World Vision U.S. has reversed course and reaffirmed the biblical view of marriage as the conjugal union of husband and wife. Here is the text of the statement issued by the organization's President and the Chairman of its board of directors.
Dear Friends,
Today, the World Vision U.S. board publicly reversed its recent decision to change our employment conduct policy. The board acknowledged they made a mistake and chose to revert to our longstanding conduct policy requiring sexual abstinence for all single employees and faithfulness within the Biblical covenant of marriage between a man and a woman.
We are writing to you our trusted partners and Christian leaders who have come to us in the spirit of Matthew 18 to express your concern in love and conviction. You share our desire to come together in the Body of Christ around our mission to serve the poorest of the poor. We have listened to you and want to say thank you and to humbly ask for your forgiveness.
In our board's effort to unite around the church's shared mission to serve the poor in the name of Christ, we failed to be consistent with World Vision U.S.'s commitment to the traditional understanding of Biblical marriage and our own Statement of Faith, which says, "We believe the Bible to be the inspired, the only infallible, authoritative Word of God." And we also failed to seek enough counsel from our own Christian partners. As a result, we made a change to our conduct policy that was not consistent with our Statement of Faith and our commitment to the sanctity of marriage.
We are brokenhearted over the pain and confusion we have caused many of our friends, who saw this decision as a reversal of our strong commitment to Biblical authority. We ask that you understand that this was never the board's intent. We are asking for your continued support. We commit to you that we will continue to listen to the wise counsel of Christian brothers and sisters, and we will reach out to key partners in the weeks ahead.
While World Vision U.S. stands firmly on the biblical view of marriage, we strongly affirm that all people, regardless of their sexual orientation, are created by God and are to be loved and treated with dignity and respect.
Please know that World Vision continues to serve all people in our ministry around the world. We pray that you will continue to join with us in our mission to be "an international partnership of Christians whose mission is to follow our Lord and Savior Jesus Christ in working with the poor and oppressed to promote human transformation, seek justice, and bear witness to the good news of the Kingdom of God."
Following his meeting with Pope Francis today, President Obama commented on the gift he received from the Holy Father, a copy of the Pope's Apostolic Exhortation Evangelii Gaudium.
The President remarked "I will treasure this. I actually will probably read this in the Oval Office when I'm deeply frustrated. I'm sure it will give me strength and calm me down."
Much of the American media has made the most out of the optics of the President's audience with the Pope stressing that the Pope and President have much in common, including a desire to address poverty and income inequality. This is surely true. But is is also true that the Pope and the President differ on a fundamenal level, on the level of anthropology, in that the Church sees every human being as someone of infinite value -- and as a child of God.
Some like A.J. Dionne, have taken the theme of commonality to absurd lengths, suggesting (at the Washington Post and on MSNBC) that the two leaders see more eye to eye than the Pope and the American bishops do, and that their conversation might address how to get the American hierarchy to support the President. The Holy See's press release concerning the meeting indicates the conversation was somewhat different, that the two talked about issues that the U.S. bishops have repeatedly addressed in their dealings with the administration.
I certainly hope that the President reads the Pope's exhortation in its entirety. He might, however, find the following to be of particular interest:
61. We also evangelize when we attempt to confront the various challenges which can arise. On occasion these may take the form of veritable attacks on religious freedom or new persecutions directed against Christians; in some countries these have reached alarming levels of hatred and violence. In many places, the problem is more that of widespread indifference and relativism, linked to disillusionment and the crisis of ideologies which has come about as a reaction to any-thing which might appear totalitarian. This not only harms the Church but the fabric of society as a whole. We should recognize how in a culture where each person wants to be bearer of his or her own subjective truth, it becomes difficult for citizens to devise a common plan which transcends individual gain and personal ambitions.
* * *
66. The family is experiencing a profound cultural crisis, as are all communities and social bonds. In the case of the family, the weakening of these bonds is particularly serious because the family is the fundamental cell of society, where we learn to live with others despite our differences and to belong to one another; it is also the place where parents pass on the faith to their children. Marriage now tends to be viewed as a form of mere emotional satisfaction that can be constructed in any way or modified at will. But the indispensible contribution of marriage to society transcends the feelings and momentary needs of the couple. As the French bishops have taught, it is not born “of loving sentiment, ephemeral by definition, but from the depth of the obligation assumed by the spouses who accept to enter a total communion of life”.
* * *
213. Among the vulnerable for whom the Church wishes to care with particular love and concern are unborn children, the most defenceless and innocent among us. Nowadays efforts are made to deny them their human dignity and to do with them whatever one pleases, taking their lives and passing laws preventing anyone from standing in the way of this. Frequently, as a way of ridiculing the Church’s effort to defend their lives, attempts are made to present her position as ideological, obscurantist and conservative. Yet this defence of unborn life is closely linked to the defence of each and every other human right. It involves the conviction that a human being is always sacred and inviolable, in any situation and at every stage of development. Human beings are ends in themselves and never a means of resolving other problems. Once this conviction disappears, so do solid and lasting foundations for the defence of human rights, which would always be subject to the passing whims of the powers that be. Reason alone is sufficient to recognize the inviolable value of each single human life, but if we also look at the issue from the standpoint of faith, “every violation of the personal dignity of the human being cries out in vengeance to God and is an offence against the creator of the individual”.
214. Precisely because this involves the internal consistency of our message about the value of the human person, the Church cannot be expected to change her position on this question. I want to be completely honest in this regard. This is not something subject to alleged reforms or “modernizations”. It is not “progressive” to try to resolve problems by eliminating a human life. On the other hand, it is also true that we have done little to adequately accompany women in very difficult situations, where abortion appears as a quick solution to their profound anguish, especially when the life developing within them is the result of rape or a situation of extreme poverty. Who can remain unmoved before such painful situations?
* * *
255. The Synod Fathers spoke of the importance of respect for religious freedom, viewed as a fundamental human right. This includes “the freedom to choose the religion which one judges to be true and to manifest one’s beliefs in public”. A healthy pluralism, one which genuinely respects differences and values them as such, does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism. The respect due to the agnostic or non-believing minority should not be arbitrarily imposed in a way that silences the convictions of the believing majority or ignores the wealth of religious traditions. In the long run, this would feed resentment rather than tolerance and peace.
256. When considering the effect of religion on public life, one must distinguish the different ways in which it is practiced. Intellectuals and serious journalists frequently descend to crude and superficial generalizations in speaking of the shortcomings of religion, and often prove incapable of realizing that not all believers – or religious leaders – are the same. Some politicians take advantage of this confusion to justify acts of discrimination. At other times, contempt is shown for writings which reflect religious convictions, overlooking the fact that religious classics can prove meaningful in every age; they have an enduring power to open new horizons, to stimulate thought, to expand the mind and the heart. This contempt is due to the myopia of a certain rationalism. Is it reasonable and enlightened to dismiss certain writings simply because they arose in a context of religious belief? These writings include principles which are profoundly humanistic and, albeit tinged with religious symbols and teachings, they have a certain value for reason.
257. As believers, we also feel close to those who do not consider themselves part of any religious tradition, yet sincerely seek the truth, goodness and beauty which we believe have their highest expression and source in God. We consider them as precious allies in the commitment to defending human dignity, in building peaceful coexistence between peoples and in protecting creation. A special place of encounter is offered by new Areopagi such as the Court of the Gentiles, where “believers and non-believers are able to engage in dialogue about fundamental issues of ethics, art and science, and about the search for transcendence”. This too is a path to peace in our troubled world.
258. Starting from certain social issues of great importance for the future of humanity, I have tried to make explicit once again the inescapable social dimension of the Gospel message and to encourage all Christians to demonstrate it by their words, attitudes and deeds.
I am delighted to report that the latest book by Prof. Nicole Stelle Garnett (and her co-author, my friend and colleague Prof. Margaret Brinig) is out (and available for purchase!) The book is "Lost Classroom, Lost Community: Catholic Schools' Importance in Urban America, and it's published by the University of Chicago Press. Here's a blurb from the Press:
In the past two decades in the United States, more than 1,600 Catholic elementary and secondary schools have closed, and more than 4,500 charter schools—public schools that are often privately operated and freed from certain regulations—have opened, many in urban areas. With a particular emphasis on Catholic school closures, Lost Classroom, Lost Communityexamines the implications of these dramatic shifts in the urban educational landscape.
More than just educational institutions, Catholic schools promote the development of social capital—the social networks and mutual trust that form the foundation of safe and cohesive communities. Drawing on data from the Project on Human Development in Chicago Neighborhoods and crime reports collected at the police beat or census tract level in Chicago, Philadelphia, and Los Angeles, Margaret F. Brinig and Nicole Stelle Garnett demonstrate that the loss of Catholic schools triggers disorder, crime, and an overall decline in community cohesiveness, and suggest that new charter schools fail to fill the gaps left behind.
This book shows that the closing of Catholic schools harms the very communities they were created to bring together and serve, and it will have vital implications for both education and policing policy debates.
I cannot recommend highly enough the ongoing symposium (putting aside my own contribution) about the Hobby Lobby case at The Conglomerate. Run, don't walk, to check it out.
It is of course always difficult to predict how the Court will rule on any issue, and this is certainly true in the Hobby Lobby case. From my read of the transcript of the oral argument, the least restrictive means analysis stole the show. There sure was a lot of discussion about the accommodation to religious nonprofits as a less restrictive means than what the administrative agency had decided on for for-profits. Justice Kennedy asked repeatedly about the issue of regulatory, as opposed to legislative, exemptions as a Free Exercise Clause and RFRA problem. See, e.g. 56 ("Now what--what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?").
On another matter, though, there was greater clarity in the argument. The government rejected the specific claim that an exemption in this case would violate the Establishment Clause. Here is the colloquy:
Justice Alito: Well is it your argument that providing the accommodation that's requested here would violate the Establishment Clause
General Verrilli: It's not our argument that it would violate the Establishment Clause. But it is our argument that you--in any RFRA case, including this one, you have to consider the impact on third parties, because otherwise, you will be skating on thin constitutional ice.
43. I am not quite sure what this means. But what it seems to mean is that, first, the government takes the position that this exemption, if granted, would not violate the Establishment Clause. And second, it seems to mean that RFRA itself, properly interpreted and applied, incorporates within itself Establishment Clause limits that relate to third party interests. That's the claim I have made here. It is also the claim that this amicus brief makes. It also reflects the language in Cutter v. Wilkinson. It is a claim about the interpretation of a statute. It is not a claim that the statute violates the Establishment Clause if it violates a particular externally imposed threshold that is not spelled out in the statute itself. Solicitor General Verrilli went on to say that whatever third party interests are contemplated by RFRA are subsumed within the compelling government interest analysis right within RFRA: "[C]ertainly compelling interest analysis certainly does require consideration of the interests of third parties." 44
Of course, that the government disavows a claim does not mean that the Court can't go retrieve it on its own. But it was really only Justice Ginsburg who said anything at all about the Establishment Clause, and what she said seems also to be consistent with the point that RFRA (like RLUIPA) incorporates certain Establishment Clause limits. Justice Kennedy asked Attorney Clement how he "would suggest that we think about the position and the rights of the--of the employees[.]" Justice Kennedy then remarked that "the employees are in a position where the government, through its healthcare plans is...allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious--religious beliefs of the employer. Does the religious beliefs just trump?" 33
After a response from Mr. Clement, here's what Justice Ginsburg said:
But, Mr. Clement, you made the analogy to RLUIPA. And the one thing that has not been mentioned up till now is the Establishment Clause. The Court was very clear when it came to RLUIPA, which you said is similar to RFRA, that the accommodation must be measured so it doesn't override other significant interests. And that was true of Sherbert and that was true of Yoder. The--and the Cutter case, and this Court made it very clear, that the accommodation has to be balanced and you have to take into account other significant interests.
34 Later in the discussion, Justice Kagan referred specifically to the "tangible harm[]" that women will suffer who don't get the benefit of the statute. But neither Justice Kagan nor Justice Kennedy specifically talked about the Establishment Clause. And the discussion of tangible harms on third parties then turned toward the issue of alternative means of accommodating those interests without burdening the religious objector.
Several days ago, Michael posted the letter from several legal academics opposing the proposed Mississippi RFRA (religious freedom restoration act; the latest proposed text, which has now been tabled, is here). I've meant to write a responsive post but have been slow in doing so. The opposition to the Mississippi bill grows out of the intense reaction to the earlier Kansas and Arizona bills. Here is another article likewise lumping together Mississippi and Kansas (because after all, these bills all come from red states and from legislators unsympathetic to gays and lesbians: "Can anything good come from Mississippi?"). But the opposition to Mississippi's bill crosses a new threshold. It essentially says that it's bad, period, to enact a RFRA, a general rule that substantial burdens on religious freedom must have a strong justification.
As Paul Horwitz notes today, the increasing per se opposition to RFRAs reflects a substantial breakdown of consensus among Religion Clause scholars. My claim is that the opposition to Mississippi's proposal is counterproductive even from the progressive premises that motivate many of the opponents.
The scholars' letter primarily argues that the Mississippi RFRA would send a message that commercial businesses might be exempt from anti-discrimination laws. As in Kansas and Arizona, the focus is on exemptions that would undermine civil rights laws protecting gays and lesbians. But here's the problem: even assuming that RFRAs have any such effect (which is itself highly doubtful), MIssissippi does not have gay-rights laws for a RFRA to undermine (and likely won't in the near future). There is no state law against sexual-orientation discrimination. There are no local laws: as the letter notes, three cities have passed resolutions condemning discrimination, but these are non-binding. The only hypothetical the letter can conjure up involving an actual Mississippi law is wildly implausible. The state "conscience clause" that protects doctors from having to perform procedures that violate their conscience also says that they cannot refuse to treat a patient because of his/her sexual orientation; so the letter hypothesizes that the state RFRA might allow a doctor to simply refuse on religious grounds to treat a gay patient who has AIDS. The letter gives no evidence (because, I expect, there is none) that any doctor has ever made such an objection, let alone successfully. In short: whatever the motivations of the bill's proponents (I do not vouch for their attitude towards gays and lesbians), the Mississippi RFRA would make no difference in the area of gay rights and religious objections.
For critics of the bill, that's one of its many problems. They say that to pass religious-freedom protection, even in the form of a general statute, when objectors to gay rights don't need it is just a mean-spirited slap at gays and lesbians. But if we consider it a little longer, it seems to me, the conclusion should be the opposite.
Whatever the authors' subjective intentions, the far more likely effect of a Mississippi RFRA would be to protect religious minorities, many of them non-Christians, against laws passed in a state whose officials have frequently shown indifference or hostility to minorities. These cases ought to matter far more to liberals than the completely hypothetical conflicts with nonexistent civil-rights laws. RFRAs make a difference because they replace the narrow free-exercise rule of Employment Division v. Smith with a standard that requires the government to offer a strong reason for imposing substantial restrictions on religious practice. In a listserve post, Professor Chris Lund, probably the leading expert on state RFRAs, has cataloged a number of cases in which they have protected religious minorities: for example, "the Native American student who got the right to wear his hair long in A.A. v. Needville Indep. School Dist., 611 F.3d 248 (5th Cir. 2010), the Santeria folks who got to continue their religious rituals sacrificing animals in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), the Jehovah’s Witness who got a bloodless liver transplant that was necessary to keep her alive in Stinemetz v. KHPA, 252 P.3d 141 (Kan. App. 2011)."
There are other cases that were not decided directly under a state RFRA but whose facts could easily recur in Mississippi and in which the state RFRA would likely be crucial to protecting either a religious minority or a religious practice with which progressives should sympathize. In next-door Alabama, the state's draconian law against assisting illegal immigrants was challenged by Catholic, Protestant and other social-service ministries; they had a far better chance of prevailing under Alabama's RFRA than under the Smith rule. The Newark, NJ police department enforced a no-beard rule against a devout Muslim officer for doubtful reasons; the same situation could easily happen in Mississippi, and if so the officer would have a much stronger argument under a state RFRA than under Smith. When a deceased Hmong man was autopsied by a Rhode Island coroner, the family was deeply distressed because they believed the autopsy imprisoned their loved one's soul: but a district judge, after first ruling for the family, then reversed himself under Smith without regard to whether the coroner had a good reason for the autopsy. I've no doubt that if and when Hmongs settle in Mississippi, they could face the same kind of unnecessary imposition from indifference or hostility.
We should judge a proposed law by what its text would do in the legal context, not by the motivations (or perceived motivations) of its sponsors. The actual effect of a newly enacted RFRA in a state like Mississippi, it seems to me, would be quite different from the picture that was painted.
I want to be clear about the distinctions I see among the recent "religious liberty" bills, because I think the critics have now blown past important differences as they oppose RFRAs wholesale. In my view, the Kansas bill that focused on objections to gay marriage was terrible: it gave no weight to the interests of same-sex couples and was indeed a symbolic slap at them because Kansas has no sexual-orientation nondiscrimination laws from which objectors even arguably needed protection. Unlike a general RFRA statute, the Kansas bill covered only the specific situation and thus provided no religious-freedom benefits in any other situation. I can also understand, while not necessarily agreeing with, people who attacked the amendments to Arizona's state RFRA. Those amendments took a statute already protecting various religious minorities and added language expllicitly covering claims by for-profit businesses and in claims lawsuits by private parties. If you oppose all exemptions for for-profit businesses, then it made sense to oppose the amendments.
But with the Mississippi bill, we saw opposition to the enactment of a state RFRA in the first place, a statute that will change or clarify the law to protect a wide range of potentially sympathetic religious-freedom claims like those above. And the opposition to the bill rests on hypothetical threats to nonexistent state and local civil-rights laws. I believe that many of the signers of the letter opposing this RFRA value religious freedom in general. But when such utter speculation about nonexistent gay-rights disputes overrides the benefits of protection for minority faiths in many other cases, the result is to dismiss the free exercise of those faiths as quite unimportant.
(All this is water under the bridge for now: the Mississippi proposal is tabled, and politically this is an impossibly toxic time to propose a state RFRA. But I hope the time will come when we can again consider RFRAs on their real merits.)
The U.S. branch of World Vision, the major evangelical relief agency, is changing its policy and opening itself to hiring professing Christians who are in legally recognized same-sex marriages. This almost certainly presages future moves by other traditionally oriented organizations, as well as the arguments that will increasingly ground those moves. From Christianity Today:
Given that more churches and states are now permitting same-sex marriages (including World Vision's home state of Washington), the issue will join divorce/remarriage, baptism, and female pastors among the theological issues that the massive relief and development organization sits out on the sidelines....
"Changing the employee conduct policy to allow someone in a same-sex marriage who is a professed believer in Jesus Christ to work for us makes our policy more consistent with our practice on other divisive issues," [president Richard Stearns] said. "It also allows us to treat all of our employees the same way: abstinence outside of marriage, and fidelity within marriage."
The Hobby Lobby and Conestoga Wood cases being argued this morning are important. But in my view they are not "extraordinary cases," which is Richard Fallon's term for those cases in which "no existing doctrine resolves the issues before the Court" or "a majority of the Justices believes that existing doctrinal structures must be reassessed in light of more fundamental concerns." (Fallon, Implementing the Constitution at 134-35.) At the risk of appearing unappreciative of legal complexity or difficulty, I'll share my boring bottom-line assessment of the likely outcome and reasoning in Hobby Lobby and Conestoga Woods: These cases will be doctrinally uninteresting losses for the government.
In order to rule for the challengers, which is how I expect a majority of the Justices will rule, the Justices will need to decide three issues:
(1) Can either the companies or their owners assert a claim under RFRA?
(2) Is the threat of massive fines for the companies' offering of health coverage that excludes certain drugs and devices for reasons of religious conscience a substantial burden on the companies' or their owners' exercise of religion?
(3) Has the government satisfied strict scrutiny?
If a majority of the Justices gets to issue (3), it is hard to see how the government can win. The government did not even try to take into account the religious beliefs of challengers like these in their regulatory implementation of the statutory preventive services mandate. There are a variety of ways for thinking about the right way to answer (1) and (2), some of which would require the Supreme Court to address novel questions. But there are also simple ways of resolving these issues in the challengers' favor.
With respect to who can assert a claim here, the Court could straightforwardly reason that "person" in RFRA includes a corporate person, and that there is no limitation on which kinds of corporate person may assert a claim, as long as that person may engage in the exercise of religion. And in this context, "exercise of religion" means nothing more than a religiously based act or refusal to act. With respect to substantial burden, there seems little difficulty finding this present in the threat of massive penalties for these companies' religion-based decision to offer non-compliant health coverage that excludes no-additional-cost coverage of various drugs and devices.
Given all the commentary generated by these cases already, with much of it focusing on novel or difficult issues, my assessment in this post is admittedly contrarian. Am I confident that a majority of Justices will follow the relatively uninteresting path through the issues in these cases? That is probably too strong a word. But while the Supreme Court retains the ability to surprise and confound, sometimes the legal path of least resistance is the path a majority is most likely to follow.
