Well, yes, they can. The “no taxation to fund discrimination” principle is overly simplistic and when applied in a principled manner strikes at the heart of religious pluralism in America.
When President Bush proposed the faith-based initiative, there were numerous objections to the plan. Questions included whether the initiative violated the Constitution, whether it would result in government control of churches, whether recipients of services would be well served under the proposal, whether unpopular faiths would be excluded from funding, and whether money would go to fund proselytism. Each of the concerns expressed was serious, and alone was enough to give a prudent observer significant questions regarding the plan. Despite the seriousness of each of these issues, as the debate has continued, the objection that appears to have eclipsed all others is the issue of whether churches that receive funding under the plan will be able to retain their right to hire only those who share their religious values.
The Community Solutions Act (HR 7), which contains provisions implementing the administration’s faith-based initiative and which was passed by the House in July, explicitly states that religious entities receiving funds under the initiative will retain their exemption under the federal civil rights laws. The issue is far from dead, however, as discrimination is expected to again be at the forefront of the debate when the faith-based initiative is discussed in the Senate, and there remains debate over the applicability of state and local discrimination laws on recipients of the funding.
DISCRIMINATE ON YOUR OWN DIME
In the current debate over the faith-based initiative, many voices have demanded that recipients of funding should lose their right to hire only those who concur with the faith’s religious tenets. These voices concede that it is appropriate for religious institutions to discriminate on the basis of religion in hiring when they fund positions exclusively with private funds. They claim, however, that identical forms of discrimination are improper when public money is involved. Advocates for this view provide two principled reasons to justify this distinction.
The first reason is that while private money can be used to fund religious content, public money cannot. On this there is a virtual consensus among all parties in the debate. Proponents of the “no taxation to fund discrimination” theme go one step further, however. They note that the only purpose of hiring people of a given religious persuasion is to advance religious principles. Thus the desire to maintain the ability to hire only coreligionists when hiring workers in an activity that is partially or fully publicly funded is prima facie evidence that religious institutions want to use government funding to engage in proselytization and other religious activity.
The obvious problem with this argument is the assumption that the exclusive rationale for maintaining the religious exemption is to perform religious work. But there are a variety of reasons a church may want to maintain its right to hire coreligionists. For example, churches may need their workers to split their time between church functions funded by private money and programs funded by the government. If religious entities are forced to employ a completely different set of hiring criteria for the hours of services funded by the government than the criteria used to fund the hours of service funded by private giving, the church will either have to abandon its hiring criteria across the board, or keep two separate groups of employees hired under different criteria and working under two sets of expectations. Operationally this may present significant difficulties.
Another example of a legitimate goal for maintaining religious-based hiring criteria is the desire to project the values of the religious institution in all that it does. While soup servers or drug counselors are not permitted to proselytize while providing government-funded services, they are by no means required to actively violate the core values of a religious institution in which the services are provided. There are many ways in which such violations can occur. For example, the use of coarse language by workers may undermine the principles of the entity in which the services are provided. The best way of avoiding both intentional and unintentional violations of a church’s principles may be to hire people who have internalized those principles.
The second argument often used to support the “no taxation to fund discrimination” argument is that people should not be taxed to fund jobs that they are ineligible to perform on the basis of their religion or lifestyle. This is indeed a serious objection. Certainly if a large percentage of government contracts were to go to a particular denomination, or if all contracts were to go to religious rather than secular service providers, a significant problem of opportunity for individuals might occur. However, in a nation with such a rich pluralistic society, such a result appears exceedingly unlikely without impermissibly favoring one faith over another, or the religious over the secular.
In addition, it is clearly permissible for the state to choose not to utilize religious entities to provide social services, and as previously discussed there are many reasons the state may choose not to. But when religious institutions are invited to participate in the provision of services, this participation must not be predicated on the abandonment of the religious character of the institutions. Such governmental enticement for religious compromise is unseemly.
It is important to keep in mind that religious institutions are not religious merely because they have the name of a faith printed on their signs and stationery. They are religious because the living, breathing people working within them share a common religious vision. Therefore, to require religious institutions to hire those who disagree with their religious vision is to compromise and ultimately destroy the religious nature of the institutions.
The “no taxation to fund discrimination” concept, if adopted in a principled manner, produces outcomes that are devastating to a vibrant religious pluralism, a part of which is vibrant religious institutions. As government’s role in society has expanded, it has become increasingly difficult for religious institutions to remain completely separate from government programs. In fact, in some instances the government has created programs that fully occupy a field in which religious institutions operate. For example, Medicare almost completely occupies the field of acute health-care insurance for the elderly. In these circumstances, religious institutions have the choice either to accept government payments or to close. In this situation, if the government forbids recipients of such funding to maintain their religious character through hiring, it eliminates whole classes of religious entities. Such a result would be the deathblow to a truly pluralistic society. Thus “no taxation to fund discrimination” when applied in a principled manner produces results that are on their face unacceptable and strike at the heart of a free and just society.
Yes, there are many solid reasons to oppose the faith-based initiative. But the “no taxation to fund discrimination” argument is not one of them. While the premise of the argument is faulted, it does expose a serious danger posed by the faith-based initiative; there are many who are willing to use strings tied to government funding to advance their social/political agendas at the expense of the integrity of religious institutions. Somewhat ironically, this may be the best argument against the faith-based initiative.
James Standish specializes in church-state issues. He earned his law degree cum laude from Georgetown University, Washington, D.C. He also has an M.B.A. from the Darden Graduate School of Business at the University of Virginia.
1The 78 percent figure was generated from a survey performed by the Pew Research Center. The Pew Forum on Religion & Public Life, “American Views on Religion,” Politics & Public Life, April 2001, p. 1.
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