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.

From the Presidential Debates: the "Health of the Mother" Canard Demonstrated.

In last night's presidential debate, Senator John McCain criticized Barack Obama for his opposition to proscriptions on abortion, including partial birth abortion. Obama countered that he had only opposed a Partial Birth Abortion Ban because it did not include an exception for cases where it was necessary to protect the "health of the mother."

Planned Parenthood has argued strenuously that the partial birth abortion procedure -- in which a child is pulled up to halfway outside the birth canal before its skull is crushed, it's brains sucked out, and it is delivered dead -- is necessary to protect a woman's health. In Gonzales v. Carhart the Supreme Court turned away a facial challenge to the law, holding that this procedure was unnecessary to protect a woman's health, deferring to Congress's finding after extensive hearings that the procedure was never necessary to protect a woman's health. However, the Court left open the possibility of as-applied challenges to the PBA ban if a woman's health was ever threatened by the unavailability of the procedure. Justice Ginsburg invited and predicted such challenges.

But after 18 months no such challenge has been brought. 547 days have now passed after the Supreme Court's decision upholding the PBA Ban and permitting it to go into effect. By Planned Parenthood's estimates, likely very low, six partial birth abortions were occurring daily prior to this decision. By these figures, 3,282 partial birth abortions have NOT occurred since the Supreme Court allowed the statute to go into effect without a health exception. Yet, not a single as-applied challenge has been brought claiming that the PBA Ban endangered a woman's health in a specific case.

I have discussed this point previously here and here. Again, either women have experienced a remarkable streak of luck in the past 18 months, the abortion advocacy groups are terribly understaffed in their legal departments, or Planned Parenthood and others were lying about the medical necessity of partial birth abortion. But in any case, someone now arguing for such an exception should bear the burden to demonstrate why the lack of a health exception for partial birth abortions has been a burden on women for the past 18 months.

Washington Post's Senseless Editorial on Religious Hiring Rights

In the Washington Post's editorial today, titled "Faith-Based Obama," (behind subscription), the Post finds that Obama's recent speech on the faith-based initiative and his plan to retain it while stripping religious organizations of their right to hire those who agree with their beliefs is a "sensible balance." The Post reaches this conclusion despite first acknowledging that laws prohibiting religious discrimination in employment exempt religious employers - exemptions that the Post says "only make sense." So, it is sensible to exempt religious employers from these nondiscrimination laws, but it is a "sensible balance" to prohibit them from hiring persons who agree with their views if they are receiving any government funds to provide services that the government believes are necessary. Makes perfect sense.

The flaws in the Post's thinking are many so I'll limit my comments here to a couple. First, the Post seems to approach this question, as many do, from a perspective that faith-based charities are benefitting from the government and thus must be willing to play by its rules. This approach treats faith-based nonprofits as just another government contractor. But while for-profit contractors are generally paid a market rate for a service rendered, charitable organizations receiving a grant under the faith-based initiative are not looking to profit and the grants typically cover only a part of their expenses. The remainder is paid for by the non-profit's donors. It is the government that benefits from these programs because instead of, for example, creating its own homeless shelters, soup kitchens, marriage counseling programs, etc., the government relies upon already existing faith-based and other programs at a much lower cost to the taxpayer. Approaching this matter then from the perspective of what the faith-based organization owes the government for IT's charity misunderstands the relationship.

The Post also claims that most faith-based groups that take federal funds have managed to thrive for years without discriminating in their hiring. It gives no examples, so it is unclear what the Post considers "faith-based." However, it is true that some organizations that are ostensibly religious see no need to limit hiring based on religion. That is unsurprising as an organization that does not limit its hiring to those who share its beliefs will very soon cease to represent those beliefs. And at that point there is no reason to limit hiring to those who agree with views that the organization no longer considers it important to represent.

The Post also cheerleads for imposing sexual orientation nondiscrimination rules on faith-based charities if the proposed Employment Non-Discrimination Act (ENDA) is enacted in an Obama presidency -- even if it contains exemptions for religious organizations (a topic Greg has written on several times here).

Were there any doubt, the Post's editorial unintentionally illustrates why Obama's proposal would create a faith-based initiative that that favors "progressive" religious organizations over "orthodox" religious organizations (more on this from Greg here).

Obama's Vision of the Faith-Based Initiative Prefers "Progressive" Religion

Senator Barack Obama has indicated that he would not abolish the various "offices" and "task forces" within the executive branch dedicated to faith-based and community initiatives if he is elected president.

However, he also indicated that he would change the rules governing the partnerships between faith-based organizations and government. Most significantly, he would curtail the freedom of such religious groups to (1) preserve their religious character by drawing their personnel from among those who voluntarily share their religious commitments; and (2) engage in religious activities.

Some observers declared (incorrectly, in my view) that Sen. Obama's willingness to maintain the faith-based initiative at all was some sort of "Sister Souljah moment" in which he distanced himself from the secular left. These observers seemed surprised that a liberal Democrat was willing to allow any religious groups to participate in government-funded social service programs.

As I see it, and with all due respect, these observers misunderstand the mainstream liberal-left position on church-state relations. Very few on the left categorically oppose the participation of any religious group in a government-funded social service or education program. Instead, they favor the inclusion of a certain kind of religious group and the exclusion of another kind. More specifically, they tend to favor the inclusion of groups that do not integrate religion into their operations and do not draw their personnel from among co-religionists. (In constitutional jargon, such groups are "religiously affiliated.") On the other hand, under the liberal-left view of church-state relations, groups that do the opposite (i.e., integrate religion in their operations and engage in faith-based hiring) are generally ineligible. (Such groups are deemed "pervasively sectarian.") [All this is concededly a bit of an oversimplication, but the general thrust is accurate.]

Those who are surprised that Sen. Obama is willing to fund some religious groups are apparently unaware that the principal divide in American religion is not between religion and irreligion, but between "progressive" religion and "orthodox" religion. [Sociologist James Davison Hunter explores this reality in his indispensable book Culture Wars.] According to Hunter's thesis, evangelical Protestants have more in common with orthodox Jews than with liberal Protestants when it comes to cultural questions. [My own experience confirms this: the Center (part of the theologically orthodox Christian Legal Society) is more likely to be on an amicus brief with the Union of Orthodox Jewish Congregations than it is with the liberal United Church of Christ.]

"Progressive" religious organizations are less likely than "orthodox" ones to integrate religion into their operations or use religious criteria in choosing personnel. Therefore, progressive groups would be far freer than orthodox ones to participate in social service programs under Sen. Obama's proposed system. In other words, to put it bluntly, Sen. Obama would fund his cultural and religious friends while de-funding those with whom he tends to disagree.

The First Amendment (among other things) forbids government from preferring one religion over another. A set of rules that systematically prefer "progressive" religion over "orthodox" religion, in my opinion, is inconsistent with this fundamental First Amendment principle.

Sen. Obama & the Faith-Based Initiative

Senator Barack Obama gave a speech today and issued a plan for how government would work with faith-based organizations were he to become president.

Legislators and advocacy groups have long disagreed about whether the government should work with (i.e., provide funding to) faith-based organizations that take religiously rooted considerations into account in their personnel decisions (something some incorrectly call "discrimination"). Therefore, a key question is this: what are Senator Obama's views? What would he do as president?

The plan states: "In order to receive federal funds to provide social services, faith-based organizations: [1] Cannot use federal funds to proselytize or provide religious sectarian instruction; [2] Cannot discriminate against nonmembers in providing services; [3] Must comply with federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964. Religious organizations that receive federal dollars cannot discriminate with respect to hiring for government-funded social service programs; and [4] Can only use taxpayers dollars on secular programs and initiatives."

Here's my quick take: some of this is bad, but it's not clear how bad.

Item 3 is probably the most problematic. The reference to Title VII, by itself, is fine. All covered employers, including religious ones, must comply with Title VII, whether or not they receive federal funds. However, Title VII (a) exempts otherwise covered religious employers from its ban on religious discrimination; and (b) does not forbid discrimination on the basis of "sexual orientation."

The main problem with item 3 lies in the next sentence: "Religious organizations that receive federal dollars cannot discriminate with respect to hiring for government-funded social service programs." First, it implies that the receipt of federal funds somehow vitiates the religious exemption from Title VII's ban on religious discrimination. This is an objectively incorrect view of the law, but it is one that the secular and religious Left have been pushing. Second, it contradicts a central premise of charitable choice -- that faith-based organizations should not be required to relinquish their religious identity as a condition on participating in government-funded programs. It appears as though Sen. Obama supports, for example, repeal of the charitable choice provision in the 1996 welfare reform law, which bipartisan majorities in Congress supported and which President Clinton signed.

There is an important ambiguity in the plan's language. It says that religious groups that receive federal dollars "cannot discriminate with respect to hiring for government-funded social service programs." What does "hiring for" mean? Is it limited to the circumstance in which the government gives a group a grant, which uses it for the sole purpose of hiring a particular individual (or individuals) to execute the task for which the grant was provided? This is not how non-profits typically use government money; instead, some or all employees are involved executing the task for which the grant was provided. Are such employees "hired for" the government-funded social service program? If so, then the Obama plan would disqualify faith-based groups that preserve their religious identity by drawing their employees from among those who voluntarily share the group's religious commitments.

There is another extremely important ambiguity in the plan. It refers variously to "federal grants," "federal funds," "federal dollars," and "taxpayer dollars." Although the phrase "federal grants" clearly refers to grants (i.e., direct funding), do the latter three phrases include funds that flow indirectly to religious groups? If so, then Obama is proposing a dramatic change -- one that is NOT required by the Constitution. Indeed, such a change is actually forbidden by the Constitution. Under current law, federal aid that flows indirectly to religious organizations can be used for what the plan calls "religious sectarian instruction." It use is not limited to "secular programs and initiatives."

[UPDATE: Although the plan on Senator Obama's website does not distinguish between direct and indirect funding, the written text of the speech he delivered today includes the following sentence: "Second, federal dollars that go directly to churches, temples, and mosques can only be used on secular programs." Note the word "directly."]

Another ambiguity lies in the phrase "social services." For example, are education programs "social services"? If so, then the potential problems with Sen. Obama's plan are profound more serious.

This may not be what Sen. Obama intended, but the ambiguity is nonetheless there.

An additional ambiguity lies in the phrase "secular programs and initiatives." What exactly does this mean? Is a church's practice of feeding the homeless a "secular program"? If so, if an employee of the church or rescue mission audibly thanks God for the food, does the program cease to be "secular"?