A recording is now available of the July 31 IRFA conference call on the HHS contraceptives mandate (the call was rescheduled from July 26).  The call features Scott Ward and Patrick Purtill of the Gammon and Grange law firm responding to frequently asked questions about the mandate:  what it is, what it covers, who is and isn't exempt, and what (few) alternatives are available to organizations with a conscientious objection to providing coverage of some or all of the mandated "contraceptive services."  The recording lasts about 53 minutes.  Click here for the MP3 file to download and listen to.

Additional Resources

IRFA "Contraceptives/Abortifacient Mandate, Religious Freedom, & Parachurch Ministries"  

Gammon & Grange, "HHS Mandated Employer Health Insurance," G&G Law Alert (Nonprofit), July 26. 

Gammon & Grange, "The OTHER Mandate:  Compliance, Exemptions, or Civil Disobedience?" G&G Law Alert (Nonprofit), June 29. 

With little media attention, on July 30-31 the second installment of the President's Advisory Council on Faith-Based and Neighborhood Partnerships met for the first time.   The focus of this Council will be how to combat human trafficking and modern-day slavery.  The Council was briefed by experts from the administration and from outside organizations, including the International Justice Mission, World Relief, and Rabbis for Human Rights.  The Council will make recommendations to the President about federal policy and also about how the federal government can more extensively partner with private organizations, including faith-based organizations.  There are 15 members of the Council (more may be appointed), representing various Protestant denominations, Catholicism, Buddhism, Mormonism, Greek Orthodoxy, and secular viewpoints.

This second iteration of the Advisory has been long delayed.  The initial group, which first met in-person in April, 2009, ended its term in mid-March, 2010.  Its 25 members included a wide range of religious and secular leaders, and the group produced an extensive set of recommendations to the President on a range of topics, including domestic and global poverty, climate change, fatherhood, and inter-religious cooperation.  

A special taskforce of the first Council deliberated about the church-state guidelines for federal funding and recommended basically retaining the rules developed during the Clinton and Bush administrations (Charitable Choice provisions and Equal Treatment regulations, respectively).  The President generally followed that recommendation in his Nov. 17, 2010, Executive Order 13559, Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations.  That Executive Order set up a Working Group to recommend refinements and changes to federal rules and practice.  The Working Group's guidance mainly follows the Clinton and Bush rules (see eNews story here).  Noteworthy and vitally important:  the administration, despite great pressure, has not changed the religious hiring rules that apply to faith-based organizations that receive federal funds (see the story below).   

Notwithstanding this strong and important continuity of principles, the delayed start and limited membership and tasks of the second iteration of the Advisory Council suggests waning interest by the Obama administration in the so-called "faith-based initiative."  

But more disheartening than the diminished nature of the second Advisory Council are two other administration trends.  

The first is the downplaying by the administration of publicity about and training on the church-state principles.  During the Bush administration, the websites of the various Centers for Faith-Based and Community Initiatives in major federal departments provided clear statements about the freedoms and responsibilities that shape the partnerships that faith-based and secular nonprofits enter into with the federal and state governments.  And those Centers and the White House faith-based office spent a great deal of their time helping private groups--and government officials--understand those rules.  Now, even the Centers at HHS and Labor--formerly outstanding sources of guidance--are nearly silent about the critical church-state guidelines.  Of course, the rules still are the rules, but without training and publicity government officials can backslide, and inexperienced faith-based and community groups can regard themselves not to be welcome.

The other, and even more disheartening, trend is the apparent sidelining of the faith-based staff when the administration makes decisions that indirectly--but strongly--undermine faith-based organizations.  True, the church-state rules for funding remain in place, as do the rules on hiring by religious organizations.  These are vital rules, so kudos to the administration for sticking to them.  

But other administration policies have been damaging.  Just two examples: (a) the HHS contraceptive mandate, which not only tramples upon the religious freedom of organizations that oppose some or all forms of artificial birth control but also damages all faith-based organizations by its arbitrary and erroneous categorizations of authentic religion; (b) pressure by the US Agency for International Development to get its private partners, including faith-based organizations, to adopt pro-LGBT practices.  

Where have the faith-based office and the faith-based centers been as administration officials have pushed these policies forward? Among the key tasks that the Bush administration gave its White House faith-based office and its departmental faith-based centers was to look inward--to continually probe whether government policies and practices were deliberately or inadvertently limiting the rightful freedoms of faith-based and also secular private organizations.  

An adequate federal faith-based initiative won't just preserve the good rules--as important as that is--but will be constantly monitoring federal practices to counteract governmental entropy, which always drifts to secularism, and to ensure that religious freedom is not eclipsed when other interests and rights are promoted.

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 The ACLU is on a hunt, recently submitting a Freedom of Information Act request to the Department of Justice to find out which federally funded faith-based organizations have received from the government a certificate exempting them from laws prohibiting religious job discrimination, and on what basis such certificates are granted.  

The story is told by Sarah Posner at Religion Dispatches and is the latest in her long series of laments that, as the story is entitled, the "Obama Administration Gives Free Pass for Faith-Based Groups to Discriminate." But there's an internal contradiction in the story.

On the campaign trail, candidate Obama promised to stop faith-based organizations that get federal money from hiring on the basis of religion in the programs they operate with the government funds.  However, President Obama has not changed the federal government's practices with regard to religious hiring and, when challenged, he and his officials say they oppose discrimination, comply with the laws, and, if there is a question about the legitimacy of religious hiring by a federal grantee, will investigate on a case-by-case basis.

That's not been a satisfactory answer to Posner, the ACLU, nor to the other organizations that periodically join together as the Coalition Against Religious Discrimination to blast the administration for immorally and illegally permitting religious hiring by those federally funded faith-based organizations.  The immoral practice was authorized by President Bush in an Executive Order, these critics say, and thus President Obama could just as easily stop the practice with his own Executive Order.

Instead, there is just this lamentable "case-by-case" review.  Just what is that?  Posner and the ACLU think they discovered the answer in the written follow-up that Attorney General Eric Holder provided after being questioned about religious hiring by Congressman Bobby Scott (D-VA) in a December, 2011, House hearing.  Holder referred to the case-by-case review process authorized by the Department of Justice's Office of Legal Counsel memorandum of June 29, 2007, the so-called "World Vision opinion."  AG Holder said that there were 8 faith-based organizations that received exemption certificates--and the ACLU is attempting to learn who those groups are through its FOIA request.

But whatever the ACLU learns, it won't be the answer Sarah Posner, the ACLU, and CARD are seeking.  For one thing, as AG Holder says, those certificates were granted in FY 2008--the last year of the Bush administration--and the Department of Justice did not receive any "requests for exemptions to the prohibition on employment discrimination in FY 2009, the first grant year of the Obama Administration."  So whatever the ACLU learns, it will be about the Bush administration, not the Obama administration.  

More important is another reality, clearly stated by AG Holder in his written answer.  The "World Vision opinion" and the associated "case-by-case" review concern a special set of federal programs and the laws that govern those programs.  These particular programs are governed by laws that specifically prohibit grantees from considering religion (and other criteria) when deciding who to hire and fire.  

The prohibition raises this question:  may a faith-based organization, such as World Vision, that does hire by religion, nevertheless participate in such a program?  The "World Vision opinion" says yes it may, because of the Religious Freedom Restoration Act (RFRA).  But the organization may participate despite its religious hiring only if it can certify that it "sincerely believes that providing the services in question is an expression of its religious beliefs; that employing individuals of a particular religion is important to its religious exercise; and that having to abandon its religious hiring practice in order to receive the federal funding would substantially burden its religious exercise."  

If the faith-based organization seeking funding from a federal program that has a law banning religious hiring can certify those things, then, thanks to RFRA, it can take part in that program without giving up the practice of religious hiring.  But a faith-based organization that cannot so certify--for example, because it cannot really affirm that providing the specific services is a matter of religious exercise--such a faith-based organization will not be able to rely on RFRA to set aside the program's law that bans religious hiring, and thus will either have to abandon religious hiring or participation in this specific program.  

Thus, there has to be a "case-by-case" review.  But only with respect to federal programs that, as the Attorney General writes, have "a statutory prohibition on religious employment discrimination."  If there is such legal prohibition in the program, then there has to be a "case-by-case" review which can well result in the organization that hires by religion taking part despite the law saying that religious job discrimination is illegal--thanks to RFRA, a separate law passed by Congress to protect religious freedom.

In other instances, in other federal programs, there doesn't have to be this kind of "case-by-case" review because the laws for those other programs does not prohibit taking account of religion when hiring and firing!  

In short, what AG Holder has affirmed in his written answers to Cong. Bobby Scott's questions, is that only some federal programs have laws that prohibit religious hiring by federal faith-based grantees--and thus, that the other federal programs have no such legal prohibitions on religious hiring.

In other words, religious hiring by federal grantees is not going on because President Obama immorally has declined to overturn a President Bush policy.  Rather it is going on in most federal programs because the laws for those programs do not forbid it.  And it goes on in some other federal programs because, although the programs' laws forbid it, RFRA--a different federal law-permits the overriding of the prohibition, if the faith-based organization can affirm that giving up religious hiring in order to participate in the program would impose a substantial burden on its religious exercise.  Here's where the "case-by-case" review is needed--not to see if the law will be set aside for some faith-based group or another, but rather whether in this instance one law--RFRA--overrides the other law--the program's law that forbids hiring discrimination.  

The Obama administration is giving no faith-based organization a "free pass  . . . to discriminate."  Rather it is following the law, or rather the various laws--which most of the time provide that it is not illegal discrimination for a faith-based organization, even if it receives federal money, to consider religion when hiring and firing employees.   All the Obama administration is doing is following the laws--the laws passed by Congress, the legal decisions made by the courts. 

Resources

The religious hiring section of the IRFA website.  

Thomas Messner, "Protecting Religious Staffing by Religious Organizations: A Wise and Just Public Policy," Heritage Foundation Backgrounder, Jan. 26, 2012. 

*Ross Douthat, "Defining Religious Liberty Down," New York Times, July 28, 2012:   

"The words 'freedom of belief' do not appear in the First Amendment. Nor do the words 'freedom of worship.' Instead, the Bill of Rights guarantees Americans something that its authors called 'the free exercise' of religion.

"It's a significant choice of words, because it suggests a recognition that religious faith cannot be reduced to a purely private or individual affair. Most religious communities conceive of themselves as peoples or families, and the requirements of most faiths extend well beyond attendance at a sabbath service--encompassing charity and activism, education and missionary efforts, and other 'exercises' that any guarantee of religious freedom must protect.

"I cannot improve upon the way the first lady of the United States explained this issue, speaking recently to a conference of the African Methodist Episcopal Church.  'Our faith journey isn't just about showing up on Sunday,' Michelle Obama said. 'It's about what we do Monday through Saturday as well . . .  Jesus didn't limit his ministry to the four walls of the church. He was out there fighting injustice and speaking truth to power every single day.'"

*Chelsea Langston (IRFA legal intern in 2010), "Religious Freedom for Muslims," Capital Commentary, August 3, 2012, writing about opposition to the Islamic Center in Murfreesboro, TN (which includes a weekend Islamic School):

"I am hopeful . . . that the sun will not set on basic tolerance and treating others the way we wish to be treated. James Skillen has stated that 'principled pluralism means that government . . . should give equal treatment to different communities of faith.' As Skillen understood, the protection of our own religious freedom is intimately tied up in the protection of the diversity of beliefs in the public square as a whole.

"When I read that Muslims are being kept from peacefully practicing their faith, whether in Tennessee or India or in my own neighborhood, I am offended. If we want to protect our personal and organizational religious freedoms as Christians, it is imperative that we stand up to protect those of other faiths."