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eNews for Faith-Based Organizations
April 17, 2012
Editor: Stanley Carlson-Thies
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VA Governor Signs Law Protecting Faith-Based Adoption Agencies
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ On April 9, Virginia Governor Bob McDonnell signed into law SB 349, legislation that ensures that private agencies in the state cannot be required to violate their religious or moral beliefs in placing children for adoption or foster care. Thus a faith-based agency that, due to its religious convictions, does not place children with unmarried couples or with gay individuals or couples, cannot for that reason be denied an operating license or a government grant or contract. SB 349 essentially puts into law the existing Virginia regulations. Why bother? The previous administration had proposed an extensive rewriting of the regulations that apply to private adoption and foster-care agencies. The regulations already prohibited agencies from discriminating on the bases of race, color, and national origin in making placement decisions--mirroring federal law. The rewritten rules would have also prohibited agencies from making decisions based on gender, age, religion, political beliefs, sexual orientation, disability, and family status. The state's many faith-based agencies that recruit religious families and work to place children in married mother-father families all of a sudden would have been labeled as discriminatory agencies and be forced either to violate their faith-based convictions about how best to serve or to close their doors. Note that receipt of government grants or contracts had nothing to do with it--the dispute was entirely about licensing requirements and child-placement decisions. The effort to add all the new prohibitions was turned down, twice, by the Virginia State Board of Social Services. But there was no reason not to expect a future administration to try to "improve" the regulations again. Hence the legislation, which in February passed the Senate 22 to 18 (the Senate is evenly divided between Republicans and Democrats) and the House of Delegates 71 to 28 (the House currently has 67 Republicans, 32 Democrats, and 1 Independent). The law makes Virginia only the second state to protect by legislation the freedom of faith-based agencies to make faith-based child-placement decisions, even if those decisions favor married families, religion, or a biblical standard of sexual activity. The other state with a similar law is North Dakota. The new Virginia legislation does not ban adoptions by gay persons or couples or non-religious people. It only preserves a diverse set of private adoption and foster care agencies. Here is the text of the law: ___________ § 63.2-1709.3. Child-placing agencies; conscience clause. A. To the extent allowed by federal law, no private child-placing agency shall be required to perform, assist, counsel, recommend, consent to, refer, or participate in any placement of a child for foster care or adoption when the proposed placement would violate the agency's written religious or moral convictions or policies. B. The Commissioner shall not deny an application for an initial license or renewal of a license or revoke the license of a private child-placing agency because of the agency's objection to performing, assisting, counseling, recommending, consenting to, referring, or participating in a placement that violates the agency's written religious or moral convictions or policies. C. A state or local government entity may not deny a private child-placing agency any grant, contract, or participation in a government program because of the agency's objection to performing, assisting, counseling, recommending, consenting to, referring, or participating in a placement that violates the agency's written religious or moral convictions or policies. D. Refusal of a private child-placing agency to perform, assist, counsel, recommend, consent to, refer, or participate in a placement that violates the agency's written religious or moral convictions or policies shall not form the basis of any claim for damages. ___________
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Catholic Bishops Call For "A Fortnight for Freedom"
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The Ad Hoc Committee for Religious Liberty of the US Conference of Catholic Bishops has published " Our First, Our Most Cherished Liberty: A Statement on Religious Liberty." This sets out the American, and Catholic, and ecumenical case for religious freedom, and names trends and decisions that undermine that constitutional freedom. The statement rightly points out that the work of upholding religious freedom cannot be the labor only of pastors and bishops. It must also be a commitment and action of lay religious believers and of the leaders and staff of faith-based service organizations. And to encourage and mobilize not only Catholic lay people and organizational leaders but also other religious communities and their faith-based organizations, the Ad Hoc Committee recommends a "fortnight for freedom": two weeks for prayer, study, religious training, and public initiatives that "emphasize both our Christian and American heritage of liberty." The two weeks will start on June 21, a special day marking St. John Fisher and St. Thomas More, two "martyrs who remained faithful in the face of persecution by political power," and end on July 4, Independence Day. Mark your calendars and start your planning! |
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No Obama Administration ENDA Executive Order After All
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Newspapers (e.g., the Washington Post), activists (e.g., Human Rights Campaign), and some 70 House Democrats have been pushing President Obama to promulgate an Executive Order banning job discrimination based on sexual orientation or gender identity by federal contractors. Past presidents have used Executive Orders to forbid racial discrimination by defense contractors and other companies that do business with the federal government, so the proposed sexual-orientation nondiscrimination Executive Order would follow in that line.
Yet not all "discrimination" is invidious and not all discrimination should be illegal (see the Rick Garnett essay noted in Worth Reading, below ). In fact, the last Executive Order applying to federal contractors came from President Bush and he used his power to authorize "discrimination." Specifically, his Executive Order from December, 2002, modified previous presidents' Executive Orders banning religious employment discrimination by federal contractors to make an exception for faith-based organizations with services the federal government might want to contract to obtain--for example, research and consulting. Bush's action brought federal contracting policy into line with federal grant policy, where, most of the time, faith-based organizations that utilize their legal freedom to hire by religion are eligible to receive federal grants to provide services to the needy.
The proposed new Executive Order, on the other hand, is an effort to go around existing federal policy--to achieve by presidential action what LGBT advocates have been unable to achieve for decades in Congress: adoption of an Employment Non Discrimination Act (ENDA) banning employment discrimination on the bases of sexual orientation (and gender identity).
The current ENDA bills, sitting stranded in the House and the Senate, have this merit: looking to the precedent of the 2007 ENDA bill that passed the House, the new bills have a robust exemption for religious organizations so that they can, if they choose, maintain a policy requiring staff to keep to the traditional religious conduct standard that restricts sexual activity to man-woman marriage. For more on ENDA and the religious exemption, go here.
Would an ENDA Executive Order have similarly robust protections for faith-based organizations that are interested in contracting to provide goods and services to the federal government?
We won't find that out for awhile, anyway, because last week, President Obama let it be known that he would not propose an ENDA Executive Order, at least not now, although he promised to keep pushing for an ENDA bill from Congress.
This story is not over, of course. Among other things, as the Washington Post reported, a "prominent liberal donor" has promised to spend $100,000 "to fly victims of discrimination at federal contractors to Washington to confront Obama and his aids and gin up public attention."
See also: Human Rights Campaign, "Obama Administration Policy, Legislative and Other Advancements on behalf of LGBT Americans."
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Vanderbilt Student Religious Groups Stand up for Associational Freedom
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The administration at Vanderbilt University, a private institutions in Tennessee, has adopted an "all comers" requirement for student groups and now requires all student groups (except fraternities and sororities) to allow any student to join and to run for leadership. Vanderbilt Catholic has declared it cannot accept this stripping of its ability to maintain a Catholic identity and will not apply in the new school year to be a recognized student group. Now a coalition of eleven other student religious groups, calling itself Vanderbilt Solidarity, has decided to reapply for recognition but without bending to the university's non-discrimination requirement.
Will the university bend, instead? As church-state expert Michael Stokes Paulsen has pointed out, as a private institution, Vanderbilt is free under the First Amendment "to maintain a distinctive anti-religious identity." That's because the First Amendment protects the freedom of expression and association, including the freedom of private organizations to exclude those the organizations regard to be incompatible with their respective missions and convictions. So here's the irony, as Paulsen says: it is that same right to be distinctive by excluding those who don't fit that Vanderbilt denies to the student religious groups.
Vanderbilt claims that its intent is not to suppress differences but rather to foster diversity and to give students the opportunity to interact with people and groups different from themselves. But if that is Vanderbilt's goal, then it should instead return to a policy allowing religious, political, and ideological groups to maintain their differences by ensuring that only people committed to their respective visions are eligible for leadership. That's the way to promote and protect real diversity.
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School Choice: Progress and Regress
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Full school choice--where the government's education dollars follow students to whichever school, public or private, religious or secular, is selected by those students' parents--is a good religious freedom policy as well as a prime way to foster better schooling for all students. Full school choice puts competition into the education funded by taxpayers, and it empowers poorer parents to do what other parents currently can do: pick the school they think is most suitable for their own children (richer parents already can choose schools--either picking a private school or moving to a different public school district).
Yet full school choice is also a good religious freedom policy. It gives all parents, poor as well as richer, the opportunity to select a school based on religious or philosophical or pedagogical compatibility. It ends the pernicious practice of steering all taxpayer funds only to secular ("public") schools while excluding from such support religious schools, merely because they are not secular. And it makes it possible for schools supported by taxpayers to incorporate into their education religious elements--exactly what many parents and students and teachers want. Why is that legal? As the US Supreme Court explained in its 2002 Zelman school voucher case, it is not a violation of the First Amendment for government funds to pay for education that includes religion, as long as the money goes to that religious education because parents themselves, and not government officials, have chosen such education for their children.
So the progress: Louisiana Governor Bobby Jindal is scheduled this week to sign legislation that will give the state a sweeping school choice policy. In the words of the Friedman Foundation for Educational Choice, "The expansion of the Student Scholarships for Educational Excellence Program will allow low- and middle-income students in Louisiana public schools graded 'C,' 'D,' or 'F' by the state accountability system to receive government-funded vouchers to attend private schools. Currently, that option is available only to children in New Orleans and students with special needs in eligible parishes." That's not full school choice but it is a worthy expansion.
And the regress: Yet again, President Obama has decided he wants to undermine rather than uphold the DC Opportunity Scholarship Program, a federal school choice program for Washington DC (as our national capital city, some DC policy is made by Congress). He's sticking to his opposition despite the solid gains of the students who use the scholarships in private, including religious, schools and despite the great popularity of the program among parents whose children otherwise are stuck in underperforming and often unsafe public schools.
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Worth Reading
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "Government funding is not the issue--the dispute is about regulations that apply to almost all employee health plans--whether or not the employer receives federal funds. The immediate flashpoint is the objection of many religious organizations to the requirement to cover birth control and abortion-inducing drugs when they make the laudable decision to offer employee health insurance. But the widespread and persistent opposition to the regulations stems from the Administration's creation of a two-class system of religious organizations. In this scheme, churches are "really religious," while faith-based organizations that serve the community are not. If such an interpretation stands, how will the distinctive identities and practices of faith-based services be protected in the future?"
[A] third option: a pluralistic public square. Under this vision, religious freedom for all is attained by welcoming all, but favoring none among the religious and secular belief systems of the nation. . . .
"This last vision translates into diversity and pluralism based on our ability to live together as one people in spite of our deepest differences. This pluralist vision requires a mutual respect that prevents any group--whether religious or secular--from trying to impose its beliefs onto others by force of law. It means, in today's world, that no Christian should seek to marginalize and deny the legitimate rights of gays and lesbians, and it means gays and lesbians ought not to try to force Christian adoption agencies to go against their religious beliefs by placing children with same-sex couples. It means Catholics ought not to try to limit the availability of contraceptives to the public, and the government ought not to force Catholic agencies to go against their religious beliefs by providing contraceptives in their employees' health insurance plans. This, I believe, is the path to a freedom of religion that assures freedom of beliefs and action for persons of all faiths and of none."
"The rhetorical, moral, and legal power of the antidiscrimination norm can sometimes distort or distract our thinking about how we do and should protect religious freedom through law. The near-universal, if sometimes unreflective, conviction that 'discrimination' is wrong means that assertions of religious freedom are sometimes heard as requests that political authorities tolerate a wrong--i.e., 'discrimination'-- which they would otherwise prohibit, penalize, or discourage. . . .
"We should not forget, though, that one dimension of the freedom of religion is, sometimes, precisely the freedom to 'discriminate,' and that this freedom should be protected not simply because such discrimination is an all-things-considered tolerable wrong--sometimes it is, sometimes it isn't--but because it is inextricably tied to something good--a human right--and is, sometimes, beyond political authorities' legitimate reach."
"While the Supreme Court has protected the right to determine religious leaders, the capacity of religious believers to form and sustain distinctive institutions is threatened today. The United States Department of Health and Human Services has proposed "preventive services" regulations that require provision of FDA-approved contraceptives, including abortifacients like Ella, and sterilization. These regulations threaten the religious freedom of insurers, employers, schools, and other religious enterprises that conscientiously oppose contraception and abortion. Limiting conscience protections to those in religious institutions that serve only their own members, as some have proposed, criminalizes the public witness of religious organizations such as Catholic universities and other religious social welfare institutions.
"Administrative and regulatory policies pose further threats to religious freedom. Christian doctors, nurses, pharmacists, and other health-care providers are being put at professional risk by policies that compel all health-care workers to undertake procedures and provide prescription drugs that many of them regard as immoral."
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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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