At today’s hearing before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties, there was one item on which witnesses and Members of Congress from across partisan and ideological divides agreed: the Obama administration is ducking an important and controversial decision on whether religious organizations that take federal money to provide social services can discriminate on the basis of religion when hiring people to provide those services. The administration further dodged the issue and rankled committee members by declining an invitation to testify.
There is some progress to report: the hearing came one day after the White House issued a long-awaited Executive Order (Subcommittee Chair Jerold Nadler called the pace of reform “glacial”) on the topic of federal funding for faith-based groups. The Executive Order implements a number of recommendations made by an advisory council the administration had created to review what was called the Office of Faith-Based Initiatives by the Bush Administration and what is now called the Office of Faith-Based and Community Partnerships. Melissa Rogers, Director of the Center for Religion and Public Affairs at Wake Forest Divinity School and a co-chair of the president’s commission, was among those who testified.
Among the elements of the new Executive Order and provisions to: require that beneficiaries who object to a religiously affiliated program have access to a secular alternative; clarify rules requiring that federal money not be used for religious activities like worship or proselytizing; ensure that awards are made on the basis of merit, not religious or political considerations; and require meaningful oversight of grants without excessive entanglement in religious groups’ internal affairs. These provisions were mostly welcomed across the political spectrum (with some sniping from the Religious Right), though there was disagreement in the advisory council over the issue of social services being provided in rooms where religious art or symbols are displayed (the administration OK’d religious symbols in rooms where secular programs are carried out) and over the question of requiring churches to set up separate nonprofit organizations to receive federal money (the administration decided not to require that step).
But the big unresolved issue is one that the Obama White House prevented its own advisory commission from addressing – whether groups can decide to hire only people of a certain faith for social service jobs that are being funded by American taxpayers.
People For the American Way, like all the Democrats present at the hearing, believes the Obama administration should overturn the poorly reasoned Bush-era Justice Department memo that misinterpreted the law to allow federally funded discrimination. During his 2008 campaign, Obama explicitly pledged to do so. But since then the administration has declared that the Justice Department would consider the issue on a case-by-case basis.
Religious Right groups and their political allies want the administration to explicitly embrace the status quo set up during the Bush administration, which allows hiring discrimination. Progressive groups want the administration to revoke the controversial Bush-era legal memo and return to a bright line standard against taxpayer-funded discrimination. Pretty much everyone agrees that churches and religious groups can and should be able to make religiously-grounded hiring decisions for jobs that are paid for with privately raised funds. And everyone agrees that administration’s “case by case” approach makes no sense.
Come to think of it, there was one other topic of agreement: Rep. Trent Franks doesn’t know what he’s talking about. Franks, who gained a measure of infamy last year when he denounced President Obama as an “enemy of humanity,” popped into the hearing to assert that the administration’s lack of clarity on the hiring issue was stirring controversy over a principle that the federal courts had settled for 50 years, the right of religious groups to hire based on religion. After Franks left, there was general consensus in the room that, to be charitable, Franks was confusing the basic issue: the difference between private and taxpayer funds. Franks wrapped his embarrassing confusion in Religious Right rhetoric about groups that supposedly want to erase religion from public life, or in his memorable words, ensure that “anything in the shadow of the American flag cannot be religious.”