October 18, 2008
DOJ Legal Opinion Supports Charitable Preferences Based on Religion, But Refuses to Address Prefences Based on Race or Gender
The October 18, 2008, issue of the New York Times contains an article that discusses the recent release of a Justice Department Office of Legal Counsel opinion letter which supports the granting of federal money to a faith-based organization that hires Christians only and refuses to hire non-Christians. As the NYT article reflects, the analysis in the legal opinion is quite extension. However, the religious freedom law experts quoted in the article describe the analysis as, at worst, completely wrong, or at best, an overly aggressive application of "substantial burden" religous freedom legal doctrine. Here is an excerpt from the NYT article:
Christopher E. Anders, senior legislative counsel to the American Civil Liberties Union, said he was alarmed by the 2007 memorandum’s conclusion that the government does not have a “compelling interest” in enforcing a federal civil rights statute.
“It’s really the church-state equivalent of the torture memos,” Mr. Anders said. “It takes a view of the Religious Freedom Restoration Act that allows religious organizations to get federal funds without complying with anything.”
Professor Lupu did not go that far, but said the opinion made “an aggressive reading of ‘substantial burden’ in a way that is not consistent with what courts and other agencies have done in the past, and it is designed to serve the president’s political agenda.”
In reviewing the legal opinion, it appears to me that the analysis used in order to reach the conclusion that religious preferences by social service organizations are appropriate, the Bush administration officials used arguments eerily similar to those used to advance the cause of race and gender affirmative action advocates. Here is an excerpt from the DOJ legal opinion:
In addition, the exemption that World Vision is seeking is not one directed at allowing it to exclude people from a particular religion from employment. Rather, it is directed at allowing it to hire only coreligionists. There is nothing to suggest that its wish for such an exemption is driven by animus towards people of different religions, rather than by a desire to remain an organization of coreligionists and to expand an activity that it already engages in with coreligionists and that is consistent with the kind of charitable activities that religious organizations traditionally have engaged in with coreligionists in this country. Moreover, World Vision’s representations that it can remain true to its religious mission only if it is able to limit employment to coreligionists is borne out by its apparently consistent hiring practice since its founding, and we are aware of no information to indicate that its hiring practices reflect invidious discrimination. We need not resolve whether the Government would have a compelling interest in enforcing the Safe Streets Act’s nondiscrimination provision with respect to a differently situated grant applicant—perhaps one without such a history to authenticate its claim that homogeneity of belief is essential to its mission, or whose hiring practices implicate compelling government interests in eradicating racial or sex discrimination. In such a case, the Government might well have a compelling interest in requiring strict adherence with the Safe Streets Act’s nondiscrimination requirements. Cf. Hamilton v. Schriro, 74 F.3d 1545, 1552-53 (8th Cir. 1996) ("The Religious Freedom Restoration Act . . . establishe[s] one standard for testing claims of Government infringement on religious practices. This single test, however, should be interpreted with regard to the relevant circumstances in each case.") (quoting S. Rep. No. 111, 103d Cong., 1st Sess. 9 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1898). This, however, is not such a case.
For the entire text of the article entitled "Bush Aides Say Religious Hiring Doesn’t Bar Aid", see the October 18, 2008, issue of the New York Times. For the entire text of the DOJ Office of Legal Counsel legal opinion on religious freedom preferences, see http://www.usdoj.gov/olc/2007/worldvision.pdf or click Download worldvision.pdf to dowload a copy.
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