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The Administration Invents New Restrictions on Grantees
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Congress has never decided to add sexual orientation to the list of federal categories of forbidden discrimination.  And yet the Obama administration has started to forbid sexual orientation discrimination in some of the programs through which private organizations receive federal funds to support their services to the needy. 

Faith-based organizations typically do not exclude people from their services or even from employment because of a homosexual orientation.  But very often the organizations do desire to uphold what they regard to be a religiously based standard of chaste sexual behavior that rules out--for everyone--sexual relations outside of man-woman marriage.  However, to many in our society and government, that faith-based standard simply constitutes discrimination against gay people and ought not to be permitted.

The administration's commitment to stopping such "discrimination" gained high public visibility recently when President Obama and Attorney General Holder declared that the federal Defense of Marriage Act is unconstitutional in its opposition to gay marriage (while saying at the same time that the federal government would not stop enforcing DOMA's view that same-sex unions are not marriages in federal law).  The administration has taken a number of steps to make its own operations more "gay-friendly."

And it has started to press that requirement on grantees--private organizations that get federal funds.  The Corporation for National and Community Service, which operates the AmeriCorps program that gives small stipends to people who agree to volunteer for service in programs run by a variety of organizations, has added a sexual-orientation nondiscrimination requirement to its programs.  Last year the federal Department of Housing and Urban Development said it would require recipients of its federal grants to affirm that they comply with state and local nondiscrimination laws.

And more recently HUD proposed a regulation creating a new federal antidiscrimination requirement:  no sexual-orientation or gender identity discrimination in programs that HUD supports. 

And yet, as the US Conference of Catholic Bishops pointed out it its response to the proposed regulation, Congress has never authorized the administration to take the serious step of creating this new anti-discrimination requirement.  Moreover, at least to some degree, such a requirement conflicts with a law that Congress did pass:  the Defense of Marriage Act.

On top of that, as the USCCB says, the anti-discrimination requirement is likely to clash with the religiously grounded practices of many of HUD's service partners:  the many faith-based groups that provide housing services using federal funds.  Other partners may not care who uses their facilities in which combinations, but the faith-based providers should not be forced to disregard their convictions about appropriate sexual conduct when they offer housing or emergency shelter.

It is troubling that an administration that proudly has extended the federal faith-based initiative should seek to impose such a problematic rule on its faith-based grantees, without even an effort to deal with the very serious religious freedom consequences.

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The US Supreme Court yesterday upheld the Arizona tuition tax credit program though which taxpayers can designate a portion of their money to go to a school tuition organization (STO) instead of to the state treasury.  STOs then award scholarships to help students attend private schools.  Most of the schools where the scholarships are used are religious schools--and so some Arizona citizens, the ACLU, and others claimed that the program amounted to an unconstitutional "establishment" of religion.  (The case is Arizona Christian School Tuition Organization v. Winn.)

The Supreme Court didn't rule on that claim that the Establishment Clause was being violated.  Instead, in its 5-4 decision, the Court said that the Arizona taxpayers who had challenged the program did not have "standing" to complain.  For Establishment Clause cases, the Court uses a particular understanding of when someone has suffered a harm from government and can sue for redress or to make the government cease the action. 

The end result of the Supreme Court's action is that the Arizona tuition tax credit program has been upheld, and all those students who benefit by it by being able to attend religious and secular private schools can celebrate.

This is a victory as a byproduct of the rather esoteric doctrine of standing in Establishment Clause challenges.  On the other hand, the Supreme Court already has validated "indirect funding" programs like this more than once--government programs where the help that goes to faith-based schools gets there because private citizens decide that's what should happen.  The most prominent such decision was Zelman v. Simmons-Harris, the 2002 decision upholding the Cleveland school voucher program that provided government funds to the private schools--religious or secular-picked by parents. 

In 2007 the Supreme Court used its Establishment Clause "standing" doctrine to dismiss a constitutional challenge to the federal faith-based initiative in Hein v. Freedom From Religion Foundation.  That, too, was a sidestepping of the specific challenge.  But here too the Court had already ruled on the substance:  in its 2001 Mitchell v. Helms decision, the Court upheld government direct assistance to faith-based organizations as long as there are safeguards to make sure the money is not diverted from social services to inherently religious activities like evangelism or worship.  It is exactly that understanding that guides the federal faith-based initiative that was challenged in the case.

Suppressing Faith-Based Child-Serving Agencies in Virginia?
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In its proposed updating of its regulations on Minimum Standards for Licensed Child Placing Agencies, the Virginia Department of Social Services seeks to forbid by licensees all "acts of discrimination based on race, color, gender, national origin, religion, political beliefs, sexual orientation, disability, or family status" in placing children or serving persons who want to become a foster or adoptive parent (22 VAC 40-131-170(B)). 

Of course, faith-based agencies in the state, and the people who work with them or are helped by them, are very concerned.  It seems that, all of a sudden, it will be illegal for a religious agency to specialize in placing children with religious mother-father families. 

The proposed regulation is a hold-over from the previous administration, which sought in this way to enable gay couples for the first time to be able to adopt in the state.  Yet, even if Virginia chooses to permit such adoptions, it does not need to do so by requiring every private adoption agency to serve gay couples--even when those agencies have good reasons, even reasons grounded in religious conviction, for placing children in other family situations.

Hopefully the Department will take careful note of the protests that it received before the comment period ended last Friday.  And hopefully Governor McDonnell's office will get involved.  As a state legislator, Bob McDonnell over several years led the effort in Virginia to remove regulatory barriers that wrongly made it difficult for many faith-based organizations to collaborate with the state. 

It would be out of character and a tragedy if, as Governor, he now presided over a regulatory update that created a high new barrier to service by faith-based organizations.

Does the Charitable Deduction Look Like a Nail?
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The old saw goes, "if all you have is a hammer, everything looks like a nail."  In this age of far over-extended government, it must be a great temptation for legislators seeking to do the right thing to regard every government financial issue to be only a matter of more or less money coming in or going out.  And yet that would be to ignore crucial questions:  What is vital for the government to do?  And in matters that should concern the government, how can it best--most effectively, least expensively--foster the right outcome?

This latter question gets right to the issue of whether the deduction for charitable contributions should be reduced or maintained.  President Obama has proposed reducing the deduction, as have some of the committees and legislators deeply concerned with our huge and growing national debt. 

But a generous charitable deduction isn't simply revenue that the government can grab if it changes the rules.  Rather, as Sen. John Thune said last week at a Senate Finance Committee hearing, the deduction, by encouraging greater contributions to charities, lightens the obligation of government and taxpayers to provide help to the needy and poor.  The government declines to take a small amount of money, and in return rightly limits its own reach while helping civil society to thrive.

For more on the charitable deduction:

Ryan Messmore, "Obama's Latest Proposal To Reduce Charitable Deductions Would Crowd Out Civil Society," Heritage Foundation Backgrounder

Bernie Becker, "Tax break for charitable giving targeted," The Hill, On The Money blog

 "Study:  Church Giving Begins to Rebound, But Charitable Deduction Issue Looms Large," ChristianNewsWire

Keep up on the topic by checking these websites:

Evangelical Council for Financial Accountability

Alliance for Charitable Reform

Independent Sector

Obama Administration Proposes to Loosen Bush Faith-Based Limitations
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According to the Center for Faith-Based and Community Initiatives (yes, that's still the old Bush administration name) at the US Agency for International Development, the Bush administration's regulation designed to ensure equal treatment of faith-based organizations in overseas relief and development programs actually was too restrictive when it came to buildings. 

USAID's "equal treatment" regulation, dating from the Bush administration, created a level playing field in the US government's overseas humanitarian programs, enabling faith-based organizations to take part without sacrificing their religious character, while also protecting the religious-freedom rights of people receiving help.  The Bush rule also stretched existing legal interpretations by providing that government funds could be used to buy, build, or renovate buildings that would have religious uses, although the government money could only pay for the parts of the structures that would not be used for religion. 

The Obama administration has now proposed a revision of this regulation, arguing that the Bush rule is too limiting--that it misread the Establishment Clause as being more restrictive than it is.  In its proposed rule, USAID funds may be used to buy or build or renovate even structures that will be used entirely for religious activities, as long as the overall program that USAID is funding has a secular purpose, secular as well as religious people and organizations can take part in the program, the program will have a developmental effect, and neutral criteria are used to select the structure.  Thus, for example, a USAID-funded program for disaster relief could use federal funds to rehabilitate not only businesses and houses but also places of worship and religious schools.

The administration is now taking comments on its proposed rule. Closing date:  May 9, 2011.  No doubt the staff at Americans United for Separation of Church and State have sharpened and inked their pens . . .

Take Note
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Michael Casey (Adjunct Professor, University of Notre Dame, Sydney), on "intolerant tolerance" and "real tolerance":

"Tolerance, as we have come to practice it, assumes estrangement from each other. There is no common moral understanding, and even the idea of a common human nature is disputed. The only way of resolving the conflict of values is through the assertion of will. The relativism that underlies tolerance fosters suspicion, mistrust, fearfulness and lack of confidence in the world. It also encourages hardness and self-assertion in imposing one's beliefs or defending them against the hostility of others. People either live alone with their convictions entrenched or come together with the like-minded, either aggressively or defensively."

"Conceding the possibility of truth, and that we all share a desire to find the truth and to live in its light, changes the situation completely. Nothing is lost from diversity, disagreement, skepticism and dispute, but they are re-located within a common journey which makes trust, openness and respect for each other in our different moral commitments stronger and easier. This is what real tolerance means."

Interview:  "The puzzle of intolerant tolerance," MercatorNet, March 27.

Worth Reading
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