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This website is an archive and will no longer be updated. For continuing research and analysis of faith-based social services, turn to the Pew Forum on Religion & Public Life.
Q&A on the Hiring Rights of Tax-Funded Religious Organizations
Posted: September 23, 2008
Question: Should faith-based organizations that receive public funding have the right to base employment decisions on religion? Why or why not?
Respondents
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Stanley Carlson-Thies, Director of Faith-Based Policy Studies, Center for Public Justice (CPJ), a nonpartisan Christian think tank: "Faith-based organizations that receive government funding to provide welfare and other services should retain their freedom to take account of religion in making their employment decisions." Click here for more. |
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K. Hollyn Hollman, general counsel of the Washington, D.C.-based Baptist Joint Committee for Religious Liberty: "In positions funded by tax dollars, all taxpayers should have an opportunity for employment without having to endorse specific religious teachings." Click here for more. |
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Marc D. Stern, Assistant Executive Director of the American Jewish Congress: “There is a reasonable middle ground position. [I]t is possible to draw a distinction between persons whose jobs are wholly funded by government and those who are not, and between positions in which the employee has religious responsibilities outside of the government-funded program and those that do not." Click here for more. |
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Background:
The hiring rights of publicly-funded faith organizations are among the most controversial issues surrounding the federal Faith-Based and Community Initiative. While laws have long protected the rights of religious organizations to employ only members of their own religion, faith-based groups that receive funding to offer certain secular programs have been required to disregard faith in employment decisions.
The right of faith-based organizations to base their employment decisions on employees' beliefs goes back 44 years to Title VII of the Civil Rights Act of 1964. The privilege was restated in the Charitable Choice provisions that President Clinton signed in 1996 to encourage religious charities to provide services to welfare recipients. A federal district court upheld the right in 2005, ruling that the Salvation Army, a Christian organization, did not violate the First Amendment's Establishment Clause (“Congress shall make no law respecting an establishment of religion”) when it considered the faith of its employees, even when those employees were paid with public dollars.
As part of its effort to encourage more religious charities to provide social services with government funds, the Bush Administration has pushed for an expansion of religious hiring rights, including the issuance of an executive order expanding the Charitable Choice provisions and setting policy for federal administrative agencies. But Congress has repeatedly blocked some of these efforts by maintaining employment nondiscrimination provisions in such programs as the Workforce Investment Act and Head Start early education.
The two major-party candidates for President, Republican John McCain and Democrat Barack Obama, differ in their stance on the issue. Sen. McCain has said that he supports the ability of publicly funded faith-based groups to prefer people of their own faith in employment decisions. Sen. Obama has said that, when providing tax-funded programs, such groups should not be allowed to engage in what he characterized as employment discrimination.
The Roundtable asked three experts who have followed the religious hiring rights issue closely to offer their informed opinions on the subject, in what is planned as the first of several online “panel discussions” on topics related to the Faith-Based and Community Initiative. (More information on religious hiring rights is available through a Roundtable Resource Page.) |
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Stanley Carlson-Thies is Director of Faith-Based Policy Studies at the Center for Public Justice (CPJ), a nonpartisan Christian think tank located in the Washington, DC area. He focuses on research and advocacy in the area of government policy concerning faith-based organizations. He previously served with the White House Office of Faith-Based & Community Initiatives from its inception in February 2001 until May 2002. He assisted with writing "Unlevel Playing Field: Barriers to Participation by Faith-Based and Community Organizations in Federal Social Service Programs," a report released by the White House in August 2001, and "Rallying the Armies of Compassion," the initial blueprint for President George W. Bush’s faith-based and community agenda. He also helped to organize and guide the work of the five initial cabinet centers for faith-based and community initiatives. In addition, he is the author and co-author of several books and papers, including "The Freedom of Faith-Based Organizations to Staff on a Religious Basis," "Revolution of Compassion," "Implementing the Faith-Based Initiative," and "Charitable Choice: Bringing Religion Back into American Welfare." |
Question: Should faith-based organizations that receive public funding have the right to base employment decisions on religion? Why or why not?
A: We should state it the other way: Why shouldn't faith-based organizations that receive government funding to provide welfare and other services retain their freedom to take account of religion in making their employment decisions?
There is a broad consensus that it is proper for faith-based organizations to hire people of like-minded faith. This is a key way that a religious organization manifests its religious identity and standards over time. It's like a Democratic congressional office hiring only Democrats and union headquarters insisting on employees who are committed to trade unionism. So - no surprise - Lutheran social services have Lutheran executives, evangelical nonprofits hire Christians, Catholic pregnancy counseling agencies have few pro-choice secularists, and Jewish community agencies are headed by . . . you can guess.
Thus, when Congress, nearly a half century ago, wrote the basic federal civil rights rules for employees, forbidding job discrimination on the bases of race, color, sex, national origin, and religion, it exempted faith-based organizations from the ban on considering religion when making employment decisions (Civil Rights Act of 1964, Title VII). Originally, religion could be considered only if the job was ministry-related, but that proved unworkable and the restriction was removed when the law was amended in 1972. That leaves it to the faith-based organization, not Congress, to decide when religious convictions are relevant. This was, as amendment sponsor Sen. Sam Ervin (D-NC) said, the way to “take the political hands of Caesar off the institutions of God, where they have no place to be.” And when that broad religious hiring freedom was challenged, the U. S. Supreme Court unanimously upheld it (Corporation of the Presiding Bishop v. Amos, 1987).
Should this religious staffing freedom be forfeited when the faith-based organization receives government funds to provide social services? For the religious charity, having a staff committed to its mission is no less important when it has agreed to help out the government than when it is operating on its own. When it receives government funds, it does not magically become a part of the government; it is still an independent entity with a character and an identity of its own. Some faith-based service providers go along with a restriction on religious staffing for the sake of collaborating with government to address a problem. For many, though, that price is too high: forced to hire without regard to faith, they would no longer be a faith-based agency. It's reasonable and necessary for the government to specify how services are delivered and to monitor to be sure that the funds are used for charitable purposes. But why should it require the organization to abandon its pre-existing right, its management practice, of ensuring a staff compatible with its identity and ethos?
Indeed, the courts overwhelmingly have said that the religious hiring freedom is not lost simply because government money has appeared. Nor has Congress. In a few federal social programs it has imposed a ban on religious staffing, but in other programs (those with the Charitable Choice provision) it has specifically protected the religious staffing freedom, and in all of the rest of the federal programs it has specified no rule, thus allowing faith-based organizations to rely on Title VII of the Civil Rights Act and not restrict their religious hiring practices. (Some states and localities do restrict religious hiring, even when the program funding comes from a federal program that has no such prohibition.)
Should the restriction, rather than the freedom, be made general, when government funds are received by a faith-based group? There is no constitutional necessity; the courts have said that organizations don't become government agents by accepting government money. There is no Establishment Clause violation when government funds a private organization with a religious staff (see the 2005 New York federal case, Lown v. Salvation Army). [Editor's note: The Roundtable's legal analysis of that case is available here.]
Faith-based organizations, whether some or all of their staff are of a like faith, can and do serve all without religious discrimination, and they can and do abide by the requirement not to use government grants to pay for religion. Why then must religious staffing be banned? At the end of the day the argument comes down to this: government money shouldn't support job discrimination. But religious staffing is not like racial job discrimination. Racial discrimination has no constitutional value. Religious freedom, including freedom for religious organizations, in sharp contrast, is expressly protected by the Constitution.
It isn't wrongful job discrimination for a faith-based organization to take account of faith when selecting staff; that's why Title VII accommodates, rather than forbids, the practice. In respecting that practice when it partners with faith-based organizations to address society's social needs, the government furthers vital goals: it protects diversity - a civil society with genuinely different organizations; it honors religious freedom - faith-based organizations are a key means by which faith communities turn their convictions into deeds; and it respects the independence of the independent sector, rather than imposing a one-size-fits-all rule.
By respecting the religious staffing freedom when it engages with faith-based service organizations, the government makes it possible for sacred-secular partnerships to flourish without the secular government swallowing the faith-based sector. In this framework of rules, the focus is, as it should be, on how well those in need are served and who can best serve them. |
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K. Hollyn Hollman is general counsel of the Washington, D.C.-based Baptist Joint Committee for Religious Liberty, a 70-year-old advocacy group. As general counsel, Ms. Hollman provides legal analysis on church-state issues that arise before Congress, the courts, and administrative agencies. Her work includes preparing friend-of-the-court submissions, presentations for research institutions and religious organizations, and issue briefings for congressional staff. Prior to her work at the Baptist Joint Committee, Hollman was an attorney in private practice specializing in employment law and litigation. She practiced in firms in Nashville, Tennessee, and in the District of Columbia. She is a member of the U.S. Supreme Court, District of Columbia and Tennessee bars. |
Question: Should faith-based organizations that receive public funding have the right to base employment decisions on religion? Why or why not?
A: As applied to employees who provide government-funded services, the answer is “no.”
The religious freedom individuals and religious entities enjoy in this country is fundamental. The First Amendment creates a separation between the institutions of religion and government and prohibits government sponsorship of religion. Any government funding of faith-based organizations must be carefully structured to protect religious freedom in accordance with this constitutional imperative. Allowing faith-based organizations to discriminate in government-funded positions strains the purpose of such funding (the provision of non-religious social services) and undermines civil rights.
The competing principles at issue are evident in Title VII of the Civil Rights Act of 1964, a federal statute that protects against employment discrimination based on race, color, religion, sex and national origin. This law applies to employers with 15 or more employees, but it exempts religious organizations (a broader category than churches) from the ban on religious discrimination. It is one of many nondiscrimination laws at the federal, state and local levels that protect categories of employees who historically have been the victims of discrimination. The importance of federal antidiscrimination policy is evidenced by decades-old executive orders, including those governing federal contracts, as well as the very existence of the federal Equal Employment Opportunity Commission. Courts strictly scrutinize alleged discrimination by covered employers, and the government has a special responsibility as a model equal opportunity employer.
Title VII's exemption for religious organizations, which the U.S. Supreme Court has upheld in the context of a privately funded entity, is quite broad. It applies to all employees of qualifying entities, not just those with religious duties. And it allows a Baptist organization not only to hire just Baptists, but to hire just those Baptists who embrace specific beliefs and practices, allowing employment decisions based on even minor theological differences. As a matter of religious autonomy, it makes sense to safeguard institutional religious liberty by allowing a Baptist entity to hire only those whose beliefs and practices it approves. The exemption is a permissible legislative accommodation (not a constitutional right) created in the context of privately funded religious organizations, a context in which it enjoys wide support.
In positions funded by tax dollars, however, all taxpayers should have an opportunity for employment without having to endorse specific religious teachings. Surely individuals from a wide variety of religious perspectives, as well as those who claim no religious affiliation, can be equally dedicated to providing services to those in need. Extending the exemption to government-funded positions breaks sharply with past practice, stretching it beyond the context in which it was originally enacted and seriously undermining civil rights protections.
To deny the significant impact of government funding on faith-based organizations is to ignore threats to religious liberty and civil rights. Some argue, for instance, that Title VII's exemption for religious organizations is analogous to an environmental group's ability to reject those who are not committed to environmental protection. The analogy is inapt and disingenuous. Religion is different, singled out for special protection in the First Amendment. While the government may freely choose to support environmentalism as a matter of policy, the Establishment Clause prohibits government from supporting religion. Moreover, our employment laws prohibit discrimination against only certain protected categories, such as religion, race, gender and disability. Congress has extended no such protection to anti-environmentalists. Allowing a government-funded program to announce “no Catholics or Jews need apply” is categorically different from the Sierra Club refusing to hire proponents of strip-mining or, in another common example, Planned Parenthood refusing to hire abstinence-only activists. It is of no legal consequence if such non-religious organizations receive federal funds while hiring on the basis of ideology. By contrast, faith-based organizations are constitutionally barred from promoting religion in government-funded programs. While faith-based organizations certainly may refuse to hire individuals who do not believe in helping those in need of social services, they should not be allowed to impose a religious test with tax dollars.
The issue, no doubt, becomes more complex when applied to faith-based organizations that hire according to religion and provide both government-funded social services and privately funded religious services. While religiously affiliated groups may have good reasons - such as preserving relationships with denominational entities, honoring historical commitments, or ensuring continuity of purpose - to fill some positions exclusively with members of their own faith community, acceptance of tax dollars creates competing policy concerns that require line-drawing. The law should do so by distinguishing between those who are regularly engaged in providing government-funded services and those who oversee a variety of programs or are solely engaged in religious services.
Difficult line-drawing should not be surprising or offputting. Constitutional protections and compliance with policies that attach to government funding deserve to be upheld. Despite the wishes of some advocates, there is no easy way to reconcile the twin objectives of protecting the religious character of thoroughly religious organizations and upholding the constitutional ban on government funding of religion. The tension between equal employment opportunity and the autonomy of religious organizations is just one example of the complexities inherent when the government funds faith-based organizations.
There are many ways for the faith community and government to work together to serve the needy. Indeed, there is a laudable and long-standing tradition of such cooperation without threatening our nation's commitment to nondiscrimination. There should be no question that privately funded religious organizations may rely upon Title VII's exemption. Likewise, there should be no question that in government-funded programs, we should take care to protect against constitutional violations and the erosion of civil rights. Religious organizations that fear a potential weakening of their religious witness if required to hire those who share a commitment to social services but not the details of their faith should re-evaluate their decision to accept government money. If the ultimate objective is to provide social services and not to promote religion, there is no justification for employment discrimination based on religion in government-funded positions.
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Marc D. Stern,
American Jewish
Congress Marc D. Stern is Assistant Executive Director of the American Jewish Congress, and Co-Director of its Commission on Law and Social Action. Stern is an expert on issues related to religious liberty and the separation of church and state. Prior to joining the American Jewish Congress in 1977, Stern was a law clerk to the United States Court of Appeals for the Fourth Circuit. Under Stern's leadership, the American Jewish Congress produced guidelines used by the Clinton Administration to clarify church-state issues. The guidelines include “Religion in the Public Schools,” “Religion in the Federal Workplace,” and “Public Schools and Religious Communities: A First Amendment Guide.” He has published various articles on civil rights and civil liberties. He has most recently contributed a chapter to a new book, "Same-Sex Marriage and Religious Liberty: Emerging Conflicts." |
Question: Should faith-based organizations that receive public funding have the right to base employment decisions on religion? Why or why not?
A: Opponents of Charitable Choice have gone so far as to name their coalition against the Bush Administration's Faith-Based and Community Initiative the Coalition Against Religious Discrimination (CARD). Most are opposed to all, or almost all, of the Initiative, including any funding for programs that incorporate religion into the delivery of social services even if those programs do not involve employment discrimination.
Proponents of the President's faith-based program have made it plain for their part that they are not interested in a faith-based program that prohibits participating religious organizations from exercising their otherwise statutorily protected right to hire only persons sharing the group's religious vision.
In fact, when President Bush proposed legislation to codify his broad vision for Charitable Choice, it ran aground largely over opposition to employment discrimination in federally funded programs from Democrats. He then proceeded unilaterally by executive order.
Senator Obama's recent pronouncement on Charitable Choice - proposing an expansion of the program and a ban on discrimination - ran into criticism from the “religious right” over the same issue.
Focusing the debate over the Faith-Based Initiative on employment discrimination has never made sense. Either it is constitutionally permissible and good social policy to fund organizations in which religion is an integral part of the program, or it is not. If it is not, it is hard to see any justification for allowing religious discrimination in employment in government-funded programs. If it is, then it makes no sense to tell organizations that they may incorporate religious ideas into their programming, but that they must also hire atheists or people with very different religious visions to do so.
General civil rights principles follow what is known as the infection theory. That is, if an organization accepts a government dollar, everything it does is subject to anti-discrimination rules, not just the specific program funded. Applied strictly to the funding of religious and religiously affiliated organizations, this principle would require Catholic Charities to hire me as executive director, and, reciprocally, a Jewish Federation to hire the Pope as director of Jewish communal affairs, since both organizations are at least in some measure funded by government.
Those results are absurd on their face. I have yet to hear the most devout opponent of the Faith-Based Initiative defend them. But the rhetoric of the CARD coalition points to exactly this result, even as it insists that funding such organizations was perfectly acceptable before President Bush formalized such arrangements. Many of the affected agencies both denied discriminating and, in the same breath, insisted on their right to hire members of their faith to executive positions, often oblivious to the evident inconsistency.
If an absolute ban on discrimination is intolerable, neither is it acceptable to say that in positions with little or no discernable religious content - say, home health aides or persons teaching computer skills in a welfare-to-work program - and funded exclusively by government, unfettered religious discrimination is tenable politically or as a matter of policy.
The problem becomes even more acute when - as the current rules allow - a religious provider has an exclusive contract to provide a particular service in a geographical area. It is asking too much of taxpayers to ask them to fund hundreds of jobs that they cannot hold. In some fields, such as social services, government-funded jobs are a substantial part of the available positions. Government-funded, religiously restricted jobs, in which large numbers of citizens are unwelcome, are not an attractive possibility.
As of the moment, the question is not one of constitutional law, although both sides to the debate often confidently assert otherwise. A uniform rule requiring nondiscrimination by government contractors is a facially neutral rule of general applicability, so it would not be, under prevailing (rather anemic) Free Exercise law,* a denial of religious liberty. [Editor's note: the First Amendment's Free Exercise clause is the part that prevents Congress from prohibiting the free exercise of religion.] Neither, however, does anything in current Establishment Clause law flatly prohibit government from allowing religious discrimination in those it subsidizes or hires to carry out its programs. Congress and the Executive therefore have substantial leeway to formulate policy.
There is a reasonable middle ground position. Given that it is common ground that religious teachings themselves cannot be funded by direct grants, such that government-funded positions cannot be used for propagating the faith, it is possible to draw a distinction between persons whose jobs are wholly funded by government and those who are not (for example, a worker wholly funded by government versus an executive of an agency only a small portion of whose salary is attributable to government funds); and between positions in which the employee has religious responsibilities outside of the government-funded program (say, a director of Jewish education in a Jewish community center who also has responsibility for a government-funded senior citizens lunch program) and those that do not. The details need to be ironed out, but the general thrust is clear.
A reasonable compromise is thus conceivable, though not particularly likely under current political alignments. In the end, this is mostly not a battle over constitutional law. It is one more manifestation of a dispute over whether religion's public role (if it is to be conceded to have one at all) is simply one of improving the temporal human condition or responding to a different set of imperatives, whether popular or not. That debate has divided American religion for more than a century now, and shows no sign of abating. Compromise over faith-based hiring will probably therefore remain elusive.
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