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Will the Senate replace a harmful nondiscrimination provision in the RHYA reauthorization bill?
(by Stanley Carlson Thies, IRFA Founder)
Update: The Senate Judiciary Committee did not take up S. 262 today, in part because of growing concerns about the nondiscrimination provision. But the bill is likely to be considered later. Religious freedom concerns will only be laid to rest when the current nondiscrimination provision is replaced by language that fully protects the legitimate views and actions of faith-based and other grantees, or is simply dropped.
The Senate Judiciary Committee will decide at a later date whether or not to accept the sweeping nondiscrimination provision that is part of S. 262, the bill to reauthorize the Runaway and Homeless Youth Act (RHYA). A significant proportion of homeless and runaway youth are LGBT, and if they suffer discriminatory treatment by RHYA grantees, a nondiscrimination provision may be an important reform to the program.
However, the nondiscrimination provision in the bill goes far beyond this. It would apply not just to this relatively small program but to nearly 80 programs, some of them very large, that are administered by HHS's Administration for Children and Families (ACF)-and this without any examination of whether those programs need a nondiscrimination provision! And instead of focusing on how grantees treat the youth who are eligible for RHYA services, the sweeping language would also forbid otherwise legal and proper operations and programs offered by the grantees, even when those operations and programs are entirely privately funded. The assumption seems to be that any organization that is not LGBT-affirming cannot be trusted to serve all youth with respect. And yet faith-based and other organizations routinely provide excellent services to beneficiaries who are very different than the organization's own staff.
The sweeping provision would also ban religious staffing by religious grantees-except that legal experts acknowledge that the Religious Freedom Restoration Act (RFRA), a two-decades old congressional law, would override that ban. Still, even with this RFRA protection, the proposed nondiscrimination requirement would put all of these religious ACF grantees in the same difficult position that the LGBT Executive Order for federal contractors has put religious contractors: unsure if their religious staffing practices will now be declared illegal as violating the new prohibitions on sexual orientation and gender identity discrimination.
IRFA has offered alternative language to Congress that would prohibit discrimination against beneficiaries without subjecting grantees to unneeded and harmful new restrictions. The language in the RHYA bill mirrors language that Congress adopted in 2013 when it reauthorized the Violence Against Women Act. That bill was adopted in haste, with little consideration of the collateral damage the nondiscrimination requirement would cause. This time the Senate and House have been alerted to the problems. What will they do?
InterVarsity, "ministerial" staff, and religious staffing in general
(by Chelsea Langston, IRFA Director of Membership and Equipping)
The Sixth Circuit Court of Appeals ruled on February 5, 2015, that InterVarsity Christian Fellowship could not be sued for firing a "ministerial employee," despite being accused of discriminatory treatment. A female spiritual director at InterVarsity was placed on paid leave in 2011 after telling her boss that she was contemplating divorcing her husband. When she did not reconcile with him, she was eventually fired. In 2013 she filed a lawsuit claiming sex discrimination in her termination, alleging that two male employees at InterVarsity in analogous circumstances had not been fired.
The appeals court decision in favor of InterVarsity is based on the precedent of the 2012 Hosanna-Tabor Supreme Court ruling. In this unanimous decision, the Supreme Court ruled that the First Amendment's religion clauses create a nearly absolute right for churches and similar religious organizations to select and fire their religious leaders without being subjected to nondiscrimination laws or second-guessing by the courts. In this case, the Supreme Court held that a school teacher with some religious duties in a church-related school was a ministerial employee and could not challenge the school's decision to fire her. The "ministerial exception" is a court-created right, based on the First Amendment.
Most employees of faith-based organizations are not "ministerial." Nevertheless, because of the religious-organization exemption in the 1964 Civil Rights Act's Title VII, which prohibits employment discrimination, a religious employer may consider religion when deciding who to hire and fire. That freedom to consider religion extends to decisions about any and all staff, CEO to janitor, but it does not justify job discrimination based on sex, race, age, or other characteristics.
The ministerial exception is far broader-a kind of super right that the courts have determined is required by the Constitution's protection of the freedom of religious organizations. It protects their choice of religious or ministerial leaders, notwithstanding limitations in nondiscrimination law. The only way to keep the government from wrongly second-guessing or steering those crucial leadership decisions is to insulate the decisions from government rules and court lawsuits.
In the InterVarsity case, the appeals court ruled that the decision to fire the employee could not be challenged under federal or state nondiscrimination laws because InterVarsity is a religious employer and the fired employee filled a "ministerial" role. As in the Hosanna-Tabor case, the court here found that although the employee did not have the formal title of "minister," her role was ministerial in fact and did not need to be labeled as such. In ringing terms, the Sixth Circuit court proclaimed that there is no instance in American history where the government required a religious organization to preserve in a ministerial position an employee that the organization no longer believed was appropriate for the tasks of ministry. Quite the opposite, the court said: "The historical practice has always been that the government cannot dictate to a religious organization who its spiritual leaders should be."
Further, the Six Circuit Court of Appeals held that the ministerial exception is so fundamental that it applies even if the religious organization has made no big deal about it. The InterVarsity decision is highly significant because it upholds the core principle that, in a pluralist society, it is not the role of government to select who may or may not serve as a minister or a religious leader for any faith. In a statement to Christianity Today, InterVarsity stated that the court's decision "confirms that distinctive legal identity of religious organizations consistently expressed in our country's history [...] We have a long track record of valuing the role of women and men in Christian ministry. In this situation, InterVarsity believes it made every effort to resolve differences in perspective with appropriate grace and respect."
While the religious employment decisions typically made by faith-based organizations are grounded in the religious-organization exemption of Title VII, and not in the court-created "ministerial exception" at stake in this InterVarsity case, every court decision that upholds the freedom of religious organizations to select their leaders based on their own criteria helps to strengthen the religious staffing rights of every faith-based organization.
Opportunity to comment: draft regulation on sex discrimination by federal contractors
(by Stanley Carlson Thies, IRFA Founder)
The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) is accepting comments through March 31, 2015, on draft regulations it has proposed for federal contractors to prohibit job discrimination on the basis of sex while promoting equal employment opportunities without regard to sex.
Does "Office of Federal Contract Compliance Programs" sound just a bit familiar? That's because this is the office charged with implementing President Obama's Executive Order last summer that for the first time prohibited job discrimination on the bases of sexual orientation and gender identity by federal contractors. Many faith-based organizations asked the president to exempt religious organizations from the new requirements; he did not, although he maintained the exemption in the federal contract rules that permits religious employers to consider religion when hiring and firing-creating great uncertainty about when a religious employer's decisions are (legally) a matter of considering religion and when they are (illegally) a matter of considering sexual orientation. Criticism of the religious organizations for seeking a religious exemption (like the exemption the Senate had passed just the previous year, with full Democratic support) has blown up even into a challenge to the accreditation of Gordon College, an evangelical college whose president signed one of the letters requesting religious freedom protections.
By contrast with the new prohibitions of the Executive Order, job discrimination on the basis of sex has long been forbidden in federal contracting. The new draft regulations are meant in part simply to update the current regulations. But they are also intended to fully apply to federal contracting an expansive newer conception of "employment discrimination on the basis of sex." Sex discrimination, according to DOL-following the Equal Employment Opportunity Commission and some court decisions-now forbids not only treating men and women differently, but also taking adverse action against a transgender person, a person transitioning from one gender to another, and a person who goes against sexual stereotypes "by being in a relationship with a person of the same sex." That is, forbidden discrimination on the basis of sex is now also to encompass in federal contracting discriminatory treatment on the basis of gender identity, transgender status, or even (same-sex) marital status. Or so go the draft regulations.
Nothing in the Notice of Proposed Rule Making about what the OFCCP will do about the predictable collision between the right of religious federal contractors to consider religion in making their employment decisions and the proposed enlarged definition of forbidden discrimination on the basis of sex.
Comments can be submitted through March 31.
RFRA, religious accommodations, and religious burdens
(by Stanley Carlson Thies, IRFA Founder)
Do religious accommodations, such as exemptions for religious organizations, impose an unconstitutional burden on people who have other religious or secular convictions? The question came up in the Hobby Lobby case, in which the religious owners of Hobby Lobby asserted the right not to include abortion-inducing drugs, devices, and procedures in their employee health plan . The US Supreme Court upheld the owners, holding that the government could ensure access by those employees to all of the FDA-approved contraceptives without forcing the Hobby Lobby owners to violate their religious convictions. But a chorus of critics claimed that the Court should have just said that it is a violation of the Establishment Clause of the First Amendment for the government to allow an employer's religious convictions to result in a diminished employee health plan, even though many of the employees might well approve of those very abortifacient drugs.
The argument came up again in an oversight hearing of the Constitution and Civil Justice subcommittee of the House Judiciary Committee on February 13, 2015. The topic was how the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) are achieving their goals to protect religious exercise under federal law (RFRA) and the religious rights of prisoners and the zoning rights of religious organizations under state and local law (RLUIPA). The Hobby Lobby case was based on RFRA. Testimony at the oversight hearing was offered by Lori Windham of the Becket Fund for Religious Liberty, Greg Baylor of Alliance Defending Freedom, Craig Parshall of the American Center for Law and Justice, and Nelson Tebbe of Brooklyn Law School. (Video and links to the written testimony here.)
Additional [testimony] ( the testimony has to be uploaded to the IRFA website) was submitted to the Committee by Carl Esbeck, a law professor at the University of Missouri at Columbia. His testimony was specifically about the religious burdens argument, which Professor Tebbe promoted in his testimony at the hearing.
Esbeck's testimony points out that it is not unconstitutional for an exemption to lift a burden that would otherwise fall on a religious organization due to a regulation such as the HHS contraceptives mandate. By lifting the burden, Congress is essentially leaving the religious organization alone-and leaving a religious organization alone does not equal "establishing" a religion.
Moreover, Esbeck points out, for a third-party burden to be a violation of the Establishment Clause, there has to be an actual burden. But there was not a "burden" in the case of Hobby Lobby. Before the contraceptive mandate, no employee had a right to the contraceptives. When, because of RFRA, Hobby Lobby was permitted to exclude (some) contraceptives from its employee health plan, what happened was not the imposition of a burden on the employees but only the lack of providing to them a new benefit.
A religious exemption that protects the religious freedom of religious organizations could impose harms on others such that the exemption is inappropriate. But that has been a rarity. Generally, religious exemptions are proper and necessary in our diverse society.
Public says religious businesses should not be forced to assist same-sex weddings
The January 2015, AP-GfK poll reported both expected and unexpected news about the public's views on same-sex marriage.
Expected news: More adults favor legalizing same-sex marriage in their state, although just barely (44% favor to 39% oppose).
Unexpected-and hardly reported-news:
* More people said yes (57%) than no (39%) to this question: "In states where same-sex couples can be married legally, do you think that wedding-related businesses with religious objections should be allowed to refuse service to same-sex couples, or not?"
* More people said yes (50%) than no (46%) to the idea that state and local officials who issue marriage licenses but who have religious objections to same-sex marriage should be exempt from having to issue those licenses.
Faith-based organizations seek government respect for religious conviction in serving unaccompanied refugee children
On Feb. 23, 2015, faith-based organizations, evangelical and Catholic, that provide a large proportion of refugee resettlement services in the United States sent a comment to the administration asking for a change in a new regulation about how unaccompanied refugee children needing resettlement are to be treated.
The comment, a response to an interim final rule from the HHS Office of Refugee Resettlement, says that the new regulation wrongly imposes requirements related to abortion and other matters of human sexuality that do not respect the religious convictions of some of the faith-based organizations that have long been the government's major resettlement partners. Modifications to the rule to accommodate those convictions are possible; not accommodating the faith-based organizations risks driving away organizations vital to resettlement.
Nondiscrimination law: protecting LGBT persons or advancing certain views on
human sexuality over others?
(by Stanley Carlson Thies, IRFA Founder)
In a recent article in the Gonzaga Law Review titled, "Religious Freedom and LGBT Rights: Trading Zero Sum Approaches for Careful Distinctions and Genuine Pluralism," IRFA ally Nathan Berkeley delves into religious freedom concerns regarding equal protection rights and nondiscrimination laws that include sexual orientation and gender identity as protected classes. To name just one recent example, Senate Bill 262 (Runaway and Homeless Youth and Trafficking Prevention Act) contains a provision that prohibits discrimination on the basis of actual or perceived gender identity and sexual orientation (among other classes) "in any program or activity funded in whole or in part under such Act, or funded with amounts appropriated for grants, cooperative agreements, or other assistance administered by the HHS Administration for Children and Families."
While the intent of these kinds of provisions is to protect persons who identify as lesbian, gay, bisexual, and/or transgender (LGBT) from maltreatment, numerous recent court and administrative cases highlight the reality that, as applied, state and federal nondiscrimination laws often do much more than protect individuals from discrimination based on their LGBT identity. They some times serve as vehicles to advance certain views on human sexuality over others.
But shouldn't U.S. law protect LGBT persons from discrimination like it does African Americans from racial discrimination and women from sex discrimination? Perhaps, and representatives from many sectors of our society (including religious people) should thoughtfully join deliberations on this question. But to assume that all discrimination presently categorized as sexual orientation discrimination is the same kind of act as discrimination based on race or sex is a profound error. Discrimination based on discrete, immutable attributes (like race or sex) and discrimination based on certain forms of sexual expression or closely associated events, symbols, or relationships are quite different-unfortunately, much of what passes for sexual orientation discrimination today looks very much like the latter and not at all like the former.
The tendency to conflate discrimination based on status and discrimination based on conduct when it comes to LGBT persons flows from the nature of sexual orientation and gender identity as concepts. Unfortunately, one will find no meaningful definitions of either term in federal or state statutes or regulations. The ambiguity that this glaring omission produces means that government officials determine what these terms mean for the purposes of law when the times comes to adjudicate real cases. But what definitions are they relying on? This is where the real confusion begins and where the real danger emerges for safeguarding institutional religious freedom in the context of LGBT rights.
Inherent to LGBT identities (i.e., identities rooted in sexual orientation and/or gender identity) are exercises of human choice and behavior, both of which are absent in other protected classes like race or sex. This is not to deny that many gays and lesbians experience their sexual orientation as a given attribute to which they are simply responding, but how they respond is not given, as the witness of religious people who identify as both gay and celibate demonstrates.
The following hypothetical cases will help illustrate the distinctions being made here. To begin, let's assume for each case below that the lesbian or gay identity of the client, patient, or applicant was fully transparent to everyone involved.
Case 1
A) Suppose a small photography studio received a request from a gay couple to cover their upcoming commitment ceremony. B) Suppose instead that same couple asked the photography studio to take photographs of their home for posting on a real-estate website as they prepare to sell the property.
Case 2
A) Suppose a counselor affiliated with a couples therapy practice was contacted by a lesbian couple in their attempt to resolve ongoing relationship struggles, including struggles over certain aspects of their sexual relationship. B) Suppose instead that same counselor was contacted by one of the partners of that couple, and she wanted to discuss ways to overcome her persistent anxiety at work.
Case 3
A) Suppose a faith-based social service organization encountered a gay applicant for a job opening who was unwilling to affirm the organization's employee conduct code that identifies husband-wife marriage as the only acceptable context for sexual expression. B) Suppose that same organization encountered an applicant who disclosed at one point his enduring experience of same-sex attraction, but this time the applicant fully affirmed the organization's employee conduct code.
Now, suppose that in each set of hypothetical cases, the organizations in both scenarios claimed to deny the service or employment opportunity based on their religious views on human sexuality. Is such a claim equally valid within each case across the two scenarios? Couldn't the acts of discrimination in each Scenario A be understood as based upon grounds other than the client's, patient's, or applicant's sexual orientation? Indeed, they could. To the contrary, the discrimination in each Scenario B case would have a much more difficult (if not impossible) time finding refuge in this understanding. The Scenario B discrimination is more analogous to racial discrimination and therefore should be more vulnerable to the charge of unlawful discrimination. The argument here is that the law can draw a workable line between the disparate kinds of discrimination represented across these two scenarios in each case. In the LGBT rights context, institutional religious freedom protections should largely insulate Scenario A-type discrimination from charges of unlawful discrimination while Scenario B-type discrimination should remain much more vulnerable to such charges.
To reiterate, when a faith-based organization's denial of a good, service, employment opportunity, or membership status to an LGBT person can be directly and identifiably linked to its convictions about marriage and sexual conduct, it may be legitimately upholding the organization's religious convictions in that act of discrimination (not to be confused with wrongful discrimination based on an individual's status). The focus here is on organizational decisions that deny something to someone when to do otherwise would clearly violate the organization's religiously-based views on these matters. When faith-based organizations are forbidden to remain true to their convictions by the application of a nondiscrimination law, in effect that law is demanding that they instead accept a different view about marriage and sexual conduct. But the law is supposed to protect conscience and religious convictions, not impose a government-mandated moral code on everyone and every organization.
Various small businesses, adoption agencies, religious colleges, and others have in fact been put under pressure to act as if the government-favored view is true, instead of their own convictions. That's what happens when government and the courts regard as protected the behavioral dimension of sexual orientation and gender identity, as opposed to focusing protections exclusively on a status or identity associated with these classes. And yet, fortunately, the law's understanding of these matters is not finally settled. That means that nondiscrimination law remains deeply unstable and needs to be further informed by a broad range of interested stakeholders.
Religious freedom advocates should actively call for, and carefully contribute to, greater clarity where these gaps in the law's basic meaning persist. Achieving greater definitional clarity on sexual orientation and gender identity holds the potential to be an important ingredient to enhance protections for religious freedom while also extending appropriate protections for LGBT persons. These efforts would also complement other key religious freedom priorities in the area of establishing and/or maintaining legal exemptions and accommodations for religious organizations.
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