President Bush has made it easier for faith-based groups to win government contracts while allowing them to reject job applicants based on their religious preferences.
He did it by circumventing Congress, issuing two executive orders during the recent congressional recess to adopt contentious measures that had held up passage of his faith-based initiative on Capitol Hill. Several other new federal actions also eased the way for faith-based groups to get government funds.
The executive orders left opponents steamed and faith-based service providers optimistic, although somewhat confused about the details.
“Clearly, the intent was to circumvent the democratic process,” said Rob Boston, assistant director of communications for Americans United for Separation of Church and State.
Bush signed the two orders in December. One exempts faith-based groups from a 1965 regulation that prohibits federal contractors from engaging in employment discrimination. Under the order, religious-based organizations that win federal contracts will retain their waiver to Title VII of the Civil Rights Act, allowing them to discriminate in hiring based on religion. The order does not address grant recipients.
The order also clarifies that the federal government will not discriminate against religious organizations seeking federal grants, that organizations using federal grants cannot discriminate against beneficiaries on the basis of religious beliefs, and that federal money cannot be used to support “inherently religious” activities like worship, religious instruction and proselytizing.
The Title VII exemption for religious groups was one of the primary stumbling blocks to enacting Bush’s expanded faith-based initiative during the 107th Congress. Opponents argued that the exemption is tantamount to government-sponsored religious discrimination and violates the establishment clause of the Constitution. They urged that any new federal programs with a faith-based component should not include the exemption from Title VII.
Faith-based advocates argued that imposing hiring restrictions on grant recipients would violate the rights of a religious organization to retain its religious character.
Existing faith-based laws vary on the hiring discrimination issue. For example, the faith-based provisions of the Welfare to Work Act include the exemption, but the provisions of the Workforce Investment Act do not.
The other executive order establishes a Center for Faith-Based and Community Initiatives in the Department of Agriculture and the U.S Agency for International Development, bringing to seven the number of such centers. Each center works to ensure agencies are not restricting faith-based organizations from participating in grants programs.
Although the orders were issued to clarify existing law, they may have had the opposite effect.
“What is most needed is some clarification, and I don’t think the executive order provided that kind of clarification,” said Jill Schumann, president of Lutheran Services in America. “Faith-based organizations generally want to be clear about what are the restrictions and what are the benefits.”
The Roundtable on Religion and Social Welfare Policy, sponsored by the Pew Charitable Trusts, agrees that the clarifications may need clarification.
“The newly proposed rules ... offer some useful clarification on partnerships between [faith-based organizations] and the federal government. But they may exacerbate significant ambiguity that remains about the application of the establishment clause in this context,” roundtable scholars Ira C. Lupu and Robert W. Tuttle wrote in a December review of the action.
U.S. Rep. Bobby Scott (D-Va.), a tenacious opponent of the initiative, said the language of the executive orders was perfectly clear.
“You cannot use poll-tested euphemisms and pass this off as anything other than ugly discrimination,” Scott said in a prepared statement.
In addition to the executive orders, several federal agencies proposed new guidelines to implement the faith-based initiatives already enacted into law, including the Department of Housing and Urban Development, the Substance Abuse and Mental Health Services Administration and the Administration for Children and Families.
The HUD proposal drew some attention, as HUD issued potential rules to allow religious organizations to use federal money to acquire, build or renovate buildings used for both religious and government-supported services.
Public funding would be limited to those portions of the building that are used for secular programs. That could be impossible to regulate, critics said.
“These are houses of worship we’re talking about. Their purpose is to practice and spread religion,” Boston said.
Bush also announced that religious-based organizations are now eligible for disaster assistance from the Federal Emergency Management Agency, retroactive to January 20, 2001. The administration noted that the Seattle Hebrew Academy, closed for two years after a 2001 earthquake, is now eligible for federal assistance.