Religious Nondiscrimination Provision in Pending Federal Legislation Sparks Controversy

The New York Times reports that numerous religiously-affiliated organizations are protesting a religious nondiscrimination provision in pending legislation (H.R. 5466) to reauthorize the Substance Abuse and Mental Health Services Administration.  One provision (Sec. 1947) states that any block funds received under the legislation constitute “federal financial assistance” under certain Civil Rights laws and are subject to the following nondiscrimination requirement as to recipients of services:

(2)   Prohibition. No person shall on the ground of sex (including, in the case of a woman, on the ground that the woman is pregnant), or on the ground of religion, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity funded in whole or in part with funds made available under section 1911 or 1921 [of the legislation].

In effect, recipients of federal funding under this legislation must provide social services free of any religious bias or restriction.

The more controversial provision of the pending legislation deals with religious preference in hiring (H.R. 5466, section 2(a), amending Title V, Part A, section 501 (m)(2)), which provides:

(2) CONSIDERATION OF RELIGION IN EMPLOYMENT DECISIONS- With respect to any activity to be funded (in whole or in part) through an award of a grant, cooperative agreement, or contract under this title or any other statutory authority of the Administration, the Administrator, or the Director of the Center involved, as the case may be, may not make such an award unless the applicant agrees to refrain from considering religion or any profession of faith when making any employment decision regarding an individual who is or will be assigned to carry out any portion of the activity. This paragraph applies notwithstanding any other provision of Federal law, including any exemption otherwise applicable to a religious corporation, association, education institution, or society.

This particular provision would trump the exemption provided to religious organizations under Title VI of the Civil Rights Act of 1964 that permits them to discriminate on the basis of religion in employment.  As reported in the New York Times article, both Christian and Jewish organizations alike are concerned about the impact of the pending legislation on their ability to hire and administer their missions consistent with their faiths and beliefs.  In contrast, the Coalition Against Religious Discrimination (including the ACLU, Hindu American Foundation, and NAACP) support such restrictions and desire that Congress eliminate federal funding of faith-based providers all together.

The debate over religious nondiscrimination in federal funding of social service programs administered by religiously-affiliated nonprofits is anything but new.  Both Presidents Clinton and Bush supported such federally financed programs provided they were administered on a religiously-neutral basis.  However, until this legislation, there was no attempt to impose religious nondiscrimination in hiring on faith-based providers as a prerequisite to federal funding.

(Hat tip:  Jack Siegel at Charity Governance Consulting, LLC)

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