The Common Good
September-October 2003

Faith-Based Discrimination?

by Duane Shank | September-October 2003

Religious organizations and fair hiring.

Can religious organizations choose to hire only people who share their beliefs? The issue is heating up again. Last December, President Bush issued an executive order allowing such discretion to faith-based organizations receiving federal funds. Similar provisions are being added to legislation including Head Start and the Workforce Investment Act. And the rhetoric is rising.

Some opponents claim that allowing faith-based organizations to use religious criteria in hiring is "government-sponsored bigotry" or a "roll-back on civil rights protections." Proponents answer that those who oppose it are trying "to torpedo funding for thousands of faith-based organizations." Neither is the case. The first step toward a solution is to identify the real questions.

This is an issue where deeply held values come into conflict and must be balanced. There are three important principles at stake. First, faith-based partnerships have an important role in finding new solutions to overcoming poverty. Second, the ability of faith-based organizations to maintain their religious identity and the freedom to hire people who share their religious mission, especially at leadership levels, is often vital to their effectiveness and integrity. Third, civil rights and anti-discrimination laws in the United States are fundamentally important. Any resolution must take all three principles seriously.

The 1964 Civil Rights Act's prohibition on employment discrimination allowed religious organizations to use religious criteria in hiring "ministerial" employees. That exemption was expanded in 1972 to include all employees of a faith-based organization. Since then, the issue has been raised in a variety of litigation—all of which upheld the exemption. It's not a new issue.

The new question is whether the exemption applies when a religious organization receives federal funding. That has not been addressed by the Supreme Court, and that is what the new executive order and legislation attempt to answer.

Current laws governing funding of faith-based organizations contain a variety of approaches. In federal programs that are silent on hiring issues, the exemption of the Civil Rights Act presumably applies. Others include "charitable choice" language, explicitly protecting a federally funded religious organization's exemption. Still others contain language that eliminates the exemption for faith-based organizations that receive public funding.

Courts have broadly interpreted "religious beliefs" to also include "practices." One appeals court noted that "the permission to employ persons 'of a particular religion' includes permission to employ only persons whose beliefs and conduct are consistent with the employer's religious precepts." In most court decisions, the issue is ultimately about conduct rather than beliefs, involving people whose employment was terminated because the religious employer discovered something about them it disapproved of—that the employee was divorced, gay or lesbian, or what have you.

SO WHERE CAN the sides agree? Most concur that the exemption for privately funded religious organizations should continue. No one wants to force a mosque to hire a priest or a Baptist church to hire a rabbi. It is also reasonable that organizations directly affiliated with and funded by a particular faith have the right to hire adherents.

Some programs are so oriented toward proselytizing or religious instruction that it is essential for their staff to share their beliefs—for example, drug rehabilitation that is dependent on personal conversion. These programs shouldn't receive public funding. If the government cannot fund specific activities, it shouldn't be funding positions where those activities are carried out.

In other programs, direct services can be separated from ministerial or leadership positions and each funded separately. Positions for social workers, day care teachers, or computer instructors in a job-training program should be subject to equal opportunity hiring. A person's religious beliefs can certainly be one factor—as is now the case—but should not be used to disqualify an otherwise qualified person. This is essentially how organizations such as Catholic Charities currently operate.

We can, with some thought and care, preserve all three principles, respecting religious freedom and civil rights while continuing to provide and expand the services needed to lift people out of poverty.

—Duane Shank

Duane Shank is issues and policy adviser for Sojourners.

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