No Religious Test for Federally Funded Jobs

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Interfaith Alliance President Rev. Dr. C. Welton Gaddy issued a statement expressing his gratitude for President Obama’s improvements to the executive order (most of which were recommended by a task force on which Rev. Gaddy served), which bring the office more in line with the civil rights guaranteed by the Constitution. However, Rev. Gaddy strongly criticized the order’s failure to resolve two specific gaps. First, the amendments still do not “require recipients of federal funds to form separate entities to assure no mixing of federal tax dollars and religious tithes and offerings,” and secondly, “The all-important issue of civil rights protections to guarantee no employment discrimination remains unaddressed.”


In other words, President Obama has yet to require houses of worship and other faith-based organizations that receive government money for community service projects to establish independent non-profit organizations to house and distribute those funds, and he has not responded to the serious issue of religious discrimination in hiring by religiously-affiliated groups receiving federal funding for their social service programs. Rev. Gaddy was a member of the task force charged with reforming the faith-based office by the President’s Advisory Council, which presented its recommendations in a March 2010 report. Those recommendations included a call for separate non-profit incorporation and the prevention of religious discrimination in hiring. Nonetheless, Interfaith Alliance is appreciative that both the White House and Congress are paying increasing attention to the nuances of these critical issues.


The frank discussion at the subcommittee hearing in November featured three key experts as witnesses: Douglas Laycock, Professor of Law and Religious Studies at the University of Virginia; Melissa Rogers, Director of the Center for Religion and Public Affairs at Wake Forest University Divinity School; and the Rev. Barry Lynn, Executive Director of Americans United for Separation of Church and State. Along with Rev. Gaddy, Ms. Rogers and Rev. Lynn both served on the Reform of the Office of Faith-Based and Neighborhood Partnerships Task Force of the President’s Advisory Council and Ms. Rogers also served as the chair of the Advisory Council itself.


Unfortunately, neither the Obama Administration nor the U.S. Department of Justice sent a representative to the hearing, which was a major disappointment as the subcommittee members were unable to solicit a direct response from the White House on these crucial issues.


From his first remarks, it was clear that Rep. Nadler remains as frustrated as Interfaith Alliance with the “glacial pace of reforms,” as he called it. While he acknowledged the significant contributions of faith-based groups in providing social services to those in need, as well as the success these groups often achieve in reaching local communities quickly and directly, he expressed disappointment with the lack of secular or religious alternatives for program beneficiaries in some cases and locations.


The issue at the core of the debate is not whether or not a religious entity providing social services has the religious freedom to discriminate in its hiring practices; it is that such a group should not discriminate if it is receiving federal funds, which should be subject to the same constitutional protections as the taxpayers who provide them. Rep. Bobby Scott (D-VA) explained:


“Let’s be clear: Religious organizations can still discriminate in positions paid for with their own money, just not those paid for with federal funds… Some people insist on discriminating in employment and therefore were barred from federal contracts. They now believe that the prohibition against discrimination with federal funds constituted a barrier that needed to be removed. Unfortunately, the faith-based initiative specifically removed that so-called barrier, and as a result…religious sponsors of federally-funded programs are not allowed to discriminate in employment with federal dollars on the basis of religion. That means that a person applying for a job paid for with federal money can be ineligible for consideration for that job solely based on religion.”


Rev. Lynn echoed Rep. Scott in his testimony: “It is terribly wrong to reject the best-qualified person for a secular job at a faith-based institution because he or she does not pass a religious litmus test.” The euphemism “preferential hiring,” he said, only disguises what is “labeled simply as discrimination, and it is ethically and legally wrong.”


But put another way, as Mr. Laycock argued in his testimony, the government should not dangle the carrot of federal grants to deter a religious organization from hiring like-minded people who may be the best to understand and carry out the organization’s mission. “[The government] uses the power of the purse to coerce religious organizations to become less religious and more secular, and that would be a fundamental policy mistake,” he said. “This committee should not try to force the administration into doing that.”


In her testimony, Ms. Rogers praised President Obama’s executive order for “creat[ing] more clarity, transparency, accountability, and constitutional compliance in these partnerships.” Even with the shortcomings, she said, the new order is significant because it represents many of the consensus recommendations of a task force and an advisory council made up of people with diverse, often divergent, opinions.


While the matter of whether or not the executive order legalizes or prohibits hiring practices based on religion remains unclear, the three witnesses did agree on one thing by the end of the hearing: Funds received by a religious organization through private donations and funds granted through the federal government should be separately received and overseen.


As Ms. Rogers concluded, a person can both be religious and respect the boundaries between federal funding and proselytization: “As a religious person, I am pleased that that requirement is there because I don’t want government meddling in religion. I don’t want it to tell a religious organization what they can and can’t say about religion, about matters of faith. So, if the religious activities are privately funded and cleanly separated from the government[-funded] program, then the religious organization is in charge of that, and as long as all the other things are observed, then that keeps the government out of meddling in the religious sphere.”


In response to the Administration’s failure to send a representative to address these issues at the hearing, the bi-partisan leadership of the House Judiciary Committee and this particular subcommittee recently sent a letter to Attorney General Eric Holder stating their intent to hold a follow-up hearing sometime this month. At this hearing, the Members of Congress have requested that Attorney General Holder or a designated representative be present to address specifically the issue of hiring discrimination.