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What makes a college eligible for religious freedom?
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A cluster of recent developments has brought to the fore (again) this key question: what makes a religious college or university a "religious organization" such that the government must accord it religious freedom?
In February, the National Labor Relations Board asked for comments on whether its jurisdiction extends to religious colleges or whether it must decline to require such colleges to accept votes by adjunct or other faculty to unionize. Or perhaps more accurately the question at stake is whether the NLRB has been respecting, or rather defying, court decisions that have instructed it on how it should identify religious colleges-colleges outside the bounds of its authority. The specific question here has to do with a unionization move at Pacific Lutheran University.
In April, the NLRB decided that Seattle University, a Jesuit institution, is not a real religious institution of higher education, because it does not have a "substantial religious character": no major funding from the Catholic Church or Jesuit sources, only some of the students are Catholic, professors are not require to be Jesuits . . . So it is subject to the jurisdiction of NLRB and thus subject to unionization.
Earlier this month, the Kentucky Supreme Court issued two rulings concerning Lexington Theological Seminary, which laid off tenured professors and then defended itself by claiming the ministerial exception to employment law. That judge-made concept was vindicated by the US Supreme Court's unanimous 2012 Hosanna-Tabor decision protecting the freedom of religious organizations to determine without government restriction who their "ministerial employees" should be. One Kentucky decision says that one of the dismissed faculty members cannot be regarded as a ministerial employee, so the seminary's decision in his case can be challenged. The other decision gave the go-ahead to another professor's lawsuit on the ground that the dispute is not about religion but only whether the Seminary violated its contract with tenured professors by dismissing the professor for reasons not authorized by the contract.
A further development concerns the exemption for religious colleges that is part of Title IX of the 1964 Civil Rights Act (as amended in 1972), which states: "this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization" (20 U.S.C. � 1681(a)(3)). This language suggests that no college or university can be considered religious itself but only receives a religious character from an actual religious organization (a church? a denomination) that controls it.
What to make of all this? A few points, sticking to the broader issues of institutional religious freedom:
* The federal government is inconsistent in how it identifies religious organizations. That inconsistency is evident with regard to the HHS contraceptives mandate: churches are exempt; businesses are fully subject; faith-based service organizations (such as colleges and health clinics) have an accommodation that does little to honor their moral objections. And that inconsistency is evident here. Consider: many evangelical colleges have mandatory chapel, religiously based conduct standards for students and faculty, a curriculum shaped by religious understandings, and a religious hiring policy for faculty and staff. But some of them are independent from any denominational control. It seems that the NLRB, intent though it is to expand its jurisdiction, would have to regard them to be religious entities that it must not control, while the administrators of Title IX, required to exempt religious colleges, might try to deny that the colleges are religious, and to assert the government's control.
* The Kentucky Supreme Court is right to ask questions, left unanswered by the US Supreme Court, about how encompassing the "ministerial exception" is--or in other words, who all can be counted as a "minister." On the other hand, the justices seem overly confident of being able neatly to divide the "religious" from the "secular." One of the laid-off professors, the court claims, only taught "academically" about religion as he guided students in courses such as Values and Religion in American Culture, Jewish-Christian Dialogue, and War and Peace in Biblical Tradition. But is it so obvious that these courses did not contribute integrally to the Seminary's religious mission of preparing students for ministry?
* The federal government is treading on dangerous ground, and likely overstepping its constitutional bounds, when it rummages through the statements, policies, and practices of a religious organization to try to determine how central religion is to the organization in its effort to decide whether it must be counted as a religious entity. The NLRB is sharply called to task in a brief from the Cardinal Newman Society and others submitted in response to the NLRB's call for comment. Rather than such illicit and entangling investigations and line-drawing, the brief looks to several federal court rulings to propose a simple two-part test that does not require delving into the inner life of an organization: Is the organization a non-profit? and Does it hold itself out to the public as a religious organization? If both are true, then it is a religious organization, eligible for all the rights and freedoms due to such organizations.
* But why the requirement that the organization be a "nonprofit"--even if some courts have said that can be an important requirement? If one college is operated as a for-profit but otherwise does everything just the way a nonprofit religious college does, should the former be excluded from the religious freedom protections that the latter receives? Why? And what will happen to this nonprofit requirement if (or when) the US Supreme Court, in the Hobby Lobby and Conestoga Woods cases, rules that profit-making does not per se disqualify a corporate body from being regarded as religious? Just asking.
Further reading:
Patrick Reilly, "The NLRB's Assault on Religious Liberty ," Studies in Catholic Higher Education, May 2011.
Michael P. Moreland (Villanova Law School), Testimony to the joint subcommittee hearing on the NLRB, House Education and the Workforce Committee, Sept. 12, 2012.
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Does Greece show the way for religion in the public square?
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In a 5-4 decision in Town of Greece v. Galloway, May 5, the US Supreme Court upheld the practice of the town council of Greece, New York, of having various religious leaders from the community offer an opening prayer at its meetings. Many conservative Christians are celebrating the victory, but not all. Religious freedom scholar Carl Esbeck, for one, has sharply criticized the practice of government-sponsored prayers as wrongly commingling state and church, to the detriment of both. He did, though, praise the Supreme Court for not requiring government officials to selectively exclude allegedly "sectarian" prayers, allowing only "nonsectarian" prayers which in truth express "a vague theism not actually practiced by anyone." Other skeptics of government-sponsored prayer have praised the decision for not going along with the secularist agenda to sanitize every government-related venue, item, and practice of anything that smacks of religion, as if religious practices and the religious symbols of our history are uniquely unacceptable.
Why even note this decision about town-council prayer in a newsletter focused on the religious freedom of faith-based organizations? The decision and the varied reactions it has evoked reminded me of the proposal made about ten years ago by legal scholar Noah Feldman. In a New York Times Magazine article and then in the book entitled Divided by God: America's Church-State Problem--and What We Should Do About It (2006) Feldman offered a proposal to unify Americans despite our dangerous (he says) religious divisions: allow religious argumentation and religious symbols in our public life (this honors our-diverse-religious commitments) but exclude faith-based organizations from government funding (because such funding fosters conflict, not common values).
At the time, I took issue with this as a non-solution (to a non-existent problem): "The government [instead] should honor the convictions of all citizens, discriminating neither for nor against religion when funding social services and neither for nor against religious arguments and the religious symbols and activities that constitute so much of our history and our lives together." Faith-based organizations should not be excluded from government funding available to secular organizations, and religious symbols and speech should not be sanitized from the public square when secular symbols and speech are permitted. But no government-sponsored prayer or worship: "[G]overnment officials can't be the nation's clergy. That is not merely divisive but idolatrous."
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What's lost when a Catholic school converts to a charter school
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It is an interesting report from the Friedman Foundation for Educational Choice: Sector Switchers: Why Catholic Schools Convert to Charters and What Happens Next. In order to keep their doors open, in a number of cities some or many of the inner-city Catholic schools have been converted to charter schools. As charter schools, they suddenly begin to take in a significant amount of per-pupil government funding. The "switched" schools no longer charge tuition, which makes them more accessible to poor families, and with their new income stream, they can improve their offerings and facilities.
In short, they gain a lot, as do the children and families in their vicinity. But everyone also loses a lot: to become a charter school, a religious school must divest itself of its religious character and practices. Some of the switched schools try to make up for this great loss by offering religious programs outside of the school day, but that is hardly the same as schooling-curriculum, atmosphere, standards, activities-that is integrally religious.
I agree with Rick Garnett of Notre Dame Law School who writes: "As a general matter, I would strongly prefer that Catholic schools remain Catholic schools--schools where a Catholic mission and commitment pervades the entire enterprise--rather than 'thriving charter schools in buildings that once housed Catholic schools,' even if these charters are accompanied by various before- and after-school religious-education programs. I support the charter-school movement--very much!--but believe tax credits and scholarships are essential to a just public-education-funding regime (because what happens in Catholic schools counts as 'educating the public' it should be funded by the public)."
Amen (i.e., I've not been "switched"). |
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Are faith-based organizations due religious freedom?
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The federal government has created a three-tier religious freedom system as part of the HHS contraceptives mandate. Churches are fully religious and exempt. Businesses are fully secular and not exempt. Faith-based organizations get an "accommodation"--but what does that say about their religious character?
In a recent op-ed in USA Today, Scott Ward and Patrick Purtill (Gammon and Grange law firm for nonprofits) wrote the following, reflecting on the federal government's position as argued before the US Supreme Court in the Hobby Lobby and Conestoga Woods cases:
"In his argument, Solicitor General Verrilli made it clear, repeatedly, that the government believes for-profit corporations do not have constitutional or statutory rights to protection of their religious exercise. The government seems to believe the same regarding religious nonprofit corporations. While grudgingly recognizing that churches are entitled to an 'exemption' from the contraceptives mandate, HHS granted religious nonprofit corporations an 'accommodation' instead.
"The distinction is critical: an exemption is a right, an accommodation is only a dispensation. It's a point the government understands perfectly. During 45 minutes of intense argument, Verrilli consistently refused to admit that the 'accommodation' was compelled by the First Amendment or by the Religious Freedom Restoration Act. It is simply government beneficence. As such, it can be taken away."
That's chilling. At least for now, and at least in the case of this HHS requirement, our federal government does not regard faith-based organizations to be authentic or true "religious organizations," organizations that by constitutional requirement have religious freedom rights. As if faith-based service organizations were not a key means by which religious people and communities put their religious convictions into practice in serving their constituents and neighbors.
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Growing opposition to accommodation of religion
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In early April, Harvard Law School hosted a major conference, "Religious Accommodation in the Age of Civil Rights." Co-sponsors were the ACLU, the William Institute at UCLA (LGBT research), and the Program on Religious Accommodation at the University of Southern California. This is an important topic, being currently cast as religious freedom versus LGBT civil rights and leading to huge controversies such as the storm of protest and the threats of business retaliation that led Arizona Governor Brewer to veto an effort to clarify that state's Religious Freedom Restoration Act.
Just how does religious freedom, the first freedom in our Bill of Rights and an internationally acknowledged human right, relate to the right of LGBT persons to be free of invidious discrimination? When religious exercise is accommodated, e.g., if the US Supreme Court rules that Hobby Lobby has the right to exclude the four contraceptive services its owners regard as abortifacients from its employee health plan, does that mean that religion has trumped the reproductive and equality rights of women, or that the law is rightly protecting a vital right of religion and conscience?
These are hard and complicated questions that will only become more numerous and insistent as the US becomes more religiously and morally diverse and as government seeks to regulate more and more areas of private activity. The Harvard conference and the USC program that was a co-sponsor are apparently just early examples of what will be a well-funded network of centers and programs at prestigious law schools to deal with these issues.
Alas, if these centers and programs follow in the footsteps of the Harvard conference, then these efforts will be tilted to advocacy rather than fair and serious legal research and discussion. As several of the participants who are dedicated to protecting religious freedom reported about the Harvard conference, it often had the flavor of a team meeting. The majority, convinced that they are on the right side of history and justice, see little rationality in the views and arguments of their opposites. So they are inclined to regard their strong skepticism against religious accommodation as not partisan but simply right. That attitude inclines scholars to pit civil rights against religious freedom. And yet religious freedom is not the opposite of civil rights but a fundamental right itself.
Videos from the conference are now available.
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Worth reading
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Responses to "Freedom to Marry, Freedom to Dissent: Why We Must have Both," a statement in favor of free speech by same-sex marriage advocates, Real Clear Politics, April 22, 2014.
Ryan T. Anderson and Robert P. George, "Freedom to Marry & Dissent, Rightly Understood," Real Clear Policy, May 5, 2014.
Peter Berkowitz, "Gay-Marriage Backers, Admirably Open to Dissent," Real Clear Politics, April 23, 2014.
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