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eNews for Faith-Based Organizations
May 17, 2010
Editor: Stanley Carlson-Thies
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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ An archive of current and past eNews for FBOs can be accessed HERE.
| Supreme Court Nominee's Views on Faith-Based Funding
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The one thing clear about Supreme Court nominee Elena Kagan's views on constitutional issues is that no one is quite sure what they are. One of those important constitutional issues is the basis on which the government can fund faith-based organizations to provide services to the needy.
For several decades, into the 1980s, the Supreme Court held to the extreme church-state separationist position that the First Amendment requires "no aid to religion" and thus no government funding of organizations that were thought to be "pervasively sectarian." But since then the Court has moved to an "equal treatment" or "neutrality" position, requiring the government not to be biased against any faith-based applicant merely because of its religious identity and practices. Instead, the government's concern should be whether its funds are actually used inappropriately--for example, to pay for Bible studies rather than job training.
The 1987 Supreme Court case Bowen v. Kendrick is one of the key decisions in the Supreme Court's shift from "no aid" to "equal treatment." It happens to be a case about which Kagan wrote, when she was a law clerk to Justice Thurgood Marshall. The case concerned the Adolescent Family Life Act (AFLA), which authorized federal grants to private groups to provide counseling and other services to reduce adolescent pregnancy and to care for pregnant adolescents.
The law was challenged because religious groups had received some of the grants. The Court ruled that the Constitution did not require religious groups to be excluded, although government money was not to be spent on "specifically religious activities."
But Kagan, and her boss, Justice Marshall, had argued otherwise. She wrote, "It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching. [W]hen the government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits."
That's a clear enough constitutional position--but wrong, and certainly out of the mainstream of constitutional interpretation, as Bowen and succeeding decisions have shown.
But is this Kagan's position? Questioned about her memo during her hearings to become Solicitor General of the United States, she emphatically disavowed that position. Her memo, she said, was "the dumbest thing I've ever read." Her analysis, she said, "was deeply mistaken. It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds" to provide services such as the AFLA services. It is "incorrect" for the courts or a law to "presume" that a religious organization will misuse government money and thus should be excluded from applying for it.
Moreover, a note Kagan scrawled while she worked in the Clinton administration suggests that she regarded the Charitable Choice provision in the welfare reform law to be acceptable, despite an effort by the Department of Justice to persuade the administration to get Congress to modify or delete the provision.
Are these statements and scrawlings sufficient to demonstrate that Elena Kagan underwent the same development of views that the Supreme Court did, even if her change came a few years later than the Court majority's change? Has she, too, shifted from the "no aid" exclusion of "too religious" faith-based organizations to the "equal treatment" standard that validates the participation of all faith-based organizations?
Here's one of those important constitutional topics that Senators should explore when they question Supreme Court nominee Kagan.
For further reading:
Orthodox Union, "Kagan & Religious Liberty" (May 11, 2010): http://www.ou.org/public_affairs/weblog_single/69330
Laura Meckler, "Memo Suggests Kagan Backed Funds for Religious Groups, Wall Street Journal (May 14, 2010)
Americans United for Life, Memo "Elena Kagan: Federal Funding for Religious Organizations that Serve Those in Need - 'Off Limits'?" (May 14, 2010): http://www.aul.org/2010/05/auls-kagan-file-the-marshall-memo/
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| ENDA on the Move?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The proposed Employment Nondiscrimination Act (H.R. 2981 and H.R. 3017) may--or may not--be moving to a vote in the House of Representatives within the next few weeks. The bill would forbid employers from discriminating against employees and job applicants based on their "sexual orientation" or "gender identity" (transgendered status). Rumors a month ago gave an actual mid-April date for committee action, but nothing came of it. The Washington Post a few days ago wrote of intensified efforts by ENDA's backers to get skeptical Democrats on board to assure passage.
But there are also claims that congressional action to repeal the military's "Don't Ask, Don't Tell" policy will take precedent over ENDA or that an ENDA bill that includes "gender identity" has no chance of favorable action (in 2007 that part of the bill had to be jettisoned before the House would vote in favor of the bill; the Senate never acted).
Whatever the merits of the bill's stated goals, many proponents of religious freedom have pointed out the detrimental consequences if it becomes law. For example, business owners operating family-oriented businesses and with conscientious scruples about homosexual conduct might find themselves in legal difficulty if they require their employees to keep within the bounds of traditional sexual conduct. The House bills (and the Senate counterpart, S. 1584) does include good language exempting religious organizations from its requirements, so that a faith-based nonprofit daycare center or social service agency could require its employees to adhere to its religious teachings about sexual activity. However, given the pressure of powerful activist groups and the growing tendency of the courts and governmental bodies to elevate gay rights above religious liberty, the current religious exemption is unlikely to provide sufficient protection. Much better would be additional language to make the exemption effective: - language to state clearly that in adopting ENDA Congress has no intention of creating a governmental interest in protecting gay rights over religious freedom;
- language to forbid government officials from retaliating against religious organizations if they in fact decide not to ignore sexual orientation;
- language to authorize employers to take account of sexual orientation for job positions where the customers are concerned about behavior standards (e.g., marriage counselors serving deeply religious couples).
For further reading: Steve Aden, "The Employment Non-Discrimination Act," the Federalist Society's New Federal Initiatives Project (March 23, 2010): http://www.fed-soc.org/publications/pubid.1808/pub_detail.asp |
The Administration's Foundation-World Cheering Squad
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Everyone, and every organization, is entitled to its political views. But it should, at the least, give us pause to read that many major foundations are becoming enamored of political activism and, with few apparent reservations, snuggling up to an administration that is inclined not only to praise the nonprofit world but to see its organizations as useful tools for its own priorities. Will grantmaking decisions become (more) infected with political correctness--a major goal of some activist groups? Will donors overly stress political activism over actual service--funding groups to persuade the government to do more and more, rather than funding them to expand their own, non-governmental, ways of addressing need? Will civil society become an appendage of government, rather than an alternative to it? Further reading: Anthony Paletta, "The Fawning of the Foundations," Wall Street Journal (April 30, 2010): http://online.wsj.com/article/SB10001424052748704471204575210751254846816.html Paul Brest, "NCRP at its Most Presumptuous" (and the four following posts), Huffington Post (March 5, 2009): http://www.huffingtonpost.com/paul-brest/ncrp-at-its-most-presumpt_b_172086.html . |
"A Tale of Two Cases"--The CLS Student Club and the Mojave Desert Cross
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Nathan Diament, director of public policy for the Union of Orthodox Jewish Congregations, has penned a thoughtful op-ed comparing two Supreme Court cases. One is the Court's recent decision refusing to declare unconstitutional the Mojave Desert cross honoring the WWI dead (since then the cross has been vandalized). The other is the Court's pending decision in the case concerning the University of California's Hastings Law School's decision to exclude the Christian Legal Society law student club as a recognized student group. The law school says it has to exclude the group because of its discriminatory practices of requiring voting members and leaders to be Christian in conviction and behavior. Whichever way the Court ruled on the cross case, Diament writes, "the constitutional order was never imperiled by a cross atop a hill in the Mojave Desert." In sharp contrast, "the stakes" in the CLS student club case "could not be much higher." That's because the student case concerns the fundamental constitutional rights of religious freedom and associational freedom. If the law school's policy is ratified, then government officials could become the enemies rather than guardians of associations, demanding that they expose themselves to their opponents rather than being free to gather without obstruction. The evangelical CLS student club is today's target, but tomorrow it could be a Jewish group or a disfavored ideological association. So why have so many Jewish and liberal groups defended the law school rather than the law students? To them, apparently, what's most important about the case is to vindicate the "non-discrimination" crusade, and specifically gay rights, even at the expense of fundamental religious and associational freedoms. As Diament says, while that dispute is often depicted as a simple one of being for or against gays, there is a vital other question: the fate of religious freedom. "In short, will there be a hierarchy of constitutional rights based on a political correctness scale, or can we find a way to resolve constitutional tensions with minimal cost to all sides?" Gay rights ought not to trump religious freedom; rather, courts and lawmakers must find a way to vindicate religious freedom when they act to forbid invidious discrimination. "Many Americans," Diament observes, "are sympathetic to the expansion of gay rights because of a 'live and let live' philosophy. But 'live and let live' must be a two-way street. The expansion of gay rights should not come at the expense of religious freedom. Otherwise, Americans who adhere to traditional faith principles will increasingly find themselves cast out of the public square and into the desert." For further reading: On the CLS student group case, go to: The Christian Legal Society's Center for Law and Religious Freedom: http://www.clsnet.org/center/litigation/christian-legal-society-v-martinez-uc-hastingsStanley Fish, "When Is a Cross a Cross?" New York Times Opinionator, May 3, 2010: http://opinionator.blogs.nytimes.com/2010/05/03/when-is-a-cross-a-cross/Fish writes: "It has become a formula: if you want to secure a role for religious symbols in the public sphere, you must dereligionize them, either by claiming for them a non-religious meaning . . . or, in the case of multiple symbols in a park or in front of a courthouse, by declaring that the fact of many of them means that no one of them is to be taken seriously; they don't stand for anything sectarian; they stand for diversity. So you save the symbols by leeching the life out of them. The operation is successful, but the patient is dead." Stanley Carlson-Thies, "A Supreme Challenge for John Roberts," Capital Commentary, July 25, 2005: http://www.cpjustice.org/stories/storyReader%241318Carlson-Thies writes: "There is a solution to the church-state confusion . . . . The government should honor the convictions of all citizens, discriminating neither for nor against religion when funding social services and neither for nor against religious arguments and the religious symbols and activities that constitute so much of our history and our lives together. But government officials can't be the nation's clergy. That is not merely divisive but idolatrous." |
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For further information:
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e-mail: info@IRFAlliance.org
website: 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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