President Obama to Name Council on Faith-Based Partnerships

The Washington Post is reporting that President Obama is poised to name the members of a newly created Council on Faith-Based and Neighborhood Partnerships.

NPR Story on Faith-Based Initiative

NPR did a story this morning about the future of the faith-based initiative under the Obama Administration. The story featured a CLS Center case, Pedreira v. Kentucky Baptist Homes for Children (KBHC). In that case, the ACLU and homosexual rights activists are attempting to exclude KBHC (now called Sunrise Children's Homes) from state partnerships with nongovernmental organizations serving abused and neglected children because KBHC draws its leadership and employees from among those who share its religious commitments. The federal district court adjudicating the case ruled in Sunrise's favor and the ACLU appealed. Briefing in the Sixth Circuit is complete and oral argument will occur on March 11.

Faith-Based Hiring and the Obama Administration

The Pew Forum on Religion and Public Life has posted the transcript of a Q&A with GWU law professor Chip Lupu regarding faith-based hiring and the Obama Administration.

Professor Lupu predicts that the new president's Office of Legal Counsel will disagree with its predecessor's conclusion that the Religious Freedom Restoration forbids the federal government from imposing religion nondiscrimination strings on religious recipients of federal money.

Professor Lupu also observes that the new administration might seek to add new nondiscrimination strings to specific program funding and/or take away existing protections for religious staffing freedom in certain other programs (e.g., Temporary Assistance to Needy Families).

Richard John Neuhaus and religious liberty

Mark Steyn reminds us of Richard John Neuhaus (1936-2009) constant defense of religious liberty as an important part of his voluminous writings on the pages of First Things, quoting this entry from Neuhaus' feature On the Square from October 2006, in which he responds to a New York Times editorial on the subject of religious exemptions:

The editors are also exercised that religious institutions are exempt from regulations having to do with religious and gender discrimination in hiring and promotion. But the key point, invoked over the years by opponents of free exercise, is that tax exemption is actually a government subsidy.

The underlying, and nascently totalitarian, assumption is that everything in the society belongs to the state and should be under state control. Government exemptions from tax and control are a privilege granted, not a right respected. From which it follows that an exemption is, in fact, a subsidy. This is a long way from the Founders’ understanding of the independent sovereignty of religion that the government is bound to respect.

Neuhaus, of course, wrote the following in 1984 in the prologue to The Naked Public Square: Religion and Democracy in America:

What is relatively new is the naked public square. The naked public square is the result of political doctrine and practice that would exclude religion and religiously grounded values from the conduct of public business. The doctrine is that America is a secular society. It finds dogmatic expression in the ideology of secularism. I will argue that the doctrine is demonstrably false and the dogma exceedingly dangerous.

Christian Science Monitor on the Faith-Based Initiative

The Christian Science Monitor has published an article regarding the faith-based initiative under the Obama Administration. Our friend Stanley Carlson-Thies of the newly launched Institutional Religious Freedom Alliance is quoted extensively.

Although the article is generally good and informative, it does incorrectly suggest that the Administration encouraged faith-based grant recipients to use funds in unconstitutional ways. This is incorrect.

The article invokes "critics" of the freedom of religious organizations to staff on a religious basis. Those critics essentially argue that anyone who pays taxes should be eligible for every job at every employer that receives some sort of government support. This argument is hard to take seriously. President Obama is not required to ignore a person's political affiliation in selecting his nominees and appointees. The CIA is not required to ignore an applicant's relationships with al Qaeda in choosing its spies. Even moreso, private entities that merely receive some government benefit -- but are not the government -- have the freedom to take lawful factors into account in their personnel decisions.

The article quotes Melissa Rogers of Wake Forest Divinity School, who asserts that "government only funds tasks that are nonreligious in nature" and therefore, that recipients of government funds shouldn't be allowed to exercise the freedom they possess under Title VII and the First Amendment to staff on a religious basis. The problem with this argument is that it presupposes a particular and tendentious definition of "nonreligious." To illustrate, how would you characterize meeting the material needs of the homeless? One could plausibly characterize this as "nonreligious"; but one could just as easily characterize it as religious, particularly if the entity providing the services does so based on its religious commitments. In short, religious groups legitimately fill jobs with those who share their views even if those jobs are not limited to preaching sermons and administering sacraments.

Let us continue to hope and pray that the Obama Administration, for the sake of those served by faith-based social service providers, will preserve the freedom of these groups to maintain their unique religious identity.

Heritage Foundation Religious Freedom Memo to President-Elect Barack Obama

Ryan Messmore and Thomas M. Messner have authored "Protecting and Strengthening Religious Freedom: A Memo to President-elect Obama" on behalf of the Heritage Foundation.

The memo begins with a quotation from candidate Obama's much-discussed keynote address at the Call to Renewal conference back in June 2008. The quotation includes Sen. Obama's statement that "[s]ecularists are wrong when they ask believers to leave their religion at the door before entering into the public square."

Teasing out the natural implications of that statement, Heritage recommends that President Obama:

• "Protect the ability of faith-based social service providers to honor their religious identity and integrity by maintaining their right to make employment decisions based on religious ideals"
• "Ensure the availability of federal conscience protections that free physicians and other medical professionals to serve patients without violating their religious beliefs"
• "Call on all citizens to respect the ability of religious citizens to participate in public policy debates--including debates about marriage--without fear of intimidation and reprisal"

All three of these are excellent recommendations. We hope and pray that President-elect Obama and his advisors will follow them.

Victory in Iowa State Employee Charitable Campaign Case

In response to a lawsuit filed by CLS's Center for Law & Religious Freedom on behalf of the Association of Faith-Based Organizations, the State of Iowa has repealed unconstitutional rules governing access to its state employee charitable campaign.

The rules excluded any charitable organization that “engages in any way in sectarian activities,” advocates “religious viewpoints,” or “discriminates” on the basis of religion in employment.

See the joint CLS-Alliance Defense Fund press release or the CLS Center website for more information.

Brookings Releases Faith-Based Initiative Recommendations to Incoming Administration

The left-leaning Brookings Institution has made its recommendations to the incoming Obama administration regarding government and faith-based social service providers.

Although I hope to comment in more detail later, suffice it to say for now that the report recommends that the new administration curtail the freedom of religious organizations participating in government-funded programs to staff on a religious basis.

Brookings to Release Report on Obama & Faith-Based Initiative

This Friday, the left-leaning Brookings Institution will make its recommendations to the incoming Obama administration regarding government and faith-based social service providers.

Our friend Stanley Carlson-Thies of the Center for Public Justice, an effective advocate for the autonomy of religious institutions, will comment.

NY Times Article on Religious Staffing Freedom and Government Funds

The New York Times has published an article regarding the Department of Justice's opinion about religious staffing freedom and government funds.

Former Center Director and University of Missouri law professor Carl Esbeck is quoted in the article, defending the DOJ opinion.

ACLU rep Christopher Anders calls the memo “the church-state equivalent of the torture memos,” referring to the Department's conclusion that the government does not have a compelling interest in forcing religious employers to hire people who reject the organization's religious beliefs.

This is incredible. Since when is it so awful for religious employers to consider religion in personnel decisions? Should the government intervene when a synagogue declines to hire a Muslim as a rabbi? Should a Unitarian congregation face liability if it won't choose a "fundamentalist" Christian to serve as its pastor? Adding government money to the mix doesn't change the analysis -- it is still not wrong for religious groups to draw their personnel from among those who voluntarily embrace the group's beliefs.

The fact of the matter is that both the Constitution and RFRA forbid the federal government from forcing religious groups to give up the exercise of a constitutional right in exchange for social service and education money.

Senator Obama has suggested that religious groups should not be allowed to preserve their religious character through staffing policies if they want to participate in government-funded programs. If Mr. Obama is elected president, it is conceivable that he will repudiate the Department's opinion and apply religion nondiscrimination rules to religious groups, thereby undermining genuine religious freedom.

Justice Department Posts Opinion on Religious Staffing and RFRA

The U.S. Department of Justice has finally put online its June 29, 2007, opinion stating that the Religious Freedom Restoration Act (RFRA) permits the government to exempt a federal grant recipient from a religion nondiscrimination attached to the money. The Department's Office of Legal Counsel issued the opinion.

The Department's Office of Justice Programs had awarded World Vision, a religious organization, a $1.5 million grant under the Juvenile Justice and Delinquency Prevention Act of 1974. As a condition of receiving grants under the Act, recipients may not discriminate on the basis of religion in "employment in connection with any programs or activity." World Vision takes religion into account in its personnel decisions.

The Religious Freedom Restoration Act of 1993 forbids the federal government from substantially burdening a person's exercise of religion, unless the imposition of that burden is the least restrictive means of furthering a compelling government interest.

OLC explained first that World Vision's operation of its government-funded program constituted the "exercise of religion" within the meaning of RFRA. It then stated that the government would "substantially burden" World Vision's religious exercise if it required World Vision to comply with the religion nondiscrimination rule. Finally, OLC concluded that applying the religion nondiscrimination rule to World Vision would not further a compelling governmental interest.

Washington Post's Senseless Editorial on Religious Hiring Rights

In the Washington Post's editorial today, titled "Faith-Based Obama," (behind subscription), the Post finds that Obama's recent speech on the faith-based initiative and his plan to retain it while stripping religious organizations of their right to hire those who agree with their beliefs is a "sensible balance." The Post reaches this conclusion despite first acknowledging that laws prohibiting religious discrimination in employment exempt religious employers - exemptions that the Post says "only make sense." So, it is sensible to exempt religious employers from these nondiscrimination laws, but it is a "sensible balance" to prohibit them from hiring persons who agree with their views if they are receiving any government funds to provide services that the government believes are necessary. Makes perfect sense.

The flaws in the Post's thinking are many so I'll limit my comments here to a couple. First, the Post seems to approach this question, as many do, from a perspective that faith-based charities are benefitting from the government and thus must be willing to play by its rules. This approach treats faith-based nonprofits as just another government contractor. But while for-profit contractors are generally paid a market rate for a service rendered, charitable organizations receiving a grant under the faith-based initiative are not looking to profit and the grants typically cover only a part of their expenses. The remainder is paid for by the non-profit's donors. It is the government that benefits from these programs because instead of, for example, creating its own homeless shelters, soup kitchens, marriage counseling programs, etc., the government relies upon already existing faith-based and other programs at a much lower cost to the taxpayer. Approaching this matter then from the perspective of what the faith-based organization owes the government for IT's charity misunderstands the relationship.

The Post also claims that most faith-based groups that take federal funds have managed to thrive for years without discriminating in their hiring. It gives no examples, so it is unclear what the Post considers "faith-based." However, it is true that some organizations that are ostensibly religious see no need to limit hiring based on religion. That is unsurprising as an organization that does not limit its hiring to those who share its beliefs will very soon cease to represent those beliefs. And at that point there is no reason to limit hiring to those who agree with views that the organization no longer considers it important to represent.

The Post also cheerleads for imposing sexual orientation nondiscrimination rules on faith-based charities if the proposed Employment Non-Discrimination Act (ENDA) is enacted in an Obama presidency -- even if it contains exemptions for religious organizations (a topic Greg has written on several times here).

Were there any doubt, the Post's editorial unintentionally illustrates why Obama's proposal would create a faith-based initiative that that favors "progressive" religious organizations over "orthodox" religious organizations (more on this from Greg here).

David Nammo of FRCAction on Obama's Faith-Based Initiative: "Works without faith is preferred."

To follow up on Greg's analysis of Obama's faith-based initiative plan today and his previous analysis on July 1, here is some additional commentary from David Nammo, past Director of Attorney & Law Student Ministries at CLS, and now Executive Director of FRCAction. Nammo was also quoted this weekend by the Denver Post in a Sunday article on Obama's faith-based plan.

According to Nammo:

Senator Obama’s proposition no longer keeps with a main tenet of charitable choice that was passed by a bipartisan majority in 1992 -- that faith-based organizations should not be required to relinquish their religious identity as a condition for participating in government-funded programs. Instead, the senator’s plan will require that religious organizations abandon their faith -- the very thing that makes them faith-based organizations in the first place.

***

An oft-quoted verse in the Biblical book of James is: “Faith without works is dead.”

Senator Obama appears to be attempting to rewrite
this passage to say: “Works without faith is preferred.”

Obama's Vision of the Faith-Based Initiative Prefers "Progressive" Religion

Senator Barack Obama has indicated that he would not abolish the various "offices" and "task forces" within the executive branch dedicated to faith-based and community initiatives if he is elected president.

However, he also indicated that he would change the rules governing the partnerships between faith-based organizations and government. Most significantly, he would curtail the freedom of such religious groups to (1) preserve their religious character by drawing their personnel from among those who voluntarily share their religious commitments; and (2) engage in religious activities.

Some observers declared (incorrectly, in my view) that Sen. Obama's willingness to maintain the faith-based initiative at all was some sort of "Sister Souljah moment" in which he distanced himself from the secular left. These observers seemed surprised that a liberal Democrat was willing to allow any religious groups to participate in government-funded social service programs.

As I see it, and with all due respect, these observers misunderstand the mainstream liberal-left position on church-state relations. Very few on the left categorically oppose the participation of any religious group in a government-funded social service or education program. Instead, they favor the inclusion of a certain kind of religious group and the exclusion of another kind. More specifically, they tend to favor the inclusion of groups that do not integrate religion into their operations and do not draw their personnel from among co-religionists. (In constitutional jargon, such groups are "religiously affiliated.") On the other hand, under the liberal-left view of church-state relations, groups that do the opposite (i.e., integrate religion in their operations and engage in faith-based hiring) are generally ineligible. (Such groups are deemed "pervasively sectarian.") [All this is concededly a bit of an oversimplication, but the general thrust is accurate.]

Those who are surprised that Sen. Obama is willing to fund some religious groups are apparently unaware that the principal divide in American religion is not between religion and irreligion, but between "progressive" religion and "orthodox" religion. [Sociologist James Davison Hunter explores this reality in his indispensable book Culture Wars.] According to Hunter's thesis, evangelical Protestants have more in common with orthodox Jews than with liberal Protestants when it comes to cultural questions. [My own experience confirms this: the Center (part of the theologically orthodox Christian Legal Society) is more likely to be on an amicus brief with the Union of Orthodox Jewish Congregations than it is with the liberal United Church of Christ.]

"Progressive" religious organizations are less likely than "orthodox" ones to integrate religion into their operations or use religious criteria in choosing personnel. Therefore, progressive groups would be far freer than orthodox ones to participate in social service programs under Sen. Obama's proposed system. In other words, to put it bluntly, Sen. Obama would fund his cultural and religious friends while de-funding those with whom he tends to disagree.

The First Amendment (among other things) forbids government from preferring one religion over another. A set of rules that systematically prefer "progressive" religion over "orthodox" religion, in my opinion, is inconsistent with this fundamental First Amendment principle.

Sen. Obama & the Faith-Based Initiative

Senator Barack Obama gave a speech today and issued a plan for how government would work with faith-based organizations were he to become president.

Legislators and advocacy groups have long disagreed about whether the government should work with (i.e., provide funding to) faith-based organizations that take religiously rooted considerations into account in their personnel decisions (something some incorrectly call "discrimination"). Therefore, a key question is this: what are Senator Obama's views? What would he do as president?

The plan states: "In order to receive federal funds to provide social services, faith-based organizations: [1] Cannot use federal funds to proselytize or provide religious sectarian instruction; [2] Cannot discriminate against nonmembers in providing services; [3] Must comply with federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964. Religious organizations that receive federal dollars cannot discriminate with respect to hiring for government-funded social service programs; and [4] Can only use taxpayers dollars on secular programs and initiatives."

Here's my quick take: some of this is bad, but it's not clear how bad.

Item 3 is probably the most problematic. The reference to Title VII, by itself, is fine. All covered employers, including religious ones, must comply with Title VII, whether or not they receive federal funds. However, Title VII (a) exempts otherwise covered religious employers from its ban on religious discrimination; and (b) does not forbid discrimination on the basis of "sexual orientation."

The main problem with item 3 lies in the next sentence: "Religious organizations that receive federal dollars cannot discriminate with respect to hiring for government-funded social service programs." First, it implies that the receipt of federal funds somehow vitiates the religious exemption from Title VII's ban on religious discrimination. This is an objectively incorrect view of the law, but it is one that the secular and religious Left have been pushing. Second, it contradicts a central premise of charitable choice -- that faith-based organizations should not be required to relinquish their religious identity as a condition on participating in government-funded programs. It appears as though Sen. Obama supports, for example, repeal of the charitable choice provision in the 1996 welfare reform law, which bipartisan majorities in Congress supported and which President Clinton signed.

There is an important ambiguity in the plan's language. It says that religious groups that receive federal dollars "cannot discriminate with respect to hiring for government-funded social service programs." What does "hiring for" mean? Is it limited to the circumstance in which the government gives a group a grant, which uses it for the sole purpose of hiring a particular individual (or individuals) to execute the task for which the grant was provided? This is not how non-profits typically use government money; instead, some or all employees are involved executing the task for which the grant was provided. Are such employees "hired for" the government-funded social service program? If so, then the Obama plan would disqualify faith-based groups that preserve their religious identity by drawing their employees from among those who voluntarily share the group's religious commitments.

There is another extremely important ambiguity in the plan. It refers variously to "federal grants," "federal funds," "federal dollars," and "taxpayer dollars." Although the phrase "federal grants" clearly refers to grants (i.e., direct funding), do the latter three phrases include funds that flow indirectly to religious groups? If so, then Obama is proposing a dramatic change -- one that is NOT required by the Constitution. Indeed, such a change is actually forbidden by the Constitution. Under current law, federal aid that flows indirectly to religious organizations can be used for what the plan calls "religious sectarian instruction." It use is not limited to "secular programs and initiatives."

[UPDATE: Although the plan on Senator Obama's website does not distinguish between direct and indirect funding, the written text of the speech he delivered today includes the following sentence: "Second, federal dollars that go directly to churches, temples, and mosques can only be used on secular programs." Note the word "directly."]

Another ambiguity lies in the phrase "social services." For example, are education programs "social services"? If so, then the potential problems with Sen. Obama's plan are profound more serious.

This may not be what Sen. Obama intended, but the ambiguity is nonetheless there.

An additional ambiguity lies in the phrase "secular programs and initiatives." What exactly does this mean? Is a church's practice of feeding the homeless a "secular program"? If so, if an employee of the church or rescue mission audibly thanks God for the food, does the program cease to be "secular"?

Center urges court to protect equal access for religious charities seeking inclusion in Iowa state employee charitable campaign

The CLS Center filed a motion for preliminary injunction today in Association of Faith-Based Organizations v. Anderson to request the enjoining of the Iowa "One Gift" state employee charitable campaign requirements demanding that applying charities certify that they do not engage in religious activity, including advocacy for religious viewpoints.

Such certification requirements effectively exclude AFBO member religious charitable organizations that are honest and truthful about their religious expression; thus, these requirements deny equal treatment to religious charities.

One Gift includes over four hundred charities reflecting a variety of viewpoints to provide a broad range of choices for state employees to make voluntary donations via payroll deduction. The effective exclusion of charities that provide substantial services and also express religious viewpoints is puzzling and unconstitutional because they discriminate against religious viewpoints in violation of the Free Speech Clause and because they single out religion for special disfavor in violation of the Free Exercise Clause.

More information on AFBO v. Anderson will be available soon at the CLS website. See AFBO's website for general information on AFBO's work to protect the rights of faith-based organizations.

Court Throws Out Lawsuit Against Christian Children's Home

Kentucky can continue paying faith-based organizations to provide residential care to abused and neglected children in state custody.

On March 28, a Kentucky federal district court dismissed a lawsuit alleging that the state's payments to Kentucky Baptist Homes for Children (KBHC) violated the Establishment Clause. The court concluded that the plaintiffs lacked standing to challenge the payments. The plaintiffs had argued that their status as state taxpayers gave them the right to challenge the financial relationship between various state agencies and KBHC.

CLS Center attorneys assisted Louisville attorney John Sheller in representing KBHC. The plaintiffs have not yet indicated whether they intend to appeal the ruling to the U.S. Court of Appeals for the Sixth Circuit.

Center Joins Comments on DHS Charitable Choice Regulations

The Center for Law and Religious Freedom has joined comments filed earlier this month regarding the Department of Homeland Security's proposed Charitable Choice regulations. Stanley Carlson-Thies of the Center for Public Justice was the principal author of the comments. The comments applaud DHS for embracing Charitable Choice principles but suggest certain additions and clarifications that would further protect religious freedom.

CLS Urges Senate to Retain SAMHSA Charitable Choice Provision

CLS today joined a letter urging the Senate to reject calls to eliminate statutory protections of religious liberty in the legislation governing the federal Substance Abuse and Mental Health Services Administration (SAMHSA).


The "charitable choice" provision of legislation signed in 2000 allows faith-based social service providers to participate in government-funded programs without relinquishing their religious identity. The ACLU, Americans United for Separation of Church and State, the Human Rights Campaign and others want to eliminate this protection of religious liberty. The key issue is whether faith-based organizations participating in government-funded programs may continue to take religion into account in their personnel decisions.

CLS appreciates the tireless work of Stanley Carlson-Thies of the Center for Public Justice on behalf of charitable choice and religious freedom.

New Threat to Charitable Choice

Secular and religious liberals have asked a Senate committee to eliminate a statutory provision that protects the religious liberty of faith-based social service providers.

The statutory provisions governing the federal Substance Abuse and Mental Health Services Administration (SAMHSA) guarantee that religious organizations providing critical services need not relinquish their religious identity to receive government support of those activities. More specifically, the statute codifies their constitutional liberty to preserve their religious character by drawing their personnel from among those who voluntarily share their religious beliefs.

Despite the widespread legal protection and accommodation of this freedom, a group called the "Coalition Against Religious Discrimination" (CARD) claims that the exercise of this freedom is the sort of invidious discrimination that should disqualify otherwise eligible religious social service providers from participating in government-funded social service programs. CARD sent a letter to the chairman and ranking member of the Senate Committee on Health, Education, Labor and Pensions, asking them to gut the charitable choice language in SAMHSA re-authorization legislation. The language was originally approved by a bi-partisan majority and signed by President Clinton.

CARD's members include the Human Rights Campaign, the ACLU, Americans United for Separation of Church and State, and People for the American Way.

Faith-based social service providers that consider religion in their personnel decisions are more likely to be theologically orthodox or traditional. The religious and secular left understands that, and wants to de-fund their cultural opponents, with little regard to the costs imposed upon those individuals who want services from faith-based substance abuse and mental health treatment providers.