Faith, Jobs, and Social-Service Politics

Second Quarter 2004

An Interview

Stanley Carlson-Thies and Stephen Lazarus have been closely involved with congressional debates over the right of faith-based organizations to hire staff on the basis of faith. You might think that this right is self-evident. But for many in Washington it is not. Carlson-Thies served in the White House Office of Faith-Based and Community Initiatives at the start of the Bush presidency and is now a Fellow at the Center for Public Justice. He is the author most recently, with Dave Donaldson, of A Revolution of Compassion. Lazarus is a senior policy associate at the Center and the lead organizer of the Coalition to Preserve Religious Freedom, which is the primary voice for faith-based hiring rights in Washington. Public Justice Report editor James Skillen conducted this interview in early March.

PJR: On February 4, the House of Representatives voted in support of the Community Services Block Grant Act, beating back some amendments that aimed to deny religious service organizations the right to hire people who shared their faith. What was that all about?

Stephen Lazarus: The Community Services Block Grant (CSBG) provides federal funding for community action agencies that provide services in poor neighborhoods, often by contracting with nongovernmental organizations. Congress put Charitable Choice into the program in 1998; now the CSBG is up for reauthorization, and one key question has been whether Congress would preserve Charitable Choice in the program.

Stanley Carlson-Thies: Actually, since George W. Bush replaced Bill Clinton as President, the key battle on Capitol Hill concerning this and other legislation has not been over Charitable Choice as such, but rather over religious staffing. Charitable Choice says that faith-based groups cannot be kept out of competing for federal support; that they cannot be required to shed their religious character as the price of getting that support; that they cannot use contracts or grants to pay for religion instead of social services; that religion cannot be forced upon beneficiaries; and that faith-based organizations are free to hire staff who share their religious mission and vision. Opponents have always tried to say that Charitable Choice violates the Constitution because it allows expressly religious programs to get government money. But that argument has not convinced a majority in Congress. So opponents have shifted their attack to hammering on what they call religious job discrimination.

Invidious discrimination is wrong and our society certainly has a sorry history of permitting unfair treatment of people. By saying that Charitable Choice (and the faith-based initiative) is all about government-funded job discrimination, opponents hope to put it beyond the pale, beyond moral and rational support.

Lazarus: But the opponents are leaving too much out of the picture. Congress itself, in the Civil Rights Act of 1964 (amended in 1972), banned employment discrimination based on race, color, ethnicity, sex, and religion—but explicitly excluded religious, organizations from the prohibition against using religious criteria in hiring. As Congress and the Supreme Court have asserted, religious conviction and practice can be legitimate concerns when faith-based organizations select their staff, and it can't be the proper role of politicians or judges to second-guess such decisions.

Religious staffing freedom is thus the general federal rule on the topic. So the dispute has been all about this: do faith-based groups lose that freedom if they accept a government grant or contract to provide some service? Opponents say, of course they must lose it: they are now doing the public's business and have to be secular like the government. But that argument hasn't convinced the courts, and Congress hasn't seen it that way either. Social-service laws are often silent about employment, leaving the freedom intact, and with Charitable Choice, Congress has explicitly honored the freedom.

Carlson-Thies: And that's why the battle over a bill like the CSBG reauthorization is so heated and bitter.

Opponents of religious staffing and the faith-based initiative want to make all federal programs conform to a standard they pretend already exists: any group that gets federal money should have to ignore religion when it hires and fires. Supporters, by contrast, are fighting to make restrictive employment rules conform to the underlying federal civil rights standard that honors the religious liberty of faith-based organizations when they make staffing decisions.

Thankfully, the House defeated several concerted attempts to strip the religious hiring freedom out of Charitable Choice. Unfortunately, the Senate adopted a CSBG bill that erodes that freedom. The big question now is whether the House's vigorous defense of religious freedom will triumph over the Senate's undermining of it when a conference committee sits down to reconcile the two bills.

PJR: You had a lot to do with inspiring a coalition of groups in Washington to get behind that bill, didn't you? What kind of coalition is it?

Carlson-Thies: About the only voices that members of Congress have been hearing on the topic have been from the other side, from groups for whom the epithet "government-funded job discrimination" is a handy tool for attacking the faith-based initiative. In the CSBG debate, for example, opponents of religious staffing commonly tarred this precious religious freedom as bigotry and a divisive, intolerant practice.

Lazarus: We could see that almost no one was speaking up for the faith-based groups when these issues were debated. However, we were convinced that many organizations and many citizens would be shocked if they knew that important religious freedoms were being threatened in these battles. We started contacting groups and received an overwhelmingly positive response. The Coalition to Preserve Religious Freedom is a new and growing multi-faith alliance that brings together organizations involved in social services, education, health care, advocacy, and religious freedom. We all agree that, whatever else Congress does with a bill like CSBG, if it regulates or offers grants and contracts to faith-based organizations, it is essential that the legislation protect the religious freedom of the organization, as well as that of beneficiaries.

PJR: Does this mean that the old divide between 'strict separationists" and "accommodationists" has changed? Does this new coalition effort represent a "third way" between or around those older positions?

Carlson-Thies: Creating the right legal rules for how faith-based social service providers can collaborate with the government requires transcending the old debates and divisions. Most faith-based service organizations are not "churches" that government must avoid "establishing," but neither are they secular operations that require no special thought. There might be a few voices arguing that government should just turnover social services to church-sponsored groups without considering how to respect the convictions of beneficiaries, but most of the opposition to the faith-based initiative is from the other side, from powerful groups and ways of thinking that want anything connected with government to be resolutely uniform and secular.

We believe just the opposite, that the Constitution gives the government the duty to ensure that its laws respect the religious or philosophical character and mission of religious—and secular—organizations that serve in the public square. Sometimes Congress "gets it," but often the debates are fruitless replays of the past.

PJR: So these disputes are a continuation of the debate over government's cooperation, on a nondiscriminatory basis, with religious groups. But why does this keep coming up? The Supreme Court hasn't ruled against Charitable Choice or faith-based hiring, has it? And didn't the court uphold the legitimacy of education vouchers that are used in religious schools?

Carlson-Thies: There's a long strict-separationist history to overcome. The Supreme Court's trajectory over the past three decades favors policies such as Charitable Choice and school vouchers, rejecting past interpretations of the First Amendment that required government never to "aid" religion nor to collaborate with organizations that are expressly religious (so-called "pervasively sectarian" groups). But there still isn't a solid consensus on a new, fully pluralist, legal framework that would give the public activities of religious communities (such as their social services or schools) the full religious liberty protection they should have. Too often courts and legislatures think that religion is really just a private affair or only a matter of worship services and evangelism, so that when an organization provides welfare services or tutoring to kids its faith basis can't really be important to it. Or, if faith is really important, then the organization must be devoted to religion and not welfare or tutoring!

Lazarus:The Supreme Court explicitly—and unanimously—upheld religious staffing in a 1989 case, but no government funds were involved, so opponents claim the case says nothing about the validity of Charitable Choice. And while the Supreme Court upheld the Cleveland school voucher plan, it also more recently upheld the State of Washington's policy not to let the state's scholarships be used to pay for college if the student is preparing for a pastoral career. Still, in this new case, Locke v. Davey, the Court said it was no violation of the Constitution for government vouchers to flow to explicitly religious organizations or for those vouchers to pay for explicitly religious instruction.

PJR: There's lots of talk about religion and the political campaign this year. Is John Kerry, the presumptive Democratic candidate, lined up against government's cooperation with faith-based groups (if such groups have the right to hire based on faith), and is Bush still firmly in support?

Lazarus: Sadly, the debate over religious staffing and the faith-based initiative has become thoroughly polarized. Part of the reason is that as soon as President Bush said, in 2000, that the faith-based initiative would be one of his key issues, his opponents decided that preventing the initiative's progress would be an ideal way to undercut him. In such an atmosphere, the primary-election season is not a good time to look for nuance and positions that cut across conventional partisan lines. During the last presidential campaign, Al Gore spoke out in favor of Charitable Choice, and, of course, many Democrats highly value the work of religious hospitals, colleges and universities, and social-service providers. The majorities supporting Charitable Choice during the Clinton years always included a significant number of Democrats. Still, while John Kerry has spoken warmly about the good work of faith-based organizations, he has also stressed his devotion to the "separation of church and state." Any debate and action on the merits of the faith-based initiative will probably not come until after the campaign season.

PJR: Is the debate in Congress representative of public opinion around the country? Or is there something different happening on the ground in cities and states, something different from what we see and hear in Washington?

Lazarus: Many states have been moving ahead with initiatives of their own while Congress has been stuck on the religious hiring question. There are now over twenty states that have opened offices of Faith-Based and Community Initiatives or appointed staff to reach out to grassroots groups in new ways. The concern to make welfare and social services more effective is driving innovation even when officials may be skeptical about the rights of faith-based groups. And, of course, Charitable Choice has been part of the welfare law for nearly eight years now, and it has yielded innovative new partnerships and not the horror stories that some predicted. This administration has done a lot to encourage state and local partners to implement the Charitable Choice principles and in other ways to collaborate more extensively and effectively with both faith-based groups and with smaller secular groups.

Carlson-Thies: It's fair to say, though, that there are a lot of state and local skeptics when it comes to the "hard" issues like religious staffing or inviting into participation groups that seem too "sectarian" because they take religion so seriously. It's not just at the federal level that religious liberty is often thought of as a matter for individuals and not institutions and where the habit of thinking is strong that religion belongs in private. A lot of regulatory and legal change is needed in most places before faith-based organizations will have a secure foundation for their public service.

It's not surprising, and it isn't wrong, for courts, legislatures, and many in the public to wonder about the legitimacy of job criteria that mention religion, or to ask whether a religious group can fairly serve a person who rejects its religion, or to worry that it will seem that a government is taking sides if it gives a contract to some faith-based organization. Yet, what has become clear over the past decade or two is that these concerns and worries cannot legitimately and constitutionally be overcome by excluding faith-based organizations from full participation in the public square or by requiring them to marginalize their faith before allowing them to collaborate with government. A properly structured pluralism is the only way to go forward.

But there won't be much progress unless Christian (and other) pluralists vigorously argue for the principles we are advocating and lawyers are ready to defend faith-based organizations against resistant officials and attacks from opponents.

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by Representative Vernon J. Ehlers (R-MI)

Excerpts from a statement made on the floor of the House of Representatives, February 4, 2004

Mr. Chairman, it is my pleasure to rise today to support the base bill on the Community Services Block Grant Act. Let me tell you what has happened in my community and put some of your fears to rest. The churches and synagogues [in Grand Rapids, Michigan] have always felt a major responsibility to the community and to the world about them.

As an example, when Vietnamese first became refugees, my small community had more refugees initially than any other city in the United States simply because our churches became active early in providing relief for these refugees.

No attempt is made to proselytize in any of these organizations in our community. It is simply a recognition of the people of these churches that as part of their commitment to their Lord and to their faith, they have to help others. And that is precisely what they are doing. They are providing social services which the government would provide at far greater cost and far less efficiently.

My city houses the second largest private mental health hospital in the United States, again, started by a faith-based institution. It is still a faith-based institution. It may discriminate in hiring in certain cases because their treatment is based on a certain philosophy of life and faith and it uses that to effectively treat those patients.

Incidentally, many of these institutions do already get Federal funds. For example, the hospital I mentioned gets a great deal of money from the Federal Government and from State government for health treatment. No one raises a question about that. No one says this violates the Constitution.

So I simply want to point out to the naysayers on this floor that what we are attempting to do in this bill is not breaking new ground. It has already been broken in the Civil Rights Act. Those who wish to limit the ability of faith-based institutions are, in fact, attempting to infringe on the civil rights of these faith-based institutions and their supporters.