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eNews for Faith-Based Organizations
May 17, 2012:  Supplement and Correction

Editor: Stanley Carlson-Thies
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In this issue
State Same-Sex Marriage Laws and Religious Freedom--Corrected Exemption Language
May 31 Deadline: Sign Letter to HHS Sec. Sebelius On the Contraceptives Mandate and Religious Freedom
USCCB Comment on Contraceptives Mandate "Accommodation" Ideas
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State Same-Sex Marriage Laws and Religious Freedom:  Corrected Exemption Language
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Marriage redefinition in a state results in a long list of negative consequences for individual and institutional religious freedom.  They cannot all be eliminated but many can be mitigated. 

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.  The following is slightly corrected and updated from the version published in the May 15th issue of the eNews (where a "no" was missing from (b)(2)(B)):

(a) Religious organizations protected.
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 no 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) result in a civil claim or cause of action challenging such refusal; 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.

Note:  The best--and very sobering--analysis of religious-freedom/same-sex marriage conflicts remains Same-Sex Marriage and Religious LibertyEmerging Conflicts (2008), edited by Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson.
May 31 Deadline:  Sign Letter to HHS Sec. Sebelius On the Contraceptives Mandate and Religious Freedom

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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 [email protected].  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.

USCCB Comment on Administration's Contraceptives Mandate "Accommodation" Ideas
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On March 21, the administration published an Advanced Notice of Proposed Rulemaking, soliciting comments on a series of ways to implement its promised "accommodation" for religious employers who object to the contraceptives mandate but that do not fit within the extremely narrow definition of an exempt religious organization.

The US Conference of Catholic Bishops has published a lengthy memo commenting on the Advanced Notice.

Information about how to comment, with a short list of suggested comments, is available in IRFA's memo for parachurch organizations on the contraceptives mandate and its religious freedom consequences.  

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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.