PRESIDENT BUSH’S PLAN to expand the role of religious charities in providing social services got a boost with the passage of House legislation in July endorsing much of his agenda. But it faces a ferocious battle in the Senate, where Democrats are objecting to provisions allowing faith-based groups to hire only those who share their religious beliefs.
The House legislation would make it unlawful for federal grantors to bar providers from public funding because of their religious character. That could allow religious agencies to participate in programs together worth about $53 billion, ranging from juvenile delinquency to job training. Senator Rick Santorum, a Republican from Pennsylvania, is expected to introduce a bill in a few weeks that will embrace most of the House provisions.
The plan’s supporters want language guaranteeing faith-based organizations control over employment decisions; it is an agency’s staff, they argue, that embodies its mission and values. But Senate Democrat Joseph Lieberman—ostensibly a supporter of the president’s initiative—accuses Republicans of trying to overturn laws banning discrimination in hiring based on sexual orientation. He threatens to write his own legislation, while Senate majority leader Tom Daschle says a vote on the measure may be postponed until next year.
The stakes are indeed high. The president considers his faith-based initiative the crown jewel of his domestic agenda. But his plan might collapse if he approves a bill forcing the nation’s good Samaritans to secularize themselves in exchange for federal money. "The success of the faith-based initiative is on the table," says Greg Baylor of the Christian Legal Society, "and it turns on this issue of religious autonomy."
Democrats, however, might lose by winning. If they abridge the rights of church-based ministries or quash the legislation altogether, they could confirm the perception of their party as a haven for anti-religious activists. Warns Georgia Democrat Zell Miller: "If this bill is defeated, if the Senate Democrats are responsible for stopping it, I think it would go a long way toward turning that perception into reality."
Santorum will model his bill on the 1996 "charitable choice" law, which allows charities receiving federal grants to control the "definition, development, practice and expression" of their religious beliefs. The House bill eased church-state concerns with its carefully crafted protections for people in faith-based programs and prohibitions against government-funded religion. But it stirred a fierce debate by allowing organizations to use religion as a factor for employment.
Federal civil rights legislation—though banning discrimination on many grounds, including race, sex, national origin, and religion—has always carved out exemptions for religious groups. Title VII of the 1964 Civil Rights Act, for example, permits faith-based institutions to use religion as a criterion in hiring. Congress passed, and President Clinton signed, four laws containing this Title VII provision.
John Bridgeland, director of the White House Domestic Policy Council, calls the federal exemption "a protected civil right." To supporters of the president’s plan, from Catholic Charities U.S.A. to the Southern Baptist Convention, it is non-negotiable. Warns Rep. Joe Pitts, another Pennsylvania Republican, who helped guide passage of the House bill: "Anything less than maintaining current civil rights protections for religious employers is really not worth passing."
Opponents say government must not endorse any form of discrimination; religious groups getting public money should play by the same rules as secular providers. And those rules are multiplying rapidly: In recent years, states and localities have passed hundreds of ordinances to ban discrimination in hiring based on sexual orientation—without necessarily exempting religious agencies.
These ordinances are becoming a federal issue because federal grants get mixed in with state and local money, raising questions about which anti-discrimination laws apply. House Republicans saw to it that under their bill, federal law would preempt local anti-discrimination statutes when federal money flowed to faith-based groups. A coalition of congressmen and conservative groups warned the White House in August they would "strongly oppose" a measure without such protection.
Lieberman, joined by numerous civil rights groups, insists this preemption language be dropped. He accuses the Bush administration of being "out of step with the core values of most Americans" by preparing to "throw out fundamental civil rights protections." He’s not likely to back down: In July he introduced the Employment Non-Discrimination Act to ban discrimination in hiring based on sexual orientation. The bill is already under fire for offering insufficient protections to religious organizations.
Indeed, it is beginning to look as though Lieberman and his liberal allies may be the ones drifting from the political mainstream. Members of his own party argue that although Americans frown on discrimination, most view the independence of religious groups as sacrosanct. Democrat Tony Hall, for example, cosponsored the House faith-based bill and fought to keep the employment protection for religious charities. Zell Miller worries that partisan posturing threatens to block inclusion of faith-based organizations in public efforts to help the poor. "It was a good idea when Democrats were proposing it," said Miller in a dear-colleague letter, "and it is still a good idea now that President Bush is proposing it."
Others agree. Former Democratic congressman Andrew Young—a confidant of the Rev. Martin Luther King Jr.—calls the contested civil rights provisions "virtually identical" to those already approved by Democrats. "No force in our society has served more effectively than our nation’s many and varied traditions of faith," he wrote recently in the Wall Street Journal. "They should not be locked out of applying for government funding."
Such criticism hints at a deeper problem for Democrats. Senator Evan Bayh, the Indiana Democrat who currently heads the centrist Democratic Leadership Council, says his colleagues’ indifference to religious concerns is making churchgoers uncomfortable in their party. "Many middle-class Americans wonder if Democrats are condescending, cultural elitists who can’t relate to people like them," he told a recent DLC gathering. "We have a credibility problem when it comes to values."
Bush badly wants a bill to keep his initiative alive, but conservatives say he will have his own credibility problems if he signs legislation that leaves faith-based groups vulnerable to the secular state. Is there a clean compromise in sight?
There is talk of introducing a minimalist version of the charitable choice law, retaining the federal hiring protection for religious organizations but leaving unsettled the issue of local anti-discrimination rules. Forces on both sides will find reasons to dislike it.
Joe Loconte is the William E. Simon fellow in religion and a free society at the Heritage Foundation.