08/28/2015 05:03 pm ET Updated Aug 28, 2016

Do Religious Organizations Receiving Federal Funds Have a Right to Use Religious Tests in Hiring?

Last week 130 religious, education, civil rights, labor, LGBT, women's, and health organizations wrote a letter to the President to complain about a 2007 Office of Legal Counsel opinion (see here) that a religious organization (World Vision, Inc.) providing secular services to guests on a non-discriminatory basis with the assistance of Federal funds had the right under the Religious Freedom Restoration Act to restrict its hiring to those who share the religion of the religious organization. See here. The 130 complained that the "broad" ruling constituted a "blanket override of a statutory non-discrimination provision," and argued that the government's interest in preventing religious discrimination is compelling. They worry that the ruling might support discrimination against LGBT workers or could be used to deny health services to undocumented children.

To be sure, preventing discrimination on the basis of religion should ordinarily be considered a compelling government interest. If the Sierra Club discriminates on the basis of religion in its employment policies, the discrimination is indefensible. On the other hand, just as the Sierra Club can restrict its staff hiring to those who agree with its ideology, so a religious organization can reasonably restrict its hiring to those who agree with its ideology. The prohibition against religious discrimination is directed against the use of irrelevant and harmful criteria in hiring. The interest in preventing religious organizations from hiring in a way that promotes a religious community is not compelling.

The claim that the Counsel opinion was a blanket override and unreasonably broad is simply mistaken. The opinion carefully analyzed the individual context in which an exemption was sought. Counsel recognized that religion-based hiring could be a factor in determining that federal funds were inadmissibly being used for evangelization or religious training, but it found that the aid being dispensed to the poor was non-religious and not accompanied by any efforts to evangelize. Counsel also observed that the hiring policy was of long-standing and not newly developed in reaction to a form of religious prejudice. Moreover, Counsel found it significant that the hiring policy focused on employing people of the same faith rather than selectively excluding people of different faiths.

Of course, church-state concerns are implicated when government uses religious organizations to dispense aid. But if government tells a religious organization that it will give it aid money to help the poor, if, but only if, it becomes less wedded to its faith in its hiring practices, it is using a carrot to interfere with religious autonomy. And restricting aid in support of the poor to non-religious organizations would be foolish. The federal government has helped the poor for decades by providing quite substantial funds to Catholic Charities and other religious organizations.

I am not claiming that the autonomy or religious organizations should be absolute. The federal government need not provide funds to religious organizations that even for religious reasons discriminate on the basis of race, sex, sexual orientation, or disability with respect to employees or that refuse to make their services open to the public served by the federal program. And the federal government should have no role in promoting evangelizing. That said, I see nothing in Counsel's ruling supporting the view that preventing discrimination against LGBT employees is anything other than compelling. Nor can it be taken to support the morally twisted view that health services could be denied to undocumented children on religious grounds.

In the end, I think the letter of the 130 organizations mischaracterizes the ruling and reasoning of the memorandum issued by the Office of Legal Counsel. At the same time, I cannot subscribe to Notre Dame Law Professor Rick Garnett's observation about the letter of the 130 organizations, "What's really going on here, of course, is troubling . . . . In the long tradition of groups like Americans United, the signatories to this letter oppose Catholic schools and other institutions -- they object to the content of what those schools and other institutions teach and do -- and so they are hoping to roll back the principle underlying the Supreme Court's acceptance of school-voucher programs." See here.

But the letter in question at no point refers to religious instruction, worship, or proselytizing. The Opinion does refer to all three, but only to stress that World Vision, Inc. was not using federal funds for any of these purposes. The complaint of the letter was discrimination in an organization using federal funds, without any complaint about what the funds were used for. If this letter was calculated to unearth school vouchers, it was utterly inept. Moreover, given the current composition of the Court, the majority is unlikely to engage in the kind of rich analysis that ought to be triggered by the issue of governmental funds to support religious schools. Professor Garnett might be right that most of the organizations that signed the letter oppose school vouchers. But that is not what is "really going on here," and, for better or worse, he need not be troubled.

So this is a case in my view in which 103 organizations criticize an Office of Legal Counsel opinion for positions it does not take and a supporter of the opinion criticizes the organizations for a strategy that is not to be found in their letter and was not at issue in the case.

It may be raining on some parades. But word to the wise: the sky is not falling.