Churches May Get Pressure on Gay Tenets

(by Joseph Goldstein, NYSun.com) – Congress may soon call on religious institutions ranging from summer camps to charities to declare up-front whether they are unwilling to hire gay employees.

A bill that, if passed, would become the first federal law to prohibit employment discrimination against gays contains a broad exemption for religious organizations. But to qualify for that exemption, religious groups would have to declare “which of its religious tenets are significant” and must be adhered to by employees. Lawyers say this requirement could put pressure on religious organizations to state a doctrinal prohibition against homosexuality in order to continue to legally exclude gay job applicants.

“This is something new,” a law professor at George Washington University, Ira Lupu, said. The effect of such a law, Mr. Lupu said, would be that “there is no more First Amendment right to be exempt unless you want to tell us that making us hire these people is really in conflict with our religious commitments.”

In many congregations, there are deep divisions about what their religion says regarding homosexuality. Across the nation there would likely be divisions within individual congregations about whether church funds should be used to hire homosexuals. In congregations such as these, the new bill would require a firming up or a rapid formulation of such policies.

“These organizations may be perfectly happy with a sort of don’t ask and don’t tell policy,” the general counsel of the American Jewish Congress, Marc Stern, said, “but this may force groups to take one side or the other.”

If passed, the Employment Non-Discrimination Act would carry a blanket exemption for the hiring practices of religious congregations, as well as schools with a primary purpose of worship. Summer camps, nursing homes, soup kitchens, charities, and other institutions linked to a congregation would not be exempt, unless they made a declaration of significant “religious tenets.”

It is not clear whether such a declaration would need to be made up front, such as in the form of a disclaimer on a job application form, or could be made in court filings in response to discrimination suits.

“There is this latent ambiguity about how and when and where this declaration should appear,” Mr. Lupu, who is an expert on religion and the First Amendment, said.

That a law would call on a religious organization to make a declaration of “religious tenets” to qualify for an exemption would itself likely come under a First Amendment challenge, lawyers say. Courts have long been deeply hesitant to ask which tenets are central to a certain religion.

Over the years, the religious exemption has shrunk in various versions of the bill, Mr. Stern said. In 2001, the bill, as it was introduced in the House, contained a more straightforward exemption: “This Act shall not apply to a religious organization.”

The newly stated religious exemption in the current version of the bill has drawn the notice of a variety of religious organizations. In a letter sent yesterday to the House subcommittee on health, employment, labor & pensions, representatives of the Union of Orthodox Jewish Congregations of America, the United States Conference of Catholic Bishops, and the General Conference of Seventh Day Adventists said they have “serious concerns” about the current version of the bill “due to its substantial revision of the religious exemption provision.”

The letter does not go into further detail about objections, except to say “it leaves religious institutions with insufficient protection from the infringement of their religious liberties.”

The bill, known as H.R. 2015, is scheduled to be debated before the subcommittee this morning.

“It’s my intention to see this bill enacted,” the chairman of the subcommittee, Robert Andrews, a Democrat of New Jersey, said in a telephone interview yesterday.

He said that in the current version of the bill the religious exemption “is not broadened or narrowed, but restated.”

Reprinted here with permission from The New York Sun. Visit the website at NYSun.com.