September 22, 2005 | WebMemo on Education
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 be respected.
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 they serve.
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.
Religious freedom 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.
Religious 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.
Diluting religious 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 reauthorization.
Grace Smith is a Research Assistant, and Jonathan Butcher is a Research Assistant, in Domestic Policy Studies at The Heritage Foundation.