Monday, September 6, 2010

Religious Nondiscrimination Provision in Pending Federal Legislation Sparks Controversy

The New York Times reports that numerous religiously-affiliated organizations are protesting a religious nondiscrimination provision in pending legislation (H.R. 5466) to reauthorize the Substance Abuse and Mental Health Services Administration.  One provision (Sec. 1947) states that any block funds received under the legislation constitute "federal financial assistance" under certain Civil Rights laws and are subject to the following nondiscrimination requirement as to recipients of services:

(2)   Prohibition. No person shall on the ground of sex (including, in the case of a woman, on the ground that the woman is pregnant), or on the ground of religion, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity funded in whole or in part with funds made available under section 1911 or 1921 [of the legislation].

In effect, recipients of federal funding under this legislation must provide social services free of any religious bias or restriction.

The more controversial provision of the pending legislation deals with religious preference in hiring (H.R. 5466, section 2(a), amending Title V, Part A, section 501 (m)(2)), which provides:

(2) CONSIDERATION OF RELIGION IN EMPLOYMENT DECISIONS- With respect to any activity to be funded (in whole or in part) through an award of a grant, cooperative agreement, or contract under this title or any other statutory authority of the Administration, the Administrator, or the Director of the Center involved, as the case may be, may not make such an award unless the applicant agrees to refrain from considering religion or any profession of faith when making any employment decision regarding an individual who is or will be assigned to carry out any portion of the activity. This paragraph applies notwithstanding any other provision of Federal law, including any exemption otherwise applicable to a religious corporation, association, education institution, or society.

This particular provision would trump the exemption provided to religious organizations under Title VI of the Civil Rights Act of 1964 that permits them to discriminate on the basis of religion in employment.  As reported in the New York Times article, both Christian and Jewish organizations alike are concerned about the impact of the pending legislation on their ability to hire and administer their missions consistent with their faiths and beliefs.  In contrast, the Coalition Against Religious Discrimination (including the ACLU, Hindu American Foundation, and NAACP) support such restrictions and desire that Congress eliminate federal funding of faith-based providers all together.

The debate over religious nondiscrimination in federal funding of social service programs administered by religiously-affiliated nonprofits is anything but new.  Both Presidents Clinton and Bush supported such federally financed programs provided they were administered on a religiously-neutral basis.  However, until this legislation, there was no attempt to impose religious nondiscrimination in hiring on faith-based providers as a prerequisite to federal funding.

(Hat tip:  Jack Siegel at Charity Governance Consulting, LLC)

NAM

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Comments

The standard provision cited in this article (H.R. 5466, Sec. 1947) is in reference to the prohibition of discrimination regarding beneficiaries served by federally funded grants. It is important to note that this is a provision that World Vision and many other faith-based organizations like it wholeheartedly supports. In our vision statement we clearly state that we serve all people regardless of religion, race, ethnicity, or gender. What the article in question fails to note, however, is the section of the pending legislation dealing with religious preference in hiring (H.R. 5466, section 2(a), amending Title V, Part A, section 501 (m)(2)).

(2) CONSIDERATION OF RELIGION IN EMPLOYMENT DECISIONS- With respect to any activity to be funded (in whole or in part) through an award of a grant, cooperative agreement, or contract under this title or any other statutory authority of the Administration, the Administrator, or the Director of the Center involved, as the case may be, may not make such an award unless the applicant agrees to refrain from considering religion or any profession of faith when making any employment decision regarding an individual who is or will be assigned to carry out any portion of the activity. This paragraph applies notwithstanding any other provision of Federal law, including any exemption otherwise applicable to a religious corporation, association, education institution, or society.

Our ability to hire people who share our values and faith is a critical part of what makes us faith-based and what gives us our unique character, commitment and access to people and places where other organizations may not be present. It is for this reason that we urge policymakers to oppose this effort to amend the Religious Freedom Restoration Act (“RFRA”), to amend Title VII of the 1964 Civil Rights Act, or otherwise dilute the right of faith-based social service organizations to stay faith-based through their hiring, including when awarded a federal grant. Such actions would be catastrophic to our efforts to serve those in need and to all who value statutory protection for religious liberty.

Posted by: Steve McFarland | Sep 7, 2010 1:47:09 PM

Thank you to Steve McFarland for the clarification between the two provisions. The original blog entry has been amended to reflect your comments.

Posted by: Nicholas Mirkay | Sep 7, 2010 4:54:24 PM

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