The "Charitable Choice" Bill That was Recently Passed by the House
Further Commentary on Its Constitutional Problems

By VIKRAM AMAR AND ALAN BROWNSTEIN

Friday, May. 27, 2005

This is the third in a series of columns by the authors on "charitable choice" laws, including the Job Training Improvement Act, H.R. 27, which was recently passed by the House. - Ed.

In our most recent column on "charitable choice" laws, we focused on a Supreme Court decision, Corporation of Presiding Bishop of the Church of Latter Day Saints v. Amos. In Amos, the Court upheld the constitutionality of amendments to Title VII that exempt religious organizations from the statute's prohibition against employment discrimination on the basis of religion. Proponents of charitable choice laws argue that Amos also supports their claim that religious discrimination in hiring with government funds does not violate the Establishment Clause. As we explained, this argument is just plain wrong.

Far from supporting charitable choice provisions, the Court's analysis in Amos actually suggests that it is unconstitutional for government to allow religious organizations to discriminate on the basis of religion in hiring employees whose salaries are paid with government funds.

According to Amos, religious organizations may be permitted to discriminate on the basis of religion in hiring staff with their own funds precisely because doing so is so intrinsic to their ability to define and carry out their religious mission.

But what religious organizations are protected in doing with their own resources is exactly what the Establishment Clause prohibits them from doing with government funds: They cannot constitutionally use state resources to advance their intrinsically religious goals - to further missions of faith that have no secular counterpart.

Further, the key concern that troubled the Court in Amos does not apply to charitable choice laws. The Court in Amos decided not to limit the Title VII exception to the hiring of employees performing religious functions because it worried that uncertainty about which jobs would be found to qualify as religious positions might chill the hiring decisions of religious organizations.

There is no such chilling effect issue here, however, when religious organizations are barred from religious discrimination in hiring with government funds. Just as religious organizations must refrain from using government funds for prayer, worship, or proselytizing, they can be expected to obey prohibitions against religious discrimination in hiring employees who will be paid out of those same public resources. Obeying this constitutional mandate leaves them free to discriminate in hiring with their own privately donated resources without fear of sanction or liability.

No Secular Purpose Justifies Government-Funded Religious Discrimination in Hiring for Secular Programs

Religious discrimination in hiring with government funds raises other constitutional concerns as well. Charitable choice proponents acknowledge that religious providers cannot use public funds for religious instruction, proselytizing, or worship. If the content of state subsidized programs must be secular in nature, however, what purpose is served by allowing religious organizations to insist that all the employees staffing such programs must be of the same faith.

The answer is not obvious. One response offered is that the existing staff of religious organizations may simply prefer that the new employees hired to staff government funded programs "be of like-minded creed." But that explanation is hardly persuasive. Preferences like these are rarely accepted as a sufficient justification for employment discrimination because doing so would undercut virtually all anti-discrimination policies.

Moreover, it is not clear why the preferences of religious providers should be favored over the interests of their clients. Remember that religious providers accepting direct government grants are required to serve clients of all faiths or none. Whatever positive feeling Baptist employees enjoy in knowing that their co-workers share their faith may be outweighed by the discomfort Catholic or Jewish clients experience when they learn that no member of their faith would even be considered for employment in the program providing them public services.

Finally, Supreme Court case law suggests that religion specific exemptions from anti-discrimination laws can not be justified by a bare preference to work with co-religionists on government funded, secular projects.

In Texas Monthly v. Bullock, decided only two years after Amos, the Court struck down a Texas law that exempted religious books and periodicals from a sales tax that publishers of secular journals and books had to pay.

The plurality opinion in Texas Monthly explained that any exemption applied exclusively to religious beneficiaries must satisfy two criteria: It must not impose serious burdens on nonbeneficiaries and/or it must be "designed to alleviate government intrusions that might significantly deter adherents of a particular faith from conduct protected by the Free Exercise Clause." (Whether the Court really meant "and" or "or" here is a subject of debate that is outside the scope of this column.)

The opinion admitted that the religion-specific Title VII exemptions upheld in Amos did burden nonbeneficiaries, but it defended that decision on the grounds that those exemptions "prevented potentially serious encroachments on protected religious freedoms."

Unlike the Title VII amendments upheld in Amos, however, neither of the conditions necessary to validate religion specific exemptions can be satisfied by charitable choice laws. As to the first condition, regarding the burden on nonbeneficiaries, individuals denied employment because of their faith in government funded programs are particularly burdened, even more so than in Amos.

In Amos, the jobs at issue were funded by private funds donated to a religious organization for the specific purpose of advancing its religious mission. The disappointed job applicant had no stake in the job opportunity he lost. Further, the job in question served and promoted religious tenets to which he did not adhere.

With "charitable choice" programs, in contrast, the disappointed job applicant is deeply wronged. He pays taxes to support the public, secular programs that discriminate against him, and he is denied jobs he is fully qualified to perform. Insult is added to injury when people are denied jobs in government funded programs because of their religious beliefs.

Charitable choice laws also fail the second condition. Exemptions permitting religious discrimination in government funded programs to satisfy the desire or employers and staff to work with people of the same faith are not "designed to alleviate government intrusions that might significantly deter adherents of a particular faith from conduct protected by the Free Exercise Clause."

There is no free exercise right to use government funds to advance an organization's religious mission by hiring a religiously exclusive work force in state subsidized programs.

True, satisfying employer and employee preferences to work with people of the same faith may serve a secular purpose in the sense that like-minded employees may work well together. But providing workers in public programs the comfort of never having to interact with co-workers who hold different religious beliefs has little - if anything -- to do with preventing serious encroachments on religious freedom.

Belief-Based Hiring: Why It May Be Okay for Secular Institutions, But Not Religious Ones

Charitable choice proponents raise one additional argument that requires a response. Allowing religious discrimination in government funded programs, they claim, is no different that allowing secular nonprofit employers to hire only those individuals who share their ideological beliefs. Planned Parenthood can constitutionally hire only people committed to reproductive autonomy, even when it is operating a program that receives public funds. The Sierra Club can only hire environmentalists - even in state subsidized programs. So why is it so unacceptable when a religious organization uses government funds to hire people of a particular faith?

One answer comes from the Constitution itself: The First Amendment explicitly treats religion differently than secular beliefs and political ideologies. Two specific constitutional mandates, the Free Exercise Clause and the Establishment Clause, address the relationship of religion and the state.

Pursuant to this framework, constitutional doctrine distinguishes religious organizations and practices from secular institutions and activities in a variety of ways. Consider the range of these differences in the Sierra Club example, mentioned above.

Government can endorse particular environmental policies. It cannot endorse particular religious faiths.

Government can directly subsidize specific environmental practices - such as recycling. It cannot subsidize religious practices, such as worship or ritual.

Government can regulate the way that environmental organizations operate. It is far more constrained in regulating the activities and structure of religious organizations.

In sum, religious organizations are not treated "just like" secular organizations with regard to the way they can use government funds and in numerous other respects - because the Constitution recognizes that religious and secular organizations are not similarly situated and require different treatment.

There are important reasons why the Constitution assigns a special status to religion. While these reasons are too complex to describe in this brief column, we note that this understanding of religion and church-state relationships resonates throughout American history, culture, and law.

Thus, to put it simply, analogies between religious and environmental organizations are unpersuasive because these organizations are not equivalent for constitutional, policy, and normative purposes.

Indeed, proponents of charitable choice laws rightly recognize that religion is unique and requires special treatment when they argue that religious organizations may be exempt from regulations their secular counterparts must obey. It was the uniqueness of religion, for example, that justified the special exemption for religious organizations in Title VII that the Court upheld in Amos.

But this is a two way street. If you want religion to mean something distinctive for constitutional purposes, you cannot insist at the same time that it must be treated just like secular organizations when government funds are at issue.

Practical Realities: Why the Sierra Club Is Not Like A Religious Institution

There are also practical reasons why employment discrimination by environmental organizations can not be usefully analogized to religious discrimination in hiring by religious providers in government funded programs. No meaningful comparisons can be drawn between the existing infrastructure of religious groups in the United States and that of environmental groups. It makes no sense, for instance, to ask whether we should allow groups like the Sierra Club to discriminate on the basis of beliefs about environmental policy when they hire employees to staff government-funded manpower training programs, or substance abuse programs, or soup kitchens.

Environmental groups don't operate these kinds of programs. Neither does Planned Parenthood. There are no groups in American society that come close to operating so many different kinds of institutions and programs in so many diverse areas of life as religious groups.

Religions operate hospitals, day care centers, retirement homes, counseling centers, schools, colleges, soup kitchens, manpower training centers, and substance abuse programs. And that's to name just a few of the activities and institutions in which organized religion plays a role in our society - and which government often subsidizes.

This means that when religious organizations discriminate on the basis of religion in hiring employees in government funded programs, an extraordinary number and range of jobs may be placed off limits to people who hold the "wrong" beliefs.

A person who disagrees with the Sierra Club about global warming is only going to be excluded from a very few government-funded jobs. The impact on individuals and society will be slight. In contrast, if majoritarian religious organizations receiving government funds refuse to hire employees who hold non-Christian beliefs, the impact will be far more severe. Obviously, the broader the scope of employment discrimination, the greater the burden such discrimination imposes on the liberty and equality interests of those denied state funded job opportunities.

A similar analysis applies if we look at the nature of the discrimination itself. How many civil rights statutes prohibit discrimination in hiring based on a person's environmental beliefs? Virtually none.

Why is that? Because such beliefs are so fluid, have so little history of being the basis for discriminatory hiring practices, and are so unlikely to be the basis of employment discrimination that no one thinks such laws are necessary.

Once again, religion is different. Virtually every civil rights statute includes religion as a protected characteristic. Why? Because for many people, religion is central to their identity. Its role in one's life makes it difficult to conceal. There is a long history of religious prejudice and discrimination in America.

And we know the power of religious affiliation. There is little danger that American society is going to be fragmented in the workplace, in residential communities, in educational institutions and social service programs on the basis of environmental beliefs. Religious fragmentation, on the other hand, is a danger to any pluralistic society.

Government-Funded Jobs Should Be Integrated Jobs

Put simply, in America we need people of different faiths to be able to live and work together on the basis of equal worth and mutual respect. Public sector and government-funded jobs need to be maintained as the cornerstone of religiously integrated work forces and communities.

Our point here is not that religious discrimination in hiring in government funded programs is inherently invidious. We do not think that it is. But it does prevent the kind of interactions that dispel stereotypes, promote empathy, and protect our hearts and minds from the taint of prejudice.

Moreover, and we can not make this point strongly enough, the fact that religious discrimination in hiring in government funded programs is not invidious or intended to be hurtful does not detract from or mitigate the very real harms it causes to excluded individuals and groups.

We will discuss these more normative issues in the final column of our series, two weeks from now.


Vikram David Amar is a professor of law at the University of California, Hastings College of the Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. Before teaching, Professor Amar practiced at the firm of Gibson, Dunn & Crutcher. Alan Brownstein is a Professor of Law at UC-Davis School of Law.

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