Oklahoma Launches New Office of Faith Based Initiatives

Oklahoma Governor Kevin Stitt yesterday announced the launch of the state's new Office of Faith Based Initiatives. According to the Office's website, the Office serves as a "connection point for faith-based and community organizations wishing to partner with state government agencies across Oklahoma."

UN Says Belarus Legislation on Religion and Belief Violates International Human Rights Law

In a Feb.20 press release (full text), the United Nations Office of the High Commissioner for Human Rights said that its experts believe recent legislation on freedom of conscience and activities of religious organizations adopted by Belarus violates international human rights law.  The press release, in part quoting the experts' report, says in part:

“The provisions on compulsory registration unduly restrict the right to freedom of thought, conscience, religion or belief,”...

“The law establishes broad yet imprecise legal grounds for the State to suspend and dissolve religious organisations, such as conducting an activity directed against the main direction of domestic and foreign policy of the Republic of Belarus, discrediting the Republic of Belarus, humiliating the national honour, engaging in political activities or other undefined extremist activities,” ...

The experts warned that the law imposes extensive State control over religious education and literature, stipulating that religious education, religious literature or any other material with religious content must not contradict “the generally recognised traditional values of the Belarusian people and the ideology of the Belarusian State”....

The law stipulates that religious organisations can only be led by Belarusian citizens with permanent residence in the country, which appears to discriminate against certain religions....

“The law appears to be aimed at further strengthening the overarching control of the State over all aspects of the existence of religious communities....

Arizona Passes New Protections For Religious Organizations

The Arizona legislature this week gave final passage to HB 2507 (full text) which is primarily aimed at preventing state and local governments from closing down religious organizations in future states of emergency.  However it also includes this broader provision:

State government or any private person who sues under or attempts to enforce a law, rule or regulation that is adopted by the state or a political subdivision of this state may not take any discriminatory action against a religious organization on the basis that the organization ... engages in the exercise of religion as protected under the First Amendment....

AZ Mirror reports on the bill.

Labor Department Proposes Religious Exemption Clarification For Government Contractors

Executive Order 11246 requires that all federal government contracts contain a provision barring the contractor from discriminating against employees on various grounds, including religion. The Executive Order, however, contains an exemption for "a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." Today the Department of Labor published in the Federal Register proposed rules (full text) to clarify the scope of this exemption. Among other things, the proposal clarifies the kinds of entities covered by the exemption:

Religious corporation, association, educational institution, or society means a corporation, association, educational institution, society, school, college, university, or institution of learning that is organized for a religious purpose; holds itself out to the public as carrying out a religious purpose; and engages in exercise of religion consistent with, and in furtherance of, a religious purpose. To qualify as religious a corporation, association, educational institution, society, school, college, university, or institution of learning may, or may not: have a mosque, church, synagogue, temple, or other house of worship; be nonprofit; or be supported by, be affiliated with, identify with, or be composed of individuals sharing, any single religion, sect, denomination, or other religious tradition.

According to Axios, opponents of the rule change argue that it would allow government contractors to fire LGBTQ employees, or unmarried employees who are pregnant, on the basis of the employer's religious views.

SDNY: Title VII Anti-Retaliation Provision Does Not Apply To Critic of Religious Group's Gender Discrimination

In Aparicio v. Christian Union, Inc., (SD NY, March 29, 2019), a New York federal district court dismissed a Title VII retaliation claim brought by an employee of a religious organization. Christian Union is a non-profit organization that operates student leadership organizations at Ivy League colleges. Plaintiff, CUI's former Director of Public Affairs, claims that he was fired because he complained that CUI's policy of excluding women from leadership positions in the organization violates Title VII's anti-discrimination provision. Title VII explicitly allows religious organizations to discriminate on the basis of religion (but not on other bases).  The court here, however, went further. While concluding that the ministerial exception doctrine does not apply, it held:

... CUI's "complementarian" policy, which reserves executive positions for men, reflects its right to choose who performs certain religious roles within the organization. Therefore, in this case, the Free Exercise Clause bars the Court from asserting Title VII's secular sensibilities on who CUI allows to perform its highest religious roles.

Furthermore, Title VII's anti-retaliation provision does not apply when the basis for the alleged retaliation are an employee's objections to his or her employer's religious discrimination.... Essentially, Title VII "permits religious organizations to advance their religious missions by discriminating based on religion in employment," and, where a retaliation claim is based on complaints directed toward that permissible discrimination, Title VII's anti-retaliation provision "does not apply." Lown v. Salvation Army, Inc., 393 F. Supp. 2d 223, 246, 254 (S.D.N.Y. 2005).

Accordingly, applying Title VII's discrimination and retaliation provisions to CUI's "complementarian" policy violate the Free Exercise Clause. For that reason, Plaintiff's Title VII anti-retaliation claim must be dismissed.

Senate Passes Act Protecting Religiously Affiliated Community Centers

The U.S. Senate yesterday passed by unanimous consent S. 994: Protecting Religiously Affiliated Institutions Act of 2018 (full text). The bill expands the definition of "religious real property" in 18 USC Sec. 247 to include real property owned or leased by a nonprofit, religiously affiliated organization, such as religiously affiliated community centers.  It also expands the kind of damage, destruction or threats to religious real property that are prohibited to include obstructing a person's free exercise of religious beliefs by threats of force against religious real property. This is intended to cover bomb threats to religiously affiliated organizations such as the wave of bomb threats in 2017 directed at Jewish Community Centers.  The bill also increases punishment in certain cases.  The bill now goes to the House of Representatives which has already passed HR 1730 which is virtually identical to S. 994. AJC issued a press release applauding the Senate's action.

Trump Again Calls For Repeal of Politicking Limits on Churches-- Some Background

In Donald Trump's acceptance speech at the Republican National Convention last night (full text from Politico), he repeated his previous promise to work for repeal of the Johnson Amendment, saying:

At this moment, I would like to thank the evangelical community who have been so good to me and so supportive. You have so much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits.

An amendment, pushed by Lyndon Johnson, many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views.

I am going to work very hard to repeal that language and protect free speech for all Americans.

The relevant language is found in Section 501(c)(3) of the Internal Revenue Code which, in describing religious and charitable organizations that qualify for tax-exempt status, says that they may "not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office."

Here is a history and critique of the Johnson Amendment from the perspective of Alliance Defending Freedom, an organization that seeks its repeal. And here is an issue of Liberty Magazine containing four articles largely supporting the Amendment's underlying policy and constitutionality.

Boy Scouts End Ban on Gay Adult Leaders and Employees, But Allow Church-Sponsored Troops To Refuse Gay Leaders

In a press release yesterday, the Boy Scouts of America announced:

On Monday, July 27, the National Executive Board ratified a resolution that removes the national restriction on openly gay adult leaders and employees. Of those present and voting, 79 percent voted in favor of the resolution. The resolution was recommended for ratification by the Executive Committee earlier this month. The resolution is effective immediately.

Chartered organizations will continue to select their adult leaders and religious chartered organizations may continue to use religious beliefs as criteria for selecting adult leaders, including matters of sexuality. This change allows Scouting’s members and parents to select local units, chartered to organizations with similar beliefs, that best meet the needs of their families. This change also respects the right of religious chartered organizations to choose adult volunteer leaders whose beliefs are consistent with their own.

Religion News Service yesterday reported on the 14-page Legal Memo (full text) that the Scouts received from their outside counsel titled Effect of Changes in Adult Leader Standard on Religious Chartered Organizations. The memo reads in part:

The change in the BSA policy would still allow units chartered by religious organizations that as a matter of religious belief consider homosexual conduct inconsistent with their religion to limit adult leadership in accordance with that belief. Units not chartered by religious organizations could not exclude homosexuals who otherwise meet the BSA’s high adult leader standards and the chartered organization’s standards.

All other leader requirements, including “duty to God,” would remain in effect for all chartered organizations....

We understand that some religious organizations are concerned that if they exclude homosexuals from leadership in Scouting units that they charter after the BSA changes its policy they will be vulnerable to lawsuits from the potential leaders they exclude. Those concerns should be allayed by the legal defenses that religious organizations have under place of public accommodation statutes and the First Amendment to the Constitution of the United States.

 The Boy Scouts removed restrictions on gays becoming scout members in 2013. (See prior posting.)