eNews for Faith-Based Organizations
September 26, 2011

Editor: Stanley Carlson-Thies
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In this issue
Oct. 5: Key Religious Hiring Case Argued at Supreme Court
Again: CARD Presses Obama to Limit Religious Freedom
Again: Faith-Based Adoption Agencies in Virginia Under Threat
Again: The President Advocates Cutting the Incentive to Donate
Illinois Shoves Out Faith-Based Foster Care Organizations
Video Available: Capitol Hill Briefings on Institutional Religious Freedom
ECFA Policy Commission Moves Ahead
Worth Noting
Support IRFA
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Oct. 5:  Key Religious Hiring Case Argued at Supreme Court 


The oral argument at the US Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC will be October 5th.  This is a blockbuster religious freedom case.  The specific issue is whether a teacher at a religious elementary school should be considered a "ministerial employee."  If so, then many employment laws do not apply to her.  The courts created the "ministerial exception" to keep government from inappropriately interfering in the internal affairs of churches.  Judges agree that employment decisions about clergy have to be generally free from government rules.  But what about a teacher as in this case, who teaches a secular curriculum but also is a commissioned minister, teaches religion classes, and leads students in worship and prayer? 


Religious hiring by religious organizations--using religion, but not race, age, etc., as a criterion--is protected under federal, state, and local employment laws (but sometimes with restrictions if government funds are involved).  That's a statutory protection, called the "religious exemption."  It is different than the "ministerial exception," which was created by judges and imposes fewer restrictions on employment decisions--but applies to a narrower set of employees.  But both the religious exemption and the ministerial exception rest on the separation of church and state rightly understood: the government is not authorized to impose all and every rule on the internal affairs of houses of worship and other religious organizations. 


There is legitimate debate about how wide the scope of the ministerial exception must be.  The US Supreme Court likely will strongly uphold the principle, even if it construes its scope more narrowly than some of the federal appeals courts have done.  Shockingly, the Department of Justice, stating to the Court the federal government's position, denied that there is a ministerial exception, although conceding that some ministerial employment decisions by religious organizations must be protected.  That's more extreme than the ACLU or Americans United for Separation of Church and State.  A very disheartening stance.

Again:  CARD Presses Obama to Limit Religious Hiring
At least they are persistent.  The Coalition Against Religious Discrimination, a collection of activist groups--not service organizations--on Sept. 19th sent the President a letter demanding that he take a series of actions to end what the group calls "federally funded employment discrimination."  In its attempt to shame the President into changing federal policy, the letter quotes back to him statements he made on the campaign trail.  Although you wouldn't know it from CARD's letter, only a small part of federal policy on religious hiring stems from the Bush administration; most of it goes back decades.  

Incautiously, on the campaign trail candidate Obama said:  "If you get a federal grant, you can't use the grant money to proselytize to the people you help and you can't discriminate against them--or against the people you hire--on the basis of their religion."  This was supposed to represent a corrective to policies of the Bush faith-based initiative.  And yet President Bush himself required groups not to discriminate against beneficiaries based on religion (this was the first time the rule was applied across all federal programs) and not to subject people to unwanted religious activities.  And religious hiring?  Well . . . .

Candidate Obama expanded on the statement in his speech with a written statement, which is helpfully attached to CARD's letter.  The written statement says: "And groups will be required to comply with federal anti-discrimination laws in their hiring practices--including Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin."  

Well, of course, every group that gets federal dollars--or for that matter, that simply exists--has to comply with federal laws!  So what is the federal law concerning religious hiring?  The employment discrimination rule of the 1964 Civil Rights Act specifically provides that it is not illegal discrimination for a religious organization to take account of religion when hiring and firing!  That reality was left out in candidate Obama's speech and written statement.

So, under federal law, a religious organization is acting fully within the law when it considers religion in making employment decisions. (Some federal and state laws are more restrictive when government funds are involved.)

Candidate Obama should have clearly stated the truth about religious hiring on the campaign trail, rather than making his contradictory statements.  Then, rather than being able to accuse the President of breaking campaign promises, CARD might have to admit that what it seeks is not compliance with the law but rather a change in long-standing law.
Again: Faith-Based Adoption Agencies in Virginia Under Threat

Private adoption and foster-care agencies in Virginia, in recruiting families and placing children, may not discriminate based on race, color, and national origin.  The law allows individuals (gay or not) to adopt or be foster parents.  If a prospective foster or adoptive home has a married couple, the rules ask the agency to assess the strength of the marriage.  And the law allows a private faith-based agency to take account of religion in working with families--and does not forbid any agency from specializing in non-religious families.  

These rules did not satisfy the previous administration (Tim Kaine, Democrat).  Instead, it sponsored a rewriting of the regulations to prohibit all private agencies from engaging in "discrimination" on the bases of "race, color, gender, national origin, age, religion, political beliefs, sexual orientation, disability, or family status."  No longer could there be any assessment of religion, or sexual behavior, or family formation.  The regulation would apply to all private adoption and foster care agencies, as a condition of licensing (i.e., whether or not they contracted with the state).

Faith-based agencies and others protested to the social service department when the comment period on the regulations was open, and they protested as well to the new governor (Republican Bob McDonnell).  The sweeping anti-discrimination rule was deleted.  

But activists have now used a provision in the state's rules about regulatory change to force the public comment period open again--until October 11th. They are hoping for a flood of comments demanding that the state forbid faith-based agencies from "discriminating" based on sexual orientation and religion in their foster care and adoption services, hoping to pressure the governor and the department to overturn the existing rules.  And yet it would be counterproductive to force faith-based agencies to close under the guise of expanding the pool of families that will accept foster or adoptive children!  

Again:  The President Advocates Cutting the Incentive to Donate

Commentators have found a lot to criticize in President Obama's proposed $447-billion jobs plan.  A key aspect of it that hasn't gotten enough attention is the President's idea of financing his plan not simply by more heavily taxing "the rich," but by including in the increased taxes a reduction in the value of the charitable deduction richer people can take for giving money away.  (But see the Chronicle of Philanthropy story by Lisa Chiu.)

Several times already the President has proposed cutting back on the charitable deduction for wealthy taxpayers, so far to no avail.  After all, an economy in the dumps strains charitable giving already, while expanding the need for charitable services.

A coalition of charitable groups, including the Association of Gospel Rescue Missions, the Evangelical Council for Financial Accountability, Jewish Federations of North America, and the National Catholic Development Conference, have protested the President's plan in a letter to Senator Max Baucus (D-MT), chair of the Senate Finance Committee.  

Of course, charitable giving won't go away even if the federal tax deduction for donations is entirely scrapped.  In particular, religious people are motivated primarily by their religious convictions, their duty and gratitude to God, to give, not by tax consequences.  And they give not only to religious causes but also secular causes.  (For an overview, see Arthur Brooks, "A Nation of Givers.")


Faith-based groups working with the homeless, the loveless, and the sick probably have less to fear by a change in federal giving incentives than do fans of opera, classical music, and museums.  Yet, a strong and diverse civil society is good for all of us.  This period of deep economic distress isn't the time to decrease anyone's incentive to give.

Illinois Shoves Out Faith-Based Foster Care Organizations
The Illinois governor and the Department of Children and Family Services are insistent:  the state's antidiscrimination rules concerning sexual orientation and marital/civil union status trump the state's constitutional protections of religious freedom and the state's Religious Freedom Restoration Act, which is intended to protect the free exercise of religion.

First DCFS told Catholic Charities agencies that it would no longer contract with them to provide foster care services (a court temporarily stopped the withdrawal of contracts and then let DCFS go ahead--more court action is to follow).  And now DCFS has stripped the Evangelical Child and Family Agency of its contract to provide foster care services.  (Virtually all foster care services in the state are provided by contract with the state government.)  

Why turn the foster care arrangements upside down, disrupting long-standing contractual relationships and the successful recruitment and placement records of these faith-based agencies?  Not because gay persons or civil-union partners in Illinois otherwise would be left out in the cold if they wanted to become qualified as foster care homes.  Everyone admits there are plenty of agencies more than happy to serve them.  No, the contracts had to be stripped because the government insists that no private agency should be allowed to exercise a faith-based conviction that it is best if a foster child is placed with a married mother-father family, even, horrors, with a faithfully religious married mother-father family.  Such a conviction, to the government, expresses mere invidious discrimination and it cannot be tolerated.  

It will take courageous legislators to craft a solution that enables the state to respect religious conviction in foster care services at the same time as it seeks to protect gay persons and couples from unjust discrimination. 
Video Available: Capitol Hill Briefings on Institutional Religious Freedom

IRFA is co-organizer, with the Becket Fund for Religious Liberty, of a series of five briefings for congressional staffers about the growing threats to the religious identity and faith-based practices of religious service agencies, and the measures Congress can take to protect this area of religious freedom.  

The first briefing, held on August 19th, introduced the series by stressing the importance of maintaining freedom for religious organizations and persons to exercise their faith in public life.  The faith-based initiative, now carried forward in a third administration, was a special topic.  The keynote speaker was former Congressman J. C. Watts (R-OK), who was one of the key congressional sponsors of a bill in 2001 to expand Charitable Choice to the wide range of federal social service programs.  The bill was adopted by the House but not taken up by the Senate.   Watch the video of the first briefing here.

The second briefing, September 30, in the Capitol building, H 137, will be on "Maintaining the Freedom of Religious Hiring by Faith-Based Organizations."  Subsequent briefings will be on "Governmental Respect for the Mission of Faith-Based Education," "Protecting Conscience and Faith-Based Institutions in Health Care," and "Safeguarding Faith-Based Services Against Charges of Discrimination."

A flyer on the series is available here.

ECFA Policy Commission Moves Ahead

Commissioners for the ECFA Commission on Accountability and Policy for Religious Organizations and members of its three advisory panels--legal experts, religious sector representatives, and nonprofit sector representatives--have now all been named and the basic structure and process of the Commission's work has been decided.  

Commission issues include whether:

  • churches should be more accountable to the federal government;
  • legislation is needed to curb perceived abuses of the clergy housing allowance exclusion;
  • the current prohibition against political campaign intervention by churches and other nonprofits should be repealed or modified;
  • the rules for determining the reasonableness of nonprofit executive compensation should be tightened;
  • penalties should be expanded for nonprofits and their leaders who engage in prohibited activities.

Recommendations will be made to Sen. Grassley and to the public.

The Commission is comprised of a varied set of Christian leaders.  The three panels include a wide range of leaders, representing major religions and other aspects of American and nonprofit diversity.

See the Commission's website for details:

ECFA, the Evangelical Council for Financial Accountability, itself was started in response to rising concern during the 1970s about questionable fundraising and spending practices of some religious charities.  ECFA was founded in 1979 as "a national accreditation organization for churches and other religious organizations" to promote best practices among religious charities and provide quality assurances to donors and the public. 

Worth Noting
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the important religious freedom case set for oral argument before the US Supreme Court on Oct. 5 (see the first story above) concerns whether a religious school teacher whose primary job is to teach a non-religious subject nevertheless should be considered by the courts and the government to be a "ministerial" employee.  Why should the courts consider a math teacher (as in this case) to be engaged in a genuinely religious role?

The amicus brief filed by professor Eugene Volokh, the National Council of Churches of Christ in the USA, the Baptist Joint Committee for Religious Liberty, the Queens Federation of Churches, the National Association of Evangelicals, and the Christian Legal Society gives the answer.  

The brief points out, among other considerations, that many religious schools stress that "teaching the faith occurs throughout the curriculum," including in supposedly "secular" classes.  That's a position held not only by evangelical Protestant schools but also by Catholic schools, among others.  In addition, teachers are expected to be role models that exemplify the convictions of the religion, and to follow those convictions when they discipline and counsel students.  And the brief stresses this vital point:  "By teaching and guiding children, [the teachers] act as the religious group's 'voice to the faithful' . . . as well as its 'lifeblood,' since every religious community is only a generation away from extinction and must transmit its beliefs to the young."
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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.