According to Notre Dame Professor of Law Richard Garnett, President Obama’s decision to continue allowing faith-based agencies to receive public funds for their social-welfare services is welcome and correct. Garnett praised the President for rejecting the argument of some of his supporters that this policy violates the Constitution’s religious-freedom guarantees. Writes Garnett:
Like President Clinton and President Bush before him, President Obama appears to appreciate the important role that religiously affiliated programs and agencies can play in strengthening civil society, and responding to social challenges. The President is correct, of course, to say that our Nation is committed to religious freedom, and also to respecting the distinction between churches and government. This distinction, though, does not require the government to discriminate against religious service-providers or to be skeptical of the compassion and energy of religious believers.
The challenge is going to be respect the independence and identity of these faith-based agencies. They should not have to change who they are, or water down their mission, simply because they are receiving public funds for their public-service activities. In particular, President Obama should continue President Bush’s policy of allowing participating religious entities to “hire for mission”; the mere fact that a church-based social-outreach program receives public funds does not mean the government should interfere in decisions about hiring people who embrace the program’s religious commitments. It is appropriate for the government to insist that funds are put to the right, public use. It is not right, though, and it is not necessary, to require faith-based agencies to compromise their values, or mimic state agencies, just because they receive some public funds.
According to published reports, President Obama plans to continue the Bush Administration’s policy of letting participating agencies hire for mission, and to respect their religious identity. This is a good sign. We will have to wait and see, though, in order to be confident that officials in the President’s Administration, and Department of Justice, understand the important connection between hiring-for-mission and religious liberty.
Garnett received his B.A. in philosophy summa cum laude from Duke University in 1990, and his J.D. from Yale Law School in 1995. He served as senior editor of the Yale Law Journal and as editor of the Yale Journal of Law & the Humanities. After graduation, he clerked for Chief Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit, and then for Chief Justice William H. Rehnquist. He practiced law for two years at the Washington, D.C., law firm of Miller, Cassidy, Larroca & Lewin, specializing in criminal-defense, religious-liberty, and education-reform matters. At Notre Dame, he teaches courses on criminal law, criminal procedure, First Amendment law, and the death penalty.