Legal Commentary

A hearing is scheduled for tomorrow, before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Committee on the Judiciary, on "Recommendations of the President?s Advisory Council on Faith-Based and Community Partnerships and Other Current Issues."  Among the witnesses are Barry Lynn, Melissa Rogers, and Doug Laycock.  Anticipating the conference, Marci Hamilton writes that it is "time to end government handouts based on religion."  (I would hope that the time to start such "handouts" never comes!)  Opposing a policy that would allow faith-based social-service agencies to take religion into account in hiring, even when they are cooperating with government, she writes:

 We face high unemployment, gigantic government overruns, and serious needs among citizens for meaningful and strong social services. If the federal government is going to subsidize social services, it has the obligation to demand the highest quality. And anyone working with those funds should have to be chosen based on credentials and experience, not religious identity. Any argument for a "bye" just because a group is religious is just bad public policy.

I am afraid I have to disagree with Marci on this.  In my view, there is no good reason to regard a religious social-welfare agency's hiring-for-mission as invidious and so no good reason to insist that such an agency give up its religious-hiring rights simply because its receives some public-funding in support of its social-welfare services.  And, I think Marci's piece mis-frames the question(s) presented:  No one is suggesting that such an agency, because it is religious, should get a "bye" from requirements regarding effectiveness and performance.  ("Credentials" and "experience" will remain, I am confident, highly relevant.)  No one is suggesting that such an agency should get a "handout," but instead that it should not be asked to give up something that matters as a condition of helping to promote the common good in cooperation with government.  And, no one (so far as I know) is suggesting that such an agency should (in Marci's words) be allowed to "discriminate in favor of co-religionists in the delivery of social services," if by "delivery" we are referring to the delivery of social-welfare services to their beneficiaries.

In any event, I'm confident that Doug will make the case better than I have, or could!