Recent disclosures by the Department of Justice reveal that the Obama administration has continued a policy, first put in place by the Office of Legal Counsel in the Bush Justice Department, of granting faith-based recipients of taxpayer dollars certificates of exemption from federal laws prohibiting religious discrimination in employment by such organizations receiving federal funds.
The latest development in a long-simmering standoff between the administration and civil liberties groups is the American Civil Liberties Union’s Freedom of Information Act request, submitted this week to the Department of Justice, seeking greater detail about the faith-based organizations that have received such certificates of exemption, and the circumstances under which these certificates are granted. Until recently, the disclosures from the Obama administration about what it has called a “case-by-case” review have failed to make clear that the granting of certificates of exemption to faith-based grantees who requested them has remained administration policy. Rather, the administration has responded to calls from civil liberties groups for transparency on the issue with silence and confusion.
Since President Barack Obama launched his Office of Faith-Based and Neighborhood Partnerships shortly after taking office in 2009, the Coalition Against Religious Discrimination (CARD) has been assiduously asking the administration a simple question: why are faith-based organizations that receive taxpayer money permitted to discriminate based on religion in hiring, and under what circumstances? For over three years, CARD members have remained frustrated not only with the refusal to change the policy, but the administration’s unwillingness to explain exactly how the policy is being implemented. Last year, at a townhall at the University of Maryland, Obama himself would not explain the policy, saying only, “I think that the balance we tried to strike is to say that if you have set up a nonprofit that is disassociated from your core religious functions and is out there in the public doing all kinds of work, you have to abide generally with the nondiscrimination hiring practices. On the other hand, if it’s closer to your core functions… then you might have more leeway to hire someone who is of that religious faith. [...] I think we’ve struck the right balance so far.”
Late last year, CARD sent requests, “simple questions” about the policy, said Dena Sher, Legislative Counsel at the ACLU’s Washington Legislative Office, to the faith-based offices housed in a dozen federal agencies. CARD received no response, and no acknowledgment of follow-up meeting requests, she said.
Under questioning by members of the House Judiciary Committee, however, the Justice Department has been pushed to be more forthcoming, and what “case-by-case” means is becoming a little clearer. Although Attorney General Eric Holder attempted to dodge the question in a 2011 House Judiciary Committee hearing, in response to written questions from Rep. Bobby Scott (D-VA), DOJ admitted in June 2012 that the Department grants faith-based grantees certificates of exemption from laws prohibiting religious discrimination. The sole legal authority for these exemptions lies in a 2007 Office of Legal Counsel memo [.pdf] written by Bush administration lawyers, concluding that the Religious Freedom Restoration Act “protects this right to prefer co-religionists for employees even if the statute that authorizes the funding program generally forbids consideration of religion in employment decisions by grantees.”
After the 2011 hearing, Scott told San Francisco Chronicle reporter Bob Egelko that Holder was “obviously ‘embarrassed to try to explain the policy’” and that Obama could repeal the OLC memo via executive order but had made no effort to.
The responses to Scott’s question finally reveal the straightforward answer CARD has long sought. Although it was unclear at the time exactly how the Obama administration was implementing the Bush OLC memo, in 2009, CARD asked the Department of Justice to revisit the memo’s legal conclusions, on the grounds that it “wrongly asserts that RFRA is ‘reasonably construed’ to require that a federal agency categorically exempt a religious organization from an explicit federal nondiscrimination provision tied to a grant program.” The Los Angeles Times editorialized that “both the 1st Amendment and a reasonable reading of federal law require a reversal of the Bush policy.” The New York Times, also in an editorial, said the memo was “based on a far-fetched interpretation of the 1993 Religious Freedom Restoration Act.” In a 2010 letter, CARD charged that continued reliance on the 2007 OLC memo “threatens core civil rights and religious freedom protections” and that the administration’s vague case-by-case approach “raises the problem of religious selectivity and provides scant opportunity for transparency or accountability. Following this approach indefinitely while leaving the Bush-era rules in place forestalls a critical opportunity for prophylactic guidance and presidential leadership against employment discrimination within federally-funded social welfare projects by faith-based grant recipients.” But DOJ has declined to revisit the memo. Although it has made clear it is leaving the memo’s legal reasoning in place, until the June 2012 written responses to the Judiciary Committee, DOJ has not explained how the “case-by-case” review was actually being implemented, or admitted that it was continuing the Bush procedure of granting the certificates of exemption.
The 2007 OLC memo is also known as the “World Vision memo,” after the faith-based organization which receives millions in federal funds, and requires all US employees to sign its Christian Statement of Faith and/or The Apostles Creed. World Vision’s president, Richard Stearns, has been an outspoken critic of ending what is euphemistically known as “co-religionist hiring,” and has a coalition of conservative faith-based advocates backing him. After Obama pledged on the campaign trail in 2008 to reverse the Bush policy, evangelicals were up in arms; one claimed the candidate, to quell the outcry, promised evangelical leaders on the eve of the election that he would leave the discriminatory policy in place. Obama later appointed Stearns to the first Advisory Council to the White House Office of Faith-Based and Neighborhood Partnerships. In a 2011 letter to Obama, Stearns joined a group of conservative religious leaders praising Obama for his “steadfast commitment to religious freedom.” The letter was harshly critical of CARD’s interpretation of the OLC memo, arguing that the memo “affirms that, faced with a statutory ban on religious staffing in a particular federal program, a religious organization has the opportunity to demonstrate that abandonment of its religious staffing practices in order to participate in the program wrongfully imposes on it a ‘substantial burden’ that the government need not—and should not—impose.” (Obama’s “steadfast commitment to religious freedom” has somehow been forgotten in the contraception wars.)
In its written answers to Scott’s questions posed at the 2011 House Judiciary Committee hearing, DOJ said that “in response” to the World Vision opinion, the Office of Justice Programs “developed a policy that allows for a case-by-case review of applicants seeking a similiar exemption.” Under the policy, according to DOJ’s response, “a religious organization that applies for funding and requests an exemption under the Religious Freedom Restoration Act to enable it to prefer coreligionists in employment, notwithstanding a statutory prohibition on religious employment discrimination,” must certify three things: (1) that it provides services to all beneficiaries regardless of religious beliefs; (2) that its inherently religious content will be kept separate from services supported by direct federal funding; and (3) that “the Applicant is a religious organization that sincerely believes that providing the services in question is an expression of its religious beliefs; that employing individuals of a particular religion is important to its religious exercise; and that having to abandon its religious hiring practice in order to receive the federal funding would substantially burden its religious exercise.” Sher described this process as “whatever you ask for,” a “self-certified exemption.” The Department stated that eight unnamed faith-based organizations received such exemptions in fiscal year 2008; and that no requests for exemptions were received for fiscal year 2009. It said nothing about subsequent years.
In Congressional testimony in June 2012, just after DOJ submitted its written response to Scott’s question, Holder still wouldn’t specify whether certificates of exemption were being granted (emphasis mine):
SCOTT: I understand this administration still allows discrimination in federal contracts based on religion. If it’s a so-called faith based group. My question is—do they need permission or certification to qualify for the right to discriminate? Or do they just get the right to discriminate based on the fact that they’re faith based organizations using federal money?
HOLDER: Well, I think we’re committed to ensuring that we partner with faith based organizations in a way that’s consistent with our laws, our values and the department will continue to evaluate legal questions that arise with respect to these programs and try to ensure that we—make sure that we ensure that we fully comply with all of the applicable laws.
SCOTT: Does that mean they can discriminate…
ISSA: The gentleman’s time has expired.
SCOTT: I think it was a yes or no answer?
ISSA: OK. Mr. Attorney General, go on and if you would, answer the question?
HOLDER: As I said, we try to do this—we look at these policies and try to make sure that they do—they act in a way that’s consistent with law.
A White House spokesperson referred questions about the policy and the ACLU’s FOIA request to the Department of Justice, which did not respond to a request for comment.