Author archives: Travis Weber, J.D., LL.M.

Congressional Leadership Hijacks Ukraine Aid to Push Progressive Agenda

by Travis Weber, J.D., LL.M.

March 9, 2022

Russia’s assault on Ukraine is saturating the news, airwaves, and the public’s focus. It’s understandable that people want to help, and are helping, provide relief and aid to Ukraine. It’s also sensible for Congress to want to help. It’s for this reason (the political pressure to provide relief) that Democratic leadership in Congress wants to combine aid to Ukraine with their domestic social policy preferences in one giant stew of government spending called “the omnibus.”

There are reasons to resist simply going along with this bill.

For one, the omnibus bill contains a problematic reauthorization of the Violence Against Women Act (VAWA). Congress passed VAWA in 1994 to improve the criminal justice response to domestic violence, sexual assault, and stalking and increase the availability of victims’ services. These are admirable aims. But when VAWA was last reauthorized in 2013, language was added (and is in the current reauthorization text) that mandates harmful gender identity ideology, maintains Planned Parenthood’s ability to obtain VAWA grants, selectively applies grant money, and could open the door to funding abortion more directly. You’ve probably heard about biological men competing in women’s sporting events on the basis of “gender identity” and how that is negatively impacting woman athletes. Under the VAWA reauthorization, battered and vulnerable women would face another threat of the same type—that of biological men who identify as women entering private spaces in women’s shelters.

The omnibus bill also turns a program designed to help women succeed financially around the globe into a “Gender Equity and Equality Action Fund.” This new program, backed by previous commitments by the Biden administration to promote gender ideology around the world, will open the door wide for the administration to push a harmful ideology in places like Eastern Europe at a time when security should be the focus. This program will also pave the way for the international abortion industry to continue erroneously promoting abortion as necessary for women’s economic empowerment.

Providing funds to Ukraine is a sensible and laudable goal, and we understand that our government also needs to be funded. However, there is a simple solution: peel off Ukraine (as the House appears to be doing) from other funding. And to completely fix the problem, cut all the substantive policy changes (like VAWA) that have been tacked on to what is supposed to be a spending bill. The current text is 2,741 pages long and has so many sections that it runs through the entire alphabet once and has to start over.

Streamlining the text (and process) along these lines will, in theory, prevent what should be a bipartisan appropriations process from turning into a fight for a partisan wish list.

Congressional Democrats Trying to Cram Activist Bill into Spending Package

by Travis Weber, J.D., LL.M.

March 8, 2022

While Ukraine burns, Democrats in Congress are busy looking for partisan opportunities, like trying to cram the radical Violence Against Women Act (VAWA) reauthorization into the text of the Omnibus spending package currently under negotiation.

We all are familiar with the fallout of biological men competing in women’s sports on the basis of “gender identity.” Yet, battered and vulnerable women face another threat from the same ideological source—that of biological men who identify as women entering private spaces in women’s shelters.

As we have observed:

Congress passed VAWA in 1994 to improve the criminal justice response to domestic violence, sexual assault, and stalking and increase the availability of victims’ services. These are admirable aims, but unfortunately, when VAWA was last reauthorized in 2013, language was added that prevented it from achieving these important goals. The current reauthorization text of S. 3623 continues and exacerbates these problems by mandating harmful gender identity ideology, maintaining Planned Parenthood’s ability to obtain VAWA grants, cordoning off certain grant funds to be used for only limited purposes and limited pools of victims, and now possibly opening the door to fund abortion more directly. In short, S. 3623 would harm the very women VAWA should be protecting.

This bill is bad enough and should be opposed on its own terms. To try to rush it into last-minute spending negotiations is unconscionable.

H.R. 1: A Religious Test for Redistricting?

by Travis Weber, J.D., LL.M.

March 3, 2021

Tucked away in H.R. 1, a bill intended to enact sweeping election reforms, is a problematic religious test for public service—this time on redistricting commissions set up by the bill.

H.R. 1 requires states to establish a nonpartisan agency in the state legislature. This nonpartisan agency will establish an independent redistricting commission to organize electoral districts.

Section 2412 establishes eligibility criteria to serve on the redistricting commission. Any individual applying to serve on the redistricting commission must provide personal information, including:

The reason or reasons the individual desires to serve on the independent redistricting commission, the individual’s qualifications, and information relevant to the ability of the individual to be fair and impartial, including, but not limited to—

(I) any involvement with, or financial support of, professional, social, political, religious, or  community organizations or causes [emphasis added].

While it may appear minor, this is incredibly problematic because it suggests that religious affiliations may affect an individual’s ability to be impartial, and thereby may make them ineligible to serve on the commission. This is not only discriminatory, but also unconstitutional.

Article 6, Clause 3, of the U.S. Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” This is a tradition that has protected religious believers from discrimination for centuries. It is critical that we preserve the integrity of this constitutional clause and refuse to allow religious tests to become enshrined in law through H.R. 1.

As cancel culture rages, it is easy to see how this provision will be utilized to target conservative Christians, whose biblical values are increasingly at odds with the culture’s embrace of certain favored ideologies. When Judge Amy Coney Barrett was chosen to be a Supreme Court Justice, the Left relentlessly called her eligibility for the office into question based on her informal affiliation with a Catholic prayer group.

Provisions like this one only legitimize that shameful argument. The subtle religious test in H.R. 1 is just another reason Congress should reject this bill.

Senate Democrats: Tone-Deaf on Religious Freedom

by Travis Weber, J.D., LL.M.

October 14, 2020

Throughout the last several days of Senate Judiciary Committee Democrats using Amy Coney Barrett as a political prop for their re-election campaigns (and antagonism toward President Trump), Senator Mazie Hirono from Hawaii turned in one of the worst performances on day three of the confirmation hearing—exhibiting a tone-deafness to religious freedom that was almost bizarre.

Among her list of cases on a giant poster-board supposedly showing that the sky would fall if Barrett is confirmed, Hirono included South Bay United Pentecostal Church v. Newsom, which she claimed is putting “COVID safety measures” at risk.

Yet, South Bay is a case in which the Supreme Court refused to step in and protect a church from being discriminated against under coronavirus restrictions, after California continued to treat religious worship gatherings less equally than “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries” under its approach to the coronavirus.

Why is Hirono using a case in which a church is being shut down to claim that coronavirus restrictions are at risk? Either she devalues religious freedom that much, or is blind to the needs of such churches.

But that church’s pastor, Amada Huizar, is not. He has had to face the very real and serious consequences of what has happened because churches have been unconstitutionally shuttered around the country: harm to communities and the people who live in them. Pastor Huizar recently joined FRC President Tony Perkins on Washington Watch to share the incredible life-and-death story of his decision to reopen his church, and spoke at Freedom Sunday, an event held to call on churches to reopen in the face of unconstitutional restrictions on them around the country.

Senator Hirono may simply be tone-deaf to the religious freedom rights of Pastor Huizar and others like him. The alternative is that she thinks so little of the First Amendment that she’s willing to use a case suppressing a church’s rights in her bid to block Judge Barrett’s confirmation. Either possibility is dismal in terms of respect for our First Amendment and the Constitution.

What Are “Human Rights”?

by Travis Weber, J.D., LL.M.

July 17, 2020

Seeking to address what U.S. Secretary of State Mike Pompeo has called a “moment of crisis” for human rights, the newly-created Commission on Unalienable Rights yesterday released a draft of its inaugural report—a report which articulates and unpacks the link between America’s founding and the very idea of human rights.

It is no secret that human rights advocacy has lost its way. The term “human rights” is often used today to refer to any number of desirable social programs or preferences—basically, anything anyone wants to cloak in noble terms. Yet such an approach strays far from the core human rights the movement sought to address in its earlier years. Hence, the new State Department commission will aim to bolster the modern human rights project initiated in the 1948 Universal Declaration of Human Rights (UDHR) in light of our founding, and recalibrate the United States’ approach to human rights promotion abroad.

Divided into three sections, the report explores the origin of America’s human rights tradition and the ways in which these rights are under threat.

First, the report provides a careful review of the country’s founding principles. It argues that America has a distinctive rights tradition, grounding the origin of an individual’s unalienable rights—rights that are unable to be taken away or given away by the possessor.

Second, the report discusses the Universal Declaration of Human Rights, a momentous document outlining a comprehensive view of human rights following World War II and the Holocaust. It describes how this document provides a standard of achievement for all people from all nations.

Finally, the report outlines new challenges to human rights internationally, concluding with 12 pertinent observations.

Despite all the modern talk of human rights, we face a world in which authoritarian regimes increasingly perpetuate injustices, and international human rights organizations are continually ineffective in addressing them. Human rights advocacy groups are quick to reject fundamental rights grounded in an ordered human nature in favor of a newly imagined, culturally popular set of “rights.” To the contrary, the very definition of human rights is tightly bound to the qualities and shared traits that make all of us human. This idea—though imperfectly implemented—permeated our nation’s founding, as well as subsequent human rights developments.

Yet today, the unalienable rights that founded our nation and lay at the heart of the original international human rights project are frequently attacked as “discriminatory” and “outdated”—and modern social preferences take over in the guise of “human rights.”

Meanwhile, others try to portray a moral equivalence between the United States and other human rights violators. Yet the very existence of debate domestically should help us see we are still free—compared to places that lack a debate (China, North Korea, Saudi Arabia, etc.). It is there that opposition, dissent, and human rights are truly being suppressed.

The State Department is right to evaluate the scope of human rights at a time when human rights are widely championed and rarely understood. This report lays the groundwork for foundational questions to be asked and a thoughtful assessment of human rights going forward.

An understanding of what is innate to each person must inform such an assessment. Only then could the mass of humanity, with all its vast differences, even begin to agree on certain unchanging moral principles as the basis for human conduct. Moral objectivity is required in any shared endeavor to protect human rights for all human beings around the world.

For human rights work to endure, we must be able to agree on a shared definition around which we can unite and guard the term from becoming meaningless. As the report observes, the “enduring success” of human rights efforts “depends on the moral … commitments that undergird them.” The alternative is the status quo, represented by the “sad irony” that “the idea of human rights—which reflects the conviction that the positive laws of nations must be accountable to higher principles of justice—[is] reduced to whatever current treaties and institutions happen to say that it is.”

One way out of this is what the commission—whose diversity of different backgrounds and faiths should give us hope—proposes: identifying and substantively defending our shared unalienable rights. If it succeeds, we can perhaps begin reclaiming a true understanding of human rights for all, and not a moment too soon.

The Trump Administration Is About to Do the Right Thing on Religious Freedom — Again

by Travis Weber, J.D., LL.M. , Mary Beth Waddell, J.D.

May 22, 2020

The Department of Health and Human Services (HHS) is about to finalize a rule it proposed last year to ensure that religious freedom and conscience are protected, the medical profession is not politicized, and patient care is prioritized. We urge this rule’s swift finalization.

This rule is great news for patients and the health care community alike. In 2016, under the Obama administration, HHS issued regulations on Section 1557 of the Patient Protection and Affordable Care Act defining “sex” in the context of “sex discrimination” to incorporate “gender identity” and “the termination of pregnancy”. Health care institutions sued, contending that the heavy hand of government was forcing them to violate their conscience and threatening their ability to operate. Understanding that HHS had exceeded its authority, a federal judge issued an injunction to prevent the Obama administration rule from taking effect.

Now, President Trump plans to clean up this mess, and protect religious freedom, for our caregiving institutions nationwide. This policy change will enable the medical community to fulfill the Hippocratic oath, while protecting the convictions of those in that community who want to hold to their religious beliefs and consciences about the biological understanding of sex.

President Trump’s proposed rule is also pro-life, and will ensure that the pro-life convictions of medical professionals will be honored. The inclusion of “termination of pregnancy” in the Obama administration rule could be read to require the provision of, and coverage or referral for, abortion. This could then lead to federal financial assistance being conditioned on the promotion and performance of acts that devalue the sanctity of human life. Thus, removing this language is important to ensuring that federal laws protecting the right of healthcare workers not to provide or refer for abortion will be upheld. 

We applaud HHS for standing with science and religious liberty to ensure that the medical community is free of political chains and can simply focus on providing the best possible care to their patients according to the best medical science.

The finalization of this rule is a high priority for religious freedom, and very important to protecting the faith of many throughout our country.

It should be finalized promptly, so that those with long-running conscience and religious freedom concerns in this area can finally put them to rest.

Coronavirus Relief: What Churches and Nonprofits Need to Know About Accessing SBA Loans

by Travis Weber, J.D., LL.M. , Connor Semelsberger, MPP

April 4, 2020

On April 3rd, lenders began processing Paycheck Protection Program (“PPP”) relief loans around the country. As authorized by the “Phase 3” coronavirus relief legislation known as the CARES Act, the $349 billion PPP program will grant forgivable Small Business Administration (“SBA”) loans to small businesses and nonprofits for hardship they have suffered under the coronavirus-inflicted economic shutdown. These loans will cover eight weeks of necessary expenses during the coronavirus crisis.

In conjunction with the launch of the program, the SBA published an interim final rule, effective immediately, with further guidelines for lenders and borrowers—including guidance on religious freedom. SBA also issued an interim final rule on affiliation clarifying that faith-based organizations are exempt from SBA affiliation rules if those rules burden religious exercise. Finally, the SBA published a list of Frequently Asked Questions (“FAQs”) regarding the ability of faith-based organizations to access these loans—and Economic Injury Disaster Loans (“EIDL”). These FAQs bring significant clarity to many of the issues discussed below.

What follows are some key considerations for churches to understand and think through when applying for these loans.

Church Eligibility

The final text of the CARES Act and subsequent guidance make clear that a tax-exempt nonprofit organization—described in section 501(c)(3) of the Internal Revenue Code (IRC)—is eligible to apply for relief. Under IRS guidance, the 501(c)(3) definition generally includes churches—even if they have not registered with the IRS—as long as they meet 501(c)(3) requirements. Members of Congress wanted to ensure the program included all churches and houses of worship, even those unregistered churches without a letter of determination from the IRS. To make this clear, a bipartisan group of members headed by Republican Whip Steve Scalise (R-La.) and Representative Mike Johnson (R-La.) sent a letter to key agencies to clarify that these churches are included within the program. Based on the most recent guidance, we can now say they are included.

Some questions have come up about church eligibility for different types of loans under the CARES Act. The PPP created a new SBA loan program based on existing Section 7(a) small business loans, which changed eligibility to include all 501(c)(3) nonprofits, including churches, which previously were not eligible for these small business loans. It had appeared that EIDL loans, which provide working capital for organizations during a time of declared disaster, were only available for small businesses and private nonprofits, which does not include public charities like churches.

However, the FAQs make clear that faith-based entities can receive both EIDL and PPP loans, and do not need a determination letter from the IRS to do so.

The bottom line: All churches, even unregistered ones, can qualify for both EIDL and PPP loans.

Religious Liberty Concerns for Churches and Religious Nonprofits

Based on the most recent guidance in the interim final rules and FAQs, virtually all religious liberty issues in this loan program have been addressed.

One of the concerns had been requirements reflected on the SBA loan application: “All businesses receiving SBA financial assistance must agree not to discriminate in any business practice, including employment practices and services to the public on the basis of categories cited in 13 C.F.R., Parts 112, 113, and 117 of SBA Regulations. All borrowers must display the ‘Equal Employment Opportunity Poster’ prescribed by SBA.” Certain of these religious and sex nondiscrimination provisions in the SBA code, based on the way courts have interpreted such provisions, could run counter to church statements of faith and hiring practices and violate their faith.

The interim final rule addresses these concerns in part by reiterating religious liberty protections, stating that “all loans guaranteed by the SBA pursuant to the CARES Act will be made consistent with constitutional, statutory, and regulatory protections for religious liberty, including the First Amendment to the Constitution, and the Religious Freedom Restoration Act.” The rule also provides for the application of 13 C.F.R. 113.3-1h, an SBA regulation which states that “[n]othing in [SBA nondiscrimination regulations] shall apply to a religious corporation, association, educational institution or society with respect to the membership or the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its religious activities.”

The problem was that while 113.3-1h is helpful, it does not cover all relevant religious liberty concerns. As attorney Ian Speir, whose practice at Nussbaum Speir Gleason PLLC specializes in churches and religious nonprofits, points out: 13 C.F.R. 113.3-1h mirrors the Section 702 exemption in Title VII. That exemption has largely been interpreted to permit religious preferences in hiring, but not tolerate practices deemed to be other forms of “discrimination.” And “sex discrimination” may include firing an employee for out-of-wedlock pregnancy or for sex-related lifestyle choices contrary to the employer’s faith. Further, if a ministry has fewer than 15 employees, it’s not currently subject to Title VII; but if it takes SBA funds, it will be subject to the SBA’s regulations—so this ministry may find itself subject to new mandates as a result of accepting aid.

In the final analysis, however, any such outstanding concerns remain minimal.

The FAQs make expressly clear that:

  • Faith-based organizations can receive the loans regardless of whether they provide “secular social services.” (As the FAQs say, “no otherwise eligible organization will be disqualified from receiving a loan because of the religious nature, religious identity, or religious speech of the organization.”);
  • The religious instruction limitation referenced in 13 CFR 120.110 will not be applied, and will thus not inhibit religious organizations in how they use these loans;
  • Faith-based organizations can use the loans for anything that a secular organization can (no “additional restrictions on how faith-based organizations may use the loan proceeds”);
  • Churches are “not required to apply to the IRS to receive tax-exempt status” in order to access the loans; and
  • Faith-based organizations will not be required to sacrifice their “independence, autonomy, right of expression, religious character, and authority over [their] governance” in order to access these loans.

The FAQs also make clear that religious liberty protections are to be comprehensively applied throughout the loan program:

Consistent with certain federal nondiscrimination laws, SBA regulations provide that the recipient may not discriminate on the basis of race, color, religion, sex, handicap, age, or national origin with regard to goods, services, or accommodations offered. 13 C.F.R.§113.3(a). But SBA regulations also make clear that these nondiscrimination requirements do not limit a faith-based entity’s autonomy with respect to membership or employment decisions connected to its religious exercise. 13 CFR §113.3-1(h). And as discussed in Question 4, SBA recognizes the various protections for religious freedom enshrined in the Constitution and federal law that are not altered or waived by receipt of Federal financial assistance. SBA therefore clarifies that its regulations apply with respect to goods, services, or accommodations offered generally to the public by recipients of these loans, but not to a faith-based organization’s ministry activities within its own faith community. For example, SBA’s regulations will require a faith-based organization that operates a restaurant or thrift store open to the public to serve the public without regard to the protected traits listed above. But SBA’s regulations do not apply to limit a faith-based organization’s ability to distribute food or clothing exclusively to its own members or co-religionists. Indeed, SBA will not apply its nondiscrimination regulations in a way that imposes substantial burdens on the religious exercise of faith-based loan recipients, such as by applying those regulations to the performance of church ordinances, sacraments, or religious practices, unless such application is the least restrictive means of furthering a compelling governmental interest.”

A few remaining concerns: It should be noted that these loans do constitute “federal financial assistance” and thus obligate the borrower to comply with any attendant requirements. However, as explained above, the religious liberty concerns regarding those requirements are almost all addressed, and the FAQs make clear that such requirements do not extend beyond the life of the loan in any event.

However, churches may be obligated by state and local nondiscrimination requirements due to taking these loans, a point also observed by attorney Ian Speir. This is likely something that churches will have to consider based on consultations with their attorney or other professionals familiar with the legal landscape in their state.

The bottom line: While a few, smaller concerns remain, churches and other faith-based entities can be generally confident their religious freedom will be protected in this loan program.

What to Know When Applying for These Loans

After weighing all these considerations, churches and nonprofits with fewer than 500 employees (or those who qualify under the interim final rule on affiliation) that want to apply for PPP loans can find information on the SBA website. To begin, interested organizations must find a local bank or credit union that is eligible to administer these loans. The SBA is working on adding many new lenders to expand the reach of the program. To apply with the lender, the organization must fill out this application form and provide payroll documentation. If approved, the lender will work to administer the funds promptly, with the goal of them being available the same day.

This program is administered as a loan, but if the funds are used on essential payroll expenses, it will essentially act as a grant, and the loan amount will be forgiven in full. Churches considering applying for the PPP loan should keep these key facts in mind:

In order to get forgiveness, the organization must use the loan for:

  • Payroll costs, including benefits;
  • Interest on mortgage obligations, incurred before February 15, 2020;
  • Rent, under lease agreements in force before February 15, 2020; and
  • Utilities, for which service began before February 15, 2020.

Payroll costs include:

  • Salary, wages, commissions, or tips (capped at $100,000 on an annualized basis for each employee);
  • Employee benefits including costs for vacation, parental, family, medical, or sick leave; allowance for separation or dismissal; payments required for the provisions of group health care benefits including insurance premiums; and payment of any retirement benefit;
  • State and local taxes assessed on compensation.

Requests for loan forgiveness will be submitted to the lender. They will include documents that verify the number of full-time equivalent employees and pay rates, as well as the payments on eligible mortgage, lease, and utility obligations. An organization will owe money on the loan if it is used for anything other than payroll costs, mortgage interest, rent, and utility payments over the eight weeks after getting the loan. No more than 25% of the forgiven amount may be for non-payroll costs.

There are also requirements to maintain payroll and staff:

  • Number of Staff: Loan forgiveness will be reduced if the number of full-time employees is reduced.
  • Level of Payroll: Loan forgiveness will be reduced if salaries and wages are reduced by more than 25 percent for any employee that made less than $100,000 annualized in 2019.
  • Re-Hiring: Employers have until June 30, 2020, to restore full-time employees and salary levels for any changes made between February 15, 2020, and April 26, 2020.

If the organization must pay back any loan amount, it will be paid back with 1 percent interest. All payments are deferred for six months; however, interest will continue to accrue over this period. The loan will be due in two years.

EIDL loans are another option for nonprofit organizations to consider if they have been met with financial hardship. This program provides eligible organizations with working capital loans of up to $2 million that can provide necessary economic support. Eligible organizations that need immediate help replacing lost revenues, can receive an advance of up to $10,000 that will not have to be repaid. Those interested in applying for EIDL loans can do so here.

It can be challenging to determine whether it is in your organization’s best interest to apply for federal financial programs like the Paycheck Protection Program. The coronavirus crisis has brought the American economy to a standstill, and many nonprofit organizations are struggling with financial instability. However, government aid programs that may help organizations financially may also come with some unintended consequences. Fortunately, Congress has intended to make the PPP open to religious organizations in the same way small businesses are—without additional government stipulations that dramatically change how religious organizations operate. The FRC team will continue to work alongside allied organizations to ensure that the congressional intent of the CARES Act (to not discriminate against religious organizations for financial aid) is carried out when implementing programs like the PPP.

To help the church navigate these and other challenges we are confronted with due to the coronavirus, we have created a resource page at FRC.org/church. Please visit us there and let us know how else we can be of help.

How the Coronavirus Relief Bills Benefit Churches and Other Nonprofits

by Travis Weber, J.D., LL.M. , Connor Semelsberger, MPP

March 27, 2020

There has been much discussion recently about the “Phase 3” coronavirus relief bill, H.R. 748, the “Coronavirus Aid, Relief, and Economic Security” (CARES) Act. Passed by the Senate on March 25, passed by the House on March 27, and signed into law by President Trump on the same day, the CARES Act is designed to provide broad-based economic relief and funding in the midst of the coronavirus crisis. While some of the headline-grabbing sections of this bill address health care supplies and financial assistance for large corporations, several key provisions directly assist nonprofit organizations, including churches.

Direct Loans to Small Businesses, Nonprofits, and Churches

One of the major sections of the CARES Act is the $350 billion Payment Protection Program, which creates federally-guaranteed loans (operated by the Small Business Administration (or “SBA”)) to small businesses and other entities (including nonprofit organizations) to cover eight weeks of necessary expenses. To be eligible for these loans, the entity must have fewer than 500 employees, or the number designated as “standard” for its specific field—whatever is greater. Including entities in this manner will result in many small businesses and nonprofits being covered by these loan provisions.

For purposes of these loans, the CARES Act defines an eligible nonprofit organization as “an organization that is described in section 501(c)(3) of the Internal Revenue Code of 1986 and that is exempt from taxation under section 501(a) of such Code.” Under IRS guidance, this generally includes churches—even if they have not registered with the IRS—as long as they meet 501(c)(3) requirements that:

  • They are organized and operated exclusively for religious, educational, scientific or other charitable purposes;
  • Net earnings do not inure to the benefit of any private individual or shareholder;
  • No substantial part of their activity may be attempting to influence legislation; and they do not intervene in political campaigns; and
  • Their purposes and activities may not be illegal or violate fundamental public policy.

Under the CARES Act, limitations that the SBA places on loans to religious entities (including a requirement that religious entities show they are not principally engaged in teaching, instructing, counseling, or indoctrinating religion or religious beliefs) are waived. As long as the church or nonprofit was operational and paying salaries and payroll taxes on February 15th, 2020, it is eligible for these loans.

Ian Speir, an attorney whose clients at Nussbaum Speir Gleason PLLC include numerous churches and nonprofits, agrees, telling us it would be constitutionally problematic to exclude churches in light of recent Supreme Court decisions, which clarify that generally available public benefits can’t exclude religious organizations who are otherwise eligible. Speir also noted his agreement that churches are included within the CARES Act’s definition of “nonprofit organizations.”

Under the CARES Act, the maximum loan an organization can receive is based on a calculation that will come out to 2.5 times the average monthly payroll, or $10 million, whichever amount is less.

If an organization uses the loan to cover payroll costs, health care benefits and premiums, employee salaries, mortgage or rent payments, or any other interest payments, the loan will be forgiven. There are also provisions for waiving borrower fees and other collateral and credit requirements, as well as automatic deferrals of any payments for six months.

There are also incentives for organizations to keep employees on the payroll. The total amount forgiven will be reduced if the employer lays off any employees or reduces employee pay more than 25 percent during the loan term. The program also encourages organizations to rehire any employee already laid off by not adding any penalties for those employees brought back onto the payroll. So, if the organization certifies with the lender that it used the loan for the appropriate expenses, the loan will act as a federal grant with no need to pay any amount back. If the organization does not use the loan for appropriate expenses, it must pay back outstanding funds with an interest rate of 4 percent.

To help stop the spread of the coronavirus, local and state authorities are restricting large gatherings, causing many churches and religious organizations not to meet in person, which can cause financial setbacks for them. We are also aware that churches and nonprofits are suffering operationally through no fault of their own, creating significant financial strain. If that is the case with your organization, you may benefit from this new loan program meant to help cover payroll and other essential costs for the next eight weeks.

We recognize not every entity may seek to avail themselves of these loans, but they are there for those who wish to do so. The goal is not increased dependence on the government, but rather temporary assistance that can serve as a lifeboat through unexpected shock. In all this, we want to ensure that churches and religious organizations are not discriminated against, but rather are treated fairly and allowed access to any programs that nonreligious organizations can participate in. The coronavirus has affected all of us—religious and nonreligious alike.

The SBA should soon be adding more helpful information to their website on how to access this relief, but in the meantime, Senator Rubio has a good FAQ sheet with information on how to apply for these loans, available here.

Incentivizing Giving to Churches and Nonprofits

Now more than ever, churches and other charitable organizations need donations in order to meet immediate needs related to the coronavirus outbreak. But simultaneously, many Americans face financial hardship due to job loss, limited working hours, or increased medical costs. Such hardships may lead to a decline in charitable donations. By creating additional tax incentives for charitable contributions, the Phase 3 coronavirus relief package seeks to encourage Americans to continue giving throughout the crisis.

Under the CARES Act, charitable contributions up to $300 can be deducted above and beyond the standard deduction on annual tax returns. This new policy will help offset the negative impact on charitable giving precipitated by the 2017 Tax Cuts and Jobs Act, which simplified and raised the standard deduction to $12,000. This change caused many tax filers to take the standard deduction instead of itemizing their charitable contributions. During negotiations on the CARES Act, the FRC team worked alongside allied organizations to increase the total amount of tax-deductible donations. While the $300 amount was not raised, this new level may apply to tax years 2020 and beyond, leading to more incentive for charitable giving going forward.

Finally, reducing charitable giving limits for those who itemize deductions on their tax return is another positive incentive put in place by the CARES Act. The cap limiting charitable contribution deductions to 50 percent of a person’s income has been lifted for the 2020 taxable year. This policy also raises the limit on corporate deductions from 10 percent of taxable income to 25 percent and raises limits on food inventory donations from 15 percent to 25 percent.

Unemployment Insurance Assistance for Those Working for Nonprofits

In addition to the $1,200 one-time rebate checks for many Americans, the CARES Act expands unemployment insurance to help those who are without work because of the coronavirus outbreak. This bill creates a temporary Pandemic Unemployment Program that will run through the end of the year. The program provides unemployment benefits for those who do not usually qualify, including religious workers, the self-employed, independent contractors, and those with limited work history. It also covers the first week of lost wages in states that do not cover the first week a person is unemployed.

While most churches are not subject to unemployment insurance, some nonprofits should be aware of this new policy in case they need to lay off or have already laid off employees who may claim unemployment insurance. Fortunately, there is language in this bill to help nonprofits cover some of these costs. H.R. 748 provides payments to states to reimburse nonprofits that are not a part of their state’s unemployment system, reimbursing for half of the costs the nonprofits incur to pay unemployment benefits. Unlike other employers, nonprofits have the option to pay state unemployment insurance taxes or reimburse the state only for the benefits paid to former employees who collect unemployment insurance. The U.S. Labor Department’s Office of Unemployment Insurance and individual states provide more detailed information on how unemployment insurance programs operate.

Paid Medical and Sick Leave Requirements that May Implicate Nonprofits and Churches

In addition to the Phase 3 bill being discussed here, President Donald Trump signed the Phase 2 coronavirus relief bill, H.R. 6201, on March 18th, 2020. While this bill included new paid medical and sick leave requirements designed to benefit employees but which may place requirements on nonprofits, the Phase 3 bill provides for some ways to cover these expenses. The Labor Department recently released initial guidelines for these paid medical and sick leave mandates, and will provide further regulations in April 2020.

First, H.R. 6201 expands the Family and Medical Leave Act of 1993 (FMLA) by including increased leave protection for employees who are unable to work or telework because they need to care for a child whose school or childcare facility was closed due to the coronavirus. Under this expansion, employers are not required to pay the employee during the first 10 days of leave, but the employer has to pay for remaining leave time up to $200 per day.

Separate from the FMLA change described above, the Phase 2 relief bill establishes an emergency paid sick leave program that requires employers to provide two weeks of paid sick leave for employees that cannot work or telework because of the coronavirus. Employees are only entitled to this mandatory sick leave if they are: having coronavirus symptoms, have been advised to self-quarantine, subject to a government quarantine, or caring for someone with coronavirus symptoms. The total amount of paid leave is equal to two-thirds the employee’s regular wages, whether salary or hourly work, and is capped at $511 a day. Both leave requirements will expire at the end of the year.

Providing paid leave during an uncertain financial situation can be difficult for some churches and nonprofits. The cost for the above two policy changes fall on employers, but there are ways for employers to alleviate the financial burden, as described below:

  • These mandates apply only to employers with fewer than 500 employees. H.R. 6201 also provides the Secretary of Labor with the ability to exclude organizations with fewer than 50 employees if providing the paid leave would jeopardize the viability of the organization.
  • If an organization has more than 50 employees or is not excluded from the Department of Labor’s waiver for other reasons, the Phase 3 coronavirus relief bill creates advanceable credits to help cover paid leave. These credits are a dollar for dollar reimbursement for all wages paid under these new requirements. The tax credits also apply to costs incurred to maintain health insurance coverage.
  • An organization can also apply for the Payment Protection Program loans previously mentioned that are designed to help nonprofits cover payroll costs, health care benefits during periods of paid medical and sick leave, and employee salaries.

Encouraging and Aiding the Church’s Response to the Coronavirus Outbreak

The CARES Act also recognizes how important churches and local community organizations are to providing food and other needs during this crisis. To increase state grants for these types of services, this bill provides an additional $1 billion for the Community Services Block Grant (CSBG). This grant is given to the states so they can partner with local community organizations to lower poverty, address homelessness, and provide services addressing unemployment, education, nutrition, and health. This is a grant program that churches and religious organizations can access, as the law explicitly states religious organizations must be treated the same as other nongovernmental organizations when applying for these grants. Churches in several states have partnered with community organizations or received these grants themselves to operate food banks and other key services.

Churches and other nonprofit organizations have played a critical role in meeting the spiritual and physical needs of Americans affected by the coronavirus. During Senate negotiations over how best to respond to the economic hardships our country is facing, the FRC team worked to ensure that churches and other religious groups were not left behind and were instead recognized as organizations vital to the coronavirus relief effort—and we will continue to do so going forward.

Death Comes to Northeast Syria: The Human Cost of Trump’s Withdrawal of Forces

by Travis Weber, J.D., LL.M. , Arielle Del Turco

October 9, 2019

Smoke is billowing from a small town in northeast Syria hit by Turkish airstrikes today, and hundreds of civilians are fleeing, unsure of where they’re headed.

The worst fears of those living under the Autonomous Administration of North and East Syria are becoming a reality after President Trump made the decision on Sunday to remove U.S. troops from the area. This decision followed a phone call with Turkish President Erdogan and paved the way for an unfolding Turkish military operation into Northeast Syria, which is controlled by the Kurds, who have been faithful U.S. allies.

Why is FRC, focused on our mission to advance faith, family, and freedom, weighing in on this situation far from home?

Because at risk is not just the massacre of our Kurdish allies, the potential resurgence of ISIS, the reputation of the United States, and another major conflict in the Middle East. Also at risk is the destruction of the one place in the Middle East (outside of Israel) where Christians, Muslims, and Yazidis live in peace and religious freedom thrives. Under the Syrian Democratic Forces (SDF) and the Autonomous Administration of North and East Syria, religious minorities in Northeast Syria found protection and equal political rights—an anomaly in the Middle East.

Out of the midst of the Syrian civil war, hope sprang in the form of a federal government system that represents and protects segments of society which are often neglected and abused in the Middle East, including women and the Christian minority.

In addition to other religious minorities, Syriac Christians have found safety under the Kurdish-led administration. This is one of the oldest Christian communities in the world, and they are trying to maintain a presence in the Middle East, the birthplace of the Christian faith. Syriac Christians still speak a dialect of Aramaic today, and Syriac Christian culture is experiencing a renaissance. As Turkish forces move into Northeast Syria, we shouldn’t expect that they will take care of this community. Even in the past few years, Turkey has allied itself with jihadist groups responsible for killing Christians elsewhere in Syria. With the present Turkish incursion, Christians in Northeast Syria face the potential of attack or displacement. It would be tragic to these Christians subjected to abuse or death as a result of Turkish actions, and it would also be tragic to see the loss of a historic Christian presence in this region.

The Kurdish forces that Turkey is attacking have been reliable allies to the Untied States. When the U.S. couldn’t find anyone else willing to fight ISIS, the SDF rose to the occasion, and lost approximately 11,000 fighters in the process. The Kurds feel betrayed by the U.S., and that feeling is understandable. They have been consistent allies, and we abandoned them overnight without warning. This won’t bode well for the next time the U.S. tries to recruit allies in the Middle East.

The successful religious freedom and pluralism found in Northeast Syria is something that we hope to see more of across the Middle East. To watch that newly-flourishing area ransacked by a Turkish authoritarian leader is disheartening. If the United States wants to see the prime example of religious freedom in the Middle East continue, it should continue to support our Kurdish allies.

It is difficult to watch these events unfold today. There have already been reports of civilian casualties, including Christians who were killed by the Turkish strikes.

As this situation develops, we need to be praying for the protection of the people of Northeast Syria, and that any attempted oppression or slaughter would be thwarted. We must also pray that God would give President Trump the wisdom to make the right decisions, and that he would ensure security for Syria’s Northeast.

What the LA Times Gets Wrong About Religious Freedom

by Travis Weber, J.D., LL.M. , David Closson

August 21, 2019

Last week, the Department of Labor issued a proposed rule clarifying the rights of religious employers to contract with the government without being forced to violate their religious beliefs. After decades of court decisions and disparate interpretations under Title VII of the Civil Rights Act of 1964, it is no wonder that some religious organizations are fearful of working with the federal government because they don’t have clarity on what they can and can’t do. It makes sense that the Department of Labor would want to clarify their rights now.

Yet yesterday’s Los Angeles Times’ Editorial Board threw cold water on this idea, claiming the proposed rule would “dramatically expand the [religious liberty] exemption,” which they believe makes “little legal sense” and threatens to erode what was “once broad and bipartisan support for the idea that the government should accommodate sincere religious convictions.”

Yet are these gripes accurate? Hardly. In reality, as the proposed rule makes clear, the Department of Labor is simply aligning its interpretation of religious exemptions with years of federal court decisions and the definitions in Title VII itself. For years, Title VII has protected religious people from a wide array of faith groups equally. So what is the LA Times so scared of? The reason seems revealed in the title: “Trump’s new ‘religious freedom’ rule looks like a license to discriminate.”

Unfortunately, the assumption of the LA Times appears to be that Christian conservatives are using religious freedom as a “pretext for discrimination.” Yet LGBT issues are not specifically addressed anywhere in the proposed rule. It is the idea that LGBT-related claims might be affected by religious freedom claims that has the LA Times up in arms. If the editors read the rule more carefully, they would see that it actually addresses sincerity as an important component of a religious freedom claim, and “conceal[ing] discrimination” has been dealt with by courts assessing these Title VII claims. The LA Times and others espousing this line of thinking don’t get to pick and choose when religious freedom applies. It either does or it doesn’t, and if the Title VII definitions were acceptable for decades, they should still be acceptable today.

Religious freedom is a virtue that benefits the common good; it does not favor Republicans over Democrats or Roman Catholics over Muslims. Thankfully, the Trump administration recognizes these basic truths and is protecting religious employers of all faith backgrounds. If the LA Times researched how the Title VII religious exemption has functioned in the past, it would see that it benefits various religious minorities in a host of different circumstances. Indeed, one of the cases referenced in the proposed rule—LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n—features a Jewish organization. Just a few years ago, the Supreme Court—in an opinion authored by Justice Scalia—applied Title VII to protect a Muslim employee’s rights against her employer.

Thus, to argue that faith-based organizations should not be able to run their business according to their religious beliefs represents a truncated view of religious freedom. There is no legitimate reason that a faith-based organization should lose out on a federal contract for simply adhering to their religious beliefs, and the proposed rule is right to remedy that.

The LA Times editorial is a reminder that people from all religious backgrounds must continue to help shed light on the reality that religious freedom is a good that serves all people.

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