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January 01, 2013

Beating Plowshares Into Swords

by Richard B. Katskee

In the summer 2006 issue of this magazine, I published an essay describing some of the constitutional deficiencies in President George W. Bush’s Faith-Based and Community Initiative. I explained that religious groups have traditionally played a central role in providing social services such as homeless shelters, soup kitchens, and substance-abuse counseling; and the federal government has long contracted with such organizations to administer government-funded programs to aid the least well off.

But religiously affiliated groups that chose to accept tax dollars were historically required, like all recipients of federal grants are, to run publicly funded programs in accordance with the same basic nondiscrimination rules that the government itself would have to follow if it were providing the services to the public directly. The organizations were forbidden to infuse religion into the government-funded programming; they were required to serve aid recipients based on need, without regard to race, sex, or religion; and they were required to adhere to these same nondiscrimination principles when hiring and promoting staff members whose salaries were paid with public money.

Religious groups that did not want to play by these rules could always forgo government money, fund their charitable work with private contributions, and remain free to run their programs as they saw fit. But the Bush administration set out to erase the distinction between publicly and privately funded programs, instructing faith-based organizations that they could enjoy the freedom of private charities to include religion in their programming and to make employment decisions based on religious criteria, even while accepting tax dollars to pay for their work.

A year after I wrote that essay, the Office of Legal Counsel (OLC) in the Bush administration’s Department of Justice (the people who gave us the Bybee–Yoo torture memos) rendered a legal opinion that the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb-4, exempted a religiously affiliated organization from a statutory prohibition against religious discrimination in employment in federally funded programs. OLC’s interpretation of the RFRA (available at is a case study in how measures designed to safeguard religious liberty and allow the free exercise of religion to flourish can be transformed into tools of government-sponsored religious oppression.

Until recently, Free Exercise Clause jurisprudence regularly afforded exemptions from religiously neutral laws that placed substantial and disproportionate burdens on religious practice. The Supreme Court had held, for example, that although it is generally permissible to condition the receipt of unemployment benefits on applicants’ acceptance of any offered employment, a Seventh Day Adventist was entitled to benefits even though she had refused a job that would have required her to work on her Sabbath (see Sherbert v. Verner, 374 U.S. 398 (1963)), and a Jehovah’s Witness was entitled to benefits even though he had quit his job because his faith prevented him from working in a weapons-manufacturing facility (see Thomas v. Review Board, 450 U.S. 707 (1981)).

The Supreme Court changed this settled understanding and rewrote the legal test for evaluating free exercise claims in Employment Division v. Smith, 494 U.S. 872 (1990). In this case, the Court held that it was constitutionally permissible for a state to refuse to pay unemployment benefits to two members of the Native American Church who had been fired from their jobs after testing positive for peyote—a hallucinogen that is a sacrament in their faith the way that ceremonial wine is for many Christians and Jews.

At the urging of religious and civil rights groups from across the political spectrum, Congress responded (unanimously in the House and virtually so in the Senate) by enacting the RFRA, which restored by statute the pre-Smith legal standards for free exercise claims. The RFRA was intended to protect religious freedom by ensuring that, absent exceptionally strong, nondiscriminatory reasons, the government could not prevent people from acting in accordance with their religious convictions or coerce them to violate those convictions.

Fourteen years later, however, OLC stood these principles on their head, in order to satisfy President Bush’s “wish[ ] to exempt religious organizations that administer federally funded social services from religious nondiscrimination requirements imposed on their employment practices as a condition of their funding.” Purporting to interpret the RFRA, OLC concluded that World Vision, Inc.—a Christian religious organization slated to receive $1.5 million in federal funds to operate programs for at-risk youth—could not be required to comply with a statutory prohibition against discriminatory hiring in federally funded programs. OLC’s logic went this way: Because World Vision considered working with troubled youth to be part of its religious mission, administering the federally funded programs was a religious exercise. And because World Vision was committed to hiring only coreligionists in order to advance its religious mission, enforcing the rule against discriminatory hiring would substantially burden that religious exercise by making the group decline the $1.5 million federal grant and limit its programming to what it could support with private contributions.

OLC’s unprecedented view was that a federal agency’s decision not to fund a grant application to run a federal program was legally no different from a discriminatory denial of an entitlement to a needy individual. What had once been the legal right not to be denied essential government services just because you subscribe to a minority faith was now, according to the legal adviser to the U.S. Department of Justice, a right to deprive others of fair consideration for employment in government-funded jobs if they don’t worship the way that you think they should. What had been a prohibition against undue burdens on exercises of faith was now an obligation of the government to use tax dollars affirmatively to underwrite religious discrimination.

The OLC memorandum was so controversial and so poorly reasoned that the Bush administration did not make it public for more than a year. Only in the fall of 2008, as the administration was getting ready to leave office, did the Justice Department finally release it, at a time when no one would demand that the outgoing officials defend their position, but when the incoming administration would be saddled with the memo as a statement of established federal policy.

In September 2009, a coalition of nearly sixty religious and civil rights organizations sent a letter to the Obama administration’s attorney general, Eric Holder, asking him to withdraw the OLC memorandum, cease funding religious discrimination, and allow the RFRA once again to be the protection for religious freedom that Congress had intended. To date, the Obama Justice Department has taken no action to change the policy.

The government’s official position thus remains that religious organizations running federally funded programs are entitled to use public money to hire staff based not on merit but on religious tests, federal antidiscrimination laws and express provisions in grant contracts notwithstanding. Our tax dollars thus continue to pay the salaries for jobs that many of us are ineligible to hold—not because we lack the necessary skills, but simply because we don’t subscribe to the right faith or live up to someone else’s idea of religious purity.

How we choose to spend public money reflects our fundamental values as a society. If we take seriously our constitutional commitments to equal opportunity and religious liberty, then government-supported employment and publicly funded social services should be open to everyone on fair terms. Organizations that voluntarily seek public money to administer federal programs should once again be held to the same nondiscrimination standards as the government itself is. The legal protections for free exercise should once again alleviate unreasonable burdens on religion, not mandate that the government subsidize religious practices.



Richard B. Katskee is a member of the Supreme Court and Appellate Practice at Mayer Brown LLP in Washington, D.C. He previously spent seven years as the assistant legal director at Americans United for Separation of Church and State, where he litigated cases brought under the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment, including constitutional challenges to federal funding of faith-based organizations.