"The Bush administration is working with the nation's largest charity, the Salvation Army, to make it easier for government-funded religious groups to practice hiring discrimination against gay people, according to an internal Salvation Army document," began a front-page story in the Washington Post on July 10.
It charged that the White House had made a "firm commitment" to revise regulations to allow this discrimination, while the Salvation Army pledged to lobby for the administration's faith-based initiative. It quoted extensively from the leaked document.
The Salvation Army is concerned that a growing number of state and local governments prohibit discrimination against gays and lesbians when contracting for social services programs such as those run by it and other religious groups. It suggested that an Office of Management and Budget regulation, Circular #A-102, be amended so that federal regulation supersedes state and local nondiscrimination laws when it comes to religious organizations running social programs.
Buried on an inside page was a response from White House spokeswoman Anne Womack, "This issue has been brought to our attention, but no such commitment has been made."
That morning at a news conference aboard Air Force One, spokesman Ari Fleischer reiterated the message. "The White House told them that would be reviewed. And that's the extent of it." He added, the administration is "committed to our nation's civil-rights laws," which have bipartisan support and are not likely to be changed.
Gay-rights supporters were taking no chances, hastily calling a noon briefing at the National Press Club with Winnie Stachelberg, political director of the Human Rights Campaign ( HRC ) , and Wade Henderson, executive director of the Leadership Council on Civil Rights, a coalition of 185 organizations.
"Today's report suggests that that the administration is willing to throw the rights of some citizens overboard in return for political support from the Salvation Army," said Henderson. He called on the Bush administration to support three fundamental principles.
"No federal funds should be used to discriminate against any American, that should be inviolate." He asked the administration "to reinforce that fundamental principle."
He also asked them to "repudiate" the press account of negotiating "to help override the responsibility of state and local governments to protect the interests of their citizens." He pointed to the inconsistency of an administration that claims to want to return power closer to the people.
Finally, Henderson asked the administration to reconsider "charitable choice initiatives" that would allow religious organizations to evade existing civil-rights laws in implementing social service programs. He said, "The civil and human rights of our country should be measured by a single yardstick and every American should be free from discrimination."
Stachelberg called the news report "a serious mistake that must be challenged." She hoped that spokesman Fleischer's view that the Army misinterpreted White House intentions was accurate, but called upon the administration "to further clarify its position and fully disclose their objectives."
She accepted that religious freedom allows religious groups to discriminate when it comes to operations that apply directly to their religious function. The Employment Non-Discrimination Act ( ENDA ) allows this as well.
"What we cannot support is federal funds being used by organizations to discriminate based on sexual orientation," said Stachelberg. Conferring these "special protections to religious organizations" is a debate that should be carried out in Congress.
This "back room deal" to override state and local law "is reprehensible," she said. "It appears that the Salvation Army is attempting an end run around the Congress, with the assistance of the Bush administration."
The 1964 Civil Rights Act established "a very important principle, that people should be judged on their performance in the workplace," said Henderson. "To have the administration now willing to work out a deal to override local protection of this important principle is deeply troubling."
Twelve states and 122 local jurisdictions have enacted legislation protecting gays and lesbians, though Maryland's law is being held in abeyance pending resolution of a petition to put the measure before the voters.
Henderson said that the administration has the authority to change the Circular #A-102 regulation, but that must be done through established procedures. They include publication of proposed changes in the Federal Register, a period for public comment, and issuing of a final rule.
But, said Henderson, "If a religious entity chooses to participate in the public marketplace, using federal dollars to carry out its program, then it should be regulated by the principle that no federal money should be used for discriminatory purposes." It can discriminate with its own money.
SKEPTICISM AND OVERSIGHT
Log Cabin Republican spokesman Kevin Ivers believes the story was poorly handled by the Post and has been overplayed. He said the White House contacted them on the evening of July 9, alerting them to an inquiry by the Post reporter a few hours before the article went up on the newspaper's website.
The contact told Ivers that the Salvation Army had an opportunity to express their views but that there was no commitment by the administration to support those views.
That made sense to Ivers. He remembered that in the heat of the primary campaign candidate Bush passed up an opportunity to comment on California's anti-gay Proposition 22, saying that it was a local matter not a national one. Ivers didn't see the administration "doing a 180" degree turn on an issue like federalism.
Ivers did go on the attack against the Salvation Army, saying, "This is an organization that discriminates against gays and is proud of it." He believes that the incident will "raise serious questions about their credibility" to deliver social services in an unbiased manner.
Openly gay D.C. city councilman David Catania contacted local and national Salvation Army officials after reading the article. He said that both officials assured him that they do not discriminate on the basis of sexual orientation with their government funds and that they had no such reported commitment from the White House.
Catania chairs the Committee on Public Services with oversight responsibility. He said that if he suspects discrimination, "I will not hesitate to conduct hearings and subpoena them into appearing before the Council."
By that evening most of the players seemed to want to wrap up the matter and move on to other things.
The Salvation Army issued a statement saying that their concerns were raised in the context of being asked "to identify barriers in government-provided social service funding." It noted that federal law provides an exemption for religious institutions where policy conflicts with faith.
It maintained that its "hiring policies fully comply with federal laws with respect to fair hiring on the basis of sexual orientation, gender, race, and ethnicity." Which was a bit disingenuous because federal law does not protect sexual orientation while it does protect the other categories. And the crux of this disagreement was an attempt to override state and local protections for gays that do exist.
The White House released a statement saying that it will not pursue the change in the Circular #A-102 regulation suggested by the Army. It believes existing laws and the faith-based legislation passed by the House Judiciary Committee offers sufficient protections both of civil rights and of religious organizations' "right to hire individuals who share their religious faith."
HRC spokesman David Smith was pleased in that "the status quo has been maintained." It demonstrated to him that their quick response had an impact. "It struck me how quickly the White House backed down," he said. But it still left unanswered the question of whether federal funds can be spent in a manner that discriminates against gay and lesbian Americans.
Rep. Barney Frank had offered a clarifying amendment to the faith-based legislation in the Judiciary Committee that would require charities to adhere to all state and local nondiscrimination laws. It was defeated in a party line vote. Attempts to pass the amendment are likely to be made in other committees considering the bill, perhaps on the floor of the House, and when the Senate considers the measure.
Stachelberg said that HRC has some concerns with the concept of the faith-based initiative. It "has great concerns with the lack of protections for gays and lesbians" in the version that came out of the Judiciary Committee. But their position will depend in part upon the final language of the bill.
Many observers believe that this public flap has improved chances for passing the Frank amendment even while it may have decreased chances for passing the entire faith-based initiative that the Bush administration has made one of its priorities.