OK, the broad freedom religious organizations have to consider religion when hiring and firing staff is not the simplest topic, especially if government money is involved.

Our fundamental law on employment civil rights–Title VII of the 1964 Civil Rights Act, as amended in 1972–very clearly states that it is not illegal discrimination if a faith-based organization, unlike a secular one, takes account of religion in its hiring decisions (however, as with secular employers, job discrimination based on sex, race, national origin, etc., is banned). Title VII thus takes account of the central importance of religious beliefs and faith-guided conduct to religious organizations. Title VI of the same law, which sets out anti-discrimination standards for organizations that receive federal dollars, says nothing about religion.

When it comes to federally funded grants to religious organizations to provide services to others, Congress for some programs (e.g., welfare) has specifically stated that religious hiring is permitted; for others (e.g., Head Start) has specifically applied a broad employment discrimination ban that prohibits religious hiring; and for most programs has been silent about employment rules, thus leaving intact the religious hiring freedom for participating religious organizations.

In the case of federal contracts-where federal dollars go to a private organization to provide services such as research, advice, ships, or janitorial services to the federal government-until a 2002 George W. Bush amendment to previous Executive Orders, religious hiring was banned by all contractors. Bush modified the Executive Orders that apply to federal contractors so that, for example, a faith-based think tank would be able to advise the federal government about faith-based policy, even though the think tank, being faith-based, considers religious qualifications when hiring staff.

Now, that wasn’t all that difficult, was it? Religious organizations, because of their religious inspiration and concern about religious values, are different than secular organizations. Employment law generally respects that difference. Even when government money is involved, much of the time religious hiring–a distinctive practice of religious organizations–is respected. After all, when the government provides funds to a private organization, that organization does not become part of government and its employees do not become government employees.

The Rev. Barry Lynn, head of Americans United for Separation of Church and State, managed to get most of this mixed up when he penned his recent Washington PostGuest Voices column, “Faith-based procrastination: Religious job bias in taxpayer-funded program.” He is entitled to his faith-based public policy view that faith should be driven out when the government draws near, but not to his own facts. Religious hiring was not invented by the Bush administration, although Bush did make one change involving federal contracts. Federal law does not, as a general rule, consider it to be “overt discrimination” when a religious organization hires based on religion, even if federal money is involved. Religious hiring by religious organizations is not, in law or fact, “invidious discrimination.” Employment law in the case of federal contracts has always been different than employment law as applied to federal grants.

Rev. Lynn righteously proclaims, “Organizations–religious or otherwise–that take government money must abide by certain rules. That some religious groups don’t want to follow the rules does not mean their religious freedom rights have been violated; they aren’t entitled to these funds, nor are they required to take them. The organization[s] can continue to do their work and discriminate with their own money.” Of course, if the religious organizations getting government money actually are ignoring the actual rules, they would be hauled into court by Rev. Lynn’s organization or its allies. That instead they are just the targets of his op-ed attack shows that the real rules are different than–the opposite of–what he wishes them to be.

And this: it is no help to the argument to end with a flourish with the outlandish claim that employees of a government-supported private organization are in reality “government employees.” You can bet that the employees of the thousands and thousands of faith-based organizations that get a little or much government funding to help people will get laughed away if they ask for their government pension upon retiring from working.