September 22, 2005
By Grace Smith and Jonathan Butcher
Congress has the
opportunity to protect faith-based organizations' hiring freedom
this week as it moves toward reauthorization of Head Start. The right of faith-based groups to take
religious beliefs into account in their hiring practices is
fundamental to religious liberty and should be protected when a
faith-based group works with the government to provide social
services through programs like Head Start. The House's current Head
Start reauthorization bill does not protect this right. Congress
should correct this oversight.
Head Start is a federally funded preschool
program for low-income children operated by the Department of
Health and Human Services. The program is due for reauthorization
this year, and the House Committee on Education and the Workforce
has already passed a reauthorization bill, H.R. 2123.
The bill does not, however, contain language
to clarify that the hiring rights of participating faith-based
providers will be protected. Rep. Charles Boustany (R-LA) plans to
offer an amendment on the House floor that would ensure hiring
protections for faith-based Head Start providers. Education and the
Workforce Committee Chairman John Boehner (R-Ohio) had earlier
indicated his support for such language "that will ensure
faith-based organizations can compete for federal Head Start grants
without surrendering their constitutionally-protected right to take
religion into account in their hiring practices." Without such a
provision, faith-based providers seeking to participate in Head
Start would not have the assurance that their hiring freedom would
Those who oppose
protecting faith-based groups' hiring rights aim to prevent
religious organizations that accept Head Start funds from
considering the religious beliefs and practices of potential
employees. The right to consider an individual's faith in the
hiring process is vital to a provider's identity and a fundamental
component of religious liberty. Religious organizations and
faith-based charities are an active part of civil society in the
United States and often provide services to the poor more
effectively than federal agencies-thus, their success as providers
of government services. Without hiring protections, faith-based
organizations would be less likely to compete for federal funds
that they use to provide services to the community. Should they
choose to participate, on the other hand, they risk diluting or
losing their religious identity. Forcing this choice on faith-based
groups would be a disservice not only to them, but also to those
The most common
criticism of hiring protection for faith-based groups is that it
violates the anti-discrimination provisions of the Civil Rights Act
of 1964. However, the Civil Rights Act, while banning employment
discrimination on the basis of religion in general, plainly exempts
religious institutions. The ban, it said, "shall not apply
to…a religious corporation, association, or society with
respect to the employment of individuals of a particular religion
to perform work connected with the carrying on by such corporation,
association, or society of its religious activities." Clearly,
churches, religious colleges and universities, and faith-based
charities fall within this exemption.
In the 1972
expansion of the Civil Rights Act, Congress determined that
religious groups could consider a potential employee's faith or
values in the hiring process. Christian and Muslim charities, for
example, are free to hire staff who share their beliefs and are
therefore better suited to carrying out their missions. Similarly,
a Jewish school is free to hire teachers who ascribe to Judaism.
These religious "protections" apply only to a faith-based
organization's employees, not to participants in its programs or
beneficiaries of its services. Under the Community Services Block
Grant and other government funded social service programs, a
faith-based charity may not exclude any participant on the basis of
his religion. This distinction is an important one, but it is often
ignored or misrepresented in the course of public debate.
in hiring is consistent with constitutional assurances of civil
rights, as the U.S. Supreme Court unanimously upheld in
Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints v. Amos (1987).
Preserving and supporting the independence of religious
organizations is entirely consistent with the Court's guarantees of
civil rights over the past 40 years. In addition, the other
branches of the federal government have affirmed and reinforced
these hiring protections. President William Clinton, for example,
signed the Welfare Reform Act in 1996, the Community Services Block
Grant Act in 1998, and the Community Renewal Tax Relief Act and the
Substance Abuse and Mental Health Services Administration Act in
2000; all allow faith-based groups participating in government
programs to exercise their right to hire employees who share their
beliefs. More recently, Congress approved religious hiring
protections for faith-based schools that participate in the
Washington, D.C., voucher program in 2004, and President George W.
Bush has consistently supported faith-based organizations'
participation in the public sphere to provide social services.
A Protection to Preserve
The protection of
faith-based organizations' hiring rights must be preserved. The
freedom to hire employees whose convictions are consistent with the
organizational mission is intrinsically important to religious
groups whose identity-and programmatic efficacy, too-depends on
such beliefs. The leadership and personnel of any organization
determine its priorities, carry out its mission, and embody its
values; groups that take a faith-based approach to providing social
assistance depend upon this constitutional guarantee.
organizations are not alone in their desire to exercise their First
Amendment rights. The Salvation Army, People for the Ethical
Treatment of Animals, and the National Abortion and Reproductive
Rights Action League (now known only as "NARAL") all seek to employ
those who support their missions. Some argue that applying for
federal funds ought to change a group's hiring freedoms, but that
claim reflects a misunderstanding of freedom of association. After
all, Planned Parenthood, for example, receives hundreds of millions
of government dollars each year and yet retains the freedom not to
hire pro-life Catholics at its clinics. Circumscribing this freedom
would have far-reaching and unexpected results.
groups' First Amendment rights poses a significant threat to civil
liberties. The right of faith-based groups to freely determine
their own qualifications for membership is a fundamental part of
our constitutional order. Congress must uphold this right and
should take this opportunity to do so in the context of Head Start
is a Research Assistant, and Jonathan Butcher is a Research
Assistant, in Domestic Policy Studies at The Heritage
The right of faith-based groups to take religious beliefs intoaccount when hiring is fundamental to religious liberty.
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