Feeding the Homeless Requires Religious Freedom

Chelsea Langston

Behavior is central to belief.  Personal behavior stemming from belief -- such as praying, worshipping, studying a sacred text, or spending time with people of the same faith -- are generally accepted as legitimate actions closely connected to the practice of one's faith.  However, what happens when your faith, as virtually all religions do, calls you to step out and live your faith in public life?

The calling to serve others in the public square is an important tenet for many world religions.  Muslims believe "(The righteous are those) who feed the poor, the orphan and the captive for the love of God, saying: 'We feed you for the sake of God Alone; we seek from you neither reward nor thanks" (Quran, 76:8-9). Similarly, the Old Testament reflects the centrality of the tenet to serve the most vulnerable among us: "Give justice to the weak and the fatherless; maintain the right of the afflicted and the destitute" (Psalms 82: 3-4). Along the same lines, Hinduism expresses the principle of service to others as an essential practice of the faith: "Strive constantly to serve the welfare of the world [...] do your work with the welfare of others always in mind" (Bhagavaa Gita 3.10-26).

In San Antonio, Texas, Joan Cheever has fed the homeless on a weekly basis for over ten years, but was recently issued a citation related to this practice. An NPR article about Cheever's story, called "When Feeding the Homeless Runs Afoul of the Law," reported: "The National Coalition for the Homeless says upwards of 30 cities have some kind of ban on distributing free food for the homeless. Many, including San Antonio, want to consolidate services for the homeless in one location--often, away from tourists."

Cheever claims her actions are protected by the Texas Religious Freedom Restoration Act. Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 in response to the Supreme Court's ruling in the Smith case. In Smith, the Court said that because a law about illegal drugs was general and not targeted to harm religion, it could be applied against a Native American man who claimed that he smoked peyote, an illegal drug, as part of a religious ceremony. Congress considered such an interpretation of religious freedom to be inadequate and adopted RFRA as a remedy. RFRA says that if a generally applicable law substantially burdens a person's sincere exercise of their religion, the law can only be applied if the government can prove it has a compelling interest for the burden and there is no less burdensome way to protect that interest.

Four years later, in City of Boerne v. Flores, the Supreme Court ruled RFRA applies only to the federal government and not to the states. In response, many states have adopted their own state RFRAs or have amended their constitutions to reflect the RFRA principles. Texas has a state RFRA that Cheever plans on appealing to.

The question in Cheever's case is whether the San Antonio ordinance actually "substantially burdens" Cheever's practice of her faith. This month, Cheever is challenging the ticket in court.  Religious freedom scholar Douglas Laycock commented that a look at the several cases in jurisdictions around the country regarding providing food to the homeless and religious liberty shows that the courts have been divided. 

Laycock speculated to the Huffington Post in April that Cheever's legal situation could hinge on how burdensome the city of San Antonio's permitting process is. "If she really doesn't qualify for a permit, because of some reason related to the safety of the food, the court may be more deferential and less protective," Laycock remarked. "But it sounds like that is not the most likely possibility." It remains to be seen what the court will make of Cheever's religious freedom claim. 

What is clear though, is that Cheever's story has drawn national attention to a positive example of the practice of religion that RFRA was designed to protect.  In recent months, religious freedom in America has become synonymous in the minds of many with policy stances on controversial issues such as same-sex marriage and abortion.  These are among the issues that are very important to many religions, but they are only part of the story.  Service to the needy is a major theme for many religions as well.  And thus, only discussing religious freedom with examples related to sexual and reproductive standards does a disservice to the totality and spectrum of faith practices in public life that religious freedom for individuals and organizations seeks to protect.

The Institutional Religious Freedom Alliance (IRFA) is working to change the public perception about what religious freedom for faith-based nonprofit organizations is all about.  Faith-based service organizations, at their core, are trying to live out the calling of their most sincerely held religious beliefs to participate in restoring justice through their distinctive, faith-driven purposes. 

Issues around religious groups feeding the homeless are an illustration of the importance for faith-based nonprofit organizations to do the following:

1. Advocate for public policy that upholds their ability to practice their faith in public life.

2. Embody internal best practices centered on advancing their faithful mission and,

3. Cultivate a positive public perception that connects the excellent services their organizations provide to their religious identity.

IRFA's focus is to equip faith-based organizations to advance their own religious freedom, and religious freedom for groups of all faiths, by engaging in and embodying the policy, practice, and public perception model.

What Will the Supreme Court Say About Same-sex Marriage?

Stanley Carlson-Thies

On June 29 or 30, most likely, the US Supreme Court will issue a ruling in the same-sex marriage cases that are grouped as "Obergefell v. Hodges."  Put simply, the issue is whether every state must allow same-sex couples to get married.  What should faith-based organizations do to prepare for the decision?

Many, though not all, religions and denominations have long-held and continue to believe that marriage is an opposite-sex relationship. If marriage is redefined to include same-sex couples, not only persons but also organizations that remain committed to the previous view may--unless new protections are created--encounter challenging decisions. 

For example, will it become illegal for a religious school to teach its religious convictions about marriage? Will organizations that maintain the traditional definition of marriage lose their tax-exempt status?  Will a marriage counseling service be able to counsel about marriage the way the service's religious convictions understand marriage to be?  The list goes on.

These challenges occur not because these religious organizations are dedicated to political or legal efforts to define marriage in one way or another for our nation.  They simply want to conduct their operations and provide their services in a way that reflects and honors their foundational religious convictions, including their convictions about such an important matter as marriage. 

And yet if the government's definition departs significantly from the religion's definition and the government view is made mandatory via nondiscrimination rules, employment law, licensing standards, requirements that recipients of government funds must follow, and so on, then the organizations may well be put in a terrible bind: follow your convictions about marriage and face lawsuits, fines, or a requirement to cease operating, or, to maintain your legality, act as if the government's new view of marriage is acceptable and the religious view can be discarded or be kept restricted to the walls of the worship building.

Yet, if the Supreme Court, rules for same-sex marriage, it can specifically remind legislators and government officials that they are duty bound to protect the free exercise of religion, including when religion shapes the operations and services of faith-based organizations like schools, adoption agencies, religious counseling programs, and residential facilities.  And then federal, state, and local officials can set about the challenging, but essential, task of protecting institutional religious freedom in light of same-sex marriage.

To some, the most important choice the Supreme Court will be making is whether to honor democratic choices or instead to impose its own views:  whether to allow the peoples of the various states to define marriage as their consciences compel them to or to step in and require one view across the whole nation. 

That's an important consideration--but even more important is that governments, whether motivated by voter choices or by court rulings, must uphold public justice and respect religious exercise and conscience, not only as an individual matter but when organizations regard themselves as duty bound to go against the current legal requirements.

Whatever the Supreme Court rules, the most important action that faith-based organizations must take is to examine their stated and unstated policies and practices and make sure that these are aligned with and rooted in the religious convictions they claim to be guided by.  This is important legally: a religious organization cannot easily claim religious freedom protections for its countercultural ways if it is not evident to judges and other observers that those countercultural ways are due to its religious convictions. 

And consistency and transparency are equally important for reasons of mission: if the organization exists to exemplify and further faith-inspired values, then those faith convictions ought to guide how the organization operates and serves.

New Michigan Adoption Laws Promote Adoptions by Protecting 

Faith-based Agencies

Chelsea Langston

On June 11, 2015, Michigan's Governor Rick Snyder signed into law three bills that advance the state's objective of placing as many children in adoptive homes as possible.

These bills, now Public Acts 53, 54, and 55 of 2015, received bipartisan sponsorship.  As the Governor's press release about the laws states, the statutes simply "help continue Michigan's successful placement of children with loving families by codifying current adoption practices within the state." In other words, the legislation puts into law what is already happening on the ground in Michigan. 

The laws confirm that faith-based adoption agencies that contract with the Michigan Department of Health and Human Services can continue to follow their religious beliefs and practices.  In practice, this means that religious agencies that have certain central beliefs about which types of families are in a child's best interest will continue to have the freedom to place children according to those faith convictions about how best to help the children.  If an agency decides it cannot serve some particular families or children, it must provide information about alternative agencies willing to serve these potential parents in a timely matter.  This is a codification of current practice. 

These laws, in short, uphold current practices in the state.  They protect faith-based agencies from having to choose between following their core convictions or continuing to provide adoption services in partnership with the state.  Governments that have not provided such protections have driven out of service faith-based adoption and foster-care agencies in Massachusetts, California, Illinois, and Washington, D.C.

The Michigan legislation takes into account the rising number of adoptions in Michigan in the last several years.  For example, while the adoption rate of children from the foster care system in Michigan in 2011 was 70 percent, in 2014, 85 percent of minors in the foster system were adopted.

"The state has made significant progress in finding more forever homes for Michigan kids in recent years and that wouldn't be possible without the public-private partnerships that facilitate the adoption process," Governor Snyder said. "We are focused on ensuring that as many children are adopted to as many loving families as possible regardless of their makeup."

The Michigan laws have been criticized as giving religious agencies a so-called 'license to discriminate' against certain families.  Yet, the new laws can better be understood as facilitating more adoptions by preserving diverse agencies to serve the diverse population of the state. 

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.  If these private agencies were banned from providing the services-the state would still have to provide these services directly.  It is unlikely that a government agency would enjoy the same level of trust, respect in the community, and relational capital as the faith-based agencies have earned, not to mention the government would be actively prohibiting religious people from being obedient to their faith.

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."

Free to Serve: Protecting the Religious Freedom of 

Faith-Based Organizations

Coming in October, 2015, from Brazos Press: Steven Monsma and Stanley Carlson-Thies, Free to Serve: Protecting the Religious Freedom of Faith-Based Organizations. 

From the publisher's description:

"What do Hobby Lobby, InterVarsity Christian Fellowship, Wheaton College, World Vision, the Little Sisters of the Poor, and the University of Notre Dame have in common? All are faith-based organizations that have faced pressure to act contrary to their religious beliefs. 

In this book, two policy experts show how faith-based groups--those active in the educational, healthcare, international aid and development, and social service fields--can defend their ability to follow their religiously based beliefs without having to jettison the very faith and faith-based practices that led them to provide services to those in need.

They present a pluralist vision for religious freedom for faith-based organizations of all religious traditions. The book includes case studies that document the challenges faith-based organizations face to freely follow the practices of their religious traditions and analyzes these threats as originating in a common, yet erroneous, set of assumptions and attitudes prevalent in American society. Helpful perspectives from experts representing various faith traditions are also interspersed throughout the book."

The book can be preordered now, from the publisher or Amazon or other booksellers.

Can Federal Contractors Continue to Staff on a Religious Basis?  

Two briefings.

Stanley Carlson-Thies

On June 17-18, 2015, Carl Esbeck of the University of Missouri Law School presented two Washington DC briefings on the right of religious organizations to consider religion in staffing, in the wake of President Obama's Executive Order forbidding job discrimination on the bases of sexual orientation and gender identity by federal contractors and subcontractors. 

The question arises because, while President Obama did not exempt religious organizations from the new nondiscrimination requirements in federal contracting, he also did not eliminate the existing religious exemption in the contracting rules.  That exemption is like the exemption in the general federal employment nondiscrimination rule (Title VII of the 1964 Civil Rights Act) and permits religious organizations to take account of religion when they make staffing decisions. 

And the question arises because, while the exemption permits employment decisions based on religious considerations, it does not exempt religious organizations from the requirement not to discriminate based on sex, race, national origin, sexual orientation, gender identity, etc.  And as part of considering religion when making staffing decisions, many religious employers take account of conduct and not just formal beliefs-they are seeking employees who exemplify in their lives the religious commitments of the organization (or, at a minimum, employees whose conduct and expression do not undermine those religious commitments).  Thus many religious employers have conduct requirements, which often include religiously based standards concerning marriage and sexual relationships.

As it turns out, the religious staffing exemption in the federal contracting rules (and in Title VII) is expansive enough to go beyond mere religious formality:  employers rightly can ask that an employee or potential employee not simply state agreement with the employer's religious beliefs and standards but manifest agreement in how they conduct themselves.  But "taking account of religion" when making staffing decisions cannot be arbitrary nor a pretext for making what is actually an illegal discriminatory decision. 

Here then is another reason for religious organizations to be systematic, transparent, and careful in connecting together their religious convictions, their policies, and their practices. 

And yet, because employer decisions are subject to second-guessing by disappointed job seekers, administrative officials, and judges, Congress would do well to specify more clearly that the religious decision-making that is protected by the religious staffing freedom is not narrowly confined by the prohibitions on discrimination on the bases of sex, sexual orientation, and gender identity.  Religion is not mere belief or talk but extends to assessments of how people act and to convictions about relationships. 

[Professor Esbeck's briefings are being developed into an article that will be announced by this eNews when available.]