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eNews for Faith-Based Organizations
October 5, 2010

Editor: Stanley Carlson-Thies
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in this issue
No Religious Hiring Ban in the Continuing Budget Resolution
Where is David Kuo When We Need Him?
Protecting Religious Exercise: RLUIPA 10th Anniversary
"Enemy of the State" for Dissenting Against the New Sexual Orthodoxy?
Proposal to Expand Protection of Religion in Civil Rights Act
Excessive Regulation of Education?
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No Religious Hiring Ban in the Continuing Budget Resolution
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The news--so far--is good.  The Continuing Resolution (CR) passed by the House and Senate just before Congress adjourned for the run-up to the November elections did not contain the threatened language that would have banned religious hiring in every faith-based service funded with federal dollars.  But the CR expires on December 3rd, and Congress will have to take additional action by then or the federal government will come to a grinding halt. What will be in the next funding bill?

Congressional and activist opponents of religious hiring by grantees have become increasingly bold.  They are upset at what they see as the Obama administration's craven refusal to fulfill a campaign pledge, and have launched many different challenges (see story here).  Their nuclear bomb was the threat to put the hiring ban into the Continuing Resolution, a must-pass bill.  Many faith-based organizations signed a letter in August protesting the threat (the letter is here).  For whatever reason, the CR did not have the objectionable language.

But this might be only a temporary victory.  After the election Congress will have to act again with another sweeping budget measure to keep the government going (normally Congress passes a series of budget bills, but those bills are months overdue).  There are worries that this "lame duck" Congress, many of whose members may have lost their seats in the election (though they don't give them up until January) will be tempted to be recklessly radical:  they already lost re-election, so what more can the voters do to them?  So the next budget measure may have the bad language in it that was not there this time.

Congressional defenders of religious hiring are on high alert.  Faith-based organizations need to be vigilant.  Supporters of those organizations--donors, board members, volunteers--ought to be watchful, too.  

Here's the question for those members of Congress who have been toying with the idea of a religious hiring ban:  Why should organizations committed to serving the needy be forced to choose between maintaining their religious identity or maintaining their service partnerships with the federal government?
Where is David Kuo When We Need Him?
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The mega-conference call on September 21 where the President sought to enlist faith-based organizations and leaders to be "validators" of the disputed health care reform law is disturbing and disappointing.  To be sure, it is the law and there is every reason for groups active in health matters to help the people and communities they work with to understand the coming changes, the negative along with the positive.  But faith-based organizations, no matter how much they collaborate with government, must avoid becoming simple "transmission belts" of the government's views.

And the government--and especially those who lead the faith-based initiative--ought to do everything they can to avoid the appearance and reality of politicizing the initiative. 

That initiative, now in its third administration, is a very important effort to ensure that the federal government gives fair and respectful treatment to faith-based service organizations.  It is inherently controversial because it deals with the sensitive intersection of government and religion.  And, of course, along with the government's involvement inevitably come disputes over policy and partisanship.  These sources of controversy are unavoidable, which makes it all the more important not to load onto the faith-based initiative even more causes for dispute and opposition.  
 
In response to the health-care cheerleading effort, Jim Towey wrote this:

"I was George W. Bush's director of faith-based initiatives.  Imagine what would have happened had I proposed that he use that office to urge thousands of religious leaders to become 'validators' of the Iraq War?  

"I can tell you two things that would have happened immediately.  First, President Bush would have fired me--and rightly so--for trying to politicize his faith-based office. Second, the American media would have chased me into the foxhole Saddam Hussein had vacated."

Alas, there has been no media outcry over the health law conference call. And not a peep from David Kuo.  Kuo, you might remember, was for a time deputy director of Bush's White House Office of Faith-Based and Community Initiatives, and he complained loudly in press interviews and his book, Tempting Faith, that the Bush initiative was rife with politics.  The Bush initiative was not perfect, to be sure, but it did focus on policy and programs, not politics (full disclosure: I served in the faith-based office in 2001-2002).  If Kuo is seriously worried about distortions of the faith-based initiative, now is the time to get out his angry pen . . .
Protecting Religious Exercise:  RLUIPA 10th Anniversary
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The Religious Land Use and Institutionalized Persons Act just had its tenth anniversary.  Signed into law by President Clinton after passing both the House and Senate unanimously and with broad support from religious groups and religious freedom advocates, RLUIPA is a vital part of the armor of religious freedom.

RLUIPA, like the broader Religious Freedom Restoration Act, which was adopted in 1993 (but applies only to actions of the federal government), requires lawmakers and government officials to be sure not to significantly burden religious exercise without a vital governmental reason.  

In shorthand RLUIPA is often said to protect churches against unreasonable zoning decisions and prisoners against the wrongful curtailment of their religious observance.  Important and true--but RLUIPA's scope is larger than this.  As the Department of Justice's recent report on RLUIPA points out, the law has been used to protect not only churches but also religious schools and faith-based charities; not only prisoners but also young believers in a juvenile training facility and a worshiper in a nursing home.  Members of minority faiths--e.g. Sikhs and Buddhists--have had their religious freedom vindicated by the law, and so have others:  an Assemblies of God congregation, a Teen Challenge center, and more.

Go here for the DOJ 10th anniversary report and other statements: http://www.justice.gov/crt/housing/rluipaexplain.php

Visit a special section of the Becket Fund website for additional resources on RLUIPA: http://www.rluipa.com/
"Enemy of the State" for Dissenting Against the New Sexual Orthodoxy?
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Among the many harsh attacks that Pope Benedict faced on his recent visit to the United Kingdom, perhaps the most disheartening was the charge that he is an "enemy of the state."  An "enemy of the state":  that's a dissenter that a totalitarian government finds objectionable and who, by being so tagged, is stripped of the law's solicitude.  It's a treatment of minority opinion that liberals and human rights activists in the past always protested.  As Brendan O'Neill remarks, "If you had to distil the profound, historic tradition of liberal humanism into one principle, it would surely be that no one should be persecuted for having views that are the opposite of the state's or of mainstream political thought."  

Yet here the Pope, because (among other things) of his "hateful" defense of historic Christian sexual standards, was charged with being a traitor to the nation who ought to be sent packing out of the country.  No tolerance for discussion.  No respect for a different point of view.  His was apparently a violation of contemporary morals simply too extreme to be tolerable.  

In O'Neill's acerbic words:  "Beneath the radical garb, what the liberal fury over Benedict's visit really represented was a demand that every individual--even the goddamn pope of Rome--should genuflect before the altar of 'British values'--that is, the state's values, the liberal elite's values--or else face the consequences.  Demonisation, perhaps, or expulsion; certainly removal from polite society.  No dissent from their creed can be tolerated."

Of course, this blast against the Pope was an extremist voice.  It can't be pinned on everyone fighting for expansive anti-discrimination laws intended to vindicate their sexual orientation and dignity.  Surely, though, the bitter animus helps to explain why, in these fights, the religious freedom of individuals and institutions is quickly curtailed unless it has vigilant and vigorous champions.
Proposal to Expand Protection of Religion in Civil Rights Act
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In late September, Congressman Brad Sherman (D-CA) and Senator Arlen Specter (D-PA) introduced companion bills (HR 6216, S 3821) to amend Title VI of the 1964 Civil Rights Act in order to protect Jewish students from anti-Semitic harassment on college and university campuses.  Title VI protects people from discrimination in federally assisted programs, but has never included religion as a prohibited basis for differential treatment.  

Alas, Jewish students on a number of campuses have been subjected to vile anti-Semitic treatment.  For a time, the Department of Justice's Title VI enforcers asserted jurisdiction under the theory that being Jewish is both a religious and an ethnic matter.  But the view now is that being Jewish is a religious category and thus anti-Jewish harassment is not covered by Title VI.  

The two bills add religion to Title VI as a protected category, in the case of educational institutions.  They include careful legislative language so that, in the process of banning unjust treatment of religious students, Title VI is not inadvertently made to undermine faith-based higher education institutions with their religiously selective hiring and student-selection processes.  

Is that careful language careful enough?  Congress must make sure, as it rightly extends anti-discrimination protection to Jewish students, not to undermine (Jewish and other) religious educational institutions with their legitimate and essential faith-based practices and policies.

Read more:  Kenneth Marcus, "A Blind Eye to Campus Anti-Semitism?" Commentary, September 2010.
Excessive Regulation of Education?
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In a Denver Post op-ed, Bill Armstrong, president of Colorado Christian University, and Hank Brown, a former college president, sounded the alarm:  the federal Department of Education is readying new regulations that would overlay the current accreditation system for public and private higher education institutions with a new system of state "authorization" of those institutions.  States already play a role in the legal incorporation of colleges and universities; if the proposed regulations go through, that state role will be supersized.  

The problem isn't just more paperwork.  Rather, as Armstrong and Brown point out, because states will have to set new standards and adopt new regulations, the new "authorization" requirement "carries with it an implicit invitation for various pressure groups to seek legal mandates requiring colleges and universities to implement their pet theories about curriculum, degree requirements, faculty qualifications, teaching methods, textbooks" and all manner of controversial political and social issues.  

As the Council for Christian Colleges and Universities says, "The proposed language regarding state authorization is so broad as to give states unchecked control over private, higher education institutions creating sweeping changes in historically proven self-policing systems in favor of an untried, untested, and unwarranted governmental/political system."  The regulations would place "the review of academic institutions into the hands of a political government, instead of the neutral, academic oriented accreditation agencies."  And while the stated purpose is to introduce an additional check on the institutional integrity of higher education, "No check . . . is created on state authority.  Instead, a state can unilaterally revoke authorization."  

Or, for that matter, unilaterally pile onto faith-based colleges and universities mandates and requirements that would curtail their religious freedom and religious identity.  

And all this with virtually zero evidence of significant problems that require any federal action at all!  Hopefully the widespread protest from educational institutions, their associations, and their accreditors will prod the Department of Education to change course and drop the idea of this expanded state-government role.

Further reading:  Letter from the American Council of Education protesting state authorization and other proposed regulations (August 2, 2010): http://www.acenet.edu/AM/Template.cfm?Section=LettersGovt&CONTENTID=37640&TEMPLATE=/CM/ContentDisplay.cfm

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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.