LGBT hiring required in federal grants?

by Stanley Carlson-Thies  

Has the Obama administration decided to require federal grantees, like federal contractors, to hire without regard to sexual orientation and gender identity? A May 28, 2015, story says a decision has been made, but there is good reason to doubt that it has been or can be made.

The story, from C-FAM, the Catholic Center for Family & Human Rights, cites a confidential federal source as saying that "the White House is quietly moving forward with a policy change that will require charitable humanitarian groups to accept LGBT applicants in order to qualify for government funding, even those religious groups that might have religious objections." The story links the insider's tip with President Obama's July, 2014, LGBT Executive Order that requires federal contractors not to discriminate on the bases of sexual orientation and gender identity when they make employment decisions, claiming that now federal grantees also will be subject to the same requirement.

Faith-based organizations are relatively rare in federal contracting, much of which involves services to the government, such as janitorial or IT services, or the procurement of buildings, military equipment, and other goods. But many faith-based organizations receive federal grant funding, either directly from the federal government, or through state or local government programs-funding to provide welfare services, child care, pre-K education, low-income housing, prisoner reentry programs, drug addiction services, overseas relief and development, and much more.

Many faith-based organizations consider religion when they make employment decisions, just as environmental groups consider how "green" an applicant's principles and lifestyle are before extending a job offer. And the faith-based organizations' religious convictions may extend to the view that sexual activity is meant to be preserved for man-woman marriage. If the Obama administration makes it illegal for recipients of federal grants to discriminate on the bases of sexual orientation and gender identity, will such faith-based organizations in effect be excluded from those grants-thousands or tens of thousands of faith-based organizations forced either to change their employment standards or to end partnerships with government that may have existed for decades because, for all those years, a federal, state, or local agency chose them as the best provider of some service needed by a family, person, or community?

A stealth decision, by definition, is difficult to verify. If the President does not issue an Executive Order and no other official statement is made by Administration officials, then the only evidence of the purported policy decision will be new restrictive language that appears in grant announcements and grant application forms. That has not happened-at least not yet. Readers of the eNews who discover language prohibiting sexual-orientation and gender-identity job discrimination in grant materials are urged to contact the eNews editor at info@irfalliance.org.

1. Presidents have set the nondiscrimination requirements in federal contracting going all the way back to World War II, but Congress has been responsible for determining nondiscrimination requirements in federal grants. Significantly, while the employment nondiscrimination requirements in federal contracting have consistently been expanded over the years, Congress has only added any such requirements to a small portion of grant programs, and those job nondiscrimination requirements have never included sexual orientation or gender identity.

It is true that Presidents sometimes add nondiscrimination requirements to grant programs in the process of deciding how to administer the programs Congress has enacted. For example, President George W. Bush issued an Executive Order requiring federal grantees not to discriminate on the basis of religion against persons eligible for those programs, and, through the regulatory process, turned that requirement into binding regulations in the various federal departments and agencies. But the requirement had already been enacted by Congress for several programs through the Charitable Choice language and, in the administration's view, was required by the Constitution.

But there is no constitutional decision requiring the federal government to ensure that any organization that receives its funds not discriminate on the bases of sexual orientation and gender identity in making employment decisions.

2. Melissa Rogers, executive director of the White House Office of Faith-Based and Neighborhood Partnerships, has assured the eNews that the White House has made no decision to extend the restrictions on contractors to grantees.

3. C-FAM's confidential informant says that the policy change "will require charitable humanitarian groups to accept LGBT applicants" in order to qualify for federal grants. Interestingly, in some of this fiscal year's grant announcements from USAID--which awards money to humanitarian groups to provide overseas relief and development aid-there is a new requirement that overseas recipients of the grant funds not discriminate against LGBT people who apply for services. This is, for example, a new requirement in the ASHA program, which provides funds to overseas schools and hospitals that have a connection with a US organization.

This is a requirement about how beneficiaries are to be treated, and not a requirement about the employment policy of the grant recipients. So this language is not evidence that the LGBT Executive Order is being stretched to cover grants. The new requirement makes sense in the case of hospitals but not in the case of schools, which ought to be able to maintain their unique entrance requirements. (The requirement may not make sense in the many countries with a strong religious or moral disapproval of LGBT views and conduct-if the intent of the grants is to assist local organizations in such countries.)

Interestingly: the USAID policy document that is referenced as the justification for the new grant requirement: (a) has to do with contracts, not grants; (b) concerns employment, not beneficiaries; (c) only "encourages" certain action but doesn't require it. In short: the justification has little if anything to do with the requirement!

4. It is important to note, in the case of grants as well as contracts, that the rules protect the right of religious employers to consider religion when hiring and firing, even if new restrictions are added with respect to sexual-orientation and gender-identity discrimination (some grant programs ban religious hiring, but FBOs can appeal to the Religious Freedom Restoration Act to avoid that ban). While strong voices inside and outside of the federal government claim that the new restrictions essentially mean that a religious employer cannot maintain a conduct requirement for employees that restricts LGBT conduct, courts have not ruled that the religious staffing right is a mere formality so that an applicant can avoid a religious organization's faith-based sexuality standards simply by claiming to share the organization's religious beliefs.

5. In short: there is no public evidence that the Obama administration will extend the LGBT Executive Order from federal contracting to federal grants, and there are good reasons to believe that such an attempt would override the bounds of normal executive-branch authority.

6. In this volatile area of policy, the lack of precedent and law provides no assurance that dramatic changes will not happen. Faith-based organizations must take a deep and careful look at their operations and take deliberate action to ensure that there is a strong alignment between their religious beliefs, their operational policies, and their actual practices. Their religious identity ought to be clear to everyone, inside and outside the organization, and the religiously based rationale for their policies and practices ought to be evident to anyone who takes a look.

If the Supreme Court rules for marriage equality, will there be marriage equality for FBOs?

by Stanley Carlson-Thies 

"Marriage equality" is the term people use for when a legislature or court declares that same-sex couples may join opposite-sex couples in getting married. But unless legislatures specifically act to protect religious freedom, marriage equality will result in marriage inequality for faith-based organizations. The Supreme Court can, and should, tell legislatures to protect religious freedom.

Increasingly many in our society are convinced that a marriage between two people of the same sex is no different morally than a traditional marriage, which unites a woman and a man. But many citizens do not agree: for religious, historical, or other reasons, they are convinced that actual marriages are unions of opposite-sex couples. The same-sex unions may be legal, they may bring joy to the couples involved and to many others, but they aren't actually marriages.

What should the law do about these contrasting views? A common prescription is marriage equality: a court-the US Supreme Court-or legislature should institute marriage equality, the legalization of same-sex with opposite-sex marriages. Such action, many say, will bring about, at last, equality between progressives and traditionalists, between those who believe in same-sex marriage and those who adhere to the traditional view.

But such a court decision, or legislative action, in fact brings not actual equality but rather enforced adherence to one of the two views. Keeping LGBT conduct and relationships illegal in the past upheld the traditional view of what is morally right and what ought to be socially accepted. Bringing in marriage equality-forbidding discrimination against LGBT conduct and relationships-does not give our society a new pluralism and position of tolerance. Instead, it will enforce the progressive view-same-sex marriages are no different than opposite-sex marriages-over the traditional conviction that marriage is a status which only fits man-woman couples.

Why is that? When people and organizations are required, due to marriage equality, to ignore the difference between same-sex and traditional marriages, then those who are sure there is no significant moral difference can freely act in accordance with their moral convictions. But those with the traditional view now must often act against their moral and religious convictions.

At home and in private life, they can still act consistently with their convictions about marriage, and their church or synagogue or mosque will still only perform actual marriage ceremonies--no uniting of same-sex couples (and no celebration of cohabiting couples, and, quite possibly, no accommodation of people who do not remain faithful in marriage).

But the law will require them in public life to go against their convictions. The faith-based adoption agency may be required to ignore its conviction about marriage and place children with same-sex married couples (and with cohabiting heterosexual or same-sex couples). The marriage counselor may be forbidden by professional ethics and licensing standards to decline to provide marriage counseling to a same-sex couple. A religious college and a faith-based retirement home may be required to provide housing to same-sex married couples, in clear violation of the convictions about marriage, life, and religion of the respective institutions. And so on.

Marriage equality brings legal intolerance of the view that marriage is a status reserved by God (or nature) to opposite-sex couples. But it need not. Legislatures may-and should-enact religious accommodations so that people and organizations that are religiously committed to traditional marriage may live consistently with their convictions in public life as well as private life, as far as can be made feasible. The adoption rules can allow two kinds of adoption agencies to co-exist. Marriage counselors committed to traditional marriage can be authorized along with marriage counselors who believe same-sex and traditional marriages are essentially the same. Colleges that believe in marriage equality and those that don't can both be permitted to have housing policies that are consistent with their respective beliefs, and the same for retirement homes.

This would be true marriage equality, true pluralism, and true tolerance.

And while the Supreme Court cannot require it--it will make a decision about how states may or must define marriage, and not about adoption policy, or marriage counselors, etc. (decisions that legislatures must make)--the Supreme Court can take clear notice of the problem and tell state legislatures that they must find a way to honor personal and institutional religious freedom when they redefine marriage to include same-sex couples.

Here's how the point is made in the amicus brief submitted to the Supreme Court by top church-state experts Douglas Laycock, Thomas Berg, and others-supporters of same-sex marriage and also of religious freedom:

"The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity. Both same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil.

"The American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters must be permitted to refuse to recognize those marriages. . . .

"If this Court finds a constitutional right to same-sex civil marriage, it must attend to the resulting issues of religious liberty. . . .

"Of course the Court cannot render advisory opinions on specific cases, but it should indicate that it understands the range of religious-liberty implications that will have to be addressed. The issues are judicially manageable, but this Court must acknowledge their existence, so that lower courts and legislatures will take them seriously when they arise in the wake of this Court's decision."

Letter: Preserve Tax-exempt status for religious schools

by Stanley Carlson-Thies 

At the April 28, 2015, US Supreme Court oral arguments about a constitutional right to same-sex marriage, Solicitor General Donald Verrilli, when asked by Justice Samuel Alito whether a college or university that opposes same-sex marriage might lose its tax-exempt status for violating a fundamental public policy, said he could not say for sure, but that "it is going to be an issue." On June 3, more than 70 religious-education leaders asked Congress to protect the religious institutions by adopting a law prohibiting the federal government from penalizing institutions that remain committed to traditional marriage.

The letter, addressed to Senate Majority Leader Mitch McConnell (R-KY) and House Speaker John Boehner (R-OH), points out how important tax-exempt status is to all educational institutions, facilitating the educational and research work they do. Without specific religious-freedom protections, religious colleges and other faith-based organizations may be forced either to change their policies or to give up important government support (tax-exempt status, tax-deductible contributions, grants, contracts)--or even lose their accreditation or licensing or legal freedom to exist and operate.

The bill the letter recommends, the "Government Non-Discrimination Act," is to be introduced shortly by Senator Mike Lee (R-Utah); in the last Congress, a similar bill co-sponsored by Sen. Lee was called the "Marriage and Religious Freedom Act."  

"Every Child Deserves a Family" bill undermines its goal

by Stanley Carlson-Thies 

The bill addresses a serious problem: many foster kids and other children needing a new permanent home languish without one. But applying a nondiscrimination rule in a way that forces out of service faith-based agencies that specialize in placing children with married mother-father families is not the way to expand the number of foster and adoptive homes.

The bill is S. 1382 in the Senate, H.R. 2449 in the House. This is the fourth session of Congress where essentially the same bill has been introduced. The goal is simple: expand the number of homes that can adopt or become foster parents, and thus reduce the number of children who need a new home. The method: require any state or other "entity" that receives certain federal child welfare funds not to permit discrimination, in the recruitment of families or the placing children, on the bases of sexual orientation, gender identity, or marital status. Then every person and couple will be able to adopt or become a foster parent-no private agency will be able to turn anyone away. More families will accept children, fewer children will be waiting.

Or not. In fact, it is not so easy to convince people to become foster or adoptive parents-that's why there are all those children waiting and waiting. It can take special outreach efforts, building trust between agencies and potential adoptive families, moral persuasion, a religious call. Public service announcements just aren't that persuasive. The legal freedom to adopt or to become a foster parent, coupled with information about the number of kids needing a home, is not often sufficient.

That's the lesson discovered by the State of Colorado. Here's what a Denver Post story said: 

"The number of Colorado children in foster care awaiting permanent adoption has been cut in half by a partnership between churches and government that places parentless kids in 'forever homes.'

"When the Colorado Springs-based ministry Focus on the Family began spearheading the 'Wait No More' adoption initiative in November 2008, the state had 8,000 children in foster care. That number included almost 800 children who were eligible for adoption because their parents had lost parental rights after the state found serious and repetitive neglect and abuse in their families.

"In early 2010, only 365 children eligible for adoption remain in foster care, said Sharen Ford, manager of permanency services for the Colorado Department of Human Services."

It is the lesson that the State of New Jersey discovered about twenty years ago when it had a "boarder baby" crisis-babies left behind in hospitals by mothers incapable of providing adequate care. The solution came when Pastor DeForest Buster Soaries of First Baptist Church of Lincoln Gardens (Somerset) set about recruiting foster parents from its own membership and then reached out to other churches to recruit and train additional foster parents. Harvest of Hope Family Services Network has been recognized by state and federal authorities for its successes in recruiting foster care families and in placing minority foster children into adoptive homes.

And it is the logic of the Human Rights Campaign's All Children-All Families campaign which provides guidance and training for how state child welfare agencies and private adoption and foster care agencies can become "truly welcoming, affirming and supportive of LGBT families."

In short, to expand the number of foster care and adoptive homes, governments should protect, not limit, diversity; they should preserve the freedom of private agencies to be distinctive, to maintain ties with particular moral and religious communities.

If the problem is that in some states LGBT people do not have the full right to adopt or foster that others have-this is a policy question all its own-then federal officials can work with states to persuade them to continue to modify their laws. But ensuring that everyone has the freedom to adopt or become a foster parent is a very different matter than requiring every private agency to act as if sexual orientation and marital status are not important matters in recruiting families and placing children. Many private agencies already disregard sexual orientation and marital status; allowing other agencies to maintain traditional moral values, to value religion, to insist on traditional marriages: this expands, rather than shrinks, the number of families willing and able to adopt or foster a child.

Senator Kirsten Gillibrand (D-NY), the chief Senate sponsor of the Every Child Deserves a Family Act, inadvertently demonstrated that the real problem is not that LGBT people are legally prevented from adopting or fostering children. The post on her website announcing her sponsorship of the bill features a lengthy table documenting by county how many New York kids are in foster care and how much it costs the state's taxpayers to maintain them in that care. The Senator says that the state had over 22,000 kids in foster care in 2014 at a price of more than $400 million for services. But these sad numbers are not due to any legal impediment to LGBT fostering or adoption in the state and so would not be reduced by supposed remedy of the Every Child Deserves a Family Act. LGBT persons are free to adopt and to become foster parents in New York. More than that, the Administration for Children's Services in New York City has a special focus on LGBT adoptions and foster care, including an LGBT Foster Care Project, that, among other things, specifically recruits LGBT foster parents.

A more promising bill than Gillibrand's favored approach is the "Child Welfare Provider Inclusion Act of 2015" (S. 667, H.R. 1299). This bill would put a different "string" on federal child welfare funds: it requires states not to deny licensing, grants, or contracts to faith-based agencies because of their refusal to make decisions about which families to recruit and where to place children if such decisions would violate their sincere religious beliefs. The bill specifically names Massachusetts, California, Illinois, and the District of Columbia as jurisdictions where officials have refused to fund or license faith-based agencies because those agencies would not agree to ignore sexual orientation when making decisions. Passage of this alternative bill would expand diversity in those states and require other states to maintain their diverse networks of private agencies.

One other note. The Every Child Deserves a Family Act is obscurely worded, allowing commentators to claim that its nondiscrimination requirements would apply only to private agencies that receive federal funding-and thus faith-based agencies could avoid the restrictions by not taking federal dollars. So no religious freedom or other problem.

But should faith-based organizations have to avoid federal funding in order to retain their religious rights? Why?

And if that is what the bill intends, why does it state that its intent is, more broadly, "to prohibit discrimination in adoption or foster care placement"? Why does the bill offer technical assistance so that "entities covered by" the bill are helped to identify and change laws and regulations that violate the nondiscrimination requirements-of course, private agencies do not promulgate or change laws? Why does the bill promise that deadlines for making changes can be extended if a "State" (not private agency) can show it has to change a law in order to come into compliance? And why will the required GAO study after five years focus on whether "States" (not private agencies) have changed "policies, practices, or statutes" that are out of compliance?

It is state laws and regulations that are the focus of the bill-pressuring states to change their rules and licensing requirements so that private agencies, whether or not government-supported, are required to comply with the prohibitions on sexual-orientation, gender-identity, and marital-status discrimination, whatever their religious convictions might be. This bill would turn every state into a Massachusetts, California, Illinois, or District of Columbia. That's the reverse of what federal law should do.

Nevada's brand-new (near) universal school choice program

by Stanley Carlson-Thies 

On June 2, 2015, Nevada Governor Brian Sandoval signed into law a comprehensive voucher-like Educational Savings Account (ESA) system for public school students. Parents of such a student can establish an education fund into which that student's share of state funding will flow, and the money can then be used to pay for private school, textbooks and tutoring, and other expenses of educating the student outside of the public or charter schools. ESAs, like vouchers, are a method for government funding of schools that respects parents' religious choices and preserves the religious character and practices of schools.

In conventional public school financing, government funds go directly to public schools, and parents who choose a private school may receive little or none of those education funds to help pay for their student's schooling. In a voucher system, the government funds pay for vouchers or scholarships that the parents can redeem to pay for public school, charter school, or private school. With ESA, the student's share of the public education funds can be used in even more diverse ways: to pay for online learning, for tutoring to supplement schooling, schooling at a combination of schools, etc.

Funding via vouchers or ESAs is, importantly, "indirect"--rather than the government deciding to send the money to some religious private school, that school only receives government funds when parents choose the school. Because the money arrives because of their choice, not the government's decision, the school, despite being government-funded, can incorporate religion into its teaching and other activities without violating the no-establishment requirement of the Constitution. So voucher or ESA funding is a way for the government to support not only the schooling choice of parents who approve of public (secular) schooling but also the choices of parents who desire faith-shaped schooling for their children. By contrast, when the government directly funds and runs schools, or contracts with private schools to provide education, the education has to be religion-free. That's why public schools and charter schools can only teach about religion, not educate from a religious perspective.

Several other states have adopted ESA programs--Arizona, Florida, Mississippi, and Tennessee. Various states or parts of states have voucher systems and some states have education tax credits that support private and religious schools.

To gain legislative and public support from lawmakers and citizens who have a deep commitment to the ideal of a common school, these various funding alternatives typically are restricted, applying only to parents of students in persistently failing public schools, or only to parents with low incomes, or the like. The Nevada ESA is unusual in applying broadly to public school students.

But it isn't universal. Most important, only students who have attended a public school for at least 100 school days are eligible for the ESA funding, not students whose parents are homeschooling their children or who started them out in a private school. Once a student is eligible for an ESA account, then the parents can use the funds to educate the student in part at home and in part at a private or charter school, or fully at a private school, or in some combination. But the starting point is attendance in a public school.

Whatever the political logic of this requirement, it seems to be both unfair to parents who have directly chosen to home school or to send their children to a private school and very disruptive to Nevada schools: parents seeking ESA support for their children will first enroll them in the local public school and then, after 100 days, transfer them to a private school--causing disruption both to the public school and the private school--or to homeschooling, causing disruption to the public school.

A positive note in the Nevada law: it specifically provides that a private school that receives any of the ESA funding does not thereby lose any of its independence nor become in any way a "state actor" that must thereafter follow the secular rules that the government must follow.

The common school ideal is deeply embedded in the American soul. And yet our diverse population of families in truth adheres to many different ideas of schooling, different conceptions of how religion and schooling should be interrelated; different views of how best to educate; different views of how parents, schools, and students should work together; different views of classroom discipline and even of the goals of schooling. Vouchers and ESA programs are important ways to direct government education funding to the schooling choices of the families.

Further reading:

Matthew Ladner, The Way of the Future: Education Savings Accounts for Every American Family (Friedman Foundation for Educational Choice, October 2012).  

Council for American Private Education, CAPE issue paper, "Principles Relating to School Choice Legislation"  

Charles Glenn, The Myth of the Common School (Institute for Contemporary Studies Press, 2002).

Charles Glenn, Contrasting Models of State and School: A Comparative Historical Study of Parental Choice and State Control (Bloomsbury Academic, 2011).