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It doesn't seem to matter to certain powerful members of Congress and powerful DC action groups that religious hiring by faith-based organizations is a legally protected and essential religious freedom and management practice for the organizations--an important reason why they are able to make their vital particular contributions to the common good.  

It doesn't matter to those opponents that:
·    when the federal government under President Lyndon Johnson in 1965 established the basic rules about job discrimination, it decided that it was not wrongful and illegal discrimination for a religious organization to take account of religion when selecting its staff;
·    the US Supreme Court in 1987 unanimously upheld the federal rule that religious organizations can consider religion when they hire, whether the position is chaplain, caseworker, or clerk;
·    religious hiring is prohibited to grantees in only some federal programs--it is legal in many federal programs;
·    Congress and President Clinton in 1996, 1998, and twice in 2000 put Charitable Choice language into the laws for several programs to emphasize that religious hiring does not become illegal in those programs when a faith-based organizations gets a grant;
·    Congress almost unanimously adopted, and President Clinton signed into law in 1993, the Religious Freedom Restoration Act (RFRA) to protect religious exercise when the federal government adopts sweeping rules;
·    the Department of Justice's legal think tank, the Office of Legal Counsel (OLC), in 2007 issued a memo stating that, because of RFRA, a faith-based organization that hires by religion may be able to take part even in federal programs that ban religious hiring.

No, to these members of Congress and these action groups religious hiring by religious organizations is nothing more than wrongful religious job discrimination.  It is such a bad practice that the federal government must forbid it whenever federal money is involved.  It is such a bad practice that the appeal to the Religious Freedom Restoration Act must be stripped away.  

Actions against religious hiring and religious freedom (partial list)

June 24, 2009:  Demand to Attorney General.  Americans United for Separation of Church and State asks Attorney General Eric Holder to investigate and terminate grants to various faith-based providers, in part because of their religious hiring.  The letter also seeks withdrawal of the 2007 OLC memo.  

Sept. 17, 2009:  Demand to Attorney General.  Letter from the Coalition Against Religious Discrimination (CARD) to AG Holder demanding withdrawal of the 2007 OLC memo.

Sept. 25, 2009:  House of Representatives Bill.  Rep. Bobby Rush introduces HR 3655 to combat deceptive funeral practices--including in the bill first-time language to restrict RFRA's protective scope (he later removed the language).

Feb. 4, 2010:  Demand to the President.  CARD letter to the President in connection with the soon-to-be issued recommendations of the Advisory Council on Faith-Based and Neighborhood Partnerships, demanding a ban on religious hiring by faith-based grantees and greater restrictions on religious expression by those grantees

Feb. 12, 2010:  Congressional Letter.  Letter to the President from Reps. Bobby Scott, Barney Frank, Jerrold Nadler, Chet Edwards, and Chris Van Hollen, supporting the Feb. 4th CARD letter.

May 13, 2010:  Congressional Hearing Challenge.  In a House Judiciary Committee hearing, Rep. Bobby Scott presses AG Holder to state that the administration will stamp out job discrimination by federal grantees on the bases of "race and religion."

May 28, 2010:  House of Representatives Bill.  Rep. Patrick Kennedy introduces HR 5466, the SAMHSA Modernization Act, which includes language to create a universal ban on religious hiring in federally funded drug treatment and mental health programs and to remove the possibility of appeal to RFRA to lift this restriction.  SAMHSA is a Charitable Choice program, so the bill is also an attack on this Clinton-era innovation.

June 18, 2010:  Demand for House Hearings.  CARD letter to Rep. Jerrold Nadler, chair of the Constitution, Civil Rights, and Civil Liberties subcommittee of the House Judiciary Committee, demanding a congressional hearing to make the administration say when it will stop religious hiring by faith-based grantees and impose additional restrictions on their religious expression.

July 22, 2010:  Congressional Hearing Challenge.  In a hearing on the Americans with Disabilities Act, Rep. Bobby Scott demands that Thomas Perez, head of the Civil Rights Division of the Department of Justice, say whether the administration allows religious groups to engage in religious job discrimination and still get federal funds.

Next . . . ?

What will be the next attacks on religious hiring and on the religious freedom legacies of President Lyndon Johnson (the Civil Rights Act of 1964, with its religious hiring freedom), President Bill Clinton (the Religious Freedom Restoration Act of 1993 and the multiple adoptions of Charitable Choice language), President George W. Bush (implementing regulations for Charitable Choice and promulgation of Equal Treatment rules), and President Barack Obama (maintenance of a strong federal faith-based initiative that doesn't backslide to superseded Supreme Court views that were biased against faith-based services)?

For further information:

Prof. Douglas Laycock's letter to Attorney General Eric Holder defending the OLC memorandum about RFRA.  Go here: http://mirrorofjustice.blogs.com/mirrorofjustice/2010/01/laycock-on-preserving-religious-freedom-for-religious-organizations-receiving-funding.html

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How significant is it that on several occasions President Obama and Secretary of State Clinton substituted the term "freedom of worship" for the far more robust and extensive concept of "freedom of religion"?  It may be too soon to say for sure that the federal government has abandoned the broad freedom for the narrow one.  

But it isn't too soon to stress the difference between the two freedoms.  Here's what the official US Commission on International Religious Freedom says the international human rights agreements mean by the concept of religious freedom (note especially the italicized words):

The Freedom to Manifest Religion or Belief in Worship, Observance, Practice, and Teaching

· This freedom may be exercised in public or in private, individually or in community with others.
· This freedom, at a minimum, encompasses the following freedoms:
(a) To worship or assemble in connection with a religion or belief, and to establish and
maintain, including the building of places of worship, freely accessible places for these
purposes;
(b) To establish and maintain appropriate charitable or humanitarian institutions, and
seminaries or religious schools;
(c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief, including the use of ritual formulae and objects, the display of symbols, observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group;
(d) To write, issue and disseminate relevant publications in these areas;
(e) To teach a religion or belief in places suitable for these purposes;
(f) To solicit and receive voluntary financial and other contributions from individuals and institutions;
(g) To organize, train, appoint, elect, designate by succession, or replace appropriate leaders, priests and teachers called for by the requirements and standards of any religion or belief;
(h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religion or belief; and
(i) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.

(Quoted from the USCIRF's current report.)

For faith-based organizations to be able to serve the needy as God calls them to do, they require freedom of religion, not the narrower freedom of worship.  Fortunately it is the broader freedom that the international agreements, and the United States Constitution, guarantee.  

What is the Obama administration up to?  When noted authorities such as the US Commission on International Religious Freedom and Thomas Farr, former director of the State Department's office of international religious freedom, express deep concern about the Obama administration's language, there is every reason for the rest of us to get worried.  It is past time for a statement of clarification from the administration on this important topic.

For further information:

Thomas Farr, "Obama sidelining religious freedom?"  Georgetown/On Faith blog, March 9, 2010, http://newsweek.washingtonpost.com/onfaith/georgetown/2010/03/

Aamer Madhani, "Obama blasted, 13 nations cited on religious freedom" [about the US Commission on International Religious Freedom's concerns], USA Today, April 28, 2010: http://www.usatoday.com/news/religion/2010-04-28-religious-freedom_N.htm

Ashley Samuelson, Becket Fund for Religious Liberty, "Why Freedom of Worship is Not Enough," First Things On the Square blog, Feb. 22, 2010:  
http://www.firstthings.com/onthesquare/2010/02/why-ldquofreedom-of-worshiprdquo-is-not-enough

George Weigel, "The Erosion of Religious Freedom," Ethics and Public Policy Center, Feb. 17, 2010: http://www.eppc.org/publications/pubID.4041/pub_detail.asp

Chuck Colson, "Freedom of Worship:  an anorexic description of our rights," Colson Center/Breakpoint, June 30, 2010:  http://www.colsoncenter.org/the-center/the-chuck-colson-center/two-minute-warning/15391-freedom-of-worship-chuck-colson

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On July 22nd, IRFA organized a briefing for congressional staffers and outside groups with the title, "Is the Religious Freedom Landscape Shifting for Faith-Based Organizations?"  

Kim Colby, Senior Counsel for the Center for Law and Religious Freedom at the Christian Legal Society, discussed the recent Supreme Court ruling legitimating the "all comers" policy of the Hastings law school (University of California), which requires student groups, if they want the access to communications and meeting spaces that recognized groups get, not to "discriminate" in choosing leaders.  Colby stressed that the decision is actually narrow.  A lower court may on further consideration decide that Hastings, in a biased way, in fact required only the CLS student law group to accept "all comers."  Moreover, few other schools have such an odd policy, which would require a Muslim group to accept Jewish leaders, or the Democratic campus group not to exclude a Tea Party leader.  Yet institutions opposed to evangelical Christian student groups have already stepped up their opposition, using the Supreme Court's decision as their rationalization.  At the least the unfortunate decision makes it easier for opponents of "sectarian" religion to strike against faith-based organizations, even if their attacks will later be overturned in court.  

Colby also spoke of the importance of the Religious Freedom Restoration Act of 1993 and the seriousness of the recent congressional efforts to limit its scope (see the first article in this issue).  RFRA is Congress' response to an earlier Supreme Court decision that undermined religious freedom.  Through RFRA, Congress set about to make it easier for religious institutions and individuals to vindicate their religious freedom in the face of laws that encroach upon that freedom.  For some members of Congress now to seek to undermine the scope of RFRA is extremely troubling.

Nathan Diament, Director of Public Policy for the Union of Orthodox Jewish Congregations of America, applauded the inclusion of a robust exemption for religious organizations in the proposed Employment Nondiscrimination Act (ENDA).  ENDA would ban job discrimination on the bases of sexual orientation and gender identity (transgendered persons).  The bill says that religious organizations authorized to hire according to religion under Title VII of the 1964 Civil Rights Act are not subject to the provisions of ENDA.  However, Diament pointed out that this good exemption is likely to prove weak in practice unless it is bolstered with two additional provisions.  First, the ENDA bill needs a "non-retaliation" clause, so that faith-based organizations cannot be stripped of government grants, licenses, tax-exempt status, or other benefits on the grounds that they are "discriminatory" organizations because they need not hire certain persons.  Second, the bill needs a provision clearly stating that, in adopting it, Congress does not intend to undermine religious freedom.  Without such a provision, activist judges may take the enactment of ENDA as permission to elevate "gay rights" over religious freedom, despite the religious exemption.  These two provisions do not expand the religious exemption, Diament pointed out, but instead ensure that it is effective in practice.

Stanley Carlson-Thies, IRFA's President, spoke about the SAMHSA modernization bill proposed by Rep. Patrick Kennedy.  Kennedy is proposing to add to the law that governs federal funding for drug treatment and mental health services a new universal ban on religious hiring by grantees.  It is not clear that the bill will ever be adopted, but the provision Kennedy has proposed is very troubling.  In one stroke it would produce three bad outcomes:  it would expand the current limited SAMHSA religious hiring ban to all SAMHSA funding, thus reducing further faith-based participation; it would undermine the Charitable Choice protections put into SAMHSA programs twice by Congress and President Clinton in 2000; and it would make it impossible for religious groups to appeal to the Religious Freedom Restoration Act in order to  participate despite the religious hiring ban (the possibility of that appeal is currently written into the SAMHSA regulations).  

The briefing was opened with a welcome from Rep. Randy Forbes, co-chair of the bipartisan Congressional Prayer Caucus.  He stressed how important it is for Members, congressional staff, and outside groups to be vigilant, because of the rising tide against religious freedom.  Faith-based organizations do much good in our society, he said, but they will be unable to continue unless their "access" to the public square is maintained.  Forbes stressed three worries:  the possible revival of the "Fairness Doctrine," which would make it easier for government to squelch unwelcome viewpoints; proposals at the state and national levels to curtail the deductibility of charitable contributions--donations that are the fuel on which most faith-based organizations depend; and the intensifying opposition to religious hiring--notwithstanding its importance to so many faith groups.

For further information:

Christian Legal Society resources on the Supreme Court's CLS decision: http://www.clsnet.org/law-students/cls-v-martinez-some-thoughts-recent-supreme-court-decision

Christian Legal Society handout on RFRA: http://www.clsnet.org/sites/default/files/center/litigation/2010-07-22_RFRA%20Legislative_Briefing_Fact_Sheet.pdf

IRFA memo on the SAMHSA bill: http://www.irfalliance.org/images/stories/pdf/samhsa-cc-rfra-hiring.pdf

"ENDA on the Move?" eNews for Faith-Based Organizations, May 17, 2010: http://archive.constantcontact.com/fs020/1102433538532/archive/1103411645371.html#LETTER.BLOCK7

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The HHS Center for Faith-Based and Community Initiatives, one of the first five departmental centers created by the Bush administration, was the first center reorganized and renamed by the Obama administration as it took over the federal faith-based initiative, which dates back to the Clinton administration.

In addition to its official new title of HHS Center for Faith-Based and Neighborhood Partnerships the HHS center has the snappier title of The Partnership Center.  

The HHS Center has a heartening mission statement that refers not only to the goal of building HHS partnerships with secular and faith-based organizations in order to help the federal government better carry out its own programs, but also to the goal of "helping grassroots organizations access the necessary tools to reach those in need."  And it rightly says that its activities must be carried out in a way that respects the Constitution:  "Our nation's Bill of Rights and important laws respecting both religious liberty and the non-establishment of religion protect not only our democracy, but also the plurality and vibrancy of America's religious and civic life."

The Center and its newsletter carry extensive information about HHS grants--many social service programs that utilize private providers, not only federal programs but also those operated by state and local governments, get their funding from the federal Department of Health and Human Services.

Are faith-based organizations eligible for those grants?  The HHS Center's home page has a prominent link labeled "Regulations" that takes you right to a page that gives easy access to the department's Charitable Choice regulations and its Equal Treatment regulations.  No hiding of these important "level playing field" rules here.

The home page also has a prominent link to resources useful to faith-based and other grantees and potential grantees, such as training materials on building the capacity of smaller nonprofits.  And the home page has a prominent link for state and local officials.  Given that the large majority of HHS funding is administered by those state and local officials, and not by federal officials, this is an important feature.  It includes information about how welfare officials are building ties to faith-based and secular grassroots organizations and also a link to a study on the uses of vouchers in the delivery of social services.

This is the kind of faith-based center that can energize faith-based and community-based service organizations, rather than simply enlisting them in the government's own plans.