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eNews for Faith-Based Organizations
April 23, 2013
Editor: Stanley Carlson-Thies
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Chipping Away at RFRA
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The immigration "deal" cooked up by the gang of eight Senators and the resulting bill is destined for attack from all sides, given the difficulty of reconciling the many different concerns and viewpoints involved. Very odd, then, to learn that the bill includes a range of special provisions favoring interest groups that have the ear of one or another of the eight Senators--as if the bill needed any additional causes for controversy.
And odder still to see in the bill an apparent attack on the Religious Freedom Restoration Act, the law passed nearly unanimously in 1993 to restore a high standard of protection for religious exercise in the context of federal policy. In a section on tightening border security, the bill authorizes the Secretary of Homeland Security "to waive all legal requirements" that the Secretary thinks might stand in the way of "expeditious construction" of border barriers needed to throttle illegal immigration. RFRA is presumably a "legal requirement" that could be set aside for the sake of quickly building new border fences or other barriers.
This isn't what the Senators meant? Perhaps not, but recent Congresses have witnessed a series of efforts to confine the jurisdiction of RFRA in the name of strengthening border security, preserving military discipline with regard to uniforms, rooting out fraudulent funeral practices, and eliminating supposed wrongful job discrimination in federal drug treatment programs (by taking away the religious hiring freedom of faith-based grantees).
Whatever else happens to the bill, it ought to be rewritten to clarify that it does not authorize any undermining of the Religious Freedom Restoration Act.
(Thanks to Galey Cary, VP for government relations, National Association of Evangelicals, for his sharp eyes.)
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Obama Faith-Based Advisory Council Continues
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ On April 5, President Obama issued Executive Order 13640, continuing for another two years the President's Advisory Council on Faith-Based and Neighborhood Partnerships. No word yet on what its membership and areas of focus will be. The current Council, which numbers 14 religious and nonprofit leaders, was charged to consider specifically how to better combat human trafficking, including by better coordinating government efforts with those of faith-based and other civil society groups. Its report was published on April 10. The initial Advisory Council numbered 25 leaders and was chaired by Melissa Rogers, who recently was appointed director of the White House Office of Faith-Based and Neighborhood Partnerships. Its lengthy set of recommendations spanned these themes: economic recovery and domestic poverty, fatherhood and health families, environment and climate change, inter-religious cooperation, global poverty and development, and "Reform of the Office of Faith-Based and Neighborhood Partnerships." This latter topic was the subject of a religiously and ideologically diverse taskforce that included Melissa Rogers and IRFA President Stanley Carlson-Thies. It recommended maintaining, with a few changes, the church-state principles that are reflected in the Charitable Choice provisions and in President Bush's Equal Treatment regulations.
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Supreme Court: Oral Argument About Speech Restrictions on Grantees
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Yesterday the U.S. Supreme Court heard oral arguments in the difficult case, USAID v. Alliance for Open Society. The case involves the federal program to combat HIV-AIDS overseas. Congress designed the program with a requirement that only organizations with a policy opposing prostitution are eligible to be grantees. In other programs, the government might require grantees not to oppose the government's view in the specific program the government is funding, but here the requirement to be aligned with the federal government's view is a positive obligation and extends to the whole organization. The broad policy at stake in this case is much too broad, according to free speech advocates and also defenders of faith-based services, who are worried that a secular-minded government might use such a broad gag-power to exclude organizations that do not follow the current societal consensus on moral issues.
It is a difficult case for a multitude of reasons. However, a decision that gives the federal government broad power to exclude from its grant programs organizations that do not toe the current governmental ideology would be a tragic outcome.
Further reading: Stanley Carlson-Thies, " Don't Make George Soros Oppose Prostitution," Christianity Today April 22, 2013.
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Call for Comments: Combined Federal Campaign Proposed Regulations
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New regulations for the Combined Federal Campaign have now been officially proposed in a Notice of Proposed Rulemaking, and comments can be submitted through June 7, 2013.
As noted in a story in the Feb. 5 eNews for Faith-Based Organizations, the proposed changes include a revision of the section on "prohibited discrimination." Currently, discrimination on the following grounds is prohibited: "race, color, religion, sex, national origin, age, handicap, or political affiliation." The new language would add, among others, the following additional prohibited grounds: gender identity, sexual orientation, pregnancy, genetic information, and "any other non-merit-based factor."
The current and proposed rules apply the nondiscrimination requirement specifically to "all aspects of the management and the execution of the CFC"--to government officials and private entities that operate this federal program that provides a way for federal employees to donate some of their income to the charities that appear on the CFC list.
Notwithstanding that clear language about the scope of the requirement, the second half of the current and proposed anti-discrimination provision appears to apply the prohibitions also to the private charities that desire to participate in this giving campaign-except that the obscure language of this second part is couched as exempting various kinds of charities from the prohibitions! And, in practice, faith-based organizations, including those that hire based on religion, do take part in the CFC, notwithstanding the current "prohibited discrimination" language-suggesting that, whatever it means, it is not intended to exclude religious organizations.
But clearly the proposed revised regulations intend to take a sharper look at allegedly discriminatory practices-the justification is to bring the antidiscrimination rules up to "current legal standards" (although current legal standards do not actually forbid that long list of additional prohibited actions). Might the provision be interpreted in the future to exclude some or many or all religious charities? At the least the language needs to be clarified.
The NPRM can be seen, and comments be made, at the federal regulations portal: www.regulations.gov. Type "RIN 3206-AM68" into the search box.
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Worth Reading on Religious Freedom and Anti-Discrimination Rules
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The U.S. Commission on Civil Rights on March 22 held a briefing on the intersection between religious freedom and the growing set of non-discrimination requirements. It was a timely briefing, as suggested by the headline of a recent Washington Post article: "Faith Groups Increasingly Lose Gay Rights Fights." The article says:
"[G]ay groups and liberal legal scholars say they are prevailing because an individual's religious views about homosexuality cannot be used to violate gays' right to equal treatment under the law.
"'We are not required to pay the price for other people's religious views about us,' said Jennifer Pizer, director of the Marriage Project for Lambda Legal, a gay rights legal advocacy group. . . .
"Gay rights groups said they do not object to making faith groups' religious jobs exempt from the discrimination laws but that offering services to the public is different.
"'In their role as a participant in the marketplace, they are being required to do that in a non-discriminatory way,' said Brian Moulton, Human Rights Campaign senior counsel."
Actual reality may be just a bit more complicated. Religious freedom does not apply only to private activities. The public is diverse and requires varied suppliers of services. The rights of persons and organizations offering services need to be respected, not only the rights of those seeking services. And so on.
Note these resources:
Gregory S. Baylor and Timothy J. Tracey, "Nondiscrimination Rules and Religious Associational Freedom," Engage, 8/3 (June 2007).
Steven H. Aden and Stanley W. Carlson-Thies, "Catch or Release? The Employment Non-Discrimination Act's Exemption for Religious Organizations," Engage 11/2 (August 31, 2010).
Richard W. Garnett, "Religious Freedom and the Nondiscrimination Norm," Notre Dame Legal Studies Paper no. 12-65; a chapter for Matters of Faith: Religious Experience and Legal Response, ed., Austin Sarat (Cambridge Univ. Press, forthcoming).
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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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Worth Reading
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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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