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eNews for Faith-Based Organizations
May 1, 2012
Editor: Stanley Carlson-Thies
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An archive of current and past eNews for FBOs can be accessed HERE.
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Minor Changes Recommended in Church-State Rules for Federal Funding
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Last Friday, a federal Interagency Working Group released its recommendations for revising the church-state guidelines that apply when federal funding goes to faith-based and secular private organizations. The Working Group was established by President Obama's November 17, 2010, Executive Order, " Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations." Its task was to evaluate federal regulations, guidance, and practices in light of the Executive Order's principles, and to recommend changes. These are only recommendations, not regulations or even proposed regulations. That Obama Executive Order itself consists of some relatively minor amendments to President Bush's Dec. 12, 2002, Executive Order, " Equal Protection of the Laws for Faith-Based and Community Organizations." And this Bush Executive Order largely followed the principles of the Charitable Choice provisions included in four bills that President Bill Clinton signed into law in 1996 (welfare reform), 1998 (Community Services Block Grant), and 2000 (twice--SAMHSA federal drug-treatment funding). Last Friday's recommendations--"model" language for regulations and explanatory guidance, suggested training materials, even a quiz!--leave aside the complicated and controversial issue of the freedom of faith-based organizations to consider religion when hiring and firing, a freedom that only sometimes has to be given up when a religious organization receives federal funds. The recommendations (like the Obama and Bush Executive Orders, and the Charitable Choice principles) focus instead on other important issues, confirming these principles: 1. government officials must not be biased either against or for faith-based organizations that apply for funding 2. the religious identity of faith-based organizations that receive government funding is safeguarded (e.g., their freedom to display religious symbols, to have a religious mission statement, to have religious leaders on a board of directors) 3. a faith-based organization that receives government funding can continue to offer religious activities, separate from the government-funded program 4. government money received in the form of grants and contracts (rather than through vouchers or scholarships) cannot be used to pay for religious items, worship, religious instruction 5. clients or beneficiaries in government-funded programs cannot be required to take part in the privately funded religious activities, but they can be invited to participate 6. a grant- or contract-funded program cannot discriminate against beneficiaries or potential beneficiaries because of their religious beliefs or practice--or their lack of religion 7. if a faith-based provider receives government funds "indirectly"--by means of a voucher or scholarship that empowers the beneficiary, and not a government official, to select the faith-based provider over other alternatives-then the government-funded program can include religious elements The recommendations go a bit further than these consensus principles, following the lead of the Obama Executive Order. * The Charitable Choice right for a beneficiary who objects to the religious character of a provider to be referred to another provider is expanded to all federally funded programs, but not all of the important details are worked out here (how will the original provider know which other options are available? who will absorb the costs of the referral process?). * When grant applications are reviewed and in monitoring grants, officials should pay close attention to church-state issues along with other issues, such as financial management. * The federal government should post on its websites the church-state guidelines, and for each funding program state whether the funding is "direct" (grants or contracts) or "indirect" (vouchers or scholarships). Faith-based organizations that have partnered with government or that contemplate applying for funds in the future should pay particular attention to two elements of the recommendations. (1) There is detailed proposed guidance on how to identify religious speech, religious activities, and religious items that must not be funded with government grants or contracts. The proposed guidance follows existing rules, which have been validated in court decisions, and usefully point out that government funds cannot be used for "explicitly anti-religious activities," just as they can't be used for "explicitly religious activities." However, given the amount of non-coercive religious talk and activities that currently occur even in some government-run programs, according to researchers, the effort to ban all explicitly religious activities from every program the government directly funds may be unrealistic, as well as over-reaching. (2) The proposed guidance reminds faith-based organizations that act as "intermediaries"--organizations that receive government funds and then award the funds to smaller groups to form a network of service providers--that when they select the smaller groups they cannot use religious or anti-religious criteria. Because this proposed guidance will inform the decisions of federal departments and agencies when they develop revised regulations, policy documents, and internal training, religious freedom experts and faith-based organizations themselves should read the document with care and offer their comments to the White House Office of Faith-Based and Neighborhood Partnerships. See also Melissa Rogers' post on the White House faith-based office blog.
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IRFA Memo for Faith-Based Organizations on the Contraceptives Mandate
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The federal mandate that all health insurance plans must cover all contraceptives, including some abortion-inducing drugs, unless specifically exempted or otherwise released from the obligation, presents an overt challenge to many faith-based service groups. The mandate applies to plans and plan years that begin on August 1, 2012, or later. What should organizations do if they have religious objections to some or all contraceptive drugs and procedures? Is their particular organization exempt? What about the administration's promise of a special religious "accommodation" for non-exempt faith-based organizations? What options are available to speak out about religious freedom concerns? For a detailed look at the mandate and the institutional religious freedom issues, consult IRFA's new memo written specifically for faith-based service organizations. It includes action suggestions for leaders facing a decision about buying or renewing health insurance, suggestions for commenting on the administration's promised "accommodations," and a sign-on letter to the HHS Secretary which staff and board members can join. Find it here as an electronic document that you can easily forward to others. Find it here as a pdf document that you can download. |
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Every Man Is an Island, and the Constitution Ought to Say So?
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"No man is an island," John Donne famously reminded us in his 17th century meditation and poem. But some current activists want the Constitution amended to establish the contrary view.
The focus of their ire is the US Supreme Court's 2010 Citizens United decision, which said that the First Amendment protects free speech by corporations--considered "persons" in our legal tradition--as well as by individuals. But the activists are sure that spending by businesses to promote their political views is corrupting our political process, and one way to stop it is to strip free speech rights from corporations.
Thus the People's Rights Amendment, promoted by Congressman Jim McGovern (D-Mass.), former Speaker Nancy Pelosi (D-Calif.), and others. The proposed amendment says that when the Constitution refers to persons, it can only mean "natural persons," actual people, and not "corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state." And it says that nothing in the amendment "shall be construed to limit the people's rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people . . . ."
Except that a sure way to limit the free exercise of religion, free speech, and freedom of the press is . . . . to restrict those rights to individuals, stripping them from "corporations"--from institutions. Institutions are a vital way that individuals get together to make a bigger impact, to better exercise their rights, to more effectively promote a cause, make available a product or service. How protective would freedom of the press be if it did not protect the New York Times and the Drudge Report and not only Arthur Sulzberger Jr. and Matt Drudge? How much actual religion would the free exercise clause protect if it protected only individuals and not the faith-based organizations they create?
Whatever ought to be done about any excessive influence of money or business in politics, weakening constitutional protections for corporate--institutional--activity is not the solution.
See also: Eugene Volokh, "Congressman Proposed Amendment to Strip Most Newspapers, Churches, Nonprofits, and other Corporations of All Constitutional Rights," The Volokh Conspiracy, April 20.
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If ENDA by Executive Order, It Ought to Protect Religious Organizations
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Despite pressure from editorialists, some members of Congress, and gay-rights activists, it seems that President Obama will not propose an Executive Order prohibiting federal contractors from job discrimination on the bases of sexual orientation and gender identity, at least not before the November elections.
But if or when this or another President does decide to promulgate such an Executive Order, then, at the least, it ought to be written to protect the religious freedom of faith-based organizations that might contract with the federal government.
As Nathan Diament, executive director for public policy of the Union of Orthodox Jewish Congregations of America put it in a letter to the Washington Post, if the President decides to pursue an ENDA Executive Order, "he should be careful to protect the liberties of religious organizations that receive federal contracts or grants but might object to homosexuality. The president should do this by including in an executive order the strong exemption for religious employers contained in the stalled [congressional] Employment Non-Discrimination Act (ENDA) . . . . "
Diament notes that the religious organization exemption is supported by the Democratic sponsors of the congressional proposal and by the coalition of groups advocating for adoption of ENDA.
For more on ENDA's religious organization exemption, including its limitations, see Steven Aden and Stanley Carlson-Thies, "Catch or Release?; The Employment Non-Discrimination Act's Exemption for Religious Organizations," Engage, 11, no. 2 (September 2010).
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Persistent Myths About Religious Hiring
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Sarah Posner at Religion Dispatches seeks to blow the whistle on crisis pregnancy centers, also known as pregnancy resource centers. Some of them participate in the federal Alternatives to Abortion program and some may--or may not--be violating the rules that prohibit using federal funds to support religious teaching and activities. There may, or may not, be a real story here.
But the article for sure perpetuates a hardy myth: that it is a "Bush-era rule" that enables "recipients of federal funds to discriminate in hiring staff based on religion." According to the article, President Bush made up the rule; candidate Obama said he'd abolish the rule; but President Obama wimped out, so if "you've got a problem" with religious hiring by religious organizations that get federal funds, then "take it up with the Obama administration."
But maybe it isn't quite like that. Indeed, if President Bush had cooked up the rule using his executive authority, then President Obama could easily undo the rule, using his own executive authority. In fact, the freedom is grounded in decisions of Congress: in the religious exemption in Title VII of the 1964 Civil Rights Act, in the reality that the laws of only a few federal programs ban the practice by organizations that get funding from those programs, in Congressional laws that explicitly protect the freedom, and in the Religious Freedom Restoration Act. And the freedom is grounded in court decisions: Corporation of the Presiding Bishop v. Amos, the unanimous 1987 US Supreme Court decision upholding the Title VII religious exemption, and, among others, the 2005 New York federal court decision, Lown v. Salvation Army, which stressed that the religious hiring freedom does not vanish the minute government funds come in the door.
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A Quotation Worth Pondering
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Is the federal government engaged in a "war on religion"? Is tyranny just around the corner? Whatever you think about those questions, there is good reason to be alert to negative religious freedom trends in our time. Here's how Notre Dame law professor Richard Garnett, a top religious freedom expert, put it in a post on the Catholic Mirror of Justice blog: "It is the case, in my view, that there is a general move toward (a) the view that religious freedom does not extend much beyond the freedom to believe and worship, in the 'private' sphere; (b) the view that an expansive understanding of the antidiscrimination norm outweighs the religious-freedom rights of persons and institutions. . . ; and (c) the view that a condition of religious communities' activities in the 'public' sphere, or of their cooperation with government on social-welfare projects, should be compliance with the norms that (appropriately) are observed by government actors. This general move is, I believe, a threat to religious freedom, it is manifesting itself in many ways and at many levels, and the [US Catholic] bishops are right to be concerned about it."
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Worth Reading
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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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