Comments Submitted to U.S. Department of Health and Human Services Regarding Accommodations for Faith-Based Organizations

Center for Faith-Based and Neighborhood Partnerships

Office of Intergovernmental and External Affairs

U.S. Department of Health and Human Services

Hubert H. Humphrey Building

200 Independence Avenue SW

Washington, D.C. 20201

Attn: RFI Regarding Faith-Based Organizations

We write in response to the request for information on “Removing Barriers for Religious and Faith-Based Organizations To Participate in HHS Programs and to Receive Public Funding,” as outlined at 82 FR 49300 (“RFI”).

The Anti-Defamation League (“ADL”) is one of the nation’s leading human relations and civil rights organizations advocating for religious liberty in America. To that end, we work to oppose government interference, regulation, and entanglement with religion and strive to advance individual religious liberty.   From our 104 years of day-to-day experience serving our constituents, ADL can testify that the more government and religion become entangled, the more threatening the environment becomes for each.  In the familiar words of Justice Black: “A union of government and religion tends to destroy government and degrade religion.” Engel v. Vitale, 370 U.S. 421, 431 (1962).

We share the administration’s appreciation for the vital role religious institutions have historically played in addressing many of our nation's most pressing social needs, as a critical complement to government-funded programs.  For decades, government-funded partnerships with religiously-affiliated organizations – such as Catholic Charities, Jewish Federations, and Lutheran Social Services – have helped to combat poverty and helped provide housing, education, and health care services for those in need. These successful partnerships have provided excellent service to communities largely unburdened by concerns over bureaucratic entanglements between government and religion. Indeed, constitutional and other legal safeguards have protected beneficiaries from unwanted and unconstitutional proselytizing during the receipt of government-funded services. They have also protected the integrity and sanctity of America’s religious institutions whose traditional independence from government has contributed to the flourishing of religion in our country.

The Anti-Defamation League wants to stress to HHS leadership that there are no existing “regulatory or other barriers” that need to be removed in order to ‘affirmatively further the accommodation” of faith-based organizations that seek to perform social welfare contracts with the federal government.  None.

ADL strongly believes that every component of initiatives by HHS’ Center for Faith-Based and Neighborhood Partnerships must maintain essential constitutional safeguards for protecting both religious organizations and beneficiaries. Past experience with government and religiously-affiliated organizations working as partners has demonstrated well that these necessary safeguards do not interfere with these organizations' ability to provide excellent service to our country’s most needy citizens.

These safeguards should:

  • Ensure that no program beneficiary is subjected to unwanted and unconstitutional proselytizing when he or she receives government-funded social services;
  • Ensure that taxpayer money does not fund religious discrimination in the hiring and firing of people who will deliver the services;
  • Ensure that secular alternatives to religiously provided services are readily available, and that those who prefer secular alternatives are made aware of them and have realistic and convenient access to them;
  • Ensure the development of proper firewalls between government-funded services and the core religious activities of a religious organization, so that taxpayer dollars are not channeled into other religious activities of sectarian organizations (as a practical matter, this can best be implemented through religious organizations’ establishment of a separate corporate structure which would distinguish a sectarian religious entity from its government-funded social welfare organization);
  • Ensure that program recipients comply with all requirements and restrictions imposed upon all government-funded activity by the Religion Clauses of the First Amendment to the United States Constitution; and
  • Ensure that extremist, terrorist or hatemongering groups are not able to receive government money.

To that end, ADL strongly supported Executive Order 13559, “Fundamental Principles and Policy Making Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations,” issued by the prior Administration, and the final rule issued by nine agencies, including HHS, formally implementing this Order.  The final rule was a significant step forward in safeguarding the religious freedom of program beneficiaries and protecting faith-based providers from government entanglements.  That rule (1) strengthens the constitutional protections against unwelcome proselytizing of program beneficiaries, (2) promotes grantee and contractor transparency and understanding of church-state separation parameters, and (3) implements safeguards against excessive government entanglement with religious institutions.  HHS should therefore maintain and vigorously enforce its final rule implementing Executive Order 13559.

We regret that the Order and final rule did not address the issue of religious organizations discriminating in hiring on the basis of religion within federally-funded programs. Prohibitions on such discrimination governing partnerships between government and religiously-affiliated institutions was the standard operating procedures that had been largely in place for decades prior to the creation of the Faith-Based Initiative by the Bush Administration in 2001.

We are deeply concerned by the RFI’s supportive reference to the Attorney General’s October 6th Memorandum on “Federal Law Protections for Religious Liberty” regarding discrimination by religious organizations for taxpayer-funded positions:

… HHS is fully committed to fostering robust and thriving partnerships with faith-based organizations that serve as either recipients or sub-recipients of Department funding or as partners with state or local agencies funded or regulated by HHS. This commitment is bolstered by the Attorney General’s Memorandum for All Executive Departments and Agencies …. [W]ith respect to grants and contracts, the Attorney General’s guidance instructs that …“[a]bsent unusual circumstances agencies should not condition receipt of a government contract or grant on the effective relinquishment of a religious organization’s Section 702 exemption for religious hiring … .”

We firmly believe that the Justice Department’s guidance asserts an overly-broad and incorrect interpretation of federal law.  The guidance does not change current law and is not binding on the federal courts, or state courts, or governments. Title VII’s Section 702 exemption was never intended to provide the basis for government-funded discrimination. Rather, it was enacted to prevent entanglement between government and religious institutions. In 1987, the United States Supreme Court upheld the right of religious organizations under Section 702 to discriminate on the basis of religion in hiring staff with their own funds because doing so, the Court held, is intrinsic to their ability to define and carry out their religious mission. See Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327.  That decision, however, does not allow for similar religious preferences and discrimination for faith-based recipients of government funds.

Although ADL supports the right of a church, synagogue, mosque or other religious organization to use its own private funds to hire only co-religionists for positions that forward its religious mission, religious discrimination in hiring for government-funded programs is a wholly different circumstance. No one should be barred from a tax-payer funded job based on their faith.  Such discrimination violates the American principles of equality and meritocracy. Furthermore, it is unconstitutional on two distinct grounds.  First, this discrimination constitutes government support for particular religious missions in violation of the Establishment Clause to the First Amendment. Second, it runs afoul of the “no-religious-tests clause” of the United States Constitution. See US Const., Art. VI, cl. 3 ("no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."). HHS should therefore not promulgate prospective rules allowing discrimination on the basis of religion within federally-funded programs.

ADL strongly believes that it is entirely possible to encourage charitable works and provide services to communities in need while maintaining strong religious liberty and civil rights protections against discrimination.  Our response to this RFI is in furtherance of this principle. 

Please do not hesitate to contact us if you have questions, or if we can be of assistance in any way.                                                            

Sincerely,

Ian Scharfman, Chair, Religious Freedom Task Force        

Steven M. Freeman, Interim Vice President, Policy and Director, Legal Affairs

David Barkey, Southeastern Area & National Religious Freedom Counsel

Michael Lieberman, Washington Counsel

                                   

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