In Defense of "Discrimination"

I have been following the travails of President Bush’s faith-based initiative and of some of its state-level counterparts since the beginning. After "charitable choice" provisions were inserted in the landmark 1996 welfare reform legislation and in several subsequent laws, everyone assumed, I think, that it would not be too difficult legislatively to apply these principles across the board. Why not "level the playing field" so that faith-based organizations could join with their secular counterparts as providers of government-funded social services? After all, hadn’t organizations like the Salvation Army and Catholic Social Services indeed been doing so since time immemorial?

Well, we’ve all grown older and wiser. We’re into the fifth year of the Bush Administration and still don’t have comprehensive faith-based social service legislation on the books. Of course, since 9/11 we’ve been a bit distracted, but there have been legislative efforts. Nevertheless, most of what the Bush Administration has accomplished has been through executive orders, opening liaison offices in a variety of government agencies, providing the services of this Department of Justice office, and reaching out through a series of regional conferences.

One of the central bones of legislative contention, evident once again in the recent House debate over the Workforce Investment Act, is connected with Title VII of the 1964 Civil Rights Acts, which exempts faith-based organizations from legal strictures against religious discrimination. Churches and other faith-based organizations are, in other words, permitted to take religion into account when they hire employees, a provision upheld unanimously by the Supreme Court in the 1987 case Corporation of the Presiding Bishop v. Amos.

Opponents of the faith-based initiative cry foul when this legal exemption is explicitly extended to government contractors, as it was in the original charitable choice legislation, and as it has been proposed in several recent pieces of legislation. They want no part, they say, of government-funded religious discrimination, regardless of what religious groups are permitted to do on their own dimes.

On the surface, this is a very appealing argument. Our nation’s history and heritage have taught us that religious discrimination by established churches is a bad thing. We have also worked very hard to overcome the legacy of slavery, which for a long time was also upheld by a pattern of legally-enforced discrimination. And then there’s the effect of democracy, noted by Tocqueville, which renders us enamored of uniformity and suspicious of distinctions, all of which seem invidious against a backdrop of equality. The weight of tradition, law, and prejudice are all on the side of opponents of government-funded religious discrimination. They have the easy argument to make.

That’s why I was initially surprised that the Bush Administration didn’t back down, conceding this one small provision in order to win the larger legislative battle, a concession all the more surprising because they have been willing to compromise for the sake of legislative success on so many other occasions.

I’ve come to the conclusion that the "co-religionist exemption"—a nice way of saying "religious discrimination"—is in fact central to President Bush’s faith-based initiative. Here’s why. The premise underlying this particular form of "privatization," employing non-governmental organizations in order to accomplish public ends, is that our social problems are best addressed by the employment of genuinely diverse means. It’s not just a question of efficiency, based upon the generic argument that the private sector can accomplish public ends less expensively and hence more efficiently, but rather that certain organizations can in fact behave differently and hence achieve different effects than can public bureaucracies. Here’s how the President put it in a recent speech:

Part of the test of government is to understand the limitations of government. Government—when I think about government, I think about law and justice, I really don’t think about love. Government has got to find ways to empower those whose mission is based upon love in order to help those who need love find love in society.

In this connection, religious diversity clearly matters. An organization moved above all by love (rather than, say, profit) might treat its clients differently, demanding more of them but also engaging with them more intimately and intensively. Social service workers who feel a religious call to love their neighbors might form bonds of community and relationship with those they serve that are different from those developed in a secular or public social service setting.

Here’s an example. The Georgia Justice Project, a faith-based criminal defense litigator, enters into long-term relationships with its clients, defending them in court, arranging for the social services necessary to deal with the problems that led to the criminal behavior, keeping in touch with them during their incarceration, and offering them employment, through its New Horizon Landscaping business after they leave prison. There are former clients, long out of prison and no longer in need of the transitional employment offered by GJP, who regularly drop into the office to visit with the attorneys and social workers on the staff. No public defender agency could offer this kind of service or enter into this kind of relationship; however effective it might be (and the GJP claims impressive recidivism rates), it is not efficient in a way that is easily reconciled with economic rationality, not to mention with the demand that everyone facing criminal charges be guaranteed access to legal counsel.

Organizations like the Georgia Justice Project would presumably like to hire employees who feel called to enter into these kinds of relationships with the clients they serve. This requires, at the very least, mission-driven hiring. Some organizations of this sort require no more than that, i.e., the ability to hire only those who sympathize with their mission.

But suppose the mission were a little more closely dependent upon a religious point of view, as in the case of a drug-treatment program at whose foundation lay the premise that drug abuse was evidence of a "hole in the soul" of the abuser, which could be effectively repaired only by entering into a relationship with Jesus Christ. Needless to say, this view would not square with professional therapeutic norms. And while an organization that began with this premise might offer all sorts of services that could be offered by a purely secular agency, it would also offer prayer, Bible study, and religious counseling. And it would have to demand that all of its employees were supportive of its entire distinctive array of services.

Now, while it might be difficult to imagine a government providing funding for such an organization, there have in fact been instances where, in the context of individual choice, courts have upheld precisely such programs. That is, where government is funding or empowering individual choice, most often through vouchers, rather than funneling persons into faith-based programs, there is said to be no governmental coercion of religious freedom nor any endorsement of a religious point of view.

But it remains the case that in these instances, government support is offered for organizations that hire in a manner that is sensitive to their religious missions. An organization like Faith Works Milwaukee, whose program was upheld in the case cited above, will hire only those who can support its faith-based mission. Without legal permission to do so, it could not offer the distinctive array of services it provides to those who, empowered by the government, choose to take advantage of them.

Let me return now to my central point. At the core of the faith-based initiative is the recognition that a diverse nation is best served by a diverse array of organizations. And a diverse array of organizations is best preserved by permitting them to make mission-driven hiring decisions. If diversity is good, then religious discrimination in hiring is good.

It is important to note what this means in practice. President Bush’s faith-based initiative envisions funding organizations that do not discriminate in offering their services. As he cracked in the speech above, they serve Methodist drunks, but not only Methodist drunks. If you are a Mormon group interested in serving only Mormons, a Jewish group with an exclusively Jewish clientele, or a Baptist agency serving only Baptists, you are not eligible for federal funding. While there is nothing wrong with communal self-help, it remains, under the faith-based initiative, self-help, not subsidized by the government. But any agency that wishes to reach out, offering its distinctive services to anyone who wishes to make use of them, may do so, potentially with government assistance, assuming that it can prove that its services are in some way effective. And if its distinctiveness requires the support of an explicit sense of religious mission—with crosses, crucifixes, or crescents on the walls, regular staff prayer, and a faith-based board of directors, for example—so be it. Typically such organizations want employees who sympathize broadly with the mission. They’re less fastidious about your denominational fealty than about your willingness to work happily and supportively in a faith-drenched environment. What they don’t want is someone who will object to the prayers or the crosses or the crescents.

In short, all that faith-based organizations really want, for the most part, is the ability that every secular group has, which is the ability to hire only those who support their mission. No one demands, for example, that the National Abortion Rights Action League hire otherwise qualified pro-life receptionists nor that the National Rifle Association hire otherwise qualified pro-gun control public relations staffers. Why may a faith-based drug rehabilitation group not similarly be able to hire only those social workers who support all aspects of its mission?

To those who take the easy line of opposing government-funded discrimination, we have to reply that what the government is funding here is religious freedom, diversity, and individual empowerment. The government is pursuing its legitimate ends in a manner that is both open to innovation and respectful, nay supportive, of the religious freedom of both social service providers and their clients. There is absolutely no reason why we should subordinate these worthy goals to an abstract and oppressive uniformity, no matter how "intellectually satisfying" it may be. If the proponents of the faith-based initiative could win this argument, they would go a long way, not only toward promoting one of President Bush’s most promising domestic initiatives, but also toward remedying one of the principal defects that Tocqueville identified in democratic intellectual and social life.

Joseph M. Knippenberg is Professor of Politics and Associate Provost for Student Achievement at Oglethorpe University.