Sunday seems an appropriate day to consider–once again– the relationship between God and government.
Propublica recently reported on an effort by constitutional lawyers that highlights the increasing conflict between this nation’s commitment to government neutrality in matters of religion and the demands of religious organizations for special accommodations.
The Obama administration has roundly criticized states such as North Carolina and Mississippi for passing laws that allow discrimination in the name of religious freedom. But at the same time, the administration has left in place a 2007 memo from the Bush White House that allows religious charities with federal contracts to discriminate in hiring for federally funded programs.
Now, as Obama prepares to leave office, a group of prominent constitutional lawyers is calling on the Obama White House to revoke the legal memo, which they argue has been used by religious groups to refuse to provide services, including emergency contraception for human trafficking victims, that conflict with their beliefs. Their arguments are detailed in a legal analysis published this morning by Columbia Law School’s Public Rights/Private Conscience Project, which includes contributions of scholars from George Washington, Emory and Brigham Young universities, among others.
A good deal of my research when I first entered academia centered on Bush’s so-called “Faith Based Initiative,” and his effort to contract with religious organizations for the provision of government services to the needy. (In fact, I co-wrote a very boring book on the subject.) There were a number of faulty assumptions that prompted the Initiative, and as the Propublica article explains, such partnerships frequently created conflicts between the organization’s religious mission and the government’s obligation to refrain from funding religious discrimination.
Bush administration lawyers wrote the memo after the Christian charity World Vision, which serves the poor in nearly 100 countries, objected to a nondiscrimination clause in a $1.5 million Department of Justice grant to fund a mentoring program for at-risk children. World Vision argued that it should be allowed to hire only Christian employees for the program and that not allowing the group to do so would put a “substantial burden” on it.
The Free Exercise Clause of the Constitution protects the right of religious congregations and certain other religious organizations to hire and fire on the basis of their doctrinal beliefs–when those organizations are spending their own money.
Discriminating with taxpayer dollars received via a government contract is a different matter.
When a government agency is requesting proposals from for-profit, nonprofit or religious organizations to partner in the provision of services, it generally requires that the successful bidder agree to obey applicable laws, including civil rights laws forbidding discrimination.
Religious congregations or organizations can choose to bid on a contract or not; if the terms of the award are inconsistent with the organization’s religious beliefs, it need not participate. As a local pastor once put it: “with the government’s shekels come the government’s shackles.”
If you aren’t willing to play by the rules, don’t join the game.
It is unfair to exempt religious bidders from compliance with rules others must obey– in essence, to give such bidders special rights not enjoyed by others.
The lawyers calling on Obama to end such preferential treatment have both the Constitution and fundamental fairness on their side.
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