Faith-Based Funding and Job Discrimination
There are two basic problems. First, there isn't enough oversight to ensure that religious organizations adhere strictly to such rules. The Bush administration has actually fought attempts to get groups to follow the rules. Second, all the nicest rules in the world won't help when religious groups use public funds to engage in otherwise legal discrimination — like against gays, for example. Neither of these problems would exist if the government simply administered the programs directly, instead of seeking out churches to it, or only provided funds to secular groups and explicitly secular arms of religious groups.
The American Civil Liberties Union and Americans United for Separation of Church and State filed a brief today in a federal appeals court urging the court to allow a discrimination lawsuit to go forward on behalf of a lesbian who was fired from her job at a publicly-funded Baptist group home in Kentucky. The home for vulnerable children required the woman to observe its religious belief that being a lesbian is sinful. The brief also charges that taxpayers should be able to challenge the state of Kentucky’s decision to give public funds to a home that imposes its religious beliefs upon the children in its care.
“I put my heart and soul into helping the children who were under the care of Baptist Homes and was making a difference in their lives,” said Alicia Pedreira. “It was unfair to be fired for being a lesbian. It’s not right that an organization that is funded by state and federal dollars to do work for the state can get away with this.”
...After years of litigation, the district court dismissed the case on March 31, 2008. The legal groups appealed that decision to the Federal Court of Appeals for the Sixth Circuit and are urging the court to allow the case to proceed.
Source: ACLU (via Pandagon)
Why did the lower court dismiss the original lawsuit? What argument did the Baptists use to justify the use of public funds to discriminate against a gay employee? Basically, they argued and the court agreed that the Baptists did not actually engage in religious discrimination when they fired a gay employee based on religious dogmas. It would have been "religious discrimination" to force Pedreira to believe that homosexuality is sinful, but it is not "religious discrimination" to force Pedreira to live according to the doctrine that homosexuality is sinful.
If this seems like it might be an absurd and even dangerous interpretation of laws against religious discrimination, you'd be right. If this interpretation were standard, then religious groups would be free to use public funds to discriminate against employees (refuse to hire them, fire them, refuse to promote them, etc.) who fail to conform any aspect of their lives — including their private lives outside the workplace — to a religious group's dogmas.
You don't have to agree that dancing is sinful, but you'll be fired if you're caught dancing outside work. You don't have to agree that donating blood is sinful, but you'll be fired if you do donate blood. You don't have to agree that demons cause illness, but you'll be fired if you seek medical treatment from a licensed physician instead of a church-approved exorcist. You don't have to agree that eating pork is sinful, but you'll be fired if you're caught with a hot dog. You don't have to agree that it's sinful for women to go around uncovered or be in presence of men other than close male relatives, but if we see your wife unveiled or in public alone, you'll be fired.
Religious discrimination can seen from two directions. The "classic" perspective involves a person who is discriminated against because of their religion — for example, anti-Semitic discrimination against someone simply because they happen to be Jewish. Religious discrimination also works from the other direction, when a person discriminates against others because of their own religious beliefs. This is what happens when an employer treats employees worse because they fail to accept or live according to particular religious doctrines — like for example if they dance but the employer believes that dancing is sinful.
These are usually two sides of the same coin rather than completely distinct forms of discrimination because any discrimination of the second type can be described in terms of discrimination of the first time. If an employer believes dancing is a sin and fires a person who is caught dancing, it's possible to say that the employee was fired because they insist on holding to a religion which doesn't treat dancing as a sin. Is this really so different from an employee being fired because they insist on holding to a religion which doesn't treat Jesus as divine or which doesn't treat Muhammad as a prophet of God?
So when Pedreira was fired for failing to live according to her Baptist employer's belief that homosexuality is a sin, she was also fired for insisting on adhering to a religious or secular philosophy which doesn't treat homosexuality as a sin — or to put it another way, she was fired because she refused to subsume her own beliefs and conscience to the beliefs and conscience of her employer. How is this not religious discrimination? In fact, almost any and every form of religious discrimination could be legitimated if we were to accept the absurd notion that it's not "real" discrimination when you condition employment — and remember, this employment was being paid for by us taxpayers — on conforming to your personal religious beliefs.
Officials at Kentucky Baptist Homes declined several requests for interviews. However, its website says Pedreira was dismissed not on religious grounds, but on therapeutic ones. In public statements since firing Pedreira, Kentucky Baptist Homes President Bill Smithwick has said that he's against "promoting homosexual behavior." "Such behavior could result in emotional and life-threatening physical consequences. We don't think we need to be promoting it by saying, 'Yes, Alicia is an employee of ours, and she's a homosexual-- that must be okay…' We're not saying that that's okay, that's not okay."
That's a good position for Smithwick to take because there's no federal law that bans discrimination against homosexuals, and there is no such statute in Kentucky. This case could set an important precedent. Proponents of Charitable Choice say that allowing faith-based groups to hire in a manner consistent with their beliefs, in short, to do what Kentucky Baptist Homes did, is essential and even fair. They point to other ideological organizations. For example, environmental groups wouldn't hire anti-environmentalists. They contend that faith based groups should likewise be free to hire people whose views are consistent with theirs.
Source: WBUR
Is it really credible that employers can and should be treated as giving their approval to everything their employees do during their own time away from work? If one of their employees goes hang-gliding, is the Kentucky Baptist Home approving of it simply because they don't fire him? Do they approve of employees picking their noses when they don't fire them? Is it a sign of approval when they don't fire employees who jaywalk? Of course not — all that can only be described as stupid. It would be stupid for an outsider to interpret non-firing as approval and it's stupid for the employer to think that non-firing is an expression of approval.
Well, it would be merely stupid if this excuse were presented sincerely, but does anyone believe that it's sincere? Frankly, I don't. My reasons are fairly straightforward: I don't for a second believe that they think they necessarily approve of everything their employees do. This idea is only being offered now and in this context. Why would they do this? Because they are desperate for some rational-sounding and legal-appearing excuse for having engaged in faith-based discrimination on the basis of faith-based homophobic bigotry.
Faith-based organizations have a right to endorse faith-based bigotry, but not with our tax dollars and that's where what might be mere stupidity that was revealed to be faith-based bigotry actually rises to the lofty heights of faith-based theft. Yes, I think it's a form of theft when faith-based organizations take public dollars to engage in faith-based proselytization or faith-based discrimination. If proselytization and/or discrimination are so important to their faith, they can and should do it on their own dime. Not mine.
The analogy to environmental organizations isn't merely weak, it's dishonest. It's weak because the government isn't in the habit of funding private environmental organizations. I don't see any presidential candidates trying to create a new office of environment-based funding. It's dishonest because the government is specifically prohibited from promoting, funding, or endorsing any religions or religious beliefs, but it's not prohibited from promoting, funding, or endorsing any environmental beliefs. The Constitution itself establishes a different set of rules for working with religion and religious groups.
I don't think it's credible that Kentucky Baptist Homes is unfamiliar with the First Amendment or with the fact that these different standards exist. In fact, I'm confident that they would be quick to appeal to those differing standards as soon as it was in their interest to do so. If the government tried to exercise influence over what sort of material the Baptists distributed in a way they might be able to do with an environmental group, do you suppose the Baptists would complain? You bet they would. So pretending like they should be treated according to the same standards here just isn't honest.
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In other news, the Bush administration is trying to pass a law shielding health-care religious workers from having to perform part of their job when it is seen as opposed to their beliefs.
This really is a monumental hypocrisy. So, to answer Proponents of Charitable Choice, yes, it would be equivalent to an environmental group would having to hire an anti-environmentalist when the latter has a good religious rationale (I know, an oxymoron).