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eNews for Faith-Based Organizations
July 8, 2009
Editor: Stanley Carlson-Thies
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ACCESS PAST ISSUES OF THE E-NEWS
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ An archive of current and past eNews for FBOs can be accessed HERE.
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ENDA Reintroduced--Revives Religious Freedom Concerns
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ On June 24th, Rep. Barney Frank (D-MA) introduced the Employment Non-Discrimination Act of 2009, H.R. 3017. This version of ENDA, unlike the version (H.R. 3685) adopted by the House of Representatives in November, 2007, seeks to prevent employment discrimination not only on the basis of sexual orientation but also of "gender identity" (transgendered persons). Both bills apply to employers of 15 or more people (FTEs).
The new bill, H.R. 3017, includes the same exemption for religious organizations as did the 2007 bill, as it was passed by the House--an exemption which was added to the bill by Rep. George Miller (D-CA) during floor debate. The Miller amendment was gained in 2007 only after extensive opposition to the wholly inadequate religious exemption in the original bill.
The religious exemption in the new ENDA (H.R. 3017, sec. 6) says that its employment anti-discrimination requirements "shall not apply to a corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964." Thus religious organizations, which can staff on a religious basis without violating the anti-discrimination provisions of Title VII, would not be subject to ENDA's prohibition of employment discrimination on the bases of sexual orientation or transgender identity.
However, there is reason to wonder about the adequacy of the religious exemption in H.R. 3017 (leaving aside important questions about the ENDA's substance). It covers religious organizations, but not a religious person who owns or controls a nonreligious business or corporation, no matter how deeply held the religious scruples of that person. Because the Title VII exemption largely has been interpreted to apply only to nonprofit organizations, the exemption does not seem to extend to religious businesses--e.g., for-profit religious publishers, bookstores, retirement homes, child care facilities, broadcasters, or summer camps. Most seriously, opponents of traditional religion may well use the adoption of ENDA as evidence of a new federal public policy regarding as invidious all discrimination on the bases of sexual orientation and sexual identity. Religious organizations invoking the Title VII exemption could then be treated as akin to the white academies that opened in the South to avoid school desegregation, with efforts being made to strip these religious organizations of various government "benefits"--such as use of space in public buildings, state contracts, licenses, and eventually perhaps even tax-exempt status.
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Can Religious Student Groups Insist on Faithful Leaders?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Before it ended its 2008-2009 term, the U.S. Supreme Court declined to review a troubling Ninth Circuit ruling--Truth v. Kent School District--that a high school Christian student club could not legally insist that its members--imagine this!--should actually be committed to the club's religious beliefs. Federal appeals courts have ruled both for and against the associational rights of religious student organizations. People who think it makes no sense to label it unconstitutional, illegal, and immoral discrimination for a religious club to insist that its leaders (and possibly also members) must be believers were hoping the Court would introduce some sanity into lower-court rulings and into the student-group regulations of high schools and public universities. Alas, not so--or at least not yet. See the commentaries by David French (Alliance Defense Fund) and Wendy Kaminer (formerly on the ACLU's national board).
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Fair Treatment of FBOs in House Climate Bill
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Say what you will about the causes of global warming and whatever all is tucked into the 1428 pages of the American Clean Energy and Security Act of 2009 (H.R. 2454) that squeaked out of the House of Representatives on June 26, supporters of a level playing field will be glad to see what a group of advocates led by Nathan Diament, public policy director of the Union of Orthodox Jewish Congregations, ensured is in the bill. Thanks to their alert action, the part of the bill providing for subsidies of up to 50% of the cost of retrofitting a building's energy system was changed to make eligible faith-based organizations and other nonprofits (sec. 202 on the retrofit program defines eligible nonresidential buildings to include "nonprofit organizations including faith-based organizations"-p. 349). |
Public Control of Foundations and Charities?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Should the government dictate that foundation boards and staff include certain percentages of racial and other minorities and that 50% or more of foundation grants be used on projects to benefit the poor and minority groups? Would these even be good voluntary recommendations, or is this way of thinking itself harmful to a diverse and thriving philanthropic and charitable sector? Do the tax exemptions and tax-deductible donations of the sector justify government control of the policies and programs of charities and foundations--are charities and foundations using "public money" so that government can tell them how to use it?
These are vital questions in the current environment in which some charity-sector advocates, policy activists, and elected officials argue that, in return for their tax exemptions and tax-deductible gifts, charities and foundations ought to be encouraged or required to dedicate themselves to achieving the social justice that our governments have not managed to institute.
As laudable as the goal might seem, this way of thinking undermines the independence and vitality of the so-called "independent sector." Too much required transparency, obligatory fulfillment of notions of social justice, and micromanaging of organizational details will undermine innovative ideas and politically unpopular initiatives.
William Schambra's Bradley Center for Philanthropy and Civic Renewal recently held two excellent panels on these topics. Go to the Center's webpages at the Hudson Institute for information and transcripts about the May 28th discussion of the National Committee for Responsive Philanthropy's troubling "Criteria for Philanthropy at its Best: Benchmarks to Assess and Enhance Grantmaker Impact" and the June 19th discussion of "How Public Is Private Philanthropy," a publication of the Philanthropy Roundtable.
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RFRA's Protection of FBOs from Misguided Government Regulation
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The US Supreme Court, in its unfortunate decision in Employment Division v. Smith (1990), undermined religious freedom by ruling that government requirements that curtail religious practices are acceptable if the burdens on religion are the result of "neutral, generally applicable laws," rather than the consequence of efforts designed to harm religion. Congress responded by passing the Religious Freedom Restoration Act (RFRA, 1993), requiring that, intentions aside, "governments should not substantially burden religious exercise without compelling justification." A substantial burden is only justified if the government interest is "compelling" and there is no less burdensome way to achieve it. In 1997, the Supreme Court said ( City of Boerne v. Flores) that RFRA could not be applied to actions by state governments, although it remains valid for the federal government. In response, Congress passed the Religious Exercise in Land Use and by Institutionalized Persons Act (RLUIPA, 2000), which does apply to state and local governments. And a number of states adopted their own state RFRAs to apply to their own legislation and other actions. Texas is one of the states that chose to apply RFRA's restrictions to itself by adopting its own RFRA in 1999. In a June 19 ruling, Barr v. Sinton, the Texas Supreme Court used the TRFRA to overturn a small town's adoption of a new zoning rule in order to drive out of town a faith-based halfway house ministry that helped former inmates transition back into society. One notable amicus brief defending the ministry against the town was authored jointly by the ACLJ (Jay Sekulow) and the Texas ACLU. At the federal level, a key--if controversial to some--application of RFRA is to allow a faith-based organization that hires on a religious basis to take part in one of the federal programs that ban participation by organizations that engage in employment discrimination on religious and other bases. Participation is not automatic--the faith-based organization has to show that the religious hiring ban imposes on it a substantial burden (the government has to accept that it has no compelling interest in maintaining the ban). The Department of Justice's Office of Legal Counsel authored a June 29, 2007 memorandum arguing the applicability of RFRA to such instances, and the Bush administration provided guidance to faith-based organizations on how to appeal to RFRA if they were faced with a program that bans religious staffing. The OLC opinion remains posted on the DOJ website. |
Resources
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The transcript of the June 11th Pew Forum event presenting and discussing the final report of the Roundtable on Religion and Social Welfare Policy, "Taking Stock: The Bush Faith-Based Initiative and What Lies Ahead," is now available. Comments were offered by Joshua DuBois of the White House Office of Faith-Based and Neighborhood Partnerships; Steve Goldsmith, advisor on faith-based policy to George W. Bush, and Richard Nathan of the Rockefeller Institute, which guided the Roundtable.
Various products of the Bush faith-based initiative remain posted on federal websites. See, for example, the Innovation in Effective Compassion website at HHS, or the legal and regulatory guidance about government relations with faith-based organizations still offered at the Center at the Department of Labor.
Other materials are available through a private organization's collection of "snapshots" of the Bush Office of Faith-Based and Community Initiative's webpages.
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For further information:
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e-mail: info@IRFAlliance.org
website (under construction): www.IRFAlliance.org
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What is IRFA?
The Institutional Religious Freedom Alliance works to safeguard the religious identity, faith-based standards and practices, and faith-shaped services of faith-based organizations across the range of service sectors and religions, enabling them to make their distinctive and best contributions to the common good.
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