New regulations were proposed a year ago for the Combined Federal Campaign (CFC-the program that encourages federal workers to designate part of their salary to charities of their choice. The changes are meant to streamline the program and to encourage greater giving--but many nonprofit leaders said that the proposed changes would complicate and reduce giving, instead.

The final regulations were published on April 17--and critics are still concerned that the changes will depress rather than accelerate giving. 

And another concern also remains. The proposed rules expanded the program's nondiscrimination requirement, whose scope was uncertain and worrying. A short list of prohibited bases for discrimination, including religion, was expanded by the addition of sexual orientation, gender identity, and several other characteristics, with only a minimal justification offered for the change.

As before, the prohibition was said to apply "in all aspects of the management and the execution of the CFC," which would seem to exclude participating charities, for many of which, of course, religion and sexual conduct are important matters. And yet the next sentence in the same paragraph specifically discusses the eligibility of charities to participate in CFC. So would the new prohibitions in some way apply to those charities, unless they were exempt from the prohibitions because they matched the unclear further description in the paragraph about charities that are "organized by, on behalf of, or to serve persons of a particular" race or religion or gender identity or genetic background, etc.? How would that work? Would a charity that objected on moral or religious grounds to sexual activity outside of man-woman marriage be eligible to receive federal employee contributions through the CFC even though it is organized and operated not with regard to sexual orientation at all and yet excludes from its residential facilities for married people cohabiting or same-sex-married couples?

The final rule keeps the expanded section on prohibited discrimination, including the confusing second sentence of the paragraph. The final rule just blandly says that commentators who are worried that the expanded prohibitions might affect the eligibility of charities are "misreading the regulations" because the regulation "clearly states" that the prohibitions do not affect the eligibility of charities "merely because such organization is organized . . ." etc., etc., --repeating the confusing second sentence. However, the final rule does say that the prohibited discrimination policy "is only with regard to the execution of the campaign in the federal workplace (i.e., the Central Campaign Administrator)." It is the federal officials administering the program who are subject to the prohibitions and not the charities that seek eligibility to gain donations from federal employees through the CFC. But if so, why not simply drop the confusing second sentence, or state that the sentence on prohibited discrimination does not apply to charities at all?

As to the legal justification for the expanded nondiscrimination requirement, the final rule states that the Office of Personnel Management (the federal agency in charge of the CFC) interprets federal law concerning discrimination involving federal employees (i.e., discrimination is not permitted if its basis is "conduct which does not adversely affect the performance of the employee") "in a way that justifies" the expanded set of characteristics. We can do it and so we are doing it.

Advocates for LGBT rights have long been pressing Congress and the administration for action to prohibit job discrimination on the bases of sexual orientation and gender identity. The Senate last November did pass such a bill--the Employment Nondiscrimination Act--but the House does not intend to act on it. So pressure has mounted for the President to use his "pen and phone" to take action on his own by issuing an executive order banning LGBT discrimination by federal contractors. Several weeks ago more than 200 House and Senate Democrats sent the President a letter urging such an executive order.

Early in April it seemed very possible such an executive order would be issued, as news outlets carried stories predicting that the President was on the verge of taking executive action to require federal contractors to better protect employee rights.

And so the President acted. On April 8 the White House announced that the President would sign an Executive Order "prohibiting federal contractors from retaliating against employees who choose to discuss their compensation." The goal is to make it easier for the employees of federal contractors to discover if equal pay laws are being violated. And the White House also announced a Presidential Memorandum requiring from the Department of Labor new regulations compelling federal contractors to provide additional wage data to the government, so that unequal pay can be better detected. Earlier, in February, the President had issued another Executive Order also applying to federal contractors--increasing the minimum wage they have to pay.

So: three major recent actions by the President to set new employment conditions for federal contractors. But nothing about LGBT discrimination.

In the Sherlock Holmes story, "Silver Blaze," the lack of a dog's bark was a vital clue in a murder mystery. What's the significance of the President missing all of these opportunities to advance LGBT employment non-discrimination when using his pen to take executive action with regard to federal contractors? One commentator suggests that the President hasn't acted on the LGBT issue because he is conserving his political capital in the hope of getting action on immigration reform before the November congressional elections.

This dispute is far from over. New lawsuits continue to be filed, and courts continue to rule, albeit slowly--and the very strong trend of vindicating the objectors and denying the federal government continues.

The very complete and indispensable resource pages on the lawsuits that is maintained by the Becket Fund for Religious Liberty says that there are now 48 non-profit lawsuits and 48 for-profit lawsuits.

The evangelical university in British Columbia, Trinity Western University (TWU), is planning to open a Christian law school to take its place among the more than two dozen secular-minded law schools that currently operate in Canada. To open its doors, it needs approval from several provincial and national bodies--which it has received, despite a great storm of controversy because TWU maintains a conservative code of conduct (a community covenant) for its employees and students which, among other things, restricts sexual activity to man-woman marriages.

Recently the Law Association of British Columbia voted to permit the future graduates of the (not yet operating) TWU law school to practice law in the province. Yesterday, Ontario's counterpart law association voted the other direction: not to accept TWU law graduates to the bar in Ontario. Other provincial bar associations have scheduled votes. What such negative votes might mean for future TWU law graduates is uncertain: will they be prohibited from practicing except in the provinces that specifically have accepted them?

In the meantime, a lawsuit against the TWC law school has been launched by a British Columbia gay activist, alleging that provincial approval of the school validates discrimination that is unconstitutional under the Canadian Charter of Rights and Freedoms. The Canadian Supreme Court may have the last word. Will it rule in favor of the law school, just as, in 2001, it vindicated TWU's education program against the charge that it turned out discriminatory teachers because of TWU's community covenant?  

The HHS contraceptives mandate requires all employer health plans (unless they have retained their grandfathered status) to cover all FDA-approved contraceptive services, including IUDs and emergency contraceptives that act as abortifacients. Churches are exempt. Businesses are not, no matter the convictions of the owners and the mission of the business (except that the courts are strongly favoring businesses that have challenged the mandate). Religious nonprofits, such as faith-based hospitals, schools, colleges, and charities, have an "accommodation": they can buy insurance that excludes some or all of the required contraceptive services, and then the insurer or their third-party administrator has to tell the employees that it will pay for the excluded items anyway (again, the courts are strongly favoring the nonprofits that object).

Outside of court action, what can a faith-based service organization with a religious objection to the mandate do? It can drop insurance coverage, although such action may also violate its religious convictions about how to treat its employees. It can drop coverage, increase salaries, and encourage its employees to join a health care sharing plan (see the Alliance of Health Care Sharing Ministries), although there is no guarantee they will all be accepted into a program in which the Christian members share each other's (health care cost) "burden."  

If the organization is Southern Baptist, it might explore whether it can join Guidestone, an insurance company that has won an injunction against the federal government so that its health insurance plans do not have to cover abortifacients.

John G. Stackhouse, "Have Some Faith in Christian Law School," The [Toronto] Globe and Mail, Feb. 3, 2014:  

"Whence all this indignation about a Christian law school?

"The fundamental argument seems to be that since [Trinity Western University] law graduates will be trained in an environment disapproving of homosexuality, they can be presumed to graduate as disapproving of homosexuality. They therefore must be incapable of serving as lawyers for homosexuals.

"This argument is nonsense. Lawyers routinely represent clients who act in ways that not only diverge from their own values (as in, say, their choice of sexual partners) but actually appall their counsel: theft, drug pushing, fraud and murder. All of those lawyers graduated from law schools that can be presumed to frown on such behaviour. Yet lawyers are trusted to provide services to those who act in those ways.

"Trinity Western's traditional sexual ethic actually points to a positive legal consideration. Its overarching Christian commitment commands the love of one's neighbour as oneself and the treatment of others as you would be treated. Wouldn't we all be well-served by lawyers who believe that, whatever their views of our actions, God requires them to give us the best possible legal representation? That they are religiously obliged to treat us as if we were members of their own families?"

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Clay Christensen, Harvard Business School on religious freedom and democracy

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Religious Freedom is our First Freedom

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Becket Fund for Religious Liberty, Faces of Free Exercise

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Dordt College First Mondays Speaker Series Stanley Carlson-Thies, April 7, 2014, "Why we need institutions in order to be faithful, and what institutions need so they can be faith-full"