‘Faith’ Plan Puts Groups in Bind: Rights v. Funds

By Ori Nir

Published July 04, 2003, issue of July 04, 2003.
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WASHINGTON — The latest twist in the White House drive for faith-based social services is putting Jewish organizations in an awkward dilemma, forcing them — so observers say — to choose between their traditional civil rights commitments and their growing dependence on taxpayer dollars to fund social-service programs.

The debate has come to the surface following a White House appeal to Congress last week for legislation that would allow federally funded, religious institutions to consider a candidate’s religion in making hiring decisions. The White House appeal is exacerbating a tense debate among Jewish groups over how to reconcile their conflicting commitments.

The problem Jewish organizations face is an acute one, said Marc Stern, assistant executive director of the American Jewish Congress. On one hand, Jewish civil rights agencies have objected for decades to religious discrimination by institutions that receive federal funds. At the same time, Stern said, “all the Jewish groups that take money from the government — for programs that may be entirely secular in operation, and which are servicing a majority of non-Jews — engage in religious discrimination,” at least “at the level of executives of the agencies.”

In recent months, Stern said, “it has finally come home” for Jewish organizations “that in the end, the choice politically may come down to the point of being with the president or being with the civil rights movement.”

Stern has participated in a series of recent meetings of senior Jewish organizational executives attempting — unsuccessfully so far — to reach a joint Jewish position on this issue.

Last week’s White House appeal was issued by the Office of Faith-Based and Community Initiatives in a position paper that offered the first detailed case for allowing government-funded religious institutions to hire on the basis of religion. The nine-page booklet, titled “Protecting the Civil Rights and Religious Liberty of Faith-based Organizations: Why Religious Hiring Rights Must Be Preserved,” called on Congress to clarify the complex and confusing tangle of laws on this issue.

“A secular group that receives government money is currently free to hire based on its ideology and mission,” the booklet said. “Allowing religious groups to consider faith in hiring when they receive government funds simply levels the playing field by making sure that, when it comes to serving impoverished Americans, faith-based groups are as welcome at the government’s table as nonreligious ones.”

Two Jewish organizations, the Orthodox Union and Agudath Israel of America, have endorsed the White House position.

United Jewish Communities, which receives between $5 billion and $7 billion dollars a year from the government to help sustain a nationwide network of social services, holds a complex position that conditionally supports exempting faith-based organizations from the nondiscrimination clause on hiring. To an extent, so does AJCongress.

The main secular Jewish civil-rights agencies, including the Anti-Defamation League and American Jewish Committee, hold positions that are closer to nondenominational civil-liberties organizations such as the American Civil Liberties Union and Americans United for the Separation of Church and State. But while Americans United and the ACLU were quick to issue press releases condemning the White House’s position paper last week, the ADL and AJCommittee remained silent.

The topic, said AJCommittee legislative director Richard Foltin, is “complex.”

Government funding for social services delivered by religious institutions has expanded greatly in the past decade, under a series of grant and contract programs known as charitable choice.

“This isn’t just about a point of technical law, this is something that affects enormously almost every religious social service provider in the country,” said Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism.

“There are lots of groups that got into charitable choice saying: ‘Great, this could mean a lot more money to our religious community,’ and rather than let sleeping dogs lie, they have opened up a Pandora’s box that is going to come back to haunt them,” Saperstein said. “It’s a Pandora’s box that should have never been opened by the religious community.”

Until fairly recently, Saperstein said, organizations such as Catholic charities or federated Jewish philanthropies, which are religiously affiliated but offer primarily secular services, “were able to have the best of both worlds.” For years “no one really thought that carefully” about their hiring practices, as long as they did not receive large amounts of money in block grants from the government, Saperstein said.

With the introduction of charitable choice, however, the funding greatly expanded. “And as soon as you put billions of dollars on the line, you are begging public policy organizations and senators and congresspersons and civil rights organizations to really think seriously about it,” Saperstein said.

Efforts to hammer out a joint Jewish communal position on hiring discrimination began about a year ago, under the direction of the former head of the UJC Washington office, Diana Aviv. But these attempts, in a series of meetings and exchanges of position papers, never succeeded. Aviv, who has recently left the UJC, refused to talk about her efforts, saying that it is inappropriate to comment about her former position.

AJCongress’s Stern, who helped Aviv draft compromise language, said the attempts to find a joint position failed because advocacy groups — AJCommittee, ADL and others — were not willing to compromise their principled positions on hiring discrimination.

ADL’s assistant director of legal affairs, Steven Sheinberg, said he didn’t see a need for a compromise position, because according to his reading of the law, organizations such as Jewish federations are fully protected by the law, even if they receive government funds, when granting preference to Jews in hiring for executive positions. “We just don’t think it’s a problem,” he said.

But Christopher Andrews, legislative counsel to the ACLU, thinks it is a problem. In an interview, he said that his organization, like others in the civil-liberties community, is unwavering in its position of allowing “no government-funded discrimination.” And although it does not seem that Congress is in any rush to fulfill the White House’s plea for legislation clarifying the legality of religious preference in hiring by faith-based organizations, Andrews said, the issue will not go away.

According to Stern, Congress will try to attach an exemption clause for religious organizations’ non-discrimination in hiring to every social-service bill it passes — as it has done recently in several bills — each time highlighting the problematic positions of Jewish organizations in this respect. The Jewish community, Stern said, “has not yet figured out what we would do if it comes to an ‘either/or’ decision.” But since “neither the civil liberties types nor the administration are interested in anything less than their total victory… this is going to come to a head, and which side would win — I don’t know.”

Whichever side wins, Jewish organizations stand to lose, Saperstein said, because they will have to sacrifice one of two apparently contradictory principles at play. When that happens, he warned, Jewish groups will retrospectively view their partnership with the Bush administration’s aggressive interpretation of charitable choice as an “egregious blunder.”

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