Faith Based Bigotries

By Wendy Kaminer

        Anyone who has yet to be convinced that the term “faith-based” social services is a euphemism for sectarian social services should consider that the Bush Administration has directed 98% of “faith based” foreign aid funds to Christian groups (according to a 2006 report by the Boston Globe.)  That should come as no surprise.  It’s not as if we’re a country of Deists, or even Unitarians, with vague or “inclusive” theologies.  Institutionalized religious faith is specific and generally exclusive.  It’s a divider, not a uniter, which is why religious freedom requires restraints on government power to favor one faith over another – which the government can’t avoid doing when deciding which faith based groups to fund.  Naturally, the Bush Administration chose Christian groups, including those that prefer not to hire gay people or people of contrary religious faiths.

        “Faith based” funding” came into vogue some ten years ago, when Congress enacted charitable choice legislation extending federal funding to sectarian social services groups.  (Previously, charities affiliated with religious institutions were eligible for public funding if they were independently operated and did not engage in sectarian activities.)  Since then, sectarian groups seeking federal funds have also demanded the same exemptions from employment discrimination laws that have long been enjoyed (for good reason) by privately funded religious institutions.  Obviously, religious groups must engage in employment discrimination when filling religious posts, in order to maintain their religious character: it’s up to the Catholic Church, not the state, to decide whether to allow women to become priests.

        But it should be equally obvious that when sectarian groups undertake secular activities that are funded by the secular state, they should play by secular rules of fairness and non-discrimination in hiring.  Religious organizations have successfully established their right to receive federal dollars for delivering social services by arguing that they should be treated like secular service providers.  If they want, and obtain, the same rights as secular organizations, shouldn’t they be prepared to shoulder the same obligations?

        Not according to the Bush Administration.  Congress has generally resisted exempting government funded, sectarian social service providers from employment discrimination laws, but Congress has hardly been an effective check on this executive.  Just last month, the Justice Department recommended that sectarian groups receiving federal funds should be allowed to discriminate in hiring, under the Religious Freedom Restoration Act. 

        RFRA, enacted in 1993, greatly limited the power of government to subject religious people and organizations to generally applicable laws, if they imposed substantial burdens on religious exercise.  A few years later, in 1997, the Supreme Court held that RFRA was unconstitutional as applied to the states, but it still applies to the federal government.

        What constitutes a substantial burden on religion?  Extending equal rights to gay people, according to some religious conservatives.  Given the generation gap on gay rights, 20 or 30 years from now zealous opposition to full equality may well seem rather primitive.  Indeed, the insistence that sexual orientation should be a basis for extending or denying rights to people seems incrementally more anachronistic every day. 

        But the Bush Administration isn’t exactly forward looking; not content to allow federally funded religious groups to discriminate against gay people, it wants private businesses to enjoy the same prerogative, under federal law.  The president has promised to veto the Employment Non-Discrimination Act pending in Congress, (ENDA) which would protect people from employment discrimination based on sexual orientation.  (Advocacy groups are battling Congress over extending these protections to transgendered people as well, but that’s another story.)

         On what basis would the president veto ENDA?  (He can’t quite come out and say that all people are created equal, gay or straight.)  The White House is arguing, or rather declaring, that ENDA would violate the right to free exercise of religion as guaranteed by (take a guess) the Religious Freedom Restoration Act.   A law designed to guard against religious discrimination has devolved into a law empowering religious people to discriminate – with federal funds, in the secular sphere.

        Someone should ask the President if he believes that the 1964 civil rights act violates the religious freedom of employers who believe that racial segregation was divinely ordained or that God wants women to stay home.  Arguments like this did not prevail in the 1960s but, as I’ve said, the Bush Administration isn’t forward looking.

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