eNews for Faith-Based Organizations
December 14, 2011
Editor: Stanley Carlson-Thies
|Access Past Issues of the eNews|
An archive of current and past eNews for FBOs can be accessed HERE.
|CARD Demands Religious Hiring Data from the Administration|
The Coalition Against Religious Discrimination (CARD), "comprised of dozens of religious, civil rights, labor, secular, and women's organizations" and chaired by Rev. Barry Lynn of Americans United for Separation of Church and State, is taking a new tack in its war against the freedom in federal law for religious organizations to consider religion when hiring staff.
CARD is sure that religious hiring by faith-based organizations that receive federal funds is illegal, immoral, and unconstitutional, and cannot understand how the practice continues. Sometimes it suggests that religious hiring is illegal, so the administration must just stop it. Sometimes, though, it asks Congress to make the practice illegal. Sometimes it suggests that a Bush Executive Order authorized faith-based grantees to engage in the practice, but elsewhere it has admitted that the Bush Executive Order concerned religious hiring by contractors to the federal government (rather than by grantees--groups awarded federal funds to provide services to the needy). In yet other statements CARD has sought to shame President Obama into stopping religious hiring by quoting back to him a statement he made on the campaign trail.
CARD's latest effort cites administration statements that instances of what CARD calls "hiring discrimination" will be reviewed on a "case-by-case" basis. Joshua DuBois, executive director of the White House Office of Faith-Based and Neighborhood Partnerships has said that, if hiring issues arise, he will work with the White House Counsel, the Department of Justice, and the Attorney General to investigate the matter, and then forward a recommendation to the President. So now CARD has sent to each of the 13 federal departments or agencies with a Center for Faith-Based and Neighborhood Partnerships a letter demanding "transparency and information" on the supposed review process.
Of course, the baseline federal rule is that it is not illegal discrimination if a religious organization considers religion in its hiring and firing decisions (this is the religious exemption in Title VII of the 1964 Civil Rights Act).
● Many federal programs that award funds to private groups say nothing about employment requirements, thus not limiting this religious hiring freedom. CARD might not like it, but faith-based programs participating in these programs are not violating the law if they engage in religious hiring.
● Some federal programs do include a hiring rule that forbids discrimination based on race, ethnicity, sex, etc.--and religion. So religious hiring in these programs is illegal--but not because of any review or CARD pressure.
● Where there is a program ban on religious hiring, a faith-based organization can appeal to the Religious Freedom Restoration Act and ask the federal government to let it take part in the program anyway, even though it does hire based on religion. In such cases, there does have to be a federal "case-by-case" review of the claim by the religious group that the ban imposes a "substantial burden" on its religious exercise and that the federal government does not have sufficiently weighty reasons to impose that ban. There is a Department of Justice memo about this (from the Office of Legal Counsel), setting out the process and rules.
● Most federal money for services is sent to state or local government agencies, which then award the funds to private groups. Sometimes those agencies add a hiring restriction that the federal government has declined to add. But this is a state and local matter.
CARD ought to receive back from each of the Centers a polite and responsive letter simply setting out the law and affirming that the Center and the agency where it is located stick to the law when awarding grants and sending federal dollars to states, cities, and counties.
|Advancing LGBT Rights Overseas
The Religion Clause blogpost had this headline: "Secy. State Clinton Says Religious Objections Do Not Trump LGBT Human Rights.
" Sounds like an Obama administration thumb put firmly on the scales to elevate gay rights over religious freedom. Indeed, there could be dangers, but not necessarily.
Secretary of State Hillary Rodham Clinton's "Remarks in Recognition of International Human Rights Day
" were delivered December 6 in Geneva, Switzerland. She spoke about the Universal Declaration of Human Rights, a United Nations statement adopted Dec. 10, 1948, that affirms, in her words, that "All humans are born free and equal in dignity and rights," and those "rights are not conferred by government." In light of those fundamental principles, she said that governments around the world, including the US government, should do much more to protect the rights of gay, lesbian, bisexual, and transgender people.
So just which LGBT rights does the Secretary believe take precedence over "religious objections"? Secretary Clinton said that "religious or cultural values" and "traditions" cannot validly be used as a reason to violate or not to protect the human rights of LGBT citizens." "[N]o practice or tradition trumps the human rights that belong to all of us. And this holds true for inflicting violence on LGBT people, criminalizing their status or behavior, expelling them from their families and communities, or tacitly or explicitly accepting their killing."
But, of course, to say that religion does not validate wanton killing or the abridgement of the rights of gay persons is not the same as asserting that gay rights should triumph over religious freedom. Still, given actual conflicting claims, Secretary Clinton should have been more forceful in emphasizing respect for religious freedom. After all, the Universal Declaration of Human Rights
states firmly, "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance" (Art. 18).
More clarity is needed, too, in the "Presidential Memorandum--International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons
" that was released by the White House the same day. In this directive to the executive branch, the President orders "all agencies engaged abroad to ensure that U.S. diplomacy and foreign assistance promote and protect the human rights of LGBT persons." The departments of State and Defense and USAID--but also Treasury, HHS, Homeland Security, Agriculture, and other federal entities--are to work on their own and with foreign governments and multilateral agencies to combat discrimination against and mistreatment of LGBT persons and to ensure quick responses to "serious incidents that threaten the human rights of LGBT persons abroad."
Yet there are troubling phrases--troubling given how LGBT rights are often pitted against religious freedom. The US agencies are to "combat discrimination, homophobia, and intolerance on the basis of LGBT status or conduct." Not only federal officials but also their "key partners" have to "effectively address the protection of LGBT refugees and asylum seekers." And in their efforts to "build respect for the human rights of LGBT persons" the US agencies are to be engaged with not only foreign governments but also with "citizens, civil society, and the private sector."
The problem isn't that the US agencies are directed is to vigorously pursue justice and to work with other governments to ensure fair treatment of everyone. Rather, the problem is that persons and organizations exercising their faith convictions about appropriate conduct may wrongfully be tagged as homophobic and intolerant. And there might be another problem. Zealous officials might misread the President's memo as requiring a bias against faith-based organizations here and abroad that have reservations about sexual conduct that isn't in accord with religious traditions. Such organizations might find themselves excluded from federal grants.
Unless care is taken, gay rights and religious freedom can clash. So it is, at the least, disappointing that neither Secretary Clinton nor President Obama bothered to affirm a commitment to respect the whole range of human rights, including religious freedom.
|Good News in the Regulatory Fine Print|
The Clinton years, with Charitable Choice language added to four federal programs, and the Bush years, with Equal Treatment regulations adopted across federal spending to extend Charitable Choice-like principles to the other federal programs, are notable for high-profile "faith-based initiative" action. The Obama administration, though with less controversy (notwithstanding the efforts of CARD--see the first story above!), has maintained the principles developed during those two previous administrations. President Obama, in November, 2010, issued his own Executive Order 13559, "Fundamental Principles and Policymaking Criteria for Partnerships With Faith-Based and Other Neighborhood Organizations," which slightly adapts, but mainly confirms, those principles.
And the Obama administration has also moved ahead in the details of regulations. The Working Group charged by the President's Executive Order with recommending regulatory changes has yet to report. And some of the regulatory activity has been troubling to many faith-based organizations--note, for instance, the widespread concern about the health insurance regulation that requires plans to cover contraceptives, including two drugs regarded by many to be abortifacients, with only a minor exemption for churches.
Yet there have also been positive regulatory developments. Note these two instances:
The Dept. of Housing and Urban Development recently announced interim regulations for the Emergency Solutions Grants program, a revision of previous programs, as required by the HEARTH Act of 2009. The regulations specifically provide for participation on an equal basis by faith-based organizations while protecting their religious identity and voluntary religious activities. The regulations also set out how costs are to be allocated if a facility is used both for ESG-funded activities and for inherently religious activities. 76 Fed. Reg. 75988 (Dec. 5, 2011).
The Economic Development Administration of the Dept. of Commerce has amended a regulation which had required that when an organization bought property with federal funds, that property could never be used for religious activities like worship, even though the organization's participation in the federal program had ended decades before. The restriction was due to an old Supreme Court interpretation of the First Amendment. However, the courts and the federal government have revised their interpretation of the Amendment's Establishment Clause. Accordingly, the amended regulation removes that "forever" ban, which, the government says, likely discouraged faith-based organizations from taking part in the federal program because of the ban's restriction on future uses of property. 76 Fed. Reg. 76518 (Dec. 7, 2011).
|Religion Not Banned After All from Gospel Rescue Mission
The Boise Rescue Mission had been sued by two people because it required them to take part in religious activities. The Mission is privately funded and, not incidentally, devoted to witnessing to the Bible as it serves the homeless. Neither of the two people who complained were required to be at the Mission, although one of them had agreed to participate in the Mission's discipleship-oriented drug treatment program after a judge had given her the choice of seeking treatment or going to the county jail. The Ninth Circuit federal appeals court in September upheld a lower federal court's ruling that the lawsuit was groundless and the Mission could not be required to give up its Gospel activities. The Becket Fund for Religious Liberty defended
the Boise Rescue Mission.
"The Most Sacred of All Property: Religious Freedom and the People of Maryland. A Statement from the Catholic Bishops of Maryland
* "Religious freedom is not merely a civil right afforded us by our government, but, more fundamentally, it is a natural right due each person because of his or her human dignity."
* "Religious freedom is so fundamental to our nature that not only does it uphold individual human dignity, but it is also integral to the establishment of a good and just society."
* "Americans are blessed to enjoy freedoms for which many in our world can only hope, and for that we should be truly grateful. But in recent years there has been a subtle promotion of the idea that religious liberty should be restricted to Sunday morning worship."
* "The separation of church and state we so cherish here in America is as much about protecting religious bodies from government interference as it is the other way around. And rightly so: We cannot freely worship (or choose not to worship) God if government officials have the power to tell us how to do so. Sadly, there has been a growing trend of government intrusion into the institutional and administrative life of the Church."
|IRFA Needs YOU!
Keep the eNews for Faith-Based Organizations
and IRFA afloat!
IRFA depends in large part on donations from people like you, who care about faith-based services and about religious freedom. Will you come to the aid of IRFA in this season of giving? Thank you very much.
You can donate securely on-line here: http://irfalliance.org/donate.html
Faith-based organizations and associations of faith-based organizations can now support IRFA and institutional religious freedom by signing up for an annual membership. Organizations and individuals engaged in supportive work (leading, consulting with, or defending faith-based organizations, for example) can join as associate members.
For details and forms, go to: http://irfalliance.org/membership.html
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~For further information:
|What is IRFA?|
The Institutional Religious Freedom Alliance works to safeguard the religious identity, faith-based standards and practices, and faith-shaped services of faith-based organizations across the range of service sectors and religions, enabling them to make their distinctive and best contributions to the common good.