Dear Friends and Christian Leaders:
I have been asked about any impact of some of the wording in the Paycheck Protection Program Application regarding the prohibition of discrimination under the Equal Employment regulations of the Federal Government in order to access or use these funds. Specifically, on page 4 of the application, the wording is as follows:
Civil Rights(13 C.F.R. 112, 113, 117) – 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.
I have consulted with our colleagues at Alliance Defending Freedom. Their opinion at this time, although there understandably has been no litigation on this matter, is that churches are still free to use the funds and function as they have been under the express religious exemptions available to churches as well as well settled constitutional protection.
In the words of Joe Infranco, Sr. Council VP of Alliance Coordination for the ADF:“The larger underlying question is whether churches can affirm that they do not “discriminate” under federal law. These type provisions are not unusual when there is federal assistance.While it’s impossible to give an answer with certainty, we don’t see this as a problem and believe churches can sign the necessary forms consistent with their faith. The main reason is that federal law contains a number of express religious exemptions – for one example, under Title VII, the federal employment discrimination laws. Churches are allowed to hire and fire according to their beliefs, and do not come under the law’s reach. So a church is obeying federal law, which provides the exemption.Second, the US Constitution provides protection for churches, even where a specific law does not contain an express exemption. The Supreme Court affirmed this a few years back in a 9-0 decision that recognized the “ministerial exception,” which constitutionally protects churches in the selection of its ministers, forms of religious practice, and the selection of who speaks for or represents the church in expressing its views.So even if a federal law did not contain such an exemption, the protections of the US Constitution provide an extra layer of protection. The highest level of federal law is the Constitution; therefore a church is answering truthfully and accurately when it affirms that it is in compliance with federal law.If the new CARES law intended to overturn prior statutory exemptions covered under its framework, it would have needed to do so expressly. It did not. And even if it attempted to do so, nothing in the law can violate the Constitution.Understand these are the principles underlying our opinion. Nothing is known for certain until it is litigated. But given the state of the law, it would be very unusual and contrary to how changes are enacted if this law was interpreted to say that churches do not have their usual protections.The law was meant to benefit churches and religious non-profits along with many, many other businesses and institutions. Churches are already applying for these benefits and are expected to do so in record numbers. I would advise your churches to do so without any apprehension as things now stand.” Standing by to help in any way.
Stephen D. Lentz, Esq.
381 Edwin Drive
Virginia Beach, VA 23462
(757) 352-2237 Office
(757) 352-2220 Fax
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