Here are my nominations for the 2009 Top Ten Developments in Church-State Separation/ Free-Exercise of Religion. The choices are based on the long-range implications of the developments on legal doctrines and on future of relations between government and religion. Some of this year's top picks continue trends selected last year. (2008 Top 10.) Others reflect new concerns. I am sure that some readers will disagree with the picks, so I invite your comments. Most of these developments were reflected in a number of Religion Clause postings over the year. Links are to representative posts on the issue.There are at least two other Top 10 lists published this month on religion related stories. You may find it interesting to compare their picks, many of which differ a good deal from mine, though they were using somewhat different criteria. They are Don Byrds' Top 10 Religious Liberty Stories of 2009; and Religion Newswriters Top 10 Religion Stories.
1. U.S. Catholic bishops are at increasing odds with President Obama over abortion. Very public disputes, sometimes splitting the Catholic community, erupted over Notre Dame's award of an honorary degree to Obama and over the USCCB's insistence on strict language in health care reform bills to limit abortion coverage.
2. Conservative Christian groups mount extensive but unsuccessful attempt to prevent passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.
3. The Freedom From Religion Foundation becomes a major player in pressing for church-state separation by challenging a wide variety of practices, from sectarian prayers at city council meetings, to the tax code's parsonage allowance, to engravings at the U.S. Capitol Visitor Center.
4. The Rifqa Bary case requires Florida and Ohio courts to become involved in run-away teenager's claim that her Muslim father threatens her life because of her conversion to Christianity.
5. U.S. Supreme Court rules that a Utah city can refuse to allow the religious group, Summum, to put up a monument containing its "Seven Aphorisms" in a public park, even though a 10 Commandments monument and other monuments are already there.
6. Britain's new Supreme Court holds that a Jewish school's admissions policy using the traditional Orthodox definition of who is a Jew amounts to ethnic, and therefore racial, discrimination.
7. Courts around the country decide disputes over ownership of property after numerous conservative Episcopal parishes move to Anglican affiliations.
8. South Carolina's attempt to issue state-sponsored "I Believe" license plates is ruled a violation of the Establishment Clause.
10. A Utah trial court rejects a settlement proposed by Utah's Attorney General in the complicated attempt to reform the FLDS United Effort Plan Trust, while the estate of a deceased leader of the polygamous FLDS Church seeks control of the $120 million trust.
The Supreme Court of Montana vacated a trial judge’s ruling that the Constitution of Montana prohibited assisted suicide for the terminally ill–but construed the state’s living will law as permitting doctors to prescribe lethal overdoses if the patient self administers. This is odd because that approach was barely addressed, and it would seem to me that a motion for reconsideration is in order so this approach can be more fully briefed. From the conclusion of the majority opinion:
In conclusion, we find nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy. The “against public policy” exception to consent has been interpreted by this Court as applicable to violent breaches of the public peace. Physician aid in dying does not satisfy that definition. We also find nothing in the plain language of Montana statutes indicating that physician aid in dying is against public policy. In physician aid in dying, the patient—not the physician—commits the final death-causing act by self-administering a lethal dose of medicine.
Furthermore, the Montana Rights of the Terminally Ill Act indicates legislative respect for a patient’s autonomous right to decide if and how he will receive medical treatment at the end of his life. The Terminally Ill Act explicitly shields physicians from liability for acting in accordance with a patient’s end-of-life wishes, even if the physician must actively pull the plug on a patient’s ventilator or withhold treatment that will keep him alive. There is no statutory indication that lesser end-of-life physician involvement, in which the patient himself commits the final act, is against public policy. We therefore hold that under § 45-2-211, MCA, a terminally ill patient’s consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician when no other consent exceptions apply.
Like I said: Very odd–particularly since in Vacco v. Quill, the United States Supreme Court ruled unanimously that there is relevant and legal distinction between removing unwanted life support and assisting suicide.
The good news is that it isn’t a constitutional right but permitted by the Court’s construction of a statute (despite that the authors of the legislation almost surely never intended advance directives to apply to assisted suicide). And since the analogy is to withdrawing life support, it will be harder to expand the category of people to whom doctors can legally prescribe without running afoul of the homicide statutes. Best of all, because it is statutory, the law can be changed or clarified.
The bad news is that the case seems to accept “aid in dying” as a legitimate medical procedure, and indeed one in which the physician is less involved in a patient’s death than when he or she withdraws life support. But we are generally not talking about patients on life support. Thus, this invented approach–again that was never argued one way or the other before this court as far as I know–will now be attempted by Compassion and Choices in other states.
Let us hope this matter is reconsidered to allow full briefing on the point. Absent that, let us hope that the Montana Legislature clarifies the law as not applying to prescribing lethal doses for suicide.
Happy New Year.