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Will the Supreme Court lift the contraceptives mandate from religious nonprofits?
On March 9, 2015, the US Supreme Court told the Seventh Circuit Court of Appeals (Chicago) to review its ruling denying the University of Notre Dame's request for an injunction against the HHS contraceptives mandate. A lower federal court had earlier denied Notre Dame's claim that the "accommodations" provided to religious nonprofits violate its religious freedom rights. The Seventh Circuit had upheld that denial. But now the Supreme Court has told the Seventh Circuit court that it must review its denial in light of the Supreme Court's Hobby Lobby decision.
Notre Dame-and many other religious nonprofits-have argued that the two versions of the "accommodation" are unacceptable. They do not exempt the religious organizations from the mandate to provide all legal contraceptives but instead only shift the obligation and costs of providing the birth control to whichever insurance company or third-party administrator the nonprofit utilizes. The federal government had provided neither an exemption nor an accommodation to for-profit companies, and yet, in its Hobby Lobby decision in June, 2014, the Supreme Court ruled that closely-held for-profit companies can opt out of the mandate for religious reasons. Expanded access to birth control has to be provided in some way other than compelling companies like Hobby Lobby to include the drugs and procedures.
Does the March 9th Supreme Court remand of the Notre Dame case back to the Seventh Circuit appeals court hint that a majority of the Court will rule in favor of religious employers when it finally accepts a case from a religious nonprofit with a religious objection to the mandate? Mark
Rienzi, Senior Counsel for the Becket Fund for Religious Liberty, stated, "[T]his is a strong signal that the Supreme Court will ultimately reject the government's narrow view of religious liberty. The government fought hard to prevent this GVR, but the Supreme Court rejected their arguments." (In a GVR, the Supreme Court takes up an appeal from a federal appeals court decision, cancels the decision, and instructs the court to consider the matter again.)
However, Douglas Laycock, religious freedom expert at the University of Virginia Law School, is not convinced that the Court has signaled a positive future ruling. He says, "The nonprofits may eventually win or lose, but today's order implies nothing about the merits. Whenever they have a cert petition that is in any way connected to a recent decision, it is routine to grant the petition, vacate the judgment, and remand for further consideration in light of the new decision."
So no one knows for sure what the Court's decision to remand the Notre Dame case might portend. Religious freedom scholars disagree. But we do know that five Justices surprised many experts last summer by ruling that closely-held businesses have religious freedom rights. We may fairly suspect that when the Court takes up a religious nonprofit case, it may rule that these employers, too, have more extensive religious freedom rights than many experts, and the federal government, have conceded.
Possible restriction of FBOs from federal grant programs far from resolved
A Senate bill with a very problematic nondiscrimination clause (S. 262, Runaway and Homeless Youth and Trafficking Prevention Act, chief sponsor Sen. Leahy) is stalled for now. The bill is to reauthorize the federal program to help runaway and homeless youth, many of whom are LGBT. But the clause presumes that private organizations that are not LGBT-affirming and that maintain voluntary religious activities cannot be trusted to serve all youth with respect, it undermines the religious staffing freedom, and it would apply far beyond this one program to every grant program operated by the large HHS Administration for Children and Families.
Sponsors of the youth bill and the clause hoped to attach the bill to Sen. Cornyn's (R-TX) sex trafficking bill in the Senate Judiciary Committee on Feb. 26, 2015, but encountered opposition due to the nondiscrimination clause and concerns about abortion funding. Plan B was to have the bill amended into Sen. Cornyn's bill in action on the Senate floor-however, no Senate votes on the Cornyn bill have been possible because of a very heated fight between Democrats and Republicans about the ban on abortion funding in the trafficking bill. It is not clear when this fight might be resolved. Nor is it clear what the Senate might then do about the effort to amend into the Cornyn bill the other bill with its harmful nondiscrimination clause.
There is reason to be concerned: the same language was put into the Violence Against Women Act when it was reauthorized in 2013, and concerns raised then about the negative consequences of the clause for participation by faith-based organizations were swept away as Republicans joined Democrats in voting for VAWA lest they be tarred again as being anti-woman. Activist organizations that want broad nondiscrimination clauses put into federal grant laws, and that so far have not been concerned that their language will harm faith-based participation, are not going to be deterred by temporary roadblocks.
In the meantime, supporters of the runaway and homeless youth program, and the nondiscrimination clause, are seeking support from Republican members of the Republican-majority House of Representatives. Their argument? Oppose this clause and you show your lack of concern for LGBT youth. Representatives ought to argue back: faith-based organizations pioneered many essential services and are often excellent, even the best, providers of services. Why are you attempting to exclude them from these grant programs?
Where there is discrimination against LGBT youth, or any other people who ought to receive services, Congress does need to act. But the nondiscrimination clause in S. 262 is not the way to go.
Will federal officials answer the key question raised by the LGBT Executive Order?
The federal government has yet to answer the key question posed by President Obama's July, 2014, Executive Order banning LGBT job discrimination by federal contractors. The ban applies to religious organizations that get federal contracts, but those organizations remain free to consider religion when they make their hiring and firing decisions. When do their legal religion-based staffing decisions violate the new nondiscrimination requirements? The regulations stemming from the Executive Order come into effect for new and changed contracts on April 8, 2015, but they do not answer the question. Additional information from the Office of Federal Contract Compliance Programs (OFCCP) has yet to provide an answer.
The federal government can clear up the mystery for religious organizations who have been, or that are considering becoming, a federal contractor, subcontractor, or vendor, by answering this question:
Q. Many religious employers, pursuant to their freedom to consider religion when making staffing decisions, maintain both a statement of religious belief and a moral conduct code. The statement and the code show how the employer understands the religion with which the entity identifies and it sets out what the employer considers to be faithful adherence to that religion. The creed and code are means of assessing employees' commitments and sincerity. The statement and the code may identify man-woman marriage as the employer's understanding of what the religion prescribes and then identify the limitation of sexual relations to such marriages as an essential element of what the employer considers to be acceptable employee conduct.
Such an employer, when assessing potential employees and current employees against a requirement of limiting sexual relations to man-woman marriage, regards itself to be exercising its freedom to consider religion when selecting and evaluating employees. If it declines to hire a person who is part of a cohabiting heterosexual couple, or does not hire an applicant who announces that she just got married to woman, the religious employer is exercising its protected religious staffing freedom. Will the OFCCP instead claim that the employer has violated the Sexual Orientation Gender Identity nondiscrimination requirements?
Gordon College
On March 16, 2015, Gordon College announced that, after an extensive review process, it is maintaining its conduct policy for students, faculty, and staff that, based on its understanding of the Bible, restricts sexual relationships to man-woman marriage. The college has been under fire since last summer, when its president, Michael Lindsay, was one of a number of religious leaders who signed an appeal to President Obama to strongly protect the freedom of religious organizations when he crafted his LGBT Executive Order. A school district and a nearby town broke off contractual relationships with the college, arguing that it had shown itself to be discriminatory, and the college's accreditation was challenged.
As a result of the review, Gordon College created a task-force to consider "human sexuality issues on campus," a revised anti-bullying initiative, and new training for staff and faculty. Ongoing: conversations between Gordon College and its regional accrediting agency.
Notwithstanding imprecise media reports, Gordon's accreditation is not actively in question and the regional accreditation agency does not have a requirement that colleges and universities show that they do not discriminate based on sexual orientation.
Michigan adoption story
Last week, the Michigan House of Representatives passed a legislation package that would provide protections for religious child placement organizations. All three pieces of proposed legislation passed on 65-44 votes, with Democratic Reps. George Darany, of Dearborn, Robert Kosowski of Westland and Harvey Santana of Detroit, joining all but one Republican in voting in favor of the bill package. These bills would permit faith-based agencies to not place children in family situations that would violate the "sincerely held religious beliefs" of the adoption and foster care organizations.
In practice, this means that faith-based agencies would not be required to place children with gay couples or unmarried couples, or with other nontraditional family living situations if doing so would ask them to compromise the religious tenets of the organization. It is important to note that these religious agencies cite their faith as their very raison d'etre, and the House passage of this legislation demonstrates that it cannot ask a religious organization to divorce the dictates of its beliefs from the significant public benefit of its services.
According to an editorial entitled "Protect liberties of adoption agencies" in The Detroit News, "In budget year 2014-15, almost $20 million in state and federal funds went to adoption agencies. About half of that money - nearly $10 million - went to the faith-based agencies that would be exempt under the religious objection bills."
As the editorial points out, faith-based child placement agencies play an essential role in supporting children and families. Additionally, if state and federal dollars did not go to these private non-profit adoption and foster care organizations, the state would still have to provide these services directly, possibly without the same level of trust, respect in the community, and relational capital as the faith-based agencies are able to provide.
Thus, these organizations are helping the state government to achieve a foundational goal of providing safe and secure homes and families for vulnerable children. As Rep. Andrea LaFontaine, R-Columbus, stated: "This bill is not about who can and who cannot adopt a child, it's about ensuring the most alternatives for people wanting to adopt a child." The Michigan Catholic Conference expressed its support for these bills.
Tom Hickson, vice president for public policy, reiterated the importance of fostering diversity in adoption and foster care organizations so that as many children as possible can be put into homes, stressing that this legislation creates the landscape for more providers, and therefore, more children served. Gov. Rick Snyder has yet to officially take a stance on these bills, but did voice reservations about the bill's impact on a call-in Michigan Public Radio Program.
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