Tuesday, November 30, 2010

House Committee on the Judiciary v. DOJ and Religious Discrimination by Faith Based Contractors

Congress A couple of weeks ago, the House Committee on the Judiciary's Subcommittee on Constitution, Civil Rights, and Civil Liberties held a hearing on the report of the President's Advisory Council on Faith Based Initiatives. The subcommittee had asked the White House and DOJ to send a representative to testify about the recommended reforms, but no one showed up.

Apparently, the committee was a little offended by the no-show. They sent a letter to AG Holder, asking him or his designee to come to a follow-up hearing to be scheduled after the end of this week. In part, the letter asks this:

In particular, we would like to hear from the Department on the issue of whether religious organizations may make religion-based employment decisions while receiving federal funds. As you undoubtedly are aware, the president asked his Advisory Council not to consider this issue, and the administration has said that it is conducting its own evaluation. This is an issue of importance to subcommittee members from both political parties, to many of our constituents and to the American public. It is unacceptable – and flatly inconsistent with the president’s pledge of greater transparency – that the Department of Justice has not made its position clear to the Congress or to agencies and partnering organizations who must understand and comply with the law.

This is a very important issue, but it's also understandable that the administration would not want to touch it with a ten-foot pole at the moment. Coming down on one side risks a potential free exercise problem (although faith based organizations don't have to take federal funds), and coming down on the other risks a different free exercise or establishment clause problem. I'm not a First Amendment expert, but I'm not sure that a principled distinction can be drawn between actions taken as an employer and the delivery of services provided to the community. Presumably it is not controversial that faith based organizations can't discriminate in their delivery of services on the basis of religion if they receive federal funds to deliver those services. Why then might they be allowed to discriminate on the basis of religion in choosing who can deliver those services. At the same time, the organizations shouldn't have to hire people who don't support the mission of the organization, at least in broad terms. I guess it seems to me that support of the mission, phrased neutrally with regard to religion, should be the touchstone.

In any event, we'll have to see if the administration complies with this strongly worded letter.

MM

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