Isn't Charitable Choice Government-Funded Discrimination?

In a variety of ways, the charitable choice provisions in the 1996 Federal Welfare Reform Act, 42 U.S.C. §604a, safeguard the "religious character" of faith-based organizations [FBOs]. Protecting the autonomy of FBOs was done to enable them to succeed at what they do so well, namely help the poor and needy, and to get FBOs to participate in government programs, something FBOs are far less likely to do if they face compromising regulation. One of the most important of these statutory guarantees is the ability to select staff on a religious basis. FBOs can hardly be expected to sustain their religious vision without the ability to employ individuals who share the tenets of the faith. Thus, rather than an act of intolerance, the guarantee is central to each organization's freedom to be its own self according to the dictates of conscience. Section 604a safeguards the continued independence of FBOs from government, specifically that they need not alter their policies of "internal governance" formed as a matter of religious faith.

While it is essential that FBOs be permitted to make employment decisions based on religious considerations, like other social-service providers FBOs must obey federal laws prohibiting discrimination on the basis of race, color, national origin, gender, age, and disability.

Question 1: Do FBOs have to comply with state and local nondiscrimination laws?

Yes, except where an employment practice is motivated by the FBO's sincerely held religious beliefs. States and municipalities often have nondiscrimination laws and procurement policies enacted pursuant to governmental spending power. When these spending-power laws do not permit FBOs to select staff on the basis of faith commitments, the laws are not enforceable against FBOs acting pursuant to charitable choice contracts or grants. This is because the federal statutory guarantees in §604a that promise to protect the "religious character" of FBOs preempt contrary provisions in state and local laws.

Question 2: Because FBOs are permitted to make staffing decisions on the basis of religious beliefs and practices, isn't charitable choice just a form of government-funded employment discrimination?

No. Rather than "funding discrimination," the government is funding social services for the poor and needy. Whether or not the social-service provider is an FBO with employment policies based on religion is probably unknown to the government, and that is the way it ought to be. The government's foremost concern is helping the poor and needy with the most effective and efficient programs.

It is the FBO, of course, that is discriminating on the basis of religion in its staffing decisions, not the government. But this is not intolerant or malicious. Rather, the FBO is properly and understandably acting in accord with the dictates of its sincere religious convictions. If FBOs cannot operate in accord with their own sense of mission then they are not going to be able to sustain the impressive record they now have of successfully helping the poor and needy.

A religious organization favoring employment of those of like-minded faith is comparable to an environmental organization favoring employees devoted to environmentalism, a feminist organization hiring only those devoted to the causes of women, or a teacher's association hiring only those opposed to school vouchers.

Question 3: Title VII of the Civil Rights Act of 1964 permits religious organizations to make employment decisions based on religion. But isn't that exemption lost or waived when an FBO becomes a provider of federally funded social services?

No. Indeed, §604a(f) of charitable choice expressly states that the Title VII exemption is preserved. 1 Moreover, having just promised FBOs that they will not be "impair[ed]" in their "religious character" if they agree to provide social services, it would be wholly contradictory to deem FBOs having waived their autonomy by electing to participate in the government's program. Waiver is disfavored in the law, and, as would be expected, the credible case law holds that the Title VII exemption is not lost when an FBO becomes a provider of publicly funded services. 2

Question 4: Don't we all, as federal taxpayers, have a personal and individual right to not have our taxes paid to a religious organization via programs such as charitable choice?

No. Federal taxpayers have no personal right to prevent monies from being disbursed to a religious organization that is providing a social service pursuant to a general program of public aid. The reputed legal claim by such a taxpayer would be that he or she has a right not to be coerced against conscience or otherwise "religiously offended" when tax monies end up going to a religious organization. The idea has a certain superficial appeal, but the law is to the contrary and for good reason.

The U.S. Supreme Court has refused to recognize a federal taxpayer claim of religious coercion or other personal religious harm.3 As federal citizens our taxes support all manner of policies and programs with which we deeply disagree. Taxes pay the salaries of public officials whose policies we despise and oppose at every opportunity. None of these complaints give rise to constitutionally cognizable "injuries" to us as federal taxpayers. There is no reason that a federal taxpayer alleging "religious coercion" or being "religiously offended" should, on the merits of the claim, be treated any differently.

Carl H. Esbeck, Christian Legal Society
September 25, 2000

See also the new book by Carl Esbeck, Stanley Carlson-Thies, and Ron Sider, The Freedom of Faith-Based Organizations to Staff on a Religious Basis. (Washington, DC: Center for Public Justice, December 2004)

Footnotes:

1 The Title VII religious exemption was upheld in Corporation of Presiding Bishops v. Amos, 483 U.S. 327 (1987).

2 Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618, 625 (6th Cir. 2000) (dismissing religious discrimination claim filed by employee against religious organization because organization was exempt from Title VII and the receipt of substantial government funding did not bring about a waiver of the exemption); Siegel v. Truett-McConnell College, 13 F. Supp.2d 1335, 1343-45 (N.D. Ga. 1994), aff'd, 73 F.3d 1108 (11th Cir. 1995) (table) (dismissing religious discrimination claim filed by faculty member against religious college because college was exempt from Title VII and the receipt of substantial government funding did not bring about a waiver of the exemption); Young v. Shawnee Mission Medical Center, 1988 U.S. Dist. LEXIS 12248 (D. Kan. Oct. 21, 1988) (holding that religious hospital did not lose Title VII exemption merely because it received thousand of dollars in federal medicare payments); see Arriaga v. Loma Linda University, 10 Cal.App.4th 1556, 13 Cal. Rptr.2d 619 (1992) (religious exemption in state employment nondiscrimination law was not lost merely because religious college received state funding); Saucier v. Employment Security Dept., 954 P.2d 285 (Wash. Ct. App. 1998) (Salvation Army's religious exemption from state unemployment compensation tax does not violate Establishment Clause merely because the job of the employee in question was funded by a government grant); Seale v. Jasper Hospital Dist., 1997 WL 606857 (Tx. Ct. App. Oct. 2, 1997) (Catholic hospital does not waive its rights to refuse to perform sterilizations and abortions merely because it had a lease with the government on its building). The only case to the contrary is criticized by the court in Siegel, as well as limited to its facts. 13 F. Supp.2d at 1343-44 (discussing Dodge v. Salvation Army, 48 Emply. Prac. Dec. (CCH) ¶ 38619 (S.D. Miss. 1989)).

3 In Tilton v. Richardson, 403 U.S. 672, 689 (1971), plaintiffs claimed that payment of a general federal tax, the monies of which were later appropriated to faith-based colleges, caused them religious coercion in violation of the Free Exercise Clause. Finding no plausible evidence of compulsion, the Court held that a federal taxpayer's cause of action for religious coercion failed to state a claim under the Free Exercise Clause. In Valley Forge Christian College v. Americans United, 454 U.S. 464, 486 n.22 (1982), plaintiffs challenged as violative of the Establishment Clause the transfer of government surplus property to a religious college. The U.S. Supreme Court rebuffed all asserted bases of standing because the plaintiffs lacked the requisite personal "injury in fact." One of the rejected claims was that the plaintiffs had a "spiritual stake" in not having their government give away property to a religious organization or to otherwise act in a manner contrary to no-establishment values. The high court rejected that argument and held that a spiritual stake in having one's government comply with the Establishment Clause is not, on the merits of the claim, a juridically cognizable injury.