Breaking: Obama to Remove Anti-Discrimination Protections for Pro-Life Doctors

Per the LA Times - Pres. Obama will move to rescind the HHS regulation protecting medical professionals and institutions from discrimination on the basis that they do not perform, assist in or refer for abortions. No notice of rulemaking has been filed yet, but more updates will be provided when it is issued.

The regulations at issue, codified at 45 CFR Part 88, were enacted by the Bush Administration in response to recent evidence that federal grantees were unaware of or not complying with decades of federal laws protecting the rights of conscience of medical professionals. You can read more about the regulations here.

The Center currently represents the Christian Medical Association, Catholic Medical Association, and American Association of Pro-Life Obstetricians and Gynecologists as intervenors defending the regulations in three lawsuits brought in federal district court in Connecticut. You can read more about the lawsuits here.

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.

Presentation at CCCU Presidents Conference

I participated in a panel discussion this morning at the Council for Christian Colleges & Universities Presidents Conference in Washington, DC. The topic was "Legal and Public Policy Issues." I talked about religious staffing freedom -- recent events and imminent threats.

I asserted the threat that religion and sexual orientation nondiscrimination rules pose stems from a more foundational problem: the growing cultural acceptance of same-sex sexual conduct and the corresponding cultural condemnation of those who hold the traditional position on marriage and human sexuality.

I then ran through some developments in this area over the last twelve months: the passage of Prop 8 in California; the discovery of a right to same-sex "marriage" in the Connecticut constitution by the state's supreme court; Congress's failure to enact ENDA; DOJ's publication of the OLC opinion regarding RFRA, federal money, and religious staffing freedoms; the bad decisions in Truth v. Kent and North Coast Women's Health v. Superior Court; and the good outcomes in AFBO v. Iowa and Doe v. California Lutheran.

With regard to what the near future holds, I pointed to the emphasis on "LGBT concerns" on the White House website's "civil rights agenda" page; the likely introduction of ENDA; continuing litigation [much of which the CLS Center is involved in]; and the Obama Administration's approach to religious staffing freedoms in the faith-based initiative.

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).

ENDA, Illinois, and President Obama

President Obama outlines his civil rights agenda on the White House website. About half of the page is a description of his "Support for the LGBT Community." In articulating the president's desire to add "sexual orientation" and "gender identity" to the list of protected characteristics in federal laws and rules prohibiting discrimination in employment, the site observes that Mr. Obama sponsored similar legislation while serving in the Illinois State Senate.

The president's invocation of the Illinois legislation is troubling. The bill that State Sen. Obama sponsored did not exempt religious employers from the ban on sexual orientation discrimination -- a market departure from the statutes adopted in other states. Subsequent efforts to add such an exemption were rejected.

This, of course, does not necessarily mean that President Obama will push for a version of the federal Employment Non-Discrimination Act that lacks a religious exemption. However, it is not particularly reassuring that the president, earlier in his career, was, at a minimum, insufficiently sensitive to religious freedom concerns.

President Obama Funds Overseas Abortions

A provision of the Foreign Assistance Act of 1961 prohibits the use of federal funds "to pay for the performance of abortions as a method of family planning, or to motivate or coerce any person to practice abortions." In what has come to be called the "Mexico City Policy," President Reagan instructed the US Agency for International Development to comply with this statutory directive in 1984. President Clinton rescinded the policy, but President George W. Bush reinstated it.

Yesterday, President Obama again rescinded the Mexico City Policy, thereby allowing nongovernmental organizations working overseas to encourage women to have abortions and to lobby foreign governments to eliminate legal protections of unborn children.

Millions of Americans don't want their tax dollars used to facilitate the killing of babies in their mothers' wombs. President Obama subordinated those Americans' desires to the objectives of the pro-abortion organizations. This is not an auspicious beginning for a president whom many thought (erroneously, in my view) would be comparatively moderate on sanctity of life issues.

FRC's comment is here. National Right to Life comments here. US Conference of Catholic Bishops comments here.

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.

People For the American Way President on Rick Warren

Kathryn Kolbert, president of People for the American Way, disapproves of President-Elect Obama's decision to ask Rev. Rick Warren to deliver the invocation at the January 20 inauguration.

Her statement reflects the sentiments of People For and other hard Left groups about their fellow citizens who disagree with them about human sexuality and the definition of marriage. In her email, Ms. Kolbert calls Rev. Warren a "divisive Religious Right demagogue." The dictionary defines "demagogue" as someone "who gains power and popularity by arousing the emotions, passions, and prejudices of the people."

Does this word accurately describe Rick Warren? I think that a fair-minded person who has heard Rev. Warren or read his writings would be hard pressed to call him a demagogue. I fear that, in the eyes of Ms. Kolbert and her allies, any well-known person with a platform who disagrees with them is a "demagogue."

Ms. Kolbert also declares that Rick Warren is a "powerful leader who marginalizes and dehumanizes those who disagree with him." Really? The hard Left seems to believe that those who are not willing to affirm the morality of homosexual conduct (a group that includes millions of theologically orthodox Christians) think that those who engage in such conduct are not human beings. To be sure, in a big country like America, there are some number of unfortunate souls who hold such a view. But it is wrong and unfair to suggest that the tens of millions of individuals who share Rick Warren's traditional views about marriage and sexuality don't believe that homosexuals are human beings.

I have personally encountered this. In the oral argument in the Seventh Circuit in Christian Legal Society v. Walker, Judge Diane Wood expressed her view that Christian Legal Society members believe those who engage in homosexual conduct are "less than human." [Judge Wood ended up dissenting from the judgment of her two colleagues that Southern Illinois University violated the Constitution by withholding recognition from the CLS chapter on the ground that it allegedly "discriminated" on the basis of religion and "sexual orientation."]

Ms. Kolbert's email concludes as follows: "[Rev. Warren's] views on basic equality, human rights and core constitutional values cannot be legitimized as reasonable." Talk about "marginalizing." As Ms. Kolbert sees its, Rick Warren's views on marriage, abortion, and destructive embryonic stem cell research are so beyond the pale that he is not a fit participant in the public discussion. Indeed, he is not fit to perform a function (deliver the inaugural invocation) that almost certainly will have nothing to any of those issues.

As a matter of public argumentation, it is probably easier to slap unfair labels on your opponents than it is to take seriously and engage their arguments. And I realize that Ms. Kolbert's email is "preaching to the choir." Nonetheless, her over-the-top characterizations of those that disagree with her is not without social cost. It increases the polarization of our country and debases our national conversation about important issues. It's probably too much to ask that she tone it down a bit.

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.

Potential AG Eric Holder and Religion

Professor Howard Friedman at the Religion Clause Blog indicates that reported Attorney General choice Eric Holder doesn't have much of a record on religious freedom issues.