{"id":53862,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-salvation-army-church-and-state.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-salvation-army-church-and-state","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-salvation-army-church-and-state.html","title":{"rendered":"The Salvation Army, Church, And State"},"content":{"rendered":"\n
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THE SALVATION ARMY, CHURCH, AND STATE: A Closer Look At The Charity’s Proposed Deal With The White House <\/h1><\/td>\n <\/tr>\n

By MARCI HAMILTON <\/h2>
<\/a>\nhamilton02@aol.com<\/a>
\n—-\n
Thursday, Aug. 02, 2001<\/div><\/td>\n\n <\/tr>\n <\/table>\n

The Salvation Army thought it had a deal with the White House: it could discriminate \nagainst homosexuals in its hiring – even when hiring for positions related to \nthe delivery of social services financed by the government. In exchange, it would \nmount an expensive campaign to sell President Bush’s faith-based organizations \n(fbo) initiative to the public.<\/p>\neach side scurried to retract its side of the bargain. The White House employed \nimplausible denial at first; the Salvation Army, for its part, fired the expensive \nPR firm it had already hired to push the White House’s agenda.\n

Both sides of the deal deserve a closer look than the press has rendered so \nfar.<\/p>\n

The White House’s Part of the Deal: Permitting Hiring Discrimination<\/b><\/p>\n

One of the most oft-stated justifications for the fbo initiative is to give \n“equal treatment” to religious organizations \u0097 some of which have not been \nable to obtain government money for their social services in the past, due to \nconcerns about the separation of church and state. It is not fair, we are told, \nfor religious organizations to be “shut out” of the government’s resources this \nway.<\/p>\n\n\n\n
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Ironically, even as religious organizations pursue the equal treatment theme \nfor themselves, many also have been quietly insisting that they ought to have \na right to deny equality to others. That is, they insist on the right to discriminate in hiring \nfor such social services \u0097 just as the politically powerful Salvation Army \ndid, at least until its correspondence found its way into the hands of reporters. \nThey want this right to discriminate even though the biggest selling point of \nthe fbo initiative is that religious social services are intended to serve many \nbeyond their own adherents.<\/p>\n

The Salvation Army believes that homosexuality is sinful and therefore does \nnot want its services delivered by homosexuals. The rhetoric in favor of discrimination \nis a bracing claim to the “right to practice religion freely.”<\/p>\n

<\/p>\n

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

\n\nWhy the Amos<\/i> Precedent Doesn’t Apply<\/b><\/p>\n1987 decision in Corporation \nof Presiding Bishops v. Amos<\/i><\/a>, which upheld as constitutional a statutory \nexemption from the civil rights laws for hiring by religious organizations. Amos<\/i>, \nthough, does not make the case for discrimination such as the Salvation Army sought \nto practice. The distinction is simple: the employees covered by Amos<\/i>‘ \nholding were not being underwritten by the government, whereas fbo employees would \nbe.\n

The exemption in Amos<\/i> made sense because it kept government out of internal \nreligious affairs. In the context of a private employer-employee relationship \nwithin a religious organization, it would arguably have been intrusive, and a \nblow to the free exercise of religion, for the government to regulate hiring, \nespecially of clergy.<\/p>\n

The new type of request for “accommodation” of religion, however, is very different. \nThe religious organizations that are making the request have already invited the \ngovernment in, to the extent that they are accepting direct government support. \nAccepting government regulation of hiring for the provision of the very services \nfor which the funding will be used seems simply to come with the territory.<\/p>\n

An FBO Bill Incorporating a Right to Discriminate<\/b><\/p>\n

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

Now comes the Senate, where moderate Democrats like Senator Lieberman suddenly \nhave discovered the prevalence of religious believers in this country. The discrimination \nright hangs in the balance.<\/p>\n

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

Keeping the Issues Straight: What Is Really At Stake<\/b><\/p>\n

One must be careful in all this not to get the discrimination apples and oranges \nconfused. President Bush told the Urban League this week that the government would \nnot discriminate in handing out the fbo money (for good reason, since the Equal \nProtection Clause would forbid it). But that is not the same as saying that he \nwould refuse to sign a bill that permits racial, gender, or sexual orientation \ndiscrimination in hiring social workers to be underwritten by the federal government. \nThe question is not whether the government will discriminate in<\/i> funding<\/i>, \nbut whether the organizations can discriminate with<\/i> funding.<\/p>\n

<\/p>\nPrivate religious organizations still can discriminate in hiring, based on Amos<\/i> \nand on the statutory exemption that says they can. Indeed, private entities using \nprivate funds can make distinctions between their members until the cows come \nhome.\n

The true issue is this: Can a religious organization discriminate in hiring \nsocial service providers who are subsidized by the federal government, and who \nare intended to serve nonbelievers as well as believers?<\/p>\n

The answer should be no. When Bob Jones University wanted to discriminate against \nCatholics and minorities and still take federal funds, the Supreme Court ruled, \nquite reasonably, that the discrimination could be banned when federal funds were \nbeing used.<\/p>\n

In short, Bob Jones University was forced to choose between federal funds or \ndiscrimination. The same reasoning is awfully compelling here.<\/p>\n

The Salvation Army’s Part of the Deal: P.R. for the Administration<\/b><\/p>\n

Now let us switch topics for a moment, to focus on the Salvation Army’s part \nof the deal. While the Administration promised (or was on the verge of promising) \na right to discriminate, the charity promised a public relations booth for the \nfbo initiative.<\/p>\n

The red carpet for religion that was first laid down by President Bill Clinton \nand is now maintained by President Bush has emboldened extremists, who now feel \nperfectly comfortable arguing in public that the Constitution does not require \nthe separation of church and state. Their argument\u0096wholly divorced from history\u0096is \nthat the Framers were religious (translation: Christian), and that they wanted \nreligion (translation: Christianity) to be mixed into every aspect of American \nsociety. I leave to another day the easy refutation of this facile understanding \nof the Constitution’s most impressive innovation.<\/p>\n

Suffice it to say that separation of identity of church and state is crucial \nto the scheme the Framers \u0097 and especially the First Amendment’s framer, \nJames Madison \u0097 set in motion. Government funding of religious missions compromises \nthe separate identities of church and state, and the attempted Salvation Army\/White \nHouse deal only reinforces Madison’s wisdom.<\/p>\n

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

From outside the Beltway, this is a truly perverse deal. Inside the Beltway, \nhowever, it is business as usual. Since the late nineteenth century \u0097 when \nthe first religious lobbyist’s offices opened in Washington, in order to lobby \nfor the funds for President Grant’s Peace Plan to Christianize the Indians \u0097 \nreligious organizations have been lobbying for, and supporting, government programs \nto their liking.<\/p>\nhave entanglement to such a degree that while the Administration’s deal to allow \nthe Salvation Army to discriminate became very controversial once reported, the \nSalvation Army’s companion agreement to do PR for the Administration created nary \na ripple.\n

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

\n\n\n<\/a>\nMarci 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.\n\n

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