Question: When does a law saying "do not discriminate" really mean "discrimination is allowed"? Answer: Now, since Attorney General Holder yesterday refused to repudiate the Bush Administration’s seemingly deliberate misreading of federal law in the context of grants to faith-based organizations.
One of the gravest flaws of the Faith-Based Initiative that President Obama inherited and has since made his own is that it permits federally funded employment discrimination on the basis of religion. Numerous federal statutes creating grant programs specifically prohibit those receiving funds from engaging in employment discrimination. However, the Bush Administration’s Office of Legal Counsel (OLC) adopted a policy memo turning those provisions on their head.
According to the memo, requiring compliance with anti-discrimination laws as a condition of receiving federal funds can impose a substantial burden on the religious beliefs of faith-based grant recipients. Therefore, it reasoned, such a requirement may be impermissible under the 1993 Religious Freedom Restoration Act (RFRA), which prohibits the federal government from substantially burdening religious exercise unless that burden is the least restrictive means of furthering a compelling governmental interest. According to this harshly criticized legal memorandum, RFRA can be interpreted to let religious grantees ignore very specific nondiscrimination provisions within a federal grant program.
At a hearing before the House Oversight Committee yesterday, upon questioning by Rep. Bobby Scott, Attorney General Holder testified that the OLC memo is not being reconsidered. Even worse, when asked the Obama Administration has adopted that interpretation as its policy, Holder gave a meaningless and evasive answer. According to Congressional Quarterly (subscription required):
SCOTT: So if you're running a Head Start Program, they're running the Head Start Program they can discriminate, even though there's a statutory provision prohibiting discrimination? They can discriminate anyway?
HOLDER: What I'm saying is that in terms of -- with regard to that specific OLC opinion, we are not in the process of reconsidering it. That is not something that, as I understand ...
SCOTT: Well I'm not talking about the memo. I'm talking about the policy. Can they discriminate notwithstanding a specific statutory prohibition against discrimination; they can discriminate anyway based on that interpretation?
HOLDER: Obviously discrimination cannot occur, that is, that contravenes federal law.
Since whether an act of employment discrimination violates federal law is the focus of the debate, Holder’s response is not enlightening.
It is hard to believe that less than three years ago, candidate Barack Obama told an audience in Zanesville, Ohio that "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."