Discrimination by Religious Entities That Receive Government Funds

Religious entities currently receive government funds in a variety of ways and for a variety of purposes. Increasingly, the government is turning to nongovernmental entities—including religious and secular nonprofit organizations— to provide the sorts of services that the government used to provide directly. As a result, religious groups presently receive funds from state and federal governments to provide all kinds of social services, from elementary education to drug rehabilitation. In fact, under the federal programs begun in 1996 known generally as ‘‘Charitable Choice,’’ religious groups have the right to participate in various funding opportunities on the same terms as secular organizations.

This raises a number of political and constitutional issues. First is the straightforward issue of whether such funding is constitutionally permissible. Much of the Supreme Court’s Establishment Clause jurisprudence over the last fifty years has centered on whether (and towhat extent) religious entities can receive government funds. Yet, its decisions in cases like Mitchell v. Helms, 530 U.S. 793 (2000), and Zelman v. Simmons–Harris, 536 U.S. 639 (2002), seem to suggest that as long as religious groups are not privileged over competing secular groups, they can constitutionally receive government funds to do social-service work.

Aside from the issue of funding is another difficult one, which is just as contentious and even more complicated. This issue is one of discrimination. It is widely accepted that the government cannot discriminate on the basis of religion when hiring employees. The Constitution’s Equal Protection and Free Exercise Clauses require this. Yet, it is just as widely accepted that religious groups should have the right to so discriminate. This, too, is seen as a matter of free exercise. Accordingly, religious organizations are exempt from the Title VII statute, which generally forbids businesses from discriminating against employees on the basis of religion. Charitable Choice thus creates a problem by crossing up these two competing intuitions. What should happen when religious groups receive government funds in programs like Charitable Choice? Should they continue to enjoy the right to select staff along religious lines? Should they, like governmental actors, be barred from engaging in this sort of discrimination?

This question is one on which people vehemently disagree. Both sides have good points to make. On one hand, allowing religious organizations to keep their Title VII exemption is, in a sense, to allow government-funded discrimination. It means that workers in publicly funded positions (performing what had until recently been government work) can be terminated solely because of their religious beliefs. While it may be fine for religious groups to prefer coreligionists in their own affairs, surely the government— under the Equal Protection and Establishment Clauses—must ensure that when it acts, all of its citizens are treated equally. Moreover, given that religious groups are the only groups that have the right to staff religiously, they are being unfairly privileged over secular organizations, perhaps in violation of the Establishment Clause.

Yet, those who defend religious staffing in Charitable Choice have their arguments as well. They point to the fact that religious staffing has always been a prerogative of religious organizations, and for good reason. In a diverse country, religious staffing is what enables a group to maintain a religious identity; it is part and parcel of their right under the Free Exercise Clause to practice their religion. Without a right to hire along religious lines, a Jewish social-justice organization might well become Jewish in name only. To tell a religious group that it can have government funds only if it gives up its right to staff religiously, supporters argue, would be essentially to bribe them out of their religious identity—a quintessential violation of the unconstitutional-conditions doctrine.

How this debate will be resolved is far from clear. As for current practice, the law is mixed. Title VII exempts religious groups without regard to whether they are receiving government funds. As a result, the general rule is that religious organizations can discriminate along religious lines. Yet there are exceptions to this rule. In some programs (like the AmeriCorps VISTA program, for example), special federal contracting rules require all parties contracting with the government (including religious ones) to pledge that they will not discriminate on the basis of religion. States and cities sometimes have quite similar rules for their contracting partners. In such cases, the default rule is reversed and religious organizations must give up their religious staffing rights to receive government funds. There is no doubt, however, that this issue is of increasing importance in the charitablechoice debate. Indeed, battles over this discrimination issue have been a central impediment to legislative proposals to expand Charitable Choice, principally because those working against Charitable Choice have made it the fulcrum of their attack. How the foregoing issues will play out in the Congress and the courts is perhaps impossible to predict.

As a concluding note, it is important to keep in mind that this discussion has only been concerned with discriminations on the basis of religion. Title VI of the Civil Rights Act of 1964 prohibits all organizations that receive federal funds, religious and secular alike, from discriminating in employment on the basis of race, color, or national origin. (As those defending religious staffing like to note, Title VI does not list religion as a protected characteristic.) No federal law currently prohibits employment discrimination on the basis of sexual orientation, so religious and secular organizations are entitled to discriminate on that basis with the use of federal funds. Lastly, it is worth noting that, while they protect the right of religious groups to discriminate on the basis of religion in hiring, charitable-choice provisions do not permit religious groups to discriminate among beneficiaries on the basis of religion. Under current federal law, that sort of religious discrimination is flatly condemned, although some worry that it may exist in practice.

CHRISTOPHER C. LUND

References and Further Reading

• Esbeck, Carl H., Stanley W. Carlson–Thies, and Ronald J. Sider. The Freedom of Faith-Based Organizations to Staff on a Religious Basis. Washington, DC: Center for Public Justice, 2004.
• Green, Steven K., Religious Discrimination, Public Finding, and Constitutional Values, Hastings Constitutional Law Quarterly 30 (2003): 1:1–55.
• Laycock, Douglas, The Underlying Unity of Separation and Neutrality, Emory Law Journal 46 (1997): 1:43–74.
• Lund, Christopher C., Of Government Funding, Religious Institutions, and Neutrality, Tulsa Law Review 40 (2004): 2:321–342.
• Lupu, Ira C., and Robert W. Tuttle. Government Relationships With Faith-Based Providers: The State of the Law. Albany, NY: Roundtable on Religion and Social Welfare Policy, 2002.
• Saperstein, David, Public Accountability and Faith-Based Organizations: A Problem Best Avoided, Harvard Law Review 116 (2003): 6:1353–1396.

Cases and Statutes Cited

• Mitchell v. Helms, 530 U.S. 793 (2000)
• Zelman v. Simmons–Harris, 536 U.S. 639 (2002)
• 42 U.S.C. } 2000e (Title VII)
• 42 U.S.C. } 604a (Charitable Choice)

See also Accommodation of Religion; Charitable Choice; Equal Protection Clause and Religious Freedom; Establishment Clause Doctrine: Supreme Court Jurisprudence; Establishment of Religion and Free Exercise Clause; Free Exercise Clause Doctrine: Supreme Court Jurisprudence; Mitchell v. Helms, 463 U.S. 793 (2000); Religion in ‘‘Public Square’’ Debate; Religious Freedom Restoration Act; School Vouchers; State Action Doctrine; State Aid to Religious Schools; State Regulation of Religious Schools; Tax Exemptions for Religious Groups and Clergy; Title VII and Religious Exemptions; Unconstitutional Conditions; Zelman v. Simmons–Harris, 536 U.S. 639 (2002)