Trump appointees try to expand ‘ministerial exception’ beyond what law allows, critics say

By Joe Davidson,

What better time for separation-of-church-and-state arguments then during this holy season?

Protests are mounting against far-reaching Trump administration policies that could foster discrimination in the name of religious liberty in a variety of federal programs.

Rather than protecting religious freedom, opponents fear three sets of policies will inappropriately allow faith-based organizations liberty to discriminate. Faith organizations are allowed a certain level of religious bias not permitted elsewhere. Secular employers may not deny employment or services based on a person’s religion. But under the Supreme Court’s “ministerial exception” a Baptist church, for example, can’t be forced to hire a rabbi or an imam to preach Sunday sermons.

President Trump wants to push this limited exception beyond what critics say the law allows. His appointees want his plans ensconced before President-elect Joe Biden’s inauguration next month. Despite Trump’s lies about winning in November, administration officials know they have no time to tarry.

“The Trump administration is almost certainly pushing to finalize regulations prior to Biden taking office,” said Sarah Warbelow, legal director of the Human Rights Campaign.

The converging church-state debates involve separate, yet connected issues with overlapping arguments that span the government. They are “definitely related in the sense it’s part of the administration’s effort to expand religious exemptions and to license discrimination based on religion,” said Lindsey Kaley, an attorney with the American Civil Liberties Union’s Center for Liberty.

One set of proposed regulations takes effect on the eve of Inauguration Day and covers a broad swath of faith-based social service programs in nine agencies — the Departments of Education, Homeland Security, Agriculture, Justice, Labor, Veterans Affairs, Health and Human Services, Housing and Urban Development and the Agency for International Development. The new rule, drafted jointly by the agencies in response to a May 2018 Trump executive order, reflects Trump’s commitment “to protect the religious freedom and conscience rights of all Americans, including those who receive support from federal programs to do their good work,” said HHS Secretary Alex Azar.

To the contrary, according to House Committee on Education and Labor Chairman Robert C. “Bobby” Scott (D-Va.). The rule would “undermine the rights of beneficiaries, employees and students in federally funded programs,” he said in a statement, and “underscores this Administration’s fundamental misunderstanding of religious liberty as envisioned by our founders.”

Separately, a Labor Department Office of Federal Contract Compliance Programs’ rule affecting federal contractors and subcontractors says it is designed to ensure the government “respects religious employers’ free exercise rights, protects workers from prohibited discrimination, and defends the values of a pluralistic society.” The protect-and-defend parts of this mission statement could be turned upside down, opponents argue, while the rule gives too much deference to religious employers’ prejudices. The rule is scheduled to take effect Jan. 8.

“It is particularly troubling that the proposed rule seeks to so broadly expand the religious exemption that it would allow companies claiming sincerely held religious beliefs to discriminate against Catholics, Jews or, for example, LGBTQ individuals, pregnant and unmarried women, interracial married couples, divorced men and women, and other workers who do not conform to their employers’ beliefs,” Scott wrote to Labor Secretary Eugene Scalia on Sunday. “For the first time ever, for-profit companies, not just religious nonprofit organizations, would be allowed to use taxpayer dollars to discriminate on the basis of religion or religious beliefs in federal contracts.

A proposed update to an Equal Employment Opportunity Commission (EEOC) compliance manual says the new language “provides guidance to employers on how to balance the needs of individuals in a diverse religious climate.”

But organizations from American Atheists to the Union for Reform Judaism, from the NAACP to the Women’s Law Project, are urging the EEOC to withdraw the proposed guidance because, among a long list of objections, it “takes an expansive, unsupported view of the range of entities that qualify as ‘religious organizations.’ ”

In their Dec. 17 letter to the EEOC, the last day of a public comment period, the 44 groups told the commission it should abandon its “Proposed Updated Compliance Manual on Religious Discrimination” because it “would be especially detrimental to the employment rights of women, people of color, LGBTQ persons” and others, including non-believers. The coalition includes far more than the 44 signers because one group, the Leadership Conference on Civil and Human Rights, claims more than 220 member organizations.

House and Senate Democrats accused the EEOC of a “rushed and limited process” to clear the update because time for public comment and consideration by the presidentially appointed commissioners was restricted. The process was a “woefully insufficient way to engage the public on the complicated and novel legal theories” of the revision, said a letter from House Judiciary Chairman Jerrold Nadler (D-N.Y.); House constitution, civil rights, and civil liberties subcommittee chairman Steve Cohen (D-Tenn.); and Sen. Dianne Feinstein (D-Calif.), ranking member on the Senate Judiciary Committee. The EEOC did not respond to a request for comment.

Trump’s 2018 executive order established a White House Faith and Opportunity Initiative and directed agencies to designate a liaison for related programs.

“All agencies shall, to the extent permitted by law,” the directive added, “provide such information, support, and assistance to the Initiative as it may request to develop public policy proposals.”

But how much government support and assistance to religious organizations is permitted in a nation guided by the separation of church and state?

Not as much, perhaps, as Trump wants.

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