exception will be the one that strips the exception of some of its current value and makes a major negative impact on religious liberty going forward.
Nicholas R. Morgan is the Chief Legal Officer at The Evangelical Alliance Mission/ TEAM, and Attorney at Nicholas Morgan Law, PLLC. Footnotes 1 U.S. CONST. amend. I. 2 Watson v. Jones, 80 U.S. 679.
3 For example; KEDROFF et al. v. ST. NICHOLAS CATHEDRAL OF RUSSIAN ORTHODOX CHURCH IN NORTH AMERICA, 344 U.S. 94.
4 Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1 (1929); Mcclure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 1050 (1972); Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).
National Notes Washington Updates
• The National Defense Authorization Act (NDAA) includes language by Rep. Steve Russell (R-Oklahoma) restating protections in religious hiring from the Civil Rights Act of 1964 and the Americans with Disabilities Act. The Senate version does not include this language, so a House-Senate Conference Committee must reconcile the two. The November 2016 lame duck session of Congress will resolve the question. In October, 42 Democratic Senators issued a letter to Armed Services Committee leaders insisting the Russell language be deleted. Our hope is that Russell will prevail.
• In the same session, Congress is also expected to deal with the reauthorization of the District of Columbia Opportunity Scholarship Program (OSP). A popular school choice program, the OSP provides scholarships to low-income families in D.C. All ACSI member-schools in D.C. participate. ACSI supports the measure.
• In April 2016, ACSI joined its second amicus brief in support of Missouri’s Trinity Lutheran Church in its case against the state. Missouri excluded the church’s daycare from a state playground resurfacing program solely because it is church-related. The Supreme Court agreed to take up Trinity Lutheran Church vs. Pauley and is expected to hear the case before June 2017. ACSI joined with the Lutheran Church—Missouri Synod (LCMS) to argue that it is inappropriate to exclude the daycare from the program. It is possible the case could be held until October 2017. Since the passing of Justice Antonin Scalia, the Supreme Court is one justice short of the nine authorized in law; this creates uncertainty about the Court’s case schedule.
5 565 US ___ (1972).
6 The District Court in Fassl v. Our Lady of Perpetual Help Roman Catholic Church, (E.D. Pa. 2005) held that the ministerial exception applies to all federal employment statutes. Higher courts have not yet decided.
Telios Law serves businesses, individuals, ministries, and churches, representing them in litigation, appeals, and alternatives to litigation, as well as giving legal advice on a variety of issues. Preventive planning or negotiating can often avoid lawsuits. And if you are going to be in a legal proceeding, you should have excellent legal support. Find out more at
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George Tryfiates, ACSI Director for Government Affairs
Final Regulations Issued for Child Care
Development Fund On September 30, 2016, the Administration for Children and Families (ACF) of the U.S. Department of Health and Human Services (HHS) published its final regulations to govern the Child Care Development Fund (CCDF) created by the Child Care and Development Block Grant Act (CCDBG).
The original proposed regulations were highly controversial. ACSI submitted its public comment in response on February 22, 2016. We strongly objected to ACF’s proposed requirement that states fund some grants or contracts rather than allowing the states full freedom to fund either grants/contracts or certificates (vouchers) or both. Faith-based early education cannot receive grants or contracts without giving up their unique faith- based mission. Certificates allow much greater freedom. Because of the objections, ACF ultimately deleted the offensive requirement in its final regulations.
This episode illustrates the importance of watching not just legislation, but also the regulations the Executive Branch issues. The ACF attempted this same maneuver— explicitly promoting grants and contracts over certificates—when it moved to rewrite the regulations before Congress passed its reauthorization of the CCDBG. ACSI objected at that time, and the ACF dropped that effort when Congress took up the reauthorization bill.
Congress ultimately ensured the Administration would not try again to cut back the use of certificates by specifying in the final CCDBG bill that “nothing in this subchapter shall be construed in a manner to favor or promote the use of grants and contracts for the receipt of child care services . . . over the use of child care certificates; or to disfavor or discourage the use of such certificates for the purchase of child care services, including those services
© 2016 by the Association of Christian Schools International 27.2 | 45
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