Will the waning Barack Obama administration rewrite religious hiring rules?

Rainbow Flag at the White House

Church-and-state disputes are a hot beat and it's getting hotter all the time.

We have religious objections over the government’s transgender bid to control school toilets and locker rooms nationwide, the Supreme Court’s bounce back of the Little Sisters’ “Obamacare” contraception case, states’ debates over whether merchants can decline gay wedding services on religious grounds, and much else.

Media coverage to date shows little interest in how church-state policy might be affected by a President Clinton, or a President Trump, or the jurists on Donald Trump’s recent Supreme Court list, or a Justice Merrick Garland. Will this be raised at a big June 9-11 “religious right” confab in D.C.? Speakers will include Trump and former challengers Cruz, Fiorina, Huckabee, Kasich, Paul, and Rubio, plus House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell.

Meanwhile, interest groups are ardently lobbying the Obama Administration to change religious hiring policies during its waning days. At issue is application of the federal Religious Freedom Restoration Act (RFRA) under the 2007 “World Vision memorandum” (click for .pdf) from the Bush Administration’s Department of Justice.

World Vision, a major evangelical organization, had landed a $1.5 million grant to provide mentoring for at-risk youths. The memo ruled that it’s legal for such religious agencies fulfilling service programs through  federal grants to consider religious faith in their hiring. The Obama White House has thus far resisted pressure to abolish that policy, most recently in a Feb. 22 letter from ranking Democrats in the U.S. House.

An article by Sarah Smith for ProPublica.com, an investigative journalism site, publicized a May 10 critique of the Bush-era memo from Columbia University Law School’s Public Rights/Private Conscience Project, endorsed by 15 constitutional scholars at 11 schools (.pdf here). Among the signers is Frederick Mark Gedicks of Mormonism’s Brigham Young University.

These academic protesters raise two concerns. First, they argue that the government doesn’t force faith-based non-profits to apply for grants and if they do they shouldn’t discriminate  in hiring. Second, they are upset that the Bush-eramemo is cited to refuse abortion and contraception services on conscience grounds. Related to the second aspect, new Obama Administration guidelines that took effect May 4 will facilitate filing of religious discrimination complaints by aid recipients.

There’s plenty of room left for fresh in-depth coverage because Smith reports little of the legal reasoning in the 25 pages from the Bush Justice Department. Also ignored is a similar appeal to President Obama last Sept. 10 from 70 scholars and religious executives (.pdf here). The signers’ key contention is that protection of religious hiring under Title VII of the 1964 Civil Rights Law is not surrendered if an agency receives government funds.

Many of the signers are the usual suspects, as in the leaders of Catholic and conservative Protestant colleges, U.S. Catholic bishops’ conference, National Association of Evangelicals, Hispanic Evangelical Association, Evangelicals for Social Action, Agudath Israel, Institutional Religious Freedom Alliance, American Center for Law and Justice, Center for Public Justice, Association of Christian Schools International, Christian Legal Society, World Relief, Bethany Christian Services, Billy Graham Evangelistic Association, InterVarsity Christian Fellowship, Youth for Christ, Young Life, Navigators and -- yes -- World Vision.

However, two names will leap out for astute reporters: Douglas Laycock and Michael McConnell.

You could make the case that these are today’s two most important analysts of the religion clause(s) in the Bill of Rights. Laycock is Distinguished Professor of Law at the University of Virginia and McConnell directs the Constitutional Law Center at Stanford University. They are active in filing briefs in religion cases and often take opposite sides, but are united here.

Why? After pondering the texts cited above, phone calls to these two experts would be the next step for a solid follow-up.

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