HHS Issues Proposed Rules To Protect Conscience Rights of Health Care Workers

Last Thursday, the U.S. Department of Health and Human Services formally released for comment proposed regulations (full text) designed to enforce federal provisions that protect conscience rights of doctors and other health care providers participating in programs receiving HHS funding. The regulations apply to those who have moral or religious objections to providing certain medical procedures, including sterilization and abortion. An HHS press release says the new regulations would clarify that the protections apply to institutional health care providers as well as to individual employees working for federally funded recipients, and would require recipients of certain HHS funds to certify their compliance with laws protecting health care workers' rights of conscience.

Reporters at a White House press briefing on Friday (full text) raised the question of whether the proposed regulations were broad enough to cover pharmacists. The proposed rules appear to omit a controversial definition of "abortion" that appeared in an earlier draft that was circulated to members of Congress. That earlier draft included a specific definition that encompassed prescribing, dispensing or administering drugs preventing implantation of a fertilized egg as abortion. The new proposal has no definition of abortion in it. (See prior posting.)

Recent Articles and Recent Book of Interest

From SSRN:

• Raghav Sharma, Rajarshi Sen & Adarsh Ramanujan, Affirmative Action for Muslims in the Indian Jurisprudential, Social, Economical and Political Context: A Constitutional Conundrum?, (June 17, 2008).


• Brigham Daniels, Revitalizing Zion: Nineteenth-Century Mormonism and Today's Urban Sprawl, (Journal of Land, Resources & Environmental Law, Forthcoming.)

From Bepress:

• Emily Prescott Esq., Allyson Hauck Esq. & Dana Barton Esq., When Firmly Held Religious Beliefs Conflict With the Right to Wedded Bliss, California Public Employee Relations (CPER) Papers, Working Paper 25 (August 2008).

From SmartCILP:

• Thomas C. Kohler, The Kenneth M. Piper Lecture. Religion In the Workplace: Faith, Action, and the Religious Foundations of American Employment Law, 83 Chicago-Kent Law Review 975-991 (2008).


• Martha Minow, The Government Can't, May, or Must Fund Religious Schools: Three Riddles of Constitutional Change for Laurence Tribe, 42 Tulsa Law Review 911-937 (2007).

New Book:

• David Ownby, Falun Gong and the Future of China, (Oxford Univ. Press, March 2008), reviewed by the New York Times.

Campus Poster With Suggestive Picture of Jesus Tests Harassment Rules

At Lorain County Community College in Elyria, Ohio, members of the campus Activists for Atheism club find that they are testing the scope of the school's anti-harassment rule that includes a prohibition on illustrations that mock or ridicule race or religion. Friday's Elyira Chronicle-Telegram reports that as part of Club Awareness Week, along with many other displays advertising student-run extracurricular organizations, the atheist group put up a poster showing a topless man kissing Jesus on the neck, and displaying the caption "Jesus Christ had a homosexual relationship?" Campus security guards refused to remove the poster as requested by complaining students, but after a few hours a student took it down. Christopher Burns, secretary- treasurer of the atheist group said it was not intended to mock Christianity, but to stir debate about a passage from the Secret Gospel of Mark. [Thanks to Scott Mange for the lead.]

Church of England Issues Guides To Prevent Bogus Marriages By Immigrants

Under British law, a foreigner who marries a resident of the European Union is generally allowed to stay in Britain. Today's London Telegraph reports that bishops of the Church of England have issued confidential guidelines to try to cut down on the number of bogus marriages performed by Anglican priests at the behest of immigrants who are merely trying to obtain British residency. Traditionally, in order to prevent marriages of convenience, British law has required all foreign nationals from outside the European Union to obtain a Home Office certificate of approval to marry in a register office. However no government certificate is required for marriages performed by the Church of England. Church leaders believe that, despite warnings, many priests are being duped into performing marriages of convenience.

Meanwhile the issue was complicated last month when the House of Lords issued a decision in R (on the application of Baiai and others) v. Secretary of State for the Home Department, (House of Lords, July 30, 2008) holding that the licensing rules that led to automatic denial of Home Office approval for immigrants whose visas were about to expire or who were not legally in the country are invalid. The Law Lords held that these overbroad rules violate Section 12 of the European Convention on Human rights that protects the right to marry. That decision was covered by the July 30 London Daily Mail. (See prior related posting.)

Times Features Science Teacher's Methods on Evolution

Today's New York Times carries a fascinating front page article on how Florida science teacher David Campbell teaches evolution to a skeptical science class. He captures their attention by using Walt Disney's changes over time to the Mickey Mouse character. Showing the class the different versions of the cartoon character over the years, he tells them: "Mickey evolved. And Mickey gets cuter because Walt Disney makes more money that way. That is 'selection'." The article traces at length Campbell's intriguing teaching skills and his attempts to get his students to understand the difference between science and faith.

Founder of Florida Citizens for Science, Campbell strongly backed changes in Florida's science standards adopted earlier this year that specifically mention evolution. (See prior posting.) Defending against charges that the new standards do not include alternative explanations for life's diversity, Campbell replied: "We also failed to include astrology, alchemy and the concept of the moon being made of green cheese. Because those aren't science, either."

Court Dismisses Minister's Suit Against Church Placement Agency

In Thibodeau v. American Baptist Churches of Connecticut, 2008 Conn. Super. LEXIS 1858 (CT Super. Ct., July 29, 2008), a Connecticut trial court, applying the "ministerial exception" doctrine, dismissed for lack of jurisdiction a suit by an ordained Baptist minister against American Baptist Churches of Connecticut (ABCC). ABCC recognizes ordinations and operates a clergy placement service. The lawsuit challenges ABCC's refusal to circulate plaintiff's resume to congregations after it became concerned about his fitness for the ministry. The court held that the First Amendment's free exercise guaranty precludes it from interfering in ecclesiastical matters. This deprives it of jurisdiction to decide whether ABCC should recognize plaintiff's ordination or to review whether plaintiff has been treated fairly by ABCC with respect to recognition of his ordination.

South Carolina High School Football Coaches Often Mix Religion With Coaching

Yesterday's Florence (SC) Morning News carried an article on the fine church-state line being walked by some South Carolina high school football coaches. Many pray with their teams before each game. This summer, many coaches and players attended a three day Fellowship of Christian Athletes football camp at University of South Carolina-Upstate in Spartanburg. Hemingway (SC) High School ends every practice with the Lord's Prayer, says the Lord's Prayer before and after every game, and holds a devotion every week. However assistant coach Bucky Davis said: "Everyone’s welcome to their own opinions. We don’t force anyone to do anything. The kids (convert to Christ) out of their own free will." Lamar (SC) High School coach J.R. Boyd said: "We went to church as a team one time and I found out that many of our kids had never seen the inside of a church. We went to FCA camp as well and many of my kids were saved in the process."

Kentucky County Tries To Delay Paying Attorneys Fees In 10 Commandments Case

Earlier this month, a Kentucky federal district judge made permanent the temporary injunctions against 10 Commandments displays in two Kentucky counties that had been upheld by the U.S. Supreme Court in 2005. Now however McCreary County, Kentucky is attempting to delay the ability of the ACLU to recover attorneys fees in the case by preventing the judgment from becoming final. Yesterday's McCreary County Voice says the county will ask the district court to pass on a summary judgment motion that is technically still outstanding, and will attempt to appeal the judge's decision issuing the permanent injunctions before the ACLU can petition for attorneys' fees. Pulaski County officials will meet next week to consider whether to join in the appeal.

Palm Beach Neighborhood Dislikes Jewish Synagogue Meeting In Private Home

Yesterday's Palm Beach Post reports on a land use controversy in the Indian Wells neighborhood in Palm Beach County, Florida. An Orthodox Jewish congregation, Anshei Chesed, is holding servies each Friday evening and Saturday morning in a private home that apparently was purchased primarily for that use. Some 20 to 70 individuals walk to and from services each week end. Orthodox Jews do not drive on the Sabbath. Neighborhood spokesman Frank Cuomo, upset at the rights given by RLUIPA to religious groups, says that neighbors not want religious services to be held here, and that the Jewish group is using loopholes to be able to conduct them. The Post reports: "In the Florida suburbs, where sprawl is an indicator of opulence and debilitating heat is a year-round concern, finding a place within walking distance is tricky."

Biden's Views On Religion and Church-State Issues Are Examined

Now that Barack Obama has picked Sen. Joseph Biden as his vice-presidential running mate, bloggers are already examining Biden's views on church-state issues and his religious values. America: The National Catholic Weekly today posted a a piece titled Joe Biden's Catholicism. It reports that "Biden is more comfortable than most politicians in talking about how his Catholicism has affected his life and his views."

Melissa Rogers has posted a number of excerpts from Biden statements on ther role of religion in public life. Other have pointed to an excerpt on YouTube of a 2007 Biden interview at the Commonwealth Club of California in which Biden discusses his views on separation of church and state. In it, Biden focuses on a quote from Jon Meacham's American Gospel: God, the Founding Fathers, And the Making of a Nation: "Religion shapes the life of the nation without strangling it."

Religiously-Grounded Substance Abuse Programs Eschew Government Funding

One of the most controversial aspects of federal and state funding of faith-based social services relates to organizations that use prayer and religious teachings as an integral part of substance abuse treatment. Today's Louisville Courier-Journal reports that one such group-- Teen Challenge of Kentucky-- has voluntarily relinquished most of a $50,000 federal grant after Americans United for Separation of Church and State complained to the U.S. Department of Health and Human Services about the grant. Teen Challenge said it did not want to risk a lawsuit over the grant which was to be used to hire a development director and train board members in fundraising. Teen Challenge uses "confrontational evangelism" to cure substance abuse.

Meanwhile, Thursday's Forward reports on Beit T'Shuvah, the country's only Jewish residential program for drug and alcohol abuse. The Los Angeles program explicitly does not seek government funding because its treatment methodology is filled with religious content-- a 12-step program combined with Jewish spirituality. Residents study Torah each morning at 7 am, and are required to attend weekly Friday night and Saturday morning religious services

School District Cuts Off All Community Flyers To End Bias Against Religious Messages

As previously reported, a federal lawsuit has been filed against the the Hudson (NH) School District challenging its policy on flyers that may be sent home with students. The school district has allowed flyers from nonprofit community organizations, but has excluded material with religious content. This past Monday, according to the Nashua (NH) Telegraph, the Hudson School Board unanimously adopted a policy change. From now on, only the school itself and school-associated volunteer groups will be able to send home flyers with students. No general community nonprofit groups will be permitted to do so. The new policy will cut down on the growing amount of material that has been distributed and will place religious and non-religious community groups on an equal footing-- both are precluded from sending home material.

Challenge To Pledge of Allegiance Partially Dismissed By NH Federal Court

Freedom from Religion Foundation v. Congress of the United States, (D NH, Aug. 7, 2008), is an opinion in a lawsuit challenging the constitutionality of the recitation of the Pledge of Allegiance containing the phrase "under God" in New Hampshire schools. The suit was brought on behalf of atheist and agnostic parents of three New Hampshire school children, and the lead attorney was Michael Newdow who, himself as a plaintiff, had unsuccessfully litigated a challenge to the Pledge in 2004. New Hampshire law permits children who do not wish to recite the Pledge to silently stand or remain seated while other recite it. Parents here however sought to have the recitation of the Pledge eliminated from the classroom.

Suing the U.S. Congress, the United States government, and three school districts, plaintiffs alleged some 16 bases on which recitation of the Pledge should be found unconstitutional or otherwise invalid. These included Establishment Clause and Free Exercise claims, as well as claims that the school district exposed children to emotional harm by requiring their presence in the classroom while the pledge is recited and a claim that the Pledge violates public policy by fostering national divisiveness. Several other parties intervened as defendants to support recitation of the Pledge.

In this decision, the court dismissed claims against the United States Congress. Relying on the "Speech or Debate" clause of the Constitution, it held that courts lack jurisdiction to direct Congress to enact or amend legislation. The court also dismissed the United States as a defendant, finding that plaintiffs lacked taxpayer standing. The United States however remains a party as an Intervenor, as do the state of new Hampshire, the Knights of Columbus and several New Hampshire school students and parents who intervened. (See prior related posting.)

3rd Circuit Rejects Free Exercise Challenge To PA Home-Schooling Regulation

In Combs v. Homer-Center School District, (3rd Cir., Aug. 21, 2008), the U.S. 3rd Circuit Court of Appeals rejected challenges by six families to record-keeping requirements showing that they met the instructional hours and subject matter requirements, and to subsequent portfolio review, imposed by Pennsylvania's Act 169 (24 PS 13-1327.1) that regulates home schooling. Plaintiffs, all Christians of varying denominations who home-schooled their children, claim that the requirements place a substantial burden on their free exercise of religion in violation of the 1st Amendment of the U.S. Constitution and of Pennsylvania's Religious Freedom Protection Act. The court, focusing on the 1st Amendment challenge, held:

Act 169 is a neutral law of general applicability. It neither targets religious practice nor selectively imposes burdens on religiously motivated conduct. Instead, it imposes the same requirements on parents who home-school for secular reasons as on parents who do so for religious reasons. Furthermore, nothing in the record suggests Commonwealth school officials discriminate against religiously motivated home education programs (e.g., denying approval of home education programs because they include faith-based curriculum materials).... The Commonwealth has a legitimate interest in ensuring children taught under home education programs are achieving minimum educational standards and are demonstrating sustained progress in their educational program.

The court also rejected plaintiffs' claim that a "hybrid right" calling for stricter scrutiny was involved. Rejecting the federal constitutional claims, the court remanded the state law claim to state court.

In a concurring opinion, Chief Judge Scirica reached the merits of the state Religious Freedom Protection Act claim and found that: "Based upon the plain language of the RFPA, Parents have failed to prove by clear and convincing evidence that they have been compelled or will likely be compelled to violate a specific tenet of their religious faith."

The Home School Legal Defense Association that represented the parents said it is reviewing the decision and considering an appeal. [Thanks to Alliance Alert for the lead.]

Virginia Episcopal Diocese Loses On Two More Issues In Property Disputes

On August 19, a Fairfax County, Virginia trial court issued two more "Letter Opinions" in In re Multi-Circuit Episcopal Church Property Litigation-- the contest over property ownership between eleven break-away congregations and the Episcopal Diocese of Virginia. In prior decisions, the court ruled that Virginia's "Division Statute" is constituitonal and applies in this case. (See prior posting.) The statute permits the majority of a congregation to decide to which branch of a church its property will belong when there has been a "division" in the church. In the latest decisions, the court first rejected the assertion by ECUSA and the Diocese that the eleven churches had in some way contracted away, waived, abandoned or relinquished their right to assert rights under the Division Statute. [Full text of opnion.]

In its second opinion (full text), the court rejected claims by ECUSA and the Diocese that Virginia's Division Statute violates the Contracts Clause of the U.S. Constitution. The court concluded that the Contracts Clause protects only those contractual rights that existed before the Division Statute was first enacted in 1867. It is not enough that a congregation was in existence prior to 1867; the protection of property rights the diocese or ECUSA had in a church's property extends only to specific parcels of property acquired before 1867. Any property acquired after that date would have been acquired subject to ownership provisions in the Division Statute. Since in 1867 under Virginia law denominational bodies or dioceses could not hold title to, or obtain enforceable contractual rights in, property, the Contracts Clause does not protect any rights of the diocese or ECUSA in church properties.

Yesterday's Washington Times reported on the decision.

TRO Issued To Stop Army Construction At Comanche Religious Site

In Comanche Nation v. United States, (WD OK, Aug. 18, 2008), an Oklahoma federal district court granted a temporary restraining order barring the U.S. Army from starting construction of a warehouse on the Ft. Sill Military Reservation. The Comanche Tribe claimed that the construction site at the edge of Medicine Bluffs is a significant religious and ceremonial site protected by federal law from disruption or interference. the court said that the questions going to the merits of the Tribe's claims "are serious, substantial, and difficult." According to yesterday's Army Times, Medicine Bluffs has been on the Register of Historic Places since 1974. Comanche Chairman Wallace Coffey said the Army had ignored the tribe's request that the warehouse be constructed elsewhere.

Missouri Governor Implementing Faith-Based Disaster Relief Initiative

Yesterday's St. Louis Post-Dispatch reports on Missouri Governor Matt Blunt's proposed Faith-Based Missouri Disaster Relief Initiative. The state's Emergency Management Agency and the University of Missouri Extension Service are organizing meetings around the state to recruit churches and train religious leaders in emergency response. The goal is to create a coordinated network of fully trained churches that the state can call on to provide relief services during natural disasters. United Methodist Church disaster relief coordinator, Karen Benson, said that local faith-based groups partnering with the state have informally agreed to refrain from proselytizing while furnishing disaster relief.

Christian Groups Enter China, Evading Ban on Foreign Missionaries

The Associated Press reported yesterday that a number of Christian groups came into China to proselytise during the Olympics, despite the Chinese ban on foreign missionaries. They entered on tourist visas, and told authorities they were involved in sports or cultural activities. However, once in the country, they began to reach out to individuals to share their faith. Among the groups sending people into China were Awaken Generation, the Southern Baptist Convention, and Youth With A Mission. Asked about the activities, China's religious affairs administration office said: "If foreigners do such things in China, they violate the law, and local religious departments and other departments should stop them."

Cleric-Penitent Privilege Held Inapplicable Where Pastor Is Not A Spiritual Advisor

In State of New Jersey v. J.G., (NJ App. Div., Aug. 20, 2008), a New Jersey appellate court held that a conversation between a clergyman and a father accused of sexually abusing his children was not protected by the state's cleric-penitent privilege. The children's mother reported the abuse to Pastor Glenford Brown who then contacted the father. While Brown knew the father, the father did not attend Brown's church. The court held:

(1) defendant did not ask and Brown did not offer to keep the conversation confidential; (2) Brown reached out to defendant – not as a spiritual advisor – but to protect defendant's children; and (3) Brown specifically told defendant he could not counsel him or even baptize him because defendant needed professional help. Clearly, the conversations between defendant and Brown are not protected by the privilege.

Yesterday's New Jersey Star-Ledger reported on the decision.

New IRS Publication on Taxation of Churches and Religious Institutions

The Internal Revenue Service has issued a revised version of its publication, Tax Guide for Churches and Religious Organizations. The 28-page multi-colored publication provides guidance on obtaining and keeping tax exempt status, employment taxes, unrelated business income taxes, employee business expenses, record keeping and filing requirements. [Thanks to Steven H. Sholk and Steve Sheinberg for leads on this.]