Can Religious Groups Receiving Federal Funds Hire Only Co-Religionists? An Issue that Divides Obama and McCain Is the Subject of a Newly-Released Department of Justice Memorandum

By MARCI HAMILTON


Thursday, Oct. 30, 2008

Recently, the United States Department of Justice released a controversial memo produced by its Office of Justice Programs (OJP) and dated June 29, 2007. The memo argues that the Religious Freedom Restoration Act (RFRA) requires the federal government to permit religious groups receiving federal funds from OJP to hire only co-religionists. This issue is directly relevant to the presidential election, because the two candidates have different views on whether entities that discriminate on the basis of religion should be permitted to receive federal funds. In this column, I'll focus on which view is correct.

As I mentioned in an earlier column, Sen. Barack Obama has endorsed the federal faith-based initiative that provides federal funds to churches for social-service programs. However, he has also taken the position that those groups cannot discriminate on the basis of religion in staffing those programs.

In contrast, it now seems very likely that if Sen. John McCain were elected, his Administration would not stray in any way from the extreme positions taken by the Bush Administration to serve religious interests - including this one. McCain's decision to choose Alaska Governor Sarah Palin as his running mate, in order to satisfy the far right religious "base," is an unmistakable signal in this regard: A President McCain would almost surely stick with the OJP's reasoning. But is the OJP's reasoning correct or good public policy?

The Memo's Analysis

To be more specific, the OJP memo addressed whether World Vision Inc. could engage in an anti-gang mission with federal funds with only co-religionists under its employ, and concluded that it could.

To reach that conclusion, the memo analyzed the impact of RFRA on the Omnibus Crime Control and Safe Streets Act of 1968 (the "Safe Streets Act"). RFRA scales back the impact of federal laws by prohibiting the application of a federal law to a religious entity if the law imposes a "substantial burden" on the entity, and if the government fails to prove that it has a "compelling interest" in the application of the law and is employing the "least restrictive means" to achieve that interest. The Safe Streets Act forbids any group receiving federal funds through its provisions to discriminate on the basis of religion in hiring with respect to the use of those funds. (The Act is codified at 42 U.S.C. § 3789(d)(c)(1).)

The memo's conclusion is that RFRA trumps the rule against discrimination in the Safe Streets Act. Accordingly, the memo reasons, religious entities that say that they must only hire fellow believers in order to retain the character of their organization may do so even when the funds being used to pay their employees are federal funds. Put simply, even if the federal government is footing the bill, these organizations can still determine that only their fellow believers will receive the money.

(A significant part of the problem here is the very presence of RFRA. As I have written in past columns such as this one, it is a blind accommodation statute that was passed without any actual understanding on the part of members of Congress that it would undermine their own hard-won legislation. After RFRA was passed, religious entities testified that they needed to be able to hire only co-religionists, but Congress never debated or actively considered whether RFRA should nullify the rules against religious discrimination in the use of taxpayers' dollars. The way it is being manipulated here, it is a political tool for the executive branch to creatively undermine congressional enactments without having to go through the hassle of the legislative process. In fact, Congress has plainly rejected proposed legislation to permit religious discrimination in the use of federal funds, but President Bush forged ahead undeterred, with executive orders to permit such discrimination and this OJP memorandum employing RFRA to achieve what he could not accomplish in Congress.)

There are some limitations placed on the use of this money through an Executive Order, including a prohibition on using the federal money for worship, religious instruction, or proselytizing. The memo does not address whether those limitations would violate RFRA. (One would hope, however, that the post-Bush Administration Establishment Clause might still be sufficiently weighty to make those limitations permissible even under RFRA.)

The Political Backdrop for the Bush Administration's Position

The Bush Administration's position on this issue is sadly consistent with its woeful general lack of fiscal responsibility. This Administration is responsible for the largest deficit in history, along with the largest increase in federal government spending. Ironically, at one time, some of the fiercest opponents of government's funding religious groups were the evangelical churches - which at the time, hewed to the Republican line emphasizing small government, and fiscal responsibility. These churches repeatedly expressed their view that federal funding programs were unnecessary, dangerous to liberty, and wasteful - and this view drove measures such as welfare reform.

But once Bush attained the presidency, he insisted on implementing his "compassionate conservatism," which turned out to be code for providing more federal money to favored religious organizations, with no strings attached and little accountability. Religious groups that might have eschewed government funds at one time suddenly became enthusiastic about using such funds for their religious missions, but they wanted the government's money on their terms, and their terms only. Thus, while the government could never discriminate in hiring on the basis of religion when staffing its own social-service programs, the religious entities and their cronies in the federal government started pressing to be able to engage in just that sort of discrimination in programs they would run that would be funded with the government's money.

That is what the OJP memorandum is all about: It is an extended argument to give religious groups federal funds without strings attached. The argument is hopelessly circular: Essentially, upon the memo's logic, if a religious entity starts a new program with federal funds, it becomes an instant entitlement. The memo asserts that without the federal grant, "it would be 'next to impossible' [for the organization] to undertake the new anti-gang initiative." Indeed, the memo notes that the grant is providing so much funding that it is "clearly critical to the organization's ongoing operations." And the memo therefore concludes that "conditioning the grant on the discontinuation of religion-based hiring would place significant pressure on the organization to abandon its religious character." In other words, because the organization has made a program so dependent on federal funds, it has a right to receive those funds on its own terms. This reasoning is specious when the funding goes to an existing program, and ridiculous when the funding goes to a new program.

It is useful to contrast this sort of reasoning with the reasoning used in the Supreme Court's 1991 decision in Rust v. Sullivan, upholding the federal rule that prohibits doctors receiving federal funds from counseling patients about abortion. There, when a liberal goal was compromised by strings placed on federal funds, a conservative Court didn't seem to mind at all.

Both the Rust no-counseling policy and the OJP discrimination-with-federal-funds-is-okay policy are clearly the result of right-wing religious lobbying. This is a lobbying effort that operates almost exclusively under the old saw that "The ends justify the means." If it is for their God, government should do whatever they say, whether it is paying for their mission on their terms, muzzling doctors from presenting the full range of medical options to their patients, or undermining what used to be a Republican mainstay - states' rights, or smaller federal government -- as Gov. Sarah Palin would by displacing state laws on marriage and endorsing a federal constitutional amendment to bar gay marriage.

At this point, the reality is that right-wing Christian groups have determined how federal funds will be spent in a dizzying array of circumstances. Like all other entities, they cannot be trusted to limit their own use of government funds, or to use our tax dollars in ways that are necessarily in the interest of the larger public good. Indeed, the program directly addressed by the OJP memo proves the point: Since when is anti-gang work more likely to succeed when hiring has been determined according to religious belief, rather than by the criteria virtually every other employer uses: education, experience, and other job-based qualifications?

This Abuse of Power Will Doubtless Continue Under a President McCain, But Obama Has Promised, If Elected President, to End It

If the reader is now hearing an echo, it may be because Alan Greenspan's recent congressional testimony on his failures as Federal Reserve Chairman contains an important lesson for all of us. As brilliant as he is, he had to concede that his decisions as Federal Chairman undermined the United States economy, because he assumed that banks and financial institutions would act in the best interest of their shareholders and, therefore, the country - and he was wrong, wrong, wrong.

As the Framers fundamentally understood, every entity and individual will abuse whatever power is available to them. Greenspan was wrong about Wall Street. Speaking to the same principle, but getting it right, Madison was absolutely correct when he warned -- in his Memorial and Remonstrance -- that even "three pence" going religion's way opens the door to corruption and irresponsibility to the public good.

Only the election of Sen. Obama would provide any hope that the brakes will be put on the reckless expenditure of government funds for pervasively religious ends. If Sen. McCain is elected instead, we can expect the continuation - and perhaps even expansion - of the now-ingrained DOJ viewpoint that if a program or practice is good for religion, it must be good for the country. That is a perspective that has been proven wrong time after time.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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