Here is a remarkably poorly argued and tendentious (not to say profoundly misleading) column by Marci Hamilton, making the case against religious hiring rights. A sample:
Social service providers, like other employers, are subject to the federal civil rights anti-discrimination laws. Government contractors are not permitted to discriminate on the basis of race, color, religion, sex, or national origin in hiring. The religious groups obtaining the new federal funds demanded the right to discriminate on the basis of religion in their hiring for the programs being paid for by taxpayers.
For example, if a religious group wanted to treat drug-addicted teenagers, they lobbied for the right to obtain federal money and then hire based on religion as opposed to the quality of the social service provider applicant. So the experienced psychologist with years of experience treating the addicted could be passed over for the fellow religious believer without experience. During the Bush years, Congress considered such a policy and refused to enact it into law. So President Bush put in place an executive order to permit federal funding recipients to hire based on religious belief. Protestants would not have to hire Catholics; Jews would not have to hire Evangelicals, etc. It was based on yet another weakly reasoned Bush era Office of Legal Counsel memorandum, which argued that the Religious Freedom Restoration Act requires the government to permit religious groups to discriminate in favor of co-religionists in the delivery of social services.
There are at least four issues here that require more nuance than Professor Hamilton (who surely knows better . . . I hope) provides. First, the conflict isn’t always between religious affiliation and professional credentials. Most faith-based social service organizations require some credential other than or in addition to faithful adherence to the organization’s mission. In many instances the issue is between hiring an M.S.W. who is sympathetic with the mission of the organization and one who isn’t. Second, there are occasionally reasonable disagreements about the proper approach to a particular social problem. The secular profession may favor one approach, a faith-based organization another. Why assume that the secular approach is the only one that can work and hence that deserves public funding? This leads me to the third issue: in the Bush Administration, there was a rigorous evaluation of outcomes or results. An organization that received funding had to be able to show results. In other words, what was being funded was the secular result, one that might have been achieved through unconventionally faith-based or faith-drenched means. Finally, Hamilton leaves the impression–intentionally or unintentionally–that the social service organizations funded by the government could refuse to serve those who did not share their faith. So far s I know, the absolute condition of any government funding is that the organization be willing to serve all comers, that the provision of the service could not in any way be conditioned upon agreement with a religious stance or participation in religious activities. Again, Professor Hamilton has to know this.
The occasion for this column is a hearing, to be held tomorrow, by the Subcommittee on Constitution, Civil Rights, and Civil Liberties of the House Judiciary Committee. (You’d think this Congress would have more pressing matters in the weeks that remain in its session.)
I’ve written on these matters quite frequently–here, here, and here, for example. The single best general resource on this issue is here.
November 17th, 2010 | 1:09 pm
[...] Knippenberg responds at First Things / First Thoughts: “There are at least four issues here that require more nuance than Professor Hamilton . . . [...]
November 17th, 2010 | 2:15 pm
The simple answer, of course, is not to take federal dollars and thus be subject to civil rights restrictions. Surely you don’t believe the Church needs tax dollars to function?
November 17th, 2010 | 2:54 pm
The hiring exemptions are currently in place, thus protecting the character of organizations (like the Salvation Army) that are major players in the delivery of social services.
There’s no reason why every government dollar has to be a secularizing dollar, and, at least since the Clinton Administration, this hasn’t been the case. But folks like Professor Hamilton want to attach those strings to the money.
I fear that doing so would decisively change the landscape of social service provision, driving certain organizations out of the field (just as the requirement that adoption agencies make their services available to same-sex couples has driven certain faith-based organizations out of that field).
I’d be happy for faith-based organizations not to take government money, but then I’d also want a smaller role for government in the provision of social services. The argument here is longer than I can make in a comment on a blog post.
November 17th, 2010 | 4:46 pm
None of Mr. Knippenberg’s comments answer any of the serious concerns I raise in my column. He rails at attaching “strings” to taxpayer funds. Guess what strings are: accountability. And anyone taking federal funds should be forced to be accountable to the public good, not just their God. “Religion-drenched” social services should be funded by religious groups, not the government. In this era of tight budgets and high unemployment, it is very sad to hear religious representatives trying to justify their piece of the pie and to concoct a “right” to discriminate against other believers in the delivery of social services.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
November 17th, 2010 | 9:12 pm
I think Jordan Ballor’s latest piece speaks to this issue rather well:
“The favorite targets of lampoon and derision from progressive Christians are the icons of the Religious Right: the late Jerry Falwell and D. James Kennedy, Pat Robertson, James Dobson, and the like. A standard characterization of their flaws highlights their overemphasis on political power as a means toward the alignment of society with the Christian vision. But if this critique of the politicization of the faith applies to the Religious Right, then it applies equally as well to the Religious Left.
“What is shared in what we might call the ‘legalistic impulse’ of much of both conservative and progressive political Christianity is the priority of the role of the government in determining the course of our social life. Both versions of political Christianity, to one extent or another, subsume the Church under the State as a kind of activist lobby (albeit of a special religious character). In this brand of legalism, fidelity to the Christian faith is defined in political terms.
http://www.acton.org/pub/commentary/2010/11/17/legalism-political-christianity
November 17th, 2010 | 11:25 pm
Obama issued an Executive Order today clarifying policy on federal partnership with faith based organizations:
http://www.whitehouse.gov/the-press-office/2010/11/17/executive-order-fundamental-principles-and-policymaking-criteria-partner
(h/t Thomas Peters)
Note that the order only protects religious organizations’ right to hire board members on a religious basis. It doesn’t state what the policy is for employees.
November 18th, 2010 | 9:06 am
[...] Hiring practices. [...]
December 6th, 2010 | 5:10 pm
[...] this piece by Sarah Posner, which repeats the tired canard about government-sponsored discrimination: Under some fairly consistent pressure from church-state [...]
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