More on Charitable Choice and Discrimination

The exploration on "Findlaw" of "charitable choice" programs -- and of "discrimination" by religious institutions that participate in such programs -- by Professors Brownstein and Amar continues here and here.  (See here for a previous MOJ post on the subject).  In the latest installment, Amar and Brownstein insist that there "is no secular purpose" that might justify permitting religious institutions that receive federal funds to "discriminate":

Religious discrimination in hiring with government funds raises other constitutional concerns as well. Charitable choice proponents acknowledge that religious providers cannot use public funds for religious instruction, proselytizing, or worship. If the content of state subsidized programs must be secular in nature, however, what purpose is served by allowing religious organizations to insist that all the employees staffing such programs must be of the same faith.

The answer is not obvious. . . .  [I]t is not clear why the preferences of religious providers should be favored over the interests of their clients. Remember that religious providers accepting direct government grants are required to serve clients of all faiths or none. Whatever positive feeling Baptist employees enjoy in knowing that their co-workers share their faith may be outweighed by the discomfort Catholic or Jewish clients experience when they learn that no member of their faith would even be considered for employment in the program providing them public services.

That is, even if "charitable choice" programs themselves do have a "secular purpose" -- e.g., the more efficient and expansive delivery of social-welfare benefits -- there is no such purpose that attaches specifically to permitting "discrimination" in hiring by religious institutions that participate in this delivery.

It does not appear to me that Brownstein and Amar consider (what I regard as) a stronger "secular purpose" argument:  There is a "secular", political-theory basis for thinking that it is important for mediating institutions (including religious institutions) to be permitted, to the greatest extent possible, to determine and preserve their distinct identities, even when (especially when?) those identities do not map neatly onto those of the government.

Amar and Brownstein go on to consider the argument that "[a]llowing religious discrimination in government funded programs . . . is no different that allowing secular nonprofit employers to hire only those individuals who share their ideological beliefs."  They believe, though, that "religious organizations are not treated 'just like' secular organizations with regard to the way they can use government funds and in numerous other respects - because the Constitution recognizes that religious and secular organizations are not similarly situated and require different treatment."  They conclude:

Put simply, in America we need people of different faiths to be able to live and work together on the basis of equal worth and mutual respect. Public sector and government-funded jobs need to be maintained as the cornerstone of religiously integrated work forces and communities.

Our point here is not that religious discrimination in hiring in government funded programs is inherently invidious. We do not think that it is. But it does prevent the kind of interactions that dispel stereotypes, promote empathy, and protect our hearts and minds from the taint of prejudice.

Moreover, and we can not make this point strongly enough, the fact that religious discrimination in hiring in government funded programs is not invidious or intended to be hurtful does not detract from or mitigate the very real harms it causes to excluded individuals and groups.

I've expressed before why this line of argument does not, in the end, persuade me.  In any event, Amar and Brownstein are engaged, thoughtful, talented scholars, and are without question committed to what they regard as the good of the political community and to religious freedom.

Rick