Certificates of exemption

Sarah Posner reported on this back in August 2012.

Rcent disclosures by the Department of Justice reveal that the Obama administration has continued a policy, first put in place by the Office of Legal Counsel in the Bush Justice Department, of granting faith-based recipients of taxpayer dollars certificates of exemption from federal laws prohibiting religious discrimination in employment by such organizations receiving federal funds.  

A very good book about the Bush-era origins of this is Kingdom Coming by Michelle Goldberg.

Since President Barack Obama launched his Office of Faith-Based and Neighborhood Partnerships shortly after taking office in 2009, the Coalition Against Religious Discrimination (CARD) has been assiduously asking the administration a simple question: why are faith-based organizations that receive taxpayer money¬†permitted to discriminate based on religion in hiring, and under what circumstances? For over three years, CARD members have remained frustrated not only with the refusal to change the policy, but the administration‚Äôs unwillingness to explain exactly how the policy is being implemented. Last year, at a townhall at the University of Maryland, Obama himself would not explain the policy,¬†saying¬†only, ‚ÄúI think that the balance we tried to strike is to say that if you have set up a nonprofit that is disassociated from your core religious functions and is out there in the public doing all kinds of work, you have to abide generally with the nondiscrimination hiring practices. On the other hand, if it‚Äôs closer to your core functions‚Ķ then you might have more leeway to hire someone who is of that religious faith. […] I think we‚Äôve struck the right balance so far.‚ÄĚ

Late last year, CARD sent requests, ‚Äúsimple questions‚ÄĚ about the policy, said¬†Dena Sher, Legislative Counsel at the ACLU‚Äôs Washington Legislative Office, to the faith-based offices housed in a dozen federal agencies. CARD received no response, and no acknowledgment of follow-up meeting requests, she said.

Under questioning by members of the House Judiciary Committee, however, the Justice Department has been pushed to be more forthcoming, and what ‚Äúcase-by-case‚ÄĚ means is becoming a little clearer. Although Attorney General Eric Holder attempted to¬†dodge¬†the question in a 2011 House Judiciary Committee hearing, in response to written questions from Rep. Bobby Scott (D-VA), DOJ admitted in June 2012 that the Department grants faith-based grantees certificates of exemption from laws prohibiting religious discrimination.¬†The sole legal authority for these exemptions lies in a¬†2007 Office of Legal Counsel memo [.pdf]¬†written by Bush administration lawyers, concluding that the Religious Freedom Restoration Act ‚Äúprotects this right¬†to prefer co-religionists for employees even if the statute that authorizes the funding program¬†generally forbids consideration of religion in employment decisions by grantees.‚ÄĚ

See that? RFRA again. What a mistake that law was.

Although it was unclear at the time exactly how the Obama administration was implementing the Bush OLC memo, in 2009, CARD¬†asked¬†the Department of Justice to revisit the memo‚Äôs legal conclusions, on the grounds that it ‚Äúwrongly asserts that RFRA is ‚Äėreasonably construed‚Äô to require that a federal¬†agency categorically exempt a religious organization from an explicit federal nondiscrimination¬†provision tied to a grant program.‚ÄĚ The¬†Los Angeles Times¬†editorialized¬†that ‚Äúboth the 1st Amendment and a reasonable reading of federal law require a reversal of the Bush policy.‚ÄĚ The¬†New York Times, also in an¬†editorial, said the memo was ‚Äúbased on a far-fetched interpretation of the 1993 Religious Freedom Restoration Act.‚ÄĚ In a 2010 letter, CARD¬†charged¬†that¬†continued reliance on the 2007 OLC memo ‚Äúthreatens core civil rights and religious freedom protections‚ÄĚ and that the administration‚Äôs vague case-by-case approach ‚Äúraises the problem of religious selectivity and provides scant opportunity for transparency or accountability. Following this approach indefinitely while leaving the Bush-era rules in place forestalls a critical opportunity for prophylactic guidance and presidential leadership against employment discrimination within federally-funded social welfare projects by faith-based grant recipients.‚ÄĚ But¬†DOJ has declined to revisit the memo. Although it has made clear it is leaving the memo‚Äôs legal reasoning in place, until the June 2012 written responses to the Judiciary Committee, DOJ has not explained how the ‚Äúcase-by-case‚ÄĚ review was actually being implemented, or admitted that it was continuing the Bush procedure of granting the certificates of exemption.

This is why we can’t have separation of church and state.


  1. says

    Since President Barack Obama launched his Office of Faith-Based and Neighborhood Partnerships shortly after taking office in 2009

    To be fair, this is a continuation of the Bush-era vote-purchasing program — which amounted to flinging bags of (unaudited and unregulated) cash at churches so they could buy new rooves, pave parking lots, and teach the technique of abstinence. Under Bush over $400mm was spent on church programs teaching abstinence-only sex ed. Obama, understanding full well how corruption and vote-buying works, continued the program.

  2. says

    Oh – and under Bush, the Office of Neighborhood and Faith-based Initiatives used to keep a document describing some of the pay-outs. Now, with the most transparent goverment totes evah, the taxpayers can’t tell where their money is going anymore.

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