Advancing freedom for all in the 21st century
Religious freedom conflicts can ensnare schools, healthcare workers

Written by William C. Duncan

August 21, 2020

This is part 4 in an ongoing series on an approach to advancing religious freedom by reducing opportunities for conflict between people of faith and those who feel discriminated against by the actions of people of faith. In part 1 we discussed sources of religious freedom law and in part 2 current legal rules. Part 3 described potential conflicts between nondiscrimination laws and religious freedom, and this article will describe related conflicts in the areas of healthcare and education.

While conflict between religious freedom and LGBTQ+ discrimination (or other forms of discrimination) often gets attention, there are two other prominent contexts for conflict to arise: healthcare and education.

Conscientious objectors in the medical context

In 2004, a devout Catholic nurse at the Mt. Sinai Hospital in New York told her employers that she had a religious objection to participating in any abortion procedure. This objection did not create any problems with her employment until May 2009, when the hospital told her she would be disciplined “if she did not honor a last-minute summons to assist in a scheduled late-term abortion.” Eventually, the federal government investigated, and the hospital agreed to stop mandating participation in abortions.

More recently, the Office of Civil Rights at the Department of Health and Human Services has reportedly intervened in a recent case involving a Catholic nurse in Vermont who says she was told to help a woman who had miscarried, only to find out that the hospital actually wanted to make her participate in an abortion procedure.

In healthcare, religious freedom conflicts are most likely to arise in this type of context – where a medical professional is asked to do something at odds with their religious beliefs. In 2008, the California Supreme Court ruled that a doctor could not decline to participate in the artificial insemination of a patient in a same-sex relationship despite the doctor’s religious misgivings.

The most well-known recent case involved a pharmacy in the state of Washington. In 2007, the Washington State Pharmacy Commission adopted a rule drafted by Planned Parenthood that would require pharmacies to dispense drugs that some believed cause abortions (the commission initially rejected the rule, but the governor replaced two members). Though a pharmacy could refer a potential customer to others for non-religious reasons, there was no specific religious exemption.

A pharmacy run by a family with religious objections to dispensing these drugs challenged the law. They pointed out that they were willing to refer customers to “one of over 30 pharmacies within a five-mile radius that willingly offer these drugs.” A federal court sided with the pharmacy after a trial, but a panel of judges on the Ninth Circuit Court of Appeals sided with the state and the Supreme Court declined to take their case.

Separation of school and state, and religious discrimination

Religious freedom issues in schools are complicated by the Supreme Court’s interpretation of part of the First Amendment, the Establishment Clause. An influential interpretation of this provision is that it requires a “separation of church and state” and so the government cannot do anything that has the purpose of benefiting religion in schools (though this rule is extremely controversial among current Supreme Court justices).

The well-known 1962 decision holding that it was unconstitutional for a public school to create a voluntary nondenominational prayer for students to say at the beginning of the school day (an Establishment Clause case) is based on this premise, but it can have the effect of limiting the religious exercise of others, like students chosen to speak at the beginning of a school football game who opt to pray.

More recently, the potential conflict (between the concerns that the state is benefiting religion and the ability of private citizens to act on their beliefs) has focused on government funding of education. Many states adopted Blaine Amendments – originally motivated by a desire to protect the de facto Protestant character of public schools against competition from Catholic schools – which prevent any government funding from going to religious schools.

In 2004, the Supreme Court upheld a Washington state policy that excluded recipients of a state scholarship from using the money to study theology. Since then, however, the court has dealt with the free exercise implications of those kinds of exclusions.

In 2017, the court struck down a Missouri policy that prevented a religious school from receiving a government grant for playground safety. And in July 2020, the court struck down a Montana policy that precluded parents from using publicly administered scholarship money for tuition to a religious private school. The principle appears to be that the Establishment Clause cannot be used as an excuse to impose unique disadvantages on religious people.

Need for clarity

As the cases described above show, these kinds of conflicts are far from settled. There is need for clarity from federal and state governments so that students, parents, teachers, nurses, doctors, and medical professionals, etc., know precisely what they can and can’t do as they reconcile the demands of conscience and pressure from government or employers to act in ways contrary to their beliefs.

All of the above-described conflicts are not insoluble, and there have been several efforts proposed to resolve them. The next installment in this series will examine some of these approaches.

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