Challenges to Religious Exemption in Title IX

The Cardinal Newman Society hosted a webinar on April 29, 2021, for selected Catholic college leaders, in which Gregory Baylor, senior counsel and director of the Center for Religious Schools at Alliance Defending Freedom, provided an update on challenges to the religious exemption in Title IX of the Education Amendments of 1972.

The following summarizes the Newman Society’s understanding of what we learned from this webinar and other sources. Educators should consult their attorneys for professional legal advice.

Title IX and Religious Exemption

Title IX is a federal civil rights law that bans sex discrimination in “any education program or activity receiving Federal financial assistance,” including aid to students. The law exempts religious organizations, to the extent that the “application” of the law conflicts with their religious beliefs.

The exemption states, “this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.”

Equality Act

The Equality Act (H.R.5) was approved by the U.S. House and has been sent to the Senate. In his speech to Congress on April 28, President Biden urged passage. The bill would effectively bypass the religious exemption in Title IX by allowing students and employees to file sex discrimination lawsuits against Catholic schools and colleges under Title VI, which regulates all recipients of federal funding and has no religious exemption. The bill would also:

  • amend several civil rights laws including Titles II, III, IV, VI, VII, and IX, the Fair Housing Act, and others to include protection for “sexual orientation” and “gender identity;”
  • expand the definition of “public accommodations” to include schools and colleges; and
  • prevent any appeal to the Religious Freedom Restoration Act (RFRA) with regard to the Equality Act’s provisions.
Hunter v. U.S. Department of Education

Current and former students from 25 Christian and Mormon colleges (none Catholic) have sued the U.S. Education Department in federal court, claiming that the religious exemption in Title IX is unconstitutional. 1) It violates the Establishment Clause by giving preference to religious institutions. 2) It violates the Equal Protection Clause of the 14th Amendment by allowing federal funding for institutions that discriminate based on “sexual orientation and gender identity.” The second claim rests on precedent barring funds for institutions that practice racial discrimination.

Alliance Defending Freedom is representing three Christian colleges that have moved to intervene in the case to ensure a strong defense of Title IX. The concern is that the Biden administration will provide a weak defense, readily agree to a settlement, or even decline to defend the law.

Maxon v. Fuller Theological Seminary

Fuller Theological Seminary is a multidenominational Christian seminary with campuses in Pasadena, Houston, and Phoenix. Two students who were expelled for violating the seminary’s rules against same-sex marriage and extramarital sexual activity sued the seminary, but in October 2020 a U.S. district court dismissed the case. It has been appealed to the U.S. Court of Appeals for the Ninth Circuit. Among other claims, the plaintiffs are asking the court to rule that the religious exemption in Title IX does not apply to independent and nondenominational institutions that are not legally controlled by an established church. The Cardinal Newman Society and several Catholic colleges will be joining an amicus brief that argues for the exemption.

Challenges to Religious Exemption in Title IX

Efforts to dismantle or undermine the Title IX exemption focus on three key areas:

  • Control: The exemption can be interpreted to exclude nondenominational and independent religious colleges (the latter includes most Catholic colleges) that have no legal ownership by established churches. This, however, raises constitutional concerns, since the interpretation would discriminate against religions based on their ecclesiology.
  • Beliefs: A plaintiff could argue that certain activities related to “sexual orientation and gender identity” are not, in fact, violations of the institution’s religious tenets. This too raises constitutional concerns if a court is asked to determine an institution’s beliefs.
  • Timing: The Education Department could refuse to apply the religious exemption if an institution has not previously applied to the Department for a determination of religious status—a procedure that some religious institutions completed in recent years.

Recommendations:

  • Strengthen Catholic identity: Firmly ground policies in Catholic teaching and explain in writing why they are necessary according to Catholic teaching. Clearly state expectations for employees and what will happen if violated.This allows a strong appeal to religious freedom.
  • Sexuality policies: Be explicit about the institution’s religious beliefs and policies regarding “sexual orientation and gender identity.” Avoid listing “sexual orientation,” “gender identity,” or religion in nondiscrimination statements, and declare your legal right to base decisions on religion. No employee benefits for “gender reassignment” or same-sex unions.

Catholic Identity Standards Project: The Newman Society is working on policy standards to help Catholic schools and colleges stay firmly grounded in Catholic identity while establishing the best protection against legal threats. This work depends on the assistance of a large number of expert reviewers. If you would like to assist, please contact the Newman Society.

New Threats to Religious Freedom Under Biden Administration

The Cardinal Newman Society hosted a webinar on February 17, 2021, for diocesan and Catholic education leaders, in which Eric Kniffen, legal counsel to the Newman Society and a former attorney for the Becket Fund and the U.S. Department of Justice, assessed early and proposed actions of the Biden administration that could affect Catholic schools. On February 15, 2021, the Newman Society hosted a similar webinar for Catholic college leaders, featuring Gregory Baylor, senior counsel and director of the Center for Religious Schools at Alliance Defending Freedom.

The following summarizes the Newman Society’s understanding of what we learned from those webinars and other sources. Educators should consult their attorneys for professional legal advice.

Executive Order 13988 on Sexual Orientation, Gender Identity

On his first day in office, Jan. 20, 2021, President Biden issued an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” The order applies the “reasoning” of the Supreme Court’s Bostock ruling—finding that Title VII of the Civil Rights Act of 1964 includes “transgender” and homosexual within the scope of sex discrimination—to Title IX of the Education Amendments of 1972, the Fair Housing Act, and other laws concerned with sex discrimination. The Order specifically raises concerns about children being “denied access to the restroom, the locker room, or school sports” because of gender identity.

While the Order signals the Biden administration’s intention to press gender ideology under Title IX and other laws, it does not change the laws. Courts still need to work out whether the Bostock ruling’s reasoning regarding employment discrimination applies to education and other areas. The Order does not diminish existing religious exemptions in Title IX and Title VII.

Fair Housing Act

On Feb. 11, 2021, the Department of Housing and Urban Development issued a directive interpreting the Fair Housing Act to include “sexual orientation” and ‘gender identity” within the scope of sex discrimination. This may allow the Act to be construed to require allowing biological males access to women’s campus residences.

Equality Act

President Biden strongly supports the Equality Act, which was introduced in the House on Feb. 18, 2021 (H.R.5, 223 cosponsors). The House approved a version in the last session. The bill would:

  • amend several civil rights laws including Title IX, Title VII, the Fair Housing Act, and others to include protection for “sexual orientation” and “gender identity;”
  • expand the federal definition of “public accommodations” under Title II of the Civil Rights Act to include schools and colleges;
  • effectively bypass the strong religious exemption in Title IX by allowing students and employees to file lawsuits against Catholic schools and colleges under Title VI, which regulates all recipients of federal funding and has no religious exemption; and
  • prevent any appeal to the Religious Freedom Restoration Act (RFRA) with regard to discrimination suits based on “sexual orientation” or “gender identity.”

The Equality Act is likely to pass the House. Senate majority support is also likely. The fate of the bill may depend on whether the Senate retains the filibuster, effectively requiring 60 votes.

Do No Harm Act

Sen. Kamala Harris introduced the Do No Harm Act in the last session of the Senate (S.593, 33 cosponsors), and it was also introduced in the House (H.R.1450, 215 cosponsors). If reintroduced this session, the bill would prohibit application of the Religious Freedom Restoration Act to any provision of the Civil Rights Act or sex discrimination under the Fair Housing Act, as well as employment decisions and benefits, health plans and services, and government funds and services.

Affordable Care Act

The Biden administration may interpret the Affordable Care Act to require doctors to perform “gender reassignment” procedures and force insurers to cover such procedures. However, on Jan. 19, 2021, a federal district court in North Dakota issued an injunction preventing such a mandate for the University of Mary and others, including members of the Catholic Benefits Association.

National Labor Relations Board

Last year, the National Labor Relations Board finally agreed to abide by the Supreme Court’s 1979 ruling that prohibits the NLRB from interfering with Catholic education. In January 2020, the D.C. Circuit Appeals Court blocked NLRB oversight of Duquesne University. Nevertheless, Biden appointees are reversing NLRB policies and may reassert authority over collective bargaining.

Recommendations:

  • Strengthen Catholic identity: Firmly ground policies in Catholic teaching and explain in writing why they are necessary according to Catholic teaching. Clearly state expectations for employees and what will happen if violated. This allows a strong appeal to religious freedom.
  • Nondiscrimination policies: Avoid listing “sexual orientation,” “gender identity,” or religion in protected categories. Declare your legal right to base decisions on religion.
  • Employee benefits: No benefits for “gender reassignment” or same-sex unions.
  • Lobby Congress: Urge Congress to protect religious education, preserve the filibuster, and oppose the dangerous Equality Act and Do No Harm Act.

Catholic Identity Standards Project: The Newman Society is working on policy standards to help Catholic schools and colleges stay firmly grounded in Catholic identity while establishing the best protection against legal threats. This work depends on the assistance of a large number of expert reviewers. If you would like to assist, please contact the Newman Society.

Key Points on Supreme Court’s Espinoza Ruling on Public Benefits for Catholic Education

The following summarizes the June 30th Supreme Court ruling in Espinoza v. Montana Department of Revenue. Educators should consult their attorneys for professional legal advice.

Bottom Line: The Espinoza ruling effectively nullifies “Blaine amendments” in state constitutions, ensuring that Catholic schools and colleges have equal access to public benefits. Caution is strongly urged to avoid entanglements that jeopardize the mission of Catholic education.

Ruling: “The application of [Montana’s] no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the… Constitution.”

Focus on religious character: The Court finds that Montana excluded schools from its tuition program “solely because of their religious character,” triggering strict scrutiny per Trinity Lutheran Church of Columbia, Inc. v. Comer (2017). Under strict scrutiny, “must advance ‘interests of the highest order’ and… be narrowly tailored in pursuit of those interests” (McDaniel v. Paty, 1978).

Not focused on religious use: The Court rejects Montana’s claim that its no-aid provision targets only the use of public benefits for religious education, per Locke v. Davey (2004). The Court questions the value of such a distinction, but it declines to resolve the matter. “None of this is meant to suggest that we agree with [Montana] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.” Locke prohibited funds only for clergy training, a narrow exclusion based on “historic and substantial” concerns.

Nullifies Blaine amendments: The Court rejects Montana’s appeal to its state constitution and no-aid provisions adopted by more than 30 states. It notes that many no-aid provisions were “born of bigotry” in the 1870s Blaine Amendment and were targeted against Catholics.

Recommendation:

Prioritize Catholic identity: As desperate as the need for funding may be, avoid entanglements that may jeopardize the mission of Catholic education. Accept no compromise with nondiscrimination provisions that violate Catholic teaching.

Prioritize Catholic formation: School choice and scholarship programs can be very helpful to schools and families in need, but admissions procedures should accept only students whose parents embrace the mission of Catholic education. Preserve strong Catholic formation.

Catholic Identity Standards Project: The Newman Society is working on policy standards to help Catholic schools and colleges protect and strengthen Catholic identity. This work depends on the assistance of a large number of expert reviewers. If you would like to assist, please contact Michael Kenney, director of Catholic Identity Standards Project, at mkenney@cardinalnewmansociety.org.

Key Points on Supreme Court’s Our Lady of Guadalupe Ruling on Ministerial Exception

The Cardinal Newman Society is working on detailed guidance to help Catholic schools and colleges strengthen their ability to claim the “ministerial exception” in light of the July 8th Supreme Court ruling in Our Lady of Guadalupe School v. Agnes Morrissey-Berru (combined with St. James School v. Darryl Biel, as Personal Representative of the Estate of Kristen Biel). The following summarizes our current understanding of the ruling. Educators should consult their attorneys for professional legal advice.

Bottom Line: The ministerial exception can help protect Catholic education, but only if employee standards clearly require fidelity and religious duties for all positions and across the full curriculum. Institutions that compromise Catholic identity and have weak policies risk being left unprotected.

Ruling: “The First Amendment’s Religion Clauses foreclose the adjudication of… employment-discrimination claims” by two Catholic elementary school teachers who taught several courses including a religion course. They are within the “ministerial exception” as affirmed by the Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012).

Focus on duties: The Court rejects the Ninth Circuit’s arguments that an employee must be a religious “leader” and that “an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework.” Justice Alito writes, “What matters, at bottom, is what an employee does. …educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”

No strict test: The Court rejects any “rigid formula” for applying the ministerial exception. Hosanna-Tabor considered four factors: the employee’s title, training, public standing, and job duties. But Guadalupe finds that “a variety of factors may be important” and clarifies that the Hosanna-Tabor ruling “did not mean that [the four factors in that case] must be met—or even that they are necessarily important—in all other cases.” The Court finds that three of the Hosanna-Tabor factors are not decisive in this case: neither teacher is titled “minister” (although the Court does note that the Archdiocese of Los Angeles describes all teachers as “catechists”), minimal prior religious training (although the Court notes employer-sponsored training), and one teacher’s failure to “hold herself out to the public as a religious leader or minister.”

Other factors: The Court notes the following factors (in no particular order): employment agreement and handbook requiring religious instruction and witness, taught many subjects including religion, taught religion daily using Catholic catechism textbook, tested students on religion, prepared and accompanied students for Mass and Confession, selected students for Mass readings and bringing gifts at Mass, took students on annual trip to cathedral, prayed with students daily, taught prayers, took religious education courses at school’s request, attended Catholic education conference, attended faculty prayer services, directed Passion play, taught in fidelity to Catholic teachings, infused classes with Catholic values and teachings, included religious displays in the classroom, and performance reviews according to religious standards.

Deference: The Court regards the religious employer or church’s determination of what constitutes religious duties to be “important” to its application of the ministerial exception.

In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important.

In a nod to Catholic Church authority, the Court notes:

In the Catholic tradition, religious education is “‘intimately bound up with the whole of the Church’s life.’” Catechism of the Catholic Church 8 (2d ed. 2016). Under canon law, local bishops must satisfy themselves that “those who are designated teachers of religious instruction in schools . . . are outstanding in correct doctrine, the witness of a Christian life, and teaching skill.” Code of Canon Law, Canon 804, §2 (Eng. transl. 1998).

Scope of exception: The Court’s ruling rests on whether employee is a “teacher of religion.” Schools will need to demonstrate that all teachers (not only those who teach designated religion courses) and non-teachers (including school administrators, coaches, guidance counselors, and support staff) are truly teaching religion or have other essential religious functions. The Newman Society is developing additional guidance on this point.

Limitations: Employees not covered by the ministerial exception are still subject to employment discrimination claims, including those under the Bostock ruling regarding homosexuality and transgender status. The ministerial exception does not protect against discrimination claims by students, parents and others that are unrelated to employment (including Title IX claims).

Recommendations:

Strengthen Catholic identity: Firmly ground all employment policies in Catholic teaching, require all teachers to include Catholic instruction across the curriculum, and require religious duties of non-teaching employees. Require all employees to evangelize in fidelity to Catholic teaching and the mission of Catholic education. Consider all factors cited above to improve ministerial exception claims. Strong Catholic identity overall (faith integrated across curriculum, sacraments, prayer, student activities, etc.) will help increase employees’ ministerial activity.

Nondiscrimination policies: Avoid listing any protected categories, but especially do not include sexual orientation or gender identity. Declare your legal right as a religious entity to make decisions based on religion; do not promise nondiscrimination on “religion.” Develop policies and arbitration for resolving discrimination claims and other disputes with ministerial employees.

Employee benefits: Check employee benefits to ensure fidelity to Catholic moral teaching.

Catholic Identity Standards Project: The Newman Society is working on policy standards to help Catholic schools and colleges protect and strengthen Catholic identity. This work depends on the assistance of a large number of expert reviewers. If you would like to assist, please contact Michael Kenney, director of Catholic Identity Standards Project, at mkenney@cardinalnewmansociety.org.

 

us supreme court

Key Points on Supreme Court’s Bostock Ruling on Sex Discrimination

The Cardinal Newman Society hosted a webinar on June 17, 2020, for Catholic education leaders, in which Gregory Baylor, senior counsel and director of the Center for Religious Schools at Alliance Defending Freedom, offered a brief assessment of the June 15th Supreme Court ruling in Bostock v. Clayton County, Georgia. The following summarizes our understanding of what we learned from that webinar and other experts. Educators should consult their attorneys for professional legal advice.

Ruling: “An employer who fires an individual merely for being gay or transgender violates Title VII,” the federal law banning employment discrimination in categories including sex.

Definition of “sex”: The Court did not explicitly reject the understanding of “sex” as male and female, as some activists hoped. It is therefore incorrect to say that the Court “redefined sex” to include multiple “genders.” The Court found that identification as homosexual or transgender is a matter related to biological sex, and so they fall within the scope of sex discrimination. The Court did not address “other genders” or uncertain gender.

Scope of sex discrimination: Previously the Court has interpreted Title VII to forbid only adverse discrimination that is unwarranted and a double standard for men or women. But this ruling finds that homosexuality and transgender identification are protected categories, even though employment standards be applied equally to men and women.

Status vs. conduct: The Court ruling fails to distinguish homosexual or transgender inclination or identification from expression and conduct—a distinction that is central to Catholic teaching.

Statutory: The ruling interprets Title VII but identifies no new constitutional rights.

Religious exemption: Title VII includes an exemption for a “religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion…” This should allow a Catholics-only hiring policy, but not every baptized Catholic is a suitable employee. Unless the exemption is strengthened, it is uncertain whether courts will allow moral and doctrinal criteria for employment, which are essential to faithful Catholic education.

Education law: Title VII has tended to guide interpretations of Title IX (on sex discrimination in education), but the Title IX religious exemption is much stronger. Although not required, several institutions have obtained prior determinations from the Education Department that they are exempt; those that have not should weigh the merits of doing so, while there is an administration that is favorable to the granting of such exemptions. COVID relief loans under the Paycheck Protection Program put schools and colleges under Title IX until the loan is forgiven or returned, but Baylor sees little reason for changing direction on PPP loans. Sex discrimination is not a statutory barrier to Title IV funding.

Legal defense: A Catholic school or college that is charged with illegal sex discrimination may have recourse to the following defenses.

Religious exemption: As noted, religious exemptions in Title VII and Title IX.

Ministerial exception: This will not cover all employees. A Supreme Court ruling on its scope is expected this month. The exception is not statutory; it is based on the First Amendment.

Religious Freedom Restoration Act: Must prove that a government action is a “substantial burden” on religion; seems to apply here, but courts may disagree. Government must then show that it could not achieve its purpose in a way that is less burdensome to religion.

First Amendment: Arguments for free exercise of religion, freedom of association, freedom from compelled speech.

Recommendations:

Strengthen Catholic identity: Firmly ground all policies in Catholic teaching and explain in writing why policies are necessary according to religious beliefs. Baylor cautions against the opposite strategy: laying low and downplaying Catholic identity, which weakens a religious freedom defense. Explicitly state expectations for employees and what will happen if violated. Always justify policies according to Catholic beliefs.

An institution’s religious identity, under the law, is whatever the institution declares to be its own deeply held beliefs. A “Catholic” label is neither enough nor necessary. Put into writing the school or college’s Catholic beliefs, especially those that are likely to be challenged, and clearly identify authoritative sources of the school’s beliefs (such as Catechism of the Catholic Church).

Nondiscrimination policies: Avoid listing any protected categories, but especially do not include sexual orientation or gender identity. Do not promise nondiscrimination on “religion”; declare your legal status as a religious entity with freedom to make decisions based on religion.

Employee benefits: Check employee benefits to ensure no support for “gender reassignment,” same-sex marriage, etc. Any compromise can weaken a religious freedom defense.

Language: Clarify language in all policies, especially employment documents, that is vague, confusing, or in conflict with Catholic teaching regarding sexuality and gender.

Lobby Congress: Consult your legal counsel; generally nonprofits can lobby on matters that directly affect them. Urge Congress to protect religious education and, if possible, to amend law to reverse Bostock ruling. Oppose Equality Act, which is highly dangerous: would enshrine Bostock in law, embrace gender ideology, remove religious exemption, and end RFRA application to sex discrimination. Oppose Fairness for All Act, which would enshrine Bostock in law (an immoral law) in exchange for religious exemptions that are unlikely to survive.

Catholic Identity Standards Project: Please know that the Newman Society is working on policy standards to help Catholic schools and colleges stay firmly grounded in Catholic identity while establishing the best protection against legal threats. This work depends on the assistance of a large number of expert reviewers. If you would like to assist by commenting on draft documents, please contact Michael Kenney, director of the Catholic Identity Standards Project, at mkenney@cardinalnewmansociety.org.

Protecting Your Right To Educate: How Catholic Education Can Defend Against Emerging Legal Threats

Half a century into a sexual revolution that has upturned notions of sexual morality and even gender identity, Catholic education is under attack like never before. Religious schools and colleges are facing protests and lawsuits, while presidential candidates are promising to revoke schools’ tax-exempt status—all because Catholic educators hold fast to Church teachings that were considered common sense even a decade ago.

Catholic schools and colleges have not sought out and do not want this confrontation. They exist to form young people to serve and worship God and to spread love and hope to others, rooted in the Church’s teaching on the dignity of the human person and God’s design for human sexuality. But educators are finding that, due to forces beyond their control, their freedom to operate according to conscience and mission is shrinking.

As legal and cultural pressures continue to swell, Catholic school leaders must decide now how they will respond. Many Catholic schools decided a long time ago to assimilate with changes in modern culture. Others have tried to placate critics by offering limited compromise to pressure from students, parents, or outsiders.

Instead, Catholic educators ought to take a different approach by viewing the current crisis as a call to deepen and strengthen their organizations’ religious identity.[1]  The good news is that there is much that Catholic educators can do to help protect their ability to continue serving the public and operate according to mission. Despite the cultural trends, our nation has retained its strong founding commitment to religious liberty. But like Jesus, who has little patience for the lukewarm, the strongest religious liberty protections are available to those schools that communicate and live out their convictions—boldly, clearly, and consistently.

The first part of this Issue Bulletin provides context, illustrating some of the legal conflicts and other pressures on religious organizations from new and emerging standards in culture and law that conflict with their convictions.

The second part outlines practical steps that Catholic education leaders can take to prepare to meet these challenges. Most importantly, this part urges schools and colleges to undertake a mission audit that will help leaders identify where their convictions are likely to be challenged and help them better articulate their convictions in light of these challenges. The audit proposes a series of strategic decisions that help religious organizations understand present and anticipated conflicts, improve religious liberty protections, and prepare themselves for the challenges that may come.

The audit outlined here draws from the author’s experience working on such audits with dozens of Christian schools and major national Catholic ministries. This proven process not only improves legal defenses, it also helps invigorate the apostolate by giving community members a new and stronger sense of their calling and how they relate to the organization’s religious mission.

Religious liberty threats to Catholic education

To properly discern the path forward, Catholic school and college leaders must begin with a sober assessment of today’s cultural context and the legal pressures that are being brought to bear on religious organizations that are holding fast to Christian anthropology.[2]

The Supreme Court’s 2015 decision in Obergefell v. Hodges must feature prominently in any retelling of where Catholic educators in America find themselves today.[3] In one sense, the declaration that the Constitution protects the right to same-sex marriage was simply the latest in a long line of Supreme Court decisions, stretching back to Griswold v. Connecticut, 318 U.S. 479 (1965), that have developed a constitutional right to self-determine one’s sexual identity and sexual activity without consequences, a right that invariably is exercised by striking down laws and policies seeking to preserve the nuclear family and traditional sexual morality.[4]

Yet the Obergefell decision is much more than just another step down the same road the Supreme Court has been on for fifty years. It marked an important and ominous turning point in the relationship between sexual liberties and religious freedom. Rather than satisfying the cultural left, Obergefell has led to increasing hostility against Christian values and institutions that hold fast to their traditional views and resist cultural trends. Traditional views and even the concept of “religious liberty” itself have come under increasing attack.

In the years before Obergefell, the pitch for redefining marriage was often made on libertarian grounds. Same-sex couples were merely seeking a legal status that would give them hospital visitation rights[5] and alleviate tax penalties.[6] On the flip side, religious conservatives were pushed to answer how expanding marriage would affect their own lives.[7] The clear implication was that it would not at all.

But in June 2015, when the Supreme Court announced a constitutional right to same-sex marriage, the narrative changed abruptly and progressives began attacking religious institutions. The same day the Court dropped its opinion, the ACLU announced its opposition to religious freedom laws.[8] Two days later, The New York Times religion columnist Mark Oppenheimer called for an end to tax exemptions for religious institutions that disagree with the new public policy resulting from the Obergefell decision.[9]

The following year, the U.S. Commission on Civil Rights concluded a three-year study of the balance between religious liberty and nondiscrimination laws with a report, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.” The Commission concluded that, for the most part, this “peaceful coexistence” will be achieved by forcing religious liberty claims to yield before emerging civil liberty claims.[10] The most incendiary part of the report is the statement of Commission Chairman Martin R. Castro, who said that “[t]he phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance. . . . This generation of Americans must stand up and speak out to ensure that religion never again be twisted to deny others the full promise of America.”[11]

The recent attacks on religious liberty have not been confined to rhetorical flourishes but have taken place in the courtroom as well. In many of these lawsuits, progressives have claimed the moral high ground by arguing that discrimination on the basis of sexual orientation or gender identity is akin to race discrimination. For example, in Craig v. Masterpiece Cakeshop, Christian baker Jack Phillips argued that he had not discriminated against a homosexual couple “because of” their sexual orientation, but because of their intended conduct—entering into a same-sex marriage.[12] The Colorado court rejected this argument. It said that while “Masterpiece thus distinguishes between discrimination based on a person’s status and discrimination based on conduct closely correlated with that status,” “the United States Supreme Court has recognized that such distinctions are generally inappropriate.”[13] In another Christian wedding vendor case, this time involving a florist, the Washington Supreme Court made a direct analogy to the civil rights era, asserting that “[w]e agree with [the plaintiffs] that this case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.”[14]

Many of these legal and cultural attacks have focused on faithful Catholic schools and colleges:

  • In 2009, before the Obama administration implemented the HHS Mandate, the EEOC said that Belmont Abbey College, a Catholic liberal arts school near Charlotte, N.C., was guilty of sex discrimination because its employee health plan did not cover contraceptives.[15]
  • In 2011, a Catholic school in Fort Wayne, Indiana, dismissed a junior high school language arts teacher, Emily Herx, when she continued with in vitro fertilization treatments after the pastor informed her that this violated Church teaching and asked her to stop. Ms. Herx alleged that this constituted sex discrimination, and the EEOC agreed. In December 2014, the jury found for Herx and awarded her $1.9 million in damages.[16]
  • In 2014, a Catholic school in Macon, Georgia, dismissed its music teacher after he announced on Facebook his upcoming same-sex wedding. In March 2015, the EEOC determined that this was sex discrimination under Title VII. On June 29, the day after the Obergefell decision, the plaintiff filed his Title VII lawsuit against the Catholic school.[17]
  • In 2016, the California Assembly took up proposed legislation, SB 1146, that aimed at stigmatizing and punishing religious colleges and universities that expect their students to adhere to the school’s traditional beliefs on sexual identity and sexual morality. The bill, in its strongest form, opened up such religious schools to civil lawsuits from LGBT students and blocked students who wanted to attend such schools from receiving Cal Grants, California’s need-based aid system.[18] The bill’s sponsor, California Senator Ricardo Lara, wanted “to shed light on the appalling and unacceptable discrimination against LGBT students at these private religious institutions throughout California.” Another California legislator, Assemblyman Evan Low, called colleges claiming a religious exemption from Title IX “the worst of the worst in terms of institutions that discriminate.”

The attacks on faithful Catholics have only intensified over the past year:

  • In late 2018, Democrats in the Senate Judiciary Committee contended that a judicial nominee should be rejected simply because he belonged to the Knights of Columbus.[19]
  • In May 2019, the House of Representatives passed the “Equality Act,” a bill that would make it illegal to discriminate on the basis of “sexual orientation” or “gender identity” while eliminating religious liberty protections.[20] Fortunately, the bill died in the Senate.
  • In September, Secretary of Education Betsy DeVos came under attack for visiting a Catholic school in Pennsylvania that is not inclusive of transgender students and staff and has a strict policy against “sex reassignment.”[21]
  • In October, presidential candidate Beto O’Rourke called for stripping churches and schools of their tax-exempt status if they oppose same-sex marriage.[22]
  • Also in October, the Supreme Court heard three cases that ask the Court to redefine “sex discrimination” under Title VII, the federal employment nondiscrimination law, to include both “sexual orientation” and “gender identity.” The Supreme Court is expected to decide these cases by June 2020.[23]

In 2019 alone, Catholic schools have faced lawsuits for terminating employees for premarital sex,[24] entering a same-sex union,[25] and for publicly advocating for same-sex couples.[26] Leaving aside school-teacher conflicts, Catholic schools have faced backlashes within the Catholic community for refusing admission to the child of a same-sex couple[27] and for refusing to celebrate a same-sex wedding in the campus chapel.[28]

Catholic education leaders must decide now how they will respond to this crisis.

As these pressures mount, Catholic educators must decide now how they will respond to the aggressive pressures being brought to bear on religious institutions that hold fast to their convictions. School and college leaders with little appetite for conflict or budget for protracted litigation will likely prefer an approach that would allow them to sidestep these conflicts. But the options here are not promising. Instead, Catholic educators are urged to undertake a mission audit to help them develop and implement strategies to strengthen their religious identity and their religious liberty defenses.

Attempts to avoid conflict are either futile or involve compromises inconsistent with the mission of a Catholic school.

Catholic school and college leaders would rather focus on education and evangelism than on costly and time-consuming legal and public relations battles. But there are good reasons to think that efforts to avoid conflict or placate the Church’s critics are either impractical or unprincipled.

One option, to simply agree to conform policies and personnel matters to the emerging consensus, is a non-starter for schools and colleges that take seriously the mission of Catholic education as articulated by Vatican II and recent popes.[29] Nor is it realistic for Catholic educators to simply hope that this cultural moment will pass them by without incident. Underlying this reality, the 2019 lawsuits mentioned above were filed in Kansas and Indiana, Midwestern states far from the coasts.

Another option would be to make some compromises with the culture in the hopes of brokering a peace. The pervasive attacks on traditional moral teaching have led some religious leaders to try to compromise and thereby win some good will from gender and sexuality activists. Mormon and Evangelical leaders have tried this approach in recent years, with decidedly mixed results. In 2015 the Mormon Church threw its weight behind the “Utah Compromise,” an attempt to broker a truce in the culture war by pairing new civil rights protections with religious-liberty protections for faith-based organizations.[30] At the end of 2018, major Evangelical Christian groups—including the Council for Christian Colleges and Universities and the National Association of Evangelicals—endorsed their own version of this compromise approach under the slogan “Freedom for All.” Here, as in Utah, the policy of giving progressives some of what they wanted was sold as a political strategy to preserve religious liberty.[31] One supporter described the effort in these terms:

As Christian higher educators, we are increasingly persuaded that the most viable political strategy is for comprehensive religious freedom protections to be combined with explicit support for basic human rights for members of the LGBT community.[32]

So far, however, there is little reason to call the “Fairness for All” approach a success. While progressive activists celebrated what they were able to accomplish in Utah, they quickly signaled that it was not enough, and that they would push for more whenever they had the opportunity.[33] Advocates specifically complained that the “Utah Compromise” yielded too much so-called “religious liberty.” As noted above, the left has come to see “religious liberty” as a code word for bigotry; there is no reason to think that religious conservatives can change people’s minds on this by compromising on nondiscrimination law.

Some Catholic universities have also demonstrated the weakness and futility of the compromise approach to these culture war battles over sexual morality. The University of Notre Dame has extended spousal benefits to same-sex partners[34] and covers most FDA-approved contraceptives in its health plans,[35] yet it was still sued for refusing to fund abortifacients[36] and its student body president is calling for the school to abandon single-sex dorms and parietals on the basis that they are “heteronormative” and discriminate against transgender and same-sex attracted students.[37] Marquette University hosts a student “Pride Prom”,[38] yet like Notre Dame is still facing pressure over its “outdated” single-sex dorm policies.[39]

If compromising Catholic principles in order to placate progressive critics is a flawed political strategy, it is perhaps an even worse legal strategy. At one point, Notre Dame told a federal judge that, consistent with Ex Corde Ecclesiae, it was prohibited from paying for, providing, or facilitating access to contraceptives.[40] But in 2014, the University reversed course and voluntarily began complying with the HHS Mandate.[41] This sort of inconsistency invites courts to probe as to whether a school’s stated religious convictions are sincere, a key inquiry in religious liberty cases. Perhaps even worse, it encourages protestors and plaintiffs by giving them reason to hope that Catholic institutions will cave if only the heat is turned up hot enough.

Catholic schools and colleges are instead urged to undertake a mission audit to strengthen their religious identity and religious liberty defenses.

Rather than trying to appease the Church’s critics, Catholic organizations should instead look to clarify and strengthen their religious identity. This is the best way for Catholic schools and colleges to embrace their distinctive mission. In his 2008 address to Catholic educators at The Catholic University of America, Pope Benedict XVI identified an “educational emergency” and urged leaders to fulfill the mission of Catholic education:

A particular responsibility, therefore, for each of you and your colleagues, is to evoke among the young the desire for the act of faith, encouraging them to commit themselves to the ecclesial life that follows from this belief. It is here that freedom reaches the certainty of truth. In choosing to live by that truth, we embrace the fullness of the life of faith which is given to us in the Church.[42]

As The Cardinal Newman Society has stressed, the Church calls Catholic educators “to remain vigilant in their mission” by resisting the temptation to conform to the world. Schools and colleges must do this “by preserving a Catholic culture which proclaims essential truths about the nature and dignity of the human person.”[43]

Fortunately, this ecclesial mandate is also a strong and wise legal strategy. While the challenges facing churches and religious organizations are daunting, our nation’s bedrock commitment to religious liberty remains strong. This historical commitment continues to live in the First Amendment’s protections for religious and expressive freedom, broad religious liberty statutes, and specific exemptions found in a number of laws.[44]

In order to best protect their religious liberty, it is imperative that Catholic schools and colleges understand and take full advantage of these protections. To do so, Catholic educators should undertake a mission audit to help them understand where they are likely to face challenges and to ensure that they have an architecture in place to protect their freedom to minister and work in accordance with their faith.

Just as a general audit helps an organization understand its financial soundness, a mission audit will help a religious organization understand how its religious convictions affect its work and how these convictions may face conflict. The proposed mission audit outlines the kind of practical steps religious institutions can take to avoid such conflicts, improve their ability to claim religious liberty protections, and prepare themselves for potential challenges.

Often organizations are initially motivated to undertake a religious mission audit for defensive reasons: because they are acutely aware that distinctly Christian educators and employers are in legal and cultural crosshairs and want to know how to best protect their institution and its mission against attacks. But the audit has positive aspects as well. Over the past six years, our firm’s religious institutions group has helped dozens of Christian schools, several dioceses, and large religious organizations through this audit process to help them strengthen their legal protections by strengthening their religious identity. In our experience, religious organizations find the audit process revealing and instructive. The process helps Catholic schools and colleges:

  • Better articulate their charism inside and outside their community;
  • Clarify and implement this charism as it relates to their various programs, departments, and positions; and
  • Better steward their school’s charism and resources.

 

  1. Quick steps to protect mission

Many school and college leaders see the need for a mission audit but want to know what steps they should be taking in the short term. The mission audit we recommend begins with getting leaders around a table to make sure they have clarity about their mission and convictions.

Building on this consensus, leaders should ask some high-level questions to get a sense about what they need in order to accomplish their mission and whether documents and policies adequately convey these requirements. The most important areas to review are employee expectations, student expectations, nondiscrimination statements, and facilities use policies. Schools may also want to make sure they understand the nondiscrimination requirements they are subject to through professional or extracurricular organizations like sports leagues.

In undertaking this overview, school leaders may find it helpful to refer to guides that have been prepared and made available by religious liberty groups.[45]

  1. Mission audit overview

While publicly available guides and templates can be a good start, most schools and colleges should invest in a more detailed and individualized strategy. Every organization’s circumstances are different, and sophisticated entities should not entrust their legal exposure to an online resource any more than they would forego individualized financial advice.

Each organization’s process will need to take into account the challenges in its locality, as well as the religious liberty provisions specific to the organization type and location. The audit outlined below is a sizable undertaking, but such planning is necessary as a matter of stewardship and prudent leadership. While each such audit must be tailored to the particular entity, every organization’s process should involve three basic steps.

              a. STAGE ONE: Clarifying the audit’s scope and objectives

The first step in the audit process is for school and college leaders, together with legal counsel, to discuss the institution’s general concerns and establish the scope of the audit. Most mission audits should address the following subject areas:

  • Corporate Documents
    • Is the school or college taking advantage of available opportunities to establish its identity as a religious organization under relevant laws?
  • Public Accommodations
    • Does the school or college have policies and procedures for facility use and rental? If so, does its process properly balance reasons for renting its facilities with its ability to control how the campus is used?
  • Nondiscrimination Policies
    • Do nondiscrimination policies—in handbooks, policy manuals, and elsewhere—accurately reflect how the school or college makes decisions?
  • Student Conduct Issues
    • Do promotional materials, enrollment process, student handbook, disciplinary process and procedures, etc., appropriately communicate and secure consent regarding the community’s standards and their connection to the religious identity of the school or college?
  • Employee Conduct Issues
    • Does the school or college understand how available religious liberty protections apply to each position? Has it laid the proper groundwork so that it is able to invoke available religious liberty protections when necessary?
  • Sexual Abuse
    • Do policies and procedures for handling allegations of sexual abuse or misconduct reflect best practices? Is the school or college well-positioned to handle allegations in a manner that balances justice and mercy and that prepares it to address related public relations and legal challenges?

      b. STAGE TWO: Audit current policies and procedures

The second stage of the audit involves reviewing how the school or college operates at present. The audit usually begins with a document review and continues with follow-up questions and conversations. A thorough document review typically involves the following:

  • Corporate documents;
  • Human resources documents;
  • Student-related documents;
  • Sexual abuse policies and procedures;
  • Facility rental policies and procedures; and
  • Documents related to third-party obligations, including sports leagues, grants, and government contracts.

           c. STAGE THREE: Developing recommendations to protect the organization

While the first two stages of the audit help a school or college understand where it stands, this final stage is the most important. Here, educators will identify and implement strategies to help them continue to pursue their mission despite the present and emerging threats to religious liberty.

The first goal is to identify obstacles that can be avoided. The school or college could seek to:

  • Eliminate unnecessary legal conflicts;
  • Eliminate peripheral activities;
  • Reduce dependence on government funding; or
  • Reduce oversight from licensing or accrediting organizations.

For those conflicts that are not easily avoidable, religious organizations should work to improve their ability to claim crucial protections for religious liberty. By one scholar’s count, there were 2,000 religious exemptions in state and federal law in 1992.[46] The audit should help educators identify the religious liberty protections most relevant to their activities and identify ways to reshape policies, practices, and documentation in light of these protections.

Here the audit will aim to:

  • Strengthen or clarify the school’s or college’s relationship to its religious tradition or to a religious authority;
  • Clarify the organization’s status as an “expressive association;” and
  • Strengthen the educators’ ability to claim exemptions from employee discrimination laws (including the ministerial exception, Title VII’s bona fide occupational qualification, and Title VII’s religious organization exception).

Finally, the audit recommends ways for the school or college to avoid controversy. While positioning itself to qualify for religious liberty protections, a religious organization should not overlook some simple, practical things it can do to avoid controversy. It should do everything it can to treat employees well and to apply moral standards consistently.

Conclusion

Undertaking a mission audit is a crucial task for Catholic schools and colleges today. This Issue Bulletin has explained why a Catholic school or college should undertake an assessment that will help identify challenges and religious liberty protections specific to its locale and activities and then make adjustments to better protect itself from challenges. Failure to act promptly to identify and address legal and institutional weaknesses can have enormous consequences for Catholic educators’ ability to fulfill their calling.

While a thorough audit is a time-intensive and resource-intensive process, such planning is necessary in today’s environment as a matter of stewardship and prudent leadership. To reduce the cost of the audit, many schools and colleges choose to undergo an audit with others that they recognize as peers. This approach not only saves money, but it also helps schools and colleges learn from each other’s insights, struggles, and successes.

Catholic educators should carefully choose the legal counsel that will guide them through this process. A thorough mission audit is best undertaken with counsel that is familiar with religious organizations and with religious liberty issues, as such familiarity will help guide the school or college through the complex moral, religious, and practical problems facing religious education today.

 

Eric Kniffin is an attorney in Colorado Springs, Colorado specializing in religious institutions. He is a partner with the law firm of Lewis Roca Rothgerber Christie LLP and can be reached at 719-386-3017 or ekniffin@lrrc.com.

 

[1] DISCLAIMER: This paper should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and readers are urged to consult their own lawyers concerning particular situations and any specific legal questions they may have.

[2] For a more detailed survey of the cultural and legal threats against Christian institutions in the wake of Obergefell v. Hodges, see Eric N. Kniffin, Protecting Your Right to Serve: How Religious Ministries Can Meet New Challenges without Changing Their Witness, Heritage Foundation (Nov. 9, 2015) at 3-7, https://www.heritage.org/civil-society/report/protecting-your-right-serve-how-religious-ministries-can-meet-new-challenges.

[3] 135 S. Ct. 2584, 2594 (2015).

[4] For a helpful overview of this line of Supreme Court cases and the sexual revolution, see Helen Alvaré, Religious Freedom Versus Sexual Expression: A Guide, 30 J. L. & Religion 475 (2015). See also Helen Alvaré, With Power Comes Responsibility: The Rise of Sexual Expressionism and the Decline of Children’s Interests, Cambridge Univ. Press (2017).

[5] See Human Rights Campaign, Hospital Visitation Guide for LGBTQ Families, https://www.hrc.org/resources/hospital-visitation-guide-for-lgbt-families

[6] Bill Mears, Same-sex marriage and DOMA: 5 things we learned from oral arguments, CNN (March 28, 2013), https://www.cnn.com/2013/03/27/us/new-york-doma-windsor/index.html

[7] See Ethics & Religious Liberty Comm’n, How will gay marriage impact your marriage? (Aug. 4, 2014), https://erlc.com/resource-library/articles/how-will-gay-marriage-impact-your-marriage.

[8] Louise Melling, ACLU: Why we can no longer support the federal ‘religious freedom’ law, Washington Post (June 26, 2015), http://www.washingtonpost.com/opinions/congress-should-amend-the-abusedreligious-freedom-restoration-act/2015/06/25/ee6aaa46-19d8-11e5-ab92-c75ae6ab94b5_story.html.

[9] Mark Oppenheimer, Now’s the Time to End Tax Exemptions for Religious Institutions, Time (June 28, 2015), http://time.com/3939143/nows-the-time-to-end-tax-exemptions-for-religious-institutions/.

[10] U.S. Commission on Civil Rights, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties (Sept. 7, 2016), http://www.usccr.gov/pubs/Peaceful-Coexistence-09-07-16.PDF.

[11] Id. at 29.

[12] 370 P. 3d 272, 280 (Colo. App. 2015).

[13] Id. at 280-81 (collecting cases).

[14] State v. Arlene’s Flowers, Inc., No. 91615-2, 2017 WL 629181, at *16 (Wash. Feb. 16, 2017) (quotation and alteration omitted).

[15] Charlotte Allen, The Persecution of Belmont Abbey (Oct. 26, 2009), https://www.washingtonexaminer.com/weekly-standard/the-persecution-of-belmont-abbey.

[16] Rebecca S. Green, “Jury sides with fired teacher,” The Journal Gazette (Dec. 20, 2014), http://www.journalgazette.net/news/local/courts/Jury-sides-with-fired-teacher-4094706; Herx v. Diocese of Fort Wayne-South Bend, Inc., 48 F. Supp. 3d 1168 (N.D. Ind. September 13, 2014) (denying diocese’s ministerial exception defense).

[17] Dr. Susan Berry, Gay teacher files federal discrimination lawsuit against Catholic school, Brietbart (July 1, 2015), http://www.breitbart.com/big-government/2015/07/01/gay-teacher-files-federal-discrimination-lawsuit-against-catholic-school/.

[18] See California Legislative Information, SB-1146 Discrimination: postsecondary education, Bill Analysis, Aug. 1, 2016, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201520160SB1146#; Jane Adams, California bill takes aim at religious colleges that seek to bar transgender students, EdSource (May 31, 2016), https://edsource.org/2016/california-bills-take-aim-at-religious-colleges-that-seek-to-bar-transgender-students/564869.

[19] Ed Condon, Judicial nominee faces Senate scrutiny over Knights of Columbus membership, Catholic News Agency (Dec. 21, 2018), https://www.catholicnewsagency.com/news/senators-quiz-nominee-about-membership-of-extreme-knights-of-columbus-78683

[20] Despite religious freedom concerns, House passes Equality Act, Catholic News Agency (May 17, 2019), https://www.catholicnewsagency.com/news/despite-religious-freedom-concerns-house-passes-equality-act-71069.

[21] Caitlin O’Kane, Secretary of Education Betsy DeVos visits school with anti-transgender policy, CBS News (Sept. 19, 2019), https://www.cbsnews.com/news/betsy-devos-education-secretary-transgender-school-visiting-harrisburg-catholic-policy-transgender-students/.

[22] Tobias Hoonhout, Beto O’Rourke Calls for Stripping Churches of Tax-Exempt Status If They ‘Oppose Same-Sex Marriage’, National Review (Oct. 11, 2019), https://www.nationalreview.com/news/beto-orourke-calls-for-stripping-churches-of-tax-exempt-status-if-they-oppose-same-sex-marriage/.

See also Eric Kniffin’s recent interviews with Drew Mariani: Drew Mariani Show, Beto O’Rourke Proposes Yanking Tax Status on Churches (Oct. 11, 2019), https://relevantradio.com/2019/10/beto-orourke-proposes-yanking-tax-status-on-churches/; Drew Mariani Show, Religious Liberty and the 2020 Presidential Election (Nov. 11, 2019), https://relevantradio.com/2019/11/is-a-new-democratic-candidate-jumping-in/.

[23] Adam Liptak, Supreme Court Considers Whether Civil Rights Act Protects L.G.B.T. Workers, NY Times (Oct. 8, 2019), https://www.nytimes.com/2019/10/08/us/politics/supreme-court-gay-transgender.html.

[24] Associated Press, Former Kansas City Catholic school teacher says she was fired for being pregnant and unmarried, KMBC News (Aug. 20, 2019), https://www.kmbc.com/article/former-kansas-city-catholic-school-teacher-says-she-was-fired-for-being-pregnant-and-unmarried-michelle-bolen/28759819#.

[25] Arika Herron, Cathedral fired a gay teacher. Brebeuf protected one. They are married to each other, lawyer says, Indianapolis Star (July 10, 2019), https://www.indystar.com/story/news/education/2019/07/10/cathedral-teacher-fired-same-sex-marriage-sues-indianapolis-archdiocese-identifies-himself/1694669001/.

[26] Mary Farrow, Archdiocese faces third discrimination complaint over same-sex marriage policy, Catholic News Agency (Oct. 29, 2019), https://www.catholicnewsagency.com/news/archdiocese-faces-third-discrimination-complaint-over-same-sex-marriage-policy-48517.

[27] Christine Hauser, Catholic School in Kansas Faces a Revolt for Rejecting a Same-Sex Couple’s Child, The New York Times (March 8, 2019), https://www.nytimes.com/2019/03/08/us/kansas-catholic-school-same-sex-parents.html.

[28] Thomas O’Neil-White, D’Youville grad says college denied her same-sex wedding, WBFO 88.7, (Oct. 21, 2019), https://news.wbfo.org/post/dyouville-grad-says-college-denied-her-same-sex-wedding.

[29] See Cardinal Newman Society, Church Vision for Catholic Education, https://newmansociety.org/church-vision-catholic-education/.

[30] Laurie Goodstein, Utah Passes Antidiscrimination Bill Backed by Mormon Leaders, The New York Times (March 12, 2015), https://www.nytimes.com/2015/03/12/us/politics/utah-passes-antidiscrimination-bill-backed-by-mormon-leaders.html.

[31] J.C. Derrick, Boards back SOGI compromise, World Magazine (Dec. 12, 2018), https://world.wng.org/2018/12/boards_back_sogi_compromise.

[32] Id.

[33] Zack Ford, The ‘Utah Compromise’ Is A Dangerous LGBT Trojan Horse, ThinkProgress (Jan. 29, 2016), https://thinkprogress.org/the-utah-compromise-is-a-dangerous-lgbt-trojan-horse-db790ad3b69e/.

[34] Rosa Salter-Rodriguez, Notre Dame same-sex benefits rile bishop, The Journal Gazette (March 16, 2016), https://www.journalgazette.net/news/local/Notre-Dame-same-sex-benefits-rile-bishop–1U13HACU.

[35] Emma Green, Notre Dame Switches Its Position on Birth-Control Coverage – Again, The Atlantic (Feb. 7, 2018), https://www.theatlantic.com/politics/archive/2018/02/notre-dame-switches-its-position-on-contraception-coverage-again/552605/.

[36] Gina Cherelus, Notre Dame students sue school, White House over birth control policy, Reuters (June 26, 2018), https://www.reuters.com/article/us-usa-health-birth-control/notre-dame-students-sue-school-white-house-over-birth-control-policy-idUSKBN1JM2I9.

[37] Ellie Gardey, Student leaders fight “heteronormativity’ at Notre Dame, The College Fix (Sept. 16, 2019), https://www.thecollegefix.com/student-leaders-fight-heteronormativity-at-notre-dame/.

[38] Caroline White, Marquette’s Pride Prom to go on as planned despite backlash, petition, National Catholic Reporter (April 13, 2018), https://www.ncronline.org/news/people/marquettes-pride-prom-go-planned-despite-backlash-petition.

[39] Antiquated housing policies cause stress, burdens, MarquetteWire (Oct. 8, 2019), https://marquettewire.org/4018762/opinion/editorial-antiquated-housing-policies-cause-stress-burdens/.

[40] Univ. of Notre Dame v. Sebelius, 988 F. Supp. 2d 912, 915 (N.D. Ind. 2013).

[41] Joan Frawley Desmond, Notre Dame’s Student Health Plan Will Cover Contraceptives, Abortifacients, National Catholic Register (Sept. 4, 2014), http://www.ncregister.com/daily-news/notre-dames-student-health-plan-will-cover-contraceptives-abortifacients.

[42] Pope Benedict XVI, Meeting with Catholic Educators (April 17, 2008), http://w2.vatican.va/content/benedict-xvi/en/speeches/2008/april/documents/hf_ben-xvi_spe_20080417_cath-univ-washington.html.

[43] Cardinal Newman Society, Catholic Identity in Education: Selected Church Documents for Reflection, https://newmansociety.org/principles-catholic-identity-education/church-documents-reflection/.

[44] For an overview of these religious liberty protections, see Kniffin, Protecting Your Right to Serve at 9-13.

[45] See, e.g.:

[46] Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame L. Rev. 1793, 1837 (2006) (citing James E. Ryan, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 Va. L. Rev. 1407, 1445 & n.215 (2015)).

U.S. Policy Priorities for Catholic Education

Catholic education provides many important benefits to American society. At a cost substantially less than public schools, Catholic elementary and secondary schools provide an outstanding education to nearly 2 million students, who tend to score high on national tests and succeed in college and career. More than 200 Catholic colleges and universities educate nearly 1 million students, preparing them to serve society in a wide variety of fields.

While business leaders lament the decline of communication, thinking, and problem-solving skills among job candidates, Catholic educators have maintained a strong emphasis on the core liberal arts and intellectual development.

Most importantly, graduates of Catholic schools are integrally formed in mind, body, and soul to give generous service to their fellow citizens. They exhibit strong character and virtue in an increasing secular and self-centered culture.

Nevertheless, Catholic educators face serious threats to their religious freedom emanating from their state and local governments and Washington, D.C. These have escalated significantly under the Obama administration, but some began much earlier. We now look with great hope to the incoming Trump administration and Congress to correct the many injustices and take lasting actions that will uphold Catholic educators’ First Amendment right to teach and witness to the Catholic faith by word and deed.

For that, Catholic educators and families would be most grateful and relieved, eager to focus on the essential task of raising young Americans to fulfill God’s calling and “make America great again.”

The following policy recommendations were developed by The Cardinal Newman Society, which promotes and defends faithful Catholic education, following substantial consultation with Catholic and other Christian education leaders, policy experts, and legal advisers. The proposals especially represent the concerns and needs of the Catholic schools recognized by the Newman Society’s Catholic Education Honor Roll and the Catholic colleges and universities recommended in our Newman Guide. These are institutions for which the freedom to teach and witness to the Catholic faith is essential to their mission and survival.

Elementary and Secondary Education Act

Overview
President Trump has proposed a $20 billion federal voucher program, while encouraging states to spend another $110 billion on vouchers. The program would aid students from low-income families and would likely redirect funds under Title I of the Elementary and Secondary Education Act, which are currently block-granted to states.

The school choice proposal could aid thousands of families attending or wishing to attend Catholic schools, but it also poses significant challenges for religious education. Schools must be allowed to freely maintain religious standards for education, and vouchers must not be permitted to open the door to substantial federal and state government regulation that would stifle diversity and religious values in education.

Already Catholic schools have struggled to preserve their unique identity and superior academic quality under the national Common Core movement. Although Catholic schools are not required to adopt state standards, many have yielded to the pressure to conform to standardized education and testing. Ending federal interference in school standards is an important step toward restoring diversity and innovation in education.

Action: Expand school choice without regulation
School choice presents a wonderful opportunity to help families afford a Catholic education—but only if it preserves the religious identity and quality of Catholic education, without opening the door to government regulation and coercion.

  • Legislative action: Reform Title I and IDEA (disabilities funding) to allow the funds to follow low-income students to the schools of their choice, but ensure that the aid does not impose new regulations and restrictions on religious education. Allow funds to go only to states that protect religious education and allow true school choice, including religious schools and homeschooling.

Action: End federal push for career- and college-focused standards
The federal incentives that the Obama administration used to coerce states to embrace the Common Core standards—the Race to the Top funds and waivers from No Child Left Behind—are already gone. But while the Every Student Succeeds Act (ESSA) prohibits ED from “federal mandates, direction, or control” over state standards for education, ED has plenty of opportunities to influence standards and testing. It is essential that the federal government gets out of the way, lets states work their way out of the Common Core stranglehold on innovation, and focus on state-level improvements that don’t nationalize education.

  • Executive action: Ensure that ED refrains from interference in education standards and testing, and instead promotes state-level and local innovation. Dismantle any remaining programs that promote a utilitarian view of education with emphasis on career and college instead of healthy student formation and learning for its own sake.

Higher Education Act

Overview
There has been a longstanding injustice in ED’s regulation of colleges based on the handling of student aid under Title IV of the Higher Education Act. In 1984, the U.S. Supreme Court ruled in Grove City College v. Bell (465 U.S. 555) that a college that does not receive direct federal aid—but its students do receive aid for college education under Title IV—can be regulated under Title IX of the Education Amendments of 1972. Title IX applies only to colleges that receive federal financial assistance.

The clear intent of Title IV is to support the needs of students, not particular institutions.  It is the students who are awarded the aid and who choose which institutions will receive the funds for tuition and expenses. Title IV is a form of “school choice” for needy college students; the aid can make it possible for students to choose among a wide variety of colleges that would otherwise be inaccessible.

The Grove City decision opened to door to substantial federal regulation of higher education. For religious colleges, this excessive government regulation invites conflicts with religious freedom. (See discussion of Title IX below.)

Another way Title IV funding opens the door to federal interference in higher education is by ED’s regulation of accrediting agencies, creating potential conflicts with the religious freedom of religious colleges. Under the Higher Education Act, accrediting associations determine which colleges a student may attend to receive Title IV aid. This politicizes accreditors, distorts their purpose as independent promoters of excellence in higher education, and invites ED regulation by its recognition of accreditor-gatekeepers. With regard to Title IV aid, the only remedy for a college that is unfairly treated by an accreditor is to request revocation of the accreditor’s standing with ED.

In addition to requirements under Title IX that violate religious freedom, other federal regulation and coercion poses concerns for religious colleges. The regulation of teacher preparation programs tends to diminish diversity and ignore the particular needs of schools and colleges, including religious institutions. Federal policies that disadvantage students who choose to focus their studies in the liberal arts or “humanities” are a misguided form of social engineering that disregards the great benefits of a religious, liberal-arts education.

Action: De-link student aid from Title IX
The U.S. Supreme Court has determined that the receipt of Title IV funds triggers a college’s obligation to comply with Title IX. Given attempts to redefine “sex” in Title IX to include “gender identity,” the link between student aid and Title IX is a serious threat to religious higher education.

  • Legislative action: Amend the Higher Education Act to ensure that Title IV funds are not considered federal support for educational institutions with regard to enforcement of Title IX.

Action: De-link accreditation from Title IV funding
Accrediting associations are the gatekeepers for federal aid under Title IV of the Higher Education Act. Currently the law (20 U.S. Code §1009 (b)) includes minimal protection for religious colleges by requiring that the accreditor “consistently applies and enforces standards that respect the stated mission of the institution of higher education, including religious missions.” The only remedy for religious colleges that may be unjustly discriminated against by an accreditor is to request revocation of the accreditor’s standing with the U.S. Department of Education.

  • Legislative action: Amend the Higher Education Act to ensure that accrediting bodies are no longer gatekeepers to Title IV funds.
  • Legislative action: Amend the Higher Education Act to allow a private right of action against an accreditor by a college that is unjustly discriminated against in the course of accreditation.

Action: Deregulate teacher preparation
Religious educators strive to comply with state and accreditor expectations for teacher preparation, but federal government regulation of teacher preparation programs interferes with the independence of such programs and state decision making. It also raises concerns for religious freedom in programs that reside within religious colleges. In late 2016, ED issued regulations to increase federal oversight of teacher preparation.

  • Executive action: Repeal Obama-era regulations expanding federal interference in teacher preparation (see 34 CFR Parts 612, 686).

Action: Refrain from discriminating against liberal arts majors
Federal policy proposals to disadvantage college students who focus their studies in the liberal arts or “humanities” are a misguided form of social engineering that disregards the great benefits of a religious, liberal-arts education. Complaints that liberal arts graduates have low earning potential have been greatly exaggerated and are often inaccurate. Many business executives prefer graduates with strong communications and reasoning skills. Regardless, liberal arts graduates contribute greatly to society and culture beyond simple measures of career success.

Threatening to control Title IV expenditures by discriminating against liberal arts majors or limiting students’ choices of college major and career is neither wise nor beneficial. It also disproportionately impacts students at religious colleges, who often concentrate their studies in the liberal arts.

  • Executive action: Refrain from interference in students’ choice of college studies and limitations of Title IV student aid for liberal arts majors.

Title IX of Education Amendments of 1972

Overview
Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681–1688) forbids sex discrimination at schools and colleges that accept federal funds, but the law has recently been reinterpreted by the U.S. Department of Education (ED) in ways that harm women and violate religious freedom.

The clear intent of Congress, when it enacted Title IX in 1972, was to prohibit discrimination against the two “sexes”—male and female. This is indicated in the law. Enforcement of Title IX has emphasized parity for males and females, as in school and college athletics programs.

However, the EEOC and ED have recently forced an ideological reinterpretation of “sex” in Title IX to include “gender identity”—even a person’s choice of gender that is different from their biological sex at birth. Far from advancing the original intent of the law, this “gender ideology” threatens women’s athletics and other activities by permitting biological males to join and potentially dominate those activities. It also threatens women’s privacy and safety by permitting male access to women’s bathrooms, showers, locker rooms, and residences.

ED’s reinterpretation of Title IX to include gender identity unfairly prejudices Catholic educators who teach and witness to the Catholic faith.  Catholics believe that man is created male or female, a fact of natural law and the will of God.  Human sexuality is properly ordered toward marriage between a man and a woman.  A faithfully Catholic school or college must conform to an individual’s biological sex and expects students and employees to practice chastity outside of marriage.  Although Title IX provides an exemption for religious education, ED’s reinterpretation of “sex discrimination” unfairly indicates that religious institutions discriminate against women, and this can have a “trickle down” impact on state policy, accreditation, private funding, etc.

Moreover, Title IX’s religious exemption is not certain for many religious schools and colleges. ED has asserted its authority to pre-certify or deny eligibility for the exemption, a practice that is not indicated by the law. The law’s language describing the exemption could be unfairly interpreted to exclude independent and nondenominational religious institutions that are not legally controlled by an established church.

And still more, those institutions that receive ED’s preapproval for religious exemption—an exemption that is clearly indicated in the law—are being persecuted by advocacy groups, states, and ED itself.

Action: Clarify Title IX religious exemption
20 U.S. Code § 1681 (a) (3) provides a religious exemption to Title IX: “…this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization…”

It is important to clarify the words “controlled by a religious organization” to protect institutions that are “controlled” by religious beliefs but have no legal ties to a church.  For instance, most Catholic colleges and many Catholic schools—even the most faithful to Catholic teachings—have no legal ties to the Catholic Church.  There are also many nondenominational Christian schools and colleges that are strongly religious but not affiliated with any formal church.

  • Executive action: Issue an executive order to clarify language in 20 U.S. Code § 1681 (a) (3) to ensure that no religious school or college can be excluded from the Title IX religious exemption.
  • Legislative action: Amend the law to replace or clarify language in 20 U.S. Code § 1681 (a) (3) to ensure that no religious school or college can be excluded from the Title IX religious exemption.

Action: Uphold Title IX religious exemption
The religious exemption to Title IX (20 U.S. Code § 1681 (a) (3)) suggests automatic exemption for a qualifying school or college, if and when there may be a conflict with Title IX: “…this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization…”

Although not indicated by the law, ED has inappropriately asserted authority to pre-certify or deny a religious institution’s exemption to Title IX.  A process has been established whereby an institution applies for an advance ruling from ED, which by its sole discretion may refuse to “approve” an exemption if, in its opinion, a school or college does not meet the standard of being “controlled by a religious organization.”

This puts ED in the position of potentially limiting an exemption that is clearly indicated by law; courts and the public may be prejudiced if ED rejects or even delays its ruling.  It also suggests that exemption from Title IX depends on an institution’s assertion of the exemption prior to a dispute; in fact, the law demands exemption for religious institutions in every case of a religious conflict with Title IX, whether or not the exemption is claimed prior to the conflict or even at the time of the conflict.

Moreover, ED has recently been publishing on its website the names of institutions that it “approves” for Title IX exemptions.  This has been done at the urging of states and advocacy groups that wish to shame and persecute religious institutions for obtaining these legally valid exemptions.  In 2016, California legislators attempted to withhold state Cal Grants from religious colleges that appear on ED’s list of “unapproved” institutions. This is a form of persecution; religious organizations should not be punished or denigrated for their beliefs and for protecting their religious freedom against an ED reinterpretation of Title IX that is inconsistent with the law’s original purpose.

  • Executive action: End the U.S. Department of Education’s policy of approving or denying advance rulings for religious educational institutions that claim the exemption to Title IX in 20 U.S. Code § 1681 (a) (3).
  • Executive action: End the U.S. Department of Education’s policy of publishing a list of religious educational institutions that claim the religious exemption to Title IX in 20 U.S. Code § 1681 (a) (3).
  • Executive action: Issue an executive order to forbid retaliation by any federal agency against religious educational institutions that claim the religious exemption to Title IX in 20 U.S. Code § 1681 (a) (3) (cf. non-retaliation provision in S. 815, the proposed Employment Non-Discrimination Act of 2013: “It shall be an unlawful employment practice for a covered entity to discriminate against an individual because such individual—(1) opposed any practice made an unlawful employment practice by this Act; or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act”).
  • Legislative action: Amend the law to forbid retaliation by any state or other entity or individual against religious educational institutions that claim the religious exemption to Title IX in 20 U.S. Code § 1681 (a) (3) (cf. non-retaliation provision in S. 815, proposed Employment Non-Discrimination Act of 2013: “It shall be an unlawful employment practice for a covered entity to discriminate against an individual because such individual—(1) opposed any practice made an unlawful employment practice by this Act; or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act”).

Action: Restore original meaning of Title IX
As noted above, ED and EEOC have reinterpreted “sex discrimination” to force acceptance of new concepts of gender and sexual orientation.  This ideological reinterpretation of the law threatens the religious freedom of religious schools and colleges.

  • Executive action: Rescind any “Dear Colleague” letters, administrative rules, executive orders, or regulations (see 34 CFR Part 106) which re-interpret the law to define “sex” and “gender” as referring to anything other than the biologically-defined sex (male or female) of an individual at birth, or that require admittance of the opposite sex to gender-exclusive bathrooms, locker rooms, shower facilities, residences, and other facilities.
  • Executive action: Issue an executive order defining “sex” and “gender” for the purposes of Title IX to refer only to the biologically-defined sex (male or female) of an individual at birth.
  • Legislative action: Amend the law to define “sex” and “gender” for the purposes of Title IX to refer only to the biologically-defined sex (male or female) of an individual at birth.

Action: Deregulate higher education by eliminating Title IV trigger
Federal student loans and grants under Title IV of the Higher Education Act are intended to expand individuals’ access to higher education according to their need, but not to directly support educational institutions. They are “school choice” programs for postsecondary education.

Nevertheless, ED and the courts have determined that Title IV student aid is a trigger for federal regulation of colleges under Title IX and other ED regulations, the same as direct federal aid to colleges.  Title IV is the “hook” that allows expansive federal regulation in higher education, which opens the door to conflicts over religious freedom at religious colleges.  (See more explanation under “Higher Education Act” above.)

  • Legislative action: Amend the Higher Education Act to ensure that Title IV funds are not considered federal support for educational institutions with regard to enforcement of Title IX.

Title VII of the Civil Rights Act of 1964

Overview
Title VII forbids discrimination in employment on the basis of sex, race, color, national origin, and religion.  The clear intent of Congress, when it enacted the Civil Rights Act, was to prohibit discrimination against the two “sexes”—male and female.

However, the EEOC and federal agencies have recently forced an ideological reinterpretation of “sex” in Title VII to include “gender identity”—even a person’s choice of gender that is different from their biological sex at birth. Far from advancing the original intent of the law, this “gender ideology” threatens women’s activities and employment opportunities (by permitting access to males) and women’s privacy and safety in the workplace (by permitting male access to women’s bathrooms, showers, locker rooms, etc.).

“Sex discrimination” is also being redefined for ideological purposes to forbid discrimination on the basis of “sexual orientation.”  This was not the original intent of the law, but because attempts to legislate protection for “sexual orientation” have failed, the EEOC has simply reinterpreted existing law.

Finally, “sex discrimination” is being used to mandate employee health benefits that cover contraception and sterilization, regardless of medical benefit or necessity.  While Title VII does not mandate abortion coverage in health plans, it does forbid employers from considering an employee’s participation in abortion when making employment decisions—even a religious employer with deeply held convictions against abortion and moral standards for employees.

Under this reinterpretation of Title VII, the religious freedom of Catholic educators to teach and witness to the Catholic faith is being violated.  Catholics believe that man is created male or female, a fact of natural law and also the will of God.  Human sexuality is properly ordered toward marriage between a man and a woman.  A faithfully Catholic school or college must conform to an individual’s biological sex and expects students and employees to practice chastity outside of marriage.  Abortion, sterilization, and contraception are serious offenses.

Title VII provides an exemption for religious employers with regard to religious discrimination, but it is unclear whether this exemption protects religiously-motivated personnel decisions that might be characterized as “sex” discrimination.

Action: Restore original meaning of Title VII
As noted above, federal agencies have reinterpreted “sex discrimination” to force acceptance of new concepts of gender and sexual orientation and to mandate support for contraception, sterilization, and abortion.  This ideological reinterpretation of the law violates the religious freedom of religious schools and colleges.

  • Executive action: Rescind any “dear colleague” letters, administrative rules, executive orders, or regulations (see 34 CFR Part 106) which re-interpret the law to define “sex” and “gender” as referring to anything other than the biologically-defined sex (male or female) of an individual at birth; require admittance of the opposite sex to gender-exclusive bathrooms, locker rooms, shower facilities, residences, and other facilities; or refer in any way to expanded benefits or accommodations for contraception, sterilization, or abortion.
  • Executive action: Issue an executive order defining “sex” and “gender” for the purposes of Title VII to refer only to the biologically-defined sex (male or female) of an individual at birth and never to contraception, sterilization, or abortion.
  • Legislative action: Amend the law to define “sex” and “gender” for the purposes of Title VII to refer only to the biologically-defined sex (male or female) of an individual at birth and never to contraception, sterilization, or abortion.

Action: Expand Title VII religious exemption
Given the attempts by federal agencies, courts, and legislators to redefine “sex discrimination” for ideological purposes, the threat posed by Title VII to religious organizations is significant. Unlike Title IX of the Higher Education Act, there is uncertain protection for religious employers under Title VII with regard to sex discrimination.

  • Legislative action: Amend Title VII to explicitly exempt religious employers with regard to sex discrimination if the application of the law is inconsistent with the religious tenets of the employer.

Patient Protection and Affordable Care Act (Obamacare)

Overview
In regulations implementing the Affordable Care Act, HHS has mandated coverage for sterilization and contraceptives, including some that can cause abortion, in health insurance plans. The “HHS mandate” does not exempt most religious employers.

In 2016 in Zubik v. Burwell, the U.S. Supreme Court unanimously overturned lower court rulings upholding the “HHS mandate” against the Little Sisters of the Poor and other challengers. The Court instructed the lower courts to seek “an approach going forward that accommodates the petitioner’s religious beliefs.” However, the matter has yet to be resolved by the courts.

HHS has also issued regulations under the Affordable Care Act that forbid covered health-related entities to discriminate on the basis of race, color, national origin, sex, age, or disability; included in the Department’s definition of sex (consistent with the EEOC) is “gender identity.” The regulations create a “transgender mandate,” under which covered entities—including religious colleges that receive HHS funds for medical education programs—must accept a person’s choice of gender that is different from their biological sex at birth. Legal experts also believe that the regulations prohibit most private health insurers—including those providing health benefits to employees of religious organizations—from categorically excluding coverage related to “gender transition” and from denying claims for “transgender” services that are comparable to other covered services. (For instance, if a hysterectomy is covered for serious medical reasons, it must be permitted for “transgender” purposes.)

The HHS also defines sex to include “termination of pregnancy.” Legal experts believe that the new HHS regulations may prohibit health insurers—including those providing health benefits to employees of religious organizations—from denying coverage for elective abortion.

In addition, HHS has refused to enforce federal law against states that violate religious freedom by mandating abortion benefits in state-regulated health plans, even for religious employers.

Action: End “HHS mandate”
In regulations implementing the Affordable Care Act, HHS has mandated coverage for sterilization and contraceptives, including some that can cause abortion, in health insurance plans. The “HHS mandate” does not exempt most religious employers.

  • Executive action: Repeal regulations (26 CFR Part 54, 29 CFR Parts 2510 and 2590, 45 CFR Parts 147 and 156) mandating health insurance coverage for sterilization and contraception.
  • Legislative action: Amend the Affordable Care Act to ensure that HHS cannot mandate health insurance coverage for sterilization or contraception.

Action: Exempt all religious organizations from “HHS mandate”
The “HHS mandate” for coverage for sterilization and contraceptives, including some that can cause abortion, in health insurance plans does not exempt most religious employers. HHS has offered various forms of “accommodation” to many but not all religious employers (26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, 45 CFR 147.131); those “accommodations” still force many employers to violate their deeply held religious beliefs.

  • Executive action: Amend regulations (26 CFR Part 54, 29 CFR Parts 2510 and 2590, 45 CFR Parts 147 and 156) to exempt all religious organizations from mandatory health insurance coverage for sterilization and contraception if it conflicts with their religious beliefs.
  • Legislative action: Amend the Affordable Care Act to ensure that HHS cannot require any individual or entity to purchase health insurance coverage that conflicts with the purchaser’s moral or religious beliefs.

Action: End abortion and transgender mandate
In regulations implementing Section 1557 of the Affordable Care Act and prohibiting sex discrimination, HHS has defined “sex” as including “gender identity” and “termination of pregnancy.” Not only does this directly impact covered religious entities, including religious colleges that receive HHS funds for medical education programs, but it also impacts most health insurers, including those that serve religious schools and colleges.

  • Executive action: Issue an executive order defining “sex” and “gender” for the purposes of the Affordable Care Act to refer only to the biologically-defined sex (male or female) of an individual at birth and never to contraception, sterilization, or abortion.
  • Executive action: Amend the regulations implementing Section 1557 of the Affordable Care Act to define “sex” and “gender” to refer only to the biologically-defined sex (male or female) of an individual at birth and never to contraception, sterilization, or abortion.
  • Legislative action: Amend the Affordable Care Act to define “sex” and “gender” for the purposes of Section 1557 to refer only to the biologically-defined sex (male or female) of an individual at birth and never to contraception, sterilization, or abortion.

Action: Exempt religious organizations from abortion and transgender mandate
In HHS regulations implementing Section 1557 of the Affordable Care Act and prohibiting sex discrimination—by which “sex” is defined to include “gender identity” and “termination of pregnancy”—there is no exemption for covered religious entities or for individuals and employers that may have religious objections to the mandated coverage.

  • Executive action: Amend the regulations implementing Section 1557 of the Affordable Care Act to exempt all religious organizations from enforcement of any provision that conflicts with their religious beliefs.
  • Legislative action: Amend Section 1557 of the Affordable Care Act to exempt all religious organizations from enforcement of any provision that conflicts with their religious beliefs.

Action: Enforce Weldon Amendment against state mandates
In 2014, California interpreted the state Knox-Keene Act to mandate abortion coverage in state-regulated health insurance plans, with no exemption for religious employers.

Although the Federal Refusal Clause (the “Weldon amendment”) in the federal appropriations act for the Department of Health and Human Services (Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011)) prohibits federal, state, and local governments from “discrimination” against a health-care entity—including a health insurance plan—that “does not provide, pay for, provide coverage of, or refer for abortions,” HHS has refused to enforce the Weldon amendment against California. This invites other states to also ignore the law.

  • Executive action: Require HHS to enforce the Weldon amendment by demanding that California rescind its mandate for abortion coverage in state-regulated health insurance plans.

Internal Revenue Service

Overview
The federal tax code provides substantial benefits that help families afford a Catholic education. Tax exemption for religious schools and colleges helps lower costs, and the loss of tax exemption because of political or ideological biases would be devastating. Tax advantages that help Catholic families pay for Catholic education are valuable opportunities to promote “school choice” without opening the door wide to federal regulation.

Action: Protect tax exemption for religious education
In 2015, during oral argument before the Supreme Court in the Obergefell v. Hodges case, the U.S. Solicitor General acknowledged that the tax-exempt status of religious organizations could be threatened if they fail to recognize same-sex marriages.

  • Executive action: Ensure that the Internal Revenue Service (IRS) does not threaten the tax-exempt status of religious organizations, regardless of their beliefs about marriage.
  • Executive action: Issue an executive order stating that with regard to tax status, licensing, government grants, and contracts, no entity of the federal government may penalize someone for acting on their conviction that marriage is between a man and a woman.
  • Legislative action: Amend the Internal Revenue Code to protect the tax-exempt status of religious organizations, regardless of their beliefs about marriage.

Action: Increase tax benefits to support education expenses
Coverdell Education Savings Accounts allow money to grow tax-deferred, to be used tax-free for most elementary, secondary, and postsecondary education expenses. But since 2002, Congress has capped the amount that can be contributed per child to $2,000 per year. Section 529 plans allow prepayment of college education expenses and tax-advantaged savings; withdrawals for college tuition expenses are tax-free. The American Opportunity Tax Credit allows a federal income tax credit of up to $2,500 of college expenses per year; up to 40 percent of the credit is refundable.

  • Legislative action: Increase or lift the $2,000 annual cap on contributions to Coverdell Education Savings Accounts to help families supporting students in schools and colleges, including religious institutions. Expand the program to cover homeschool expenses.
  • Legislative action: Expand Section 529 plans to allow savings for elementary and secondary education expenses, including homeschooling.
  • Legislative action: Increase the $2,500 American Opportunity Tax Credit to help families supporting students in college, including religious institutions. Expand the credit to also cover elementary and secondary education expenses, including homeschooling, thereby achieving President Trump’s promise of increasing school choice without inviting federal regulation of religious schools.

Equal Employment Opportunity Commission

Overview
The Equal Employment Opportunity Commission (EEOC) has issued opinions that endanger the religious freedom of religious employers. It has pressed the redefinition of sex discrimination to cover “gender identity,” family planning and abortion, and “sexual orientation.”

In 2009, the EEOC ruled that Belmont Abbey College in North Carolina—a faithful Catholic college—discriminated against women because it refused to cover contraception in its employee health plan, in accordance with the Catholic faith.

Action: Appoint defenders of religious freedom to EEOC
President Trump has an early opportunity to name a new chair of the EEOC (as of July 1, 2017), giving Republicans a 3-2 majority on the Commission, and he can immediately replace the departing legal counsel. The commissioner whose term is up next, Chai Feldblum in July 2018, is a former Georgetown University law professor whose advocacy for homosexual issues has been a grave threat to religious employers.

  • Executive action: Appoint EEOC commissioners and staff members who respect religious freedom and will not misinterpret sex discrimination laws and regulations according to “gender ideology” and LGBT advocacy.

National Labor Relations Board

Overview
Despite the U.S. Supreme Court’s 1979 ruling in NLRB v. Catholic Bishop of Chicago, which forbids the National Labor Relations Board (NLRB) to assert jurisdiction over employee relations in religious education, the NLRB has for decades asserted jurisdiction at the behest of labor unions.

In 2014, the Board abandoned its long-held policy of unconstitutionally determining the religious quality of colleges where unions sought to organize faculty members, but it took up a new unconstitutional test of the religious functions of particular employees. Since then, the NLRB has used its new test to declare jurisdiction over faculty members at Seattle University and Saint Xavier University, with the exception of those teaching theology or religious studies. This still violates NLRB v. Catholic Bishop of Chicago.

Action: Appoint defenders of religious freedom to NLRB
President Trump has an immediate opportunity to fill two vacant positions at the NLRB, giving Republicans a 3-2 majority on the Board. However, reports have indicated that Trump intends to delay his appointments until the spring or summer of 2017, which would leave a pro-union Democrat majority in place until the Senate confirms his appointments in late 2017.

Commissioner Philip Miscimarra has been a strong but lone defender of NLRB v. Catholic Bishop of Chicago; his term expires in December 2017. That will end the 3-2 majority on the Board until he is re-appointed or replaced.

The NLRB general counsel’s term expires in November 2017.

  • Executive action: Appoint NLRB commissioners and staff members who respect religious freedom and will uphold the Supreme Court’s 1979 ruling in NLRB v. Catholic Bishop of Chicago. Immediately fill the two vacancies without delay. Reappoint Philip Miscimarra to another term.

District of Columbia

Overview
Under the protection of President Obama’s veto, the District of Columbia has been able to trample on the rights of religious schools and colleges without action from Congress. The successful D.C. voucher program has also been allowed to lapse.

Action: Repeal D.C. Human Rights Amendment Act
The Human Rights Amendment Act, approved by the District of Columbia (D.C.) Council in 2014, repealed the “Armstrong Amendment”— a provision of the D.C. code that Congress enacted in 1989 to ensure that religious schools and colleges could not be forced to officially endorse, fund, or provide other benefits to advocates of homosexual identity and conduct. Catholic schools and colleges are now under the threat of District action if they uphold Catholic teaching on sexuality and marriage.

  • Legislative action: Repeal the D.C. Human Rights Amendment Act of 2014.

Action: Repeal D.C. Reproductive Health Non-Discrimination Act
In 2015, the U.S. House of Representatives voted to halt a District of Columbia law from going into effect, but the Senate failed to block it. The Reproductive Health Non-Discrimination Amendment Act expands the District’s definition of discrimination to include an employee’s “reproductive health” decisions, including family planning and abortion, without exemption for religious employers. This prevents Catholic schools and colleges from upholding standards of morality that are consistent with Catholic beliefs.

  • Legislative action: Repeal the D.C. Reproductive Health Non-Discrimination Act of 2015.

Action: Restore D.C. Opportunity Scholarship Program
Until President Obama stopped including it in his budget after 2011, the D.C. Opportunity Scholarship Program provided vouchers to children from low-income families in the District of Columbia. It covered tuition and expenses at private schools.

  • Legislative action: Restore the D.C. Opportunity Scholarship Program, supporting families’ choices of religious education and homeschooling.

First Amendment Protection

Overview
In its 2015 ruling in Obergefell v. Hodges, the U.S. Supreme Court ruled that same-sex couples have a Constitutional right to civil marriage. The implications for Catholics are not yet certain, but there is reason to be concerned that the ruling will be used to restrict religious freedom for those who support traditional marriage.

Action: Protect Americans who support traditional marriage
The First Amendment Defense Act ensures that the federal government “shall not take any discriminatory action against a person, wholly or partially on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” President-elect Trump has pledged that he would sign the bill if approved by Congress.

  • Legislative action: Pass the First Amendment Defense Act.
  • Executive action: Issue an executive order stating that with regard to tax status, accreditation, licensing, government grants, and contracts, no entity of the federal government may penalize someone for acting on their conviction that marriage is between a man and a woman.

Questions and Answers About What the Latest HHS Mandate Rule Means for Catholic High Schools

This Issue Brief takes a look at the new1 “Notice of Proposed Rulemaking” issued on February 1, 2013, by the Department of Health and Human Services concerning the federal mandate that health insurance plans, including those provided or arranged by non-exempt Catholic high schools, must include coverage of early abortion pills, contraception, sterilization, and related education and counseling for women with a reproductive capacity.

What was the government’s intent with the February 1st  “Notice of Proposed Rulemaking”?

The Notice of Proposed Rulemaking (“NPRM”)2 sets forth a proposed (not final) structure for public comment on whether or how the government will respect religious objections to its coverage mandate of early abortion pills, contraception, and sterilization.  It concerns three categories of entities with objections to the mandate.  Generally, these categories are: (1) houses of worship; (2) all other religious non-profits; and (3) all other objectors.

Is this the final rule?

No, it will be finalized by August 1, 2013.  The public may submit comments by April 8, 2013.

Who would be exempt from the mandate under the NPRM?

The NPRM proposes that basically only houses of worship would be exempt from the mandate.  Exempt entities are called “religious employers,” and these must be either “churches, their integrated auxiliaries, and conventions or associations of churches,” or “the exclusively

religious activities of any religious order.” These categories are narrow and well-established in Internal Revenue Code section 6033(a)(3)(A)(i) and (iii). Many Catholic high schools might not fall into these categories.  They should consult with an attorney or tax advisor to review whether or not they qualify.

Is this a change from the existing exemption?

In one respect, the NPRM proposes a change from the existing mandate exemption. Under the existing exemption, houses of worship are still the only entities eligible for an exemption, but in addition those houses of worship must function to inculcate beliefs, and must primarily hire and serve only those of their own faith. The NPRM proposes to remove the latter three requirements from the definition of exempt “religious employers,” but retain the fourth criteria by which the entity must be a house of worship, church, religious order, or the like as listed above.  The NPRM insists that this change is a clarification, not a broadening of the exemption. Since houses of worship are still the only entities that qualify for an exemption, the NPRM’s changes “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended” in the existing rule.

In another respect, the new proposal appears to be worse for entities such as Catholic high schools. Under last year’s regulations, it was suggested that if a school’s employees received insurance from a diocese’s health plan, the school’s coverage would fall under the diocese’s exempt status as a church. See 77 Fed. Reg. 16,502. But the new proposed exemption intentionally removes this possibility and says employers will be treated separately: only if a school is itself a church or integrated auxiliary thereof will it be exempt, even if its employees use the diocesan health plan. 78 Fed. Reg. at 8,467. Thus, many schools that are affiliated with churches, but not integrated auxiliaries thereof, may lose their access to exempt insurance.

Is this a very narrow definition of “religious employer,” or one that is used commonly by the federal government?

This definition is extremely narrow compared to other federal laws providing for conscience exemptions.  The 40-year-old bipartisan standard established throughout federal law, including in health and insurance coverage of items such as contraception, is to exempt any person or group with moral or religious objections.  The Religious Freedom Restoration Act in particular requires the federal government to exempt any religious objector from rules such as this Mandate. The administration has instead constrained religious freedom by using a category in tax law that has no relationship to conscience, but instead relates to whether a group files its own 990 tax form. Even within that code section, the administration gerrymandered this rule by selecting subparts (i) and (iii) but not (ii) which includes other nonprofits.  The administration apparently selected a category with the smallest possible scope it could find.  This is consistent with its view that religious freedom really only inheres in worship and not in the exercise of religion outside a house of worship.

How would the NPRM deal with objections from colleges and other non-profits?

The NPRM proposes to apply the coverage mandate to all non-exempt entities, including religious groups. But for some religious non-profit groups, the NPRM proposes to accomplish this through what it calls an “accommodation.” The accommodation is a complex arrangement designed to create the impression that the religious organization is not involved in giving its employees access to objectionable items such as early abortion pills, while at the same time insisting that the employees will receive those items seamlessly with their employer’s own provision of coverage.

Their employees would still receive objectionable coverage from those groups’ own insurers or plan administrators, and would receive it “automatically,” so that the employees could not opt out of the coverage for themselves or their female family members.

What qualifies an organization for this “accommodation”?

The NPRM applies its accommodation to non-exempt “eligible organizations.”  These should not be confused with exempt “religious employers” discussed above.  (Exempt religious employers—houses of worship—are not subject to the accommodation scheme.)  A non-exempt “eligible organization” is one that meets the following criteria:

The organization opposes providing coverage for some or all of the contraceptive services required to be covered under section 2713 of the PHS Act on account of religious objections.

The organization is organized and operates as a nonprofit entity.

The organization holds itself out as a religious organization.

Again, these “religious organizations” are those that do not fall within the exempt category of houses of worship discussed above.

How does the “accommodation” work for non-exempt “eligible organizations”?

The organization must sign a certification asserting that it meets the above-described criteria, keep the certification in its records “for examination upon request so that regulators, issuers, third party administrators, and plan participants and beneficiaries,” and provide the certification to the insurance issuer(s) and/or its self-insurance plan administrator(s) that the group pays for their ordinary duties.

Under the accommodation, once the religious group’s insurer or administrator receives that certification, the insurer or administrator is required to “automatically” provide the religious group’s employees and plan beneficiaries with insurance covering the objectionable items.

If the religious group uses an insurer, that insurer also becomes the insurer for the objectionable items.  The NPRM claims that this insurance plan will be “separate” and will not be charged to the religious group.  But it admits that there are up-front costs to the items, and it claims that these costs will be offset by the benefits of the primary insurance that the religious group is paying for (since, it theorizes, fewer childbirths will lead to lower costs).

What about self-insured non-profit religious groups?

If the religious group is self-insured, the NPRM proposes that it be required to use a plan administrator (even if it does not presently have one).  When that plan administrator receives the certification it will take on the additional duties of finding an external insurance company to “automatically” issue insurance coverage of objectionable items to the religious group’s employees.  The NPRM does not address the privacy implications of releasing employee health information to an insurance company with which the religious group never contracted, for a purpose to which the religious group objects.

The NPRM proposes that the costs of the objectionable items will be offset by rebates that the federal government will offer those insurers in the health “exchanges” otherwise implicated by the Affordable Care Act.

Is the NPRM correct that the “accommodation” does not implicate an objecting entity?

The NPRM imposes what is essentially a moral judgment that the “accommodation” frees objecting entities from culpability for coverage of objectionable items.  Entities are not allowed to disagree with this moral judgment set forth by the government. Several factors might lead objecting entities to differ from the government’s moral viewpoint. Under the accommodation, the Affordable Care Act will still be requiring objecting entities with 50 or more full-time employees to provide health insurance coverage, and that coverage will be the trigger for the objectionable items to flow to its employees.  The objectionable coverage will come from the same insurers or plan administrators that the religious group is paying. The provision of objectionable coverage will be triggered specifically by the religious group’s mandated delivery of its religious certification to its insurer or plan administrator.  For insured entities, the costs of the objectionable items will allegedly be offset by the main plan the objecting entity is buying. For self-insured entities, the NPRM does not fully explain how costs will be offset.  Unprecedented burdens and fiduciary duties will fall on insurers and plan administrators with whom religious groups contract, because of that contract.  The NPRM does not fully explain how these additional burdens will not eventually be reflected in the ability of religious groups to contract with insurers or administrators in the first place.

What religious freedom allowances does the NPRM provide to other objectors?

None.

Neither an exemption nor a feigned accommodation is provided under the NPRM for: employees of religious non-profit groups who do not want free abortion-pill, contraception, sterilization and counseling coverage for themselves, their spouses       or their daughters; non-profit groups that object to abortion-pills or contraception for non-religious reasons; insurance companies or plan administrators that object; religious families that earn a living running a business; or individuals that arrange for their own insurance coverage not through an employer.

Notably, the Affordable Care Act uses secular reasons to refrain from applying this mandate to tens of millions of other Americans, such as because a plan is “grandfathered” from many ACA regulations.  Yet the government refuses to exempt most religious objectors.

Is the NPRM still subject to comment?

Yes.  The NPRM is not final and the government will accept public comments until April 8, 2013, about any aspect of the proposal. The Alliance Defending Freedom work with The Cardinal Newman Society to prepare a formal comment and other institutions are welcome to join that comment. Individual organizations may also submit their own electronic comments to www.regulations.gov. All comments should reference file code CMS–9968–P.

If I have more questions, whom do I contact?

General questions can be address to Bob Laird at the Cardinal Newman Society’s Catholic High School Honor Roll, (703) 367-0333 x 106 or blaird@CardinalNewmanSociety.org.  Specific questions about legal actions should be directed to Matt Bowman at Alliance Defending Freedom, 1-800-835-5233.

 

 

Questions and Answers About What the Latest HHS Mandate Rule Means for Catholic Colleges

This Issue Brief takes a look at the new1 “Notice of Proposed Rulemaking” issued on February 1, 2013, by the Department of Health and Human Services concerning the federal mandate that health insurance plans, including those provided or arranged by Catholic colleges, must include coverage of early abortion pills, contraception, sterilization, and related education and counseling for women with a reproductive capacity.

What was the government’s intent with the February 1st  “Notice of Proposed Rulemaking”?

The Notice of Proposed Rulemaking (“NPRM”)2 sets forth a proposed (not final) structure for public comment on whether or how the government will respect religious objections to its coverage mandate of early abortion pills, contraception, and sterilization.  It concerns three categories of entities with objections to the mandate.  Generally, these categories are: (1) houses of worship; (2) all other religious non-profits; and (3) all other objectors.

Is this the final rule?

No, it will be finalized by August 1, 2013.  The public may submit comments by April 8, 2013.

Who would be exempt from the mandate under the NPRM?

The NPRM proposes that basically only houses of worship would be exempt from the mandate.  Exempt entities are called “religious employers,” and these must be either “churches, their integrated auxiliaries, and conventions or associations of churches,” or “the exclusively

religious activities of any religious order.” These categories are narrow and well-established in Internal Revenue Code section 6033(a)(3)(A)(i) and (iii). Most Catholic colleges know that they do not fall into these categories.  They should consult with an attorney or tax advisor to review whether or not they qualify.

Is this a change from the existing exemption?

In one respect, the NPRM proposes a change from the existing mandate exemption. Under the existing exemption, houses of worship are still the only entities eligible for an exemption, but in addition those houses of worship must function to inculcate beliefs, and must primarily hire and serve only those of their own faith. The NPRM proposes to remove the latter three requirements from the definition of exempt “religious employers,” but retain the fourth criteria by which the entity must be a house of worship, church, religious order, or the like as listed above.  The NPRM insists that this change is a clarification, not a broadening of the exemption. Since houses of worship are still the only entities that qualify for an exemption, the NPRM’s changes “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended” in the existing rule.

Is this a very narrow definition of “religious employer,” or one that is used commonly by the federal government?

This definition is extremely narrow compared to other federal laws providing for conscience exemptions.  The 40-year-old bipartisan standard established throughout federal law, including in health and insurance coverage of items such as contraception, is to exempt any person or group with moral or religious objections.  The Religious Freedom Restoration Act in particular requires the federal government to exempt any religious objector from rules such as this Mandate. The administration has instead constrained religious freedom by using a category in tax law that has no relationship to conscience, but instead relates to whether a group files its own 990 tax form. Even within that code section, the administration gerrymandered this rule by selecting subparts (i) and (iii) but not (ii) which includes other nonprofits.  The administration apparently selected a category with the smallest possible scope it could find.  This is consistent with its view that religious freedom really only inheres in worship and not in the exercise of religion outside a house of worship.

How would the NPRM deal with objections from colleges and other non-profits?

The NPRM proposes to apply the coverage mandate to all non-exempt entities, including religious groups. But for some religious non-profit groups, the NPRM proposes to accomplish this through what it calls an “accommodation.” The accommodation is a complex arrangement designed to create the impression that the religious organization is not involved in giving its employees access to objectionable items such as early abortion pills, while at the same time insisting that the employees will receive those items seamlessly with their employer’s own provision of coverage.

Their employees would still receive objectionable coverage from those groups’ own insurers or plan administrators, and would receive it “automatically,” so that the employees could not opt out of the coverage for themselves or their female family members.

What qualifies an organization for this “accommodation”?

The NPRM applies its accommodation to non-exempt “eligible organizations.”  These should not be confused with exempt “religious employers” discussed above.  (Exempt religious employers—houses of worship—are not subject to the accommodation scheme.)  A non-exempt “eligible organization” is one that meets the following criteria:

The organization opposes providing coverage for some or all of the contraceptive services required to be covered under section 2713 of the PHS Act on account of religious objections.

The organization is organized and operates as a nonprofit entity.

The organization holds itself out as a religious organization.

Again, these “religious organizations” are those that do not fall within the exempt category of houses of worship discussed above.

How does the “accommodation” work for non-exempt “eligible organizations”?

The organization must sign a certification asserting that it meets the above-described criteria, keep the certification in its records “for examination upon request so that regulators, issuers, third party administrators, and plan participants and beneficiaries,” and provide the certification to the insurance issuer(s) and/or its self-insurance plan administrator(s) that the group pays for their ordinary duties.

Under the accommodation, once the religious group’s insurer or administrator receives that certification, the insurer or administrator is required to “automatically” provide the religious group’s employees and plan beneficiaries with insurance covering the objectionable items.

If the religious group uses an insurer, that insurer also becomes the insurer for the objectionable items.  The NPRM claims that this insurance plan will be “separate” and will not be charged to the religious group.  But it admits that there are up-front costs to the items, and it claims that these costs will be offset by the benefits of the primary insurance that the religious group is paying for (since, it theorizes, fewer childbirths will lead to lower costs).

What about self-insured non-profit religious groups?

If the religious group is self-insured, the NPRM proposes that it be required to use a plan administrator (even if it does not presently have one).  When that plan administrator receives the certification it will take on the additional duties of finding an external insurance company to “automatically” issue insurance coverage of objectionable items to the religious group’s employees.  The NPRM does not address the privacy implications of releasing employee health information to an insurance company with which the religious group never contracted, for a purpose to which the religious group objects.

The NPRM proposes that the costs of the objectionable items will be offset by rebates that the federal government will offer those insurers in the health “exchanges” otherwise implicated by the Affordable Care Act.

Is the NPRM correct that the “accommodation” does not implicate an objecting entity?

The NPRM imposes what is essentially a moral judgment that the “accommodation” frees objecting entities from culpability for coverage of objectionable items.  Entities are not allowed to disagree with this moral judgment set forth by the government. Several factors might lead objecting entities to differ from the government’s moral viewpoint. Under the accommodation, the Affordable Care Act will still be requiring objecting entities with 50 or more full-time employees to provide health insurance coverage, and that coverage will be the trigger for the objectionable items to flow to its employees.  The objectionable coverage will come from the same insurers or plan administrators that the religious group is paying. The provision of objectionable coverage will be triggered specifically by the religious group’s mandated delivery of its religious certification to its insurer or plan administrator.  For insured entities, the costs of the objectionable items will allegedly be offset by the main plan the objecting entity is buying. For self-insured entities, the NPRM does not fully explain how costs will be offset.  Unprecedented burdens and fiduciary duties will fall on insurers and plan administrators with whom religious groups contract, because of that contract.  The NPRM does not fully explain how these additional burdens will not eventually be reflected in the ability of religious groups to contract with insurers or administrators in the first place.

What religious freedom allowances does the NPRM provide to other objectors?

None.

Neither an exemption nor a feigned accommodation is provided under the NPRM for: employees of religious non-profit groups who do not want free abortion-pill, contraception, sterilization and counseling coverage for themselves, their spouses       or their daughters; non-profit groups that object to abortion-pills or contraception for non-religious reasons; insurance companies or plan administrators that object; religious families that earn a living running a business; or individuals that arrange for their own insurance coverage not through an            employer.

Notably, the Affordable Care Act uses secular reasons to refrain from applying this mandate to tens of millions of other Americans, such as because a plan is “grandfathered” from many ACA regulations.  Yet the government refuses to exempt most religious objectors.

How does the NPRM treat student health plans? 

Student health plans that are arranged by “eligible organizations” are subject to the same “accommodation” that applies to employee health plans established by such organizations.

Is the NPRM still subject to comment?

Yes.  The NPRM is not final and the government will accept public comments until April 8, 2013, about any aspect of the proposal. The Alliance Defending Freedom work with The Cardinal Newman Society to prepare a formal comment and other institutions are welcome to join that comment. Individual organizations may also submit their own electronic comments to www.regulations.gov. All comments should reference file code CMS–9968–P.

If I have more questions, whom do I contact?

General questions can be address to Bob Laird at the Cardinal Newman Society’s Center for the Advancement of Catholic Higher Education, (703) 367-0333 x 106 or blaird@CardinalNewmanSociety.org.  Specific questions about legal actions should be directed to Matt Bowman at Alliance Defending Freedom, 1-800-835-5233.

 

 

 

Protecting Catholic Colleges from External Threats to Their Religious Liberty

Federal and state laws are increasingly being used to coerce religious institutions into actions and commitments that violate deeply held religious convictions and moral principles.1  Some of these laws require employee and student health insurance that covers contraception, and mandate employee benefits for same sex couples.

Catholic colleges and universities and other Catholic organizations are not immune from emerging threats to their religious liberty and Catholic identity, but can take steps to minimize the danger.

This paper will briefly outline some of the major forms of these threats related to:

  • acceptance of federal student aid and grants, thus triggering federal Title IX’s sex discrimination prohibitions and federal research grant conditions;
  • Title VII’s prohibitions on employment discrimination;
  • the recently enacted Patient Protection and Affordable Care Act healthcare overhaul; and
  • various state-level laws and regulations.

After explaining the ways the application of these laws and regulations can threaten a Catholic college or university’s Catholic identity, the paper will propose steps each institution may take to mitigate the danger.

It must be noted, however, that any available exemptions for religious institutions will not apply if a college that was founded as a religious institution has become largely secular.  It is therefore vital that Catholic colleges and universities maintain their Catholic identity in all of their programs in order to best protect their religious character and mission.

Catholic colleges and universities have an advantage over other religious institutions in that the Catholic Church’s Canon Law and the Apostolic Constitution Ex corde Ecclesiae lay out the requirements for a college to be considered Catholic.  While Church law is beyond the purview of this paper, it should be noted that a college that does not faithfully adhere to and apply the Catholic Church’s own law might find it difficult if not impossible to convince a secular court that it is a Catholic institution deserving protection.

THREATS TO THE RELIGIOUS IDENTITY OF CATHOLIC HIGHER EDUCATION

Accepting Federal Funding

Federal funding generally takes the form of research grants or student financial aid.  The laws and regulations governing these funds prohibit discrimination based on sex, which may require insurance plans to cover prescription contraception.  But there is an exemption for religious organizations.

Research Grant Conditions

Religious discrimination is conspicuously absent from a list of prohibitions on discrimination that circumscribes the actions of grantees of direct grant programs from the Department of Education.  Religious institutions’ ability to receive such grants is conditioned on their compliance with the following:  Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act.  Thus, grantees cannot discriminate on the basis of:  race, color, national origin, sex, handicap, or age.2  A direct grant is broadly conceived, and eligibility for each individual grant is governed by its particular authorizing statute and implementing regulations.3

Faith-based organizations are eligible to receive the direct grants, and the Code clearly establishes that the Department of Education awarding these grants will not discriminate against faith-based organizations.  These organizations are not forced to abandon their religious character, expression, or autonomy in order to receive these funds.4 To the extent that a religious educational institution seeks to provide a program or service for which a direct grant is available, the Department extends this opportunity to receive aid without compromising the school’s distinctively religious mission.  But religious educational institutions must carefully examine the procurement criteria for any particular research grant in order to determine whether accepting the federal funds will adversely affect their particular religious mission.

Federal Title IX’s Prohibition on Sex Discrimination in Education

Although Title IX prohibits sex discrimination5 in schools that receive federal financial assistance, it has an exemption for religious organizations.6  If an educational institution is both “controlled by a religious organization” and if prohibiting sex discrimination would “not be consistent with the religious tenets of such organization,” then the school may be able to discriminate.7  But it is clearly limited to differentiating on the basis of sex.8Title IX only applies to schools that receive federal financial assistance. Most Catholic colleges and universities receive federal financial assistance in the form of Federal Student Aid,9 which enables students10 to afford expensive post-secondary education.  Students apply for this aid by completing the Free Application for Federal Student Aid (FAFSA).  Formerly, student loans were offered under both the Federal Family Education Loan (FFEL) Program and the William D. Ford Federal Direct Loan (Direct Loan) Program.  FFEL loans involved the federal government guaranteeing the loans of private lenders, but with Direct Loans, students borrow directly from the U.S. Department of Education.  In 2010, among other changes,11 the Health Care and Education Reconciliation Act (“Reconciliation Act”)12 eliminated the FFEL Program, and now these loans13 will all be funded by the Direct Loan Program.

The Code of Federal Regulations, which governs the interpretation of Title IX, defines federal financial assistance in the context of student loans broadly.14  The Supreme Court has likewise concluded that the definition of federal financial assistance includes both direct and indirect student loans.15

An institution’s receipt of federal funds actually subjects the entire institution to government regulation under Title IX.16  If federal financial assistance is actually received, subjecting the school to Title IX, there are virtually no methods of institutional structuring which will allow it to maneuver around these regulations.17

Two additional notes for educational institutions attempting to determine if they are receiving federal financial assistance:  (1) it appears that tax exempt status does not constitute receiving federal funds;18 and (2) use of small amounts of federal funds has been held to not be enough to classify the school as a recipient of federal financial assistance under Title IX.19

But if an institution does receive federal funds, Title IX has an exemption for religious organizations.20  The procedure for obtaining this exemption requires the highest ranking official of the educational institution seeking the exemption to submit a written statement to the Director of the Department of Education “identifying the provisions of this part [Title IX] which conflict with a specific tenet of the religious organization.”21

In order to qualify for this exemption, an educational institution must be “controlled by a religious organization.”  An educational institution that could be classified as a religious institution itself would also meet this requirement.22

On one end of the spectrum, a religious educational institution which is in fact a seminary will generally be considered controlled by a religious organization (or actually may be a religious organization) for the purposes of Title IX exemption.  Such a school would then need to establish that, according to its religious tenets, sex discrimination was necessary.  Many religious faiths believe in either differing vocational roles for men and women generally or at least, reserve ministerial ordination for men only.  These faiths can establish their beliefs based on their interpretation of their sacred texts and foundational documents.23  These clearly qualify for the exemption.24  To the extent that an educational institution which trains religious leaders can establish that its faith does differentiate in particular ways based on sex, it should be able to allow its students to receive federal financial assistance without coming under the sway of government regulations prohibiting the type of role differentiation it practices.

Catholic schools that do not train priests and other ministers should also be concerned about Title IX’s prohibition on sex discrimination.  For instance, schools that provide medical insurance for students may violate Title IX if they fail to provide coverage for prescription contraception coverage.  Failure to do so has been ruled sex discrimination.25  Schools could also face complaints about single-sex residence halls and related activities restricted to hall residents of the same gender.

So qualifying for the religious exemption to Title IX is important for all Catholic colleges and universities.  Although this exemption is narrow,26 Catholic schools stand the best chance of qualifying because they are institutionally connected to a particular religious denomination.27

Courts apply religious exemptions by weighing the facts carefully, not merely taking a school’s assertion that it is religious at face value.28  Importantly, a religious past does not speak for a religious present.  Straying from an historic religious character cuts decisively against being regarded as religious or controlled by a religious organization.

Prohibition on Discrimination in Employment Pursuant to Federal Title VII

Catholic colleges and universities, regardless of whether they receive federal funds, may be subject to federal laws prohibiting discrimination in the workplace.  Despite the law’s broad exemption for religious organizations, the Equal Employment Opportunity Commission (“EEOC”) is increasingly inclined toward regulating Catholic employers without due consideration for religious liberty, especially with regard to health insurance mandates that conflict with Catholic morality.  For instance, Belmont Abbey College in North Carolina is currently being investigated by the EEOC because its health insurance does not cover prescription contraception for its female employees.

Title VII of the Civil Rights Act of 1964 prohibits employers of 15 or more employees from discriminating in hiring and firing employees on the grounds of race, color, religion, sex, or national origin.29  Unlike Title IX, the application of Title VII does not depend on whether or not an employer receives federal funds.  But Title VII includes a broader exemption for religious organizations.30

Title VII does not statutorily define what constitutes a religious educational institution or religious organization, but the exemption is broad: all of a religious organization’s activities are exempt, not just those activities that are specifically religious.  General principles of interpretation of the exemption caution that it is fact specific.31  Because of the sparse nature of the statute, courts have varied not only in their decisions about whether certain organizations are religious but also in the factors they apply.

In a case particularly relevant to the religious nature of educational institutions, the Eleventh Circuit Court of Appeals concluded that Samford, a Baptist university, was a religious educational institution which can consider religion when making employment decisions.  The court described the following as relevant to its conclusion:  (1) Samford was originally founded as a theological institution by the Alabama Baptist State Convention; (2) The vast majority of its trustees had been Baptist; (3) The Baptist convention contributed over four million dollars to Samford; (4) All Samford’s faculty who taught religion were required to subscribe to a particular Baptist statement of faith; and, (5) Samford’s charter described its purpose in explicitly religious terms.32

If a Catholic college or university qualifies for the religious exemption, it may require its employees to all be Catholic and live a life consistent with Catholic teaching.  If the school does not qualify for a religious exemption, it can still consider religion for certain positions that require someone of a particular faith, often referred to as a bona fide occupational qualification.  For instance, being Jesuit was considered a bona fide occupational qualification for a full-time faculty position at Loyola University of Chicago.33

The Pregnancy Discrimination Act

Title VII was amended in 1978 to prohibit discrimination against pregnant women  – often referred to as the Pregnancy Discrimination Act.34  This was interpreted by the EEOC in 2000 as requiring employers to provide prescription contraception coverage in health insurance plans that include prescriptions.35 This mandate neglects the First Amendment rights of Catholic employers who must be faithful to Catholic teaching on the immorality of artificial contraception.

In 2009, the EEOC District Office in Charlotte, N.C., charged Belmont Abbey College in North Carolina with discrimination for not covering birth control pills in its employee health plan, which would compromise the college’s Catholic mission.  The college has filed an appeal with the EEOC national office in Washington, D.C., but has not received a reply.

The EEOC appears to be headed toward additional conflicts with religious employers.  Newly appointed EEOC commissioner Chai Feldblum, a former professor at Georgetown University Law Center and advocate for same-sex marriage, has argued that “sexual rights” should trump First Amendment religious rights when the two conflict.

The EEOC action against Belmont Abbey College indicates the extent to which Title VII can be used to impose personnel policies that may conflict with Catholic identity.  Contraception mandates could lead to abortion mandates in employee health insurance.  Antidiscrimination measures regarding sexual orientation could force benefits for same-sex couples and recognition of same-sex unions.  Catholic colleges and universities must be careful to require their employees to subscribe to the Catholic teaching on contraception if they do not want to be forced to provide similar coverage to their employees.

Employment Non-Discrimination Act

Another potential threat to Catholic colleges and universities is the continued effort in Congress to amend Title VII by passing some form of the Employment Non-Discrimination Act (ENDA).  By designating “sexual orientation” a protected class under Title VII, ENDA could pose problems for Catholic institutions when hiring or firing employees by limiting employers’ ability to consider homosexual activity or activism that is opposed to Catholic doctrine.  It may also limit employers’ ability to enforce dress codes, and could require employers to provide benefits to same-sex couples.  Some observers also note that ENDA may be a first step toward federal redefinition of marriage to include same-sex unions, which could further pose conflicts with personnel policies at Catholic colleges and universities.  As with sex discrimination, the best defense against this is to qualify for the religious organization exemption and require all employees to subscribe to Catholic teaching.

Patient Protection and Affordable Care Act

The recently passed Patient Protection and Affordable Care Act (PPACA) may pose a serious threat to conscience rights of Catholic colleges and universities.  But the manner in which PPACA will be implemented is confusing and indeterminate.  PPACA generally mandates that employers provide one of several options of health insurance to their employees.  But PPACA also grants sweeping powers to the Secretary of the Department of Health and Human Services (HHS) and other administration agencies, making it distinctly possible that they may mandate coverage of contraception, in vitro fertilization, and even abortion in an employer’s coverage options.  Institutions opting to simply not provide health coverage for their employees will face stiff tax consequences.  This paper below discusses religious schools’ options for avoiding the requirements of the PPACA as well as potential grounds for protecting religious freedom through litigation.

General State-Level Threats

Some states such as Wisconsin have begun mandating contraception coverage in employee health insurance plans.  Not all of them have exceptions for religious organizations and when they do, it is sometimes unclear how to qualify as a religious organization.  A thorough analysis of the various and differing state laws is beyond the limited scope of this paper.  The Becket Fund for Religious Liberty has an excellent analysis of this issue with proposals for protecting Catholic institutions from this threat titled, Implications of Mandatory Insurance Coverage of Contraceptives for Catholic Colleges and Universities.  It is available at www.CatholicHigherEd.org.  A summary of state contraception mandates titled Contraceptive Mandates and Immoral Cooperation can also be found at the same site.

Some states also have constitutional provisions called “Blaine Amendments” that prohibit any state funds from being used by pervasively religious organizations.  At least four Supreme Court Justices have opined that Blaine Amendments – originally enacted as a result of anti-Catholic bigotry – are unconstitutional and the use of “pervasively sectarian” is outdated.36  Moreover, the Tenth Circuit Court of Appeals in Denver ruled that making distinctions between schools for purpose of state scholarship funding based on whether they are “pervasively sectarian” or merely “sectarian” actually violates the First Amendment Establishment Clause due to excessive entanglement of government with religion.37   This case may be the beginning of a successful effort to eliminate Blaine Amendments.  Nevertheless, Catholic schools should be aware that emphasizing their religious mission and theology may result in disqualification for some state funding programs until provisions that discriminate against pervasively sectarian organizations can be successfully challenged in court.

Potential Threats on the Horizon

The future may bring additional government threats to the religious liberty of Catholic colleges and universities.  While their scope and impact are yet uncertain, recent developments suggest the added importance of protecting against potential threats as well as current realities.

On October 29, 2010, the U.S. Department of Education issued new regulations on student aid that encourage tighter state controls over higher education.  The Higher Education Act requires state authorization of colleges and universities that participate in federal student aid programs, which until this year was often assumed absent an adverse ruling by a state agency.   The Education Department now expects state approval of institutions “by name” and a state process “to review and appropriately act on” complaints about any approved institution.

Associations concerned with religious higher education – including The Cardinal Newman Society, the Association of Jesuit Colleges and Universities, and the Council of Christian Colleges and Universities – have raised concerns about expanded state oversight which could be politicized and could erect barriers to religious colleges seeking state charters and access to federal student aid.  The Education Department acknowledged that it had received complaints from college leaders that “a State’s role may extend into defining, for example, curriculum, teaching methods, subject matter content, faculty qualifications, and learning outcomes.”  Others feared that states might “impose homogeneity upon institutions that would compromise their unique missions.”  In response, federal officials agreed that the new regulations do “not limit a State’s oversight of institutions.”

In a July 30, 2010, letter to the Education Department, William Armstrong, former U.S. Senator from Colorado and now President of Colorado Christian University, warned that the new rules would “almost guarantee that states will have to cope with noisy arguments over teaching methods, degree requirements and culture wars over textbooks, evolution versus Intelligent Design, phonics versus whole language, campus ROTC, climate change, family policy, abortion, race, gender, sexual orientation, etc.”

It should be noted that the law does not prevent the federal government from also imposing restrictions on Catholic colleges and universities that participate in federal student aid programs.  Regulations that could be tied to federal aid might affect employee benefits, hiring policies, accreditation practices, and other unforeseen areas that potentially conflict with religious identity.  Thus far the federal government has been notably restrained in interfering with higher education.

STEPS TO PROTECT CATHOLIC COLLEGES AND UNIVERSITIES

Demonstrating a College is Religious

In short, many religious educational institutions, particularly colleges and universities which were founded on purposes tied to goals of educating in conformity to religious teaching –especially when the ties are denominationally specific or to an individual church – should be exempted from federal prohibitions on sex and religious discrimination.  But an educational institution that veers from a religious founding will probably not be able to demonstrate it is a religious organization.38  It will therefore not be able to require that its staff, faculty, and student body agree with, and abide by, its religious mission and theology.

Some Catholic schools have purposely minimized their religious ties for fear of being considered “pervasively sectarian,” and being disqualified for state funding by Blaine Amendments as indicated above.  Emphasizing their religious mission and theology is helpful for avoiding federal regulation, but it may adversely affect the school’s ability to participate in state scholarship programs – at least until those discriminatory provisions can be eliminated.

The cases indicate courts will consider 10 factors when determining whether a school is a religious organization.39  A college or university is much more likely to be able to qualify for an exemption to anti-discrimination laws if it satisfies all of them.  They are:

1. Whether the entity operates for a profit

This factor is not an issue for most secondary schools, but there are some for-profit colleges and universities.  “Nothing in the statute or case law says a for-profit corporation can not [sic] be a ‘religious corporation,’ but every reported claim for that status by a for-profit corporation has been denied.”  Dent, supra note 25, at 563.  Non-profit status definitely weighs in favor of being considered a religious organization.

2. Whether it produces a secular product

Many religious schools offer secular degrees in addition to religious.  This does not preclude them from being considered religious institutions.  For instance, Samford University offers a plethora of secular degrees,40 but was still considered a religious institution because, among other things, its chief purpose was “the promotion of the Christian Religion throughout the world by maintaining and operating … institutions dedicated to the development of Christian character in high scholastic standing.”41

3. Whether the entity’s articles of incorporation or other pertinent documents state a religious purpose

All indications are that the governing documents of an organization are important to it being considered religious.  No cases were found where an organization was deemed religious even though no religious purpose was stated in its founding documents.42  On the other hand, Samford’s charter reflected its chief purpose of promoting the Christian Religion throughout the world, and that was a significant factor in the court’s determination that the university was religious.43

4. Whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue

Though not determinative, this factor certainly figures strongly into the calculation when assessing whether a school is religious.  The Court found it significant that Samford University received seven percent of its annual budget from the Southern Baptist Convention.44

5. Whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees

This factor is very helpful for determining a school is religious if it is not directly affiliated with a church or other religious body.  For instance, in LeBoon, a Jewish Community Center was considered a religious organization even though it was not directly affiliated with any synagogue, because several rabbis were advisory, non-voting members of its board.45

6. Whether the entity holds itself out to the public as secular or sectarian

This is one of the most important factors.  A school in Hawaii that required its teachers to be Protestant was not religious, due in part to the fact that the school’s introductory pamphlet and course catalogue did not list any religious purpose of the school.46  Conversely, another court found it significant that “Samford’s student handbook describes Samford’s purpose this way: ‘to foster Christianity through the development of Christian character, scholastic attainment, and a sense of personal responsibility, ….’”47

7. Whether the entity regularly includes prayer or other forms of worship in its activities

Students at Samford University are required to attend chapel – which figured favorably in the court’s determination that it is a religious organization.48  But this factor did not help a school in Hawaii due in large part to the fact that most of the religious activities were optional for students.49

8. Whether it includes religious instruction in its curriculum, to the extent it is an educational institution

Sectarian schools must be careful to ensure that religious courses do something more than just teach about religion – which is allowed even in public schools.  For instance, this factor weighed against the Hawaii school that was found not to be religious because its curriculum “consist[s] of minimal, largely comparative religious studies….”50  Whereas, Samford University actually has a divinity school that trains clergy.

9. Whether its membership is made up by coreligionists

In the school context, this factor obviously has to do with the composition of the student body and faculty.  It is not necessary that students and teachers be limited to individuals of a particular religion.  Although Samford students are required to attend chapel, the court made no mention of a requirement that they be Southern Baptist, and determined the school was religious anyway.  And only instructors who taught religion courses were required to subscribe to a particular statement of faith.51  The court did favorably mention another case where the fact that 88% of the student body and 95% of the faculty were Baptist was significant in determining the school was religious.52

10. Consistent compliance with religious beliefs

Courts have held that a school or entity is no longer religious, even though it once was, because of lack of effort to comply with its original religious teachings.  For instance a court found that a home for troubled youth originally established with a religious purpose and governed by church-member trustees was presently secular because it no longer included religion in its programming and attendance at religious services was optional.53  Likewise, a school in Hawaii originally established as a Protestant institution was not religious because “the record reveals the purpose and emphasis of the School[] have shifted over the years from providing religious instruction to equipping students with ethical principles that will enable them to make their own moral judgments.”54

This factor may be particularly significant for universities and colleges that are affiliated with a particular denomination that specifically proscribes religious tenants that must be followed.  For instance, Catholic schools should adhere to the Canon Law requirements for their institutions, including the Church’s Apostolic Constitution Ex corde Ecclesiae, which applies directly to Catholic universities.55

Protection from PPACA

This section discusses religious schools’ options for avoiding the requirements of the Patient Protection and Affordable care Act (“PPACA”) as well as potential grounds for protecting religious freedom through litigation.  Schools should consult legal counsel to determine what their specific options will be under the PPACA regime.  Some potential options are as follows:

Lobby for amendments addressing conscience protection issues

Members of Congress are aware of the deficiencies in the PPACA, and several are proposing amendments to fix the shortcomings.  Representative Joseph Pitts (R-PA) introduced H.R. 5111, which would close the loopholes threatening to make abortion coverage mandatory.  Various proposed amendments would protect against requisite coverage of objectionable services in general.  Institutions concerned about the formidable new threats to their conscience rights must lobby for broad protection at both the federal and state levels.

Sue HHS under the Religious Freedom Restoration Act

In a specific case where all of an institution’s options for fulfilling PPACA’s employee-coverage mandate substantially burden its religious beliefs by forcing it to cover objectionable practices, the institution may be able to file a lawsuit alleging that PPACA’s mandate as applied to them violates the federal Religious Freedom Restoration Act (“RFRA”).   The act prohibits the government from “substantially burden[ing] religious exercise without compelling justification.”  Health coverage is an important employee recruiting and retention tool for employers.  Having to choose between not providing health coverage and compromising religious values is likely the type of burden RFRA was meant to protect against.  The success of any such claim will depend on the specific facts of an institution’s circumstances.  The institution should be able to assert that it actually has a sincere religious belief against providing coverage for certain objectionable practices, and that forcing it to do so will substantially burden its belief because it would select non-objectionable health coverage if it could.

Conclusion

Religious colleges and universities are prohibited from discriminating on sex and religion by Title IX and Title VII.56  There are exemptions for religious organizations in both of these statutes, but schools can only take advantage of these exemptions if they satisfy multi-factored tests that require them to consistently follow their religious convictions.  To the extent that a religious college departs from its historic religious ties, it may be in danger of losing its ability to claim that it is a religious employer exempted from civil rights legislation disallowing even religious discrimination.  To minimize regulation, such institutions should firmly maintain their religious identities and should exercise caution when accepting federal funds or allowing their students to accept federal financial assistance.

Religious schools are also subject to new requirements for providing health insurance to employees.  It is unclear how this new law will affect schools and other religious organizations that object to certain types of healthcare, such as abortion and in vitro fertilization.  But school officials should begin consulting with counsel as soon as possible to determine if there will be any conflict between this law and the school’s religious teachings.

Finally, direct funding from the federal government may contain some prohibitions on a school’s ability to hire faculty and recruit students that agree with its religious teachings.  The procurement criteria for each direct grant should be examined closely to be sure the school is not foregoing its ability to maintain its religious character.