by Sarah Smith in ProPublica
The Obama administration has roundly criticized states such as North Carolina and Mississippi for passing laws that allow discrimination in the name of religious freedom. But at the same time, the administration has left in place a 2007 memo from the Bush White House that allows religious charities with federal contracts to discriminate in hiring for federally funded programs.
Now, as Obama prepares to leave office, a group of prominent constitutional lawyers is calling on the Obama White House to revoke the legal memo, which they argue has been used by religious groups to refuse to provide services, including emergency contraception for human trafficking victims, that conflict with their beliefs.
Their arguments are detailed in a legal analysis published this morning by Columbia Law School's Public Rights/Private Conscience Project, which includes contributions of scholars from George Washington, Emory and Brigham Young universities, among others.
The 16-page paper is, in part, an effort to put pressure on Obama to rescind the memo, an action that does not require Congress to act. As a presidential candidate in 2008, Obama criticized the Bush Justice Department for drafting it, but as president failed to follow through.
"For this administration that has been so strong in so many ways on important civil rights questions and in opposition to similar efforts at the state level to sanction discrimination — to allow this memo to remain in place — is really very unfortunate," said Ian Thompson, a legislative representative in the American Civil Liberties Union's Washington, D.C. office.
The Columbia paper, he said, is groundbreaking in terms of both its signatories and its scope. "They cover the waterfront in terms of pointing out the dangers and the harms of the memo being in place," he said.
Bush administration lawyers wrote the memo after the Christian charity World Vision, which serves the poor in nearly 100 countries, objected to a nondiscrimination clause in a $1.5 million Department of Justice grant to fund a mentoring program for at-risk children.
World Vision argued that it should be allowed to hire only Christian employees for the program and that not allowing the group to do so would put a "substantial burden" on it.
As justification, the nonprofit cited the 2000 Religious Freedom Restoration Act (RFRA), which bars the government from substantially burdening people's ability to practice religion unless it has a compelling interest to do so.
The Bush White House's Office of Legal Counsel interpreted the law to mean that World Vision—and by extension, other faith-based organizations—could hire on the basis of faith for federally funded positions.
World Vision argues that withdrawing the memo will only hurt the poor recipients of the charity's help. "[It] would call into question federal laws and would divert faith-based grantees' time and funds from serving the needy to litigating to re-clarify the law," World Vision's chief legal officer, Steve McFarland, said in a statement.
The Columbia analysis says that since the government is not forcing faith-based organizations to apply for grants, it invalidates the argument that they are being substantially burdened. Instead, the organizations are freely choosing to bid on government contracts with certain conditions specified in advance.
The analysis also highlights examples in which some religious groups have expanded the scope of the 2007 memo, using it as a legal justification to cherry-pick what provisions of a federal grant to fulfill.
For example, when the United States Conference of Catholic Bishops (USCCB) won a 2005 grant from the Department of Health and Human Services (HHS) to provide assistance to human trafficking victims, the bishops did not provide contraception or abortion. The ACLU sued HHS in 2009, and the agency ended its contract with the USCCB in 2011.
"The agency is writing the terms of the grant," said George Washington University Law professor Ira Lupu, who signed the Columbia analysis.
Grant applications don't ask faith-based organizations for their potential objections, and government oversight of grant recipients varies from agency to agency.
In 2014, as unaccompanied children fleeing violence in Central America were held at the U.S.-Mexico border, the Office of Refugee Resettlement drafted guidelines for grant-receiving agencies working with the minors. The proposed rules required caregivers to provide emergency contraception or abortion to children who required it.
The USCCB, along with four other faith-based organizations, wrote a letter in February 2015 to the Obama administration to ask for a faith-based exemption to the contraceptive/abortion requirement in the grant rules.
The USCCB cited the World Vision Memo in the letter. The Office of Refugee Resettlement hasn't yet issued finalized rules.
Some legal scholars argue that by keeping the memo in place, the Obama White House is giving ammunition to groups who sue the government in religious liberty cases.
In March, the federal government argued against expanding RFRA in the Supreme Court case Zubik v. Burwell, which centers on just how far to accommodate religious nonprofits that object to the mandate to provide contraception to employees.
"If the inability to receive a grant constitutes a substantial burden on religion, then certainly the requirement to do something would seem to constitute a substantial burden," said Robert Tuttle, a law professor at George Washington University who signed the Columbia analysis.
The Obama administration has taken steps to address religious discrimination by faith-based organizations.
On May 4, new guidelines went into effect that require government agencies to provide a channel for people receiving aid through federal grant programs to report wrongdoing by service providers. The guidelines follow a 2010 executive order—updating a Bush executive order—that prohibits discrimination against aid recipients.
"The Administration has not condoned religious discrimination against beneficiaries of federal aid," Melissa Rogers, special assistant to the president and executive director of White House Faith-Based and Neighborhood Partnerships, said in an emailed statement, citing the May 4 guidelines and the 2010 executive order.
The White House referred direct questions on the World Vision Memo to the Justice Department. The Justice Department and the authors of the memo did not respond to requests for comment.
But, legal experts say, the Obama administration is not doing all it can to protect beneficiaries until the World Vision Memo is rescinded. Katherine Franke, faculty director of the Public Rights/Private Conscious Program at Columbia, said the guidelines put the onus of spotting and reporting wrongdoing on already vulnerable populations.
"What we're talking about is on one hand general guidance coming from the government and on the other hand a set of legal arguments," Tuttle said. "So these are government-made legal arguments that lawyers for [grant] recipients can use and say, ‘We know those are your general guidelines, but we are different, and you recognized that in the [World Vision] memo.'"
The Columbia analysis follows several recent high-profile attempts to get the administration to reconsider the memo.
Members of Congress wrote to Attorney General Loretta Lynch in February asking for a review and reconsideration of the memo.
Advocacy groups wrote letters in 2014 and 2015. Maggie Garrett, legislative director for Americans United for Separation of Church and State, said the groups haven't received a response.
Just as many organizations have written to the administration asking that it keep the memo in place.
University of Virginia School of Law professor Douglas Laycock, who filed a brief with the Supreme Court in favor of the government's position in Zubik, has assured the administration that the memo is legally sound.
At the very least, the authors of the Columbia analysis hope the administration formally clarifies that the memo only applies to religious hiring — and no more.
"Leaving it in place tarnishes the civil rights record of the Obama administration," Garrett said.
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