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
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.