Direct Aid to Faith-Based Organizations Under the Charitable Choice Provisions of the Community Solutions Act of 2001

• Decision Date: 25 June 2001
• Docket Number: 01-19
• Citation: 25 Op. O.L.C. 129
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Direct Aid to Faith-Based Organizations Under the Charitable Choice Provisions of the Community Solutions Act of 2001

25 Op. O.L.C. 129

Direct Aid to Faith-Based Organizations Under the Charitable Choice Provisions of the Community Solutions Act of 2001

No. 01-19

United States Department of Justice

June 25, 2001

SHELDON BRAD SHAW Deputy Assistant Attorney General Office of Legal Counsel

Direct Aid to Faith-Based Organizations Under the Charitable Choice Provisions of the Community Solutions Act of 2001

Congress may, consistent with the Establishment Clause, extend the religious exemptions under Title VII of the Civil Rights Act of 1964 to faith-based organizations receiving direct payments of federal money under the charitable choice provisions set forth in section 1994A of H.R. 7, the Community Solutions Act of 2001.

The fact that a faith-based organization is organized as a tax-exempt, nonprofit entity under section 501(c)(3) of the Internal Revenue Code does not affect the organization's ability to invoke the religious exemptions under sections 702(a) and 703(e)(2) of the Civil Rights Act of 1964.

MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT

You have asked for our opinion whether Congress may, consistent with the Establishment Clause, U.S. Const, amend. I, extend the religious exemptions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1, 2000e-2(e)(2) (1994), to faith-based organizations ("FBOs") receiving direct payments of federal money under the charitable choice provisions set forth in section 1994A of H.R. 7, the Community Solutions Act of 2001 ("the Act"). If so, you have also asked whether an FBO organized as a tax-exempt, nonprofit entity under section 501(c)(3) of the Internal Revenue Code is entitled to the Title VII exemption. We conclude, for the reasons set forth more fully below, that an FBO receiving direct federal aid may make employment decisions on the basis of religion without running afoul of the Establishment Clause, and that an FBO organized under section 501(c)(3) may invoke the Title VII exemption and employ staff on a religious basis.

I.

Section 201 of H.R. 7 would create a new 42 U.S.C. § 1994A. Proposed section 1994A(e)(2) would provide that "[t]he exemption of a religious organization provided under section 702 or 703(e)(2) of the Civil Rights Act of 1964 (42 U.S.C §§ 2000e-l, 2000e-2(e)(2)) regarding employment practices shall not be affected by the religious organization's provision of assistance under, or receipt of funds from, a program described in subsection (c)(4)." It is our understanding that this provision is intended not to alter or amend any provision of Title VII of the Civil Rights Act of 1964, but, instead, simply to specify and to emphasize that, if an organization is otherwise entitled to a religious exemption provided in section 702 or 703 of Title VII, that organization's receipt of funds pursuant to one of the designated programs will not affect the organization's eligibility for the Title VII [ 130] exemption. In this respect, the provision is similar to provisions included in at least three other recent statutes.^[1] You have asked us to consider the constitutionality of the Title VII religious exemptions as applied to qualifying nonprofit employers in general, and more specifically, as applied to the employment decisions of nonprofit religious organizations that would receive government funding under one of the specified programs.

Section 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), generally prohibits employers from engaging in employment discrimination on the basis of an individual's race, color, religion, sex, or national origin.^[2] One of several exemptions to Title VII's prohibitions is found in section 702(a), 42 U.S.C § 2000e-l(a), which provides as follows:

This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

As first enacted in 1964, the section 702 exemption for religious discrimination extended only to persons employed to perform work "connected with the carrying on by such [religious] corporation, association, or society of its religious activities." Pub. L. No. 88-352, § 702, 78 Stat. 255 (1964) (emphasis added). In 1972, [ 131]

Congress substantially broadened section 702 by deleting the word "religious, " which had modified "activities, " so that the exemption applies to persons employed to perform work "connected with the carrying on by such [religious] corporation, association, or society of its activities." Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 3, 86 Stat. 103 (1972).^[3] Accordingly, Title VII does not prohibit "a religious corporation, association, educational institution, or society" from discriminating in favor of employees "of a particular religion."^[4] A similar exemption is found in section 703(e)(2), 42 U.S.C. § 2000e-2(e)(2), which provides that Title VII does not prohibit an educational institution from hiring employees "of a particular religion" if that institution is wholly or partly supported "by a particular religion or by a particular religious corporation, association, or society."^[5]

The section 702(a) and 703(e)(2) exemptions create express rights for certain religious employers, ^[6] permitting them to avoid Title VII liability for conduct (employment discrimination on the basis of an individual's religion) that all other employers must forego. In Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, the Supreme Court sustained the constitutionality of the religious exemption in section 702(a) as applied to "secular" employment positions of qualifying nonprofit religious corporations, reasoning that the exemption as so applied was "rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions." 483 U.S. 327, 339 (1987). The plaintiffs in Amos argued that, as applied to employees who were [ 132] involved exclusively in their employer's secular (rather than religious) activities, the Title VII exemption did not relieve any burden on the employer's religious exercise, and thus could not be viewed as a permissible religious accommodation. The Court did not take issue with plaintiffs' contention that confining such employment positions to coreligionists would not directly assist the organizations in fulfilling their religious missions. The Court explained, however, that Congress's 1972 extension of the exemption to all of a qualifying employer's employees did, indeed, alleviate a "significant burden" on religious exercise—in that case, the burden of requiring an organization, "on pain of substantial liability, to predict which of its activities a secular court will consider religious." Id. at 336 (emphasis added). The Court further explained why this burden of "prediction" was "significant": "The line [between the organization's secular and religious activities] is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission." Id. (footnote omitted). Moreover, the broader exemption alleviated serious entanglement concerns by "avoid[ing] the kind of intrusive inquiry into religious belief by the government that would be necessary if the exemption were limited to an organization's "religious" activities. Id. at 339.^[7]

The decision in Amos provides the framework for evaluating whether application of section 702(a) to employees of a government-funded program would be a permissible accommodation. We believe that FBOs receiving direct aid can demonstrate that Title VIFs prohibition on religious discrimination would impose a significant burden on their exercise of religion, even as applied to employees in programs that must, by law, refrain from specifically religious activities.

Many religious organizations and associations engage in extensive social welfare and charitable activities, such as operating soup kitchens and day care centers or providing aid to the poor and the homeless. Even where the content of such activities is secular—in the sense that it does not include religious teaching, proselytizing, prayer or ritual—the religious organization's performance of such functions is likely to be "infused with a religious purpose." Amos, 483 U.S. at 342 (Brennan, J., concurring). And churches and other religious entities "often regard the provision of such services as a means of fulfilling religious duty and of providing an example of the way of life a church seeks to foster." Id. at 344 (footnote omitted). In other words, the provision of "secular" social services and charitable works that do not involve "explicitly religious content" and are not [ 133] "designed to inculcate the views of a particular religious faith, " Bowen v. Kendrick, 487 U.S. 589, 621 (1988), nevertheless may well be "religiously inspired, " id., and play an important part in the "furtherance of an organization's religious mission." Amos, 483 U.S. at 342 (Brennan, J., concurring).

A religious organization may have good reason for preferring that individuals similarly committed to its religiously motivated mission operate such secular programs, for such collective activity can be "a means by which a religious community defines itself." Id. Indeed, such collective activity...