Your December 10 editorial “Hiring Rights and Wrongs” notes several ways in which President Obama’s recent executive order “include[s] important safeguards” for constitutional principles, but you then criticize the president for refusing to deny faith-based organizations the right to hire their staff on the basis of religion. Moreover, you assert that it “was the law” before the Bush administration that a faith-based organization receiving a federal grant could not act in this way.
President Bush did expand the scope of federal grant programs in which faith-based groups could participate, and his Justice Department issued a formal legal opinion supporting the right of faith-based groups to hire on the basis of religion. But faith-based groups that hired on the basis of religion were already receiving federal grants prior to his administration.
President Clinton signed into law four statutes that permitted faith-based groups to receive federal funds without waiving their hiring rights. This approach is consistent with the values of the First Amendment and the 1964 Civil Rights Act. Indeed, the 1964 Civil Rights Act explicitly allows religious organizations to hire based on faith, a provision that was later strengthened by Congress and endorsed by a unanimous Supreme Court ruling.
A faith-based charity utilizing federal funds to serve the needy must not, as the president’s order states, discriminate on the basis of religion regarding those it serves. But to require a faith-based charity to forego its legally recognized religious liberty as the price of partnering with the government is also religious coercion, and thus equally objectionable.
By essentially leaving this policy in place, the president is indeed striking the careful constitutional balance required.
Nathan J. Diament
Director of Public Policy
Union of Orthodox Jewish Congregations of America
The writer served on President Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships.