Federal Funding and Religious Considerations in Hiring

Law prof Carl Esbeck, friend and colleague of mine and RIck's in Christian Legal Society matters, calls attention to an important recent determination by the Justice Department: that religious organizations receiving federal funds are protected by the Religious Freedom Restoration Act (RFRA) in their continued ability to consider religion in hiring employees.  A number of federal funding statutes (including the one at issue in the particular DOJ grant for anti-gang efforts) contain provisions flatly forbidding grantees to engage in religious discrimination in employment.  But as many of us have pointed out, "religious discrimination" by religious providers is different: it reflects a perfectly legitimate demand that employees be committed to the organization's mission, just as the Sierra Club can favor environmentalists in hiring and Planned Parenthood can favor pro-choicers.  This op-ed by Carl summarizes these and other arguments, and notes the applicability of religious hiring rights to cases where a religious provider requires that employees adhere to its belief that sexual intimacy should be limited to marriage.

Because RFRA overrides other federal statutes unless they're explicitly excluded from its application, this determination is relevant to funding programs under many statutes.  And although as I understand it, the DOJ determination formally applies only to DOJ-administered programs, it seems appropriate and likely that other agencies will pay attention to it for their own programs.  This amounts to an important commitment by the Bush adminstration to ensuring that an organization can cooperate with civil government in helping the needy without giving up its religious identity.

As you might expect, Americans United for Separation of Church and State is not happy, arguing that "it’s hard to see what [an employee's religious] beliefs have to do with working in a government-funded, presumably secular, anti-gang program."  But this far too narrowly conceives the organization's interests in having employees, in Carl's words, "aligned with the energizing core of its mission."  Even if they may not evangelize beneficiaries or hold religious services in the funded program, employees may speak to each other informally, thereby  encouraging (or discouraging) each other's faith, and in many obvious and subtle ways they may model (or fail to model) to beneficiaries the principles that the organization believes are important.

Tom