New Justice Department Position Allows Federally-Funded Religious Discrimination
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Thu Nov 15, 2007 at 02:20:10 PM EST
When religious groups provide secular services that are funded with federal dollars, there are government strings attached - as there should be: no proselytizing or otherwise promoting religion with taxpayer money is allowed, nor is the violation of anti-discrimination laws in hiring employees for these secular purposes. We have seen numerous attempts by the Bush Administration to cripple the non-discrimination leg of these church-state safeguards - most dramatically in the fight earlier this year over Head Start re-authorization. Fortunately, Congress has defeated those efforts. But now, a new Justice Department position would override the will of Congress and empower religious groups to discriminate in hiring based on religion.

It's tempting to think this is no big deal - they're religious groups, right? They should be able to hire folks from their own religion to do their work right? It is a big deal when they're doing the people's work. A Muslim and an atheist, Roman Catholic and Orthodox Jew should have an equal opportunity to compete for jobs funded by the federal government. But our Justice Department now believes otherwise. Read on...

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.

Under the Department's construction of RFRA, a faith-based grantee's hiring preference for staff who share its religious identity and mission must be permitted if--

  1. the FBO demonstrates that its program for which it seeks federal funding is an exercise of its religion;
  2. the FBO demonstrates that requiring it to either forgo its religious preference in hiring or else forgo the federal funding would substantially burden that exercise of its religion; and
  3. the funding entity is unable to demonstrate that applying the nondiscrimination provision to this FBO both would further a compelling government interest and would be the least restrictive means of furthering this interest.
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...
...
"The implication is that at least as long as this Administration or somebody else that's sympathetic to this view is in charge, the Executive Branch will not enforce restrictions on faith-based hiring.
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.
...
Preserving this provision is especially important given this administration's attempts to overturn long-standing principles of non-discrimination through Executive Orders, proposed legislation, and, recently, Department of Justice opinions.

Let me be clear.  I support the right of religious organizations to use religious criteria in hiring people to carry out their religious work.  This exception - which is the current law - makes sense because it allows people of common faith to work together to further their religion's mission.

However, there is a fundamental difference between religious organizations using their own funds for their religious work and religious organizations using government funds for that purpose.  In 1972, Congress established the current, expanded religious exception under Title VII of the Civil Rights Act of 1964.  The same Congress established the non-discrimination provisions in Head Start that continue with today's legislation. They understood the difference between permitting hiring based on religion for religious functions not funded by the government, and allowing discrimination based on religion in hiring people to carry out activities funded by the federal government.

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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