Bush staff says hiring by faith no bar to aid

Memo approves bypassing laws

By CHARLIE SAVAGE
THE NEW YORK TIMES

October 20, 2008 -- "Seattle Post-Intelligencer" -October 18, 2008- WASHINGTON -- In a newly disclosed legal memorandum, the Bush administration says it can bypass laws that forbid giving taxpayer money to religious groups that hire only staff members who share their faith.

The administration, which has sought to lower barriers between church and state through its religion-based initiative offices, made the claim in a 2007 Justice Department memorandum from the Office of Legal Counsel. It was quietly posted on the department's Web site this week.

The statutes for some grant programs do not impose antidiscrimination conditions on their financing, and the administration had previously allowed such programs to give taxpayer money to groups that hire only people of a particular religion.

But the memorandum goes further, drawing a sweeping conclusion that even federal programs subject to antidiscrimination laws can give money to groups that discriminate.

The document signed off on a $1.5 million grant to Federal Way-based World Vision, a group that hires only Christians, for salaries of staff members running a program that helps "at-risk youth" avoid gangs. The grant was from a Justice Department program created by a statute that forbids discriminatory hiring for the positions it is financing.

But the memorandum said the government could bypass those provisions because of the 1993 Religious Freedom Restoration Act. It sometimes permits exceptions to a federal law if obeying it would impose a "substantial burden" on people's ability to freely exercise their religion. The opinion concluded that requiring World Vision to hire non-Christians as a condition of the grant would create such a burden.

But several law professors who specialize in religious issues criticized the administration's argument as legally dubious.

Among them, Ira Lupu, co-director of the Project on Law and Religious Institutions at George Washington University Law School, said the memorandum's reasoning is "a very big stretch."

Marty Lederman, a Georgetown University law professor who worked in the Office of Legal Counsel from 1994 to 2002, said the memorandum's reasoning is incompatible with Supreme Court precedent.

The Justice Department "stands strongly behind the opinion, which is narrowly drawn and carefully reasoned," Erik Ablin, an agency spokesman, said in an e-mail message.

"Most of the criticisms that have been outlined against the opinion are thoroughly addressed in the opinion itself. Each of them lacks merit."

The next administration would be free to rescind the memorandum. Both John McCain and Barack Obama have said they would continue allowing religion-based groups to participate in federal grant programs.

But Obama has also said that grant money should not be used on programs that discriminate against people based on their religion -- a condition McCain has not embraced.