Yesterday, 57 religious and civil liberties groups delivered themselves of a letter to Attorney General Holder asking that the Justice Department dump the 2007 memo from the Bush justice department’s Office of Legal Counsel (OLC) that justifies religious discrimination in hiring, based on the 1993 Religious Freedom Restoration Act (RFRA). Many of the signatories were part of the huge coalition that got RFRA passed. They claim that the act was not meant to trump civil rights laws such as those prohibiting religious discrimination in hiring. The Bush position was that yes, RFRA does protect such discrimination–and therefore faith-based organizations are permitted to hire their own kind with government grants.
Conspicuous by its absence among the signatories (well, conspicuous to those of us who care about such things) is the American Jewish Congress, whose legal eagle, Marc Stern, has long been a major player in national church-state legal affairs. Today, Stern wrote his own letter (see after jump), also asking AG Holder to withdraw the memo but scaling back the absolutist claims of the collective effort. RFRA, according to him, does indeed apply to civil rights laws–but requires that there be a compelling state interest in trumping them. The Bush memo did no such “compelling interest” analysis.
Why should any of this this matter to those not interested in the niceties of anti-discrimination and religious liberty law?
First, the collective letter is evidence that the community of established religious lobbyists–as opposed to the newcomers who have been getting most of the ink lately–has become exasperated with the Obama administration’s foot-dragging on the hiring issue. The fact that it’s more or less a no-win situation for the administration doesn’t matter. It’s Bush rules unless OLC decides otherwise–and thus far it hasn’t.
Second, Stern’s dissent, far from being merely technical, signals the difference between a hard-line separationist position and the possibility of compromise. What the collective letter declines to recognize is that there are times when religious liberty interests may trump civil rights law. To take a couple of simple examples, most of us would agree that a local Catholic Charities organization should be able to have a policy of hiring a Catholic as its executive director. Does that mean that no government funds can be permitted to defray the executive director’s salary? I hope not. On the other hand, should the same organization be permitted to discriminate religiously in hiring a janitor? Again, I hope not.
On the faith-based hiring issue, both sides are dug in very deep, even though in private they will acknowledge that law and practice are more complicated than their slogans indicate. As I suggested the other day, this would be a good issue for the commongroundniks to show their stuff. But maybe it’s no-win for them too.
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of the General Counsel & Acting Co-Executive Director
(212) 360-1545 • Fax (212) 758-1633 • [email protected]
September 18, 2009
Honorable Eric Holder
Attorney General of the United States
United States Department of Justice
Dear General Holder:
I am writing both to
echo the call of a wide range of organizations in a letter to you dated
September 17, 2009 urging the withdrawal of the June 29, 2007 Memorandum of the
Office of Legal Council (OLC Memo) concerning religious employment
discrimination by faith-based providers receiving government financial
assistance, and to put our objections on a somewhat different footing than the earlier
The Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb (RFRA), which the OLC Memo interprets,
applies by its terms to all federal statues. It requires government to mitigate
“substantial burdens” on religious practice, unless it has a “compelling
interest” in not doing so.
The OLC Memo is quite
correct to apply RFRA’s test to civil rights statutes banning employment or
other discrimination. The memo, however, falls short in two important respects.
First, it concludes without substantial discussion that a withholding of
discretionary funding because a potential recipient won’t comply with a
condition of funding constitutes a burden. The question of whether conditioning
government funding on a waiver of what would otherwise be constitutionally or
statutorily protected activity is a complicated one, one on which the law
speaks with more than a single voice. Compare Rust v. Sullivan, 500 U.S.
173 (1991) with Velazquez v. LSC, 531
533 (2001). These cases, and their progeny, are not discussed in the memo. Burden
is a threshold issue under RFRA, and the OLC’s failure to address it carefully
Second, even more
disturbing, is the entire absence of any discussion in the memo of a compelling
interest in enforcing civil rights laws in the funding context even in the face
of a burden on religious liberty. This is doubly perplexing. Government
officials should consider in every case whether a statute enacted by the
legislature reflects a truly compelling interest. Many will not, but respect for
the legislative process requires that the analysis be undertaken. This analysis
is doubly important where the statute in question is a civil rights statute, reflecting
the national commitment to equality which is as important as the national
commitment to religious liberty. The absence of any discussion of possible
compelling interest in not funding discrimination, as opposed to not regulating
it–which will likely vary from case to case–is a fatal flaw in the memo.
We do not assert, as
some do, that the civil rights laws always provide a compelling reason to
burden religious liberty. But they often will, especially in the funding
context. That the OLC wholesale failed to consider that possibility is quite
surprising. It is a misrepresentation of RFRA to omit such an analysis.
Thank you for your
consideration of our views.
Marc D. Stern