February 6, 2015

In This Issue

Breakthrough Mormon Church Position on Religious Freedom and LGBT Protections

Canadian Christian Law School Wins Important Legal Victory

Left and Right Agree: Feds Need to Clarify Speech Rights of Churches and Nonprofits

Worth Reading

Breakthrough Mormon Church Position on Religious Freedom and LGBT Protections

The Church of Latter Day Saints (LDS, Mormons) has set forth a bold and unique position in our society's ongoing and inflamed contest between LGBT protections and religious freedom. In a press conference on January 27, LDS leaders made five key points:

* Living together. As citizens together in a single nation, even though various groups differ deeply on very consequential matters, we must work to create a system of laws and ways of relating in which everyone is treated with respect. We must craft fair arrangements that "affirm the rights for some without taking away from the rights of others."

* Sticking to convictions. In working for respect for all, the LDS Church need not and has not changed its conviction that "sexual relations other than between a man and a woman who are married are contrary to the laws of God."

* Securing LGBT protections. The laws of the land must ensure that LGBT people are protected from discrimination and are treated fairly in employment, housing, and public accommodations.

* Securing religious freedom. The laws of the land must at the same time protect the religious freedom of people and organizations that maintain conservative moral values.

* Extending an olive branch. Working out laws and arrangements that are respectful all around and that can be regarded as acceptable to the contending parties requires a prior commitment to mutual respect and thus the willingness to reach out toward those who may seem unalterable opponents.

The LDS leaders spoke out for respectful treatment of LGBT people not because the LDS Church has changed its views about marriage and sexual relations. Their reason instead is that citizens owe each other safety and basic rights even when we disagree deeply about important matters and even remain convinced that others are going in the wrong direction. It is a plea not for ignoring serious differences but for working out how to live together despite-with-those differences, even as we continue to seek to persuade those on the other side that our position is the better one.

What mutual respect entails is no simple matter, as the LDS leaders stressed. They note the LGBT movement is the outcome of "centuries of ridicule, persecution and even violence against homosexuals," and they affirm the legitimacy of the demand that "such basic human rights as securing a job or a place to live should not depend on a person's sexual orientation." Yet these rights should not be secured at the expense of religious freedom. "When religious people are publicly intimidated, retaliated against, forced from employment, or made to suffer personal loss because they have raised their voice in the public square, donated to a cause or participated in an election, our democracy is the loser. Such tactics are every bit as wrong as denying access to employment, housing or public services because of race or gender."

What's needed? LGBT people need stronger protections: local, state, and federal governments should act to "protect[] the rights of our LGBT citizens in such areas as housing, employment and public accommodation in hotels, restaurants and transportation-protections which are not available in many parts of the country." When such changes are made, religious groups also require protection: the ability of churches and other religious organizations to follow their convictions, the ability of individuals of faith to live and work in accordance with their convictions-e.g., for an LDS doctor not to perform abortions and not to assist with artificial insemination for a lesbian couple.

To move ahead instead of remaining stuck in conflict and suspicion requires "understanding and goodwill, including some give and take." "We must find ways to show respect for others whose beliefs, values and behaviors differ from ours while never being forced to deny or abandon our own beliefs, values and behaviors in the process."

A tall order. Yet it is the challenge before us. There is every reason for skepticism and worry on both sides. Yet a zero-sum conflict is harmful for all. Steps toward mutual respect are vital. Thanks to the LDS Church for taking a major step on the path forward.

See also:

Jonathan Rauch, "Gays should welcome this move by Mormons," NY Daily News, Jan. 30, 2015.

Canadian Christian Law School Wins Important Legal Victory

In a very significant decision, the Supreme Court of the province of Nova Scotia ruled against the effort of the bar association of that province to force Trinity Western University's proposed Christian law school to abandon the community covenant that requires students, faculty, and staff to reserve sex for man-woman marriage. Trinity Western had to go to court a dozen years ago to vindicate the right of its teacher graduates to teach in British Columbia public schools, against the suspicion that they would necessarily be homophobic.

In the latest challenge, while the responsible government authorities have signed off on the creation of this unique Christian law school for Canada, several provisional law societies (similar to our state bar associations) have said they would not admit to practice graduates of the allegedly "bigoted" new law school. In the case of Nova Scotia, whose law society and legal community, according to the N.S. Supreme Court decision, actually does have a history of discrimination, the claim was not that TWU law grads must necessarily be biased but rather that the N.S. law society would send a signal of inadequate concern to quash bigotry if it simply accepted TWU law degrees.

The N.S. Supreme Court decision says that the N.S. law society overstepped its bounds in trying to use its authoritative role in admitting law graduates to the provincial bar as a lever to force TWU, a private religious institution, to abandon an internal practice that is perfectly legal. Furthermore, the decision says, in making such an effort the law society simply disregarded the vital religious freedom interests at stake.

Respect for religious freedom requires secular people and entities to put up with values and behaviors they may find incomprehensible and even reprehensible. Respect for freedom requires authorities clothed with public power not to misuse their power to reach into private organizations to compel those organizations to conduct themselves the way the public authorities may prefer.

Judge Jamie Campbell, writing for the N.S. Supreme Court, noted that there was no finding that TWU graduates, or graduates of the TWU law school, were or were likely to be biased against LGBT people. TWU law graduates, just the same as every other law student and graduate, will be bound by professional norms that require fair and respectful treatment of all.

A key observation of the court was that: "Private religious schools are not limited to training members of the clergy, theologians, missionaries, or those who want professional degrees but do not want to practice (italics added). Private religious schools, if they come up to the relevant educational standards, produce graduates fit not just for religious careers, but for any other career in the society." It is not acceptable for an accrediting or licensing authority, such as the N.S. law society, to obstruct this calling to prepare religious people for careers in society by refusing to extend to the graduates the professional license a career requires, even if the licensing or accrediting agency disapproves of the values of the graduate and the school.

Left and Right Agree: Feds Need to Clarify Speech Rights of Churches and Nonprofits

Wise or not, should it be legal for pastors to preach from the pulpit for and against candidates for public office? When may a 501(c)(3) nonprofit speak up about issues being contested in an election, about candidates for office, about bills being crafted and debated in a legislature? These are questions created because IRS rules governing these activities are unclear and unevenly enforced.

In a rare Washington DC event, a diverse set of organizations held a press conference on January 29 to call for greater clarity. The Evangelical Council for Financial Accountability (ECFA), taking on a challenge from Sen. Charles Grassley (R-Iowa) has taken the lead to probe this and other issues of nonprofit and church regulation. ECFA was joined in this press conference by the Center for American Progress, Public Citizen, and Alliance Defending Freedom.

As Alex DeMots of the Center for American Progress said: "It's just bad public policy for a small charity or church or community organization to have to hire a lawyer to figure out what it can and can't do."

Worth Reading:

Eugene Volokh, "A brief political history of religious exemptions," The Volokh Conspiracy, Jan. 21, 2015.

"To begin with, religious exemptions date back to the Revolution and even the colonial era, because America has always been committed to certain kinds of multiculturalism. Americans in many colonies quickly realized that America was becoming populated with immigrants of many different religious groups, and that it was important to find a way for them to live together in peace." [...]

"[O]nly in recent years has the opposition to religious exemptions - not just individual exemptions in individual cases, but to having RFRA-like regimes altogether - become somewhat more a liberal matter than a conservative one."

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