RHYA Senate vote: Good start but more work needed to safeguard both providers and at-risk youth

(by Stanley Carlson-Thies)

The Senate on April 22, 2015, voted down an amendment to a sex trafficking bill that would have both reauthorized the Runaway and Homeless Youth (RHYA) program and made it more difficult for faith-based organizations to participate in this and other federal programs.  The bad news:  the destructive nondiscrimination clause in the RHYA bill is likely to come up again and again. 

It's a long story that starts with a sweeping nondiscrimination clause proposed to be added to the RHYA program as Congress reauthorizes it. Many runaway, homeless, and trafficked youth are LGBT and can suffer unjust treatment because of that.  Congress and protectors of the young people are right to be concerned. But, without even any proof that RHYA grantees have been abusive, LGBT advocates have pressed for a very broad "nondiscrimination" clause that would forbid discrimination on the bases of sexual orientation, gender identity, and religion (and other characteristics)--not only in the treatment of the young people but in every operation and program of any organization that receives any RHYA money--or money from any of a range of other grant programs. 

The major assumption by LGBT advocates is that an organization that takes religion seriously and that does not affirm LGBT conduct cannot be trusted to treat LGBT youth with respect and is not worthy to be a partner of the federal government.  And yet faith-based organizations daily serve with excellence those unlike themselves--that's their religious commitment.  It is faith-based compassion and commitment to justice that explains why so many areas of social service, education, and health care were pioneered by religious organizations and why so many of such services are today performed by religious organizations, with and without government funding.

Protests against this grave misunderstanding of faith-based services, including a letter organized by IRFA, won some modifications to the original clause--but the changes did not cure the deep problems of the clause.

LGBT advocates and congressional staff defend the clause by pointing out that a bipartisan congressional majority approved similar language when the Violence Against Women Act was reauthorized in 2013.  But that 2013 action was a big mistake, made possible when media and public criticism against Republicans for being anti-woman fueled a rush to pass the VAWA bill despite deep concerns about its nondiscrimination clause and other matters.  Congress should reverse that bad precedent, not add to it.

The problem is not the congressional desire to ensure that runaway, homeless, and trafficked youth receive respectful services.  The problem is how this nondiscrimination clause is designed.  It has sweeping language that ignores the complexity of the interests at stake, even undermining compassionate faith-based service providers.  This is not the focused language needed to safeguard against mistreatment of young people who need to be served with dignity. 

The Senate vote against the RHYA reauthorization bill and the poorly designed clause is just one step in what will be a long process of resolving how to fund RHYA services.  Faith-based organizations have their work cut out in helping Congress to understand the good they do, and the bad they avoid-and how a diverse set of providers is best for the diverse set of people who need services the federal government funds.

The Supreme Court, SSM, and religious freedom: coming right up!

(by Stanley Carlson-Thies)

On April 28, 2015, the U.S. Supreme Court will hear oral arguments in Obergefell v. Hodges and several linked same-sex marriage cases, asking whether it should declare same-sex marriage to be constitutionally required in every state in the nation.  A ruling is expected in June, and most observers seem sure the Court will rule to make same-sex marriage the law of the land. 

That timing and outcome might seem predictable. But no powers of prediction are needed for this:  the creation of a national right to same-sex marriage will generate even more religious-freedom concerns as people and organizations that are religiously committed to opposite-sex marriage are asked to regard same-sex marriages as no different than opposite-sex marriages. 

The areas of conflict were predicted and analyzed in great detail in a 2008 Becket Fund book, Same-Sex Marriage and Religious Liberty:  Emerging Conflicts, edited by Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson.  Marc Stern's chapter is especially eye-opening as it predicts clashes in a wide range of instances, including employment law, licensing and accreditation, and housing. 

The same book explored the many ways that same-sex marriage and religious freedom can be reconciled, not perfectly but substantially.  This is a task for legislators, and as same-sex marriage has been legalized in various states by legislation or by judges, some religious freedom protections have been enacted. 

What will the Supreme Court do?  Telling states how they must protect religious freedom when marriage is redefined is not their task nor within their jurisdiction.  And yet among the constitutional principles that they must uphold as they consider this issue is the guarantee of the free exercise of religion-and also the prohibition on the establishment of obligatory religious views (about marriage, too?) and the protection of free speech and free association. 

Because religious freedom cannot be separated from marriage redefinition, one of the most important of the 150 or so amicus briefs filed with the Supreme Court in Obergefell is the brief submitted by Douglas Laycock, Thomas Berg, David Blankenhorn, Marie Failinger, and Edward Gaffney.  

They urge the Supreme Court to rule in favor of same-sex marriage-and also to speak strongly for the protection of religious freedom.  "When the Court invalidates laws prohibiting same-sex civil marriage," they say, "it must take responsibility for the resulting religious liberty issues."  They point to the current and predictable friction and remind the Court of the principles available to it with which to protect religious freedom in the context of same-sex marriage.

If you read just one amicus brief as the Court wrestles with this momentous issue of redefining marriage for the whole nation, consider making it this brief about religious freedom and same-sex marriage.

Adoption agency religious freedom bills

(by Chelsea Langston)

In March 2015, the Michigan House of Representatives passed bills designed to preserve the freedom of faith-based adoption agencies to follow their religious convictions about families and children when deciding where to place children needing a new home.  The state Senate must also act, and then Governor Rick Snyder will decide whether or not to sign the bills into law. 

However, according to the Detroit Free Press, the governor believes that "the adoption bills need some more review if they pass through the full Legislature." But getting a fair review may be difficult, given the public backlash to the Indiana RFRA law and the mistaken view that religious protection laws give faith-based organizations, businesses, and individuals a "license to discriminate."  In fact, a recent Equality Michigan website story was headlined, "Michigan Senate Committee to Consider License to Discriminate in Adoption Bills."

On April 9,2015, the Florida House of Representatives passed a bill to provide a "conscience clause" for child placement agencies to opt out of providing services or placing children with families if doing so would "violate the agency's moral or religious convictions or policies." 

However, enactment of the bill into law is uncertain because a bill with analogous language was rejected by the Florida Senate a day before.  In favor of the bill, Republican Rep. Scott Plakon told the Tampa Bay Times: "You may disagree with [the religious agencies'] beliefs. You may even think that they're crazy, but these are their closely held beliefs." 

The point that the Senator is making is a valid one.  Regardless of whether we agree with the religious tenets of a child welfare agency, an institution can no sooner separate itself from those core values it believes are aligned with God's word. And it is important to keep in mind that nontraditional families, including potential single parents, non-married heterosexual couples, and same-sex couples, are not prevented from adopting or fostering a child through a secular organization who may even specialize in placing children in these environments.

In Texas, on April 15, 2015, Texas House Rep. Scott Sanford (R-McKinney) defended a bill that would allow faith-based child placement agencies in Texas to continue to place children in a way that did not violate their religious beliefs. Sanford stated: "Faith-based organizations have played a vital role in serving our nation's orphans and needy children since America's founding, and this legislation protects their operations." Sanford also noted that if these faith-based agencies are not protected and cease to operate, more demand is placed on government in it role of providing for and protecting children without homes.

The Texas bill, currently called HOME ("Hope for Orphans and Minors Expansion Act") would ban the Texas government from taking "adverse action" against child placement organizations that receive government money and operate based on "sincerely held religious beliefs." The HOME Act would also allow faith-based agencies receiving taxpayer funds to continue to provide education to children reflecting the religious beliefs of the agency, and to deny children access to abortions or contraceptives. Religious child welfare providers, currently making up the majority of child placement organizations in the state, are an indispensable partner for the Texas state government.

To some, bills such as these are simply outdated efforts to protect bigotry and to favor religious agencies.  But is that a fair and accurate evaluation?  Note that religious adoption and foster-care nonprofits are just one type of institution playing a role in a complex system designed to support families of all types and provide the best options for diverse children. 

Faith-based child placement agencies, whose very religious convictions propel them to "look after the widows and orphans in their distress" (James 1:27), are also called by those convictions to evaluate families and place children following certain principles and values.  When these faith-based agencies follow their convictions, they do not in any way undermine the ability of secular organizations to follow their own convictions as they offer their own services.  Nor does the conviction of some faith-based agencies that they should work only with mother-father families make it impossible for other faith-based agencies to reach out to and serve same-sex couples.

The goal of these bills is not to drive other agencies out of business nor to impose one model of adoption on everyone, but simply to maintain space for a diversity of views, including for faith-based agencies to remain true to their convictions, even when those convictions diverge from the popular view that all family types are essentially equivalent.  Sometimes called "principled pluralism," this is the idea that our government should support diverse organizational practices as part of its obligation to respect the diverse religious convictions of the citizens.  The Psalmist calls out to God to "do justice to the fatherless and the oppressed" (10:18).  Government policy and private agencies are means to that end-and to accomplish it in our society with its diverse views requires bills like those being considered in Michigan, Florida, and Texas.

Federal policy to recognize SSM in grant programs

(by Stanley Carlson-Thies)

The federal government has gradually been requiring in its grant programs that grantees interpret the terms "marriage," "spouse," "dependent," and "family" to include legally married same-sex spouses and marriages.  This is a response to the decision of the U.S. Supreme Court in 2013 (Windsor) that the federal government may not maintain its own, opposite-sex, definition of marriage but must accept as legal marriages whatever the various states decide on. 

So, when a program to help the poor obtain decent housing requires that the income of both the applicant and his or her "spouse" be added together to determine eligibility, the organizations that operate the program on behalf of the federal government have to add together the incomes of the applicant and of the applicant's opposite-sex or same-sex spouse.  Simple enough.  But what if the federal program awards money to private organizations to design and run classes to help people improve their marriages?  Stronger marriages with fewer divorces are good for the couples and for their children. 

Not that long ago, all of these federally funded programs used curricula and ran classes that focused on helping husbands and wives be loving and supportive of each other.  And then states and courts began to legalize same-sex marriage.  Now the federal government requires that grant programs acknowledge same-sex marriages and spouses.  Does this mean that all federally funded programs must now adopt a marriage curriculum that assumes that same-sex marriages and opposite-sex marriages are identical in all ways?  That the dynamics between a husband and wife are no different than between two people of the same sex?

Such a change-the requirement to affirm marriage equality-would produce classes and curriculum acceptable to many who arrive for help, but unacceptable to many others.  Those who are sure that God designed marriage to be a man-woman unity are unlikely to find very helpful or very trustworthy a class that teaches that same-sex marriage is just the same thing as traditional marriage.

To serve the whole public, with its diverse convictions about what marriage truly is-whatever the government has decided civil marriage to be-the federal government should not stop funding organizations committed to traditional marriage, even when it awards grants to organizations that teach "marriage equality." 

But should every federally funded marriage-strengthening program be required to admit to its classes every legally married couple that shows up and seeks help?  Should the Baptist organization be required to welcome into the class a same-sex married couple, even though it will be teaching that marriage is a man-woman unity?  Should the Episcopal organization be required to welcome into its class the opposite-sex married couple, even though that couple is sure that same-sex marriages are not real marriages, whatever the government, and the Episcopal church, says? 

And if the answer is yes, what happens when the same-sex couple or the opposite-sex couple, respectively, begins to feel uncomfortable, unwelcome-not served adequately but instead offended?  Will the grantees get into legal trouble or will the government stand up for their right to stick to their respective curricula and convictions about marriage?

Stay tuned!  Your federal officials are considering such questions at this moment.

More state RFRAs and other approaches

(by Chelsea Langston)

It is odd:  remember the media and social-media backlash as Indiana was adopting its Religious Freedom Restoration Act (March-April 2015)--and yet 19 other states already had RFRAs!  Why so little outrage, past and present, in those other states? 

Missouri, for instance, has had a state RFRA since 2003, a bill signed into law by a Democratic governor.  Why no concern in the state about religious companies refusing to serve gay customers?  An article in Missouri Lawyers Weekly provides the answer:  ". . . RFRAs in the other 19 states and the federal government have been around for some time and the feared discrimination has never materialized. Indeed, there have been no cases of restaurants or retail stores that have been sued for LGBT discrimination that have sought to defend their discrimination as religiously protected conduct under RFRA." 

It is this reality--RFRA does not give a blank check to discriminate--that explains what happened in Arkansas shortly after all of the controversy in Indiana.  Governor Asa Hutchinson asked the legislature to amend the language of the proposed Arkansas RFRA to more closely align with the federal Religious Freedom Restoration Act.  Almost immediately the bill won both Republican and Democratic co-sponsors.  

Kathy Webb, the first openly gay person to run for and to be elected to public office in Arkansas said of the amended RFRA, it is a "very bipartisan effort, we have a starting place form which to move forward."  Like the federal RFRA, the amended Arkansas RFRA has no language prohibiting discrimination on the basis of sexual orientation or gender identity, and no language automatically immunizing such discrimination if a religious motivation is given.  Still, without much opposition, Governor Hutchinson signed the amended RFRA into law.  These laws are not about authorizing religious people and organizations to mistreat LGBT people.

Are there circumstances when a religious person or organization should be able to oppose a same-sex marriage?  Louisiana is in the middle of a debate about that.  The state's H.B. 707, the "Marriage and Conscience Act," would prohibit the Louisiana government from taking "adverse action" against anyone for opposing same-sex marriage for a religious reason.  "The Louisiana bill really does what people accused the Indiana law of doing," religious freedom legal scholar Doug Laycock told MSNBC.  

The Indiana RFRA, before it was amended and signed into law, offered, as does the federal and the other state RFRAs, religious people and organizations a day in court if they are sure that their religious exercise has wrongly been burdened by government.  It is possible, although it has never happened yet, that a court would rule that in the specific instance of a same-sex wedding or reception, the government may not enforce its prohibition of discrimination on the basis of sexual orientation.  Louisiana goes far beyond this, stating in the text of the bill that a religious person's convictions about marriage will always authorize them not to go along with an LGBT marriage. 

When multiple services are available, or when the requested service is a matter of aiding in a marriage ceremony or celebration, legislatures are right to seek to accommodate both the rights of the LGBT person or couple and the religious freedom of dissenting persons and organizations.  Does the Louisiana bill draw the appropriate lines?  That's an important legal question. 

There is also an important policy question to consider at this time of heightened concern on all sides about freedom and equality.  When a state acts to protect religious freedom but has not acted to protect LGBT people against invidious discrimination, a particular signal is sent about rights and freedoms.  It may be, as various scholars and religious freedom advocates say, that equating LGBT discrimination with racial and sex discrimination puts into the law a mistaken view of LGBT, and racial, and sex discrimination.  Yet, lacking an alternative way to protect against LGBT discrimination, not acting at all sends a negative signal.  What then is to be done?

As the controversy swirled around the Indiana RFRA, Michigan Governor Snyder spoke up about a proposed Michigan RFRA, telling reporters, in the words of the Detroit Free Press, that he would not sign a RFRA bill "without an accompanying bill that would expand the state's Elliott Larsen Civil Rights Act, which prohibits discrimination in housing and hiring, to the LGBT community."

In short:  we can solidify religious freedom protections if at the same time we act against invidious discrimination against LGBT people.  This is similar to the approach adopted in Utah.  It is a way to address the concerns of LGBT people that RFRA laws will permanently subjugate them while also addressing the concerns of religious communities that LGBT protections will necessarily require them to act against their religious convictions.

Is such a win-win, rather than winner-takes-all, approach a perfect solution and one that will satisfy everyone?  Probably not.  But is it a realistic and pragmatic approach that allows people and organizations of faith a chance to preserve their sincerely held beliefs while extending justice and compassion toward another legally vulnerable population?  Quite possibly.

Following up a key story:  Gordon College's accreditation not at risk

(by Stanley Carlson-Thies)

The story last July, 2014, was shocking: evangelical Gordon College north of Boston might lose its accreditation because of its policy requiring students, faculty, and staff to reserve sexual relations to man-woman marriage.  This is a normal policy for evangelical campuses, which regard the policy as biblically required.  And the policy is legal.  Yet opposition grew swiftly after attention was drawn to Gordon and its policy when its president, Michael Lindsay, signed a letter to President Obama asking him to include strong protections for religious freedom in his planned Executive Order banning LGBT discrimination by federal contractors. 

A complaint was made to the regional accrediting agency, the Commission on Institutions of Higher Education of the New England Association of Schools and Colleges (NEASC), which said it would look into Gordon's accreditation.  A local town ended a contract with the college.  And so did a local school district, where Gordon students had long volunteered; they were always welcomed, but now their college was deemed discriminatory and they could no longer serve.

Yet, in March, 2015, Gordon College reaffirmed its conduct policy, while taking steps to ensure that no one is excluded or mistreated because of a same-sex inclination.  And-although the remark appears not to have been widely reported-the head of the accrediting agency has clarified that Gordon's accreditation is not at risk.  Also in March, Dr. Barbara Brittingham told a reporter from CBN News that Gordon College's accreditation was not at risk and that a follow-up report requested from the College was routine.

The very negative reaction to Gordon's countercultural campus life policy appeared to validate fears that its accreditation could be stripped, its educational effort undermined.  And there is good reason to be concerned about the accreditation of morally and religious conservative higher education institutions going forward. 

Yet the American tradition, including the American tradition in higher education, supports religious freedom, diversity of convictions, and the independence of educational institutions from governmental and popular pressure.  As Shirley Hoogstra, President of the Council for Christian Colleges and Universities, has said, 

"We knew all along that Gordon's accreditation was not at risk. One of the core functions of accreditors is to ensure that institutions are being faithful to their missions, and the Higher Education Act specifically protects religious missions. We're glad that this is explicitly clear now, as there has been unintended and unfortunate confusion. ... Accreditation affirms academic excellence and fidelity to mission, and so considering and respecting religious mission is a natural fit in this process."