Discrimination in Religious Hiring: Lily, Response 1

Discrimination in Religious Hiring: Lily, Response 1

Andrew makes some important and interesting points about whether it is appropriate to allow groups receiving government funds to discriminate in hiring on the basis of religion. Thanks for starting up this discussion!

One thing I always used to wonder about with this debate, is why, from a pragmatic standpoint, faith-based organizations would be willing to accept government money at all, as they have been doing for several years under the current administration. Given the current state of Supreme Court jurisprudence, it always seemed like they'd be taking an awful risk in doing so. The worst case scenario, from their perspective, is for them to go ahead and accept some government funding, refuse to hire someone because s/he doesn't practice X religion, and then get slapped with a huge lawsuit in federal court. Even if the plaintiff ultimately doesn't prevail, the faith-based institution could nonetheless be catapulted into the media spotlight (not necessarily something it'd want) and also be forced to rack up enormous legal fees, which could easily outstrip the original amount of the government funding. Seems like these faith-based institutions would be better advised to forego the government funding, eliminate the risk factor, and proceed with their hiring as they please.

The bill that Andrew refers to, purports to eliminate this risk: and Andrew, it sounds like you think it would survive a Supreme Court challenge. I'm not sure about this point. I'm intrigued by Messrs. Amar and Brownstein's list of ways Justice O'Connor has phrased the prohibition against funding that will advance "religious purposes." Specifically, it's interesting that, of all these phrases, the debate in Andrew's post centers around the phrase "indoctrination" (i.e. the disagreement over whether discriminatory hiring practices are a form of indoctrination). This seems a little odd to me, because I would think that many religious institutions would characterize "indoctrination" as a subset of their mission, rather than a synonym for it. Religious institutions have a lot of purposes besides the evangelical mission of converting other people to their persuasion. The importance of indoctrination and evangelism in an institution's mission varies widely from group to group.

So, as to whether discriminatory hiring furthers the purpose of indoctrination, I agree completely with Andrew that it's absurd to argue that mass numbers of people would actually convert to a particular religion for the sole purpose of procuring employment with an institution espousing that religion. However, using religious belief as a hiring criterion serves other religious purposes, besides indoctrination of the person being hired: it helps to create and perpetuate an environment that is supportive of students'/clients' own spiritual growth and exploration of that particular faith; it allows faculty or staff to address problems or challenges from a common standpoint; and/or it simply contributes to the institution's identity as a religious institution.

So, because I would posit that any of these purposes would come within Justice O'Connor's concept of "furthering religious purposes/missions/activities," I am not sure that the Job Training Improvement Act will, in fact, survive Constitutional scrutiny. Then religious institutions would be back to asking themselves the same old question: should we accept government funding and risk a lawsuit?