religious discrimination in hiring

Charitable Choice, Religious discrimination in hiring

The Job Training Improvement Act, H.R. 27, passed recently in the House. The bill allows religious organizations that receive federal funding to provide social services to the needy to discriminate on the basis of religion in hiring employees to staff these federally-funded programs. Usually, entities receiving federal money to carry out federal initiatives must adhere to government standards in their hiring and actions. Professors Amar and Brownstein write about the bill in a recent FindLaw column, and decide that it is a clear violation of the Establishment Clause. I'm not sure I agree. And normatively, I don't know that the religious discrimination exempted is so bad. Constitutionally, I am not convinced that, here, government funds would be given for the purpose of religious indoctrinazation; nor do I think that religious considerations for inner-entity hiring is so much a threat to the autonomy of thought protected by the structure of our Constitution (other religious factors, though, are: ie, government funded groups that, with the appearance of government, indoctrinate).

Amar and Brownstein base, correctly, the Constitutional test on O'Connor's opinion for the plurality in Mitchell v. Helms:

That concurrence made clear that, notwithstanding the neutrality of a particular funding program, grants of direct aid simply cannot be used for religious purposes. Indeed, Justice O'Connor says this so many different times, in so many different ways, that her position here cannot seriously be debated; she states that government funds may not be diverted to "religious indoctrination" or "to the advancement of religion," that government resources should not be used to assist "a sectarian school's religious mission" or to "advance the religious missions of the recipient schools," and that government support must not be employed by recipients "to finance religious activities" or "to support their religious objectives."

According to Justice O'Connor, allowing direct aid to be used to finance a religious institution's religious mission -- as distinguished from its secular functions - violates two related but distinct Establishment Clause prohibitions. The first is that government may not, in fact, impermissibly "advance" an organization's religious mission.

The second is that government may not improperly "endorse" religion. As Justice O'Connor pointed out: "[I]f the religious school uses the aid to inculcate religion in its students, it is reasonable to say that the government has communicated a message of endorsement."

Amar and Brownstein find the exeption allowing religion to factor in when hiring staff to support religious objectives:

After all, the purpose of religious indoctrination is to inculcate beliefs. Surely one obvious way for a religious organization to advance that goal is to reward the adoption of approved religious beliefs by providing a job, or to penalize any expressed commitment to other faiths -- or no faith -- by withholding one. Indeed, making employment eligibility dependent on an applicant's religious practices and beliefs may be a more effective (and more coercive) way for an institution to advance its religious mission than simply teaching, or proselytizing to, people about the organization's religion.

It is there I disagree. Their imagined scenario, of countless people adopting religious belief in order to get a job with a religious charity, is, quite simply, improbable. It overestimates the market power of charities and seems to vastly underestimate the real functioning of religious belief. While we might imagine some disingenuous cloaking of religious belief, it would be 1) rare, and 2) unrelated to the appearance of government action.

The appearance of government action with which we need to be concerned is the religous group's behavious while acting as a charity. If the group indoctrinates, the government, by providing it money, violates the first amendment. If the group accepts government funds and behaves, because of the appearance of government action, under the dictates of the Constitution, then no Constitutional problem is raised.

The difference is between inner and outer actions. My view here is very much informed by O'Connor's endorsement and Kennedy's coercion tests. Until I see evidence that charities' religious characteristics affect religious motivation, is is difficult to accept what Amar and Browstein take as a given.

All of this, anyway, is to relay some of my acceptance of religious groups receiving government funding. There is not much good reason to exclude these groups, and a great deal of sense in embracing them, to the extent they want to work under the restrictions of government action.

Where I am less certain is the use and evocation of their religious beliefs within that work. I am not ready to totally deny it; but am of course not ever going to fully allow actions that approach government-paid missions.