Supreme Court and SSM:  What consequences for FBOs?  

(by Stanley Carlson-Thies)

At the US Supreme Court's oral arguments on April 28, 2015, on whether same-sex marriage is a constitutional right, the federal government's top lawyer intimated that faith-based organizations might lose the freedom to maintain a religious conviction that marriage is a man-woman bond. That would upend many deep convictions and key practices. His statement should be a wake-up call for faith-based organizations.

If the Supreme Court decides marriage must be extended to same-sex couples under the Equal Protection Clause of the 14th Amendment, then faith-based organizations will face new pressures and will need to dramatically expand their advocacy for the freedom to remain distinctive. But even before the Supreme Court rules, the oral arguments should give faith-based organizations much reason to think carefully about their identity and practices and how these are grounded in their religious convictions, and much reason to engage with federal, state, and local policymakers to say and show how their good works are rooted in their faith commitments. Our nation has historically valued living by conviction, even when a conviction is unpopular, and our society and government depend on the good works accomplished daily by a vast number and variety of faith-based organizations. Even more than before, now is the time for faith-based organizations to be transparent about how their practices reflect their deep religious convictions, and to witness publically about how their works of service grown from those convictions.

At the Supreme Court's same-sex marriage oral arguments, (transcripts here and here), the federal government's top lawyer--Solicitor General Donald Verrili--hinted that faith-based organizations might lose their freedom to live out their beliefs on traditional marriage in both staffing and services. Asked by Justice Alito if faith-based nonprofits that believe marriage to be the partnership of a man and a woman might lose their tax-exempt status, the Solicitor General said, "It's certainly going to be an issue. I don't deny that. I don't deny that, Justice Alito. It is it is going to be an issue."  

Just what kind of "issue" will faith-based organizations face? The interchange referenced the Bob Jones University decision from 1983. The IRS had stripped BJU of its tax exemption because the university's ban on interracial dating violated the vital national policy against racism, and the Court said that religious freedom was no shield for BJU. Will the Court consider a commitment to traditional marriage to be the equivalent of opposition to racial equality? But the Bob Jones policy was an outlier--the Civil Rights Movement was upheld by religious motivations, notwithstanding reluctance and opposition by some; racism is not characteristic of the millennia-old traditions of major religions; marriage as a unique union between a man and a woman is a deep commitment over thousands of years by many different faith traditions. In short, the Court will have to wrestle afresh with the intersection of religious freedom and a claim for equality.

Protection for religious convictions supporting traditional marriage came up two other times in the back-and-forth between the Justices and the various lawyers. Mary Bonauto, arguing for a right to same-sex marriage, assured Justice Scalia that dissenting clergy would not be forced to perform same-sex marriages. However, when Chief Justice Roberts asked Solicitor General Verrili whether a religious school with married-student housing would be required to open the housing to same-sex couples, he said it would depend on the laws of the various states and on whether an eventual federal law on sexual orientation protects religious freedom.

The assurances about respect for clergy do not go far to reassure faith-based organizations with policies and practices based on traditional marriage. They do not specialize in worship but they are religious organizations nonetheless and need legal protection if they dissent from changing views on marriage. There is no reason to accept easy assurances that the coming of marriage equality means that every view of marriage will be respected.

Various justices expressed some skepticism about the validation they were being asked to give to a view of marriage deeply different than what societies and religions have believed for millennia. Of course, such skepticism is no guarantee that the definition of marriage will be left in the hands of the states and their voters and elected representatives.

Assuming, as seems very likely, a ruling that states cannot reserve marriage to heterosexual couples, will the Court decide in a way that protects the religiously grounded belief in the traditional concept of marriage? The several exchanges noted above show that the Court is aware of the vital religious freedom issues at stake. That is a hopeful sign. Various amicus briefs clearly described the issues; an essay by Carl Esbeck points out that two of the briefs stressing problem areas were filed on behalf of religious organizations representing some 40% of the US population! A key brief, authored by premier church-state experts Douglas Laycock, Thomas Berg, and others, specifically proposed to the Court how it can strongly support religious freedom at the same time that it rules in favor of same-sex marriage.  

As the Laycock brief recommends, the Supreme Court, if it declares a right to same-sex marriage, can and should stress the religious freedom consequences of that decision, and invite the Congress and state legislatures to act to protect religious freedom-one of their fundamental duties. There is good precedent. States that have passed marriage-equality laws have included protections for religious exercise and religious organizations, to a greater or lesser extent. And when Canada's Parliament enacted same-sex marriage, it specifically included protections for religious freedom, including prohibiting the stripping of tax-exempt status from a religious charity because the charity remains committed to opposite-sex marriage. 

The Supreme Court can both accept same-sex marriage and protect the freedom of religious people and organizations to continue to live in accordance with their deeply religious commitment to man-woman marriage. Such a ruling is the only way to ensure genuine marriage equality.

Protecting both LGBT runaways and the FBOs that serve them 

(by Stanley Carlson-Thies)

What should Congress do to ensure that homeless, runaway, or trafficked LGBT youth are treated with respect when they turn to federally funded services for help? Sponsors of a bill to reauthorize the Runaway and Homeless Youth Act (RHYA) are advocating a nondiscrimination requirement that will drive out some excellent faith-based providers. There is a better way.

RHYA provides federal funding for various services needed by youth who might otherwise end up on the street or be caught up in human trafficking. In calling for the funding to be renewed and the program to be improved, many advocates for LGBT rights and supporters of the RHYA program, and many of the grantees that receive RHYA funding, have called for the addition of an extensive nondiscrimination clause to the law. They point out that LGBT youth are especially at risk to be homeless and to be trafficked and ought to be protected against abusive treatment by RHYA service providers

But the nondiscrimination clause in the reauthorization bill (S. 262) goes far beyond protecting vulnerable youth, and even goes against ensuring that they have excellent and respectful services. Instead of being focused on the need of the homeless, runaway, or trafficked youth to receive services with dignity, it is written in sweeping terms so that its restrictions apply also to the internal operations of any organization that receives any of the federal funds. It even applies to programs they operate that use none of the federal funds and that have nothing to do with RHYA youth.

Thus, if the clause becomes law, a faith-based agency that considers religion in staffing decisions would be acting in violation of the law even though religious hiring is protected by the 1964 Civil Rights Act. And a faith-based organization that, say, offers privately funded marriage preparation classes to husbands and wives, consistent with the convictions of its religious tradition, could be charged with discrimination because those classes do not teach same-sex marriage. But such classes have nothing to do with federal RHYA funding or with runaway youth.

That overreach into the internal operations of faith-based organizations and into their privately funded programs will likely drive out some of the federal government's current faith-based partners: faith-based providers that are in the program because of the excellence of their services as demonstrated in the competition for funding. In the name of protecting LGBT youth, the federal government could well end up having to fund less-qualified organizations.

Additionally, some of the versions of the RHYA nondiscrimination clause even seek to apply all of these restrictions to a very large swath of federal funding outside of the RHYA program-to all of the grant programs administered by HHS's Administration for Children and Families. That would apply the restrictions to faith-based organizations providing a wide range of programs: child care, marriage strengthening, abstinence education, welfare services, refugee resettlement, and more and more.

Proponents of the nondiscrimination clause may doubt the capability of a religious organization with traditional sexual ethics to effectively serve vulnerable youth who are struggling with their sexual identity. Or proponents may simply be unaware of the negative consequences of this language for faith-based providers. Whatever the reason, the overly broad clause will damage, rather than improve, services. The challenge for faith-based organizations is to make clear, again, to policymakers and to the public that it is their religion that calls them to do justice to the vulnerable. It is out of their faith-driven convictions about human dignity that religious organizations daily serve with excellence and respect people who do not share their faith or moral convictions. Religious organizations are the pioneers of many human services and currently provide-on their own or in partnership with governments-a wide range of services to everyone needing help. Religious organizations serve everyone because of, not despite, their deep religious convictions.

Congress should scrap the misguided nondiscrimination clause that has been proposed. Instead, it should add to the RHYA program a simple new rule that is focused on addressing the specific problem that advocates for the homeless, runaway, or trafficked youth are concerned with. Here's the language that will protect the vulnerable youth while not driving out of partnerships excellent and respectful faith-based organizations:

"Nondiscrimination: Grantees will serve every eligible person within the limits of the approved program design and the government funding made available."

The sky isn't falling:  Religious freedom is context-specific 

(by Stanley Carlson-Thies)

There's no doubt that religious organizations and religious people are under great pressure from governments and from societal opponents in a very many places around the world. And, thanks to globalization and technology, we hear, read, and see the conflicts and injustices nearly immediately. Wherever they happen. So it seems that the sky is falling, all of the time. But it isn't.

Even if there are many common trends, actual religious freedom challenges can only happen in specific places, and each specific place has particular laws, one set of aggressive (or weak) opponents and not another set, one history of respect for (or opposition to) this or that religion and this or that faith-based organization, one kind of cleverly devised provocation or just an unintentional catalyst to misunderstanding. In some places, sometimes, the law will restrain, not authorize, an attempted restriction on religious exercise. Sometimes society will rally around to protect, not condemn, the dissident religious person or organization. In some countries religious organizations are widely respected because of the good they do, even when many oppose some of the beliefs and practices of those organizations. In some places religion is suspect because it used to be imposed on all by government; in other countries churches have always been voluntary institutions, part of the valued diversity of society.

An accurate and useful assessment of religious freedom requires that we be neither Pollyanna nor Chicken Little. Gordon College's accreditation was challenged because of opposition to the evangelical college's commitment to traditional Christian sexual morality--and yet the accrediting agency involved has affirmed the college's good standing. In the Fall of 2014, some Houston pastors were threatened with court action because of support they had given to a petition drive to overturn an LGBT ordinance--and yet there was widespread opposition to the mayor and her administration for their threats against the pastors.