OLC Opinion on RFRA and Faith-Based Hiring in Government Funded Programs

[Marty Lederman]

OLC published yesterday an opinion that it issued last year.  It involves
one of those funding statutes that specifically prohibits religious
discrimination in jobs subsidized by a federal grant.  OLC concludes --
similar to a mental-health funding regulation that it approved back in
2002/2003 -- that the Religious Freedom Restoration Act requires an *
exemption* to the religious discrimination prohibition for a faith-based
group that receives a grant and wishes to use the money to hire only
co-religionists:http://www.usdoj.gov/olc/2007/worldvision.pdf

I have long thought that this RFRA argument was dubious, and I'm not
persuaded now.  The most serious weakness in the opinion is its conclusion
that the condition on the grant substantially burdens World Vision's
religious exercise, analogous to the burden in *Sherbert *and *Thomas*.  But
this isn't an entitlement benefit, and the lure of the money is not nearly
as coercive here as the threat to cut off unemployment benefits in those
cases.  This group would only lose 10% of its budget for the secular
juvenile justice program in question if it were to decline the federal
funds.  Is it plausible that that is really enough to coerce them to act
contrary to their religious precepts?

For what it's worth, I think these are among the least convincing parts of
the burden analysis:

Top of page 20 -- likening this to a "general entitlement" rather than a
discretionary grant available only to some.  That's simply wrong.

Page 25 -- At the last minute, OLC concedes that it must deal with the fact
that the Court held in *Davey* *v. Locke* that requiring Davey to *go to two
different undergraduate institutions *as a condition on receiving an
important state scholarship only imposed a de minimis burden on his
religious exercise, even where the benefit was much more necessary to him
than this grant is to World Vision, and where presumably the effect of
turning down the benefit would have a much greater coercive impact than
here.  If *Davey* is right on the degree of burden, then this OLC opinion
must be mistaken, I think.  (Of course, it could be that OLC simply
disagrees with *Davey *in this respect, although it can't say so.)

The opinion also fails to mention the most obvious compelling government
interest:  avoiding the serious Establishment Clause problem that would be
raised if the government were to fund employment positions that the
government knew were available only to applicants of one religion.  The Bush
Administration, of course, does not think that this *is* a serious EC
question . . . but it is.  See
http://balkin.blogspot.com/2005/06/government-funding-of-religious.html

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