Explainer: USDA allows religious schools to receive lunch funding without violating their beliefs
By / Aug 18

On May 5, the United States Department of Agriculture (USDA)’s Food and Nutrition Service (FNS) issued new guidance involving sexual orientation and gender identity language requirements. It stated that “it will interpret the prohibition on discrimination based on sex found in Title IX of the Education Amendments of 1972, and in the Food and Nutrition Act of 2008, as amended, Supplemental Nutrition Assistance Program (SNAP), formerly the Food Stamp Program (7 USC § 2011 et seq.), to include discrimination based on sexual orientation and gender identity.” FNS is responsible for administering the USDA food assistance programs, including those related to schools, such as the School Breakfast Program and the National School Lunch Program (NSLP). 

This interpretation comes as a result of President Biden’s Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation and is believed by FNS to be an outworking of the Supreme Court’s 2020 Bostock decision that found the prohibition of “sex” in Title VII of the Civil Rights Act to include sexual orientation and gender identity. Though the Bostock case dealt with Title VII, which involves employment discrimination, FNS believes that this same interpretation of “sex” also applies to Title IX, which deals with educational activities.

This means that these FNS school meal programs, which are subject to Title IX civil rights law preventing discrimination on the basis of sex, now also ban discrimination on the basis of sexual orientation and gender identity. In order to receive funding for meal programs operated by USDA’s FNS, state and local agencies, schools, lunch program operators, and sponsors now must update their non-discrimination policies and signage to explicitly prohibit discrimination based on sexual orientation and gender identity.

Why is this problematic?

While it is troubling to see continued efforts to push gender ideology in ways that contradict a biblical view of human sexuality, this new guidance was particularly problematic in that it did not provide a robust exemption for religious schools or other faith-based programs that participate in FNS-funded meal programs. Title IX’s religious exemption is automatically granted to religious schools without any type of action required from either the school or government. Recently, this interpretation of the exemption was affirmed in a case involving Fuller Theological Seminary.

Despite Title IX’s strong protection for religious schools and faith based organizations, the USDA insisted that religious schools that object to this guidance must submit a written declaration to the secretary of agriculture identifying the provisions within the rule that conflict with a specific tenet of the religious organization. Additionally, it was unclear whether these schools would face penalties if they did not comply while their exemption letter was being considered. 

In 2019, the NSLP provided free or reduced price lunches to 29.6 million children every day. A significant number of those children attend religious schools that maintain deeply-held religious beliefs in contradiction to this understanding of sex and gender. Many of these schools were beginning their academic years with great uncertainty as they faced difficult decisions: will they violate their deeply-held religious beliefs or risk the loss of funding for some of the most vulnerable children enrolled in their schools. Already, one religious school, represented by our partners at Alliance Defending Freedom, was forced to sue in order to be granted their exemption.

Additionally, more than 20 state attorneys general have filed a lawsuit against USDA, contending that the department’s interpretation of Title IX would cause the plaintiff states to lose federal funding for the National School Lunch Program and the Supplemental Nutrition Assistance Program (SNAP). The lawsuit accuses Biden of asking federal agencies to rewrite federal law, and the attorneys general allege that the USDA ignored procedural requirements and misconstrued federal code in issuing its directives.

What changed?

On Friday, Aug. 12, the USDA issued a clarification stating that it would reinstate the broad Title IX religious exemption that automatically applies to religious schools and faith-based institutions without the step of a written request. This clarification comes after months of work from religious liberty advocates and is a substantial victory for religious institutions and people of faith who do not want to compromise their most fundamental beliefs as they work to serve their neighbors in the public square.

Religious schools are on the front lines of caring for some of the most vulnerable children across the country, and the ERLC will continue to advocate for their ability to faithfully fulfill their mission without risking the welfare of the most vulnerable children enrolled in their schools or sacrificing their deeply-held beliefs on issues of gender and sexuality. 

Explainer: Supreme Court hears challenges to Biden administration’s vaccine mandates
By / Jan 7

Today, the U.S. Supreme Court will hear oral arguments in emergency requests challenging the Biden administration’s vaccine mandates. The justices have declined to hear oral arguments in cases regarding state-level mandates, and this is the first case related to vaccine mandates they have agreed to hear. 

What are the Biden administration’s vaccine mandates?

There are two vaccine mandates that the Biden administration has issued — one dealing with large employers and the other dealing with healthcare workers. 

OSHA vaccine mandate

On Nov. 4, the Biden administration, through the Occupational Safety and Health Administration (OSHA), issued a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The stated purpose of this rule is “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.” The intent to issue this rule was announced in September by President Biden, but the text of the rule was issued in November.

The rule states that “covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”

In short, the rule requires employers with 100 or more employees to submit their employees to weekly COVID-19 testing and masking requirements, or the employees can opt to receive one of the three vaccines that are approved or authorized for the prevention of COVID-19 in the U.S.: Pfizer, Moderna, or Johnson & Johnson.

The OSHA rule will affect approximately 84 million private-sector workers across the country, including some 31 million who are believed to be unvaccinated.

It’s important to note that this rule doesn’t require an employee to receive the vaccine, but if they choose not to be vaccinated, they must undergo testing every week. 

CMS vaccine mandate

The second vaccination mandate is issued from the Centers for Medicare & Medicaid Services (CMS) and requires COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. 

The key difference between the two mandates is that the OSHA mandate allows weekly testing as an alternative to receiving the vaccine.

Are there religious exemptions?

There are three exemptions listed in the OSHA rule:

  1. For whom a vaccine is medically contraindicated;
  2. For whom medical necessity requires a delay in vaccination; or
  3. Who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

While there are stated religious liberty exemptions, it is concerning that the ETS requires each covered employer to establish and implement their own written policy regarding religious exemptions. With this rule, each employer is effectively tasked with creating their own policies, and there will be thousands of different policies throughout the country, leading to inconsistent application and confusion. The proposed OSHA rule doesn’t offer any guidance for how to structure exemptions for objectors who have sincerely held religious beliefs.

The CMS rule also allows for religious exemptions and states that “employers have the flexibility to establish their own processes and procedures, including forms.” It also states, “we point to The Safer Federal Workforce Task Force’s ‘request for a religious exception to the COVID–19 vaccination requirement’ template as an example.”

How did these cases reach the Supreme Court?

After the OHSA mandate was issued, the U.S. Court of Appeals for the 5th Circuit ordered a stay of the vaccine mandate and halted enforcement. According to the Alliance Defending Freedom, 

“ . . . multiple lawsuits were filed all over the country, allowing the government to seek a consolidation and transfer to a randomly designated court. The 6th Circuit was selected to handle the consolidated OSHA case. The three-judge panel for the 6th Circuit lifted the stay previously issued by the 5th Circuit that had halted enforcement of the vaccine mandate for private employers with 100 or more employees. In a separate order only days before, a group of eight judges on the 6th Circuit indicated their view that the mandate is unlawful.”

OSHA has stated that it will be exercising “enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Following decisions by the Court of Appeals for the 5th, 8th, and 11th Circuit, the United States District Court and the Northern District of Texas, the CMS vaccine requirement is preliminary enjoined in 25 states. CMS announced that those states are not required to comply, pending further developments in litigation. However, in the states and the District of Columbia, the rule will be implemented and enforced, following a modified timeline. The deadline for implementing Phase 1 is Jan, 27, 2022, and the deadline for Phase 2 implementation is Feb. 28, 2022.

How does this affect SBC entities?

On Nov. 5, the Southern Baptist Theological Seminary (SBTS) and Asbury Theological Seminary filed a petition with the U.S. Court of Appeals for the 6th Circuit to challenge the OSHA rule. Dr. Albert Mohler, president of SBTS, stated that “it is unacceptable for the government to force religious institutions to become coercive extensions of state power. We have no choice but to push back against this intrusion of the government into matters of conscience and religious conviction.”

According to the Alliance Defending Freedom, 

“ . . . the lawsuit The Southern Baptist Theological Seminary v. Occupational Safety and Health Administration, alleges that the Biden administration lacks jurisdiction to dictate employment practices to religious institutions, lacks constitutional and statutory authority to issue the employer mandate, and that the mandate failed to meet the required procedural hurdles. In short, the federal government cannot coerce individuals nationwide to undergo medical treatment, and it lacks authority to conscript employers to compel that result.”

The Southern Seminary lawsuit has been consolidated with multiple other cases that now make up the OSHA case SCOTUS is hearing today, with the Alliance Defending Freedom representing the groups.

Additionally, the CMS vaccine mandates impacts faith-based organizations such as the Baptist Homes and Healthcare Ministries, Christian ministries that provide independent living and skilled nursing care to the ageist and elderly.  

Is this the proper role of the government?

These rules raise questions and concerns about limits of government regulation both in terms of public health and safety measures. While governments do have heightened responsibilities during a public health crisis, the state must not use public health emergencies to overstep and exert authority that the Constitution has not entrusted it with.

How will the ERLC engage?

The OSHA interim final rule is open for public comments through Jan. 19, 2022. As we have done on previous occasions with proposed rules affecting churches and religious organizations, the ERLC will submit public comments expressing concerns with the scope of the regulation on behalf of our convention of churches. 

How should Christians think about this?

The ERLC has emphatically stated since the beginning of this public health challenge that government officials should opt for providing guidance over mandates, while at the same time seeking to uphold the free exercise of religion. Elected officials and local health experts should be actively partnering with pastors and churches to serve local communities as this pandemic rages on.

Explainer: Supreme Court denies religious exemption request from Maine workers
By / Oct 30

The U.S. Supreme Court denied a request for a religious exemption to the state of Maine’s COVID-19 vaccine mandate for healthcare workers on Oct. 29. The mandate, announced in August by Gov. Janet Mills, required that all healthcare, nursing home, and EMS workers receive their final vaccine dose by Sept. 17, 2021. A group of healthcare professionals at Northern Light Health opposing the vaccine requirement filed suit on religious grounds.

Earlier in October, a federal judge ruled against the challenge and a three judge panel at the First U.S. Circuit Court of Appeals agreed with that ruling. At the time of the initial ruling, 97% of the workers at Northern Light Health were fully vaccinated, and 130 workers had already resigned in protest of the state’s mandate order. The Supreme Court initially rejected an emergency request to intervene but left another opportunity for appeal before the order went into full effect on Oct. 29. The healthcare workers then filed that appeal to the Supreme Court, which took up the case on what is called the “shadow docket” –– which, as explained on a previous case, is a “procedure for expedited review of emergency proceedings that fall outside of the normal rhythm of oral arguments and decisions many are accustomed to.”

Why did the court rule against the healthcare workers?

The denial of the application for injunctive relief was handed down in a 6-3 decision. Because the court took this case up via the shadow docket, a traditional written opinion from the majority was not provided with the decision. However, some insight may be gleaned from a concurrence offered by Justice Amy Coney Barrett, joined by Justice Brett Kavanugh. She writes, “applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument. In my view, this discretionary consideration counsels against a grant of extraordinary relief in this case, which is the first to address the questions presented.” 

In other words, it appears at least some justices among the six voting to deny the application were uncomfortable reviewing this case on an expedited basis and thereby not having the customary information presented to the court.

What makes this case unique?

This case, John Does 1-3 v. Mills, has some similarities to previous cases the justices have rejected, such as the recent appeal from New York City teachers and, prior to that, a challenge from Indiana University staff and students. 

Unlike those cases, though, the Maine requirement does not contain an exemption for religious reasons, though it does for medical reasons. This difference was central to the argument of the dissent authored by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Samuel Alito. 

The dissent states, “This Court has explained that a law is not neutral and generally applicable if it treats ‘any comparable secular activity more favorably than religious exercise.’ Tandon v. Newsom . . . The State allows those invoking medical reasons to avoid the vaccine mandate on the apparent premise that these individuals can take alternative measures (such as the use of protective gear and regular testing) to safeguard their patients and co-workers. But the State refuses to allow those invoking religious reasons to do the very same thing.” 

The justices in the minority contend this should have led the court to apply a strict scrutiny test to the Maine requirement, meaning the state would have to demonstrate the mandate “serves a compelling interest and employs the least restrictive means available for doing so.” Ultimately, a majority of the court did not take this approach and thus denied the application by the healthcare workers. 

What does this mean for religious exemptions?

This result does not mean the challenge by the Maine healthcare workers is over. According to the Wall Street Journal, the decision “means a lower-court order upholding the mandate remains in place while the workers appeal through normal channels.” In all likelihood, additional challenges to other vaccine requirements will continue to materialize in the courts.

As Christians consider these cases, a previous ERLC resource, “Why Christians should navigate questions of vaccine mandates and religious exemptions with wisdom,” produced by Jason Thacker, who leads the Research Institute, is applicable. In this piece, Thacker writes:

Certain faith groups and denominations have claimed religious exemptions based on sincere religious convictions for various medical interventions; have consistently argued over time against the use of vaccines; or may have certain moral objections to the COVID vaccines in particular. Yet, pastors and ministry leaders must be aware that some people may seek a religious exemption to these mandates not out of any direct or meaningful religious objection or issue of faith but out of a desire to disregard the mandates that have been common throughout our nation’s history and frequently upheld by the courts.

According to Alliance Defending Freedom (ADF), an organization that has long advocated for religious freedom throughout our society, “(US) Courts have ruled for over a century that the government may require mandatory vaccines in certain circumstances. Religious objectors may be entitled to accommodations in some circumstances.” ADF also encourages anyone seeking these types of religious accommodations or exemptions from vaccine mandates to seek to determine whether one’s objections actually rise to the level of a religious objection, not simply a medical, social, or political objection. ADF states that “many people have medical or other concerns which do not rise to the level of an actual religious belief. A belief that taking a vaccine is unwise or could be harmful will normally be considered a medical or health objection, not a religious objection.” Defined claims to religious objection must be taken seriously, but claiming a religious objection is no guarantee that public or private entities will recognize it.

As this case and others progress, the ERLC will continue to monitor all developments related to religious liberty and advocate for this first freedom in the courts, on Capitol Hill, and in our culture.

Why Christians should navigate questions of vaccine mandates and religious exemptions with wisdom
By / Aug 26

Between the initial outbreak of COVID-19 in winter 2019 and the subsequent worldwide pandemic that has killed over 4.4 million, the astounding speed at which treatments and vaccines for this deadly virus have been developed is nothing short of miraculous. This speed is due in large part to the concerted and concentrated efforts by governments, medical providers, researchers, local communities, and pharmaceutical companies around the world. In the United States, Operation Warp Speed and other major government interventions have propelled the rapid, yet safe development of these life-saving vaccines as well as the incredible free and open distribution to all those eligible.

While some have raised specific concerns about the safety, timeline, or even the processes used in their creation, the evidence is clear that these vaccines are safe and effective. This was seen most recently in the announcement from the Food and Drug Administration in the United States which gave the first full approval to the Pfizer-BioNTech vaccines. Many of the pressing concerns and ethical quandaries have been addressed by medical professionals, as well as Christian ethicists, who support their use and wide distribution throughout society.

With COVID cases still on the rise across the nation due to the delta variant, low vaccination rates in many parts of the country, and the widespread free access to these medical marvels, many businesses and organizations — both in the private and public sector — are beginning to plan for or institute vaccine requirements in order to combat the severity of these outbreaks. Vaccine requirements have recently been announced for those in crucial fields such as healthcare, the military, schools, and other large organizations in recognition of the high-risk situations in which those in these fields operate and for the safety of all involved, including their families and individuals medically unable to get a vaccine. The decision to require vaccinations is serious and consequential — especially for those vaccines that have not received full FDA approval and are being used on emergency authorization.

Vaccines and negative tests

While some communities, businesses, and organizations have decided to require either some proof of vaccination or a recent negative test for access to specific services or amenities, a widespread federal mandate is still unlikely to be announced at this point. As businesses and organizations begin to think through requirements for vaccines, often in combination with negative diagnostic tests, it is important to remember how politically charged this entire situation has become. From rampant COVID-19 disinformation to the political scoreboard often being used to evaluate these public health decisions, any type of mandate will likely receive considerable pushback from some employees — whether spawning from true medical or religious concerns, or fears and misunderstandings based on misinformation. 

As individuals inquire about exemptions, it would be wise for businesses and organizations to encourage these members of their team to meet with their doctors and direct them to outlets with credible information on the life-saving nature of these vaccines. This is especially important as they make personal healthcare decisions that not only affect themselves but those they will interact with in public. Providing space for open dialogue, addressing concerns, and providing certain accommodations based on true medical or religious objections may also help to temper some of the politicization of these debates as we seek to prioritize the health and safety of our communities.

The gravity of religious exemptions

As the likelihood of vaccine requirements for certain aspects of society become more of a reality, many pastors and church leaders will also be involved in these decisions because people may seek religious accommodation in order to not take the vaccine. Certain faith groups and denominations have claimed religious exemptions based on sincere religious convictions for various medical interventions; have consistently argued over time against the use of vaccines; or may have certain moral objections to the COVID vaccines in particular. Yet, pastors and ministry leaders must be aware that some people may seek a religious exemption to these mandates not out of any direct or meaningful religious objection or issue of faith but out of a desire to disregard the mandates that have been common throughout our nation’s history and frequently upheld by the courts.

According to Alliance Defending Freedom (ADF), an organization that has long advocated for religious freedom throughout our society, “(US) Courts have ruled for over a century that the government may require mandatory vaccines in certain circumstances. Religious objectors may be entitled to accommodations in some circumstances.” ADF also encourages anyone seeking these types of religious accommodations or exemptions from vaccine mandates to seek to determine whether one’s objections actually rise to the level of a religious objection, not simply a medical, social, or political objection. ADF states that “many people have medical or other concerns which do not rise to the level of an actual religious belief. A belief that taking a vaccine is unwise or could be harmful will normally be considered a medical or health objection, not a religious objection.” Defined claims to religious objection must be taken seriously, but claiming a religious objection is no guarantee that public or private entities will recognize it.

Pastors and ministry leaders need to take caution in counseling or even endorsing these types of exemptions because of the gravity of the moral and conscience-based issues involved. Not only can it be disingenuous to claim a religious exemption when one is not present, but spurious claims can also damage the integrity of other religious freedom assertions in the future and what level of trust religious organizations still have in society. 

Many denominations, including the Southern Baptist Convention, have long supported vaccines, advocated for their use, and even assisted in distribution. In recent decades, the International Mission Board has become one of the largest vaccine-givers — beginning with the ground-breaking polio vaccines in the 1950s — throughout the eastern United States. This is due to the necessity of vaccines in order to send missionaries across the world to share the hope of Christ to the nations.

Therefore, pastors and ministry leaders should proceed with caution if asked to give counsel or endorse a religious exemption claim to vaccine mandates. While this will come down to the discretion and wisdom of specific leaders, it is paramount that pastors understand the gravity of their counsel and the consistency of opposition. While ADF notes that it is “inappropriate for an employer to demand that an employee support their religious accommodation request with statements from the employee’s church or clergy” according to Title VII of the Civil Rights Act of 1964 as amended by the Equal Employment Opportunity Act of 1972, pastor and ministry leaders will likely be asked in certain cases to defend or support a religious exemption based on social, political, or medical concerns. This can put the church and its leaders in difficult circumstances, especially in terms of ethical and integrity issues.

Standing for religious freedom and wisdom

The situation we find ourselves in today with COVID-19 is dire as many of our hospitals hit maximum capacity and medical professionals begin to suffer extreme exhaustion, putting a massive strain on the local healthcare infrastructure. Thousands upon thousands have lost their lives and many more lost their livelihoods due to the measures enacted to contain the spread of this unrelenting virus. And by God’s grace, we now have solutions in order to mitigate the widespread impact of this pandemic.

Pastors and ministry leaders have already been under enormous stress due to ministry in these chaotic times. The prospect of sorting through yet another pandemic-related dilemma is also daunting. Still, it is important to remember that approaching questions about religious liberty claims is something of deep consequence. We must not allow or give support to mere personal or political preferences masquerading as religious liberty claims. Indeed, doing so is not only morally disingenuous but also can do long-term damage to the credibility of pastors, churches, and Christian institutions in our communities. At the same time, pastors should graciously and patiently consult with those seeking such exemptions or accommodations in order to determine whether the request is predicated on sincere religious grounds. 

Religious liberty is fundamental to the Christian faith and American life. It is a right that our government is designed to recognize and uphold, but also a right that must be guarded and respected given other deeply concerning religious freedom violations we have experienced over the years. As we continue to address questions about vaccines and mandates, Christians should strive to base our decisions not on politics or hearsay but on sound biblical reasoning and the best information available.