Scott and Conyers: Report Raises Concerns about Organizations Being Given a Blank Check to Discriminate
WASHINGTON - House Education and the Workforce Ranking Member Bobby Scott (VA-03) and House Judiciary Ranking Member John Conyers (MI-13) released the findings of a new report by the Government Accountability Office (GAO) they requested on how federal agencies are implementing the Department of Justice Office of Legal Counsel June 29, 2007 memorandum on the application of the Religious Freedom Restoration Act of 1993 (RFRA) to federal grant programs. Specifically, GAO analyzed the extent to which faith-based grantees have sought RFRA exceptions from statuary restrictions on religious-based hiring in federally funded programs.
“The GAO found that it was not readily able to identify the extent to which faith-based organizations sought exemptions from non-discrimination laws related to religious-based hiring, because the Departments of Labor (DOL), Justice (DOJ) and Health and Human Services (HHS) do not maintain, and are not required to maintain information on which of their grantees are faith-based organizations.
“As a result, the GAO had to hire an outside contractor to cull through IRS data to determine which entities, among the thousands who received federal dollars, are religious-based grantees. After a cumbersome search and cross-analysis of the data, the GAO found that for the years 2007-2015, DOJ, HHS, and DOL awarded funding to at least 2,586 grantees through at least 53 grant programs containing non-discrimination hiring restrictions. Of that total number, 117 of the grantees are “potential” faith-based organizations and 9 of those entities sought exemption from the statutes that bar religious discrimination in hiring. The 9 grantees were funded through the DOJ and 6 of them declared that hiring staff based on their religion was critical to their mission. Consequently, the federal agencies have no idea of what grantees are taking advantage of these RFRA exemptions to bypass statutory non-discrimination provisions in their federally funded grant programs, or if grantees are discriminating in employment decisions in that seeking an exemption.
“While the final number that GAO arrived at is relatively small, it is disconcerting that GAO had to rely on an external data source to determine who the federal government is funding and permitting to discriminate, based on religion, with federal dollars. The lack of accountability will only worsen given the DOJ’s recent October 6, 2017 memorandum entitled ‘Federal Law Protections for Religious Liberty.’ It goes beyond the original 2007 memo and expands the use of RFRA. The 2017 memo relies on a misinterpretation of RFRA to greenlight taxpayer-funded organizations to claim a right to discriminate in hiring on the basis of religion, and further to allow faith-based organizations in receipt of federal funds to apply religious litmus tests to decide who they will serve and what services are applicable in federally funded programs.
“Congress must ensure that organizations who are receiving federal funding do not have a blank check to discriminate when hiring with federal funds. GAO’s findings, coupled with the expansive misinterpretation of RFRA by the DOJ, necessitate the immediate consideration ‘The Do No Harm Act,’ H.R. 3222. The right to religious freedom is a foundation of our democracy and the misuse of RFRA, by this administration and others, is a violation of that very freedom. No one’s religious or moral views should be used as a basis to harm another person by undermining civil rights, access to health care, and employment. The Do No Harm Act restores the original intent of RFRA and makes it clear that RFRA cannot be used a means to weaken civil rights and other protections. Congress must step in to correct the DOJ’s dangerous misstep that threatens the First Amendment and laws that protect civil rights.”
In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) with support from a broad left, right coalition to restore the strict scrutiny standard for religious exercise to provide protection for religious minorities. Shortly after its enactment, civil rights groups became concerned about its use in a series of cases to undermine housing and employment anti-discrimination laws. With time, the misuse of RFRA only compounded and became a key element in the implementation of the Bush Administration’s Faith-Based Initiative.
On February 7, 2002, President Bush announced his plan to federally fund his Faith-Based Initiatives program and sought sweeping legislation that would have permitted faith-based organizations receiving direct federal grants to discriminate on the basis of religion in their hiring when using grant funds. Failing to pass this sweeping legislation through Congress, the Bush Administration sought to enact its policies through executive action by issuing a flawed DOJ 2007 opinion that concluded that RFRA was “reasonably construed” to permit religiously-affiliated federal grant recipients to refuse to hire non-coreligionists for jobs that were funded by taxpayer money, even though the statutes governing the grant explicitly prohibited such religious hiring discrimination. Since its passage, the misuse of RFRA to undermine and weaken civil rights across the federal spectrum has only grown, necessitating a thorough review of its application in federally funded programs. On June 25, 2015, the Ranking Members of the House Committees on Education and the Workforce, Judiciary, and Oversight and Government Reform sent a letter to GAO requesting an examination of how federal agencies are implementing the 2007 opinion.
 42 U.S.C. § 2000bb-1 (2015).
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