Indiana's Religion Bill Is Partially Fixed -- But There's More Work to Be Done

04/07/2015 05:01 pm ET | Updated Jun 07, 2015

The nation spent much of last week discussing Indiana's so-called "religious freedom" law, and everybody had an opinion. Apple's Tim Cook, Ashton Kutcher, MC Hammer and magician/comedian Penn Jillette offered widely reported thoughts, among others. And, of course, so did presidential aspirants. Jeb Bush supported it before he opposed it. Ted Cruz and Mike Huckabee embraced it fully.

I was heartened to see Hilary Clinton's tweet: "Sad this new Indiana law can happen in America today. We shouldn't discriminate against ppl bc of who they love #LGBT." Days later she similarly urged Arkansas Gov. Asa Hutchison to veto an even worse measure.

And, I was equally pleased to that President Barack Obama's press spokesman Josh Ernest was not happy either and on behalf of his boss called it an "open ended piece of legislation that could reasonably be used to discriminate against somebody because of who they love." He added that it "flies in the face of the kinds of values that people all over the country strongly support."

This was a strong and welcomed statement from the Obama Administration. I just wish that the president would apply this sentiment to the "religious freedom" provisions maintained by his own administration. Indeed, for the last six years, it has somehow failed to correct the blatant, religiously-motivated hiring discrimination built into the "faith based initiative," which the administration inherited from President George W. Bush.

The Faith-Based Initiative was part of Bush's "compassionate conservatism" that was designed to give a vast quantity of tax dollars to religious institutions that provided services like sheltering the homeless and feeding the hungry. It had many problems, but none quite as pernicious as its grant of the right to religious institutions to give hiring preferences in jobs paid for by public dollars to persons who shared the grantee or contractor's religious beliefs.

I remember listening to "church going Catholics" at a Cleveland focus group all telling the moderator that such a standard "could not possibly be legal." Of course, they were correct morally and constitutionally -- but the Bush action was indeed happening.

Why would any group hiring for an ostensibly "secular" job (even Bush claimed groups could not use funds to proselytize) need to hire on the basis of religion? Surely, cooking, cleaning, bed-making and typing are not done differently based on theological considerations. Should we be comfortable giving taxpayer funds to a group like Worldvision that refuses to hire any non-Trinitarian Christians even in predominantly Muslim or Hindu countries? Is it really acceptable to allow a religious charity in Salt Lake City to bar Jewish applicants? If the answer is "no" then the only argument left is one that boils down to "comfort level." We like to associate and work and eat with people that are "just like us." Sound familiar? This is the same ignominious standard that was used for decades to justify racial bias in services at places of lodging and lunch counters against African Americans and other persons of color. This utterly reprehensible argument in regard to race has now been relegated to the scrapheap of bad ideas.

President Bush also amended a long-standing executive order banning federal discrimination in hiring under government contracts, a provision originally created in 1941 by President Franklin D. Roosevelt. Bush altered it to create a broad "religious exemption" so that religious group could take public funds yet still restrict hiring to members of their own faith or people who subscribe to specific theological views.

Where has the current administration gone with all this? Painfully, not very far. In the summer of 2014, President Obama did re-write the executive order on discrimination to specifically prohibit any discriminatory treatment of LGBT persons by grant and contract recipients. This was a big and important step forward, but it didn't solve the problem of allowing discriminatory selection based on the desire to hire co-religionists only or to use theological standards to be a justification for hiring on the basis of religious views about gender roles or even race. It seems that the administration acknowledged that at least one form of discrimination was wrong -- but continued to allow other forms.

President Obama has also failed to fix the hiring discrimination problem in other areas. In the summer of 2007, the Bush Office of Legal Counsel in the Department of Justice issued a document that specifically justified any religiously-motivated discrimination under the federal Religious Freedom Restoration Act (RFRA), even in regard to statutes like Head Start, AmeriCorps and the Workforce Investment Act that contained specifically statutory prohibitions on such discriminatory conduct. This memo erroneously alleged that RFRA could be "reasonably construed" to create a categorical religious exemption in all federal programs. This is not "reasonable"; this was never what the federal RFRA was about. As one of the people who crafted that bill, I can assure you it would have been unthinkable, much less articulated, that this modest law would have this sweeping implication.

About 90 national organizations have pleaded, with the Administration to review and repeal this OLC memo. No decision has been made to date. This is the time to act. I believe that President Obama and Secretary Clinton were right to be appalled at the awful actions that occurred in Indiana's legislature last week. In one recent poll, close to two-thirds of Americans noted that recipients of federal tax dollars should not be allowed to make hiring decisions based on religious grounds; in another poll, 54 percent noted that the government could and should require religiously affiliated groups receiving government funding to provide healthcare benefits to same-sex partners of employees; while 63 percent of those surveyed believe that religiously-affiliated social service agencies that receive taxpayer funding should not be allowed to use religion to make adoption decisions.

The Bush-era OLC memo should be repealed now. It should not be left to the decision-making of the next president's administration. Making the decision now is the morally responsible thing to do. Plus, it's not a hard thing to do. I'd argue that it's easier than rejecting strange claims by Indiana bakers that they can use their religion to decide who they'll serve.