December 2008 Archives

Well, Jay, I think your "victory" in the Illinois pharmacy case may be short-lived.

First, on the merits, it seems unlikely that the courts will create some new "right" to allow licensed professionals to "opt out" of any practice they find religiously objectionable.  Second, to the extent that your suit alleges violations of federal regulations, I would hope that President Obama would move quickly to rewrite any regulations which you read to advance the kind of broad circumvention of professional responsibility you apparently desire.

As a number of comment posters have already indicated, once you open the "claim of conscience" exception to licensed professional conduct, it is extremely difficult to see where it can end.  Even conscientious objection to military service has raised concerns about whether religious objectors are given "preferential" treatment over those motivated by other non-theistic or even political worldviews.

I do find one element of your case, however, particularly fascinating.  The claims being raised by some pharmacists make it clear that they are not simply "anti-abortion"; they are really "anti-contraception."  I'm not aware of what you believe on this matter personally, but many on the "Religious Right" do oppose virtually all artificial contraception because they believe it to be the moral, legal, and medical equivalent of, say, a third term abortion.  (This was always the view of Nellie Grey, the founder of the March for Life.) I find this preposterous of course.

Increasingly, there is a renewed war on contraception.  Many would like to take us back to a time before Griswold v. Connecticut, when a state could even deprive a married couple from obtaining contraceptives.  This approach is well chronicled in a particularly good book called How the Pro-Choice Movement Saved America by Cristina Page. I commend it as pre-New Year's reading.

It's been a busy time for Illinois Governor Blagojevich at the Illinois Supreme Court.  Last week, the state's highest court refused to hear a case involving a challenge to the Governor's fitness to remain in office as he battles corruption charges.  That was the big story.

 

But there was also a decision by the Illinois Supreme Court last week - one you probably didn't hear much about - a decision handing the Governor a defeat concerning a troubling administrative regulation he issued years ago concerning the conscience rights of pro-life health care professionals.

 

We serve as co-counsel for two pro-life pharmacy owners in Illinois who sued Gov. Blagojevich and other state officials over a 2005 administrative regulation that coerces pro-life pharmacists into dispensing Plan B, the so-called "morning-after pill."  The lawsuit asked that the regulation, which provides for license revocation and steep fines for religiously-based refusals to dispense, be struck down because they violate the First Amendment, the Illinois Health Care Right of Conscience Act, and the Illinois Religious Freedom Restoration Act. 

 

The trial court dismissed the lawsuit, and a divided Court of Appeals affirmed that dismissal on the grounds that the lawsuit was not "ripe" for adjudication because the pharmacists had not yet actually suffered any concrete harm from the regulation. The Illinois Supreme Court granted review of the case and heard arguments in March.

 

Just days ago, the Illinois Supreme Court issued its decision and reversed the lower courts and ruled that our clients are entitled to their day in court.  The high court held that the case was indeed "ripe" for consideration and sent the matter back to the trial court.

 

The Illinois high court concluded that the Governor's order has a direct and real impact on pro-life health care professionals.  

 

The court stated:   "In its current form [the regulation] has an even greater concrete and coercive impact on plaintiffs. The rule now expressly requires that plaintiffs must stock and dispense Plan B contraception. Under the current version, the simple failure by plaintiffs to make efforts to stock the contraceptive in question would subject plaintiffs to a range of penalties, including license revocation.  Under these circumstances, application of the rule to plaintiffs cannot be considered remote. Instead, the rule affects their business operations on a day-to-day basis and exposes plaintiffs to strong sanctions."

 

This favorable decision on standing really does represent a major victory for pro-life health care professionals in Illinois who have been in legal limbo for years.  By rejecting the Governor's refusal to recognize the religious objections of our clients, the Illinois Supreme Court cleared the way for this issue to be litigated, as it should.

 

In its opinion, the Illinois Supreme Court also determined that " . . . they [Gov. Blagojevich and other state defendants] have publicly stated that they will vigorously prosecute pharmacists with religious objections to drive them out of the profession and that a pharmacy must fill Plan B prescriptions without making moral judgments if it wants to stay in business."

 

In the trial court, we will assert that the Governor's order is in direct conflict with both state and federal laws protecting the conscience rights of health care workers.  The Governor is clearly determined to force out of their profession pharmacists whose moral codes differ from his. 

 

We look forward to presenting our case in court and remain hopeful that the legal system will uphold a principle that most Americans understand - no American should be forced to make a choice between their conscience and their livelihood.

Well, Jay, Americans United won a very significant victory late last week in a case in South Carolina involving license plates.  U.S. District Court Judge Cameron McGowan Currie granted a preliminary injunction against the state continuing to market or actually send out plates with the phrase "I Believe" on them.  Lest anyone doubt what the metal signs are referring to, the plates contain both a yellow cross and a stained glass church window. Hint: they are Christian plates.  They were actually designed by a legislator, then approved by a unanimous vote of the legislature this summer, and were the focus of a marketing campaign this fall.

In temporarily halting the plates, the judge specifically noted that she didn't see how the plates met even one of the requirements of established Supreme Court jurisprudence in religion cases.  The plates, on the basis of the evidence presented so far, seem to promote religion, seem to have no secular purpose, and seem to entangle government with religion.

A few critics are now griping that if the plates are not allowed, the "free speech" of drivers will be impaired.  Spare me, please.  Long before the South Carolina legislature weighed in on this, many Christians in the state had bumper stickers on their cars affirming their faith or "fish" symbols attached to the car bodies.  No one can or should stop such displays.  No, this plate was not about free speech; it was one more shameless effort by legislators to adopt a religious symbol for political purposes. This is why religious leaders in the state were among the plaintiffs.

It is not yet known whether the state will bother to try to defend its decision on the merits.  Let's hope they don't.  It will save everybody a lot of time and South Carolinians a lot of money.

Barry, the First Amendment does not require the government to strip the public arena of references to holidays that the vast majority of Americans observe.

 

In the Rhode Island case you referred to, the Supreme Court noted that "[i]t would be ironic . . . if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for 2 centuries, would so 'taint' the city's exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol--the crèche--at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places . . . would be a stilted overreaction contrary to our history and to our holdings." Lynch v. Donnelly, 465 U.S. 668, 686 (1984).

 

In other words, it is not improper for the government to acknowledge and recognize a variety of aspects of the holidays, including their religious origins, just as it is permissible for the government to acknowledge the role the Ten Commandments have played in the development of American law and history.

 

When the government creates a forum for private expression, as is the case in Olympia, Washington, First Amendment free speech rights come into play. That an atheist group may have a right to post a sign in some instances, however, does not insulate the message conveyed from public discussion and criticism. Proclaiming that "there are no gods, no devils, no angels, no heaven or hell" and that "religion is but myth and superstition that hardens hearts and enslaves minds" is extremely offensive to millions of Americans. Those offended by this attack on their faith have every right to express their strong disagreement with this message.

 

Barry, I think it is much better to allow discussion and debate, as in Olympia, than to have a sanitized holiday season where there are no displays for fear of offending someone. As Justice Holmes famously stated, people should realize that "the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

In my view, there is an inherent flaw in all of these religious holiday display cases ever since the Supreme Court allowed the city of Pawtucket, Rhode Island to put up as part of its "official" display a Nativity scene along with secular symbols including Santa, reindeer, and the ever popular Yuletide "blue bears".  According to a majority of the court this mix did not give passerbys the impression that the city was officially embracing religion.  Instead, the court should have told Pawtucket to lay off the religious references and been done with it.  Of course, since the "establishment clause" doesn't prohibit cities from promoting secular ideas it could have lured the shopping public downtown with Santa and his elves and reindeer.  (Purist alert: I am really not losing sleep over the fact that Santa may be related to Saint Nicholas.)  Just as obviously, cities should not be allowed to promote any sectarian ideas or icons.  (The manger scene is one; the Decalogue is another.)

In Olympia, Washington, the Governor did what she is required to do under an agreement with your friends, Jay, over at the Alliance Defense Fund (ADF).  Last year ADF lawyers demanded that a client be allowed to put up a Nativity scene in the capitol building because the state was already displaying a menorah.  Rather than just removing the menorah, the state agreed to allow pretty much anybody to put up his or her favorite seasonal message.  Thus, the ADF has achieved the result of preserving atheist rights this year by clearing the path to the "religion is a myth" solstice signage that is so upsetting to some in Washington state.  (What happened to their old argument: if you don't like a cross, or a creche, just "look away"?)

In regard to Pleasant Valley, I would refer back to my earlier posts on this matter.  If the Ten Commandments monument is in fact "government speech" then it violates the core constitutional principle that government cannot endorse a particular religious viewpoint.

I simply don't want to have to walk around everybody's religious and political paraphernalia when I want to visit any state capitol building.   States don't have to open all their facilities to everybody's "speech" and they shouldn't.

Barry, we should not expand federal or state reporting requirements for churches that support or oppose legislation/ initiatives, just as we should not continue the gag rule on political speech from the pulpit.   On a different note, you've probably...

We obviously disagree fundamentally about the role of the courts in dealing with issues where fundamental rights (like marriage and equal protection) are at stake.  The "will" of the voters does not trump such rights and the courts exist to...

Barry, contested issues of public policy, such as the definition of marriage, should be settled at the ballot box, not through violence or the actions of activist judges. It is unfortunate that you would try to link the defense of...

 I have been in the San Francisco area for several days.  My trip coincided with the thirtieth anniversary of the assassination of Harvey Milk.  The atmosphere would have been somber simply about that, but it was poisoned even more...