Religious Institutions Update: January 2018 - Lex Est Sanctio Sancta

By Shannon B. Hartsfield

The U.S. Department of Health and Human Services (HHS) announced on Jan. 18, 2018, the creation of a new division within its Office for Civil Rights (OCR). OCR is described as the "law enforcement agency" within HHS that enforces federal laws protecting civil rights and conscience in health and human services, and the security and privacy of individual health information. HHS indicated that the Conscience and Religious Freedom Division will allow HHS to focus on the enforcement of "existing laws protecting the rights of conscience and religious freedom, the first freedom protected in the Bill of Rights." OCR Director Roger Severino stated, "Laws protecting religious freedom and conscience rights are just empty words on paper if they aren't enforced. No one should be forced to choose between helping sick people and living by one's deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice. For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now."

OCR's enforcement authority is found in numerous federal conscience protection statutes, including the following:

• the "Church Amendments," found in 42 U.S.C. §300a-7 et seq., which were enacted to protect the rights of individuals and entities that, on the basis of religion or moral convictions, object to assisting in or performing abortion or sterilization procedures
• the Public Health Service Act, §245, codified at 42 U.S.C. §238n, which prohibits any government entity receiving federal financial assistance from discriminating against an entity because it refuses to perform abortion, provide abortion training or engage in certain other training activities related to abortion
• the Weldon Amendment, first passed as part of an HHS appropriation in 2005, that prohibits HHS funds from being made available to any federal agency or program, or to a state or local government, if the agency, program or government discriminates against a healthcare entity on the basis that the entity does not provide, pay for or cover abortions
• Section 1303(b)(4) of the Affordable Care Act (ACA), Pub. L. No. 111-148, as amended by Pub. L. No. 111-152, which states that "No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer abortions"
• Section 1553 of the ACA, which prohibits discrimination against an individual or institutional healthcare entity on the basis that the entity does not provide services relating to assisted suicide

The day after its announcement, HHS also published new guidance to state Medicaid directors rescinding 2016 guidance that restricted states' ability to take certain actions against abortion providers. OCR also issued a proposed rule to enforce statutory conscience protections for those involved in HHS-funded programs. More information on the new OCR division, as well as information regarding how to file religious freedom complaints, is available on the HHS website.

By Nathan A. Adams IV

InDoe v. First Presbyterian Church U.S.A. of Tulsa, Oklahoma, No. 115182, 2017 WL 6478193 (Okla. Dec. 19, 2017), the court reversed on rehearing dismissal of the lawsuit for lack of subject matter jurisdiction and ruled that an individual who was kidnapped and tortured by extremists in Syria, allegedly due to publication on the internet of his baptism, stated a claim against the church that baptized him for breach of contract and tort. The appellant alleged that he consented to baptism only after receiving assurance of privacy, whereas appellees urged that they had no knowledge of Doe's request for confidentiality in baptism, and church doctrine would have prohibited them from keeping the baptism private. Because of these disputed factual issues, and because it is undisputed that the appellant did not seek or become a member of the church, the court ruled that the appellant stated a claim. The court determined that the church autonomy doctrine could not apply to bar the claim of a non-member and, in any event, is an affirmative defense, not a jurisdictional bar. The dissent (Combs, C.J., and Winchester and Reif, JJ.) disagreed with the court's grant of rehearing, that the church autonomy doctrine (as opposed to ministerial exception doctrine) is an affirmative defense rather than a bar to subject matter jurisdiction and that the appellant's nonmember status bars application of the church autonomy doctrine.

In Klein v. Oregon Bureau of Labor and Indus., 289 Or.App. 507 (Or. App. 2017), the Bureau of Labor and Industries (BOLI) sued the Kleins, owners of Sweetcakes, after they declined to prepare a wedding cake for a gay couple or, according to them, to "facilitate the celebration of a union that conveys messages about marriage to which they did not [subscribe] and that contravene their religious beliefs." The court affirmed BOLI's order in three respects. First the court concluded that the Kleins' denial of service was "on account of" the complainants' sexual orientation within the meaning of ORS 659A.403. The Kleins argued that they are willing to serve homosexual customers, as long as those customers do not use their cakes in celebration of weddings, but BOLI found that the Kleins' refusal to provide cakes for a wedding is synonymous with refusing to provide a cake because of the complainants' sexual orientation. Second, the court affirmed BOLI's conclusion that its order does not impermissibly burden the Kleins' right to free expression as it requires compliance with a neutral law of general applicability. The court determined that the Kleins' wedding cakes include expressive and non-expressive elements, triggering only intermediate scrutiny. Furthermore, the court...