A coalition of 90 religious, educational, health, women’s, LGBT, and civil rights groups this week called on the Department of Justice to abandon a 2007 Office of Legal Counsel Memo that interprets the Religious Freedom Restoration Act to allow faith-based organizations receiving federal funding to circumvent federal prohibitions on hiring discrimination in employment.
A smaller coalition, known as the Coalition Against Religious Discrimination (CARD), has been pressing the Obama administration to reverse this Bush-era rule since early in President Obama’s first term. This larger coalition was prompted to act in light of a recent announcement by the Department of Justice that, despite explicit language in the 2013 Violence Against Women Act, faith-based contractors receiving taxpayer funding through VAWA programs could be permitted to discriminate in hiring.
Since 2009, when first launching the Office of Faith-Based and Neighborhood Partnerships, the Obama administration has insisted that it was looking at such instances of possible hiring discrimination on a “case-by-case” basis, a vague response that did not fully explain how the Department of Justice was permitting hiring discrimination to occur.
In 2012, though, in response to Congressional questioning, the Department of Justice finally made its policy clear: if “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,” it may receive such an exemption if it certifies (1) that it provides services to all, regardless of the beneficiary’s own religious beliefs; (2) that its explicitly religious content will be kept separate from federally-funded services; 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.”
This week’s letter from the coalition of 90 groups calls this interpretation of RFRA “overly-broad and erroneous,” adding that the 2007 OLC memo “stands as one of the most notable examples of the Bush Administration’s attempt to impose a constitutionally erroneous and deeply harmful policy—RFRA should not be interpreted or employed as a tool for broadly overriding statutory protections against religious discrimination or to create a broad free exercise right to receive government grants without complying with applicable regulations that protect taxpayers.”
Last year, civil liberties groups lobbied hard to have a non-discrimination provision included in VAWA. The resulting statutory language reads:
No person in the United States shall, on the basis of actual or perceived race, color, religion, national origin, sex, gender identity (as defined in paragraph 249(c)(4) of title 18, United States Code), sexual orientation, or disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under [VAWA], and any other program or activity funded in whole or in part with funds appropriated for grants, cooperative agreements, and other assistance administered by the Office on Violence Against Women.
Notwithstanding this explicit statutory provision, in the April 9, 2014 document, “Frequently Asked Questions” about the “Nondiscrimination Grant Condition in the Violence Against Women Reauthorization Act of 2013,” DOJ announced that it would permit VAWA contractors to self-certify for an exemption from the statute’s non-discrimination provision.*
Given the nature of services provided under VAWA—relating to sexual assault, domestic violence, dating violence, and stalking, among other things—it’s not terribly surprising that a far broader group of advocates has joined CARD in calling on DOJ to abandon 2007 OLC memo.
As the coalition letter notes, it is difficult to imagine that RFRA envisions that requiring federally-funded, faith-based organizations to comply with anti-discrimination laws is a “substantial burden” on their religious practice.
DOJ will grant these exemptions based on nothing but a self-certification that while the organization will not discriminate against beneficiaries, it feels it must hire only co-religionists because it “sincerely believes that providing the services and benefits in question is an expression of its religious beliefs” and that “employing individuals of particular religious belief is important to its religious exercise.”
This exemption for any contractor is troubling enough, as it broadens, without any real basis in the law, what constitutes a “substantial burden” on religious practice, and requires taxpayers to fund hiring discrimination explicitly prohibited by law. But when applied to contractors specifically providing services for sexual assault and sexual violence, it raises a host of other questions: why does the federally-funded organization believe that providing these services is “an expression of its religious beliefs?” What would it mean—notwithstanding the promise to keep secular and religious programs separate and to serve all comers, regardless of religion—that these services would be provided exclusively by members of a single religious tradition, who believe such services are part of their religious expression? What oversight will DOJ provide of the consequences of a federally-funded contractor only hiring co-religionists, and providing these services based on “an expression of its religious beliefs?”
Throughout this entire standoff between the opponents of the 2007 OLC memo and the Obama administration—a conflict that is now more than five years old—the Justice Department has failed to explain why it persists with this interpretation of RFRA, why it thinks it is justifiable for taxpayers to fund hiring discrimination that is otherwise illegal, or how it ensures that the self-certified organizations actually deliver on their other promises to not impose religious beliefs on beneficiaries. If the prospect of these practices being imposed on victims of sexual violence doesn’t finally bring this issue to a head, I am not sure what will.
*The precise language from the FAQ document reads:
6. How does this grant condition apply to job positions in programs administered by faith-based organizations, where the program is funded by a covered grant?
In accordance with DOJ’s interpretation of the Religious Freedom Restoration Act as set forth in a June 29, 2007 Memorandum Opinion issued by the Department of Justice, Office of Legal Counsel, funded faith-based organizations subject to the new nondiscrimination grant condition may prefer co-religionists for employees in programs funded by covered grants if they can meet each of the following criteria:
a. The faith-based organization demonstrates that the program for which it seeks federal funding is an exercise of religion; and
b. The faith-based organization demonstrates that requiring it to either forgo its religious preference in hiring or forgo the federal funding would substantially burden its exercise of religion; and
c. The funding entity is unable to demonstrate that applying the nondiscrimination grant condition to the faith-based organization would both further a compelling government interest and be the least restrictive means of furthering this interest.
OVW, other DOJ grant-making offices, and State Administering Agencies will grant exemptions to this prohibition against hiring discrimination on the basis of religion on a case-by-case basis if a funded faith-based organization can certify to each of the following:
a. The faith-based organization will offer all federally-funded services and benefits to all qualified beneficiaries without regard for the religious or non-religious beliefs of those individuals; and
b. Any activities of the faith-based organization that contain explicitly religious content will be kept separate in time or location from any services and benefits supported by direct federal funding, and if provided under such conditions, will be offered only on a voluntary basis; and
c. The faith-based organization sincerely believes that providing the services and benefits in question is an expression of its religious beliefs, that employing individuals of particular religious belief is important to its religious exercise, and that having to abandon its religious hiring practice to receive federal funding would substantially burden its religious exercise.