THE SALVATION ARMY, CHURCH, AND STATE: A Closer Look At The Charity's Proposed Deal With The White House

By MARCI HAMILTON


hamilton02@aol.com
----
Thursday, Aug. 02, 2001

The Salvation Army thought it had a deal with the White House: it could discriminate against homosexuals in its hiring - even when hiring for positions related to the delivery of social services financed by the government. In exchange, it would mount an expensive campaign to sell President Bush's faith-based organizations (fbo) initiative to the public.

each side scurried to retract its side of the bargain. The White House employed implausible denial at first; the Salvation Army, for its part, fired the expensive PR firm it had already hired to push the White House's agenda.

Both sides of the deal deserve a closer look than the press has rendered so far.

The White House's Part of the Deal: Permitting Hiring Discrimination

One of the most oft-stated justifications for the fbo initiative is to give "equal treatment" to religious organizations — some of which have not been able to obtain government money for their social services in the past, due to concerns about the separation of church and state. It is not fair, we are told, for religious organizations to be "shut out" of the government's resources this way.

capturing the 'moment'

Ironically, even as religious organizations pursue the equal treatment theme for themselves, many also have been quietly insisting that they ought to have a right to deny equality to others. That is, they insist on the right to discriminate in hiring for such social services — just as the politically powerful Salvation Army did, at least until its correspondence found its way into the hands of reporters. They want this right to discriminate even though the biggest selling point of the fbo initiative is that religious social services are intended to serve many beyond their own adherents.

The Salvation Army believes that homosexuality is sinful and therefore does not want its services delivered by homosexuals. The rhetoric in favor of discrimination is a bracing claim to the "right to practice religion freely."

The Salvation Army does not stand alone, of course, in its desire to have government money, and then to discriminate in hiring. Nor is the discrimination fund recipients seek to practice limited to homosexuals. Plenty of religious traditions that deliver social services, and that would seek federal funds, favor a certain gender, sexual orientation, or set of beliefs as a first choice (or for some, a qualification) for employees.

Why the Amos Precedent Doesn't Apply

1987 decision in Corporation of Presiding Bishops v. Amos, which upheld as constitutional a statutory exemption from the civil rights laws for hiring by religious organizations. Amos, though, does not make the case for discrimination such as the Salvation Army sought to practice. The distinction is simple: the employees covered by Amos' holding were not being underwritten by the government, whereas fbo employees would be.

The exemption in Amos made sense because it kept government out of internal religious affairs. In the context of a private employer-employee relationship within a religious organization, it would arguably have been intrusive, and a blow to the free exercise of religion, for the government to regulate hiring, especially of clergy.

The new type of request for "accommodation" of religion, however, is very different. The religious organizations that are making the request have already invited the government in, to the extent that they are accepting direct government support. Accepting government regulation of hiring for the provision of the very services for which the funding will be used seems simply to come with the territory.

An FBO Bill Incorporating a Right to Discriminate

Meanwhile, the House has passed an fbo bill that lets religious organizations have it both ways: They are given equal treatment in receiving government money for the provision of social services, while they are at the same time permitted to use these federal funds to discriminate. Although there was opposition to the discrimination provision, there were not enough votes to kill it, and those supporting the right to discriminate remained impervious to requests that they delete the provision.

Now comes the Senate, where moderate Democrats like Senator Lieberman suddenly have discovered the prevalence of religious believers in this country. The discrimination right hangs in the balance.

Democrats are at risk of making the same mistake Republicans have been making for years: equating the views of the millions of voters who are religious believers with the views expressed by well-organized religious lobbyists in Washington. There is no evidence that the people support a government-subsidized right to discriminate (or, indeed, the fbo initiative as a whole). Nevertheless, powerful Washington lobbyists are pushing for just such a right.

Keeping the Issues Straight: What Is Really At Stake

One must be careful in all this not to get the discrimination apples and oranges confused. President Bush told the Urban League this week that the government would not discriminate in handing out the fbo money (for good reason, since the Equal Protection Clause would forbid it). But that is not the same as saying that he would refuse to sign a bill that permits racial, gender, or sexual orientation discrimination in hiring social workers to be underwritten by the federal government. The question is not whether the government will discriminate in funding, but whether the organizations can discriminate with funding.

Private religious organizations still can discriminate in hiring, based on Amos and on the statutory exemption that says they can. Indeed, private entities using private funds can make distinctions between their members until the cows come home.

The true issue is this: Can a religious organization discriminate in hiring social service providers who are subsidized by the federal government, and who are intended to serve nonbelievers as well as believers?

The answer should be no. When Bob Jones University wanted to discriminate against Catholics and minorities and still take federal funds, the Supreme Court ruled, quite reasonably, that the discrimination could be banned when federal funds were being used.

In short, Bob Jones University was forced to choose between federal funds or discrimination. The same reasoning is awfully compelling here.

The Salvation Army's Part of the Deal: P.R. for the Administration

Now let us switch topics for a moment, to focus on the Salvation Army's part of the deal. While the Administration promised (or was on the verge of promising) a right to discriminate, the charity promised a public relations booth for the fbo initiative.

The red carpet for religion that was first laid down by President Bill Clinton and is now maintained by President Bush has emboldened extremists, who now feel perfectly comfortable arguing in public that the Constitution does not require the separation of church and state. Their argument–wholly divorced from history–is that the Framers were religious (translation: Christian), and that they wanted religion (translation: Christianity) to be mixed into every aspect of American society. I leave to another day the easy refutation of this facile understanding of the Constitution's most impressive innovation.

Suffice it to say that separation of identity of church and state is crucial to the scheme the Framers — and especially the First Amendment's framer, James Madison — set in motion. Government funding of religious missions compromises the separate identities of church and state, and the attempted Salvation Army/White House deal only reinforces Madison's wisdom.

The Salvation Army sought to buy the right to discriminate from the White House in exchange for mounting an expensive and vigorous public relations offensive for the fbo bills. It is like Alice in Wonderland. First, you've got a religious organization pouring thousands, if not millions, into a PR campaign in order to receive federal funds for social services (instead of spending that money on social services). Second, you've got the Salvation Army agreeing to be the front man for the Bush Administration's agenda. Does the Administration have so few resources that it needs to have its case made by using the coffers of the very social service providers that it claims urgently need federal support?

From outside the Beltway, this is a truly perverse deal. Inside the Beltway, however, it is business as usual. Since the late nineteenth century — when the first religious lobbyist's offices opened in Washington, in order to lobby for the funds for President Grant's Peace Plan to Christianize the Indians — religious organizations have been lobbying for, and supporting, government programs to their liking.

have entanglement to such a degree that while the Administration's deal to allow the Salvation Army to discriminate became very controversial once reported, the Salvation Army's companion agreement to do PR for the Administration created nary a ripple.

So much for the notion inherent in the Constitution that religious institutions preserve liberty because they are a counterweight to the state; as this example shows, the weight of both may end up being placed on the same side of the scales, a major reason we have and need church/state separation in the first place. Madison would be neither surprised nor pleased.

Marci Hamilton, a FindLaw columnist, is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is Hamilton02@aol.com. Her earlier columns on church-state issues may be found in the archive of her work on this site.

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