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Another Attempt to Tinker with the Federal RFRA
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Believe it or not, in the guise of promoting the national defense an effort is currently underway in the Senate to weaken the Religious Freedom Restoration Act.  Tucked away in S. 981, the Senate's bill to authorize the Defense Department's budget, is a proposal to remove from RFRA's oversight the military's regulations concerning "wearing of items of religious apparel with the uniform."  Two efforts were made in the last Congress to restrict the scope of RFRA's coverage--once in a bill dealing with fraudulent funeral home practices and once in a bill that would have added new restrictions to religious hiring by faith-based groups that receive federal drug treatment funds.  Neither bill went anywhere.

RFRA was signed into law in 1993 by President Clinton, after being adopted nearly unanimously by Congress.  It is Congress' response to the US Supreme Court's 1990 decision in Employment Division v. Smith, in which the justices held that government rules can restrict religious exercise if the government is legislating neutrally rather than targeting religion.  RFRA restores the previous standard.  It exempts religious institutions and people from complying with a generally applicable law that would "substantially burden" their exercise of religion, unless the government can show that it has a "compelling interest" in requiring their compliance and that it has chosen the "least restrictive means" of furthering that vital interest. 

Note that there is no automatic exemption, no general free pass for religion.  And note that if there really is a vital governmental interest at stake, and the government has done its best to accommodate religious exercise, then it can impose even a "substantial" burden on religious people and organizations.

Of course, it is easier for the government not to have to accommodate religion more than it finds convenient, and it is more pleasing to government officials (just like all of us) not to be held to account for difficult decisions.  But freedom of religious exercise is a high value--a constitutional value.  And RFRA is our premier protection for religious exercise.  It is vital to keep RFRA intact, because support for the principle of religious freedom is waning (in part as a consequence of growing support for sexual freedoms).  One successful effort to restrict the scope of RFRA will just encourage a flood of additional proposals, removing this religious freedom protection where it is most needed.

 Hat tip to Steve McFarland, World Vision.

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On behalf of the Catholic Charities agencies in three dioceses (Springfield, Peoria, and Joliet), the Thomas More Society filed a lawsuit last week, seeking to stop the state of Illinois from requiring them to violate the Catholic Church's convictions about families and sexuality as a condition of contracting with the state to provide adoption and foster care services.  In late May, in order to avoid a conflict with the government, Catholic Charities in Rockford announced that it would not renew its contracts with the state.  Some other faith-based agencies are awaiting the new contracts, due before the end of the month, to see what the specific requirements will be.

The difficulties for the faith-based agencies started in March, after the governor signed into law a civil unions bill that requires partners in a civil union to be treated the same as married spouses.  Government officials, newspaper reporters, and activists started quizzing faith-based agencies about whether they would accept gay individuals or couples as suitable families for placing children.  Multiple other agencies already serve the gay community.  In a March 8 letter, the Illinois Attorney General demanded that Catholic Charities of Springfield prove that it does not engage in illegal discrimination when it recruits families and places children.

The lawsuit says that the Illinois Human Rights Act specifically excludes "sectarian" adoption agencies from its requirement that no "public accommodation" can discriminate on the basis of sexual orientation and marital status.  It also points to statements by the sponsors of the new civil unions law that, despite some ambiguity in the law's text, the law is not intended to "interfere with or regulate the religious practice of any religious body." 

And the lawsuit claims protection for the faith-based practices of the Catholic Charities agencies under the Illinois Religious Freedom Restoration Act.  Like the federal RFRA, the state RFRA is designed to restore the strong protection for religious freedom that existed before the US Supreme Court's decision in Employment Division v. Smith (see story above).  The Illinois RFRA requires the government to choose the "least restrictive means" of furthering its "compelling interests" when it adopts rules that limit the free exercise of religion.

However, as the lawsuit points out, forcing faith-based agencies to participate in gay adoptions and foster-care placements can hardly be the state's "least restrictive means" of ensuring that gay persons can adopt or take care of foster children given the many other agencies in the state that serve just such persons. 

The Illinois faith-based agencies that seek to recruit and work with married couples and with single people who adhere to biblical sexual standards are hoping that, this fall, the legislature will put into the law and regulations that apply to their services explicit language protecting their faith-based policies (efforts earlier this year failed).  The lawsuit is an effort to forestall any adverse action by the state before the legislature can fashion an appropriate remedy.

Effort to Protect Private Higher Education from Education Department Overreaching
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HR 2117, introduced by Congresswoman Foxx (R-NC), seeks to overturn parts of the new Department of Education regulations slated to go into effect on July 1.  The regulations are intended, among other things, to ensure the quality of the education offered by private colleges and universities.  The federal government provides extensive support to private higher education, and counts on accrediting agencies and state governments to ensure quality. 

Instances of poor quality, particularly in for-profit higher education, triggered sweeping regulations from the Obama Department of Education.  The regulations would, among other things, require states to expand their oversight of private institutions, leading to extensive concern by those institutions that their legitimate freedom to be innovative and distinctive was at risk.  Faith-based higher education has been particularly worried that the vague and overly broad regulations could undermine their religious mission.  The regulators offered an odd and wholly inadequate religious exemption in response.

HR 2117 would repeal several parts of the pending regulations, including the sections threatening the independence and mission of private secular and faith-based higher education.  The bill will be considered by the House Education and the Workforce Committee on June 15.

Persistent Media Myths
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The current issue of Conscience, the magazine of Catholics for Choice (vol. XXXII no. 1), has a series of articles criticizing President Obama's actions in the areas of abortion and faith-based initiatives.  Fair enough:  everyone is entitled to criticize and praise.  But Sarah Posner's article on "President Obama's Religion Program" carries a misleading subtitle:  "Ignoring the Law at the Office of Faith-Based and Neighborhood Partnerships."  The article charges the President with failing to fix two of the federal faith-based initiative's "most pressing constitutional problems--allowing faith-based organizations receiving federal dollars to discriminate in hiring, and allowing federal money to be dispersed directly into houses of worship." 

True, the President has neither ended religious hiring by faith-based grantees nor imposed a draconian requirement that churches create secular offshoots to operate government-funded services.  But that doesn't mean that either the President or Joshua DuBois, executive director of the White House Office of Faith-Based and Neighborhood Partnerships, are "ignoring the law."  If actually there was lawbreaking going on, Americans United for Separation of Church and State, the ACLU, the Freedom from Religion Foundation, and their many allies would be mobilizing their many lawyers to haul government officials or, more likely, vulnerable faith-based organizations, into court.

All the article demonstrates is that its author, and the critics she spoke with, wish that the law was other than it is.  They wish the law universally prohibits religious hiring by grantees, but it doesn't.  And they wish the law requires every grant recipient and contractor to be secular, but it doesn't. 

And the article contains this oddity.  It praises President Obama's November, 2010, executive order for including some "bright points" in church-state matters.  The executive order "prohibits organizations receiving federal grants from discriminating against or proselytizing the people it serves; requires the grantees to offer secular or other religious alternatives; and requires that 'explicitly religious activities' must take place at a separate time and location from the federally funded services."  But that first supposed advance in church-state principles is already the law across federal agencies, thanks to President Bush; the second one is only an extension of the Charitable Choice principle signed into law by President Clinton; and the third is just a renaming of a requirement that goes back to the Bush and Clinton administrations.  Oops.

Quotations to Ponder
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Charles Haynes, First Amendment Center (Vanderbilt University and the Newseum), "As gay rights advance, should religious groups get accommodation?" June 3, 2011:

"[S]hould the advance of gay rights force a retreat of faith-based groups from adoption and foster-care programs? Or can we accommodate religious convictions by carving out exemptions in civil-union and gay-marriage laws?

"Ensuring that Catholic Charities (and other faith-based groups) can participate in state-funded programs and continue their work on behalf of children in need not only would serve the common good, but it also would reaffirm our commitment to liberty of conscience as a fundamental human right.

"Equality and liberty are core American principles, but neither should trump the other. Let's uphold both by moving from gay rights vs. religious freedom to gay rights and religious freedom."

Support IRFA
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Are these analyses helpful?  Do you see the need for forward-acting initiatives to maintain a public square in which faith-based services can thrive?  There are many good causes that claim your support.  Will you make IRFA one of them?

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