eNews for Faith-Based Organizations
April 1, 2013

Editor: Stanley Carlson-Thies 
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In this issue
Same-Sex Marriage, the Supreme Court, and Religious Freedom
One Week Left to Comment on Contraceptives Mandate Proposed Rules
IRFA Submits Comment on Contraceptives Mandate Proposed Rules
ENDA Executive Order on the Way?
A Challenge to Senator Portman
Why So Much Religious Freedom Action in the States?
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Same-Sex Marriage, the Supreme Court, and Religious Freedom           


Last week, the US Supreme Court heard oral arguments in high-profile same-sex marriage cases. Press reports and commentary were full of talk about standing, federalism, whether procreation is essential to marriage, what equality means, etc. 


What was neglected was careful attention to a fundamental constitutional value and dimension of American life that will take a big hit if the Supreme Court validates marriage redefinition: the religious freedom of organizations and individuals who "cling" to the historic concept of marriage.


And yet one of the biggest issues at stake in these same-sex marriage cases is this: "Will gay rights trample religious freedom?" That's the title the Los Angeles Times gave a 2008 op-ed by Marc Stern (then with the American Jewish Congress; now with the American Jewish Committee) in which he gave an emphatic yes--unless specific steps are taken to protect religious freedom.  


Stern listed a set of California examples that demonstrate how government rules and court decisions subordinate religious rights to LGBT rights. "In each of these cases, and other similar ones," he pointed out, "the government has acted in some way to forbid gays and lesbians from being demeaned. But allowing same-sex couples to force religious individuals or organizations to act out of accord with their faith is not cost-free either. Their dignity is no less affected."


What is needed is positive action by legislatures to build religious freedom protections into laws and regulations that intend to expand LGBT rights. This is not the kind of constructive work that courts usually do or even can do. It takes legislators and executive branch officials.


So what can they do to build up protections for people and institutions of faith whose convictions aren't "evolving" the way our culture believes they should? Marc Stern has been part of a group of constitutional law experts that has for several years been promoting to legislatures a set of legal provisions that will go far to protect religious freedom. Their argument: Clashes between religious freedom and same-sex marriage are predictable and already occurring. Legislators have an obligation to protect religious freedom, which is a constitutional right. And they are wise to act, in order to forestall the endless lawsuits and growing social strife that will result if marriage is redefined without adequate protections for dissenting persons and organizations.


Here are the religious freedom provisions that Stern and others recommend (unfortunately, no state has yet adopted all of these essential provisions):  


(a) Religious organizations protected.

Notwithstanding any other provision of law, no religious or denominational organization, no organization operated for charitable or educational purposes which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required to

(1) provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization or celebration of any marriage; or

(2) solemnize any marriage; or

(3) treat as valid any marriage

if such providing, solemnizing, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs.


(b) Individuals and small businesses protected.

(1)  Except as provided in paragraph (b)(2), no individual, sole proprietor, or small business shall be required

(A)  to provide goods or services that assist or promote the solemnization or celebration of any marriage, or provide counseling or other services that directly facilitate the perpetuation of any marriage; or

(B)  to provide benefits to any spouse of an employee; or

(C)  to provide housing to any married couple

if providing such goods, services, benefits, or housing would cause such individuals or sole proprietors, or owners of such small businesses, to violate their sincerely held religious beliefs.

(2)  Paragraph (b)(1) shall not apply if

(A)  a party to the marriage is unable to obtain any similar good or services, employment benefits, or housing elsewhere without substantial hardship; or

(B)  in the case of an individual who is a government employee or official, if another government employee or official is not promptly available and willing to provide the requested government service without inconvenience or delay; provided that no judicial officer authorized to solemnize marriages shall be required to solemnize any marriage if to do so would violate the judicial officer's sincerely held religious beliefs.

(3)  A "small business" within the meaning of paragraph (b)(1) is a legal entity other than a natural person

(A)  that provides services which are primarily performed by an owner of the business; or

(B)  that has five or fewer employees; or

(C)  in the case of a legal entity that offers housing for rent, that owns five or fewer units of housing.


(c) No civil cause of action or other penalties.

No refusal to provide services, accommodations, advantages, facilities, goods, or privileges protected by this section shall

(1)  result in a civil claim or cause of action challenging such refusal; or

(2)  result in any action by the State or any of its subdivisions to penalize or withhold benefits from any protected entity or individual, under any laws of this State or its subdivisions, including but not limited to laws regarding employment discrimination, housing, public accommodations, educational institutions, licensing, government contracts or grants, or tax-exempt status.


Adding in robust religious freedom protections such as the above language is a vital and constructive task for legislators. Whether they favor marriage redefinition or not, they are bound by their oaths to defend religious freedom, and they can defend religious freedom in practical ways that are not available to judges. Cases about marriage redefinition like those heard by the Supreme Court last week ought to be a wake-up call to legislators, whether they favor or oppose same-sex marriage.


(If the government and public decide that same-sex marriage is just the same as historic marriage, then it is true that many will see no justification for protecting religious organizations and people who disagree, and seeing no justification, activists will no doubt try to eliminate whatever religious freedom protections have been put into law. The only solution is to vigorously defend those protections. Our laws protect doctors and hospitals who refuse to perform abortions-even though the courts and many legislators want us all to believe that elective abortion is morally unproblematic and a fundamental right.)


For further reading:


Marc Stern, "Same-Sex Marriage and the Churches," in Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Rowman and Littlefield, 2008).


Collection of letters to legislatures and governors advocating religious freedom protections if marriage is redefined, at Mirror of Justice.

One Week Left to Comment on Contraceptives Mandate Proposed Rules

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.


Looking for examples of comments?


* IRFA submitted comments last week.   

* The US Conference of Catholic Bishops submitted an extensive comment letter


For the text of the NPRM and to comment electronically, go here, then click on the Comment Now button.  

IRFA Submits Comment on Contraceptives Mandate Proposed Rules       


Last week IRFA submitted a comment to the federal government in response to the early-February Notice of Proposed Rulemaking (NPRM) about "accommodating" non-exempt religious organizations that object to the HHS contraceptives mandate. The comment is available here.  


The comment refers to June 11, 2012, letter to HHS Sec. Sebelius protesting the administration's two-class scheme of religious organizations, a letter signed by nearly 150 Protestant and Catholic leaders and supporters of a wide range of religious organizations. That letter is available here.  

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ENDA Executive Order On the Way?     


About two weeks ago, 110 members of Congress sent President Obama a letter pressing him to issue an ENDA (Employment Nondiscrimination Act) Executive Order banning federal contractors from discriminating on the bases of sexual orientation or gender identity in their employment policies.


Historically, Presidents have taken the lead in crafting anti-discrimination rules for federal contractors--private businesses and nonprofits that supply goods and services to the federal government. This is distinct from the rules for federal grantees--private organizations that receive federal funds to provide services such as education, drug training, and health care to others. In the case of grants, and when no government money is involved at all, Congress has written the anti-discrimination rules for workplaces. The premier federal job discrimination rule--Title VII of the 1964 Civil Rights Act--does not mention sexual orientation or gender identity, but it does explicitly protect religious hiring decisions made by religious organizations.


Congress has so far not adopted an ENDA bill, although bills have been proposed for nearly twenty years. The members of Congress who wrote to the President in March are urging him to act quickly, using executive power, as they work to get their colleagues in Congress to adopt an ENDA bill that would extend far beyond an ENDA Executive Order. The President has said he prefers the Congress adopt the comprehensive protection. However, the recent congressional letter is just one sign of the strong and growing pressure on him to act unilaterally, not waiting for Congress.


Would an ENDA Executive Order include language protecting faith-based organizations? Faith-based organizations that do consulting and training, for example, ought to be able to compete for federal contracts. USAID, which funds overseas relief and development work, is shifting more of its funding from grants to contracts, so an ENDA Executive Order could affect faith-based organizations involved in such work.


Faith-based organizations that hire on a religious basis were given the freedom to compete for federal contracts when President Bush in 2002 amended earlier Executive Orders banning discrimination by federal contractors. Will President Obama keep that religious hiring protection? Will his Executive Order protect faith-based contractors that have religion-based conduct standards-or simply override their religious hiring freedom when sexual orientation and gender identity are involved?


The ENDA bill adopted by the House in 2007, and the subsequent bills introduced in the House and Senate have included a strong religious exemption: religious organizations free to hire on the basis of religion due to the Title VII religious exemption are not subject to ENDA's new nondiscrimination requirements.


That language is good, but insufficient. Any ENDA Executive Order, and any new congressional ENDA bill, should go further if they are to fulfill the stated aims of ENDA's supporters: to protect the rights of LGBT persons without trampling on religious rights.  


Here's the additional religious freedom protection that is needed (the following is drawn from the work of an IRFA-sponsored working group):


Section 6 of ENDA as adopted by the House in 2007 and as proposed in both the House and Senate in 2009 and 2011 has a forthright exemption for religious organizations. However, for this promised protection to be effectual in practice, ENDA needs several small but vital additions. Without these changes, ENDA is likely to cause harms to religious organizations because it will insufficiently protect religious freedom.


An exemption for religious organizations is vital because of the differing views about homosexuality held by various religious communities. Exempting religious organizations enables them to maintain employment policies that comport with their fundamental religious convictions. In the bills referenced above, ENDA exempts from its coverage all religious organizations that are eligible for the religious exemption of Title VII of the Civil Rights Act of 1964. This broad exemption, first introduced in the ENDA bill passed by the House in 2007, is a great improvement over the religious exemption language proposed earlier in 2007.


Protecting the freedom of organizations in the non-discrimination context, however, requires more than an exemption. The 1990 Supreme Court decision Employment Division v. Smith undermined the "compelling interest" test, such that legislatures must take exceptional care to preserve religious freedom in the context of a general law such as ENDA. The Religious Freedom Restoration Act was adopted by Congress in 1993 to restore the "compelling interest" standard and thereby protect religious freedom. Yet in the current environment of heightened activism to curtail discrimination against individuals, some may say that by adopting ENDA Congress has implicitly announced that the federal government has a "compelling interest" not to grant an exemption to religious organizations even though compliance with ENDA would substantially burden their religious exercise.


Furthermore, developments in parallel areas of law and contemporary activism demonstrate the need to forestall the likelihood of retaliation against organizations eligible for an exemption. Retaliation by public officials against the Boy Scouts following the Supreme Court's upholding of its policy on openly gay Scoutmasters led Congress to adopt the Boy Scouts of America Equal Access Act (2002). The New Hampshire same-sex marriage law (HB 73) not only provides that religious organizations cannot be compelled to supply services, facilities, etc., in connection with same-sex marriages but also that the refusal to provide those services, facilities, etc., "shall not . . . result in any state action to penalize or withhold benefits" from the organization that has utilized its freedom. Similarly, the Canadian same-sex marriage act (Bill C-38) includes language amending the Income Tax Act to ensure that religious charities do not lose their registration consequent to exercising their freedom not to support marriages that conflict with their fundamental convictions. By enacting such provisions, legislatures have acknowledged the importance of providing statutory protection to religious entitles against likely retaliatory action.


The religious freedom intention of the religious exemption of Sec. 6 will be more securely carried out in practice if the following three provisions are added to ENDA:


To Sec. 2. Purposes:

[new] subsec. (3) to strike a sensible balance between employment nondiscrimination requirements and religious freedom;


To Sec. 8. Construction:

[new] subsec. (d) Religious Liberty. Nothing in this Act shall be construed to establish a compelling government interest relevant to a claim under the First Amendment of the Constitution of the United States or under 42 U.S.C. 2000bb et seq. (the Religious Freedom Restoration Act of 1993).


To Sec. 6. Exemption for Religious Organizations:

[new] subsec. (b) A religious employer's exemption from this Act shall not result in any action by any federal, state, or local government agency, which receives federal funds, to penalize or withhold licenses, permits, grants, tax-exempt status, or any other benefits from that employer, or prohibit the employer's participation in programs sponsored by that federal, state, or local government agency.


In addition, to provide for those instances when an employer, whether religious or secular, should reasonably be able to specify that a particular employee, because of his or her duties, must comply with the tenets and teachings of a religion or should fit with some other lifestyle pattern, a Bona Fide Occupational Qualification provision should be added to ENDA. This would make ENDA parallel to Title VII, which itself has a BFOQ.


Such a BFOQ provides a legislative religious freedom accommodation for those predictable instances when, for example, a non-religious counseling agency or a food-processing facility desires to serves customers who require the service or products to comport with certain religious standards. It also accommodates organizations that desire to particularly serve a gay clientele. Language such as this will serve the purpose:


New BFOQ language: Nothing in this Act shall be deemed to prohibit or prevent a covered entity from establishing or maintaining practices or policies based upon sexual orientation in those certain instances where sexual orientation is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.


These four recommended changes do not, and are not intended to, expand the scope of the existing ENDA religious exemption. They only--and yet vitally--ensure that the religious freedom protections intended and stated in the design and current language of ENDA will be effectuated in practice.

Further reading:
Steve Aden and Stanley Carlson-Thies, "Catch or Release?  The Employment Non-Discrimination Act's Exemption for Religious Organizations," Engage, 11/2 (August 2010).
A Challenge to Senator Portman

Republican Senator Rob Portman (Ohio) announced two weeks ago that he had reconsidered his views about marriage redefinition and now supports same-sex marriage. Predictably, his announcement created a great stir, and--also predictably--advocates and commentators jumped to praise him or condemn him, depending on whether or not they favor marriage redefinition.


Yet, what Sen. Portman should have heard was a loud and clear challenge to come out as a strong and clear champion of religious freedom among the ranks of same-sex marriage supporters. He has changed his views on marriage. That's his responsibility. But what about his respect for religious exercise and the constitutional freedom of religion? Will he vigorously advocate to the proponents of same-sex marriage that they must work to carefully protect religious freedom as they seek to advance LGBT rights?


What would make a statement of support for religious freedom be more than just window-dressing by the Senator? Here is how he could demonstrate his genuine continued commitment to the freedom of religious exercise by persons and organizations. He could make these three public statements:


(1) I will insist that any federal action to promote same-sex marriage must include strong protections for persons and organizations that are committed to opposite-sex marriage (e.g., no formal or informal ban on their participation in public life);


(2) I will insist that any ENDA law or Executive Order must contain very strong protections for the employment policies of religious organizations;


(3) I will work for federal legislation that requires states that accept child-welfare funds to promulgate laws and regulations that protect the freedom of faith-based adoption and foster-care agencies to select families and make placement decisions that correspond with their religiously based convictions about marriage and appropriate expressions of sexuality.


Friends of classical marriage ought not to turn their backs on Sen. Portman and other prominent leaders whose views "evolve" into support for same-sex marriage. Rather, they should challenge them to become advocates for religious freedom among the supporters of marriage redefinition.
Why So Much Religious Freedom Action in the States?

 If you scan the right sources, the headlines have been full of such stories lately:


* The Kentucky legislature "overwhelmingly" overrode the governor's veto of HB 279, the Kentucky religious freedom restoration act;


* Indiana's Supreme Court unanimously upheld the state's school-choice program, which provides state-funded scholarships that families can use to send their children to religious as well as secular private schools;


* On March 26, Oklahoma's Attorney General and twelve other attorneys general wrote to the federal Dept. of Health and Human Services arguing for a broad exemption from the contraceptives mandate, claiming that the federal Religious Freedom Restoration Act requires the federal government to "provide a meaningful exception" to the mandate for religious organizations and for business owners with a conscientious objection to the mandate.  


* Virginia Gov. Bob McDonnell has signed a bill that protects the freedom of religious and political student organizations on public university campuses to require their leaders to be committed to the respective organizations' creeds. 


* Both the Kansas House and Senate have now overwhelmingly approved the Kansas Preservation of Religious Freedom Act. 


And on the negative side:


* A Washington state bill proposes to require all insurance plans to cover elective abortions, just as they are now required to cover maternity care (it does contains a religious exemption-but of uncertain value).


* S.B. 323 in California, the Youth Equality Act "would remove a state tax-exemption status for Boy Scouts of America and other nonprofit youth groups that exclude members and leaders based on sexual orientation"--although its future, even in deep blue California is uncertain, at least for now.


Why so much religious freedom action at the state level? It is partly due to the US Supreme Court. In its Employment Division v. Smith of 1990, the Supreme Court severely undermined the First Amendment's protection for the freedom of religious exercise, leaving it up to legislatures to create specific protections for religion when general laws are adopted. In 1993, President Clinton and an almost unanimous Congress restored the pre-Smith protections for religious exercise by enacting the Religious Freedom Restoration Act--but in 1997, in City of Boerne v. Flores, the Supreme Court ruled that RFRA applies only to the federal government, not to states. That decision put the burden on state legislatures if religious exercise is to be protected at the state level.


States can protect religious exercise by adopting their own state versions of RFRA-as a dozen or so states have done, with others on the way (see above). States can also act by adding protective language, e.g., a religious exemption, to specific bills that otherwise would wrongly limit religious exercise by organizations or persons (see examples above).


The other--related--reason for so much religious freedom action at the state level? Notwithstanding the constantly expanding federal government, many areas of law that touch on the religious freedom of persons and organizations are the primary or joint responsibility of state (and local) governments: family law, marriage definition, schooling, adoption and foster care, definition of nonprofit organizations, employment law, licensing of professionals and service organizations, public accommodation rules (nondiscrimination in lodging, doctor's offices, restaurants, clubs, etc.), and much more. States legislate widely--and if their rules do not take special care to protect religious exercise, multiplying conflicts with religious freedom are the result.


Two initiatives of note:


The American Religious Freedom Project at the Ethics and Public Policy Center is promoting the organization of religious freedom caucuses in state legislatures-caucuses that are bi-partisan, multi-faith, multi-ethnic, and dedicated to religious freedom for all. (Thanks to the Project's Tim Shultz for helping me understand these state policy trends.) 


The Congressional Prayer Caucus is promoting state-level prayer caucuses that work to promote religious freedom at the state level, not only for the public expression of religion but also for the exercise of religion in society and not just within the walls of churches.  
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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.