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eNews for Faith-Based Organizations
March 13, 2013
Editor: Stanley Carlson-Thies
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Melissa Rogers is New Director of White House Faith-Based Office
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President Obama hits a triple.
Melissa Rogers, a noted consensus-building church-state expert, has been appointed the new director of the White House Office of Faith-Based and Neighborhood Partnerships, succeeding Joshua DuBois, who resigned in February. She was the chair of President Obama's first Advisory Council on Faith-Based and Neighborhood Partnerships, where she also directed its taskforce on "Reform of the Office," which recommended that the President largely maintain the principles of the faith-based initiative as those were developed during the Clinton and Bush administrations. Most recently, Rogers has been the founder and director of the Center for Religion and Public Affairs at Wake Forest University School of Divinity.
Before her Wake Forest and Advisory Council service, she was the executive director of the Pew Forum on Religion and Public Life and, earlier, general counsel of the Baptist Joint Committee for Religious Liberty.
Rogers has been involved in a series of important "common ground" projects designed to foster understanding of and respect for religious freedom across various areas of disagreement. She is notable for advising both government and faith-based organizations, and has been a strong voice reminding faith-based service organizations and churches that religious freedom is intended not narrowly to free them from government accountability but more significantly to enable them to serve God and neighbor with greater faithfulness.
She carries into the White House faith-based office a concern not only with the conditions under which religious organizations can partner with the federal government to provide services but more generally with how the federal government should respect religious freedom when it regulates and legislates in general, including on such matters as the HHS contraceptives mandate, changing definitions of marriage, and reproductive and LGBT rights. It is to the good of society in general, as well as to our nation's many religious communities and numerous faith-based organizations, and a decision of great credit to President Obama, that he appointed to this strategic office at this time such a stalwart, experienced, and authoritative advocate of religious freedom.
One important caveat: many faith-based organizations will be very uneasy about Rogers' view that their right to hire on a religious basis should be limited in any program they operate using government funds. Such a universal limit would be unprecedented and would cause many of the government's current and most-valued service partners to have to walk away. The President, who holds the same position, has refrained so far from making such a drastic and counterproductive change. Here's praying that an appreciation for the important work of the government's religious partners will continue to trump abstract separationist impulses.
Further Reading: Melissa Rogers and E. J. Dionne, Serving People in Need, Safeguarding Religious Freedom: Recommendations for the New Administration on Partnerships with Faith-Based Organizations (Brookings Institution, Dec. 2008).
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Opportunities to Comment: Contraceptives Mandate Plus Civil Rights Commission
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April 8 is the deadline to submit comments in response to the early-February "proposed rules" (Notice of Proposed Rulemaking--NPRM) about "accommodating" non-exempt religious organizations that have objections to the HHS contraceptives mandate. The proposed rules would: change the definition of an exempt religious employer; define which organizations are eligible for the accommodation; and detail the proposed accommodation. The NPRM offers ideas, though no actual proposed rules, for organizations that self-insure. The objectionable two-class scheme by which houses of worship, but not faith-based service organizations, are accorded full religious freedom respect, remains the framework for the government. (See this eNews story for details about the NPRM proposals.)
The accommodation is pretty much what was suggested in the March, 2012, Advance Notice of Proposed Rulemaking (ANPRM). Organizations and individuals who commented on the ANPRM might essentially resubmit their comments in response to the NPRM, noting that what has changed is not essential and what remains unchanged is not acceptable.
For the text of the NPRM and to comment electronically, go here, then type CMS-9968-P into the search box and select the top result.
April 21 is the deadline to submit comments to the US Commission on Civil Rights in connection with the briefing it has scheduled for March 22 to discuss the intersection between religious freedom and non-discrimination requirements. Comments need not be in response to the briefing itself but can discuss, in lesser or greater detail, the commentator's convictions about how religious freedom should be respected even as other rights are being promoted. Organizations and individuals who consider their freedom of religious exercise to have been wrongly curtailed due to some legal requirement-e.g., to disregard their moral convictions when providing services-have an opportunity to comment on their concerns.
Submit comments here.
And proponents of religious freedom may want to line up early to get one of the limited number of seats before the briefing begins at 9:30 am on March 22 at 1331 Pennsylvania Avenue NW, Suite 1150, Washington, DC.
Notable comments to the Commission include:
Ed Whelan, Ethics and Public Policy Center, written testimony.
John Inazu, Washington University in St. Louis, comment.
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RFRA Remedy for VAWA Restrictions on Religious Hiring
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As noted in the previous issue of the eNews for Faith-Based Organizations, the bill Congress recently passed (now signed by the President) to reauthorize the Violence Against Women Act (VAWA) includes broad non-discrimination language that not only forbids discrimination on various bases against victims needing assistance but also bans grantees from taking account of religion when hiring staff--even though federal employment law protects religious hiring by religious organizations.
Perhaps Congress will ignore the misguided analysis of the Coalition Against Religious Discrimination next time and adopt narrower language that protects the right of all victims of domestic violence to get help while also protecting the freedom of faith-based service organizations to partner with the federal government to render that assistance.
In the meantime, faith-based organizations that care about religious hiring while also desiring to serve in the VAWA program have a federally approved way to get involved in the program without sacrificing their religious hiring freedom. The Religious Freedom Restoration Act forbids the government from imposing a substantial burden on an individual's or organization's religious exercise unless the government has a compelling interest and cannot satisfy it in a less burdensome way.
The Office of Legal Counsel in the Department of Justice in 2007 opined that, because of RFRA, a religious organization that hires on a religious basis may nevertheless participate in a federal program that bans religious discrimination in employment. To do so, the organization has to certify that religious hiring is important to the maintenance of its religious identity, that it hires based on religion in other service programs, that receiving the grant will significantly affect its ability to provide the services, and that providing such services is a reflection of or response to its religious mission. Having certified to these things, the government is to permit the organization to take part in the program without first abandoning its religious hiring practices.
Gaining entrance to VAWA despite a religious hiring policy is likely to require making a careful argument to the government officials involved. Organizations will want to consult:
* The Office of Legal Counsel memo dated June 29, 2007.
* The SAMHSA Charitable Choice regulations that spell out how an organization can claim the RFRA lifting of a religious hiring ban: 42 CFR 54.6: Employment Practices.
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HHS Contraceptives Mandate: House Conscience Bill Introduced
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Unfortunately, language to protect conscience and religious freedom in the health care context was not put into the "must-pass" money bill recently adopted by the House of Representatives. However, on March 4, Rep. Diane Black (R-TN) and 66 co-sponsors introduced H.R. 940, the Health Care Conscience Rights Act, as a stand-alone bill intended to protect individuals and organizations that object to the mandatory inclusion of contraceptives and abortifacients coverage in health insurance and to protect doctors, nurses, and others against having to be complicit in abortions.
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Worth Hearing
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NPR, Feb. 21, "Who Gets Religious Exemptions and Why," featuring John Witte, director of the Center for the Study of Law and Religion at Emory University, and Richard Garnett of the University of Notre Dame Law School.
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| What is IRFA?
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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