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eNews for Faith-Based Organizations
July 26, 2011
Editor: Stanley Carlson-Thies
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Access Past Issues of the eNews
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An archive of current and past eNews for FBOs can be accessed HERE.
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President Obama Defends Religious Hiring
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At a town hall meeting at the University of Maryland last Friday, President Obama was challenged to follow through on a campaign promise and stop allowing "taxpayer-funded organizations" to deny applicants employment due to their religion.
Rather than agree with the questioner from the Secular Coalition for America, the President said that he thought current practice has struck "the right balance" between general laws that forbid employment discrimination and a "carve-out" for religious organization "in their hiring for particular purposes." The balance, he said, is guided by the First Amendment, which "ensures there's freedom of religion" even though religious organizations can't simply ignore general laws.
The questioner wasn't satisfied. She later said, "Unfortunately, the president didn't address the most egregious aspect of this policy--that religious discrimination is occurring on the taxpayer's dime. Discrimination is wrong in all forms, especially when it is being funded by taxpayers."
In fact, religious hiring by religious organizations is not considered wrongful discrimination in the law--it isn't "religious discrimination." Our premier civil rights law, the 1964 Civil Rights Act, specifically permits rather than forbids religious organizations to consider religion when hiring and firing. Nor do faith-based and other private organizations become agencies of the government if they receive government dollars, such that it makes sense to say that taxpayers are responsible for whatever they do. That idea wipes out the distinction between government and the civil society organizations that agree to partner with government to provide assistance.
The President's answer, too, needs clarification. The exemption that protects religious hiring by religious organizations--what he called a "carve-out"--doesn't, as he said, just date back to the Clinton years but instead stems from the Civil Rights Act of 1964 as amended in 1972. (More accurate yet: religious organizations already were free to hire by religion when Congress in the early 1960s decided it was time to create a federal law regulating discrimination by private employers. The religious hiring exemption they wrote into the law acknowledged and preserved the preexisting religious hiring freedom.) What President Clinton did was sign into law several times the Charitable Choice provision, which simply confirms the preexisting fact that faith-based organizations do not lose their religious hiring freedom merely by accepting "taxpayer dollars."
Nor was the President very clear when he said that the "balance" in the law is this: "if you have set up a nonprofit that is disassociated from your core religious functions and is out there in the public doing all kinds of work, then you have to abide generally with the non-discrimination hiring practices. If, on the other hand, it is closer to your core functions as a synagogue or a mosque or a church, then there may be more leeway for you to hire somebody who is a believer of that particular religious faith."
It is always dangerous to let the legislature or the courts decide whether some activity is closer or further from a religion's "core functions," so the law instead says that if the organization actually is a religious organization, then it can consider religion in hiring for any and all of its job positions, even when, as is common with faith-based social services, the organization and its employees are "out there in the public doing all kinds of work."
Of course, if a religious group sets up a secular organization that has no religious identity and purpose, then indeed it is subject to the ban on religious hiring, just as are other secular organizations (although sometimes there can be a Bona Fide Occupational Qualification requiring that a particular employee must be a religious person).
What's most important is what the President did say clearly: "I think we've struck the right balance so far." But the opponents of religious hiring strongly disagree, so there is every reason to expect further challenges to that "balance" from Congress and the courts and the next time the President entertains questions from activists.
Resources:
Information about religious hiring: http://irfalliance.org/religious-hiring.html
C. Esbeck, S. Carlson-Thies, and R. Sider, The Freedom of Faith-Based Organizations to Staff on a Religious Basis (Center for Public Justice, 2004). Free download here.
July 12 letter from multi-faith group of faith-based leaders to the President defending religious hiring.
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Preserve the Charitable Deduction~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The Evangelical Council for Financial Accountability, the Association of Gospel Rescue Missions, Jewish Federations of North America, and the National Catholic Development Conference joined other charitable associations and foundations in a July 14th letter to Sen. Max Bacus, Chair of the Senate Finance Committee, asking him to oppose efforts by the President and others "to reduce or cap the value of itemized deductions for charitable contributions." In a time of a skyrocketing national debt and gathering gloom about a possible national default on debt repayment, it's no surprise that Congress and the President (and state legislators and city councils) are searching for ways to increase government income. Yet, as the letter points out, in our current recession, charities need more, not fewer, resources to serve people and communities in need. And charities contribute to economic recovery through their employment and spending. Moreover, the charitable deduction, rather than serving to enrich those who take it, "encourages behavior that enriches communities . . . because it successfully encourages taxpayers to give more." In a time of economic stress, this is one tax incentive that ought to be preserved or even expanded. For more on the charitable deduction and initiatives to protect it, go to: Independent Sector Alliance for Charitable Reform
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Split Coming Among Lutheran Charities
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ A recent AP report by religion writer Rachel Zoll examines how the disagreement between the Evangelical Lutheran Church in America (ELCA) and the Lutheran Church-Missouri Synod (LCMS) about the Bible's teaching on homosexuality has precipitated a parting of the ways in social service work. For more than a decade, the two denominations have collaborated on a wide range of services domestically and internationally through Lutheran Services of America, an alliance of over 300 Lutheran agencies. Many of the services are extensively funded by government. A Missouri Synod committee last week issued a set of guidelines to denominational agencies and churches on whether to maintain cooperative efforts with ECLA institutions. Because cooperation has been so extensive, often having started long before LSA was created and having led to the creation of joint or intertwined agencies, separating out Missouri Synod's charitable initiatives will be difficult. Social services may suffer. And yet the collaborative structure of LSA itself has been problematic for faith-based services in at least one way. LCMS churches and agencies--theologically more conservative than their ELCA counterparts and more intent on preserving a character distinct from the surrounding culture--have been much more concerned to preserve their freedom to hire based on religious conviction and standards. But as battles have raged in Congress and through three administrations about this crucial freedom, the LCMS voice has been muted. LSA was designated to speak on public policy issues for Lutheran charities, and it could not speak up on behalf of religious hiring because LCMS and ELCA agencies did not agree on the importance of the issue. But the consequence wasn't neutrality. Rather, in the multifaith coalitions that have championed this vital freedom that undergirds the religious identity and distinctive practices of faith-based service agencies, the Lutheran voice, the LCMS conviction, was missing or muted. That silence has weakened the coalition standing against the strong pressures to force faith-based agencies to adopt the same employment policies as secular service providers. As LCMS agencies disentangle themselves, there is an opportunity to strengthen the voice in American public policy standing for a robust institutional religious freedom. |
| Health Care Law and Conscience, Again
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Disagreement about whether the health care law adopted last year will, or will not, cause federal funds to be spent on abortions is not even over yet and now comes the prospect of another attack on conscience and religious freedom in health care. Last week, the Institute of Medicine recommended to the federal Department of Health and Human Services that every health insurance plan should pay for "the full range of FDA-approved contraceptive methods [and] sterilization procedures." Existing plans that don't cover all such "preventive services" would not have to change their policies, but would lose their exemption as "grandfathered" plans if the plans changed significantly in other ways. HHS Secretary Sebelius will decide whether to accept the recommendation on August 1.
There's an important question whether all of those FDA-approved "preventive services" are so good for human health and flourishing. Beyond that there is a vital question of protecting conscience and the religious freedom of religious health care entities. Helen Alvare put it like this:
"Even if [the Roman Catholic Church's] warning about women's health goes unheeded, however, conscientious health care providers, especially religious ones, ought not to be forced to participate in HHS's plan to heighten the profile of contraception in women's health care. Catholic medical institutions are the largest providers of health care to women and men in the United States. Catholic employers serve vast numbers of poor and immigrant and other vulnerable populations. In fact, their social services, health care, and educational facilities regularly pick up the pieces of lives injured by the prevailing sexual marketplace, a marketplace that the federal government is preparing not only to affirm but to exacerbate. At the very least, religious entities ought not to be forced to become complicit in such a plan."
Faith-based organizations, and professionals and citizens with religious conviction, have every reason to share the Catholic Church's deep concerns about this latest disturbing news about health care reform--whether or not they share the Church's views about contraception.
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| Protecting the Religious Freedom of Counselors
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Eastern Michigan University counseling student Julea Ward was kicked out of the program when she asked to refer to another counselor a client who desired counseling on his homosexual relationship. It didn't matter that her counseling courses had affirmed that a counselor ought to make a referral when a counseling situation would create a crisis of conscience. It didn't matter that she was ready to counsel the client on other issues. She was out, and a federal judge upheld the University's action and the American Counseling Association's requirement. The court's decision has been appealed. And Michigan's Republican attorney general has weighed in on the side of Julea Ward. (See earlier eNews story here.)
Now she has also received support from an unexpected quarter: Senator Tupac Hunter, the state Senate's Democratic floor leader, has drafted the Julea Ward Freedom of Conscience Act. The law would prevent state universities from dismissing students who refuse on the grounds of conscience to counsel a client.
Sen. Hunter says this about his proposed law:
"I believe a student should not be forced into a situation in which he/she would have to provide treatment that compromises their religious or moral convictions or requires them to conceal their values conflict in order to avoid expulsion from a degree program. How is this good for the student or the client, especially? There is no dishonor to the profession nor harm done to the client by simply referring him/her to another individual who can best assist the client in meeting his/her established goals for counseling."
Is Senator Hunter promoting discrimination? Surely instead his bill would simply codify common sense--and provide a reasonable way to protect religious freedom and conscience in a morally contested area.
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Non-discrimination Requirements Can Harm the Vulnerable
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Since last Sunday, "marriage" means something in New York that it has never meant before in that state And although the same-sex marriage law contains significant language about protecting religious freedom and religious organizations, there is still no legal consensus on the value or scope of the language. So religious organizations that continue to believe that marriage is reserved to a man and a woman who pledge their lives to each other, and that want to operate on that basis, cannot be quite sure whether they have become, without doing anything different, evil lawbreakers. But doesn't stamping out all "discrimination" represent unalloyed progress for society and for vulnerable people? Not exactly. In a thoughtful reflection on the religious exemptions that were shoehorned into the same-sex marriage law in New York, Walter Olson points out that imposing non-discrimination requirements on faith-based organizations can have grave negative consequences. The idea sounds good to many: just require the religious adoption agencies, health clinics, homeless shelters, residential group homes, etc., to serve everyone without discrimination. Just stop being selective--stop "privileging" people of the same faith, or families that adhere to the same sexual conduct standards--and just serve everyone, just like secular organizations do. And yet, as Olson points out, it is their very selectivity that makes faith-based organizations uniquely able to serve. (With regard to the first sentence of the quote below, note that the requirement "to serve all clients equally" is often imposed through general laws and is not simply a restriction that comes with government funds.) "Why shouldn't social-service institutions that accept public money have to serve all clients equally? That's a view held by many people I respect. And yet the record with such institutions suggests things can be more complicated than that: Purism on the equality front sometimes comes at the expense of clients in need. "Consider one of the salient modern controversies over religion in social services, the decades-long lawsuit Wilder v. Bernstein. New York City had long leaned heavily on institutions affiliated with major religious groups to provide foster placements for "their" kids--Catholic agencies making arrangements for Catholic kids and so forth. Lawyers from the ACLU sued, saying this perpetuated religious discrimination. In particular, they argued, it was unfair that Catholic and Jewish kids got the assistance of relatively strong agencies backed by long histories of community philanthropy and volunteering, while other kids, notably black Protestants, were left with whatever foster arrangements the city could cobble together. "In a settlement, the city agreed to scrap the system and cut back religious matching in favor of something more like a first-come-first-served method of assignment, turning the agencies into something closer to interchangeable outposts of a single foster system. Problem solved? No. Outcomes went from unacceptable to even worse as the new rules demoralized and drove away volunteers at the high-performing religious agencies without turning around the others. The city's foster-care system proceeded to lurch from crisis to crisis through 26 grueling years of litigation. "Whatever else we may disagree on, can we at least agree on trying not to repeat that sort of experience in an area as important as adoption? Messy though they can be in theory, religious exemptions have a crucial advantage in practice. As scholar Douglas Laycock of the University of Virginia has put it, they 'allow both sides to live their own values.'" |
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Support IRFA ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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? You can donate securely on-line here: http://irfalliance.org/donate.html. IRFA is a 501(c)(3) organization that depends on the support of those who understand that opposition to faith-based services is growing. That opposition requires a positive response that goes beyond courtroom defenses. Thank you.
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Join IRFA
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Faith-based organizations and associations of faith-based organizations can now support IRFA and institutional religious freedom by signing up for an annual membership. Organizations and individuals engaged in supportive work (leading, consulting with, or defending faith-based organizations, for example) can join as associate members.
For details and forms, go to: http://irfalliance.org/membership.html |
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ For further information:
e-mail: info@IRFAlliance.org
website: www.IRFAlliance.org
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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.
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