Nothing Is New under the Sun – Even after the Election
Published in INSIGHT - Spring 2017
By Nathan A. Adams, IV
On November 8, 2016, a lot changed for the faith-based community and a lot stayed the same. The election of President Donald Trump caused federal enforcement priorities abruptly to shift. The GOP picked up five state House chambers and two state Senates. Republicans increased their majority of governorships to 33 from 31. The election changed all of this but none of the key long-term cultural or legal trends that should be prompting churches urgently to put their legal houses in order. The Free Exercise Clause is no stronger than before the election and employment, negligence, contract, privacy or counseling lawsuits – just to name a few – are just as common now as before November 7, 2016.
It is as important now as ever for churches to adopt a strategy that secular organizations are essentially required to follow in many industries: implement a compliance plan. What is a compliance plan? It is an enterprise-wide program to coordinate, manage, and monitor internal and external risks associated with regulatory compliance. By identifying and prioritizing risks, churches can work to mitigate or eliminate them and, thus, steward their resources. The risks that are left will be the known costs of doing ministry. In contrast, liability that churches incur from risks unknown to the ministry is more commonly a result of mismanagement than unpredictability.
We have a badly divided country and a growing number of religiously unaffiliated “nones” consisting disproportionately of millennials and comprising nearly one-quarter of the U.S. adult population. More are as willing to sue churches as any commercial establishment. Support for religious liberty is badly eroded. As an example, a little more than one month before the election, Pew Research reported that Americans are nearly evenly divided on whether wedding-related business should be required to serve same-sex couples. Oklahomans who voted in Republicans at virtually all levels of government voted against repealing a constitutional provision with an anti-Catholic pedigree requiring the state to discriminate against religious institutions in relation to state-funded social service programs.
At all levels of government, policymakers and voters are split about the propriety and proper scope of exempting or waiving otherwise generally applicable laws such as antidiscrimination or immigration statutes adversely impacting churches. The late Justice Scalia, writing for the majority of the U.S. Supreme Court in 1990, began the debate by holding that the Free Exercise Clause does not relieve an individual of the obligation to comply with these types of laws, whereas the court had previously ruled that government infringements on religious exercise must serve a paramount public purpose and be pursued in the least restrictive manner. Religious liberty bills that would have statutorily restored the old standard have failed in several states recently on the grounds that religious freedom is itself discriminatory.
In light of these trends, churches should still be busy considering ways to improve their policies and practices relating to employment, governance, operations, fundraising and finances. They can borrow chapter and verse from secular companies that have learned separately to incorporate different enterprises to protect assets, maximized their available affirmative defenses against employment liability, protected against cyber-attacks, put in place compliance committees as part of their governance structure, and enacted strict conflict of interest and ethics protocols.
This is not to denigrate the importance of the shift underway in federal enforcement priorities. In the next few years, the church can expect the U.S. Department of Justice to more aggressively oppose infringements on religious freedom that conservatives have opposed. A draft Executive Order (EO) of President Trump would require the executive branches to recognize a broad scope for religious freedom applicable to “all activities of life,” not limited to religious exercise that takes place in houses of worship or the home, and not confined to conduct that is required or compelled by sincerely-held religious beliefs.
Prior to the election, conservative churches feared that they might lose their tax-exempt status if they continued to believe and speak out on sensitive topics such as homosexual rights. Federally-funded faith-based child welfare services faced discrimination; and some religious non-profits enrolled in federal programs feared that they might not be able to take their religious convictions into account when hiring. The draft EO resolves these concerns; provides relief from the contraceptive coverage mandate; and would preclude federal agencies from promulgating regulations, taking actions or enacting policies in violation of the old religious liberty standard. The draft EO’s definition of a “religious organization” would even include a closely-held for-profit corporation operated for a religious purpose, even if the corporation’s purpose is not exclusively religious.
Of course, the draft EO may not be signed in its current form or at all. Even if it is signed, the last couple of months remind us that EOs can be easily undone in the absence of intervening statutory or constitutional change. Different federal enforcement priorities mean that some churches could benefit from the EO for speaking out on different sensitive topics such as immigration while others may confront entirely new public policy concerns. Churches will still be bound by state constitutions like Oklahoma’s no-aid clause and state statutory law. They will have to contend with the bevy of day-to-day legal risks totally unaffected by this election. A compliance plan is essential to identify, rank and begin to address all of these bases for ministry-impacting and even ministry-ending liability.
Regrettably, most churches are not even aware of the legal risks with which they daily gamble. They are naked in the public square, oblivious to the reality that the culture has stripped them of their preferred status, woefully under-prepared for legal challenges, and badly under-lawyered. Many have no real budget for legal compliance. Other churches are aware of the risks, but put off addressing them. Whereas “business as usual” in the secular world entails legal compliance, ministry for churches is commonly considered above this. One way or another churches will learn that legal compliance is, to the contrary, central to conducting ministry, and that it is better to have a prayer and a plan – specifically, a compliance plan.