Analysis of Religious Hiring Discrimination in Regards to The Faith Based Initiative

The United States’ religious and government institutions have a long history of collaborating, yet until “Charitable Choice” was passed in 1996, the only faith-oriented organizations that were eligible to receive federal funds where those that kept religion separate from the social service programs they delivered. Charitable Choice, proposed by then-Senator and now-Attorney General John Ashcroft, prohibits groups from proselytizing or using government money to fund religious activities, but it does allow the faith-based charities to restrict hiring to employees of a certain faith and to keep religious symbols on the walls. Although it does not simply guarantee money the law does propose to ensure that faith-based organizations will not be discriminated against because of religious ties. Additionally, this act seeks to protect the choice of the beneficiaries. If one does not prefer the service of the faith-based organization, the government must provide fair and equitable service from an appropriate source.

Within six months of inauguration, the Bush administration released the President’s Management Agenda, which very specifically addresses the most troubling issues facing federal government. Contained within this agenda is a specific reform objective, The Faith-Based and Community Initiative. This initiative outlines general reform, centered around existing legislation (Charitable Choice), designed to encourage and expand the cooperation and funding flow between the federal government and faith-based organizations through the newly created White House Office for Faith-Based and Community Initiatives.

One purpose of the President’s White House Office of Faith-Based and Community Initiatives is to remove “barriers” in the path of faith-based organizations that wish to provide government-funded social services. By actively seeking out and identifying barriers to the participation of faith-based organizations in the delivery of social services-and working to identifying rule changes to help those communities-the Office will assume responsibility for “charitable choice.”

The White House recently released a paper arguing for the benefits of the Faith Based Initiative and the removal of one of these “barriers”. In it, President Bush comments extensively on the debate surrounding religious hiring discriminations. “…And when government gives that support, charities and faith-based programs should not be forced to change their character or compromise their mission.” He argues that faith-based organizations should be allowed to retain the same civil rights they are provided under the Civil Rights Act of 1964, which allows them to maintain their religious liberty by hiring employees who share their religious beliefs.2 This essay will analyze this specific aspect of the Faith Based Initiative and Charitable Choice as outlined in the White House Paper.

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Philosophy – This analytical frame allows us to view the issue through the lens of philosophical models such as deontology, consequentialism, contractualism, and natural law. It provides us wit guidelines or norms for actions and consequences.

An important part of any discussion of discrimination is rights. Rights, as defined through a deontological frame, can be defined as inviolable. From this view many believe hiring discrimination based upon faith is a prima facie violation of this principle “All are created equal & endowed with inalienable rights.” Employment discrimination limits equal access to opportunity and success. Therefore, you could argue that poor people on average die earlier (life), lack of finances limits options (liberty), and a lack of money inhibits pursuit of happiness. The Kantian argument states that discrimination is wrong because it violates a person’s basic moral rights. Every individual has a right to be treated as an “end” not merely as a “means”. Discrimination treats people as means to whatever ends the discrimination is supposed to serve, and not as ends.3

The argument of rights plays to both sides. The White House paper argues that in a free society, a wide variety of organizations-environmental organizations, feminist groups, unions-are left free to select staff who share their core commitments and who agree with their agenda. This right does not disappear if governments choose to request these private organizations to perform some desired tasks. Planned Parenthood, for example, does not lose its right not to hire pro-life staff simply because it has a government contract. It is precisely the denial of this right to religious organizations that would amount to intolerant discrimination instead of the promotion of a free and open society.

With the onset of Enlightenment philosophy we gained the insights of utilitarian thinkers like Hobbes and Locke. Unlike utilitarian Jeremy Bentham, who argued for the greatest good for the greatest number, these great minds were advocates of individual utility and self-interest. They argued that the ability of man to weigh the costs and benefits of a decision and select that which maximizes their utility is of utmost importance. However, they both agreed that this ability of man must be checked. Total self-interest in society was dangerous.4

Hobbes, in particular, believed that the ultimate check against the corruption of self-interest was the development of a social contract. Through this contract citizens traded some of their freedoms and rights in return for an orderly and governed society. Charitable Choice and President Bush’s Faith Based Initiative represents a social contract. In this contract, citizens surrender a portion of their rights separating church and state, for the improved provision of public services and entitlements. In this particular case, citizens are sacrificing their right to equal and fair hiring practices in return for improved social service provision.

Economics – This frame looks at the ability of the issue to correct market failures, satisfy utility, or account for cost benefit. It is modeled around modern economic theory.

From a Utilitarian argument, religious hiring discrimination is simply wrong because it is economically inefficient. By this argument we can state that general welfare and social productivity is best served by hiring persons based upon merit. A utilitarian would argue that maximum efficiency will best be achieved by hiring that person which posses the best skill set and temperament suited for the job assignment. Utilizing any bias – such as religion – as grounds for not hiring someone will surely lead to possibly missing the best prospect, thereby lowering efficiency.

In general, job discrimination or employment preference has a cost, not only to those discriminated against and to society, but also to the person or institution that is discriminating. For example, an employer forgoes hiring some needed workers or interviews more applicants in order to get the number of qualified workers required, or perhaps offers higher wages in order to attract a larger pool of applicants than necessary if hiring on merit alone.

However, there is a flip side. As the White House paper discusses, Faith Based Organizations may be best served by those sharing their beliefs. This objection is based on the fact that there is more to general welfare than economic efficiency. This argument assumes that if these groups are not allowed to discriminate they may be forced to pass over a like-minded talented individual in exchange for a slightly more talented or qualified individual that may or may not share their beliefs.

Law – This framework analyzes the standards, measures, and prescriptions deemed necessary by law and contract. This frame is a leading force in the United States political and social environment and therefore has particular consequence.

The various legal approaches cited in the White House document include Charitable Choice initiatives–such as Temporary Assistance to Needy Families and Community Services Block Grant programs–that allow faith-based groups to hire according to their religious beliefs and still receive federal money. It also cites cases where federal assistance programs are subject to provisions in addition to the Civil Rights Act, which allows faith-based groups to hire employees who agree with their religious beliefs. In some of those cases, faith-based groups have forfeited that hiring restriction in order to receive government funding. 5

The specific law dealing with this issue, Title VII of the federal Civil Rights Act, is problematic because it conflicts with other federal laws. This brings out both arguments. For the White house, it allows for a discrimination of faith based organizations. It gives proof of this stemming from the 1972 ruling that allowed for discrimination in all positions of faith based organizations and in 1987 the Supreme Court upheld this protection.6

“A secular group that receives government money is currently free to hire based on its ideology and mission, Allowing religious groups to consider faith in hiring when they receive government funds simply levels the playing field–by making sure that, when it comes to serving impoverished Americans, faith-based groups are as welcome at the government’s table as nonreligious ones.” 7

The information they are provided is confusing and misleading regarding their rights and abilities concerning Title VII and Charitable Choice. On the other side, it illustrates need for clarification. Congress must clarify the law and declare in no uncertain terms that a faith-based institution must abide by all federal anti-discrimination laws, including those applicable to equal opportunity employment.

The following outlines two of the more substantive arguments against this discrimination. The first issue is the preemption of state and local civil rights laws. The 1996 bill and H.R. 7 provide nearly identical provision. The problems will arise when state and local laws, including those protecting against discrimination based on sexual orientation, become overridden by the Federal law. Although this is a federal mandate, much of the funding is appropriated to agencies at the state level. Therefore states will be forced to reconcile this new law with current regulations.

The second fear is that there will be a rash of lawsuits against states and state agencies. The 1996 provisions authorize lawsuits against city, county and state governments and their officials if faith based organizations believe that they were denied funding opportunities because of their “religious character.” Here we see an impossible situation. Whether the state funds the faith based group or not, they stand to see litigation from either side.8

Corruption – This section plainly deals with the misuse of resources and public and private for individual or private gain.

The debate surrounding the preemption of state and local law gained national attention when a Washington Post article reported that the White House had a commitment to use its regulatory process to preempt state and local laws that prohibit discrimination against gays in exchange for the Salvation Army’s endorsement and promotion of the faith-based bill.9 The memo reported it would be easier to preempt state and local laws through the regulatory process as opposed to working through the legislative process.

Since the release of those documents and subsequent inquiry, the Bush administration has pulled that portion of the legislation and stated that it will no longer advance that process. However, this example highlights the enormous possibility for corruption when powers such as discrimination are legislated.

Organization and Management – This section focuses on how things get done. What are the process and methods by which the end result is accomplished?

In January of 2001, President George W. Bush, America’s first President with an MBA, was inaugurated. Within six months, the new administration released the President’s Management Agenda (PMA), which very specifically addresses the most troubling issues facing federal government. Contained within this agenda is a specific reform objective, The Faith-Based and Community Initiative. This initiative outlines general reform, centered around existing legislation (Charitable Choice), designed to encourage and expand the cooperation and funding flow between the federal government and faith-based organizations through the newly created White House Office for Faith-Based and Community Initiatives.10

Although the President’s Management Agenda does use a “mixed bag” of organization and management tools, including Total Quality Management, Benchmarking, and Performance Management, the changes proposed in the Faith-Based and Community Initiative (FCI) seem to follow the ideals of Strategic Planning and Privatization.11 The PMA urges the continued devolution of government and the increased contracting out of functions previously completed by government agencies and workers to faith-based and community organizations. The nation’s religious and government institutions have a history of collaborating for the good of the people, yet until Charitable Choice was passed in 1996; the only faith-oriented organizations that were eligible to receive federal funds were those that kept religion separate from the social service programs they delivered.12

Although both conservatives and liberals have championed the concept of the federal support of faith-based organizations, as seen in the campaign platforms of both Governor Bush and Vice President Gore in the Presidential Election of 2000, few states or faith-based organizations have taken advantage of the relaxed restrictions. As a result, the Presidential Management Agenda has initiated reforms, specifically through strategic planning, to address this underutilized resource.

The ability to enforce the Charitable Choice Act is hindered by two weaknesses. One is simply the inability of the federal government to supply fair and equitable choices to those that would prefer not to receive services from a faith-based organization. At this time, as tax dollars are shrinking, it is not economically feasible to expect that separate but equal programs will continue to be able to be funded in the same area for the same population. How, for example, can government indiscriminately fund an agency to serve a rural area, not realizing the possibility that a significant portion of those served would choose to receive services elsewhere? How will the government fund this other service? The second point is that this legislation and the Faith-Based and Community Initiative do not address the education of the states themselves. A majority of federal funding is funneled through state agencies. If this act is to be enacted fairly across the country, state departments and agencies must be educated on the necessary regulations.

Science and Technology – Investment and protection of developing resources is an important action of the US government. Not only can science and technology serve to better society, it can also be used to analyze existing legislation and proposals.

When analyzing this section, I came to the conclusion that in regards to religious hiring discrimination (funding of faith-based initiatives), there is not a sufficient amount of studies or data. Research must be done to identify the pros and cons of this type of legislation.

Politics – Who gets what, how much do they get, and how did they get it? Politics is about power – who wields it and how.

The framework of Charitable Choice and the hiring discrimination issue has played a role in electoral politics. Liberal and Conservative alike have paraded this issue as they attempt to court voters. President Bush has made this issue a priority, evident by recent legislation and the White House Paper. Democrats have wasted no time in jumping on the civil rights bandwagon in an attempt to delegitimize Bush.

However, the real winner may end up being the federal government. As stated above in the law section, politics (power) is being transferred away from the state and placed within the federal government. State laws regarding discrimination and hiring practices will take a back seat to federal legislation.

Culture, Religion, Demography – This framework looks at the ever changing demographics and cultural aspects of society and how this is affected and effects policy decisions.

Historically, the United States government has actually had a very close relationship with religion. The term “separation” is vague. Until fifty years ago, religion in the classrooms, courtrooms, and government was not uncommon. Many attribute this to the homogeneity of American ideals. Christianity was, and to some extent still is, thought of as the religion of choice for Americans. This allowed policy and law makers the luxury of assuming what would and would not offend any particular citizen. However, demographics today point to a much different and diverse society.

Just as the racial demography of our nation has changed, so has the diversity of our religions. We have seen a significant expansion of non-Protestant, non-Catholic Christian denominations, as well as the rise of non-Christian faiths. In the past century, membership in the Eastern Orthodox Church has grown from 400,000 to nearly 4 million, and the Mormon Church from 200,000 to over 5 million. Major Jewish denominations have more than tripled, while major faiths, such as Islam and Buddhism, have experienced tremendous growth in the last 25 years.13

The danger today lays in the possibility that President Bush and the impedance behind the allowing for religious discrimination is culturally motivated. Are conservatives comfortable with this notion simply because they assume the bulk of the federal funding will go towards similarly minded Christian organizations? Would they vote the same way if Muslim organizations receive an equal or greater share? The possibility of the latter is highly suspect and calls to attention the values utilized in their decision.


Why should these regulations become an issue? Cannot a suitable dichotomy exist within the faith-based organization? Obviously there is a reason for the faith in faith-based charities. These organizations believe that helping people requires more than material support. Whether it is Allah, God, or any other religious figure or notion, any success is ultimately attested to the spiritual. My fear is that, in the end, this collaboration may alter organizations from those that profoundly change people’s lives to those that simply provide expanded government services at the lowest bid.

This discussion, however, illustrated the dangers involved in legalizing religious hiring discrimination for faith-based organizations. Although it is legal under current statute, I believe broadening that statute to include all positions and all jobs (even federally funded ones) presents a real danger. Hundreds of secular faith-based organizations such as World Vision, Habitat for Humanity, and the YMCA would now have the power to hire and fire based upon the beliefs of the employee or applicant. Thousands, perhaps millions of jobs would be at risk. This danger exists not only for the individual, but also for the organization. If, for example, Habitat for Humanity began to hire discriminatorily it could destroy the credibility and broad based support it currently enjoys.