How the Law on Funding and Religious Hiring Has Really Developed (Response to Martha Minow)

Among the misconceptions used to challenge religion-based hiring in private programs receiving government funds is the idea that such hiring was prohibited until President Bush came along.  For example, when Barack Obama proposed his faith-based initiative earlier this month, Martha Minow was quoted in the Times as saying that

Mr. Obama would move to “return the law to what it was before the current administration,” in other words barring the consideration of religion in hiring decisions for such programs that receive federal financing.

“I don’t think there’s anything too controversial about that,” Ms. Minow said.  “Any religious organization that does not want to comply with that requirement simply doesn’t have to take the money.”

Leave aside the question whether it's right, or constitutional, just to say "don't take the money."  Prof. Minow's statement is misleading about the law before the Bush administration.  Religious organizations receiving funding have had far more freedom, all along, to consider religion in hiring than she suggests.

The details of the law concerning faith-based hiring by funding recipients are well laid out in a book by lawprof Carl Esbeck, together with Stanley Carlson-Thies and Ron Sider, called The Freedom of Faith-Based Organizations to Staff on a Religious Basis.  You can download it for free from the Center for Public Justice, here.

First, religious organizations have long been free from liability under federal antidiscrimination law for considering religion in their staffing; since 1972, exemptions in Title VII have made that clear.  (Those widespread exemptions -- quite different from nonexistent or narrow exemptions for, say, race or sex discrimination -- reflect the fact that religion-conscious hiring, for religious organizations that choose to do it, is not arbitrary but rather a legitimate means of maintaining their ideological identity as other ideological organizations are free to do.)

And  numerous cases hold that the protection of these exemptions is not lost simply because the organization receives funding, even direct funding going to the programs in question.  Important recent decisions hold this with respect to the Salvation Army (Lown, S.D.N.Y. 1995) and World Vision (Spencer, W.D. Wash. 2008); earlier ones are cited in Esbeck et al., at 34-36  Thus, federal funding to a religious organization has not come with a condition of religious nondiscrimination in hiring unless a federal funding statute (or state statute, if federal funds pass through states) has explicitly said so.

Second, most federal funding statutes contain no such condition.  The general funding-conditions statutes, such as Title VI of the Civil Rights Act, cover only race, ethnicity, sex, age, and disability.  Before the Bush administration, the general rules for federal government contractors forbade religious discrimination in hiring, but as Esbeck et al. point out, most funding to private social services takes the form of grants not contracts (federal contracts are mostly for government buying goods/services for itself not to serve beneficiaries).  A few program-specific federal-grant statutes have religious nondiscrimination requirements in them, but most do not.

Third, before the Bush administration, Congress in 1996 passed -- and President Clinton signed -- the "Charitable Choice" legislation, which expressly protects religious organizations' ability to compete for federal grants without giving up their right to consider religion in staffing.  Charitable Choice applies to several programs: the TANF welfare program, the Community Block Development Grant program, and the SAMSHA substance-abuse program (the latter two also by laws signed by Clinton).  Funds under these mostly pass through state and local governments, some of which have their own religious nondiscrimination rules.  But Charitable Choice, under what is by far the best reading, preempts (overrides) a large number of state or local rules that interfere with the federal goal of permitting organizations to maintain their identity by religion-conscious hiring even while providing government-funded services.  See Esbeck et al. at 68-77.

It appears from Obama's speech and plan that his approach would repeal the religious-hiring protections of Charitable Choice.  The plan says flatly that "religious organizations cannot discriminate with respect to hiring for government-funded social service programs."  Logically, that also means inserting religious nondiscrimination rules (for the first time) into other federal funding statutes, although it's not clear that he contemplates doing that.

It's true that many religious service providers that consider religion throughout their hiring didn't participate heavily in federal funding until recently.  But that was partly because they weren't familiar with funding processes -- as Obama emphasizes, such unfamiliarity is a widespread problem -- and partly because the Supreme Court's Establishment Clause case law until the mid to late 90s was unclear and more hostile to the funding of institutions deemed "pervasively sectarian."  However, even that older case law never said that religion-based hiring in a program flatly disqualified it from funding (it was at most one factor among many).

As you can see, some of the details of the law here get complicated and disputed.  But that's exactly why Professor Minow's statement that Obama's plan would simply "return to the law ... before [Bush]" is quite misleading.

A more accurate description would be:

(1) The freedom of religious organizations receiving funding to engage in religion-conscious hiring was the widespread rule well before the Bush administration.

(2) Obama's current plan, by its logic, would repeal protections for religious-hiring rights that had been recognized at least by 1996, before Bush, and for many purposes much earlier.