Comments Say Proposed Regulations Counter to Law, Constitution

People For the American Way Foundation filed formal comments this month in opposition to proposed regulations to implement President Bush’s December 12 Executive Order regarding “faith-based” groups receiving federal funds to carry out social service programs.

“The Bush Administration is trying to change federal law by executive fiat, and they are doing it to permit federally funded discrimination,” said People For the American Way Foundation President Ralph G. Neas. “The administration was not able to get its ill-advised policy through Congress so they are trying to make new law unilaterally.”

Bush’s order mandated that federal departments and agencies re-interpret long-standing civil rights laws in order to permit groups receiving federal funds to discriminate on the basis of religion in their hiring practices. The comments filed by People For the American Way Foundation apply to proposed regulations affecting Substance Abuse Prevention and Treatment Block Grants, The Temporary Assistance for Needy Families Program, and the Community Services Block Grant.

Neas said that even carefully written regulations could not adequately solve the religious liberty and discrimination problems created by Bush’s Executive Order, but that revised regulations could limit the damage. The PFAWF filings urge several agencies within the Department of Health and Human Services to make changes in the proposed regulations in order to ensure that religious organizations using federal funds to pay employees carrying out governmentally funded social service programs not be permitted to engage in religious discrimination in hiring and to prevent violations of religious liberty and church-state separation.

The comments note a contradiction in the administration’s proposals. The regulations state that federal funds provided directly to religious organizations must “not be used to support inherently religious activities.” But if federal funds are not being used to support religious activities, there is no good reason to permit groups using those funds to hire only people of a certain faith and create a precedent on federally funded discrimination in social service programs.

With respect to a number of substance abuse programs, that kind of discrimination in hiring with federal funds is explicitly contrary to current federal law, yet the proposed regulations create a loophole for any religious organization that “sincerely believes” such discrimination is “important” to its religious identity, autonomy, or exercise and that the services being provided are “expressive” of the group’s values or mission. The regulations suggest this loophole is required by the Religious Freedom Restoration Act, though legal and policy precedent debunk that claim.

As the PFAWF comments note, as a result of the Executive Order and the proposed regulations to carry it out, a Christian organization funded with federal substance abuse prevention funds could legally place a help wanted ad saying “No Jews Need Apply.”

The PFAWF comments note that President Franklin D. Roosevelt signed the first Executive Order banning workplace discrimination in the defense industry based on “race, creed, color, or national origin,” and later broadened that order to include all federal contractors.

“President Bush’s Executive Order and these regulations could set back key civil rights protections by more than six decades,” said Neas, noting that the December 12, 2002 order is the first in more than 60 years that seeks to exempt all government contractors that are religiously affiliated or religious in nature from a discrimination prohibition applicable to all other contractors.