Tuesday, June 14, 2011

Juridics: USA Labor Law: Can states or feds contain 'freedom of religion' clause -- First Amendment

"Be Distinctive or Risk Losing Religious Freedom" -- Dr Stanley Carlson-Thies (June 14,2k11)
IRFA - Institutional Religious Freedom Alliance - eNews for Faith-Based Organizations (this email newsletter is edited by Dr Carlson for IRFA).  The version of the text, as presented below, is a semiotic enrichment of digital text without altering a single word of the original as published.

Another Attempt to Tinker with the Federal RFRA

Believe it or not, in the guise of promoting the national defense an effort is currently underway in the Senate to weaken the Religious Freedom Restoration Act.  Tucked away in S. 981, the Senate's bill to authorize the Defense Department's budget, is a proposal to remove from RFRA's oversight the military's regulations concerning "wearing of items of religious apparel with the uniform."  Two efforts were made in the last Congress to restrict the scope of RFRA's coverage--once in a bill dealing with fraudulent funeral home practices and once in a bill that would have added new restrictions to religious hiring by faith-based groups that receive federal drug treatment funds.  Neither bill went anywhere.

RFRA was signed into law in 1993 by President Clinton, after being adopted nearly unanimously by Congress.  It is Congress' response to the US Supreme Court's 1990 decision in Employment Division v. Smith, in which the justices held that government rules can restrict religious exercise if the government is legislating neutrally rather than targeting religion.  RFRA restores the previous standard.  It exempts religious institutions and people from complying with a generally applicable law that would "substantially burden" their exercise of religion, unless the government can show that it has a "compelling interest" in requiring their compliance and that it has chosen the "least restrictive means" of furthering that vital interest

Note that there is no automatic exemption, no general free pass for religion.  And note that if there really is a vital governmental interest at stake, and the government has done its best to accommodate religious exercise, then it can impose even a "substantial" burden on religious people and organizations.

Of course, it is easier for the government not to have to accommodate religion more than it finds convenient, and it is more pleasing to government officials (just like all of us) not to be held to account for difficult decisions.  But freedom of religious exercise is a high value--a constitutional value.  And RFRA is our premier protection for religious exercise.  It is vital to keep RFRA intact, because support for the principle of religious freedom is waning (in part as a consequence of growing support for sexual freedoms).  One successful effort to restrict the scope of RFRA will just encourage a flood of additional proposals, removing this religious freedom protection where it is most needed.

 Hat tip to Steve McFarland, World Vision.

[Stan Carlson's text, again ... ]
Catholic Charities Agencies Take Illinois Government to Court

On behalf of the Catholic Charities agencies in three dioceses (Springfield, Peoria, and Joliet), the Thomas More Society filed a lawsuit last week, seeking to stop the state of Illinois from requiring them to violate the Catholic Church's convictions about families and sexuality as a condition of contracting with the state to provide adoption and foster care services.  In late May, in order to avoid a conflict with the government, Catholic Charities in Rockford [Illinois] announced that it would not renew its contracts with the state.  Some other faith-based agencies are awaiting the new contracts, due before the end of the month, to see what the specific requirements will be.

The difficulties for the faith-based agencies started in March, after the governor signed into law a civil unions bill that requires partners in a civil union to be treated the same as married spouses.  Government officials, newspaper reporters, and activists started quizzing faith-based agencies about whether they would accept gay individuals or couples as suitable families for placing children.  Multiple other agencies already serve the gay community.  In a March 8 letter, the Illinois Attorney General demanded that Catholic Charities of Springfield prove that it does not engage in illegal discrimination when it recruits families and places children.

The lawsuit says that the Illinois Human Rights Act specifically excludes "sectarian" adoption agencies from its requirement that no "public accommodation" can discriminate on the basis of sexual orientation and marital status.  It also points to statements by the sponsors of the new civil unions law that, despite some ambiguity in the law's text, the law is not intended to "interfere with or regulate the religious practice of any religious body." 

And the lawsuit claims protection for the faith-based practices of the Catholic Charities agencies under the Illinois Religious Freedom Restoration Act.  Like the federal RFRA, the state RFRA is designed to restore the strong protection for religious freedom that existed before the US Supreme Court's decision in Employment Division v. Smith (see story above).  The Illinois RFRA requires the government to choose the "least restrictive means" of furthering its "compelling interests" when it adopts rules that limit the free exercise of religion.

However, as the lawsuit points out, forcing faith-based agencies to participate in gay adoptions and foster-care placements can hardly be the state's "least restrictive means" of ensuring that gay persons can adopt or take care of foster children given the many other agencies in the state that serve just such persons

The Illinois faith-based agencies that seek to recruit and work with married couples and with single people who adhere to biblical sexual standards are hoping that, this fall, the legislature will put into the law and regulations that apply to their services explicit language protecting their faith-based policies (efforts earlier this year failed).  The lawsuit is an effort to forestall any adverse action by the state before the legislature can fashion an appropriate remedy.

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