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eNews for Faith-Based Organizations
Jan. 22, 2013

Editor: Stanley Carlson-Thies 
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In this issue
US Citizens Increasingly Worried About Religious Freedom
Religious Freedom Day Presidential Proclamation
Religious Hiring Complications No Excuse for this Mess
HHS Contraceptives Mandate News
A First: Religious Liberty Clinic at Stanford
Same-Sex Marriage and Religious Freedom: Illinois and Rhode Island
Charitable Tax Deduction Not Safe Yet
Getting Hot Down Under
Transcript of Brookings Event on Obama's Faith-Based Initiative
Notable Quote
Support IRFA
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US Citizens Increasingly Worried About Religious Freedom         

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The Barna Group on Jan. 18 released survey results showing that a significant proportion of Americans, particularly Americans who actively practice Christianity, believe that religious freedom has been narrowed in the past decade, and that around half of Americans are "very (29%) or somewhat (22%) concerned that religious freedom in the U.S. will become more restricted in the next five years."

 

This is a striking finding, given how little constructive attention is given in the mass media to most religious freedom issues--for example, how minimal the coverage has been of the many lawsuits by religious organizations and business owners against the HHS contraceptives mandate.

 

Also striking: "Nine out of 10 Americans . . . agreed with the statement, 'True religious freedom means all citizens must have freedom of conscience, which means being able to believe and practice the core commitments and values of your faith.'" That's a much more robust concept than a simple freedom to believe religious concepts and to worship without legal restrictions.

 

Why increasing restrictions on religious freedom? 57% of Americans say it is because "some groups have actively tried to move society away from traditional Christian values," with 31% of Americans (most of them active Protestants or Catholics) saying that the pressure against Christian values comes from the gay and lesbian community.

 

Two-thirds of Americans believe that no particular religion or set of values ought to dominate the nation, although just over half of evangelicals would rather see Judeo-Christian values to be dominant. However, asked what kind of organization they would support, 65% of those surveyed said they would choose a group that protects the religious liberties of all religions, and almost half of evangelicals preferred that same choice. Few of those surveyed said they would support an organization that promotes secularism.

 

One last--but very troubling--statistic: younger Americans, including younger religious believers, are "much less" concerned about religious freedom. They are more likely than older Americans to desire a pluralistic America with no one religion predominant. At the same time they are "less likely to believe religious freedom has gotten worse in recent years."

 

Yet, religious freedom conflicts and dilemmas have actually been on the increase--not surprising as America becomes post-Christian, different and divergent views and values proliferate, and governments impose an increasing number of (secular) regulations. Every American, young or not so young, who is genuinely committed to a pluralism that respects everyone's deep commitments must be alert to these growing tensions and disputes and actively committed to solutions that honor religious freedom even as other rights are lifted up. Religious freedom and a pluralistic society do not create and preserve themselves but need the active advocacy of citizens.

 

The research reported in this survey was commissioned by the Clapham Group.

Religious Freedom Day Presidential Proclamation     

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January 16 marked the 227th anniversary of the adoption by the Virginia legislature of the Virginia Statute for Religious Freedom, written by Thomas Jefferson and one of America's foundational freedom documents. In recognition of that anniversary, President Obama again issued a Presidential Proclamation in honor of religious freedom.

 

The proclamation starts out on the wrong foot: "Foremost among the rights Americans hold sacred is the freedom to worship as we choose." Yes, of course, but freedom of religion is vastly more than the freedom to worship, the freedom to engage in particular rituals inside a house of worship or in private devotional activities. Freedom of religion also encompasses "the right to practice our faith openly as we choose"; it is the "right to exercise our beliefs free from prejudice or persecution." Those phrases are from the proclamation itself, which anchors these freedoms and rights in our Constitution and declares that religious freedom "is a universal human right . . . an essential part of human dignity" that must be respected, for "without it our world cannot know lasting peace."

 

Important words, and important to stress them at this time in our nation's history as our society becomes ever-more religiously and morally diverse. Religious freedom is a foundational American principle that requires mutual respect between citizens, governmental accommodation of the claims of conscience, and legal protection for citizens and organizations whose faith convictions lead them in a different direction than society's consensus or the secularism required of government.

 

Of course, the President's words are not as important as his administration's actions. Will the President guide his administration to respect religious freedom, notwithstanding its strong commitments to rights-abortion, contraceptives, LGBT-that run at odds to the deep religious convictions of many Americans and American religious organizations?
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Religious Hiring Complications No Excuse for this Mess
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OK, the broad freedom religious organizations have to consider religion when hiring and firing staff is not the simplest topic, especially if government money is involved.

 

Our fundamental law on employment civil rights--Title VII of the 1964 Civil Rights Act, as amended in 1972--very clearly states that it is not illegal discrimination if a faith-based organization, unlike a secular one, takes account of religion in its hiring decisions (however, as with secular employers, job discrimination based on sex, race, national origin, etc., is banned). Title VII thus takes account of the central importance of religious beliefs and faith-guided conduct to religious organizations. Title VI of the same law, which sets out anti-discrimination standards for organizations that receive federal dollars, says nothing about religion.  

 

When it comes to federally funded grants to religious organizations to provide services to others, Congress for some programs (e.g., welfare) has specifically stated that religious hiring is permitted; for others (e.g., Head Start) has specifically applied a broad employment discrimination ban that prohibits religious hiring; and for most programs has been silent about employment rules, thus leaving intact the religious hiring freedom for participating religious organizations.

 

In the case of federal contracts-where federal dollars go to a private organization to provide services such as research, advice, ships, or janitorial services to the federal government-until a 2002 George W. Bush amendment to previous Executive Orders, religious hiring was banned by all contractors. Bush modified the Executive Orders that apply to federal contractors so that, for example, a faith-based think tank would be able to advise the federal government about faith-based policy, even though the think tank, being faith-based, considers religious qualifications when hiring staff.

 

Now, that wasn't all that difficult, was it? Religious organizations, because of their religious inspiration and concern about religious values, are different than secular organizations. Employment law generally respects that difference. Even when government money is involved, much of the time religious hiring--a distinctive practice of religious organizations--is respected. After all, when the government provides funds to a private organization, that organization does not become part of government and its employees do not become government employees.

 

The Rev. Barry Lynn, head of Americans United for Separation of Church and State, managed to get most of this mixed up when he penned his recent Washington Post Guest Voices column, "Faith-based procrastination: Religious job bias in taxpayer-funded program."  He is entitled to his faith-based public policy view that faith should be driven out when the government draws near, but not to his own facts. Religious hiring was not invented by the Bush administration, although Bush did make one change involving federal contracts. Federal law does not, as a general rule, consider it to be "overt discrimination" when a religious organization hires based on religion, even if federal money is involved. Religious hiring by religious organizations is not, in law or fact, "invidious discrimination." Employment law in the case of federal contracts has always been different than employment law as applied to federal grants.

 

Rev. Lynn righteously proclaims, "Organizations--religious or otherwise--that take government money must abide by certain rules. That some religious groups don't want to follow the rules does not mean their religious freedom rights have been violated; they aren't entitled to these funds, nor are they required to take them. The organization[s] can continue to do their work and discriminate with their own money." Of course, if the religious organizations getting government money actually are ignoring the actual rules, they would be hauled into court by Rev. Lynn's organization or its allies. That instead they are just the targets of his op-ed attack shows that the real rules are different than--the opposite of--what he wishes them to be.

 

And this: it is no help to the argument to end with a flourish with the outlandish claim that employees of a government-supported private organization are in reality "government employees." You can bet that the employees of the thousands and thousands of faith-based organizations that get a little or much government funding to help people will get laughed away if they ask for their government pension upon retiring from working.

 

Find religious hiring resources on the IRFA website.  

HHS Contraceptives Mandate News          

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It is quite a spectacle:

 

* the number of cases filed against the federal government to stop the contraceptives mandate-now more than 40 and continuing to grow;

 

* the diversity of the plaintiffs--Catholic health systems, Catholic universities, a Catholic TV network, Catholic Charities agencies, Catholic-owned companies, and also a variety of Protestant colleges, an evangelical publisher, and diverse Protestant-owned companies.

 

And it is difficult to keep up with the court decisions being made--and not just because the mass media has been AWOL on this amazing series of religious freedom cases. Also the courts have been of several minds about the cases:  which ones are ripe for decisions, which organizations might have a viable case, whether an appeals court should uphold or reverse a lower court's decision against a plaintiff.

 

There are now two good overview resources:

 

The Becket Fund for Religious Liberty's HHS Mandate Information Central lists all of the cases and decisions, with links to the court opinions and related documents.

 

Greg Baylor of the Alliance Defending Freedom has published a blogpost, "HHS Mandate Cases: A Scorecard," summarizing the state of the cases so far.

 

Baylor notes that of the 15 lawsuits filed by companies, the courts have granted some relief to the companies in more than half of the cases, stopping application of the mandate to those companies pending a trial. There is no guarantee that any of these companies will win their cases. Yet it is striking that, although the federal government has strongly argued that companies and their owners cannot in principle have any valid religious or conscience claims--the for-profit world supposedly is immaculately secular--many judges think the companies have enough of chance of prevailing that a preliminary injunction should be issued to stop implementation of the mandate.

 

The non-profit plaintiffs have not fared so well. Some cases have been dismissed outright; others seem on their way to being dismissed. The dismissals are an irony because clearly even the federal government believes that the religious nonprofit plaintiffs--in sharp comparison to the religious businesses--do have legitimate religious or conscience claims. That's why, after crafting an exemption that applies only to churches, the President and the Department of Health and Human Services promised to come up with an "accommodation" for the non-church religious organizations, and also instituted a "Temporary Enforcement Safe Harbor" for them--a promise of no prosecution of these organizations for a year while the government comes up with that promised religious accommodation.

 

But it is just that promise of an accommodation and the temporary stay of execution that has led courts not to rule in favor of the faith-based nonprofit colleges, charities, and health organizations. We don't need to rule, the judges are saying, because you are not in imminent danger and, besides, the government has promised to craft a solution for you. One court wisely pressed the federal lawyers to state on the record that a significant solution is being crafted and will be announced no later than the end of March, 2013. A first report by the federal government on its progress is due to the federal appeals court in Washington, DC, by mid-February.

 

What kind of accommodation will the federal government offer? Which organizations will it cover-religious companies as well as faith-based nonprofits? Will it cover all faith-based nonprofits or only those the government deems sufficiently religious? Will it simply reflect a divide-and-conquer strategy, appeasing just enough faith-based organizations to quell the religious freedom uproar, while leaving the conscience claims of many other organizations unprotected?

 

Most important: will the accommodation in effect repair the wrongful division the federal government has created in federal law between churches--given an exemption as worthy of full religious freedom protection--and faith-based service organizations--promised only a lesser accommodation because they are considered not to be fully religious organizations with a fully religious mission of service to the community.

A First: Religious Liberty Clinic at Stanford
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On January 14, Stanford Law School formally launched the Religious Liberty Clinic as part of its Mills Legal Clinic. This is the only law clinic specializing in religious freedom issues. It will give law students valuable experience in actual court cases involving free exercise claims, and it affords to individuals and organizations seeking the new clinic's help very valuable legal assistance. The new clinic is funded in part by a $1.6 million gift from the Becket Fund for Religious Liberty. The director is James Sonne, who holds a JD from Harvard Law School and previously taught at the Ave Maria School of Law.

 

 

A religious liberty clinic is especially needed now because of the growing challenges to religious exercise by persons and organizations. In comments at the private dinner that followed the public event launching the clinic, University of Virginia School of Law professor Douglas Laycock, a premier defender of religious liberty, stressed that religious liberty needs to be especially safeguarded when religion is increasingly disfavored:

 

"A strong commitment to religious liberty reduces human suffering and reduces social conflict. It performs those functions best when it protects the liberty of all sides.

 

"Conflict and polarization over religion is nothing new, but the principal lines of conflict change from time to time. . . . Today, the principal line of religious conflict is between religious and secular -- more especially between theologically and politically conservative believers and an array of folks on the other side -- nonbelievers, nominal believers, and deeply religious but theologically liberal believers who agree with the conservatives on free exercise but disagree with them on the disputed moral issues. In part this divide tracks the left-right political split in the country, but the distinctively religious component is fundamental.

           

"Neither side is going away. Religion will not fade away in the face of modernization, and conservative Christians will not re-win the world for Jesus. Like Episcopalians and Baptists in the 18th century, and Protestants and Catholics in the 19th, we will have to learn to live with each other. The law of religious liberty must mediate and ameliorate this religious conflict as it mediated other religious conflicts in our past. And along the way, it must protect the many small groups and individuals whose religious needs get caught in the gears of modern government."

 

(Thanks to Professor Laycock for permission to quote from his speech. For his reflections on the culture war as a primary cause of weakening support for religious liberty, see additional quotes from his speech in the Notable Quote section below.)
Same-Sex Marriage and Religious Freedom: Illinois and Rhode Island
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It may be described as a wholly positive move to marriage equality and a wholly benign expansion of gay rights that has no negative consequences for anyone else . . . but, nevertheless, serious scholars of "same-sex marriage and religious liberty," whether they are for, against, or agnostic about marriage redefinition, can document and predict a long list of "emerging conflicts." (The title of the indispensable book on the topic is, indeed, Same-Sex Marriage and Religious Liberty: Emerging Conflicts. Editors are Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson. Rowman and Littlefield, 2008. Authors include the editors, Marc Stern, Jonathan Turley, Douglas Kmiec, and Chai Feldblum.)

 

And, indeed, the various legislatures that have redefined marriage have added to their laws at least a few significant provisions to protect the religious freedom of individuals and organizations whose convictions have not evolved the way President Obama says his convictions did. The insignificant provisions that are commonly present are legal paragraphs assuring clergy and houses of worship that they are safe from being required to preside over marriages that they do not regard to be marriages. Such provisions are insignificant because the protection is provided by the state and federal constitutions and is not a matter to be granted (or withheld) by the legislature.

 

What is significant, instead, is to protect churches and other religious organizations from being required to lease their facilities for gay weddings; to protect counselors and counseling centers from losing their licenses if their views of marriage don't change to fit the new state definition; to protect religious schools that teach and recognize only "traditional" marriages as divinely ordained; to enable civil servants not to officiate at gay weddings if they have a deep objection and another civil servant can take over instead; to allow faith-based adoption and foster-care agencies to continue to place children in religious mother-father married families without having such action be deemed illegal discrimination; to safeguard from lawsuits wedding caterers, bed-and-breakfast owners, photography shops, and other small businesses who have a conscientious objection to celebrating and facilitating marriages they believe to be wrong on religious grounds.

 

In short, what needs to be protected is not clergy who object to officiating for same-sex weddings, but religious individuals and institutions who have a sincere religious conviction against celebrating and facilitating same-sex marriages and a sincere religious conviction against treating such marriages as valid in the their own lives and in the operations of their religious organizations.

 

None of the legislatures that have adopted same-sex marriage have included all or even most of these protections, but they have generally added at least of few of them.

 

And the same-sex marriage activists in the Illinois legislature? House Bill 5170, which was considered in the 2012 session, proposed merely to duplicate the constitutional protections against clergy being forced to solemnize marriages that violate their convictions. Fortunately, the bill died at the end of the session. But already a new bill has been introduced, HB 110. This one adds just minimal additional protections (clergy who will not officiate at gay weddings cannot be sued or penalized; religious organizations cannot be forced to host same-sex celebrations or ceremonies; religious organizations do not lose their freedom to make religion-based employment decisions)--and does so in the most skimpy way possible (the employment protections only apply to ministerial-type positions; the protections against making facilities available for gay weddings does not apply if the facility is available to the public for rental).

 

Even as an initial bargaining position, the bill is hard to interpret as a serious effort to mitigate the predictable damage that marriage redefinition will do to religious freedom in Illinois. Whether they favor marriage redefinition or not, will legislators and citizens in Illinois accept this paltry accommodation?

 

The proposed Rhode Island same-sex marriage bill is no better. H 5015, scheduled for a House Judiciary Committee hearing today, which boasts more than half of the House's members as co-sponsors, includes an essentially meaningless section with the grandiouse title, "Protection of freedom of religion in marriage." The section claims to secure to every Rhode Island religion "exclusive control over its own religious doctrine, policy, and teachings regarding who may marry within their faith, and on what terms," and proclaims that clergy persons will not be required to solemnize marriage they object to.

 

But no one expects churches to be forced by government to redefine their doctrine; no one expects that US officials will drag pastors or rabbis before gay couples and force them to officiate at their weddings. H 5015 admits that its assurances have no punch-the protections it supposedly guarantees are just those rights and freedoms that are "consistent with the guarantees of freedom of religion" established by the US and Rhode Island constitutions!

 

Further reading:

 

Go here for links to:

 

* Letter to Illinois Governor Pat Quinn from constitutional law scholars, analyzing the religious freedom impact of same-sex marriage and proposing full religious freedom protections

 

* Letter to Members of the Illinois Senate from constitutional law scholars who favor both gay marriage and religious freedom, advocating the full protections explained in the letter to the governor 
Charitable Tax Deduction Not Safe Yet
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In the fighting leading up to the "settlement" of the fiscal cliff issues, it seemed possible for a time that, in the search for more revenues in a way that both parties might find acceptable, the federal deduction that itemizers can take for their charitable contributions might be drastically limited.

 

Some limits were placed on the deduction for higher-income taxpayers via a revival of the obscure "Pease" limitation. However, a Washington Post report says that an analysis by one expert suggests that, all told, giving to charity might actually go up, not down, because wealthier taxpayers, facing newly increased tax rates, "have more incentive to seek deductions."

 

More important than any immediate such change up or down in charitable giving is the threat to the charitable tax deduction, along with other deductions, as Congress and the President continue to battle our huge deficits and each other. As the Post story observes, "Charitable organizations fear that even more tax changes could be coming as momentum builds in Congress to overhaul the tax code, to make it simpler and more transparent."  

 

Is the charitable tax deduction a likely target? There does not seem to be strong sentiment in Congress to chop this significant incentive for taxpayers to give to charitable causes. Yet, as the Post notes, "So far, lawmakers have been wary of publicly targeting any tax break for elimination, to avoid generating opposition before the process gets started." In other words, in this matter no news is not necessarily good news.

 

To keep up with this issue, monitor the Alliance for Charitable Reform.  
Getting Hot Down Under
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It is not just the air temperature that is soaring to great heights in Australia these days. Also very hot are disputes over a government bill to consolidate multiple anti-discrimination laws into a single Human Rights and Anti-Discrimination law. The government of Prime Minister Julia Gillard intends to leave in place the existing exemptions that allow religious organizations to--big surprise--take account of religion when making decisions about hiring, firing, and employee conduct.

 

Yes, there are many difficult issues here. But, just maybe, a supposed news report claiming that what the government is planning to protect is just a bogus freedom for religious organizations to blatantly discriminate against "sinners" is not, after all, the most illuminating contribution to clarifying what is at stake and what ought to be done.

 

The offending Sydney Morning Herald article is dissected as perhaps the early winner in the "worst newspaper article in 2013 contest" in a vigorous post over at the vital religious-journalism monitoring blog, Get Religion. 
Transcript of Brookings Event on Obama's Faith-Based Initiative
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The Brookings Institution has now posted the transcript--along with the audio track--of its Dec. 17, 2012, event, "Four More Years for the White House Office of Faith-Based and Neighborhood Partnerships." The first panel featured Joshua DuBois, executive director of the Office, and some of his colleagues. The second panel of commentators was headed by John DiIulio, first director of the Bush White House Office of Faith-Based and Community Initiatives. Your eNews editor was on this panel.
 
Notable Quote
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The following is from comments delivered by University of Virginia Law School professor Douglas Laycock at the private dinner following the official launch of the new Religious Liberty Clinic at Stanford Law School, Jan. 14, 2013 (thanks to Professor Laycock for allowing me to quote from his speech):

 

"[T]he culture wars have been bad for religious liberty -- even as they have illustrated once again the need for religious liberty. . . .

           

"Two principal sets of issues drive the culture wars and fuel skepticism about religious liberty. One, and I think the lesser of the two, is the rise of a visible community of nonbelievers. . . .

 

"The other, more important threat to religious liberty is deep disagreement over sexual morality and related issues, including abortion. The most deeply divisive of these issues are abortion and same-sex marriage, but contraception has now been restored to the list after a half-century of d�tente. With respect to each of these issues, what one side views as a grave evil, the other side views as a fundamental human right. In the view of the pro-life and traditional marriage movements, abortion and same-sex marriage are so evil they must be prohibited for everybody. Which means, in the view of pro-choice women and same-sex couples, that these believers are attempting to interfere with some of the most intimate and personal of human decisions and to impose their controversial view of morality on the entire population.

           

"It is hardly a surprise that the pro-choice and gay-rights movements view these conservative believers very negatively. They view them as bigoted, a word they mostly use with respect to same-sex marriage. Beyond that, many of them believe, and occasionally say explicitly, that the religious side is evil. Of course that word is more commonly used by the religious side to describe the practices of its opponents.

 

"For too many on the pro-choice and gay rights side, the free exercise of religion begins to look like a bad idea. It is a bad idea because it empowers their enemies. It should be interpreted extremely narrowly, confined to a bare right to believe whatever crazy and bigoted things you like. But it can't mean a right to act on those beliefs; a right to actually exercise a religion.

           

"For a few people, this hostility to religious liberty may be a thought-out position. For many more, it is a growing intuitive reaction. They are tired of hearing from the Catholic bishops and the evangelical preachers -- tired of hearing about their religion, and increasingly skeptical of their claims to religious liberty. And it's likely to get worse before it gets better.

           

"Religious liberty provides a model for resolving or ameliorating these conflicts. Abortion is a special case, because the pro-life side sees it as killing innocent human beings. You cannot be live-and-let-live about that.

           

"But for the rest, the religious side could agree not to seek legal restrictions on other people's sex lives. It mostly has agreed, except for same-sex marriage - but of course that's a huge exception, and not incidentally, it is the only issue of sexual conduct where the traditionalists still think they have a chance of winning.

           

"The advocates of sexual liberty and marriage equality could agree not to demand that religious individuals or institutions assist or facilitate practices they consider immoral. But as their political position strengthens, they increasingly do not agree. They demand that religious institutions provide free contraception and free medications that, according to the FDA-approved label, may sometimes cause abortions. They demand that religious landlords rent to unmarried couples, that wedding planners do same-sex weddings, and that counselors counsel same-sex couples. No same-sex couple in its right mind would want to be counseled by someone who thinks that their relationship is fundamentally evil; the goal of these lawsuits is to drive conservative Christian counselors out of the profession. The pro-choice side increasingly complains about longstanding conscience protections for medical providers who refuse to assist with abortions. Neither side seems willing to accept live-and-let-live solutions if they think they have to votes to impose their own views on the other side.

 

"So religious liberty is in trouble politically." 
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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.