Stanley Carlson-Thies

March 3, 2016

IRFA has coordinated a letter to Attorney General Loretta Lynch asking her to defend a legal opinion issued in 2007 by the Department of Justice’s Office of Legal Counsel (OLC). That memorandum confirmed that, in those limited instances when a federal funding program includes a ban on religious (and other) job discrimination, a faith-based organization that considers religion in hiring can appeal to the Religious Freedom Restoration Act (RFRA) to be able to take part in the program without abandoning its religious hiring practices. Several Democratic House of Representative leaders had sent the Attorney General a letter alleging that the OLC memo justifies government-funded discrimination and saying it should be withdrawn.

IRFA’s letter was joined by the Union of Orthodox Jewish Congregations, the U.S. Conference of Catholic Bishops, the Christian Legal Society, the National Association of Evangelicals, and World Vision USA. It included as attachments two letters from Professor Douglas Laycock of the University of Virginia School of Law, a premier church-state scholar. Prof. Laycock’s 2009 letter pointed out that the then-critics of the OLC memo provided no real argument against the memo; his 2016 letter notes that the current critics make an argument, but not a credible one.

As the IRFA letter says, the House Democrats’ letter tries to cast suspicion on a practice widely used by faith-based organizations and legal under the 1964 Civil Rights Act: considering religion when deciding who to hire. The critical letter suggests that “fairness and equal treatment under the law for all Americans”must require excluding from federal funding any organization that hires by religion, including denying them the protection of RFRA, in contraction to the argument of the OLC memo. And yet, the IRFA letter says,

“Religious hiring by religious organizations is an important aspect of the equal treatment of organizations: political organizations must be able to screen potential employees on the basis of their political convictions, and religious organizations by religious commitments. And religious hiring by religious organizations is an important aspect of fairness in our society, making it possible for some organizations to provide a faith-shaped employment setting for those who seek it, just as those without such a preference are able to choose from a wide range of employment settings where religion is not an employment criterion.”

“The Administration is continually being urged to reduce religious freedom in the name of preventing religious freedom from being ‘misused to permit discrimination,’as the Representatives’ letter puts it. But it is no gain for society if the freedom of religious organizations to select only staff compatible with their missions and identity is curtailed. This is a misuse of the concept ‘discrimination’ and it can only diminish—discriminate against—religious organizations.”