President Should Keep Resisting Pressure to Hamper FBOs by Limiting Religious Staffing

President Should Keep Resisting Pressure to Hamper FBOs by Limiting Religious Staffing

Various progressive civil rights, religious, LGBT, and union organizations have asked President Obama to agree with them that religious hiring by religious organizations is discrimination that should be banned in federal grant programs.  Their August 20, 2015, letter asks him to reverse a 2007 Office of Legal Counsel (Department of Justice) memo that interpreted the Religious Freedom Restoration Act (RFRA) as protecting religious hiring.  But their complaint ignores the law, relying instead on generalizations and prejudicial characterizations.

If the President accepts the letter’s advice, the consequence would be diminished religious diversity because the ability of religious organizations to be true to their religious identities in public would be suppressed. As a matter of public justice government should uphold the freedom of our diverse organizations to be distinctive and not curtail the religious freedom of any minority based simply on the current attitude of public opinion.

Moreover, excluding religious organizations that hire by religion would undermine government partnerships to serve the needy, which should choose the most effective partners, secular or religious through which to promote the common good.  The President should ignore this letter as he did the previous three letters because it fails to promote and protect religious freedom for all institutions.

The disputed Office of Legal Counsel (OLC) memo concluded that a religious organization that considers religion in hiring–World Vision, in this specific instance–could, because of RFRA, receive a grant in a Department of Justice program even though the specific law governing the program forbids religious (and other) employment discrimination by grantees.  To require World Vision to stop its religious hiring as the price of participating in the grant program would be to impose a “substantial burden” on the organization’s religious exercise that the government can require only if it has a “compelling interest” to forbid religious hiring by grantees.

Yet there is no such compelling interest, the memo concludes; to the contrary, most grant programs do not restrict religious hiring by religious organizations, the general federal rule banning job discrimination by recipients of federal funds (Title VI of the 1964 Civil Rights Act) does not even mention religion, and some grant programs specifically protect religious hiring, e.g., the welfare program—TANF—with its Charitable Choice language.

The progressive groups’ letter to the President does not challenge the legal analysis in the OLC memo but instead claims that memo illegitimately creates a “blanket exemption” or “blanket override” of “laws that protect against discrimination,” thus “ permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination.”  The letter asserts that leaving the OLC memo in place will “tarnish the legacy of [the President’s] work to advance fairness and equal treatment under the law for all Americans.”

The letter appeals to the view popular among many that any organization that considers religion when hiring and firing is just engaging in unjust discrimination, arbitrarily excluding a qualified person due to a prejudice against the person’s religion or lack of religion.  Such religious job discrimination is bad in itself, according to this view; for it to be permitted in a federal grant program, using taxpayer funds, is unconscionable. Surely the government has a compelling interest to forbid religious staffing by federal grantees.  Thus the OLC memo is wrong and should be reversed.

Instead, after Congress in 2013 added to the Violence Against Women Act a sweeping ban on discrimination by grantees, including religious job discrimination, the Obama administration relied on the 2007 OLC memo to set out a way that religious organizations that do consider religion in making their staffing decisions can appeal to RFRA in order to be able to participate in VAWA funding without giving up their religious staffing freedom.

In short, the Obama administration accepts that there is no compelling government interest to forbid religious staffing decisions by religious organizations that receive federal funds, just as the OLC memo argues.  Indeed, when President Obama issued Executive Order 13672 in 2014 to ban job discrimination on the bases of sexual orientation and gender identity by federal contractors, he left intact the freedom of religious federal contractors to consider religion in making their employment decisions.

However, contrary to what the progressive groups’ letter says, in the OLC memo and in the administration’s practice there is no “blanket override of a statutory nondiscrimination provision.” First of all, most federal funding programs do not include a statutory prohibition on religious hiring at all; rather, most are silent about job discrimination and some specifically protect religious hiring, as do the federal contracting rules.

Second, when RFRA provides an exemption when a program’s statute does forbid religious (and other) job discrimination by grantees, it does not function by providing a “blanket exemption.”  Such an RFRA exemption or override is available only to religious organizations, not to non-religious employers who might have a religious prejudice against some job applicant.  And the religious organization has to have a settled policy of religious staffing—it cannot just make up a religious excuse because it wants to fire or not hire some person.

Moreover, to avail itself of the RFRA exception, an organization must certify to the federal government (this is the language used in the VAWA program) that it is “a religious organization that sincerely believes that providing the services in question is an expression of its religious beliefs; that employing individuals of a particular religion is important to its religious exercise; and that having to abandon its religious hiring practice in order to receive the federal funding would substantially burden its religious exercise.”  That is a significant list of conditions—and the federal government reserves the right to reject the application for a RFRA exemption “if there is good reason to question the FBOs truthfulness” in filling out the certification form.

The progressive groups’ letter is simply off course.  The basic American practice is to protect the religious identity and character of religious organizations by permitting them to consider religion when they hire and fire employees, just as the law does not prohibit Senate offices from assessing the political convictions of job applicants or PETA from rejecting cat-haters who apply for jobs.

Enabling religious organizations to continue to hire based on religion when they agree to partner with the government avoids making eligibility for the government funds conditional on abandonment by the organizations of a right (religious hiring) specifically protected in law.  And protecting that right when government funds are involved has a big benefit for government and society:  it keeps those many faith-based based organizations from having to reject government funds and partnerships with government in order to maintain their religious identity.  Because faith-based organizations play such critical roles in serving persons, families, and communities, protecting religious hiring is an essential way to promote the common good.

Protecting religious hiring is not simply a matter of respecting legal freedoms and constitutional principles but is thus a vital means to promoting social justice in our society.

Still, the legal arguments simply contradict the progressive groups’ letter.  Consider:  At the very time the federal government adopted a law forbidding racial, ethnic, religious, and sex discrimination against job applicants and employees (Title VII of the 1964 Civil Rights Act), it created a religious hiring exemption for religious organizations.  When the job discrimination protections were strengthened in 1972, the religious staffing exemption was extended to cover every job position in a religious organization.  And when that broad exemption was challenged in court, the US Supreme Court in 1987 (Corporation of the President Bishop v. Amos) unanimously upheld the broad religious staffing exemption.  State and local laws have similar exemptions to protect religious staffing.  (All of this is separate from the narrower protection for religious organizations to choose their religious leaders on whatever basis they decide—this “ministerial exception” was created by the courts and unanimously upheld by the US Supreme Court in its 2012 decision Hosanna-Tabor v. EEOC.)

In other words:  under general employment law, it is not “discrimination” when a religious organization considers religious beliefs and standards in making hiring and firing and other employment decisions.  And when a religious organization receives a government grant, its religious staffing practices do not all of a sudden become illegal.  Recall:  the nondiscrimination restrictions that Congress applied to federal funding in the 1964 Civil Rights Act do not restrict religious hiring by religious employers.

In some cases, e.g., when VAWA was reauthorized, Congress has banned job discrimination by grantees, including in the ban job discrimination on the basis of religion.  But in 1993 Congress also passed—nearly unanimously, and to great acclaim—the Religious Freedom Restoration Act, precisely to deal with general laws that have the unintended effect of wrongly burdening the religious exercise of individuals or organizations.  When RFRA is used to enable a faith-based organization that would be a good partner for the government to take part in a program even though the program bans various kinds of job discrimination, including religious discrimination, then RFRA not only lifts a wrongful burden on religious exercise but also enables the government to achieve its aim most effectively.

The President and the administration rightly ignored the previous letters and instead maintained the OLC memo.  The latest letter has more signatures but not a better argument.  The President should reaffirm, not withdraw, the OLC memo and in doing so uphold religious freedom for all.