HOME / chatterbox: Gossip, speculation, and scuttlebutt about politics.

Is Bush Subsidizing Bigotry?How the new faith-based executive order will work.

By Timothy NoahPosted Monday, Dec. 23, 2002, at 5:37 PM ET

On Dec. 12, President Bush elevated the likelihood that Trent Lott would get dumped as Senate majority leader from "possible" to "certain." He did so by saying, "Recent comments by Senator Lott do not reflect the spirit of our country. He has apologized, and rightly so. Every day our nation was segregated was a day that America was unfaithful to our founding ideals." Bush's remarks, which eventually led to Lott's resignation, were meant to convey that he would give no quarter to discrimination. Ironically, though, the Lott-bashing came in the middle of a speech announcing an executive order easing up on a federal anti-discrimination policy that's been in effect in one form or another for 60 years.

The original policy was the handiwork of A. Philip Randolph. In 1941, Randolph, president of the Brotherhood of Sleeping Car Porters, threatened a march on Washington to protest discrimination against blacks in the armed forces and the defense industry. To avert the march, President Roosevelt agreed to sign an executive order banning workplace discrimination in the defense industry based on "race, creed, color, or national origin." Roosevelt subsequently broadened the ban to include all federal contractors, and the policy was further expanded by Truman, Eisenhower, and Kennedy. Here is the policy's final iteration, in a 1965 executive order issued by President Johnson:

The [federal] contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.

Bush's new executive order in effect says that if the federal contractor is a religious charity, it may now discriminate based on creed, but not based on race, color, or national origin. Religious groups are already forbidden to discriminate based on sex under Title VII of the 1964 Civil Rights Act. The Bush executive order would essentially bring federally subsidized religious charities in line with the requirements of the 1964 law, which allows religious charities that aren't federally subsidized to discriminate based on religion, but not based on race, color, national origin, or sex. (Prior to Bush's executive order, a religious charity could take federal dollars, but only if it agreed, like Catholic Charities USA, to hire on a non-religious basis.)

At first blush, the Bush policy seems perfectly reasonable. Why shouldn't government-funded religious charities be allowed to favor members of their own religion when hiring, firing, and promoting? If the good works such charities perform are motivated by a strong sense of religious purpose, it would seem foolish to dilute that. The American Civil Liberties Union is currently exercised about the fact that a Jewish psychotherapist named Alan Yorker was denied employment at the United Methodist Children's Home in Decatur, Ga., which gets 40 percent of its funding from the state, for the sole reason that he is Jewish. So, what? The government doesn't withhold grant money from Mount Holyoke on the grounds that it won't admit men. Why should it withhold grant money from a Christian charity on the grounds that it won't hire Jews?

If Bush's get-out-of-jail-free card merely meant that religious groups could favor their own adherents in hiring federally subsidized charity workers, Chatterbox could live with it. Unfortunately, it doesn't. The difficulty arises from the subjectivity inherent in defining this or that person as belonging to this or that religion. If, on being told that Jews aren't eligible for employment, Alan Yorker were suddenly to proclaim himself a Methodist ("Consider me converted"), the United Methodist Children's Home would be right to disbelieve him. The determination that someone is a Methodist, Muslim, or Jew is inseparable from the determination that someone is a "good" Methodist, Muslim or Jew. Once you grant that, the ACLU correctly points out that other forms of discrimination can slip in the back door. Although one can't really second-guess the Children's Home when it says Alan Yorker isn't a Methodist, the Lambda Legal Defense Fund, in a July brief, points out that the Children's Home has also decreed that homosexuals and unmarried heterosexuals who engage in premarital sex are also not Methodists—or at least not sufficiently Methodist to be eligible for employment there.

There isn't much one can do about the large discriminatory loophole religious groups have managed to carve out in the private sector. But it's infuriating that this loophole will now be subsidized by U.S. taxpayers. And it it's especially galling that the man responsible for opening that loophole is currently basking in praise for taking a brave stance against bigotry.

E-mail Timothy Noah at .

Print This ArticlePRINTEmail to a FriendE-MAILShare This ArticleRECOMMEND...Get Slate RSS FeedsRSS
Timothy Noah is a senior writer at Slate.
COMMENTS

Remark From The Fray:

Noah is guilty of fudging or worse when he states that the Civil Rights Act of 1964, otherwise known as Title VII, "allows religious charities that aren't federally subsidized to discriminate based on religion, but not based on race, color, national origin, or sex."

The problem is that section 703 of the Civil Rights Act, which contains the exemption to the anti-discrimination laws discussed by Noah, is not limited to "charities that aren't federally subsidized." It doesn't disciss federal subsidies at all.

All Bush accomplished by amending the 1965 executive order was to bring it in line with the current state of the law. For while it was true that in 1965 few would have contemplated government funding for religious charities, the law of the land is now that such funding is permissible - if provided for a secular purpose based on neutral criteria that do not favor religion - and that such groups may favor co-religionists when making employment decisions.

A more interesting topic than the one adressed by Noah is the effect of an executive order that dirctly conflicts with a statute. Can an executive order forbid "discrimination" that is expressly permitted by statute? The answer is maybe, if it is expressed only as a condition of obtaining federal funds, and depending on the relationship between the prohibition and the federal program at issue.

In fact, the 1965 executive order was on shaky legal grounds, because it is worded so broadly thjat it arguably would forbid a religious cgharity that receives federal funds from discriminating in hiring anywhere in its organization, not just in the program being funded by the government. That would mean that a Cathlic run soup kitchen that obtains a federal grant would not be permitted to insist that its priests are Catholic males. That is in conflict not only with the exemption from the anti-discrimination laws contained in section 703, it is also an impermissible constraint of the First Amendment's free exercise guarantee.

What a shame that Noah has chosen to obscure these issues by rewriting the statute.

-- Avi Schick

(To reply, click here.)

(12/24)

What did you think of this article?
Join The Fray: Our Reader Discussion Forum
POST A MESSAGE | READ MESSAGES
JFK.TODAY'S PICTURES: JFK.
Cartoonists' take on the auto industry.TODAY'S CARTOONS: Cartoonists' take on the auto industry.
Dano the mano. TODAY'S DOONESBURY: Dano the mano.
Washington Post
The Washington Post
OPINIONS
Obama's New Church
Sally Quinn | Where will he worship? My vote is for National Cathedral, a place that transcends political and religious divisions.