eNews for Faith-Based Organizations
Dec. 11, 2012

Editor: Stanley Carlson-Thies 
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In this issue
IRFA Needs You
Protecting Faith-Based Adoption Services in Michigan
What's Ahead for the Obama Faith-Based Initiative?
Religious Exercise In a Business? By a Business?
The Costly Burden of the HHS Contraceptives Mandate
Good and Bad News About Religious Feedom in Education
Taxing and Giving
Crazy Question No. 847: Are Charities More Effective Than Government?
City Planning and Faith-Based Organizations: Calgary
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Protecting Faith-Based Adoption Services in Michigan       


The stories carry headlines like these: "Activist: Bills would let Michigan adoption agencies discriminate" and "Michigan House bill would allow faith-based agencies to avoid adoptions on religious grounds."  In truth, the bills (HB 5763 and HB 5764) would simply--but importantly--confirm in positive law that in Michigan a faith-based adoption or foster care agency "is not required to perform, assist, counsel, recommend, facilitate, refer, or participate in a placement that violates the . . . agency's written religious or moral convictions or policies." Moreover, state officials would be forbidden in the future to penalize faith-based agencies for operating on the basis of their faith convictions by stripping them of grants or contracts.


Does that amount to promoting discrimination in adoptions? Currently in Michigan it is not illegal for agencies to consider religion, sexual orientation, or marital status when making placement decisions. The proposed changes to the regulations for child-placing agencies only would put that negative freedom into positive terms.


And the changes would not prohibit other agencies from acting on different convictions. As Bill Blacquire, CEO of Bethany Christian Services testified, "The bills keep Michigan adoption laws the same as they are today, there's not [a] change, they do not prohibit anyone from adopting." A state official confirmed that the proposed changes just confirm the current pluralism: "A representative from the Michigan Department of Human Services testified that the agency already makes a point to avoid referring couples to an adoption agency that may have religious objections to their lifestyle."    


In other words, the bills seek to protect the freedom of faith-based agencies to use their best judgment when they serve children and families. The proposed changes will not force other agencies to change their policies. And the proposed changes will not prevent anyone currently able to adopt or foster from applying to a compatible agency to offer themselves as a temporary or permanent home for a child in need.


This is a positive policy such as the similar law passed earlier this year in Virginia. Rather than preventing anyone from adopting, it will prevent in Michigan what has happened in Massachusetts, Illinois, Washington DC, and other places: faith-based agencies being pushed out of child-placement services because the state has made it impossible for them to follow their convictions about how best to help children.

What's Ahead for the Obama Faith-Based Initiative?   

To the surprise of many (and the disgust of some), President Obama has maintained the federal faith-based initiative that was a signature domestic policy of his predecessor, George W. Bush. How meaningful has the Obama version of the initiative been, and what might lie ahead for it? The Brookings Institution is hosting a discussion on these topics next week:


"Four More Years for the White House Office of Faith-based and Neighborhood Partnerships," Monday, Dec. 17, 9 am to noon.


Speakers include Joshua DuBois, executive director of the White House faith-based office, John DiIulio, first director of the Bush White House faith-based office, and your humble editor.


For more information and to RSVP, go here.
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Religious Exercise In a Business?  By a Business?

Of the many lawsuits that have been filed against the federal government's HHS contraceptives mandate, the ones that have gone forward for judicial rulings are those filed by businesses. That's because, although non-church religious nonprofits are not exempt from the mandate, they can currently disregard it because of a one-year long "temporary enforcement safe harbor" while the administration tries to devise an "accommodation" that provides some protection for their convictions about the mandated coverage. (For details of the mandate and the safe harbor, go here.) The religious organizations' cases are not "ripe" because the mandate does not yet apply to them and the government might come up with an acceptable solution. Or so say the judges.


But businesses are not eligible for the safe harbor, so the mandate applies to them as soon as their new plan year or new insurance plan begins. When they ask a judge to release them from this imminent danger, it is time for a court decision, if only for a preliminary injunction stopping application of the mandate until a full trial is held.


But does a business have conscience or religious rights at all? The federal government has consistently argued that it cannot. An entity that makes money and operates out in the commercial stream of business is by definition secular and cannot be considered to have any religious rights, the federal government says. The owner of such a business does not have religious rights, either-he or she is operating a business, not a religious institution.


The judges hearing these cases have come down in various places on this critical question of the exercise of religion in or by a for-profit business. One federal judge has ruled that the Hobby Lobby company and its owners do not have religious rights, even though the owners, the Green family members, "sign a Statement of Faith and Trustee Commitment obligating them to 'honor God with all that has been entrusted to them' and to 'use the Green family assets to create, support and leverage the efforts of Christian ministries." The Green family hires chaplains for the employees, donates millions of dollars of company profits to Christian ministries, buys religious ads at Easter and Christmas, and takes care in selecting merchandise and monitoring the stores to avoid immoral activities. 


On the other hand, a different federal judge did issue a preliminary injunction to protect Tyndale House Publishers. Matt Bowman, part of the Alliance Defending Freedom team working with Tyndale, said that publishers of Bibles "should be free to do business according to the book that they publish." 


Similarly, a federal appeals court has ruled that O'Brien Industrial Holdings and its owner do have religious rights and it issued a preliminary injunction shielding the company from the contraceptives mandate. These judges agreed that owners should be able to operate their business consistent with their religious and moral convictions. 


So can religion and business mix? Can a business be a religious organization? Stay tuned as the courts keep struggling with this issue.


In the meantime, here is a new legal paper that argues that the business sector cannot legitimately be treated as a zone from which religion must be excluded:


Ronald Colombo, "The Naked Private Square," Hofstra University School of Law, Legal Studies Research Paper Series, no. 12-26.


Colombo says (italics added):


"Any authentic version of religious freedom must take into account its associational dimension. For an individual's religious freedom is of little value if he or she is unable to band together with others in practice thereof. It is for that reason that the First Amendment has always been interpreted to protect the rights of not only religious individual, but religious institutions as well.


"Religious institutions include churches, temples, and mosques. They include schools, hospitals, and charities that embrace a religious mission. Traditionally, these institutions have been incorporated as non-profit entities. Today, however, some for-profit corporations are embracing a religious mission as well. And this is not surprising. For few associations are as ubiquitous, and as significant to society, as the business corporation. Countless millions of Americans work for, invest in, and/or patronize business corporations on a daily basis. Indeed, few institutions play a greater role in an individual's life than corporations do today. And whereas the pilgrims of yesteryear established communities in which to live and farm together, religious individuals of our own time increasingly wish to order their lives around a corporation (or corporations) that comport with their most deeply held values. They have no desire to segregate their lives into spheres that are reflective of their faith, and those that are not.


"And this underscores a critical point: failure to recognize the religious liberty rights of the business corporation means failure to fully recognize the religious liberty rights of flesh-and-blood human beings. For without the recognition of such corporate rights, authentically religious for-profit institutions could not exist. This would, in turn, deprive religious entrepreneurs the right to create business corporations consistent with their religious principles and beliefs. It would similarly deprive potential officers, employees, investors, and customers such an enterprise to coalesce around and partake in. Such failure would undermine both the spirit and the efficacy of the First Amendment, and call into question our nation's alleged commitment to pluralism, diversity, and tolerance."

The Costly Burden of the HHS Contraceptives Mandate         


Various courts considering lawsuits filed by religious organizations against the federal government to stop the application of the HHS contraceptives mandate have ruled that the lawsuits are not ready to be heard. The religious organizations are being shielded from the mandate for the time being by a "temporary enforcement safe harbor" and by the time that expires, there will be a suitable "accommodation" for these organizations' conscience concerns-so says the federal government.


Of course, it isn't clear to everyone that there can be a suitable accommodation-which, according to the government's plans, will be something different than the exemption from the mandate that churches have been given. Whatever the accommodation will be, it will not fully exempt the religious organizations from having to offer insurance that somehow covers all FDA-approved contraceptive services, including emergency contraceptives that many believe act as abortifacients. And whatever it is, it will simply confirm the federal government's pernicious two-class system: churches receive full religious freedom protections via an exemption; non-church religious organizations receive a lesser degree of protection. Worshipping God gets full First Amendment protection; serving neighbors because of love of God-not so much.


So the ruling of a federal judge last week in the lawsuit brought by the Catholic Archdiocese of New York is very significant. According to the judge, as the Becket Fund for Religious Liberty reports, "There is no 'Trust us[,] changes are coming' clause in the Constitution." Just because the federal government says it will fix the conscience problem with some not yet-specified change does not mean that an adequate change will actually be offered. And the one-year safe harbor is not a sufficient shield either: it takes time for an organization to negotiate changes to its health insurance contract and prepare new documentation for its employees.


More than that: it takes time for an organization with a deep religious objection to the mandate to decide what it will have to do if there is no satisfactory change in government policy. And it takes time for the organization to figure out how it will pay the extreme penalties it will be assessed if it decides not to comply with the contraceptives mandate.


Neither the time nor the penalties are trivial, as the several Catholic organizations involved in the New York suit pointed out to the government. As the judge noted in his decision to reject the government's argument to dismiss the lawsuit, the Diocese of Rockville Centre needs nine months to make major plan adjustments and it faces penalties of up to $67 million per year. The Catholic Charities agency involved in the suit says it faces penalties of more than $9 million per year. Catholic Health Services of Long Island, another party to the lawsuit, claims it needs a year lead time to make major insurance changes-and that it could face up to $400 million per year in penalties for not complying with the contraceptives mandate!


Imagine all of that money paying for penalties rather than for services for the sick and needy!
Good and Bad News About Religious Freedom in Education



The InterVarsity student club at Tufts University will likely regain status as a recognized student group after a student government group made a policy change to permit religious student groups to require leaders to follow the dictates of the particular religion.  


In a victory for equal treatment, students attending Central Florida Christian College will now be eligible for funds from the Florida Resident Access Grant program. Florida had excluded Central Florida Christian from the program on the grounds that its educational program was not sufficiently secular. 


In a November decision, the Oklahoma Supreme Court upheld a voucher program for special-needs students which allowed them to attend private, including religious, schools. Two school districts had challenged the program, alleging that it unconstitutionally allowed state funds to go to religious institutions. Yet courts, including the US Supreme Court (Zelman v. Simmons-Harris, 2002) routinely uphold voucher programs that allow parents to choose religious schools--it is only because of the parents' choice, not the government's action, that government money goes to the religious institutions.





On November 30, a state judge ruled that Louisiana's expansive scholarship program violates the state constitution. That program enabled poor families to select private schools of their choice for their children. The Governor says he will appeal the judge's decision. 

Taxing and Giving

As the President and Congress desultorily consider how to deal with the huge current deficit and accumulated federal debt, much attention is being given to federal tax deductions, such as the deduction for mortgage interest, state and local taxes, and charitable contributions. One argument is fairness: these deductions go disproportionately to better-off taxpayers. But the main reason for all the attention is revenue:  how to bring more dollars into the federal treasury?


But of course the various federal deductions are not equivalent. The deduction for charitable contributions is in a class by itself: yes, it benefits the taxpayers who claim it, but those taxpayers can only claim it because they have chosen to give away money to causes that benefit other people! And by stimulating more such giving, the loss to the federal Treasury is more than offset by the flourishing of a wide range of community-enriching initiatives to combat poverty, heal the sick, educate the young, and uplift art and music lovers. These are important alternatives to the programs designed by government. They ought not be undermined in the effort to shore of the foundations of government operations.


That's why organizations like the Association of Gospel Rescue Missions, the Salvation Army, and Catholic Charities--along with many others--traveled to Washington, DC, on December 4-5 to urge Congress not to undermine the charitable sector as it searches for more tax dollars.

Further information at the Alliance for Charitable Reform.
Crazy Question No. 847: Are Charities More Effective Than Government?

For a recent "Room for Debate" discussion, the New York Times asked four experts, "Are Charities More Effective Than Government?" The various perspectives are well worth reading.


But it is a crazy question, anyway. Obviously some charities are more effective than others and some government programs are run well but others dreadfully. And clearly the government can do some things that charities just cannot: a charity might do a great job helping a woman who has been abandoned by her husband find work that can sustain her and her child, but even the best charity will not be able to compel her unfaithful husband to pay child support.


But a least this was a public policy discussion that included charities--that is, civil society! That's a big improvement over the just-past and unlamented presidential election campaign, where one side pretended that only the economy and individuals are important (remember: jobs, jobs, jobs) and the other side pretended that only the government and individuals are important (remember that "Julia" clip). Even combining those two partial perspectives gets us only to the thin and inaccurate trio: individuals, the market, and government.


But we all count on much more than that, including families, faith-based and secular poverty-fighting groups, cultural institutions, houses of worship, rescue missions, food banks, broadcast stations and magazines, schools, think tanks and advocacy organizations.


Both the Catholic ("subsidiarity") and Dutch Calvinist ("sphere sovereignty") social-teaching traditions have a lot to say about that variety of non-government, non-market institutions, and how they should be related to each other, to individuals, to the market, and to government. One great resource is Christianity and Civil Society: Catholic and Neo-Calvinist Perspectives, ed. Jeanne Heffernan Schindler (Lexington Books, 2008).


For a recent thought-provoking discussion of some of this complexity and why civil society can't be ignored in any worthwhile conversation about the common good of our society, go to the webpage for the recent event, "Civil Society and the Future of Conservatism," held at the Bradley Center for Philanthropy and Civic Renewal at the Hudson Institute. The page has a link to video and audio of the event and promises a transcript soon.  
City Planning and Faith-Based Organizations:  Calgary

The city of Calgary, the large oil-boom city in Alberta province in western Canada, a few years ago adopted a "Centre City Plan" to guide the development of its core urban area to ensure that it will be livable and thriving and a magnet for the arts, recreation, business, dwellers, and tourism. All to the good, but something is missing: attention to the faith dimension and religious institutions.


That was the observation of Cardus, the Canadian Christian think tank that pays special attention to "social architecture" (full disclosure: your editor is a Cardus senior fellow). So Cardus conducted a research project to probe the extent and roles of houses of worship and faith-based service organizations in central Calgary. According to that research, both the churches and the parachurches play a vital role in urban life: spaces to meet, spiritual nurture, a wide range of social services, providing volunteers and cultivating volunteerism, promoting civic engagement and an attitude of care for neighbors, and more.


But without careful attention to this vital dimension of Calgary's urban life, the new developments contemplated by the city's planning document--the new residents, new arts and entertainment venues, new shopping and office facilities, etc.--might well squeeze out and undermine this faith infrastructure.


Calgary city planners and officials have been receptive to the research and the message and have taken a series of actions to give new attention to the roles and importance of current religious institutions and to ensure that the planned development of the core of the city gives adequate space to worship institutions and faith-based community-serving initiatives.


Canada increasingly fancies itself a post-Christian, even post-religious, nation. In truth, religion is far from merely a memory in the lives of individuals and in the bustle and development of urban places.


Read More:  Calgary City Soul, Phase Two Final Report
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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.