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Losing Faith In Obama’s Pledge To End Taxpayer-Funded Employment Discrimination

July 26, 2011 9:47 am ET by Kerry Eleveld

Over the past decade, a "Christian humanitarian organization" called World Vision has received hundreds of millions of dollars in government funding for projects ranging from disaster relief in Africa to "at-risk youth" programs in the United States.

The organization also openly discriminates against religious minorities, stating on its website that "Christian faith is a prerequisite for employment." It is just one example of a faith-based organization that receives U.S. government grants regardless of its discriminatory hiring practices - a policy legalized during the Bush Administration and continued by President Obama despite his campaign promise to end it.

When candidate Barack Obama laid out his plan on the campaign trail to revise the White House faith-based initiative established under President George W. Bush, he drew a line in the sand.

“If you get a federal grant, you can't use that grant money to proselytize to the people you help and you can't discriminate against them - or against the people you hire - on the basis of their religion,” Obama told a Zanesville, Ohio, crowd over three years ago on July 1, 2008.

It appeared to mark a departure from a series of Bush executive orders in 2001 and 2002 that established faith-based offices in the White House and major federal agencies and forged the way for sectarian organizations to practice religious discrimination in their hiring practices even if they were receiving taxpayer dollars from the federal government. And according to Bush White House officials, the administration poured about $10.6 billion into faith-based organizations including groups like World Vision, a “Christian humanitarian organization” that has received hundreds of millions of dollars in support from the U.S. government but also openly discriminates against religious minorities in its hiring.

But when President Obama was asked about his Zanesville commitment during a Maryland Town Hall last Friday, he could not affirmatively tell the questioner that he had ended the practice of allowing religious organizations that receive government money to discriminate in hiring. That’s because when Obama issued an executive order in 2009 creating his version of White House faith-based office, the order did nothing to reverse the policy codified by Bush.

In answering the question, Obama acknowledged that there are certain situations where the government does permit religious organizations to discriminate in their hiring -- even for positions financed by taxpayer dollars. He also said that some religious groups believe the administration has been too restrictive in this area while others believe it isn’t restrictive enough.

“I think we've struck the right balance so far,” Obama offered, “but this is something we continue to be in dialogue with faith-based organizations about to try to make sure that their hiring practices are as open and inclusive as possible.”

In fact, a coalition comprised largely of conservative religious groups is quite pleased with the administration’s approach and sent a laudatory letter to President Obama this month stating, “We commend you and your Administration for maintaining current federal law and policy…” Meanwhile, progressive organizations delivered their own letter to the president just last month urging him to “restore key civil rights protections” that were rolled back by President Bush.

Religious organizations have traditionally been allowed to use religious beliefs as a criteria in their hiring when using their own money – a prerogative provided to them under Title VII of the Civil Rights Act of 1964, which prohibited all other entities from discriminating based on race, color, religion, sex, or national origin. But when receiving federal funds, religious institutions were subject to federal contractor guidelines laid out via executive order by President Lyndon Johnson in 1965 that barred consideration of religious beliefs in hiring.

Bush’s mandate amended that order and radically changed the landscape, tearing down the barriers that had kept highly religious organizations from receiving funding and cutting to the quick of what most Americans think of as a fundamental Constitutional principle – the separation of church and state.

Although groups that have loose religious affiliations like the Salvation Army and Goodwill had long partnered with the federal government to administer basic social services to people in need, fundamentalist institutions and local Houses of Worship that made little-to-no distinction between government programming and their ministry were now eligible for federal funding.

LGBT advocates found the change especially problematic because it legitimized and reinforced the behavior of certain religious institutions that were already predisposed to creating an inhospitable atmosphere for gay, bisexual, and transgender individuals who might seek employment or services.

No more, Obama said in his Zanesville speech.

“I don’t think there was any equivocation or confusion in his statement,” recalls Representative Robert “Bobby” Scott (D-VA).  “There will be no discrimination or proselytization – the structure of the sentences did not allow for any fuzzy interpretation.”

Congressman Scott, who sits on the House Judiciary Committee, has been on a quest to figure out what happened to that campaign pledge, questioning a number of administration officials under oath about the status of the policy. Their answers have varied from deftly worded dodges on the subject to ignorance about the fact that religious institutions receiving federal funding can discriminate on Obama’s watch.

When Scott asked Secretary of Health and Human Services Kathleen Sebelius in May whether federally funded religious organizations could discriminate in hiring, she suggested they could not.

To my knowledge, that would violate the civil rights umbrella that we operate under, Congressman,” Sebelius responded. Her office later sent a clarification to Scott’s office acknowledging that religious organizations can, in fact, “consider the religious orientation of persons that apply for employment provided that no other law applies.”

Members of the Justice Department, which is purportedly conducting a review of the policy, were better prepared for Scott’s line of questioning.

After Scott asked Attorney General Eric Holder also in May whether the government’s grantees can “actively discriminate based on religion,” Holder responded, “We don't want to do that. We try not to do that.”

Scott interrupted, “But, wait, wait a minute. Either you do or you don't. Do you not give grants to organizations that actively discriminate based on religion or not?”

Holder responded, “The attempt we make is not to do that. The -- as I've indicated, our hope is that we do -- the grants that we give are consistent with the law. But beyond that, are consistent with our values.”

But moments later, Holder acknowledged that the Justice Department was still adhering to a Bush-era Office of Legal Counsel (OLC) memo stating that World Vision, the conservative Christian relief organization that has a stated policy of only hiring “Christian staff,” was still eligible for federal funding.

“The memo is still in effect as I understand it,” Holder said, adding, “with regard to that specific OLC opinion, we are not in the process of reconsidering it.”

Holder’s juxtaposition between the law – which presently allows for such discrimination – and their values – which presumably do not condone discrimination of this kind – was a concept also advanced by Assistant Attorney General Thomas Perez last month. Scott recalls Perez, who heads up the Civil Rights Division, reciting his answer from a piece of paper when he was queried on the topic of whether the administration’s policy on faith-based funding was being reviewed.

“The review remains ongoing and again, we're committed to ensuring that we can partner with faith-based organizations in a way that is both consistent with our laws and with our values and that we continue to address these legal questions that you have raised,” Perez said on June 1 in response to a question from Congressman Jerry Nadler (D-NY).

Scott, whose subsequent exchange with Perez in the same hearing on the policy turned a bit testy, calls the answer the type of “gibberish” one uses when they’re hoping to simply put the question to rest and move on.

“I get the sense that they wish it would go away,” Scott says. “You can’t make a decision like this without making somebody mad and to the extent that nobody brings it up, they don’t have to deal with it. And to the extent that no one in America knows that it’s even going on, it doesn’t become an issue.”

On The Trail

President Obama’s announcement of his intention to expand the faith-based office within the White House – widely viewed as an effort to court Evangelical Christians – sent shudders through many queer rights activists.Although gay, bisexual, and transgender individuals are still not protected classes under federal law, allowing religious organizations to discriminate based on faith provides a readymade rationale for not hiring an LGBT person if the applicant’s sexual orientation is viewed as a violation of certain faith beliefs. Additionally by federally funding religious groups that discriminate in their hiring, the government actively promotes programming that is much less likely to generate a welcoming atmosphere for LGBT people in need.

Programs that reject people because of their sexual orientation or gender identity is not a theoretical problem. In January, for instance, a Columbus, Georgia, homeless shelter called House of Mercy received nationwide attention when its director said practicing gays were not welcome there regardless of how desperate their situation and turned away two women allegedly because they were lesbians.

"That act is not tolerated here at all,” Elder Bobby Harris told the local CBS affiliate, WRBL. “Let me tell you one reason why: because of the Bible, of course.”

While House of Mercy has not been tied to federal funding, the organization is, for instance, named in a city of Columbus application for federal grants from the U.S. Department of Housing and Urban Development – an indication that such an entity is viewed as a legitimate partner by the local government.

Current federal law prohibits religious institutions that receive federal funding for a program from turning away potential beneficiaries of services on the basis of their religious practices – a violation that would appear to exist if the shelter were to receive government money since the bias was inspired by religious doctrine rather than simply being based on the recipient’s sexual orientation.

But hiring discrimination that is explicitly leveled at gays on religious grounds is a different matter entirely and is often deemed legally permissible even in states that have stricter prohibitions around employment practices than the federal government.

“When it comes to the LGBT community, people who don’t like LGBT people because of their religious objections have gotten a pass from the courts in a lot of cases,” says Greg Nevins, senior staff attorney at Lambda Legal who specializes in employment law.

Nevins, however, successfully represented Aimee Bellmore and Alan Yorker in a 2003 case against the state-funded United Methodist Children’s Home after both highly qualified counselors were denied employment. Bellmore was fired when the organization learned she was a lesbian and Yorker’s interview was halted as soon as the group learned he was Jewish.

The case was eventually settled on behalf of the plaintiffs for an undisclosed amount and hailed as a victory against discriminatory employment practices on the basis of religion. But it was the state law – not federal statute – that sealed the deal.

“We had a very strong arrow in our quiver because the Georgia constitution has a very rigid provision for spending public money,” explains Nevins. Lambda attorneys led with the state argument but they also reasoned that the organization’s actions violated the U.S. Constitution. That contention, however, would be particularly challenging to prove in court since both federal regulations and the Bush and Obama administrations’ policy allow for it.

When Obama originally announced his intention to expand the faith-based initiative in ‘08, campaign staffers switched into damage control mode with the Democratic base, sending out talking points that sharpened the future president’s commitment to ending government funded infringements on people’s religious liberties.

“Whatever uncertainty there is about employment rights here reflects Bush administration executive orders, which Senator Obama would promptly reverse,” read one talking point. “Let's be clear:  Obama's position on religious hiring rights is a return to the state of the law before the Bush Administration took office and muddied the waters with various executive orders.” 

The talking points also noted that while sexual orientation and gender identity were not federally protected classes, Obama supported passage of the Employment Nondiscrimination Act, legislation that prohibits employment discrimination against LGBT people. (The legislation ultimately stalled in the 111th Congress and likely has no chance of passing in the 112th now that Republicans control the House of Representatives.)

But many progressives remained unconvinced, including Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State.

“This initiative has been a failure on all counts, and it ought to be shut down, not expanded,” Rev. Lynn told the Associated Press at the time of Obama’s speech.

Progressive groups, however, were not the only ones paying attention to Obama’s pronouncement.

“We obviously listened to the Zanesville, Ohio speech [with] some concern,” Richard Stearns, president of World Vision – the Christian relief group that had been the subject of the OLC memo ­– later told National Public Radio. “After that speech, a number of us began to engage the Obama campaign, and we found a very receptive audience.”

Lynn and Stearns both spoke to NPR for that story, which was posted on February 4, 2009 – shortly after President Obama’s inauguration and the day before he signed an executive order creating what is now called the White House Office of Faith-Based and Neighborhood Partnerships. In the story, Lynn and Stearns faced off about whether Obama would reverse the Bush directive and start prohibiting religious groups that receive government money from discriminating in their hiring practices. Lynn was “optimistic” that Obama would hold to his commitment to discontinue federally funded discrimination, while Stearns was confident that Obama had changed his mind.

“World Vision would be forced to walk away from those grants and that would really be tragic because of the thousands and thousands of people we serve,” Stearns told NPR.

When Obama introduced the executive order the next day, it fell far short of the prompt policy reversal promised by the campaign.

Though the White House press release stated that the faith-based program would be “consistent with American laws and values” and reaffirmed the separation of church and state as “a principle President Obama supports firmly,” it advised only that “a new mechanism” would be added by which the executive director of the faith-based office could  “seek the advice of the Attorney General on difficult legal and constitutional issues. 

The president also created a 25-person advisory council that was tasked with generating recommendations for making the faith-based office a more effective partner of community groups that were implementing the initiative on the ground.

The council assembled a diverse group of representatives: some notoriously anti-LGBT people such as Dr. Frank Page, former president of the Southern Baptist Convention, which is a chief sponsor of the “ex-gay” movement to turn gay people straight; and LGBT advocates like Rev. Harry Knox, who was director of the Human Rights Campaign’s Religion and Faith Program at the time, and Fred Davie, an openly LGBT man who had advised the Obama campaign in ‘08 and later worked for the pro-LGBT advocacy organization the Arcus Foundation.

Stearns – whose organization World Vision has received about $650 million in federal funding over the past decade for its anti-poverty work – was also appointed to the council. Beyond the 2007 OLC memo, World Vision also prevailed last year in an employment lawsuit filed by three former employees over religious discrimination. The organization fired the employees when it discovered that they “denied the deity of Jesus Christ and disavowed the doctrine of the Trinity,” according to the decision. After the Ninth Circuit Court of Appeals ruled that World Vision was perfectly within its legal bounds, the company issued a statement reading, “Our hiring policy is vital to the integrity of our mission to serve the poor as followers of Jesus Christ.” 

For his part, Rev. Lynn ended up sitting on a separate task force created to help the advisory council review the White House Office of Faith-Based and Neighborhood Partnerships and suggest reforms. 

But from the very outset, the issue of religious discrimination in hiring practices was taken off the table and the group was explicitly advised not to engage the topic.

Rabbi David Saperstein, who also sat on the advisory council, talked about the exclusion of the employment discrimination matter at a June press conference arranged by Congressman Scott.

“The president did make the decision not to put the employment discrimination issue before the 25 diverse members of the council – he felt it was too controversial and he wanted to have it dealt with inside the administration,” Saperstein explained. “We argued … that we could really be of help to them because, if this group could reach agreement on this very controversial issue and how to deal with it, it would be of great assistance to them.”

The explanation for Obama’s decision was “a moving target” according to Lynn.

“It was just that it would raise additional complexities,” Lynn says, recalling the rationale that was generally offered, “there’ so much we might be able to agree about, we don’t want to burden you with this contentious issue.”

But Congressman Scott has a more explicit theory for the origins of that directive.

“The fact is, half the committee would have walked out the door if they had decided the discrimination issue,” says Scott, referencing organizations like World Vision. “You can’t keep the coalition together and decide the discrimination issue.”

Joshua Dubois, director the White House faith-based office, did not respond to an interview request for this story.

But Scott has a point. Other religious organizations that sat on the advisory board and would be unlikely to support a policy change included the U.S. Conference on Catholic Bishops, Sojourners, the Southern Baptist Convention, and the Union of Orthodox Jewish Congregations of America, all of which signed on to a letter last year urging Congress to preserve their right to discriminatory hiring practices. World Vision was the first signatory of the letter.

Lynn takes Scott’s theory a step further, building on the insight that World Vision president Richard Stearns offered NPR about having to “walk away” from federal grants if the policy were to change.

“I think that this administration is being harangued by the biggest recipients of federal money,” Lynn says.

Justice Delayed

The closest administration officials have come to articulating a policy on what would transgress their values is to say that they will address issues that arise on a “case-by-case basis.”

This was the explanation Joshua Dubois provided to reporters when Obama launched the faith-based office in February of 2009 as well as the one a White House spokesperson offered last month.

“The Department of Justice continues to review this issue on a case-by-case basis,” White House spokespersonShin Inouye said in response to an inquiry from Equality Matters.

The Justice Department did not respond to a request for comment. Though Assistant Attorney General Thomas Perez said under oath that a review of the policy was “ongoing,” he also acknowledged that the Civil Rights Division was not heading up that review.

But Rev. Harry Knox, one of two LGBT people who sat on the 25-member advisory council, is deeply unsatisfied with the progress on this front. He views the continuation of federally funded discrimination as an unfulfilled campaign promise.

“In my thinking, I feel betrayed because the president said they wouldn’t do it,” Knox says. “He promised in Zanesville that he wouldn’t do it, and he’s doing it.”

Of course, the inherent problem with gauging anything “case by case” is that there’s no articulated standard on which to base a judgment.

“Ask a civil rights lawyer what ‘case-by-case basis’ would mean and I’m sure they would suggest that it’s insulting language,” says Congressman Scott. “To me, the discrimination is illegal or it isn’t.”

As Scott sees it, this policy undermines the moral force of the civil rights legislation of the 1960’s – that certain types of discrimination in hiring were so egregious, so inherently reprehensible, that the federal government would restrict it – not only in federally funded programs but even in private enterprise. But as it stands now, religious organizations that receive taxpayer dollars can practice discrimination while private businesses cannot.

“You cannot possibly make the case that discrimination is inherently reprehensible when it’s going on in government programs,” Scott says. “If you can discriminate in a government-funded program, how can we tell a devoutly religious man down the street what he can’t do with his own money? In essence, you lose your moral authority to enforce any civil rights laws.”

Rabbi Saperstein paints a picture from a taxpayer’s point of view.

“No one should pay their tax dollars only to have the government turn that money over to a for-profit or nonprofit entity that would bar that very taxpayer from employment in that government funded program because of that taxpayer's race, religion, national origin, gender, ethnicity, disability, age, sexual orientation,” Saperstein said at the press conference last month. “That is morally wrong.”

Rev. Lynn agrees.

“This is a staggeringly important civil rights issue to be ignored now for two full years,” he says, adding that it affects people who are nonbelievers, minority religious groups, and the entire LGBT community.

But he says the administration has shown no urgency in addressing the topic, despite the fact that administration officials have repeatedly been engaged on the matter by a broad section of labor leaders, civil rights groups, and progressive religious groups since as far back as Obama’s transition into office.

“This is like a turtle stuck on tar,” Lynn says. “This is not rocket science, this is not getting out of Afghanistan, this is not reforming health care in America. This is a very simple thing: You should not give people money – even religious people money – if they will not hire people based on the quality of their work. If they’re going to apply a religious litmus test, they shouldn’t get a dime.”