After the Court's marriage ruling:  The Sky isn't falling - but FBOs must speak up.

by Chelsea Langston

Local, state and federal governments have long recognized that faith-based nonprofit organizations are an integral, distinctive and constant source of aid, compassion, and hope for addressing the needs of communities throughout America. This recognition needs to be affirmed as local and state governments will now need to work to preserve religious diversity in light of the recent Supreme Court decision.

Governments throughout the U.S regularly turn to faith-based organizations for partnership in innovating creative and timely solutions to deal with immediate or ongoing needs, from disaster relief, to education, to housing, to child welfare, to healthcare.

Just last week, Arkansas governor Asa Hutchinson announced he is forming a summit to reach out to religious entities of multiple faiths to bridge the gap the state is facing with foster care and prison re-entry programs. "What we want to do is inspire greater engagement of our faith community and our religious organizations in supporting the care of our children and those that are leaving prison and re-entering society," the Governor stated. Hutchinson went on to say at a news conference that he wanted faith-based organizations to "identify any obstacles from a governmental standpoint in partnering with us and carrying out their mission." 

The above is just one example of why governments should be listening sincerely to what faith-based organizations, as non-governmental actors supporting the common good, have to say.  And why faith-based organizations should be proactively communicating, now more than ever.

The Supreme Court's decision last month in Obergefell does not impact faith-based organizations directly until laws and regulations are changed.  The decision unfortunately fails to give any guidance as to how they should be changed, either to safeguard religious freedom for faith-based entities or to ensure nondiscrimination for same-sex married couples.

As Kennedy states in the majority opinion: "The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex." These words make clear that the majority opinion upholding same-sex marriage applies to governments specifically.  Kennedy's focus on what state actors must do in light of this decision, categorically, does not apply to non-governmental entities without further legislation and regulation. 

Indeed, Kennedy addresses the freedom of religious institutions, as opposed to governmental actors, explicitly, albeit briefly, in his opinion.  "The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered."  

However, there are still major concerns and many unanswered questions for religious entities as state, local and federal governments develop new laws and regulations to articulate answers to the many dangling question-marks on how the rights of individual same-sex couples will intersect and collaborate with the rights of religious institutions. 

• Will religious schools that uphold opposite-sex marriage in their teachings and practices risk losing their tax-exempt status? 
• Will faith-based child-welfare agencies be forced to shut their doors if their doctrines limit their ability to treat same-sex marriage on the same basis as opposite-sex marriage in child placement?
• Will faith-shaped homeless shelters receiving government grants be barred from future partnership opportunities with the government because they consider religion in their hiring practices?

The answers to these questions are still, largely, unknown. Many are engaging in a back-and-forth dialogue about whether the currently fragile circumstances for faith-based freedoms are, on the one hand, tragically doomed, or, on the other hand, completely overstated.  The truth of the matter is that faith-shaped institutions can participate, positively and proactively, in the shaping of their own futures. 

Faith-based organizations need now, more than ever, to connect the calling from their Creator that invokes them to serve to the same calling from their Creator to uphold what their sacred texts teach regarding sexual ethics, marriage and family. As legal scholar and University of Virginia law professor Douglas Laycock wrote in his amicus brief to the Supreme Court:

"Believers cannot fail to act on God's will, and it is no more reasonable for the state to demand that they do so than for the state to demand celibacy of all gays and lesbians. Both religious believers and same-sex couples feel compelled to act on those things constitutive of their identity, and they face parallel legal objections to their actions..... Religious believers ...claim a right to follow their faith not just in worship services, but in the charitable activities of their religious organizations and in their daily lives."

Faith-based organizations need to continue to animate their organizational lives with their faith, in ways that the world deems both popular (selfless acts of service) and, often, unpopular (conservative sexual standards). Religious organizations of all faiths need to boldly advance their faith-shaped freedoms and identities by engaging in public policies that promote religious diversity, by implementing internal best practices that align their faith to every application of their mission, and by consciously projecting a positive public perception in their messaging and their actions. This includes:

• Practice: Consider how your faith-based mission is being expressed in every sector of your operations.

• Public Policy: Consider how local, state and federal laws and regulations are impacting your capacity to continue to serve as an organization with distinctively faith-shaped standards and services.

• Public Perception: Consider how to articulate your faith-based organization's unique and distinctive values proposition.

Sister Neill Marriott, in an LDS Church press conference in January, stated: 

"There's ample evidence in the life of Jesus Christ to demonstrate that He stood firm for living the laws of God, yet reached out to those who had been marginalized even though He was criticized for doing so. It's for this reason that the Church has publicly favored laws and ordinances that protect LGBT people from discrimination in housing and employment." 

This rhetoric establishes common ground with a people group, recognizing faith calls us to do justice for vulnerable populations without sacrificing the law we believe God has placed on our hearts.

In doing these three things, faith-based organizations can truly live out what their faiths call them to do: to love our neighbor as themselves.  In ensuring that organizational practices embody such care for neighbors, in engaging in public policy work that preserves their capacity to serve their neighbors, and in proactively communicating so that the public has an accurate perception of why they serve in the way they do, faith-based organizations help to preserve the legal and social freedom they need to flourish.

Will Congress protect the non-profit status of religious schools?

by Stanley Carlson-Thies

Will Congress act to ensure that religious schools do not lose their non-profit status if they maintain the belief in man-woman marriage?  An effort to protect the schools is not quickly gaining congressional support.  But they are not in imminent danger, either.

The issue was put on the table during the oral arguments in the Supreme Court's same-sex marriage case, Obergefell v. Hodges.  When Justice Alito asked Solicitor General Verilli about it, the administration's top lawyer would only say, "It's going to be an issue."  The precedent is the IRS revocation of the tax-exempt status of Bob Jones University in the 1970s because of the university's racially discriminatory policies.  The university claimed that the constitutional protection of religious freedom shielded its policies but the IRS said that it was required to revoke the tax exemption of nonprofits that violate fundamental public policy-in this case, the federal government's clear opposition to "racial discrimination in education."  In a 1983 Supreme Court decision, the IRS's stance was backed up.

In Obergefell, the Supreme Court did not decide that discrimination against same-sex married couples is akin to racism.  Instead, it ruled that no state government can exclude same-sex couples from marriage.  That decision does not say how private persons and organizations must treat same-sex marriages.  Similarly, while the Constitution forbids government from restricting the free exercise of religion, that constitutional principle does not require, say, a secular university to hire religious professors, to teach that religion is true, or to promote worship by erecting a chapel.

However, the federal government, in response to Obergefell, might adopt laws and regulations prohibiting private organizations from discriminating against same-sex married couples.  Those actions might eventually amount to what looks like a fundamental public policy.  And then the IRS might consider itself justified in stripping tax exemption from religious schools, colleges, and universities that do not embrace marriage equality.  And with the loss of the tax exempt status, the educational institutions would also lose the ability to accept tax-deductible charitable contributions.

Losing their federal non-profit status, and being excluded from receiving tax-deductible charitable donations, likely would devastate private education from pre-K through graduate school.  These institutions are sometimes wholly excluded from government funding, and even if not excluded, they depend to a significant extent on donations. Losing donor income while also having newly to pay taxes-that would be a harsh blow to independent religious education.

So, what will Congress do?  The preliminary news is not encouraging.  A quiet effort behind the scenes in the Senate to gain bipartisan support for a protective amendment to the bill to reauthorize the Elementary and Secondary Education Act found some interest but ran out of time before the Senate debated and adopted the bill. In the meantime, when a reporter for the Weekly Standard asked several Democratic senators about protecting the religious schools, there was no great surge of support for their religious freedom.  

Still, while concern is justified, panic certainly is not.  The federal government is a long way from having taken the multiple initiatives that would amount to a new basic national policy supporting same-sex marriage over religious freedom, and while Congress may be reluctant affirmatively to support the religious schools, it is at least as reluctant to act against them.

No reason for complacency, though.  States also offer tax exemptions to nonprofit organizations, and in at least one state-California-there have been efforts to strip the exemption from the Boy Scouts because of the (soon to be ended) Scout policy against openly gay Scoutmasters.  That effort so far has not succeeded, and the Scouts are not a religious organization.  Still, this is a troubling initiative.

States bolster religious freedom after Supreme Court same-sex marriage decision

by Stanley Carlson-Thies

The Supreme Court's Obergefell decision requires states to allow same-sex couples to marry.  Churches and ministers will not be required to conduct gay weddings, but will faith-based adoption agencies, religious counseling services, wedding-service businesses operated by religious people, and independent religious schools be required to treat same-sex married couples the same as traditionally married couples?  That's up to state rules, and in many cases these state rules have yet to be written. 

When, before the Supreme Court or other judges acted, a dozen states (counting also Washington DC) legislated marriage equality, they each also enacted at least some protections for religious organizations.  If a state has a sexual orientation nondiscrimination law, then it is illegal to treat same-sex marriages differently -- but many states do not have such a law and those that do all have some kind of religious exemption. And 21 states have Religious Freedom Restoration Acts that offer organizations and persons a day in court to challenge laws that they believe violate their religious freedom.

Here are two new actions:

On July 7, Kansas Governor Sam Brownback signed a state Executive Order protecting organizations and persons in the state from being punished by the state government-by a fine, loss of a grant, loss of accreditation or license, loss of tax exemption, etc.-because of their religious or moral conviction in favor of man-woman marriage.

And on July 2, the Attorneys General of 15 states wrote to the leaders of the House and Senate asking Congress to act to prevent the IRS from being able in the future to exclude from tax-exempt status religious organizations that remain committed to traditional marriage. 

Going beyond one-sided initiatives on RF and LGBT protections

by Stanley Carlson-Thies

Long before the Supreme Court ruled that states may not exclude same-sex couples from marriage, proponents of LGBT rights were planning on how to expand LGBT rights and proponents of strong religious freedom protections were planning legislation that would protect religious organizations and people who for religious reasons do not support LGBT conduct and relationships.

One LGBT initiative comes from the Human Rights Campaign.  Another initiative is from the Center for American Progress.  Both organizations seek a comprehensive LGBT rights law, banning discrimination on the bases of sexual orientation and gender identity in employment, housing, grants and contracts, education, consumer credit, and more.  Weak or no exemptions for religious organizations or religious small businesses are proposed.  No bill has yet been introduced in the House or Senate. 

Religious freedom protection bills have been proposed in the House and the Senate.  The First Amendment Defense Act (FADA) -- HR 2802 and S 1598 -- is substantially the same as the Marriage and Religious Freedom Act that was introduced in the last Congress but saw little action.  These bills are designed to protect from adverse government action both people and organizations who are committed to traditional marriage.  Adverse government action encompasses such action as denial of tax exempt status, exclusion from grants or contracts, denial of a license or accreditation. 

Here's a thought:  combine the two initiatives. No person should be excluded from employment or housing or subjected to mistreatment because of their sexuality or gender identity. The Supreme Court has ruled for marriage equality, popular opinion increasingly supports gay marriage, many states and the Obama administration have acted to protect LGBT rights in various areas, And yet our nation has and should protect conscience and religion, including religious organizations that dissent from popular morality. 

Legal equality with respect to governmental action can and often does go along with differential treatment in non-governmental life-in churches, businesses, civil society.  The government must ignore religion when deciding who gets a government job or a tax break; the government cannot exclude women from federal support for higher education; the government cannot decide to support research by Hispanic scientists but not research by Nordic scientists.  Yet religious stations can get broadcast licenses and secular stations can ignore religion.  Single-sex colleges can exist and their students can get federal support.  La Raza, the Hispanic civil rights organization, need not pretend that a Lars Larsen is likely to become its executive director any time soon. 

Those who believe that LGBT conduct and relationships are morally no different than heterosexual conduct and relationships are here to stay in our society.  Those who believe that God, or nature, provides guidelines for sexual conduct and relationships, and that LGBT conduct and relationships do not measure up are also here to stay in our society.

What our nation needs are legislative measures that accommodate both realities, both sets of convictions:  LGBT rights are being recognized, but religious freedom needs to be protected. 

Will bold leaders in Congress combine the two initiatives:  greater protection for LGBT rights, strong and lasting protection for the religious freedom of people and organizations?  Now is the time.

Circle still not squared: more HHS contraceptives mandate final rules and another appeal to the Supreme Court

by Stanley Carlson-Thies

On July 10, 2015, the federal government published yet another set of regulations concerning the HHS contraceptives mandate, intended to comply with the requirement that it respect the religious freedom of non-church organizations while it pursues its goal of ensuring widespread access by women to contraceptives.  But these regulations, too, are sure to be challenged on religious grounds.

These are the final versions of regulations first proposed a year ago.  One set is a response to the Supreme Court's Hobby Lobby decision (June 30, 2014), in which the Court ruled that the Religious Freedom Restoration Act (RFRA) protected the owners of Hobby Lobby and Conestoga Woods when they excluded for religious reasons from their employee health plans certain contraceptives that they regard to be abortifacients.  These are all closely held companies, and in protecting the freedom of the companies not to include the contraceptives, the Court said that it was protecting the freedom of the companies' owners to follow their religious convictions about contraceptives.  Further, the Court said that the federal government could not force the companies to include the contraceptives because clearly there was at least one other way to ensure access to the contraceptives without imposing such a heavy burden on the religious exercise of the owners. 

That other way was the "accommodation" the government offers nonprofit religious organizations, which, unlike churches, are not exempt from the mandate.  In the accommodation, a religious nonprofit organization with an objection to some or all contraceptives fills out Form 700 and gives it to its insurance company or to a third-party administrator (TPA) if it self-insures.  The form instructs the insurer or TPA to exclude those contraceptives-and then requires the insurer or TPA to pay for the exact same contraceptives and to inform the objecting organization's employees that they have full and free access to those very contraceptives. 

The Supreme Court did not rule that this accommodation was a sufficient alternative for Hobby Lobby and other objecting companies, only that it might be and that the federal government had not even explored the possibility.

However, just a few days after the Hobby Lobby decision, the Supreme Court made an interim ruling in response to a request from Wheaton College that it be excused on religious conscience grounds from having to file Form 700.  Filing Form 700, the college argued, was little different than simply having all the contraceptives be included in its health plan, for when it filed the form, it both received a promise from the insurer or TPA that the college's insurance plan would exclude morally objectionable contraceptives and set in a motion a legal requirement that the insurer or TPA would provide coverage of just those contraceptives to the college's women employees.  The Court agreed to the extent of releasing Wheaton College from the contraceptives mandate as the courts work through the religious freedom issues.  The college, as the Court observed, had already told HHS that it was a religious organization and that it had a religious objection to coverage of some of the contraceptives, although it had not used Form 700.  And, the Court said, even without Form 700, the government could ensure that Wheaton's insurer or TPA would provide the contraceptives coverage.

In response to these two Court rulings, the federal government issued "interim final regulations" providing for an alternative accommodation to Form 700-this was its response to the Wheaton ruling.  And it issued a notice of proposed rulemaking that solicited definitions of a closely held corporation and ways to provide an accommodation for closely held companies that, like Hobby Lobby, objected to some or all contraceptives.  Its alternative accommodation method permits Wheaton College and other religious nonprofits that object to filing Form 700 instead to notify HHS of the objection to contraceptives while providing to HHS information on the insurer or TPA, so that the government can be sure that the insurer or TPA will provide the contraceptives coverage directly to the employees.

In the final regulations just issued, the federal government provided a definition of a closely held company and then (a) finalized the alternative accommodation method and (b) changed the definition of the kinds of organizations that can utilize the accommodation-now it includes both religious nonprofit organizations and closely held companies whose owners have a religious objection to some or all contraceptives. 

So now religious nonprofits that objected to filing Form 700 have confirmation that they can, instead, alert HHS about their objection, and leave it to HHS to contact the insurer or TPA.  And closely held companies that, like Hobby Lobby, object to including some or all contraceptives in their health plan can utilize either of the "accommodation" alternatives.

And yet these final regulations will surely not actually be final.  Many religious nonprofit organizations have already objected to the alternative accommodation method.  In fact, not long before these final regulations were issued, three religious educational institutions had already petitioned the Supreme Court to rule that neither of the two accommodation methods actually lifts the religious burden from objecting religious nonprofit organizations.  

Here's a summary of what Houston Baptist University, East Texas Baptist University, and Westminster Theological Seminary have said to the Court.

In your Hobby Lobby decision, you clearly ruled that what is critical in these cases about religious burdens is whether the organization with the religious claim sincerely believes that it has been asked to act in a way that violates its religious convictions.  If there is such a sincere belief, and if the consequence for not doing what the government requires is the imposition of a heavy penalty-violating the contraceptives mandate can result in hundreds of thousands of dollars of fines annually even if the organization is not very large -- then a court must accept that the organization's religious exercise has been substantially burdened, and now the government has a tall task to be able to proceed with its requirement. 

But, the petitioners say, the federal appeals courts are ruling in a different way than this.  Many religious organizations have protested that the two accommodation methods are not acceptable-not meaningfully different than just directly including the contraceptive coverage in their health plans.  Whichever accommodation method an objecting organization uses, the result is the same:  its insurer promises health insurance coverage that excludes certain contraceptives and then, as required by the federal government, the insurer immediately provides exactly coverage of those contraceptives to the same employees.  The accommodation does not enable them, as their convictions require, to offer their employees health insurance that excludes drugs and procedures that can kill nascent life.  Instead, it is their very insurer or TPA that provides coverage for those very drugs and procedures, and that coverage is by law triggered by the very forms that supposedly enable the organizations to obtain acceptable insurance.  So, according to their sincere religious belief, the accommodation methods are no better than simply being required to have the coverage in the health plans from the start.

But the appeals courts are not accepting these religious claims.  Instead, the appeals judges are ruling that there is no substantial burden because the judges-though not the religious organizations-believe that the accommodations do resolve the religious problem.  Just file the paper-surely that does not make the organization complicit in the coverage, the judges say.  And since the judges regard the accommodations to be suitable, they are denying the religious organizations their claim of a religious burden.  The appeals judges are substituting their own religious judgement for that of the religious organizations-exactly what they are forbidden to do.

So the Supreme Court is now being asked to intervene, to accept the sincerity of the claims of these three religious education institutions-and many others-that the accommodations are not acceptable.  If so, then the accommodations do not resolve the religious freedom problem for the religious nonprofits or for the closely held companies that have religious objections.

And then the final regulations will prove to be just another in a long line of proposed, finalized, modified, and amended contraceptives mandate regulations.

Despite the Colorado Supreme Court, school vouchers are in fact like Medicaid

by Chelsea Langston

Diversity in education is a core principle that the Supreme Court has long validated. In Zelman v. Simmons-Harris(2002), the U.S. Supreme Court upheld a voucher program in Ohio that provided public funds to parents of modest means, permitting them to use the funds to send their children to any private educational institution participating in the program, including faith-based organizations.  In the Ohio program, despite the fact the most of the participating schools were indeed faith-based, the Supreme Court ruled that the program was permitted under the Establishment Clause. 

The Court noted that parents were free to choose to send their children to public school, participating religious institutions, or secular independent schools.  Therefore, because parents were presented with a diversity of educational options for their children, and the families retained the autonomy to choose how to educate their children, the Ohio government remained neutral religiously.  

In late June, the Colorado Supreme Court invalidated the first locally established, district-wide voucher program in the nation, the Douglas County Choice Scholarship Pilot Program. While programs of this nature are usually set up by state legislatures, in Douglas County, the local school board unanimously voted to create this program in 2011.  The school district voucher program offered scholarships up to 75% of the district's per-student revenue, reserving the other 25% for public schools.  However, the ACLU, along with several other organizations, filed suit against Douglas County School District in 2011, rendering the school-choice program inactive.  The plaintiffs argued chiefly that the program violated the Blaine Amendments in Colorado's state constitution. 

Blaine Amendments, still found in a majority of state constitutions, came about in the 1800's as a response to Catholics seeking funding to start their own schools due to the fact that at the time, public schools were still distinctly protestant in their instruction and culture.  Blaine Amendments were established by Protestant public school proponents to ban government funds from going to any "sectarian" (read Catholic) educational institutions.  It is not insignificant to note that during and after the passage of the Blaine Amendments, public schools continued to openly instruct students in Protestant religious doctrine.

An amicus brief filed by the Friedman Foundation for Educational Choice and the Independence Institute noted that voucher programs showed to have a net positive effect on academic achievement in several states. 

While the plaintiffs were awarded a preliminary injunction in this case by the district court, in March 2013, the Colorado Court of Appeals overturned the ruling and it was sent to the Colorado Supreme Court for review, where the voucher program was ultimately struck down. The Colorado Supreme Court's ruling seems to be in direct contrast to the U.S Supreme Court's ruling in Zelman, where the Court made clear vouchers do not equate to governmental funding of religion.  The Colorado Blaine Amendment issue may now make its way to the Supreme Court. 

In Nevada, a new piece of legislation being touted as the nation's "most sweeping voucher program ever enacted" is giving parents around $5000 per child (not attending public school) to put towards any educational expenses of their choice, including religious institutions.

Nevada's constitution also has a Blaine Amendment, prohibiting public funds from going to any sectarian institution.  Proponents of the Nevada voucher program are concerned it could go the way of the Douglas County program and become judicially invalidated. However, there is hope that this will not happen, and it is significant to note that the voucher program has not yet been challenged in court.

One of the sponsors of the Nevada bill, Rep. Scott Hammond, likened the state's school voucher program to Medicaid, where public funds are used to compensate faith-based healthcare institutions for the care of a patient.  The state senator also emphasized that the individual recipient of funds is the one making the choice where to receive services, whether medical or educational, not the government.

According to the Las Vegas Sun, "In North Carolina and Florida, court battles are still being waged over the constitutionality of vouchers. In Indiana and Alabama, vouchers have been declared constitutional."

As state school voucher programs are created, implemented, and legally challenged around the country, it is important to emphasize that religious schools are just some of many players in a diversity of options for parents regarding their children's primary and secondary education. 

Parents should be able to consider religion as one of many factors at play, including academic rankings, class sizes, the learning challenges of particular children, extracurricular offerings, athletics, teaching styles, etc., when they make the very personal choices about how and where to educate their children.  Public policy, to be just, needs to find a way to accommodate faith-based educational institutions for parents who want to choose them, just as Medicaid has accommodated religious hospitals for patients who wish to seek medical services there.  Faith-based schools often provide unique, indispensable educational opportunities for children who have failed to thrive in other educational settings.  It is essential for policymakers to continue to develop innovative solutions for working around Blaine Amendments to ensure the diverse educational needs of all children and families are met.