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eNews for Faith-Based Organizations
October 11, 2012

Editor: Stanley Carlson-Thies 
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In this issue
Religious Freedom and Social Architecture
HHS Contraceptives Mandate Litigation
Contraceptives Mandate Creates Two Classes of Religious Organizations
Does New York's SSM Law Protect Faith-Based Agencies?
Financial Stress Ahead for Nonprofits?
Can--And Should--Religious Organizations Speak Up During Elections?
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Religious Freedom and Social Architecture     

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Often religious freedom, including the freedom of faith-based service organizations, is treated as a matter of a limitation on what government may do: it should not pass laws that require religious organizations or persons to violate what their religion persuades them to do or not do--and if a law would require such a violation, then it should include an exemption. That's a good starting point (although to be accurate the statement has to include the legitimate limits on the freedom).

 

And yet to think of religious freedom as a limitation on specific laws is impoverished. There is a broader setting: the architecture of society, and specifically whether or not the services, taxes, and rulemaking of government leave sufficient space to civil society so that religious and other organizations have an opportunity to flourish.

 

After all, a major part of the "free exercise" of religion takes place via non-governmental organizations--not only houses of worship but also schools, health clinics, community development organizations, emergency shelters, adoption agencies, think tanks, publishing houses, and much more. And the free exercise of religion, religious freedom, is squelched if the government occupies all those areas of activity with its own programs or regulates so much or in such a way that religious organizations have to act just like their secular counterparts.

 

Astute commentators say that the current election campaign is not just about jobs and deficits but more fundamentally about the role of government vs. the role of individuals. But step back further: it is, or should be, even more fundamentally about the relationship of government to civil society--about the proper relationship of government not just to individuals but also to families, businesses, churches, and faith-based (and secular) service organizations. And that means a lot of the discussion should be about religious freedom, freedom for religious organizations as well as for individual believers.

 

This comment was sparked by (among other items):

 

Anne Applebaum, "The wonder of civil society: Scotland's civic pride and example," Washington Post, Sept. 9.  

 

Yuval Levin, "The Real Debate: The 2012 election is about far more than our pocketbooks," The Weekly Standard, Oct. 8.

HHS Contraceptives Mandate Litigation 

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It is difficult to keep up with the court cases challenging the HHS contraceptives mandate--the requirement that employee health plans (except for grandfathered ones and those offered by churches) must cover the full range of FDA-approved contraceptive services, including emergency contraceptives that some regard to be abortifacients.

 

The Becket Fund for Religious Liberty says there are currently 33 cases with more than 100 plaintiffs (unless even more lawsuits were filed since yesterday afternoon!). (See the HHS Mandate Information Central area on Becket's website, which lists the cases, with links to key documents, and also includes multiple other key resources, such as a timeline and links to government documents, commentary, and protest letters.) Among the plaintiffs are Protestant as well as Catholic colleges, charitable organizations as well as businesses, states as well as broadcasters. Many of the lawsuits are awaiting action; some have made progress; some have been dismissed-but with appeals pending.

 

Three noteworthy very recent developments:

 

* Yesterday, two additional religious colleges--this time, two Baptist ones (East Texas Baptist University and Houston Baptist University)--sued the federal government to stop the contraceptives mandate. Dr. Samuel Oliver, president of East Texas Baptist University, who testified against the mandate to Congress, says this about the lawsuit:

 

"Baptists have always advocated religious liberty, and religious liberty is what is at stake in this situation. As the famous Baptist preacher, George W. Truett once remarked, 'A Baptist would rise at midnight to plead for absolute religious liberty for his Catholic neighbor, and for his Jewish neighbor, and for everybody else.' We are rising today to ensure that religious liberty, the first freedom guaranteed in the First Amendment of the United States Constitution, is protected and preserved."

 

* On Oct. 2, Tyndale House Publishers, an evangelical company that publishes Bibles, among other things, sued HHS. As a company, it qualifies neither for the exemption that churches get nor the one-year "temporary enforcement safe harbor" that is delaying application of the contraceptives requirement to many faith-based organizations. The Alliance Defending Freedom press release on the case says this:

 

"The publisher is subject to the mandate because Obama administration rules say for-profit corporations are categorically non-religious, even though Tyndale House is strictly a publisher of Bibles and other Christian materials and is owned by the non-profit Tyndale House Foundation. The foundation provides grants to help meet the physical and spiritual needs of people around the world.

 

"'Bible publishers should be free to do business according to the book that they publish,' said Senior Legal Counsel Matt Bowman. 'To say that a Bible publisher is not religious is patently absurd. Tyndale House is a prime example of how ridiculous and arbitrary the Obama administration's mandate is. Americans today clearly agree with America's founders: the federal government's bureaucrats are not qualified to decide what faith is, who the faithful are, and where and how that faith may be lived out.'"

 

(See also the interview by Kathryn Jean Lopez of National Review Online with Tyndale head Mark Taylor.)

 

* On Sept. 28, a federal district judge in Missouri dismissed the lawsuit filed by a different business, O'Brien Industries, a Catholic-owned collection of companies involved in exploration, mining, and processing. Among other things, the federal judge ruled that the mandate does not interfere with Frank O'Brien's religious exercise because it doesn't prevent him from worshipping as he chooses, educating his children in the faith, or taking part in the sacraments of his faith. As if religious exercise is only or mainly about worship and following rituals!

 

Even worse, according to University of St. Thomas law professor Robert Vischer: "if this court is correct in its analysis, then HHS could rewrite the regulations, remove any exemption for religious employers and add abortion to the list of covered services. The Catholic Church could be forced to pay for its employees' abortions without creating a substantial burden on religious exercise for purposes of [the Religious Freedom Restoration Act] . . ."  

 

Imagine that: by this sort of legal reasoning, even requiring the Catholic Church to pay for abortions would not be a violation of religious freedom! Something's not right with that reasoning.

 

See also Ed Whelan, "Aggressive Decision Against Religious Liberty," Bench Memos, National Review Online, Oct. 2.

 

Additional Resource: "Options for Non-Exempt Employers under PPACA," a memo from the National Catholic Bioethics Center on Health Care and the Life Sciences, outlines and analyzes four choices open to employers with moral objections to the mandate but who are not exempt. None of them are very satisfactory.

Contraceptives Mandate Creates Two Classes of Religious Organizations
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From Stanley Carlson-Thies, "Which Religious Organizations Count as Religious? The Religious Employer Exemption of the Health Insurance Law's Contraceptives Mandate," now available as part of the Federalist Society's Engage magazine, vol. 13, issue 2 (available only online):

 

"It is worth stressing that concern about the 'religious employer' definition is not limited to religious organizations and religious communities that object to the contraceptive services as such. The definition circumscribes the organizations that are regarded by the Administration to be authentically religious such that they have a valid claim to religious freedom protections. Its narrowness thus not only has the consequence that some significant number of religious organizations that object to providing the mandated contraceptive services are not exempted from the requirement (although the Administration has promised a different 'accommodation' to some of them) but also that a specific-cramped, church-oriented-conception of a fully religious organization is revealed as operative in the federal government. . . . 

 

"The [March, 2012, Advance Notice of Proposed Rulemaking (ANPRM)] proposed yet another definition of religious organizations that have religious freedom or conscience claims that might be honored with respect to mandatory coverage of contraceptives. Most important and most striking is the creation by the government of a second major category of religious organizations, in order to deal with additional religious freedom issues raised by the contraceptives mandate. The ANPRM commits the Administration to an 'accommodation' for 'non-exempt, non-profit religious organizations with religious objections to contraceptive coverage.' These accommodated organizations are termed 'religious organizations' to distinguish them from 'religious employers'-religious entities that are exempt from the mandate. . . . 

   

"The definitions of religious organizations that the federal government is deploying in the context of the mandate, which requires health plans to cover a wide range of contraceptive services, have great religious-freedom significance not only because they will determine which religious freedom and conscience claims will be honored, and to what degree, but because they embody a governmental conception of what is authentic religion."

Does New York's SSM Law Protect Faith-Based Agencies?       

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New York's Marriage Equality Act was adopted by the legislature in June, 2011, only after being amended to include stronger religious freedom protections. But how adequate are those protections? The law clearly says that religious entities need not rent out their facilities or otherwise collaborate in same-sex marriage ceremonies and that they cannot be penalized by the government for this. And then there is broader language: notwithstanding the new definition of marriage, religious organizations have not lost their right to limit employment or housing or admissions to people of their own religion nor their right to take "such action as is calculated by [the] organization to promote the religious principles for which it is established or maintained."

 

That broader language sounds meaningful: it should protect, say, a Catholic foster-care agency when it decides, on the basis of its faith, that it should only place foster kids with married mother-father families and not with single people or same-sex married couples. And, indeed, a prize-winning paper by Andrew Hamilton, a law student at St. John's University School of Law, says the broad exemption protects just that kind of faith-shaped service decision. His paper carefully analyzes the law on the background of its legislative history and New York courts' interpretation of the state's law against sexual orientation discrimination. 

 

On the other hand, "Know Your Rights," an FAQ publication from the New York Civil Liberties Union, asserts that adoption and foster care agencies may not discriminate against a same-sex married couple, saying, "New York prohibits adoption and foster care agencies from discriminating on the basis of sexual orientation. Nothing in the Marriage Equality Act changes that prohibition." 

 

Who is right? It's a crucial question: the NYCLU is sure to be at the forefront in suing faith-based agencies if the religious protections are unclear or weak.

 

Unfortunately, it does not appear that New York's attorney general, notwithstanding his Religious Rights Initiative, has offered any official guidance about the effect of marriage redefinition law on religious organizations and individuals.

 

Note that the NY law does not protect government officials with an objection to assisting same-sex marriages--even if other officials without the conscience objection are right at hand; and it does not protect persons involved in commerce--e.g., wedding photography, printing, or catering--who object to same-sex weddings, again, even if multiple other businesses are available.

 

Better religious freedom language has been proposed by a group of constitutional law scholars, as noted in an earlier eNews for Faith-Based Organizations.  

Financial Stress Ahead for Nonprofits?
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Maybe before the glittery ball falls in Times Square, signaling the arrival of the New Year, the House of Representatives, the Senate, and the President will agree on a grand spending and taxing deal, thus avoiding the dreaded "fiscal cliff"--the expiration of a host of tax cuts and the imposition of mandatory spending cuts.

 

If no such magic happens, then those mandatory cuts--the dreaded "sequestration"--will go into effect: $600 billion out of the defense budget and $600 billion out of domestic spending over the next ten years. Just what services will those domestic spending cuts affect? That's not at all clear, but many faith-based organizations that receive federal dollars to expand the services they can provide are sure to be affected.

 

Then again, Congress and the President might get busy and come up with that grand long-term budget deal, adjusting spending and revenues so that the annual deficits get smaller and smaller and eventually the enormous national debt can actually be put on a diet. Spending cuts could themselves negatively affect those groups that partner with government. More broadly, in the search for more revenue the federal deduction for charitable contributions or other financial support for nonprofits (such as the nonprofit mailing rate) might be chopped or eliminated.

 

The fiscal health of the nation requires drastic action. Still, in deciding which path to take, our elected leaders need to remember that the flourishing of nonprofits, secular and faith-based, and the well-being of many poor and distressed people and communities, depends in part on government spending and taxing decisions.

 

Keep up with news about the charitable tax deduction at the Alliance for Charitable Reform.  

Can--and Should--Religious Organizations Speak Up During Elections?
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Last Sunday, October 7th, was Pulpit Freedom Sunday, a day organized by the Alliance Defending Freedom for pastors to "preach[] biblical Truth about candidates and elections from their pulpits," despite the long-standing IRS rule that 501(c)(3) organizations are prohibited from participating in political campaigns either for or against candidates for office.

 

Eric Stanley of ADF argues that the restriction is unconstitutional: for a pastor to apply "Scripture and theological doctrine to the positions held by the candidates running for office . . . is not 'political' speech. Rather, it's core religious expression from a spiritual leader to his congregants. That kind of expression is at the very center of the freedom of speech and religion protections in the First Amendment."  

 

Unconstitutional or not, churches and other houses of worship might regard it as unwise, at least in most circumstances, for clergy to speak for or against candidates for public office.

 

In any case, it bears emphasis that the restriction on intervening for or against candidates for public office applies not just to churches but also to every other kind of 501(c)(3) organization.

 

Is that broad restriction constitutional or wise public policy? Is it a limitation a careful nonprofit would adopt anyway? All of this is debatable.

 

That there is a strict restriction is not debatable.  To understand it, one good resource has recently been published by the Pew Forum, "Preaching Politics From the Pulpit: 2012 Guide to IRS Rules on Political Activity by Religious Organizations." It is a useful guide for every nonprofit organization, notwithstanding the title and subtitle.

 

The clear rule (constitutional or not) is: no electoral activity on behalf or against a candidate for public office (holding a fair candidate forum is different than intervening for or against one candidate).

 

But note this: nonprofit organizations, including religious organizations, are free to discuss issues during election season, and at any time are free to lobby. For a careful discussion about how to deal with issues without violating the rule prohibiting intervention in an electoral campaign, and what lobbying is and what the limits on it are, check out Pew's guide. 
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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.