May 30, 2014

In programs that deal with marriage, the federal government now says that grantees must treat as married legally-married same-sex couples, no matter the marriage policy of the state where the grantee is located.

 

The new requirement, "Federal Recognition of Same-Sex Spouses/Marriages," is being announced in various federal programs, although not all at once, and applies to current as well as future grantees (it applies also to contractors and to organizations with cooperative agreements). The justification is the US Supreme Court's action last summer in United States v. Windsor, which invalidated Sec. 3 of the Defense of Marriage Act, which had declared that for federal purposes marriage is limited to opposite-sex couples.

 

According to the new requirement, whenever the laws or regulations for a funding program use terms such as marriage or spouse, those terms have to be interpreted as including legally-married same-sex persons (but not persons in a civil union or domestic partnership). Thus, for example, a new guidance memo for the Assets for Independence Program (AFI) explains that, where the Assets for Independence Act "defines 'qualified first-time homebuyer' as an individual and, if married, the individual's 'spouse' [who is not already a homeowner]," then "spouse" henceforth must be understood to include someone in a legal same-sex marriage, even if a particular AFI program is being operated in a state with a constitutional ban on same-sex marriage.

 

The Supreme Court did strike down the federal definition of marriage that excluded same-sex couples, so that the federal government instead has to accept the different definitions of marriage in the various states. And the federal government does have to define the terms of eligibility and operation for organizations that receive its money to provide services.

 

Exactly what all the consequences of this new requirement are for faith-based organizations is not yet clear. Generally, any program law or regulation that uses terms like marriage or spouse is referring to beneficiaries of a service and not to the internal operations of the organization that receives the funds to provide the service. A law, as in the AFI program, might well have to note that a benefit is available to both a person and his or her "spouse," or only to "married couples." It is not likely that a program's law or regulation would say anything at all about the marital status of the employees of the grantee organization, so the required new definition of "marriage" and "spouse" would have no direct effect on the grantee itself.

 

Areas of concern: Faith-based organizations with a religiously grounded conviction that marriage is limited to opposite-sex couples may regard the new requirement troubling if the federal program involves "marriage" counseling or focuses on strengthening "marriages." If the organization receives federal funds and among its services provides housing or emergency shelter for "married students" or "married couples or families," it may discover that its view of who is eligible is no longer shared by the federal government and must be changed. Adoption or foster-care programs that receive federal funding may be affected, as well, depending on the language of the program law and regulations.

 

There is reason to be concerned, too, that this new declaration of policy, following other federal actions (repeal of Don't Ask Don't Tell, the refusal of the President and Attorney General to defend DOMA, other regulatory actions in response to the Supreme Court's Windsor decision, other executive and regulatory actions promoting LGBT equality, etc.) are intended to create a "national policy" favoring LGBT equality that would in consequence narrow the scope of religious freedom.

 

Stay tuned!

The Faith & Giving Coalition last week sent a letter to Rep. David Camp (R-MI), head of the House Ways and Means Committee and author of the far-reaching Tax Reform Act of 2014. With the November elections looming and great disagreement within and between the House and Senate on tax reform and the federal debt, Camp's bill will not become law. But as a statement of principles from a highly influential legislator, it will help shape the next round of congressional debate and eventual action.

 

The letter and accompanying memo stress how important charitable giving is to faith-based organizations (a very large part of their income) and to society (because of their extensive good works). The Coalition points out that various states that recently reduced charitable giving tax incentives in order to gain more government revenue have discovered that the changes dramatically reduced donations to charities-relatively small increases in government income were gained at the expense of big drops in the money charities need to do their good work. Camp's tax reform bill does not intend to undermine charitable giving and the charity sector, but the memo lays out a variety of ways that the proposed reforms will in fact be detrimental.

 

The memo rightly notes, "The current deduction for charitable giving is not a drain on federal tax revenue; it is a powerful human and financial engine for good in our society." That is, the charitable tax deduction isn't a conventional "tax loophole" or "tax expenditure" or "tax break." Whatever benefit the recipient gets from the tax treatment is more than overbalanced by the fact that the deduction is earned only by giving money away for the good of others-others who count on the hundreds of thousands of charitable organizations in our society.

 

The letter and memo stress two realities overlooked by the usual analyses of the charity sector. First, while many secular nonprofits get much of their income from government grants, and from fees from government and private sources for services provided, most faith-based organizations depend much more heavily on private donations--and thus will be disproportionately harmed if charitable giving incentives are weakened. Second, an amazing three-quarters of charitable giving in America goes to religion--to houses of worship or to faith-based service organizations. So any decline in charitable giving will hit religious organizations the hardest.

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Congress is nearing agreement on a major overhaul of federal job-training programs, but the revised law will remain biased against religious organizations. Federal job training efforts are sprawling and of uneven effectiveness at best--they are often used as examples of duplicative and wasteful spending. The last major overhaul was in 1998, when the Workforce Investment Act (WIA) was adopted. A year ago, the Republican-led House adopted a reform bill, the SKILLS Act but a Democratic reform bill stalled in the Senate. The new reform bill, The Workforce Innovation and Opportunity Act, was developed by a bi-partisan House-Senate team.

 

Whatever it changes and however much good it does, the consensus bill leaves a big problem untouched. WIA includes an expansive non-discrimination requirement that applies not only to job trainees, ensuring that everyone needing help can receive it without being excluded, but also to the private organizations that play such an important part in job training. Prohibited bases of discrimination include religion. Thus the many faith-based organizations that consider religion when hiring their own staff, but that serve whomever needs assistance, are excluded from partnering with the government. And yet many of these same faith-based organizations offer various valuable forms of job training.

 

Congress previously tried to reauthorize and reform WIA, in 2003 and 2005. Both times, strong efforts were made to narrow the non-discrimination language so that the law would no longer exclude religious organizations that hire according to religion--and the fight about religious hiring was a key reason that no consensus could be reached. It may be that reformers this time, no matter how sympathetic to the religious hiring freedom, decided that a change in federal job training programs is so important that this other reform would have to be left for another day.

 

Fortunately, it is now clear, though it was not so obvious in 2003 or 2005, that the federal Religious Freedom Restoration Act (RFRA) makes it possible for a faith-based organization that is committed to religious hiring to participate in federal programs that include a ban on religious (and other) job discrimination. A 2007 Department of Justice memo lays out the reasoning, and the Obama administration just last month published guidance on how, in the Violence Against Women Act program, which has a similarly broad non-discrimination requirement, RFRA makes it possible for religious hiring still to take place. 

 

It would be best for Congress to eliminate the ban on religious hiring in our federal workforce programs, but until it does, faith-based organizations should take note of the RFRA override.

 

One other note: the House and Senate consensus bill also simply adopts another bad idea from the current law (WIA): a ban on having job trainees work on any facility used for worship or for sectarian instruction. According to more recent constitutional interpretation and federal policy, that's an overly broad prohibition, so Congress ought to narrow it as much as possible. Next time?

The Obama administration wants to use federal funds and rules to get all states to make pre-K schooling broadly available. He's backing a bill in the Senate to do that: Strong Start for America's Children Act (S.1697). This bill won't become law, but in the meantime, the Department of Education has been incentivizing states to introduce or expand government-funded pre-K through a series of Preschool Development Grants, which are awarded to states.

 

Is universal pre-K schooling a good idea? Should it be government-funded? Even if not government-funded, how heavily should government regulate it?  

 

Currently much pre-K schooling is offered at modest expense via faith-based schools and centers. If government regulates more extensively, e.g., in an effort to improve quality, but does not take affirmative steps to be inclusive of faith-based curricula and teacher training, and accommodating of the identity and operations of faith-based institutions, then the presumed quality improvements will be won at the expense of varieties of schooling that many parents value (and that should receive protection under the Constitution).

 

Similarly, if the rules accompanying government funding are not specifically designed to accommodate faith-based participation, then the spread of government funding will force faith-based pre-K to shrink: can't participate in the funding program, can't compete with "free" government-supported secular pre-K.

 

So, how accommodating is the federal government in this push to spread the government's role in pre-K schooling? Unfortunately, not so much.

 

Here's part of the Comment submitted by the Association of Christian Schools International (ACSI) in response to the request for comments on the Preschool Development Grant Program:

 

"As written, the Preschool Development Grant Program appears to exclude participation of faith-based providers. This is disappointing since it effectively excludes the full diversity of low-income families, particularly those for whom faith is a priority and who are thus compelled to settle for a secular early education program or none at all. Diversity of programming would seek to ensure the ability of faith-based programs to participate."

 

Similarly, the Comment submitted by CAPE, the Council for American Private Education, says:

 

"While the federal government should not determine the specifics of a state's early education program, it should require, as an explicit condition for receiving a grant, that a state's quality rating system, professional development requirements, training and credentialing requirements, curriculum guidelines, assessment system, and even health and safety standards respect and accommodate a variety of truly distinctive approaches to quality early education, including those practiced by Montessori programs, faith-based programs, and Waldorf programs."

 

Notice that: without a rewrite, even secular Montessori and Waldorf pre-K programs are worried that their distinctive approaches and identities will not be respected.

 

What can be done? In addition to asking for regulations that accommodate diverse approaches and organizations, CAPE and ACSI recommend a form of funding that would enable faith-based schools to participate without eliminating their faith-shaped education: vouchers or scholarships rather than direct government grants or contracts to pre-K schools.

 

There is even a model in one of the states that shows how a state can partner fruitfully with a wide range of pre-K programs. This is from the Comment submitted by the American Association of Christian Schools:

 

"The State of Florida provides an exciting example of a program that has been successful in expanding early education access and choice for families by collaborating with private and faith-based Early Learning Providers. Florida's Voluntary Prekindergarten (VPK) education program allows parents to choose from a wide variety of options for the best educational choice for their children. The options include private and faith�based programs with an allowance for these schools to maintain their religious character and mission. This diverse program is successful because it recognizes the vital role and primary responsibility of parents in children's education, and the importance of protecting the diversity, autonomy, and mission of successful private, faith-based programs."

As the memo on tax reform to Rep. Camp from the Faith & Giving Coalition points out, even such a respected report on charitable giving as Giving USA 2013 misrepresents the importance of faith-based charities. That report says that in 2012, 32% of private giving went to religious organizations--but the report does not categorize as "religious" the many faith-based organizations that provide health care, education, social services, or services overseas! Instead, those organizations are counted simply as (non-religious) schools, etc. Only houses of worship, seminaries, and the like are counted as "religious organizations."

 

That's a big mistake. Religion encompasses not only churches and worship but also faith-based schools, religious drug-treatment programs, overseas development efforts inspired and shaped by faith, and so much more.

 

In fact, as revealed by a new report on giving that is specifically attentive to donations made to health, educational, and other organizations that are inspired and shaped by religion, a full 73% of giving in the US goes to religious organizations--not 32%. According to Connected to Give: Faith Communities (Jumpstart Labs, 2014), 41% of American giving goes to congregations and another 32% to "religiously identified organizations." That's a huge difference from the Giving USA numbers, and a huge difference in understanding the role of religion in our common life

Trinity Western University in British Columbia, an evangelical liberal arts university, is creating a Christian law school. It has successfully met the government requirements to get started, but is running into quasi-governmental hurdles.

 

TWU, like many evangelical institutions, has a community covenant, or lifestyle code, for students, faculty, and staff that (among many positive and negative guidelines for action) restricts sex to male-female marriages. This restriction conflicts with contemporary sexual standards, of course, and has been labeled as discriminatory. Some Canadians--including some Canadian lawyers and law professors--seem convinced that any lawyer turned out from such a bigoted institution will necessarily be bigoted and perhaps cannot be trusted to practice law justly. It doesn't matter that the Canadian Supreme Court vindicated TWU in 2001 against similar charges that its education graduates were too bigoted to teach in British Columbia public schools.

 

The law societies (bar associations) of many of the provinces have voted to accept the future TWU law school graduates, but the societies for Ontario (Upper Canada) and Nova Scotia voted to reject them.

In response to the Ontario decision, TWU said, the "decision to reject otherwise highly qualified graduates sends a message that in Ontario you cannot hold religious values and fully participate in society." That's a dangerous precedent, for sure, and TWU is going to court to fight for religious freedom for lawyers.

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