August 9, 2013

When federal child care funding was initiated in 1990, and when it was reauthorized as part of welfare reform in 1996, Congress carefully wrote the rules so that the faith-based programs that many parents count on would not be excluded. In particular, the program was designed to encourage states to use certificates (vouchers) and not rely on contracts and grants to pay for child care for low-income families. When certificates are used, then, as the rules state (and as the US Supreme Court has affirmed), faith-based agencies can offer child care that includes religious activities, and the agencies do not have to forfeit their right to hire staff based on religion. If the payment for child care instead comes directly to an agency via a grant or contract, though, then religious activities and religious hiring are banned. For more than two decades, this system has enabled poor families to get the child care they need without being limited to choosing among secular providers.

 

Now the federal government wants to improve the quality of the child care its money supports, including by integrating early childhood education into it.  To that end, in May HHS  released a Notice of Proposed Rule Making proposing and discussing revised regulations. Among other things, the new regulations would direct states to turn more often to grants and contracts in place of certificates.  The stated reason is to more reliably purchase higher-quality child care, but the effect would be to reduce the role of faith-based providers. Other laudable intentions, including changes to improve the information available to parents when they choose a provider, also neglect or will likely work against faith-based providers.

 

IRFA submitted a comment on the proposed new rules. 

 

On August 2, the Office of Management and Budget issued a memo to federal departments and agencies directing that they must assess their grant, contract, and other policies and practices to ensure compliance with President Obama's Nov. 2012 Executive Order 13559, "Fundamental Principles and Policymaking Criteria for Partnerships with Faith-based and Other Neighborhood Organizations." This Executive Order modifies, but only in a relatively minor way, the Charitable Choice and Equal Treatment principles developed during the Bush and Clinton administrations. It should be said that, compared to the Bush approach, the Obama approach stresses more the restrictions on faith-based services that are government funded--although acknowledging their legitimate freedoms.

 

President Obama's Executive Order created an Interagency Working Group to develop guidance on how federal departments and agencies are to implement its principles. That guidance was issued more than a year ago, but was then, apparently, ignored by those departments and agencies. Melissa Rogers, when she took over as executive director of the White House Office of Faith-Based and Neighborhood Partnerships, stressed that one of her goals was to work with OMB to ensure that the guidance would result in department and agency action.

 

The Working Group report rightly stresses the importance of training government officials on the principles that are supposed to guide their interactions with faith-based organizations, and it also stresses that pertinent regulations and policy documents ought to be posted online so that everyone knows the rules that apply to government partnerships with faith-based and secular private organizations.

 

But in the absence of a determined push from OMB and the White House faith-based office, neither of these took place, contributing to a back-sliding in federal practice: the formal rules continue to provide for a level playing field, but the actual practices of government have tended to return to old habits that were less open to participation by explicitly faith-based service providers.

 

Given that the principles of the Executive Order and the guidance of the Working Group are very--if imperfectly--hospitable to faith-based involvement, it is all to the good that those principles be will be implemented and publicized.

 

See Melissa Rogers' statement about the OMB memo here.

 

See IRFA's commentary on the Working Group's guidelines here.

Last week Third Way and the Human Rights Campaign released a survey, "Americans Agree: Marriage for Gay Couples Doesn't Threaten Religious Liberty." The survey purports to show that "Americans are not only solid in their support for allowing gay couples to marry, but they are strongly supportive of non-discrimination laws and opposed to any new legislation that would allow services to be denied to gay individuals or couples. In fact, when it comes to religious exemptions, voters are clear that they should be limited to places like churches and synagogues and people like pastors, priests, and rabbis."  

 

No doubt there is significant sentiment exactly like this in the American public: many people do think that it is immoral discrimination when a faith-based organization follows its religious convictions about appropriate conduct; many do think that religious freedom does, and should, protect only houses of worship and the clergy. But this survey is not good evidence of these troubling developments.

 

The survey hasn't gotten much notice, and rightly so: The number of people surveyed was small, leading to very large margins of error: "+/- 3.5 and [even] larger for subgroups"--such as for the results reported for "Christians." The exact wording of questions is not provided. There is no explanation of how the subgroups are defined--in particular, who was counted as a "Christian." And the polling group used was Anzalone Liszt Grove, which proudly lists its activities as "Polling. Message. Strategy." and announces of one of its principals, "In the last decade, John has helped beat more incumbent Republicans and taken back more Republican seats than any other polling firm in the nation." Perhaps this survey was not a disinterested pursuit of complicated research.

 

And there are also these other major problems:

 

The survey, or at least the report, does not distinguish carefully enough between views about the legitimacy of differential treatment provided by different kinds of entities--e.g., a religious charity rather than a small business.

 

And because the report combines views about banning sexual orientation discrimination that are held by respondents who live in states that have such a ban with views from other respondents who live where there is no such ban, it is not clear just what the respondents actually believe.

 

The report says that most Americans already think it is illegal for a small business to discriminate in providing services. It then claims--based on its limited sample--that two-thirds of voters believe that "our laws already strike the right balance when it comes to religious liberty and small business, and we should not change that."

 

But a significant number of those surveyed live where there is no ban on sexual orientation discrimination. What they experience is, apparently, a rather peaceful modus vivendi. It must be rare for a gay person in those states to be mistreated by businesses, religious charities, government officials, or else the respondents would not think that there is already a law banning such discrimination--and yet there is actually no such law. What many of the respondents favor, then, is the status quo in which there is actually no legal restriction on religious freedom with regard to making decisions concerning sexual orientation.  The views of these respondents cannot be turned into a demand for a strong ban on sexual orientation discrimination with a narrow exemption for churches and ministers.

 

The headline of Notre Dame law professor Richard Garnett's column about the religious-freedom consequences of the Supreme Court's same-sex marriage rulings has a question mark: "Worth Worrying About?" But his analysis, and that of many other religious freedom experts, makes it clear that there is every reason to worry.

 

In both the DOMA and Prop. 8 decisions, the Court made rather narrow technical decisions, but the effect has been to supercharge the effort to overturn the historic definition of marriage across the United States, including in the majority of states that specifically define in law or constitution that marriage is a man-woman relationship. That's partly because the Supreme Court's decisions have emboldened yet more government officials to follow the example of the federal and California officials in these two cases who simply decided not to defend in court valid laws that they disagreed with. And it is partly because, while the DOMA decision (United States v. Windsor) specifically upheld the right of states to define marriage as they choose, its language says that the only possible justification for a definition that excludes same-sex couples is a bias against gay couples and families--and that language has prompted judges and same-sex couples in multiple places to challenge opposite-sex marriage requirements as inherently bigoted and unconstitutional.

 

Thus, although the Supreme Court did not issue a Roe v. Wade-type ruling formally making same-sex marriage obligatory in every state in the Union, it drastically accelerated the move to overturn, by court or legislative action, every government definition of marriage as limited to man-woman relationships. That doesn't mean that defenders of the traditional definition should and must give up or that those traditional definitions will inevitably be overturned, one by one, and soon. But it does mean that the legal arguments, cultural force, and political momentum of same-sex marriage proponents have been greatly increased, making it much more likely now than before the Supreme Court spoke that same-sex marriage will become the norm across the United States quite rapidly.

 

Religious-Freedom Problems. And that's the reason for the worries about religious freedom. The reality is given right in the name of the most important book on the topic: "Same-Sex Marriage and Religious Liberty: Emerging Conflicts." The book, edited by Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson, laid it all out in stark detail, already in 2008. Read especially the chilling first chapter, by Marc Stern, "Same-Sex Marriage and the Churches"-he means, same-sex marriage and faith-based organizations and religious professionals.

 

Religious Exemptions. And yet, as the book shows, many or most of the all-too-predictable conflicts concerning adoption services, admissions policies, licensing of marriage counselors, eligibility for tax-exempt status, hiring decisions and employee benefits, rental of spaces for ceremonies, etc., etc., can be mitigated or eliminated . . . if legislators honor their constitutional duty to safeguard religious exercise by constructing careful and robust religious exemptions. What careful and robust religious exemptions to a same-same sex marriage law should look like is detailed in a letter authored by some of the same experts who wrote the book showing the looming problems.

 

Displaying a Religious Identity. One other thing is needed--and the Supreme Court same-sex marriage decisions have heightened the need for quick action. To the extent that the religious freedom of religious organizations is protected, it will only be protected for organizations that are deemed to be, in fact, religious. That means: Organizations that intend to be faith-full must ensure that they are holding themselves out to the public and also to their own employees and volunteers as religious organizations. It should be clear both to outsiders and to insiders that the organization is religious; this should be clear by what the organization says it believes, by how those convictions are translated--visibly--into its policies, and by how it operates: in accordance with its policies, which are aligned with its stated convictions.

 

In the current era, transparency about these matters must include defining explicitly what the organization understands marriage, acceptable sexual conduct, and even male and female to be-clear definitions that are explicitly rooted in the organization's religious convictions.

 

Here's good advice for faith-based organizations: don't just worry--take action!

Ohio employment law, unlike federal law (Title VII of the 1964 Civil Rights Act) and the employment laws of other states, has included no exemption for religious organizations such that they can legally consider religion when deciding who to hire. A guide to church-state laws produced by the Pew-funded Roundtable of Religion and Social Welfare Policy in 2002 noted that Ohio would, of course, take into account First Amendment religious freedom principles if a religious employer was charged with discrimination, but it also referenced a state court case which noted that the state had ample opportunity to create an exemption, so its absence meant that the legislature did not intend to broadly protect religious hiring by religious organizations.

• The 10th Circuit federal appeals court granted Hobby Lobby a preliminary injunction on July 19, so that the Christian company is not subject to the mandate as its case goes to trial. The court said that Hobby Lobby, though a for-profit corporation, was likely to prevail in its argument that has religious freedom claims that outweigh the government's interest in enforcing its mandate.  
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• The 3rd Circuit federal appeals court ruled against Conestoga Wood Specialties Corporation, another Christian company, on July 26, denying its bid for a preliminary injunction. This court sided with the Obama administration, and went against the Hobby Lobby decision noted above and a series of lower court decisions, arguing that religious freedom does not extend to commercial entities.  
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• These two contradictory federal appeals court rulings make it likely that the US Supreme Court will step in to rule whether the federal government is right in its conviction that there is a wall of separation between religious freedom and business activity.
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• Geneva College, a religious nonprofit organization, on June 18, won a preliminary injunction temporarily lifting the requirement that its student health plan must facilitate access to all contraceptives, including emergency contraceptives. Alliance Defending Freedom attorney Greg Baylor remarked that Geneva College is "a Christian college that simply wants to abide by the very faith it espouses and teachers."
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• The Geneva College preliminary injunction is notable because the courts have generally been putting off decisions in cases involving religious nonprofits, arguing that because of the temporary enforcement safe harbor and the pending issuing of final regulations providing for an "accommodation" for them, their cases were not ripe for consideration.
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• Now the safe harbor has been extended through the end of 2013. The mandate comes into effect for non-church religious organizations on Jan. 1, 2014--it will apply to new plans and new plan years that start on or after that date.
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• On July 2, the administration issued final regulations about how the contraceptive mandate applies to non-church religious nonprofit organizations. As noted in an earlier eNews for Faith-Based Organizations, those final regulations say that religious nonprofits will be able to buy employee (and student) insurance that excludes some or all of the contraceptive services--but then requires their insurers or third-party administrators to inform those employees and students that they have free coverage of all of the contraceptives and to pay for the contraceptive drugs, devices, and education without charging the employees or the employer. Hardly a real accommodation to the religious and moral concerns of the employers!
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• A legislative solution has been proposed: HR 940, S 1204, the Health Care Conscience Rights Act. Organizations and individuals concerned that the contraceptives mandate wrongly restricts the religious freedom of religious employers and that the government must find a different way to ensure access to contraceptives will want to urge their Senators and Representative to back this bill.

 

The best single source of information on the 64--count 'em, 64!--cases against the federal government is maintained by the Becket Fund for Religious Liberty.

Institutional Religious Freedom Alliance | stanley@irfalliance.org | http://www.irfalliance.org
984 St. Johns Drive
Annapolis, MD 21409

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