WASHINGTON (ABP) — Supporters of the separation of church and state are urging Attorney General Eric Holder to fulfill a campaign promise by President Obama to combat religious discrimination in hiring.
The Baptist Joint Committee for Religious Liberty and the American Baptist Churches USA joined more than 50 other Christian, Jewish and secular groups in a Sept. 17 letter to Holder.
The letter asks him to rescind a 2007 memorandum, issued by then-President Bush's Justice Department, interpreting the Religious Freedom Restoration Act to allow any faith-based charity receiving government grants to discriminate on the basis of faith in job — even for jobs funded by federal tax dollars.
The letter said the Bush memo's legal reasoning "is erroneous and threatens core civil-rights and religious-freedom protections."
The Bush memo interprets the 1993 religious-freedom law — known in shorthand as RFRA — to allow religious institutions receiving government grants to hire only people of their own faith. It applies even if the service being provided is secular in nature and the statute authorizing the program under which the grants are awarded specifically bans such discrimination.
"Having helped to spearhead the RFRA effort, I know of no one in 1993 who thought the new law would ever be applied this way," said Brent Walker, executive director of the Baptist Joint Committee. Many of the other groups that signed onto the letter to Holder were also part of the coalition that helped create RFRA and pushed to get it passed in 1993.
The employment-discrimination issue is one of the most contentious left over from Bush's effort — intended to be the centerpiece of his domestic policy — to expand the government's ability to fund social services through churches and other religious charities.
The Bush initiative immediately came under significant criticism from advocates of strong church-state separation. It pushed into public discussion previously obscure constitutional questions about the First Amendment perils posed by giving taxpayer dollars directly to houses of worship and other deeply religious organizations.
The state of the law in the courts was unclear on many of the constitutional questions. Nonetheless, Bush's administration aggressively pushed for legislation that would have explicitly authorized social-service grants to churches and codified what he believed was the churches' right to discriminate on the basis of faith in hiring for federally funded positions.
Although Bush's plan was stymied in Congress, he effectively implemented much of his faith-based effort through executive orders and other administrative methods in the scores of charitable grant programs the federal government administers. The 2007 memo was one of the most far-reaching of those efforts.
Opponents of Bush's faith-based plan urged Obama to undo those changes when he took office. As a candidate, he announced a clear position on the employment-discrimination issue.
"As someone who used to teach constitutional law, I believe deeply in the separation of church and state, but I don't believe this partnership will endanger that idea — so long as we follow a few basic principles," Obama said during a July 2008 campaign speech in Zanesville, Ohio.
"First, if you get a federal grant, you can't use that grant money to proselytize … the people you help and you can't discriminate against them — or against the people you hire — on the basis of their religion. Second, federal dollars that go directly to churches, temples and mosques can only be used on secular programs."
But Obama's administration has adopted a go-slow approach on the employment-discrimination subject since taking office, saying they will review the legal issues case by case.
"What the president has decided to do, and what we believe the best approach to this is, is to fully understand this issue as issues arise out in the agencies" that administer the affected grant programs, said Joshua DuBois, the director of Obama's faith-based office, in a June appearance. "There is a role for responsible partnerships between the government and these organizations, but that word 'responsible' is key."
But the church-state watchdog groups that signed on to the Sept. 17 letter said the 2007 Bush memo is clearly irresponsible.
"The [2007] memo … stands as one of the most notable examples of the Bush administration's attempt to impose a constitutionally questionable and unwise policy — RFRA should not be interpreted or employed as a tool for broadly overriding statutory protections against religious discrimination or to create a broad free-exercise right to receive government grants without complying with applicable regulations that protect taxpayers," the letter said.
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Robert Marus is managing editor and Washington bureau chief for Associated Baptist Press.
Previous ABP stories:
On church-state issues, Obama brings new perspective, slow policy change (7/8)
Obama rearranges faith-based office; vows to maintain church-state wall (2/5)
On Bush's faith-based programs, Obama says save best, ditch rest (7/6/2008)