A Right to Discriminate?

Controversy erupts over the rules for tax-financed religious groups and the hiring of gays and lesbians

As President Bush’s effort to help faith-based groups receive more federal funds continues on its uncertain path through Congress, a central question dogs both supporters and critics of the measure:

Should religious groups that get federal money to provide social services be able to discriminate against gay men and lesbians in hiring and employment-benefit practices?

That question moved to the forefront this month following a newspaper report that the Salvation Army, a church that provides charitable services, sought a special White House exemption from more than 100 state and local employment laws that ban discrimination against homosexuals in hiring or the extension of benefits.

The Bush administration quickly made it clear that it would not approve such an exemption, but the issue of employment discrimination among faith-based groups remains far from settled in Congress.

Last week, a scheduled vote on the Bush proposal was postponed in the House of Representatives because of division over the discrimination issue. But the measure was eventually passed by a vote of 233 to 138.

State and Local Laws

On the state and local levels, too, rancorous debates continue over how far government officials and courts should be able to go in prohibiting faith-based groups from shaping employment policies in line with religious tenets.

In a potential landmark case, the American Civil Liberties Union has sued Kentucky Baptist Homes for Children, in Louisville, Ky., on behalf of a lesbian employee who contends she was fired in 1998 because of her sexual orientation. Kentucky Baptist Homes, which began accepting government money more than two decades ago, received less than 5 percent of its budget from Baptist church groups in 1999.

Likewise, in Sacramento, Calif., this month, a state appellate court ruled that a new California law that requires Catholic Charities to offer contraceptives to its female employees does not violate the group’s religious freedom. The law bars employers that offer prescription-drug plans, as Catholic Charities does, from discriminating against female employees.

Such cases, along with the controversy swirling around the Bush plan, are leading charity officials to call for a full airing of the discrimination issue. “We support a national conversation on how and where faith-based organizations can have a successful partnership with government,” says Michael Crook, a spokesman for Habitat for Humanity International, an ecumenical Christian group that supports the Bush plan but not discrimination in hiring.

Others suggest, however, that the debate should focus on the rights of religious groups as well as those of workers who may be affected by hiring decisions. “Planned Parenthood may refuse to hire those who don’t share its views on abortion,” John J. DiIulio Jr., director of the White House Office of Faith-Based and Community Initiatives, told the National Association of Evangelicals. “Equal treatment requires that churches, mosques, and synagogues have the same right to discriminate.”

Concern About Local Laws

It is that conviction that The Washington Post said led the Salvation Army to seek accommodation from the Bush administration on its hiring policies. The Post said that an internal Salvation Army document stated that the White House made a “firm commitment” to exempt religious charities from state and local anti-bias laws covering homosexuals. When Democrats and civil-rights activists reacted vehemently, Mr. Bush and the Salvation Army both denied the existence of any such deal.

Maj. George Hood, a spokesman for the Salvation Army, says the document was merely a draft of a consultant’s proposal. Major Hood says, however, that the charity did discuss with Bush administration officials its concerns about local laws that require groups receiving government money to provide benefits to same-sex partners.

The Salvation Army, which already receives nearly $300-million in government grants annually to provide social services, says it does not discriminate against gay people or others in hiring for non-ministerial jobs. But the charity said it is selective in filling its 5,000 ministerial positions. Those jobs, Major Hood says, go to people who accept the charity’s religious tenets, which consider homosexual activity and other forms of sex outside marriage a sin.

Among the laws that trouble the Salvation Army, Major Hood says, is one in San Francisco that requires city contractors — including religious charities that receive municipal funds — to provide the same benefits to homosexual partners as they do married couples. A gay union, Major Hood says, “is not a marriage we can endorse because of our interpretation of Scripture.’’

Like many conservative Christian organizations, the Salvation Army bases its employment stance on several federal exemptions for religious groups, including provisions of the 1964 Civil Rights Act.

Legislation enacted in 1996 allows faith-based groups to discriminate on religious grounds in hiring for some federal programs. In addition, the U.S. Supreme Court ruled in 1987 that religious organizations may discriminate in hiring on the basis of their beliefs, even for a secular job.

But the 1996 law applies only to welfare-to-work and drug-treatment programs. And the Supreme Court ruling did not involve a religious charity receiving government money. The justices have not ruled on whether such groups should be exempt from state and local antidiscrimination employment laws.

Legislative Provision

In recent days, the debate over religious discrimination has taken a new turn, focusing on controversial language tucked deep into HR 7, the bill that President Bush has promoted as the way to get more federal money into the hands of religious charities.

The bill, which has been passed by two House committees, was written to allow a religious group that receives federal money “autonomy” from federal, state, and local governments in the “definition, development, practice, and expression of its religious beliefs.” Critics construed that and other language in the bill as allowing charities to receive tax money and still escape anti-bias laws — even without special agreements like the one the Salvation Army is reported to have sought.

Congressional foes of the Bush plan vowed to excise the language. But if that doesn’t happen, critics say, the White House could wind up having its way on the discrimination issue.

While figuring out how the faith-based bill will turn out has become something of a parlor game in Washington, many critics express grave concern about the implications of the plan. They fear that the bill could open the door to all types of discrimination, not just bias against gays.

“The administration’s faith-based plan threatens to erase 60 years of civil-rights protections dating back to President Franklin Roosevelt’s executive order prohibiting federal contractors from discriminating based on race, creed, color, or national origin,” Julian Bond, chairman of the board of the National Association for the Advancement of Colored People, told the organization this month.

Nancy Zirkin, an official of the American Association of University Women, a nonprofit advocacy organization for women and girls, said in a statement that the Bush plan would subject women to acts of discrimination in hiring and the delivery of charitable services.

“Religious employers would be allowed to include questions in hiring interviews on marital status and child-care provisions,” she said. The bill also “offers no protection for the unwed mother being denied benefits because of out-of-wedlock parenthood conflicts with the tenets of the religious organization responsible for delivering services.”

Even some conservative supporters of religious charities are uncomfortable with the Bush plan. Such charities, they say, could have to compromise their religious beliefs in pursuit of government money. “The government-grants world is not a good world for religious charities,’’ says Michael J. Horowitz, a senior fellow at the Hudson Institute who served as general counsel for the Office of Management and Budget during the Reagan administration. “We have the First Amendment not to protect us from religion, but to protect religion from us.”