Religious Liberty, Obama’s Surprising Soft Spot

By Charles A. Donovan

President Obama apparently has a soft spot in his heart for religious liberty. And the New York Times editorial board is not pleased . The president last week issued a much-awaited executive order setting government-wide policy on community-based and religious nonprofits that receive federal grants. The executive order is meant to act on the recommendations of the President’s Advisory Council on Faith-Based and Neighborhood Partnerships.

That panel’s recommendations cover many topics arising in the context of federal financing of religious nonprofits, which receive and spend about one third of the money donated to U.S. charities in any given year. But the focus of concern for Barry Lynn and other advocates of stringent, if not to say hostile, separation of church and state was the promise candidate Obama made in July 2008 to bar publicly funded, religious nonprofits from hiring on the basis of religion. Lynn and his cohorts label such hiring preferences “discrimination” and want them outlawed.

The promise was clear enough—a few words in a speech by candidate Obama that touched on the value of the work done by faith-motivated charities but pledged that an Obama administration would block discrimination “against the people” such charities hire. Once in office, however, President Obama and his faith office advisers took their time, much to Lynn and others’ chagrin, about banning the religious hiring protections. The outside groups formed the Coalition Against Religious Discrimination (CARD) and dogged Obama with letters and public statements about keeping his word.

On Capitol Hill a pair of restless congressmen, Gene Green (D-Texas) and the retiring (literally, not personality-wise) Patrick Kennedy (D-R.I.), introduced a bill to reauthorize federal drug abuse and mental health treatment programs. The measure, H.R. 5466, included a clause to bar religious hiring preferences by grantees under those programs. It was an odd choice for Kennedy, who has benefited from substance abuse treatment. He must know, better than most, how reliant the most successful of these programs are on deploying religious elements to effect and maintain recovery.

As Washington waited for Obama to act, CARD’s agitation grew. Their outrage is based on the faulty assertion that somehow the default position in federal law is an aversion to religious hiring rights. But the 1964 Civil Rights Act, as amended in 1972, includes protection for religious organizations against intrusion in their decisions to hire only co-religionists in furtherance of their mission. The federal courts, including a unanimous Supreme Court in 1987, in Corporation of Presiding Bishop v. Amos , generally have upheld these exemptions.

Obama’s executive order thus sustains the existing law and sends Lynn and his fellow CARD carriers away empty-handed. To the  Times ’ editorial board, Obama “seems to have forgotten” his “firmly asserted” principle.

One can sympathize with CARD’s reflexive disappointment with another broken promise from the White House. But, to badly paraphrase Robert Frost, when the “road not taken” is a promise better not kept, it’s wiser to stay the course. Lynn has radiated for decades his haunting fear, to paraphrase H. L. Mencken somewhat less badly, that “someone, somewhere” is having a positive religious experience.

Obama’s executive order raises other concerns. Like all government documents that have anything to do with procurement, it is freighted with paperwork requirements that will be swiftly off-loaded onto strapped charities that prefer feeding the hungry to filling out forms and posting notices. Although those burdens can be reduced by streamlining and standardization, other problems are posed by the requirement that the covered nonprofits have referral arrangements in place for clients who object to their religious character.

Job training programs and soup kitchens can readily comply with such requirements, but applying them in morally fraught areas such as health care could create big potholes down the road. Conscience protections for health care providers remain in limbo ever since Obama kept another promise in March 2009 by suspending President Bush’s proposed regulations enforcing laws such as Hyde-Weldon and the Church amendment.

At its root, the clash over religious hiring rights involves conflicting ideas about what constitutes diversity. For the  New York Times , Barry Lynn and others, diversity is an expression of radical individualism. In this view, government’s only interest in, and only means of, promoting diversity is to pit individuals against institutions and assure that the individual prevails in any conflict.

That the relentless pursuit of this homogenizing form of diversity will result in less diverse institutions, particularly fewer distinctly religious institutions in the public square, is of negligible import to its advocates.

Obama, fortunately, for now has decided not to align himself with the spirit of a coalition better described as Citizens Advocating Secular Homogenization (CASH). He has taken a higher road, one marked with the understanding that among the best ways to celebrate diversity is to allow it.

Charles A. (Chuck) Donovan is senior research fellow in the DeVos Center on Religion and Civil Society at The Heritage Foundation . He is the author of Demanding Diversity Through Uniformity and with Robert Moffi of Government Health Care Threatens the Right of Conscience . The Institutional Religious Freedom Alliance’s response to the executive order can be found here .