January 15, 2015 

How will the new, Republican-dominated, Congress treat institutional religious freedom?  Here are key issues of interest for the Institutional Religious Freedom Alliance (both related and different topics are on our Administration watch list):

 

Possible congressional oversight hearings:

 

* on the Administration's aggressive push to interpret protections against discrimination on the basis of sex, in Title VII (1964 Civil Rights Act) and elsewhere, as also forbidding gender identity discrimination;

 

* on implementation of the President's LGBT Executive Order for federal contractors:  will the Department of Labor honor the religious staffing exemption or instead interpret the new ban on sexual orientation and gender identity discrimination in a way that essentially nullifies that exemption?

 

* on the Administration's policy to require recognition of same-sex spouses and marriages in all federally funded programs that use the terms spouse, marriage, dependent, and family:  will this force the government's service partners in effect to accept marriage equivalence in programs dealing with adoption, marriage and fatherhood curricula, and the like?

 

Possible legislation:

 

* reauthorization of the Elementary and Secondary Education Act:  will it maintain the principle of equitable access to funding and services for faith-based (and other private) schools and their students? Will it preserve the law's section 9506, which protects private and faith-based schools, and home schooling, from inappropriate federal interference?

 

* reauthorization of the Runaway and Homeless Youth program:  ensure that any language to protect LGBT youth from discriminatory treatment does not wrongly impede participation by faith-based organizations that use faith standards in their employment and operations (the reauthorization bill proposed in the last Congress would have reduced faith-based participation not only in this program but broadly among programs operated by the Administration for Children and Families);

 

* passage of a bill like last Congress's HR 5285 to protect the faith-shaped child-serving practices of faith-based adoption/foster care agencies;

 

* passage of a bill like last Congress's HR 3133 to prevent adverse actions against organizations (and persons) because of their commitment to man-woman marriage;

 

* passage of a bill to modify the HHS contraceptives mandate to protect the religious freedom rights of employers and to undo the Administration's creation of a three-status framework for institutional religious freedom;

 

* passage of legislation to provide for equal access of religious student clubs, notwithstanding religious criteria for leaders, to the status of recognized student groups on public higher education campuses;

 

* maintain the strong provision in the Higher Education Act that accrediting agencies must respect a religious school's religious mission;
 

* deal productively with the likely LGBT civil rights act (the substitute for the failed Employment Nondiscrimination Act), ensuring robust protections for institutional religious freedom, appropriate to the various domains that would be covered, if Congress acts to prohibit sexual orientation and gender identity discrimination;

 

* ensure that any tax reform does not undermine charitable giving incentives or otherwise harm faith-based organizations (e.g., by redefining what qualifies as a charity).  

Newly installed Mayor Muriel Bowser has early opportunities to uphold, or constrict, institutional religious freedom within the District of Columbia.  In December, the DC City Council adopted two harmful bills.  One prohibits DC employers from discriminating against an employee on the basis of the employee's "reproductive health decision making," which could mean that, say, a Catholic school could not fire its principal who had an abortion and proclaimed her view that her action was perfectly acceptable.  The proposed law may also--in conflict with the federal "Weldon Amendment"--require the health plans of even pro-life advocacy groups to cover elective abortions.  

 

The other proposed law reverses the "Armstrong Amendment," which protects religious schools in the nation's capital from being required by government to promote or condone homosexual acts or beliefs.  Catholic University of America, among other religious educational institutions in the District of Columbia, is concerned that it may be forced to accept and even to fund student groups that advocate against the Catholic Church's position on LGBT conduct. 

 

If Mayor Bowser refuses to stand up for institutional religious freedom by vetoing the bills, Congress can step in:  Congress has significant control over the policies of the government of the District of Columbia.  But it shouldn't require special congressional action to protect the religious rights of DC organizations and residents.  And what's happening in DC ought to be of broad concern to religious communities in the United States.

 

Here's what Richard Ostling at the indispensable Get Religion journalism-monitoring website said:

 

"The D.C. Council's decisions are similar to initiatives elsewhere in a U.S. culture war that will grind away over the next decade or two.

 

"Beyond the news basics, in-depth coverage could ask the leaders of other religious groups - left and right - whether they support the Catholic religious liberty claims. If not, where would they draw the line against government demands that violate specific and longstanding religious tenets? [. . .]

 

"The current disputes usually involve the nation's two dominant religious communities, the Catholic Church and conservative-evangelical Protestantism. However, the modern gay-rights claims equally confront Eastern Orthodox Christianity, Islam, Mormonism and Orthodox Judaism. Abortion, if not contraception funding, upsets many.

 

"When can the state shape doctrine and the lives of believers who are trying, in voluntary associations, to follow the tenets of their faith? In far-fetched parallels to the D.C. feud, should politicians be free to mandate that Adventist schools operate on Saturdays, that Sikh schools forbid carrying of ceremonial daggers, or that Quaker or Mennonite or Buddhist schools provide military training?"

 

Excellent questions.

 

Further reading:

 

Sarah Torre, "D.C. Passes Bill That Could Force Pro-Life Organizations to Pay for Abortion Coverage," Daily Signal, Dec. 17, 2014.

 

Ryan Anderson, "Government Shouldn't Force Religious Schools to Violate Religious Beliefs," Daily Signal, January 8, 2015.

The National Labor Relations Board is charged by law with protecting the right of workers to collective bargaining and unionization.  It is required by the US Constitution, and by the Religious Freedom Restoration Act, to protect the freedom of religious organizations and persons to exercise their religion.  A unionized workforce has real power that it can deploy against the policies of an employer.  So what is the NLRB to do when employees of a religious employer seek to join a union?  If it protects the unionizing effort, it will be helping to erode the ability of the religious employer to determine and ensure that the organization follows its religious mission.  Of course, the workers may never act in such a way; nevertheless, the NLRB is required to stay away from policies and decisions that could erode the religious freedom of the religious organization. 

 

The NLRB accepts that constitutional limitation, or at least claims to. In practice, it seems determined to be as little restricted as it can get away with, even though various past pro-union/anti-religious employer decisions have been sharply rebuked by the courts, including the US Supreme Court.  The main battleground has been unionization efforts by faculty at religious higher education campuses.  The latest episode, and the latest mistaken NLRB decision, concerns an effort to unionize adjunct (not regular) faculty at Pacific Lutheran University (PLU).

 

In its December 16, 2014, decision, the NLRB ruled on two issues.  Much of the written decision is taken up with deciding how to determine which faculty are "managerial" and thus not eligible for unionization at all.  The other important issue concerned whether the NLRB could assert jurisdiction or instead must keep its hands off because PLU is a religious organization. 

 

The Board rightly ruled that there is abundant public evidence that PLU holds itself out as a religious university, backing away from flawed past efforts to discern whether particular universities or colleges are religious enough in the eyes of NLRB staff to be outside its jurisdiction.  But this welcome progress was immediately nullified by the Board's creation of a second level of inquiry:  whether (in the Board's view) particular faculty members are sufficiently central to the religious mission of the university to be treated as religious rather than secular. 

 

If some faculty at a religious university are selected and function no differently than faculty at a secular university are selected and function, then, according to the NLRB decision, it is allowed to reach into the religious university and assert its jurisdiction over those non-religious faculty, authorizing them to join a union if they so choose. 

 

And yet, as several amicus briefs, and the lengthy and powerful dissent by NLRB member Harry Johnson, point out, this kind of line-drawing is exactly what the US Supreme Court unanimously rejected in its 1987 decision, Corporation of the Presiding Bishop v. Amos.  That case concerned similar issues regarding employees and religious employers under Title VII of the 1964 Civil Rights Act.  

 

In 1972, Congress had modified the religious exemption of Title VII so that a religious employer is free to consider religion when choosing people for any and all staff positions.  A janitor who was fired for religious reasons by a Mormon health club challenged this modification:  how could his religion be relevant to being a janitor?  The Supreme Court took the other side:  it cannot be right for the government to force a religious employer to guess whether a judge will agree with the employer's classification of one job position or another as religious. 

 

By exempting the entire religious organization from the prohibition against considering religion when staffing, the Title VII exemption keeps the government out of the internal decisions of religious employers and prevents the government from creating a concept of religion to apply when it examines the practices and beliefs of religious employers.  In sharp contrast, the NLRB has now gone the other direction:  by not exempting Pacific Lutheran University as a whole, even after conceding it is a religious university, the NLRB has forced itself to create its own concept of what is appropriate for a faculty member at a religious university-a concept that goes against what PLU itself believes, and which was thoroughly demolished in member Johnson's dissent. 

 

Time for the federal courts to overrule the NLRB yet again.

The State of Ohio is running a grant competition to enlist school districts, businesses, and faith-based and secular community organizations to join together to recruit mentors and connect those mentors with school students who need positive role models that will "help motivate and inspire them, as well as help them develop skills that lead to success in school and the workplace."

 

What's not to like? Even the specific inclusion of churches and other faith-based organizations is to be praised:  these are stand-out elements in local communities and "mentor-rich" environments for recruitment, and trusted institutions in the lives of many of those students. 

 

But there is this one-big-flaw.  The application materials for this Community Connectors grant specifies as a mandatory partner for each grant application not only a school district and a business, but also a faith-based organization or a house of worship.  Applications that don't name a synagogue or church or religious charity are just disqualified. 

 

The intention is right, but the method is wrong.  Government grant programs cannot--constitutionally--require applicants to include a religious entity.  That's coerced religion, not good either for religion or government. 

 

The State of Ohio needs to redesign its program.  Make it clear that there is a level playing field:  faith-based organizations have an equal opportunity with secular groups to win a grant as part of a coalition of groups.  And make it clear, too, that successful applications will be broadly inclusive of the communities around the students who need mentors--i.e., not resolutely secular but instead dedicated to involving people and organizations of faith along with other people of good character and other values-strengthening organizations. 

Will Jeb Bush run to be the Republican's candidate for President in 2016?  And if he does, will he give the Republican party a different-kinder, gentler-stance on same-sex marriage?  The New York Times and the Washington Post, among others, have been busy speculating on how Bush's views on same-sex marriage may have evolved from his days as Governor of Florida.  His tone is different, to be sure.

 

But the more important issue is how Jeb Bush proposes to safeguard religious freedom in an era of same-sex marriage.  An attitude of respect for persons and couples that identify as gay or lesbian is not only politically wise but necessary for policy-making.  And yet policymakers and judges cannot abandon people and organizations that remain committed to man-woman marriage.  Religious exemptions are essential.  What will Jeb Bush's proposals be?

Trinity Western University, the evangelical institution in British Columbia, is in the process of creating a Christian law school.  The proposed law school won the needed approvals from various government agencies but then ran into a fierce storm of opposition from many of the provincial law societies-similar to bar associations in the United States-that are empowered to admit or reject lawyers to practice in their respective provinces.  For instance, the law society of Ontario, the most populous province, has said No to the future graduates. 

 

The law society for New Brunswick, in eastern Canada, last summer ruled in favor of TWU, but then decided to review its decision.  Just last week another vote was taken:  a 12-12 deadlock-which leaves intact the original approval. Well, that's better news than might have been!

 

* Krista Pikus (a former summer 2013 Blackstone Legal Intern at IRFA), "Quasi-Rights for Quasi-Religious Organizations:  A New Framework Resolving the Religious-Secular Dichotomy After Burwell v. Hobby Lobby," Case Comment, Notre Dame Law Review Online, vol. 90:1, 2014.  

 

"'Quasi-rights' for quasi-religious organizations would mean that the quasi-religious organizations would not qualify for all rights or benefits that fully religious organizations enjoy, such as tax exemption or permission to hire on a religious basis. Rather, they would qualify for those rights that logically and meaningfully connect to the religious convictions of their organization. Under the current religious-secular dichotomy, there is no ability to tailor the protections a 'religious' organization receives, creating some concern that organizations may enjoy a range of benefits they do not deserve. A quasi-rights framework alleviates that concern by restricting religious protections to those logically and meaningfully connected to the corporation's religious characteristics.

 

"A 'logical and meaningful connection' test also encourages consistency between an organization's words and actions. Requiring a colorable connection between an organization's religious mission and the exemption they wish to claim would encourage corporations to demonstrate through their business practices adherence to their mission statements. This would transform mission statements from mere 'window dressing' to guides of action. In essence, this is a litmus test seeking demonstrated commitment to professed beliefs."

 

* Brian Grim, "The link between economic and religious freedoms," World Economic Forum, Dec. 18, 2014. 

 

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