eNews for Faith-Based Organizations
June 28, 2011
Editor: Stanley Carlson-Thies
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New York Same-Sex Marriage and Faith-Based Services
According to news reports, it was concern that the same-sex marriage bill did not include adequate protections for religious freedom that stalled it for a few days last week. And it was, according to the New York Times, additional language providing "more expansive protections for religious organizations" that "helped pull the legislation over the finish line Friday night." Late on Friday, after a few more Republicans changed their stances, the state Senate adopted the SSM bill, the Assembly adopted the modified bill, and Governor Cuomo signed the measure into law, just before midnight.
So, did state Senators barter away for everyone in New York the forever understanding of marriage merely to protect the interests of a few faith-based organizations?
Of course, religious adoption agencies, residential facilities, k-12 schools and colleges, camps, and other charities ought to be able to continue not only to teach but also to live according to their religiously grounded convictions about marriage, family, and sexual conduct-even if the rest of society has adopted a different view. So legislators were right to insist on religious freedom protections. But is it right for legislators to go along with marriage redefinition for the state in general because they think they've been able to protect the religious exercise of a few organizations here and there?
That's not the right way to think about exemptions. Legislators who are convinced that marriage redefinition is wrong should not vote for it--because of the consequences for marriages and families. And yet legislators who are convinced that marriage redefinition is acceptable, or even required, are not free to adopt the change without anything more. Whatever their views on same-sex marriage, they remain obligated to protect religious freedom. That's a constitutional obligation. And so, because of principle and not trade-offs, legislators who decide to require that marriage be radically redefined are duty-bound to write into the law protections for religious freedom.
As to those protections that were forced into the law: lawyers now have new business interpreting what the several provisions actually mean. Certainly the law does not mirror all of the language recommended to the legislature by the top constitutional law experts on the topic. It does have some detailed protective language--but that language applies only to some organizations and only in the context of refusing to host or celebrate a same-sex ceremony. And there is specific language protecting clergy from having to officiate over same-sex marriages--but that is a redundant guarantee, thanks to the First Amendment.
And there is broader protective language--broader because it applies to a wider set of religious organizations, such as adoption agencies and other charities, and because it isn't limited to the wedding ceremony but extends to how people in same-sex marriages are treated. But that language, alas, is not crystal clear.
Faith-based organizations in New York that are committed to one-man, one-woman marriage will need to monitor public policy developments and consult with a lawyer who is paying attention.
And they ought to take great care in how they talk about same-sex marriage and their own commitments and policies, so that no one can misinterpret their commitment to their own legitimate religious freedom to be instead disparagement of other people and their convictions.
|Pitting Civil Rights Against Religious Hiring
The Coalition Against Religious Discrimination, a group of "religious, civil rights, labor, health, women's, and other organizations," last week wrote
to President Obama, asking him to rescind President Bush's action that made it possible for faith-based organizations that hire on a religious basis to become federal contractors. The CARD letter notes that President Bush's action (part of a December 2002 executive order) modified a line of executive orders that date back nearly 70 years to an FDR order forbidding employment discrimination based on "race, creed, color, or national origin" by defense contractors. The letter calls Bush's action a "civil rights rollback."
The first thing to note (although this vital detail was missed in many press reports) is that this dispute concerns only federal contracts--contracts to provide goods and services to the federal government. In other words, the Bush action that the CARD letter wants reversed has nothing to do with federal grants to provide social services, or health care, or education (and it has nothing to do with federally funded state or local grants or contracts to provide such services). This dispute is separate from all the fire and smoke concerning religious hiring that has been part of the big debates about the faith-based initiative.
The second thing to note is that, although the CARD letter attempts to drive a wedge between civil rights progress and religious hiring, in fact the two go together.
It was the 1964 Civil Rights Act (and its amended version from 1972), adopted at the height of the civil rights movement, that set out in Title VII for the first time national standards on employment discrimination by private employers. Note this: Title VII is carefully written to say that it is not illegal discrimination for a religious organization to consider religion when making its hiring and firing decisions, for any of its job positions. This religious hiring exemption isn't an exemption from the civil rights law but part of the very structure of the law--part of the very civil rights framework. (Title VII doesn't discuss government funding at all, so it does not remove the exemption if government dollars are received by the faith-based organization.)
In the spirit of this great civil rights law, what President Bush did in 2002 was to adjust the executive orders that previous presidents had adopted and modified--their rules concerning employment discrimination by federal contractors who provide goods and services to the federal government.
President Bush's 2002 executive order simply made the federal contracting rules take explicit notice of the Title VII religious hiring provision. Title VII says it is not illegal discrimination for a faith-based organization to take account of religion when hiring and firing. Why, then, should the federal government forbid such an organization, which is not violating the law if it hires by religion, from contracting to provide services the federal government needs?
Just think: the federal government may be seeking a contractor that can provide technical assistance or research concerning faith-based organizations and how the government can best work with them. Why should most faith-based organizations be ineligible to seek such a contract--merely because they exercise their freedom under the law to take account of religion when hiring some or all of their employees? Why should such faith-based organizations be excluded from any federal contracts at all, if they can perform the work?
President Obama should toss the CARD letter and maintain current practice. By keeping the religious hiring exemption in federal contract law, he will be continuing the right policy of prohibiting wrongful job discrimination while also honoring religious freedom.
|Proper Church-State Separation
Because some opponents of religion claim that "the separation of church and state" must mean that, whenever government shows up, religion must be silenced or forced into private corners, the separation idea has become a negative concept for many religious people.
And yet the notion that there is a legitimate and necessary division between government and churches is a deep feature of our civilization. In ancient Israel, there were separate offices of king and priest. Jesus noted a distinction between things owed to Caesar and to God. Discussion--and conflict--to set out the line between the appropriate scope of government and the rightful arena of churches characterizes much of Western history, from battles between emperors and popes to more current disputes about zoning, licensing, and marriage definition.
And employment. The current big case is Hosanna-Tabor v. EEOC
, a case about a teacher who was fired by a Lutheran elementary school (see the April 5 eNews
). The question before the US Supreme Court is whether the teacher was a "ministerial" employee such that the government cannot second-guess how the school dealt with her employment status.
This is a case about the "ministerial exception," which is different than the Title VII "religious exemption" discussed in the story just above. The outcome isn't directly relevant to most faith-based organizations. Their freedom to consider religion when hiring and firing goes back to that Title VII exemption, which is part of the 1964 Civil Rights Act.
The "ministerial exception," by contrast, is a freedom created by judges in response to the First Amendment of the US Constitution, which tells the government it must respect religious freedom and religious institutions. At the very least, judges have reasoned, that respect requires the government not to troll around inside religious organizations, making its own judgments about worship, theology, and the qualifications for ministers.
So, the US Supreme Court ought to uphold the "ministerial exception" and thereby confirm the rightful "separation of church and state."
For more on that separation as part of our history and part of this case, read the amicus brief
from Prof. Eugene Volokh, the National Council of Churches, the Baptist Joint Committee, the Queens Federal of Churches, the National Association of Evangelicals, and the Christian Legal Society.
A number of those "friends of the court" don't normally hang around together--that tells us how important the "ministerial exception" and the "separation of church and state" really are.
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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|What is IRFA?|
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.