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Attack on RFRA Protections for Religious Hiring
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Some sixty religious, civil rights, gay rights, feminist, and secularist organizations yesterday demanded that Attorney General Eric Holder review and then reject a 2009 legal memorandum from the Department of Justice's Office of Legal Counsel concerning religious hiring by faith-based federal grantees.  The memo and the demand do not involve the religious hiring freedom in general or most faith-based organizations that receive federal funds to provide services.

The OLC memo concerns the application of the Religious Freedom Restoration Act, which was adopted by Congress and signed into law by President Bill Clinton in 1993 to restore a high level of protection, after a US Supreme Court decision had undermined religious freedom protections.  According to RFRA, a faith-based organization can be excused from complying with a generally applicable law if obeying the law would impose a substantial burden on its religious exercise. 

The OLC memo holds that RFRA applies to religious staffing in the limited number of federal social service programs that ban job discrimination on religious and other grounds by grantees.  The memo says that if the faith-based organization can make a case that having to abandon its religious staffing practice in order to take part in the federal program would constitute a substantial burden on its religious exercise, then it can receive the federal funds without having to abandon religious hiring.

The letter of complaint implies that the OLC memo opened the floodgates for discrimination by federally funded faith-based organizations.  In fact, the 1964 Civil Rights Act does not regard it as discrimination when a religious organizations selects staff on a religious basis, although these organizations, along with all others, cannot discriminate in employment on the bases of race, color, national origin, or sex.  This Title VII exemption enables faith-based organizations to ensure that their employees are compatible with their religious identity (just as environmental groups screen out people who don't care for the creation). 
 
Many federal programs respect this Title VII exemption, imposing no restriction on religious hiring when a faith-based organization receives federal funds to provide services to the poor and needy.  That's not an unconstitutional freedom, according to the courts, although opponents would like to think it is.  The faith-based group hires on a religious basis; the federal program doesn't restrict that practice; there is no barrier to the group taking part in the program.  The controvery about the OLC memo does not affect this broad federal religious hiring freedom.

The OLC memo only applies to that subset of federal programs that includes employment rules (e.g, the Head Start program, services funded under the Workforce Investment Act, many Department of Justice service programs).  In these programs, there is a specific provision banning employment decisions based on religion, race, etc.  Usually, faith-based organizations that care about religious staffing would not even apply for funding from such programs. 

Far from legitimating a "blanket override" of the job rules in these federal programs, the OLC memo states that the government must be unable to come up with a "compelling interest" to deny the RFRA exemption to the faith-based applicant and the applicant must be able to demonstrate that religious staffing is vital to it so that having to give up the practice would indeed impose a "substantial burden" on its religious exercise.

For the legal and policy aspects of religious hiring, consult Carl Esbeck, Stanley Carlson-Thies, and Ron Sider, The Freedom of Faith-Based Organizations to Staff on a Religious Basis  (Center for Public Justice, 2004).  A pdf version of the book is available.

Maintain a Focus on Grassroots Organizations
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In retooling the federal faith-based and neighborhood partnership initiative to stress effective services, and in this time of heightened public concern about federal spending, it would be easy for government attention to swing to bigger and well-established nonprofit organizations because of their large service capacity and their ability to comply with detailed rules and extensive reporting requirements.  But the faith-based initiative, which has roots going back into the 1980s with the revival of interest in civil society, volunteering, asset building, and citizen activism, has always stressed the particular strengths of grassroots organizations, both faith-based and secular, which are not so bureaucratically endowed but have other strengths:  the trust of those around, a commitment to the place and its people, local knowledge and networks, a personal and often holistic approach to helping.

The important role of grassroots organizations in responding to human need, and the care that is required if government is to support rather than undermine them, is stressed in a series of articles in the current issue of Local Knowledge, a web-based publication of the Mercatus Center at George Mason University.  The issue is entitled "Caring Communities:  The Role of Nonprofits in Rebuilding the Gulf Coast."

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Many faith communities and faith-based organizations are eager to see fundamental health reform that ensures good care for all, which means:  without making the insured, taxpayers, or health care institutions complicit in abortion.  Despite all the attention paid to the issue, and all the protestations that some current bill, or the eventual legislation, absolutely will not subsidize abortion, there is good reason to worry.  A September 9 blog post by Dan Gilgoff of the God & Country blog at US News & World Report documents "religious progressives" who are working hard to finally get all pro-abortion provisions out of the health care bills so that the reform effort will not be undermined.  Similarly, Congressman Bart Stupak, a pro-life Democrat representing a district in Michigan, has been busy lining up pro-life members in order to stop legislative action unless the House leadership at last allows a vote on his amendment that would explicitly ban coverage for elective abortions. 

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Pressure is increasing in Washington, DC, for Congress and the administration to act on a series of anti-discrimination measures that, if they lack robust religious exemptions, will make it difficult for many faith-based organizations to maintain their faith-based standards and services:  a hate crimes bill (now awaiting conference committee), the Employment Non-Discrimination Act (a version passed the House but not the Senate in 2007), and, under the misleading name of the "Respect for Marriage Act," a bill to repeal the Defense of Marriage Act (DOMA). 

Two invaluable resources for understanding the clash between the anti-discrimination crusade and religious freedom are:

Greg Baylor and Timothy Tracey, "Nondiscrimination Rules and Religious Associational Freedom," Engage, vol. 8, no. 3 (June 2007), 138-149.

Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson, Same-Sex Marriage and Religious Liberty:  Emerging Conflicts (Rowman and Littlefield and the Becket Fund, 2008).