Seal of the Department of Justice

Seal of the Department of Justice Department of Justice

Last week, 90 organizations on the separationist side of church-state politics asked Attorney General Eric Holder to renounce the Bush Administration’s position that faith-based organizations (FBOs) can discriminate religiously in hiring for government-funded programs. What provoked the request was discovery of a Department of Justice (DOJ) memo in which the Obama Administration for the first time declares the Bush position to be federal policy.

Issued on April 9, the memo. from the Office of Civil Rights (OCR), consists of answers to a set of frequently asked questions concerning the nondiscrimination provision in last year’s reauthorization of the Violence Against Women Act. It explains that, as per a 2007 Bush DOJ memo, FBOs “may prefer co-religionists for employees in programs funded by covered grants” under certain conditions — an exemption from anti-discrimination law assertedly authorized by the 1993 Religious Freedom Restoration Act.

The 90 signatories — who include mainline Protestant denominations, non-Orthodox Jewish groups, and civil rights and gay rights organizations — want Holder to withdraw the Bush memo. “We just don’t see how you can justify that for government-funded positions,” said Hollyn Hollman, general counsel for the Baptist Joint Committee.

It could be argued that the OCR memo does nothing more than articulate the prevailing DOJ legal interpretation. But that’s exactly the problem. Back when he was running for president, Barack Obama promised to do away with such religious discrimination. Upon taking office, however, he consigned the issue to the DOJ’s Office of Legal Counsel, with the line that until a new legal position was promulgated, the issue would be dealt with on a “case by case basis.”

No new policy on employment discrimination has ever been forthcoming, despite the fact that the president did issue an executive order superseding the Bush executive order that dealt with faith-based policy. What the memo makes explicit for the first time is that, so far as DOJ is concerned, the Bush interpretation rules.

All along, the administration has wanted to finesse the issue — neither alienating big conservative faith-based grantees like World Vision, which consider it essential to be able to hire co-religionists, nor upsetting separationists, who consider faith-based employment discrimination in government contracts an unconscionable establishment of religion. But sooner or later, push comes to shove.

In March, the Salvation Army agreed to a settlement of a decade-old lawsuit brought by two women who had run its publicly funded (to the tune of over $188 million) New York City operation for many years — non-Salvationists fired because they didn’t belong to the church. Faced with a losing case based on the city’s human rights statute, the church paid $450,000 and agreed not to discriminate in employment when the government is paying for the program.

Next up in New York is a plan to institute universal pre-kindergarten. The original Request for Proposal issued by the Bloomberg administration allowed religious providers to bid on contracts but expressly prohibited religious discrimination in hiring. The new DiBlasio administration, which has indicated it might reverse its predecessor’s ban on letting religious congregations use public school facilities, proposes to leave that prohibition out of its revised RFP.

This will come as good news to the Catholic and Orthodox Jewish schools that have signaled an interest in submitting bids, but not to the New York Civil Liberties Union. “We are starting to look at that,” said NYCLU legal director Arthur Eisenberg, adding that he sees the Salvation Army case as providing a perfect precedent.

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Mark Silk

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life.

8 Comments

  1. The real question is why are religious groups being funded by the federal government in the first place. Does the U.S. government fund atheist groups or are they banned from taking place in the special privileges?

  2. Mark Silk

    There’s a very long history of faith-based organizations receiving public funds to do various kinds of social service provision. Over the past two decades, the federal government has sought to make sure that these organizations are not precluded from doing so, subject to certain conditions. Atheist groups are not banned.

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