Liberty or Liability: The Future of Institutional Religious Freedom
Why should government protect the ability of religious organizations to act in ways that society has decided are not right? Why protect their deviant views and actions?
The 2010 Christian Horizons decision by the Ontario Superior Court of Justice (see coverage in LexView and in Cardus Policy in Public) is an example of a troubling trend to constrict institutional religious freedom.
Religion, for all major faiths, is not only a matter of individuals and worship. It is also a matter of service to others through organizations—we can call them faith-based organizations or parachurch organizations. Religious schools, homeless shelters, health clinics, group homes, and so much more are the hands and feet of faith out in society—the structures through which believers offer a cup of cold water as well as a witness to God.
By institutional religious freedom, I mean to emphasize the legal space that such parachurch ministries require in order to maintain their religious identity, to carry on an inner life that is marked by their religious convictions, and to serve the public in a way that is shaped by those religious convictions. Institutional religious freedom is the freedom a faith-based organization requires to be faithful—to be conformed to the norms of the religion, even when those norms differ from the society's values that the government desires to enforce. This is a vital freedom if an organization is to be faith-full, full of faith—to be marked by faith in its operations, and not just its name or heritage.
Robust protection of that freedom to be different is vital in our era.
Why should institutional religious freedom be protected? Why should government protect the ability of religious organizations to act in ways that society has decided are not right? Why protect their deviant views and actions? Why protect their conviction not to offer certain medical procedures that the government has declared to be legal? Why protect their insistence on considering religion when evaluating job candidates?
Here, in brief, are four reasons. First, as I have already suggested, parachurch organizations are a major avenue through which religious believers live out their faith. If religious believers are to live faithful lives, their organizations need to be able to follow those religious convictions, even when the convictions lead to a different place than the government may desire.
Second, and closely following: for a nation actually to manifest its professed commitment to religious freedom, it must protect both worship and faith-based service, not only in the church but also in the parachurch—exactly because so much of religion takes place outside of the church in faith-based health, education, and social service organizations.
Third, institutional religious freedom is good for society because faith-based organizations contribute much to society, even in a welfare state. But that flourishing contribution will wither if parachurch organizations are hampered by being required to suppress their religion. Want the good works? Then protect the religious roots!
And fourth, it is vital for the nation that there be checks on the government, because government is not always right—and may be seriously wrong. The needed creative alternatives exist in a thriving civil society, a culture with institutions that can dissent from the society's—and governments'—popular views. A thriving civil society is one with strong and independent organizations that can protect and promote views that are unpopular, but may turn out to be right. To keep a necessary check on government, society needs alternative moral voices, and those voices will only exist if their institutional framework is protected.
Recall the American civil rights movement, in which individuals who were backed by organizations were able to think different thoughts and put into action powerful and persuasive (and non-violent!) challenges to the government, and thus correct the government's injustice. Government is not infallible. It often needs correctives. Those correctives need a social underpinning. Protecting free speech and associational rights and religious freedom are all ways of making possible real alternatives to the government's ideas—which might be deadly wrong ideas.
For at least these reasons governments should protect, not suppress, institutional religious freedom. It should protect the ability of parachurch organizations to operate differently than secular organizations. And one of the most important freedoms is for a parachurch organization to be able to use religious criteria in deciding who to hire and who to fire.
I know that this practice—which critics claim is merely an unjust freedom to engage in immoral religious job discrimination—is controversial. And yet, although their specific practices differ widely, many religious organizations take account of religion when selecting their staff.
Why is this so? Ask a politician who is dead set against religious hiring just how many people of an opposing political ideology her office should be required to hire. Should an NDP M.P. be required to ignore the fact that the eight years of policy experience the job candidate has amassed were all gained by working for a Conservative or Liberal policy group? Should a pro-choice clinic be required to hire pro-life staff members? Must an environmental group pick a climate-change denier as spokesperson? Nobody thinks so. Nor does anyone believe that a Catholic church must hire a rabbi as its new minister simply because the rabbi has the most years of education and the most worship experience.
What then of a Jewish day school, or a Catholic adoption agency, or a Muslim outreach to new immigrants, or an evangelical Protestant residential facility for disabled adults? As the saying goes, personnel is policy: those who make and those who carry out the decisions determine what, in fact, the organization stands for. Organizations, whether religious or secular, must be sure that the people making and carrying out decisions are committed to the mission and values of the organization.
Surely that is so with parachurch organizations. Religion is more than words—it is actions. It should shape the relationships within the parachurch ministry, as well as the ways it serves those who turn to it for assistance. Moreover, faith-based organizations, which are expressions of faith communities and dependent especially on those communities for donations and volunteers, are rightly concerned to display and embody the convictions of those originating communities.
In short, religious hiring by religious organizations is not invidious and mystifying and immoral. Instead, it is natural, necessary, and logical. It should be protected, not suppressed.
What now can be done? I have three suggestions.
My first suggestion is very pragmatic: Parachurch ministries simply must take a close look at their employment policies and practices, job position by job position, and state a clear rationale for why religious convictions and a religious lifestyle are important to each of those positions. If the courts may second-guess those job qualifications, then it is vital to make the case as clearly and comprehensively as possible to help that secular court make the right decision.
My second suggestion is not at all pragmatic: Proponents of religious freedom ought to work to clarify or amend the Ontario law just as Title VII of the American 1964 Civil Rights Act was amended, and for the same reason. Religious hiring by religious organizations is not immoral discrimination and ought not to be suppressed by government. Nor should the government arrogate to itself the power to decide whether religion is relevant to the various jobs in a religious organization. It would be better for religious organizations and for religious freedom if the current religious hiring exemption was made to cover every position in a religious organization—if it was made into an organizational exemption as in the U.S. And then the Bona Fide Occupational Qualification should no longer be applied to religious organizations. Instead, it should be applied only to secular organizations. It is only in secular organizations that the government and the courts should be undertaking a position-by-position review of whether religion might be, after all, a valid occupational qualification.
My third suggestion is even less practical: Parachurch ministries, faith communities, religious freedom advocates, and everyone else who understands the importance of a flourishing civil society must work to help Canadian society, Canadian courts, and Canadian lawmakers to better understand how important a very robust institutional religious freedom is to the welfare and future of the nation. How can a convincing argument be made? Where must it be made and by whom? I must leave those questions to the reader. But I am sure that it is not sufficient to wait until another parachurch organization is hauled into court, and then simply to fight in court for the legitimate freedoms of that organization. Nor is it enough, at that late date, to have even the best media commentary and informative keynote speeches. People and organizations are constantly working in Canada—and in the United States—to undermine the religious freedom needed by faith-based service organizations. Sometimes they do this because of their negative views about religion; sometimes they do this because they want to elevate other views and activities above religion. Whatever the reason, they would rather narrow than honour religious freedom. If we value parachurch service, we ought to find a way to be busy, too—to be forward—acting, taking the initiative—rather than simply hoping and praying that precious freedoms will remain strong even without our active cultivation and advocacy of those freedoms.
Lastly, a few reflections and reminders. Real religious freedom requires real institutional religious freedom—and that means protecting the ability of faith-based organizations to follow the dictates of their religion even when their religion leads them in a different place than is currently praised by society and government. It is not an actual freedom if it only allows a private group to do what the government values. There do have to be limits—to protect other organizations and to protect persons, especially vulnerable persons. But protecting persons and organizations does not require imposing a sweeping set of rigid common standards on every organization.
Also, at any particular moment, those who are making our laws are convinced they are implementing justice—that is why they are busy in public service. But that self-understanding is no guarantee that they in fact are implementing justice. Governments can be wrong—the evidence is all around us today and in history. So it is essential that government be kept within bounds and that there be in the society strong sources of alternative views. For there to be alternative views that can check governmental mistakes, the government must protect civil society institutions, including religious institutions. Remember the civil rights movement in the United States. It took the action of individuals and organizations, many of them motivated and guided by their deep religious faith, to make the government stop promoting injustice and instead begin to do justice.
Editor's Note: This is an excerpt from Dr. Carlson-Thies' full argument on the Christian Horizons decision, in Cardus Policy in Public, Winter 2010.