Religious Liberty Amendment Would Extend Existing Religious Protection to Religious Ministries

Anti-religious freedom groups seeking to prevent church-based ministries from providing critical humanitarian aid and services through government grants and contracts have declared war.

This time, their target is a modest, common sense measure offered by Representative Steve Russell (OK-5), which recently passed in the House Armed Services Committee.

Rep. Russell’s amendment is simple and straightforward: It provides that current federal law protecting the religious freedom of churches and other religious ministries in their employment decisions also applies to those same groups when they come alongside the federal government in providing critical services to those who need them.

It does not substantively change employment discrimination law, and in fact, only clarifies that current statutory law applies in the realm of federal grants and contracts. Specifically, it takes three specific provisions of existing federal employment discrimination law that exempt religious entities from certain employment discrimination laws and clarifies that those exemptions also apply to, and only to, religious entities providing important humanitarian aid and services through grants and contracts with the government.  

In other words, religious entities should not lose their statutory protection just because they work with the government to serve those in need.  

Federal appellate courts have recognized that these statutory protections reflect “the constitutionally-protected interest of religious organizations in making religiously-motivated employment decisions,” and that these protections “cannot be waived” by a religious entity because it accepts federal funds. 

Congress has not applied these employment discrimination statutes to companies working with the government through grants and contracts. Executive Order 11246, however, makes compliance with these rules a requirement for receiving federal funds. While this Executive Order includes an exception for religious entities similar to one of the statutory provisions addressed above, President Obama amended the Order last year by adding “sexual orientation” and “gender identity” to the list of categories federal contractors and grant recipients must agree to hire – even though Congress has not added those categories to the employment discrimination statutes.

As a result, for religious entities to work alongside the government in their ministries, they must now agree to comply with employment requirements that the federal statutes do not impose. This ambiguity generated confusion for religious entities and the Obama Administration’s statements on how it plans to interpret the ambiguity it created show these ministries’ fears are not far-fetched.

These ministries face real questions with real (and devastating) consequences for people benefiting from the valuable services these ministries provide. By working with the government to serve those in need, are they jeopardizing their religious freedoms in hiring and firing? Are they signing away their statutory protections? Are church-based ministries with religious disagreements with President Obama’s new categories less likely to seek federal contracts or grants?  For those still willing to try, are they now less competitive in their bids for those contracts or grants?

Rep. Russell’s amendment simply makes clear that church-based ministries and religious charities retain their First Amendment-based statutory protection as it currently exists; and that they don’t forfeit those protections when providing humanitarian services in tandem with the government. The amendment has one purpose: Religious freedom for religious contractors and grant recipients so they can continue providing critical aid and services to those who need them.

The net result if Rep. Russell’s amendment succeeds? More ministries serving more people. The net result if it fails? Less.

The amendment is not an attack on anyone. The attack, however, is mounted by those opposing religious freedom for ministries – at the expense of the at-risk communities these ministries serve. Consider these demonstrably false accusations being circulated by the anti-religious freedom hardliners:

(1) The amendment is ambiguous and changes the law. This is exactly backwards. The amendment applies existing law to fill in the ambiguity-gap created by the Obama Administration. Nothing more, nothing less. Where an Executive Order applies employment discrimination law to contractors and grant-recipients, the amendment simply ensures that the statutory protection for religious groups is applied as well.

(2) The amendment makes no distinction between religious and secular organizations. Undeterred by the amendment’s plain text, they argue the amendment exempts purely secular contractors and grant-recipients from discrimination law. This argument is doubly false: (1) On its face, the amendment applies only “to any religious corporation, religious association, religious educational institution, or religious society”; and (2) The three existing statutes applied by the amendment to those religious entities are religious exceptions that can only apply to religious entities. 

(3) The amendment allows religious contractors to discriminate in whom they serve while administering aid. This is absurd. The amendment expressly incorporates three existing employment discrimination statutes, which only apply to the employment practices of employers.  Neither the amendment nor the existing laws it incorporates apply in any way whatsoever to how or to whom church-based groups administer their aid. Any suggestion to the contrary is disconnected from reality.

These patently false and shameless scare tactics are dangerous and irresponsible, and jeopardize the immeasurable and invaluable humanitarian work performed by church-based organizations. The message sent by President Obama and his allies is loud and clear: Church-based groups unwilling to sign away their right to hire like-minded employees need not apply. This is wrong. And this is precisely the wrong Rep. Russell’s amendment seeks to right.

Rep. Russell believes that religious charities should not be required to abandon their First Amendment-based statutory protections in order to work with the government to provide humanitarian aid and services. We agree. This concept is anything but extreme, and should transcend partisan politics.

We commend Rep. Russell for courageously advancing the cause of religious charities in the face of baseless agenda-driven attacks, and we urge the full Congress to do the right thing by passing this amendment. Religious ministries – and those they serve – are counting on it.