RFRA and Bans on Religious Discrimination

As readers of this blog know, the freedom of religious organizations to take religious considerations into account in their personnel decisions is under attack. Certain federal statutes forbid participants in federally funded programs from "discriminating" on the basis of religion, even in their employment decisions. One objective of President Bush's faith-based initiative was to exempt religious organizations from these requirements. Legislation designed to accomplish that purpose never garnered the 60 votes necessary to get out of the Senate. As a result, these federal statutory provisions remain.

Of course, the continued existence of these provisions isn't the end of the story. In our view -- and in the view of some courts -- government violates the Constitution when it forbids religious organizations from taking religion into account in personnel decisions. The Constitution isn't the only limit on federal power over religious associational freedom; the Religious Freedom Restoration Act (RFRA) also restrains this power. In essence, RFRA declares that the federal government may not substantially burden religious exercise unless the burden is the least restrictive means of achieving a compelling governmental interest.

The question arises, then, whether federal statutes that condition receipt of federal money upon compliance with a religion non-discrimination rule violate RFRA (when applied to religious organizations). Professor Carl Esbeck of the University of Missouri has a forthcoming essay addressing this question. It is entitled, "The Application of RFRA to Override Employment Nondiscrimination Clauses Embedded in Federal Social Service Programs." An abstract of the article is on SSRN, and the paper can be downloaded from that site.