Matters of Conscience:



Emerging Conflicts Between Same-Sex Marriage and Religious Liberty:

Finding a Live-And-Let-Live Solution

by

Professor Robin Fretwell Wilson*

It is difficult to ignore the parallels emerging between same-sex marriage and the recently renewed debates about the limits of conscience in healthcare, sparked by refusals to dispense emergency contraceptives.[1] Both subjects are deeply divisive and in both persons of good will are saying “why should I have to give up my convictions so that you can have yours?”

Tensions over same-sex marriages and civil unions have erupted in countries that have recognized same-sex relationships in a variety of ways. In January, 2006, a European human rights commission concluded that a clergy member’s interests in not performing same-sex marriages must be subordinated to the couple’s “right of access.”[2] A year later in Spain, a powerful, socialist political figure, with the Prime Minister’s backing, threatened to “establish[] a new status [for the Catholic Church], that puts her in her place,” if the Church did not retreat from its opposition to a citizen education program that would teach children about same-sex relationships.[3] In Manitoba, Canada, twelve officials empowered to perform marriage ceremonies “quit because they refused to perform same-sex marriages as required by” provincial law.[4] This led to provisions in Canada’s same-sex marriage legislation to insulate religious officials[5] from having to decide to go along or leave.[6] That legislation, however, did not resolve whether others authorized to perform marriages “have the right to choose to follow their religious beliefs.”[7]

In addition to voluntary resignations, firings have also occurred. In the Netherlands, a registrar was dismissed after refusing for religious reasons to solemnize the wedding of a same-sex couple.[8] The registrar was later reinstated by the Commissie Gelijke Behandeling, which enforces that country’s General Equal Treatment Act. As the Commissie explained, insufficient reasons supported the refusal to renew the registrar’s contract since “other public servants were prepared to celebrate same-sex marriages.”[9] In February of 2007, a 70 year-old marriage commissioner in Saskatchewan who refused to marry a homosexual couple, citing his religious beliefs, was forced to defend his decision before the Saskatchewan Human Rights tribunal.[10]

These struggles over whether there is a duty to assist or, conversely, a right to refrain have spilled over to the United States in the wake of decisions from the highest courts of Massachusetts and California recognizing same-sex marriage, Goodridge v. Department of Public Health[11] and In Re Marriage Cases,[12] respectively. On the heels of Goodridge, for example, the chief legal counsel for Massachusetts’ governor told the state’s Justices of the Peace that they must “follow the law, whether you agree with it or not.”[13] Anyone who turned away same-sex couples could be held personally liable under the state's antidiscrimination statute, which provides for penalties up to $50,000.[14]

Clashes over same-sex relationships have also arisen in states that have adopted civil unions.[15] In 2006, the New Jersey Department of Environmental Protection (“Department”) revoked the tax-exemption of the Ocean Grove Camp Meeting Association (“Ocean Grove”), a Methodist ministry, after it refused to allow a same-sex couple to use its boardwalk pavilion for their civil commitment ceremony.[16] The couples denied access to the pavilion also filed suit against Ocean Grove.[17] Thus, the sanction for refusing to assist same-sex couples extended beyond limited civil liability to losing valuable tax-exemptions. Even before New Jersey's decision, bloggers and editorialists argued that states should force churches to marry same-sex couples by threatening to withhold the significant government benefits that churches receive.[18]

These clashes are not confined to disputes over marriage and civil commitment ceremonies. In 2004, , the largest Internet adoption site in the United States, refused to post the profile of a same-sex couple seeking to adopt. told the couple that it “allow[s] only individuals in an opposite-sex marriage to post profiles on the website.”[19] The couple sued, claiming the refusal violated California's antidiscrimination law, which prohibits businesses from “discriminating against customers on a variety of grounds.”[20] The parties subsequently settled the private litigation between them. That settlement required that would not post profiles of Californians “unless the service is made equally available to all California residents qualified to adopt.” Put to the choice to make its services available to all or none, chose to exit the California market.

Healthcare providers have resisted morally-freighted procedures with equal vigor. In December, 2005, the Catholic Action League of Massachusetts urged the state’s Roman Catholic hospitals to defy Massachusetts’ new emergency contraception law.[21] That legislation requires all hospitals, even private ones, to offer the morning-after pill to rape victims.[22] In July, 2004, eleven Alabama nurses resigned positions at state clinics rather than provide emergency contraceptives against their moral convictions.[23] In 2006, a Chicago ambulance service fired a driver after she refused to transport a patient who was seeking an elective abortion.[24]

Although largely new to family law questions, conscientious refusals in healthcare occupy well-trod ground, dating back before the United States Supreme Court’s 1973 decision in Roe v. Wade.[25] In fact, nearly every state in the nation now has carved out a space for medical providers to continue in their professional roles without participating in acts they find immoral. States accomplish this with conscience clauses that authorize individual providers or entities to refuse to participate in certain specified procedures, usually abortion, sterilization, physician-assisted suicide, and, increasingly, the dispensing of emergency contraceptives.[26] Thus, even the very strong constitutional rights to abortion and contraception established in Roe v. Wade and Griswold v. Connecticut[27] have yielded to the decision of others not to facilitate a woman’s reproductive choices.

Before the advent of conscience clauses, however, the result was strikingly different. Although Griswold and Roe established only the right to non-interference by the state in a woman’s contraceptive and abortion decisions,[28] family planning advocates worked strenuously to extend these non-interference rights into affirmative entitlements to another’s assistance. This involved both attempts to force individual institutions to provide controversial services, and to force individual healthcare providers to participate in them. The lever used in efforts to force public as well as private facilities to provide sterilization and abortion services was the receipt of public benefits. As explained below, this argument had considerable success until Congress stepped in with the primogenitor of healthcare conscience clauses, the Church Amendment.[29] That legislation prohibits a court from using receipt of certain federal monies as a basis for making an individual or institution perform an abortion or sterilization contrary to their “religious beliefs or moral convictions.”[30]

As with abortion, it is likely that a stream of litigation is on the horizon designed to resolve competing claims of individuals who want to enter same-sex marriage and those who want to have nothing to do with facilitating this. As the Parliamentary Secretary to the Minister of Finance in Canada, John McKay, commented during the debate on Canada’s same-sex marriage legislation, “Were I a religious official or institution, I would be bracing for an onslaught of legal battering.”[31] McKay appears to have predicted this well. Despite Canada’s statutory accommodations, at least one gay-rights group is already contesting the charity status of religious institutions that refuse to support same-sex marriage. As the group explains, “We have no problem with the Catholic Church or any other faith group promoting bigotry ... [w]e have a problem with the Canadian government funding that bigotry.”[32]

The moral clashes over abortion shortly after Roe v. Wade are eerily reminiscent of the moral clashes now unfolding over same-sex marriage. This experience after Roe suggests not only how litigation is likely to unfold over same-sex marriage, but also how to navigate those clashes.

Roe precipitated a significant demand for abortion. Almost immediately the question arose—do healthcare providers have a duty to provide the abortion that a patient now seeks and to which she has a constitutional right, or can providers simply say “no thank you, not me.” In other words, do providers have the right to refrain from this particular service?

In 1973, when Roe came down, the question of a duty to provide an abortion was a significant one because the overwhelming majority of healthcare institutions were nonprofit, tax exempt facilities, often affiliated with a church.[33] One of the reasons the question arose was because a woman’s right to abortion was established through civil rights litigation, and not legislation. Civil rights litigation is designed to sort out what the rights are between the plaintiff who is suing for access to something, like abortion, and the state that wants to deny or regulate it. But civil rights litigation is not well suited to sorting out how everyone else other than the plaintiff and state are going to have to respond to the new right the plaintiff is receiving. Thus, Roe opened a real can of worms for religious providers, both institutions like the Catholic hospital that did not want to offer abortions, and for individual providers who objected to performing them as well.

Not surprisingly, family planning advocates brought suits designed to test whether there is a duty to assist or a right to refrain. These suits sought essentially to convert the negative right established in Roe to be free of government interference in one’s abortion choice, into a positive entitlement to the assistance of others. These private lawsuits brought against facilities urged that because of the facility’s tax-exempt status, a hospital that refused to perform an abortion acted under “color of state law.” In other words, that the hospital represented a state actor simply because they received a free pass on their taxes from the state.[34]

The first of the suits to use this argument pressed for access to sterilization services shortly before the U.S. Supreme Court’s decision in Roe in 1973, rather than abortion. There, the United States District Court for the District of Montana in Taylor v. St. Vincent’s Hospital enjoined a private, nonprofit, charitable hospital in Billings, Montana, from refusing to perform a tubal ligation.[35] The hospital had prohibited Mrs. Taylor’s physician from surgically sterilizing her during the delivery of her baby by Caesarian section.[36]

Mrs. Taylor brought suit under 42 U.S.C. § 1983, which prohibits entities acting under color of state law from subjecting “any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”[37] In denying the hospital’s motion to dismiss for lack of jurisdiction, “the court stated that ‘the fact that the [hospital received] Hill-Burton Act ... funds is alone sufficient to support an assumption of jurisdiction....’”[38] Hill-Burton funds are federal monies that were made available to hospitals to modernize and construct medical facilities.[39] The hospital’s tax immunity and licensing by the state also established, in the court’s view, a connection between the hospital and the state sufficient to support jurisdiction.[40]

Before the ink could dry on the injunction, Congress stepped in with the Church Amendment.[41] The Church Amendment basically says that litigants cannot bootstrap the receipt of federal grant monies as a way to force what is essentially a private, not-for-profit facility into providing abortions. The Church Amendment protects not only the conscience rights of facilities. It also insulates individual objectors as well.[42] For example, a facility that wants to do abortions cannot punish a doctor that does not want to do them—say, for example, by taking the doctor’s staff privileges away or otherwise subjecting them to censure.

Today, the same arguments about tax exemption are being marshaled to force church affiliated groups, like the Ocean Grove group discussed above, to open their reception halls and boardwalk pavilions to the marriage or commitment ceremonies of same-sex couples. Not surprisingly, many church groups object to that. And many same-sex couples object to being shut out. The zero-sum nature of these clashes is very poignant. In these clashes, both parties cannot win. Ocean Grove’s ability to refuse to provide space for a commitment ceremony irreducibly comes at the expense of the disappointed and inconvenienced couple; and the ability of the couple to demand space for their commitment ceremony from Ocean Grove comes necessarily at the church group’s expense.

Yet we can easily overstate the zero-sum nature of these moral clashes. The United States has had thirty-five years of experience since Roe with navigating an equally deep moral divide over abortion. The one shining lesson from this three decades of experience is that we can find a live-and-let live solutions. The federal government and 47 States have provided a space for healthcare providers to continue in their roles without performing services that they find morally repugnant.[43] These statutes permit objectors to withdraw themselves without risking censure, loss of licensure, or (as with institutions) without jeopardizing their tax exemption.  Now we might argue about whether women today have trouble accessing abortion at the margins,[44] but I think we would agree that the overwhelming majority of women seeking an abortion who have the ability to pay can find a willing provider.

In rare instances, it is possible that permitting a religiously based refusal may create a hardship for the person seeking an abortion—or in this context, for the couple seeking a reception hall for their wedding. When would this occur? It would occur if every provider in town has a religious objection. In my view, we should be loath to give exemptions when we can reasonably foresee the scarcity of providers.

But the abortion example also shows that most difficulties that patients experience in getting a service are not real access issues—as in “No one at all anywhere will provide me an abortion.” Instead, they are information problems—in other words “I have no idea how to find the person who is willing to provide me an abortion.”[45] Many states recently responded to precisely this kind of knowledge gap about access to emergency contraceptives with “information-forcing” rules—that is, instructions to unwilling providers that if they want to refuse, they must provide information to patients about who the willing providers are and how to find them.[46] Information forcing rules allow the person seeking the service to get it without great dislocation, while allowing the unwilling provider to live by their convictions. All of this shows that exemptions—far from being winner takes all accommodations of religious beliefs—can be calibrated to minimize or avoid hardships to the person seeking the service.

Unfortunately, thoughtful exemptions may not avoid hardships in each and every case. There may be the rare case when information forcing rules do not suffice, and we have to chose between religious liberty and the interests of same-sex couples. Imagine, for example, that a same-sex couple is the state on Montana, a million miles from anywhere else, and that there is only one town clerk that can help the couple complete their application for a marriage license. If that clerk refuses to assist the same-sex couple, they are effectively barred from the institution of marriage, to which state law has said they are entitled. In this instance, because a real and palpable hardship would occur, I would argue that the religious liberty of the objector must yield. But outside this rare case, where there are other clerks who would gladly serve the couple, and no one would otherwise lose by honoring the religious convictions of the objector, then I believe we should do so.

The worst possible thing we can do is nothing. Governments will not get to be neutral in these clashes over religious liberty and same-sex marriage —and if they do not weigh in soon in states that recognize same-sex marriage or civil unions, it is likely that we will see a stream of litigation like the United States did after Roe v. Wade designed to resolve the competing claims of individuals who want to enter same-sex marriages and those who want to have nothing to do with facilitating them. And that would be a shame.

Abstract

Emerging Conflicts Between Same-Sex Marriage and Religious Liberty:

Finding a Live-And-Let-Live Solution

by

Professor Robin Fretwell Wilson

Tensions over same-sex marriages and civil unions have erupted in countries that have recognized same-sex relationships. In January, 2006, a European human rights commission concluded that a clergy member’s interests in not performing same-sex marriages must be subordinated to the couple’s “right of access.” A year later in Spain, a powerful, socialist political figure, with the Prime Minister’s backing, threatened to “establish[] a new status [for the Catholic Church], that puts her in her place,” if the Church did not retreat from its opposition to a program teaching children about same-sex relationships. In Manitoba, Canada, twelve officials empowered to perform marriage ceremonies “quit because they refused to perform same-sex marriages as required by” provincial law. In the Netherlands, a registrar was dismissed after refusing for religious reasons to solemnize the wedding of a same-sex couple, but later was reinstated.

Clashes over same-sex relationships have also arisen in jurisdictions that have adopted civil unions. In 2006, the New Jersey Department of Environmental Protection revoked the tax-exemption of a Methodist ministry after it refused to allow a same-sex couple to use its boardwalk pavilion for their civil commitment ceremony. The sanction for refusing to assist same-sex couples extended beyond limited civil liability to losing valuable tax-exemptions.

These moral clashes over same-sex relationships highlight the question of whether there is a duty to assist or, conversely, a right to refrain from facilitating same-sex relationships. Although largely new to family law questions, moral clashes have arisen in healthcare since the United States Supreme Court’s 1973 decision in Roe v. Wade and occupy well-trod ground. This article argues that the experience after Roe suggests not only how litigation is likely to unfold over same-sex relationships, but also how to navigate those clashes.

-----------------------

* Law Alumni Faculty fellow and Proessor of Law, Washington & Lee University School of Law, Lexington, Virginia, USA. Portions of this Article are adapted, with permission, from Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony Picarello, & Robin Fretwell Wilson, ed.s, Rowman & Littlefield Publishers, Inc., 2008).

[1] Emergency contraceptives—like “Plan B” and the “morning after pill”—contain progestins that inhibit or delay ovulation and disrupt embryo transplant and implantation, although the precise mechanism by which they work “is not well understood.” Bartell Drugs, Drug Information and Details, Levonorgestrel, (last visited on Feb. 2, 2006). Some see this as tantamount to abortion. Charisse Jones, Druggists Refuse to Give Out Pill, USA Today, Nov. 8, 2004, at 3A, (last visited April 13, 2008) (discussing the beliefs of some pharmacists that preventing the implantation of a fertilized egg is a form of abortion).

[2] European Union Network of Independent Experts on Human Rights, Opinion No. 4-2005: The Right to Conscientious Objection and the Conclusion by EU Member States of Concordats with the Holy See 14 (Dec. 14, 2005), [hereinafter EU Network Opinion No. 4-2005] (explaining that while individual clergy and clerks may object to participation in same-sex marriage if permitted by law, “it would be unacceptable [for] marriage [to be] unavailable to the couple concerned,” which would result “from the refusal to celebrate a marriage between two persons of the same sex where this institution is recognized,” and concluding that “public authorities should ensure in such circumstances that other officers will be available and willing to celebrate those unions”).

[3] Socialist ideologue threatens Church: Be quiet or we’ll silence you, Catholic News Services, (last accessed April 13, 2008).

[4] Bill Graveland, Alberta Allowing Same-Sex Marriage but Adding Protection to Opponents, Canadian Press, July 12, 2005, (last accessed Aug. 6, 2007).

[5] Although many oppose it, religious leaders are not of a single mind about same-sex marriage. "[T]here are scholars in every major religious tradition that have proposed convincing alternatives to assumed anti-gay readings and traditions." Articles of Faith: Reframing Issues of Religion, Public Policy and the Lesbian, Gay, Bisexual and Transgender Community, Task Force Media, Feb 11, 2005.

[6] Legislative accommodations appeared in both Canada’s federal legislation and its provincial laws authorizing same-sex marriage. See The Civil Marriage Act, 2005 S.C., ch. 33, §3 (Can.) (specifying that under the Canadian Charter of Rights and Freedom, officials of religious groups may refuse to perform marriages that are not in accordance with their religious beliefs and that no person or organization may be sanctioned or deprived of any benefits for exercising their freedom of conscience and religious beliefs or for expressing their belief regarding marriage); Graveland, supra note 4 (observing that “Alberta will allow same-sex marriage but not force ministers … to perform the ceremonies if they don’t want to”).

[7] Two jurisdictions in Canada, Yukon and Alberta, have said that they will not require their civil officials to marry same-sex couples. Memory McLeod, Knights of Columbus aid commissioners who won’t perform gay weddings: Service Club Pledges Support, The Leader-Post, Apr. 17, 2007, (last accessed April 13, 2008); Graveland, supra note 4 (reporting that marriage ministers will also be exempted). Legislation has been introduced in Canada to permit Justices of the Peace to refuse to marry a couple on the basis of religious convictions. John Ibbitson et al., Tories plan to protect same-sex opponents, Globe and Mail, Mar. 10, 2006, BNStory/National/home (last accessed April 13, 2008).

[8] EU Network Opinion No. 4-2005.

[9] Id.

[10] McLeod, supra note 7. Although the commissioner is not a government employee and receives no pay from the government, the complainant asked the tribunal to order him to pay her client $5000 in compensation; the tribunal has yet to issue its decision. Id.

[11] 798 N.E.2d 941 (Mass. 2003).

[12] 183 P.3d 384 (2008).

[13] Katie Zezima, Obey Same-Sex Marriage Law, Officials Told, New York Times, April 26, 2004, at A15.

[14] General Law of Massachusetts, Chapter 151B, Section 5 (providing for civil penalties up to $50,000 when a party commits 2 or more discriminatory practices during a 7-year period preceding a complaint, and for smaller penalties in other instances).

[15] Relationship Recognition for Same-Sex Couples in the U.S., National Gay and Lesbian Task Force, (last visited April 9, 2008)(noting that as of February 22, 2008, 10 states and the District of Columbia gives some relationship recognition for same-sex couples, through domestic partnership, reciprocal beneficiary, or civil union laws).

[16] John Jalsevac, U.S. Christian Camp Loses Tax-Exempt Status over Same-Sex Civil-Union Ceremony, LifeSite News, Sept. 19, 2007, at (last visited April 13, 2008) (reporting that the Department stripped the Ocean Grove Camp Meeting Association of its "tax-exempt status for part of its property”). In February of 2008, the tax assessor for the Township assessed approximately $20,000 in back taxes against Ocean Grove. See Bill Bowman, $20G due in tax on boardwalk pavilion: Exemption lifted in rights dispute, (February 23, 2008), (last visited April 12, 2008).

[17] Harriet Bernstein et al., v. Ocean Grove Camp Meeting Assoc., No. PN34XB-03008 (NJ Dep’t. of Law and Public Safety, filed June 19, 2007) (seeking damages and injunction against religious organization that denied complainants use of wedding pavilion for civil union ceremony). In response to those complaints, Ocean Grove filed suit in federal court seeking a declaration of its rights in regards to the pavilion. Jill P. Capuzzo, Church Group Complains Of Pressure Over Civil Unions, N.Y. Times, Aug. 14, 2007, at B4. The federal court dismissed the suit in light of pending state litigation, which offered an ample opportunity for Ocean Grove “to raise its constitutional challenges.” Camp Meeting Ass'n Of The United Methodist Church v. Papaleo, No. 07-3802, 2007 WL 3349787 (D. N.J. 2007). In January of 2008, Ocean Grove sought to have the state-level complaints dismissed, without success. See Robert Schwaneberg, N.J. Rejects Request to Close Probe into Civil Unions Flap, Pew Forum on Religion and Public Life, (last visited April 12, 2008)("The association argued that forcing it to use its property for civil unions would violate its constitutional freedom of religion....It was the Methodist group's second unsuccessful attempt to bring the investigation to a quick end.").

It is not clear how many same-sex couples are “having problems with civil unions in New Jersey,” although six complaints concerning civil unions “were filed with the state Division of Civil Rights,” two of which involved Ocean Grove. MICHELLE J. LEE, One year later, N.J. civil unions stuck in “second-class status,” PressofAtlantic (February 23, 2008), (last visited April 12, 2008).

[18] Anton N. Marco, Same-Sex “Marriage:” Should America Allow “Gay Rights” Activists to Cross The Last Frontier?, (last visited Feb. 2, 2006). Scholars also worry about the implications of same-sex marriage for religious freedom. See Mary Ann Glendon, Editorial, For Better or for Worse?, Wall St. J., Feb. 25, 2004, at A14.

[19] Butler v. Adoption Media, LLC, 486 F. Supp. 2d 1022, 1026 (N.D. Cal. 2007).

[20] Unruh Civil Rights Act, CAL. CIV. CODE §§ 51, 51.5 (2006); Transcript of Proceedings, United States District Court, Northern District of California, Case No. C04-0135 PJH (JCS) (May 15, 2007).

[21] Health – Emergency Contraception, Broadcast News, Dec. 14, 2005, 2005 WL 20105347.

[22] Mass. Gen. Laws Ann. ch. 111, § 70E(o) (West Supp. 2006).

[23] Julie Cantor & Ken Baum, The Limits of Conscientious Objection: May Pharmacists Refuse to Fill Prescriptions for Emergency Contraception?, 351 New Eng. J. Med. 2008, 2012 (2004).

[24] Rob Stein, For Some, there is No Choice, Washington Post, July 16, 2006 A06, (last accessed April 13, 2008).

[25] 410 U.S. 113 (1973).

[26] See Robin Fretwell Wilson, Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context, Appendix, in Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony Picarello, & Robin Fretwell Wilson, eds, Rowman & Littlefield Publishers, Inc., 2008).

[27] 381 U.S. 479, 486 (1965); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

[28] Douglas Kmiec, Same-Sex Marriage and the Coming Antidiscrimination Campaigns Against Religion in Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson, eds., 2008).

[29] 42 U.S.C.A. § 300a-7 (West 2003).

[30] Id.

[31] Liberal MPs Warn Parliament on Coming Religious Persecution from Liberal Gay "Marriage", Lifesite, Mar. 22, 2005, (last accessed April 13, 2008).

[32] Alex Hutchinson, Gay advocates fight churches' charity status Institutions fear losing tax breaks if the oppose same-sex unions; Rightly so, gay-rights group says, The Ottawa Citizen, June 12, 2005, (last accessed April 13, 2008).

[33] See Katherine A. White, Note, Crisis of Conscience: Reconciling Religious Health Care Providers’ Beliefs and Patients’ Rights, 51 Stan. L. Rev. 1703, 1703 (1999).

[34] 42 U.S.C. § 1983 (2000).

[35] See 369 F. Supp. 948, 950 (D. Mont. 1973) (noting the court’s injunction, which was ordered Oct. 27, 1972).

[36] Id. at 949.

[37] 42 U.S.C. § 1983 (2000).

[38] See H.R. Rep. No. 93-227 (1973), as reprinted in 1973 U.S.C.C.A.N. 1464, 1473 (discussing the preliminary injunction granted by the District Court of Montana in Taylor).

[39] Hospital and Medical Facilities Amendments of 1964, Pub. L. No. 88-443, 78 Stat. 447 (codified at 42 U.S.C. § 291).

[40] See H.R. Rep. No. 93-227, supra note 51, at 1473 (describing the district court’s finding of “two other factors ... that established a connection between the hospital and the State sufficient to support jurisdiction”).

[41] 42 U.S.C.A. § 300a-7 (West 2003). The Church Amendment provided that:

(b) The receipt of any grant, contract, loan, or loan guarantee under the [act that created the Hill-Burton funds and other acts] by any individual or entity does not authorize any court or any public official or public authority to require—

(1) such individual to perform or assist in the performance of any sterilization procedure or abortion if [it] would be contrary to his religious beliefs or moral convictions; or

(2) Such entity to—

(A) make its facilities available for the performance of any sterilization procedure or abortion if [it] is prohibited by the entity on the basis of religious beliefs or moral convictions, or

(B) provide any personnel for [such services] if [their performance] would be contrary to the religious beliefs or moral convictions of such personnel.

[42] Specifically, the Church Amendment provided that:

(c) No entity which receives [certain grant, contract, loan, or loan guarantees] may—

(1) discriminate in the employment, promotion, or termination of employment of any physician of other health care personnel, or

(2) discriminate in the extension of ... privileges to [them], because he performed ... a lawful sterilization procedure or abortion, [or] refused to perform [one due to] his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions.

Id.

[43] See Robin Fretwell Wilson, Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context, Appendix, in Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony Picarello, & Robin Fretwell Wilson, eds, Rowman & Littlefield Publishers, Inc., 2008).

[44] See Robin Fretwell Wilson, Essay: The Limits of Conscience: Moral Clashes over Deeply Divisive Healthcare Procedures, 34 AM. J. OF LAW & MED. 31 (2008).

[45] Id.

[46] For example, Illinois requires pharmacies that do not carry emergency contraceptives to post a sign directing patients to other pharmacies that do. See 68 Ill. Admin. Code 1330.91(k) (2006).

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