In Defense of Religious Liberty

Across the street from the First Christian Church of Fredericksburg, VA, the Thomas Jefferson Religious Freedom Monument stands in tribute to the Virginia Statute for Religious Freedom written by Thomas Jefferson and passed by the Virginia General Assembly on January 16, 1786.

Fifty-three miles to the north in Washington DC, an excerpt from the statute is inscribed on the northwest interior wall of the Jefferson Memorial (cover photo). It includes, “No man shall be compelled to frequent or support religious worship or ministry or shall otherwise suffer on account of his religious opinions or belief, but all men shall be free to profess and by argument to maintain, their opinions in matters of religion.”

The statute served as the forerunner of the First Amendment protections for religious freedom incorporated into the Bill of Rights in 1789 that read “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”1

We indulge in this brief history lesson and monument tour because in 2021, just a short e-scooter ride from the Jefferson Memorial debates wage in the legislature over the interpretation and application of protections for faith organizations that are rooted in the First Amendment’s opening clause.

Sponsored by members of the Democratic Party, two pieces of legislation in question are the H.R. 5 Equality Act and the reintroduced H.R. 1378 Do No Harm Act.

According to the Americans United For Separation of Church and State, “The Equality Act builds on our nation’s existing civil rights laws to expand comprehensive nondiscrimination protections in employment, housing, public accommodations, government services, health care, education and other areas of life for LGBTQ people, women, people of color, immigrants and religious minorities...while the Do No Harm Act (serves to) prevent the Religious Freedom Restoration Act of 1993 (RFRA) from being misused to get out of complying with a wide range of laws that protect people from harm.”2

But opponents of these bills point to the omission of exemptions for religious institutions as a direct threat to churches, schools and other ministries that could prevent them from living out biblical beliefs on marriage, sexual morality, and gender.

While Title VII of the 1964 Civil Rights Act and the RFRA still provide a level of exemption for faith-based organizations from discrimination in hiring on the basis of religion, I asked David Gibbs III, who serves as the president and general counsel of the National Center for Life and Liberty (NCLL) - a legal ministry that protects the rights of churches and Christian organizations nationwide - what churches can do to prepare now to reduce the risk of litigation in the future.

“I think it all goes back to good policies, good procedures, and the way the organization implements these policies and procedures,” said Gibbs. “Churches should take a good look at their bylaws and statement of faith, their code of conduct and make sure that there are things that are not just implied, but are actually stated.”

Gibbs points out, “Their Statement of Faith and Code of Conduct need to make it very clear what is a sincerely held religious belief for that organization and how it impacts their hiring, usage of their facilities and enrollment in their Christian school. All of those things are going to become a bigger part of the legal concerns churches and ministries will face in the future.”

Under the proposed pieces of legislation, it appears liberties that are under scrutiny for faith-based organizations are employment practices (being able to decline an application from someone on the basis of non-compliance with faith standards), facilities (bathroom and locker room use), and other gender identity issues for schools, such as sports participation. The NCLL is doing their part as well to prepare for future possibilities.

“It's about making sure that our voice is heard in Washington and at the state level,” said Gibbs.

“It's also making sure that we put the right protections in places for our ministries and churches to ensure that all of the right policies, procedures, and documentation is put in place so that it can be something that's defensible, and when pursued in court that we have a good chance to secure a victory.”

There are a few insurance companies that have developed liability coverage to help protect insureds from claims for emotional distress and discrimination should a church’s observance of its religious beliefs come in conflict with those who don’t share the same religious values. One of our carriers, GuideOne offers Religious Expression Liability.

“Our society is divided on a wide variety of social issues, and some religious organizations experience negative impact based on their theological views around these social issues,” said GuideOne Senior Risk Manager Brian Gleason.

“Our Religious Expression coverage is designed to respond to claims for emotional distress damages brought against a religious entity because of that religious organization’s exercise of its deeply held religious beliefs.

He continued, “As a church, your organization develops its religious practices based upon its doctrines and beliefs. However, there may be occasions when the church’s practices conflict with a person’s individual interests. When the conflict occurs, and an individual alleges damages, the individual may be inclined to seek redress through the courts.”

To learn more about protecting your Religious Freedoms, please contact me at paul@insurance.church

Thomas Jefferson and the Virginia Statute for Religious Freedom. Virginia Museum of History & Culture. www.virginiahistory.org/learn/thomas-jefferson-and-virginia-statute-religious-freedom

Do Not Harm Act FAQs Feb. 2021 pdf. Americans United For Separation of Church and State. www.au.org/sites/default/files/2021-03/Do%20No%20Harm%20Act%20FAQs%20Feb.%2020