How To Protect The Religious Freedom of Faith-Based Organizations

Last week I obtained a copy of the book Free To Serve.  My review of the book is below.  I highly recommend it for leaders of faith-based organizations and for those in the law and religion academic community.  While this is not an academic book it does outline the problems faced by religious organizations in our secular environment.  As noted below, it centres on the US experience but the issues faced there are similar throughout the Western world.

Conversation With The Author

It was my pleasure today to speak with one of the authors, Stanley W. Carlson-Thies, about this book and why he and Stephen V. Monsma wrote it.  You may be interested in watching our conversation.  It is divided into three parts:

Part 1 Stanley W Carlson Thies with Barry W Bussey 15 11 02 

Part 2 Stanley W Carlson Thies with Barry W Bussey 15 11 02 

Part 3 Stanley W  Carlson Thies with Barry W  Bussey 15 11 02

Book Review

Stephen V. Monsma & Stanley W. Carlson-Thies, Free To Serve: Protecting The Religious Freedom of Faith-Based Organizations (Grand Rapids: Brazos Press, 2015), 198 pages.  $18.69 Canadian at Amazon

The Problem:  Faith-based Organizations Are Denied Religious Freedom

Faith-based organizations’ ability to freely express their religious convictions is threatened more than ever and such threats are on the rise.  However, Monsma and Carlson-Thies assure us that there is hope.¹ They optimistically suggest that the American pluralist society has room for all to live together despite “deep differences.”  Religious and non-religious alike benefit when freedom is protected for all faith-based organizations.  However, religious freedom is challenged when religiously motivated people are denied freedom to allow their faith-based organizations to carry out their faith in the “public realms of health care, education, and services to the needy.”²

The Solution:  Principled Pluralism

Their vision is for all people to be free to worship, or not, as their beliefs require.  Religious people ought to be able to live out their faith in the nation’s public life through faith-based organizations.  Religious freedom requires at least as much.  There must be a profound respect for the diversity of belief/non-belief systems, perspectives and organizations where none is favoured over another.  It is a commitment to religious freedom, pluralism and tolerance.³

The solution to this quandary is a “principled pluralism” that has four principles:  first, all human beings are morally responsible.  They are free individuals who possess human dignity and certain fundamental rights, the most basic of which is freedom of religion;⁴ second, human beings are social;⁵ third, government must not prevent its members from being able to create and sustain nongovernmental organizations that are based on and reflect their members’ deeply held beliefs;⁶ and fourth, as government should not dominate society’s organizations nor should one organization seek to dominate or control other organizations or individuals.⁷

Working out this “principled pluralism” will require a mutual “forbearance and toleration as they experience inconvenience and burdens due to their fellow citizens living as their beliefs require them to live.”⁸

The False Assumptions

The authors reject the notion that religious organizations are said not to be deserving of religious freedom because they operate outside a church.  They point to World Vision’s struggle to maintain its right to fire three employees who no longer supported its statement of faith.  The US Court of Appeals for the Ninth Circuit ruled 2-1 in World Vision’s favour.  However, as Monsma and Carlson-Thies point out, it was a close call.⁹

Judge Marsha Berzon’s dissenting decision causes one to pause when she argued that World Vision was “nothing like a church” to be exempt from the requirement not to discriminate against the religious beliefs of its employees.  It’s humanitarian work, she pointed out, “on its face, [is] secular.”¹⁰

Berzon’s view is one that is gaining popularity, not only in the US but throughout Western democracies.  It is a very narrow description of religious freedom based on at least two assumptions.  First, religious activities involve only those that fall within the rubric of church services and religious rites.  Second, it assumes that religious freedom is solely for individuals and their religious communities – it does not include faith-based (profit or not-for-profit) corporations.

Throughout this volume Monsma and Carlson-Thies addresses these assumptions, and others, that would deny religious freedom to faith-based organizations.  They do so by arguing that the protection of religion includes not only the worship rites but it also includes the manifestation of those beliefs in all areas of life.  In particular, they point out that Christianity (and other religions as well) does not limit itself to weekly church services.  Its religious norms are applicable throughout the week and are operative in all occasions.  It is why Steven McFarland, vice-president and chief legal officer of World Vision could say, “We are not just another humanitarian organization, but a branch of the body of Christ.”¹¹  Faith-based organizations operationalize the religious sentiments that are articulated in the churches, synagogues, mosques, etc. in the form of health care, education and other endeavours to help those in need.  When religious people “…band together to create service organizations to fulfill their religious obligations more effectively than they could as individuals or as members of a local congregation, there is no reason why those organizations are any less religious than local congregations.”¹²

The secular/religious divide is a construct of recent origin.  The American Civil Liberties Union, Political Research Associates and other groups have been advocating this description.  The authors point out that Martin Luther King Jr. “would have problems calling desegregation a ‘secular value,’ as would hosts of brave demonstrators who marched out of their churches and into the streets in the 1960s.”¹³

To suggest that government funding transforms a faith-based organization to a government actor is a wrong characterization of the relationship.  Rather, the authors point out that it should be seen as a partnership whereby the government recognizes that it can be more efficient and effective by tapping into the support networks of the “independent sector” to remedy a common problem.¹⁴  In the same way that a government gift to an arts organization does not mean that organization is now a government actor so a faith-based organization should not lose its identity because it receives government funding.¹⁵

The authors reject the assumption that Christianity’s cultural dominance and any attempt to protect religious freedom is an attempt to use public policies to maintain a favoured position.¹⁶  The opposite is true.  “Christianity, is anything but culturally dominant” in the U.S. and one might add in much of Western liberal democracies.¹⁷  The reality is that both the religious and the non-religious feel marginalized by the other group which makes it more difficult to establish common ground.¹⁸

Religious Freedom Also Extends To Faith-based For-Profit Entities

Monsma and Carlson-Thies point out that faith-based organizations are not solely non-profit or charities.  They are also for-profit entities – such as the Hobby Lobby case illustrates.  Consider for a moment that Hobby Lobby applied its owners’ Christian principles in the workplace by giving employees about double the minimum wage, comprehensive health coverage and one day (Sunday) off each week.  Media reports were not as interested in those provisions as they were about Hobby Lobby’s refusal to provide abortifacient medication to its employees.  The refusal was due to the conscientious objection of Hobby Lobby owners, the Green family of Oklahoma.¹⁹

While the US Supreme Court ruled 5-4 in favour of granting Hobby Lobby the exemption based on its right to religious freedom, that decision, as Monsma and Carlson-Thies point out, “remains on shaky ground.”²⁰  The media tried to frame the case as the Green family imposing their religious scruples on its employees.  Such a position is unfair.  That would only be the case, the authors argue, if the Green family fired those employees who were using the abortifacients, or the Green family was lobbying Congress for a law against this form of birth control.  The only coercion in this case came from “…those who were seeking to force the Green family to act contrary to their religious beliefs.”²¹  The authors reject the argument that this was a “secular” corporation and therefore not entitled to religious freedom.  The corporate mission statement and faith inspired practises establish that the owners were, in fact, operating it as a religious based entity.  To deny it protection because of its corporate status could also exclude incorporated churches.  In short, “…religion is more than worship….”²²

Monsma and Carlson-Thies emphasize two limitations on the religious freedom of for-profit organizations.  One, there must be a “clear, explicit, demonstrable religious commitment.  Two, there is no “general right to avoid legal requirements to which they have religiously based objections.”²³  There has to be a balancing of the competing interests.

Other Views

This book also contains six essays written from Roman Catholic, evangelical, Jewish, Muslim and non-religious backgrounds.  Their purpose is to make explicit that Monsma and Carlson-Thies’ concerns are shared by a diverse group.  These essays are very helpful.  Tish Harrison Warren’s piece, “The Wrong Kind of Christian” gave a first-hand account of a Christian organization that was forced off Vanderbilt University’s campus because it required its student leaders to sign a statement of faith.  Warren, an Episcopal priest, said “Religious organizations were welcome as long as they were malleable – as long as their leaders didn’t need to profess anything in particular; as long as they could be governed by sheer democracy and adjust to popular mores or trends; as long as they didn’t prioritize theological stability.”²⁴ Warren came up against a university bureaucracy that was against “discrimination.”  The word “discrimination” was “lobbed like a grenade to end all argument.”  One university official stated, “Creedal discrimination is still discrimination.”²⁵  Creedal belief and sexual expression, notes Warren, were “not just wrong but evil, narrow-minded, and too dangerous to be tolerated on campus.”²⁶  There remained a “culture of fear” on campus where sympathetic professors remained silent in their support of the Christian organization for fear that “going public would be ‘career damaging.’”²⁷

“When religious liberty is not secure, nothing is,” wrote Kristina Arriaga de Bucholz in her short essay included in this volume.²⁸  Bucholz reviewed the experience of the religious order, Little Sisters of the Poor, who refused to agree to pay for the abortifacient drugs as part of the government’s mandatory healthcare.  Little Sisters provides elderly care for people of all faiths who otherwise would not have such help at the end of life.  Yet the government was willing to shut them down with crippling fines.  Little Sisters is currently pursuing their right to religious freedom in court.

Kim Colby’s essay asks the question, “Will pluralism survive the death of relativism?”²⁹  She maintains that relativism was good for religious freedom as, by definition, it had to respect the right of individuals to hold diverse opinions.  However, today there is a “Truth 2.0” that has swept relativism aside and proclaims a new fundamental truth:  “an individual’s sexual autonomy must be unhindered, even unquestioned, no matter what the cost to others’ liberty or even to others’ right to life.”  It demands “that everyone must agree that abortion and sexual conduct outside of traditional marriage are not only acceptable but affirmatively good.”³⁰ And dissent will not be tolerated.

Nathan Diament, an Orthodox Jew, points out that Jews realize that the religious freedom experienced in the U.S. is unprecedented in history.  Therefore, his question “Can it happen here, in America?” has an ominous tone – is it possible that such protections could be expunged in America?³¹  The Enlightened French experience for Jews was “a Jew in the home, but a Frenchman in the street,” has not been the American experience.  It is antithetical to Judaism which “recognizes no notion of ‘being a Jew in the home’ and something else in the street or office or classroom or marketplace or park.”³²

The Muslim perspective, in this book, was given by Hamza Yusuf Hanson and Mahan Hussain Mirza.  “Muslims,” they stated, “stand in solidarity with other faith communities to advocate for the right to live and preach their convictions in the public sphere.”³³  They maintain that the best way to mediate difference is to allow for a plurality of opinions in free and open debate with power of persuasion resting in arguments.  They see successful faith-based institutions in America as a model to bring hope and relief to Muslims everywhere.

Distinguished law professor Douglas Laycock presents a secular perspective in his essay.  “I do not support religious liberty because religion is good,” admits Laycock, “but because religion is profoundly important to those who care about it.”³⁴  He argues that when government “stays out of the way” religion flourishes.  “The whole point of religious liberty is that people from across the whole range of views about religion agree to respect the religious liberty of everyone else across the whole range of views about religion.”³⁵  However, government rarely has a compelling interest in preventing people from feeling offended, insulted, or irritated.

Conclusion:  Practical Steps Going Forward

The authors close their book with five practical steps faith-based organization can take to protect their religious freedom.  First, explicitly stating religious commitments.³⁶  By holding themselves out as religious in all publications, policies, web presence etc. they increase their credibility as being religious.  It will forewarn potential employees the religious nature of the operation.  Second, avoid even the appearance of coercing others to follow one’s religiously based practises.  There is a distinction between providing services to those engaged in “activities that are legal but immoral, and providing services that make it complicit in those immoral activities.”³⁷  There is also a distinction “between refusing to provide a service its religious beliefs hold to be immoral and attempting to prevent someone from obtaining that service elsewhere.”³⁸  By showing respect to a pluralist society the faith-based organization signals its commitment to pluralism and it will strengthen its defense of religious freedom.³⁹  Third, show respect for and work with others who disagree.⁴⁰  Such an attitude demonstrates that they are not simply another advocacy group interested solely in its own protections but cares about the religious freedom of others.  It also opens the door for others to reciprocate the support.  Fourth, get to know community leaders.⁴¹  Ignorance of a group will lead to misconceptions.  Faith-based groups will do best to meet and know community leaders before there is an issue or controversy.  Fifth, work with others to defend everyone’s religious freedom rights.⁴²  They argue that there is a need to work with umbrella organizations and not stand alone – “There is strength in numbers.”⁴³

Evaluation:  Timely but the Conversation Must Continue

While the authors are optimistic that a principled pluralism is possible and even desired I am not sure that society, as currently configured, is willing to put forward the requisite effort to make it happen. Our cultural moment appears less inclined for co-operative projects in these areas of concern. We need more discussion about what will be required to accomplish the vision that Monsma and Carlson-Thies outline.

It seems to me, that further discussions need to be had with those who oppose their views. In many ways this is a book that preaches well to the choir but I question how it may be perceived by those who disagree.  Further conversations must be made with those individuals and groups opposing religious freedom of faith-based organizations.

Monsma and Carlson-Thies’s Free to Serve is timely and necessary.  The pressure on faith-based organizations to conform to a secular ideology is intense.  Such conformity would result in the loss of their religious character.  The concept of the “public” has proven to be dynamic.  Religious communities have established education, healthcare and other centres to meet societal needs for millennia.  It is not as if they are new to the field.  Such endeavours were long considered “private,” that is to say, the religious groups that established the entity maintained their religious character while carrying out their work.  They did so with minimal supervision from government.  If there is anything new, it is the notion of a nation-state seeking to be the sole provider of such services and thereby removing faith-based organizations, or, at the very least, lessening their religious identity to conform to the dominant secular ideology.  Though this book is US centric it addresses issues that are salient throughout the Western World.

It is a great primer and needs to be read not only by law and religion academics, legal practitioners and those leading faith-based organizations but also by the general public.  Its language is easily accessible.

Notes: