New Justice Department Position Allows Federally-Funded Religious Discrimination
The Roundtable on Religion and Social Policy brought this October DOJ posting to light. It effectively says that the 1993 Religious Freedom Restoration Act - which requires the government to show a "compelling interest" before erecting a "substantial burden" to religious exercise - trumps Congress' explicit language prohibiting religious discrimination in hiring for federally funded positions. From "Effect of the Religious Freedom Restoration Act on Faith-Based Applicants for Grants": (my emphasis) The U.S. Department of Justice has concluded that the Religious Freedom Restoration Act (RFRA) is reasonably construed, on a case-by-case basis, to require that its funding agencies permit faith-based organizations (FBOs) both to receive federal funds and to continue considering religion when hiring staff. As described more fully below, RFRA protects this right to prefer co-religionists for employees even if the statute that authorizes the funding program generally forbids consideration of religion in employment decisions by grantees.As the Roundtable piece notes, groups could always apply for this special exemption: [F]aith-based grant applicants have had the option of petitioning the government with the argument that employment nondiscrimination rules violated their rights under the 1993 law, said Robert W. Tuttle, a law professor at George Washington University and co-director of legal research for the Roundtable on Religion and Social Welfare Policy. But that was not likely to happen with much frequency, because the chances of winning such an argument appeared slim, Tuttle said. That's because courts have not generally considered limits in government grant programs as placing undue burdens on a faith-based group's right to free religious exercise, he said. Judges have viewed participation in government-funded programs as voluntary...Will this policy apply to the Head Start reauthorization that just passed Congress yesterday? Will the DOJ refuse to enforce the non-discrimination provision that religious liberty advocates fought so hard to maintain? Senator Dick Durbin is clearly disturbed that it might. His floor statement included this (my emph.): Mr. President, I am especially pleased that this legislation strengthens Head Start without weakening its long-standing civil rights protections for more than 200,000 Head Start teachers and 1.3 million parent volunteers.The more our federal services are taken over by faith-based organizations, the more important this protection is. What will it say about our First Amendment religious liberty protections when a talented aspiring teacher can't find work in the federally funded Head Start program solely because of her religion? Or when a social worker isn't allowed to apply for a position in a shelter paid for by tax dollars because he is a non-believer, or the wrong kind of believer? Partnering with the government comes at a price - as it should. And that price is to respect our civil liberty laws - those that have, it should be mentioned, helped us maintain true, robust religious liberty for all in the name of fundamental principles of fairness and respect for all faiths, as well as those of no faith. Federally-funded religious discrimination is an anathema to America. We should fight its advocates at every step.
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