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HHS contraceptives mandate cases--briefly
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As of today . . .
- 91 cases
- over 300 plaintiffs
- 2 cases at the US Supreme Court
The federal government takes three positions on the religious freedom of organizations that have a religious objection to including some or all of the prescribed "contraceptive services" in their health insurance plans. The courts have not been very sympathetic to this three-part system of religious freedom.
- Churches are exempt. Churches and their integrated auxiliaries (as defined by the IRS) are exempt.
- Religious nonprofits are winning in court, 19 to 1. Religious nonprofit organizations such as faith-based hospitals, colleges, adoption agencies, and anti-poverty groups are not exempt. Instead, the government has offered an accommodation--the nonprofit can purchase insurance that excludes some or all of the required contraceptive services and then its insurer or third-party administrator must tell the employees of the objecting organization that the insurer or administrator will pay for the contraceptive services. In the 20 religious nonprofit cases where the courts have ruled on the request for relief from the mandate, the religious organizations have won, 19 to 1, against the accommodation.
- Businesses are winning in court, 33 to 6. Businesses--organizations involved in commerce--no matter the convictions of the owners or how extensively the policies and practices of the companies are shaped by religious convictions, are given no religious freedom protection at all. In the 39 business cases where the courts have ruled on the request for relief, the businesses have won 33 to 6.
For an overview of the cases, details, and the key documents, browse HHS Mandate Information Central at the Becket Fund for Religious Liberty.
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Obama administration and Religious Freedom Day 2014
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On January 15, the anniversary of the passage of the Virginia Statute for Religious Freedom, which was written by Thomas Jefferson and which is one of the sources for the religious freedom protections in the First Amendment, President Obama issued a proclamation commemorating Religious Freedom Day.
The President said:
"America proudly stands with people of every nation who seek to think, believe, and practice their faiths as they choose. In the years to come, my Administration will remain committed to promoting religious freedom, both at home and across the globe. We urge every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future."
American citizens, religious organizations, and companies of conviction that count on government to protect our right to religious exercise, and not only the freedom of religious belief and worship, should be grateful for the proclamation--and warily prayerful as we watch what the federal government actually does.
On the same day, Melissa Rogers, head of the White House faith-based office, and Eric Treene, Special Counsel on Religious Discrimination in the Department of Justice, released a statement summarizing the important work the federal government is doing to protect religious freedom under the Religious Land Use and Institutionalized Persons Act (RLUIPA).
RLUIPA, passed with broad support in 2000, requires federal, state, and local governments to respect the religious exercise rights of churches and other religious organizations when the governments make zoning and other land-use decisions, and to respect the religious freedom of prisoners and people confined to mental institutions and other facilities.
From the statement:
"A Department of Justice report on the 10th anniversary of RLUIPA found that the law had a 'dramatic impact in its first ten years on protecting the religious freedom of and preventing religious discrimination against individuals and institutions seeking to exercise their religions through construction, expansion, and use of property.' The report noted that these cases represented a wide range of religious groups, including Christians, Jews, Muslims, Sikhs, people who practice Native American traditional religions, and many others, and arose in a wide range of settings, including churches, synagogues, mosques and other places of worship, religious schools, prayer meetings in homes, and faith-based social services such as homeless shelters, group homes, and soup kitchens."
Kudos to Eric Treene and the federal government for vigorously enforcing RLUIPA.
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Take a stand for religious freedom - DONATE to IRFA today! IRFA depends on the support of donors like you. You can make a tax deductible donation by clicking on the button below, or by sending your check (payable to IRFA) to 1332 Cape St. Claire Rd., Box 602, Annapolis, MD 21409. Thank You!
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| Putting kids first in regulating foster care and adoption agencies |
This week the Heritage Foundation released an important background paper, "Adoption, Foster Care, and Conscience Protection," by Sarah Torre and Ryan Anderson.
In the US and in other countries, many faith-based adoption and foster-care agencies have decided they have to close their doors when faced with the demand that they ignore their own convictions and follow new sexual-orientation and marital status non-discrimination requirements in placing children and recruiting families. Sometimes the requirements are attached to government funds but typically are requirements of licensure--either the agency agrees to place children without regard to the agency's religious convictions or it cannot operate.
It is shocking that after two thousand years in which care for orphans was one of the key marks of the church's ministry to the hurting world, in our own generation many faith-based agencies are being forced to abandon their services.
This makes no sense, as the paper points out:
"Policy should respect the freedom of foster care and adoption agencies that believe children do best when raised in a married mother-and-father home.
"Protecting the conscience rights and religious liberty of private adoption providers takes nothing away from others. Indeed, not every private provider needs to perform every service--and state-run agencies can provide a complete array of services. Protecting a diversity of private providers and their ability to operate according to their values-and with families who share those values-makes it more likely that the greatest possible number of children will be connected with permanent, loving families.
"Allowing private adoption providers to operate according to their own values--including declining to place children in unmarried or same-sex households--does not prevent public agencies or other private providers from choosing to do so.
"Regardless of how states decide to craft policy allowing unmarried individuals or same-sex couples to adopt children, private providers should not be forced to violate their beliefs. Public agencies and some private providers, when allowed by state law, can choose to license unmarried and same-sex couples for adoption. Nothing is taken away if other private providers decline to do so. The legal right of an unmarried or same-sex couple to adopt, where it exists, should not require every adoption provider to perform such adoptions: Requiring that they do so places the interests of adults over those of children, the exact opposite of what good policy on adoption should do."
The paper rightly commends the Obama administration for publicly affirming the important role of faith-based organizations in adoption and foster-care services. And it rightly condemns the congressional bill, "The Every Child Deserves a Family Act." Bills with this deceptive title have been around for several years. The bills would require states to outlaw faith-based agencies that "discriminate" because of their choice of married mother-father families for the children they place. The Heritage paper observes: "The Every Child Deserves a Family Act does not place the needs of children first; rather it places the desires of adults first."
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Essential book on institutional religious freedom now in paperback
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Steven Monsma's essential book, Pluralism and Freedom: Faith-Based Organizations in a Democratic Society (2012), has just been reissued in a cheaper paperback edition, with a new Afterward updating the text. Steve is a board member of the Institutional Religious Freedom Alliance.
The publisher's summary:
"Faith-based organizations play a major role in providing a host of health, educational, and social services to the public. The right of faith-based organizations to hire based on religion, the presence of religious symbols and icons in rooms where government-subsidized services are provided, and the enforcement of gay civil rights to which some faith-based organizations object all continue to be subjects of intense debate and numerous court cases. In Pluralism and Freedom, Stephen V. Monsma explores the question of how much autonomy should faith-based organizations retain when they enter the public realm. He contends that pluralism and freedom demand their religious freedom be respected, but that freedom of all religious traditions and of the general public and secular groups be equally respected, ideals that neither the left nor the right fully live up to. In response, Monsma argues that democratic pluralism requires a genuine, authentic-but also a limited- autonomy for faith-based organizations providing public services, and offers practical, concrete public policy applications of this framework in practice."
Buy it or borrow it and read it!
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Global religious restrictions rising
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Here's how the new edition of the important global religious freedom study from the Pew Research Center was announced: "The share of countries with a high or very high level of social hostilities involving religion reached a six-year peak in 2012, according to a new study by the Pew Research Center. A third (33%) of the 198 countries and territories included in the study had high religious hostilities in 2012, up from 29% in 2011 and 20% as of mid-2007."
"Social hostilities" against religion encompass actions by private persons and organizations, such as setting fire to another faith's worship buildings, killing a person because they converted to a different faith, firing someone because of their beliefs, harassing another person because of their religious garb, etc.
The US ranks in the "moderate" range for such private hostility to religion. And we rank in the "moderate" range also on the "government restrictions" index, which measures laws and government action against people and organizations of faith.
"Moderate" is better than "very high" or "high" government restrictions on religion. When it comes to government action against religion, we are doing better than Egypt, China, Syria, Libya, and Turkey, among many others. But we are doing worse than Canada, Sweden, Chile, Japan, Brazil, South Africa, and Albania!
For the US: Plenty to celebrate; plenty of improvements to make. Read the study, the research for which was headed by Brian Grim.
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Faith-based preK and government funding
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The huge--it's called "omnibus"--appropriations bill that passed the House and Senate this week includes an increase in federal spending for preK education, although apparently not funding specifically for President Obama's proposed preK program.
There is no consensus on how effective current preK schooling is--not a surprise, perhaps, because of the strong political interests involved (is Head Start a worthy investment, or not), how varied the different preK offerings are, and how important family background and support is to educational success.
Would expanded government investment in preK education be good for children whose parents are unable to afford such schooling now? Greater government funding can mean making preK schooling more accessible to poor families.
But an expanded government role could also undermine current preK options. Unless the rules (for quality of programs, teacher certification, access to funding) are carefully designed, faith-based preK schools could be excluded--e.g., a curriculum or teacher-prep program favored by some religion's schools (and parents) might not be accepted by the state agency that licenses schools or awards funding.
And no matter what the rules, greater government funding for preK schools undermines those schools that do not want government funds but are now at a competitive disadvantage: many parents will be hard put to choose the private school that has to charge some tuition when another preK school is fully funded by government.
The Council for American Private Education has published a good set of principles "to uphold freedom of choice in early childhood education":
★ Formal early childhood education should be voluntary.
★ Legislation promoting early childhood education should support the right of parents to choose from a range of programs and providers without financial penalty.
★ Programs designed to assist children and teachers should provide benefits to comparably situated children and teachers, whether in independent or government-run settings.
★ Early childhood education regulations should not seek program uniformity; they should promote pluralism that allows institutions to fulfill their unique missions and parents to choose from a variety of truly distinctive options.
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Equal protection is only individualistic?
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Earlier this week, a federal judge in Oklahoma ruled that the state's definition of marriage as one man and one woman is a violation of the US Constitution, relying on the intellectually loose US Supreme Court decision authored last summer by Justice Anthony Kennedy in the Windsor case.
The Oklahoma judge wrote, "Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights."
But something is missing here. If constitutional rights are to be vindicated--even equal protection rights--then judges must acknowledge that constitutional rights go beyond simply "individual" rights.
Children, for example, are not simply individual rights bearers; for their rights to be vindicated, if children are to flourish and be safe, the courts must protect the authority of their parents or guardians. Students are not just individuals; they have different convictions and values, and so respect for students requires protection of the institutional freedom of different kinds of schools. Honoring employee rights requires protecting the rights of varied kinds of employers and the rights of unions.
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* Sarah Eekhoff Zylstra, "Evangelicals' Favorite Same-Sex Marriage Law?" Christianity Today online, Jan. 17, 2014:
"[IRFA President Stanley] Carlson-Thies says exchanging opposition of same-sex marriage laws for religious protection isn't a trade-off, but reading the signs of the times and doing something about it.
"'You don't want to tell people [the definition of marriage] doesn't matter, because it does matter. That weighs heavily on people,' he said. But if same-sex marriage legalization is unavoidable in certain states, then conservative Christians need to build space where their view of truth can still be testified to and exemplified, he said. 'It is the reality of living in a broken world.'"
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* USA Today Editorial Board,
"The [HHS contraceptives mandate] accommodation is more of a fig leaf than a fix: Although religiously affiliated non-profits do not have to supply birth control coverage themselves, they must sign a certification that allows their insurance companies to provide it instead. Some non-profits have acquiesced, but not the Little Sisters and others who argue that this makes them complicit in an act that violates a tenet of their faith. If the non-profits refuse to sign, they face ruinous fines--$4.5 million a year for just two of the Little Sisters' 30 homes.
"So far, the government is on a losing streak. In 19 of 20 cases, including the Little Sisters', judges have granted preliminary relief to the non-profits, allowing them to press their claims. The administration should take the hint."
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* Stanley Carlson-Thies, Contribution to "The War on Poverty at 50," National Review Online, Jan. 8, 2014:
"Have we learned from experience? Are we doing better? Not much better. The national policy debate seems to have regressed to 'more government vs. less government,' leaving civil society marginalized. We have little idea of how to help neighborhoods flourish. The consensus that started to form in the 1990s about the necessity of strong marriages and families - moms and dads - has been disrupted by other relationship passions.
"One bright spot: The faith-based initiative of the Clinton, Bush, and now Obama years has highlighted the vital role of religious organizations, and its reforms, such as Charitable Choice, have lifted the secularizing pressures from partnerships.
"But five decades after LBJ, we still have a long way to go to understand the non-economic aspects of persistent poverty. And tragically, contemporary government's insistence on enforcing progressive values is undermining the very civil-society institutions that need to flourish."
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* Reprise: Stanley Carlson-Thies, "Religion and Poverty: Government's Role in Supporting Faith-based Groups," Spotlight on Poverty, September 8, 2009:
"In the government context, it is easy for effectiveness to be code for 'large' and 'status quo.' What better way to prove that the taxpayers' money is not being wasted than to award grants to big organizations that know the government routine, process a large volume of clients, and can easily generate multiple reports? But these may not be the organizations making the most actual difference in responding to difficult problems. Social problems aren't beans; bean-counting isn't the best measure of effectiveness. The very appropriate stress on effectiveness has to be kept from disqualifying innovative, 'up close and personal' services (to use a John DiIulio phrase).
"[And the Obama administration must] preserve the stress on civil society. The President wants to be sure that faith-based and neighborhood groups work on high-priority needs, and, through the Advisory Council and other means, can inform the administration's policymaking with their experience and insights. Sounds great. But, without care, these impulses could lead to treating civil society groups as 'transmission belts' - one-way carriers of the government's agenda - rather than independent actors with their own initiatives and methodologies."
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