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.)