September 24, 2014

IRFA founder Stanley Carlson-Thies commented in a recent podcast that the July 21 LGBT Executive Order is likely to reduce participation by religious organizations in federal contracting.  The Executive Order bans job discrimination on the bases of sexual orientation and gender identity by federal contractors, while permitting religious organizations to consider religion when they make employment decisions.  

 

Yet there is no clear and obvious dividing line between the now-illegal decision-making based on sexual orientation and the still-legal employment decision-making based on religion.  When religious organizations are concerned about the religion of employees, they are seeking employees who are compatible with the ethos of the organization, and that means they care about more than which religion someone professes: they are looking for faithfulness to the values of the religion.  

 

Rep. Jared Polis (D-CO), chief sponsor in the House of Representatives of the Employment Nondiscrimination Act (ENDA), on September 17, 2014, filed a discharge petition which, if signed by 218 Members, will force an ENDA vote.  ENDA passed the Senate in November, 2013, after several religious freedom improvements were made (despite pressure from various LGBT and civil rights groups to weaken those protections).  The Polis discharge petition calls for the House to vote on the Senate bill after first amending it by stripping out its religious organization exemption.

 

House Speaker John Boehner (R-OH) has pledged that the House will not act on the bill.  The discharge petition is an effort to force a House vote despite the opposition of the House's Republican leadership.

 

It is highly unlikely that the discharge petition will succeed.  The House ENDA bill has some 205 co-sponsors, but not all of them are voting members.  Moreover, although some 7 Republicans are co-sponsors of the bill, it is very unlikely that many Republicans would defy their party's leadership to add their names to the discharge petition.  Indeed, Republican Rep. Illeana Ros-Lehtinen (FL), long a co-sponsor of ENDA bills, has said that she would not sign the discharge petition and regards it as a partisan stunt. The legislative director of Freedom to Work, one of the key organizations backing ENDA, predicts that an ENDA bill without the religious-organization exemption would win 50 fewer House votes and 20 fewer Senate votes-that is, has no chance of passage.

 

ENDA bills have many religious critics.  Yet there can be little doubt that Congress will one day pass something like ENDA.  The big question is this:  the next time ENDA receives serious consideration by both the House and the Senate, will it have the strong religious freedom protections the current bill has?  Or will it be like the LGBT Executive Order that President Obama signed in July:  a measure that tilts toward LGBT rights at the expense of religious organizations concerned about their religious identity? 

 

A Congress that adopts an ENDA bill with strong religious-organization protections will send an important signal to the courts, to state governments, and to the public:  our nation will protect religious freedom at the same time as it advances LGBT freedoms.  A Congress that follows the pattern set by the President will, instead, announce that LGBT rights have priority over the freedom that religious organizations need.

An Associated Press story on September 19, 2014, reported on a bipartisan effort in Michigan to change the state's civil rights law to incorporate a new prohibition on LGBT discrimination.  The chief sponsor of the bill would be a Republican, the legislature is dominated by Republicans, and the governor is a Republican.  The bill would include a significant religious exemption to protect religious organizations-every state that has passed such protections for LGBT persons has at the same time adopted protections for religious organizations, as documented by a study by the Center for American Progress Action Fund.  That's because it is part of the legitimate religious freedom of religious organizations that their employment and operational practices will reflect their religious convictions.  The bill to be proposed in Michigan, thus, would appropriately balance new LGBT rights with the maintenance of institutional religious freedom rights.  

 

But apparently not everyone is so supportive of maintaining a respectful public square in Michigan.  There is no doubt conservative opposition to securing LGBT rights, and the AP story notes strong opposition from the LGBT side to religious rights.  Equality Michigan "warned that 'inserting licenses to discriminate into the bill will not be tolerated.'"  And one of the legislative sponsors of the bill said he would go no further than including in the bill language that only confirms religious freedom protections already in the Michigan law and constitution! 

 

When religious individuals and institutions are permitted to live by their religious convictions, that's not giving anyone a "license to discriminate."  It is just putting into practice governmental rules that respect the diverse convictions of the citizens. 

According to the California State University system, a student can be a perfectly suitable leader for a student club whether or not she or he agrees with the mission and values of the club (except that sex "discrimination" is OK in the cases of sorority and fraternity leadership and membership).  InterVarsity Christian Fellowship tried for a year to get the Cal State system to accept that it is legitimate and necessary for the IV student clubs on the 19 system campuses to require leaders to be faithful in belief and conduct to the clubs evangelical Christian convictions.  But the state university system said "No."  Leadership in student clubs has to be open to all students.  Clubs that don't formally agree to this bizarre requirement cannot be recognized as official student clubs, so are ineligible for free meeting space and cannot recruit at student activities fairs. 

 

Unfortunately, the US Supreme Court has already upheld as constitutional such "all comers" policies applied to student groups at public institutions (CLS v. Martinez, 2010). 

 

Harvey Silverglate, writing in the Wall Street Journal, rightly called that Supreme Court ruling "confused." As he says,

 

"The trouble with the 'all comers' approach: It is fine for some groups-the campus French club's mission isn't likely to be compromised by a sudden influx of anti-francophone zealots-but not for others.

 

"Given the heat that surrounds discussion of gay marriage and abortion, out-of-the-ordinary disruptive tactics-by either side against the other's organizations-are a realistic concern. This is one reason why in an earlier era beleaguered minority groups like the NAACP and gay-rights groups were most in need of, and usually received, official protection from those who would undermine them."

 

Where is the Supreme Court when its best action for freedom and justice is needed?

 

See also: 

 

Sara Eekoff Zylstra, "Will InterVarsity Losing Cal State Standoff Be Tipping Point for Campus Ministries Nationwide?" Christianity Today online, Sept. 8, 2014.  

 

Tish Harrison Warren, "The Wrong Kind of Christian: I thought a winsome faith would win Christians a place at Vanderbilt's Table - I was wrong."  Christianity Today, September 2014. 

In response to the effort by two Catholic universities to exclude coverage for elective abortions from their employee health plans, California officials have issued a ruling that California health insurance companies are not permitted to write health insurance plans that do not cover every legal abortion.  The only way around this mandatory coverage of all abortions is for an employer to self-insure. 

 

Oh, not quite.  There is an exemption.  But only "religious employers" are eligible for the exemption and to be a "religious employer" the organization must have as its purpose the "inculcation of religious values," it must employ persons primarily of the same religion, and it must primarily serve people of the same religion. 

 

Does that language ring a bell?  It was this same definition of a religious employer that the federal government devised when it issued the HHS contraceptives mandate.  As a spokeswoman for the US Catholic bishops noted at the time, under this definition, even Jesus could not get an exemption, for he served people without regard to their religion and he taught that his followers must also do so.  The federal government has been forced to expand the religious freedom protections it provides with respect to the contraceptives mandate, although it has resisted such expanded protections.  Unfortunately, the California Supreme Court upheld this very narrow religious exemption for the purposes of California law.

 

Because health insurance plans are also regulated by the federal government and federal law includes strong protections for organizations and persons who object to participating in abortions, a complaint about the California action has been filed with the federal HHS department by the Life Legal Defense Foundation and Alliance Defending Freedom, on behalf of the two Catholic universities.

Trinity Western University in British Columbia, a rare religious institution of higher education in Canada, is developing a Christian law school, which has met all official requirements to be organized and operational.  But law societies across Canada, which control admittance to the bar in their respective provinces, are taking votes to exclude graduates from the new law school from legal practice. 

 

Their objection?  TWU has a community covenant obligating students, faculty, and staff to abide by conservative Christian sexual morality-thus no approval of same-sex marriage, for example. The most recent vote to bar entrance to the provincial bar was by the New Brunswick law society.

 

See also the account of the vote from TWU.

Cardus Education Survey 2014 report, just released.  Cardus is a Canadian Christian think tank "dedicated to the renewal of North American social architecture."  This report is one of many publications and presentations resulting from a multi-year exploration of how schooling prepares students for their lives in society.

 

"The Cardus Education Survey 2014 report explores the impacts of various school sectors on the academic, vocational, social, and civic development of graduates, and finds that in many measures of cultural goods, private schools are as attentive to the public good as public schools.Common myths of isolationism and intolerance are challenged by these results from private school graduates.  Data are drawn from a representative sample of 1,500 American high school graduates between the ages of 24 and 39."

 

. . .

 

Jonathan Merritt, "Was Christianity Today justified in rejecting this controversial ad?" Religion News Service, Sept. 12, 2014.

 

"Were these publications justified in rejecting this advertisement [from Evangelicals for Marriage Equality]?

 

"The simple answer is 'yes.' And it has nothing to do with the truthfulness of the ad's message or the lack thereof. Rather, these are independent evangelical publications who hold to a particular view of marriage. They have audiences with expectations about what is and isn't consistent with a Christian worldview. And they should be free to only publish content that is consistent with both.

 

"One might think such an assertion is as clear as the nose on one's face. But it isn't. Several LGBT publications have reported on the rejection of this ad, and the EME website has devoted an entire webpage to the matter arguing that the situation illustrates 'an evangelical culture that's not currently conducive to frank conversations about a hot button topic like marriage equality.'"

 

See also the response from Evangelicals for Marriage Equality.

 

. . .

 

US Conference of Catholic Bishops, "Comment" on the proposed regulation redefining "spouse" for purposes of the Family and Medical Leave Act, August 11, 2014.

 

"The Department now proposes eliminating its longstanding place-of- residence rule and adopting instead a place-of-celebration rule. Under the proposed rule, the employer must look to the state in which the employee was married and determine whether under its laws the claimed marriage is valid. If an employee were married in a foreign country, then the employer would be required to look to the law of that country as long as the marriage would be recognized in the law of at least one of the 50 states, even if the employee has had no contact with that state. The Department describes the proposed rule as a response to United States v. Windsor, 133 S. Ct. 2675 (2013). The Department also cites the interest in reducing the administrative burden on employers as a reason for adopting a place-of-celebration rule. . . .

 

"The Department claims that its proposed definition of spouse will reduce the administrative burden on employers. We believe the rule will have precisely the opposite effect. Consider the case of a hypothetical mid-size employer with offices in Kansas City, Missouri. Its employees may reside in Missouri or across the river in Kansas. Under the current rule, implementation of spousal leave under FMLA is relatively simple: the employer need be familiar only with the marriage laws of Missouri and Kansas. Indeed, having decided to set up business operations in Missouri, it is not an unreasonable expectation that the employer will know the law there and in the contiguous jurisdictions where its employees reside. Under the proposed rule, however, the employer has the more complex task of determining the marriage law of any of 50 states or even a foreign country. In addition, the proposed rule widens the disparity between state and federal law requirements, which does little to decrease, but will only increase, the administrative burden on employers. An employee who could assert eligibility for unpaid FMLA leave under the proposed rule in circumstances involving a spouse might well be the very same employee who would be ineligible for unpaid spousal leave under state law. Of course, there is no requirement that federal and state law mirror each other, but the Department should be under no illusions that it is 'reducing' the administrative burden on employers by only widening the disparity between federal and state law when it comes to employer-provided leave or other benefits." 

Take a stand for religious freedom - DONATE to IRFA today!  IRFA depends on the support of donors like you.  You can make a tax deductible donation by clicking on the button below, or by sending your check (payable to "Center for Public Justice" and with "IRFA" in the memo line) to Center for Public Justice, PO Box 48368, Washington, DC 20002-0368.  Thank You!

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

 A division of the Center for Public Justice
1115 Massachusetts Avenue, NW