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Professor Marci A. Hamilton, President Obama: Federally Funded Religious Contractors Should Not Have Their Rights to Discriminate Expanded One Iota More, Hamilton and Griffin on Rights

July 17, 2014

There was a time when arguments were made across the political spectrum that the government should not fund religious mission. Some, generally liberal, said so because the separation of church and state forbade it. Some, like many conservative evangelicals, argued that government funds would corrupt their mission, because one must expect government funds to come with strings attached. Others, largely Republicans, believed in a limited federal government and objected to the expansion of federal welfare programs.

If government were funding social services, they had to be services provided to all and done so in a way that strictly separated the government’s money from the religious organization’s and that forbade discrimination based on any ground, including religion, in the hiring of social service providers. Religious nonprofits, like Catholic Charities, flourished under such a system.

Charitable Choice and President William J. Clinton

Then there was “charitable choice,” which turned on the idea that religious social service providers should be as eligible for federal money for social services as any non-religious provider. The idea was that it was unfair to exclude religious nonprofits from the stream of federal funds if they were also providing social services. This concept was fostered by President William Clinton (yes, who signed the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act into law).   There were still limits placed on how the government’s money was to be used, including a prohibition on discrimination in hiring. Federal funding recipients could not discriminate on the basis of gender, race, alienage, disability, or pregnancy.   They had the Title VII exception that permitted discrimination on religion for religious jobs, but it did not permit them to discriminate in hiring even on religion for social service provider positions.

The White House Office of Faith-based and Community Initiatives and President George W. Bush  

President George W. Bush took Clinton’s idea and turned it into an office in the White House, to wit, The White House Office of Faith-based and Community Initiatives. He tapped the visionary and brilliant Professor John DiIulio of the University of Pennsylvania to be its founding Director, who took the job extremely seriously, with a balanced approach that was intended to draw in religious, nonprofit, social service providers into the federal stream of money for the purpose of serving those in need more successfully. One of his primary goals was to create a federal partnership with the inner-city, struggling service providers who dealt with the very poor.

DiIulio believed quite correctly that, while Title VII grants religious nonprofits the right to hire with reference to their religious beliefs when they are serving religious purposes, they do not have a right to discriminate on any other basis and may not discriminate in hiring on the basis of religion when they are involved in social services delivery:   All tax-funded work must be and be deemed purely secular in nature.”

While acting as Director, though, he watched while pressure mounted from religious conservative leaders to permit the recipients of federal funds for social services to be able to discriminate on the basis of religion. For example, a Baptist service provider could choose to hire social service providers solely according to religion, without reference to their qualifications to deliver social services like counseling or alcohol or drug addiction therapy. At the same time, those conservative evangelical organizations who at one point had decried the very notion of taking federal money exercised their political muscle to get to the head of the pay line, which hardly served the needs of the very poor. DiIulio left the Office and became one of its most articulate and ardent critics.

President Bush attempted to get a bill through Congress that would have permitted such discrimination with federal funds, but the bill went nowhere. Not to be deterred, or, to be more accurate, under pressure from his religious, political allies, he signed an Executive Order permitting funding recipients to discriminate on the basis of religion.


The White House Office of Faith-based and Neighborhood Partnerships and President Barack Obama

President Obama re-named the Office, but continued its various practices. When he was campaigning before his first Term, he promised to rescind Bush’s Executive Order. That never happened. So faith-based providers taking federal funds to this day have permission to discriminate on the basis of faith.   They do not, however, have the right otherwise to discriminate under any other category.   For example, they may not take taxpayer dollars and discriminate on the basis of gender, race, alienage, disability, or pregnancy.

Religious groups never should have received the Bush unilateral order permitting discrimination in the hiring of social service providers, but they did.  And Obama should have rescinded it as promised, but he didn’t.  Why? On both counts, it is proof positive of the extraordinary power of religious lobbyists in Washington, regardless of the public good.

Feeling flush after obtaining a right to cut off health insurance coverage for women that is at odds with their employers’ religious beliefs in Hobby Lobby, religious conservatives are now demanding even more rights!   A right to discriminate on religion in hiring isn’t enough, apparently. Now they need to take federal funds while discriminating against LGBT applicants.

The very same law professors and religious leaders who have been misleading the country for years on the facts of the First Amendment’s doctrine and the reality of the Religious Freedom Restoration Act submitted a letter to President Obama supporting this invidious discrimination on the government’s dime. They argue that such a right is constitutionally required.

It simply isn’t; this letter is a plea to control policy, not rights.

In a well-reasoned letter that I gladly signed, over 50 other leading law professors have cogently rejected their reasoning and urged President Obama to do the right thing, and stop this never-ending spiral of self-centered demands to twist the anti-discrimination laws to their discriminatory agendas.

Conservatives have been fond of defending the Hobby Lobby reasoning as a policy matter, saying that “all” women must do is pay for the contraception themselves, so what’s the big deal?   We have been told repeatedly how they have no “right” to paid contraception.

Likewise, religious nonprofits have no right to federal funds to support the social services they provide. If they feel the need to discriminate against the LGBT applicants, or anyone else, in their delivery of social services, they should not have access to federal tax proceeds. There are plenty of other uses for that federal money.

President Obama, before kowtowing again to the religious lobbyists making never-ending demands to discriminate, you would do well to scrutinize the civil rights arc now unfolding in the United States for the LGBT community. Your support of gay marriage has been both prophetic and vital for millions of Americans seeking little more than dignity and equality. What these religious groups are proposing, if granted, would do them no favors in the long run, because they are on the wrong side of history.
President Obama: Federally Funded Religious Contractors Should Not Have Their Rights to Discriminate Expanded One Iota More

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