April 11, 2014

The fiftieth anniversary of the signing by President Lyndon B. Johnson of the 1964 Civil Rights Act, our nation's premier civil rights law, is being celebrated this week by a conference at the LBJ presidential library in Austin, Texas. Among other important civil rights standards, Title VII of the act set out for the first time federal rules on employment discrimination-prohibiting job discrimination on the bases of race, color, religion, sex, or national origin. Notably, it included a religious exemption: it would not be illegal discrimination for a religious organization to consider religion when making employment decisions about job positions concerned with "religious activities."

 

So, at the same time that Congress decided it must create federal rules to prohibit job discrimination, it also decided that it must not make it impossible for religious organizations to assess the religious suitability of candidates for certain positions--those involved with carrying out "religious activities."   No Baptist church would be required to hire a rabbi because the Jewish candidate had more experience or more sparkling educational credentials than Baptist applicants. Catholic hospitals would be free to ignore Hindu or atheist or Calvinist applicants for chaplain. (Note that the exemption does not authorize a religious organization to discriminate on the bases of race, color, sex, or national origin.)

 

But what about a community-services coordinator in that Baptist church? A grief counselor in the Catholic hospital? The marriage counselor an evangelical agency seeks to hire? Are these religious or secular job positions? Do chaplains engage in "religious activities" because they administer last rites but a grief counselor, who doesn't perform religious rituals but does talk with patients about their eternal destiny, is not engaged in "religious activities"?

 

To clarify the law and to avoid requiring religious organizations, government officials, and the courts from having to parse just which activities are "religious" and which are not, and which positions are sufficiently occupied with religion and which ones are not, when Congress revisited the Civil Rights Act in 1972 it modified the religious exemption, turning it into a religious organization exemption. Now the exemption covers every job position in "a religious corporation, association, educational institution, or society"--every person who carries out the "activities" of the organization (notice that there is no "religious" qualification of "activities").

 

Sen. Sam Ervin (D-North Carolina), a noted congressional expert on the Constitution, justified this expansion of the exemption from certain positions to every position in a religious organization, by saying that the change was needed "to take the political hands of Caesar off the institutions of God, where they have no place to be." The religious position exemption was now a religious organization exemption, as it has remained.

 

Many then, and now, regard such an exemption as too broad. Maybe the Catholic hospital should be able to insist that the grief counselor, and not only the chaplain, be Catholic, but surely a health club should not be able to use religion as a criterion when choosing a janitor! But, in truth, just such a case (a janitor in a Mormon gymnasium) went to the US Supreme Court, which ruled unanimously in 1987 (Corporation of the Presiding Bishop v. Amos) that it was up to the religious organization, and no one else, to decide whether religion was relevant when it hired and fired.

 

Others have argued that, whatever the legitimate scope of the religious exemption, surely it must automatically go away when the religious organization receives government dollars. Otherwise the government will be supporting religion or, as many critics of the religious hiring freedom put it, the government will be supporting job discrimination (they overlook that, because of the exemption, religious hiring is not illegal discrimination). This argument also has won little sympathy in the courts. It is Title VI of the 1964 Civil Rights Act, not Title VII, that bans religious discrimination when government funds are involved. And a religious organization does not become a part of government when it receives government funds, so the employment non-discrimination rules that apply to government do not automatically apply to private organizations it funds.

 

Some government programs that award funds to private organizations do ban religious hiring (and apply also other hiring prohibitions) by any organization that receives the money. But even this is not an absolute prohibition: a religious organization can appeal to the Religious Freedom Restoration Act to require the government to allow it to participate in the government program without abandoning its religious hiring practices. (See more on this in the story below.)

 

So a robust religious hiring freedom--and more than 50 years old. Why more than 50 years? Before the 1964 Civil Rights Act there was no ban on employment discrimination at all, so no ban on religious hiring either. The Act did not create the freedom: it recognized it. Happy Birthday!

 

As a candidate for president, in July, 2008, Barack Obama announced that, while he would continue the faith-based initiative started by President Bush, he would reform it--among other things by ensuring that no organization that received federal funds would be allowed to hire by religion in the services funded by those federal dollars.  Nevertheless, and despite persistent criticism from many of his allies, as President he has not made any such change. He has not reversed a Bush executive order that enables faith-based organizations that hire by religion to become federal contractors. He has not withdrawn a Bush-era opinion by the Office of Legal Counsel in the Department of Justice that interprets the Religious Freedom Restoration Act to allow, under certain conditions, religious organizations that hire by religion to participate in federal programs that prohibit religious (and other) job discrimination. He has not issued (at least, not yet), despite great pressure, an executive order banning LGBT job discrimination by federal contractors.

 

Instead, and notably, his Department of Justice has just issued a memo that details how a faith-based organization that hires by religion can take part--without ceasing religious hiring--in programs funded by the Violence Against Women Act and other programs of the Office on Violence Against Women--even though Congress just last year added nondiscrimination language to those programs.

 

The congressional action came via reauthorization last year of the Violence Against Women Act (VAWA). The Senate added to VAWA a prohibition on discrimination on a long list of grounds: race, color, religion, national origin, sex, gender identity, sexual orientation, and disability. The language is similar to that in some other federal legislation, such as the Head Start Act, that has been interpreted to prohibit not only discrimination against persons seeking services but also discrimination against employees and potential employees of the organization receiving the federal funds. To avoid excluding as possible grantees religious organizations that hire by religion, there was an effort in the House of Representatives to amend the anti-discrimination requirement, limiting it to discrimination against beneficiaries. But that effort failed. The broad anti-discrimination requirement became law.

 

However, yesterday the Office on Violence Against Women issued an FAQ memo to explain the new "Nondiscrimination Grant Condition" in the reauthorized VAWA. The FAQs stress that no recipient of VAWA (and related) funds may discriminate on any of the listed grounds against a person who receives or who might receive services. And no recipient of the funds may discriminate, either, on any of those grounds against an employee or applicant for employment.

 

Except when the protections of the Religious Freedom Restoration Act (RFRA) apply. Question 6 references a June 29, 2007, opinion issued by the Office of Legal Counsel (OLC) in the Department of Justice, which set out how RFRA applies to federal programs that include a ban on religious hiring. The same logic earlier was used by the Bush administration in its SAMHSA Charitable Choice regulations.

 

To claim the right to continue hiring by religion in programs subject to the VAWA non-discrimination rule, the faith-based organization must complete and file with the government a document certifying that:

 

* it will not discriminate in providing services (this is a requirement that already applies to all grantees);

 

* it will not use the grant funds to pay for "activities that contain inherently religious content" (this is a requirement that already applies to all grantees); and

 

* it "is a religious organization that sincerely believes that providing the services in question is an expression of its religious beliefs; that employing individuals of a particular religion is important to its religious exercise; and that having to abandon its religious hiring practice in order to receive the federal funding would substantially burden its religious exercise."

 

The government reserves the right to challenge the truthfulness of these claims, but absent such a challenge, the faith-based organization can receive federal funds governed by the religious hiring prohibition without giving up their religious hiring freedom.

 

Rather than withdraw the OLC opinion, the Obama administration has applied it to a new religious hiring prohibition.

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At long last, the case of the employees who sued the New York City Salvation Army, alleging religious job discrimination, is over. On March 18, 2014, the Salvation Army signed a settlement agreement in the lawsuit that was filed in 2004 by the New York Civil Liberties Union. This branch of the Salvation Army had, for many years, paid little attention to the religious qualifications of people hired to offer services in New York City (in distinction from the Salvationist beliefs required of ministerial employees). Those services were largely funded by federal, state, or local government dollars. When it did begin to insist that all of its employees be aligned with its Gospel beliefs and show evidence of faithful church attendance, several of the staff sued, claiming that religious hiring is illegal and unconstitutional in government-funded services. In the March settlement, the Salvation Army agreed to pay $450,000 and to stop certain practices.

 

But the settlement is not the big anti-religious hiring victory the New York Civil Liberties Union and other critics of the faith-based initiative want everyone to believe. A New York City federal judge has already ruled, in 2005, that religious hiring by the Salvation Army was not a constitutional violation even though the services were almost entirely funded by government. Indeed, the various funding programs did not themselves ban religious hiring by religious organizations. This ruling--a major vindication of the religious hiring freedom--stands, no matter what the later settlement might be.

 

And the settlement itself is not a sweeping slap-down of the Salvation Army. The Army has agreed not to engage in "unlawful" discrimination when it hires and fires (religion is not listed as a prohibited characteristic). The Army cannot force employees, whose time is funded by government dollars, to participate in religious activities (that was already illegal). The Army must be sure that services are provided without mixing in religious activities or engaging in religious discrimination against beneficiaries (these also are existing rules, because of the government funding). On the other hand, the settlement states that the Salvation Army can require the employees "to conduct themselves in a manner consistent with the religious and charitable policies and principles of The Salvation Army."

 

So, basically, the Salvation Army agreed to follow the law and did not concede that it had been violating the law.

On April 3, 2014, Governor Phil Bryant signed into law the Mississippi Religious Freedom Restoration Act (RFRA), just a month or so after a social-media firestorm and great pressure by businesses helped to persuade Arizona's governor to veto the RFRA bill her legislature had passed. Opponents did not manage to rouse the same wide-ranging protests in Mississippi, but critics did succeed in getting the original bill changed so that it now mirrors the language of the federal Religious Freedom Restoration Act--language which itself has come under attack by LGBT rights proponents.

 

In a very troubling development, the earlier version of the bill was sharply criticized by a group of law professors whose objections were couched in terms of an attack on the conception of the federal RFRA law. The Mississippi bill should be rejected, they said, because it might undermine LGBT rights (which are not currently acknowledged in the state, anyway).  The letter notes that when the federal RFRA was adopted two decades ago, the broad coalition that supported it agreed not to speculate about possible outcomes but just agreed to safeguard religious freedom "quite widely and generously."  But the "civil rights community" since then has become overwhelmingly concerned that when religious freedom is protected, LGBT rights might have to be limited--and that outcome is unacceptable. 

 

The scholars' letter even says this:  If Mississippi adopts the RFRA bill, and "a person raises a RFRA defense to a charge under state or local anti-discrimination law . . ., that person would likely include as part of his defense that other, non-objecting persons provide the same or similar goods and services. Such a person would assert that the existence of alternative providers renders application of the law not 'essential' as to him. Whatever the outcome of such a case, we hope you see that the existence of market options should never be enough to make up for the indignity and lost opportunity inflicted by discrimination."   

 

In other words, the presumed right of the LGBT person to be served or employed wherever he or she desires must necessarily trump the religious freedom of the nonprofit or business that desires to maintain faith-based standards, no matter that nonprofits and businesses with other standards are readily available.

 

This isn't respect for religious freedom but rather a plea that religious freedom be sharply curtailed.

On April 7, 2014, the US Supreme Court decided not to take up the case of Elane Photography, the small photography business that ran afoul of New Mexico's human rights rules because Elaine Huguenin told a potential customer that she would not photograph a lesbian commitment ceremony. New Mexico's Supreme Court upheld the judgment against Elane Photography that had been made by the New Mexico Human Rights Commission. The US Supreme Court's decision lets that ruling stand.

 

But in declining to take up the case, the US Supreme Court did not somehow decide that cases like this pose no religious freedom or free speech violations. The Court may decline cases for many different reasons.

 

Still, by not taking up this case, our highest court missed a chance to speak out against the New Mexico Supreme Court justice who claimed that "it is the price of citizenship" for persons to be "compelled by law to compromise the very religious beliefs that inspire their lives."

 

And by not taking up the case, our highest court missed a chance to affirm the religious freedom and conscience rights of professionals. And if the religious freedom of professionals is not upheld, then there will be little left of the religious freedom of faith-based organizations who need to staff their organization with professionals.

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