Recently, a broad coalition of groups sent a letter to President Obama urging him to require the Attorney General to “review and reconsider” a “flawed” Office of Legal Counsel memo—issued in 2007 (i.e., during the Bush Administration)—that argued that the Religious Freedom Restoration Act provided the basis for exempting faith-based organizations that contracted with the government from legal requirements that forbid taking religion into account in certain hiring decisions. The letter asserts that the memo relies on “flawed legal analysis” and offers a “broad and erroneous,” indeed “dangerous,” “interpretation of RFRA,” “permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination.”
This is just the latest skirmish in a long-running battle. Here’s a snippet of something I wrote about it ten years ago:
One of the central bones of legislative contention, evident once again in the recent House debate over the Workforce Investment Act, is connected with Title VII of the 1964 Civil Rights Acts, which exempts faith-based organizations from legal strictures against religious discrimination. Churches and other faith-based organizations are, in other words, permitted to take religion into account when they hire employees, a provision upheld unanimously by the Supreme Court in the 1987 case Corporation of the Presiding Bishop v. Amos.
Opponents of the [Bush Administration’s] faith-based initiative cry foul when this legal exemption is explicitly extended to government contractors, as it was in the original [1996] charitable choice legislation, and as it has been proposed in several recent pieces of legislation. They want no part, they say, of government-funded religious discrimination, regardless of what religious groups are permitted to do on their own dimes.
The arguments, or rather slogans, of those opposed to the religious hiring rights of faith-based government contractors haven’t really changed. Taking religion into account is, they insist, discrimination, made worse by the fact that those engaging in it are taking government dollars.
The current version of the dispute involves the way in which the OLC memo deploys the Religious Freedom Restoration Act on behalf—of all things—the religious liberty of government contractors. RFRA—passed overwhelmingly during the Clinton Administration but recently by and large abandoned by those on the political Left—requires that laws and regulations that limit religious freedom be justified by a compelling state interest and represent the least restrictive means to attain that interest. It is supposed to provide individuals and organizations a basis for claiming an exemption on generally applicable laws that burden their religious liberty. Most frequently such claims would be made in court and weighed by a judge. The OLC memo represents an administrative, rather than a judicial, determination that even laws that explicitly prohibit government contractors from hiring in accordance with religious criteria—not discriminating against people, but hiring those who support the mission of the organization (a right, by the way, that would seem uncontroversial in almost any other setting)—have to accommodate the religious freedom of the contractors.
You might ask how an Administration could defy the express will of Congress if it passes a law that forbids taking religion into account when hiring for participation in a particular government-funded program. The answer to this question begins with the following consideration: unless the law explicitly repudiates RFRA, the executive is charged with enforcing both laws and reading them in a way that renders them, so far as possible, consistent with one another. So the executive must first ask, in accordance with RFRA, whether the burden on religious freedom represented by the hiring prohibition represents a compelling state interest. The most obvious answer is that, since there are plenty of laws that actually acknowledge the religious hiring rights of government contractors, denying those rights in this instance can’t be a compelling state interest. In other words, RFRA trumps the prohibition in the law.
What’s more, I think that this conclusion is not only good law, but also good policy. Let me summarize the argument I made at greater length ten years ago. A diverse country is best served, not by a uniform, monolithic, and homogeneous social service sector, but by an array of organizations that represent genuinely different approaches to addressing our social problems. A healthy civil society is a diverse civil society. Government should respect and foster that diversity rather than diminish it. The demand that “government not fund discrimination”—usually connected with a demand that government expand its programs for the needy—is for all intents and purposes a demand that government secularize society, that nongovernmental organizations be simple extensions of their government sponsors. This isn’t good for the needy or for the society at large.
Let’s hope that the Obama Administration continues to ignore the importuning of those whose crabbed view of religious liberty would increasingly diminish the role of religion in society.
