Finding an End to Federally Sanctioned Discrimination: A Call to Rescind the 2007 OLC World Vision Memo

25 Pages Posted: 18 Oct 2019 Last revised: 12 Aug 2020

See all articles by Robin S Maril

Robin S Maril

Willamette University - College of Law

Sarah Warbelow

affiliation not provided to SSRN

Date Written: July 1, 2016

Abstract

A series of high profile decisions by the Supreme Court of the United States, including Burwell v. Hobby Lobby and Obergefell v. Hodges, have highlighted the potential reach and impact of religious exemptions from generally applicable laws including the Affordable Care Act and nondiscrimination provisions protecting lesbian, gay, bisexual, and transgender (LGBT) people. The recent debate and controversy surrounding religious exemptions has extended well beyond these landmark Supreme Court cases. It has reverberated through state legislatures and governments and has struck a chord with individual citizens and business owners as the nation struggles to reconcile two core American values — religious liberty and individual civil rights. Although recent judicial action has brought this intersection into the homes of many Americans for the first time, the quest to balance these potentially competing rights is not new. The federal government has long been tasked with translating judicial decisions and aspirational values into practical policies. Although these administrative actions rarely garner the same attention or ire as judicial action, the consequences of misconceived federal policies have sweeping repercussions on society at large.

In June 2007, the Department of Justice’s Office of Legal Counsel (OLC) published a memorandum (“the OLC memo”) addressing the prohibition of discrimination on the grounds of an individual employee’s religion in the Juvenile Justice and Delinquency Prevention Act of 2002 (JJDPA). The OLC issued this memorandum in response to a claim by a religiously-affiliated aid organization that the Religious Freedom Restoration Act of 1993 (RFRA) should exempt the organization from complying with the general nondiscrimination provision in the JJDPA. In its memorandum, the OLC addressed the prohibition of discrimination on the grounds of an individual employee’s religion in the JJDPA. The memo was issued in response to a claim by a religiously affiliated aid organization that RFRA should exempt the organization from complying with the general nondiscrimination provision in the JJDPA. In writing this memo, the Justice Department heavily relied on the 2006 Supreme Court decision, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal. Applying a narrow and highly deferential interpretation of O Centro, the Justice Department built the foundation of the OLC memo on untested ground. Almost a decade later, the legal understanding regarding RFRA and the development of precedent interpreting O Centro has changed dramatically. The Justice Department’s overly expansive interpretation of RFRA fails to balance the potential burden on religious employers with the government’s compelling interest to prevent discrimination, particularly by federally funded employers. By failing to fully address the compelling government interest, the OLC memo continues to offer religious organizations a blank check to discriminate against prospective employees on the basis of religion without judicial or statutory support.

Although the OLC memo was drafted in response to a discrete inquiry, the federal government has applied this memo broadly as binding policy to other federal grant programs. Specifically, in 2014, the Justice Department issued guidance implementing the Violence Against Women Reauthorization Act of 2013 (VAWA), addressing the nondiscrimination provisions of the Act to religiously affiliated grantees. The Department’s guidance directly referenced the OLC memo, providing that religious organizations receiving federal VAWA funding could “prefer co-religionists for employees in programs by covered grants.” This guidance follows the reasoning of the OLC memo and requires religious organizations to meet certain, subjective criteria including that the organization determines that the nondiscrimination provision would substantially burden its religion. This article addresses concerns with a 2007 Department of Justice legal interpretation regarding the reach of a statutory nondiscrimination provision in the context of faith-based organizations that receive federal funds. It argues that the Justice Department not only failed to appropriately apply 2007 legal standards to the memo, but that the law has evolved even further from the Department’s reasoning. As a result, we urge the Department to formally rescind this memo and to refrain from continuing to apply this policy going forward.

Part II addresses the passage of RFRA, and traces the development of the “compelling government interest” test under the statute and its role in determining whether government action is appropriate. Part III provides an overview of the OLC memo. Further, Part III analyzes the OLC memo’s application of the RFRA balancing test in context of O Centro. Part IV argues that, given the recent developments in case law concerning O Centro and Hobby Lobby v. Burwell, the Justice Department should formally rescind the OLC memo.

Keywords: RFRA, religious liberty, discrimination, Title VII, Office of Legal Counsel, OLC, O Centro, federal grantee, federal grantmaking, employment discrimination, federal funding

Suggested Citation

Maril, Robin S and Warbelow, Sarah, Finding an End to Federally Sanctioned Discrimination: A Call to Rescind the 2007 OLC World Vision Memo (July 1, 2016). American University Journal of Gender, Social Policy & the Law, Vol. 24, 2016, Available at SSRN: https://ssrn.com/abstract=3467028

Robin S Maril (Contact Author)

Willamette University - College of Law ( email )

245 Winter St. SE
Salem, OR 97301
United States

Sarah Warbelow

affiliation not provided to SSRN

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