The basic federal employment nondiscrimination law is Title VII of the Civil Rights Act of 1964. The Act prohibits discrimination in employment on the basis of race, color, national origin, sex, or religion, and is binding when an employer has fifteen or more employees. However, section 702(a) of the act acknowledges the freedom of religious organizations to take religion into account in their employment decisions. Moreover, the section 702(a) exemption is not forfeited when a faith-based organization accepts government grant funding, nor does the exemption thereby become a religious preference in violation of the Establishment Clause. Lown v. Salvation Army, Inc., 393 F. Supp. 2d 223, 246-52 (S.D.N.Y. 2005). There is more to federal civil rights compliance than Title VII, however, and strictly speaking the section 702(a) exemption is applicable only to claims brought under Title VII.
I. Program-Specific Non-Discrimination Clauses in Federal Legislation
Almost all federal funding awards to independentsector organizations to provide social services take the form of a "grant" or "cooperative agreement," rather than the form of a government "contract" for services. Some federal social service programs have embedded in their authorizing legislation a nondiscrimination clause binding on the recipients of program grants. While this is true of only a minority of all federal welfare programs, still the number of programs with embedded clauses is not insubstantial. The principal thrust of these clauses is to prohibit discrimination against the ultimate beneficiaries of the social service programs. However, a few of the embedded clauses expressly prohibit discrimination by a service provider against its employees in addition to discrimination against the ultimate beneficiaries. In still other programs the embedded clauses prohibit discrimination against the "intended beneficiaries" of the funded social services, but "intended beneficiaries" has been interpreted broadly in judicial decisions to prohibit discrimination not only against the program's ultimate benef ciaries but also against the service provider's employees.
These embedded employment nondiscrimination clauses are presumptively binding on all recipients of federal grants awarded under the programs in question. Examples are the Workforce Investment Act of 1998, administered by the United States Department of Labor, and the first title of the Omnibus Crime Control and Safe Streets Act of 1968, administered by the United States Department of Justice. An embedded clause, if it covers employees as well as ultimate beneficiaries, typically prohibits discrimination against a grantee's employees only while the employees are working in the government-funded program. Two programs, AmeriCorps VISTA and AmeriCorps State and National, both operated by the Corporation for National and Community Service, are unusual in this regard. These programs have an embedded clause restricting religious staffing, but the restriction is limited only to employees newly hired (if any) with the federal program funds in question.
II. The Religious Freedom Restoration Act of 1993
The Religious Freedom Restoration Act of 1993 (RFRA) gives relief to persons of faith and to faith-based organizations. RFRA prohibits intentional discrimination on the basis of religion, but more importantly it also gives relief from substantial burdens on religion when the burden is the unintended impact of a generally applicable federal law. For the religious claimant there are three elements to a prima facie case under RFRA:
- that the professed religious practice is sincere;
- that the burden on the practice is substantial; and,
- that the practice is an exercise of religion.
The government or other RFRA defendant has the affirmative defense (and thus the burden of proof to show) that application of the law is in furtherance of a compelling governmental interest and is the least restrictive means of achieving that governmental interest.
When the aforementioned embedded employment nondiscrimination clauses apply to faith-based social service providers that staff on a religious basis, may these providers turn to RFRA for protection? The United States Department of Justice has answered in the affirmative. In October 2007 the Office of Justice Programs [OJP], which administers the social service programs within the Department of Justice, along with the Taskforce for Faith-Based and Community Initiatives within the Office of the Deputy Attorney General, posted on the Department of Justice webpage the determination that RFRA enables religious organizations to be eligible for federal grants while continuing to employ those of like-minded faith. And faith-based organizations may do so "even if the statute that authorized the funding program generally forbids consideration of religion in employment decisions by grantees." Successfully invoking RFRA is conditional on the sincerity of the faith-based grantee's professed religious motive for involvement in the program, and whether requiring the grantee to choose either religious staffing or federal funding would be a substantial burden on its religion.
The October 2007 posting by OJP came about as a result of a formal request submitted by World Vision, a Christian world relief and community development organization. In early 2005, World Vision was awarded a $1.5 million grant by OJP to address an escalating gang presence and juvenile crime in Northern Virginia. The grant was awarded under the Juvenile Justice and Delinquency Prevention Act, which is subject to provisions of the Omnibus Crime Control and Safe Streets Act. The latter requires that grant applicants not discriminate in employment on the basis of religion when using grant monies. As with many faith-based organizations, World Vision does consider religion when hiring and thus sought a determination that it could safely rely on RFRA and continue its hiring practices. After some delay, in June of 2007 the Office of Legal Counsel (OLC) at the Department of Justice provided OJP with a written legal opinion to the effect that RFRA did override conflicting federal employment nondiscrimination clauses, that World Vision was religiously motivated in its practice of staffing on a religious basis, and that World Vision would be substantially burdened if it could not continue to employ staff of like-minded faith while administering the grant. Although the OLC legal opinion provided to OJP is confidential under the attorney-client privilege, World Vision was soon advised as to the favorable conclusion. The aforementioned posting on the Department of Justice webpage in October 2007 made the ultimate determination available to other religious organizations awarded or applying for OJP grants. Because RFRA applies to social service grants issued by the Department of Justice, it necessarily follows that RFRA applies to grants awarded by other departments and agencies such as the Department of Labor and the Department of Housing and Urban Development.
RFRA protects religious practices from substantial burdens that are imposed by the federal government. Religious charities have a strong interest in maintaining their religious character, and that character in turn is modeled to the poor and needy through its employees. The White House Office of Faith-Based and Community Initiatives published a booklet in June 2003 acknowledging that a faith-based organization's ability to select employees that share its religious values is vital to the group's self-identity and continued ministry. It argues that nonreligious organizations receiving federal grant monies freely hire based on their core mission, just as Planned Parenthood requires that employees be pro-choice and Sierra Club screens applicants based on their view of global warming. Religious groups likewise cannot remain true to their founding creedal purposes unless employees are aligned with the energizing core of the mission.
It is true, of course, that when the aid is direct the government-funded social services must be delivered without prayer, proselytizing, or other inherently religious activities, all as required by the separation of church and state. So congressional critics have argued that the delivery of government-funded services does not require an employee of a particular religion. The quip heard among the critics has been: "An evangelical homeless shelter doesn't need an evangelical employee if all she is doing is ladling soup in a feeding line." But the quip evidences an ignorance of religion. More to the point is Justice William Brennan's observation in his concurring opinion in Corporation of the Presiding Bishop v. Amos. Justice Brennan notes that a religious organization is "an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals." The organization's choice of whom to hire is an important means by which the group "defines itself." The civil courts should be solicitous of those choices because "furtherance of the autonomy of religious organizations often furthers individual religious freedom as well." Religious charities often regard the provision of social services as a means of fulfilling religious duty and as providing a ready example of the life of faith they seek to foster. Religious organizations like World Vision will tell you that their work in reducing gang violence and juvenile delinquency is successful among hard-to-reach adolescents because its employees credibly do what they do with the genuine care and sustained love that only their faith makes possible.
Not all employment discrimination is the same. Disapproving of a job applicant because of her race is senseless and invidious. But one's religious beliefs speak to real and important differences about life's present purposes as well as the ultimate meaning of life, which in turn shape one's vocational objectives and job performance. While the Constitution ascribes no value to racial discrimination, a religious organization's employment discrimination on the basis of religion is often protected as a matter of free exercise. One who has never disagreed with others about religion is not thereby commendably tolerant, but is treating religious differences as trivial, as if religious beliefs do not matter. That is just a soft form of religious bigotry.
III. Additional Arguments by Critics of the Faith- Based Initiative
The most common response to a request such as that of World Vision is that if a faith-based organization does not want restrictions on its hiring then they should not take the money. But there is little doubt that a religious hiring restriction puts enormous pressure on faith-based organizations to recant on a cardinal religious tenet or lose the grant and with it the opportunity to help America's poor and needy. RFRA defines "exercise of religion" broadly to include "any" exercise, whether or not the exercise is "compelled by, or central to, a system of religious belief." Every personnel decision by a religious organization has the potential for being an exercise of religion. And in an organization highly integrated in its faith and the delivery of social services, every personnel decision has the very real potential to be an "exercise of religion" as defined in RFRA.
Opponents continue to insist, however, that a religious organization can easily avoid the religious burden by simply forgoing the competition for federal grant monies. But requiring withdrawal from involvement in modern public life is hardly equitable treatment. Just as the government cannot justify restricting a particular form of speech (e.g., passing out handbills on a public street) merely by pointing to other opportunities that a person has to express herself (e.g., writing a letter to the editor of a newspaper), so the government cannot restrict a particular exercise of religion by pointing to some other course of action where the organization's religious practices are not penalized. And in any event, the question is free of serious doubt under RFRA. RFRA states that a "denial of government funding" on account of a social service provider's religion or religious practice can trigger RFRA's protection. This is only logical. Congress enacted RFRA to "restore" the standard of protection for religious free exercise originally reflected in Sherbert v. Verner, a case about a denial of government funding.30 The Supreme Court held in Sherbert that an individual refusing to take a job entailing work on her Sabbath could not be put to the "cruel choice" of either forfeiting her claim for unemployment benefits or violating her religious Sabbath. Likewise, a faith-based organization cannot be put to the "cruel choice" of either forfeiting its ability to compete for valuable federal grant monies or violating its religious practice of employing those of like-minded faith.
As noted above, the term "religious exercise" is broadly defined in RFRA to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." Nonetheless, opponents of the faith-based initiative argue that for government to decline to facilitate the free exercise of religion is not a religious burden at all, whether substantial or de minimis. The argument will not stand close analysis. It is true, of course, that the Free Exercise Clause of the First Amendment is written in terms of what the government cannot do to a faith-based organization and not in terms of what a faith-based organization can exact from the government. But that line of argumentation does not describe what is occurring here. The government may indeed choose to deliver all social services by itself. In such circumstances, the fact that a faithbased provider cannot win a grant is not a free exercise burden because no one in the independent sector is eligible to win a grant. The federal government, however, has not chosen such a path. Instead, almost all government social services are delivered by the independent sector. Having chosen to deliver welfare services through providers in the independent sector, the federal government cannot then pick and choose among the available providers using eligibility criteria that have a discriminatory impact on faith-based providers. A discriminatory impact on a religious practice as a result of an otherwise neutral law is the very type of occurrence that Congress sought to halt by enacting RFRA. RFRA states that "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability."
Conceding, as they must, that by its terms a denial of grant funding can trigger RFRA protection, opponents of the faith-based initiative argue that RFRA cannot be invoked by a religious charity because the loss of grant monies is not a "substantial" religious burden.34 This makes no sense. It is true that religious organizations making claims of increased financial burden, without more, have not been excused from compliance with general regulatory and tax legislation. 35 That is, it is not enough simply to show that a religiously neutral law increases a faith-based provider's cost of operation. But such cases have no resemblance to the claim of substantial burden here. Instead, an embedded restriction on religious staffing uniquely harms a faith-based organization by preventing it from sustaining its religious character by hiring those of like-minded faith. The harm is not financial or increased operating cost; the harm is uniquely religious.36 A prohibition on religious staffing cuts the very soul out of a faith-based organization's ability to define and pursue its spiritual calling, as well as its ability to sustain its vision over generations.
RFRA itself can be overridden, of course, upon proof by the federal government of a "compelling governmental interest." In the recent case of Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, the Supreme Court held that under RFRA the government's showing of a compelling interest is limited to the particular exercise of religion by the claimant in the case. In Centro Espirita, a religious group asked for an exemption from the Controlled Substances Act so that it could import a particular narcotic used only by adults during one of its religious ceremonies. The federal government opposed the importation request insisting that there was a "compelling governmental interest" in the uniform enforcement of the Controlled Substances Act. In other words, the government claimed a compelling interest in no exceptions for anyone for any reason because to grant an exception for one would mean having to consider other requests for exemptions. The Court rejected that interpretation of RFRA. The Court said that the proper statutory inquiry was more focused in that "RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened." Following the Court's rationale in Centro Espirita, the compelling-interest inquiry in a religious staffing case is not in uniformly preventing employment discrimination on a religious basis by all religious grantees. Rather, the government has to more narrowly show that it has a compelling interest in preventing the particular practice of religious staffing by the particular religious grantee in question.
It is a near impossibility for the government to meet such a focused evidentiary burden, and it is absurd to claim that the elimination of religious staffing by a particular faithbased organization is a compelling interest. Congress sought to achieve just the opposite when it provided in section 702(a) that Title VII's ban on religious discrimination should not apply to religious organizations. Section 702(a) is a parallel policy choice by Congress to accommodate the religious freedom of religious organizations. If anything, accommodating religious staffing expands religious freedom—and the expansion of religious freedom is a strong governmental interest, the leading example of which is the First Amendment. Lastly, it has been observed that protecting the religious character of faith-based organizations that participate in government programs expands the array of choices available to the poor and needy, some of whom desire to seek out assistance at robustly faith-centered providers.
Permitting religious charities to staff on a religious basis does not undermine compelling social norms or enduring constitutional values. Just the opposite is true. The religious staffing freedom minimizes the influence of government actions on the religious choices of both religious providers and those wanting to receive services from a faith-based provider. Finally, safeguarding a faith-based organization's freedom of religious staffing advances the Establishment Clause value of noninterference by government in the religious affairs of religious communities. Senator Sam Ervin (D-N.C.) said it more colorfully upon the revision of Title VII when he stated that the aim of the staffing freedom is to "take the political hands of Caesar off of the institutions of God, where they have no place to be." In Corporation of the Presiding Bishop v. Amos, the Supreme Court put its seal of approval on that congressional judgment concerning proper church-state relations.
CONCLUSION
Freedom for religious staffing by faith-based grantees enhances our nation's religious pluralism and undeniable dynamism. Authentic pluralism is rightly accommodated, not diminished, when the government affirms the equal treatment of these independent-sector providers to participate in social service programs. To do otherwise would privilege secularism, driving robust faith-based organizations underground and away from participation in modern public life. That would be more like hostility toward religion than neutrality toward religion. By the same token, the approach of government neutrality permits faith-based organizations to preserve their institutional character which is necessary to perpetuate their distinctive way of life. These are the social norms to be upheld and the enduring constitutional values to be reinforced. In the face of these realities, the opponents' bald assertions that a ban on religious staffing by federal grantees holds the moral high ground is little more than self-flattery.
Many religious organizations care deeply about retaining the ability to participate fully and equally in modern public life, while retaining their full character as religious organizations of integrity and vision. Not every religious grantee will care about the freedom to staff on a religious basis, of course, but many do. And even this variance among religious groups goes to underline America's religious pluralism made possible only when America's religious freedom is extended to all. When RFRA overrides embedded employment nondiscrimination clauses, the rule of law chooses freedom over a crabbed notion of equality that acts to oppress the vital need of robust religious organizations to retain their institutional autonomy. This freedom, made possible by Congress in passing RFRA, is to be celebrated as in the best of our nation's legal traditions.
*article courtesy of Carl H. Esbeck, the R.B. Price Professor and Isabelle Wade & Paul C. Lyda Professor of Law at the University of Missouri.