Bush Aides Say Religious Hiring Doesn’t Bar Aid
By CHARLIE SAVAGE
Published: October 17, 2008
WASHINGTON — In a newly disclosed legal memorandum, the Bush administration says it can bypass laws that forbid giving taxpayer money to religious groups that hire only staff members who share their faith.
The administration, which has sought to lower barriers between church and state through its religion-based initiative offices, made the claim in a 2007 Justice Department memorandum from the Office of Legal Counsel. It was quietly posted on the department’s Web site this week.
The statutes for some grant programs do not impose antidiscrimination conditions on their financing, and the administration had previously allowed such programs to give taxpayer money to groups that hire only people of a particular religion.
But the memorandum goes further, drawing a sweeping conclusion that even federal programs subject to antidiscrimination laws can give money to groups that discriminate.
The document signed off on a $1.5 million grant to World Vision, a group that hires only Christians, for salaries of staff members running a program that helps “at-risk youth” avoid gangs. The grant was from a Justice Department program created by a statute that forbids discriminatory hiring for the positions it is financing.
But the memorandum said the government could bypass those provisions because of the 1993 Religious Freedom Restoration Act. It sometimes permits exceptions to a federal law if obeying it would impose a “substantial burden” on people’s ability to freely exercise their religion. The opinion concluded that requiring World Vision to hire non-Christians as a condition of the grant would create such a burden.
But several law professors who specialize in religious issues called the argument legally dubious. Ira C. Lupu, a co-director of the Project on Law and Religious Institutions at George Washington University Law School, said the opinion’s reasoning was “a very big stretch.”
And Marty Lederman, a Georgetown University law professor who worked in the Office of Legal Counsel from 1994 to 2002, said the memorandum’s reasoning was incompatible with Supreme Court precedent. He pointed to a 2004 case, in which the court said government scholarships that could not be used to study religion did not substantially burden recipients’ right to practice their religion because they could still study theology with their own money.
In the same way, Mr. Lederman said, World Vision is free to have an antigang program that hires by faith without using taxpayer money.
The Justice Department “stands strongly behind the opinion, which is narrowly drawn and carefully reasoned,” Erik Ablin, an agency spokesman, said in an e-mail message. “Most of the criticisms that have been outlined against the opinion are thoroughly addressed in the opinion itself. Each of them lacks merit.”
Carl H. Esbeck, a University of Missouri law professor and architect of the religion-based initiative movement, also defended the opinion, saying the Religious Freedom Restoration Act compelled the department’s conclusion. “I understand that liberal law professors don’t like this,” he said. Why, he asked, should World Vision “be denied the opportunity that everyone else has to compete for funding simply because of their religion?”
The Office of Legal Counsel issues interpretations of the law that are binding on the executive branch and often rules on matters that are difficult to get before a court. Under the Bush administration, it has drawn sharp criticism for issuing opinions that provide legal cover for controversial policies preferred by administration officials.
In 2002, for example, the office secretly signed off on the use of harsh interrogation techniques despite a statute and treaties forbidding torture. The memorandum’s legal reasoning was strongly criticized by legal scholars after it was leaked to the public, and the Justice Department rescinded it.
Christopher E. Anders, senior legislative counsel to the American Civil Liberties Union, said he was alarmed by the 2007 memorandum’s conclusion that the government does not have a “compelling interest” in enforcing a federal civil rights statute.
“It’s really the church-state equivalent of the torture memos,” Mr. Anders said. “It takes a view of the Religious Freedom Restoration Act that allows religious organizations to get federal funds without complying with anything.”
Professor Lupu did not go that far, but said the opinion made “an aggressive reading of ‘substantial burden’ in a way that is not consistent with what courts and other agencies have done in the past, and it is designed to serve the president’s political agenda.”
Mr. Bush, whose strongest political base has been religious conservatives, has made lowering barriers to government financing of such groups a priority.
In January 2001, Mr. Bush’s first two executive orders created an Office of Faith-Based and Community Initiatives in the White House and in five federal agencies, telling them to ease the way for church groups to win grants for social work, like homeless shelters.
Mr. Bush also asked Congress to make it legal for religious groups to win grants even if they discriminate against people of other faiths when hiring for taxpayer-financed posts. He said it was not fair to force them to give up their identities in order to compete for grants. When Congress failed to pass such a bill, Mr. Bush issued an executive order that made the changes on his own for most federal programs.
But statutes trump executive orders, and a few grant programs — including the one involving World Vision — had independent antidiscrimination requirements.
Since then, some social conservatives have advanced the view that the Religious Freedom Restoration Act might be used to nullify such restrictions.
In 2003, Mr. Lupu said, the Department of Health and Human Services issued a regulation for substance abuse and mental health program grants that advanced such a view, and in 2007 — several months after the Office of Legal Counsel memo was secretly completed — the Justice Department quietly changed its grant application rules to reflect that view.
But the release of the 25-page opinion this week is the “most elaborate and carefully reasoned effort by the Bush administration to justify its conclusion” that such grant conditions are legally obsolete, Mr. Lupu said.
The next administration would be free to rescind the memorandum. Both major party nominees for president, Senators John McCain and Barack Obama, have said they would continue allowing religion-based groups to participate in federal grant programs. But Mr. Obama has also said taxpayer money should not go to programs that discriminate by faith in hiring, a condition Mr. McCain has not embraced.
Barry Lynn, president of Americans United for Separation of Church and State, said he hoped the opinion would not stand. “The Bush administration has been trying to allow religious recipients of tax dollars to discriminate in hiring,” he said. “No Congress intended that. The Constitution does not permit it. And this memo is just one more example of this administration subverting Congressional and constitutional intent in pursuit of a forbidden goal: discrimination in hiring.”
A version of this article appeared in print on October 18, 2008, on page A1 of the New York edition.
Eppylover Opinion ~
In short, McCain supports religious prejudice in hiring, and Obama does not ~ but, let me add, I don't think Barack is any kind of jesus, like some people seem to look to him as being. He unfortunately also supports giving government money to tax-exempt religious groups ~ repeat, they don't PAY taxes! That has never made sense to me. Whatever happened to "render unto Caesar"...?
RELIGIONS SHOULD NOT BE TAX-EXEMPT IN THE FIRST PLACE.
There are other things about Obama that I don't like at all ~ such as his support of so-called gun "rights" ~ he opposes gay marriage (although "civil unions" are okay by him) ~ and, of course, the fact that he's christian, or embraces a religion at all makes me squicky ~ even though Bill Maher has an inkling Barack's too smart and/or logical to actually be a theist, and Maher thinks/hopes Obama is "lying" about it because ~ well, if he were publically agnostic or atheist, he'd never have made it to dogcatcher, much less senator.
Even the fact that he's being worshipped as a goddamn savior scares me. Just think about that for a minute. What is wrong with that picture, folks?
And a "platform" is just a wish list. Once somebody becomes president, their wishes cannot automatically come true, because there are just too many other people and pressures pulling in other directions. The U.S. President is not all-powerful ~ that would make him a dictator, remember? All he can promise is that he will TRY to make these wishes happen. Many, many times he CANNOT. And you know, even with the best-looking candidates many, many times these promises are only devious ploys to get elected ~ they HAVE to be.
Obama seems to be a good man. I can say no more. The same as I am with Eppy, I like his image, but...
Okay, I hear even the most cynical of y'all saying he's the lesser of two evils. Well, that's what EVERY election has come down to, hasn't it? It's been all calculated out behind our backs for us ignorant cattle, and we are being manipulated, as always. So, sorry, I'm not one of those defensive lesser-of-two-evils types, screw that. Just can't force myself to participate in that which I cannot justify. For myself, that is. Yeah, even with all my previous anti-PalinMcCain posts, I still stand by the George Carlin theory... However, I am NOT promoting it for YOU.
To be honest, I AM kinda excited to anticipate that our first black prez might have the balls to open some freakin' awesome cans of whup-ass. LOL