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eNews for Faith-Based Organizations
March 1, 2013
Editor: Stanley Carlson-Thies
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A Possible Legislative Fix for the HHS Contraceptives Mandate
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Many religious organizations and also businesses operated by people of faith regard the HHS contraceptives mandate to be a direct attack on their freedom to operate their organizations in a way that reflects their deep convictions about life and morality. The administration has provided an exemption for "religious employers" but it is so narrow that it covers only churches, leaving the vast majority of religious nonprofits out. Several ideas for an "accommodation" for those religious nonprofits have been proposed, but nothing is final, nor does it seem possible to do what the government seeks to do: guarantee that women employed by dissenting religious organizations will get free access to contraceptives, including abortifacients, because of their status as employees-while also guaranteeing the employer that its health plan excludes those contraceptives and abortifacients. And neither the accommodation nor the exemption provide any protection whatsoever for religious businesses. So the deep religious freedom concerns about the mandate continue.
But what to do about it? The US Supreme Court, ruling on a different issue, refused to declare the health reform law unconstitutional. Last November's election outcome put an end to talk of a congressional repeal of the law. An effort last year by Senator Blunt (R-MO) to push conscience protections into the law went nowhere. Forty-eight lawsuits, with over 140 different plaintiffs--just consider those numbers!--have been launched against the mandate but without any resolution yet. The courts won't give relief to religious nonprofit organizations because they are temporarily shielded from the mandate and perhaps the final version of the promised accommodation will adequately deal with the conscience issues (at least in the eyes of the judges). Some judges have issued preliminary injunctions to stop the mandate temporarily in lawsuits filed by religion-owned businesses (despite the administration's claim that businesses can have no religious freedom claims), but no final determinations vindicating the companies have been made.
In the meantime, an employer that offers health insurance that does not include "all FDA-approved contraceptive services" is subject to hefty penalties: Hobby Lobby says it is subject to $1.3 million per day in penalties; Catholic Health Services of Long Island says it faces up to $400 million per year in penalties. That's a huge expense for trying to operate an organization consistent with its founding religious principles. It is a huge diversion of money away from serving customers and patients.
A possible legislative remedy is currently being considered by some members of Congress--but very likely it will go nowhere, unless there is a great public outcry forcing action.
The idea is to put into a must-pass government funding bill language that protects conscience--language that extends existing federal conscience protections to the HHS contraceptives mandate (the language would also strengthen existing protections for people and organizations that refuse to be involved with abortion, by enabling them to go to court if their rights are violated). See the February 15 letter from Archbishop Lori, head of the US Conference of Catholic Bishops' Ad Hoc Committee for Religious Liberty, for the idea and its rationale.
How would this work? Republicans in the House could put the language into a crucial appropriations bill and secure its adoption because of their majority. Although Democrats rule the Senate, how could they stop an essential government-funding measure just over this? And the same for the President: vetoing the bill would mean shutting down the federal government, so he would have to permit by legislation the conscience and religious freedom protections he has stopped by regulations.
Except that none of this will happen if House Republicans do not take the first step. And there is no sign that they intend to put protective language into any must-pass bills.
Efforts to stimulate the citizen pressure that might get the protective language into a must-pass bill include:
* A Catholic postcard campaign.
* A Catholic email campaign.
* An email campaign by A Call 2 Conscience, a coalition of pro-life and religious-liberty organizations.
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Accept a Government Gag if You Accept Government Funds
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The case the US Supreme Court has agreed to hear-- USAID v. Alliance for Open Society--concerns whether an organization the US government partners with to fight HIV/AIDS overseas must have a policy of opposition to prostitution. And the organization challenging the federal government's policy is part of the Open Society network of organizations funded by George Soros. Those are two reasons why many religious organizations and leaders may find it difficult to see the dangers posed to faith-based services by the federal government's stance. (Some organizations, it should be noted, are worried that a victory by the federal government may have negative consequences in the future and yet believe that in this particular instance its policy is defensible.)
It is a complicated case, but it can perhaps be summarized like this. In this particular program to fight HIV-AIDS, Congress wanted to stress responsible sexual activity as a major solution. So it required grantees to have a public stance against prostitution not only in the actual HIV-AIDS programs they operated with federal funds but as a public commitment of the organizations themselves. However, another strategy to fight HIV-AIDS is to persuade prostitutes to engage in "responsible sex" (insisting on a condom, getting regularly tested for HIV-AIDS, etc.)--but how can an organization successfully work with prostitutes if it is required to shout the government's message that prostitution is a great evil? So the Alliance for Open Society, International, sued the federal government for imposing a gag order on the entire organization and not just on the specific HIV-AIDs program that was federally funded.
There's something to the government's logic, and yet this is a deeply troubling federal government policy. It is troubling on free speech and religious freedom grounds, as a matter of principle. And it should be particularly troubling to faith-based organizations whose views about cultural and policy matters diverge from the current popular consensus. Consider:
* It is not difficult to imagine a government program to combat bullying that refuses to partner with a religiously conservative youth-serving organization on the grounds that the organization's stance against sexual expression outside of a biblical marriage must make it homophobic and thus unable to serve all victims of bullying.
* It is not hard to imagine government officials claiming that, because of its pro-life stance, they cannot license a Catholic hospital to open in a community, even though there is a hospital right around the block that does perform abortions and other services of the Catholic hospital are recommended by the government; after all, that religious hospital is contradicting the government's message that abortion is not only legal but perfectly acceptable.
* It is not hard to imagine a government program that funds nonprofits to provide mentoring and counseling to troubled families to refuse to partner with a religiously conservative nonprofit on the grounds that the nonprofit, unlike the government, believes that an appeal to God is part of lasting solutions to such troubles--even though the nonprofit agrees not to give that message in the funded program.
The lawyers defending the Alliance for Open Society International are looking for faith-based organizations that are committed to equal rights for all and who can see the dangers looming if the government can get away with imposing required speech on an entire organization just because the organization runs a particular program using federal dollars. Who will speak up?
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Hidden Restriction on Faith-Based Organizations in VAWA Reauthorization
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Maybe it was intended, maybe not. Whichever it is, the bill to reauthorize the Violence Against Women Act that has now been adopted by both the House and the Senate (S. 47) contains an unnecessary and mistaken restriction on grantees that will make it less likely that faith-based organizations will partner with government to aid women who suffer violence and abuse.
VAWA reauthorization has been a long slog. Thanks to disputes over extending its protection to LGBT victims and over provisions to protect Native American women on reservations, the reauthorization effort in 2012 stalled. This time a bill including these protections won a handy Senate majority and yesterday, after a House bill without the identical protections was defeated, that Senate bill also won a House majority. Next stop: the President's signing pen.
Lost in the big fight over extending the scope of VAWA's protection, both in 2012 and 2013, was serious congressional attention to how the reauthorization bill's nondiscrimination language will constrict participation by faith-based organizations. The language in the bill now heading for the law books states: "No person in the United States shall, on the basis of actual or perceived race, color, religion, national origin, sex, gender identity. . . , sexual orientation, or disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part" by VAWA funding.
The language certainly intends to ensure that no one who should receive VAWA services will be turned away because of unjust discrimination--for example, because the service organization is biased against some nationality or refuses to assist sexual minorities. But it is very broad language. In fact, it is broad nondiscrimination language just like the language in the Head Start program and the Community Development Block Grant (CDBG) program--and that broad language has been interpreted not only to protect beneficiaries against discrimination but also to ban employment discrimination by the private organizations that get the federal funds. (For details on this problem, see the Bush administration's excellent booklet, Protecting the Civil Rights and Religious Liberty of Faith-Based Organizations: Why Religious Hiring Rights Must be Preserved.)
And a ban on employment discrimination as a condition of accepting the funds means: no religious hiring by a faith-based organization that accepts CDBG, Head Start, or, soon, VAWA funds--even though, under civil rights law, it is perfectly legal for a faith-based organization to consider religion when hiring and firing (after all, religion is a defining characteristic of the organization and its way of operating and serving!).
Did proponents of expanded LGBT protections in VAWA intend at the same time to minimize the religious freedom of faith-based organizations that might want to serve in this program? An equally important question: Why did none of the champions of faith-based service in the House or the Senate get this overly broad nondiscrimination language removed from the bill?
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Charity Tax Deduction: Important for Many Charities, Vital for Others
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Thanks to the federal government's continuing huge debt crisis and the deep polarization about solutions (mainly more revenues vs. mainly less spending), Washington policymakers keep casting covetous eyes at the federal tax deduction for taxpayers who give to charitable organizations and who itemize their deductions. No matter that the long-extended recession has meant more and more people showing up at charities for shelter, food, and other services even while the recession has made it harder to raise the donations needed to pay for those services.
The House Committee on Ways and Means recently held a hearing on the charity tax deduction, which revealed two very important dimensions of the issue that have gotten little public notice. (Thanks to Rhett Butler, government affairs director of the Association of Gospel Rescue Missions for this information.)
Some charities are more dependent than others on donation income. Discussions of the effects on giving, and thus on charities, of shrinking or ending the charity tax deduction assume that all charities depend equally on private donations to fund their work. And yet that is clearly not the case. Some charities receive some or much government funding and significant income from sales, special events, or fees for services provided. In all of these cases, they are less dependent on charitable contributions and thus less dependent on the incentive to give that is provided by the federal tax deduction.
On the other hand, gospel rescue missions are heavily dependent on those charitable contributions. Here is what John Ashmen, President of the Association of Gospel Rescue Missions, testified:
"[M]issions are not fee-for-services entities, so they are extremely dependent on the generosity of private donors to care for the poor and homeless. To say that another way, private donations do not supplement the income that rescue missions receive; they are the primary source of their income. For example, Crossroads Center Rescue Mission in Congressman Smith's Nebraska district receives 99 percent of its annual funding from individuals.
"Rescue missions have for years counted on the current charitable deduction as an effective incentive for donors to give. And they dread what might happen if that incentive is reduced. And let me add that very few rescue missions accept government aid because they desire to protect their religious identities--which, in most cases, is what motivates their deep desire to serve.
"[Furthermore,] because rescue missions rely so heavily on private giving, they are especially vulnerable to even small drops in charitable contributions--and every drop impacts services. For example, for every $2.05 a donor does not give to Rescue Ministries of Mid-Michigan in Chairman Camp's district, that's one less free hot meal they can provide. And for every $30 that does not come in, that's one less 'Hope and Care Package'--which is three meals, overnight accommodations, and hygiene products-that cannot be provided to a homeless adult or child.
"Every donor and every donated dollar is essential to the daily work of rescue missions. And while prices of goods and services go up all around them, rescue missions cannot fall back on raising their rates because they have no rates--only expenses. You could even say that rescue missions are just as vulnerable as the people they serve."
Rhett Butler of AGRM notes that, notwithstanding the fact that different charities are more or less dependent on gift income, the tendency of experts on the charitable deduction is to assume that most charities can count on much income from other sources, so that any reduction to giving caused by a change in the tax deduction will be moderated by the other income sources. Clearly that logic ignores the situation of these gospel rescue missions, and also that of many other nonprofit organizations.
Should government define what is authentic charity? Another danger revealed by the hearing is the growing trend among some activists and legislators to redefine what is a true charity--the kind of organization and action that "deserves" government encouragement through the charity tax deduction. Some want to target the government's encouragement to organizations that serve low-income and minority communities instead of allowing symphonies, houses of worship, and other kinds of good works also to receive tax-deductible gifts. And some want to make it a requirement of charitable status that the organization serves and employs specified percentages of racial and sexual minorities. In either case, the tax incentive to give to certain charities would be cut merely because their assessment of what good to do and how to do it differs from the views of particular activists.
In short, just as the Bible says, the love of money--in this case by legislators seeking a solution to our huge national debt--is the root of many evils.
For more on the impulses to redefine what is charitable activity and how it ought to be carried out, note several past discussions sponsored by the important Bradley Center for Philanthropy and Civic Renewal:
"Philanthropy at Its Best? A Discussion of NCRP's New Benchmarks for Foundations," May 28, 2009.
"How Public Is Private Philanthropy?" June 19, 2009.
"Mandating Multicultural Munificence?" April 7, 2008.
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Commission Briefing: Religious Freedom vs. Non-Discrimination
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The U.S. Commission on Civil Rights will hold a briefing on March 22 to discuss the interaction between religious freedom and non-discrimination requirements.
One panel features speakers from the Christian Legal Society, the Becket Fund for Religious Liberty, the ACLU, and Americans United for Separation of Church and State who were involved in the Hosanna-Tabor v. EEOC case or the CLS v. Martinez Supreme Court cases. The former case vindicated the freedom of religious organizations to select ministerial leaders; the latter case denied under certain circumstances the freedom of religious student clubs to limit leadership to those faithful in creed and conduct.
The second panel "will discuss the broader conflict between anti-discrimination norms and civil liberties." Speakers come from a range of institutions and philosophical and religious standpoints.
More details on the Commission's website.
The Commission is accepting public comments on the topics of the briefing until April 21.
Further reading:
Greg Baylor and Timothy Tracey, "Nondiscrimination Rules and Religious Associational Freedom," Engage, 8/3 (June, 2007).
Rick Garnett, "Religious Freedom and the Nondiscrimination Norm," in Austin Sarat, ed., Matters of Faith (Cambridge Univ. Press, forthcoming).
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Universal Government-Funded Pre-K Education?
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In his State of the Union speech two weeks ago, President Obama said he would work with the states "to make high-quality preschool available to every child in America." At the moment, he said, "fewer than 3 in 10 four year-olds" are enrolled in such programs, noting that the cost can be significant. Although he did not make a specific proposal, President Obama implied that the solution is universal government-funded pre-K schooling. No need to worry about the expense: "every dollar we invest in high-quality early education can save more than seven dollars later on."
Maybe. But government funding and regulation of preschools, unless very carefully designed, will be harmful to the existing preschool choices of many parents: those who desire their children to be served by faith-based institutions. If government directly funds the schools, either faith-based preschools will be excluded or they will be required to artificially separate out their religious activities and teachings from the rest of what they do. If teacher accreditation, curriculum requirements, and preschool licensing standards are not designed specifically to include faith-based options and perspectives, then this whole important segment of the current preschool network will be frozen out. These are not speculative concerns; battles over these matters have taken place in various states in which government has taken a larger role in preschool education.
Federal and state legislators who care about good early childhood education and parental responsibility in schooling--not to mention religious freedom and a vibrant civil society--will make it a top priority to ensure that any new funding or regulation does no harm to faith-based preschool education.
See also the JTA article, "Agudah wants faith-based preKs in universal program."
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Worth Reading--From Canada
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* Robert Joustra, " I, for one, Welcome our new [Canadian] Ambassador of Religious Freedom," The Cardus Daily, Feb. 18.
* Robert Joustra, "Monitoring religious freedom is tricky work," The Calgary Herald, Sept. 28, 2011.
* Douglas Farrow, "Remove Your Collar, Father," Convivium: Faith in Our Common Life (Cardus), Jan/Feb, 2013.
The article concerns a recent Quebec appeals court decision requiring Loyola High School, a private Catholic school, to teach the provincial-government designed course, "Ethics and Religious Culture." The course is designed to foster in students respect for people of other religions and convictions but it does so by holding up a view of the common good as secular and by undermining the truth claims of every religion. Farrow observes that the court is requiring the high school to teach as true things that it, as a Catholic institution, is convinced are not true. The court decision also rests on the view that it is in principle impossible for a Catholic institution to achieve the objectives of the government course: cultivation of "the recognition of others" and "the pursuit of the common good."
For more on this troubling curriculum, court decision, and Canadian (soon American?) public trend, visit Professor Farrow's website, "Pluralism, Religion & Public Policy."
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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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