| ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
eNews for Faith-Based Organizations
May 15, 2012
Editor: Stanley Carlson-Thies
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ |
Access Past Issues of the eNews
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
An archive of current and past eNews for FBOs can be accessed HERE.
|
|
Religious Freedom and Respect in the Context of Marriage Redefinition
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Last Wednesday President Obama announced that his views on same-sex marriage had evolved. He said, "for me personally . . . I think same-sex couples should be able to get married." He grounded his stance, in part, in his Christian convictions and in the "golden rule." The President also noted that marriage has always been defined by the states and said that he did not intend to make same-sex marriage a federal policy, thereby undercutting debates and changes in the various states. And yet, of course, the President's high-profile and highly publicized pronouncement is a big asset to the activists pushing for same-sex marriage (as is his action to undermine the federal Defense of Marriage Act). And correspondingly his pronouncement is a matter of big concern to the many individuals, institutions, and religious communities in our nation whose convictions about marriage have not evolved alongside the President's views. The President said he desires the debates about marriage in our society to "continue in a respectful way." He said it is "important to recognize that--folks--who--feel strongly that marriage should be defined narrowly as--between a man and a woman--many of them are not coming at it from a mean-spirited perspective." They care about families, they have a different understanding of marriage, often their views are rooted in faith. A few thoughts. Christian, orthodox-Jewish, and other religious communities and individuals who hold to the historic view of marriage do so from a set of convictions about which kinds of relationships, sexual conduct, and family formations best contribute to human and social flourishing. In defending marriage as a life-long partnership between a man and a woman, we are offering our best wisdom about these matters to society, because we are sure this is wisdom for everyone, not just for our fellow believers. But what happens if our society increasingly comes to believe that the historic view is arbitrary and bigoted, that what we are sure is wisdom is rather a pernicious and mistaken conception? We should still argue for it, of course--we remain convinced it is wisdom and not nonsense. But we also need to do one other thing: strongly and persuasively appeal to our society and government to respect our convictions, even if many or even most others now have an opposite view. We should advocate for the freedom to live our own lives, personally and in the institutions we have created, in a way that we remain convinced pleases God and conduces to human flourishing. The point is made like this in I Timothy 2: "I urge . . . that requests, prayers, intercession and thanksgiving be made for everyone--for kings and all those in authority, that we may live peaceful and quiet lives in all godliness and holiness. This is good, and pleases God our Savior, who wants all men to be saved and to come to a knowledge of the truth." Our convictions may not win the day, as much as we are convinced they are right and good for all. Nevertheless, we can and should pray and work for the freedom to be able to "live peaceful and quiet lives in all godliness and holiness." That means being free to stick to our convictions about marriage, to speak about them without being coerced into silence, and to live in accordance with them rather than being required in our institutions to live by a difference set of convictions about marriage and relationships and sexuality. Ours is a country committed to freedom of speech, freedom of religion, and freedom of association. As the hot debates about marriage redefinition get even more intense, a renewed commitment to these freedoms, to mutual civic respect, and to pluralism is essential. Here is a high calling for our President, who has kicked off a new stage in our society's wrestling with marriage, a vital institution already greatly weakened by the neglect and disregard of many who claim to be committed to it, including many religious believers. And here is a high calling, too, for defenders of historic marriage: to speak in its favor with respect for others as well as with courage, and to bend all energy toward a new flourishing of man-woman life-time unions.
|
State Same-Sex Marriage Laws and Religious Freedom
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ In President Obama's comments last week announcing his "evolution" to the view that "same-sex couples should be able to get married," he noted that marriage is defined by the states. He also said that if he had been a legislator in New York last year, or the governor of the state, he would have acted to legalize same-sex marriage. He implied that one reason he would have supported marriage redefinition was because the New York legislature was careful to include religious-freedom protections in its same-sex marriage. Indeed, the New York law includes religious-freedom protections. Are they adequate? At a minimum the verdict has to be: the protections are neither extensive enough nor clearly enough articulated. If the President sincerely desires that our nation's wrestling with marriage redefinition shall go forward "in a respectful way," then he should use his leadership role make that happen. He should strongly urge any state that decides to redefine marriage to do so in a way that as robustly as possible protects the religious convictions and faith-based actions of institutions and individuals who hold to the historic view of marriage. That means, for a very important example, that faith-based adoption agencies must remain free to place children with married mother-father families without being charged with discrimination. What religious-freedom protections should a state adopt? Here's the template developed by constitutional-law scholars Douglas Laycock, Carl Esbeck, Richard Garnett, Robin Fretwell Wilson, Thomas Berg, Marc Stern, and others: (a) Religious organizations protected.Notwithstanding any other provision of law, no religious or denominational organization, no organization operated for charitable or educational purposes which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required to (1) provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization or celebration of any marriage; or (2) solemnize any marriage; or (3) treat as valid any marriage if such providing, solemnizing, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs. (b) Individuals and small businesses protected.(1) Except as provided in paragraph (b)(2), no individual, sole proprietor, or small business shall be required to (A) provide goods or services that assist or promote the solemnization or celebration of any marriage, or provide counseling or other services that directly facilitate the perpetuation of any marriage; or (B) provide benefits to any spouse of an employee; or (C) provide housing to any married couple if providing such goods, services, benefits, or housing would cause such individuals or sole proprietors, or owners of such small businesses, to violate their sincerely held religious beliefs. (2) Paragraph (b)(1) shall not apply if (A) a party to the marriage is unable to obtain any similar good or services, employment benefits, or housing elsewhere without substantial hardship; or (B) in the case of an individual who is a government employee or official, if another government employee or official is not promptly available and willing to provide the requested government service without inconvenience or delay; provided that judicial officer authorized to solemnize marriages shall be required to solemnize any marriage if to do so would violate the judicial officer's sincerely held religious beliefs. (3) A "small business" within the meaning of paragraph (b)(1) is a legal entity other than a natural person (A) that provides services which are primarily performed by an owner of the business; or (B) that has five or fewer employees; or (C) in the case of a legal entity that offers housing for rent, that owns five or fewer units of housing. (c) No civil cause of action or other penalties.No refusal to provide services, accommodations, advantages, facilities, goods, or privileges protected by this section shall (1) create any civil claim or cause of action; or (2) result in any action by the State or any of its subdivisions to penalize or withhold benefits from any protected entity or individual, under any laws of this State or its subdivisions, including but not limited to laws regarding employment discrimination, housing, public accommodations, educational institutions, licensing, government contracts or grants, or tax-exempt status. For a table comparing the religious freedom protections adopted in various states, see the letter from the above team of scholars to Washington Governor Christine Gregoire. The best--and very sobering--analysis of religious-freedom/same-sex marriage conflicts remains Same-Sex Marriage and Religious Liberty: Emerging Conflicts (2008), edited by Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson. |
|
EEOC Ruling Prohibiting Transgender Job Discrimination
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
In an April 20 decision, the Equal Employment Opportunities Commission ruled that transgender employment discrimination is a type of gender discrimination, and thus a form of illegal discrimination under Title VII of the 1964 Civil Rights Act. Title VII bans employment discrimination on the basis of sex, among other characteristics. The EEOC and various courts regard discrimination based on gender stereotyping to be a variety of sex discrimination. Similarly, treating an employee or prospective employee differently because the person is transgendered or is undergoing a sex-change is now considered to be another form of sex discrimination.
Title VII, of course, includes an exemption so that religious organizations can hire and fire based on religion--but not based on sex or other prohibited characteristics. In light of this new EEOC ruling, faith-based organizations that have a religiously grounded conviction that transgendered status or sex changes are incompatible with employment must be sure to have clear policies about such matters and to ensure that those policies clearly are grounded in the organization's religious principles. Expectations concerning belief and conduct also need to be clearly conveyed both to current employees and to prospective new employees. Consult with your organization's lawyer.
|
Sign Letter to HHS Sec. Sebelius On the Contraceptives Mandate and Religious Freedom
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
IRFA is circulating a sign-on letter to HHS Secretary Sebelius protesting the narrow religious-employer exemption--which denies protection to faith-based service organizations--in the regulations mandating employer coverage of contraceptives.
The letter says:
"[W]e are united in opposition to the creation in federal law of two classes of religious organizations: churches--considered sufficiently focused inwardly to merit an exemption and thus full protection from the mandate; and faith-based service organizations--outwardly oriented and given a lesser degree of protection. It is this two-class system that the administration has embedded in federal law via the February 15, 2012, publication of the final rules providing for an exemption from the mandate for a narrowly defined set of "religious employers" and the related administration publications and statements about a different "accommodation" for non-exempt religious organizations.
"And yet both worship-oriented and service-oriented religious organizations are authentically and equally religious organizations. To use Christian terms, we owe God wholehearted and pure worship, to be sure, and yet we know also that "pure religion" is "to look after orphans and widows in their distress" (James 1:27). We deny that it is within the jurisdiction of the federal government to define, in place of religious communities, what constitutes true religion and authentic ministry.
"Secretary Sebelius, we believe that there is one adequate remedy: eliminate the two-class scheme of religious organization in the preventive services regulations. Extend to faith-based service organizations the same exemption that the regulations currently limit to churches. This would bring the preventive services regulations into line with the long-standing, respected, and court-tested provisions of Title VII of the 1964 Civil Rights Act [��702, 703(e)] which provide a specific employment exemption for every kind of religious organization, whether they be defined as 'a religious corporation, association, educational institution, or society.'"
Staff and board members of faith-based service organizations can add their names to the letter by send the name, title, and name of the organization to info@irfalliance.org. Write "HHS Letter" in the subject line of your email. Deadline: May 31.
IRFA's memo on the contraceptives mandate, which includes the letter to HHS Secretary Sebelius and information about commenting on the promised "accommodation" for non-church religious organizations, is available in pdf format here.
It is available in electronic form-for easy forwarding!--here.
|
|
Congressional Fooling with RFRA and Religious Hiring
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Protecting Federal Lands But Undermining Religious Freedom Defenses. HR 1505, the National Security and Federal Lands Protection Act, which has a long list of Republican co-sponsors, is intended to increase border security within 100 miles of the border. It would authorize the Department of Homeland Security to "waive 36 federal environmental protection laws in the name of better border patrols on public lands," in the words of USA Today.
Of course, the idea of setting aside environmental laws in the name of increased homeland security has many environmentalists upset. What hasn't drawn equal attention and opposition is an even more serious issue: the bill's undermining of the Religious Freedom Restoration Act by including it in the list of laws that are waived.
RFRA, which was signed into law by President Bill Clinton in 1993 after being adopted by the House and Senate with almost no opposition and with the backing of a very broad coalition of religious and civil rights organizations, is the premiere federal protection for the exercise of religion. It was adopted in the wake of, and to reverse the effects of, the US Supreme Court's Smith decision, which weakened the First Amendment's protection of religious freedom. Through RFRA Congress restored the requirement that generally applicable laws that substantially burden religion are only valid if the federal government has a compelling interest and the laws utilize the least restrictive way of achieving their goals.
RFRA, among other important functions, provides crucial protection for the freedom of faith-based organizations to consider religion in hiring even if they receive federal grants or contracts. For that very reason, in a recent Congress one important Democratic bill (H.R. 5466 , Cong. Patrick Kennedy, 2010), which sought to add new restrictions to religious hiring by faith-based organizations that receive federal drug-treatment funds, at the same time specifically made RFRA inapplicable to the restriction. Fortunately, the bill went nowhere in Congress.
With this new bill--this time a Republican effort--RFRA again is fenced off, so that no one can appeal to it against action taken or proposed by the Department of Homeland Security. This time the rationale is to protect our national security. But the effect is no different than with the previous, Democratic bill on drug-treatment funding: weakening the protection of religious freedom against action by the federal government. Weaken it once and it will be an easier target the next time.
Members of Congress who care about the nation's flourishing as well as its safety will resolutely turn back this attack on RFRA.
On how RFRA protects religious hiring by faith-based organizations, see the June 29, 2007 World Vision memo of the Department of Justice's Office of Legal Counsel.
Reauthorization of the Violence Against Women Act and Religious Hiring. Senate Democrats and House Republicans are battling over changing VAWA as part of the reauthorization process. The Senate bill, S. 1925, which passed in April, includes a new prohibition against discrimination on the bases of gender identity (transgender status) and sexual orientation in service programs funded by the law. Progressive advocates of the change claim the noble purpose of expanding assistance to additional persons who are victimized by domestic abuse. Some conservatives protested expanded federal recognition of sexual minorities. The Republican House bill, H.R. 4970, does not include the additional language and has been characterized by the New York Times editorial page as an "atrocious bill" and a move "backward on domestic violence in part because it does not ensure services to gay and transgender victims.
But even more is at stake in this dispute than who counts as a victim of violence who is eligible for services. VAWA services are provided by private groups, including faith-based organizations, who get federally funded grants.
Here's the problem: whether purposefully or not, the Senate bill includes broad nondiscrimination language that undermines religious hiring. Here's the language: "No person shall . . . on the basis of [the listed characteristics] be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part" by VAWA funds. In other federal programs, just this formulation is understood to ban not only discrimination against people needing help but also religious hiring by faith-based grantees. The Senate's VAWA language might well mean that faith-based groups seeking to partner with government to serve victims of domestic violence will have to agree to give up their freedom to hire staff compatible in belief and conduct. The prohibition of discrimination on the bases of religion, gender identity, and sexual orientation could well be extended to the employment practices of the organization and not be limited to ensuring that the organization serves all eligible victims.
It will not be progress in serving battered persons if new categories of victims are added at the expense of making ineligible faith-based organizations who have developed good service programs.
For a discussion of how the broad nondiscrimination language like that proposed for VAWA reauthorization undermines the religious hiring freedom in federal programs such as Head Start, see the Bush administration's booklet, Protecting the Civil Rights and Religious Liberty of Faith-Based Organizations: Why Religious Hiring Rights Must Be Preserved (White House Office of Faith-Based and Community Initiatives, 2003).
|
|
|
|
Notable Quotes
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Michael Gerson, "A Generational Shift in Cultural Attitudes," Washington Post, May 10.
"[T]he generational shift [in views about gay marriage] will inevitably influence the fights conservatives choose to make. Even a significant portion of millennials who regard homosexuality as immoral support gay marriage out of a commitment to pluralism. And arguments in favor of pluralism have a tremendous advantage in America. In much of the country, social conservatives may need to choose a more defensible political line--the protection of individual and institutional conscience rights for those who disagree with gay marriage. It is also a commitment of genuine pluralism to allow those with differing moral beliefs to associate in institutions that reflect their convictions."
Jonathan Rauch, "Five Myths About Gay Marriage," Washington Post, May 11.
" 3. [It is a myth that:] A collision with religious liberty is unavoidable.
"Same-sex marriage, like gay rights protections generally, brushes up against objections from people who oppose homosexuality on religious grounds. What if a Salvation Army bookkeeper seeks health benefits for her wife? What if a student at a Baptist college demands married-student housing for his husband? Must religious-affiliated institutions choose between their principles and their nonprofit tax status? It's a real problem. The myth is that it's an unmanageable one.
"We know this because we have already dealt with it, in the context of abortion. Congress and the states have provided religious-liberty exemptions that let Catholic hospitals, for example, avoid performing the procedure. Many of the same kinds of exemptions can and should be offered in the context of same-sex marriage. Working out the precise balance between gay rights and religious liberty will take some time and effort, but, in the vast majority of cases, accommodations can be offered at acceptable cost to both sides." |
|
Worth Reading
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
* Stanley Carlson-Thies, "Keynote Address: Beyond Right of Conscience to Freedom to Life Faithfully," Regent University Law Review, 24, no. 2 (2012):
"What do we owe to God? It is a long list, but we do have a summary: We should love God with all of our capabilities and passions--that is, we should follow His way and not some other way--and we should love our neighbors as ourselves. Living in accordance with our consciences, considered in light of this summary, means not only refraining from doing things that dishonor God or harm our neighbors, but also actually doing things that please God and that are good for our neighbors. So, to fully respect conscience, there must be a positive freedom to act in certain ways, even when those ways go against our society's conception of what is good. It is not enough to have a right to refrain from taking part in certain actions that we regard as unacceptable."
* Robin Fretwell Wilson, "A Matter of Conviction: Moral Clashes over Same-Sex Adoption," BYU Journal of Public Law, 22 (2008)
"Faced with the inability to op-out [from a requirement to facilitate same-sex adoptions], agencies and professionals have already left the market. It bears repeating that providers are not captives of the state and need not continue to provide services. When put to an all-or-nothing choice, many have chosen nothing. Conscience clauses offer states one way to avoid such high stakes. The uncertainty created by a failure to speak clearly here hurts not only providers but prospective adopters as well, both homosexual and heterosexual. As the number of providers in the market shrinks, so too does the number of children that can reasonably be placed."
|
| IRFA Needs You!
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Keep the eNews for Faith-Based Organizations and IRFA afloat! IRFA depends in large part on donations from people like you, who care about faith-based services and about religious freedom. Will you come to the aid of IRFA in this season of giving? Thank you very much. |
| Join IRFA
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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
|
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ For further information:
e-mail: info@IRFAlliance.org
website: www.IRFAlliance.org
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ |
|
| 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.
|
|
|
|
