Legal Commentary

My friend Tom Berg posted this over at the Mirror of Justice blog:

An important question for both religious-freedom law and civil society is whether religious organizations can receive funding to provide social services without having to compromise their religious character in doing so.  The Bush Justice Department issued an opinion concluding that organizations receiving government funding could invoke the Religious Freedom Restoration Act (RFRA) to challenge funding conditions that conflicted with their religious tenets or identity.  Now the Obama DOJ has proposed reversing that interpretation. In this memorandum letter, religious-liberty expert Doug Laycock, in his typical incisive way, explains why RFRA should be held to protect the organization.

As (I think) I have said before, I think it is a mistake to conclude that, because the government may not, and should not, take religion into account when staffing its social-welfare programs, religious organizations that receive public funds to assist in their own ("secular") social-welfare work should lose their right to take religion into account when staffing their own programs.  It is both a violation of the no-establishment rule (I assume) and inconsistent with the kind of equal-treatment rules we should want to constrain the government for government agencies to take religion into account when hiring and firing; but taking religion into account in this way is not something that is in-and-of-itself bad -- it depends -- and it is not bad (it seems to me) or worrisome when religious organizations do it.  Put more simply, the "public funds should not be used to pay for discrimination" claim seems to not quite hit the mark in the context.  In any event, see what Doug has to say . . .