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eNews for Faith-Based Organizations
January 25, 2011

Editor: Stanley Carlson-Thies
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In this issue
Bogus Religious Freedom Protection in Maryland Same-Sex Marriage Bill
Respecting the Diversity of Providers of Services
A Victory for Professionals with a Pro-Life Conscience
Mischief in President Obama's Regulatory Reform?
Health Care Reform and Tax Funding of Abortion (episode 576)
Notable Quote
Worth Reading
Will You Support IRFA?
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An archive of current and past eNews for FBOs can be accessed HERE.

Bogus Religious Freedom Protection in Maryland Same-Sex Marriage Bill
 
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Bills were introduced last week in the Maryland Senate (SB 116) and House of Delegates (HB 55) to legitimize same-sex marriages.  It is unclear whether either will pass the legislature and land on Governor O'Malley's desk.  But it is clear that the bills are flying under false flags.

 

Both are entitled "Religious Freedom and Civil Marriage Protection Act."  Why put protection of religious freedom into the title?  Well, there's no escaping that marriage redefinition leads to a wide range of conflicts with people and organizations committed on religious grounds to man-woman marriage.  Public high schools will have to change what they teach about marriage.  No adoption agency may be allowed to work only with mother-father families.  Unexpected couples might show up to settle into a religious college's married-student housing.  Religious doctors in a fertility clinic may not be allowed to choose to serve only husband-wife couples.  Marriage therapists and social workers may lose their state licenses if they express qualms about the new legally mandated definition of marriage.  And on and on.  There's an entire and excellent book Same-Sex Marriage and Religious Liberty:  Emerging Conflicts, full of contributions by experts on both sides of the redefinition question, documenting in detail the conflicts between same-sex marriage and religious freedom.

 

But the Maryland bills make a mockery of all that.  Notwithstanding their labels, neither bill will do anything whatsoever actually to protect religious freedom if marriage is redefined as they will require.  The only protection the bills claim to offer is this:  no pastors or churches or other religious entities will be forced to officiate at same-sex weddings.  That's it.  But that's a protection that clergy and houses of worship already have--it is a constitutional protection that the legislature neither creates nor can abolish.  The two bills admit as much, in so many words linking their limited protection to the US Constitution, the Maryland Constitution, and the Maryland Declaration of Rights. 

 

In other words:  the bills add no protections whatsoever.  Their labels are bogus.  They don't protect religious freedom.  They acknowledge a pre-existing freedom of pastors and churches, but do nothing at all to protect religious freedom where it will need protection:  outside the walls of houses of worship, after the wedding ceremonies. 

 

There is a vital debate to be had about the consequences for society, for couples, for families, and for children, if marriage is redefined in Maryland.  But there is also this other reality:  unless a law redefining marriage contains robust and specific protections for religious organizations and institutions--beyond the clergy and houses of worship--then, no matter what the name of the law, the reality will be an immense assault on religious freedom.  Marc Stern, now of the American Jewish Committee,

said it well in protesting this kind of change when it was proposed in California:  "it should not follow that having allowed same-sex couples to come out of the closet, as it were, that religious people should in turn be confined to the sanctuary."

 

Maryland legislators who actually care about the Maryland Declaration of Rights will take to heart its words (Art. 36)--"That as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in their religious liberty," including their "religious practice"--and chuck out the two mislabeled bills introduced last week.  They can avoid the damage to religious freedom by refusing the call to redefine marriage.  Or, if they insist on overturning marriage, at least they must enact real protection for religious organizations and religious persons.  Excellent language, which will actually mitigate the harm to religious freedom, is readily available.  

Respecting the Diversity of Providers of Services
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Maryland's Health Care Commission on January 20 approved a new Catholic hospital in Montgomery County even though the hospital will not perform certain procedures and despite heated protests from various advocacy groups complaining that the access of teenagers and poor women to "reproductive health care" will be restricted.  The Commission's chairwoman pointed out that the services the Catholic hospital would not perform are widely available elsewhere in progressive and wealthy Montgomery County.  (See earlier story here.)

Of course, activists immediately threatened legal action to squash the diversity in health services that the hospital commission is willing to allow.  Americans United for Separation of Church and State would like to notch a victory in Maryland like the one it gained in Florida, where, faced with legal pressure from AU and others, a hospital agreed to end its adherence to the Catholic health care directives and became just another secular institution with no special commitment to protecting life.
A Victory for Professionals with a Pro-Life Consicence
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Faith-based service organizations will find it impossible to operate according to their faith convictions if the rules governing the licensing and education of the professionals they want to hire impose secular standards on those counselors, medical staff, therapists, and others.  So the course of institutional religious freedom is closely tied to the ups and downs of freedom of conscience for professionals.  There have been many downs.  But also a recent up.

Vanderbilt University's Nurse Residency Program has required applicants to its Women's Health Track to sign a letter acknowledging that nurses in that track are required to assist with abortions.  Vanderbilt is a private institution, so in general can make its own rules about such matters.  However, it receives a great deal of federal money from the US Department of Health and Human Services, and that federal money comes with a condition:  no discrimination against a student who objects to abortion. 

The Alliance Defense Fund filed a complaint about the abortion requirement, on behalf of a nursing student, with the HHS Office of Civil Rights.  The very next day the university changed its policy.    Now nursing students will be informed that they have the right not to assist with abortions.

No doubt one reason for the quick reversal by Vanderbilt is the detailed protection for conscience rights provided by the conscience regulation promulgated in the last months of the Bush administration.  The regulation was designed to make effectual a range of protective provisions adopted by Congress but often ignored by states, training programs, and medical institutions that receive federal funds supposedly governed by those provisions.  One of the early acts of the new Obama administration was to start the process to rescind the conscience regulation.  But that process has yet to be completed, so the regulation remains in effect.

Federal officials have promised to unveil their decision about rescinding or modifying the regulation within the next five or six weeks.  We should all hope that they decide to make few if any changes to the Bush regulation.

Further reading:

Chuck Donovan, "The Vanderbilt Abortion Decision:  How Obama Can Better Protect Civil Rights," The Foundry, Jan. 19, 2011.
Mischief in President Obama's Regulatory Reform?
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Commentators have been of several minds about the President's January 18th Executive Order, "Improving Regulation and Regulatory Review."  Will it drum some practical sense into federal regulators?  Does it represent just another step in the administration's sell-out to business following the "shellacking" of the November elections?  Is it an essentially meaningless bit of fluff, stating principles that bureaucrats will ignore whenever they chose?

Only practice will tell whether the bark has much bite.  But there is good reason for defenders of religious freedom to pay particularly close attention.  The Executive Order states a series of solid principles such as the need for a rigorous cost-benefit assessment of proposed new rules and a requirement to consider whether non-regulatory means are available to achieve a proposed regulation's goals (such as user fees or the provision of information).  But then the President says that agencies may also consider in their decision-making such "values" as "equity, human dignity, fairness, and distributive impacts." 

Those are all good values, no doubt.  But why are they here?  And how will they figure into the regulatory process?  Might "human dignity" be interpreted by some agencies to be the same dignity interest that gay-rights activists often deploy as a hammer to limit the freedom of religious individuals and organizations?
Health Care Reform and Tax Funding of Abortion (episode 576)
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No reason to rehearse here the unfinished debates about whether the Patient Protection and Affordable Care Act that limped over the legislative finish line last Spring does or does not permit or require taxpayer funding of abortion.  Reps. Joe Pitts (R-PA) and Chris Smith (R-NJ) have a plan to make the debate moot.  Their bills, the "Protect Life Act" and the "No Taxpayer Support for Abortion Act," respectively, undercut the convoluted analyses of the abortion consequences of the law and the President's Executive Order related to the reform.  They set out in black and white that, whatever else the government might do in health care reform, one thing it is prohibited from doing is paying for or subsidizing abortions. 

Will the health care law be amended, junked, replaced?  Whatever.  With these bills lawmakers have a clear path to ensuring that these new federal health care funds, like other federal health care funds, cannot be used to support abortion or to undermine the freedom of conscience of health care professionals and organizations. 

Note, by the way, the stance of the US Catholic Bishops:  no to repeal of the law but yes to legislation to make certain there will be no federal spending for abortion and against freedom of conscience.  Legislators need not wink at abortion funding in order to support the current effort to reform our health care system.
Notable Quote
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"Turning our gaze from East to West, we find ourselves faced with other kinds of threats to the full exercise of religious freedom. I think in the first place of countries which accord great importance to pluralism and tolerance, but where religion is increasingly being marginalized. There is a tendency to consider religion, all religion, as something insignificant, alien or even destabilizing to modern society, and to attempt by different means to prevent it from having any influence on the life of society. Christians are even required at times to act in the exercise of their profession with no reference to their religious and moral convictions, and even in opposition to them, as for example where laws are enforced limiting the right to conscientious objection on the part of health care or legal professionals. . . . Acknowledging religious freedom also means ensuring that religious communities can operate freely in society through initiatives in the social, charitable or educational sectors."

--"Address of His Holiness Pope Benedict XVI to the Members of the Diplomatic Corps," Jan. 10, 2011.

H.T. to Tom Messner.
Worth Reading
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Stanley Carlson-Thies, "Liberty or Liability:  The Future of Institutional Religious Freedom," Comment magazine from Cardus, Jan. 21, 2011 (excerpt from a longer essay). 
Will You Support IRFA?
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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.