March 28, 2014

On March 25, the US Supreme Court heard oral arguments in the Hobby Lobby and Conestoga Woods challenges to the HHS contraceptives mandate. The Christian owners of these two businesses claim that it is a violation of their religious pro-life convictions, and a violation of the moral standards of their respective companies, to be required to include four of the mandated contraceptive services--the contraceptive drugs and devices they (and many) consider to be abortifacients.

 

The transcript of the argument is available here. The audio is here.  

 

A decision in the two cases is not expected until the end of June. Predicting how the court will rule based on how the questioning went is akin to reading tea leaves to predict the future. Still, at least three aspects of the discussion inside the Supreme Court are particularly noteworthy:

 

(1) Although many commentators on these cases, and the federal government itself, have said that the big question is whether a corporation or a profit-making entity can have any religious exercise rights at all, this was not the crucial part of the discussion at the Court. This should not be a surprise: an amicus brief authored by church-state authority Douglas Laycock shows that the Religious Freedom Restoration Act (RFRA) was not designed to exclude corporations from its protections.

 

(2) Some of the questioning--and a great deal of the commentary outside the courtroom--has focused on a supposed slippery slope, a parade of horribles: if the Supreme Court upholds Hobby Lobby's decision about those four contraceptive methods, then, predictably, various companies will plead religious conscience to strip blood transfusions or vaccinations or other medical procedures out of their insurance plans, or maybe even cynically plead religious conscience to strip out some procedures or drugs that they just object to because of cost.

 

And yet for a corporation (or person or nonprofit) to have the protection of RFRA gives it no free pass for decisions based on religion! It only makes the company (or person or ministry) eligible for a test in court. A court has to determine whether the company has a sincere religious belief in the matter and that having to bend to the government's requirement would in truth impose a substantial burden on the company's religious exercise. And the court has to decide whether the government has, as it claims, a compelling interest in imposing the requirement and also that it has no less restrictive way to achieve its interest. The government might well win--and if the claim is frivolous or the government's interest heavy (preventing a public health disaster, saving a life), it should win.

 

On the other hand, if the company wins, then its religious exercise is not part of any "parade of horribles"--no matter how much many others might think the company wrong. Instead, the company's win is an authentic victory for religious freedom--a fundamental American value that enables us to live together in mutual respect.

 

(3) When the 84 amicus briefs in the Hobby Lobby case had all been filed near the end of January--most of them supporting Hobby Lobby and Conestoga Woods--the estimable and essential Supreme Court blog, SCOTUSblog, took special note of only a single amicus brief. Which one?--the one filed by church-state scholar Marci Hamilton arguing that RFRA is unconstitutional and that it is a violation of the Establishment Clause of the First Amendment to allow a corporation to deny on religious grounds rights or benefits that its employees otherwise would be able to enjoy. But her novel theory seems to have carried no weight with the justices.

 

If nothing else, all of this is just a sobering reminder: public debate about justice and the law often has very little relationship with actual constitutional principles or legal analysis.

For many months, according to rumor, the White House has had ready for the President's signature an executive order prohibiting federal contractors from discriminating on the bases of sexual orientation and gender identity in their employment decisions. Unlike the ENDA bill (Employment Non-Discrimination Act) passed last November by the Senate, the executive order would cover only organizations that contract with the federal government, not all private employers and government agencies.  

 

That Senate bill includes a religious-organization exemption, which was strengthened as the bill was considered by Senators. A big question: will an LGBT executive order include a religious organization exemption so that faith-based organizations can continue to contract with the federal government without having to abandon their sexual conduct standards? Another big question: will such an executive order leave intact the language added to federal contracting rules by President George W. Bush, which allows religious organizations to contact with the federal government even though they consider religion in their employment decisions?

 

Mysteries abound. Is there an executive order? What is in it? Will the President ever issue it? In the meantime, IRFA has engaged the administration in various ways to advocate that, if such an executive order is issued, it must leave intact the religious hiring protections and include an exemption for all religious organizations.

 

And  others have been pressing the administration hard to issue the executive order and not wait until the House does or does not act on the Senate-passed ENDA bill. The latest pressure is a letter to the President, signed by 47 Senators and 148 members of the House, none of them Republican.  

 

Stay tuned! Federal contracts are used mainly by the government to procure goods and services for itself (tanks, janitorial services, computers), and yet it also contracts for research, technical assistance, and some social services (Bureau of Prisons, USAID)-products and services that currently are supplied, in part, by faith-based organizations. Besides, each decision the federal government makes on these matters either helps to establish a fair balance between religious freedom and LGBT rights or else contributes to shoving religion to the margins of the public square

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The Senate recently passed a bill to reauthorize the Child Care and Development Block Grant program, which provides federal funding to states to pay for child care for low-income families, including mothers receiving welfare support. S. 1086, which was adopted by the Senate 97-1--a huge and obviously bipartisan majority--includes a very welcome section, "Parental rights to use child care certificates." The language says that the law should not be interpreted to "favor or promote the use of grants and contracts" instead of "the use of child care certificates" for purchasing child care services.

 

Why is this important? From its beginning in 1990, the federal child care funding program has favored "certificates" (vouchers) given to parents to buy child care over grants or contracts awarded by government to pay child care providers. Certificates maximize parental freedom and responsibility to select the most appropriate child care, and-crucially and intentionally-require few religious limitations on the child care providers, thus maximizing involvement by faith-based providers. Faith-based centers were and are major providers of child care and, of course, the first choice of many families. When the government uses grants and contracts to support child care, the money necessarily comes with tighter restrictions on religion. The restrictions both exclude many faith-based providers and make the care that is provided by those who participate less faith-full and thus, for some parents, less attractive.

 

If the program has always favored certificates over grants and contracts, why insert this special section now? Last summer, HHS, the federal department that operates the program, proposed new regulations intended to improve the quality of the child care supported with federal dollars. To that end, HHS proposed that states should more often use grants and contracts to ensure the purchase of high-quality care. But more grants and contracts would mean less opportunity for faith-based providers to be involved. The Senate bill, next to be taken up by the House, also stresses quality improvements--but without using a funding mechanism that would diminish faith participation.

A Religious Freedom Restoration Act (RFRA) bill has recently been considered by the Mississippi legislature. It has not received the firestorm of often-uninformed commentary that doomed the Arizona RFRA bill, perhaps because of all the attention focused on the Hobby Lobby case at the Supreme Court. But a group of law professors joined together in a letter condemning the Mississippi proposal.

 

Their letter notes the overwhelming support that the federal RFRA bill enjoyed in 1993-an extremely broad coalition that united to defend the principle of religious freedom, with no second-guessing about how the courts might rule in any particular contest between an asserted religious right and some other interest or right. RFRA does not give religious persons or organizations a free pass from laws and regulations, but only provides the opportunity to contest the government's action (is its rule really needed? has the government picked the most appropriate way to assert its requirements?) if the person or organization can make a convincing case that it has a sincere religious belief that is substantially burdened by the government's requirement.

 

But after passage of RFRA, as the scholars' letter notes, "the civil rights community"--rather, initially, just the LGBT-rights community--asserted its concern that in contests between religious freedom claims and LGBT-rights claims, the religious persons or organizations might often win--i.e., the courts would rule that their religious freedom was wrongly being suppressed.

 

The possibility of such outcomes--that courts would find reason to vindicate religious freedom over LGBT rights in some instances--has been the cause of growing opposition to RFRA, both the federal law and the state RFRAs (state RFRAs are needed because of a Supreme Court case that ruled Congress could not make the federal RFRA apply to state governments).

 

Thus also this letter: because a Mississippi RFRA might lead Mississippi courts sometimes to rule that an LGBT anti-discrimination provision wrongly is curtailing religious freedom, these scholars urge rejection of the proposed RFRA law. To these scholars, it seems, religious freedom claims should never win over the assertion of LGBT rights; there should be no balancing but only a limitation on religious freedom.

 

That's more than discouraging all by itself. But there is also another discouraging element in this effort to derail the Mississippi RFRA bill, as noted by church-state expert Thomas Berg. He points out that Mississippi actually has no state or local laws banning sexual orientation discrimination--so no LGBT protection that RFRA might, in some instances, overturn. The letter writers want to stop a law based on a concern that is only hypothetical.  

 

And yet, as Berg notes, there are real religious freedom issues in Mississippi that a RFRA would rightly address: a Mississippi RFRA law "would protect religious minorities, many of them non-Christians, against laws passed in a state whose officials have frequently shown indifference or hostility to minorities. These cases ought to matter far more to liberals than the completely hypothetical conflicts with nonexistent civil-rights laws."

 

Protection of disfavored religions and the appropriate balance of religious freedom and nondiscrimination laws: these are real religious freedom issues that need serious discussion-neither neglect (as in this instance) nor misleading commentary (the Arizona instance).

World Vision USA, the US branch of the global organization, early this week announced that it would accept into employment Christians in legal same-sex marriages whose denominations consider such marriages to be legitimate. And then, two days later, it reversed its decision, apologizing for having departed from its stated commitment to biblical principles and its commitment to marriage as a bond between one man and one woman.

 

There is much to be said about both substance and process in what was done and reversed. Here just three brief points:

 

1. This high-profile decision and reversal by this very high-profile evangelical Christian service organization should be a catalyst for other faith-based organizations to consider carefully what their foundational religious beliefs entail for understanding what marriage is, what constitutes acceptable and flourishing intimate relationships, what standards employees should be held to.

 

2. World Vision USA's initial decision to accept (certain) persons involved in same-sex marriages as employees was no departure from the principles involved in religious hiring-a freedom World Vision has been strong and faithful to defend in courts and in legislatures, and to the federal government. The religious hiring freedom does not require a religious organization to adopt any particular policy concerning how it evaluates religion when selecting employees. The freedom only--but essentially--places the decision about how to use religious criteria in the hands of the religious organization, removing from government the right to second-guess such decisions by the religious organizations.

 

3. World Vision USA justified its initial decision by pointing out that it hires staff from a range of Christian denominations and that those denominations hold a range of different-sometimes conflicting-views on critical matters of religious doctrine (indeed, some of those differences have led to bloodshed between different groups of believers in the past). But, the organization said, just as contrasting views on evolution are immaterial in judging the suitability of applicants for World Vision employment, now contrasting convictions about what marriage really is would be irrelevant in evaluating applicants. Such matters--evolution, what marriage really is--are issues in the rightful purview of churches and denominations and need not be considered relevant for the mission and work of faith-based relief and development and child welfare-World Vision USA's areas of service.

 

Yet World Vision does understand that doctrinal issues cannot necessarily be declared irrelevant in evaluating employees and applicants: indeed, not that long ago World Vision USA fired three employees for no longer agreeing with World Vision's core theological convictions and--successfully--defended its decisions in the federal courts in a major religious hiring case. For faith-based organizations that actually take religion seriously, it is no small matter to declare certain issues either mission-essential or not relevant.

Earlier this week, the Canadian Supreme Court heard the important case of Loyola High School, a Catholic school in Quebec.  

 

The province of Quebec over the past decades has been transformed from a markedly Catholic society to a religiously diverse society with a markedly secularist public square. To promote tolerance and mutual respect, the government developed an Ethics and Religious Culture program which, in the view of many religious observers, teaches the equal truth (or the equal truthlessness) of all religions--and made it mandatory in all schools, including private schools such as Loyola. Loyola sought an exemption, asking to be able to continue to teach its own world religions and ethnics course. But that course is taught (no surprise!) from a Catholic perspective, and the province deemed it unacceptable. Now the case is before the Canadian high court.

 

One key issue: do institutions under the Canadian constitution have religious rights at all, or is religious freedom restricted to individual persons?

 

The issues at stake and the key arguments of the 11 outside organizations granted the right to speak to the Court ("interveners") are summarized in a Cardus publication. Among other noteworthy points:

 

* The World Sikh Organization of Canada noted: the idea that an institution has no religious freedom "would improperly limit the scope of religious freedom to the internal forum of the minds of isolated individuals. This would deny that religion is lived internally and externally, individually and collectively, and through institutions."

 

* The Christian Legal Fellowship pointed out that the required religion and ethics program must considered to be indoctrination, not simple instruction. The introduction to the course says this:

 

"The knowledge we will acquire and the discussions we will have during the school year may give you the impression that there is no ABSOLUTE RIGHT or WRONG, but rather that there is a relative right and wrong for each INDIVIDUAL and for each SOCIETY. It is sometimes upsetting to live in a world where no absolute TRUTH seems to exist. But don't worry. What is important is to know yourself better by acquiring reliable ethical judgment, and to live in peace with those around you."

 

Is this what governments can legitimately teach and legitimately require private organizations to parrot? Despite the Quebec government's assurances, many people of faith (and many others) may in fact be plenty worried.

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