Today, tens of thousands of religious organizations, and tens of millions of Americans, continue to believe and teach that the proper understanding of marriage is a union of one man and one woman. But they do far more than believe and teach this and other views.
They also give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.
Despite the crucial role that religious organizations and individuals have long played in our country, some voices now suggest that they and their work are somehow tainted because of their beliefs about marriage and sexuality. Some argue that the time has come to push religious believers out of the public square and confine them to the quiet, private realm of personal prayer and worship. This despite the Supreme Court's recent decision in Obergefell v. Hodges, which not only required states to legally recognize same-sex marriages but also said, “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”
Nonetheless, because of their traditional views on human sexuality, religious organizations have already been threatened with heavy-handed government action.
Last fall, for example, the US representative for a Boston area congressional district told the president of Gordon College that he would do everything in his power to force the small liberal arts school to change its beliefs about sexuality. In California, government actors have forced student ministry organizations off campus because those organizations would not accept “all-comers” into their membership and leadership structures, even those who rejected their religious commitments (and in 2010, a 5-4 majority of the Supreme Court backed those government actors in Christian Legal Society v. Martinez). And within days of the Court’s decision in Obergefell, New York Times columnist Mark Oppenheimer wrote that the government should eliminate tax-exempt status from “organizations that dissent from settled public policy on matters of race or sexuality.”
Mr. Oppenheimer failed to acknowledge that in a pluralistic and democratic society, government routinely recognizes the tax-exempt status of organizations that differ from “settled public policy.” For example, not that long ago, the Human Rights Campaign was tax-exempt when it differed from settled policy on matters of sexuality; the same is true of organizations, like the Sierra Club, who push for changes in environmental regulation, or anti-war groups, who oppose US military policy. One of the principal purposes of civil society organizations is to challenge “settled public policy.”
Moreover, the majority opinion in the 5-4 decision in Obergefell earlier this summer made clear that “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” The Court’s recognition of the “decent and honorable” premises that continue to be held by tens of millions of Americans stands in sharp contrast to the absence of any similar language in Loving v. Virginia, the Court’s unanimous 1967 decision invalidating state bans on interracial marriages.
A Practical Way Forward
Some members of Congress have now introduced the First Amendment Defense Act (FADA) in an effort to ensure that overheated rhetoric and political opportunism do not endanger the important work of faith-based organizations. The core of FADA would require the federal government to honor its longstanding commitments to treat all such organizations with an even hand. It would prevent federal officials from attempting to strip tax-exempt status, from denying equal access to federal facilities and entitlements, or from taking adverse actions related to licensing or accreditation.
The original version of FADA prompted a great deal of dismissive commentary in the popular press. For example, the Los Angeles Times editorial board contends that there’s “no need” for FADA. The ACLU calls FADA “disingenuous.” And a letter to Congress signed by over 3,000 progressive clergy asserts that “this legislation does nothing to protect our rights as people of diverse faith traditions.”
These blanket dismissals of FADA are wrong. The bill would provide meaningful protections to tens of thousands of religious institutions. That said, the original version of the bill was unnecessarily broad in some respects. It protected federal employees even when they declined to perform tasks within the scope of their duties. It lacked other reasonable provisions, such as ensuring that religious hospitals grant visitation rights to same-sex partners. And it covered for-profits of any types or size. The Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores made clear that the federal Religious Freedom Restoration Act (RFRA) protects some for-profits in cases where sincere religious exercise is substantially burdened. FADA, however, has different, more specific aims than RFRA and it addresses situations that for-profit businesses are not likely to confront.
We understand that new versions will address many or all of these issues. We think the best approach is to tailor FADA to the core area of concern: religious nonprofits. That focus would serve the cause of religious freedom by making it more likely that this important legislation can move forward.
Appropriate legislation would ensure that Gordon College and hundreds of other religious colleges and universities that maintain traditional views about marriage do not lose the ability to provide federal financial aid to their students. It would make clear that World Vision, Compassion International, and dozens of other international aid organizations can continue to partner with our government to help hundreds of thousands of children around the world escape life-threatening conditions.
It would ensure that organizations like Catholic Charities, the Christian Community Development Association, the National Hispanic Christian Leadership Conference, and the Mormon Church will continue to help millions of poor and needy Americans without being stigmatized or excluded by powerful federal actors who do not share their religious views.
It would mean that InterVarsity Christian Fellowship, Newman Centers, Cru, and the Navigators can continue to minister to tens of thousands of college students without worrying about losing their federal tax-exempt status.
It would allow hundreds of Catholic schools to continue their work of educating thousands of inner-city students without jeopardizing crucial partnerships with federal agencies and programs.
These are the kinds of goals that the vast majority of Americans, whatever their views on same-sex marriage, support in the interest of tolerance, pluralism, and diversity. It is also essential that Congress hears from those who support these goals.
If you find yourself in basic agreement with what we’ve written, then you can make your views known by engaging now with your elected representatives. If you are a leader, a board member, or volunteer with one of the tens of thousands of Christian ministries that could benefit from meaningful protections, then make the effort to write, call, or email your federal representatives in both houses of Congress. Engage with them on social media, call their staffers, and explain to them how federal legislation could protect you and your ministries. Meet with them while they are home during the August recess. Be sure to specify that you support focused, careful religious-freedom legislation that provides core protections for religious nonprofits. (You can even mention this essay as a point of reference.)
Remember, too, that political engagement is a form of witness. Focus on the work of your ministries. Share any stories of challenges that you have confronted, and explain why protections would help. Be clear and kind in the way that you engage. But do engage—and soon.
Richard W. Garnett is the Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame and Founding Director, Notre Dame Program on Church, State & Society.
John D. Inazu is associate professor of law and political science at Washington University in St. Louis, and a member of the Board of Trustees of InterVarsity Christian Fellowship.
Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School.