JONATHAN COHN NOVEMBER 22, 2010
Last week, President Obama signed an executive order clarifying rules for religious groups receiving federal funding to do social service work. Among its provisions are regulations that taxpayer dollars can’t go to proselyting; that federally-funded, religious groups can operate in buildings that contain religious symbols; and that clients receiving services must have the option to see a secular provider if they wish. These rules come six months after an advisory panel submitted their recommendations to Obama, and almost two years after the president renewed and expanded the faith-based office that Bush created, renaming it the White House Office of Faith-Based and Neighborhood Partnerships.
But the new ground rules avoid what is perhaps the most contentious issue at hand: whether religious organizations receiving federal grants can continue discriminatory hiring and firing, employing only co-religionists. According to the Pew Forum, 73 percent of Americans oppose such discrimination by religious groups receiving federal aid. For many critics, the practice flies in the face of church-state separation and equal-opportunity employment.
At one point, the president seemed to agree with the naysayers. On the campaign trail, then-candidate Obama told an Ohio audience: “If you get a federal grant, you can’t use that grant money to proselytize to the people you help and you can’t discriminate against them—or against the people you hire—on the basis of their religion.” But, once elected, the former constitutional law professor reneged on his hiring clause, opting to allow the Justice Department to adjudicate these employment practices on a case-by-case basis. Sidestepping the issue has created an unsatisfying resolution; even as the faith-based office seeks greater transparency for its work, the regulations for employee discrimination are as vague as ever.
Why the Obama about-face? The Civil Rights Act of 1964—or, more specifically, an amendment to that law—has something to do with it. Under the amendment, religious groups can retain religious requirements for hiring purposes, in order to realize free exercise rights. The logic goes that it’s reasonable that you must be Jewish to be a shul’s communication director or that you must be Baptist to be a Baptist youth leader. (Religious discrimination among clients remains illegal—i.e, clients cannot be excluded from programming because they practice different religions than the host organization.) When Bush created his Office of Faith-Based and Community Initiatives in 2001, he explicitly exempted religious organizations from non-discrimination laws even if they were getting federal dollars. Obama was expected to change this Bush-era remnant, but he hasn’t. (Apparently the Clinton Administration had not taken a stand on this question when it first made religious groups eligible to receive some grants through charitable choice.)
Religious groups have a long history, and an often-exemplary record, of social service programming, and over the last fifteen years, lawmakers have sought to recognize this, allowing them to make use of government funding to up the ante on their efforts. But there is a strong argument that the buck should stop where taxpayer dollars begin. Just as the United States no longer discriminates against religious groups applying for federal grants, recipients of federal money should not discriminate against those within their own ranks.
Remember, these dollars are not just in tax breaks. They are direct grants to provide assistance to our most vulnerable citizens—they are, in effect, extensions of the government. In short, Obama the candidate was right. Take taxpayer money and you take a compromise. A handout from the government comes with a handful of regulations, so groups partake at their own risk.
Ultimately the message to groups should be simple: Hire only like-minded believers and fire for religious reasons if you like. Even get tax exemptions while you do it. Just do it with your own donations, not that of taxpayers.