My name is Richard Foltin. I am Legislative Director and Counsel in the Office of Government and International Affairs of the American Jewish Committee, the nation's premier human relations organization, with over 125,000 members and supporters represented by 33 regional chapters across the United States. Thank you, Mr. Chairman and Mr. Ranking Member, for the opportunity to testify today about AJC’s perspective on the need to retain protections against employment discrimination based on religion with respect to positions funded under the Corporation for National and Community Service.

The government, and all citizens, have a strong interest in not seeing taxpayers’ dollars utilized to underwrite the funding of employment positions for which hiring decisions are made based on religion. At the same time, any prohibition on religious discrimination by religious organizations when they operate programs for which they receive government funds must be carefully cabined, so as not to encroach on the legitimate interests of religious organizations in autonomy with respect to positions that are privately funded. Its "grandfather clause" aside, Section 175 of the National and Community Service Act of 1990 limits its prohibition on religious discrimination by a funded institution to "a member of the staff of such project who is paid with funds received under this subchapter." In so doing, as I discuss below, Section 175 draws a careful line that seeks to safeguard the important interests of both the government and of religious institutions.

Discussion of Section 175

Section 175 of the National and Community Service Act of 1990 (42 U.S.C. §12635), signed into law by President George Herbert Walker Bush in November 1990, provides as follows:

(c) Religious discrimination

(1) In general

Except as provided in paragraph (2), an individual with responsibility for the operation of a project that receives assistance under this subchapter shall not discriminate on the basis of religion against a participant in such project or a member of the staff of such project who is paid with funds received under this subchapter.

(2) Exception

Paragraph (1) shall not apply to the employment, with assistance provided under this subchapter, of any member of the staff, of a project that receives assistance under this subchapter, who was employed with the organization operating the project on the date the grant under this subchapter was awarded.

With the Corporation for National and Community Service due for reauthorization, argument has been heard – following the arguments articulated by proponents of "charitable choice" (or the "faith-based initiative") – that a religious employer otherwise allowed by law to prefer members of that body’s faith in employment decisions should not be subject to laws prohibiting employment discrimination on the basis of religion as a result of the receipt of government funding. Those arguing for this proposition point to the need to enable faith-based groups to promote common values, a sense of community and shared experiences through service. These are all important values, but there is something inherently problematic, as a matter of public policy if not as a matter of constitutional law, in the government funding what it itself cannot do, namely subject employment positions to a religious test. Put more bluntly, applicants for a government-funded position should not be confronted with a sign, real or metaphoric, that says "No Jews Need Apply" or "No Baptists Need Apply."

Neither the First Amendment nor any other provision of the Constitution requires religious institutions to be given unlimited autonomy in their employment decisions with respect to employment positions that are government funded. Indeed, the presence of government funding implicates several clauses of the Constitution – the Religious Test Clause, the Establishment Clause, the Free Exercise Clause, and the Equal Protection Clause – all of which preclude government discrimination on the basis of religion.

But the importance of the nondiscrimination principle does not mean that it cannot be reconciled with another important priority, the autonomy of religious institutions and safeguarding those institutions from undue government interference. If we have any common ground with those who would delete Section 175 it is in recognizing that religious organizations must, as a general rule, be allowed broad discretion in relying on religion in making hiring decisions.

In Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987), the U.S. Supreme Court rightly upheld the constitutionality of the exemption for religious organizations from the provision of Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination on the basis of religion, even in a case where the position in question entailed no discernible religious duties. In a concurring opinion, Justice Brennan, joined by Justice Marshall, citing an article by Professor Douglas Laycock, said, "[r]eligious organizations have an interest in autonomy in ordering their internal affairs, so that they may be free to: ‘select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions. Religion includes important communal elements for most believers. They exercise their religion through religious organizations, and these organizations must be protected by the [Free Exercise] [C]lause.’" Justice Brennan went on, "[A religious] 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."

Thus, it is a fundamental aspect of the religious freedom that is protected as our first liberty in the First Amendment that religious organizations, the vehicle through which religious communities manifest their religious missions, should be able to demand, as a general principle, that the individuals they hire to work for those organizations subscribe to the creed and practices of their faith. Such a demand is a legitimate reflection of the need to maintain the integrity of the organization. But Amos involved a privately funded, not a government funded, position. And extension of the exemption upheld in Amos to cover employees providing publicly funded services is not required by the concerns addressed in that decision. Much of the Amos analysis, as amplified in the concurring opinions, turns on the problems that would be posed in limiting the exemption to religious activities of a religious organization, not the least of which would be placing the state in the position of parsing which activities of the organization are secular and which are religious. With respect to programs funded by the government, however, the state, as a matter of constitutional principle, may fund only the secular activities of religious organizations. This makes unnecessary an explicit extension of the Title VII exemption, or a bye on appropriate antidiscrimination provisions in particular authorizing legislation, with respect to employees providing publicly funded services.

To the contrary, such an approach (particularly, as we are faced with today, as part of an initiative premised on substantial expansion of the role of religious organizations in social services provision) runs counter to fundamental civil rights principles, as well as identifies the government with using religious criteria for employment. In one case, Dodge v. Salvation Army, 48 Empl. Prac. Dec. 38,619, 1989 WL 53857 (S.D. Miss. Jan. 9, 1989), the court went as far as to extend the principle that the Establishment Clause prohibits the government from engaging in religious discrimination so as to prohibit direct financing by the government of a position with a private employer if the employer discriminates based on religion. And, in Robinson v. Price, 553 F.2d 918, 920 (5th Cir. 1977), appeal after remand, 615 F.2d 1097, 1099-1100 (5th Cir. 1980), the Fifth Circuit held that a violation of the Free Exercise Clause would be shown if facts presented at trial demonstrated that a state-funded, non-profit, anti-poverty agency discriminated based on religion in firing an employee.

Several cases have been cited for the proposition that a religious employer does not waive an otherwise applicable exemption from laws prohibiting employment discrimination on the basis of religion as a result of the receipt of government funding. See Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618, 625 (6th Cir. 2000); Siegel v. Truett-McConnell College, Inc., 13 F. Supp. 2d 1335, 1344 (N.D. Ga. 1994), aff’d, 73 F.3d 1108 (11th Cir. 1995); Arriaga v. Loma Linda Univ., 13 Cal. Rptr. 2d 619, 622 (Cal. App. 1992). But these cases did not allege that the employment positions at issue had been directly funded with government dollars.

Of course, even if the Title VII exemption is not automatically waived with respect to a government-funded employment position, this is far from the end of the inquiry. Congress may determine, as it did in enacting Section 175, that, as a matter of policy, it does not want publicly funded employment positions to be subject to religious preference. The Amos Court did not, after all, rule that the broad exemption from Title VII carved out by Congress, so as to extend even to employees with no religious duties, was constitutionally required, only that it was constitutionally permitted – and this was with respect to a privately funded position.

To be sure, any effort to prohibit religious discrimination by religious organizations when they operate programs for which they receive government funds must be carefully cabined so as not to encroach on the legitimate interests of religious organizations in autonomy with respect to positions that are privately funded. Any such provision should be crafted so that, even while it prohibits discrimination on the basis of religion with respect to an employment position funded with federal financial assistance, it does not encroach upon such exemption from the federal prohibition on religious discrimination as a religious organization may enjoy in the use of its own or privately donated funds. That is the careful line that Section 175 seeks to draw – unlike the case with civil rights laws that generally cover federally funded institutions, and recognizing the particular constitutional concerns that are presented by religious organizations, the antidiscrimination prohibition of Section 175 does not extend to the entire institution, nor even to all staff employed in connection with the funded activity, but only to those who are actually paid with federal funds.

The "grandfather clause" aside, Section 175 limits its prohibition on religious discrimination by a funded institution to "a member of the staff of such project who is paid with funds received under this subchapter." By thus limiting its reach only to those who are actually paid with federal funds, Section 175 takes an appropriate approach in seeking to protect the important interests of both the government and of religious institutions when the latter receive government funds.