Big Week for Healthcare Rights of Conscience

Last week was a significant one on the healthcare rights of conscience front. A federal court in Washington state issued a preliminary injunction prohibiting the enforcement of Washington regulations to force pharmacies and pharmacists to stock and dispense the morning after pill (Plan B). In Stormans v. Selecky, the Court addressed a Washington pharmacy rule that the pharmacy board adopted only after pressure by Planned Parenthood and the governor in response to its previous decision that - comparatively speaking - protected conscience rights. A pharmacy and two individual pharmacists who object to stocking and filling prescriptions for the drug challenged the rule on Free Exercise and Title VII grounds.

The Court held that the Washington rule was not a neutral and generally applicable rule that happened to burden religious persons, but was in fact "targeted at the religious practices of some citizens," and that the "burden [the regulations imposed] on the practices of plaintiffs is intentional not incidental, and substantial not minimal." Indeed, the Court cited "the prominent role played by Planned Parenthood and the Northwest Women's Law Center" as further proff "that Plan B and religious objection were the focus of the rulemaking process." "The regulations appear designed," the Court observed, "to impose a Hobson's choice for the majority of pharmacists who object to Plan B: dispense a drug that ends a life as defined by their religious teachings, or leave their present position in the State of Washington."

Having determined that the rule was targeted at religious objectors, the Court applied strict scrutiny and had no problem concluding that the state had no compelling interest to justify this imposition on objecting pharmacies and pharmacists.

Finally, a Court that understands exactly what is at stake in this fight. Not "access" to the morning after pill (the Court notes that even the state's pharmacy association recognizes that access is not a problematic in Washington state), but the pro-abortion lobby's desire to drive out any vestiges of pro-life sentiment from the medical profession. In the view of those on the radical side of "Choice," dissenting voices cannot be tolerated. Even the few pharmacists who for reasons of conscience and personal religious beliefs do not wish to stock or personally fill prescriptions for a drug that operates in many cases to stop an already fertilized egg from attaching to the womb and developing into a child cannot be permitted to remain in the profession.

The Court had no problem disposing of the argument that the regulations were justified by a concern that pharmacist objections amounted to gender discrimination. Noting that federal and state law both provide a clear right to health care providers not to participate in an abortion, the court held "refusal to participate in an act that one believes terminates a life has nothing to do with gender or gender discrimination." Again, pointing to the apparent lack of a problem of access to Plan B in Washington state, the Court held that "the interests promoted by the regulations have more to do with convenience and heartfelt feelings than with actual access to certain medications."

Exactly. One could hardly hope for better understanding by a court of the true dynamics of this debate than is evidenced in this opinion. Kudos to lead counsel Kristen Waggoner (who were proud to claim as a CLS member), the team at Ellis, Li & McKinstry, and the Alliance Defense Fund for this win.

The importance of the decision is demonstrated by the other big development last week, an Ethics Opinion by the American College of Obstetricians and Gynecologists that belittles the role of conscience and repeats many of the misguided arguments for setting aside the role of the conscience of the individual medical professional that the Washington defendants relied upon in Stormans. Relying only a caricaturized view of conscience as simple subjective feelings of distaste for abortion and buying the Planned Parenthood media spin that persons with conscientious objections typically seek to lecture others about their sinfulness, ACOG would effectively rule out conscience rights in the abortion context. More on this ACOG opinion and its serious flaws in the coming days.

Supreme Court Won't Review Two Bad Religious Freedom Decisions

The U.S. Supreme Court announced today that it would not review two bad lower court decisions in religious freedom cases.

In Faith Center Church v. Glover, the Ninth Circuit held it was permissible for government to exclude a religious speaker from otherwise available meeting space on the ground that the speaker would engage in "worship."

In Catholic Charities v. Dinallo, the Second Circuit held that it was permissible for New York State for force Catholic Charities to cover contraceptives in its employee health benefit plan.

CLS's Center for Law & Religious Freedom participated as friend of the Court in each case, urging the high Court to review the lower court decisions.

Brief Filed in Colorado Student Aid Case

The CLS Center filed its opening appellant's brief September 12 in the Tenth Circuit in Colorado Christian University v. Baker, a case involving Colorado's discrimination against students attending seriously religious colleges and universities.

Like most states, Colorado has created various programs designed to help students and their families cover the cost of a college education. Students are permitted to direct their aid to virtually any institution of higher education in the state. However, the state statutes creating the programs exclude students attending "pervasively sectarian" schools. Through a subjective and intrusive process, the Colorado Commission on Higher Education decided that Colorado Christian University (CCU) was "pervasively sectarian," thereby denying aid to otherwise eligible students at the school.

In December 2004, CCU filed a civil rights lawsuit in federal court, asserting that the state's discrimination against it and its students violated the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. In May 2007, the district court granted the state defendants' summary judgment motion. CCU appealed, and filed its opening brief on September 12.

Among the groups who joined "friend of the court" briefs supporting CCU were the United States, the National Association of Evangelicals, the American Association of Presidents of Independent Colleges & Universities, the Council for Christian Colleges & Universities, the Becket Fund, and the American Center for Law & Justice.

Representing CCU along with the CLS Center are Eric V. Hall and L. Martin Nussbaum of Rothgerber Johnson & Lyons, LLP; Thom Scheffel of Thomas N. Scheffel & Associates, PC; and attorneys with the Alliance Defense Fund. ADF has also provided financial support of the legal work done in this case.

Academic Media Suggests CLS is Prevailing in Campaign Against Discriminatory University Student Organization Rules

A September 17th article by by Scott Jaschlik of Inside Higher Ed (http://www.insidehighered.com/) has as its context a Second Circuit decision affirming that a state-run college may constitutionally put the kibosh on Greeks on campus. But it is the subtext of the article that we found intruiging - that Christian Legal Society and similar religious liberty advocacy groups are making headway with the academy in their campaign to establish that prohibiting a religious student group from "discriminating" in membership on the basis of religion is in fact religious discrimination.

For some reason, Jaschlik closely links the issues in Chi Iota Colony v. City University of New York to the ongoing debate over whether universities may condition registration for student organizations -and the benefits that accompany same - on agreeing not to restrict membership on the basis of religion, creed and/or sexual orientation. See, e.g., Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006); Christian Legal Society v. Kane, 2006 WL 997217 (N.D. Cal. May 19, 2006). One wonders why, as the cases have little resemblance; Chi Iota involved a fraternity's claim of intimate association as against a gender discrimination policy, not expressive association involving the highly protected status of religious belief and association. But "Public colleges' anti-bias policies have been taking a beating in the courts in recent years," Jaschlik writes. "Many lawyers who advise colleges... have urged colleges to recognize that the force of their anti-bias policies has been severely weakened." The "emerging conventional wisdom" among university administrators, he reports, is that "Students' First Amendment rights of freedom of religion and expression will end up trumping strong anti-bias principles."

We hope so, at least where it comes to sincerely religious groups who know that defining and perpetuating their religious message depends on selecting leaders and members who agree with its views. University officials who are looking to Chi Iota to "challenge" the "conventional wisdom," as Jaschlik reports, may look for encouragement for their unconstitutional views where they like, but when most public colleges and universities that have tried to exclude CLS and similar groups simultaneously sponsored Greek systems - and the Chi Iota decision does not call into question their constitutional authority to embrace Greek life if they choose to - the Second Circuit's decision seems to offer shaky support to those who would shore up an increasingly untenable double standard for Greek and religious student groups.

The Constitution and America as a "Christian Nation"

A majority of Americans believe that "the U.S. Constitution establishes a Christian nation," according to a survey done by the First Amendment Center. Thirty-eight percent of respondents "strongly agreed" with that statement, and 17% "mildly agreed."

What should one make of this? Why do a majority of Americans seem to believe something that is so clearly wrong?

I suppose it's possible that at least some respondents didn't understand the question. Part of the problem may stem from the fact that the question posits something undefined. More specifically: what would it actually mean for the U.S. Constitution to "establish" a "Christian nation"? What exactly is a "Christian nation"? How would a constitution "establish" such a nation?

The question seems to presuppose that the Constitution established our nation. It did not. To the extent any document can be said to have established our nation, that document is the Declaration of Independence. The Constitution does not even purport to "establish a nation." The Constitution, more than anything else, is about the nature, structure, and limits of the national government. To be sure, a constitution typically both reflects and shapes the character of a nation, but our Constitution didn't establish our nation -- Christian or otherwise.

What does it mean to be a "Christian nation"? The answer to that question is far from self-evident. Does it mean that a majority of the nation's people consider themselves to be Christian? If that's all that it takes, how would a document like the Constitution ensure that the nation remained Christian? By giving power to the government to expel enough non-Christians so that at least 51% of the population professed faith in Christ? By giving government the responsibility and power to evangelize? Surely this is not what the survey respondents meant when they stated their agreement with the proposition that the Constitution establishes a Christian nation. I sure hope that's not what they meant.

Perhaps being a "Christian nation" means that Christianity and Christian people are somehow privileged, particularly in their relationship with the government? If that's what the phrase means, to say that the Constitution "establishes a Christian nation" is to say that the Constitution explicitly confers such privileges upon Christians and Christianity. But it plainly does not. Indeed, in at least one place, Article VI, Section 3 of the Constitution explicitly forbids the national government from requiring someone to embrace a particular religion as a requirement for serving in the national government. Less explicitly, but not less powerfully, the First Amendment denies government the power to do all kinds of things it might do to "establish" and maintain a "Christian nation." And that is surely a good thing.

Our Constitution limits the power of government when it comes to religion. It presupposes that the church and the state are distinct institutions -- something that was not always the case in Western history. It also prevents the federal government from establishing a national church. It also limits government power to regulate religious exercise and speech. The common theme running through all these realities is religious freedom -- government minimizing its influence on religious choices. That the Constitution guarantees this is a cause for celebration. That the Constitution does not "establish a Christian nation" -- whatever that means -- is not a defect in the document.

Deconstructing Hein: Federal Government, Faith-Based Provider and ACLU Offer Different Readings in Laskowski v. Spellings

The Supreme Court strives to provide clear guidance to the lower federal and state courts through its opinions. When a case results in a fractured plurality, however, the Court can't be faulted for lack of trying. A recent case in point is Hein v. Freedom From Religion Foundation, 2007 WL 1803960 (June 25, 2007), a case widely viewed as offering the first definitive pronouncement on Establishment Clause taxpayer standing in twenty years. (See CLRF's blog post regarding the Hein decision here.) But the debate about the meaning of the case among the parties to a similar Seventh Circuit case that was GVR'd for Hein, Laskowski v. Spellings, 443 F.3d 930 (7th Cir. 2006), brings to mind the proverbial trio of blind men describing an elephant.

Laskowski is a taxpayer action brought against the Secretary of Education challenging a congressional earmark of $500,000 to the University of Notre Dame. The university intervened to defend the grant. The Seventh Circuit held the action moot with respect to the claim against the Secretary because the grant had expired, but ruled that the case could go forward as an equitable restitution action for recoupment against the university. This holding and the Seventh Circuit's holding in Hein that taxpayers could bring suit challenging purely discretionary Executive expenditures were a double-barrelled expansion of taxpayer standing that might have significantly broadened the availability of taxpayer claims if they had gone unaddressed by the Supreme Court. After the GVR, the Court of Appeals ordered the parties's counsel to brief the applicability of Hein to the case. Experienced counsel for the Justice Department, the ACLU of Indiana and Notre Dame (Michael Carvin of Jones Day) offered somewhat divergent views of the meaning of Hein to guide the court in their submissions in late July.

To the Justice Department (still participating in order to defend the Secretary from charges of acting unconstitutionally, a necessary predicate to establishing that the equitable remedy of recoupment was caled for), Hein requires dismissal because the question remaining before the court -- whether Notre Dame reasonably relied on the Secretary's authority - "[has] nothing to do with any exercise by Congress of its taxing and spending power." Moreover, Justice argues, Hein counsels that there can be no claim for recoupment that can be stated by a taxpayer, since "Establishment Clause taxpayer standing under Flast is not based on any notion that a taxpayer has an individual Article III stake in recovering money spent in violation of the Establishment Clause."

Notre Dame's argument is simpler and more direct. Carvin argues that Hein offers sufficient guidance for the Court of Appeals to simply affirm the District Court's original dismissal of the case. The recoupment remedy revived by the Seventh Circuit from hoaried dicta in Establishment Clause jurisprudence is a "dramatic expansion of taxpayer standing," the university argues, and hence goes well beyond the standing afforded by Flast v. Cohen. What's more, since the Secretary retained the discretion not to award the earmark to Notre Dame, "the plaintiffs do not challenge congressional action at all, but Notre Dame's alleged use of federal funds in violation of Executive regulations."

The plaintiffs are predictably dismissive of Hein's application. "The only relevance the decision in Hein has to this case is that Hein reaffirmed the validity of federal taxpayer standing, first noted in Flast v. Cohen, to challenge expenditures expressly authorized by a specific congressional enactment pursuant to Congress' power to tax and spend under Art. I, Sec. 8...." Because the taxpayers challenge a directed "teacher quality initiative" grant made pursuant to a specific appropriation under the Higher Education Act, Flast and Hein are satisfied, plaintiffs contend.

Notre Dame's argument on this point may end up carrying more weight than it might appear at first blush. The Supreme Court has strongly signaled that it is interested in Article III cases of late, having decided Hein in this past term and DaimlerChrysler Corp v. Cuno, 126 S.Ct. 1854 (2006), last year. If the Seventh Circuit disagrees with Notre Dame and holds that recoupment of unconstitutionally spent funds passes muster under Hein despite that it is not the congressional appropriation per se that is challenged, but how the money was actually spent by the grantee, it may be inviting further review.

Oral argument is set for November 5, 2007.

Constitutional First? Court Approves Funding for Reconstruction of Church Buildings

American Atheists v. City of Detroit, --- F.Supp.2d ----, 2007 WL 2300693, Civ. No. 2:06-cv-11696 (E.Dist. Mich.) has spawned a hue and cry among strict separationists, who claim that it represents the first time in modern history that a court has approved the public funding of improvements to houses of worship.

American Atheists brought a federal Establishment Clause challenge to grants made by the City of Detroit Downtown Development Authority to three local churches for improvements to exterior facades, parking areas and landscaping as part of the city’s efforts to improve the downtown area in advance of the All-Star Game in 2005 and the Super Bowl in 2006. The stated purpose of the grants, which reimbursed qualifying landowners and long-term lessees for 50% of approved improvements, was to retain and attract downtown business and related civic purposes, and plaintiffs in fact did not deny that the "secular purpose" prong of Lemon was met. Neutral criteria for projects included structural and architectural qualifications, and a private project management company administered the grants. The court issued a decision in favor of the city and the churches on August 8th, upholding the constitutionality of the grants in substantial part except for improvements to the churches’ monolithic signage and stained glass iconography. As to these, the court concluded that the expression of religious messages on such structures would constitute a “diversion” of funding to religious speech – i.e., sectarian purposes. Improvements to church exterior facades, parking lots and landscaping were approved. The court held that Mitchell v. Helms was a “jurisprudential shift” that had modified the stricter requirements of the Tilton trilogy limiting capital funding for sectarian institutions. Mitchell dictates that as long as the criteria for eligibility are neutral, the “pervasively sectarian” nature of the institutional recipient is notwithstanding. Divertibility is not an issue, the court noted, where the improvements are capital in nature and do not directly serve religious services or messages.

Presuming an appeal is filed (final judgment was entered August 24th), this is certainly one to watch. Although Marty Lederman claims that the case “would likely be the vehicle for a wholesale 5-4 overturning of almost 40 years of Establishment Clause doctrine” if it reached the Supreme Court, I think he’s being a bit hyperbolic. There is no reason the Supreme Court, or the Sixth Circuit for that matter, could not issue a decision that simply notes that the Supreme Court has never ruled that the Establishment Clause prohibits churches from receiving public funds that are available to all similarly situated beneficiaries on the basis of criteria that are neutral to religion, even if the funds are for the renovation of a historic church structure, provided the funds further an important governmental purpose such as historical preservation or civic improvement, and where the funds are not used to indoctrinate such as by funding religious art or iconography. The Justice Department's Office of Legal Counsel recently offered the opinion that "[t]he Establishment Clause does not bar the award of historic preservation grants to the Old North Church or to other active houses of worship that qualify for such assistance, and the section of the National Historic Preservation Act authorizing the provision of historic preservation assistance to religious properties listed on the National Register of Historic Places is constitutional." Provided a legitimate public purpose unrelated to furthering religious speech and activity is served and no denominational preference is exhibited, government does not tear down the Wall of Separation of Church and State by shoring up the walls of historic churches.

Planned Parenthood Fights For Right to Endanger Women

There's an interesting blog post by Leon Wolf over at RedState.com about safety code violations at Planned Parenthood clinics in Missouri and New Jersey and a recent lawsuit filed by the Missouri chapter of Planned Parenthood seeking to be freed of its obligation to comply with the health and safety requirements expected of other walk-in clinics. I'll not repost it all here, but it's worth a read. Remember this when someone tells you that without Roe v. Wade women would be forced to have abortions in unsafe and unsanitary conditions.

FoxNews Coverage of BYX v. Machen

FoxNews has done a story on the Beta Upsilon Chi lawsuit against the University of Florida. There are several versions of the story running on FoxNews today, but at least one of them is available here on the FoxNews website.

A Supreme Court Chronicler Tackles the Kulturkampf

Peter Irons, emeritus professor of political science at the University of California - San Diego and co-editor of the groundbreaking May It Please the Court series of audiotapes and transcripts of key Supreme Court decisions, has published God On Trial (Viking 2007), a travelogue of sorts through half a dozen American communities that have been impacted by the religious cultural wars of the last twenty years.

Irons reminds us that just as “all politics is local,” so also is all jurisprudence, and particularly constitutional law. Irons’ thesis is that the big decisions about the constitutionality of religious symbols such as public memorial crosses and Ten Commandments displays that emanate from the Supreme Court have their genesis in local political struggles between factions that view the symbols as vibrant and meaningful and those who regard them as exclusionary and imperious. The seeds of the book, Irons says, are found in Oliver Wendell Holmes’ aphorism, “We live by symbols,” and he seeks to tell the stories of the people who have played key roles on both sides of these so-called “symbol cases.”

The book’s readability and unpretentiousness have Irons sounding like an Ernie Pyle of the Kulturkampf. Irons combines solid, fact-combing legal journalism with fascinating interviews of the personalities who instigated the cases or found themselves swept up in them, from trial lawyers and politicians to preachers and regular folks. These are presented in unbroken monologues spoken in the subjects' own voices, like an oral folk history, and are deftly edited and detailed. The effect is refreshingly different from the stale Q&A format - rather like being taken on a personal walking tour by, for example, Barry Lynn, through his early life as a Goldwater Republican in blue-collar Bethelehem Steel country, or by Jay Sekulow as he recounts growing up Jewish on Long Island.

As a strict separationist himself, and a veteran of several of the court battles he discusses, Irons cannot help but cast the conflict (perhaps unconsciously) as one between those who desire to impose their religious beliefs on others and those who want tolerance. He maintains the overall balance of the book fairly well, though, and he is clearly trying to be honest and accurate in his portrayals of both sides. For its small flaws, God On Trial is a delightful summer read.