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Protecting Ministries If Marriage Is Redefined
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The Illinois governor is planning to sign a bill creating "civil unions" as a legal form that any two persons can enter into, and which will have to be treated by everyone in the state as the equivalent of marriages.  The bill claims that it will "not interfere with or regulate the religious practice of any religious body."  But that is not a credible claim.

Most religious communities and institutions regard marriage to be a divinely ordained relationship between one man and one woman and operate and teach on that basis.  To them, a "spouse" is either a husband or a wife, even if the legislature insists that both of the individuals in a civil union, male or female, are also spouses, and that whatever protection and rights Illinois law extends to husbands and wives will have to be extended to both of the "parties to a civil union." 

What might be the consequences of this bill that redefines marriage by the backdoor?  A sobering view is offered by Marc Stern, now with the American Jewish Committee, in his chapter in the important book Same-Sex Marriage and Religious Liberty:  Emerging Conflicts (2008).  Faith-based adoption agencies may no longer be able to prefer husband-wife families.  Marriage counselors, social workers, psychologists, and other professionals may have to accept the marriage redefinition in order to get required state professional licenses.  Teachers and counselors with religious scruples might become unwelcome in public schools and colleges.  Service organizations may be excluded from government grants (and even the combined giving campaigns through which government employees give some of their own money away) if they cling to a "discriminatory" view of marriage.  And on and on.

States serious about honoring religious freedom when they revise the definition of marriage can go a long way to protecting the actions and views of religious organizations and persons.  But that requires more than a sentence or two declaring that no harm will be done.  Fortunately, a multi-faith team of constitutional law scholars has drafted very robust provisions.  A credible bill to protect religious freedom when marriage is redefined, as the Illinois bill claims to do, will include those robust provisions and not merely the bill's good wishes.

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Critics of a close interaction between government and faith-based service groups have condemned President Obama's November Executive Order outlining his rules for that interaction because it does not prohibit religious hiring by federal grantees.  He should have banned this practice that President Bush mistakenly started, they say.  But it's a myth that religious hiring was initiated by the Bush administration.

Critics of the faith-based initiative have been surprisingly positive about the principles set out by the Executive Order, even though in the main these are the principles upheld by the Bush administration (and are nearly identical to the Charitable Choice provisions that President Clinton signed into law:  see this story.)  Their ire instead is concentrated on what was not in the Executive Order:  a ban on religious hiring in every program a religious group operates using federal funds.  Candidate Obama promised such a ban, and the activists are demanding he impose it.  They claim that Bush authorized this immoral practice of religious job discrimination and Obama can and should just end it.

Yet, as Nathan Diament says, the critics are peddling a myth.  Diament is the public policy director for the Union of Orthodox Jewish Congregations of America and an initial member of President Obama's Advisory Council on Faith-Based and Neighborhood Partnerships.  He points out that faith-based groups that hire on the basis of religion were receiving federal grants before President Bush ever took office.  It is a practice rooted in the 1964 Civil Rights Act's recognition that it isn't invidious or irrational discrimination for a religious organization to care deeply about the religious convictions of its employees. 

As Diament says, in their desire to fight discrimination, the critics are looking in the wrong place.  In fact, it is right for the government to forbid its service partners from discriminating on the basis of religion in deciding whom to serve; there must be no religious coercion in this relationship.  That's a vital principle from the Bush and Clinton years that the Obama Executive Order confirms.  However, Diament goes on, "to require a faith-based charity to forego its legally recognized religious liberty as the price of partnering with the government is also religious coercion, and thus equally objectionable."  The Executive Order is right not to undermine religious hiring.

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Just before Christmas, the ACLU again sent a letter to the federal Centers for Medicare and Medicaid Services, demanding an investigation into Catholic hospitals that refuse to perform the allegedly life-saving abortions and thereby violate federal standards for emergency medical treatment.  The ACLU wants the Catholic hospitals either to be forced to perform the abortions or to be stripped of Medicare and Medicaid funding.

However, as the Becket Fund for Religious Liberty pointed out to the federal authorities back in August, the ACLU's complaint misinterprets the federal law it references.  And it ignores the various federal laws that actively protect hospitals and medical staff who refuse to participate in or support abortions.

And further, the Becket Fund letter said, a federal effort to force the Catholic hospitals to perform the abortions would not expand access to health care, as the ACLU supposes, but rather contract it, because the hospitals would refuse the federal funding rather than accept the federal abortion requirement, and thus might well have to close their doors.  (Or if the hospital chooses to perform the abortions, it may lose its tie to the Catholic church and the support of [much of] the Catholic community, undermining its viability.  Bishop Thomas Olmsted a week ago stripped St. Joseph's hospital in Phoenix of its "Catholic" label for performing an abortion not justifiable according to Catholic medical ethics.)  The Becket Fund letter didn't say it, but there is also this other aspect:  a significant part of the population seeks care from pro-life medical staff and institutions, an option that would become less available if the ACLU got its way.

We don't yet know what the federal government will do with the ACLU demand.  It looks likely, though, that the State of Maryland may go in a different direction than the ACLU desires.  The Maryland Health Care Commission has to decide between two competing proposals to open a new hospital north of Washington, DC.  A new campus of Holy Cross Hospital is one of the proposals.  Objections have been raised to this option by some women's groups on the ground that a Holy Cross hospital will not provide a full range of reproductive health services because of Catholic health care principles.  But the chairwoman of the Commission isn't buying the criticism.  The protesters might have a case, she says in her recommendation, if the Holy Cross extension "was being proposed for an area that lacks available and accessible options for obtaining these services."  But this part of the state "is not such an area."  The decision ought to be based instead on relevant factors:  which of the competing proposals is better in terms of financial viability, quality of care, and good management.

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The Evangelical Council for Financial Accountability, which provides services and standards that promote financial best practices for nonprofit organizations, says (free registration required) that the big tax compromise that Congress passed and the President signed will have several impacts on faith-based and secular nonprofits:

� The extension of the federal income tax rates for two years "provides some short-term certainty that may encourage giving";
� Some additional giving may result from maintaining the provision for charitable donations from Individual Retirement Accounts (retroactive to the first of 2010 and extending through the end of 2011);
� The employee Social Security tax rate has been reduced for 2011, saving dollars for the employee, though not for the nonprofit.  Bookkeepers, accountants, and payroll services need to reprogram their calculations.

For more on the tax bill and charitable giving, see the analysis at the Planned Giving Design Center (Jewish Federation of Greater Washington).

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