Fifty-eight religious and civil organizations, including 11 Jewish groups, wrote Attorney General Eric Holder last week urging him to review and withdraw a Bush administration legal memo which stated that religious organizations receiving federal money could take religion into account when hiring — and thus were exempted from employment discrimination laws. The memo argued that the 1993 Religious Freedom Restoration Act allowed religious organizations to claim that it would be a "substantial burden" to hire employees outside of its religious faith, and the government needed to show a "compelling interest" why the religious organization should have to hire outside its faith — an interpretation of that legislation that the organizations said was "erroneous."
American Jewish Congress acting co-executive director and general counsel Marc Stern wrote his own letter agreeing with the previous letter that the memo should be withdrawn, and adding some other objections to the memo:
First, it concludes without substantial discussion that a withholding of discretionary funding because a potential recipient won’t comply with a condition of funding constitutes a burden. …
Second, even more disturbing, is the entire absence of any discussion in the memo of a compelling interest in enforcing civil rights laws in the funding context even in the face of a burden on religious liberty. This is doubly perplexing. Government officials should consider in every case whether a statute enacted by the legislature reflects a truly compelling interest. Many will not, but respect for the legislative process requires that the analysis be undertaken. This analysis is doubly important where the statute in question is a civil rights statute, reflecting the national commitment to equality which is as important as the national commitment to religious liberty. The absence of any discussion of possible compelling interest in not funding discrimination, as opposed to not regulating it–which will likely vary from case to case-is a fatal flaw in the memo. We do not assert, as some do, that the civil rights laws always provide a compelling reason to burden religious liberty. But they often will, especially in the funding context. That the OLC wholesale failed to
consider that possibility is quite surprising. It is a misrepresentation of RFRA to omit such an analysis.
The full letter is after the jump:[[READMORE]]
Dear General Holder:
I am writing both to echo the call of a wide range of organizations in a letter to you dated September 17, 2009 urging the withdrawal of the June 29, 2007 Memorandum of the Office of Legal Council(OLC Memo) concerning religious employment discrimination by faith-based providers receiving government financial assistance, and to put our objections on a somewhat different footing than the earlier letter did.
The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (RFRA), which the OLC Memo interprets, applies by its terms to all federal statues. It requires government to mitigate "substantial burdens" on religious practice, unless it has a "compelling interest" in not doing so. The OLC Memo is quite correct to apply RFRA’s test to civil rights statutes banning employment or other discrimination. The memo, however, falls short in two important respects. First, it concludes without substantial discussion that a withholding of discretionary funding because a potential recipient won’t comply with a condition of funding constitutes a burden. The question of whether conditioning government funding on a waiver of what would otherwise be constitutionally or statutorily protected activity is a complicated one, one on which the law speaks with more than a single voice. Compare Rust v. Sullivan, 500 U.S. 173 (1991) with Velazquez v. LSC, 531 U.S. 533 (2001). These cases, and their progeny, are not discussed in the memo. Burden is a threshold issue under RFRA, and the OLC’s failure to address it carefully is troubling.
Second, even more disturbing, is the entire absence of any discussion in the memo of a compelling interest in enforcing civil rights laws in the funding context even in the face of a burden on religious liberty. This is doubly perplexing. Government officials should consider in every case whether a statute enacted by the legislature reflects a truly compelling interest. Many will not, but respect for the legislative process requires that the analysis be undertaken. This analysis is doubly important where the statute in question is a civil rights statute, reflecting the national commitment to equality which is as important as the national commitment to religious liberty. The absence of any discussion of possible compelling interest in not funding discrimination, as opposed to not regulating it–which will likely vary from case to case-is a fatal flaw in the memo. We do not assert, as some do, that the civil rights laws always provide a compelling reason to burden religious liberty. But they often will, especially in the funding context. That the OLC wholesale failed to
consider that possibility is quite surprising. It is a misrepresentation of RFRA to omit such an analysis.Thank you for your consideration of our views.
Sincerely,
Marc D. Stern
Help ensure Jewish news remains accessible to all. Your donation to the Jewish Telegraphic Agency powers the trusted journalism that has connected Jewish communities worldwide for more than 100 years. With your help, JTA can continue to deliver vital news and insights. Donate today.
