IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF LINCOLN

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AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON, INC.,
PLANNED PARENTHOOD OF THE COLUMBIA-WILLAMETTE, INC., OREGON DEATH WITH DIGNITY LEGAL DEFENSE AND EDUCATION CENTER, AND NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE, INC.

Armatta v. Kitzhaber, 327 Or. 250, 959 P.2d 49 (1998)
Baer v. City of Bend, 206 Or. 221, 292 P.2d 134 (1956)
Barghout v. Bureau of Kosher Meat & Food Control, 66 F.3d 1337 (4th Cir. 1995)
Billings v. Gates, 323 Or. 167, 916 P.2d 291 (1996)
Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (1994)
Bryant v. Thompson, 324 Or. 141, 922 P.2d 1219 (1996)
Cantwell v. Connecticut, 310 U.S. 296 (1940)
City of Portland v. Thornton, 174 Or. 508, 149 P.2d 972 (1944)
Cooper v. Eugene School District No. 4J, 301 Or. 358, 723 P.2d 298 (Or. 1986),... appeal dismissed 480 U.S. 942 (1987)
County of Allegheny v. ACLU, 492 U.S. 573 (1989)
Dickman v. School District No. 62C, 232 Or. 238, 366 P.2d 533 (1961)
Employment Division v. Rogue Valley Youth for Christ, 307 Or. 490, ... 770 P.2d 588 (1989)
Eugene Sand & Gravel v. City of Eugene, 276 Or. 1007, 723 P.2d 298 (1976)
Everson v. Board of Educ., 330 U.S. 1 (1946)
Griest v. Phillips, 322 Or. 281, 906 P2d 789 (1995)
Jehovah’s Witnesses v. Mullen, 214 Or. 281, 330 P.2d 5 (1958), appeal dismissed ... 359 U.S. 436 (1959)
Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982)
Lemon v. Kurtzman, 403 U.S. 602 (1971)
Lowe v. City of Eugene, 254 Or. 518, 463 P.2d 360 (1969)
McIntire v. Forbes, 322 Or. 426, 909 P.2d 846 (1996)
Meltebeke v. Oregon Bureau of Labor and Industries, 322 Or. 132, 903 P.2d 351 (1995)
Newport Church of the Nazarene v. Hensley, 161 Or.App. 12, 983 P.2d 1072 (1999)
Oregon v. Rajneeshpuram, 598 F. Supp. 1208 (D. Oregon 1984)
Permoli v. First Municipality of New Orleans, 44 U.S. (3 How) 589, 610, (1845)
Salem College & Academy, Inc. v. Employment Division, 298 Or. 471, ... 695 P.2d 25 (1985)
School District of Abington Tp., Pa. v. Schempp, 374 U.S. 203 (1963)
Smith v. Employment Division, 301 Or. 209, 721 P.2d 445 (1986), vacated, ... 485 U.S. 660, on remand, 307 Or. 68, 763 P.2d 146 (1988), rev’d, 494 U.S. 872 (1990)
State ex. rel Juv. Dept. v. Rogers, 314 Or. 114, 836 P.2d 127 (1992)
State v. Atkinson, 298 Or. 1, 688 P.2d 832 (1984)
State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982)
State v. Cookman, 324 Or. 19, 920 P.2d 1086 (1996)
State v. Scharf, 288 Or. 451, 605 P.2d 690 (1980)
Sterling v. Capp, 290 Or. 611, 625 P.2d 123 (1981)
Stranahan v. Fred Meyer, Inc. 331 Or. 38, 2000 WL 1292622 (Sept. 14, 2000)
U.S. Bank of Portland v. Snodgrass, 202 Or. 530, 275 P.2d 860 (1954)

ORS 255.012
ORS 435.475
ORS 440.325
ORS 440.347
ORS 440.375
ORS 440.395
ORS 65.001

Charles A. Carey, ed, The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, 468 (1926)
David H. Nichols & Daniel L. Clarke-Pearson, Gynecological, Obstetric, and Related Surgery 626 (2d ed. 2000)

This case involves the validity of a proposed Operating Agreement between the Board of Pacific Communities Health District (the “District”), a political subdivision of the state of Oregon, and the Providence Health System-Oregon (“Providence”), a Roman Catholic health care system. The Operating Agreement effectively delegates to Providence the District’s governmental responsibility for providing health care services to its residents. At the same time, the Operating Agreement requires the District or a selected member of the District’s Board to oversee, guide, and facilitate Providence’s provision of health care services.

Providence, having intervened in these proceedings, has filed a summary judgment motion seeking to establish the legality of the Operating Agreement. Defendants have filed a cross-motion for summary judgment seeking to establish that the Operating Agreement violates the Oregon and United States Constitutions. Amici submit this brief in support of Defendants’ cross-motion. As explained more fully below, amici believe the Operating Agreement will result in a violation of the religious freedom guarantees of both the Oregon and United States Constitutions.

The interests of amici curiae are described in the motion to appear as amici curiae. American Civil Liberties Union Foundation of Oregon, Inc. (“ACLU of Oregon”) is an affiliate of the American Civil Liberties Union, a national organization established to protect and promote the rights and liberties guaranteed by the federal and state constitutions. Planned Parenthood of the Columbia-Willamette, Inc. (“PPCW”) is a non-profit, non-partisan corporation. Its mission is to provide, promote and protect access to reproductive healthcare in Oregon. The Oregon Death With Dignity Legal Defense and Education Center (“Center”) is a non-profit, non-partisan corporation founded to provide information, education, research and support for the preservation and implementation of the Oregon Death With Dignity law as a stimulus to improved end-of-life care and a final option for dying individuals. The Oregon affiliate of the National Abortion and Reproductive Rights Action League, Inc. (“Oregon-NARAL”) is a non-profit corporation. Its mission is to protect and preserve the right to choose while promoting policies and programs that improve women's health and make abortion less necessary.

The District is a municipal corporation organized pursuant to ORS 440.320 for the purpose of providing health care services within a specified geographic area. As such, it is a political subdivision of the State of Oregon. The District’s powers are exercised by a Board of Directors whose members are elected at a public election, see ORS 440.325, ORS 440.347 and ORS 255.012-255.022, and whose meetings are subject to Oregon’s Public Meetings Act. ORS 192.610. The District has the authority to, and does in fact, assess, levy, and collect taxes and issue public bonds to accomplish its purposes. ORS 440.375; ORS 440.395. The District owns and operates a 48-bed general hospital and related health care facilities in Newport, Oregon, known as Pacific Communities Hospital. Providence’s Memorandum, Exhibit 1, at 1. The hospital in Newport is the only hospital in the District. See Defendants’ Exhibits in Support of Cross-Motion for Summary Judgment (“DXSJ”), at 59 and 235-36. Oregon law mandates that public hospitals, such as those operated by the District, may not “adopt a policy of excluding or denying admission to any person seeking termination of a pregnancy.” ORS 435.475(3).

Providence is organized as a non-profit “religious corporation.” Providence’s Memorandum, Exhibit 2 at 2. Under Oregon law, religious corporations are organized “primarily or exclusively for religious purposes.” ORS 65.001(33). Providence’s articles of incorporation allow it, inter alia, to operate hospitals, nursing homes, and other health care facilities, and “[t]o do any and all other things in furtherance of these purposes which are consistent with . . . the teachings and laws of the Roman Catholic Church and the Ethical and Religious Directives for Catholic Health Care Facilities as promulgated by the local bishop.” Providence’s Memorandum, Exhibit 2 at 1.

As a non-profit corporation, Providence can have “members” as opposed to shareholders. ORS 61.091. The sole member of Providence is the “Sisters of Providence – Mother Joseph Province.” Providence’s Memorandum, Affidavit of Mark May, at 2. The Sisters of Providence (“Sisters”) is a group of Roman Catholic women that is, in the words of Providence, “assuredly a Catholic Community.” Providence Memorandum, at 4. Providence is, in its words, “assuredly a Catholic health care system.” Providence’s Memorandum, at 4. According to its Statement of Core Values, it is “guided by fundamental values that characterized the life and teaching of Jesus Christ.” Providence’s Memorandum, Exhibit 5, at 2.

As a Catholic health care provider, Providence is bound by the “Ethical and Religious Directives for Catholic Health Services” (“Directives”), created by the National Conference of Bishops. Providence’s Memorandum, at 5. The Directives, which govern how Providence will perform its obligations under the Operating Agreement, are intended to “promote and protect the truths of the Catholic faith as those truths are brought to bear on concrete issues in health care.” Providence’s Memorandum, Exhibit 3, at 5. Pursuant to the Directives, all Catholic health care institutions “must be animated by the Gospel of Jesus Christ and guided by the moral tradition of the church.” Providence’s Memorandum, Exhibit 3, at 10 (Directive 1). Compliance with the Directives is required not only by Catholic hospitals and clinics, but also by the medical service providers providing services at each:

“Catholic health care services must adopt these Directives as policy, require adherence to them within the institution as a condition for medical privileges and employment, and provide appropriate instruction regarding the Directives for administration, medical and nursing staff, and other personnel.” Providence’s Memorandum, Exhibit 3, at 10 (Directive 5).

The Directives further mandate the involvement of religious officials in certain management decisions by Providence. For example, should Providence, operating the District’s hospital or clinics, desire to enter into a partnership with another health care provider, such a partnership may well have to be approved by the diocesan bishop:

Any partnership that will affect the mission or religious and ethical identity of Catholic health care institutional services must respect church teaching and discipline. Diocesan bishops and other church authorities should be involved as such partnerships are developed, and the diocesan bishop should give the appropriate authorization before they are completed. The diocesan bishop’s approval is required for partnerships sponsored by institutions subject to his governing authority; for partnerships sponsored by religious institutes of pontifical right, his nihil obstat should be obtained. Providence’s Memorandum, Exhibit 3, at 29-30 (Directive 68).[1]

Providence’s adherence to the Directives also has significant ramifications for the availability of services at its medical facilities. Because of Church teachings, for example, “Catholic health institutions may not promote or condone contraceptive practices. . . .” Providence’s Memorandum, Exhibit 3, at 23 (Directive 52). The “direct sterilization of either men or women, whether permanent or temporary,” is also forbidden at facilities operated by Providence. Providence’s Memorandum, Exhibit 3, at 23 (Directive 53). And Providence cannot, consistent with the Directives, provide many kinds of assisted conception, or infertility treatments. Providence’s Memorandum, Exhibit 3, at 21-22 (Directives 40 and 41).

Abortion, defined broadly as “every procedure whose sole immediate effect is the termination of pregnancy before viability . . . which, in its moral context, includes the interval between conception and implantation of the embryo,” is never permitted at a Providence facility. Providence’s Memorandum, Exhibit 3, at 22 (Directive 45). Directive 36 forbids Providence even from administering emergency contraception to the victim of a rape if the rape produced a fertilized egg:

“A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medications that would prevent ovulation, sperm capacitation, or fertilization. It is not permissible, however, to initiate or to recommend treatments that have as their purpose or direct effect the removal, destruction, or interference with the implantation of a fertilized ovum.” Providence’s Memorandum, Exhibit 3, at 19.

Church teachings also dictate how Providence treats patients who are near death. Because “[i]n the face of death . . . the Church witnesses to her belief that God has created each person for eternal life,” Providence’s Memorandum, Exhibit 3, at 24, “Catholic health care institutions may never condone or participate in euthanasia or assisted suicide in any way.” Providence’s Memorandum, Exhibit 3, at 26 (Directive 60). The wishes of a patient concerning the withdrawal of life-sustaining procedures may be followed only if they are not “contrary to Catholic moral teaching.” Providence’s Memorandum, Exhibit 3, at 26 (Directive 59). “Living wills” are likewise not honored if contrary to Catholic teaching. Providence’s Memorandum, Exhibit 3, at 17 (Directive 24). Directive 25, which deals with the designation of another to make health care decisions in the event the patient loses the capacity to make such decisions, makes clear that “decisions by the designated surrogate should be faithful to Catholic moral principles and to the person’s intentions and values, or if the person’s intentions are unknown, to the person’s best interests.” Providence’s Memorandum, Exhibit 3, at 18. Directive 28 further states that “[t]he free and informed health care decision of the person or the person’s surrogate is to be followed so long as it does not contradict Catholic principles.” Providence’s Memorandum, Exhibit 3, at 18.

The Operating Agreement provides for a 29-year “cooperative effort” between Providence and the District “in which Providence is responsible for local health care services [at the public hospital and clinics] and the District provides the facilities in which that can occur and monitors the performance by Providence of its duties under the Agreement.” Providence’s Memorandum, Exhibit 1, at 1-2. The name of the public hospital and clinics operated by Providence will be a combination of the names of the District and Providence (“Providence Pacific Communities Hospital”), “reflect[ing] the cooperative nature of th[e] Agreement.” Providence’s Memorandum, Exhibit 1, at 4.

As set forth in an exhibit to the Operating Agreement, the vision of the District remains that “every resident of our district will . . . have ready access to a continuum of healthcare and wellness services,” and Providence’s mission remains to “continu[e] the healing ministry of Jesus in the world of today.” Providence’s Memorandum, Exhibit 1, at Exhibit C. The Operating Agreement expressly provides that each party will perform its duties in a manner “consistent with the party’s philosophy, mission, policies, and values.” Providence’s Memorandum, Exhibit 1, at 29. It also specifies that Providence may terminate the Agreement if at any time “Providence is required to operate the [public hospital and clinics] in a manner that is not consistent with the philosophy, mission, policies, and values of Providence . . . .” Providence’s Memorandum, Exhibit 1, at 56-57.

The Operating Agreement calls for the transfer of the District’s current assets and liabilities to Providence. Providence’s Memorandum, Exhibit 1, at 4-5. Providence is to be responsible for the operation of the public health care facilities, receiving the income from its operation and paying all expenses. Providence’s Memorandum, Exhibit 1, at 29-30. The District will retain all long-term assets and liabilities and restricted funds (such as its general expansion bonded debt fund), including ownership of all of its real property. Providence’s Memorandum, Exhibit 1, at 6. The Operating Agreement allows Providence to use all of the District’s real property with no payment of rent save its performance of obligations under the Operating Agreement such as the operation of the public hospital and facilities and the investment of one million dollars in new diagnostic and therapeutic capabilities. Providence’s Memorandum, Exhibit 1, at 8. In the event of termination of the Operating Agreement, the then current assets and liabilities associated with Providence’s operation of the health care system will be returned to the District. Providence’s Memorandum, Exhibit 1, at 5, 58.

The Operating Agreement requires the ongoing involvement of the District in the provision of public health care services by Providence. Specifically, the District is required to

1. Receive and review reports and information concerning the delivery of health care services in the District . . . ;

5. Review and approve all master site development and facility plans/projects created by Providence involving expenditures in excess of $25,000 . . . . Providence’s Memorandum, Exhibit 1, at 14-15.

In addition, the District must (1) use its best efforts to maintain its operating tax levy in order to fund services by Providence; (2) maintain primary responsibility for financing all master site development and capital construction and improvements and use its best efforts to obtain elector authorization to issue general obligation bonds to help meet that obligation; (3) develop capital and operating budgets for District operations exclusive of the operation of the property leased by Providence; (4) refrain from offering healthcare services offered by Providence in the Service Area; and (5) allocate to Providence virtually all of the funds its receives from its property tax levy and give “due consideration” to supplemental budget requests made by Providence for “Special Services.” Providence’s Memorandum, Exhibit 1, at 21-22; 43. At the end of each three month period of the fiscal year, Providence must submit an accounting of its expenses incurred for special services approved by the District and provided by Providence, and the District is required to reimburse Providence for those expenses within thirty days. Providence’s Memorandum, Exhibit 1, at 45.

The Operating Agreement further designates the “Central Coast Service Area” (hereinafter “Service Area”), comprised of the District’s service area plus any areas in which the District provides services pursuant to intergovernmental agreements. Providence’s Memorandum, Exhibit 1, at 3. Under the Operating Agreement, Providence will be required to establish the Central Coast Service Area Community Council (“Community Council”) to provide “community based leadership and oversight of the health care operations within the District.” Providence’s Memorandum, Exhibit 1, at 10. The Community Council will consist initially of one member of the District’s Board, selected by the District’s Board, and ten members selected by Providence from a list of nominees proposed by the District’s Board. Providence’s Memorandum, Exhibit 1, at 13. After the initial establishment of the Community Council, the Community Council itself will nominate future Council members, with the proviso that at all times one member of the Community Council must be appointed by the District Board Chair. Providence’s Memorandum, Exhibit 1, at 13. The Operating Agreement also provides that “the District will be invited to designate one District Board member to serve as a voting member on each standing and ad hoc committee of the Community Council.” Providence’s Memorandum, Exhibit 1, at 14. The Community Council is required to “operate in accordance with the policies, mission and values of Providence.” Providence’s Memorandum, Exhibit 1, at 10.

The Operating Agreement vests the Community Council with inter alia the following responsibilities:

1. Provid[ing] oversight of the quality management and improvement programs for the Central Coast Service Area consistent with licensing and external accrediting organization requirements . . . and the policies of Providence and the District;

2. Provid[ing] oversight and approval of all provider credentialing . . . in accordance with the Medical Staff Bylaws, Rules and Regulations of the Hospital;

3. Review[ing] and approv[ing] amendments to the Medical Staff Bylaws, Rules and Regulations . . . ; [and]

4. Tak[ing] appropriate action on all Medical Staff issues presented . . . . Providence’s Memorandum, Exhibit 1, at 11-12.

In addition, the Community Council will “provide advice, counsel and direction” in areas such as relationships with the community, the assessment of community health service needs “consistent with the policies of Providence and the District,” facility operations and financial performance, and the selection, evaluation and termination of the Service Area’s Chief Executive. Providence’s Memorandum, Exhibit 1, at 12-13. The functions delegated to the Community Council from Providence’s governing board “shall not be eliminated or substantially diminished without the prior written approval of the District.” Providence’s Memorandum, Exhibit 1, at 9.

Three of Oregon’s constitutional provisions are directly implicated by the Operating Agreement: the “establishment” clause, found in Article I, Section 5, and the “free exercise” or “freedom of conscience” clauses found in Article I, Section 2 and 3. In its brief on Summary Judgment, Providence devotes roughly one paragraph to the Oregon Constitution’s religious freedom provisions, arguing that no independent analysis of state constitutional claims is necessary because “the Oregon Supreme Court has followed the interpretations of the United States Supreme Court.” Providence’s Memorandum at 26. Amici submit that this is a wholly incorrect reading of Oregon law.

For more than 20 years, the Oregon Supreme Court has made clear that an initial and independent analysis of Oregon constitutional provisions must be undertaken before a review of comparable federal provisions becomes appropriate. E.g., State v. Scharf, 288 Or. 451, 605 P.2d 690 (1980). In so holding, the Oregon Supreme Court has repeatedly stressed that our Constitution provides broader protection to rights of religious freedom than does the federal Constitution. E.g., Cooper v. Eugene School District No. 4J, 301 Or. 358, 723 P.2d 298 (Or. 1986), appeal dismissed 480 U.S. 942 (1987).

Today, the structure for the independent analysis mandated by the Oregon Supreme Court is referred to as the Priest test, first articulated by the Supreme Court in Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992).[2] Under the Priest test, this Court must review the specific wording of the constitutional provisions at issue, the case law surrounding them, and the historical circumstances that led to their creation. The application of these tests to the Operating Agreement makes it clear that, for the numerous reasons set forth below, the Operating Agreement violates Article I, Section 2, 3, and 5.

Moreover, even if the federal constitutional analysis was the only test this Court should apply – as argued by Providence – the Operating Agreement could not survive a challenge under the First Amendment to the United States Constitution, see infra Section V. By delegating to Providence, a religious organization, the public function of providing health care services to District residents, and by establishing an ongoing partnership between the District, a governmental body, and Providence, a religious organization, in which the District oversees and facilitates Providence’s provision of public health care, the Operating Agreement assigns a governmental power to a religious body, creates both an actual and a symbolic fusion of government and religion, and places the power and prestige of the government behind a particular religious belief, all in violation of the First Amendment of the United States Constitution.

For all of these reasons, amici submit that summary judgment should therefore be granted in favor of Defendants.

Commonly, constitutionally-based religious freedom rights exist in two forms – the right to be free from the state-sponsored establishment of religion, and the right to the free exercise of religion (or the exercise of no religious beliefs at all). As a subset of the prohibition on the establishment of religion, there is generally a constitutional requirement that government not engage in excessive entanglement with religious organizations.

The First Amendment to the United States Constitution has both establishment and free exercise guarantees, providing “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” Each of these concepts also find reference in the Oregon Constitution. Article I, Section 5 of the Constitution contrasts distinctly from the First Amendment, and is a strict establishment clause that mandates the complete economic separation of religion and government:

Two sections of the Oregon Constitution protect the free exercise of religion in a manner more expansively than the First Amendment. Article I, Sections 2 and 3 provide as follows:

Since the text of the First Amendment specifically only applies to “Congress,” for more than a century and a half, this country’s jurisprudence left the states as the guarantors of religious freedom for their citizens. In Permoli v. First Municipality of New Orleans, 44 U.S. (3 How) 589, 610, (1845), the United States Supreme Court held that the federal constitution did not protect the religious liberties of state citizens from encroachment by state legislatures. It was not until 1940 that the Court applied the free exercise clause of the First Amendment to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296 (1940).

States stepped into this breach by enacting their own constitutional provisions respecting religious freedom. Article 1, Sections 2, 3 and 5 are based upon the Indiana Constitution of 1851, not the federal constitution. Lowe v. City of Eugene, 254 Or. 518, 546-47, 463 P.2d 360 (1969). The only available account of the Constitutional Convention debates leading up to the adoption of the Oregon Constitution relies exclusively on newspaper reports. Charles A. Carey, ed, The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, 468 (1926).

Carey does not record much discussion of Article 1, Sections 2 and 3 at the Oregon Constitutional Convention of 1857. Instead, the framers of the Oregon Constitution primarily focused on what became the establishment clause in Section 5. The original wording of Section 5, first proposed by the Convention’s Committee on the Bill of Rights, would have prohibited the use of public funds for the payment of “any religious services,” without qualification. Id., at 119.[3]

Hector Campbell, the leading opponent of such a broad prohibition, protested that the proposal was an “innovation” that was “unprecedented” in any of the other existing state constitutions, and that it was “a disregard of the injunctions of the New Testament.” Id., at 297. Campbell’s views, however, did not prevail. Matthew Deady, president of the constitutional convention, opposed Campbell on strict separation grounds, arguing that “government shall be separated from churches”:

Lafeyette Grover, the chairman of the Committee on the Bill of Rights, agreed that the strong establishment provisions of Section 5 were unprecedented, but believed they were necessary to obtain “a complete divorce of the church and state”:

Ultimately, the convention changed the wording of Section 5 only slightly, removing “compensation of any religious services” in the first part of the text but prohibiting payment of “religious services” in either house of the Legislative Assembly. Id., at 330. This history shows that the framers of the Oregon Constitution favored a stricter and more explicit separation of church and state than existed in the federal constitution and in other state constitutions of that time.

The little history that does exist on the subject shows that the framers of the Oregon Constitution intended the free exercise provisions of Sections 2 and 3 to be broadly construed to encompass all forms of religious beliefs, including atheism. Convention President Deady spoke in defense of these free exercise provisions, observing that our country “contains persons of all religious denominations as well as non-believers.” Id., at 300. Delegate Waymire’s comments blended both free exercise and establishment concerns, noting that: “The people of this country were composed of every shade of opinion upon the subject of religion, from the half-crazed fanatic to the unbelieving atheist. And we had no right to compel by law the support of any from the pockets of all. . . .” Id., at 301.

Prior to 1985, questions of establishment and free exercise only occasionally arose in the Oregon Supreme Court, with the Court holding without much analysis that Sections 2, 3 and 5 of Article I should be construed identically to the First Amendment. See Jehovah’s Witnesses v. Mullen, 214 Or. 281, 307-33, 330 P.2d 5 (1958), appeal dismissed 359 U.S. 436 (1959); Baer v. City of Bend, 206 Or. 221, 227-35, 292 P.2d 134 (1956); U.S. Bank of Portland v. Snodgrass, 202 Or. 530, 545-46, 275 P.2d 860 (1954); City of Portland v. Thornton, 174 Or. 508, 512-13, 149 P.2d 972 (1944). The notable exception to this pattern was Dickman v. School District No. 62C, 232 Or. 238, 245-61, 366 P.2d 533 (1961), where the Supreme Court considered whether the furnishing of free textbooks to students enrolled in parochial schools violated Article I, Section 5. The Court noted only that

Acknowledging that the United States Supreme Court in Everson v. Board of Educ., 330 U.S. 1 (1946), had upheld a similar statute, the Dickman Court nonetheless held that the textbook statute violated Article I, Section 5 of the Oregon Constitution.

Dickman, though, proved to be a false start, with the Supreme Court returning for a time to analyzing Oregon’s religious freedom guarantees under the structure of federal constitutional analysis. For example, the legal travails of the cross overlooking the City of Eugene showed the Supreme Court analyzing establishment issues under Article I, Section 5 using federal constitutional standards without addressing whether Article I, Section 5 required independent constitutional analysis. The Eugene cases started with Lowe v. City of Eugene, 254 Or. 518, 451 P.2d 117 (1969). Without analyzing the history or language of Article I, Section 5, a plurality of the Court applied the then-current establishment test under the federal constitution – whether a governmental action had a secular legislative purpose and a primary effect that neither advanced nor inhibited religion – and held that “We do not believe that the erection and maintenance of the cross in question amounts to a religious activity which violates the applicable provisions of the Oregon Constitution or the First and Fourteenth Amendments to the United States Constitution. 254 Or. at 529.

On rehearing, the Court reversed itself by adopting the dissenting opinion of the prior case. The dissent had stated that

Once again, the Court conducted no independent analysis of the text or history of Article I, Section 5.

The corporate sponsor of the cross petitioned for a second rehearing, arguing both that Article I, Section 5 could not be considered an establishment clause because of its unusual wording, and that “in limiting its expression to a proscription against spending public ‘money’ on religious institutions, by implication approved of turning over public land to them.” The Court adhered to its opinion on rehearing, describing the purposes behind Article I, Section 5, though failing to enunciate a standard for the application of the clause:

“In discussing the constitutional principle of separation of church and state, this court was not engaged in word-matching between other constitutions and the Oregon Constitution. While neither a specific ‘establishment’ clause nor a ‘credal preference’ clause appears in our state constitution, it is obvious that the founders of this state did not intend to permit the state to sponsor any particular religion. When the draftsmen of the Oregon Constitution provided for the free exercise of religion, they also prohibited the use of public funds to support any preferred religious institution.” Lowe v. City of Eugene, 254 Or. 518, 547, 463 P.2d 360 (1969).

When Eugene voters quickly adopted a charter amendment designating the cross as a war memorial, proponents of the cross sought to set aside the decree that had been issued after the Supreme Court’s second decision on rehearing, producing the fourth Supreme Court decision on the cross, Eugene Sand & Gravel v. City of Eugene, 276 Or. 1007, 723 P.2d 298 (1976). In the meantime, the United States Supreme Court, in Lemon v. Kurtzman, 403 U.S. 602, 612 (1971), had adopted a three-part test for evaluating claims brought under the Establishment Clause. Under the Lemon test, government action having an impact on religion: (1) must reflect a clearly secular legislative purpose; (2) must have a primary effect that neither advances nor inhibits religion (as distinguished from an “incidental” effect); and (3) must “avoid excessive government entanglement with religion.”

In a 4-3 decision, the Oregon Supreme Court upheld the charter amendment. After reciting the Lemon test, the Court held that “we hold that this same test is also appropriate for application in determining whether a law is constitutional under similar provisions of the Oregon Constitution,” without any analysis whatsoever of the text or history of Article I, Section 5. The balance of the Court’s opinion said nothing more about the Oregon Constitution, and the Court failed to discuss or even cite its earlier opinion in Dickman.

Then, in 1985, the legal landscape of Oregon’s religious freedom guarantees firmly and permanently changed with the Oregon Supreme Court’s decision in Salem College & Academy, Inc. v. Employment Division, 298 Or. 471, 484, 695 P.2d 25 (1985). In Salem College, the Employment Division paid unemployment compensation to four former employees of a private inter-denominational Christian school. When the Division sought reimbursement from the school, the school challenged the Division’s actions, citing Sections 2 and 3 of Article I. In analyzing and rejecting the school’s claims, Justice Linde, writing for a unanimous court, rejected an approach that necessarily tied the Court to federal interpretations of the federal bill of rights, instead requiring an independent analysis of the sources, intent and language of the Oregon Constitution:

In 1986, in the span of little more than a month, the Supreme Court decided two religious freedom cases that strengthened the “independent analysis” dictates of Salem College. In Smith v. Employment Division, 301 Or. 209, 721 P.2d 445 (1986), vacated, 485 U.S. 660, on remand, 307 Or. 68, 763 P.2d 146 (1988), rev’d, 494 U.S. 872 (1990), the Court considered the constitutionality of denying a claimant unemployment compensation benefits when the claimant had been discharged for ingesting peyote as a sacrament during a religious ceremony. Conspicuously not citing Eugene Sand & Gravel, the Court applied its Salem College “independent analysis” approach to conclude that the state law disqualifying from unemployment compensation benefits claimants who had committed misconduct did not violate Section 5. The Court found the state law to be neutral on the issue of religion, and that application of the rule did not discriminate on religious grounds. 301 Or. at 215.

Cooper v. Eugene School District No. 4J, 301 Or. 358, 723 P.2d 298 (Or. 1986), appeal dismissed 480 U.S. 942 (1987), involved a public school teacher who challenged the constitutionality of a state statute that prohibited teachers in public schools from wearing religious dress while teaching. The teacher, a Sikh, wanted to wear white clothes and a turban while teaching. Again conspicuously not citing Eugene Sand & Gravel, the Supreme Court applied its “independent analysis” approach to assess whether the state law interfered with the teacher’s free exercise of religion. In so holding, the Court discounted the significance both of seemingly contrary language in past decisions and of its occasional reliance on standards developed by the United States Supreme Court in the context of federal constitutional analysis:

“This court sometimes has treated these guarantees and the First Amendment’s ban on laws prohibiting the free exercise of religion as “identical in meaning,” City of Portland v. Thornton, 174 Or. 508, 512, 149 P.2d 972 (1942); but identity of “meaning” or even of text does not imply that the state’s laws will not be tested against the state’s own constitutional guarantees before reaching the federal constraints imposed by the Fourteenth Amendment, or that verbal formulas developed by the United States Supreme Court in applying the federal text also govern application of the state’s comparable clauses. [citations omitted] What is at issue in a constitutional dispute rarely is what a constitutional text “means” but how to effectuate that meaning in the disputed setting. Judicial formulas or “factors” are not themselves the law but aids to analysis that a court from time to time may employ, rephrase, or replace with a better interpretation of their constitutional source.” 301 Or. at 369-70.

The Court then recited the text of Article I, Sections 2-7, noting that “This court in fact has interpreted the meaning of these guarantees independently, sometimes with results contrary to those reached by the United States Supreme Court.” 301 Or. at 371. Speaking in broad terms, the Court held:

The message of Cooper was one of neutrality on all issues of government involvement with religion. The Court concluded that the statute was not unconstitutional because of the need for neutrality: “[A] rule against such religious dress is permissible to avoid the appearance of sectarian influence, favoritism, or official approval in the public school.” 301 Or. at 373.

The Supreme Court’s emphasis on government neutrality and uninvolvement with religion continued in Employment Division v. Rogue Valley Youth for Christ, 307 Or. 490, 770 P.2d 588 (1989). The Rogue Valley case involves the Employment Division’s challenge to a state statute exempting churches from assessment of unemployment compensation taxes but not exempting religious organizations that were not churches or church-affiliated. Reiterating its Salem College “independent analysis” approach, and again failing to cite Eugene Sand & Gravel, the Court struck down the statute as discriminating between types of religious organizations, holding that “Oregon must treat all religious organizations similarly whether or not they would qualify as churches . . . .” 307 Or. at 497.

Rounding out its religious freedom cases, the Supreme Court held in Meltebeke v. Oregon Bureau of Labor and Industries, 322 Or. 132, 903 P.2d 351 (1995), that a rule of the Bureau of Labor and Industries forbidding discrimination on the basis of religion did not facially violate the religious freedom guarantees of the Oregon Constitution. The Court noted “The term “religion” in the present context commonly includes a lack of such beliefs, as well as a belief-system of faith or worship practiced by a particular sect.” 322 Or. at 143. The Court then expounded at some length on how the free exercise provisions of the Oregon Constitution are broader than their analog in the First Amendment:

Once again, the Court in Meltebeke followed its pattern of basing its decision on the Salem College “independent analysis” approach and failing to even cite, much less discuss, Eugene Sand & Gravel.

The remaining Oregon decision on the religious freedom clauses in Sections 2, 3 and 5 of the Oregon Constitution is Newport Church of the Nazarene v. Hensley, 161 Or.App. 12, 983 P.2d 1072 (1999), in which the Court of Appeals struck down a provision of Oregon’s unemployment compensation statute which exempted from covered employment services performed by a duly ordained, commissioned, or licensed minister of a church. Applying the Salem College test and the specific holding of Rogue Valley, the Court found that the underlying question had “been decided adversely to the Church's position by the Oregon Supreme Court.” 161 Or.App. at 19. Once again, the Court failed to even cite Eugene Sand & Gravel.

As the Oregon Supreme Court has developed and applied its independent analysis approach towards religious freedom issues, it has taken a like approach towards other personal freedoms found in both the Oregon and United States Constitutions. A blow-by-blow account of those developments would be too lengthy for this brief, but suffice it to say that the Supreme Court has undertaken a vigorous independent analysis of a variety of state constitutional provisions ranging from free speech to voting rights. E.g. Stranahan v. Fred Meyer, Inc. 331 Or. 38, 2000 WL 1292622 (Sept. 14, 2000)(Article IV, Section 1); State v. Kennedy, 295 Or. 260, 666 P2d 1316 (1983)(Article I, Section 12, double jeopardy); Hewitt v. SAIF, 294 Or. 33, 653 P.2d 970 (1982)(Article I, Section 20, equal privileges and immunities); State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982) (Article I, Section 9, search and seizure).

As the Court noted in 1992, “For more than a decade, this court has independently construed the provisions of the Oregon Constitution without being controlled by the treatment given to a parallel provision of the federal constitution by the Supreme Court of the United States.” State ex. rel Juv. Dept. v. Rogers, 314 Or. 114, 118, 836 P.2d 127 (1992) (citations omitted). In no case to amici’s knowledge since Eugene Sand & Gravel has the Court simply accepted a federal constitutional test without analysis of the underlying Oregon constitutional provision.

Amici submit that Eugene Sand & Gravel’s use of the three-part Lemon test is no longer good law.[4] In the 24 years since the Supreme Court’s opinion in Eugene Sand & Gravel, the opinion has never been cited or even glancingly referred to by the Supreme Court in the development of its jurisprudence on Oregon’s religious freedom constitutional guarantees.[5] In the meantime, the Supreme Court has specifically and repeatedly held that Oregon courts have an obligation to independently consider, interpret, and apply Oregon constitutional provisions on their own merits before even considering the analysis of analogous provisions in the federal constitution. That Eugene Sand & Gravel entirely failed to engage in such analysis completely undercuts the viability of the decision.[6]

What is the appropriate test for this Court to use in assessing the application of Article I, Sections 2, 3 and 5 to the Operating Agreement? In Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992), the Court articulated the three-part test which must be used to assess and apply Oregon Constitutional provisions: “There are three levels on which that constitutional provision must be addressed: Its specific wording, the case law surrounding it, and the historical circumstances that led to its creation.” In its constitutional decisions in the past decade, the Court has consistently applied the Priest methodology. Armatta v. Kitzhaber, 327 Or. 250, 256, 959 P.2d 49 (1998); Bryant v. Thompson, 324 Or. 141, 146, 922 P.2d 1219 (1996); State v. Cookman, 324 Or. 19, 25, 920 P.2d 1086 (1996); Billings v. Gates, 323 Or. 167, 177, 916 P.2d 291 (1996); McIntire v. Forbes, 322 Or. 426, 436, 909 P.2d 846 (1996); Griest v. Phillips, 322 Or. 281, 296, 906 P2d 789 (1995). It is this structure of analysis this Court must use in assessing the legality of the Operating Agreement under Article I, Sections 2, 3 and 5.

The three-part Priest test starts with the text of the constitutional provision in question. Article I, Section 5 could hardly be more explicit in its ban on the use of governmental money for the benefit of any religious institution: “No money shall be drawn from the Treasury for the benefit of any religeous [sic] or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly.” Parsing this language leads to several questions: (1) Will money be drawn from the treasury of a governmental organization; (2) Will that money be paid to a religious or theological institution; and (3) Will the money be paid for the benefit of the religious or theological institution? In the case before the Court, all three of these questions must be answered in the affirmative.

First, there is a clear transfer of governmental money from the District to Providence. Indeed, the Operating Agreement calls for the transfer of all of the District’s income for a 29-year period of time, save that necessary to fund the District’s non-hospital and clinic functions. During that period of time, the District will be using its taxing authority to collect funds from citizens, and then will give those funds to Providence. Moreover, the Operating Agreement also calls for the transfer of the District’s current assets to Providence and allows Providence to use the District’s real and personal property without the payment of rent. The District will finance Providence’s master site development, preferably by issuing general obligation bonds. Providence’s Memorandum, Exhibit 1, at 21-22, 43. Indeed, much of the District’s obligation under the Agreement can be fairly characterized as providing financial support for the operation of an “assuredly” Catholic health care system that is “animated by the Gospel of Jesus Christ and guided by the moral tradition of the church.” Providence’s Memorandum, Exhibit 1, at 21-22, 43; Exhibit 3, at 10 (Directive 1); Providence’s Memorandum, at 4.

Second, it is clear that the money will be transferred to a religious organization. Providence agrees that it is a religious organization; the Directives, its articles of incorporation, and its statement of Core Values can lead to no other conclusion.

Third, the transfer of money will inure to the benefit of Providence. Even if there were not the common sense notion that Providence would hardly be entering into a 29-year agreement without receiving a benefit from the agreement, there are definite tangible benefits gained by Providence. By expanding into the Central Coast region, the health care network operated by Providence grows into a new market. Providence will gain the use of the District’s property, equipment and facilities to provide health care services to its patients. Providence also gains the benefit of the District’s working capital, its tax levies and bonding ability, and an expanded patient base.

Thus, the text of Article I, Section 5 clearly prohibits the District from entering into the Operating Agreement.

The case law concerning Article I, Section 5 has been discussed extensively above. In summary, that case law strongly calls for the maintenance of absolute separation between governmental entities and religious organizations. In the words of the Supreme Court in Dickman, “the separation of church and state [is] no less important today than it was at the time Article I, Section 5 and its counterpart in other constitutions were adopted. . . . These considerations convince us that the wall of separation in this state must also be kept ‘high and impregnable’ to meet the demands of Article I, Section 5.” Dickman, at 232 Or. at 236.

The Operating Agreement provides no “high and impregnable wall” between church and state; to the contrary, it commingles the activities of church and state in an absolutely impermissible manner. The Operating Agreement entwines the budgets of the District and Providence, it mandates that the District use its taxing authority for the benefit of Providence, it allows Providence to use the District’s property, it turns over the District’s operating capital to Providence, it will leave the District and Providence with joint responsibilities for the maintenance of a health care system, and it requires the District to observe Providence’s religiously-derived health care standards. Any of these, standing alone, would be a sufficient basis to conclude that the Operating Agreement violates Article I, Section 5; taken together, the case for such a violation is compelling.

Moreover, the Oregon Supreme Court has interpreted the religious freedom guarantees of the Oregon Constitution to require the government to maintain neutrality with respect to all faiths. In Salem College, 695 P.2d 25, for example, the Court held that if the state elects to exempt religious schools from paying into the unemployment insurance system, then it cannot, consistent with the Oregon Constitution, exempt one kind of religious school but not another. Id. at 37. To hold otherwise would be to risk “grant[ing] the church the power to determine the school’s doctrine, thereby infringing on the right of citizens to develop, independently, their own set of beliefs as well as discouraging the multiplicity of sects. That the legislature cannot do.” Id. (internal quotations omitted). See also Employment Division v. Rogue Valley Youth for Christ, 307 Or. 490, 770 P.2d 588 (1989) (holding that under Oregon Constitution, state must treat all religious organizations similarly for purposes of paying into unemployment insurance system) (noting that ruling comports with “strong state constitutional policy of neutrality toward religion”).

The Operating Agreement violates this Oregon constitutional policy of neutrality toward religion. By assigning operation of the District’s public health care facilities – indeed, the District’s only health care facilities – to an organization willing to provide solely those services that comport with Catholic doctrine, the Operating System sets up a system that favors practicing Catholics. Those members of the public alone will have access to the array of health care services they believe necessary, afforded to them in a manner consistent with their personal faith. All other residents will have access to a limited subset of services, circumscribed by and afforded in accordance with Roman Catholic doctrine. Those residents will be unable to act according to their personal set of beliefs in intimate and vital matters of their own health. For this reason alone, the Operating Agreement cannot constitutionally go into effect.

As the history of Article I, Section 5 described earlier in this brief shows, there is little room for debate about establishment issues under the Oregon Constitution. Article I, Section 5 is a flat prohibition on the expenditure of any public funds for the benefit of any religious or theological institution. “No money” means “no money,” and by using that language, the framers of Section 5 carried out precisely what Lafayette Grover proposed in the Constitutional Convention, “a complete divorce of church and state.” The framers explicitly intended to enact a separation of church in state in Oregon that was greater than that found elsewhere in the nation; they accomplished that intent with Section 5.

Far from ensuring “a complete divorce of the church and state,” or a wall between government and “the maintenance and administration of religion,” the Operating Agreement firmly enmeshes the government in the administration of a health care system guided by religious principles and defined by religious doctrine. Under the Agreement, the District will, inter alia, receive and review reports concerning the delivery of health care services by Providence, monitor Providence’s performance, review periodic accountings by Providence, reimburse Providence for expenses, and participate on committees overseeing and advising Providence. Such intertwining of church and state is precisely what Section 5 was designed to avoid.

The Operating Agreement delegates to Providence, a religious organization, the public function of providing health care services to District residents. It also establishes an ongoing partnership between the District, a governmental body, and Providence, a religious organization, in which the District oversees and facilitates Providence’s provision of public health care. Because the Operating Agreement assigns a governmental power to a religious body, creates both an actual and a symbolic fusion of government and religion, and places the power and prestige of the government behind a particular religious belief, it violates the First Amendment of the United States Constitution. Amici submit that summary judgment should therefore be granted in favor of Defendants.

The First Amendment of the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I. In determining whether a government practice violates the Establishment Clause, the United States Supreme Court has employed an analysis first laid out in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Under the Lemon analysis, “a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.” County of Allegheny v. ACLU, 492 U.S. 573, 592 (1989) (citation omitted). The Court has also “paid particular attention to whether the challenged governmental practice either has the purpose or effect of “endorsing” religion,” 492 U.S. at 592, or “conveying . . . a message that religion or a particular religious belief is favored or preferred,” 492 U.S. at 593 (internal quotation and citations omitted). Applying these tests in specific cases, the Court

has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution’s affairs. 492 U.S. at 590 (footnotes omitted).

The Operating Agreement impermissibly delegates a public function – the operation of public health care facilities within the District – to a religious corporation. The United States Supreme Court’s decision in Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), squarely establishes that the delegation of a political function to a religious institution violates the Establishment Clause. The Larkin Court addressed the constitutionality of a Massachusetts statute that assigned to churches and schools the power to veto applications for liquor licenses within a five-hundred-foot radius of the church or school. 459 U.S. at 117. Applying the Lemon analysis, the Court held that the delegation of a governmental function (there, the denial of liquor licenses) to a religious institution “inescapably implicates the Establishment Clause.” 459 U.S. at 123. The Court explained that such a delegation “enmeshes churches in the exercise of substantial government powers,” 459 U.S. at 126, subverting the very purpose of the Establishment Clause, namely, “to prevent, as far as possible, the intrusion of either [Church or State] into the precincts of the other.” 459 U.S. at 126 (internal quotations omitted). Because “the core rationale underlying the Establishment Clause is preventing a fusion of governmental and religious functions,” 459 U.S. at 127-28 (internal quotations and citations omitted), the Court held that the state may not, consistent with the First Amendment, assign its responsibilities to a religious institution. See also Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 706 (1994) (striking down as an “unconstitutional delegation of political power to a religious group” a statute that created separate school district for a religious enclave); Barghout v. Bureau of Kosher Meat & Food Control, 66 F.3d 1337, 1343 (4th Cir. 1995) (striking down ordinance prohibiting fraudulent sale of kosher food as an unconstitutional “delegat[ion of] governmental authority to individuals based on their membership in a specific sect of a specific religion”); Oregon v. Rajneeshpuram, 598 F. Supp. 1208, 1215 (D. Oregon 1984) (holding that municipality run by religious organization constitutes an unconstitutional joint exercise of legislative authority by church and state).

In this case, the Operating Agreement manifestly creates the “fusion of governmental and religious functions or [the] concert or dependency of one upon the other” that is prohibited by the Establishment Clause. See, e.g., School District of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 222 (1963); see also Larkin, 459 U.S. at 127-28. By its own terms, the Agreement provides for a “cooperative effort” between the District and a religious corporation. Providence’s Memorandum, Exhibit 1 at 1-2. Even the name designated for the public health care facilities under the Operating Agreement -- “Providence Pacific Communities Hospital” -- is a literal fusion of the names of the District and Providence. Providence’s Memorandum, Exhibit 1, at 4. The Agreement places a public hospital and public health care clinics under the management of an organization willing only to provide those services endorsed by the Roman Catholic faith, Providence’s Memorandum, Exhibit 3, and mandates that the District oversee that organization, finance it, and participate in a “Community Council” created to monitor and advise it. Providence’s Memorandum, Exhibit 1 at 10-15, 21-22, 43. The Operating Agreement thus presents an impermissible “example of united civic and religious authority, an establishment rarely found in such straightforward form in modern America.” Kiryas Joel, 512 U.S. at 697 (plurality opinion).

As the Supreme Court has recognized, the danger of a fusion or union between church and state is that it places “official support of the State . . . behind the tenets of one or all orthodoxies.” Schempp, 374 U.S. at 222. “Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion), it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed . . . .” Allegheny, 492 U.S. at 605; see also Kiryas Joel, 512 U.S. at 703 (noting “principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion”). Even “the mere appearance of a joint exercise of legislative authority by Church and State” is impermissible because it “provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred.” Larkin, 459 U.S. at 125-26. This is particularly true when, as here, the state does nothing to mandate that the power of the religious organization be exercised in a religiously neutral way. Larkin, 459 U.S. at 125.

In this case, it is clear that the District has impermissibly “single[d] out a particular religious [organization] for special treatment.” Kiryas Joel, 512 U.S. at 706-07. The Operating Agreement expressly provides, for example, that the District “will use its best efforts to maintain its operating tax levy on all taxable property within the jurisdictional boundaries of the District in order to fund . . . services by Providence.” Providence’s Memorandum, Exhibit 1, at 24, 43. Similarly, the Operating Agreement provides that the District “will use its best efforts to obtain . . . elector authorization for the . . . issu[ance of] general obligation bonds for the purpose of financing support for mutually agreed upon capital construction and improvements” for use by Providence. Providence’s Memorandum, Exhibit 1, at 25. Through such special treatment, and more generally by forming an ongoing, cooperative relationship with Providence and allowing Providence to provide only those services that are consistent with its religious “philosophy, mission, policies and values,” the District conveys the clear message that it supports and endorses the Roman Catholic principles that guide Providence’s work. Cf. Allegheny, 492 U.S. at 599-600 (no viewer of a creche located in the main part of a city capitol “could reasonably think that it occupies that position without the support and approval of the government”). As such, the Operating Agreement cannot stand.

Moreover, by assigning the provision of public health care to an organization that limits its provision of services on religious grounds, and thus denying to all individuals those services deemed immoral by the Roman Catholic faith, the Operating Agreement effectively discriminates against those individuals who do not share the religious beliefs of Providence. Specifically, by assigning its public clinics and hospitals to a Catholic health care service provider, the District is making available to those individuals who abide by Catholic teachings a full panoply of desired services. The District is, by contrast, making available to all other individuals only a subset of desired health care services – the subset that is in keeping with Catholic doctrine. Such discrimination is permitted by neither the First Amendment’s Establishment Clause, see Allegheny, 492 U.S. at 590 (footnote omitted), nor its Free Exercise Clause, see Schempp, 374 U.S. at 222 (noting that Free Exercise Clause recognizes “the right of every person to freely choose his own course with reference [to religious teaching], free from any compulsion from the state”).

Because such discrimination may result in the imposition of increased health risks, it is unacceptable not only as a matter of constitutional principle, but also as a matter of public health. For example, a woman giving birth who does not want additional children quite commonly opts for sterilization at that time.[7] Yet, a woman who gives birth at a hospital operated by Providence could not elect to be sterilized at the time of the delivery because Catholic doctrine forbids it. Providence’s Memorandum, Exhibit 3, at 23 (Directive 53). Instead, she would be forced to travel later to another hospital outside of the District and to undergo anesthesia for a second time, thereby increasing the health risk and cost that she must incur. By delegating the operation of the public health care facilities within the District to a religious corporation, the District would thus subject its residents to religious dictates, often with serious health consequences, to which they would not otherwise voluntarily submit.

In sum, given the District’s delegation of a governmental function to a religious organization, the resulting fusion of public and religious entities, the imposition of religious dictates on those who do not share them, and the symbolic and actual benefit to an “assuredly Catholic” institution, Providence’s Memorandum, at 4, the Operating Agreement violates the First Amendment’s guarantees of religious freedom. The Operating Agreement yields an excessive entanglement between a public health district and a Catholic hospital: it creates a twenty-nine year relationship that deeply and impermissibly enmeshes religion in the affairs of government and government in the affairs of a religious corporation.

The District is proposing vesting significant control over a governmental health care service to a religious organization for 29 years. Using money furnished from the District’s tax levy, the religious organization will run the District’s hospital and clinics in accordance with its religious beliefs, denying health care, and making other critical decisions based upon those beliefs. Such an arrangement is a direct violation of both Article I, Section 5 of the Oregon Constitution and the First Amendment to the United States Constitution.

[1] “Nihil obstat” is a Latin ecclesiastical phrase usually used by the Catholic Church in connection with the censorship of written materials, and means that the reviewer has no objections.

[2] The Oregon Supreme Court most recently applied the Priest test only two months ago in Stranahan v. Fred Meyer, Inc. 331 Or. 38, 2000 WL 1292622 (Sept. 14, 2000).

[3] The original wording of Section 5 provided: “No money shall be drawn from the treasury for the compensation of any religeous [sic] services, or for the benefit of any theological institution.” This section was introduced as “Section 6” but was subsequently renumbered as Section 5 when the original Section 4 was omitted from the Bill of Rights.

[4] As put by one observer, Eugene Sand & Gravel “represented a major change in approach from [the Court’s] decisions in Dickman and Lowe, but it has had little impact in subsequent litigation. Lower courts have continued to apply the strict separatist principles enunciated in the earlier cases.” C. Hinkle, Chapter 9, “The Religion Clauses,” Oregon Constitution: A Survey of Significant State Provisions, Oregon Law Institute (1995).

[5] The only Oregon case to ever cite Eugene Sand and Gravel was the Court of Appeals’ decision in Kay v. David Douglas School District #40, 79 Or. App. 384, 719 P.2d 851 (1986), rev’d on other grounds 303 Or. 574, 738 P.2d 1389 (1987), decided five years before the Supreme Court articulated its three-part test in Priest for how independent determinations of Oregon’s constitutional provisions should be made.

[6] Moreover, Eugene Sand & Gravel is not even good law on the meaning of the federal constitution. In 1996, another challenge to the Eugene cross was made, this time in federal court. Separation of Church and State Committee et al v. City of Eugene, 93 F3d 617 (9^th Cir 1996). There, the Ninth Circuit, applying the same analysis under the First Amendment Establishment Clause that was applied in Eugene Sand & Gravel, held that the cross represented governmental endorsement of Christianity and ordered its removal. Thus, the Ninth Circuit rejected even the conclusions reached by the Oregon Supreme Court under the Lemon test in Eugene Sand & Gravel.

[7] Each year, approximately 500,000 sterilizations are performed on women, about one-half of these at the time of delivery. David H. Nichols & Daniel L. Clarke-Pearson, Gynecological, Obstetric, and Related Surgery 626 (2d ed. 2000).

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON, INC., PLANNED PARENTHOOD OF THE COLUMBIA-WILLAMETTE, INC., OREGON DEATH WITH DIGNITY LEGAL DEFENSE AND EDUCATION CENTER, AND NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE, INC.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON, INC.,
PLANNED PARENTHOOD OF THE COLUMBIA-WILLAMETTE, INC., OREGON DEATH WITH DIGNITY LEGAL DEFENSE AND EDUCATION CENTER, AND NATIONAL ABORTION AND REPRODUCTIVE RIGHTS ACTION LEAGUE, INC.