October 24, 2014

October 27 is the deadline to comment on the proposed second "accommodation" option for non-exempt religious nonprofits that have religious concerns about the HHS contraceptives mandate.  

 

The first option requires the organization to file form EBSA Form 700. Wheaton College, among others, has protested to the courts that this requirement does not honor its religious freedom concerns at all. Here's how it works: the religious nonprofit must use the form to inform its health insurer (or Third Party Administrator) of its religious objection to including some or all of the mandated contraceptives and abortifacients in its employee (or employee and student) health plan, which in turn obligates the insurer (or TPA) both to exclude those items from the plan and to approach all of the women employees (or employees and students) to assure them that the insurer (or TPA) will, after all, provide no-cost coverage of exactly those same contraceptives and abortifacients.

 

The US Supreme Court agreed with Wheaton College that this was hardly an adequate response to its religious freedom concerns. So HHS has now proposed a second accommodation method. According to accommodation option 2, rather than submit Form 700 to the insurer or TPA, thereby triggering provision of the coverage to which the religious employer has a religious objection, the religious nonprofit will send a form to the Department of Health and Human Services, telling the government about its religious objections and naming the contraceptives and abortifacients that must be excluded. The religious employer is then free to buy employee insurance that excludes those drugs and devices. But there is more. The employer has to tell the government not only about its religious objection; it must also give the government the name and contact information of the insurer or TPA-so that the government can tell that insurer or TPA that it must approach the employees (or employees and students) and provide exactly the coverage that the religious employer sought to exclude.

 

A distinction without a difference? Your chance to tell the Administration what you think about this option 2 expires at the end of Monday, October 27. Go to www.regulations.gov before then to submit your comments.

 

See also: Comment by the US Conference of Catholic Bishops, October 8, 2014.

The federal Office of Information and Regulatory Affairs (OIRA) is now reviewing regulations proposed by the Department of Labor in response to President Obama's July 21 Executive Order prohibiting sexual-orientation and gender-identity employment discrimination by federal contractors and their subcontractors and vendors. The draft final regulations--not a "proposed rule" with opportunity for public comment--apparently simply add to the employment nondiscrimination section of federal contract regulations the two new protected classes. But if that is all the regulations are, there will be no regulatory guidance on how the new prohibitions affect the religious-staffing exemption that is already in the regulations.

 

Recall: before the President issued his promised Executive Order to modify previous Executive Orders that apply to federal contracting, many leaders of faith-based organizations asked that a religious organization exemption be included, such as the exemption in the Employment Nondiscrimination Act bill adopted a year ago by the Senate (but not acted on by the House). With such an exemption, religious organizations would continue to be free under federal contracting rules to consider religion when hiring, and continue to be free to maintain a sexual conduct standard for employees. Without such an exemption, it is be less clear how the freedom to consider religion in employment decisions will be changed by the new requirement that federal contractors and their subcontractors and vendors not discriminate on the bases of sexual orientation and gender identity.

 

The Executive Order 13672 does not resolve the question: it did not include a new religious organization exemption, but also did not remove the existing religious staffing exemption. Well, then, if a religious organization that is a federal contractor, subcontractor, or vendor does not screen out potential new employees based on sexual orientation and yet maintains an employee conduct standard that restricts sexual activity to man-woman marriage, is it exercising its legal right to consider religion in its employment decisions or, instead, violating the new nondiscrimination requirements? (For an extensive discussion of the issues, see the series of posts for the Cornerstone blog.)  

 

The Department of Labor's Office of Federal Contract Compliance Programs was given 90 days to propose regulations to implement President Obama's change of the federal contract rules. Rather than issue proposed regulations and solicit comment, it submitted final regulations--no commenting and no changes--for a technical review by OIRA, which considers items such as whether or not the regulations have a significant negative economic impact, require too much paperwork, etc. How is this possible? Since the draft final regulations only write in regulatory format the changes required by the Executive Order, there is nothing DOL can change and thus no reason to solicit comments-and therefore no clarification of the critical question.

 

Federal officials say that once OIRA approves the minimal regulations, the Department of Labor will specify that the changes will not come into effect for a further 120 days, and during that period will solicit questions and commentary from employers and others interested in the changes. Presumably, depending on the questions and the commentary, the Department and its federal contract compliance office might develop internal guidance to assist its officials, and write FAQs or other materials to guide faith-based organizations that need to know how the changes will affect their eligibility to participate in federal contracting.

 

IRFA is clear on items that the DOL should consider during that period:

• Federal officials are much more familiar with rules prohibiting employers from discriminating on various bases than with the freedom religious employers have to consider religion in employment decisions. In light of this, a significant training program ought to be developed for contract officials.
• When it comes to "ministerial" employees, the US Supreme Court has unanimously ruled that nondiscrimination prohibitions do not apply (Hosanna-Tabor v. EEOC, 2012). The Administration had argued the contrary position. Federal officials need specific training.
• Respecting court decisions, the DOL should develop guidance clarifying that the religious staffing freedom is a broad freedom: religious organizations that select employees based on religion and that, pursuant to those religious reasons, maintain an employee sexual conduct code, cannot be charged with sexual orientation or gender identity discrimination or be excluded from federal contracting.
• The DOL should provide training to contract officials on the application to federal contracting of the robust protections provided by the Religious Freedom Restoration Act.
• The DOL should develop a set of FAQs that make it clear to faith-based organizations and to federal officials that religious organizations can participate in federal contracting without giving up their consideration of religion in employment decisions and without abandoning their religiously based employee sexual conduct code.

Earlier this month, by choosing not to act--thus letting stand the decisions of various federal appeals courts--the US Supreme Court in effect legalized same-sex marriage in 11 additional states, bringing the total to 30. Advocates of such marriages celebrated. Defenders of the historic definition of marriage were puzzled and very disappointed by the Court's inaction.

 

Neither side pointed out that when same-sex marriage arrives by judicial decisions (and non-decisions), it hardly institutes marriage "equality." Instead, such judicial action creates a legal environment and climate of opinion in which proponents of same-sex marriage triumph over those who are convinced that marriage can only be a union of one man and one woman.

 

How so? When the official definition of marriage is changed to include same-sex couples along with opposite-sex couples, the governmental demand that persons and organizations not discriminate in employment, housing, the provision of services, the renting of wedding facilities, the placement of children needing adoptive or foster parents, etc., results in requiring persons and organizations to act as if marriage really does extend to same-sex couples, despite their deep convictions to the contrary. Although these persons and organizations desire to remain true to their convictions, they may well find themselves faced with the choice of either abandoning a service to which they have been dedicated for decades (e.g., adoptions) or changing what they were convinced was right (e.g., placing kids only with opposite-sex married couples).

 

This isn't marriage equality, but marriage inequality. Those convinced that marriage includes same-sex as well as opposite-sex couples will serve both kinds of couples without any conscience concerns; those convinced that marriage still is what it has been for millennia will discover that they can no longer act in harmony with that conviction but now must, in effect, change their view of marriage.

 

There is a solution, though both proponents of same-sex marriage and proponents of opposite-sex marriage are reluctant to admit it and work for it: adopting robust religious exemptions at the same time as same-sex marriage.  

A true marriage equality law will protect religious persons and institutions from being forced to celebrate or assist in celebrating as marriage a relationship they are sure is not a marriage. For example, there would be no right to refuse to serve gay customers but also no obligation as a wedding planner to help the same-sex couple with its ceremony and reception. Such a law will also protect religious persons and institutions from being forced to treat as a marriage a relationship they are sure is not a marriage, for example no right to prevent a same-sex couple from adopting a child, but also no obligation as a faith-based adoption agency to place a child with such a couple.

 

There is a ready-made template for how states can promote and protect the rights both of those who believe in same-sex marriage and those who do not. It has been proposed to various governors and state legislatures by a blue-ribbon group of constitutional law experts, some of who are proponents of same-sex marriage and others who are not. Check it out, for example, in this memo that they wrote to a committee of the Hawaii legislature. This is a way to create a respectful public square.

 

To-date, no state has adopted all of the needed protections and most states have adopted only a few.  Proponents of same-sex marriage, in the main, seem quite content to impose their views on those committed to historic marriage. Proponents of historic marriage, in the main, fight to keep their definition the only legal one for the whole state, regarding the creation of exemptions to be a strategy for losers.

 

Worse yet: when judges dictate that a state must redefine marriage to include same-sex couples, they need not, and do not, pay any attention whatsoever to the religious freedom consequences and the religious exemption solutions. They simply rule that, henceforth, same-sex couples may marry just as opposite-sex couples may-and if the state's nondiscrimination requirements will now force those committed to historic marriage to have to act as if same-sex marriages are no different than opposite-sex marriages: tough luck.

 

Defenders of historic marriage, proponents of religious freedom, and advocates of fair treatment for everyone can go to court to seek protection for persons and organizations committed to historic marriage, and may win some protection. They can go to the legislature and ask it to create some protections. That might happen. Far better, though, for legislatures to build robust religious freedom protections right into marriage redefinition laws-and not to let the courts dictate marriage redefinition.

 

Further reading:

 

Douglas Laycock and Thomas Berg, "Protecting Same-Sex Marriage and Religious Liberty," Virginia Law Review, 99:1 (2013).  

 

Robin Fretwell Wilson, "The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State," Boston College Law Review, 53:1417 (2012).

 

Thomas Messner, "Same-Sex Marriage and Threats to Religious Freedom: How Nondiscrimination Laws Factor In," Heritage Foundation Backgrounder, no. 2589 (July 29, 2011).

It seems that various federal departments are working on draft regulations to implement the President's November, 2010, Executive Order 13559, Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations. Not a moment too soon. The Executive Order specified the creation of a Working Group to evaluate existing faith-based regulations and propose any needed changes, with a report due in 120 days, sometime early in 2011. The Working Group's recommendations were finally issued in April, 2012. Since then the Working Group has labored on guidance to various federal departments to help them evaluate their existing "equal treatment regulations" that were adopted during the Bush administration and to draft revised regulations where needed.

 

Apparently those revised regulations are now, at long last, being drafted. When published, there will be an opportunity for public comment before final regulations are promulgated.

 

Likely topics of the proposed revisions: (1) definitions of activities and items that are "explicitly religious" and thus cannot be funded with federal grant dollars; (2) how grantees and government agencies must implement a requirement that a person assigned to a faith-based provider for services may request an alternative provider; and (3) what the difference is between a service that receives "direct" federal funds vs. one that receives "indirect" federal funds.

 

Re (1): the existing regulations say that "inherently" religious activities and items cannot be funded by government grant funds. The Administration is convinced that the term "explicitly religious" is clearer, and the draft regulations may offer some examples. For instance, it is already clear that grant funds cannot be used to pay for Bibles nor for staff time spent leading people in prayer. It is not so clear whether grant funds may be used to pay for a study guide on drug addiction that discusses the views of different religious traditions on addiction and that advises addicts who are religious believers to ask their clergy for help in wrestling with the addiction. Greater clarity will be good.

 

Re (2): two federal programs already provide a guaranteed alternative, thanks to the Charitable Choice provision in their laws: TANF, the main welfare program, and SAMHSA drug treatment services. The Administration is extending the alternative to all federally funded services. But how is it to be implemented? How will a faith-based organization know what other programs are available and have open slots? What if there is no alternative? Will this requirement encourage government officials to steer grants to secular rather than faith-based organizations, in order to avoid the complication of alternative providers and assisting with referrals?

 

Re (3): When federal funding is "indirect" rather than "direct," then, according to the US Supreme Court (Zelman v. Simmons-Harris, 2002), the organization providing the services may weave religious elements into the government-funded services, such as a drug-treatment program or pre-K education program. That's because, with "indirect" funding, the government in effect gives the money to the individual beneficiary and lets the individual beneficiary choose which provider they wish to receive the needed service from. If the service that the government funds as a result of that choice includes "inherently" or "explicitly" religious activities, that's the outcome of the (legitimate) choice of the individual beneficiary rather than the result of an (unconstitutional) choice by a government official. But for this to work, the beneficiary has to be able to select a secular provider and not just choose among religious providers. Or so it seems. The new definitions are intended to clarify the conditions under which federal funding can be understood to be "indirect" rather than "direct."

 

Clarity in these matters will be useful. And the process of multiple departments proposing amendments to the regulations, evaluating the comments that are received, and then settling on and publicizing final regulations will very helpfully bring again to the attention of both outside organizations and federal (and state and local) officials just what the freedoms and limitations are when faith-based organizations seek and are awarded government funds to provide services.

On October 4, Sen. Orrin Hatch (R-UT), the outstanding champion of religious freedom in the US Senate these days, delivered a thoughtful and thought-provoking speech on religious freedom. He spoke about religious freedom challenges and constructive responses. The speech deserves wide consideration. Particularly noteworthy is the discussion of how some current efforts to stamp out discrimination are wrongly pursued without regard to their encroachment on religious freedom, the tale of how the nearly unanimous support for the Religious Freedom Restoration Act has lately dramatically shrunk, and the importance of the religious organization exemption in the ENDA bill that the Senate passed last year.

 

Also worthy of special note are Sen. Hatch's suggestions about how to protect and enlarge religious freedom. He cites Prof. Tom Berg's observation that religious freedom must be not only a constitutional principle but a social reality. Knowing the constitutional status of religious freedom is important, but for the long run and in the present, what is vital is the social reality and social practice of religious freedom.

 

That means, among other things, that we should all stand up for the rights of all people and organizations to bring our religious convictions with us into public debates about important matters, that we must defend the right of religious student groups to use religious criteria in selecting their leaders, that we should applaud partnerships between government and faith-based services, that we must highlight the good that religion and religious organizations do in our nation and the world, and that "we must affirm our own individual faith and devotion." "By demonstrating that religion is important to our own self-identity and desire to serve, we show our community members that religion is a thing of value and source of motivation." "There can be no greater protector of religious liberty," Sen. Hatch points out, "than a society composed of individuals who actually value religion."

John Inazu, "Religious Freedom vs. LGBT Rights? It's More Complicated," Christianity Today, July 2014.  

 

"If I am correct about [my] three predictions, then arguments rooted in religious exceptionalism will see diminishing returns. There is, however, a different argument that appeals to a different set of values. It's the argument of pluralism: the idea that, in a society that lacks a shared vision of a deeply held common good, we can and must live with deep difference among groups and their beliefs, values, and identities. The pluralist argument is not clothed in the language of religious liberty, but it extends to religious groups and institutions. And Christians who take it seriously can model it not only for their own interests but also on behalf of their friends and neighbors."

 

. . .  

 

 

* John Inazu, "5 Guidelines for Living in a Pluralist Society," Christianity Today, October 2014.

 

"Some of us might learn from those who have long lived in cultural disfavor. One obvious resource is the black church, which can speak to historical and contextual differences between LGBT rights today and African American rights in the Jim Crow South in ways that the white church cannot. And if those distinctions fail to persuade a broader public, the black church can teach us what it looks like to live outside the mainstream of cultural acceptance. While we learn from our black brothers and sisters, we need to continue addressing the deep differences across racial and class lines within the church."

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