President Barack Obama’s White House website stresses that he is a civil rights president who is “leading the fight to protect everyone – no matter who you are, where you’re from, what you look like, or who you love.” Yet, the president continues to enforce a policy that allows taxpayer-funded religious discrimination. This troubling policy allows faith-based organizations to take government funds to perform social services for the public and ignore laws that prohibit employment discrimination on the basis of religion.
As explained in a letter sent today by 130 national organizations to Obama, “If left in place, the [policy] will tarnish the legacy of your work to advance fairness and equal treatment under the law for all Americans.”
Americans United joined this unprecedented coalition to ask Obama to finally end this deeply harmful policy. The coalition includes religious groups (like the Baptist Joint Committee for Religious Liberty, Union for Reform Judaism, and the United Methodist Church, General Board of Church and Society), reproductive rights groups (like Planned Parenthood and NARAL), LGBT rights groups (like HRC and Lambda Legal), civil rights groups (like the NAACP, Leadership Conference on Civil and Human Rights, ACLU, and Anti-Defamation League), and women’s groups (like NOW and the YWCA USA).
Today’s letter urges the president to review and reconsider a poorly reasoned legal memo issued by the George W. Bush administration that relies on faulty legal reasoning. Back in 2007, the U.S. Department of Justice’s Office of Legal Counsel (OLC) reached the flawed conclusion that the Religious Freedom Restoration Act (RFRA), a 1993 federal law intended to protect the religious freedom of those who follow minority religions, grants faith-based organizations that take government funds a broad exemption from anti-discrimination laws.
This means that a faith-based organization that receives government funds to provide secular social services can exclude qualified candidates from jobs that their tax money subsidizes simply because they are not the “right” religion. Just last year, the Obama Administration explained that this policy applies to social services provided with funding from the Violence Against Women Act (VAWA). As a result, even though the VAWA statute explicitly prohibits it, faith-based organizations can discriminate on the basis of religion in hiring.
But it even goes beyond that. Some groups are actually citing this 2007 OLC memo to claim that they can take government money to provide social services and yet refuse to provide the very services they are supposed to provide because they have religious objections. They specifically argued that they should not have to provide appropriate medical care to unaccompanied immigrant children who have suffered sexual abuse.
And, some have cited this OLC Memo to argue that RFRA should broadly exempt religiously affiliated contractors from the nondiscrimination requirements in Executive Order 11246, first signed by President Lyndon Johnson and amended last year by Obama to protect LGBT employees. They argue that they should be able to discriminate against LGBT workers and their families, even though it is plainly forbidden.
It is somewhat shocking that the president has allowed this policy of discrimination to stand.
While on the campaign trail in Zanesville, Ohio, in 2008, Obama indicated that he would seek to repeal the Bush-era policies that permit taxpayer-funded discrimination, including the 2007 legal memo. He said: “If you get a federal grant, you can’t use that grant money to proselytize to the people you help and you can’t discriminate against them – or against the people you hire – on the basis of their religion.”
In March, White House Press Secretary Josh Earnest expressed concern about a state RFRA bill because it “could reasonably be used to try to justify discriminating against somebody” which is “not consistent with our values as a country that we hold dear.” Yet, the president stands by the OLC Memo, which interprets RFRA to allow taxpayer-funded organizations to discriminate even where a statute forbids it.
It’s safe to say the OLC memo is not in line with the values of equality and fairness that the president and his press secretary have espoused.
We hope that the president listens to the 130 national organizations that urge him to overturn this policy.