Friday, May 24, 2013

Faith-Based Hiring Freedom


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eNews for Faith-Based Organizations
May 24, 2013

Editor: Stanley Carlson-Thies 
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In this issue
ENDA and Faith-Based Services
Religious Hiring, Rep. Bobby Scott, and AG Holder
Fortnight for [Religious] Freedom
Nuanced New Research on Faith-Based Organizations
Same-Sex Marriage Laws and Religious Freedom
Comments on Combined Fed. Campaign Proposed Rules Due by June 7
IRFA President's Kuyper Lecture on Institutional Religious Freedom
Worth Reading
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An archive of current and past eNews for FBOs can be accessed HERE.  
ENDA and Faith-Based Services
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Employment Non-Discrimination Act bills, aiming to end discrimination against employees on the bases of sexual orientation and gender identity (transgender) have been introduced again this session in both the House (HR 1755) and Senate (S 815). ENDA bills have a long history in Congress; the first one, Wikipedia says, was introduced in 1994. Some 32 states (including Washington DC) are said to have ENDA-like laws, but at the federal level no bill has yet made it through both the House and Senate and to a President's desk.

 

It seems unlikely that this Congress will break with precedent, given the House's Republican majority. In the meantime, some ENDA proponents have taken aim at the religious exemption that is in the House and Senate bills. The exemption (sec. 6) provides that an organization that is free to take account of religion when hiring, because it fits the religious exemption in Title VII of the 1964 Civil Rights Act, is exempt from ENDA's new nondiscrimination requirements. This exemption was put into the bill by ENDA's sponsors in 2007 when the House took up and eventually passed that year's ENDA bill (the Senate did not act). (Earlier exemption language in the ENDA bills that year was wholly inadequate and was strongly protested by religious organizations.)

 

The ACLU, the New York Times, and others are demanding that the religious exemption be narrowed, weakened. Instead, it ought to be strengthened if Congress insists on passing the legislation--strengthened so that, for example, a religious organization is assured it will not suffer retaliation from government (losing a license or grant or tax exemption, etc.) if it utilizes the exemption to uphold the organization's religiously based conduct code in which sexual activity is reserved for the man-woman marital relationship.

 

Further reading:  Steve Aden and Stanley Carlson-Thies, "Catch or Release? The Employment Non-Discrimination Act's Exemption for Religious Organizations," Engage, 11, no. 2 (Sept. 2010). 

Religious Hiring, Rep. Bobby Scott, and AG Holder              

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A year ago (June 7, 2012), the House Judiciary Committee held an oversight hearing into the Department of Justice. Among the many questions asked of Attorney General Eric Holder was a series of questions-and criticisms-from Virginia Democrat Bobby Scott, probing into the Obama administration's policies and practices concerning religious hiring by religious organizations that receive federal funds. AG Holder's written answers to additional questions, including additional questions from Rep. Scott about religious hiring, were finally received by the committee earlier this month. Both questions and answers make for interesting reading.

 

Of the answers, the most interesting is a list the Attorney General offers of six faith-based organizations that in 2008 and 2009 utilized a procedure authorized by the Religious Freedom Restoration Act to be able to take part in programs operated by the Office of Justice Programs (Dept. of Justice), even though the organizations hire according to religion and those OJP programs include a ban on various forms of employment discrimination, including religious job discrimination. The Department of Justice itself set out in the previous administration how RFRA permits such action, and this administration has followed the law in the same way.

 

On the other hand, Rep. Scott's questions betray a deep misunderstanding of the law and of faith-based organizations. For instance, he prefaces his questions by saying that earlier information from the Attorney General makes it clear that "notwithstanding federal statute[s] explicitly prohibiting discrimination based on religion, this Administration does in fact permit discrimination based on religion with federal funds." And thus, "an employer using government money can tell a job applicant-the most qualified job applicant-we don't hire your kind, even for a job paid for with taxpayer funds."

 

Isn't that something: asserting that the administration deliberately violates the law by giving federal funds to organizations that illegally consider religion when hiring staff. Surely, Rep. Scott, if blatant lawbreaking like this was happening, the ACLU, Americans United for Separation of Church and State, and others would instantly be in court to call a halt to the nefarious practice. Since they aren't rushing to court, perhaps what the religious organizations is doing isn't actually illegal. Moreover, it is odd, to say the least, to think that, for a religious organization, religion is and should be irrelevant as a job qualification. That's like imagining that political views are and ought to be irrelevant when Rep. Scott and his colleagues are selecting their own staff.

 

To be sure, the topic of religious hiring is complicated. But it isn't this complicated and mysterious. 

Fortnight for [Religious] Freedom
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The US Conference of Catholic Bishops has announced for a second year a "Fortnight for Freedom"--"a call to fourteen days of prayer, action, and study for religious freedom in the United States and abroad." This is a multi-faith campaign, running from June 21 to July 4, to draw attention to the growing challenges in the US and elsewhere to the freedom of people and institutions of faith to live in accordance with their deepest convictions. Go here for more information.  

Nuanced New Research on Faith-Based Organizations        

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Although it is common to talk about faith-based organizations as a generic term, in fact the organizations are very diverse, not only in the kinds of things they do (e.g., health care, emergency shelter, or radio broadcasting) but in how the religion that animates them shapes what they do and how they do it. Different religious traditions, it turns out, produce different kinds of faith-based organizations-differing, for example, in the extent to which the religion is overt (e.g., expressed in particular religious activities) or is "embedded": shaping all kinds of "secular" practices and policies.

 

These and other complexities of real faith-based service organizations in the United States were explored in a major research project, Faith and Organizations, headed by sociologist Jo Anne Schneider. A series of articles based on the project has now been published in the Nonprofit and Voluntary Sector Quarterly, vol. 42, no. 3 (June 2013), Sage Publications. Check it out at an academic library or ask your local library to get it for you via Interlibrary Loan. 

 

Also worth noting: a brief statement from the project about how public policies should take account of the real diversity that exists among faith-based organizations. Your humble editor and Jo Anne Schneider consulted with a range of church-state experts in drawing up the public policy statement.  

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Same-Sex Marriage Laws and Religious Freedom      

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The two trends continue to go together: states enact marriage redefinition laws and those laws fall short of providing more than minimal protection for the religious freedom of institutions and individuals. In the various states, legislators make a big show of protecting in the same-sex marriage law what doesn't require their attention-the freedom of churches and ministers to decline to perform marriages that are out of step with their respective religious traditions (sometimes these laws even admit that they are pretending to protect by statute a freedom that is actually guaranteed by the state's constitution!). And the legislators then minimize the harsh reality that they are willing to provide little protection for people and institutions of faith that seek only to continue to uphold marriage as they are sure God intends marriage to be.

 

Carl Esbeck, Rick Garnett, Tom Berg, Douglas Laycock, Robin Fretwell Wilson, and other top church-state experts continue to tell succeeding states what they ought to put into their marriage redefinition laws in order to prevent the predictable and wrongful attacks on religious freedom and the many lawsuits that will be the consequence of these deeply flawed laws. Alas, no state yet has proven to be a very good student of the excellent education they've been offered by this gang of experts.

 

Their letters to legislators and governors are collected on the Mirror of Justice website.

Comments on Combined Fed. Campaign Proposed Rules Due by June 7      

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The federal government has proposed an extensive revision of the regulations that govern the Combined Federal Campaign-the program that facilitates donations to charities by federal employees. The proposed changes have drawn negative reactions from the nonprofit community. Many fear that, rather than increasing giving, the changes will further decrease donations.

 

And many faith-based organizations are worried that the proposed inclusion of sexual orientation and gender identity as prohibited bases of discrimination may result in squeezing religious charities out of the program.

 

Faith-based service organizations should consider commenting on the convoluted and potentially harmful revision to the "prohibited discrimination" provision, as well as on other elements of the proposed new regulations.

 

The NPRM can be seen, and comments be made, at the federal regulations portal: www.regulations.gov. Type "RIN 3206-AM68" into the search box.  

 

Already-submitted comments worth considering:

 

US Conference of Catholic Bishops 

 

Institutional Religious Freedom Alliance
IRFA President's Kuyper Lecture on Institutional Religious Freedom
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IRFA President Stanley Carlson-Thies delivered the Center for Public Justice's Kuyper Lecture on Thursday, April 24.  Title:  "Prohibiting the Free Exercise Thereof:  The Affordable Care Act and Other Threats to Institutional Religious Freedom." 

 

Respondents were Leah Seppanen Anderson, associate professor of political science, Wheaton College; Shirley Roels, senior advisor, Council of Independent College's Network for Vocation in Undergraduate Education (NetVUE); William Blacquire, president, Bethany Christian Services.

 

Text of the lecture here.

Video of lecture and responses here.   
Worth Reading
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Michael Kinsley, "LGBT PC: Being against marriage equality doesn't make you a monster," newrepublic.com, May 17, 2013.

 

Matthew Brown, "U.S. government's faith-based initiative moves ahead while dodging controversy," Deseret News, May 16, 2013. Extensive quotations from IRFA President Stanley Carlson-Thies.  

 

Roger Trigg, "Is Religious Freedom Special?" in Gavin Callaghan, et al., Religion and Law, Theos, 2012. Pdf here.   

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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.


 

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