The following is excerpted from The Court and the Cross: The Religious Right's Crusade to Reshape the Supreme Court.
Faith-Based Organizations and Religious Discrimination in Hiring
For the Religious Right, the most significant workplace religion issue over the past decade has been the movement's push to free faith-based organizations (FBOs) from the anti-discrimination provisions of Title VII, while still preserving (and expanding) their access to public funds. Thanks in large part to the movement's political success in Congress and the White House, billions of taxpayer dollars have been funneled to FBOs; even more importantly, FBOs have been freed of the allegedly onerous obligation of nondiscrimination.
When President Clinton issued his executive order on religious expression in the federal workplace, he tried to strike a delicate balance between the protection of federal employee religious rights on the one hand and the prohibition against government establishment of religion on the other. The order repeatedly warned against the appearance of governmental endorsement, and closed with a flat prohibition against establishment: "Supervisors and employees must not engage in activities or expression that a reasonable observer would interpret as government endorsement or denigration of religion or a particular religion."
But Clinton, unfortunately, was not always able to be so careful about the structural integrity of the Jeffersonian wall between church and state; the current feeding frenzy by FBOs can be traced directly to legislation that Clinton had little choice but to accept. In 1996 Congress passed a fiercely debated welfare reform package called the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). The legislation was largely the work of the Republican-controlled Congress that took office in 1994 after the so-called Republican Revolution. Under intense public pressure from bombastic House Speaker Newt Gingrich, and in the midst of a re-election battle with Sen. Bob Dole, R-Kan., Clinton signed the legislation on Aug. 22, 1996. Among the numerous provisions included in the legislation was the following language:
RELIGIOUS ORGANIZATIONS -- The purpose of this section is to allow states to contract with religious organizations, or to allow religious organizations to accept certificates, vouchers, or other forms of disbursement under any program described in subsection (a)(2), on the same basis as any other nongovernmental provider without impairing the religious character of such organizations, and without diminishing the religious freedom of beneficiaries of assistance funded under such program.
The PRWORA did acknowledge that the Constitution contains an establishment clause and declared that any religious organization operating a program to provide social services must do so in a manner consistent with the First Amendment. To reduce charges of undue government entanglement with religion, the law also specifically stated that neither the federal nor state government can require a participating religious organization to change its structure or "remove religious art, icons, scripture, or other symbols."
The "charitable choice" initiative, as it was called, was the work of Sen. John Ashcroft, R-Mo., who received assistance in drafting the new provision from Steve McFarland, who at the time was serving as director of the Christian Legal Society's Center for Law and Religious Freedom (he was later appointed by President George W. Bush to lead the U.S. Justice Department's Task Force for Faith-Based and Community Initiatives). Despite the provision's virtual upending of the traditional relationship between government and religion, media coverage of charitable choice was remarkably limited and largely lost in the much louder debate about the potential impact of the welfare reform act.
Two years later, as Ashcroft was exploring the possibility of a run for president, he announced that he was planning to expand the charitable choice program "to all federal laws which authorize the government to use nongovernmental entities in providing services to beneficiaries with federal dollars." At a press event at the Bowery Mission Transitional Center in New York City, Ashcroft said that the expansion of his program would allow religious organizations to use "federal funds to provide low-income housing, juvenile crime prevention services, substance abuse prevention and treatment programs, abstinence education, and services for seniors."
A little over a year later, suffering from his own raging case of Potomac fever, Vice President Al Gore threw his support behind Ashcroft's proposal, telling reporters in Atlanta, Ga., that charitable choice should be expanded to include "other vital services where faith-based organizations (FBOs) can play a role, such as drug treatment, homelessness, and youth violence." Also backing the program at the state level was Texas Gov. George W. Bush, who signed an executive order shortly after the charitable choice program was first adopted, ordering "all pertinent executive branch agencies to take all necessary steps to implement the 'charitable choice' provision of the federal welfare law."
Less than a month after taking office as president in 2001, Bush issued an executive order that established the first White House Office of Faith-Based and Community Initiatives (OFBCI). The purpose of the order, Bush said, was "to help the federal government coordinate a national effort to expand opportunities for faith-based and other community organizations and to strengthen their capacity to better meet social needs in America's communities." The OFBCI builds on Ashcroft's charitable choice program in several ways, and is authorized to:
- develop, lead, and coordinate the administration's policy agenda affecting faith-based and other community programs and initiatives, expand the role of such efforts in communities, and increase their capacity through executive action, legislation, federal and private funding, and regulatory relief;
- coordinate public education activities designed to mobilize public support for faith-based and community nonprofit initiatives through volunteerism, special projects, demonstration pilots, and public-private partnerships;
- provide policy and legal education to state, local, and community policymakers and public officials seeking ways to empower faith-based and other community organizations and to improve the opportunities, capacity, and expertise of such groups;
- eliminate unnecessary legislative, regulatory, and other bureaucratic barriers that impede effective faith-based and other community efforts to solve social problems.
On the same day that he established the White House OFBCI, President Bush also ordered the creation of similar centers in five federal agencies: the departments of Justice, Education, Labor, Health and Human Services, and Housing and Urban Development. As with the OFBCI, the purpose of the agency centers is to "coordinate department efforts to eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations in the provision of social services." Over the course of his administration, President Bush has ordered six other federal departments to create centers for promoting participation by FBOs: the Agency for International Development; the Department of Agriculture; the Department of Commerce; the Department of Homeland Security; the Small Business Administration; and the Department of Veterans Affairs.
Even before he issued his executive order, President Bush proposed legislation that would not only rewrite federal law to make it easier for faith-based organizations to compete for taxpayer funds, but even more remarkably, would allow religious organizations receiving federal funds to discriminate in their hiring on the basis of religion.
Under Title VII of the Civil Rights Act of 1964, religious organizations have always had a limited exemption to discriminate on the basis of religion for religiously oriented positions in their organization (for instance, a Unitarian Church can advertise for and hire only Unitarians to serve as minister). But Title VII's prohibitions against discrimination on other grounds -- race, gender, national orientation, etc. -- still apply, and when filling purely secular positions, the prohibition against religious discrimination must be observed as well. When Congress passed the Job Training Partnership Act in 1982, it permitted religious organizations to participate in the federally funded program only so long as they agreed not to discriminate on the basis of religion when hiring anyone under the program.
Bush and other members of his administration argued that allowing FBOs to discriminate on the basis of religion when hiring would somehow "level the playing field" and make it easier for them to compete for federal funds. The House of Representatives passed Bush's proposal on faith-based hiring, but the measure got tied up in the Senate. Lawmakers across the political spectrum raised concerns about the administration's apparent indifference to the principle of the separation of church and state, a concern that poll results showed was shared by a large percentage of the public. As Representative Barney Frank, D-Mass., inimitably put it, "The notion that you need to allow religious groups to discriminate to receive federal funds is a lie. If you dip your fingers in the federal till, you can't complain if a little democracy rubs off on you."
When it was clear that Congress was not going to pass his faith-based proposal, Bush chose to enact the controversial policy through administrative fiat. On December 12, 2002, the president held a signing ceremony in Philadelphia to celebrate the issuance of an executive order titled "Equal Protection of the Laws for Faith-based and Community Organizations." Included in Bush's order was an affirmative statement that "no organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of federal financial assistance under social service programs." Similarly, the executive order provides that "faith-based organizations should be eligible to compete for federal financial assistance used to support social service programs ... without impairing their independence, autonomy, expression, or religious character."
It was a remarkable reversal of decades of federal policy: Rather than using federal law to prevent discrimination against individuals, the Bush administration announced that its goal was to prevent discrimination against organizations that discriminate. To help achieve that objective, Bush's executive order amended the provisions of a thirty-seven-year-old executive order issued by President Lyndon Johnson designed to implement the Civil Rights Act of 1964. Johnson's order states that any contractor receiving federal funds "will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin." Bush added a new section to Johnson's order that states that religious groups not only are exempt from the law's nondiscrimination requirements, but in fact, the secretary of labor has the authority, under undefined "special circumstances," to exempt any government contractor from anti-discrimination regulations.
The Bush administration's enthusiasm for religious-based hiring has even spilled over to recent battles over reauthorization of one of the government's most successful educational programs, the Head Start program, in operation since 1965. During the last two Congresses, Republican leaders proposed similar changes to the Head Start program that would have allowed faith-based providers to discriminate on the basis of religion in their hiring of teachers and other educational staff. The measures never came up for a vote, however, and when Democrats retook control of Congress in 2006, the House defeated efforts to send a new reauthorization bill back to committee to continue debating the issue.
The Unchallengeable Financial Windfall for Faith-Based OrganizationsMore than anything else, the OFBCI and the various agency centers have been tremendously successful at awarding funds to faith-based organizations with few if any strings attached. According to a 2006 fact sheet prepared by the White House, a review of more than 2,300 grants awarded by just seven federal agencies showed that FBOs received over $2.1 billion in competitive grants in fiscal year 2005, accounting for nearly 11 percent of the total amount of funding awarded that year. That was a 5 percent increase over the year before, and the White House boasts that federal grants to FBOs in the five leading federal service agencies -- the departments of Health and Human Services (HHS), Housing and Urban Development (HUD), Justice (DOJ), Labor (DOL), and Education -- are up a startling 38 percent since fiscal year 2003.
As part of his faith-based initiative, Bush also instructed the secretary of Health and Human Services to use his Demonstration and Research Authority, a program within HHS, to establish the Compassion Capital Fund (CCF). According to the CCF's website, the purpose of the fund is to "help faith-based and community organizations increase their effectiveness and enhance their ability to provide social services by building their organizational capacity." The Republican Congress appropriated $30 million for the CCF in FY 2002, and over the next four years, more than doubled the size of the program to $64.4 million in FY 2006.
The CCF's goal of training FBOs to become more effective applicants for the federal funds available under Bush's executive order is disconcerting enough. Even more worrisome is the fact that the CCF does not directly administer its funds itself. Instead, it awards grants to "intermediary organizations" that are charged with providing "technical assistance and capacity-building sub-awards" to smaller FBOs.
The structure of the CCF immediately caused controversy, since one of the first intermediary groups to receive a grant, totaling $1.5 million over three years, was Operation Blessing, a religious charity founded by The 700 Club televangelist Pat Robertson. Ironically, Robertson had initially been a fierce critic of Bush's faith-based initiative, but he did not pass up the opportunity to land some federal funding. The grant award to Operation Blessing was criticized by both the Left and the Right: The Reverend Barry Lynn, executive director of Americans United for Separation of Church and State, suggested that "thirty pieces of silver were enough to change [Robertson's] mind."
Conservative columnist and former Moral Majority Vice President Cal Thomas raised the dangers of entanglement: "Government should not decide who deserves funding and who does not. That is an endorsement of one religion or religions over others. Furthermore, the day will come when religious groups will be required to remain silent about their beliefs if they want to continue receiving government checks."
The $1.5 million award to Operation Blessing was only one of the troubling developments. The CCF also gave nearly $2 million over three years to the National Center for Faith-Based Initiatives, an organization founded by Bishop Harold Calvin Ray, one of President Bush's most vocal allies in the push to create his faith-based initiative. As Steve Benen pointed out in an article for Church & State, the lead publication for Americans United, Ray's role as a promoter of federal funds for FBOs has been controversial due to his Christian dominionism views.
"The separation of church and state is a fiction," Ray said in an interview with Charisma magazine in February 2001. "The nation is the kingdom of God, period." He expressed similar views in his self- published book,
Creating Wealth, Determining Destiny, in 1996, arguing, "God expects [Christians] to take dominion." Providing federal funds to FBOs, he said, is a strong step in that direction.
One of the significant problems with the Bush faith-based initiative is that no one really knows where the money is going. In January 2006, Josephine Robinson, director of the Office of Community Services within the Health and Human Services Department, conceded to the
Chicago Tribune that given the number of staff in her office, there was definitely a limit to how much monitoring of grant recipients could take place. FBOs are not supposed to use federal money for "inherently religious" activities, but the combination of vague guidelines and inadequate oversight makes it virtually impossible to know if the boundaries of the Constitution are being observed.
According to a report prepared in September 2006 by the General Accounting Office, which conducts investigations on behalf of Congress, faith-based and community organizations have received over $500 million in new money from federal agencies since 2001, when Bush first launched his initiative. But the GAO found that the Bush administration was not doing enough to prevent religious discrimination and had not instituted standards for measuring the performance of the groups receiving money.
The more significant story was contained in David Kuo's 2007 book,
Tempting Faith: An Inside Story of Political Seduction. Kuo, the number two official in OFBCI from 2001 to 2003, wrote a classic ex-administration-insider, where-the-bodies-are-buried book, the chief purpose of which was to complain that Bush and his political advisers had in fact not done enough to channel funds to FBOs -- by Kuo's calculation, just 1 percent of what Bush had publicly promised.
A portion of his book is devoted to a discussion of the political uses of the Compassion Capital Fund, in which a handpicked panel of Religious Right activists graded the grant applications. Many groups, Kuo said, received high scores (and thus grants) more on the strength of their support for the Bush administration than their ability to provide assistance to the poor and downtrodden. A review panel member reportedly told Kuo some time later that when she saw an application from a non-Christian group, she simply gave the application a zero and moved on. According to the panelist, many of her peers did the same thing.
Not surprisingly, a wide variety of groups have begun to file lawsuits challenging specific programs and their use of federal money. In Massachusetts, for instance, the ACLU filed suit against the Department of Health and Human Services in 2005 to stop funding for the Silver Ring Thing program, which put on multimedia shows for teens at which they are encouraged to purchase a silver ring to show their intent to remain a virgin until marriage. At the same time, however, Silver Ring Thing also used the shows to urge children to commit their lives to Jesus Christ, and inscribed each ring with a verse from the New Testament. The department agreed to put a hold on the group's grant of $1 million in federal funds while it looked into concerns about the program.
While specific programs can be challenged when they cross the fading line separating church and state, what about the White House's operation of the Office of Faith-Based and Community Initiatives itself? Among other things, the OFBCI organizes conferences around the country that are designed to provide FBOs with "an understanding of the president's Faith-Based and Community Initiative, information about the federal grants process and funding opportunities, and the basic legal responsibilities that come with federal funding." The specific objective of the conferences is to educate FBOs on how to most effectively apply for public funds offered by the various federal faith-based agency centers.
In 2004 a Wisconsin-based group called Freedom From Religion Foundation (FFRF) filed a lawsuit against the OFBCI, alleging that both the OFBCI and its conferences constitute the establishment of religion by the Bush administration. Three years later, the newly constituted Roberts Court heard oral arguments in the case of Hein v. Freedom From Religion Foundation (2007) and rejected the challenge, ruling 5-4 that the FFRF did not have standing to challenge President Bush's faith-based initiative. Both of President Bush's nominees, Chief Justice John Roberts and Associate Justice Samuel Alito, joined the majority in dismissing the lawsuit against the OFBCI. Along with the 5-4 ruling that upheld the partial-birth abortion ban, the Hein decision helped make the end of the court's term very satisfying for the Religious Right.
Supporters of the concept of separation of church and state were disappointed, but relieved that the damage wasn't worse. Typically, taxpayers are not allowed to sue the federal government to protest any specific appropriations. However, in Flast v. Cohen (1968), the Supreme Court created an exception for taxpayer lawsuits that allege violations of the establishment clause. The Roberts Court granted certiorari to determine whether Flast applies to a program that is not funded by a specific act of Congress, but instead is paid out of general appropriations to the executive branch.
The lead opinion was written by Alito and joined by just two other justices: Chief Justice Roberts and Justice Kennedy. Alito said that the expenditures at issue in Flast "were made pursuant to an express congressional mandate and a specific congressional appropriation." But in Hein, the monies in question were provided to the executive branch by Congress "to fund its day-to-day activities." The fact that the money expended by the OFBCI cannot be traced to a specific congressional enactment is sufficient, Alito said, to take the FFRF lawsuit outside of Flast's narrow exception. Without saying so explicitly, the three justices used the same logic that the majority applied in Zelman, the 2002 Ohio school-selection case: Choice, either on the part of parents or the president, apparently is sufficient to rid a program of constitutional infirmity.
The six other justices openly scoffed at the plurality's conclusion, with two separate groups of justices agreeing that there is no logical distinction between the type of congressional act contemplated by Flast and the general grant of money by Congress to the executive branch. But while Associate Justices Scalia and Thomas argued that Flast should simply be overruled, they still concurred that the FFRF lawsuit should be dismissed. Had just one of the other three justices in the majority agreed with Scalia and Thomas, then, arguably, taxpayers would be barred from ever arguing that a federal expenditure violates the establishment clause of the First Amendment.
Justices Stevens, Ginsburg, Souter, and Breyer agreed with Scalia and Thomas that the distinction drawn by Alito was illogical, but concluded that under the holding of Flast, the FFRF should have been allowed to proceed with its lawsuit. Writing for the four dissenters, Justice Souter opined:
Here, there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion. The taxpayers therefore seek not to "extend" Flast, but merely to apply it. When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury.
FFRF argued to the court that if the Flast case does not apply to discretionary expenditures, then the OFCBI-sponsored conferences will be merely the first misstep on a very slippery slope. What would prevent the executive branch from building a house of worship, for instance, or hiring clergy of one denomination to proselytize? Would an executive branch agency be able to purchase religious symbols and distribute them?
Alito dismissed those concerns as a mere "parade of horribles" and pointed out that despite the limited application of Flast over the years, "none of these things has happened." But Alito was too quick to dismiss FFRF's concerns. There have been two born-again presidents in the nearly 40 years since Flast was handed down (Jimmy Carter and George W. Bush), but only one issued an executive order making it easier for FBOs to obtain government funding and disregard anti-discrimination laws.
While the White House (so far) has not hired a clergyman, there is little doubt that the Compassion Capital Fund is overwhelmingly weighted toward evangelical Christians, to the near exclusion of other religions. And although the OFBCI has not embarked on a church-building program, the Bush administration did announce in 2003 that it would start making direct grants to religious organizations for building maintenance under a program called Save America's Treasures. The Justice Department (well-stocked with former Christian Right staff attorneys) has advised the Bush administration that similar direct grants to religious organizations may be legal under other federal programs as well.
What is particularly disturbing is that with the help of the court's decision in Hein, the Bush White House and OFCBI have not only managed to crush the wall of separation, but are actively chipping away at the concept of checks and balances as well. Despite Bush's inability to persuade Congress that religiously discriminatory hiring is appropriate, his executive orders have accomplished nearly all that the Religious Right could have hoped. The passage of a federal law would be preferable, of course, since another president could rescind Bush's executive orders with the stroke of a pen. But the much more significant and potentially far-reaching victory for the Christian Right occurred at the Supreme Court. Thanks to the movement's decades of work in support of a more conservative Supreme Court, the blatant blending of church and state by the Bush administration is apparently beyond legal challenge, and could be replicated or perpetuated by future presidents. It is a compelling, albeit painful lesson, in how a particularly powerful and surprisingly efficient special interest group can weave the three branches of government into a lucrative and protective trellis.
Reprinted from The Court and the Cross: The Religious Right's Crusade to Reshape the Supreme Court, by Frederick Lane. Copyright © 2008 by Frederick Lane.
By permission of Beacon Press
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