Charlie Savage reports in today’s NYT that the Justice Department has posted on its website a fabled but hitherto secret memo permitting religiously based hiring discrimination on the part of an evangelical organization that received a $1.5 million grant to help at-risk youth. This question lies at the heart of the contention over the president’s faith-based initiative. By permitting World Vision to hire only its own religious kind with public money, the administration did by fiat what Congress refused to let it do legislatively. The memo relies on the Religious Freedom Restoration Act (RFRA), passed by Congress to reverse the Supreme Court’s Smith decision, which limited the rights of those seeking constitutional protection for religious free exercise. The Court overturned RFRA with respect to the states, but it still applies to actions by the federal government. I’ll leave it to the lawyers to sort out the details, but the nub of the matter is disclosed in following paragraph from a defense of faith-based hiring by Carl Esbeck, the law professor who deserves to be considered the intellectual father of Charitable Choice.
RFRA protects religious practices from substantial burdens that are imposed by the federal government. Religious charities have an interest in maintaining their religious character, and that character in turn is modeled to the poor and needy through its employees. The White House Office of Faith-Based and Community Initiatives published a booklet in June 2003 arguing that secular organizations receiving government grants freely hire based on their core mission, such as Planned Parenthood requiring that employees be pro-choice or Sierra Club asking applicants their view of global warming. Religious groups likewise cannot remain true to their founding purposes unless employees are aligned with the energizing core of the mission.
The issue, however, is that unlike Planned Parenthood and the Sierra Club, the core mission of World Vision is religious. As the memo recounts:
World Vision states that it has done so in order to “maintain [its] identity and strength, which [are] at the core of [its] success,” id. at 3, and because it “can only remain true to [its] vision if [it] ha[s] the freedom to select like-minded staff, which includes staffing on a religious basis.” Sept. 23 Letter at 1. World Vision states that the work of the Vision Youth program is “very staff intensive.” Id. at 2. Its staff—all of whom “share a faith, passion and commitment to [World Vision’s] mission”—works closely with local volunteers and churches to meet the needs of at-risk youth. Id.2
The Establishment Clause of the First Amendment bars public support for religion in a way that it does not bar public support for secular “core missions.” Whatever the virtues of World Vision’s program, supporting it with public funds does serve its religious purpose, if for no other reason than that World Vision itself wants to claim that not funding it would impair its religious free exercise. Under the circumstances, I can’t for the life of me see the grant as anything other than an unconstitutional establishment of religion.