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Legatus Magazine

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Ryan Nichols | author
Feb 01, 2016
Filed under Columns
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Emerging threats to religious liberty

It’s guaranteed. The First Amendment protects Americans’ right to exercise their faith freely. And that right is what allows citizens to practice the corporal works of mercy through the activities of ministries and nonprofits.

Ryan Nichols

Ryan Nichols

But in recent years, religious liberty has come under attack with increasing frequency and severity. Who’d have ever thought the government would try to force the Little Sisters of the Poor, Priests for Life, and the Archdiocese of Washington, D.C., to facilitate coverage of abortion-inducing drugs and devices in their employee health plans or face millions of dollars in annual fines?

The U.S. Department of Health and Human Services has exempted well-connected wealthy corporations like Exxon, Boeing and CocaCola from complying with the mandate. But it could only muster a disingenuous “accommodation” to the Little Sisters of the Poor that would require them to sign a document authorizing the government to use their health plan to cover objectionable drugs and devices. Believing that the government’s proposal is an “accommodation” is like believing that hiring a hit man eliminates a person’s moral culpability for ending the victim’s life.

Now churches themselves are under attack. In April the New York Times quoted an activist who demanded the Church be “made” to “take homosexuality off the sin list.” Time magazine ran a column advocating that nonprofit tax status be stripped from religious groups “that dissent” from the government’s marriage policies.

Prudence requires that, given such serious threats, religious institutions take steps now to protect themselves. We should urgently encourage private schools, hospitals, ministries and other organizations we support to audit their governing documents to find weaknesses and make strategic decisions.

The Heritage Foundation recently published a special report to help ministries through this process. Protecting Your Right to Serve: How Religious Ministries Can Meet New Challenges Without Changing Their Witness is full of examples of how unsuspecting schools and other nonprofits were slapped with lawsuits on everything from housing and employment discrimination charges to licensing requirements that force professionals to violate their consciences. For example, the Equal Employment Opportunity Commission found a Catholic college in Charlotte, N.C., guilty of sex discrimination because its health plan didn’t cover contraceptives. A Catholic school in Macon, Ga., dismissed its music teacher when he announced a same-sex “wedding,” but now his sex-discrimination case is pending after an unfavorable ruling in the Supreme Court’s Obergefell decision. The Occupational Health and Safety Administration is even wielding its influence to advance “transgender rights” via a June announcement that employers must allow men who believe they are women into women’s restrooms.

Despite the discouraging actions of federal agencies and some activist judges, Americans’ strong commitment to religious liberty is reflected in our state and federal laws and our culture. States have passed their own versions of the federal law known as the Religious Freedom Restoration Act to protect what President Clinton once called “the most precious of all American liberties.”

Today religious groups can take advantage of over 2,000 religious exemptions and accommodations in state and federal law. The Supreme Court ruled in the Hobby Lobby decision that closely held family businesses cannot be forced to comply with the HHS abortion pill mandate. I’m cautiously optimistic that the Little Sisters will prevail and once again be able to focus on caring for the 13,000 elderly poor in their homes around the world.

But optimism is no substitute for preparation. Each organization’s board should conduct a “mission audit” to understand where any potential weaknesses are and to consider adjusting their governing documents to stand on a stronger legal footing. The board should take these three steps:

1.) Evaluate how well its documents and operations reflect its religious mission. 2.) Identify specific pressures it is likely to face from local, state, and federal laws and regulations. 3.) Make strategic decisions to protect the mission, better utilize protections under the law, and prepare a plan to deal with potential challenges.

The Special Report was written as a guide to help religious organizations navigate through choppy waters, but it should not be construed as legal advice. It’s wise for organizations to retain an attorney well versed in nonprofit law. If your organization can’t afford an attorney, it should consult with an experienced religious liberty legal organization that can provide pro bono services.

RYAN NICHOLS is the associate director of coalition relations at The Heritage Foundation, a leading national think tank based in Washington, D.C.

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