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The National Association of Evangelicals, under the imprimatur of its legal counsel Carl Esbeck, is on board with OFANP, and as such, its press release is worth a careful look in re: the hiring issue. Bear in mind that Esbeck, a law professor at the University of Missouri, is one of the progenitors of Charitable Choice–the source of all the federal government’s faith-based initiatives. The first incarnation came in the form of a provision to the 1996 welfare reform bill associated with the name of John Ashcroft, who as senator from the Show-Me State had Esbeck as a constituent.

First, there’s a little blowing of smoke:

Great advances were made during the Bush years in clarifying the
requirements of the first amendment and church-state relations. It is
now clear that so-called “pervasively sectarian” FBOs are not
disqualified from receiving grant funding. When awarding a grant, the
right question is not, “Who you are, but can you deliver the program
services?”  It is also clear that FBOs do not
waive their religious-hiring exemption in Title VII of the ’64 Civil
Rights Act when they are the recipient of a social-service grant.

Strictly speaking, this is so. FBOs (Faith-Based Organizations) do not waive their Title VII religious-hiring exemption when they receive a social-service grant. Why should they? That exemption applies to hiring for purely religious purposes. The unresolved question is whether that exemption applies to hiring done with the federal money provided in the grant. This is kind of acknowledged in the next paragraph, which begins:

What are the tough legal questions that still remain unanswered, and on
which will hinge the participation of many evangelicals as well as
other conservative Christians and orthodox Jews?  Most
important is whether FBOs may continue to employ those of like-minded
faith. For years that has been the default position today under most
federal social-service programs, and Bush’s Department of Justice
reinforced that position with the Religious Freedom Restoration Act
signed into law during the President Clinton years.  Following President Obama’s actions last Thursday, that freedom is still in place.

“Continue to employ”? Well, OK. But let’s be clear that what this means is whether FBOs can continue to bar those who don’t share their religious views (as well as non-heterosexuals) from applying to work for the federally funded programs they are running. As Ira Lupu points out in his account of the ins-and-outs of this issue, the Bush DOJ invoked RFRA to get around specific statutory prohibitions against such faith-based hiring. And for the life of me, I don’t see how that statutory protection of religious free exercise can be construed as giving FOBs a right to do so. Why? Because religious institutions have no more constitutional right to government grants than they do to tax exemptions. So how can denying them a grant because of their hiring practices unconstitutionally restrict their religious free exercise?

What the NAE statement really makes clear is how pusillanimous it is for OFANP to propose to address the hiring question on a case-by-case basis. By default, the Obama administration is keeping the Bush policy in place. Is that its principled position or not?