Bigotry or Basic Right: Myths and Musts about Religious Hiring

Tuesday, Sept. 24, noon - 1 pm

Capitol Visitor Center, HVC 201

Lunch provided

Kim Colby, Senior Counsel for the Christian Legal Society

Steve McFarland, VP and Chief Legal Officer for World Vision

Stanley Carlson-Thies, IRFA's President

Topics:

• Why religious hiring by religious organizations is a civil right, not a discriminatory wrong
• The 1964 Civil Rights Acts and religious hiring by religious organizations
• How religious hiring benefits society--and particularly the needy
• Developments in the courts
• Religious hiring when government money is involved
• Religious hiring and the Religious Freedom Restoration Act
• Addressing shortfalls within ENDA's current religious exemption

Congress has returned from its Labor Day break and Syria is at the center of attention. But October 1 is the deadline for a new budget, or a continuing resolution to reauthorize the current budget, and there is a possibility of a federal government shutdown. So the federal government's acute financial needs remain a fundamental driving force in Washington, DC. Among other consequences, this means that the enormous project of tax reform is (mis)interpreted mainly through the lens of government income.

But taxation has huge consequences for the economy and society far beyond how much money is raised for government programs. Certainly this is the case when considering the charitable tax deduction. It is more than a tax break. It is only available to federal taxpayers who give away significant amounts of money to causes that do not immediately benefit themselves. It helps to make possible our extensive and flourishing civil society-by encouraging giving but also by acknowledging that, while we help each other in part through government, we also help each other through civil society (see the "Notable quote" from tax expert Alexander Reid, below).

Many of America's civil society institutions are religious: churches, synagogues, and mosques--and hundreds of thousands of religious service organizations: schools, universities, drug treatment programs, child care centers, health clinics and hospitals, emergency shelters, food banks, community development groups and overseas development organizations, broadcasters and bookstores and publishers, public-interest and poverty-law organizations, pregnancy resource centers, and so many more. Their flourishing, too, is greatly aided by the charitable tax deduction.

But as faith-based organizations-organizations with a faith-shaped way of operating and serving-they have unique interests as well as interests they share with other nonprofit organizations. Here's what a previous eNews article said about those differences:

There are at least four areas where faith-based organizations, or many or most of them, may have concerns somewhat different from secular nonprofits--and from the public policy agendas of major nonprofit advocacy organizations:

1. Many faith-based organizations are extremely dependent on giving by individuals; for various reasons they receive little of their income from government sources, fees for service, corporate donors, or foundations. As such, their income is disproportionately (compared to other nonprofits) affected by changes in the tax incentives for individual giving, whereas other nonprofits may be more concerned about changes in government grants or declines in corporate giving due to economic changes, etc. However, this disproportionate dependence on individual giving may not be accurately reflected in the econometric models and expert testimony utilized by lawmakers in considering changes to tax policy.

2. Data sources that attempt to measure giving to various causes may not accurately reflect what goes on in the faith-based world. For example, giving to faith-based nonprofits might be categorized as giving to "church" and be presumed to be inwardly focused--overlooking both how those faith-based nonprofits serve the broader community and how churches themselves typically operate programs that serve non-members. In the same way, a narrow view of religion will neglect to take account of how congregations not only directly serve their neighbors through various programs but also more generally contribute to the flourishing of their communities and thus to the good of the needy.

3. Some in the secular world have little regard for religion as a positive force and are inclined to want to restrict tax incentives to "worthy" causes, such as nonprofits that are narrowly focused on anti-poverty programs. An important and growing strand of progressive thought seeks to limit tax exemptions and giving incentives to "public serving" charities--excluding from the category religious nonprofits that hire according to religion or that "discriminate" in services (e.g., do not facilitate abortions or recognize same-sex marriage). (Other activists have advocated that government, foundations, and corporate donors should require grantees to provide some fixed percentage of their services to various minorities, including sexual minorities, and to manifest certain forms of diversity among their staff and board memberships.)

4. Faith-based charities and their advocates have to be especially concerned about intrusive government rules, reporting requirements, and investigations (shades of the current revelations about IRS malfeasance) to protect the religious freedom of the religious organizations (here's the proper meaning of church-state separation). For example, policymakers may think they are just trying to obtain all legitimate revenue by restricting a tax exemption to the "worship" activities of a religious organization--but they may in the process illicitly be defining the other activities of the organization as not religious.

We can note, too, that giving to religious organizations--both houses of worship and faith-based service organizations--may be more resistant than secular giving to economic downturns because of the religious motivation and perspectives of the givers.

For such reasons, faith-based organizations, without neglecting to make common cause with other nonprofits, may need additionally to consider certain matters of specific concern to them as religious entities. That's the idea behind the emerging coalition.

It is these differences that account for the creation of the Faith and Giving Coalition, a vitally important and distinct voice in Washington DC in the ongoing fight about tax reform.

The Coalition is spearheaded by Rhett Butler, government liaison for the Association of Gospel Rescue Missions (contact him at  rbutler AT agrm.org).

The revisions to the San Antonio, Texas, anti-discrimination ordinance, adopted by the City Council last week to broadly prohibit discrimination on the bases of sexual orientation and gender identity, have sparked a large amount of commentary because of their impact on religious freedom. A growing number of cities have adopted similar measures, although without eliciting such widespread debate.

The San Antonio measure drew so much notice in part because of the proposed ban on appointing to any city board or commission anyone the City Council considers to be biased "in word or deed" "against any person, group or organization on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age, or disability." That's an extremely broad and yet uncertain sweep: would a Catholic be disqualified as religiously biased for regarding Baptists as wrongly rejecting the authority of the Pope? The City Council thought better of it and deleted this provision.

Elsewhere, while expanding the range of what counts as illegal discriminatory acts, the revised ordinance includes a variety of religious exemptions. But are the exemptions sufficient to protect people and organizations of faith peacefully going about their lives and performing their works of service?

* The requirement of nondiscrimination in public accommodations extends to every kind of business that is open to the public and offering any product or service for payment, while exempting only private clubs (and religious, political, and social organizations if any profits they make are used to further their respective missions). No protection here for wedding planners and photographers desiring not to be coopted into celebrating religiously significant events they object to; no protection for legal firms or medical practices whose moral convictions about how best to use their skills run afoul of the newly expanded anti-discrimination rules.

* The rules on housing allow religious organizations to limit to persons of the same religion the sale, occupancy, and rental of spaces they hold for other than commercial purposes. What do the rules mean, though, for facilities owned by religious organizations that desire not to limit their use narrowly to people of the same faith but instead just to maintain a religious standard of moral conduct by those utilizing the spaces?

* The expanded nondiscrimination requirements are enforced on all entities that contract with the city-there is no exemption that allows a religious organization that considers religion in hiring to contract with the city, even if that organization will serve without discrimination everyone who needs its services.

Cities, states, and federal agencies that seek to eradicate discrimination need to figure out how they can prevent the targeted discrimination without at the same time mandating new discrimination against countercultural religious people and organizations.

Note: although it didn't succeed in stopping the City Council from adopting the anti-discrimination ordinance, pro-religious freedom groups in San Antonio did organize an attractive website to make their case, using this unexpected but appropriate name: San Antonio Human Rights Coalition. 

California Senate bill 323, the "Youth Equality Act" (Sen. Lara), seeks to punish the Boy Scouts and other "discriminatory" youth-serving organizations by stripping away their state tax exemption. It is steadily making its way through the very "blue" legislature, facing little opposition.  

But the bill has received surprising pushback from CalNonprofits, the statewide membership organization. CalNonprofits says this about the bill:  

"At CalNonprofits, we are opposed to discrimination by any organization -- for-profit, religious organization, or nonprofit -- on the basis of sexual orientation, gender identity, or other matters. At the same time, we believe that the tax exemption is the wrong lever through which to enforce anti-discrimination laws and end discriminatory practices.

"Nonprofit organizations are expressions of free speech, and should be allowed to exist representing wide varieties of opinion. We should take action against discrimination through the civil and criminal courts, through public pressure, and by moving our donations and volunteer hours elsewhere."

As noted in the eNews a month ago, IRFA submitted a comment in response to the administration's proposed new regulations for the federal child-care funding program. The IRFA comment stressed that the child care law was carefully designed to maximize participation by faith-based child care providers and it flagged several elements of the proposed regulations that would undermine that broad participation. Among other things, the draft regulations would decrease the use of vouchers to fund child care, steering more money into contracts, a form of federal funding that is much more religiously restrictive.

Other organizations also submitted comments stressing that the government should take care not to undermine the openness of the program to faith-based participation. See the comments submitted by:

Agudath Israel 

Association of Christian Schools International 

Institutional Religious Freedom Alliance 

From Alexander Reid, "It's About Freedom, Not Finances," Alliance for Charitable Reform, August 21, 2013:

"The charitable deduction protects our freedom to create and operate institutions that make up a civil society separate from government. Although America is a democracy, Americans are not limited to the election of representatives as our sole means of expressing ourselves and contributing to the public good. We also have the right of direct action in the public sphere. The robust civil society that flourishes within our borders is the envy of the world and the bedrock underlying our democratic system.

"The individual deduction for charitable donations, and income tax exemption for charitable organizations, are more than just tax rules. They form a legal boundary between the state and civil society. They are not federal subsidies for civil society, but rather fences around civil society to limit government interference in a vital sector of our free nation.

"Income taxes are the contributions we make to the public good indirectly by force of law. Charitable donations are the contributions we make to the public good directly and voluntarily. Direct giving through donations and indirect giving through taxes are dual aspects of our right to self-governance. Altering the charitable deduction would renegotiate the fundamental relationship between citizens and the state, and risk undermining our most deeply held freedom to shape our own society."