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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.

Legal Analyses

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 George Washington University.

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

Roundtable Interviews

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."