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eNews for Faith-Based Organizations
March 12, 2012

Editor: Stanley Carlson-Thies
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In this issue
White House Consulting Faith Groups About Additional Contraception Accommodation
Squeezing Religious Freedom by Expanding Gay Rights
Is Politico Right: Federal Faith-Based Fade-Away?
Pharmacists' Conscience Rights Vindicated in Washington Federal Court
Worth Reading
Worth Hearing
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White House Consulting Faith Groups About Additional Contraception Accommodation
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Administration officials have said they are working quickly to craft an additional regulation to implement President Obama's promised "accommodation" for non-church religious organizations that object to the contraceptives mandate.  The White House has been inviting in for discussion a series of faith-based organizations and leaders, among them the Institutional Religious Freedom Alliance.  Officials say they are working hard to develop a genuine solution for non-exempt religious employers that reject having to include contraceptives, including abortion-inducing drugs, in their health plans.  Yet there is no sign that the administration is willing to abandon its flawed framework.

Recall:  the regulation finalized on February 10 exempted only churches--religious organizations that serve and hire primarily people of their own faith and whose purpose is the "inculcation of religious values," not the provision of health care, or education, or shelter, or adoption services, etc.  Even pregnancy resource centers, which are dedicated to counseling and assisting women so that they choose life rather than abortion, are required, if they decide to provide health insurance to their employees, to buy insurance that pays for contraceptives that can induce abortions!  

The administration on February 10 said it would craft an additional regulation that would make it possible for objecting "religiously affiliated" organizations to buy insurance that doesn't cover the contraceptives--and that instead would obligate the insurance companies involved to provide, without cost to the employees or to the religious organizations, all of the mandated contraceptives.  The new regulation is supposed to resolve the conscience issue also for organizations that self-insure.  

Many faith-based service organizations, religious leaders, and church-state experts remain extremely concerned about the administration's stance.  They point out that, notwithstanding the President's promise, the insurance companies will have to pay for any contraceptives that employees choose to use and, since the insurers are forbidden to charge co-pays, they will have to roll those costs into the premiums paid by the objecting religious organizations.  In any case, it is because the religious organizations object to including contraceptives or abortifacients in their health insurance plans that their insurers will be required to contact their employees to offer them, for free, exactly those drugs and procedures!  

Of even broader concern is the very framework the administration has adopted:  designating two classes of religious organization--those that are religious enough to be shielded from the mandate itself, and the other ones, those that serve the public and provide help that is not narrowly religious and who get only the concealment of the mandate.  And yet faith-based service organizations--rescue missions, overseas development groups, adoption agencies, health clinics, community development organizations, schools and colleges, and all the many others--are just as much religious organizations as are houses of worship, religious orders, and seminaries.  Consider, for example, the Christian conviction:  we are under two great commandments--to love God fully and to love our neighbors as ourselves (Matt. 22:37-39).  One is not lesser than the other, such that organizations dedicated to love of neighbor may be given only a lesser degree of protection for their religious identities and faith-based standards.  This two-part scheme, although present in some state laws, establishes a new and abusive precedent in federal law and seriously undermines religious freedom.

IRFA President Stanley Carlson-Thies, accompanied by Pamela Palumbo, who heads the Pregnancy Clinic network in Bowie, Severna Park, and Annapolis (all in Maryland), spoke last week with the administration about the mandate and the promised additional regulation.  I stressed that grave concern about the mandate and exemption extends far beyond the Catholic bishops and centers on the religious freedom concerns (notwithstanding the biased press reports)--in particular, there is great opposition to the creation of two classes of religious organizations.  The administration claims that the original exemption cannot be changed, only supplemented.  And yet, I pointed out, the Obama administration had no qualms or difficulty in rescinding the Bush administration conscience regulation because it wanted to weaken its protections.

Mrs. Palumbo stressed that pregnancy clinics across the United States (also called pregnancy resource centers) counsel women about sexual integrity, helping them to consider healthy life choices, instead of dishing out birth control information and pills.  How then can it be right for the government to require insurance that they provide to their employees to cover contraceptives and abortifacients?  To the White House rejoinder that everyone opposed to abortion should welcome free and easy access to birth control, she pointed out the experience and statistics of her own clinics and their clients.  In three decades of service, despite how easily available contraceptives already are, the percentage of their clients who use birth control has not gone up at all.  When asked, the women don't explain their pregnancies as being due to a lack of access to birth control or an inability to pay for contraceptives.

Actually curbing unwanted pregnancies--and reversing the epidemic of STDs--clearly will take something more, something other than, making contraceptives even more easily available than now by mandating their access via employer insurance (this isn't to imply that the use of contraceptives is unimportant to many women and families).  Counseling and mentoring--not just pills and fact sheets--must be a foundational part of the solution.  But if so, then the government should do everything it can to ensure that value-promoting organizations such as faith-based pregnancy centers and other religious neighborhood organizations can flourish.  For that, it must protect, not encroach upon, their religious identity, integrity, and way of serving.

Time for a religious freedom reset.  This long, messy, and vitally important fight over religious freedom (not over the legality or accessibility of birth control!) underlines the inadequacy of the current government strategy to honor the First Amendment's religious freedom clauses.  And as our society becomes more religiously diverse, the need for a new approach becomes ever more pressing.   

The current approach is for the government first to decide that some aim is so worthy that it should be enforced by a sweeping universal rule, and only second to turn some attention to working--with enthusiasm or, as here, reluctantly--to arrange some exemptions or other accommodations that can be made without too much bother.  And yet exceptions can rarely fully protect people and organizations whose convictions lead them to an alternative way to live and serve.  For example, despite all the shouting and backtracking and court cases and legislative efforts in the contraceptives mandate fight, no clear resolution is in sight for public-serving faith-based organizations, and very few of those in power have even considered exempting from the mandate the owner of a small business--it could be a religious bookstore or retreat center or child-care center--who has a deep religious objection to underwriting abortion-inducing drugs.

In a new strategy, the government should do this:  first determine whether the imposition of a proposed sweeping rule will significantly encroach upon the religious exercise of citizens and organizations.  If it will, then foreswear the universal rule unless failing to impose it will cause significant and great actual harm that can be mitigated no other way.  Find some other way to achieve the great good--some way that reflects what government, after all, exists to achieve:  to help the (diverse) citizens and their (diverse) organizations to flourish, not to regiment them into a single mold.
Squeezing Religious Freedom by Expanding Gay Rights
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You don't have to be anti-gay or an alarmist to be . . . alarmed.  An early March "Minding the Campus" blog post by John Rosenberg says that "Pressure has been building for President Obama to sign an executive order prohibiting discrimination based on sexual orientation, gender identity, or gender expression by federal contractors . . . ."  Rosenberg notes a strategy session by the ACLU and gay activists in outgoing Rep. Barney Franks' office, op-eds and editorials in major newspapers, and a call for action from the Williams Institute at the UCLA law school.  

There's no reason to think an ENDA Executive Order would remain confined to federal contractors--companies and nonprofits that provide goods and services to the federal government.  Activists will have no reason not to press for the rules to be applied also to all grantees who get federal funds--nonprofit organizations, faith-based and secular--who receive federal dollars from federal agencies or through state and local governments to provide services to needy people.  And why stop with organizations that get government dollars?  The various ENDA bills--Employment Non-Discrimination Acts--that Congress has declined to pass for two decades would apply a sexual-orientation and gender identity non-discrimination requirement to private employers just because they employ people--no need to receive government dollars to be subject to the rule.

As Rosenberg says, an ENDA Executive Order would cause a huge religious freedom battle.  That's not because faith-based organizations are anti-gay, though some no doubt are.  Rather, it is because many faith-based organizations, desiring that their work communities live in accordance with the religious principles that inspire the respective organizations, maintain a code of conduct that restricts sexual activity to man-woman marriage.  An ENDA that adequately protects the freedom of religious organizations to maintain such a code of conduct is not so easily designed.  And many of the activists pressing for ENDA laws and Executive Orders aren't very interested in protecting religious freedom anyway.

There's another reason to worry.  The more the federal government takes action that can be construed as being pro-gay, the more fodder there is for lawyers, administrators, and judges to claim that there now is a compelling governmental interest that overbalances religious freedom claims.  Activists will make that argument even though the Constitution explicitly protects religious freedom and only by extension gay rights, and even though the ENDA bills that have advanced in Congress all have had some provision to protect the ability of faith-based organizations to stick to their religion-based employment standards.  

Even before any consideration of an ENDA Executive Order, the administration has taken various actions that might be used to make the argument that gay rights are so important as to overshadow religious freedom.  The most important was the statement of the President and the Attorney General a year ago that the Defense of Marriage Act is discriminatory and unconstitutional because it bans federal recognition of same-sex marriages, and declare that the federal government will not defend DOMA in court.

The remedy isn't to deny the full protection of the law to every citizen, whatever their sexual orientation or gender identity.  Rather, the point is, while doing so, to avoid suppressing the legitimate religious freedom of individuals and institutions.

See also:

Steven Aden and Stanley Carlson-Thies, "Catch or Release?  The Employment Non-Discrimination Act's Exemption for Religious Organizations," Engage, 11:2 (Sept. 2010).

Gregory Baylor and Timothy Tracey, "Nondiscrimination Rules and Religious Associational Freedom," Engage, 8:3 (June 2007).
Is Politico Right:  Federal Faith-Based Fade-Away?
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Carrie Budoff Brown's Feb. 28 Politico article, "Obama faith council's quiet fade-out," caused a brief media and blogosphere tempest:  "Oh, that crazy faith-based initiative that Bush insisted on and that Obama for whatever reason continued . . . fading into the sunset?  Who cares?  Never amounted to much."    

Indeed, there is a lack of momentum and enthusiasm.  As she noted, the first group of members of the Advisory Council on Faith-Based and Neighborhood Partnerships had a banner term of office, turning out a major report in March, 2010--which included the recommendation that President Obama should essentially maintain the church-state rules that had been developed under President Bush and President Clinton.  And yet, since then, only half of the second group of members has been named and no official meetings have been held.  

But the Advisory Council is hardly the sum and substance of the federal faith-based initiative.  There wasn't even any such Council before President Obama, and the work of the federal faith-based initiative can and has continued despite the dwindling away of the Council.  That work is carried forth principally by the White House Office of Faith-Based and Neighborhood Partnerships,and by Centers for Faith-Based and Neighborhood Partnerships located in 13 federal agencies such as HHS, HUD, Justice, Commerce, USAID, Education, and Veterans Affairs.  

Then again, maybe the reaction to the Politico article was not so far off.  A major activity of the federal faith-based initiative offices under this administration has been to reach out to faith-based and grassroots groups to enlist them in supporting and singing the praises of various administration initiatives, such as the health care reform law, environmental policy, and the First Lady's Let's Move! project.  Meanwhile, it has been some 16 months since President Obama issued his Executive Order 13559 that confirmed with some modifications the Bush/Clinton church-state rules that govern federal funds that go to faith-based organizations--and yet the Working Group created by the Executive Order that was supposed to report on any needed changes within 120 days has yet to make a public statement.  The websites of the various Centers don't even mention this key Obama Executive Order nor do they any longer provide any other church-state guidance to faith-based and secular organizations considering working with federal programs.

And then there is the Obama administration's cluelessness and grave mistakes on the religious freedom/contraceptive mandate issue and its determined promotion of pro-abortion and pro-gay rights actions, even though these encroach upon the freedoms of faith-based organizations . . . .  Are the faith-based offices weighing in effectively on these policy developments, standing up for the rights of faith-based organizations and secular nonprofit organizations?  There is no clear evidence of that.
Pharmacists' Conscience Rights Vindicated in Washington Federal Court
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Faith-based organizations can hardly maintain a distinctive identity if the professionals they hire are required by government rules to violate the very principles and ways to serve that flow from those organizations' convictions and identities.  So the freedom for faith-based service organizations to be different is dependent in significant part on the freedom for professionals of faith to follow their convictions even when these lead them to act differently than many of their colleagues do.  

Given all this, the February 22 victory in a Washington federal court for conscience rights for pharmacists is very significant.  In this Becket Fund case, the court struck down a Washington state law that required pharmacists to dispense the abortion-inducing drugs Plan B, the "morning after pill," and ella, the "week-after pill," even if they have a religious objection to facilitating abortions.  

In 2007, the Washington Board of Pharmacy adopted a regulation forbidding pharmacies from referring patients to other pharmacies due to conscience concerns.  But the Board allows such referrals for many other reasons, though, such as convenience or economic factors.  The Washington court said this unequal treatment was clearly wrong.  The Board claimed its rules were neutral and applied across board, so an accommodation for religion or conscience was not necessary.  The court didn't buy it, at all.  Instead, the court said, the Board's rules "were designed . . . to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted."

The Washington decision is a great victory for conscience and religious freedom.  But consider this:  in a few short months, that same Ralph's Thriftway pharmacy that doesn't have to stock Plan B and ella will only be able to buy health insurance for those very same dissenting pharmacists and its other employees that pays for Plan B and ella. . . .
Worth Reading
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Carl Esbeck, "A Religious Organization's Autonomy in Matters of Self-Governance:  Hosanna-Tabor and the First Amendment," forthcoming in Engage, 13/1.  Discusses the extent of the autonomy of religious organizations upheld in this unanimous US Supreme Court decision, and distinguishes the Court's ruling here from the Smith decision of 1990, which in general curtailed the scope of religious freedom.

William Galston and Melissa Rogers, "The Quest to Balance Health Care Providers' Consciences and Patients' Needs," Governance Studies at Brookings, Feb. 23, 2012.  A helpful overview that takes seriously the conscience rights of religious persons in health care.  Concedes too easily the legitimacy of universal rules despite the diversity of convictions among health care professionals and institutions and the public.  Does not strongly uphold institutional freedoms.

Peter Berger, "Contraception and the Culture War," Religion and Other Curiosities, Feb. 22.  Note, among other pithy observations, this sentence: "Obama's captivity to his much-vaunted 'base', with its strongly secularist contingent (I have called it an American version of the Turkish ideology of Kemalism--religion is a virus to be kept out of public space, quarantined in religious reservations)."

Mary Ann Glendon, "First of Freedoms?  How religious liberty could become a second-class right," America, March 5.  "Emboldened by recent developments, militant secularists are claiming that religious freedom is an unnecessary right. Some maintain that religious people and groups already have all the protection they need or deserve from antidiscrimination laws and constitutional safeguards for freedom of expression and association. Others, more insidiously, treat religious liberty as part of a generic liberty right rather than a distinctive freedom that merits special exemptions and accommodations."

Ray Pennings, "Personal, not private," Cardus blog, Feb. 23.  "Religion may be personal but it isn't private. In fact, it is a public good that makes our society livable and humane, and a resource that is neglected at our peril."

Greg Baylor, "Florida Misunderstands the First Amendment," Townhall.com, March 9.    "The State of Florida is punishing students who choose Florida Christian College (FCC), simply because the school is religious. Through the Florida Resident Access Grant (FRAG) program, the state provides over $2,000 in annual tuition assistance to qualifying students who attend private colleges and universities in the state. In order to participate, a student must attend a college that has 'a secular purpose.'  The Florida Department of Education decided that FCC lacks 'a secular purpose,' even though it teaches 'secular' subjects and prepares many of its students for 'secular' vocations."

Rupa Shenoy, "Success seen in Christian-focused prison program," Deseret News, Feb. 18. "A controversial program using Christian teachings to try to turn around the lives of hundreds of Minnesota prison inmates is working, according to a new report from the Department of Corrections.  Participants in the InnerChange Freedom Initiative, which operates at the Minnesota women's prison in Shakopee and at a men's prison in Lino Lakes, are more likely than others to stay out of prison after their release, according to the report."
Worth Hearing
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Switch off the electropop, country crooning, or classical bliss, turn off the HDTV, and rest your eyes from your current tome (whether tree-based or digital).  Click this link  and select one of the six half-hour "Dialogues on Law & Justice" hosted by Ken Myers of Mars Hill Audio (aka the Christian NPR).  The most recent two dialogues are with Rick Garnett (Notre Dame law school) and Carl Esbeck (U. of Missouri law school), both discussing the unanimous US Supreme Court vindication of the rights of religious organizations in the Hosanna-Tabor case.  The other dialogues feature other church-state experts, such as John Witte (Emory University), Michael McConnell (Stanford law school), and Robert George (Princeton University).
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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.