Jay Sekulow: December 2008 Archives

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.

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).

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 heard about the controversy in Olympia, Washington surrounding a sign from the Freedom From Religion Foundation displayed near the Capitol Rotunda. Among other things, the sign says, "Religion is but myth and superstition that hardens hearts and enslaves minds." It was placed in response to the inclusion of a nativity scene last year. Many people in Washington and around the country are upset by this message, and other groups and individuals have had signs displayed there as well this month in response.

Barry, I think you would agree that this situation highlights the important difference between private speech in a forum and government speech that was raised in our Pleasant Grove v. Summum case before the Supreme Court. As our letter on holiday displays explains, where the government makes a location available for the expression of private speech during the holiday season, as it appears is the case in Olympia, the government cannot exclude potential speakers due to disagreement with their viewpoint. Religious or anti-religious private speech in a forum cannot be attributed to the government, so there is no Establishment Clause issue in allowing a nativity scene, menorah, or atheist sign on equal terms. The government may post a general disclaimer stating that it does not endorse the message of the private displays, but it cannot single out religious displays for a special disclaimer.

On the other hand, when the government itself is speaking, as we argued is the case in Pleasant Grove, private individuals cannot force the government to change the desired message. Governments often convey their own messages during the holiday season through government-owned displays that include a variety of secular and religious items. When a person challenges such displays under the Establishment Clause (which was not the case in Pleasant Grove), and has proper legal standing to do so, the court considers whether the purpose and effect of the government's display is primarily secular or religious in nature. Thus, courts consider the context of government-owned holiday displays that include a nativity scene or menorah, e.g., whether there are items such as reindeer, Santa Claus, candy canes, etc. nearby, in determining whether the display is permissible.

Barry, do you agree with this analysis?

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 traditional marriage with isolated acts of violence, just as it is unfortunate that some opponents of Proposition 8 resorted to interrupting church services, threatening houses of worship, and mob violence after the vote occurred.

The fact is that the wide-ranging majority of Californians and other Americans who support traditional marriage do so for a variety of sound reasons. It is not "homophobia" to believe that marriage should remain, as it has since time immemorial, a union between one man and one woman, nor is it distasteful to interpret the Bible as supportive of this view. Many different segments of California's diverse population supported Proposition 8, not just white evangelicals. Exit polls showed that about 70 percent of blacks and a majority of Latinos voted in favor of traditional marriage.

Regarding the legal challenges filed by opponents of Proposition 8, this is yet another example of a court being asked to improperly usurp the will of the people. The voters of California have spoken clearly on this issue on two different occasions (the California Supreme Court invalidated a voter-approved traditional definition of marriage earlier this year). The people of California, like the people of countless other states that have been presented with the issue, unequivocally reaffirmed the traditional definition of marriage, and that decision should not be overturned by an activist judiciary.

As we pointed out in a letter filed with the California Supreme Court, all perceived doubts regarding Proposition 8 must be resolved in favor of upholding it. "As Thomas Jefferson famously stated, 'I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.'" We also explained that "Proposition 8 does not create far reaching, sweeping, or profound changes in the state's constitutional scheme. Rather, it merely clarifies the definition of a single right recognized in the California Constitution. As such, Proposition 8 does not rise to the level of a constitutional revision."

In short, the case is about what "marriage" is, not about whether an individual is denied the ability to enter a "marriage." All adults in California equally enjoy the fundamental right to enter a marriage, i.e., a union between one man and one woman, and no person holds a right to enter any other form of relationship and call it "marriage."