The Magazine

Faith-Based Confusion

Will 'charitable choice' survive the Obama Justice Department?

Mar 2, 2009, Vol. 14, No. 23 • By JOSEPH LOCONTE
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On February 5 President Obama announced the creation of a White House Office of Faith-Based and Neighborhood Partnerships, a revamped version of the Bush administration's contested program to expand the reach of religious charities fighting poverty and other social problems. Like George Bush, Barack Obama described the contribution of faith-based organizations as "critical" to meeting human needs. He praised groups that demonstrate a "living, breathing, active faith." And he promised to "empower" them with more federal funding. Unlike the Bush initiative, however, Obama's plan threatens either to discriminate against religious providers or to fatally compromise their religious identity.

The Bush effort was built on the 1996 "charitable choice" legislation, which made it unlawful for federal agencies offering antipoverty grants to exclude faith-based organizations from receiving funding because of their religious character. That law guarantees participating groups control over "the definition, development, practice, and expression" of their religious beliefs. It also allows them to consider religious commitment in employment decisions--the same right enjoyed by churches, synagogues, mosques, and other houses of worship.

The Obama White House--joined by the Democratic party leadership and a coalition of left-wing activists--rejects both the spirit and letter of the law. Candidate Obama, in the "guiding principles" for "partnering with communities of faith" that his campaign published last summer, declared that religious organizations receiving federal funds "cannot discriminate" in hiring for religious reasons. Under this view, faith-based groups could be compelled to employ individuals who reject their religious tenets. The Coalition Against Religious Discrimination, which includes organizations such as the Human Rights Campaign, is especially anxious about gays and lesbians denied jobs by religious employers who uphold traditional views of marriage.

Whether President Obama will prod Congress to repeal or amend the hiring protection of the charitable choice law is unclear. Joshua DuBois, who worked on the Obama campaign and now heads the faith office, said the Justice Department will review the issue on "a case by case basis." This didn't satisfy the New York Times, which last week ran an editorial scolding the administration for not immediately overturning the hiring protection by executive order. Plainly, the institutional autonomy of religious organizations--at least those interfacing with government--is now at risk.

The White House and its allies are quick to cite Title VII of the 1964 Civil Rights Act, which banned employment discrimination on the basis of race, sex, national origin, or religion. They are slower to admit, though, that Title VII carved out a clear exemption for houses of worship. Critics of charitable choice insist that their grievance is not with the mission or beliefs of religious entities, but rather with "government-funded discrimination" in employment.

Yet why should a charity's acceptance of taxpayer support to alleviate poverty negate its right to freedom of association? Defenders of the law argue that if Planned Parenthood--which receives about $336 million in government grants and contracts--were denied the right to exclude pro-life Catholics from employment, its lawyers would be mobilizing like locusts. "Faith-based organizations can hardly be expected to sustain their religious vision without the ability to employ individuals who share the tenets of the faith," explains Carl Esbeck, a University of Missouri law professor who helped draft charitable choice.

A bipartisan group of lawmakers initially agreed. Passed as part of the 1996 welfare reform legislation, charitable choice was approved for four additional programs during the Clinton administration, always including a group's right to hire co-religionists. President Bush extended the statutory protections by executive order to all federal antipoverty spending--involving billions of dollars distributed through at least eight federal agencies to thousands of faith-based providers.