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ECFA recommendations on political speech by 501(c)(3)s
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An advisory commission of the Evangelical Council for Financial Accountability two weeks ago released recommendations for reforming the ban on electioneering by churches and other 501(c)(3) organizations. It ought to be up to the organizations themselves to decide whether to speak about candidates, the advisory group decided.
The Commission on Accountability and Policy for Religious Organizations is organized by the Evangelical Council for Financial Accountability. Its report, Government Regulation of Political Speech by Religious and Other 501(c)(3) Organizations: Why the Status Quo Is Untenable and Proposed Solutions, is the second of two sets of recommendations the Commission prepared in response to concerns expressed by Sen. Charles Grassley (R-Iowa). The first report Enhancing Accountability For The Religious and Broader Nonprofit Sector, was issued in December, 2012.
The Commission points out that the ban on election involvement by 501(c)(3) organizations, which includes a prohibition on endorsing or opposing candidates and on funding candidates and their campaigns, is vague and inconsistently enforced--and improperly suppresses political speech and the political views of religious leaders. If the ban was consistently enforced, it would be especially a problem for African-American churches which, as historically the central institutions of the community, have played and do play a major political role.
The solution, the Commission says, is not a more consistently enforced ban but rather modified rules that better respect religious and political freedom. It is right to bar 501(c)(3) organizations from expending their tax-privileged dollars on election campaigns.
But clergy (and the leaders of other religious and secular nonprofits) should be free to make political statements, including statements about political candidates, in the course of their usual activities (e.g., conducting worship services or offering web-based information about civil rights), as long as no significant expenditures are required. This change would allow clergy to speak not only about the moral consequences of government policies but also about the candidates who will support or oppose various policies. The organizations would not be free to engage in full-blown media campaigns about candidates for public office.
When is it wise--or essential--for a member of the clergy to speak directly in support or opposition to particular candidates? The Commission doesn't offer advice about this. Rather, it simply proposes, and rightly so, that this is a decision that the religious organization and its supporting religious community is better able to make than the IRS.
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Colorado Christian University rejects the HHS contraceptives accommodation
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On July 2nd the Federal Register published the long-promised final regulations for the accommodation offered to non-exempt nonprofit religious employers that object to the requirement to include all FDA-approved contraceptive services in the health insurance they offer to their employees or students.
Colorado Christian University originally filed against the contraceptives mandate in December, 2011. That lawsuit was dismissed in January of this year when the judge accepted the federal government's claim that the case was not ripe for review because the administration was preparing an accommodation that would respond to CCU's religious freedom concerns. Many of the other lawsuits filed by non-exempt nonprofit religious organizations have been dismissed or put into abeyance for the same reason. (It is the for-profit cases that have gone forward, because the government has neither provided for companies a non-enforcement safe harbor nor promised a future accommodation. See the Becket Fund's HHS Mandate Information Central for information on all of the cases.)
But now the accommodation regulations have been published and, in the view of CCU and others, the rules do not adequately protect religious freedom. Thus CCU's renewed lawsuit, which was filed on August 7th by the Becket Fund.
The CCU complaint says:
"The regulations do offer CCU and other non-exempt religious organizations a so-called 'accommodation. But the 'accommodation' is meaningless. It would still require CCU to play a central role in the government's scheme and force it to 'designate' an agent to pay for the objectionable services on CCU's behalf. This would do nothing to resolve CCU's objections.
"The supposed 'accommodation' also continues to treat CCU as a second-class religious organization, not entitled to the same religious freedom rights as other religious organizations, including any religious universities that are 'integrated auxiliaries' to churches.
"The 'accommodation' also creates administrative hurdles and other difficulties for CCU, forcing it to seek out and contract with companies willing to provide the very drugs and services it speaks out against.
"If CCU does not compromise its religious convictions and comply with the regulations, however, it faces severe penalties that could exceed $12 million each year."
The complaint points out that the accommodation, while purporting to enable CCU to purchase employee and student health insurance that does not cover the emergency contraceptives to which it has a moral objection, in fact requires it to work with insurers and third-party administrators so that they can tell the employees, students, and dependents that they do have cost-free access to those same emergency contraceptives.
In response to the common criticism that emergency contraceptives are not abortifacients as claimed by CCU and others, the CCU's complaint includes as an appendix an FDA "Birth Control Guide" that clearly states that both Plan B and Ella can work by "preventing attachment (implantation)" of a fertilized egg.
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NM Supreme Court in wedding photog case: religious freedom is a subordinate right
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On August 22, the New Mexico Supreme Court handed down its decision that Elane Photography violated the state's anti-discrimination law when its owners, the Huguenins, declined to photograph the commitment ceremony of a lesbian couple. The state bans sexual-orientation discrimination in public accommodations; Elane Photography, in serving the public, is subject to the public accommodations law; declining to photograph a same-sex ceremony when opposite-sex weddings are routinely photographed is a forbidden instance of sexual-orientation discrimination; and neither free speech nor religious freedom protections protect the wedding photographers' act of discrimination. Thus the NM court.
The opinion rests on particular readings of past US Supreme Court decisions and disputable interpretations of matters such as religious exercise, equality, and dignity. Legal and constitutional experts will examining it closely. The decision may be appealed to the US Supreme Court.
The arguments in the short concurring opinion--really, a homily--by Justice Richard Bosson, on the other hand, are very plain. He writes:
"[T]his case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation's strengths, demands no less."
So what is the required accommodation, the "tolerance that lubricates the varied moving parts of us as a people"? It means that, while "[t]he Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead," once they operate out in the world of commerce they are no longer free to act according to their beliefs if those beliefs include the conviction that weddings and same-sex commitment ceremonies are not identical and that they ought not themselves help to celebrate the latter. So much for their "contrasting values."
As to the "contrasting values" of the lesbian couple? They don't have to "compromise, if only a little, to accommodate the contrasting values" of the Huguenins. They don't even have to let their fingers do the walking to find another wedding photographer. Instead, on their behalf, the government will suppress the Huguenins' values.
Is that really the what America's constitutional values, its historic commitment to freedom and accommodation, requires?
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But government is looking for you
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Ron Fournier's article in yesterday's The Atlantic online, "The Outsiders: How Can Millennials Change Washington If They Hate It?" is well worth a careful read. Based on surveys and interviews, he describes Millennials as a generation of highly engaged, other-oriented, creative young people who are disdainful of government as an ineffective instrument. They want to do good but don't see government as a place where it can be done--just at a time when, with the retirement of Baby Boomers, government needs a huge number of new recruits. When they think of public policy, many Millennials are looking for something new, something beyond the lumbering government of today.
I'm sympathetic. But often, in the here and now, even before any future reforms, government is the only way to do what needs to be done, as ineffective as it might be. See, for instance, Timothy Sherrat's "Why We Need Government After All."
And even more immediately: whether or not you care for government, it surely cares--increasingly--about you and what you do, even in your "private" life and in "private" organizations. That's one big reason for the increasing number of clashes between government rules and religious organizations, as their desire to be faithful to their animating convictions comes into conflict with the government's expanding web of homogenizing and secular requirements.
Millennials who care about the flourishing of civil society ought to care deeply about current government, even if--especially if--government is not doing what it should.
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Notable quotes: all-Canada edition
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Exercising Faith Via Institutions
"If religious freedom is limited to being only an individual right, then people of faith will be marginalized and disempowered. They will be able to put their convictions about honoring God while serving their neighbours into practice in only very limited ways--when they write blog posts but not when managing a website, when homeschooling but not when operating a school, when urging a niece not to have an abortion but not when running a hospital. And note well how this limitation to individuals undermines individual religious freedom itself: without religiously diverse organizations, many individuals will be unable to find a place of work that honours and reflects their religious values, and the same goes for clients seeking services.
"Unless wrongly impeded by overweening and homogenizing government rules, people of faith do exercise their faith in their homes, in houses of worship, through community-serving ministries like schools and adoption agencies, and through companies of conviction. This is the obedience they offer to God and a gift they offer to their neighbours."
--Stanley Carlson-Thies, "Diversity in Fact, Not Just Slogans," Cardus Daily, Aug. 22, 2013.
Don't Hide the Light
"[R]eligions should be understood not as a problem to be solved in a secular society but as an asset to be encouraged. . . .
"It seems [these days] that the only time we hear about religions is when they are requesting some kind of accommodation for themselves or their members. Religions are seen as an obstacle to the smooth running of society, certainly not as contributors to social well-being.
"Despite the current perception of religions and religious people, almost all religions, including the most isolated and conservative, believe that contributing to the common good of society, especially to the care for its weakest members, is part of their faith. Why is this so less visible than the demands religions make on society? The simplest answer would be to say that the media have systematically emphasized only one side of the story.
"While there may be some truth to that answer, it is certainly not the whole story. . . . For real dialogue with the secular world to take place, religions may need to more consciously, and more assertively, use media to help society better understand who and what they are. The idea is not just to promote charitable acts or social-justice advocacy, but also to help society see the value of those intangible and transcendent aspects that, for the most part, are unique to faith communities."
--Paul Donovan, "Making Faith Flourish Through Secular Society," Convivium, Aug./Sept. 2013.
Taxpayer Funding of Faith-Based Organizations Isn't the Imposition of Religion
"The [Ottawa] Citizen, in an editorial published earlier this week, suggested that 'under no circumstances should a charity that is largely funded by taxpayers be allowed to impose its moral values on everyone else' I agree with this statement. The question then is this: was Christian Horizons [an Ontario Christian charity that serves people with developmental disabilities] imposing its moral values on everyone else [when it hired only Christians]? In my view, it wasn't. It was only imposing its moral values on itself. . . .
"This case is not a situation of 'government-funded discrimination'; it is one example of a government policy that contracts with a diversity of organizations to effectively and efficiently serve those who need care. Faith is a part of the beautiful mosaic of services in Ontario, with organizations that identify according to other faith traditions and cultural traditions too. And people choose Christian Horizons as a service provider, one of hundreds of options available, not only because of their high quality of care, but also because of their faith-basis."
--Andre Schutten, "The freedom to discriminate," Ottawa Citizen, Aug. 23, 2013.
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