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

Advancing Religious Freedom Against the Tide

Stanley Carlson-Thies


December 21, 2007

On Capitol Hill, the main criticism against the Bush faith-based initiative is that it fosters “religious job discrimination.”  Opponents claim that the administration’s effort to safeguard the religious staffing freedom is purely for show, because faith-based organizations don’t really care about the religious views of the people they hire.  Oddly enough, those congressional critics have bent every effort to suppress this very hiring practice that is supposedly irrelevant to faith-based groups!

The truth is that, for many faith-based groups, the freedom is vital.  They listen with dismay as they are labeled by some in Congress as immoral discriminators who simply desire to avoid close contact with people of different faiths.  In fact, they seek only the same opportunity that secular groups have to ensure that their employees share the organization’s fundamental convictions. Still, the battle to protect religious staffing when faith-based groups receive federal funds has made almost no progress on Capitol Hill, despite energetic Republican efforts.  But Congress’s own past action provides a remedy for its current obstruction to reform, and the Bush administration is now working vigorously to implement the solution. 

The general federal rule about religious staffing is that faith-based organizations are free to do it—that’s what the 1964 Civil Rights Act says.  But that general freedom is restricted in some federal programs, which ban religious staffing by faith-based groups that receive money through those programs.  Fortunately, the congressional solution applies wherever that federal ban exists. 

The solution is the Religious Freedom Restoration Act of 1993 (RFRA), passed in response to a Supreme Court decision limiting religious freedom.  RFRA exempts religious organizations from federal requirements that impose a substantial burden on their religious exercise.  Having to give up religious staffing in order to operate a Head Start program or offer federally funded job training is, for some faith-based organizations, just such a burden.  In the 2003 White House statement, Protecting the Civil Rights and Religious Liberty of Faith-Based Organizations, the Bush administration said that faith-based groups can turn to RFRA for relief when faced with a program’s ban on religious staffing.

But guarding the religious freedom of groups interested in partnering with the federal government takes more action than this.  Few faith-based organizations have heard about the RFRA option, and when one savvy national group did ask the Department of Justice to exempt it from a program’s religious staffing ban, it took the feds two years to come into line with the administration’s stated policy and exempt the group. 

Yet that request prompted a large and gratifying federal initiative.  The Department of Justice has posted a public notice stating the official federal view that RFRA is a legitimate remedy for faith-based organizations that consider it a religious burden to have to hire without regard to religion in order to take part in a federal program.  The department invites faith-based organizations to use the remedy against department programs that ban religious staffing.

This great advance now needs to be expanded by similar declarations by the other federal departments that turn to private organizations as their social-service partners.  And the RFRA option needs to be publicized widely to faith-based organizations. 

RFRA may seem like an obscure legal detail.  In fact, because religious staffing is a vital freedom for many faith-based groups, having an effective RFRA option is a precious gift to faith-based social services.  Congress ought to strip the restriction out of those federal programs where it now sits.  In the meantime, the administration is offering  a wonderful Christmas present to organizations of every faith that simply want their staff to embody and exemplify their motivating religious convictions.

—Stanley Carlson-Thies, Director of Social Policy Studies
    Center for Public Justice

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