Asked why she wanted to work for World Vision, one of the world’s largest evangelical relief agencies, Sylvia Spencer didn’t have to think twice.
“Because I would love to work for an organization dedicated to carrying on the Lord’s work!” Spencer wrote on an application form in 1995.
For 11 years, that motivation was enough to keep Spencer employed at World Vision’s headquarters in Federal Way, Wash. But in November of 2006, Spencer and two colleagues – Vicki Hulse and Ted Youngberg – were abruptly fired.
Their offense? Although the three are Christians, World Vision officials had determined that they were the wrong type of Christians. The trio failed to fully embrace World Vision’s doctrines and beliefs about the Trinity and the nature of Jesus Christ.
If World Vision were privately funded, Spencer, Hulse and Youngberg would likely have had little legal recourse. Generally speaking, the law allows houses of worship and religiously affiliated organizations to impose religious qualifications on their employees.
But the situation is more complex with World Vision. The huge relief agency had a budget of $1.2 billion in 2009 – and 29 percent of it came from government sources.
So far, Spencer, Hulse and Youngberg have had little luck with a lawsuit challenging their dismissals. The 9th U.S. Court of Appeals ruled recently in a splintered 2-1 decision that World Vision has the right to fire workers because religious organizations are exempt from federal civil rights law.
“I am satisfied that World Vision has met its burden of showing that the ‘general picture’ of the organization is ‘primarily religious,’” wrote Judge Diarmuid O’Scannlain. “World Vision is a nonprofit organization whose humanitarian relief efforts flow from a profound sense of religious mission.”
Dissenting Judge Marsha Berzon disagreed.
“That interpretation,” Berzon wrote, “would severely tip the balance away from the pluralistic vision Congress incorporated…toward a society in which employers could self-declare as religious enclaves from which dissenters can be excluded despite their ability to do the assigned secular work as well as religiously acceptable employees.”
If Americans United and its allies have their way, the hiring issue may be in for another look. In September, Americans United and three other groups joined forces to file a friend-of-the-court brief asking the 9th Circuit Court to give the case a second look. The question of tax funding, the groups assert, is compelling enough to warrant closer examination.
AU and its allies are concerned that the court did not give adequate consideration to the fact that World Vision receives so much of its budget from the government. AU, joined by The Interfaith Alliance Foundation, the Anti-Defamation League and the American Humanist Association, is asking the court to rehear Spencer v. World Vision Inc. to make it clear that publicly funded job discrimination raises serious church-state issues.
“Religious groups have the right to impose theological requirements on staff in privately funded positions, but when tax money enters the picture, that must change,” said Barry W. Lynn, Americans United executive director. “No one should be denied a taxpayer-funded job for being the ‘wrong’ religion. That makes a mockery of our nation’s commitment to eradicating discrimination.”
The legal tussle at World Vision reflects an ongoing battle over “faith-based” funding and religious discrimination that has been simmering since the 1990s. When Congress in 1996 first enacted “charitable choice” – as it was called then – at the behest of Sen. John Ashcroft (R-Mo.), the question of “faith-based” hiring bias was largely overlooked.
The issue exploded during the Bush administration, when President George W. Bush made the “faith-based” initiative a centerpiece of his domestic policy agenda.
Bush was adamant that religious groups should be able to discriminate in hiring even while receiving public funds. He went so far as to issue an executive order to codify this “right.”
In addition, the U.S. Justice Department’s Office of Legal Counsel issued a memo on June 29, 2007, asserting that a federal religious freedom law permits “faith-based” providers to engage in religious discrimination even where federal programs explicitly prohibit such discrimination.
Bush’s allies in the Religious Right were pleased, but civil liberties groups asserted that these moves set a dangerous precedent and undermine the nation’s commitment to civil rights. Jobs in federally funded programs, they argued, should be open to all qualified applicants.
When Barack Obama was a candidate for the presidency, he promised to continue funding to faith-based groups but said he would end religious discrimination in hiring when public dollars were involved.
Speaking in Zanesville, Ohio, on July 1, 2008, Obama remarked, “[I]f you get a federal grant, you can’t use that grant money to proselytize to the people you help and you can’t discriminate against them – or against the people you hire – on the basis of their religion.”
But once in office, Obama shifted positions. His staff now says that the Justice Department is taking some time to examine the issue – but little information has been forthcoming.
To make matters worse, some developments suggest the Obama administration is coming down in favor of faith-based job bias. The Justice Department in 2008 filed a legal brief in the Spencer case – supporting World Vision’s claim that it can hire and fire according to religious criteria.
According to the Seattle Times, the Justice Department even sent an attorney to help World Vision make its argument before the 9th Circuit in July of 2009.
Earlier this year, Americans United wrote to Obama, urging him to stick to the pledge he made in Zanesville.
“As a consequence of inaction, the administration’s current policy is to allow religious organizations to take government funds and use those funds to discriminate in hiring against a qualified individual based on nothing more than his or her religious beliefs,” said the letter. “This constitutes an appalling rollback of the civil rights protections that were first put in place under the administration of President Franklin D. Roosevelt.”
The White House did not reply. In fact, the Obama administration seems to be hoping that the issue will just go away.
Six months ago, an advisory group sent 164 pages of recommendations to the White House faith-based office. Although the task force, which inluded AU’s Lynn, was not asked to examine the issue of hiring bias, some members hoped the recommendations would spur some sort of action from the White House. Nothing has happened since then.
“As far as I’m concerned, it’s been six months of silence,” Lynn told Religion News Service last month.
With the White House sitting on the sidelines, the action has moved to the courts.
In the World Vision case, the issue is complicated by a cloudy fact situation. It’s unclear if the positions of Spencer, Hulse and Youngberg were funded with tax money.
In their brief, AU and the other organizations argue that the larger issue is important enough to merit attention from the court.
Allowing “religion-based employment discrimination for government-funded jobs raises significant constitutional concerns under the First Amendment,” asserts the brief. “Those important issues should be decided only in a case where the parties have fully briefed and argued the constitutional issues and where the record clearly demonstrates that the employee’s position was directly funded with public dollars.”
The brief, drafted by Bradley Meissner of the Seattle branch of the international law firm DLA Piper and by Ayesha N. Khan, Americans United’s legal director, was filed before the appeals court Sept. 17.
“The issue of religious hiring bias in publicly funded faith-based programs isn’t going away,” said AU’s Khan. “Religious discrimination should never be underwritten with public funds; taxpayer-subsidized job bias is an affront to our values.”