130 religious and secular organizations call for Obama to reverse Bush memo allowing religious groups to discriminate

In 2007, Pastor-in-Chief George Bush issued a memo that used a broad interpretation of the Religious Freedom Restoration Act of 1993 to exempt religious organizations receiving federal grants from religious non-discrimination laws. That memo has been used in religious groups’ legal arguments claiming a right to discriminate, particularly in hiring, ever since.

This morning, over 130 religious and secular groups, organized by the secular advocacy organization Americans United for Separation of Church and State, presented a letter to the Obama administration calling for a reconsideration of the memo. According to Jack Jenkins at ThinkProgress, “The letter charged that this gives these institutions too much power, allowing taxpayer-supported religious groups to openly discriminate against women, LGBT people, and other minority groups in hiring.” As it reads:

Church and State, via Shutterstock

Church and State, via Shutterstock

RFRA was intended to provide protection for free exercise rights, applying strict scrutiny, on a case-by-case basis, to federal laws that substantially burden religious exercise. RFRA was not intended to create blanket exemptions to laws that protect against discrimination.

Yet, in contrast to this, the OLC Memo relies on flawed legal analysis and wrongly asserts that RFRA is “reasonably construed to require” a federal agency to categorically exempt a religiously affiliated organization from a grant program’s explicit statutory non-discrimination provision, thus permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination.

As the letter highlights, the OLC Memo has been used to argue against non-discrimination sections included in numerous policies, including the most recent reauthorization of the Violence Against Women Act and President Obama’s 2014 executive order barring federal contractors from discriminating against LGBT employees. As Jenkins notes, “Just this year, the U.S. Conference of Catholic Bishops and the National Association of Evangelicals cited the OLC Memo while attempting to avoid offering emergency contraception to raped migrant children flooding across America’s southern border.”

One of the organizations that signed the Americans United letter was the Coalition for the Free Exercise of Religion, which was one of the organizations that pushed for the original authorization of the Religious Freedom Restoration Act in the early 1990s. Like the ACLU, which similarly supported the law when it was passed, they feel that the law has been distorted to create protections for religious groups that cut directly against the law’s original intent. For instance, federal RFRA was at the core of the Hobby Lobby ruling, which granted corporations the right to ignore science and the law if they have a deeply-held religious belief that science and the law are inconvenient for them.

As I’ve written before, the case for having any sort of preferential treatment, be it in the tax code or in the issuing of federal grants, is astonishingly weak. Especially for religious organizations that ignore federal non-discrimination laws while using federal funds. While this isn’t the first time a coalition of organizations has challenged the Obama administration to reconsider the OLC Memo on these grounds, today’s letter represents the largest coalition of organizations, arguing in the strongest terms, that the memo is deeply flawed and has opened the door for all kinds of discrimination that the Obama administration is on the record opposing.

Maybe this is the year the administration acts.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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