Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Mugging Civil Rights

James Skillen


October 21, 2002

A few Senators are so determined to restrict the freedom of faith-based organizations to hire on a religious basis that they are holding the CARE Act hostage—even though the bill says nothing about the issue. These opponents of federal collaboration with faith-based providers don't think it is enough to shout the lie that faith-sensitive hiring violates civil rights laws, or the lie that settled policy requires every religious group that takes federal money to agree to ignore religion in hiring and firing. Since the CARE Act doesn't even mention hiring, Sen. Jack Reed (D-Rhode Island) and others are blocking Senate debate on CARE until they are allowed to offer multiple anti-faith amendments. Their colleagues should tell Sen. Reed and friends to stuff it and allow the Senate to deal with CARE on its merits.

The CARE Act is the Senate's faith-based legislation lite—an effort to avoid controversial church-state issues after Senators decided they couldn't accept the House-passed Community Solution Act and its expansion of Charitable Choice. CARE was crafted by Democrat Joe Lieberman (Connecticut) and Republican Rick Santorum (Pennsylvania) and has a broad bipartisan group of co-sponsors.

CARE is designed to boost individual and corporate giving to charities, to provide innovative technical assistance to grassroots groups that find it hard to deal with federal programs, and to promote equal access to federal funding by community and faith-based groups. The equal treatment section outlaws the anti-religious practice of denying funding to faith-based programs because of a religious name, a religious mission statement, or religious qualifications for board membership. It says nothing about hiring.

And to the opponents, that's just the problem, because they want to undermine the civil rights status quo. The fact is that under federal civil rights laws, a faith-based organization has a clear right to require employees to be committed to its religious mission. So-called religious discrimination in hiring is neither a violation of the law nor an exemption from it, but a right that is built into the law. Faith-sensitive hiring isn't invidious discrimination. It is "a means by which a religious community defines itself," as the U.S. Supreme Court said in unanimously upholding this liberty in 1987. It is a crucial way that faith-based organizations maintain their faith basis.

Opponents of faith-sensitive hiring hate it that Charitable Choice—enacted during the last administration to cover four federal programs—provides that religious organizations do not forfeit their hiring liberty by accepting funds. So they've been spreading the tale that, outside of Charitable Choice, faith-based groups that accept federal dollars are not allowed to take into account the faith of prospective staff.

But that's just their wishful thinking—and a nightmare for faith-based organizations. In truth, Congress has only included employment requirements in some federal social spending programs. Often the law says nothing about the employment policies of grantees—so that faith-based organizations' underlying freedom to take faith into account remains the rule in those programs.

That's just too much religious liberty for some Senators. So, since there is no bill at hand to curtail religious hiring by the federal government's faith-based partners, Sen. Reed and friends are desperately trying to insert into the CARE Act exactly the kinds of controversial church-state provisions that its authors resolutely excluded.

Here's a better idea. The CARE Act's 10 Democratic and 17 Republican co-sponsors, and the 1,600 outside groups that support it, should tell Sen. Reed and company to go fly a kite. Vote on the CARE Act itself, and stop trying to twist it to a different agenda. If Senators want to tackle religious hiring, they should propose a separate bill—and use it to expand, rather than constrict, religious liberty.

—Stanley Carlson-Thies, Fellow
    Center for Public Justice


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”