Abstract: Religious staffing by religious organizations is an established, baseline position in federal law that deserves continued support. Most fundamentally, religious staffing by religious organizations is socially desirable conduct that benefits individuals and society, not unjust discrimination that should be eradicated through law. In addition, protections for religious staffing advance several important public interests, including eliminating discrimination against faith-based charities that compete for federal social service funds, increasing the effectiveness of important services to the poor, reducing government entanglement in religious affairs, and protecting religious freedom. Accordingly, public officials should shore up, not tear down, legal protections for religious staffing by religious organizations.
Activists continue to attack the freedom of faith-based organizations to staff on a religious basis if those organizations receive federal funds. Protecting the freedom of religious organizations to consider religion when staffing makes good sense and promotes several important public goods, including religious freedom. Public officials should both uphold and strengthen protections for religious staffing by religious organizations and be prepared to explain why this freedom benefits the public.
Religious staffing by religious organizations is an established, baseline position in federal law. Title VII of the Civil Rights Act of 1964, which prohibits religious selection by private employers, expressly preserves the freedom of religious employers to staff on a religious basis. As amended, the Title VII freedom includes secular as well as religious activities and positions, and it applies to religious organizations that are independently organized and operated, not just traditional houses of worship.
As a general rule, religious organizations neither forfeit the freedoms protected by Title VII nor become “government actors” subject to constitutional restraints merely by accepting federal funds. Further, Title VI of the Civil Rights Act of 1964, which forbids racial and other forms of discrimination by private-sector organizations receiving federal funds, notably does not ban religious selection. Moreover, a significant number of federal laws, policies, and regulations protect or reinforce the religious staffing freedom in various federal programs and in the context of federal procurement contracts.
There are some federal funding programs that ban religious staffing even by religious organizations. However, unless Congress provides otherwise, even those programs are subject to the Religious Freedom Restoration Act (RFRA), which requires that any substantial burden imposed by the federal government on the exercise of religion must further a compelling governmental interest and be the least restrictive means of doing so. The U.S. Department of Justice Office of Legal Counsel has concluded that, on a case-by-case basis, RFRA can protect the religious staffing freedom even if, in the words of one government source, “the statute that authorizes the funding program generally forbids consideration of religion in employment decisions by grantees.” Accordingly, RFRA further reinforces the presumption in federal law that religious organizations should be free to staff on a religious basis even if they receive federal funds.
Protecting religious staffing by religious organizations is a wise and just public policy. Most fundamentally, religious staffing by religious organizations is socially desirable conduct that benefits individuals and society, not unjust discrimination that should be eradicated through law. In addition, protections for religious staffing advance several important public interests, including eliminating discrimination against faith-based charities that compete for federal social service funds, increasing the effectiveness of important services to the poor, reducing government entanglement in religious affairs, and protecting religious freedom. Accordingly, public officials should shore up, not tear down, legal protections for religious staffing by religious organizations.
Socially Desirable Conduct, Not Unjust Discrimination
Much opposition to the religious staffing freedom reflects the assumption that religious selection by religious organizations is unjust discrimination that should be eradicated by law. This assumption lacks merit and reveals an embarrassing failure to distinguish between just and unjust instances of taking religion into account.
Religious selection by religious organizations is neither irrational nor unjust. In general, it is neither irrational nor unjust for organizations to determine which activities further their mission and to select individuals who identify with and are committed to that mission. This process is how organizations, including religious organizations, define themselves.
Most people will understand, to provide two examples, if Planned Parenthood prefers staffers who support abortion or if Democrat lawmakers prefer staffers who vote Democrat. Not everyone will agree with the ends of every organization, but unless those ends have been ruled out of bounds for civil society, it generally makes sense to support the freedom of organizations to choose members and employees who will identify with and support those ends.
The same principle applies to religious organizations. Society condemns religious selection by non-religious organizations because those organizations were not formed to facilitate religious community, activities, and purposes. However, religious organizations facilitate religious community, activities, and purposes and can do so even in “the provision of secular social services and charitable works that do not involve explicitly religious content.” Therefore, as a general rule, it is neither irrational nor unjust for religious organizations, including faith-based charities, to choose individuals who are committed to the religious identity and purposes of the organization.
Religious selection by religious organizations promotes the common good. Religious organizations, like other civil society organizations, provide significant benefits to individuals and to society at large. By facilitating collective action through communities of like-minded people who share similar objectives, organizations empower individuals to achieve human goods that cannot be achieved in isolation. Laws that destroy organizational integrity, identity, and cohesion undermine the ability of organizations to provide these benefits.
Intact, cohesive religious groups also contribute to beneficial forms of diversity that naturally occur in a free and open society. Forcing religious organizations to ignore the religious beliefs and commitments of participating individuals would dampen this diversity and trivialize the importance that religion has in the lives of many individuals and organizations. In contrast, protecting the religious integrity of religious organizations promotes respect for and toleration of sincere differences in core beliefs and commitments.
Freedom is the key for individuals to benefit from participating in organizations. Of course, the freedom of organizations to select individuals who share a commitment to their philosophies and purposes means that individuals who lack that commitment might be excluded. However, those individuals are “free to form other organizations for their own mutual advantage, which are in turn protected against subversion by the same right not to associate with others.” To enjoy the benefits of participating in communities of like-minded people identified with and committed to a common philosophy and mission, individuals must bear the risk of exclusion by organizations dedicated to philosophies and missions that they do not identify with or support.
This principle applies with special weight to religious organizations, where a community based on common religious beliefs and moral values is precisely what many individuals seek from participating in such an organization. If government forces every religious organization to accept every individual, whether or not he or she shares a commitment to the beliefs and purposes of the organization, then there will be no meaningful religious organizations for anyone to join. This result would harm individuals and violate fundamental American values.
- Public funds are no excuse for bad public policy. Finally, some people might support the freedom of religious organizations to staff on a religious basis in privately funded situations but oppose this freedom in situations involving public funds. It is true that, in some ways, regulations imposed indirectly through conditions attached to federal funds sometimes present different considerations than do regulations imposed directly through statutory or regulatory mandates. However, religious staffing by religious organizations is not socially undesirable conduct, merely to be “tolerated” in the context of direct regulation and stamped out everywhere else. Religious staffing by religious organizations is an affirmative good, and protecting it is an important part of protecting the more fundamental good of empowering individuals through the freedom to form and participate in coherent organizations dedicated to goals and purposes shared by individual participants. Public funds provide no excuse for imposing a bad policy on the public.
In sum, “slandering our sacred institutions with the charge of bigotry” on the ground that they prefer members of their own religion “is unacceptable and must be ruled out of bounds.” Pursuing shared goals and interests with groups of like-minded and similarly committed people is one of the great means for individuals to improve their lives. A just government will secure, not frustrate, the liberty of individuals to pursue this form of happiness and personal empowerment.
Placing Faith-Based Organizations on an Equal Footing with Other Organizations that Accept Federal Funds
Opponents of religious staffing argue that it is wrong for religious employers to exclude potential employees because of religion. However, the policies these activists advocate would discriminate by excluding many religious organizations from public partnerships because of religion.
Putting Religious Organizations at an Unfair Disadvantage. Forcing religious organizations, but not secular organizations, to hire employees who do not share their ideals and commitments would put religious organizations at an unfair disadvantage because of their religion. Organizations like the World Wildlife Fund and Planned Parenthood have received millions of dollars from the federal government. Few if any people would argue that those organizations, as a condition of receiving those funds, should be forced to hire employees who do not share their ideals and commitments.
The same standard should apply to religious organizations. Without the freedom to hire coreligionists, “religious organizations lose the right to define their organizational mission enjoyed by secular organizations that receive public funds.”
- Discriminating Against Religious Organizations. Further, excluding religious organizations that practice religious staffing from federal programs will, in many cases, amount to excluding—not just disadvantaging—religious organizations because of religion. Many faith-based organizations will not, or are not as likely to, participate in federally funded programs if they lose their freedom to maintain their religious identity and mission through religious staffing. Excluding organizations that practice religious staffing effectively discriminates against religious organizations in favor of secular organizations.
As President Obama has stated, “No organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs.” Religious organizations should enjoy the same freedom as secular organizations to select employees who are committed to the ideals and mission of the organization.
Protecting the Autonomy and Effectiveness of Religious Organizations
Religious staffing can be an important tool for strengthening and protecting religious organizations in at least four ways.
- Promoting Coherent Group Identity. For many religious organizations, the freedom to select employees who share their religious teachings and mission is central to maintaining their “religious identity.” Religious staffing makes it possible for religious individuals to form coherent organizations and enables them to “maintain” their religious vision “over a sustained time period.”
- Protecting Religious Integrity. Religious staffing enables faith-based organizations to preserve their religious “integrity.” Laws that prevent religious organizations from religious staffing can:
- “[T]ransform [them] into something they are not;”
- Pressure them to “secularize” to obtain resources that are available to other entities; and
- Undermine their ability “to promote common values,” to define their “mission according to the dictates of [their] faith,” and to maintain their religious character.
Benefiting Needy Americans
According to the Institutional Religious Freedom Alliance, “[M]any faith-based organizations that consider religion to be an important job qualification have for many decades partnered with the federal government to provide many important services.” Stamping out the religious staffing freedom could rupture those important private–public partnerships, cause “massive disruption” and “utter chaos” in federally funded services, diminish the resources available to needy Americans, and generate “great hardship for many individuals, families, and communities” that depend on federally funded services provided by those displaced charities.
Further, certain beneficiaries might prefer “to receive their benefits from a faith-based organization.” Excluding religious social service providers “only frustrates those ultimate beneficiaries who would choose to receive their benefits from a faith-based organization.”
In short, as one source puts it, if the government does not “respect” the “unique identity” of faith-based providers, “the poor will suffer.”
As President Obama has eloquently stated, “For as much as government can do and must do, it is ultimately the faith and determination of the American people upon which this nation relies.” Faith-based charities are a vital source of those qualities of faith and determination. Protecting the religious identity and character of those organizations is a vital tool for leveraging those qualities to the benefit of the nation.
Reducing Government Entanglement in Religious Affairs
Religious staffing by religious organizations promotes a healthy separation of church and state by reducing government entanglement in religious affairs.
Entanglement Through Coercion. Forcing religious organizations to secularize as a condition of participating in publicly funded social services programs would increase government influence on the choices of religious institutions.
This outcome would violate the principle that government should minimize its influence on the religious choices of private individuals and institutions. In contrast, laws that protect religious providers from having to secularize in order to qualify for federal funds promote a clearer separation between government action and private religious choices.
The same principle applies to government influence over the private religious choices of individual beneficiaries. “Expanding the variety of choices available to needy individuals…reduces the government’s influence over how those individual choices are made.” Therefore, “[w]herever possible, [policymakers] should work to ensure that there are not only secular alternatives to faith-based providers but also faith-based alternatives to secular services.”
To increase faith-based alternatives to secular services and thereby reduce government influence on the private choices of beneficiaries, government should protect the autonomy of faith-based organizations that participate in federally funded service programs.
Entanglement Through Overregulation. Government entanglement in religion can also happen through overregulation. Some activists might argue that the religious staffing freedom should apply only to certain overtly religious positions or activities within a religious organization. However, asking the government to determine whether a certain position or activity is “religious enough” to be protected would require “intrusive government inquiries” and unwisely entangle the government in religious affairs.
It was “to avoid” the burden of “such inquiries” that Congress, in 1972, amended Title VII “to allow religious organizations to prefer believers for work in all their activities, not merely their ‘religious’ activities.” This approach “effectuates a more complete separation” of religion from government and “avoids the kind of intrusive inquiry into religious belief” that a narrower policy would require.
Because the employment practices of faith-based organizations are “varied and complex,” it is reasonable to fear that even the most unbiased judges and regulators will not adequately understand a religious group’s “religious tenets and sense of mission.” The best policy is one that avoids government officials “trolling” through a religious institution’s religious beliefs in the first place. Accordingly, wherever reasonable, religious organizations should determine for themselves when religious staffing furthers their religious ideals and mission.
Advancing Religious Freedom
As with freedom of speech and freedom of the press, freedom of religion sometimes means protecting conduct that some people might not favor. Religious staffing by religious organizations is socially desirable conduct that should be encouraged and protected, not unjust discrimination that should be stamped out. However, even if some people disagree with religious hiring by religious organizations, respect for religious freedom should compel such individuals to support this freedom for religious organizations that consider the practice to be an important tool for maintaining their religious integrity.
Religious Freedom of Faith-Based Organizations. Rules protecting religious staffing advance the religious freedom of faith-based organizations. For religious organizations that deem religious faith “an important part” of their “self-definition,” having to make employment decisions without regard to their faith could “substantially alter” the character of their organization. The government burdens the religious freedom of such organizations when it conditions funding on their willingness to abandon the practice of staffing on a religious basis.
As religious freedom expert Professor Douglas Laycock explains, “[W]e should not offer [religious organizations] Federal money on condition that they surrender that essential part of the free exercise of their religion.” Forcing any individual or organization to choose between respect for government and allegiance to God is usually a troublesome policy that should be avoided where possible.
- Religious Freedom of Individuals Who Receive Federal Aid. Government influence over private religious choices decreases when beneficiaries of government aid have the option to receive that aid from either a faith-based or secular provider. Protecting the religious staffing freedom encourages religious organizations to provide services through federally funded programs, which results in greater choice for individual beneficiaries. Therefore, the religious staffing freedom also enhances the religious freedom of individuals who receive publicly funded services.
- Religious Freedom of Individuals Who Staff Religious Charities. The religious staffing freedom also advances the freedom of individuals who wish to work for faith-based providers. “For many individuals, religious activity derives meaning in large measure from participation in a larger religious community.” Laws that prohibit religious organizations from maintaining “an ongoing tradition of shared beliefs” frustrate the ability of private citizens to pursue religiously motivated service activities with intact religious communities. In contrast, laws that protect “the autonomy of religious organizations [will] often further individual religious freedom as well.”
Opponents of the religious staffing freedom somtimes argue that religious freedom for individuals means forcing religious organizations to hire individuals of all religions and no religion at all. However, there is a significant difference between private citizens and entities asking only for freedom from state interference with religious exercise and the state forcing one private citizen or entity to accommodate the religious exercise of another private citizen or entity. Laws that force religious organizations to staff without regard to religion burden religious freedom in the truer sense of the word “freedom.”
Some individuals might wish to work for religious organizations even if they do not share the religious commitments of those organizations. However, it would undermine religious freedom to “protect” those individuals by “destroying” the “separate religious identities” of those organizations.” Destroying the religious identity of religious organizations would burden:
- The religious freedom of religious organizations,
- The religious freedom of private citizens who wish to serve with people of similar religious beliefs and commitments, and
- The religious freedom of individual beneficiaries who prefer to choose whether to receive benefits from either a faith-based or secular provider.
In addition, by weakening important civil society institutions, destroying the religious identity of religious organizations would undermine a vital check on the centralization of authority in government, which in turn would threaten the freedom of all individuals and institutions.
In short, forcing religious institutions to ignore religion does not advance religious freedom. Protecting the religious staffing freedom does.
Public officials should uphold and, where appropriate, expand protections for religious staffing by religious organizations. Religious staffing by religious organizations is sound public policy and should be the default position of government absent specific and adequate justification provided on a case-by-case basis. In places where the law fails to protect religious staffing by religious organizations, lawmakers should consider measures to remedy that failure and to strengthen the religious staffing freedom.
In addition, public officials should avoid measures that would entangle the government in the internal affairs of religious organizations. In general, religious organizations, not government officials, are better able to determine when the religious purpose of a religious organization is served by religious staffing and when it is not. Government officials should resist proposals to limit religious staffing only to certain activities or positions that are subject to invasive line-drawing by the government.
—Thomas M. Messner is a Visiting Fellow in the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation.