Battling ‘Faith-Based’ Bias

Tax-Funded Hiring Discrimination By Religious Charities Is Wrong, AU’s Lynn Tells Congress

For U.S. Rep. Robert C. Scott, one of the biggest threats posed by the “faith-based” initiative is that it undermines fair-employment policies first put in place more than 60 years ago by President Franklin D. Roosevelt.

“No discrimination with federal funds has been the policy of this government for decades – at least until the so-called faith-based initiative,” the Virginia Democrat said during a recent congressional hearing on the matter. “If this bigotry based on religion is tolerated, racial and sexual discrimination disguised as religious discrimination certainly follows. It doesn’t take a rocket scientist to figure out if you get a pass on religion, it will be impossible to enforce non-discrimination laws based on race.”

Scott’s comments came Nov. 18 during a hearing on the initiative held by the House Committee on the Judiciary’s Subcommittee on the Constitution, Civil Rights and Civil Liberties. And he wasn’t the only one to raise the issue of religiously based hiring bias by publicly funded faith-based charities.

Americans United Executive Director Barry W. Lynn got an opportunity to weigh in as well. Lynn was asked to testify and outlined several concerns about the initiative.

“The single most important action that remains is to undo President Bush’s Executive Orders and regulations that permit a religious entity that receives a government grant or contract to make hiring decisions, for the very programs that are federally funded, on the basis of religion,” Lynn told the subcommittee during his opening statement. “This is sometimes referred to as ‘preferential hiring’; it is more accurately labeled simply as ‘discrimination.’ And it is ethically and legally wrong.”

Lynn’s full written testimony to the subcommittee, which ran 13 pages and included an additional 77 pages of supporting material, touched on other flaws in the initiative. He criticized the policy for being politicized during the presidency of George W. Bush and expressed concern that vulnerable people were being subjected to unwanted religious activities.

But the issue of taxpayer-subsidized hiring bias on the basis of religion remained the focal point of the hearing.

“I don’t want to impair the religious character of any church or temple or charitable group,” Lynn said. “But the ‘free exercise’ of religion is not burdened when a group voluntarily accepts government funds knowing that it contains constraints on religiously motivated conduct, like hiring only its own followers. The First Amendment is not an excuse to refuse to play by American rules when you are playing with Americans’ dollars.”

Lynn pointed to two recent examples of religious bias: Saad Mohammad Ali and Mohammed Zeitoun, two Muslims who had worked with World Relief, an evangelical agency, were denied permanent employment because they are not Christian.

Ali, an Iraqi refugee, had volunteered at World Relief for six months, and his manager suggested he apply for a job as an Arabic-speaking caseworker. A few days later, Ali was told he would not be considered for the position because he is a Muslim. Zeitoun was already working at the Seattle-based group but was fired because he refused to affirm World Relief’s theological mission statement.

This discrimination happened even though World Relief gets about 65 percent of its budget from government sources.

The subcommittee hearing, coming as the Democrats prepared to surrender control of the House of Representatives to the Republican Party, was a milestone. For years, Americans United has led a broad collection of religious, civil liberties and public policy organizations called the Coalition Against Religious Discrimination (CARD).

During the hearing, several members of Congress joined Scott in speaking out against tax-funded employment discrimination.

U.S. Rep. Jerrold Nadler (D-N.Y.), then chairman of the subcommittee, observed, “It is no secret that I have been extremely disappointed with this administration’s handling of these difficult issues. On the matter of ending employment discrimination in federally funded programs, about which the president was so eloquent in 2008, we have heard nothing.”

U.S. Reps. John Conyers (D-Mich.), Melvin Watts (D-N.C.) and Hank Johnson (D-Ga.) also actively questioned the rollback in civil rights law.

In addition to AU’s Lynn, other witnesses testifying at the hearing were Melissa Rogers, director of the Center for Religion and Public Affairs at Wake Forest University Divinity School in North Carolina, and Douglas Laycock, professor of law and religious studies at the University of Virginia School of Law in Charlottesville.

Laycock asserted that some opponents of the faith-based initiative are using the employment issue to exclude religious groups from the program because they dislike the entire approach of this type of aid.

“Opponents of the faith-based initiative, who would exclude religious providers from participating in government-funded programs in the first place, can get their way indirectly if they can require all the religious providers to secularize their workforces as a condition of participation,” Laycock said.

Rogers made it clear that she op poses hiring bias but during the hearing put forth a compromise position. She asserted that religious social service providers should be able to discriminate not on religion but on the grounds of a potential applicant’s agreement with the organization’s mission – similar to the way the National Organization for Women does not have to hire people hostile to its goals.

“For example, if the program is aimed at feeding hungry people, the non-profit that receives government funding for such a program would be permitted to make employment decisions on the basis of that mission as well as other standard factors, such as experience, academic achievement, collegiality, and character,” Rogers said.

Democrats on the subcommittee may have been emboldened because they are aware that this hearing will probably be their last opportunity to raise the issue for a while. The new Republican majority is being seated this month, and the leadership of the subcommittee will pass most likely to U.S. Rep. James Sensenbrenner (R-Wisc.). If there are future hearings on the discrimination issue, they are likely to lean in a direction that church-state separationists won’t like.

The hearing came at an especially auspicious time. The day before it was held, President Barack Obama issued a new executive order refining the faith-based initiative. Revising and updating an executive order from the administration of President George W. Bush, Obama declined to make sweeping changes to the controversial plan that funnels tax funds to religious groups for the delivery of social services.

The new order makes some changes but did not address the most contentious feature of the initiative – religious hiring bias in taxpayer-funded programs.

“I’m disappointed,” said AU’s Lynn in a press statement, “This leaves much of George W. Bush’s faith-based initiative in place. That’s not the change many Americans hoped for when President Obama took office.

“I am particularly frustrated that President Obama still has done nothing to ban hiring bias by publicly funded religious charities,” continued Lynn. “That’s the 800-pound gorilla in the room. No American should be denied a government-funded job because he or she holds the ‘wrong’ views about religion.”

The most significant change in the Nov. 17 Obama order is a specific requirement that Americans in need be offered alternatives if they do not want to receive social services at religious charities. In addition, it creates a process for greater transparency in the program by requiring that recipient organizations be listed on government websites.

AU welcomed both of these changes but was disappointed that other features from the Bush years have been retained.

For example, the order continues a Bush-era policy of allowing houses of worship to directly receive public funds, with no need to administer them through a separately incorporated entity. The order also states that religious providers may offer government-funded services in buildings and rooms decorated with sectarian signs, scripture and symbols although no public funds are supposed to be spent on religious activities.

The order was perhaps most notable for what it doesn’t do: address the issue of hiring bias.

In fairness to the White House, no one expected this issue would be part of the order. The executive order grew out of a series of recommendations forwarded to the White House earlier this year by a special council established by the Office of Faith-Based and Neighborhood Partnerships to examine issues surrounding the faith-based initiative. While the council’s mandate was broad, it was specifically instructed not to deal with the hiring issue.

The White House’s refusal to allow the council to consider hiring bias left advocates of church-state separation wondering what, if anything, the Obama administration intends to do about the contentious matter.

The issue of tax-funded hiring bias has loomed over the faith-based initiative almost since its inception in the 1990s, when the concept was called “charitable choice.” Championed by then-U.S. Sen. John Ashcroft (R-Mo.), the funding scheme was adopted by Congress as part of a major overhaul of welfare programs.

The initiative really took off, however, after Bush was inaugurated in January of 2001. Bush announced that the scheme – by now dubbed the faith-based initiative – would be his signature domestic policy plan.

Critics feared that Bush would use the scheme to steer money to his fundamentalist Christian political allies. When Bush announced he was rolling back decades-old policies that ban discrimination in federal programs, those fears intensified.

Bush used executive orders and regulatory changes to advance the initiative after he was unable to get it through Congress. The upshot was that religious organizations were free to take taxpayer money to provide social services yet limit hiring to members of their own faith, even though the services provided must by law be secular.

During the 2008 campaign, Obama said he disagreed with that approach. In a Zanesville, Ohio, speech, Obama backed partnerships between government and faith-based organizations but said he would bar job discrimination and proselytizing in the programs.

Once in office, however, Obama shifted gears. In February of 2009, he issued an executive order that left in place many of the Bush policies and created the advisory council. At that time, Obama hinted that the issue of hiring bias in tax-funded programs might be subject to review by the U.S. Justice Department. The White House has said little about it publicly since then.

Reaction to the November executive order was split. Advocates of the faith-based initiative were quick to point out that not much had changed, noting that the order was largely in line with Bush’s original executive order, issued in December of 2002.

“The most important thing to note about the amended [executive order] is how few changes it makes,” observed Stanley Carlson-Thies, a prominent supporter of faith-based initiatives, in an analysis. “The principles it sets out are refinements, not alternatives, to the principles of the Bush EO.”

Focus on the Family was pleased as well. Writing in the group’s online publication CitizenLink, Catherine Snow pointed out that the order does not affect hiring policy and wrote that AU’s Lynn (whom she labeled a “secularist”) was unhappy with the result.

In a Nov. 22 editorial, The New York Times criticized Obama for side-stepping the employment issue, calling that “a glaring omission.”

“What is needed,” concluded the newspaper, “is a careful constitutional balance. Groups running worthy social service programs should not be disqualified from receiving federal financing simply because they have a religious affiliation. But they should get no special exemption from antidiscrimination laws. Public money should not be used to underwrite discrimination.”

Writing on The New Republic’s blog, Tiffany Stanley pointed to a poll showing that 73 percent of Americans oppose allowing religious groups to discriminate with public funds.

“In short, Obama the candidate was right,” Stanley observed. “Take tax payer money and you take a compromise. A handout from the government comes with a handful of regulations, so groups partake at their own risk.”

AU’s Lynn said the Obama executive order and the subcommittee hearing put a welcome spotlight on the issue of religious discrimination in tax-funded programs.

“Americans United intends to keep the focus on the issue of hiring discrimination,” Lynn said. “The American people don’t support this policy because they realize it’s an affront to our values. No matter who is sitting in the White House or running Congress, we’ll keep working until this misguided policy is repealed.”