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eNews for Faith-Based Organizations
April 9, 2013

Editor: Stanley Carlson-Thies 
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In this issue
Supreme Court Case: Can Government Require Private Groups to Support Its Views?
Charitable Giving Incentive Will Likely Be Whacked in President's Budget
ENDA Correction
Halo Effect?
The ACLU's Popular but Bogus Slogan About Religious Freedom
Kuyper Lecture to be Presented by IRFA's President
Support IRFA
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An archive of current and past eNews for FBOs can be accessed HERE.  

Supreme Court Case: Can Government Require Private Groups to Support Its Views?            

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If Congress decides that the best way to fight HIV/AIDS overseas is to work to reduce risky sexual behavior, not just to provide treatment to people after they have been infected, shouldn't it be able to require organizations seeking grants from the program to have a policy "explicitly opposing prostitution and sex trafficking?" Sounds like a reasonable requirement, but on April 22 the US Supreme Court will hear lawyers argue that the congressional requirement is an unconstitutional restriction on free speech.  

 

Faith-based organizations should hope those lawyers win and that the congressional policy is struck down.

 

The case is USAID v. Alliance for Open Society International and the right decision is not an easy call. It is appealing to some faith-based groups to have the federal government weigh in against risky sex. Other groups, while worried about government control of the speech of grantees, regard the restriction in this particular program as acceptably designed (see the amicus brief by the American Center for Law and Justice).

 

An amicus brief filed by the Christian Legal Society and the Becket Fund for Religious Liberty, however, points to the far-reaching threat to faith-based services posed by the government's restriction if it is allowed by the Supreme Court to stand.

 

The brief points out that the Supreme Court regards not only government grants and contracts but also tax exemptions and the tax deduction for charitable contributions to be forms of government financial support for private organizations. That means that all faith-based organizations (and secular groups, too) have a big stake in the Court's decision in this case--not just organizations that receive government dollars to provide services.

 

What's the danger? Here's how the brief summarizes it:

 

"Under the government's theory in this case, federal, state, and local governments may use . . . government funding programs as leverage to pressure organizations into affirmatively expressing particular government-prescribed views as the organizations' own. For instance, if a government wants to pressure such groups to avow that they support or oppose contraception, pacifism, abortion, the death penalty, assisted suicide, or whatever other policy those then in control of the government choose, then that government would be free to do so."

 

As the brief explains, government can legitimately require an organization operating a program with government funds not to undermine the program by contradicting its goals and assumptions as the services are provided. But the government goes too far when, as in the anti-HIV/AIDS program, it actually demands that the organization itself, or an affiliate of it, must speak out to endorse the government's views. Then the only way the organization can refrain from singing from the government's songbook is by avoiding the government financial support--including tax exempt status and the ability to receive tax-deductible contributions.

 

The government's claimed power is so expansive, the brief says, that "every participant in virtually any government program could be required to expressly state its endorsement of whatever viewpoint the government prescribes."  

 

Given everything the Court interprets to be government support, the government's position requires faith-based and other organizations to choose between equally unpalatable options. They can avoid parroting the government's views by avoiding the government's support--including 501(c)(3) status--but then they'll be minor organizations in society. Or they can agree to say what the government requires--becoming able to play a larger role in society, just not the role they desire to play, as they are forced to proclaim views they do not consider right. One way or the other, faith-based organizations will be marginalized.

 

Congress had good intentions when it set out the requirement that grantees must affirm their opposition to prostitution to take part in the overseas fight against HIV/AIDS. But the requirement is too broad. The Supreme Court ought to force a trip back to the drawing board. And it should also send an unmistakable signal to the federal government to stop encroaching on the rightful freedoms of private, including faith-based, organizations. 

Charitable Giving Incentive Will Likely Be Whacked in President's Budget
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President Obama's budget for FY 2014 is to be released tomorrow. Until it is, only speculation about its content is possible. But it is almost certain that the President will again propose some kind of reduction in the value of the tax deduction for charitable contributions. In every budget up to now, the President has advocated, for wealthy taxpayers, capping the value of itemized deductions at 28%. There is no reason to think he won't propose the same limit again. In past years, Congress has ignored the President's proposal, but in the pressured effort to deal with the huge federal deficits and national debt, sympathy for some kind of limit is growing on Capitol Hill. 

 

Cutting back the incentive to give is not a good way to deal with the deficit. As a new website sponsored by the Charitable Giving Coalition points out, "Unlike other tax incentives, the charitable deduction is a unique provision that encourages individuals to give away a portion of their income without getting anything back." The taxpayer gets a tax break-and the charity and those its serves, and our society in general, get a big boost. As the new website points out:

 

  • In 2011, Americans gave nearly $300 billion to support charitable causes, much of which is claimed as a charitable tax deduction. Individual contributions to charitable causes account for 73 percent of all charitable giving in America
  • For every $1 a donor can deduct, the public receives approximately $3 of benefit. No other tax provision generates that kind of positive public impact
  • The charitable deduction is used by people of varying income levels. The percent of people indicating they use the charitable deduction is the same for households with incomes between $50,000-$100,000; $100,000-$150,000; and $150,000+.
  • If Congress takes away the deduction, we put at risk billions in private donations that have supported diverse, worthy causes. For example, if the Administration's proposed 28 percent cap on the charitable deduction is imposed, the sector could lose up to $5.6 billion per year.[7] That is the equivalent of more than the annual operating budgets of Red Cross, Goodwill, the YMCA, Habitat for Humanity, the Boys and Girls Clubs, Catholic Charities and the American Cancer Society combined.

 

To track what happens with the charity tax deduction, monitor:

The Alliance for Charitable Reform

The Charitable Giving Coalition

 

For the background and significance of the charitable contribution tax deduction, attend or watch on-line the April 16 event sponsored by the Bradley Center for Philanthropy & Cultural Renewal at the Hudson Institute, "The Charitable Deduction in American Political Thought." Noon to 1:30 pm EDT. Go here for details and a link for the live streamed video.    

ENDA Correction       

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The previous edition of the eNews for Faith-Based Organizations carried an article on a likely Employment Nondiscrimination (ENDA) Executive Order. The article inadvertently included misleading language about the religious protections that have been offered in recent congressional ENDA bills. Those bills have included language that exempts from the proposed new job-discrimination prohibitions any organization that is eligible for the Title VII religious organization exemption.

 

The article said that language provides a "strong" exemption--then said the language is "good" but also "insufficient." The article then discussed how the language ought to be improved. Altogether a thoroughly confusing analysis, for which the editor apologizes.

 

Of course, the corrective language is being proposed by IRFA because the existing language is neither strong nor good (except by comparison with the two previous religious exemptions proposed in 2007 by ENDA proponents). Without the corrective language, the purported religious exemption will be hollow, too weak to provide actual protection for religious organizations that have a sexual conduct standard for employment.

 

Even with the corrective language, there is ample reason for worry. Courts have ruled inconsistently on which organizations are eligible for the Title VII religious exemption: How "religious" must an organization be? Does the exemption cover only nonprofit organizations?

 

All of this is to say: employment non-discrimination rules must include language that meaningfully protects the religious hiring freedoms of faith-based organizations--and that requires language better than what has so far been offered by ENDA proponents. The corrective language detailed in the previous issue's story goes far to make the religious protection adequate. Without such corrective language, the current ENDA religious exemption is not acceptable.

 

[Thanks to Abba Cohen, Agudath Israel, for his comments.]
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Halo Effect     

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"What's the halo effect? It's a term coined by secular researchers at the University of Pennsylvania who questioned how to put a price tag on the investment that local congregations generate for the public good. They found that 12 Philadelphia congregations contributed $52-million in annual economic value to the city. More consumers put money directly into the economy, buying goods and services locally as weddings and funerals made the cash registers ring. Education and social services were part of the payoff, with programs for children, parents and the elderly. The office space that churches provide for non-profits, counsellors and charities also had an economic spinoff. So, too, did personal impact . . . ."

 

Read the whole column, "Cities should give thanks for churches' halo effect," by Lorna Dueck, from The [Toronto] Globe and Mail, here.
The ACLU's Popular but Bogus Slogan About Religious Freedom
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The American Civil Liberties Union's 2013 Workplan, not to mention its fundraising letters, public arguments, and legislative commentary, have adopted a wrong-headed, but popular, conception of religious freedom. When people and organizations of faith shape their actions by their religion, the ACLU calls it--not religious exercise but rather "the use of religion to discriminate." These acts of religious freedom, according to the ACLU, are, instead, examples of "religious refusal."

 

Here's what the work plan says:

 

"To most Americans, religious freedom means that each of us is free to make personal decisions about whom to love, when and if to worship and whether or not to have children based on our own beliefs and free of government interference. But, powerful forces in our country want to turn that principle on its head. They claim that religious freedom means they are free to impose their religious beliefs on the rest of us. And they are pushing forward a nationwide strategy to do just that."

 

What do they mean?

 

* When a Catholic hospital refuses to perform an elective abortion, the ACLU says this is an instance of Catholics imposing their views on others--even though Planned Parenthood and others are more than happy to perform that elective abortion.

 

* When a religious organization presses the federal government to be free not to include emergency contraceptives in its employee health plan, the ACLU says the employer is forcing its views on the employees--even though the federal government liberally funds the distribution of contraceptives in other ways and even though the employees are free to look for work in organizations more compatible with their convictions.

 

*When a religious adoption agency declines to place a child with a practicing gay person or a same-sex married couple--the ACLU calls this the imposition of religion, even though other private agencies specifically cater to the gay community. And so on.

 

First the ACLU and its allies persuade a legislature to criminalize action that, until then, has been a matter of choice by the person or organization (e.g., who to serve and how), and then, when religious communities push back, asking for an exemption that will protect their right to continue to make their faith-shaped decisions, the ACLU claims that this plea to vindicate the constitutional protection of religious exercise is just a pernicious call for theocracy. And yet the religious voices are calling only for the freedom to be true to their own beliefs, leaving the same freedom for others--other doctors, other adoption agencies, other clubs, other schools--to follow their own convictions.

 

It isn't the religious communities that are seeking to limit freedom in these battles--rather it is the ACLU.

 

If you get the ACLU's fundraising letter asking you to support their current anti-religious freedom campaign, why not instead donate to IRFA? Just go here to make a secure on-line donation! 
Kuyper Lecture to be Presented by IRFA's President
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The Center for Public Justice's 2013 Kuyper Lecture will be presented on April 25 at Calvin College, Grand Rapids, Michigan, by Stanley Carlson-Thies. The lecture is entitled, "Prohibiting the Free Exercise Thereof: The Affordable Care Act and Other Threats to Institutional Religious Freedom." 7:30-9 pm, Prince Conference Center. Reception following. Both lecture and reception are free and open to the public. More details here.  
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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.