Rights of Faith Based Organizations
An effort is underway to prevent faith-based organizations from being able to exercise their right to hire on the basis of religion, particularly if the organizations are recipients of federal grant money. What does the law say on this issue?
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964, the premier civil rights employment law, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.
Section 702 originally read, “This title shall not apply . . . to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities or to an educational institution with respect to the employment of individuals to perform work connected with the educational activities of such institution.”
In 1972, the Act was amended by the Equal Employment Opportunity Act. As a result, Section 702(a) presently states: “This title shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”
Section 703(e) of Title VII, recognizes the freedom of religious staffing for religious educational institutions and allows for the accommodation of religion as a “bona fide occupational qualification.”
In 1987, the broadening of Section 702(a) was challenged in court. In Corporation of the Presiding Bishop v. Amos
, the Supreme Court held “a law is not unconstitutional simply because it allows
churches to advance religion, which is their very purpose…. Congress acted with a legitimate purpose in expanding the § 702 exemption to cover all activities of religious employers…§702 is rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions.”
The first Charitable Choice provision was enacted in 1996, during Bill Clinton’s presidency. The purpose of these provisions was to allow faith-based organizations to received federal funds “without impairing the religious character of such organizations.” Additionally, if such an organization receives government funding, it “shall retain its independence from Federal, State, and local governments, including such organization's control over the definition, development, practice, and expression of its religious beliefs.” Finally, when a faith-based organizations receives a government grant, “Neither the Federal Government nor a State shall require a religious organization to alter its form of internal governance; or remove religious art, icons, scripture, or other symbols in order to be eligible to contract to provide assistance.”
Congress has included Charitable Choice provisions in the Temporary Assistance for Needy Families (TANF) welfare program, the Community Services Block Grant (CSBG) program, and Substance Abuse Health and Services Administration (SAMHSA) programs, to protect the religious hiring rights of faith-based organizations that receive government funds under these programs.
Religious Freedom Restoration Act
Unlike the laws mentioned above that contain Charitable Choice language, some federal programs contain provisions requiring all grant recipients to agree not to discriminate on the basis of religion in their hiring practices. In such a case, faith-based organizations may apply to the Religious Freedom Restoration Act of 1993 (RFRA). RFRA prohibits the government from substantially burdening religious exercise without demonstrating a compelling government interest.
White House Office for Faith-Based and Community Initiatives
On January 29, 2001, President Bush issued Executive Order 13199
, establishing the White House Office for Faith-Based and Community Initiatives. On December 12, 2002, he issued Executive Order 13279
, “Equal Protection of the Laws for Faith-Based and Community Organizations.” This Order was issued “to guide Federal agencies in formulating and developing policies with implications for faith-based organizations and other community organizations, to ensure equal protection of the laws for faith-based and community organizations… Consistent with the Free Exercise Clause and the Free Speech Clause of the Constitution, faith-based organizations should be eligible to compete for Federal financial assistance…without impairing their independence, autonomy, expression, or religious character.”
Accordingly, a faith-based or community organization “may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance to support any inherently religious activities, such as worship, religious instruction, or proselytization.”
Additionally, a faith-based or community organization “may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities…may retain religious terms in its organization’s name, select its board members on a religious basis, and include religious references in its organization’s mission statements and other chartering or governing documents.”
White House Office of Faith-Based and Neighborhood Partnerships
On February 5, 2009, President Obama issued an Executive Order
amending Executive Order 13199, changing the name of the office from the White House Office for Faith-Based and Community Initiatives to the White House Office of Faith-Based and Neighborhood Partnerships.
President Bush’s Executive Order ensuring equal protection for faith-based and community organizations has not been amended.