As a candidate for president, in July, 2008, Barack Obama announced that, while he would continue the faith-based initiative started by President Bush, he would reform it–among other things by ensuring that no organization that received federal funds would be allowed to hire by religion in the services funded by those federal dollars. Nevertheless, and despite persistent criticism from many of his allies, as President he has not made any such change. He has not reversed a Bush executive order that enables faith-based organizations that hire by religion to become federal contractors. He has not withdrawn a Bush-era opinion by the Office of Legal Counsel in the Department of Justice that interprets the Religious Freedom Restoration Act to allow, under certain conditions, religious organizations that hire by religion to participate in federal programs that prohibit religious (and other) job discrimination. He has not issued (at least, not yet), despite great pressure, an executive order banning LGBT job discrimination by federal contractors.

Instead, and notably, his Department of Justice has just issued a memo that details how a faith-based organization that hires by religion can take part–without ceasing religious hiring–in programs funded by the Violence Against Women Act and other programs of the Office on Violence Against Women–even though Congress just last year added nondiscrimination language to those programs.

The congressional action came via reauthorization last year of the Violence Against Women Act (VAWA). The Senate added to VAWA a prohibition on discrimination on a long list of grounds: race, color, religion, national origin, sex, gender identity, sexual orientation, and disability. The language is similar to that in some other federal legislation, such as the Head Start Act, that has been interpreted to prohibit not only discrimination against persons seeking services but also discrimination against employees and potential employees of the organization receiving the federal funds. To avoid excluding as possible grantees religious organizations that hire by religion, there was an effort in the House of Representatives to amend the anti-discrimination requirement, limiting it to discrimination against beneficiaries. But that effort failed. The broad anti-discrimination requirement became law.

However, yesterday the Office on Violence Against Women issued an FAQ memo to explain the new “Nondiscrimination Grant Condition” in the reauthorized VAWA. The FAQs stress that no recipient of VAWA (and related) funds may discriminate on any of the listed grounds against a person who receives or who might receive services. And no recipient of the funds may discriminate, either, on any of those grounds against an employee or applicant for employment.

Except when the protections of the Religious Freedom Restoration Act (RFRA) apply. Question 6 references a June 29, 2007, opinion issued by the Office of Legal Counsel (OLC) in the Department of Justice, which set out how RFRA applies to federal programs that include a ban on religious hiring. The same logic earlier was used by the Bush administration in its SAMHSA Charitable Choice regulations.

To claim the right to continue hiring by religion in programs subject to the VAWA non-discrimination rule, the faith-based organization must complete and file with the government a document certifying that:

* it will not discriminate in providing services (this is a requirement that already applies to all grantees);

* it will not use the grant funds to pay for “activities that contain inherently religious content” (this is a requirement that already applies to all grantees); and

* it “is a religious organization that sincerely believes that providing the services in question is an expression of its religious beliefs; that employing individuals of a particular religion is important to its religious exercise; and that having to abandon its religious hiring practice in order to receive the federal funding would substantially burden its religious exercise.”

The government reserves the right to challenge the truthfulness of these claims, but absent such a challenge, the faith-based organization can receive federal funds governed by the religious hiring prohibition without giving up their religious hiring freedom.

Rather than withdraw the OLC opinion, the Obama administration has applied it to a new religious hiring prohibition.