Hiring Rights of Religious Organizations
Publisher: The Roundtable on Religion and Social Welfare Policy
The hiring rights of publicly-funded faith organizations are among the most prominent issues surrounding government partnerships with faith-based charities. While laws have long protected the rights of religious organizations to employ only members of their own religion, faith-based groups that receive funding to offer certain secular programs have been required to disregard faith in employment decisions.
As part of its effort to encourage more religious charities to provide social services with government funds, the Bush Administration pushed for an expansion of religious hiring rights, including the issuance of an executive order setting policy for federal administrative agencies. But Congress repeatedly blocked some of these efforts by maintaining employment nondiscrimination provisions in such programs as the Workforce Investment Act and Head Start early education.
Supporters of moves to expand hiring rights believe faith groups should be allowed to preserve their character and mission by retaining the right to consider religious beliefs in their employment decisions. Opponents believe such policies result in taxpayer-financed religious favoritism.
The issue has found its way to the courts. In 2005, in a case known as Lown V. Salvation Army, a federal district court ruled that the Christian social service provider was within its rights when it considered the faith of its employees, even though they were being paid with public funds.
In October 2008, the Bush Administration took its most assertive stand on the issue. The Justice Department released a memorandum revealing a June 2007 opinion from its Office of Legal Counsel that a federal grant program could exempt a Christian relief organization from a prohibition against hiring only those of its own faith under the 1993 Religious Freedom Restoration Act (RFRA). While the opinion dealt narrowly with the facts of one religious organization provided funds through one federal program, the Roundtable’s legal experts said that the implications of the opinion could be far-reaching, serving as a justification for federal agencies to override laws that currently prohibit religious hiring preferences in certain grant programs.
Following are original Roundtable materials and other sources of information on the topic.
Religious hiring rights are an issue discussed in several analyses of court cases by the Roundtable's legal experts, Ira C. Lupu and Robert W. Tuttle, law professors at
State of the Law 2008: A Cumulative Report on Legal Developments Affecting Government Partnerships with Faith-Based Organizations (see page 27) and
transcript from December 2, 2008 event marking its release
Lown (and others) vs. The Salvation Army, Inc.; Commissioner, New York City Administration for Children's Services (and others), updated June 21, 2005
Geneva College and Association of Faith-Based Organizations v. Elaine Chao, Secretary of U.S. Department of Labor; Stephen Schmerin, Secretary of the Pennsylvania Dept.of Labor & Industry (and others), updated May 1, 2007
Faith-Based Organizations and the Law of Employment Discrimination (Excerpted from Government Partnerships with Faith-Based Service Providers – 2002 State of the Law )
Roundtable News Coverage
Below is a sampling of Roundtable news coverage that has dealt with the religious hiring rights issue.
Justice Department Decision Could Extend Religious Hiring Rights, October 21, 2008
Faith-Based Service Featured at National Summit, September 16, 2008
On Obama's Faith-Based Plan, the Debate's (Still) Over Hiring Rights, July 8, 2008
Obama Offers Glimpse into Vision for White House Faith-Based Office, July 1, 2008
Supreme Court Declines Case About What Makes an Employer "Religious," April 22, 2008
Colorado Leaders Join Religious Hiring Rights Debate, Feb. 19, 2008
Familiar Battle Renewed in Debate over Faith-Based Initiative, Jan. 29, 2008
Durability of Bush Administration's Faith-Based Effort at Issue in 2008, January 15, 2008
Congress Acts on Preschool, Post-Prison Programs, Nov. 20, 2007
Civil Rights Groups Call for Investigation Into Faith-Based Initiative, Nov. 13, 2007
Congress Debates Non-Discrimination Bill's Exemptions for Religious Employers, Sept. 11, 2007
Religious Groups May Base Employment on Faith, Justice Department Says, Nov. 6, 2007
House Lawmakers Reject Religious Hiring in Head Start, May 8, 2007
Religious Hiring Rights Take Center Stage in Head Start Debate, March 20, 2007
Debate Over Religious Hiring Rights Heats up on Capitol Hill, August 1, 2006
Religious Hiring Rights on Front Burner in Congress Following Court Decision, Oct. 18, 2005
Federal District Court Ruling Seen as Victory for Faith-Based Initiative, Oct. 4, 2005
Religious Hiring Rights Dominate House Debate on Head Start Renewal, Sept. 26, 2005
Faith-Based and Community Initiative Draws Praise and Fire, June 28, 2005
Hiring Rights Appears Headed for Senate, May 31, 2005
Senate Leaves Hiring Rights Out of Jobs Bill, May 24, 2005
New Head Start Bill Rekindles Debate on Religious Hiring Rights, May 24, 2005
Full House Passes Jobs Bill with Religious Hiring Rights, March 7, 2005
House Keeps Religious Hiring Rights Provisions in Block Grant Bill, Feb. 9, 2004
New Twists Face House Panel Looking at Religious Hiring Provisions, Sept. 30, 2003
Q&A on the Hiring Rights of Tax-Funded Religious Organizations
An Interview with Representative Peter Hoekstra (R-MI)
An Interview with Congresswoman Lynn Woolsey (D-CA)
An Interview with Rabbi David Saperstein, Religious Action Center of Reform Judaism
An Interview with Ronald Sider of Evangelicals for Social Action
An Interview with Congressman Robert C. "Bobby" Scott
An Interview with Congressman Mark Souder (R-IN), 2002
An Interview with Congressman Mark Souder (R-IN), 2008
Bush Administration Resources
White House Position Paper - "Protecting the Civil Rights and Religious Liberties of Faith-Based Organizations - Why Religious Hiring Rights Must Be Protected "
Presidential Executive Order - "Equal Protection of the Laws for Faith-based and Community Organizations"
Other Resources and Position Papers
The Freedom of Faith-Based Organizations to Staff on a Religious Basis, Carl H. Esbeck (Christian Legal Society and the University of Missouri Law School) , Stanley W. Carlson-Thies (Center for Public Justice), and Ronald J. Sider (Evangelicals for Social Action) (Washington, D.C.: Center for Public Justice, 2004)
Working Group on Human Needs and Faith-Based and Community Initiatives, "Agreed Statement of Current Law on Employment Practices, Faith-Based Organizations, and Government Funding."