The President
The White House
Washington, DC 20510

Dear Mr. President: 

We write to express deep concerns about remarks you made at a town hall meeting in College Park, Maryland on July 22, 2011, regarding permissible taxpayer-funded religious discrimination in the context of faith-based and neighborhood partnerships.  We urge you to clarify these remarks and to take this opportunity to fulfill a promise you made on the campaign trail in 2008 to reverse President Bush’s policy of allowing government-funded religious discrimination in its faith-based initiative.

In an important policy speech on July 1, 2008, in Zanesville, Ohio, you stated that you would change the way the Bush Administration’s faith-based programs were carried out, and outlined your own vision of government partnerships with religiously-affiliated institutions: 

First, if you get a federal grant, you can’t use that grant money to proselytize to the people you help and you can’t discriminate against them – or against the people you hire – on the basis of their religion. Second, federal dollars that go directly to churches, temples, and mosques can only be used on secular programs.

At the time, the ADL welcomed your pledge to end government-funded religious discrimination in the faith-based initiative.  However, we are disappointed that that promise remains unfulfilled. 

In response to a question about taxpayer-funded religious discrimination from an individual at the recent town hall meeting, you stated:  

....Where this issue has come up is in fairly narrow circumstances where for example you've got a faith-based organization that's providing certain services they consider part of their mission, to be promoting their religious views, but they may have a daycare center associated with the organization, or they may be running a food pantry.....

Now, I think that the balance we have tried to strike is to say that if you are offering — if you have set up a non-profit that is disassociated from your core religious functions and is out there in the public doing all kinds of work then you have to abide generally with the nondiscrimination hiring practices. If, on the other hand, it is closer to your core functions as a synagogue or a mosque or a church, then there may be more leeway for you to hire somebody who is a believer of that particular religious faith.

There has never been any doubt that a non-profit "disassociated" from a religious institution – regardless of whether it is privately or publicly funded – must comply with anti-discrimination laws.  Such an organization would not have the broad legal right to hire or fire on the basis of religion.  The key question is whether religious institutions themselves can engage in such discrimination with taxpayer dollars.  And on that question, we do not think there is a “balance” when it comes to government-funded religious discrimination.  It is now well established that religious organizations may hire on the basis of religion with respect to their own privately-funded positions.  But the notion that a religious institution can hire and fire government-funded daycare providers or food pantry workers (to use your examples) on the basis of religion, offends basic principles of both equal protection and church-state separation.

Over the past two years there have been other missed opportunities to cure the inadequate anti-discrimination safeguards:

Your February 5, 2009 Executive Order created an Advisory Council on Faith-based and Neighborhood Partnerships, but the expert panelists on the Council were specificially not permitted to examine or debate federally funded religious employment discrimination. 

In September 2009, 58 national civil rights, religious, labor, health, and education organizations wrote to Attorney General Eric Holder to urge the Administration to review and rescind a deeply-flawed Office of Legal Counsel (OLC) Memorandum interpreting the federal Religious Freedom Restoration Act (RFRA) as applying to faith-based organizations.  This still has not happened and we strongly urge you to use this opportunity to publicly task the Justice Department to review  this unfortunate, yet influential, Memorandum.  

The Advisory Council on Faith-based and Neighborhood Partnership’s March, 2010 176-page report provided a number of valuable and important reform recommendations and improvements for the faith-based initiative, but was silent on the issue of government-funded religious discrimination. 

Further, just  last week on July 27, Joshua DuBois, the Executive Director of the White House Office of Faith-Based and Neighborhood Partnerships, in Denver for an outreach event, was quoted as stating: “If your focus is first and foremost serving people in need, then there’s not a tremendous amount of time left to debate the finer points of the church-state relationship.”  We wrote to Mr. DuBois, asserting that his statement, “if reported accurately, reflected a shockingly dismissive attitude toward the First Amendment to the United States Constitution.”  While Mr. DuBois informed us in an e-mail that his remarks were “not reported accurately,” his August 1 blog, “Upholding our Laws and our Values”, which he advised us would address the issue, fell short of correcting the record.

President Obama, we applaud your dedication and commitment to addressing the problems of poverty, homelessness, hunger, addiction and other social ills.   But we firmly believe that you can do so without resorting to government-funded religious discrimination.  We urge you to clarify your remarks and position and end this misguided policy.