Federal Government Releases Final ‘Conscience Rule’

The U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) has issued its final “conscience rule.”

In a statement, the HHS said that the 440 page final rule “protects individuals and health care entities from discrimination on the basis of their exercise of conscience in HHS-funded programs.” The HHS added that the final rule implements “full and robust enforcement of approximately 25 provisions passed by Congress protecting longstanding conscience rights in healthcare.”


In January 2018, following the launch of the HHS’s Conscience and Religious Freedom Division, the HHS announced a proposed conscience rule. The OCR received over 242,000 public comments on the proposed rule, which it considered before finalizing the rule.

The HHS said that the final rule, which replaces a 2011 rule, protects health care providers, individuals, and other health care entities from having to provide, participate in, pay for, provide coverage of, or refer for services such as abortion, sterilization, or assisted suicide. The HHS added that the final rule also includes conscience protections with respect to advance directives.

The HHS pointed out that the final rule clarifies what covered entities need to do to comply with applicable conscience provisions and requires applicants for HHS federal financial assistance to provide assurances and certifications of compliance. The final rule also specifies compliance obligations for covered entities, including cooperation with OCR, maintenance of records, reporting, and non-retaliation requirements.

The Specifics

The final rule revises the existing HHS conscience regulations in scope and procedure.

With respect to scope, the final rule implements enforcement mechanisms for federal health care conscience and associated anti-discrimination provisions. As compared with the rule issued in 2011, the new final rule provides greater specificity concerning what conscience laws require and, the HHS said, is intended to ensure that the government or government-funded entities are not unlawfully discriminating against individuals, health care providers, or health care entities.

With respect to procedure, the final rule authorizes the HHS to:

  • Investigate complaints;
  • Initiate compliance reviews;
  • Conduct investigations;
  • Supervise compliance within HHS;
  • Make enforcement referrals to the Department of Justice in coordination with the HHS Office of the General Counsel; and
  • Remediate the effects of discrimination in coordination with other funding components in the HHS, which may include withholding federal funds, as appropriate.

In addition, the final rule requires certain recipients of federal funds from HHS:

  • To submit assurances and certifications to HHS that they are in compliance with federal health care conscience laws;
  • To fully comply with the requirements of federal conscience laws;
  • To keep records to establish compliance;
  • To cooperate with the OCR’s enforcement activities; and
  • Not to intimidate or retaliate against those who file complaints with OCR, alleging violations of federal conscience laws, or cooperate with OCR investigations of such complaints.

In addition, the final rule incentivizes, but does not require, recipients of HHS funds to post notices of federal health care conscience rights or otherwise inform patients or employees of such rights, where applicable.

The HHS said that, where certain federal funds are involved, the final rule protects:

  • Health care entities and employees who have conscience or religious objections related to performing, paying for, referring for, providing coverage of, or providing certain services, such as abortion, sterilization, or assisted suicide, or providing or receiving training in abortion;
  • Health care professionals who decline to receive training in abortions or who attend medical schools that do not require abortion training, and applicants for training or study who have conscience or religious beliefs relating to assisting or recommending abortions or sterilizations;
  • Individuals in a health service or research activity funded by an HHS program where they decline to perform or assist in part of that program because of sincere religious beliefs or moral convictions; and
  • Patients who object to certain procedures, including screenings and mental health treatment of children or occupational illness testing, and in other specific instances set forth by Congress.

The final rule applies to the federal agencies and programs, and state and local governments receiving federal funds, as well as certain federally funded entities. Each federal conscience protection provision implemented in the final rule specifies the types of entities to which the law applies, which can include:

  • HHS;
  • State and local governments;
  • Public and private health providers that receive HHS funds;
  • Universities and schools that provide health care training; and
  • Individuals and entities receiving taxpayer dollars from HHS or through particular programs administered by HHS for health care services, insurance, provider licensing, and research, such as through Medicare, Medicaid, Global Health Programs, the Affordable Care Act, the Public Health Service Act, and HHS’s annual appropriations acts.

Finally, the conscience protections covered by the final rule include:

  • The Church Amendments;
  • The Coats-Snowe Amendment;
  • The Weldon Amendment;
  • Affordable Care Act conscience protections regarding abortion coverage, assisted suicide, and provisions prohibiting the discriminatory denial of a religious exemption from the individual mandate;
  • Section 1553 of the Affordable Care Act concerning the right to not participate in assisted suicide;
  • Certain conscience protections under Medicare Advantage and Medicaid;
  • Conscience protections concerning advance directives with respect to certain HHS-funded programs;
  • Conscience protections for Global Health Programs administered by HHS or funded by HHS appropriations;
  • Conscience exemptions for patients from certain specified health care services; and
  • Conscience protections for religious nonmedical health care institutions and patients who seek religious nonmedical care.

7th Circuit Upholds ‘Parsonage Allowance’ Against First Amendment Challenge

The U.S. Court of Appeals for the Seventh Circuit, reversing a district court’s decision, has ruled that the Internal Revenue Code provision excluding housing allowances from ministers’ taxable income does not violate the First Amendment and is not unconstitutional.

The Parsonage Allowance

After the Sixteenth Amendment to the U.S. Constitution was ratified in 1913, authorizing Congress to levy an income tax, Congress enacted the federal income tax. Thereafter, the Treasury Department adopted the “convenience-of-the-employer” doctrine in connection with the definition of taxable “income.” Under that doctrine, housing provided to employees for the convenience of their employer is exempt from the employees’ taxable income.

The convenience-of-the-employer doctrine, however, was not made available to ministers and, in 1921, the Treasury Department announced that ministers would be taxed on the fair rental value of parsonages provided as living quarters.

In response, Congress enacted a statute to exclude church-provided parsonages from the taxable income of ministers. The Treasury Department interpreted this statute to apply only to housing provided in-kind; cash housing allowances were included in income.

This continued for decades until several ministers successfully challenged the limitation to in-kind housing in the 1950s. Congress then enacted 26 U.S.C. § 107, which provides:

In the case of a minister of the gospel, gross income does not include—

(1) the rental value of a home furnished to him as part of his compensation; or

(2) the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home. . . .

Section 107(1) reauthorized the in-kind parsonage exemption in place since the 1920s. Section 107(2) authorized the Internal Revenue Service also to exempt cash allowances from ministers’ taxable income.

It has been estimated that of the United States’ 384,000 congregations, 200,000 to 300,000 provide a housing allowance to their ministers within the meaning of Section 107(2).

The Challenge

Several years ago, the Freedom from Religion Foundation and a number of its executives sued the Treasury Department, claiming that Section 107 violated the First Amendment because it conditioned a tax benefit on religious affiliation.

The U.S. District Court for the Western District of Wisconsin held that Section 107(2) violated the Establishment Clause of the First Amendment, and the dispute reached the Seventh Circuit.

The Seventh Circuit’s Decision

The Seventh Circuit reversed.

In its decision, in Gaylor v. Mnuchin, the circuit court examined whether Section 107(2) violated the Establishment Clause under the so-called Lemon test. To be upheld under this test, the Seventh Circuit explained, Section 107(2) had to have a secular legislative purpose, Section 107(2)’s principal or primary effect had to be one that neither advanced nor inhibited religion, and Section 107(2) could not foster an excessive government entanglement with religion.

The circuit court then determined that Section 107(2) met all three prongs of the Lemon test.

First, the Seventh Circuit upheld the government’s contention that there were several valid secular purposes for Section 107(2): to eliminate discrimination against ministers, to eliminate discrimination between ministers, and to avoid excessive entanglement with religion.

The circuit court then ruled that Section 107(2) did not have the primary effect of advancing or inhibiting religion, reasoning that providing a tax exemption did not “connote[] sponsorship, financial support, and active involvement of the [government] in religious activity.” The Seventh Circuit declared that the primary effect of Section 107(2) was not to advance religion on behalf of the government, but to “allow[] churches to advance religion, which is their very purpose.”

Next, the Seventh Circuit decided that Section 107(2) did not foster an “excessive government entanglement with religion.” Among other things, the circuit court pointed out that Section 107(2) avoided government inquiry into the use of a minister’s home.

Finally, the Seventh Circuit ruled that Section 107(2) also was constitutional by reference to “historical practices and understandings,” finding no evidence that provisions such as Section 107(2) were historically viewed as an establishment of religion. Indeed, the Seventh Circuit noted, there was a “lengthy tradition of tax exemptions for religion, particularly for church-owned properties” – and for over two centuries, states have implemented church property tax exemptions in various forms.

Accordingly, the Seventh Circuit concluded, the parsonage allowance in Section 107(2) was constitutional.

This Time, US Supreme Court Stops an Execution Where State Refuses Minister’s Presence

Just about one month after the U.S. Supreme Court permitted Domineque Ray, a Muslim prisoner, to be executed without his minister being present, the Court stopped another execution where a prisoner was denied the presence of his spiritual advisor.

In Murphy v. Collier, 587 U. S. ____ (2019), the Court stayed the execution of Patrick Murphy by the state of Texas, declaring that the state “may not carry out Murphy’s execution” unless the state “permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the [s]tate’s choosing to accompany Murphy in the execution chamber during the execution.”

Under current Texas policy, a Christian or Muslim inmate may have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room. But inmates of other religious denominations – for example, Buddhist inmates such as Murphy – who want their religious adviser to be present can have the religious adviser present only in the viewing room and not in the execution room itself for their executions.

The Court was troubled by that policy and issued the stay. (Justices Thomas and Gorsuch said that they would deny Murphy’s application for a stay.)

Interestingly, Justice Kavanaugh concurred in the grant of Murphy’s application for a stay and wrote a short opinion.  He explained that “governmental discrimination against religion – in particular, discrimination against religious persons, religious organizations, and religious speech – violates the Constitution.” The government, Justice Kavanaugh continued, “may not discriminate against religion generally or against particular religious denominations.”

Justice Kavanaugh declared that the Texas policy amounted to “denominational discrimination” and violated the Constitution. What Texas “may not do,” Justice Kavanaugh said, “is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.”

It’s worth noting that Justice Kavanaugh found that Murphy made his request for his minister to be present with him in the execution room “in a sufficiently timely manner” for it to be considered by the state and the courts, unlike what the Court concluded last month in Ray’s case.

Learn more: Here’s Why Domineque Ray, a Muslim Prisoner, Was Executed Without His Minister

Nelson Madden Black Obtains Court Order Invalidating Mortgage on Church Property

In an important victory for a Nelson Madden Black client, the New York State Supreme Court has invalidated a mortgage on church property that did not comply with the requirements of the New York Religious Corporations Law.

This appears to be the first time that a court has struck down a “hard money” mortgage – that is, a mortgage securing a short term loan at high rates, with a balloon payment due at the end of the term – after finding that it was not fair to a church when it was made and that it was not in the church’s best interest to enforce it now.

The court battle over the mortgage began in April 2010, when the lender sought to foreclose on the mortgage. By 2018, when Nelson Madden Black began to represent the church, the lender had been awarded summary judgment and was seeking to foreclose on its mortgage. Nelson Madden Black overcame judgment in favor of the lender and, now, has obtained summary judgment in favor of the church.

Nelson Madden Black demonstrated that the mortgage was invalid from the beginning because it did not comply with the Religious Corporations Law, and persuaded the court not to retroactively approve it.

The decision has been published by the New York Law Journal and is available at: https://www.law.com/newyorklawjournal/almID/1553231389NY1088510/

Nelson Madden Black LLP – Church Client Escapes Foreclosure

A recent decision of the Kings County New York Supreme Court invalidated a 12-year old mortgage in foreclosure proceedings. When the Grace Christian Church hired Nelson Madden Black, the court had already granted summary judgment against it, enforcing a second mortgage given to a “hard money” lender. But with hard work and persistence, firm lawyers, led by partner Jonathan Nelson, persuaded the court to vacate the initial ruling, and grant summary judgment to the church invalidating the mortgage. Having initially neglected to obtain judicial approval of the mortgage, as the law required, the lender had asked the court to approve it nunc pro tunc. The court questioned whether the mortgage was fair at the time of its making, noting that the church’s congregation had never approved the borrowing, which had increased at the closing beyond the amount approved by the church trustees, and observing that the loan may have been “doomed to failure” if the church could not repay it when the balloon payment came due. Looking to the present day, the court concluded that it would not be in the best interest of the church to lose its house of worship from the foreclosure of the mortgage, and granted summary judgment dismissing the lender’s complaint. The case sends a cautionary message to lenders not to overreach when lending money to religious institutions, and to make doubly sure that the loan’s terms are fair, reasonable and in the borrower’s long-term best interests.

Department of Education Lifts Limit on Religious Organizations Providing ‘Equitable Services’ to Private Schools

The U.S. Department of Education (“DOE”) will no longer enforce a restriction in federal law that bars religious organizations solely because of their religious affiliation from contracting to provide equitable services – such as special education and tutoring – to private schools.

Secretary of Education Betsy DeVos announced the change in policy at a meeting of the Council for American Private Education (“CAPE”) and in a letter to Nancy Pelosi, the Speaker of the House of Representatives

Sections 1117(d)(2)(B) and 8501(d)(2)(B) of the Elementary and Secondary Education Act (“ESEA”) require that, under specific ESEA programs, state and local educational agencies (“SEAs” and “LEAs”) provide services or other benefits to certain private school students, teachers, and families that are equitably comparable to those services provided in public schools. An SEA or LEA must provide equitable services either directly using its own employees or through a contract with an individual, association, agency, or organization. In providing such services, the employee or third-party provider must be “independent of the private school and of any religious organization,” according to the ESEA.

The secretary said that the DOE consulted with the U.S. Department of Justice and determined that the requirement that providers of equitable services to private schools must “be independent of . . . any religious organization” was unconstitutional because it categorically excluded religious organizations based solely on their religious identity.

The secretary said that the restriction ran counter to the U.S. Supreme Court’s 2017 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, which held that, under the Free Exercise Clause of the First Amendment of the U.S. Constitution, otherwise eligible recipients could not be disqualified from a public benefit solely because of their religious character.

Given the Supreme Court’s Trinity Lutheran decision, the secretary said, the DOE would no longer enforce these two ESEA sections, which have restricted school districts from contracting with religious organizations to provide equitable services on the same basis as any other organization.

“The Trinity Lutheran decision reaffirmed the long-understood intent of the First Amendment to not restrict the free exercise of religion,” the secretary said in a prepared statement. “Those seeking to provide high quality educational services to students and teachers should not be discriminated against simply based on the religious character of their organization.”

In her letter to Speaker Pelosi, the secretary explained that, “Permitting religious organizations and secular organizations alike to provide secular services to schools does not violate the Establishment Clause,” and that, absent specific language to the contrary such as contained in Sections 1117(d)(2)(B) and 8501(d)(2)(B), the DOE “generally considers faith-based organizations to be eligible to contract with grantees and subgrantees” and to apply for and receive DOE grants “on the same basis as any other private organization.”

The secretary concluded that the DOE would continue to enforce all other applicable provisions of federal law. In particular, she pointed out, under ESEA Sections 1117(a)(2) and 8501(a)(2), school districts must continue to ensure that any contractor is independent of the private school for which it is providing services and that the educational services and other benefits being provided by a contractor are “secular, neutral and non-ideological.”

NMB Partner Authored an Article for NYLJ on Eruv

Partner  Barry Black authored an article for the New York Law Journal featured in their March 1st edition. 

The article touched on the centuries-old practice of Orthodox Jews preventing them from pushing or carrying objects outside their homes on the Sabbath and on Yom Kippur, yet those prohibitions are lifted within an eruv, a ritual demarcation of an area.

Barry discusses recent and historical decisions on the practice and offers insight into how both sides of the community should approach the practice. 

Click Here to read the full article.

Bladensburg ‘Peace Cross’ Seems Likely to Remain Standing

The U.S. Supreme Court has held oral argument in a case involving a 40-foot tall Latin cross displayed and maintained on public property in Bladensburg, Maryland. Although it can be difficult to predict how the Court ultimately will rule, it appears that a majority of the justices will vote to allow the so-called “Peace Cross” to remain as it is and where it is.

The Case
Over a century ago, in 1918, a number of individuals from Prince George’s County, Maryland, started raising money to construct a giant cross, in addition to a previously established plaque, to honor 49 World War I soldiers from the county. The private organizers required each donor to sign a pledge sheet recognizing the existence of one god. It stated:



The private organizers held a groundbreaking ceremony on September 28, 1919, at which
time the city of Bladensburg owned the land.

In 1922, the private organizers ran out of money and could not finish the project. The
Snyder-Farmer Post of the American Legion assumed responsibility and ultimately completed
the monument in 1925.

Upon completion, the monument stood four stories tall in the shape of a Latin cross (the
“Peace Cross”) located in the median of a three-way highway intersection in Bladensburg,

On March 1, 1961, the Maryland-National Capital Park and Planning Commission, a
state entity, obtained title to the cross and the land on which it is located. The commission has
said that it assumed responsibility to “maintain[ ], repair[ ], and otherwise car[e] for” the Peace
Cross. It has spent approximately $117,000 to maintain and repair it and, in 2008, it set aside an
additional $100,000 for renovations.

Today, the Peace Cross is situated on a traffic island taking up one-third of an acre at the
intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg. The American Legion’s
symbol – a small star inscribed with “U.S.” – is affixed near the top of the Peace Cross, and an
American flag flies in the vicinity of the Peace Cross. The Peace Cross sits on a rectangular base,
one side of which contains a two-foot tall, nine-foot wide plaque listing the names of the 49
soldiers from Prince George’s County memorialized by the Peace Cross, followed by a quote by
President Woodrow Wilson, stating, “The right is more precious than peace. We shall fight for
the things we have always carried nearest our hearts. To such a task we dedicate our lives.”
Three non-Christian residents of Prince George’s County and the American Humanist
Association (“AHA”), a nonprofit organization that advocates to uphold the founding principle

of separation of church and state, sued the commission under 42 U.S.C. § 1983, alleging that its
display and maintenance of the Peace Cross violated the First Amendment’s Establishment

The District Court’s Decision
A federal district court in Maryland ruled in favor of the defendants, analyzing the plaintiffs’ claims under the U.S. Supreme Court decision of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (and, alternatively, under Van Orden v. Perry, 545
U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005)). The district court held that the commission owned the Peace Cross and land for a legitimate secular reason, that is, to maintain the highway median. The district court also identified a second secular purpose, which was to commemorate
the 49 World War I soldiers from Prince George’s County. 

The district court next determined that the Peace Cross neither advanced nor inhibited religion because (1) the Peace Cross has been primarily used for veterans’ events; (2) crosses generally were regarded as commemorative symbols for World War I, at least overseas; (3)
secular war memorials surrounded the Peace Cross; and (4) the Peace Cross had secular attributes, such as the Legion symbol on the face of the Peace Cross.

Finally, the district court concluded that the commission’s display and maintenance of the Peace Cross did not amount to excessive entanglement with religion because the Peace Cross was not a governmental endorsement of religion. At bottom, the district court viewed the
commission’s maintenance of the Peace Cross as relating to traffic safety and veteran commemoration rather than religion.

The plaintiffs appealed to the Fourth Circuit.

The Fourth Circuit’s Decision
The Fourth Circuit reversed.
In its decision, the circuit court reasoned that the Peace Cross had the “primary effect of endorsing religion” and that it “excessively entangle[d] the government in religion.”The circuit court pointed out that the Latin cross was the “core symbol of Christianity”and that here it was “40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds.”

Citing to the U.S. Supreme Court’s decision in Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947), the Fourth Circuit held that the “purported war memorial” breached the “wall of separation between Church and State.”

The dispute reached the U.S. Supreme Court, where it attracted a great deal of attention.

Amicus curiae (“friend of the court”) briefs were filed by organizations ranging from the American Center for Law & Justice, The Becket Fund for Religious Liberty, the Jewish Coalition for Religious Liberty, and The Islam and Religious Freedom Action Team of the Religious Freedom Institute to the International Municipal Lawyers Association, the Foundation for Moral Law, The Rutherford Institute, and Veterans in Defense of Liberty.

Oral Argument in the Supreme Court
Oral argument was held in the Supreme Court on February 27. Neal K. Katyal, Michael A. Carvin, Jeffrey B. Wall, and Monica L. Miller argued the case before the Supreme Court. (A transcript of the oral argument is available on the U.S. Supreme Court’s website, at
Mr. Katyal began, contending that there were “four important facts about the memorial at issue, the Peace Cross, that explain why it should not be dismembered or destroyed.

“First, families and the Legion built it 93 years ago to commemorate 49 brave souls who gave their lives in World War I, and it has stood for – since that time without challenge. “Second, it’s no ordinary cross. At its center, in its heart, is the American Legion symbol.
It’s gigantic. And at the base in four capital – huge capital letters are words: Valor, Endurance, Courage, Devotion.

“Third, not a single word of religious content appears anywhere; rather, the base has a nine-foot plaque listing the 49 names with an inscription to them. “And, fourth, the monument is situated in Veterans Memorial Park alongside other war

At that point, Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg began to pepper Mr. Katyal with questions. Various justices continued to ask questions of Mr. Katyal and the other lawyers arguing their case.

When the attorney for the plaintiffs, Ms. Miller, had her turn, she began by stating, “I think we can all agree that the Establishment Clause at the very least prohibits the government from preferring one religion over another religion.

“And the commission is arguing essentially that its cross does not violate the central command of the Establishment Clause because it’s essentially a non-religious, non-Christian symbol that honors everyone, irrespective of their religion.

“Yet, I don’t think anyone here would deny that it would be unconstitutional and inappropriate to go into Arlington and place a Latin cross over the grave of every person there, every fallen soldier, irrespective of their religion.” Interestingly, neither Mr. Katyal nor Ms. Miller suggested that the Supreme Court should reject its Lemon test, although Justices Brett Kavanaugh and Neil Gorsuch seemed willing to do

The bottom line from oral argument in this case is that there seemed to be a majority of the Court willing to allow the Peace Cross to remain, with commentators in The New York Times, Washington Post, and Wall Street Journal and SCOTUSblog all suggesting the same thing.

Stay tuned.

Learn more:
“Supreme Court Seems Ready to Allow Cross Honoring War Dead,” available at

“Supreme Court seems to seek narrow way to uphold cross that memorializes war dead,”
available at https://www.washingtonpost.com/politics/courts_law/supreme-court-balances-history-and-religion-in-deciding-monuments-fate/2019/02/26/24688222-3a0e-11e9-a2cd-307b06d0257b_story.html?utm_term=.8813f43f6684

“High Court Hears Case of Memorial Cross at Traffic Circle,” available at

“Argument analysis: Peace cross appears safe, if not stable,” available at

Argument analysis: Peace cross appears safe, if not stable

Here’s Why Domineque Ray, a Muslim Prisoner, Was Executed Without His Minister

The state of Alabama has executed Domineque Ray, a Muslim prisoner, without
granting his request to have an imam present with him at his death.

Ray’s execution followed a decision by the U.S. Supreme Court vacating a stay of
Ray’s execution that was entered by the U.S. Court of Appeals for the Eleventh Circuit on
February 6.

The Supreme Court, in a two-paragraph opinion, explained that, on November 6,
2018, Alabama scheduled Ray’s execution date for February 7, 2019. It then reasoned that
because Ray waited until January 28, 2019 – or what the Court referred to as the “last[]
minute” – to seek relief, it would vacate the stay put in place by the Eleventh Circuit.
Not all justices agreed with the Court’s decision.

Justice Elena Kagan wrote an opinion, in which Justice Ruth Bader Ginsburg,
Justice Stephen G. Breyer, and Justice Sonia Sotomayor joined, dissenting from the
majority’s decision to vacate the stay granted by the Eleventh Circuit.

The dissent explained that the Holman Correctional Facility, the Alabama prison
where Ray was held and scheduled to be executed, regularly allowed a Christian chaplain
to be present in the execution chamber. However, the dissent continued, Ray was Muslim
and the prison refused his request to have an imam attend to him in the last moments of his

The dissent pointed out that the Eleventh Circuit concluded that there was a
substantial likelihood that the prison’s policy violated the First Amendment’s
Establishment Clause, and stayed Ray’s execution so it could consider his claim on the
merits – but that the majority of the Supreme Court reversed that decision and permitted
Ray’s execution to go forward.

The decision by the majority of the Supreme Court to vacate the stay was, in the
dissent’s view, “profoundly wrong.”

The dissent explained that the “clearest command” of the Establishment Clause was
that “one religious denomination cannot be officially preferred over another.” In the
dissent’s view, Alabama’s policy did just that because a Christian prisoner could have a
minister of the prisoner’s own faith accompany the prisoner into the execution chamber to
say last rites, but if an inmate practiced “a different religion – whether Islam, Judaism, or
any other – [the prisoner] may not die with a minister of [the prisoner’s] own faith by [the
prisoner’s] side.”

According to the dissent, that treatment “goes against the Establishment Clause’s
core principle of denominational neutrality.”

To justify what the dissent characterized as “religious discrimination,” the dissent
said that Alabama had to show that its policy was “narrowly tailored to a compelling
interest.” The dissent conceded that prison security was an interest of that kind, but it
pointed out that Alabama had offered no evidence to show that its “wholesale prohibition
on outside spiritual advisers” was necessary to achieve that goal. The dissent said:
Why couldn’t Ray’s imam receive whatever training in execution protocol the
Christian chaplain received? The State has no answer. Why wouldn’t it be
sufficient for the imam to pledge, under penalty of contempt, that he will not
interfere with the State’s ability to perform the execution? The State doesn’t say.

The dissent pointed out that the only evidence Alabama had offered was “a
conclusory affidavit” declaring that its policy was “the least restrictive means of
furthering” its interest in safety and security. In the opinion of the dissenting justices, that
was “not enough to support a denominational preference.”
The dissent said that Ray put forward a “powerful claim that his religious rights”
would be violated when Alabama put him to death. The dissent asserted that the Supreme
Court should have permitted the Eleventh Circuit to hear that claim in full, but that it
refused to allow that so Alabama could “meet its preferred execution date.”

Nelson Madden Black Comment
This issue is unlikely to simply disappear. Numerous commentators have declared
that Alabama’s practice of permitting Christian ministers but not Muslim ministers in these
circumstances violates the Establishment Clause. Future litigation undoubtedly will seek to
challenge the state’s practice, though there have been reports concerning a possible change
in the state’s policy, removing clergy of all faiths from the death chamber.

Faith-Based Foster Care Programs Granted Exception to Religious Nondiscrimination Regulation

The Office of Civil Rights (“OCR”) in the U.S. Department of Health and Human
Services (“HHS”) has concluded that faith-based foster care programs in South Carolina are
entitled under the federal Religious Freedom Restoration Act (“RFRA”) to an exception from the
religious nondiscrimination requirements of an HHS regulation.

The issue arose when South Carolina’s governor, Henry McMaster, asked the HHS’s
acting assistant secretary for children and families, “on behalf of South Carolina and faith-based
organizations” operating under South Carolina’s Title IV-E Foster Care Program, for an
exception from the HHS regulation at 45 CFR § 75.300(c) that prohibits subgrantees from
selecting among prospective foster parents on the basis of religion. Governor McMaster sought
the exception for foster care programs to the extent that the prohibition in the regulation
conflicted with their religious exercise.

One such faith-based organization, Miracle Hill Ministries, exclusively recruits foster
parents of a particular religion and accounts for up to 15 percent of South Carolina’s total foster
care placements.

The governor indicated to the HHS’s acting assistant secretary that he believed that other
participating faith-based organizations had similar religious exercise concerns.
According to the governor’s request, South Carolina has more than 4,000 children in
foster care, South Carolina needs more child placing agencies, and faith-based organizations “are
essential” to recruiting more families for child placement.

The governor asserted that without the participation of faith-based foster care
organizations, South Carolina would have difficulty continuing to place all children in need of
foster care. Moreover, the governor contended, if South Carolina’s foster care program was not
provided an exception from the regulation, certain faith-based organizations operating under
South Carolina grants would have to abandon their religious beliefs or forego licensure and
funding. The governor said that this would cause hardship to faith-based organizations and to the
state’s foster care program.

Governor McMaster asserted that certain requirements in 45 CFR § 75.300(c) exceeded
any nondiscrimination requirements or authority imposed by federal law, and that these
requirements limited the free exercise of religion of faith-based organizations in violation of

The Regulation
The federal regulation at 45 CFR § 75.300(c) provides:

(c) It is a public policy requirement of HHS that noperson otherwise eligible will be excluded from
participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.

The OCR’s Decision
The OCR concluded that requirements in 45 CFR § 75.300(c) were “broader than the
nondiscrimination requirements” specified in the federal Foster Care Program law, which applies
to federal grants to states, including South Carolina, which states then distribute to subgrantees
such as Miracle Hill Ministries.

In particular, the OCR determined that subjecting Miracle Hill to the religious
nondiscrimination requirement in 45 CFR § 75.300(c) (by requiring South Carolina to require
Miracle Hill to comply with 45 CFR § 75.300(c) as a condition of receiving funding) were
“inconsistent with RFRA.”

The OCR found that Miracle Hill’s sincere religious exercise “would be substantially
burdened” by application of the religious nondiscrimination requirement of 45 CFR §
75.300(c) and that subjecting Miracle Hill to that requirement, by denying South Carolina’s
exception request, was not the least restrictive means of advancing a compelling government
interest on the part of HHS.

The OCR reasoned that the interest of allowing potential foster parents into South
Carolina’s foster care program “appear[ed] capable of being served by other providers in the
program” if Miracle Hill were unable to partner with certain potential foster parents because
of Miracle Hill’s religious beliefs.

Accordingly, the OCR concluded that Miracle Hill (and any other similarly situated
religious organization in South Carolina’s foster care program) was entitled under RFRA to
an exception from the religious nondiscrimination requirements of 45 CFR § 75.300.
The HHS’s assistant secretary for children and families, therefore, conditionally granted
the requested exception from the religious non-discrimination requirement of 45 CFR §
75.300(c) with respect to Miracle Hill and any other subgrantee in South Carolina’s foster care
program using similar religious criteria in selecting among prospective foster care parents.

The HHS said that the exception applied on the condition that Miracle Hill, or any other
subgrantee making use of the exception, would be required to refer potential foster parents that
do not adhere to its religious beliefs to other subgrantees in South Carolina’s foster care program,
or to refer them to program staff if program staff were equipped to refer those persons to other
willing subgrantees. The HHS concluded that this condition was added on the understanding that
Miracle Hill, and any other subgrantee making use of this exception, does not object on religious
grounds to making such referrals.

* * *

Faith-based foster care programs in other states that find the HHS’s response to Governor
McMaster of interest should contact counsel to discuss whether, and how, it might apply to them.