Wednesday, September 25, 2013

Government rules that respect diversity


eNews for Faith-Based Organizations




Must the government enforce uniformity?

The short answer is, of course, No--despite the very strong and growing current tendency of many activists and policymakers to assume that there is only one right way to carry out various important activities and that the government must enforce on private organizations and persons that one right way. Yes, sometimes there really is only one standard that all must live up to: no abuse of children, for example. But often the government can, and should, accommodate different ways to pursue the common good, different conceptions of justice.


Indeed, deference to diverse paths and patterns is fundamental to the American experiment, structured into our Constitution, our pattern of government, and our fundamental political principles in several ways. Federalism is one of them: many important decisions (e.g., the definition of marriage) are left to the states, even though, or rather because, the several states will come up with different decisions. The very limits placed on government (federal, state, and local) in our system of limited government is another way that our system and its principles require that persons and organizations and communities be free to decide many important things in whichever ways they variously deem best.


There are other classic examples, such as our system of accrediting higher education, which assumes that there are different ways to educate well at an advanced level, so they cannot all be measured by the same standards; and the use of vouchers in various programs--which assumes that there are different ways for some service to be offered, different but all valuable in their own ways.


And the current administration has offered another variation on the same principle, notwithstanding its own tendencies to regulate more and more--that is, to standardize more and more. The administration's innovation has to do with requirements attached to federal grants. Sometimes, while the general purpose and activities of a federal program are laudable, a particular requirement conflicts with the faith-based standards of religious organizations that otherwise could be excellent federal partners in assisting the needy in some way. When that happens, the normal outcome is that the faith-based organization simply has to decline to participate-or the federal government rejects it because it will not carry out every required activity.


In two separate instances, both in 2012, the Obama administration adopted a different way of dealing with this dilemma. Rather than excluding the faith-based organizations, the administration developed new policy guidance which provides that a faith-based organization can take part in the program, carrying out the parts of it that do not conflict with its principles-and with the obligation laid upon the government itself to devise some way for the missing activities to be supplied in some other fashion.


The eNews for Faith-Based Organizations carried stories on these two innovative policies at the time, but it is worth stressing again the policies and their unified principle: the government need not always require uniformity in order to promote the common good. The common good is more complex than that, and it is more likely to be met if a variety of organizations are able to take part, each making its uncommon contribution to the common good. The government can supervise, ensuring that missing elements are supplied in innovative new ways.


Here are excerpts from the two stories:


USAID policy


The PEPFAR program, started by President George W. Bush (with the flashy endorsement of Bono), is a huge investment of US dollars to battle HIV/AIDS, particularly in Africa. It extensively, and deliberately, utilizes faith-based organizations, both US-based ones and indigenous ones. As noted by a State Department report to Congress in 2005, "Faith-based groups are priority local partners. In many focus countries, more than 80 percent of citizens participate in religious institutions. In certain nations, upwards of 50 percent of health services are provided through faith-based institutions, making them crucial delivery points for HIV/AIDS information and services."


But there's a problem: the federal government is convinced that condoms are a key element in an effective battle against HIV/AIDS, but many religious people and organizations, both in the US and in the countries where services are to be provided, are sure that condom distribution undermines the most effective way to overcome the epidemic. Insisting that organizations include condom distribution and education in their services is likely to exclude many of the most effective organizations, including those faith organizations located far from big cities and uniquely trusted because of their religious authority.


USAID, the State Department agency that runs the PEPFAR program, modified its grant rules in February to resolve this dilemma. The amended rules say that an organization with a conscientious objection to certain activities cannot be required, as a condition of receiving PEPFAR funding, "to endorse, utilize, make a referral to, become integrated with or otherwise participate in any program or activity to which the organization has a religious or moral objection." The organization has to notify USAID of what activities or elements it objects to in a timely matter, but cannot be rejected for that reason. Its application for funding has to be evaluated based on what the organization will do, and not be treated less favorably because of what it will not do. It is up to the government to devise a way to supply missing services that it regards as essential.


That's a reasonable and laudable accommodation of religious exercise, enabling the federally funded services to be delivered effectively by not excluding the government's best partners.


(From the "Administration Accommodation of Conscience" story.)


Pluralist HHS Grant Policy


The policy statement hasn't exactly been vigorously publicized, but you can find it on the HHS website if you look in the right place. "ACF Policy on Grants to Faith-Based Organizations" is the name and the statement was released on July 13th [2012].  ACF is the Administration for Children and Families in the Department of Health and Human Services.  The statement is probably related to the recent administrative and legal action shutting Catholic Migration and Refugee Services out of grants to provide aid to human trafficking victims because CMRS does not provide or refer for contraception and abortion services.  


The policy statement highlights the vital role of faith-based organizations in providing "critical human services" and in being first responders in times of crisis. Yet it notes that "some potential grantees may have religious objections to providing certain kinds of services, including referrals."  How then can ACF continue its valued partnerships with faith-based organizations while ensuring that "the full range of legally permissible services" is made available to people who count on federally funded services?


The statement sets out three ways that a faith-based organization can participate in providing federally funded services even if it refuses to provide certain services that are otherwise required to be provided:


(1) The organization can serve as one of several subgrantees, as long as the grantee makes sure that all clients are able to access all services required by the grant.  "Under this arrangement, as long as other subgrantees are readily available to provide clients with the objected-to services, a subgrantee may participate in the grant program while declining to provide services to which they have religious objection."


(2) The organization can take part as one member of a consortium.  "The consortium would allow for a division of responsibility consistent with each organization's principles."


(3) The organization ("in some circumstances") could be the actual grantee and then, if a client needs a service to which the organization has a religious objection, it could notify the federal official in charge of the grant about the need; "[i]t would then be the federal agency's responsibility to follow through with the needed services, or, if appropriate, transfer the case to another provider."


The statement adds that ACF is willing also to consider other approaches that simultaneously ensure that clients can access all services "while enabling qualified faith-based organizations to participate in the delivery of those services in a manner consistent with their principles."


This is a noteworthy and very positive development.  In our increasingly diverse society, government often cannot adequately respect the religious freedom of faith-based services if it imposes uniform requirements.  Here the federal government has rightly decided on a different approach:  allow organizations that, for religious reasons, do not provide every service to take part, as long as alternative ways can be created to ensure access to all legal services.  The full range of services is still made available, but without losing the important participation of the faith-based providers.


Ironically, although the government often justifies uniform requirements as necessary to guarantee access to services by everyone, some or even many of those the government is trying to protect may reject on religious grounds some of those services!  For example, even as many patients desire access to abortions, many other patients desire their health care providers to be consistently pro-life.  Arrangements that make government-funded, and also government-regulated, services more pluralistic are all to the good in our diverse society.


(From the "HHS's Pluralist Policy for Grants to Faith-Based Organizations" story.) 



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Actually protecting religious freedom after the Supreme Court's DOMA decision

After the US Supreme Court struck down a part of the federal Defense of Marriage Act last summer, easing the way for same-sex marriage to be adopted more widely across the nation, President Obama said this:  


"On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation's commitment to religious freedom is also vital.  How religious institutions define and consecrate marriage has always been up to those institutions.  Nothing about this decision--which applies only to civil marriages--changes that."


Yet there is every reason to be sure that, absent careful and vigorous counteractive measures, the spread of marriage redefinition exactly will limit the religious freedom of religious organizations and persons. (For a thorough exploration of the predictable conflicts and (partial) solutions, see this indispensable book: Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Rowman and Littlefield, 2008).)


Last week a bipartisan group in the House of Representatives proposed an important federal counteractive measure, H.R. 3133, the Marriage and Religious Freedom Act, intended to prevent negative treatment of persons and organizations by the federal government because those persons and organizations hold to the traditional view of marriage. The bill has more than 69 co-sponsors, from both parties.


The bill would forbid federal retaliation because a religious organization, a business, or a person has a religious conviction that "marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage." The bill specifically forbids the federal government from taking the following punitive actions against such dissenters: denying an organization tax-exempt status, denying a tax deduction for a contribution to the organization, or stripping a dissenting organization or person of federal grants, contracts, benefits, loans, licenses, certification, accreditation, or employment.


Here's a way to put real muscle into the President's words. Will the administration back the bill? If not, why not? Will Congress? If not, why not?





HHS contraceptives mandate: the need for a legislative fix

In the summer, the administration finally announced its "accommodation" in the long-standing controversy over the requirement that employers' health plans must cover all contraceptive methods, including those that can induce abortions. To many, the regulations designed for faith-based service organizations such as hospitals, schools, and charities are fraudulent: promising that the organizations can purchase health insurance that does not cover drugs and services the organizations regard as morally wrong while requiring the insurers (or third-party administrators, in the case of self-insuring organizations) to pay for those same contraceptives on behalf of the employees of those same organizations. The regulations further confirmed that the administration is willing to provide an actual exemption from the mandate only to churches, and that it insists that businesses and their owners ought to get no religious freedom protections whatsoever.


The courts may provide some relief, permitting some businesses and some religious nonprofits to entirely escape the mandate. But there is no assurance that the courts would provide such relief to all organizations, nor that such losses in court would persuade the administration to reverse or radically modify the contraceptives mandate for other organizations.


Civil disobedience by dissenting religious organizations seems impossible: insurance companies are unlikely to sell nonconforming insurance lest they lose their own license to operate.


There remains a legislative solution, the Health Care Conscience Rights Act (H.R. 940, S. 1204), which has more than 180 co-sponsors in the House and over a dozen in the Senate. To become law, this bill has to be attached to some must-pass legislation, and for that to happen, Representatives and Senators need to hear from their constituents how important it is that Congress provide a solution to the grave religious freedom problems caused by the HHS contraceptives mandate.



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