October 2015 Church & State | Featured

The year was 2008. The place was Zanesville, Ohio, a town of just over 25,000 that calls itself “Pottery Capital of the World” and the “Clay City” for its ceramics production. Then-Democratic presidential candidate Barack Obama was giving a standard campaign speech, but then deviated to discuss some problems with the so-called “faith-based” initiative.

“If you get a federal grant, you can’t use that grant money to proselytize to the people you help and you can’t discriminate against them – or against the people you hire – on the basis of their religion,” he said.

Obama was referring to sectarian organizations that receive federal contracts to perform secular social services as part of the faith-based initiative, a program launched by Rep­ub­licans during the Bill Clinton presidency and greatly expanded during the George W. Bush years.

The initiative permits grantees to apply sectarian criteria to staff, even when they are being funded by taxpayers. But that single sentence spoken in Ohio offered hope that Obama would break with the previous administration on this matter and work to end federally funded discrimination. Unfortunately, however, seven years later – and despite making strides to end inequality in other areas – the Obama administration has yet to back up talk with action.

So on August 20, Americans United joined an unprecedented coalition of 130 national organizations to ask Obama to finally end this harmful policy by taking aim at a legal memo that encapsulates it. The coalition included religious groups (like the Baptist Joint Committee for Religious Liberty, Union for Reform Judaism and the United Methodist Church’s General Board of Church and Society), reproductive rights groups (like Plan­ned Parenthood and NARAL Pro-­Choice America), LGBT rights groups (including Human Rights Campaign and Lambda Legal), civil-rights groups (like the NAACP, Leadership Conference on Civil and Human Rights, and Anti-Defamation League) and women’s groups (such as National Organization for Women and the YWCA USA).

The problem of taxpayer-funded discrimination in the faith-based initiative is nothing new. On Bush’s watch, the initiative was rife with misuse. This included a $1.2 million grant given in part to a consulting firm run by Lisa Trevino Cummins, a former head of Hispanic outreach for the White House Office of Faith-Based and Community Initiatives, under pressure from Bush operatives.

The problem stems largely from a poorly reasoned legal memo issued by Bush staffers in 2007. World Vision, which describes itself as “a Christian humanitarian organization dedicated to working with children, families, and their communities world­wide,” wanted to accept a federal grant to perform social services but didn’t want to abide by the grant requirement that it hire and fire without regard to religion.

The Office of Legal Counsel (OLC) reached the flawed conclusion under the Religious Freedom Restoration Act (RFRA), a 1993 federal law intended to protect the religious freedom of those who follow minority religions, that World Vision could take government funds yet ignore the anti-discrimination laws that apply to the grant.

“World Vision is an entity protected by RFRA; its programs at issue here are an exercise of religion; [Office of Justice Programs] reasonably may conclude that imposing the nondiscrimination requirement on World Vision would substantially burden the organization’s religious exercise; and, in this case, the burden would not be justified by a compelling governmental interest,” the memo read.

In subsequent years, this interpretation has made it possible for faith-based organizations that receive taxpayer largess to provide ostensibly secular social services all the while excluding qualified candidates from jobs that public funds subsidize simply because they are not the “right” religion. In fact, last year, the Obama Administration explained that this policy applies to social services provided with funding from the Violence Against Women Act (VAWA). As a result, even though the VAWA statute explicitly prohibits it, faith-based organizations can discriminate on the basis of religion in hiring.

But critics note some organizations are trying to take the OLC opinion a step beyond that. Some faith-based groups cited the 2007 OLC memo to claim that they can take government money to offer social services and yet refuse to provide assistance that they consider offensive to their faith. Catholic groups, for example, sought government funds to provide services to victims of human trafficking – and then refused to give any medical care that included contraceptives.

Some have even cited the OLC Memo to argue that RFRA should broadly exempt religiously affiliated contractors from the LGBT employment nondiscrimination protections President Obama put in place by executive order in 2014. They argue that they should be able to discriminate against LGBT workers and their families, even though the order plainly forbids government contractors from doing this. 

“RFRA was intended to provide protection for free exercise rights, applying strict scrutiny, on a case-by-case basis, to federal laws that substantially burden religious exercise,” the coalition explained in its letter. “RFRA was not intended to create blanket exemptions to laws that protect against discrimination.”

That Obama has allowed this discriminatory policy to stand despite his stated opposition to it is surprising, critics say. After all, Obama’s White House website stresses that he is a civil rights president who is “leading the fight to protect everyone – no matter who you are, where you’re from, what you look like, or who you love.”

Obama’s inaction also appears inconsistent with other recent attempts by his administration to combat religion-based discrimination at the federal level.

On August 5, nine federal agencies released proposed regulations that Americans United said will bring about necessary reforms to the rules that apply to partnerships between the government and faith-based social-services providers. Among the changes: Individuals receiving social services must be given written notice of their religious-liberty rights not to be discriminated against in taxpayer-funded programs on the basis of religion, a religious belief, a refusal to hold a religious belief or a refusal to attend or participate in a religious practice. Americans United believes the regulations will provide improved religious-freedom protections for the beneficiaries of social-services programs, greater clarity to faith-based social service providers about their responsibilities and increased transparency for taxpayers.

There is also evidence that Obama is worried generally about the application of RFRA. In March, White House Press Secretary Josh Earnest expressed concern about a state RFRA bill because it “could reasonably be used to try to justify discriminating against somebody” which is “not consistent with our values as a country that we hold dear.”  Yet, the president stands by the OLC memo, which interprets RFRA to allow taxpayer-funded organizations to discriminate even where a statute forbids it. Obama continues to allow his administration to enforce a policy – one he is able to alter without congressional approval – that allows taxpayer-funded religious discrimination.

 “If left in place, the [policy] will tarnish the legacy of your work to advance fairness and equal treatment under the law for all Americans,” the coalition letter said.

Given the sheer number of highly respected organizations that made up the coalition, the letter to Obama drew significant media interest. The story was reported upon by more than a dozen news outlets, including an editorial in the Los Angeles Times as well as articles in The Chronicle of Philanthropy, Religion News Service and Buzzfeed, a popular news website.  

Ultimately, it is not known what the Obama administration intends to do regarding the infamous OLC memo. But Americans United and its allies remain hopeful that the president will fulfill the pledge he made in Zanesville seven years ago.

“This matter should have been resolved years ago, and it is both disappointing and surprising that it has not yet been addressed,” Maggie Garret, Americans United’s legislative director and a chief organizer of the coalition, told Church and State. “Unlike many legislative matters, President Obama has the power himself to end this policy of discrimination through an executive order. We hope the president will make it a priority for his remaining time in office.”