Tuesday, April 15, 2008
Carl Esbeck (Missouri) has just posted on SSRN his essay (forthcoming Engage June 2008) The Application of RFRA to Override Employment Nondiscrimination Clauses Embedded in Federal Social Service Programs. Here's the abstract:
General federal employment nondiscrimination legislation permits religious organizations to take religion into account when making employment decisions. However, some federal social service programs have embedded in their authorizing legislation a nondiscrimination clause binding on recipients of program grants. And a few of these embedded clauses require that grantees (including religious grantees) not discriminate in employment on the basis of religion. This extended essay demonstrates how the Religious Freedom Restoration Act of 1993 overrides these employment nondiscrimination clauses when applied to faith-based social service grantees. Not only is this the conclusion of the U.S. Department of Justice in its policy announced in October 2007, but it is the necessary implication of both the plain text of RFRA and the Supreme Court's application of RFRA in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).