Federal Funds to Discriminate: Faith-Based Proposals Proliferate

Yesterday (May 8), the House of Representatives passed a bill known as the Workforce Reinvestment and Adult Education Act (HR 1261). The bill is designed to renew a $6.6 billion employment training program first established in 1998, that was set to expire on Sept. 30. The House passed the bill, largely along party lines, with a vote of 220 to 204. Why is a job training program in these troubled economic times so controversial and partisan? The answer is because of a small provision that bill critics say will promote workplace discrimination.

Section 123 of the bill contains a religious exemption that would allow groups with religious affiliations that receive federal money to limit employment to those sharing their religious views. This provision would allow groups who receive federal money to conduct job training programs to use those funds to hire only those of their religious faith without being liable for religious discrimination claims. This means that an organization affiliated with members of one faith can legally hire only members of its own faith, and refuse to hire members of any other faith (or no faith at all). A Catholic organization could refuse to hire a Jew. A Protestant organization could refuse to hire a Catholic. A Mormon organization could hire only Mormons. All of these organizations could thus legally discriminate on the basis of religion.

Supporters of the provision say the provision is similar to one that already exists in Title VII, the federal antidiscrimination law, and that they were extending to religious groups the same protections offered to other organizations providing social services. (See NY Times article.) For example, Rep. John Shadegg (R-AZ) noted, ‘We don’t say to Planned Parenthood that if you take money from the government you have to hire somebody who is prolife.” (See AP article.) Religious groups ”have a right to hire people who share their values.” Rep. Marilyn Musgrave, (R-CO) said, “Faith-based organizations cannot be expected to sustain their religious mission without the ability to employ individuals who share in their tenets and practices. It is that very faith that motivates these people to help Americans that are in trouble.”

While Title VII does contain an exemption for religious organizations only to engage in religious discrimination by hiring only those who are members of their faith, most religiously-affiliated groups currently receiving federal funding are not created as religious organizations per se, but as separate nonprofit public welfare or educational organizations pursuant to section 501 (c)(3) of the Internal Revenue Code. In fact, many governmental funding programs require section 501(c)(3) status in order for groups to qualify for funding. These separate entities are not entitled to the Title VII exemption for religious organizations, and therefore cannot legally discriminate on the basis of religious affiliation or religious practices. Moreover, in order to receive specific grants, organizations may be required to sign an anti-discrimination pledge in order to receive the funds, even if those organizations might otherwise be entitled to claim the religious exception. So, it is not entirely accurate to say that this proposal is necessary to provide equivalent protections to Title VII, as the provision under consideration would allow religiously-affiliated groups who are not true religious organizations (and therefore not entitled to Title VII’s religious exemption) to simultaneously discriminate on the basis of religion and to receive federal funds for doing so.

House Democrats strongly objected to the proposal. The House Democratic leader, Rep. Nancy Pelosi of California, said it was “profoundly unwise to allow the federal government to fund religious discrimination. It is bad for our churches, bad for our work force and bad for our society.” (See Pelosi press release.) As Rep. Pelosi also noted, “the legislation will overturn a federal anti-discrimination policy established more than 60 years ago. At that time, President Franklin D. Roosevelt decided to forbid federal contracts from discrimination based on religion, as well as race and national origin. Following in the same tradition, the current job training law prohibits religious discrimination.”

Rep. Barney Frank (D-MA) also decried the deletion of antidiscrimination provisions. “Don’t take people’s tax dollars and say you can only hire your own,” he said. Frank has previously objected to other similar attempts to repeal antidiscrimination provisions applicable to groups accepting federal funds. In January 2003, he joined four other House Democrats in challenging the deletion of existing civil rights protections in the new faith-based rule proposed by the Department of Housing and Urban Development. (See Frank press release.) As one of the few openly gay members of Congress, Frank’s concerns with these kinds of provisions echo those by many in the gay community that these provisions will enable sexual orientation discrimination to flourish. (See Lambda’s Public Funding of Religious Groups.) One oft-cited case, in which a court decision is currently pending, involves that of a Kentucky Baptist children’s home which despite receiving two-thirds of its funding from the state, chose to discriminate against one of its employees, youth counselor Alicia Pedreira, when it learned that she was a lesbian. (See Lambda case report.) Many fear many more cases like Pedreira’s if provisions like the one currently part of HR 1261 are allowed to stand.

The Labor Department praised the passage of HR 1261. Labor Secretary Elaine Chao called the Workforce Reinvestment and Adult Education Act “a giant leap toward getting them the employment and training services they need to better provide for themselves and their families” (See DOL statement.) According to a recent report, the Labor Department is also more quietly involved in further regulatory changes benefitting religious groups. As originally reported in the Boston Globe, DOL has altered regulations for the nation’s leading job training program to allow faith-based organizations to use “sacred literature,” such as Bibles, in their federally funded programs. (See Salt Lake Tribune article.) In guidelines published April 4, the Labor Department said the job-training grants “may not be used for instruction in religion or sacred literature, worship, prayer, proselytizing or other inherently religious practices, and that “[t]he services provided under these grants must be secular and nonideological.” But in amended guidelines published in the Federal Register on April 18, the words “sacred literature” were removed, along with the sentence saying that the services provided must be secular and nonideological. So if evangelical Christian organizations want to use Bibles in their job training activities, they would be permitted to do so, as this use would not constitute an “inherently religious practice.”

President Bush has made the establishment of faith-based initiatives one of the top priorities of his administration. This issue was consistently promoted throughout his presidential campaign, and one of his first acts as President, on January 29, 2001, was to create a new “White House Office for Faith-Based and Community Initiatives” to promote the participation of faith-based and community organizations in federal social service programs. (See Establishment of White House Office of Faith-Based and Community Initiatives, Executive Order 13198.) These two provisions presided over by the Department of Labor are yet two additional ways that this administration continues its efforts to insinuate faith-based provisions and funding for organizations who practice discrimination into federal law.

Additional Resources on Faith-Based Initiatives:

Americans United for the Separation of Church & State

American Civil Liberties Union

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.