expression in the Home Act of 2008" (H.R. 6932) was introduced in the U.S. House of Representatives. The bill would amend the Fair Housing Act to enhance the legal protection of the display of religious symbols.

The bill would make it unlawful:

[t]o establish a rule or policy that prevents a person from displaying on the basis of that person's religious belief, a religious symbol, object, or sign on the door, doorpost, entrance, or otherwise on the exterior of that person's dwelling, or that is visible from the exterior of that dwelling, unless the rule or policy is reasonable and is necessary to prevent significant damage to property, physical harm to persons, a public nuisance, or similar undue hardship.
The bill is a direct response to the Seventh Circuit's decision in Bloch v. Frischholz, 533 F.3d 562 (7th Cir. Jul. 10, 2008). That dispute arose after a Chicago condo association reinterpreted one of its rules to forbid the posting of a mezuzah and other items on the exterior of owners' doors. An owner who had been displaying a mezuzah filed suit against the condo association, invoking the Fair Housing Act's ban on religious discrimination. The Seventh Circuit rejected the owner's claim, reasoning that the association's rule and enforcement were not discriminatory.

The bill essentially requires those subject to the Fair Housing Act to accommodate the display of religious symbols, subject to certain limitations.

Friday, September 19, 2008

HHS Conscience Regulations - Your Comment Needed by September 25

The U.S. Department of Health & Human Services has issued proposed regulations that would require most recipients of HHS funds to certify that they comply with federal laws protecting the conscience rights of pro-life medical professionals. For over three decades the Church Amendment has prohibited recipients of HHS funding from compelling employees to participate in activities that violate their conscience. Two other federal statutes, the Coats-Snowe Amendment to the Public Health Services Act, enacted in 1996, and the Weldon Amendment, an appropriations rider first enacted in 2004, prohibit federal and state governments and other recipients of certain federal funds from discriminating against medical professionals who do not perform or refer for abortions.

Despite these clear protections of the rights of conscience of pro-life medical professionals, those on the ground see a different story. Medical students and professionals report pressure to perform, be trained to perform, or to otherwise be involved in assisting with abortions. (Link is to website of the Christian Medical Association which CLS has represented in defending its members’ conscience rights.) Moreover, CLRF’s own experience defending the Weldon Amendment illustrated the utter lack of understanding that some of the largest grantees of federal funds (including the State of California and abortion advocacy groups) have of their own obligations not to discriminate against pro-life medical professionals. The existing federal laws prohibiting the rampant discrimination in the healthcare profession are simply being ignored. The Department’s proposed regulations are urgently needed in order to ensure that pro-life physicians, nurses, physician assistants, and others are able to remain in the practice and that the next generation of medical professionals can enter the profession with the confidence that they will not be forced to choose between their career and their conscience.

Please take the time to submit a brief comment encouraging Secretary Leavitt to issue the proposed regulations. The email address is You may also go to, click on the link “comment or submission” and enter the keywords “provider conscience” to submit a comment there. THE DEADLINE FOR SUBMITTING COMMENTS IS THURSDAY SEPTEMBER 25, 2008.

As abortion advocates have launched postcard campaigns opposing the regulations, any comment is helpful, even if just a brief 1-2 sentences urging their adoption. Of course, if you can relate an example of your own or a friend or client’s discriminatory treatment for their exercise of their rights of conscience that would be particularly helpful. And please encourage others to do the same. Some additional points you may want to make are below:

  • The Department should enforce existing conscience protections, passed with bipartisan support and on the books for as long as three decades.
  • Discrimination against pro-life medical professionals does not expand access to abortion. It drives a critical segment of the medical workforce from the profession, diminishing access to medical care and increasing costs.
  • Urge the Secretary to interpret the existing regulations to explicitly protect medical professionals from being forced to dispense or refer for chemical abortifacients like RU-486 and “Plan B.”

Wednesday, September 17, 2008

Important New Book on the Threat to Religious Freedom Posed by Same-Sex Marriage

Rowman and Littlefield has published Same-Sex Marriage and Religious Liberty: Emerging Conflicts, edited by Professor Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson. With an introduction by Picarello (General Counsel for the U.S. Conference of Catholic Bishops) and an an afterward by Laycock (Professor of Law at the University of Michigan Law School), the book contains six essays on the subject.

The book arises out of a conference organized by the Becket Fund in 2005. Chapter authors include Marc Stern of the American Jewish Congress, Professor Jonathan Turley of the George Washington University Law School, and Professor Chai Feldblum of Georgetown.

Much of the CLS Center's advocacy is predicated on our view that the "homosexual rights" movement poses the greatest current threat to religious freedom in the United States. This volume should help to illuminate the contours of the threat.

Tuesday, September 2, 2008

Analysis of North Coast Women's Care Medical Group v. San Diego County Superior Court: Part I

The Center recently filed its reply brief in the Doe v. California Lutheran High School case now pending in the California Court of Appeals. The Doe case presents the question of whether the Unruh Civil Rights Act prohibits private religious schools from using religious criteria when making admission and discipline decisions. Is it impermissible sexual orientation discrimination for a private religious school to expel students for engaging in homosexual conduct in violation of the school's code of conduct? Preparing the reply brief for Doe gave me ample opportunity to consider the California Supreme Court's recent decision in North Coast Women's Care Medical Group v. San Diego County Superior Court. I have a number of thoughts about the decision. This post is Part I of those thoughts.

At the outset, it is important to understand how overreaching the California Supreme Court's decision really is. When Benitez initially filed the case, the physicians raised a number of defenses. One of those defenses was that their refusal to perform the fertility procedure was constitutionally protected. The physicians asserted that their "'alleged misconduct, if any' was protected by the rights of free speech and freedom of religion set forth in federal and state Constitutions." The defense was specifically conditioned on the doctors' actions being a violation of the Unruh Civil Rights Act. If the Act was not violated, then the question of whether the rights of free speech and freedom of religion provided a defense simply was not presented.

The physicians also claimed that they refused to perform the fertility procedure not because Benitez was a lesbian but because she was unmarried. The doctors alleged that they would not perform fertility procedures for any unmarried woman regardless of sexual orientation. While the Act prohibits sexual orientation discrimination, it does not prohibit marital status discrimination. Thus, if the physicians could show that their refusal was based on marital status rather than sexual orientation, the Unruh Civil Rights Act was not even implicated and there was no reason to decide whether the rights of free speech or freedom of religion provided a defense.

The case reached the California Supreme Court on a "summary adjudication" of the physicians' constitutional defense. No determination had been made about whether the physicians' conduct constituted sexual orientation or marital status discrimination. The Court acknowledged that the reason for the physicians' refusal was an unsettled question and even said that the physicians could present evidence at trial demonstrating that their conduct was premised on marital status rather than sexual orientation. Yet the Court charged ahead to the constitutional issue and held that the physicians' rights of free speech and freedom of religion provided no defense to a charge of sexual orientation discrimination under the Unruh Civil Rights Act.

The only explanation for the decision is that the Court wanted to decide a case of "gay rights" versus "religion." Even if the issue was not presented in the case, the Court was determined to make that the issue.