The Case for “Discrimination”

I’m a long-time Democrat. In 1972, I organized a group called “Evangelicals for McGovern/Shriver” and helped McGovern sweep—well, the great state of Massachusetts.

As a Democrat, I have been deeply dismayed by how out of touch with the American mainstream the party has proven to be on the issue of faith-based initiatives, particularly on the issue of the so-called hiring exemption. (For a discussion of other aspects of the initiative, see Joseph Loconte, “Keeping the Faith,” FT, May.)

A vast majority of Americans believe that as a society we have lost our moral moorings and that we must reaffirm the role of religious faith in nurturing persons of integrity and fostering a just, stable society. It is in that context that we must evaluate the Democratic leadership’s opposition to allowing faith-based organizations that accept government funds to show preference in hiring to those who embrace the organization’s basic religious beliefs and practices. Democratic President Bill Clinton signed three Charitable Choice bills that explicitly included this hiring exemption. Presidential candidate Al Gore embraced Charitable Choice. But when the Bush Administration’s legislation expanding Charitable Choice moved to the Senate in mid-2001, the Democratic leadership blocked even the consideration of such legislation—largely on the charge that the hiring exemption amounted to employment discrimination.

In other words, the Democratic leadership has come to believe that religious organizations must give up their long-recognized right to hire staff who share their faith commitments in order to receive federal money that provides needed services to the public. In this, the Democrats are wrong.

To begin with, a religious organization’s decision to hire staff who share its religious beliefs and practices is not an example of intolerant discrimination, but rather a positive act of freedom. In a free society, a wide variety of organizations—environmental organizations, feminist groups, unions—are left free to select staff who share their core commitments and who agree with their agenda. This right does not disappear if governments choose to request these private organizations to perform some desired tasks. Planned Parenthood, for example, does not lose its right not to hire pro-life staff simply because it has a government contract. It is precisely the denial of this right to religious organizations that would amount to intolerant discrimination instead of the promotion of a free and open society.

To equate this positive good with the evil of discrimination on the basis of things like race or disability is pure confusion. Whether we think that religion is a medieval superstition or a true and good contributor to social well-being, all who believe in religious freedom should insist that religious organizations be permitted to hire staff who share their religious beliefs.

The obvious fact is that the ability to choose staff who share a religious organization’s core beliefs is essential if that organization wishes to retain its basic identity. As Justice William Brennan wrote in Corporation of the Presiding Bishop v. Amos (1987): “Determining that certain activities are in furtherance of an organization’s religious mission and that only those committed to that mission should conduct them is . . . a means by which a religious community defines itself.” A Jewish organization forced to hire substantial numbers of Baptist staffers, for example, will not long remain a significantly Jewish organization.

Having staff who share a religious organization’s essential religious beliefs shapes the group’s identity in a variety of ways. Shared motivation, common values, a sense of community and unity of purpose, shared experiences of prayer and worship (even if they are outside work time in the organization) all contribute to an esprit de corps and shared organizational vision. As law professor Ira C. Lupu said in testimony before a House subcommittee (June 7, 2001), “The sense of religious community and spirit on which [the] success of the group’s efforts depend” may be hampered if it is forced to hire those who do not share its beliefs.

This is important even when, for example, a faith-centered organization chooses to separate by location or time (and fund with private money) sectarian worship, instruction, and proselytization in a program in order to receive direct government grants. This is true for several reasons.

First of all, religious activities may be important to the social service program, even though they are voluntary, privately funded, and segregated from “secular” government-funded activities. In such programs, holding certain religious beliefs and practices is a legitimate qualification for a staff position, equally as valid as having the right skills and experience.

Second, enforced religious diversity can have the effect of stifling religious expression of staff within the agency, creating a climate of fear of offending other staff members with religious speech or actions. Since personal faith is very important to many who choose to work in a religious organization, such a climate can diminish staff motivation and effectiveness. Forced religious diversity can sap a program’s spiritual vitality and lead to its secularization.

Third, staff often play multiple roles in small organizations. For example, an agency might seek someone to work part-time as a youth minister and part-time as a social worker for its youth mentoring program. Implementing a policy in which religion could be considered as a factor in hiring for some job duties but not others would lead to unnecessarily complicated and impermissibly entangling regulations.

But even leaving aside the effects of such regulation on religious organizations themselves, the rationale behind it makes little sense. The fact that a religious organization accepts some federal funds does not mean that it ceases to be an independent, autonomous entity and becomes an arm or agent of the state. Law, precedent, and common sense all argue that a private organization that accepts some government funds still retains its separate identity. This is clearly the case with colleges and universities that receive government funding, scholars engaged in federally subsidized research, and artists and artistic organizations funded by the National Endowment for the Arts. All of these receive government funding, and all maintain their autonomy from the government. Similarly, a religious organization that receives government funds to provide a public service that serves a public good would maintain its autonomy and not be co-opted by government.

Moreover, not only does allowing hiring preferences based on religious belief within religious organizations pose no social danger, it is the only way to avoid discrimination and governmental preference of one religious view over another. Using the typology of different types of faith-based organizations recently published by the Working Group on Human Needs and Faith-Based and Community Initiatives chaired by former Democratic Senator Harris Wofford helps explain this point.

“Faith-saturated” and “faith-centered” programs both include substantial religious content in their programs and hire (primarily or exclusively) employees who share their beliefs—precisely because their religious beliefs tell them that persons are spiritual as well as material beings and therefore the best results follow when spiritual and material transformation are combined. “Faith-related,” “faith-background,” and “secular” providers do not include significant religious content in their program or consider religious belief in their staffing because their worldview tells them that all that is needed to correct dysfunctional social behavior and social problems is socio-economic, material transformation. All these providers, not just the first two, are grounded in an explicit or implicit religious perspective. Secular providers work at least implicitly within a naturalistic worldview (nothing exists except the natural world) that functions in effect as a religious perspective. Functionally, faith-related and faith-background providers operate with deistic religious beliefs (God exists but never intervenes in the natural world of cause and effect). Naturalism and deism, however, are just as much particular religious worldviews as the historic theism that undergirds most faith-saturated and faith-centered programs.

Obviously, if government only funds some private providers of services (i.e., the naturalistic and deistic ones that do not explicitly use religious criteria for staff), government clearly discriminates among religions.

Thus far, I have argued that as a matter of principle religious freedom is such a fundamental right that it ought to prevail even if on occasion embracing that overriding principle has the secondary effect of, for example, reducing the number of job opportunities for a particular group. For example, the Catholic Church must, as a matter of principle, be free to live out its religious belief (which I do not share) that only men should be priests, even if the practice has the effect of reducing the number of job possibilities for women.

My last point offers an argument, not about principle, but about practical effect. The recent suggestion that extending the hiring exemption to faith-based organizations (FBOs) would in practice mean that African-Americans or gay Americans would suffer a loss of job opportunities is simply wrong.

There is a certain tension between two treasured values: on the one hand, protecting the religious freedom and identity of FBOs as they expand their effective services to the most needy; on the other, our society’s conviction that except in the case of a narrow range of specific situations, employers should not discriminate on the basis of religion.

But do such hiring preferences really result in job deprivation? Hardly at all.

First, we are talking about a small percentage of the total jobs in the society. Second, many FBOs pay almost no attention to the religious beliefs of staff. Third, in the case of those evangelical Christian, Orthodox Jewish, and Muslim FBOs that do, virtually all the different religious groups have their own FBOs offering a hiring preference to people who share their own beliefs.

For very understandable historical reasons, African-Americans have been concerned that racial discrimination might find cover under the hiring exemption based on religious belief. This is extremely unlikely to happen. FBOs working in minority communities are run either by people of the same racial group or by whites who have been at the forefront of fighting racial prejudice.

What about sexual orientation? Few FBOs ask about or select staff on the basis of sexual orientation. It is true that a number of FBOs do say that staff should not be sexually active outside marriage. But is that really so terrible—especially for FBOs working to overcome poverty in a society where a child growing up in a single-parent household is eleven times more likely to be persistently poor than a child growing up in a two-parent family?

Even if the hiring exemption in Charitable Choice were expanded to a lot more government funding streams, sexually (and openly) active gay Americans would face extremely little job deprivation. The number in that group is very small and the number of jobs affected is a minuscule fraction of the total number of jobs. Gay FBOs exist and others can be formed that give a hiring preference to those who share that ethical/religious belief. Surely the well-educated gay community does not want to block an enormously promising way to overcome poverty and social decay for millions of desperate Americans to avoid what in practice would at worst mean only the loss of a handful of possible jobs.

Constitutionally, Charitable Choice strikes the right balance between the no-establishment and free exercise clauses of the First Amendment. Morally, it offers promise for major progress in overcoming some of our most intractable social problems. Politically, Charitable Choice and the broader Faith-Based Initiatives have rightly become identified with the widespread sense that we have lost our way morally as a society. By remaining steadfastly opposed to allowing religious organizations to contribute to solving social problems, the Democrats harm our country as well as their future electoral prospects. Only at great peril dare Democrats be on the wrong side of today’s widespread embrace of religious faith’s crucial contribution to social wholeness. If that happens, they will deserve a repetition of 1972.

Ronald J. Sider is President of Evangelicals for Social Action and Professor of Theology and Culture at Eastern Baptist Theological Seminary in Philadelphia, Pennsylvania.

Image by CREDO licensed via Creative Commons. Image cropped.

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