March 7, 2014

It is not an easy matter to protect everyone's legitimate rights when the different people and organizations involved seem to insist on opposite outcomes. Coming to a just equilibrium or balance is made all the harder when accurate information is missing and too many of those involved resort to entirely inadequate simplifications and slogans. It is no help that the freedom to exercise one's faith out in the world--not just to believe it in your head and not just to worship--has become very contested in the United States, even though it is the first freedom in the Bill of Rights: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."

 

The impulse to confine and curtail religious freedom when it gets in the way of other rights--currently: LGBT rights, same-sex marriage, and reproductive rights--has been steadily growing. But it seems suddenly to have become supercharged in the past few weeks, as some groups and commentators--and (very) many in the media--used deliberations over religious freedom bills in Kansas and Arizona as the occasion to try to permanently rebrand religious freedom that goes beyond thought and worship to be just discrimination.

 

The actual goal of these and other bills seems to be preservation of the status quo in these states. Marriage has not been redefined in these states and their anti-discrimination laws do not reference sexual orientation. Thus, everyone, including religious people and organizations, is free to follow traditional moral values in living their lives and conducting their organizations (and, not happily, free to discriminate with little legal restraint). But that status quo might be upset any day by a judge who declares same-sex marriage to be constitutionally required. Judges are not empowered to craft religious freedom protections to accompany marriage redefinition, so it is up to the legislatures to do so. That means religious freedom bills.

 

Bigoted? The bills instead were widely pilloried as anti-gay measures, with seemingly little effort being made to actually understand the texts. The Arizona bill was designed to clarify two aspects of the state's existing Religious Freedom Restoration Act. State RFRAs are modeled on the federal RFRA, which was supported by an extremely broad coalition of religious freedom and civil rights organizations and adopted with virtually no opposition just over 20 years ago.

 

RFRA laws, federal and state, do not guarantee any particular freedom to religious persons, religious nonprofits, or businesses operated by religious people. They only give religious people and organizations the opportunity to assert a religious freedom claim against a law that they claim imposes a substantial burden on their freedom to exercise their religion. If they make such a claim, they win no automatic right to do whatever they please; instead, a court will weigh that claim against the government's argument that it has a compelling interest for the law it adopted and that it has no less restrictive way of securing that interest. If so, then the religious claim is denied. But if the government cannot show that it has a sufficiently strong reason to override the religious freedom right, then-and properly so-it cannot suppress that exercise of religion.

 

Benign? Top experts on RFRA and church-state relations, some of whom support same-sex marriage, wrote a letter to Arizona's governor as she was deliberating what to do with the RFRA-amending bill. The letter, written by Douglas Laycock, Michael McConnell, Mary Ann Glendon, Carl Esbeck, Thomas Berg, Richard Garnett, and others, pointed out that the bill simply clarified two aspects of Arizona's existing RFRA. These two aspects have been cast into some question in court battles involving other RFRAs: (1) the religious freedom protections apply in the case of businesses and not only to churches and religious nonprofits; (2) the protections apply not only when it is the government that has challenged a religious person or organization but also when a private citizen sues a religious person or organization, claiming the violation of a government law or regulation.

 

Redundant? As the letter pointed out, there is very good reason to regard these as merely technical corrections, clarifications of what RFRAs have meant all along, dispelling questions that opponents of RFRAs have tried to raise. Indeed, Michael McConnell, although he signed the letter, has said he does not think the Arizona amendments are even needed: what RFRA requires ought to be clear to the courts even without the bill's clarifications. 

 

The Kansas bill is a different matter. Rather than a RFRA bill, it was designed to protect religious exercise specifically in the context of a possible judicial decision requiring marriage redefinition in the state. The bill would have made it clear that persons and organizations that, for sincere religious reasons, do not regard same-sex marriages to be legitimate marriages, could not be compelled to help conduct or celebrate such marriages nor to treat them as equivalent to legitimate marriages. Think of marriage counselors, adoption agencies, churches that let wedding parties use their facilities, wedding professionals with a deep religious commitment to traditional marriage as a religious act.

 

Yet the bill was, at best, poorly crafted--it wrongly proposed that, if every government official in an agency that deals with same-sex marriages has a religious objection, then the government agency may simply refuse to carry out its duties to the same-sex couples. But that cannot be right. Instead, it is incumbent upon the government to fulfill its duties, even at the expense of limiting religious freedom.

 

Deeply troubling aspects of the storm over these religious freedom proposals include:

 

* Flagrant misrepresentation by many of the content and effect of the bills.

* Casual dismissal of religious freedom rights.

* Very one-sided and shallow treatment by the media.

* The propensity of some opponents of the bills to assert that since their own religious consciences did not need protection, no one else's needed protection.

 

A sign of the times: a Wall Street Journal story (Feb. 28) on the Arizona controversy carried a photograph of opponents of the RFRA amendment bill that shows one protester carrying a sign that urges "Open for business to everyone!" while the sign of the protester right next to him reads "We reserve the right to refuse service to Arizona legislators"--the lawmakers who had passed the bill and sent it to the governor.

 

See also:

 

Terry Mattingly, "Got news? So what's RFRA got to do with Arizona?" Get Religion, Feb. 28, 2014.

 

Inflammatory title notwithstanding:  Mollie Hemingway, "Dumb, Uneducated, And Eager to Deceive: Media Coverage of Religious Liberty In A Nutshell," The Federalist, Feb. 28, 2014. 

 

Conference at the Newseum, Nov. 7, 2013, "Restored or Endangered? The State of Free Exercise of Religion in America." Three videos of outstanding presentations and discussions. 

 

Baptist Joint Committee, "The Religious Freedom Restoration Act: 20 years of protecting our first freedom."  

The very large number of lawsuits launched by religious nonprofits and by companies of conviction continue to work their way slowly through the courts. Currently in the for-profit cases, 33 injunctions have been granted and 6 denied, and Hobby Lobby and Conestoga Woods are awaiting Supreme Court oral arguments on March 25. In the nonprofit cases, 19 injunctions have been granted with only 1 denied. (See the HHS mandate information central page maintained by the Becket Fund for Religious Freedom.)

 

Meanwhile, a remedial conscience bill sits in the House, but with no motive power (H.R. 940 - Health Care Conscience Rights Act; Rep. Diane Black, R-TN). And although the federal government has delayed the implementation of many requirements of the health reform law, the contraceptives mandate has emphatically not been one of them.

 

One potential alternative is a "church plan," an insurance plan designed to cover the employees of a church or association of churches. Church plans are subject to a unique set of rules and, at least for now, are not subject to the contraceptives mandate. Non-church nonprofits can be included in a church plan, but only if these other organizations are "controlled by or associated with" the church or association of churches.

 

The Southern Baptist church plan, GuideStone, and the many ministries insured by it, has won an injunction against the mandate; and one of the current high-profile cases--the Little Sisters of the Poor--also involves a church plan.  

 

The federal government has stated that the mandate probably does not extend to church plans, but it has not affirmed that such plans will never be subject to the mandate. Further, the government has asserted that even though church plans are not covered by the mandate, objecting nonprofit religious organizations insured through them must sign a document that not only certifies their objection but also, through the simple mechanism of the signature, authorizes others to pay for those same contraceptives (even though, because it is a church plan, the administrator does not have to actually pay for the contraceptives).

And there is that other issue: to be eligible to join a church plan, the other organizations have to be "controlled by or associated with" the church or association of churches. Some faith-based service organizations do have such an association with a church--consider a k-12 school operated by a church or a camping association that is governed by a denomination--but many others do not. They may, instead, be broadly Christian or evangelical, or the initiative of an ecumenical network of Christian and Jewish congregations but not governed by it, or a religious nonprofit that includes clergy on its board but is not formally governed by any congregation or denomination, etc. Even if the "church plan" option is not closed off by a future decision of the federal government, it is not an actual option for many faith-based organizations, much less for companies of conviction (because they are not tax-exempt).

 

Another possible alternative is faith-based health care sharing ministries, such as Samaritan Ministries. (See the Alliance of Health Care Sharing Ministries.) In these ministries, participants who need help paying their medical expenses appeal to the other participants for donations. These ministries specifically are not defined or regulated as health insurance, and they are not subject to the contraceptives mandate. They are also not an easy alternative for an employer who, for reasons of conscience, objects to arranging conventional health insurance with its contraceptives mandate. The employer could drop conventional insurance (paying an annual penalty per employee, unless the company is small), raise employee salaries, and propose that the employees join one of the health care sharing ministries.

But that's just the point: persons and families have to individually apply to be included in these plans, and the plans make individualized decisions, deciding, most importantly, whether the applicant meets the belief and behavior requirements of the plans. These are, after all, formalized ways that Christian brothers and sisters can bear each other's health-care burdens. An employer, in short, cannot ditch BlueCross and buy a health care sharing plan for its employees.

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Tax reform, and with it, the possibility that the tax deduction for charitable contributions will be diminished--made less valuable or (less likely) be redefined to exclude some currently eligible religious organizations--appears to be off the table at least until after the November elections. That's partly because tax reform is inevitably controversial and partly because the prime mover for tax reform in the Senate, Sen. Max Baucus (D-MT), has left to become US Ambassador to China, disrupting the reform movement there.

 

Nevertheless, the impetus, at least in the abstract, to reform the tax code remains strong, and what is done eventually is likely to grow out of the discussions that continue to go on in the House and Senate. Thus the importance of the multi-faceted reform plan recently proposed by Rep. David Camp (R-MI).

 

The major focus of the Camp bill is lowering tax rates and simplifying tax rules to spark economic growth, but he has proposed a series of changes to the charitable deduction and to other tax requirements that affect religious charities and churches.  

 

Dan Busby, head of the Evangelical Council for Financial Accountability, said this about Rep. Camp's plan: "I am very concerned about the reduction in incentives which would negatively impact charitable giving--particularly the proposed floor on the charitable giving deduction and changes to valuation rules for gifts of property.  Additionally, eliminating the rebuttable presumption will allow the IRS to wield too much power against charities."

 

To monitor developments concerning charitable giving incentives, check here: 

 

Evangelical Council for Financial Accountability

 

Alliance for Charitable Reform

As noted in an earlier edition of this eNews, liberal and progressive organizations have joined Tea Party and conservative organizations to heavily criticize the IRS's proposed new regulations on political activity by 501(c)(4) organizations. Recall the continuing uproar over the IRS' treatment of applications for (c)(4) status from Tea Party organizations. The IRS has justified the proposed new rules in part as the way to bring needed clarification and to eliminate arbitrary treatment in the future, but many different organizations and commentators are criticizing the proposals for going too far, wrongly suppressing views that should be allowed.

 

Among the commentators is the Evangelical Council for Financial Accountability, which, through its Commission on Accountability and Policy for Religious Organizations, recently devoted much time and thought to how to improve government regulation of churches and religious charities.

 

In its comment to the IRS, ECFA points out how the IRS' laudable desire to create greater certainty about what kinds of politics-related speech are permissible is likely in fact to suppress speech that religious and other organizations ought to be free to engage in as they pursue their non-electoral missions. The ECFA comment notes that although the proposed rules would only apply to (c)(4) organizations, the IRS has expressed some interest in extending some of the principles also to (c)(3) nonprofits.  The ECFA comment proposes an alternative approach that would bring greater clarity and certainty while expanding, rather than contracting, the freedom of organizations to speak up about critical issues directly relevant to their missions.

* Tim Sherratt, "When Religious Liberty and Other Civil Rights Collide," Capital Commentary, March 7, 2014:

 

"Balancing religious liberty with other civil rights and liberties is a delicate business in a society marked by multiple worldviews. That balancing act, however delicate, is fundamental to public justice. Media do the public a great disservice in failing to present the issues in their full complexity. Editors ought to have more courage and more respect for the capacity of their readers, listeners, and viewers to absorb complex narratives.

 

"Perhaps the media merely reflect the larger political culture. Perhaps no value is as elusive as genuine pluralism. To arrange constitutional liberties in such a way that people of different points of view may enjoy their freedoms alongside others with contradictory beliefs comes at a cost. As Stanley Carlson-Thies of the Institutional Religious Freedom Alliance notes, '[Pluralism] means not all individuals will consider themselves welcome in or well served by every organization in our society.'

 

"I think Carlson-Thies's words would be greeted by howls of disapproval from the giddier critics of SB 1062 celebrating Governor Brewer's veto last week. Today's campaigners for fundamental rights insist that these rights be accompanied by universal approval. But that kind of thinking only encourages the demonization of those who hold different views.

 

"Christian churches, businesses, and charities will naturally want the maximum protection for religious conscience. But although they may experience renewed pressure on religious liberty-as many cases in recent years confirm-it is vital that they, too, demonstrate a mature grasp of the costs as well as the benefits of religious pluralism and a willingness to bear those costs for the sake of the common good."

 

* * * 

 

Nathan Diament, "Why the Orthodox Union Supports Religious Exemptions to the Contraception Mandate: It's not because they oppose contraception," Tablet, Jan. 28, 2014:

 

"In Europe today, religion has been relegated to something only to be exercised in private. What you do in your home and in your church is your business, but society expects you to leave your religion behind when you come into the public sphere-be it the workplace, school, or house of government. Thus, a believer is not entitled to an accommodation or an exemption from any demands society at large wishes to make, like banning public wearing of headscarves or kippot. This has not been the American view.

 

"While our First Amendment's establishment clause demands no legal endorsement of religion, there is a longstanding tradition of welcoming faith into the public arena and-most relevant here-including exemptions and accommodations for religious dissent in a wide array of laws so that, as much as possible, people of faith are not forced to choose between their conscience and compliance with other laws. To do otherwise is to relegate religious belief and action to second class status among our civil rights-something Jews, and all people of faith and conscience, must resist."

 

* * * 

 

Milton Friesen and Cheryl Clieff, Strengthening Vital Signs Through Urban Religious Communities (Cardus, March 2014).

 

Note:  For several years, the Cardus, the Canadian Christian think/action tank "dedicated to the renewal of North American social architecture" has been exploring the community-serving roles of churches and other faith-based organizations in Calgary and how the city government can better understand, strengthen, and partner with those religious organizations and initiatives. This is the latest publication. It focuses on how the roles and insights of religious organizations can better be taken into account by, and influence, the Calgary city-planning process. It is a beginning, but sophisticated, analysis, and includes concrete steps that city officials and faith-based organizations can take to deepen and extend their engagement with each other for the good of the city.

 

* * * 

 

Ross Douthat, The Terms of Our Surrender, The New York Times, March 1, 2014.

 

Reflection:  Well worth reading and pondering: same-sex marriage will inevitably be declared the constitutional requirement throughout the US and persons and organizations with a different view of marriage will be penalized and marginalized (an outcome that can be regarded, Douthat notes, as a just repayment for a long and sordid history of mistreatment of gay people).

 

The social logic is compelling--this really is the trajectory we're on--but this isn't all of the story. It is not illegal to think that man-woman marriages are real marriages and can be flourishing marriages and a good basis for a flourishing family. When such marriages do flourish in fact, they will be an attractive, embodied, continuing witness to that conviction. And no matter how successfully that conviction currently is being redefined as merely an expression of bigotry and discrimination, the freedoms of religion and speech and assembly are bedrock American principles which cannot be squared with compelling believers with such a conviction to conduct their lives and organizations as if it were not true. Some form of principled pluralism will have to be the way that the values of equality and religious freedom are reconciled in our society. 

Institutional Religious Freedom Alliance | stanley@irfalliance.org | http://www.irfalliance.org
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