Presentation at CCCU Presidents Conference

I participated in a panel discussion this morning at the Council for Christian Colleges & Universities Presidents Conference in Washington, DC. The topic was "Legal and Public Policy Issues." I talked about religious staffing freedom -- recent events and imminent threats.

I asserted the threat that religion and sexual orientation nondiscrimination rules pose stems from a more foundational problem: the growing cultural acceptance of same-sex sexual conduct and the corresponding cultural condemnation of those who hold the traditional position on marriage and human sexuality.

I then ran through some developments in this area over the last twelve months: the passage of Prop 8 in California; the discovery of a right to same-sex "marriage" in the Connecticut constitution by the state's supreme court; Congress's failure to enact ENDA; DOJ's publication of the OLC opinion regarding RFRA, federal money, and religious staffing freedoms; the bad decisions in Truth v. Kent and North Coast Women's Health v. Superior Court; and the good outcomes in AFBO v. Iowa and Doe v. California Lutheran.

With regard to what the near future holds, I pointed to the emphasis on "LGBT concerns" on the White House website's "civil rights agenda" page; the likely introduction of ENDA; continuing litigation [much of which the CLS Center is involved in]; and the Obama Administration's approach to religious staffing freedoms in the faith-based initiative.

Faith-Based Hiring and the Obama Administration

The Pew Forum on Religion and Public Life has posted the transcript of a Q&A with GWU law professor Chip Lupu regarding faith-based hiring and the Obama Administration.

Professor Lupu predicts that the new president's Office of Legal Counsel will disagree with its predecessor's conclusion that the Religious Freedom Restoration forbids the federal government from imposing religion nondiscrimination strings on religious recipients of federal money.

Professor Lupu also observes that the new administration might seek to add new nondiscrimination strings to specific program funding and/or take away existing protections for religious staffing freedom in certain other programs (e.g., Temporary Assistance to Needy Families).

NY Times Article on Religious Staffing Freedom and Government Funds

The New York Times has published an article regarding the Department of Justice's opinion about religious staffing freedom and government funds.

Former Center Director and University of Missouri law professor Carl Esbeck is quoted in the article, defending the DOJ opinion.

ACLU rep Christopher Anders calls the memo “the church-state equivalent of the torture memos,” referring to the Department's conclusion that the government does not have a compelling interest in forcing religious employers to hire people who reject the organization's religious beliefs.

This is incredible. Since when is it so awful for religious employers to consider religion in personnel decisions? Should the government intervene when a synagogue declines to hire a Muslim as a rabbi? Should a Unitarian congregation face liability if it won't choose a "fundamentalist" Christian to serve as its pastor? Adding government money to the mix doesn't change the analysis -- it is still not wrong for religious groups to draw their personnel from among those who voluntarily embrace the group's beliefs.

The fact of the matter is that both the Constitution and RFRA forbid the federal government from forcing religious groups to give up the exercise of a constitutional right in exchange for social service and education money.

Senator Obama has suggested that religious groups should not be allowed to preserve their religious character through staffing policies if they want to participate in government-funded programs. If Mr. Obama is elected president, it is conceivable that he will repudiate the Department's opinion and apply religion nondiscrimination rules to religious groups, thereby undermining genuine religious freedom.

Justice Department Posts Opinion on Religious Staffing and RFRA

The U.S. Department of Justice has finally put online its June 29, 2007, opinion stating that the Religious Freedom Restoration Act (RFRA) permits the government to exempt a federal grant recipient from a religion nondiscrimination attached to the money. The Department's Office of Legal Counsel issued the opinion.

The Department's Office of Justice Programs had awarded World Vision, a religious organization, a $1.5 million grant under the Juvenile Justice and Delinquency Prevention Act of 1974. As a condition of receiving grants under the Act, recipients may not discriminate on the basis of religion in "employment in connection with any programs or activity." World Vision takes religion into account in its personnel decisions.

The Religious Freedom Restoration Act of 1993 forbids the federal government from substantially burdening a person's exercise of religion, unless the imposition of that burden is the least restrictive means of furthering a compelling government interest.

OLC explained first that World Vision's operation of its government-funded program constituted the "exercise of religion" within the meaning of RFRA. It then stated that the government would "substantially burden" World Vision's religious exercise if it required World Vision to comply with the religion nondiscrimination rule. Finally, OLC concluded that applying the religion nondiscrimination rule to World Vision would not further a compelling governmental interest.