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Pitting Civil Rights Against Religious Hiring
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The Coalition Against Religious Discrimination, a group of "religious, civil rights, labor, health, women's, and other organizations," last week wrote to President Obama, asking him to rescind President Bush's action that made it possible for faith-based organizations that hire on a religious basis to become federal contractors.  The CARD letter notes that President Bush's action (part of a December 2002 executive order) modified a line of executive orders that date back nearly 70 years to an FDR order forbidding employment discrimination based on "race, creed, color, or national origin" by defense contractors.  The letter calls Bush's action a "civil rights rollback."

The first thing to note (although this vital detail was missed in many press reports) is that this dispute concerns only federal contracts--contracts to provide goods and services to the federal government.  In other words, the Bush action that the CARD letter wants reversed has nothing to do with federal grants to provide social services, or health care, or education (and it has nothing to do with federally funded state or local grants or contracts to provide such services).  This dispute is separate from all the fire and smoke concerning religious hiring that has been part of the big debates about the faith-based initiative.

The second thing to note is that, although the CARD letter attempts to drive a wedge between civil rights progress and religious hiring, in fact the two go together. 

It was the 1964 Civil Rights Act (and its amended version from 1972), adopted at the height of the civil rights movement, that set out in Title VII for the first time national standards on employment discrimination by private employers.  Note this:  Title VII is carefully written to say that it is not illegal discrimination for a religious organization to consider religion when making its hiring and firing decisions, for any of its job positions.  This religious hiring exemption isn't an exemption from the civil rights law but part of the very structure of the law--part of the very civil rights framework.  (Title VII doesn't discuss government funding at all, so it does not remove the exemption if government dollars are received by the faith-based organization.)

In the spirit of this great civil rights law, what President Bush did in 2002 was to adjust the executive orders that previous presidents had adopted and modified--their rules concerning employment discrimination by federal contractors who provide goods and services to the federal government. 

President Bush's 2002 executive order simply made the federal contracting rules take explicit notice of the Title VII religious hiring provision.  Title VII says it is not illegal discrimination for a faith-based organization to take account of religion when hiring and firing.  Why, then, should the federal government forbid such an organization, which is not violating the law if it hires by religion, from contracting to provide services the federal government needs?

Just think:  the federal government may be seeking a contractor that can provide technical assistance or research concerning faith-based organizations and how the government can best work with them.  Why should most faith-based organizations be ineligible to seek such a contract--merely because they exercise their freedom under the law to take account of religion when hiring some or all of their employees?  Why should such faith-based organizations be excluded from any federal contracts at all, if they can perform the work?

President Obama should toss the CARD letter and maintain current practice.  By keeping the religious hiring exemption in federal contract law, he will be continuing the right policy of prohibiting wrongful job discrimination while also honoring religious freedom.

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Because some opponents of religion claim that "the separation of church and state" must mean that, whenever government shows up, religion must be silenced or forced into private corners, the separation idea has become a negative concept for many religious people.

And yet the notion that there is a legitimate and necessary division between government and churches is a deep feature of our civilization.  In ancient Israel, there were separate offices of king and priest.  Jesus noted a distinction between things owed to Caesar and to God.  Discussion--and conflict--to set out the line between the appropriate scope of government and the rightful arena of churches characterizes much of Western history, from battles between emperors and popes to more current disputes about zoning, licensing, and marriage definition.

And employment.  The current big case is Hosanna-Tabor v. EEOC, a case about a teacher who was fired by a Lutheran elementary school (see the April 5 eNews).  The question before the US Supreme Court is whether the teacher was a "ministerial" employee such that the government cannot second-guess how the school dealt with her employment status.

This is a case about the "ministerial exception," which is different than the Title VII "religious exemption" discussed in the story just above.  The outcome isn't directly relevant to most faith-based organizations.  Their freedom to consider religion when hiring and firing goes back to that Title VII exemption, which is part of the 1964 Civil Rights Act.

The "ministerial exception," by contrast, is a freedom created by judges in response to the First Amendment of the US Constitution, which tells the government it must respect religious freedom and religious institutions.  At the very least, judges have reasoned, that respect requires the government not to troll around inside religious organizations, making its own judgments about worship, theology, and the qualifications for ministers. 

So, the US Supreme Court ought to uphold the "ministerial exception" and thereby confirm the rightful "separation of church and state."

For more on that separation as part of our history and part of this case, read the amicus brief from Prof. Eugene Volokh, the National Council of Churches, the Baptist Joint Committee, the Queens Federal of Churches, the National Association of Evangelicals, and the Christian Legal Society.

A number of those "friends of the court" don't normally hang around together--that tells us how important the "ministerial exception" and the "separation of church and state" really are.

Support IRFA
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Are these analyses helpful?  Do you see the need for forward-acting initiatives to maintain a public square in which faith-based services can thrive?  There are many good causes that claim your support.  Will you make IRFA one of them?

You can donate securely on-line here:  http://irfalliance.org/donate.html.

IRFA is a 501(c)(3) organization that depends on the support of those who understand that opposition to faith-based services is growing.  That opposition requires a positive response that goes beyond courtroom defenses.   Thank you.

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