Supreme Court case Bowen v. Kendrick, 487 U.S. 589 (1988) first opened the door to allow US federal funds to be awarded to religious institutions. In that case, by a vote of 5-4, the Court allowed federal funds to be given to religious organizations offering counseling consistent with the purposes advocated in the Adolescent Family Life Act.
In its majority opinion, written by Chief Justice Rehnquist, the Court made clear that, although the Constitution does not bar religious organizations from participating in federal programs, it requires (1) that no one participating in a federal program can “discriminate on the basis of religion” in the federal program, and (2) that all federal programs must be carried out “in a lawful, secular manner.” Id. at 609, 612.
(Interestingly, Justice Blackmun wrote in the dissenting opinion, "This is a case of religious toleration, not simply one of establishment, as a minority religious sect with peculiar customs is being accommodated. The purpose of the Establishment Clause is to prevent powerful religious groups from oppressing others and should not apply to this case...." )
Ten years later, in 1998, then-US Senator John Ashcroft quietly inserted into the Community Services bill during a rote reauthorization vote the now famous "right-to-discriminate" provision. President Bill Clinton opposed the hastily added provision, but signed the bill anyway.
It's not known exactly when this "right-to-discriminate" clause first came to George Bush's attention. He labored for more than two years prodding Congress to pass legislation to codify his approach to faith-based federal funding.
Then came H.R.1261, Community Services Block Grant Act of 2003. What should have been routine, annual legislation to mete out community social services grants became a vehicle to obliterate employment discrimination standards for federal fund recipient-programs that are classified as "faith-based."
House Democrats, led by Representative Lynn Woolsey, raised a ruckus in attempting to amend the "right-to-discriminate" provision out of H.R. 1261, but they ultimately failed.
The bill passed and was signed into law in 2003, thus making the "right to discriminate" legally permissible in employment practices for faith-based recipients of federal funds.
In writing the 1988 majority opinion in Bowen v. Kendrick, Supreme Court Chief Justice wrote, “This Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs. To the contrary, in Bradfield v. Roberts (1899), …. the Court refused to hold that the mere fact that the hospital was ‘conducted under the auspices of the Roman Catholic Church’ was sufficient to alter the purely secular legal character of the corporation, particularly in the absence of any allegation that the hospital discriminated on the basis of religion or operated in any way inconsistent with its secular charter.”
However, according to the Congressmen who signed the May 6, 2003 letter (referred to above), "The Supreme Court has never directly ruled on federally-funded religious discrimination, and no one can be certain how it will rule, but it is a grave policy error to roll back decades of civil rights to allow explicit religious discrimination in federally-funded jobs."
George Bush must be thrilled to have found this loophole that allows him use Executive Order to tear down the financial wall between church and state, and to potentially remake America in his ultra-right evangelical Christian image.
And absolutely no one is challenging him.
End Part IIA