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Federal judge Vaughn Walker's August 4th decision striking down Prop 8 isn't yet the last episode in the long struggle over the definition of marriage in California.  The decision is being appealed and may end up in the US Supreme Court.  But it isn't too soon for legislators in California to seriously take up their duty to safeguard religious freedom in the midst of the changing social and legal landscape.

For there is no doubt that the redefinition of marriage creates multiple conflicts with the faith-based practices of religious individuals and institutions.  The problem isn't that rabbis, priests, pastors, and imams will be forced to officiate at ceremonies that, according to their convictions, are not marriage ceremonies at all.  Clergy practices are well protected by the Constitution.  

Not so well protected are parachurch organizations' faith-based practices that deviate from the society's consensus, the legislature's rules, or some judge's redefinitions.  That's because of the cramped view of religion that is held by many policymakers.  So, if Judge Walker's ruling stands, will a California faith-based residential program for teens have to accept as house parents John and Joe Smith?  Will a religious college be able to say No to Jane and Joan when they apply for married student housing?  Will the religious charity have to extend spousal benefits to couples that the state, but not the charity's religion, regard as married?

Protecting the religious freedom of faith-based organizations requires bold, extensive, and careful action by the legislature.  Fortunately model language is available.  You can find below the language that's been crafted by a team of constitutional law scholars (Carl Esbeck, Richard Garnett, Thomas Berg, Robin Fretwell Wilson, Marc Stern, and Edward Gaffney, Jr.).

California citizens, whatever their views of marriage, ought to demand legislative action.  Otherwise, in the words of Marc Stern of the American Jewish Congress, "having allowed same-sex couples to come out of the closet," the government will have simultaneously restricted religious exercise "to the sanctuary."   

Model exemption language

Exemptions--marriage--solemnization, celebration, treating as valid.

1. [Protection of religious organizations]  A religious corporation, association, educational institution, society, charity, or fraternal organization and an individual employed by such an entity while acting in the scope of employment shall not be required to do any of the following if doing so would cause such entity to violate the sincerely held religious beliefs to which the entity subscribes or to such individual to violate the individual's sincerely held religious beliefs:

a. Solemnize a marriage.

b. Treat a marriage as valid.

c. Provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization or celebration of a marriage.
 
2. [Protection of individuals and small businesses]

a.  Except as provided in paragraph "b," an individual, sole proprietor, or small business shall not be required to do any of the following if doing so would cause the individual or sole proprietor to violate the individual or sole proprietor's sincerely held religious beliefs or the small business to violate the sincerely held religious belief to which the small business subscribes:

(1) Provide goods or services that assist or promote the solemnization or celebration of a marriage, or provide counseling or other services that directly facilitate the perpetuation of a marriage.

(2) Provide benefits to the spouse of an employee.

(3) Provide housing to a married couple.

b.  The exemptions provided pursuant to paragraph "a" shall not apply if either of the following conditions exists:

(1) A party to the marriage is unable to obtain similar goods or services, employment benefits, or housing elsewhere without substantial hardship.
 
(2) If the individual is a government employee or official and another government employee or official is not promptly available and willing to provide the requested government service without inconvenience or delay.

c.  For the purposes of this subsection, a "small business" means a legal entity other than a natural person that meets any of the following specifications:

(1) Provides services which are primarily performed by an owner of the business.

(2) Has five or fewer employees.

(3) If a legal entity providing housing for rent, owns five or fewer units of housing.

3. [No civil cause of action or other penalties]  Refusal to provide services, accommodations, advantages, facilities, goods, or privileges if in accordance with this section, shall not result in either of the following:

a.  Creation of any civil claim or cause of action.

b.  An action by the state or a political subdivision, under any law of the state or a political subdivision, to penalize or withhold benefits from any individual or entity acting in accordance with this section, including but not limited to laws regarding employment discrimination, housing, public accommodations, educational institutions, licensing, government contracts or grants, or tax-exempt status.


More information:

Marc Stern, "Will gay rights trample religious freedom?"  Los Angeles Times, June 17, 2008. http://articles.latimes.com/2008/jun/17/opinion/oe-stern17

Marc Stern, "Same-Sex Marriage and the Churches," in Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty:  Emerging Conflicts (Rowman and Littlefield, 2008).

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US Supreme Court Justice John Paul Stevens, who has now been replaced by Elena Kagan, was noted as an extreme church-state separationist.  He thought it unconstitutional for the government to treat faith-based applicants for government funds equally with secular applicants.   For example, Justice Stevens was one of the dissenters in the landmark decision Mitchell v. Helms (2000), which overturned the idea that the government is unconstitutionally "aiding religion" if it awards grants to so-called "pervasively sectarian" organizations.  The Mitchell decision undergirds the federal faith-based initiative--the series of actions starting back in the Clinton administration to clear away federal biases against faith-based organizations.

Back in the 1980s, when she was a law clerk for Justice Thurgood Marshall, Elena Kagan argued against government funding for religious organizations.  But, questioned about that view after she was nominated in 2009 to be US Solicitor General, Kagan disavowed her earlier argument, saying that her memo was "the dumbest thing I've ever read."  

That's a pretty decisive repudiation of a view that was fervently held by Justice Stevens, the Supreme Court justice Kagan has now replaced.  That's the good news.  

Not so encouraging is Kagan's support for gay and abortion rights.  Religious freedom for religious organizations extends to equal access to funding but it surely should also encompass the freedom for these organizations to stick to internal practices and a style of service to the public that is faithful to their religious convictions, even when those practices and services don't fit the secular norms promoted by government and the courts.  The big institutional religious freedom issue for our newest Supreme Court justice is not funding but rather the application of secular rules concerning identity and operations.  Which way will she rule when the demands of sexual libertinism clash with the desire of religious organizations to remain faithful to historic standards of sexual morality?

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Rep. Bobby Scott (D-VA), the relentless critic of the faith-based initiative, in a May House of Representatives Judiciary Committee hearing attempted to shame Attorney General Eric Holder into confessing that the Obama administration was allowing federal grantees to engage in "race and religion" job discrimination by not changing the federal rules that apply to faith-based organizations that get federal funding.  

The Attorney General rightly said that the administration does not support job discrimination and does require grantees to obey the law.

He could have clarified further.  Notwithstanding Rep. Scott's firmly held view, Title VII of the 1964 Civil Rights Act--the foundational federal job discrimination law--does not regard it to be illegal discrimination when a religious organization takes account of religion when hiring staff.  And religious hiring does not become illegal merely because a religious organization accepts federal funds (although some specific federal programs do ban religious hiring).  On the other hand, racial job discrimination is illegal for all organizations (although houses of worship are free to make whatever decisions they deem fit when choosing clergy).  

So it isn't "discrimination" when a religious organization engages in religious hiring, and it isn't illegal for that religious organization to receive federal funds to provide services (except in certain federal programs that specifically ban religious hiring by all grantees).  

Rep. Scott is just wrong to mash together "race and religion" as equivalent and discriminatory criteria for employment decisions by faith-based organizations.  

That the two criterion are very different was stressed by the federal judge who in 2005 ruled firmly in favor of religious hiring by the Salvation Army in New York City--even though it received most of its social-service funding from government services (Lown v. Salvation Army).  It was not unconstitutional, he said, for the Salvation Army to engage in religious hiring although it received federal, state, and city funding (the government programs all exempted religious organizations from any ban on religious hiring).  And it was not right for the Salvation Army's opponents to equate race and religion.  The Constitution, the judge pointed out, specifically grants no value to racial discrimination.  On the other hand, hiring choices based on religion may well "stem from the right to free exercise, which is constitutionally protected."  

Critics of religious hiring are entitled to their views--but they aren't entitled to treat as the same racial job discrimination and the practice of religious hiring by religious organizations.

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It has happened again.  This time the institution is Augusta State University, Georgia, the profession is counseling, and the faith is evangelical Christianity.  Jennifer Keeton, a counseling student, was instructed that she must change her religious convictions against homosexual conduct if she wished to stay in the program and become certified as a professional.  In other instances it has been social work students, philosophy professors, doctors, pharmacists, medical students, or others told by their professional colleagues that their faith-based convictions are incompatible with the norms of the profession.

Yet, we live in a society with deep differences not only about religion but also about morality--about what good and right conduct is--and so it is not a surprise that professionals, and professionals-in-training, hold to diverse normative conceptions.  But all too many professional associations wish to crush, not respect, such differences, only trusting the professionals to exercise their considered judgment when their judgment follows the current line of the majority in the profession.

But driving genuine normative differences out of the professions hardly helps those professions adequately serve the very diverse populations that constitute our society.  For every woman who wants a doctor ready to perform an abortion there is more than one who desires a thoroughly pro-life professional.  For every couple who wants a counselor who will help them improve their gay relationship there are multiple couples who are deeply convinced that marriage still is what it always has been.  

Why does intolerance by the professions matter to faith-based organizations?  As they say, "personnel is policy."  If the professions succeed in driving out everyone who believes in faith-based standards, then all those faith-based organizations looking for professionals are going to have a hard time--their choice will be:  hire no professionals, or accept into the organization professionals who don't agree with the organization's deepest convictions.  What a choice.

More information:

Ashley Thorne, "The Scandal Goes On," National Association of Scholars, July 23, 2010:  http://www.nas.org/polarticles.cfm?doctype_code=Article&doc_id=1456