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eNews for Faith-Based Organizations
September 11, 2012
Editor: Stanley Carlson-Thies
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Party Platforms, God Talk, and Faith-Based Services
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The abundant commentary last week about the disappearance and reappearance of the word "God" from the Democratic Party's 2012 platform was not very illuminating. More important than God-talk is religious freedom substance In fact, the Democratic platform has a full paragraph labeled "Faith" that states that "our nation, our communities, and our lives are made vastly stronger and richer by faith and the countless acts of justice and mercy it inspires." The paragraph says that "[p]eople of faith and religious organizations do amazing work in communities across this country and around the world," and thus the Democratic party "believe[s] in lifting up and valuing that good work, and finding ways to support it where possible." The party is committed to "constitutionally sound, evidence-based [government] partnerships with faith-based and other non-profit organizations." The platform proclaims: "There is no conflict between supporting faith-based institutions and respecting our Constitution, and a full commitment to both principles is essential for the continued flourishing of both faith and country." Indeed, Amy Sullivan points out that the important religion omission was not the now-restored word "God" but rather this sentence from the 2008 platform: "We will ensure that public funds are not used to proselytize or discriminate." She explains, "It refers to the Bush-era policy, which President Obama has continued, of allowing faith-based organizations to discriminate when hiring employees using federal funds." That's not accurate: faith-based hiring by faith-based organizations long predates President Bush and is firmly grounded in statutes and court decisions; and, on the other hand, a prohibition on using federal grant or contract funds for proselytizing was a Bush-era policy (although not limited to him). Nevertheless, the absence of the 2008 sentence in the 2012 Democratic platform's paragraph on faith-based services is very noteworthy, as is the Obama administration's preservation of the federal faith-based initiative and its main body of rules, and its persistent fending off the demands of activists to make religious hiring by federally supported faith-based programs always illegal. However, notwithstanding the strong supportive words for faith, the Democratic platform's maximal commitments to reproductive and gay rights spell extreme dangers for many faith-based services. Despite the outpouring of opposition by religious organizations to the administration's HHS contraceptives mandate, the platform blithely states that "the President has respected the principle of religious liberty" in this matter. The platform announces that "gay rights are human rights" but a few sentences later lists as a "universal value" only that individuals be free to "worship as they please"--not that they must be free to exercise their faith in public as well as private, organizationally as well as individually. Similarly, marriage redefinition is celebrated without addressing the massive religious freedom problems that are a predictable consequence--except for an inconsequential statement of support "for the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference." The platform condemns discrimination based on sexual orientation and gender identity and every effort to "deny equal protection of the laws to committed same-sex couples who seek the same respect and responsibilities as other married couples," without any admission that, unless accompanied by explicit religious-freedom protections, these commitments will undermine the ability of faith-based organizations to maintain their religious identities and faith-shaped practices. There are statements affirming "caring adoption programs" and "our foster care system" but no acknowledgement that the party's full-out commitment to gay rights will drive many faith-based agencies out of these areas of service unless specific religious-freedom protections are created. The platform declares its maximal support for women's choice of "a safe and legal abortion, regardless of ability to pay" without any hint of understanding how that absolutist right clashes with the conscience rights of religious institutions and professionals who understand abortion to be the killing of innocent human life. The Republican platform, similarly, while affirming "the principle that all Americans should be treated with respect and dignity," has little to say about exactly how fair treatment for LGBT persons and couples might be accommodated simultaneously with respect for religious individuals and institutions. Unlike its Democratic counterpart, it has no "faith" paragraph affirming respect for religion and faith-based organizations. However, the Republican platform presumes a large and valued role for faith-based services in statements such as "[g]overnment at all levels should work with faith-based institutions that have proven track records in diverting young and first time, non-violent offenders from criminal careers" and its affirmation of "the religious organizations which deliver a major portion of America's healthcare, a service rooted in the charity of faith communities." And the Republican platform has a multiple-paragraph statement on the constitutional principle of religious freedom and how that principle requires protection of the freedoms of faith-based service organizations. The platform criticizes the Obama administration for policies that pressure faith-based institutions as well as individuals "to contravene their deeply held religious, moral, or ethical beliefs regarding health services, traditional marriage, or abortion." It blasts the administration's "audacity," via the HHS contraceptives mandate, to presume to "declar[e] which faith-related activities are, or are not, protected by the First Amendment." In place of such encroachments upon religious exercise, Republicans "pledge to respect the religious beliefs and rights of conscience of all Americans and to safeguard the independence of their institutions from government." That means never requiring any "healthcare professional or organization . . . to perform, provide for, withhold, or refer for a medical service against their conscience." It leads to a condemnation of the state action against "religious groups which decline to arrange adoptions by same-sex couples." And it means--given as a positive statement, not as an implication from the removal of a previous platform's statement--that the Republican party is committed to upholding "the right of faith-based organizations to participate fully in public programs without renouncing their beliefs, removing religious symbols, or submitting to government-imposed hiring practices." It is common knowledge that platforms are binding neither on the presidential candidates nor on their parties. Still, the platforms tell you something important about the main currents within the parties.
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A Welcome, If Suspect, Softening of the HHS Contraceptives Mandate
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ On August 15 the Department of Health and Human Services issued an amended version of its "temporary enforcement safe harbor" document offering--temporary!--protection from having to comply with the contraceptives mandate to some additional religious employers. Recall: the mandate is a requirement that health insurance offered to employees must cover without copays a wide range of women's preventive services, including all FDA-approved contraceptive services, which include emergency contraceptives that some believe are abortifacients (see IRFA's memo for these and other details). The administration has exempted "religious employers" from the mandate--but defined that category so narrowly that churches, but not faith-based charities, schools, colleges, or hospitals are exempt. In response to the great outcry against the narrowness of the exemption, the administration promised that, within a year, it would devise an "accommodation" for non-exempt religious employers, and it also offered a "temporary enforcement safe harbor" for a year to nonprofit organizations with a religious objection to contraceptives to protect them while the accommodation is being created. To be eligible, though, religious organizations were required, as of Feb. 10, 2012, the day the original safe harbor document was released, not to be covering any contraceptives in the health insurance they offered to their employees. The scope requirement was a problem for Protestant organizations which typically do not object to birth control but are against drugs and procedures that result in abortions; the timing requirement was a problem for any religious organization that discovered belatedly that its health insurance covered procedures to which it objected or that was unable to get all contraceptives removed from its plan before the Feb. 10 deadline. The amended policy now extends the temporary enforcement safe harbor to employers with religious objections to some, but not all, contraceptive services, and also to employers who attempted to eliminate or limit their contraceptive coverage but had not succeeded in doing so by Feb. 10. This is a very welcome change. But there is no reason for a big celebration. No actual "accommodation" has been made public. The administration remains committed to its pernicious two-class scheme in which only churches, not faith-based service organizations, receive full First Amendment protection of their conscience claims. The administration continues to assert that it has already sufficiently protected religious freedom, even without a specific "accommodation" proposal (see the story above on the Democratic party platform). And there can be little doubt that the expanded safe harbor was not volunteered by the administration but rather was prepared in order to avoid an inconvenient defeat in court. Recall that a Colorado judge in July issued a preliminary injunction against enforcement of the mandate on a Catholic-owned business--the judge thought that the company has good chance of winning its argument that the contraceptives mandate violates the Religious Freedom Restoration Act and, as a business, not a nonprofit, the company could not avail itself of the enforcement safe harbor and thus needed immediate court protection. Wheaton College, a Protestant college in Illinois, also had sued the federal government and noted that, because it objected only to abortifacients and had been unable to get them excluded from its plan by Feb. 10, it, too, was ineligible for the enforcement safe harbor and required court protection. But before this federal judge could rule on the merits of the argument, HHS announced its modified safe harbor, which now provides temporary protection to Wheaton College. The judge dismissed the lawsuit as premature, sparing the administration a second defeat. Yet Wheaton has appealed the dismissal of its lawsuit. And there are some 27 lawsuits against the administration, including a new one by the Triune Health Group (another Catholic-owned business) and another new one from Biola University and Grace College and Seminary. A temporary enforcement safe harbor, no matter how much expanded, remains only a temporary shield. The underlying threats to religious freedom have not been eliminated.
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Rocks Ahead, Due to PILOTs
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A pilot, in shipping, is someone who intimately knows the geography of a harbor and its entrances and climbs aboard incoming and outgoing ships to guide them away from rocks, wrecks, and other dangers. A PILOT, on the other hand, spells dangers ahead for faith-based and other nonprofit organizations.
A PILOT is a Payment in Lieu of Taxes--a payment collected by a government from a nonprofit organization that is legally exempt from taxes. PILOTs are voluntary, at least in theory--the organizations are tax-exempt. But some municipalities have become very insistent on extracting--I mean, negotiating--them, apparently sometimes threatening resistant nonprofits with denial of a needed license or zoning decision or other governmental action.
Why the pressure from cities and other governments? The need for more revenue is a big reason. Especially cities with a substantial number of hospitals and universities look longingly at all of the acres of land that could be generating property taxes--and officials consider, too, that the tax-exempt facilities and their employees and customers do use government services, such as fire fighters and storm sewers.
A much more troubling reason is an apparent weakening appreciation of the intrinsic good provided by nonprofit organizations of all sorts--religious and secular, cultural and poverty-fighting, musical and educational, and all the rest. The growing demand for PILOTs reflects, instead, "a rising quid-pro-quo rationale, under which charities are expected to show that they provide something to the community in exchange for their exemption." But such a "show me" requirement is very troubling, if only because different officials, and different parts of the public, have very different views of what is valuable. Consider just the reality that while many in our society regard faith-based services to be of great value, a growing number of critics of religion are sure society would be better off if such services disappeared.
For details, discussion, and different views on the contemporary phenomenon of PILOTs, see the very informative paper, "The Charitable Property-Tax Exemption and PILOTs," by Evelyn Brody, Mayra Marquez, and Katherine Torn, published by the Urban Institute Center on Nonprofits and Philanthropy and the Urban-Brookings Tax Policy Center.
H.T. to the Alliance for Charitable Reform.
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Being Against Faith-Based Charities By Being For Them?
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Jack Jenkins, of the Faith and Progressive Policy Initiative at the Center for American Progress, made a thoughtful observation recently: "Vice Presidential candidate Rep. Paul Ryan might have appealed to religion during his speech at the Republican National Convention . . . but it's unclear whether a Romney-Ryan presidency would help or hurt faith-based charities and churches."
Jenkins' criticism? Ryan, he claims, believes that faith-based organizations ought to care for the poor, not the federal government. "But there is a flaw in this plan: churches and faith-based charities, which offer roughly $50 billion worth of services a year to the poor and needy, often depend on government funds to operate." Moreover, he says, if Ryan achieved his goal of drastically cutting the SNAP program (aka Food Stamps), welfare, and other social programs, then faith-based groups and houses of worship would have to come up with billions of dollars in extra services just to compensate for that absent government help.
Jenkins is right in this: when considering the role of faith-based services, it isn't accurate to think of them simply as alternatives to government. The charitable sector, including religious charities, depends significantly on government funding. And the poor do count on help not just from churches and charities but also from government. It has ever been so.
But Jenkins is also leaving out a big part of the whole picture. Government does provide much needed funding to the charitable sector, but as it gets bigger and bigger, it (a) aggrandizes more and more of the available resources; (b) leaves less and less opportunity for private organizations to take the initiative in services; and (c) regulates and standardizes (= secularizes) more and more private organizations and service delivery.
Rep. Ryan may be slighting the Catholic doctrine of solidarity, but his critics often seem dismissive of the importance of the associated Catholic doctrine of subsidiarity.
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"Much Ado (Without Cause?) About Religious Liberty"
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At Real Clear Religion, Jeffrey Weiss, under the heading "Much Ado About Religious Liberty," scorned a recent study by the Liberty Institute and the Family Research Council as mistakenly alarmist. The study, "The Survey of Religious Hostility in America," is a collection of more than 600 instances of hostility to religion in the US over the past decade or so. Weiss says that, at that rate, a person is much more likely to be struck by lightning than to encounter an act of religious hostility. Besides, in some of the instances listed, the religion rightly was restricted; in other instances, a court eventually put right an initial wrongful limitation; and in general the report wrongly focuses on restrictions on Christianity, leaving out the rights of other faiths. He concludes: "When it comes to religious freedom, this report is convincing me that Americans and our legal umpires are doing a remarkably good job."
But don't take Weiss' word for it. Peruse the report. What's in it is enlightening. Also important is what's not there.
As to the former: Even if the total number of incidents is not huge, the variety of problems is instructive and disheartening. Note even just the variety of difficulties various faith-based organizations have encountered, from challenges to the inclusion of religion in services freely offered to the public (Intermountain Fair Housing Council v. Boise Rescue Mission Ministries (9th Cir. 2011)) to the acceptance by the US Supreme Court of a public law school's policy of denying to religious student groups the right to require their leaders to be faithful in creed and conduct (Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez (2010)). Also instructive, though this time heartening, are the major victories that are recorded, most notably, this year's unanimous Hosanna-Tabor decision by the US Supreme Court (Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC), upholding the right of religious organizations to select their "ministers" without governmental interference.
As to what is missing: Compare this survey with the Pew Forum's study of governmental and social hostility to religion around the world and you will see how wonderfully religious freedom continues to flourish in these United States. Note, too, that while the Survey of Religious Hostility in America records many instances where, thanks to the Religious Land Use and Institutionalized Persons Act (RLUIPA), anti-religious zoning decisions by cities have been overturned, the Survey does not note that often the Obama administration, via Civil Rights Division of the Department of Justice, has weighed in to defend the religious organizations (see the periodic "Religious Freedom in Focus," edited by Eric Treene).
Finally, and most important, note this: the Survey is a collection of court decisions. That means that most of the incidents concern whether a person or organization violated a law, while the other incidents concern whether a law or regulation violates the US or a state constitution. So this is a rather static and backwards-oriented picture. What is not shown so clearly by the Survey are the deeply troubling contemporary trends for laws and regulations themselves to be less accommodating of religion, and for constitutional interpretive schemes to prioritize other values over religious freedom. If these trends continue, then fewer religion-accommodating rules will be allowed to stand, and then fewer court decisions will end up favorable to religious exercise by individuals or institutions.
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Worth Considering
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At PJmedia, Roger Simon wrote a thoughtful critique of a David Brooks' column that criticized the Republican national convention for celebrating individual striving at the expense of the virtues, values, and necessity of community and neighborliness. As part of his critique, Simon points out that "conservatives have long been known to be much more generous in their charitable giving than liberals." Then Simon added this: "Yes, as has been pointed out, that equals out some when you exempt religious charities, but only some."
Maybe so: maybe the surplus of giving by conservatives over liberals becomes smaller if giving to religious charities is removed from the equation. But why should giving to religious charities be discounted when considering whether conservatives or liberals donate more to worthy causes, to community-serving nonprofits? "JustWondering," a commenter on Simon's blog post, rightly asked this:
"[W]hy does it matter that a considerable portion of giving goes to religious charities? Religious charities serve the common good (i.e., not some private religious good) but do so on the basis of their faith principles. Here's a tiny example of serving the common good: my small northern church sent volunteer work teams to LA and MS over the course of many months and repaired, I think, close to 50 homes-all funded out of our church budget. Bigger examples of serving the common good include all the faith-based international relief and development organizations. They serve regardless of the religion of the people in need-and they always have! Bottom line, the very notion that the dollar given to a faith-based charity should be discounted because it somehow represents self interest rather than public service is based on a very inaccurate understanding of how the faith sector actually works.
"But, even in those cases where a faith charity serves co-religionists, what would be the grounds for discounting that help? Does the charitable dollar that pays the bills for the unemployed co-religionist not count as an act of public service? Does the charitable dollar spent to support the elderly co-religionist in a safe home represent narrow self-interest? Is it only a public good if the person helped is not of your faith?"
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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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