Holder Must Withdraw the Memo

Q: Dozens of major religious groups and denominations are urging Atty. Gen. Eric H. Holder Jr. to renounce a Bush-era memo that allows faith-based charities that receive federal funding to discriminate in hiring. Should religious charities that receive federal grant money be allowed to discriminate in hiring?

The right of religious charities to discriminate on the basis of faith in filling privately funded positions is guaranteed by Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment on the basis of, among other things, religion; but it grants an exemption to religious organizations, allowing them to favor people who share their particular faith in hiring. This exemption protects the church's autonomy, and it is an appropriate accommodation of religion.

The text of Title VII contains no corresponding right for religious charities to use taxpayer funds to discriminate in hiring against a qualified person based on nothing more than religious beliefs. Indeed, the practice historically has been to insist upon non-discrimination as a condition to receiving government funds.

In recent years, there have been efforts to undermine these safeguards. A notable example was a 2007 memorandum by the U.S. Department of Justice's Office of Legal Counsel, which interpreted the Religious Freedom Restoration Act of 1993 to require an exemption from a federal nondiscrimination provision in a grant program. As a leader in the coalition that urged Congress to enact RFRA, I can attest that it was never intended to create a blanket -free exercise right for religious charities to accept and spend federal monies without observing commensurate nondiscrimination provisions. The Baptist Joint Committee for Religious Liberty is proud to have played a part in the drafting of a recent letter to Attorney General Eric Holder, asking that he review and withdraw this memo that espouses a misguided application of RFRA.

The question of whether religious charities receiving any taxpayer monies are permitted to discriminate in hiring depends on the circumstances. There is no such ambiguity when a religious charity wishes to use public dollars, collected by compulsory taxation, to favor only adherents of its own faith. Such subsidization of tax dollars for religious purposes is an unfair, and arguably unconstitutional, advancement of religion.

By J. Brent Walker  |  September 22, 2009; 5:16 PM ET
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