Bad News--and Good--for Institutional Religious Freedom

1. Yesterday was oral argument day at the Supreme Court for the blockbuster religious freedom case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. At one level, it is a case about whether a teacher in a faith-based school who teaches a non-religious subject but who has some religious duties should be considered a "ministerial" employee, such that the school is largely free to make decisions about her employment without running afoul of employment laws. At a deeper level it is a case about the rightful separation of church and state, a separation built into our system and philosophy of government and rooted in more than two thousand years of Western, Christian, and Jewish history. Unfortunately, the Department of Justice has decided to oppose the very idea of a protected space where churches and other religious organizations can make their own decisions about ministers.

Michael McConnell, top church-state expert at the Constitutional Law Center at Stanford University, said this about the case in yesterday's Wall Street Journal:

"[T]the Obama Justice Department has now asked the court to disavow the ministerial exception altogether. This would mean that, in every future case, a court--and not the church--would decide whether the church's reasons for firing or not hiring a minister were good enough.

"But the government, including the judiciary, is not entitled under the First Amendment to decide what qualifications a minister should have, or to weigh religious considerations against others. Is a secular court to decide, for example, whether confining Catholic priests or Orthodox rabbis to males is a correct interpretation of scripture, or merely a vestige of outmoded and stereotypical bias? . . .

"The Justice Department's brief grudgingly concedes that there may be an exception for employees performing 'exclusively religious functions,' but this is an illusory protection. Every church officer--even the pope--performs at least some nonreligious administrative duties. If the government's position were accepted, the courts would be embroiled in disputes about the selection of clergy at all levels and in every denomination. This would be a radical reversal of our nation's long constitutional tradition. . . .

"When the First Amendment declared that 'Congress shall make no law respecting an establishment of religion,' it meant that churches would support themselves and control themselves. And the separation of church and state is a two-way street: It protects the autonomy of religious institutions from governmental interference no less than it prevents advancement of religion by government power."

2. The other religious hiring action by the Supreme Court was its decision on Monday not to review the decision of the Ninth Circuit of the federal appeals court upholding religious hiring by World Vision USA. In the case, Spencer v. World Vision, the federal court in Seattle, and then the Ninth Circuit--twice--ruled that World Vision, though engaged in humanitarian work, was authentically a religious organization and thus covered under the religious exemption of Title VII of the 1964 Civil rights Act. Thus it was within its rights to fire three employees who decided that they no longer were committed to World Vision's religious beliefs.

Title VII forbids private employers from, among other acts of discrimination, hiring or firing a person because of their religion. But it includes a religious exemption (different than the court-created ministerial exception at stake in the Hosanna-Tabor case noted above) so that it is not illegal discrimination when a religious organization considers religion when hiring and firing.

The fired employees claimed that World Vision was essentially a secular humanitarian organization, not a religious organization. By choosing not to take up this case, the US Supreme Court lets stand the contrary view: an organization does not cease to be a religious organization just because it serves the poor and hungry in material ways and doesn't confine its help to prayer and religious teaching.

Second IRFA/Becket Fund Hill Briefing
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The second of five briefings for congressional staff on institutional religious freedom trends, threats, and solutions was held on September 30th. The topic: Maintaining the Freedom of Religious Hiring by Faith-Based Organizations. The expert panelists were Anthony Picarello, US Conference of Catholic Bishops; Kim Colby, Center for Law and Religious Freedom at the Christian Legal Society; Luke Goodrich, Becket Fund; and Steve McFarland, World Vision. Video will be posted soon on vimeo.com.

The series is a co-production of IRFA and the Becket Fund for Religious Liberty. The next briefings are on: protecting conscience and faith-based institutions in health care (Oct. 19); safeguarding faith-based services against charges of discrimination (Nov. 4); and protecting the mission of religious education (Dec. 9).

Defending Religious Freedom: New Catholic Initiatives and More
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The US Conference of Catholic Bishops announced last Friday the creation of a new Ad Hoc Committee for Religious Liberty. New staff will be appointed to expand the US Catholic Church's action in this increasingly contested area. The committee will be headed by Bishop William Lori of Bridgeport, Connecticut.

In announcing the new committee to the US Catholic bishops, Archbishop Timothy Dolan, president of the USCCB, noted the growing "assault" on religious freedom in the United States. He noted in particular a series of distressing actions taken by the Obama administration.

Not only the Catholic Church has decided that new initiatives are needed in this time of growing public skepticism about "sectarian" religion, expanding commitment to a notion of tolerance that regards truth claims as inherently coercive, and growing propensity to rank sexual freedom above religious freedom. Among other initiatives:

* a new American Religious Freedom Program at the Ethics and Public Policy Center

* the John Milton Project for Religious Free Speech at National Religious Broadcasters

* the Family and Religion Project, part of the Leadership for America "first principles" initiative at the Heritage Foundation

* the Religious Freedom Project at the Berkley Center, Georgetown University

* the Pew Forum on Religion and Public Life's analysis of growing restrictions on religion around the world

* the Institutional Religious Freedom Alliance

If School Choice Isn't Legal or Affordable . . .

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It was a shocking and heartbreaking story in last weekend's Wall Street Journal, "The Latest Crime Wave: Sending Your Child to a Better School," by Micheal Flaherty, president of Walden Media, which was co-producer of "Waiting for 'Superman'." The crime? Desperate parents lying about their home address in order to get their children out of an unacceptable neighborhood public school and into a functioning and safe public school in a different district. Enough parents have been driven to this form of "educational theft" to convince a number of school districts . . . not to improve their schools, but rather to hire spies to uncover parents engaging in this do-it-yourself form of school choice.

If those parents just had more money, they could do what other parents faced with unacceptably lousy or unsafe public schools do: move to a school district with a high-performing public school or enroll their children in a good private school.

Alas, too many of our fellow citizens don't have the resources to engage in that kind of legal do-it-yourself school choice. Too many private schools don't have sufficient resources to offer the scholarships they'd like to be able to give to poor parents. And, still, very few cities or states have made school choice a feature of their educational policy and systems.

School choice for all at the k-12 level: it is an essential reform for the sake of quality education, parental responsibility, and religious freedom. Why aren't the candidates for President telling us what they will do to maximize parental control in schooling?

Catholic Bishops Group Calls Out the President for Undermining Religious Freedom
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In a public Sept. 20th letter to President Obama, Archbishop Timothy Dolan, president of the US Conference of Catholic Bishops, sharply criticizes the Obama administration for a series of actions "that both escalate the threat to marriage and imperil the religious freedom of those who promote and defend marriage." The Conference had previously expressed its views to the President privately, but now has resorted to a public letter due to a nonresponsive administration.

The letter praises President Obama's "excellent Mother's Day and Father's Day proclamations" from earlier in the year, but then points to action by the administration which, in sharp contradiction, instead contributes to the weakening of marriage, as if every child, after all, doesn't deserve both a mother and a father.

In the letter and the attached "USCCB Staff Analysis of Recent Federal Threats to Marriage, April-August 2011," the USCCB underlines the threat to religious freedom and to people and institutions of faith posed by the Obama administration's decision not merely to refuse to defend the federal Defense of Marriage Act (DOMA), but rather actually to state that those who support husband-wife marriage and thus DOMA are motivated by prejudice and bias--no different than racial bigots. Should that view prevail in court, the United States will be plunged into "a national conflict between Church and State of enormous proportions and to the detriment of both institutions."

In additional to the administration's action to undermine DOMA and to cast opposition to same-sex marriage as just a form of irrational bigotry, the letter and attachment note the administration's support for a federal mandate to ban sexual-orientation discrimination in all adoptions, overriding the religious freedom of faith-based agencies; an effort to push into all federal agencies an extremist sexual-orientation "sensitivity training" program designed to root out "heterosexism"; and a Pentagon policy to open Navy chapels to same-sex weddings.

Catholic Health Association Calls Out the Administration for Ignoring Religious Freedom
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The Catholic Health Association, which represents "more than 2,000 Catholic health care sponsors, systems, hospitals, long-term care facilities, and related organizations," is famous, or notorious, for having enthusiastically supporting the Patient Protection and Affordable Care Act--blasted by critics as ObamaCare--despite detailed analyses from lawyers for the US Conference of Catholic Bishops that the health insurance law requires federal government support for abortion. The charge was false, CHA held; what is important is the expanded health care coverage promised by the law--fulfilling an important commitment of Catholic social teaching.

But the law is less innocent than hoped, the CHA has now concluded. In a strongly worded Sept. 22 letter to the Department of Health and Human Services, the CHA criticizes the new health insurance regulations that mandate that every plan offer free coverage of contraceptive services (including abortifacient drugs and sterilization), with only an extremely narrow exemption for religious employers. The exemption is "wholly inadequate to protect the conscience rights of Catholic hospitals and health care organizations in their role as employers." The exemption requires the government to make "unconstitutional" distinctions.

To be consistent with existing federal practice and constitutional requirements, what the Obama administration must do is rewrite the regulations, expanding the exemption for religious employers "to allow Catholic hospitals and health care providers to continue their ministry in fidelity to their religious beliefs and values."

Take Note
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"A New Mayflower Exodus" from Britain?

"I share a real concern that the attempt to impose the current prevailing template of equality and discrimination on religious organisations is an erosion of religious liberty. We are beginning to move back to where we came in the 17th century--a whole lot of people on the Mayflower leaving to find religious freedom elsewhere."

--Lord Jonathan Sacks, Chief Rabbi in Britain, speaking in June to a House of Commons committee about the growing number of instances where the freedom of religious people and organizations has been suppressed due to the draconian application of the Equality (non-discrimination) laws. The Telegraph, June 30, 2011, "Chief Rabbi: Equality laws leading to new Mayflower exodus."

Making an Uncommon Contribution to the Common Good

"Taking care of orphans is a fundamental duty of our faith and a characteristic Christian contribution to the common good. America, nonetheless, has an adoption and foster-care crisis. It is entirely appropriate to call out evangelicals for putting more energy into trying to stop adoptions by gays than into rescuing all those children lacking good families. Still, Christians truly concerned about orphaned children must not only open their doors to the children but also be willing to take on powerful activists. Those activists, in the name of stopping discrimination, are causing the shuttering of faith-based adoption agencies. Yet, the agencies aren't preventing gay adoptions; they just want to stick to their conviction that it is best, if possible, for children to be placed with faithful mother-father married families. The supposed non-discrimination crusade is reducing, not expanding, adoptive homes. Intended or not, it is an attack on religious freedom and faith-based service agencies.

"As evangelicals get re-energized for social and political action, we should take care not to underplay the urgent need in our secularizing world to preserve freedom of religion and conscience. For, as Mark Hatfield knew, our best contribution to the common good may be an uncommon contribution."

--Stanley Carlson-Thies, "Uncommon Contributor to the Common Good: The Legacy of Mark Hatfield, 1922-2011," Q: ideas for the common good (qideas.org).

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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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

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For further information:
e-mail: [email protected]
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.