Religious Hiring Protection Under Assault

Report Civil Society

Religious Hiring Protection Under Assault

February 3, 2004 3 min read

Authors: Joseph Loconte and Jennifer Marshall

Ever since the launch of the President's faith-based initiative, religious organizations' freedom to hire according to their beliefs has been under fire from some in Congress. The latest target is the "Improving the Community Services Block Grant Act" (H.R. 3030), which the House is set to consider on the floor this Wednesday. The right of private religious groups to freely determine their membership is a cornerstone of our constitutional order. Congress should once again uphold this important freedom.

A Fundamental Right

Congressional insiders expect that several amendments to remove religious "hiring protections" will be offered, as happened in committee earlier. If any of these amendments were to become law, religious organizations that accept federal funding would be barred from considering the religious beliefs and values of potential employees. No right is more fundamental to preserving religious liberty. Given the size and scope of government, the loss of this protection would signal the decline of a genuinely free and independent civil society.

Critics of this protection claim that employment decisions based on religion violate the anti-discrimination provisions of the 1964 Civil Rights Act. The architects of that historic legislation, however, plainly understood the importance of protecting the independence of religious institutions from government control. While banning acts of discrimination in employment based on race, ethnicity, gender, religion, or national origin under Title VII, they crafted an exemption for religious organizations - including churches, colleges, and universities.

In a 1972 expansion of the Civil Rights Act, Congress determined that any "religious corporation, association, education institution, or society" could consider applicants' religious faith in the hiring process. This exemption allows Christian and Muslim charities, for example, to hire employees who share their organizations' faith and beliefs. Counter to much misinformation, these "protections" apply only to employees - not to participants; the Community Services Block Grant and other social service programs do not permit religious charities to bar program participants because of their religious beliefs.

Religious freedom in hiring is consistent with constitutional assurances of civil rights, as the Supreme Court unanimously decided in upholding these protections in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987). It is the critics of the exemption who are trying to undo 35 years of civil rights guarantees by attacking the independence of churches, synagogues, mosques and religious organizations of every kind.

Throughout the debates over federal funding of faith-based organizations, both the President and the Congress have consistently reinforced hiring protections. Indeed, President Clinton signed four laws stipulating that faith-based organizations preserve their right to staff on a religious basis when they receive federal funds, including the 1996 Welfare Reform Act and the 1998 version of the Community Services Block Grant Act. In the 108th Congress, the House has restated these clarifications for religious groups using federal funds under Head Start and the Workforce Investment Act (WIA). Most recently, Congress affirmed religious hiring protections for private schools that will participate in the D.C. voucher initiative, enacted as a part of the Fiscal 2004 Omnibus Appropriations Act.

A Vital Protection

There is no more vital protection for organizations with a religiously-rooted approach to social assistance than the freedom to hire according to their convictions. The leadership and staff of an organization determine its destiny. They alone will carry out its mission, uphold its priorities, and embody its deepest values. If the First Amendment guarantee of religious liberty does not protect the employment decisions of faith-based organizations - their right to free association - then it has become a meaningless abstraction.

Religious organizations are not alone in this belief. Just as faith-based groups want staff members to share their most deeply held beliefs and values, secular nonprofit organizations want employees who believe fervently in their missions - everything from environmental protection to abortion rights. In this sense, the hiring policies of the Human Rights Campaign, a gay organization, are no different from those of the evangelical Salvation Army. Some say the receipt of federal money changes the rules of the game. But if that's true, then Planned Parenthood - which in 2002 got $240 million in government funds - could be forced to staff its clinics with pro-life Catholics.

Stripping away the First Amendment rights of religious groups would threaten everyone's civil liberties. The right of private religious groups to freely determine their membership is a cornerstone of our constitutional order. Congress should once again uphold this important freedom as it considers the Community Services Block Grant.

Joseph Loconte is William E. Simon Fellow in Religion and a Free Society, and Jennifer Marshall is Director of Domestic Policy Studies, at The Heritage Foundation.


Joseph Loconte
Joseph Loconte

Former William E. Simon Fellow in Religion and a Free Society

Jennifer A. Marshall
Jennifer Marshall

Vice President Institute for Family, Community & Opportunity