Faith-based groups should play by the same rules

The American Humanist Association opposed RFRA when it was passed because, although we support religious liberty, we considered the law to be too broad and, in its means to attain its ends, it inappropriately entangled government and religion. (It should be noted, however, that many of the organizations that signed onto last week’s letter supported RFRA when it was passed, and the bill did garner broad bipartisan support.)

In 2007, our concerns about RFRA deepened when the Bush-era Department of Justice issued a suspect interpretation of the law in an OLC memorandum. The memo argued that RFRA bestowed an exemption from workplace nondiscrimination law to religious organizations that participated directly in federal grant programs, and that such an exemption was required in order to protect those organizations’ free exercise rights.

What this means in plain English is that, under the OLC interpretation, a religious group hiring for a taxpayer-funded job is free to discriminate on the basis of faith.

The OLC memo was part of a larger effort by the Bush administration to loosen the hiring rules for faith-based groups that receive federal grants. In 2001, President Bush attempted to push through legislation that would have expanded charitable choice provisions—which, among other things, allow religious groups to sidestep nondiscrimination law—to almost every federal social service program. Although the measure was defeated in Congress, the Bush administration continued its effort through executive order and other methods—including the OLC memo.

Although President Obama was clear during his presidential campaign that he intended to dismantle this aspect of Bush’s faith-based program—most notably and explicitly in a campaign speech in Zanesville, Ohio—so far his administration has failed to act, saying only that they will review the hiring issue on a case-by-case basis to see if there are any legal problems.

But this approach is far from acceptable—as long as the OLC memo stands, any legal review of the hiring issue will be evaluated based on the legal analysis the memo established. Obama needs to make good on his campaign promise that public money won’t be used to fund discrimination. Qualified individuals that apply for jobs paid for by their own taxes shouldn’t worry they’ll be passed over solely because they’re not of the “right” faith. And it’s far from unreasonable—in fact, it’s only just—to expect faith-based groups that receive federal money to play by the same rules as everyone else.