As noted in the previous issue of the eNews for Faith-Based Organizations, the bill Congress recently passed (now signed by the President) to reauthorize the Violence Against Women Act (VAWA) includes broad non-discrimination language that not only forbids discrimination on various bases against victims needing assistance but also bans grantees from taking account of religion when hiring staff–even though federal employment law protects religious hiring by religious organizations.

Perhaps Congress will ignore the misguided analysis of the Coalition Against Religious Discrimination next time and adopt narrower language that protects the right of all victims of domestic violence to get help while also protecting the freedom of faith-based service organizations to partner with the federal government to render that assistance.

In the meantime, faith-based organizations that care about religious hiring while also desiring to serve in the VAWA program have a federally approved way to get involved in the program without sacrificing their religious hiring freedom. The Religious Freedom Restoration Act forbids the government from imposing a substantial burden on an individual’s or organization’s religious exercise unless the government has a compelling interest and cannot satisfy it in a less burdensome way.

The Office of Legal Counsel in the Department of Justice in 2007 opined that, because of RFRA, a religious organization that hires on a religious basis may nevertheless participate in a federal program that bans religious discrimination in employment. To do so, the organization has to certify that religious hiring is important to the maintenance of its religious identity, that it hires based on religion in other service programs, that receiving the grant will significantly affect its ability to provide the services, and that providing such services is a reflection of or response to its religious mission. Having certified to these things, the government is to permit the organization to take part in the program without first abandoning its religious hiring practices.

Gaining entrance to VAWA despite a religious hiring policy is likely to require making a careful argument to the government officials involved. Organizations will want to consult:

* The Office of Legal Counsel memo dated June 29, 2007.

* The SAMHSA Charitable Choice regulations that spell out how an organization can claim the RFRA lifting of a religious hiring ban: 42 CFR 54.6: Employment Practices.