Faith-based plan pits church autonomy against equal employment principle

Hollman Report
By K. Hollyn Hollman

July-August 2003

From their inception, the president's faith-based initiatives have contained a basic contradiction. They purport to allow pervasively religious organizations to receive federal funding without altering their religious character and without violating the ban on government funding of religion.

There is no easy way to reconcile these twin objectives. Recent attempts to ensure that faith-based organizations receiving federal funds can discriminate based on religion in hiring provide a telling case in point.

Faith-based initiatives raise many concerns, but the prospect of government-funded employment discrimination may be most troubling to the general public. Polls indicate overwhelming opposition to government funding of groups that hire on the basis of religious beliefs. Any moves to enlist "the full involvement of the faith community" to provide government services for the needy will inevitably challenge our nation's commitment to equal employment opportunity in publicly funded positions.

Nevertheless, the Bush administration continues to push this controversial agenda. The White House contends that its approach — exempting religious organizations that receive government funds from certain anti-discrimination rules — will clarify a confusing area of the law. To be fair, the issues are complex, but this reflects the intrinsic difficulty of reconciling conflicting policy priorities.

Title VII of the Civil Rights Act of 1964 protects against employment discrimination based on race, color, religion, sex and national origin. It applies to any employer with 15 or more employees, but it exempts religious organizations (a broader category than churches) from the ban on religious discrimination.

The exemption, which the Supreme Court upheld in 1987, is quite broad. It applies to all employees of qualifying entities. It not only provides that a Baptist organization (for example) can hire only Baptists (the right to hire co-religionists), but that it could also choose to hire only Baptists whose specific beliefs are acceptable (the right to hire based upon teachings and tenets).

Title VII's exemption is a legislative accommodation of religion that enjoys wide support in the context of privately funded entities. Since direct federal funding of pervasively religious organizations is a relatively new (and constitutionally questionable) idea, there is little case law on how it applies in that situation. The only case directly on point rejected the organization's claim to the exemption in the context of a government-funded position. To complicate matters, many state and local laws provide even more stringent rules against employment discrimination. For example, some add sexual orientation to the list of protected categories. While some laws exempt religious organizations, others do not.

The White House supports statute-by-statute efforts to lift civil rights protections that apply to faith-based organizations. The House recently removed an anti-discrimination provision for religious organizations from the Workforce Investment Act, a provision signed into law by President Reagan that has enjoyed longstanding bipartisan support. The next target is Head Start. If these efforts succeed, employees hired with tax dollars to provide needed social services — job-training and early education — can lawfully be fired because of their religious beliefs.

Defending this policy, the White House released a glossy brochure in late June. Its position is clear, but the document obscures crucial policy trade-offs. It fails to acknowledge any tension between the nation's commitment to equal employment opportunity and the autonomy of religious organizations. Why prize the latter exclusively if the real goal is to provide social services? Should the federal government override employment protections that reflect the values of state and local governments?

The president says he recognizes "that government has no business endorsing a religious creed, or directly funding religious worship or religious teaching." Yet by weighing in so heavily on one side of this debate, the White House invites suspicion and continued political conflict. As Rep. Bobby Scott insists, if the government is not funding faith, why is it necessary to allow religious litmus tests for employment?