1. Religion, Policy, and the
Public Workplace
Equity and Diversity in Public Administration
2. Introduction
• We see language referring to religion in two places in the
Constitution:
• Article VI (Originally only language with respect to religion)
• “…no religious test shall ever be required as a Qualification to any Office
or public Trust under the United States.”
• First Amendment:
• “Congress shall make no law…respecting (1) an establishment of religion,
or (2) prohibiting the free exercise thereof.
• The first part is referred to as the Establishment Clause
• The second part is referred to as the Free Exercise Clause
• One of the main issues with these to clauses is how they can come in direct
contention with one another making it difficult to make legal and
administrative decisions.
3. Introduction
• Humans have a natural tendency to divide people into categories.
• Schemas (conceptual categories)
• Logic
• Emotion (creates prejudice/stereotypes)
• Creation of in-groups and out-groups
• They do so based through two primary means:
• Achieved characteristics
• Ascribed characteristics
• What do we mean by achieved characteristics?
• Characteristics that are acquired during the course of living.
• It seems to suggest that it is based on achievement, but we will question whether this is really the case.
• What do we mean by ascribed characteristics?
• These are characteristics that are innate and set at one’s birth.
• Typically physical characteristics.
• Each of these two categories may either be nominal (shared attributes) or graduated (a ranked
quantitative continuum).
• Achieved nominal
• Achieved graduated
• Ascribed nominal
• Ascribed graduated
• What we will notice is that the Court is more likely to strike down laws based on nominal
ascribed characteristics than graduated ascribed characteristics or achieved characteristics.
• Where does religion fit into this typology?
4. The Free Exercise Clause
• Is the free exercise of religion absolute?
• No, individuals may be prosecuted for certain actions, and compelled to obey
certain rules and regulations.
• For instance, if a government act takes the form of a generally applicable
criminal prohibition, and if the burden on religious beliefs is merely an
incidental (unintended) effect (see the Smith case).
• But how do you draw the line between permissible free exercise of religion
and the need to maintain social order (impermissible activities)? (see Hobby
Lobby)
• Normally, free exercise problems arise when government, and
particularly public administrators, in pursuit of non-religious
objectives either:
• Forbids or burdens conduct which happens to be dictated by someone’s
religious belief or
• Compels or encourages conduct which is forbidden by someone’s religious
beliefs.
5. The Establishment Clause
• Three interpretations:
• The religious establishment clause erects a solid wall of separation between
church and state, prohibiting most, if not all, forms of public aid for or
support of religion. (Separationists)
• Examples:
• Jefferson
• Madison
• They were the framers of this part of the First Amendment.
• The religious establishment clause may erect a wall of separation between
church and state, but that wall of separation only forbids the state to prefer
one religion over another. Nondiscriminatory support or aid for all religions
is constitutionally permissible. (Accommodationists)
• Example:
• Patrick Henry (not a framer)
• The religious establishment clause simply prohibits the establishment of an
official national religion (a more rigid approach to the Accomodationist
viewpoint).
6. Public Policy and Religion
• Civil Rights Act of 1964
• Title II prohibits discrimination in public accommodations (hotels,
motels, restaurants, theaters, and all other public accommodations
engaged in interstate commerce on the basis of race, color, religion,
or national origin.
• Private clubs are exempted but the term “private is not defined
• Title III prohibits state and local governments, on the basis of race,
color, religion, or national original, from denying access to public
facilities.
• Title VI prohibits discrimination by federal agencies, or any other
organization receiving federal funds, on the basis of race, color,
religion, or national origin.
• Title VII prohibits employers with 15 or more employees from
discriminating on the basis of race, color, religion, sex, or national
original.
• Also prohibits employers with 15 or more employers from discriminating
against any employee for their association with a person of a particular race,
color, religion, sex, or national origin.
7. Public Policy and Religion
• Religious Freedom and Restoration Act of 1993
• Background:
• In case called Sherbert v. Verner (7th Day Adventist unemployment), the Supreme Court
said that when a law indirectly burdens the free exercise of religion states must show:
• A compelling state interest in order to justify abridging the freedom of religion.
• That an exemption would substantially hinder that goal (narrowly tailored).
• Employment Division, Department of Human Resources of Oregon v. Smith,
494 U.S. 872 (1990)
• Alfred Smith and Galen Black, members of the Native American Church, were fired from
their jobs as drug treatment counselors for using peyote during a religious ceremony.
• Smith and Black filed for unemployment compensation from the state of Oregon which
was denied because they had fired for work related misconduct.
• They sued in Oregon courts saying that the denial of unemployment benefits constituted a
First Amendment violation of the free exercise clause.
• Is the denial of unemployment benefits due to the criminalization of drug use for religious
purposes by the state a violation of the free exercise clause of the First Amendment?
• There court would decide that the denial of unemployment benefits was not a violation of
the free exercise clause (6 – 3).
• Scalia argued that it is no more appropriate for the Court to determine what a compelling
state interest is than it is for the Court to determine what a central religious belief is.
• The use of the compelling state interest test would open the door for every law to be
challenged and subsequently invite chaos.
• Therefore, Oregon has the right to deny the unemployment compensation when the
dismissal is linked to the use of illegal drugs.
8. Public Policy and Religion
• Religious Freedom and Restoration Act of 1993 (cont’d)
• Members of Congress, on both sides of the aisle, were displeased
with the Court’s decision.
• Up to this point case law had made use of strict scrutiny, but Smith
decided that laws of general applicability can prohibit religious
freedoms so long as they apply to all citizens.
• As a result, Congress passed the Religious Freedom and
Restoration Act (RFRA) of 1993, which had overwhelming
bipartisan support.
• House: 435 – 0
• Senate: 97 – 3
• The Act restored the strict scrutiny to cases involving religious
freedom.
• Applies to laws that indirectly burden religious freedom in addition to
laws that directly burden religious freedom.
• “Government shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability.”
9. Public Policy and Religion
• Challenges to RFRA
• The Act would be challenged in City of Boerne v. Flores, 521 U.S. 507 (1997)
• Here the Court would limit RFRA stating that it could only apply to the federal
government and not the states.
• Some states have passed RFRA type legislation.
• Alabama
• Arizona
• Connecticut
• Florida
• Idaho
• Illinois
• Kansas
• Kentucky
• Louisiana
• Mississippi
• Missouri
• New Mexico
• Oklahoma
• Pennsylvania
• Rhode Island
• South Carolina
• Tennessee
• Texas
• Virginia
10. Public Policy and Religion
• Notice that these laws seek to promote equity and prevent discrimination:
• Equity – all individuals are equal in their moral worth, are entitled to equal treatment
under law, and should have an equal political voice.
• Social equity – the fair, just, and equitable management of all institutions serving the public
directly or by contract; the fair, just, and equitable distribution of public services and
implementation of public policy; and the commitment to promote fairness, justice, and equity in
the formation of public policy.
• Notice how these laws fit in with the purpose of equity for public administration:
• Public administrators need to think about whether the policies that they are creating follow the
required legal guidelines to ensure equity among the citizenry (procedural equity).
• Public organizations and managers need to ensure that they treat their employees equitably or risk
violating the law (managerial equity).
• Public organizations need to ensure that their procedures (rulemaking/adjudication) are applied
equitably to all clientele (Due Process or procedural equity).
• Public organizations need to ensure that policies are implemented equitably (equitable
implementation).
• Public organizations need to ensure that the delivery of services is done in a manner to promote equity.
• Public organizations need to ensure that access to the organization is fair and equitable.
• Public organizations should seek input equally from members of the community from all
backgrounds.
• Public organizations should promote a culture that promotes responsibility, innovation, and cost
awareness through cultural competence (opposite of classic public administration theory).
11. Public Policy and Religion
• Notice how these laws promote diversity:
• Diversity – respect for individuals of different characteristics such
as color, race, ethnicity, gender, age, religion, sexual orientation,
or way of thinking.
• Diversity – differing cultures, languages, ethnicities, races, sexual
orientations, religious sects, abilities, classes, ages, and national
origins of individuals in an institution, workplace, or community.
• Why is it necessary?
• Diversity in public administration mirrors the diversity in the
population.
• Diversity in public administration provides a work environment that is
open to a variety of lifestyles and ides.
• Diversity in public administration eliminates the “good old boys”
network (similar characteristics, similar values).
• Diversity allows administrators to deliver public services more
effectively.
12. Legal Standards and
Religious Discrimination
• It is clear that the Religious Freedom and restoration act
requires the use of strict scrutiny when it comes to
discrimination based on religion whether that
discrimination is direct (purposeful) or indirect
(unintentional).
• A compelling state interest in order to justify abridging
the freedom of religion.
• The law accomplishes the state interest by the least
restrictive means.
13. Activity
• In these situations does the governmental interest outweigh the
religious belief?
• Scenario 1:
• A private, nonprofit religious university has maintained a white-
only admissions policy due to its belief that the Bible forbids
interracial dating and marriage.
• As a result of this practice, the IRS strips the university of its tax
exempt status.
• Scenario 2:
• A Jewish man in the United States Air Force wants to wear his
yarmulke during his service as part of his religious beliefs.
• The United States Air Force denies the Jewish man from wearing
his yarmulke as it is not part of the standard issue uniform.
14. Legal Standards and Government
Establishment of Religion
• How do we know if a government action constitutes an
establishment of religion?
• The Lemon Test (Lemon v. Kurtzman; Early v.
DiCenso, 403 U.S. 602, 1971)
• The statute must have a secular purpose.
• Primary effect must not advance or inhibit religion
• The statute must not foster “an excessive government
entanglement with religion.”
15. Policy Issues and Religion:
Freedom of Religion
• Religion and Regulation
• Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014)
• The Court found that the Affordable Care Act’s requirement,
under DHHS rules, to provide contraception to closely held
business with religious convictions against such practice was a
violation of the Religious Freedom and Restoration Act.
• What does this case mean for public administrators?
• Does this allow companies to use their religious beliefs as a
means of avoiding government regulation?
• How should public administrators create policy so as to
avoid challenges under the 1st Amendment and RFRA?
16. Policy Issues and Religion:
The Establishment Clause
• Government Aid to Religious Institutions
• The main issue is whether the government should be able to provide
aid to religious institutions or does this constitute an establishment of
religion.
• Lemon Test (1971)
• The statute must have a secular purpose.
• Primary effect must not advance or inhibit religion
• The statute must not foster “an excessive government entanglement with
religion.”
• Types of Aid:
• Financial aid to religious schools (see Everson v. Board of Education, 330
U.S. 1 (1947), Lemon v. Kurtzman; Early v. DiCenso, 403 U.S. 602
(1971), Agostini v. Felton, 521 U.S. 203 (1997), Zelman v. Simmons-
Harris, 536 U.S. 639 (2002))
• Financial aid to religious nonprofits
17. Policy Issues and Religion:
The Establishment Clause
• Teaching Religion in Public Schools
• In many instances states passed laws banning the teaching of
evolution in school.
• Scopes Monkey Trial (state case in Tennessee).
• Epperson v. Arkansas (1968)
• Court struck down law forbidding the teaching of evolution as it failed
to maintain neutrality between religion and nonreligion under the 1st
Amendment.
• Edwards v. Aguillard, 482 U.S. 578 (1987)
• Court struck down a Louisiana law that prevented the teaching of
evolution unless it also included the teaching of creationism as a
violation of the 1st Amendment.
• Law did not serve a secular purpose.
18. Policy Issues and Religion:
The Establishment Clause
• Prayer in School
• Engel v. Vitale (1962)
• Struck down the reading of a school prayer written by state officials in New York as a violation of
the Establishment Clause.
• School District of Abington Township v. Schempp, 374 U.S. 203 (1963)
• Struck down non-compulsory Bible readings as a part of regular school activities as a violation of
the Establishment Clause.
• Lee v. Weisman, 505 U.S. 577 (1992)
• Struck down prayer at public school graduations as a violation of the Establishment clause.
• Santa Fe Independent School District v. Doe (2000)
• Struck down student-led prayer before a football game as it was government sponsored prayer at
a government sponsored event and thus endorsed religion.
• Prayer in Government
• Marsh v. Chambers, 463 U.S. 783 (1983)
• How do you think the Court decided and why?
• Government funding for a chaplain was constitutional given the history of the United States
(framers used chaplains too).
• What is the problem with this from a public administration/equity/diversity perspective?
19. Policy Issues and Religion:
The Establishment Clause
• Religious Displays on Government Property
• Lynch v. Donnelly (1984)
• Court upheld the display of Christmas decorations in Pawtucket, Rhode Island stating that
religious aspects to the decorations were part of a larger nonsectarian display.
• Also said that Christmas was a national nonsectarian celebration, not a religious holiday.
• County of Allegheny v. ACLU (1989)
• Analyzing different parts of the display, the Court also upheld the display of a Menorah and
Christmas tree, but struck down the display of a nativity scene.
• Many scholars see this as a ridiculous decision.
• Stone v. Graham (1980)
• Kentucky law requiring the Ten Commandments to be posted in every public school room struck
down.
• McReary County, Kentucky v. American Civil Liberties Union of Kentucky (2005)
• Struck down a local ordinance requiring the Ten Commandments be posted in public courthouses.
• Van Orden v. Perry, 545 U.S. 677 (2005)
• Court allowed the display of the Ten Commandments on Texas state capitol grounds as it
represented a passive display amongst a display of other historical markers.
• Religious Profiling and Terrorism
• Profiling – the recording and analysis of a person’s psychological, behavioral, and physical
characteristics so as to assess or predict their capabilities in a certain sphere or to assist in
identifying a particular subgroup of people.
20. Religion in the Public
Workplace
• Bruce, W. M. (2000). Public administrator attitudes about
spirituality: An exploratory study. The American Review
of Public Administration, 30(4), 460-472.
• Houston, D. J., & Cartwright, K. E. (2007). Spirituality
and public service. Public Administration Review, 67(1),
88-102.
21. Conclusion
• The struggle over the interpretation of the RFRA has created great debate over the
struggle between allowing for religious freedom while still maintaining social
order through law.
• The overall tension between the Free Exercise Clause and the Establishment
Clause represent the tension public administrators face in creating policy that
recognizes diversity while still maintaining equity.
• Diversity – respect for individuals of different characteristics such as color, race, ethnicity,
gender, age, religion, sexual orientation, or way of thinking.
• Why is diversity necessary?
• Diversity in public administration mirrors the diversity in the population.
• Diversity in public administration provides a work environment that is open to a variety of
lifestyles and ideas.
• Diversity in public administration eliminates the “good old boys” network (similar
characteristics, similar values).
• Diversity allows administrators to deliver public services more effectively.
• Equity – all individuals are equal in their moral worth, are entitled to equal treatment under
law, and should have an equal political voice.
• Social equity – the fair, just, and equitable management of all institutions serving the public
directly or by contract; the fair, just, and equitable distribution of public services and
implementation of public policy; and the commitment to promote fairness, justice, and equity
in the formation of public policy.
• There are clear equity issues that exist with regard to religion.
• The Civil Rights Act of 1964 seeks to address this, but governmental policies in the area
of prayer in school, government aid to religious institutions, government displays of
religious materials, racial profiling, prayer in government and others, all demonstrate
potential opportunities to exclude citizens from governance and representation.
