Q: Should faith-based groups with tax dollars be able to consider religion in hiring? NO: Discrimination should not be in the employment equation when public money is in the mix

0 Comments | Insight on the News, March 1, 2004

Byline: Christopher E. Anders, SPECIAL TO INSIGHT

On Feb. 4, the U.S. Congress took up the latest chapter in the debate over the funding of religion and religious discrimination with taxpayer dollars. On one side were supporters of the Bush administration, who argue that a government-funded religious organization's inherent character entitles it to use federal funds for religious activity and to discriminate in hiring against people of the "wrong" religion using tax dollars. On the other were those who believe that taxpayer dollars should not be used to fund religious discrimination or religious activity.

The First Amendment of the Constitution of the United States requires not just that the state keep one religion from using governmental powers to force its beliefs on others, but also to keep the power of the state from favoring one religion over another or meddling in the private affairs of any religion.

The debate over the Community Services Block Grant (CSBG) program cuts to the core of these constitutional issues, and its scope implicates broader questions about our democracy and the role of religion in politics. For answers, one must dig deeper into the legal history of President George W. Bush's "faith-based initiative," of which the CSBG fight was a part, and his push to allow federal funds to pay for religious social-service providers' nonsecular activities and their discrimination in hiring using faith as a litmus test.

This latest battle in the ongoing drama over President Bush's initiative took place in the House of Representatives with a floor debate on funding for the CSBG program, which is meant "to provide a range of services to address the needs of low-income individuals to ameliorate the causes and conditions of poverty."

Under the CSBG program, funds are disbursed to various private groups religious and secular which then manage community-level social-service programs, including financial-planning services, employment counseling, food aid and a host of other valuable programs meant to lead to self-sufficiency for low-income Americans.

However, the program currently furthers two prongs of the president's plan: permitting tax-funded religious activities, and religious discrimination in hiring. To correct these problems, Rep. Lynn Woolsey (D-Calif.) offered a substitute amendment, which tracked a key Rehnquist Supreme Court decision prohibiting such funding practices. Unfortunately, the amendment was defeated, albeit by a relatively narrow margin. The bill now will go to the Senate, which to date has been unreceptive to the idea of legislating tax-funded discrimination or religious activities.

The Woolsey amendment, however, when seen in the context of the legislative and judicial history of this issue, should not have been controversial. For the purposes of this piece, I will focus on the most publicly contentious aspect of the block-grant program, the provision explicitly allowing federally funded religious groups to discriminate in hiring with tax dollars.

A key correction to the CSBG bill in the Woolsey substitute deals with one of the main goals of the president's faith-based initiative: to allow for government-funded religious discrimination in hiring.

Before delving into the specifics of this aspect of the CSBG fight, it is important to clear up one misperception cited often as fact by proponents of the faith-based initiative. During a previous legislative fight over legislation funding the early-childhood-education program known as Head Start proponents of the faith-based initiative argued that the above-cited Supreme Court case, Bowen v. Kendrick, actually supported funding religious groups that discriminate in hiring with tax dollars.

This is patently untrue. Bowen v. Kendrick, with its majority opinion written by no less a cultural liberal than Chief Justice William Rehnquist, found the exact opposite to be the case. Specifically, in Bowen v. Kendrick, Rehnquist cited Bradfield v. Roberts, an 1899 decision that expressly held the construction of a new federally funded building on the grounds of a Catholic hospital constitutional because the hospital "did not discriminate on the basis of religion." Indeed, and this is crucial, the Supreme Court has never allowed for religious discrimination in hiring in federally funded programs.

Civil-rights proponents particularly are invested in this part of the CSBG fight because of the long history in the United States of links between racial discrimination and religious discrimination. In fact, the Supreme Court decision barring tax funding to organizations that discriminate based on race is consistent with prohibitions on the public funding of religious discrimination.

In 1983's Bob Jones University v. the United States, the Supreme Court held that the government could withhold tax benefits from a sectarian university because of overtly racist policies, including one against interracial dating. The current administration itself has argued in defending the religious-nondiscrimination provision in the Civil Rights Act from an 11th Amendment challenge that intentional religious discrimination and racial discrimination are indistinguishable under the equal-protection clause.