Testimony of Carl H. Esbeck
Isabelle Wade and Paul C. Lyda
Professor of Law
University of Missouri-Columbia

Before the
Subcommittee on Select Education
Committee on Education and the Workforce
April 1, 2003

* My academic title and affiliated institution are given only for purpose of identification. The views expressed here are not necessarily those of the University of Missouri-Columbia.

The attention being given to section 175(c) of the National and Community Service Act (42 U.S.C. § 12635(c)) is but of a piece of a larger fabric, the whole cloth being widely known as the Bush Administration’s Faith-Based and Community Initiative. On the question of religious staffing rights of faith-based grantees, the President has been clear on his position. For example, on April 4, 2002, when appealing for support for faith-based legislation, President Bush said, “people should be allowed to access that money without having to lose their mission or change their mission.” Again, when announcing on December 12, 2002, two new Executive Orders in support of the Faith-Based and Community Initiative, he said, “faith-based programs should not be forced to change their character or compromise their mission.” If President Bush’s goal is to protect the mission integrity of faith-based charities as they reach out to the poor and needy, including the right to choose staff of like-minded faith, then consistency requires that his Administration do likewise by seeking to amend section 175(c).

Religious nonprofit organizations that provide welfare services to the poor and needy have the legal right to staff (hire, promote, and discharge) on a basis that takes into account the organization’s religious beliefs and practices. That right ought not to be lost when an organization becomes a recipient of federal financial assistance.

1. In The Cause of Religious Freedom, Congress Decided to Protect Religious Staffing Rights When It Amended Section 702(a) of Title VII of the Civil Rights Act of 1964.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the bases of race, color, religion, sex, and national origin. The legislation initially applied to employers with 25 or more employees. The law was binding on religious organizations as well, at least insofar as Title VII prohibited employment discrimination on the bases of race, color, sex, and national origin. Religion was different. Pursuant to section 702(a), religious organizations were not subject to charges of religious discrimination brought by employees with religious responsibilities. The 1964 act was amended by the Equal Employment Opportunity Act of 1972, which among other changes increased the coverage of Title VII by making it applicable to employers with 15 or more employees. More importantly, 702(a) was broadened in its scope. With passage of the 1972 act, religious organizations were free of all charges of religious discrimination by any applicant or employee, regardless of whether the nature of the job in question entailed religious responsibilities or tasks.

The 1972 act broadened 702(a) out of a concern that government regulators not be able to interfere with the religious affairs of religious organizations. The congressional sponsors of the 702(a) amendment, Senators Allen and Ervin, couched its purpose in terms of a restraint on government power, thus keeping the desired distance between church and state. Senator Sam Ervin, a Democrat from North Carolina who was widely recognized as an expert on the Constitution, said of his proposal:

[T]he amendment would exempt religious corporations, associations, and societies from the application of this act insofar as the right to employ people of any religion they see fit is concerned. . . .

. . . In other words, this amendment is to take the political hands of Caesar off the institutions of God, where they have no place to be.

For government regulators and, ultimately, the courts to have the power to pry into job descriptions, allocation of job assignments, lines of supervisory authority, and performance reviews at religious institutions, and to sift and sort as to the nature and degree of “religious” character as distinct from “secular” character for any given employment position, invites untoward government involvement with religious questions. If the Establishment Clause deregulates the religious sphere, which it does, then there can be no jurisdiction in the government to determine which of a faith-based organization’s [FBO’s] jobs are “secular enough” to regulate and which are “too religious” to be overseen by government officials.

A later court challenge in Corporation of the Presiding Bishop v. Amos, took up the question of whether 702(a) was a “preference” for religious employers over secular employers. Without a single dissenting vote, the U.S. Supreme Court upheld the 1972 amendment that broadened 702(a). What Congress did by passing 702(a) was to refrain from imposing a regulatory burden on religion, even though the burden was imposed on secular employers similarly situated. And it is elementary that the government does not “make [a] law respecting an establishment of religion” by leaving it alone. As the Supreme Court observed:

A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden “effect” under [the Establishment Clause], it must be fair to say that the government itself has advanced religion through its own activities and influence.

Indeed, to have failed to open up the scope of 702(a) would likely have risked the narrower, pre-1972 version of 702(a) being challenged as inviting excessive entanglement between church and state. The highest court in Maryland has since handed down a ruling much to that effect. The court sustained a constitutional challenge by a religious k-12 school to a county employment nondiscrimination ordinance. The school was sued when it dismissed two teachers because they were not members of the sponsoring church. The ordinance’s accommodation for religious staffing by religious organizations, which was for jobs with “purely religious functions,” was found too narrow, thereby inviting encroachment on the school’s religious autonomy. Similarly, at one time the Federal Communications Commission (FCC) required radio stations owned by religious organizations not to discriminate in employment on the basis of religion. There was an exemption, but it was only for those jobs that had no substantial connection with a station’s program content. Realizing that enforcement of the regulation interfered with the religious autonomy of these radio stations, in late 1998 the FCC announced that it would henceforth permit religious staffing as to all employees at a radio station.

At this juncture, opponents of the President’s Faith-Based Initiative make a rather supercilious argument. They chide supporters with questions like, “If your FBO is a Catholic soup kitchen, what difference does it make that a Baptist is hired to ladle the soup?” Similarly, “If you have a Lutheran homeless shelter, why can’t a Jewish individual be just as effective in providing a clean bed to street people?” The argumentation is reductionist, paring down a faith-driven ministry to the mere provision of bread and beds. Writing separately in Amos, Justice William Brennan supplied these critics with the right response, one that more fully recognizes the rich and variant nature of what it means to be a faith community and that does justice to the spiritual prompting that motivates religious people to seek employment in a helping ministry:

For many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. Determining that certain activities are in furtherance of an organization’s religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself. Solicitude for a church’s ability to do so reflects the idea that furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.

. . . [W]e deem it vital that, if certain activities constitute part of a religious community’s practice, then a religious organization should be able to require that only members of its community perform those activities.

The desire by FBOs to employ those of like-minded faith is not inconsistent with the prohibition against direct government funds being diverted to activities such as proselytizing and worship. To employ only those of like faith does not mean that those same employees will be pressed into performing forbidden tasks when using public grant monies. There is no contradiction in an organization, one of thoroughgoing religious character, that, in compliance with the law, refrains from engaging in practices of inherently religious content. This is an everyday occurrence. Groups that are more evangelistic can still worship or preach, they just must do so separated in time or location from their government-funded program. Still other FBOs may, out of their faith, want to serve without any obvious evidence of religion because they understand their missionary call to entail outward neutrality when it comes to the symbols, sayings, and other externalities of the faith. As the California Supreme Court recently observed of a Catholic hospital that fired an employee for “soul saving” on the job, “[M]aintaining a secular appearance in its medical facility that is welcoming to all faiths, thereby de-emphasizing its distinctively Catholic affiliation, appears to be part of [the hospital’s] religiously inspired mission of offering health care to the community.” New empirical data, which just recently has become available, shows that employees at FBOs are properly following the Court’s first amendment interpretation prohibiting the diversion of direct public funding to inherently religious activities.

Opponents of the Faith-Based Initiative concede, as they must after the decision in Corporation of the Presiding Bishop v. Amos, the applicability and constitutionality of 702(a) to religious social service providers. But, they argue, 702(a) is somehow waived if an FBO applies for and is awarded a social service grant. Every court to rule on this argument has rejected it. When an FBO does staff on a religious basis, such as requiring good standing in a particular church or doctrinal agreement with a particular moral teaching, the FBO’s conduct is not within the scope of Title VII and thus is lawful. It is not that religious staffing is unlawful but excused when the FBO falls back on 702(a). Rather, the conduct, in the first instance, is simply lawful. Because Title VII does not at all reach the conduct of religious staffing, the courts have said that no act or omission by the FBO could alter the Civil Rights Act so as to expand its scope to religious staffing. Only Congress can do that. This widely adopted interpretation of Title VII would also apply to an FBO receiving government funds for a specific social service program wherein the challenged religious staffing is taking place, indeed, even for a job position made possible only by the government grant in question.

II.  Protecting the Staffing Rights of Funded Faith-based Social Service Providers Does Not Violate the First Amendment.

Opponents to the Faith-Based Initiative argue that for a funded FBO to invoke 702(a) would violate that Establishment Clause. This makes no sense. What 702(a) does is keep government out of the business of religion, thereby honoring the Establishment Clause, not violating it. That is why 702(a) was amended in 1972-to “take the political hands of Caesar off the institutions of God, where they have no place to be,” as Senator Sam Ervin said.

The opponents of the Faith-Based Initiative suppose a direct link between the government’s decision to award a competitive social service grant and a non-governmental provider’s employment practices. But the purpose of the grant funding is not to create new jobs or to induce certain employment practices thought desirable by the government. Rather, the object of the government’s welfare program is the funding of social services for the poor and needy. Whether or not a social service provider has employment policies rooted in its religious mission is probably not even known to the government. However, whether known or not, it is the non-governmental provider that is making the staffing decisions, not the government. It is elementary that the Bill of Rights, including the Establishment Clause, was adopted to restrain the government and only the government. Hence the Establishment Clause cannot be violated in the absence of an act or actions by the government.

Not all FBOs staff on a religious basis, and some that do so only use such criteria in selecting ministerial and other policy-forming or executive-level employees. Because there is no causal link between a social service grant and the employment practices of a grantee, an FBO’s religious staffing decisions are not “state action” under the Fourteenth Amendment or “federal action” under the Fifth Amendment. In Rendell-Baker v. Kohn, a teacher sued a private school alleging denial of her constitutional rights as an employee. The Supreme Court held that just because the school received most of its funding from the state it was not thereby a “state actor.” If that is true of the employees of a private school, it is true of the employees of an FBO. Similarly, in Blum v. Yaretsky, the Supreme Court held that the pervasive regulation of a private nursing home, along with the receipt of considerable government funding, did not render the home’s conduct “state action.”

The opponents of the Faith-Based Initiative argue that 702(a) is different, for by the enactment of 702(a) Congress expressly authorized FBOs to “discriminate” on the basis of religion. So, they reason, the discrimination is fairly attributable to Congress. That is not the law. In Flagg Brothers, Inc. v. Brooks, for example, the Supreme Court turned back a constitutional challenge to a provision in a state’s commercial code where the legislature expressly allowed for self-help by a creditor in collecting a debt. The Court found no “state action,” notwithstanding the legislature’s enactment of the law whereby the self-help acts of creditors were explicitly authorized to the detriment of debtors. The law was merely permissive, reasoned the Court, thus the actions of creditors utilizing self-help was not attributable to the state. Section 702(a) is likewise permissive. It allows religious staffing, but it does not require it.

The Supreme Court has examined 702(a) and the religious staffing question and observed that it was not “federal action” attributable to the federal government. Quoted above is the passage from Corporation of the Presiding Bishop v. Amos, wherein the Court held 702(a) simply “allows” religious groups to advance religion, and hence it is not “fair to say that the government itself” is responsible for the religious staffing. Moreover, in Amos the employee that lost his job because he had fallen into disfavor with his church, argued that the failure of 702(a) to protect him from job discrimination denied him rights under the Free Exercise Clause. The Court said:

Undoubtedly, [the employee]’s freedom of choice in religious matters was impinged upon, but it was the Church . . . and not the Government, who put him to the choice of changing his religious practices or losing his job.

Thus, the Court thought it need not reach the merits of that free-exercise claim because, once again, the prior question of whether there was “federal action” must be answered in the negative. Only government can violate the Establishment Clause. An FBO is not the government, and the government is not involved in an FBO’s staffing decisions.

To say that a religious provider must conceal or suppress its religious identity . . . or hire people who are not committed to its mission . . . uses the government’s power of the purse to coerce people to abandon religious practices . . . . Charitable choice provisions that protect the religious liberty of religious providers are pro-separation; they separate the religious choices of commitments of the American people from government influence.

Opponents of the Faith-Based Initiative argue that their case is different. They insist that the situation is not simply that FBOs receive federal assistance unrelated to welfare delivery and that FBOs happen to discriminate in employment. Rather, say opponents, FBOs receive welfare program monies and then are discriminating in those very programs. But that is a distinction without a difference. The fact remains that the government makes its competitive grant awards on a basis that is wholly independent of an FBO’s decision to staff on a religious basis. To again paraphrase the Amos decision, it is not unconstitutional for government to allow FBOs to pursue their own interests, which is their very purpose. For government to violate the Establishment Clause it must be the government itself that has advanced religion. All the government has set out to do here is to help the poor and needy by awarding its grant monies to the most effective and efficient applicants. If FBOs win some of these awards and deliver the secular services to the poor, while obeying first amendment restrictions on direct government funding, then that is the end of the government’s oversight responsibilities.

A very similar Establishment Clause argument was made before a state court of appeals in Saucier v. Employment Security Department. In Saucier, a state agency and a faith-based drug rehabilitation center were sued by a former counselor at the center seeking unemployment compensation. As a religious organization, the drug rehabilitation center was exempt under state law from paying unemployment compensation tax, hence benefits were unavailable. The rehabilitation center was a recipient of federal and state welfare grants. When benefits were denied to the former employee, she argued that the welfare grants when juxtaposed with the tax exemption violated the Establishment Clause. The argument parallels the claim that a social service grant when juxtaposed with 702(a) violates the Establishment Clause. The court of appeals noted that the exemption for FBOs from unemployment taxes had been litigated elsewhere and found not to violate the Establishment Clause. The court in Saucier did not find any connection between the tax exemption and the center’s receipt of welfare grant monies. Hence, the former employee’s claim was dismissed.

The constitutionality of 702(a) when an FBO is a recipient of a government grant parallels a dispute that arose over whether Congress could, without running afoul of the Establishment Clause, provide religious hospitals with funding under the Hill-Burton Act. The Hill-Burton Act provides federal funding for capital improvements to hospitals. Hospitals are eligible, whether public or private, without regard to religion. Some of the funded hospitals refused to provide abortions and sterilizations because the performance of such procedures was contrary to the religious alignment of the hospital. Patients seeking these reproductive services argued that for government to fund these hospitals, under these circumstances, was promoting religious belief contrary to the Establishment Clause. Congress disagreed and modified the Hill-Burton Act by adopting an amendment offered by Senator Frank Church, a Democrat from Idaho. What came to be known as the “Church Amendment” provided that the receipt of any grant under the act by a hospital did “not authorize any court or public official to require . . . [s]uch entity to . . . make its facilities available for the performance of any sterilization procedure or abortion if the performance of such procedure or abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions.” The Church Amendment was challenged as a violation of the Establishment Clause, with the claimants juxtaposing the government aid with the free exercise exemption. However, the federal courts found that Congress had only sought to preserve neutrality in the face of religious and moral differences, and thus they had little trouble upholding the amendment. A religious hospital’s refusal to provide certain reproductive services was a wholly private act, not “federal action.” The Church Amendment simply permitted religious hospitals to be true to their beliefs. A legislature does not establish religion by leaving it alone.

Section 702(a) likewise places the government in a position of religious neutrality. With both discretionary and block grants, the objective of the federal government is to provide grant monies to the most effective and efficient social service providers. Whether or not a nongovernmental grantee staffs on a religious basis is a matter on which the government takes no position, hence the Establishment Clause is not implicated.

Opponents of the Faith-Based Initiative point to only one case, Dodge v. Salvation Army, an unpublished opinion by a federal trial court in Mississippi. Dodge is truly an outlier. In Dodge, the Salvation Army had received federal and state grants to operate a domestic violence shelter. A new federal grant enabled the change in employment status of Ms. Jamie Dodge, from part-time to a full-time basis, as a Victims’ Assistance Coordinator. When first hired Ms. Dodge said she was a Catholic. One day she was discovered using the office photocopy machine for unauthorized personal use. Moreover, the materials Ms. Dodge was copying were “manuals and information on Santanic/Wiccan rituals.” The Salvation Army dismissed Ms. Dodge citing her unauthorized use of office materials and her “occult practices that are inconsistent with the religious purposes of the Salvation Army.”

Neither the federal nor state agency that awarded the domestic violence grants were ever joined as party defendants. Hence, the government was not a party to be heard by the court and to defend the law. Moreover, because only government can violate the Establishment Clause and neither government agency was sued, the court never should have entertained an alleged violation of the clause. After that inauspicious beginning things only got worse. The Dodge court proceeded to hold 702(a) unconstitutional as applied to the government-funded employment position of victims’ coordinator. This holding in Dodge was of doubtful rationale when decided, and given later developments the opinion is clearly not the law today. The court refused to follow the Supreme Court decision most directly in point, Corporation of the Presiding Bishop v. Amos, which just two years before had unanimously upheld the application of 702(a) as applied to a janitor with essentially secular duties at a church-related facility. Instead, Dodge reasoned from a fifteen-year-old case that was essentially irrelevant, Lemon v. Kurtzman. Lemon held that the job of a teacher at a parochial school so integrates religious and secular functions that the government cannot fund even part of a teacher’s salary. Dodge, however, involved a job that entailed secular functions that government could fund, so Lemon was not in point. The Dodge court went on to infer that if government could not fund a pervasively religious job like parochial school teachers, then any government-funded job must be secular. But the victims’ coordinator job in Dodge, like the janitor in Amos, was secular. So 702(a) could have applied to Ms. Dodge’s job of victim’s coordinator without implicating Lemon and the Establishment Clause. Hence, Dodge should have been following Amos-not the factually irrelevant decision in Lemon.

Where program specific employment nondiscrimination clauses, such as sec. 175(c), apply to federally assisted social service providers, FBOs that employ staff on a religious basis are to that extent protected by the Religious Freedom Restoration Act of 1993 [RFRA]. RFRA excuses federally funded FBOs-those that have a sincerely held religious practice of employing those of like-minded faith-from having to incur a substantial religious burden when the burden is impose by a generally applicable federal law. Being prohibited from staffing on a religious basis is most assuredly a burden on the free-exercise of religion. It is no answer to argue, as some opponents of the Faith-Based Initiative do, that an FBO can just avoid the burden by foregoing its ability to compete for grants under the welfare program in question. Just as the government cannot justify restricting a particular form of speech merely by pointing to other opportunities that a person has to express herself, so government cannot restrict a particular exercise of religion by pointing to another course of action whereby the organization’s religious practices are not penalized. Indeed, RFRA explicitly contemplates that a “denial of government funding” because of a service provider’s religion or religious practice can trigger RFRA. That only makes sense. The congressional passage of RFRA was about “restoring” a standard of protection for religious free-exercise as reflected in Sherbert v. Verner, a case about a denial of government funding. Just as the Supreme Court held in Sherbert that an individual refusing to take a job entailing work on her Sabbath could not be put to the “cruel choice” of forfeiting her claim for unemployment compensation or violating her religious day-of-rest, an FBO cannot be put to the “cruel choice” of forfeiting its ability to compete for valuable program grant monies or violating its religious practice of employing only those of like-minded faith.

In RFRA itself the term “religious exercise” is broadly defined to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Nonetheless, opponents further argue that for government to decline to facilitate the free-exercise of religion is not a “religious” burden. The Free Exercise Clause is written in terms of what the government cannot do to an FBO, observe these opponents, not in terms of what an FBO can exact from the government. This is true, but that line of argumentation does not describe what is occurring here. The government may choose to itself deliver all social services to the poor and the needy. If that occurs, then the denial of funding to an FBO is indeed not a free-exercise burden. The government, however, has not chosen that path. Rather, the government has chosen to award grants to nongovernmental providers who in turn deliver the social services. Having chosen to deliver services via providers in the private sector, government cannot now pick and choose among those providers using eligibility criteria that has a discriminatory impact adverse to FBOs. A discriminatory impact from an otherwise neutral law is the very type of occurrence that Congress sought to stop by enacting RFRA. See 42 U.S.C. § 2000bb-1(a) (“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”).

Conceding, as they must, that by its terms a denial of grant funding can trigger RFRA, opponents of the Faith-Based Initiative argue that RFRA cannot be invoked by FBOs because the loss of grant monies is not a “substantial” religious burden. This makes no sense. It is true that religious organizations making claims of increased financial burden, without more, have not been excused from compliance with general regulatory and tax legislation. That is, it is not always enough to simply show that a neutral law increases an FBO’s cost of operating. But those cases have no resemblance to the claim of burden here. Rather, these program-embedded nondiscrimination provisions uniquely harm FBOs by preventing them from maintaining their religious character by hiring co-religionists to perform the ministry. The harm is not financial or economic, the harm is religious. As with the abridgment of free-speech rights, the impairment of the free-exercise of religion is a cognizable harm per se and thus “substantial.” A bar on religious staffing cuts the very soul out of an FBO’s ability to define and pursue its spiritual calling, as well as sustain itself over generations.

RFRA can be overridden, of course, upon a showing of a “compelling governmental interest.” But it is absurd to claim, as some opponents do, that the eradication of religious staffing by FBOs is a compelling interest. Congress sought to achieve just the opposite when it provided in 702(a) that Title VII’s ban on religious discrimination should not apply to FBOs. Permitting FBOs to staff on a religious basis does not undermine social norms or constitutional values. Just the opposite is true. This freedom minimizes the influence of governmental actions on the religious choices of both welfare beneficiaries and religious organizations. Safeguarding an FBO’s freedom of religious staffing advances the Establishment Clause value of noninterference by government in religious affairs. Senator Sam Ervin said it more colorfully in stating that the aim is to “take the political hands of Caesar off of the institutions of God, where they have no place to be.” In Corporation of the Presiding Bishop v. Amos, the Supreme Court put its seal of approval on that congressional judgment. And this is the judgment not just of Congress in 702(a) and a unanimous Court in Amos, but also of President Bush as he spoke while instituting his Administration’s Faith-Based Initiative:

We will encourage faith-based and community programs without changing their mission. We will help all in their work to change hearts while keeping a commitment to pluralism.

. . . Government has important responsibilities for public health or public order and civil rights. . . . Yet when we see social needs in America, my administration will look first to faith-based programs and community groups, which have proven their power to save and change lives. We will not fund the religious activities of any group. But when people of faith provide social services, we will not discriminate against them.

As long as there are secular alternatives, faith-based charities should be able to compete for funding on an equal basis, and in a manner that does not cause them to sacrifice their mission.

The President’s speech has all the right elements: effective help for the poor as the paramount concern and objective, equality between secular and religious providers, and respect for civil rights within a framework of respecting everyone and thus not forcing a change in the religious mission of charities who serve out of faith. Additionally, Senator John Ashcroft, now U.S. Attorney General, has observed that the Faith-Based Initiative results in the poor and needy having more choices when it comes to welfare providers to serve them, some of whom want to seek out assistance at robustly faith-centered providers. These are the social norms to be upheld and the constitutional values to be reinforced. In the face of these affirmations from all three branches of the government, the opponent’s audacious assertion that resistance to religious staffing rights holds the high ground of “social norm” is little more than personal opinion.

We hasten to add that reliance on RFRA in no way excuses compliance with federal civil rights laws when it comes to employment discrimination on the bases of race, national origin, sex, age, disability, and the like. RFRA guards only against burdens on religion.

1.  A religious organization’s decision to employ staff who share its religious beliefs is not an act of shameful intolerance but a laudable and positive act of freedom.

In a pluralistic society that enjoys full freedom of association, a wide variety of ideology-based organizations rightly are at liberty to select employees who share their core commitments. Environmental organizations, feminist groups, unions, and political parties, all are free to choose staff who subscribe to their central ideology. This freedom should not disappear if governments invite these private sector organizations to perform some public task. Planned Parenthood, for example, does not lose its freedom to hire pro-choice staff simply because it has a government contract. To deny this same freedom to religious organizations would itself be discriminatory, not the promotion of a society where all are equal before the law.

It is confusion to equate this positive good with the evil of discrimination on the basis of race or gender. Whether one thinks that religion is a backward superstition that modern folk ought to abandon or an inherent trait of humanity and generally positive contributor to societal well-being, all who believe in freedom of expressive association for cause-oriented groups should insist that religious hiring rights by FBOs is a good thing to be protected by law rather than an evil to be restricted and suppressed.

2.  The ability to choose staff who share a religious organization’s beliefs is essential to that organization retaining its core identity.

As noted earlier, Justice William Brennan in Corporation of the Presiding Bishop v. Amos observed that determining whether “certain activities are in furtherance of an organization’s religious mission and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself.” Having staff that share a religious organization’s religious beliefs profoundly shapes the character of an organization in a variety of ways. Similar values, a sense of community, unity of purpose, and shared experiences of prayer and worship (outside program time) all contribute to an esprit de corps and common vision. A Jewish organization forced to hire Baptist staffers will not long remain a significantly Jewish organization. The sense of religious community and spirit on which success of the organization’s efforts depend will be crippled is a faith-based charity is forced to hire those who do not share then organization’s vision and mission.

Hiring rights are essential even when a faith-centered organization separates by location or time (and pays for with private money) worship, religious instruction, and proselytization from its government-funded program. This is so for multiple reasons. First, by experience these organizations have learned that religious activities are important to the success of a social service program even when voluntary, privately funded, and segregated from “secular” government-funded activities. In such programs, certain religious beliefs and practices are legitimate qualifications for a staff position, equally as valid as having the right technical skills or educational credentials.

Second, forced religious diversity has the effect of stifling religious expression within the agency, creating a climate where employees fear offending other staff with their religious speech or practices. Since personal faith is often important to those who choose to work in a religious organization, such a climate will diminish staff motivation and effectiveness. A forced diversity will sap a program's spiritual vitality and lead to its secularization.

Third, staff often hold multiple roles, especially in small organizations or those with tight budgets. For example, an agency might seek someone as half-time youth minister and half-time social worker for their youth mentoring program. A law in which religion can be a factor in hiring for some jobs but not others within the same agency will lead to complicated and impermissibly entangling regulation.

3.  Religious charities that wish to retain staffing rights are not trying to foist their religion on others, but ask only that others not impose alien values on their internal operations.

Religious charities who choose to select staff that share their religious beliefs want other cause-oriented organizations to have the same freedom to staff based on the group’s ideology. FBOs are not foisting their religious beliefs or morality on others. Rather than imposing their own worldview on unwilling others, they simply want each cause-based organization to be free to make employment choices based on its deepest commitments. It is those seeking to deny the staffing safeguard to religious groups who are trying to use the coercive power of the state to foist their ideological beliefs on FBOs.

4.  Removing the right of religious organizations to staff on the basis of religion would require drastic, widespread change in current practice.

Religious colleges and universities, religious hospitals, religious retirement and nursing homes, religious foster care homes, and many other religious organizations receive government funding to assist in their educational, health care, and social service activities. Many of these organizations consider the existing, long-recognized staffing safeguard to be essential to any continuing provision of services. Those who oppose religious staffing protection as part of the Faith-Based Initiative, if they are consistent, will seek to overturn and outlaw a vast range of situations where government currently cooperates with faith-based organizations. Such a radical disruption of existing education, health care, elder care, and foster care would be tragic.

5.  Prohibiting government assistance for religious social service providers that staff on a religious basis will hurt the poor and needy.

In an op-ed in The Wall Street Journal, Andrew Young asked: “Why should the [religious] organizations that are best at serving the needy be excluded from even applying for government funding?” Urging Senate passage of legislation that would expand charitable choice to additional federal welfare programs, Young warned opponents not to play politics with the poor and needy.

Young’s premises of course may be wrong. His argument assumes that the poor need both moral/spiritual as well as material transformation, and that FBOs often are more effective. We do not yet have extensive, comparative quantitative studies demonstrating that (other things being equal) intensely faith-centered welfare providers produce better results. A lot of anecdotal data, however, clearly suggest that thoroughly faith-centered programs are producing remarkable outcomes in contexts where almost nothing else seems to work-a finding that fits with the vast number of quantitative studies demonstrating that for many people religion contributes positively to emotional and physical well-being. These success stories often come from religious organizations which are very certain that the faith-factors in their programs are a crucial cause of their success. If they are right, then refusing to fund such agencies means denying many of our most needy citizens the best available help.

6.  Because government is now asking religious groups to provide more social services, the government should reciprocate by respecting the integrity of these organizations.

Religious organizations have been caring for the poor and needy for millennia. They will continue to do so regardless of what government says, or funds. Today, however, federal, state, and local governments are asking faith-based groups to provide more social services and offering public support to expand their capacity. Partly this is because the available data suggest that FBOs produce better results and partly because religious organizations are frequently the only institutions still functioning in depressed neighborhoods. If government wants additional help, then it should respect and preserve the integrity of FBOs rather than destroying the very features that makes them uniquely effective. The right to staff with individuals that share the religious group’s beliefs is the single most important way to ensure that FBOs can deliver on the government’s call for expanded assistance to the needy.