Religious hiring by faith-based organizations is not illegal job discrimination.
After all, they are religious organizations, with a religious mission and motivation, a religious identity, religious activities, and religion-shaped concepts of service. Such an organization, naturally, cares that the convictions and conduct of its staff fits with its religious commitment — just as pro-choice groups aren’t inclined to hire people who will undermine their message, Democratic Senators’ offices screen out Republican applicants, and ecological organizations seek staff that care deeply about the environment.
For that reason, when Congress in 1964 created the basic federal employment non-discrimination rules, it made sure to preserve the freedom of faith-based organizations to hire according to faith. State and local employment civil rights laws include a similar exemption for faith-based organizations. Religious hiring by religious organizations is not a violation of civil rights laws but a freedom built into them.
Some activists believe that the religious hiring freedom does, or should, vanish if the faith-based organization receives government funds to provide education, social services, health care, or overseas development assistance. That’s not the view of the courts or Congress. The courts say the freedom only is given up if the faith-based organization receives money from those government programs that specifically prohibit such hiring. That’s the view of Congress, too — and most of the time, Congress doesn’t add such a prohibition when it creates a program that uses private organizations to provide services. True, some programs include a ban — Head Start, for example. But most federal programs don’t, and some federal programs — those with Charitable Choice language (signed into law by President Bill Clinton) — specifically emphasize that the hiring freedom isn’t lost when a faith-based group participates.
The Bush administration clarified these facts about the religious staffing freedom, and urged Congress (without success) to remove the prohibition in programs that currently have it.
President Obama, on the campaign trail, said that he intended to ban religious hiring in every social service program that a faith-based group operates using federal funds — thus making the current limited prohibition very sweeping. Yet, after he became President, he adopted a different stance. When he introduced his White House Office of Faith-Based and Neighborhood Partnerships, he said that, instead of making a drastic change, he would leave the current rules about religious hiring in place, subject to legal review when questions arise.
This decision to stay with the legal status quo is an acknowledgment of the reality that many of the organizations that currently partner with the federal government to provide services to the poor, sick, and neglected are faith-based organizations that, as the law permits, take account of religion when hiring their staff. Many of them have informed the administration that, should a sweeping ban be introduced, they would be forced to stop their service partnerships with the federal government. The result would be the breaking of many long-standing partnerships and a massive disruption of services to the needy.
Even though in most federal programs Congress has decided to leave the religious hiring freedom intact, some members recently have become severe critics of the practice. They have called religious hiring by faith-based organizations “religious job discrimination” — a practice so immoral that it is intolerable for the federal government to “subsidize” it by allowing it to continue when the group gets federal funds. One member suggested that faith-based groups hire according to religion simply because they despise people of other beliefs so much that they cannot stand to work in the same room with them.
In fact, faith-based organizations take account of religion in hiring not to be against other religions but to be for their own — because they want to make sure that the organization remains true to the convictions of their faith. It isn’t that religious hiring is so immoral that it is wrong for it to continue when federal dollars come into the organization. Rather, religious hiring is so important to the identity and integrity of faith-based organizations that the freedom ought to be protected even when federal funds are involved.
Some faith-based organizations consider religion when they hire for all positions in the organization, top to bottom; other groups insist on the same faith only for some job positions, such as the top leadership, chaplains, and specific other positions. And while sometimes the organization really is seeking job candidates of the same denomination, often the goal is a new staffer who simply is religiously compatible — a fellow Christian, of whatever denomination, for example; and sometimes the goal is even just a candidate who, whatever their faith, is spiritually alert and deeply empathetic with the goals and standards of the organization.
Yet, in all cases, the faith-based organizations believe it must be their choice, their decision, to decide when religious conviction and faith-based standards of conduct ought to be key criteria, along with skills, education, and experience. As Democratic Senator Sam Ervin remarked in 1972, when Congress expanded the exemption in the 1964 Civil Rights Act to permit religious hiring in every single position of faith-based organizations, this expansion was important “to take the political hands of Caesar off the institutions of God, where they have no place to be.” It ought to be up to the religious organizations, not Congress, presidents, or courts, to decide how important religion is to the identity and operations of the organization.
The religious hiring freedom is a vital “tool” for faith-based organizations determined that their services, practices, and staff should exemplify the religious convictions that inspired the creation of the organization. And faith-based organizations are vital “tools” by which people of various religions put “hands” on their convictions — ways to put their convictions into practice in serving the needy, caring for the sick, contributing to the renewal of their neighborhoods, or responding to disasters, disease, or poverty overseas. Putting religious convictions into practice is the heart of the “free exercise of religion” that is guaranteed by the First Amendment of the U.S. Constitution. So leaving faith-based organizations free to consider religion when hiring staff, whether or not a service will be funded by government, is a key instance of the First Amendment’s religious freedom, as applied to organizations.
Individuals and organizations that care to preserve this freedom need to be talk about how and why it is important to them — talk about it inside the organization but especially when talking to elected and appointed government officials about current and possible new service partnerships. Use this “talking point” as a way to state briefly and clearly how important the freedom is to you.
And remember: a freedom that is not exercised will not be preserved. Faith-based organizations that care deeply about their faith basis and thus about the message their staff exemplifies should be sure to hire by faith boldly. Be sure that job applicants know what the organization stands for and the views and values they will be expected to live by. If faith-based criteria really are important in evaluating job candidates, then a clear connection between employment standards and the organization’s faith commitments ought to be evident in job documents. Use the “Religious Staffing Checklist” as a guide to aligning the organization’s convictions with its employment practices.
“The Religious Hiring Freedom” — a one-page summary.
“Ten Affirmations on Religious Hiring” — an overview of the key facts and arguments.
Details on the history and constitutional, legal, and policy foundations of the federal religious hiring freedom: Carl Esbeck, Stanley Carlson-Thies, and Ron Sider, The Freedom of Faith-Based Organizations to Staff on a Religious Basis (Center for Public Justice, 2004). Pdf can be downloaded for free.