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FAITH-BASED INITIATIVES: RECOMMENDATIONS OF

THE PRESIDENT’S ADVISORY COUNCIL ON

FAITH-BASED AND COMMUNITY PARTNERSHIPS

AND OTHER CURRENT ISSUES

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS

SECOND SESSION

NOVEMBER 18, 2010

Serial No. 111–156

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR.,

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR.,

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

SHEILA JACKSON LEE, Texas 

JUDY CHU, California 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III)

C O N T E N T S 

NOVEMBER 18, 2010

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Ranking Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 3

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 4

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Member, Subcommittee on the Constitution, 

Civil Rights, and Civil Liberties ......................................................................... 6

WITNESSES 

Ms. Melissa Rogers, Director, Center for Religion and Public Affairs, Wake 

Forest University Divinity School 

Oral Testimony ..................................................................................................... 9

Prepared Statement ............................................................................................. 12

Mr. Douglas Laycock, Armistead M. Dobie Professor of Law, Horace W. Goldsmith Research Professor of Law, Professor of Religious Studies, University 

of Virginia School of Law 

Oral Testimony ..................................................................................................... 34

Prepared Statement ............................................................................................. 36

Reverend Barry W. Lynn, Executive Director, Americans United for Separation of Church and State 

Oral Testimony ..................................................................................................... 53

Prepared Statement ............................................................................................. 55

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Member, Subcommittee 

on the Constitution, Civil Rights, and Civil Liberties ...................................... 163

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties .................... 169

Addendum to the Prepared Statement of the Reverend Barry W. Lynn, Executive Director, Americans United for Separation of Church and State ............. 173

Post-Hearing Questions and Responses of Melissa Rogers, Director, Center 

for Religion and Public Affairs, Wake Forest University Divinity School ....... 178

Post-Hearing Questions and Responses of Douglas Laycock, Armistead M. 

Dobie Professor of Law, Horace W. Goldsmith Research Professor of Law, 

Professor of Religious Studies, University of Virginia School of Law ............. 193

Post-Hearing Questions and Responses of Reverend Barry W. Lynn, Executive 

Director, Americans United for Separation of Church and State .................... 203

Letter from C. Welton Gaddy, President, Interfaith Alliance .............................. 216

Page

IV

Letter from Jon O’Brien, President, Catholics for Choice .................................... 218

Letter from the Reverend J. Brent Walker, Executive Director, and K. Hollyn 

Hollman, General Counsel, the Baptist Joint Committee for Religious Liberty ........................................................................................................................ 220

Prepared Statement of Alan Yorker, MA, LMFT .................................................. 226

(1)

FAITH-BASED INITIATIVES: RECOMMENDATIONS OF THE PRESIDENT’S ADVISORY 

COUNCIL ON FAITH-BASED AND COMMUNITY PARTNERSHIPS AND OTHER CURRENT 

ISSUES 

THURSDAY, NOVEMBER 18, 2010

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:39 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Conyers, Watt, Scott, Johnson, 

Jackson Lee, Sensenbrenner, King and Franks. 

Staff present: (Majority) David Lachmann, Subcommittee Chief 

of Staff; Heather Sawyer, Counsel; and Paul Taylor, Minority 

Counsel. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. I will first 

recognize myself for an opening statement. 

Today’s hearing examines the current status of the faith-based 

and community partnerships, and particularly the report of the 

President’s Advisory Council. Although I was gratified by the President’s decision to take a fresh look at this important but difficult 

issue and was especially appreciative of the outstanding work done 

by members—by the members of the Advisory Council, I, like many 

of my colleagues, remain frustrated by the glacial pace of reforms. 

Today’s hearing is timely. Just yesterday the Administration finally issued its revision of Executive Order 13279, setting out ‘‘fundamental principles and policy-making criteria for partnerships 

with faith-based and other neighborhood organizations.’’ It has 

been long anticipated and it contains some very important reforms. 

I am glad that we have with us this distinguished panel, which 

I hope will be able to provide this Subcommittee with their 

thoughts on the new Executive order. 

Difficult issues remain. What has been especially frustrating 

since President Bush first launched the initiative is that so many 

of the problems that the initiative sought to address simply never 

existed in the first place. 

2

I don’t think any Member of Congress, or indeed, anyone involved in the delivery of social services from the neighborhood level 

on up minimizes the critical contributions made by people of faith 

and by social service providers that have a religious affiliation, nor 

is there any question that these organizations have long worked 

with government and administered publicly-funded programs in 

ways that have done a great deal of good for the communities we 

represent and for the Nation as a whole. And it is also without 

question that these partnerships existed and thrived long before 

the faith-based and community initiative. 

Despite some grandiose, if specious, claims to the contrary, these 

organizations were not barred from receiving public funding simply 

because of a religious affiliation or because they had a religious 

name in their title. Every Member of this Committee has, no doubt, 

worked with many religiously-affiliated organizations in their districts and has helped get funding for such organizations to deliver 

all manner of social services, senior housing, and the like. 

But if the faith-based and community initiative was a solution in 

search of a problem it brought with it a host of real problems, 

many of which pose a real threat to the religious liberties of program participants and employees. Promises that have been made 

about providing participants with secular or other religiously-appropriate alternatives have gone unfulfilled. Without these alternatives the patina of respect for the religious rights of those most 

in need—not to mention the legal pretense of constitutionality—is 

stripped away. 

Furthermore, the promise that this initiative would mobilize the 

armies of compassion has been broken precisely because some of 

the initiative’s most vocal supporters have also been the first to cut 

off that army supply line by slashing funding for those very programs. 

As David Kuo—I hope I am pronouncing that right—the deputy 

director of the White House Office of Faith-Based and Community 

Initiatives in the Bush administration, wrote, ‘‘The achievements of 

the Bush faith-based initiative are a whisper of what was promised. Irony of ironies, it leaves the faith-based initiative specifically, 

and compassionate conservatism in general, at precisely the place 

Governor Bush pledged it would not go. It has done the work of 

praising and informing but it has not been given the resources to 

change lives. In short, like the hurting charities it is trying to help, 

the initiative has been forced to, quote—‘make bricks without 

straw.’ ’’ And that is the end of the quote from Mr. Kuo. 

It is no secret that I have been disappointed with this Administration’s handling of these difficult issues, not to mention with the 

previous Administration’s handling of these difficult issues. On the 

matter of ending employment discrimination in federally-funded 

programs, about which the President was so eloquent in 2008, we 

have heard nothing. We haven’t even been able to find out, for example, whether the Office of Legal Counsel memo asserting that 

the Religious Freedom Restoration Act creates a free exercise right 

to discriminate in employment in federally-funded programs is 

under review, much less what might be done with it. 

3

I realize that the employment issue is not within the Advisory 

Commission’s mandate, but it is still of pressing importance to the 

Members of this Committee. 

I regret the Administration was unable to provide a witness 

today who might be able to answer our questions about the Executive order and about the Administration’s progress on related 

issues. Nonetheless, I am pleased to welcome our panel today, and 

I look forward to their testimony. They are certainly no strangers 

to this Committee, and I have, over the years, had the privilege of 

working with each of them on many projects, starting with the Religious Freedom Restoration Act, which we passed the year I first 

joined this House a while ago. 

I look forward to their testimony, and I yield back the balance 

of my time. 

The Chair now recognizes the distinguished Ranking Member for 

an opening statement. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. 

President George W. Bush began a faith-based initiative designed to grant faith-based organizations equal access to competitions for the administration of Federal social service programs. 

Part of the effort resulted in the legal memo from the White House 

Office of Legal Counsel issued on June 29, 2007. 

That memo protects the right of faith-based organizations to take 

part in such program while staffing their organizations on a religious basis, allowing them to preserve their religious character. 

The memo remains in force today. 

Under a properly implemented faith-based program, programs 

must be administered to beneficiaries without regard to religious, 

but the organizations doing the administering can themselves be 

religious, and that is in accordance with said law. Nothing in the 

Civil Rights Act of 1964 says a religious organization loses its right 

to staff on a religious basis when it uses Federal funds. Indeed, 

when it enacted Title 7 in 1964 Congress was well aware that religious institutions of higher education that staffed on a religious 

basis were receiving federally-funded grants and student aid, and 

under the G.I. bill established in 1944 military veterans were able 

to attend religious colleges and universities of their choice and the 

tuition costs were either offset or fully covered through a Federal 

voucher payment sent to the selected school. 

So Congress was well aware when it enacted religious exemptions in Title 7 that Federal funds would be going to religious organizations that made staffing decisions based upon religion. Members of faith-based organizations should enjoy the same rights to 

associate with others who share their unique vision that other nonreligious groups enjoy. To deny them the same right would be to 

discriminate against people on the basis that they are religious and 

have a religious rather than purely secular way of looking at the 

world. 

For example, Planned Parenthood may refuse to hire those who 

don’t share its views on abortion, but equal treatment requires the 

churches, mosques, and synagogues to have the same right to staff 

their organization with like-minded individuals. 

Earlier this year the Government Accountability Office issued a 

report finding that between 2002 and 2009 Planned Parenthood reVerDate 0ct 09 2002 18:13 Mar 06, 2011 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\CONST\111810\62343.000 HJUD1 PsN: 62343
4

ceived $657 million in taxpayer dollars while it continued to staff 

its organization with like-minded people. If Planned Parenthood 

can receive Federal funds and continue to staff based upon ideological views regarding abortion, and if religion is to be treated equally, religious organizations should also retain their ability to staff on 

a religious basis when they receive Federal funds. 

If churches cannot continue to hire and staff on a religious basis 

they no longer remain churches while joining Federal social service 

efforts. Indeed, insofar as the courts have had to determine whether or not an organization is a church for tax purposes it has looked 

to whether it is a coherent group of individuals and families that 

join together to accomplish the religious purposes of mutually-held 

beliefs. 

If churches, as churches, are to be invited to join Federal social 

service efforts, their ability to remain a coherent group of individuals that join together to accomplish the religious purposes of mutually-held beliefs must be protected. 

President Clinton recognized that many years ago when he 

signed into law four congressional acts that explicitly allow religious organizations to retain the right to staff on a religious basis 

when they receive Federal funds. These laws are the Substance 

Abuse and Mental Health Services Act, the Community Services 

Block Grant Act of 1998, the Welfare Reform Act of 1996, and the 

Community Renewal Tax Relief Act of 2000. 

Even the Washington Post recognizes that protecting the staffing 

rights of religious organizations is not radical. In a May 2003 editorial the Post stated, ‘‘The House of Representatives passed a bill 

last week that would allow faith-based organizations that provide 

federally-funded training to discriminate in the hiring on the basis 

of religion.’’ The change in the Workforce Investment Act is not 

radical. 

Religious groups, including many religious universities that receive Federal money, are generally exempt from Federal laws 

against religious discrimination and hiring. And the 1996 welfare 

reform bill allowed faith-based groups access to other social service 

funds without their forfeiting this exemption. 

Protections that preserve a religious organization’s right to remain religious while neutrally administering Federal social services have long been accepted on a bipartisan basis, and so it is no 

surprise to me that the current Administration has not denied 

them. 

Thank you. 

Mr. NADLER. Thank you. 

I now recognize the distinguished Chairman of the full Committee for an opening statement. 

Mr. CONYERS. I just said no. I was kidding. 

Thank you very much, Mr. Chairman, for allowing me to make 

a comment or two. I have never said no before, so I just wanted 

to see what it—how you would react to it. You didn’t disappoint 

me. 

This is a very timely hearing. The Executive order comes out yesterday, and we have a hearing—whose brilliant foresight do we 

give credit to that? 

5

Mr. NADLER. I don’t entirely discount the possibility that the timing of the hearing may have had some effect on the timing of the 

issuance of the Executive order. 

Mr. SENSENBRENNER. The gentleman will yield, I concede that 

point. 

Mr. CONYERS. Well, interesting question. Now, I am so glad that 

our former Chairman, Jim Sensenbrenner, is here for this important hearing, and I am not surprised that he believes that the previous Administration’s position that religious organizations are exempt from the commitment to equal opportunity in federally-funded employment and that they can discriminate based on religion. 

That doesn’t surprise me at all. 

But what does surprise me is that here, the day after an Executive order is issued, we cannot get a representative from the 

present Administration to attend the hearing. And so I would like 

to get the approval of the Chair and the Ranking Member and our 

Subcommittee Chairman on Crime, Bobby Scott, to be able to communicate to the White House that they ought to get someone over 

here right away before the lame duck session ends. 

Mr. SENSENBRENNER. Will the gentleman yield again? 

Mr. CONYERS. With pleasure. 

Mr. SENSENBRENNER. I would be happy to cosign a letter and will 

await your co-signature of letters after January 3, when we are trying to get Administration witnesses over here. 

Mr. CONYERS. Well, I try to interpret that as, that after January 

5, my weight in letters of this kind will become more important, 

not less important. So I thank you for joining us. 

The whole idea that we can hold this hearing after knowing and 

receiving information that the President has explicitly sought from 

the council members an agreement not to deal with employment 

discrimination needs to be explained further. And there are ways 

that we can get people from the White House over here, and I don’t 

think that in the 21st century and in the wake of this Administration that we need to wait to see what more reporting and findings 

and recommendations come down. 

I would like to know now, while you are the Chairman and I am 

the Chairman, the way the 111th is proceeding we may have plenty of time for such a hearing. And so I am glad that I have gotten 

your agreement and approval to take such action. 

This is no way for us to try to do business, and so I am impressed that we have not one but two members of the council with 

us today. 

Reverend Lynn and Professor Rogers, we welcome you because 

this isn’t a matter of one branch of government drawing a bill over 

a subject of this immediate importance and we have to guess or try 

to figure out what and why and when something further is coming. 

The President explicitly campaigned and has made many remarks 

about this, not only as a candidate but as a senator. And we don’t 

propose to wait any longer, and I look forward to your comments 

and participation in the hearing. 

Thank you, Chairman Nadler. 

Mr. NADLER. Thank you. 

And I now recognize the distinguished gentleman from Virginia 

for an opening statement. 

6

Mr. SCOTT. Thank you, Mr. Chairman. And I would like to thank 

you for convening this important hearing as well as thanking our 

witnesses for being with us today. 

And I would like to commend the members of the Advisory Council on Faith-Based and Neighborhood Partnerships and the members of the council’s task force for their work. Their recommendations find common ground on which to lay a foundation for 

strengthening the constitutional and legal partnerships between 

the government and non-governmental social service providers, as 

well as provide clarity and transparency in the provision of these 

services, while all the time protecting our Nation’s commitment to 

religious freedom. 

Unfortunately, their work is far from done. The most egregious 

aspect of the so-called faith-based initiative, the right of religious 

social service providers to discriminate in employment with government funds, remains unresolved. 

One of the founding principles of our great Nation is the freedom 

to worship or not worship as one chooses. Faith plays a central role 

in the lives of many Americans and our communities benefit from 

the countless acts of justice and mercy that faith inspires people to 

commit. 

Faith-based organizations are all part of the front lines of meeting challenges like homelessness, youth violence, and other social 

programs. At the same time, the history of our Nation and its First 

Amendment protections do not and should not allow public funds 

to be used to proselytize or discriminate. 

In the 1960’s several civil rights acts were passed in order to end 

the Nation’s sorry history of racial bigotry. Since that time it has 

been illegal to discriminate in employment against protected classes and make job decisions based on race or religion. 

Now, I mention protected classes, and I would like to respond to 

the gentleman from—the Ranking Member from Wisconsin, who 

mentioned the Planned Parenthood example that is frequently 

used. Position on abortion is not a protected class. There is a difference between Planned Parenthood hiring people based on their 

position on some social issue as opposed to, ‘‘We don’t hire Blacks,’’ 

or, ‘‘We don’t hire Jews.’’ Race and religion are protected classes, 

and that is what is protected in our civil rights laws. 

One exemption exists for religious organizations but that discrimination is allowed in the context of a religious organization 

using its own money. 

Long before that the country recognized the disgusting practice 

of discrimination in employment while using Federal funds. 

Almost 70 years ago—1941—President Franklin Roosevelt issued 

an Executive order prohibiting discrimination by all defense contractors. In other words, the U.S. government said that even if you 

can build a cheaper and better rifle we are not going to buy it from 

you if you discriminate in your employment. In 1965, President 

Johnson expanded that policy in an Executive order banning discrimination in all government contracts. 

No discrimination with Federal funds has been the policy of this 

government for decades, at least until the so-called faith-based initiative. Under traditional laws many religious organizations have 

been sponsoring federally-funded social service programs for over a 

7

century. Until recently, they were funded like all other private organizations are funded. They are to use the funds for the purpose 

for which they were appropriated; they were prohibited from using 

taxpayers’ money to advance their religious beliefs; and they were 

subject to laws that prohibit discrimination in employment. 

Let’s be clear. Religious organizations can still discriminate in 

positions paid for with their own money, just not those paid for 

with Federal funds. And many religiously-affiliated organizations, 

such as Catholic Charities, Lutheran Services of American, Jewish 

Social Services, have been receiving funds—millions and even billions of dollars—for decades. 

Incredibly, the idea of charitable choice in President Bush’s socalled faith-based initiative came about because some people insist 

on discriminating in employment and therefore were barred from 

Federal contracts. They now believe that the prohibition against 

discrimination with Federal funds constituted a barrier that needed to be removed. 

Unfortunately, the faith-based initiative specifically removed that 

so-called barrier, and as a result, religiously-sponsored—religious 

sponsors of federally-funded programs are now allowed to discriminate in employment with Federal dollars on the basis of religion. 

That means that a person applying for a job paid for with Federal 

money can be ineligible for consideration for that job solely based 

on religion. 

And if this bigotry based on religion is tolerated, racial and sexual discrimination disguised as religious discrimination certainly 

follows. It doesn’t take a rocket scientist to figure out that if you 

get a pass on religion it will be impossible to enforce nondiscrimination laws based on race. 

Dr. King once said that 11 o’clock on Sunday was the most segregated hour of America, and that is still true today. And so if you 

discriminate based on religion, based on which church you go to, 

that has racial implications. 

Religious discrimination is also a proxy for discrimination based 

on sex, based on things like single motherhood, or divorce, or premarital sex. It is shocking that we would even be having a discussion about whether or not civil rights practices are to apply to programs run with Federal dollars. 

For decades, when funds were raised from all taxpayers it has 

been and should continue to be illegal for sponsors to reject applicants solely because of their religion. There is no justification for 

having to—restoring a practice where you can tell job applicants 

that, ‘‘We don’t hire your kind.’’

The so-called faith-based initiative represented a profound 

change in policy. Since 1965, if an employer had a problem hiring 

the best-qualified applicant because of discrimination based on race 

or religion that employer had a problem because the weight of the 

Federal Government was behind the victim of discrimination. But 

with the faith-based initiative, we shifted the weight of the Federal 

Government to support—from supporting the victim to supporting 

the employer’s right to discriminate. This is a profound change in 

civil rights protections. 

And if we don’t enforce discrimination laws in Federal contracts 

in secular programs, where is our moral authority to tell a private 

8

employer, who may be devoutly religious, what he can and can’t do 

with his own private money. A policy of religious discrimination in 

employment is wrong in the private sector and it is certainly wrong 

with Federal funds. 

We need to be—unfortunately the Executive order did not address this profound issue. It failed to address the employment 

issue, and we are disappointed that they failed to present a witness 

so we can inquire why that was done. 

Mr. Chairman, I would like to insert to the record the rest of my 

statement——

Mr. NADLER. Without objection. 

Mr. SCOTT [continuing]. And I look forward to the testimony of 

the witnesses, particularly in light of the question that we will 

have on employment discrimination. And I will yield to the Chairman of the Committee. 

Mr. CONYERS. Thank you. I merely want to associate myself with 

an excellent statement. I yield back. 

Mr. SCOTT. I yield back. 

Mr. NADLER. I thank the gentleman. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record. Without objection, the Chair will be authorized to declare a recess of the hearing, which we will do in the event of votes on the floor, but only 

in such an event. 

We will now turn to our panel of witnesses. As we ask questions 

of our witnesses the Chair will recognize Members in the order of 

their seniority and in the usual order—usual procedure of this 

Committee. 

I will now introduce the witnesses. Melissa Rogers serves as the 

director of the Wake Forest University School of Divinity Center 

for Religion and Public Affairs and as a nonresident senior fellow 

at the governance program of the Brookings Institution. In 2009 

President Barack Obama appointed her to his Advisory Council on 

Faith-Based and Neighborhood Partnerships. There she chaired the 

task force on the reform of the office of faith-based and neighborhood partnerships, whose recommendations we will be discussing 

today. 

Professor Rogers previously served as the executive director of 

the Pew Forum on Religion and Public Life. Prior to her leadership 

at the Pew Forum Professor Rogers served as general counsel of 

the Baptists Joint Committee on Religious Liberty, based in Washington, D.C. She earned her B.A. from Baylor University and her 

J.D. from the University of Pennsylvania Law School. 

Douglas Laycock is a professor of law and of religious studies at 

the University of Virginia. He is a fellow of the American Academy 

of Arts and Sciences and the vice president of the American Law 

Institute. 

Before joining UVA’s faculty in 2010 Professor Laycock served as 

the Yale Kamisar Collegiate Professor of Law at the University of 

Michigan Law School. Prior to that he taught for 25 years at the 

University of Texas and for 5 years at the University of Chicago. 

Professor Laycock earned his B.A. from Michigan State University 

and his J.D. from the University of Chicago Law School. 

9

Reverend Barry Lynn is an ordained minister in the United 

Church of Christ and has served as the executive director of Americans United for Separation of Church and State since 1992. Along 

with Professor Rogers, he served on the task force on the reform 

of the office of faith-based and neighborhood partnerships. 

Reverend Lynn began his career working at the national office of 

the United Church of Christ, including a 2-year stint as legislative 

counsel for the church’s office of church and society, in Washington. 

From 1984 to 1991 he was legislative counsel for the Washington 

office of the American Civil Liberties Union. Reverend Lynn earned 

his law degree from Georgetown University Law Center and received his theology degree from Boston University School of Theology in 1973. 

I am pleased to welcome all of you. Your written statements in 

their entirety will be made part of the record. 

I would ask you to summarize your testimony in 5 minutes or 

less. To help you stay within that time there is a timing light at 

your table. You have all testified here before; you know what the 

light means. When 1 minute remains the light will switch from 

green to yellow, and then to red when the time is up. 

Before we begin it is customary for the Committee to swear in 

its witnesses. If you would please stand and raise your right hands 

to take the oath? 

Let the record reflect that the witnesses answered in the affirmative. 

You may be seated. Thank you very much. 

I will now recognize Professor Rogers. 

Use your mike and speak into it. A little closer to the mike. 

Ms. ROGERS. Pull it a little closer, is that better? 

Mr. NADLER. That is better. 

TESTIMONY OF MELISSA ROGERS, DIRECTOR, CENTER FOR 

RELIGION AND PUBLIC AFFAIRS, WAKE FOREST UNIVERSITY DIVINITY SCHOOL 

Ms. ROGERS. Okay. Thank you. 

Thank you, Chairman Nadler, and thanks also to Ranking Member Sensenbrenner, Chairman Conyers, Representative Scott, Representative Watt, and the other Members of this Subcommittee. I 

appreciate the invitation to be here with you today and I appreciate your interest in the work of the Advisory Council. 

And I am also grateful for our partnership in years past on free 

exercise matters like the Religious Freedom Restoration Act. It has 

been wonderful to work with you. 

Let me say that I don’t speak today for the full Advisory Council 

or any of the organizations with which I am affiliated, but I do 

speak as one who has long worked on issues related to partnerships between the government and nonprofits, both religious and 

secular. I also speak as a lifelong Baptist and, as a Baptist, I believe that the mandates to care for our neighbors and to provide 

religious freedom for all people are not only legal, policy, and ethical matters, they are also scriptural imperatives. 

In March the Advisory Council urged President Obama to take 

a wide range of actions to strengthen the constitutional and legal 

footing of the partnerships that it forms with nonprofits to serve 

10

people in need. And those involved in the council process have 

some serious differences on church-state matters, yet through some 

painstaking and long periods of work we were able to reach consensus on some key recommendations. 

As you have already noted, yesterday President Obama signed 

an Executive order that implemented many of these recommendations. This order is a major step forward in our efforts to create 

more clarity, transparency, accountability, and constitutional compliance in these partnerships. 

Let me just quickly mention, if I could, six of the changes the Executive order makes. First, the new order says that beneficiaries 

have the right to an alternative provider if they object to their provider’s religious character, and the beneficiaries have to receive 

written notice of this and other rights at the outset. 

Second, the new order clarifies some fuzzy rules about uses of direct government aid, making it clear that such aid can’t be used 

for explicitly religious activities, meaning activities that contain 

overt religious content, like prayer, worship, and proselytizing. The 

new order also directs an interagency working group to provide 

regulations and guidance on the need to cleanly separate any privately-funded religious activities from programs that are subsidized 

by direct government aid. At the same time, the order makes it 

clear that religious providers can retain a religious name and religious symbols in their building. 

Third, the order says government-funded programs have to be 

monitored to ensure that church-state rules and other rules are 

being followed, but the government must do so in ways that don’t 

create excessive church-state entanglement. 

Fourth, the new Executive order says that the government must 

post things like grant and guidance documents on the Web, as well 

as lists of nonprofits that receive Federal social service funds. 

Fifth, the order says that decisions about awards of Federal social service funds must be free of even the appearance of political 

interference, and that those decisions have to be made on the basis 

of merit and not on religious affiliation or lack thereof. 

And sixth, as I have already mentioned, the order creates what 

I think is the first interagency working group to create uniform 

policies around these and other issues. 

Now, the new order doesn’t call for churches to form separate 

corporations if they wish to receive direct government aid, and that 

is a change that 13 council members, including me, advocated as 

a way of insulating churches from government oversight. Also, as 

you have already noted in your remarks, one important issue—the 

employment issue—was put outside the council’s charge. 

But the order adopts key consensus recommendations of the 

council, and I believe it is a great achievement, not only because 

it does so much to bring these efforts into line with religious liberty 

principles, but also because it does so with the backing of people 

who have been divided over these issues for a very long time. As 

you know, about 15 years ago some controversial policies started 

popping up in this area and we have been fighting ever since; but 

now we have got some common ground policies—not on everything, 

but on some important matters—and that is an important advance. 

11

As you know, in my written testimony I have addressed the issue 

of religion-based decision-making by faith-based groups in government-funded jobs. As I have already noted, the White House instructed the council not to address this issue, and it has said that 

it is dealing with the issue through a separate process, one that is 

not connected to the council process. 

It is critical to note that this debate about government-funded—

is about government-funded jobs, not privately-funded jobs. I fully 

support the ability of all religious organizations to make decisions 

on the basis of religion regarding jobs that they fund themselves. 

My Baptist church, or course, should be able to call a Baptist 

preacher; and a synagogue, of course, should be able to call a 

Rabbi. 

But subsidizing jobs with government money changes the calculus. We have a longstanding tradition—something that has already been mentioned—of equal opportunity in federally-funded 

employment, and I believe that is a tradition that we should continue. 

In my view, it is wrong to allow any religious group, including 

my own, to place a religious test on a job that is funded by a government grant. Because current rules and policies permit this in 

some instances I believe this matter must be addressed. So I want 

to thank you for the opportunity to be with you, and I look forward 

to our discussion. 

[The prepared statement of Ms. Rogers follows:]

12

PREPARED STATEMENT OF MELISSA ROGERS


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Mr. NADLER. Thank you. 

Professor Laycock? 

I think you were better off a moment ago, but maybe not close 

enough to the mike. Is the light on? 

TESTIMONY OF DOUGLAS LAYCOCK, ARMISTEAD M. DOBIE 

PROFESSOR OF LAW, HORACE W. GOLDSMITH RESEARCH 

PROFESSOR OF LAW, PROFESSOR OF RELIGIOUS STUDIES, 

UNIVERSITY OF VIRGINIA SCHOOL OF LAW 

Mr. LAYCOCK. The green light? There we go. Well, it was on but 

it wasn’t on brightly enough, turns out to be the answer. 

Thank you, Mr. Chairman. It is good to be back before this Committee. 

Let me begin by saying that I am a firm supporter of separation 

of church and state, but separation is not an end in itself; it has 

an underlying purpose. Separation is not about aesthetics or mechanics for their own sake; it is not about taking pictures off the 

walls or making sure that no government dollar ever touches anything religious. It is far more important than that. 

The purpose of separation of church and state is to separate the 

religious choices and commitments of the American people from the 

overriding power and influence of government, to ensure that 

Americans and their voluntary associations can act on their faith 

or on their lack of faith without government interfering and trying 

to persuade them or coerce them to change their faith commitments or the way they carry out those faith commitments. 

So how do we provide that protection in the context of charitable 

choice? As several of the Committee Members mentioned, government has used grants and contracts to the private sector for a very 

long time; it has used both religious and secular providers for a 

very long time. 

But before the first charitable choice legislation in 1996 there 

was very little in the way of visible rules to protect religious liberty. Some government officials liked religious providers and some 

didn’t, and many of them felt free to act on those preferences, to 

discriminate in favor of religion or against religion. 

The charitable choice provisions of the Welfare Reform Act enacted clear religious liberty principles for the first time. I can’t 

speak to what the political motivations of the sponsors were, but 

the substance of that act stated some very important religious principles—religious liberty principles—no discrimination between religious and secular providers, no surrender of religious identity for 

the religious providers, no discrimination on the basis of religion 

against the recipients of the services, no coercion to participate in 

religious activities, the guarantee of an alternative secular provider 

to any recipient who asks for one, audit of the government money 

only, as long as it was segregated from the religious provider’s 

money, no use of government funds to support the religious activities. Much of that was being written down for the first time. 

The Bush administration Executive orders that expanded these 

programs were much less explicit about many of those protections. 

Some of them were simply omitted. 

President Obama’s Executive order yesterday, as Professor Rogers just summarized, makes the rules explicit for all programs and 

35

it creates a task force to work on further implementation issues, 

which is where the real difficult problems often occur. And that 

leaves employment as the principal disputed issue. 

The 1996 legislation says, the President’s Advisory Council says, 

the President’s Executive order says religious organizations with 

government grants and contracts need not surrender their religious 

identity. Nothing—nothing—is more important to religious identity 

than the ability to hire employees who actually support the religious mission and will faithfully execute it, and if you want to take 

that away you are saying the groups—the religious groups that 

participate in these programs have to secularize themselves in a 

very dramatic way. It uses the coercive power of the purse to force 

religious social service providers to become much more secular than 

they were. 

And we have a longstanding commitment in this country against 

invidious discrimination. Mr. Scott called it bigotry, and that is 

right. It is against the irrational exclusion of racial and religious 

minorities, and people on the basis of sex in contexts where those 

criteria are simply not relevant. 

If you are a religious organization, religious affiliation is relevant. It is not about bigotry; it is not about irrational exclusion. 

It is about the First Amendment. It is about assembling a group 

of like-minded people in pursuit of a common religious mission and 

a common activity. 

Religion is a protected class but it was never intended to protect—to make religion irrelevant in religious contexts. That doesn’t 

protect religion; that doesn’t protect religious minorities. It forces 

any religious organization, majority or minority, that participates 

in these programs to abandon an essential part of its mission. 

The government says, ‘‘Here is a large pot of money. If you run 

good programs you can win grants, you can expand your operation, 

you can help more people in need, but if and only if you surrender 

your right to hire people who support your mission.’’ That violates 

the fundamental purpose of separation of church and state. 

It uses the power of the purse to coerce religious organizations 

to become less religious and more secular, and that would be a fundamental policy mistake. This Committee should not try to force 

the Administration into doing that. 

One reason that separationists have historically opposed government funding of religious organizations is the fear that regulation 

and conditions will come with the money and the religious organization will be corrupted. There is no clearer example of that sort 

of corruption than forbidding these organizations to hire people 

who actually support their mission. I think the Administration’s 

failure to act on the hiring issue is well advised. 

[The prepared statement of Mr. Laycock follows:]

36

PREPARED STATEMENT OF DOUGLAS LAYCOCK


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Mr. NADLER. I thank the witness. 

Reverend Lynn? 

TESTIMONY OF BARRY W. LYNN, EXECUTIVE DIRECTOR, 

AMERICANS UNITED FOR SEPARATION OF CHURCH AND 

STATE 

Rev. LYNN. [Off mike.]—the single most important action that remains is to undo President Bush’s Executive orders and regulations 

that permit a religious entity that receives a government grant or 

contract to make hiring decisions for the very programs that are 

federally funded on the basis of religion. This is sometimes referred 

to as preferential hiring, but it is more accurately labeled simply 

as discrimination and it is ethically and legally wrong. 

President Obama knew this when he spoke as a candidate in 

2008 and affirmed that you can’t use grant money to discriminate 

against the people you hire on the basis of their religion, and I 

would say the American people know it as well and that is why 73 

percent of Americans polled that same year said that a religious 

group that wanted to engage in discriminatory hiring should not 

get tax dollars at all. It is terribly wrong to reject the best-qualified 

person for a secular job at a faith-based institution because he or 

she does not pass a religious litmus test. 

In my experience a Baptist does not ladle out rice in a soup 

kitchen differently than does a Buddhist. A Catholic does not tuck 

in the sheets at a homeless shelter in a way that differs from how 

it would be done by a Quaker. 

Some who lead religious organizations wouldn’t call what they 

want to do unethical or illegal, or even wrong. They simply say 

they are more comfortable working with people who believe as they 

do—people like themselves. 

Many of us have heard all that before. We heard it about race; 

we heard it about gender. But level of comfort is not a constitutionally permissible basis for selecting what job another person can 

seek. 

Discriminatory hiring has very real consequences. Saad Mohammad Ali, a refugee from Iraq, had volunteered for 6 months at the 

charity World Relief up in Seattle. A coworker suggested he apply 

for a paid position as an Arabic-speaking caseworker. Just days 

later he was called and told not to bother applying because he was, 

after all, a Muslim and not a Christian. 

If World Relief were funded entirely with private dollars it would 

be allowed to make such judgments under Title 7 of the Civil 

Rights Act. Many of us might not like that but that is what the 

law permits. 

But when a religious entity gets dollars from taxpayers—the taxpayers whose beliefs range from atheism to Zoroastrianism, from A 

to Z—the calculus quite properly changes. The civil rights framework of our country comes into play and such discrimination must 

be legally impermissible. 

I don’t want to impair the religious character of any church, or 

temple, or synagogue, or charitable group. But the free exercise of 

religion is not burdened when a group voluntarily accepts government funds knowing that it contains constraints on certain religiously-motivated conduct like hiring only your own followers. 

54

The First Amendment to the United States Constitution is not 

an excuse to refuse to play by American rules when you are playing 

with Americans’ dollars. And the rules at the Federal level do matter all over this country. 

A state-funded Methodist social service agency in Georgia felt 

that it had the right to deny a man named Alan Yorker a job as 

a psychologist. What had he done? He filled in his job application 

with the name of his Rabbi and his synagogue in the spaces 

marked ‘‘pastor’’ and ‘‘church’’ and then was told, ‘‘We don’t hire 

people of your faith.’’

Mr. Yorker filed a lawsuit. It has been settled in his favor. 

Some members of the President’s Advisory Council claim that if 

we ‘‘burden religious providers with hiring rules they will not accept government funds and this will reduce their ability to help 

people in need.’’ This sometimes, to me at least, sounds more like 

a threat than it does a moral rationale. 

Indeed, if World Vision, which refuses to hire non-Christians, refused to take the $343 million worth of government grants it receives there are dozens of other charities, religious and secular, 

eager to apply for those grants. Most religious charities have always hired the best people they could find to work out their social 

missions without asking them to swear allegiance to any specific 

religious creed and they would continue to do so. 

Prohibiting discrimination on the basis of religion requires relatively simple action. Congress can do it with a few lines of statute 

or the President with a short Executive order undoing that wrong 

initiated less than a decade ago. 

This is not hard. It is not reform of the health care system. It 

is not extricating the United States from Afghanistan. 

It is, Mr. Scott, not rocket science. 

It is simple justice. Thank you. 

[The prepared statement of Rev. Lynn follows:]

55

PREPARED STATEMENT OF BARRY LYNN


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Mr. NADLER. I thank you, Reverend Lynn. 

We have two votes on the floor. We have 4 minutes and 28 seconds remaining but that is congressional time; we will have a little 

more time than that. 

So there is about 5 minutes remaining on this vote, 5 minutes 

on the next vote, and then I ask the Members of the Committee 

to return as soon as possible after that second vote. And meanwhile, I will declare the hearing in recess. 

[Recess.] 


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Mr. NADLER. The hearing will reconvene and I apologize to everyone for that delay. Hopefully it won’t occur again, but it might. 

I will begin the questions by recognizing myself for 5 minutes. 

First, for Professor Rogers, you testified that the Supreme Court 

has never interpreted the free exercise clause to prevent the government from placing nondiscrimination conditions on grants to or 

contracts with religious organizations, including the requirement 

that providers abide by longstanding commitments to equal opportunity in federally-funded jobs. Professor Laycock and the Office of 

Legal Counsel contend that the Religious Freedom Restoration Act, 

RFRA, compels a different result. 

Congress was very clear that the purpose of RFRA was to restore 

the pre-Smith application of—that is—I don’t think I have to explain to this audience what Smith was—the pre-Smith application 

of strict scrutiny to free exercise claims. If, under the pre-Smith application of strict scrutiny restored by RFRA, the government could 

place a nondiscrimination condition on grants how is it possible 

that RFRA compels a different result? 

And let me add that many of us have urged the Obama administration to review the OLC opinion on this. When they do so, do you 

see any grounds for them to uphold that opinion or should it be revised or withdrawn? 

Ms. ROGERS. Yes, Chairman Nadler. Thank you for that question. 

I believe that the opinion—the World Vision opinion—that the 

Department of Justice——

Mr. NADLER. Would you speak closer to your mike? 

Ms. ROGERS. Sure—that the Department of Justice offered 

should be reconsidered, and in my view it should be withdrawn because in my view it incorrectly interprets the burden prong of the 

Religious Freedom Restoration Act, finding that the requirement 

that a nondiscrimination provision in the RFRA—in the actual 

grant cannot flow, or cannot be placed on the recipient because of 

RFRA. The opinion says that that is a substantial burden, and I 

just think they got that wrong. 

Mr. NADLER. You think that is not a substantial burden? 

Ms. ROGERS. I think it is not a substantial burden. It is a government grant that applies to—the nondiscrimination clause applies to 

positions that would be within the government program, but it 

doesn’t apply to positions that would be outside the government 

program and privately funded, so there is certainly a lot of latitude 

there. And it is something that an organization could take the 

grant or not take the grant. They are under no duress to take the 

grant and if they don’t agree——

Mr. NADLER. And the necessity not to take the grant would not 

be a substantial burden? 

Ms. ROGERS. Not taking the grant would not be a substantial 

burden, yes. I agree with that. 

So my view is that that opinion incorrectly interpreted the burden analysis, and so I do hope that the Department of Justice will 

reconsider that opinion and withdraw that particular opinion. 

Mr. NADLER. And the first part of my question, which was the—

that under pre-Smith application of strict scrutiny restored by 

RFRA it was always assumed at that time that the government 

146

could place nondiscrimination conditions on grants. How can RFRA 

compel a different result? 

Ms. ROGERS. I don’t believe that RFRA does compel a different 

result, and Chairman Nadler, you were a leading Member and very 

active in the RFRA debate, and I think what was true of that coalition that passed RFRA, which was so broad, is that there were different opinions about matters like these that we had to say, I 

think, that these matters would be unaffected by RFRA. 

Mr. NADLER. I agree. I should say the legislative intent has 

sometimes—I once lost a lawsuit in the New York State courts on 

the legislative intent of a statute that I was one of the principal 

authors of, so you never know. 

Professor Laycock, you testified that protecting the right of program beneficiaries by the guarantee of a secular alternative to religious providers is fundamental to these programs. I think that is 

a direct quote from your testimony. 

Does that requirement have constitutional dimensions? That is, 

is it required by the free exercise or establishment clause, in your 

opinion? 

Mr. LAYCOCK. There is not a Supreme Court case directly on 

point, but yes, I think the requirement of a secular alternative is 

of constitutional dimension. The government cannot force recipients 

into a religious alternative as the only alternative available. 

Mr. NADLER. So you think it is of constitutional—so your answer 

is yes? 

Mr. LAYCOCK. My answer is yes. 

Mr. NADLER. And what are or should be the consequences if we 

cannot ensure alternatives in that case? 

Mr. LAYCOCK. Well, I mean, the premise of that question is ensuring the secular alternative is difficult. It takes some money and 

it takes some planning. And if you have a beneficiary request a secular alternative and doesn’t get it you have got a constitutional violation. 

Well, then what is the remedy for that violation? I don’t think 

it is to shut down the entire program. I think you have to have a 

remedy focused on that individual—on that individual——

Mr. NADLER. Well, what would be the remedy? Not to shut down 

the entire program—is there a different remedy? 

I mean, we are in a situation where obviously funding is tight; 

it is going to be tighter in the next few years or decades. So what 

would be the remedy if it is unconstitutional not to have a secular 

alternative? 

Mr. LAYCOCK. The remedy is for the court to order the agency to 

fund a secular alternative, and if that turns out to be flatly impossible on the ground then I don’t know where we are. But the remedy is to create the secular alternative. 

Mr. NADLER. Which, yes, okay. So, in other words——

Mr. LAYCOCK. And I would think, sir, in an individual case it is 

always going to be possible. What is difficult is to do it in a structural manner so that we can be confident it is always going to be 

there for any beneficiary in the——

Mr. NADLER. All right. Now, in effect you are saying that one solution is to—to concerns about religious discrimination in federallyfunded jobs is simply to fund a diverse range of employers. Some 

147

will discriminate based on religion, some will not, so there is an alternative available. 

Setting aside other possible objections, how do we square this 

with the consensus position taken, I believe, by everyone in the 

witness table today, by the Bush administration, by the Advisory 

Council, and by the new Executive order, that the government absolutely should not consider religious affiliation or lack of affiliation 

when making grants and distributing funds? Doesn’t this solution 

actually require consideration of affiliation and beliefs in order to 

make sure they have some with and some without? 

Mr. LAYCOCK. No, I don’t believe it does. I think connection runs 

the other way, that when the government says, ‘‘You have to secularize your hiring in order to be eligible,’’ that is very similar to 

saying, ‘‘We only consider secular providers.’’ And I think the logic 

of these programs is, you know, award the grants without regard 

to religion and on the basis of the merit of the programs. The distribution of the grants won’t be perfectly even but it will be——

Mr. NADLER. But how do you—what I don’t understand is how 

do you figure out that some of the groups that you are going to be 

funding are not going to discriminate so that you have alternatives, 

knowing that some will, if you don’t ask and if it is impermissible 

to ask? 

Mr. LAYCOCK. The premise of the program is you award the 

grants on the basis of merit, and you assume that in the real world 

that will result in some kind of a distribution, that it is not going 

to be the same group getting the grant every time. And if it is then 

we want to check whether the funding agency is really awarding 

on the basis of merit or whether——

Mr. NADLER. Some group may really be meritorious—others. 

Mr. LAYCOCK. Pardon? 

Mr. NADLER. It is always possible that some group really is so 

meritorious that it gets all the grants. 

Mr. LAYCOCK. It is possible. It is possible. But I think our experience has been that generally you get a distribution. 

Mr. NADLER. Well, let me ask you one last question. Would the 

unavailability of nondiscriminating employers or the lack of jobs at 

those employers change the results? And do prospective employers 

have to relocate or take lower-paying jobs and would this violate 

the principle of alternative employers? 

Should I repeat that? 

Mr. LAYCOCK. Well, I think we have moved from the principle of 

alternative providers for beneficiaries to alternative employers for 

job seekers, and——

Mr. NADLER. I thought we were talking about that. 

Mr. LAYCOCK. Well, let’s review the bidding and make sure we 

haven’t missed any—— [Laughter.] 

I said I think it is a matter of constitutional principle that the 

beneficiaries of this program, the recipients of the services, have a 

secular alternative——

Mr. NADLER. Yes, okay. 

Mr. LAYCOCK [continuing]. Available so that they are not forced 

into a religious provider against their will. 

With respect to employment——

Mr. NADLER. It is a different question. 

148

Mr. LAYCOCK.—I don’t think they are guaranteed a federallyfunded secular employer of their choice. I think as a practical matter if we award the grants and the contracts on the basis of merit 

there will be a diversity of federally-funded private sector employers out there. But I don’t think that job seekers get guarantees in 

the way that the beneficiaries——

Mr. NADLER. Thank you. My time is long expired. 

I now recognize the Chairman of the full Committee. Oh, Chairman defers. I will recognize the gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

You know, one of the things that is confusing me on this secular 

alternative is what is going on in the program that requires an alternative? 

Reverend Lynn? 

Rev. LYNN. I think that is an excellent point. One of the things 

that I disagree about in regard to the Executive order yesterday 

was the determination that religious icons and symbols do not need 

to be removed from the wall. On the other hand—on a wall where 

a federally-funded service is being provided. 

I just find it unusual that you cannot, under the regulations—

presumably if they will be promulgated after the Executive order—

that you cannot use these government funds to proselytize or to 

evangelize but it is perfectly acceptable to have them occur, whether that is a counseling session or a hunger program, in a place that 

contains the very symbols, icons, and statements of the faith. I 

mean, what could be more of an evangelistic opportunity than to 

put up a quote from the Christian Bible suggesting that Jesus is 

the only way to salvation, and to have that appear on the walls of 

a federally-subsidized program of any kind? 

I think that is a fundamental problem. If you have a person who 

does not want to have a religious provider then it seems to me that 

you must guarantee, and there has to——

Mr. SCOTT. If the provider happens to be of a certain religion and 

the beneficiary just doesn’t like that religion and it is a secular program can he say, ‘‘Well, I don’t like that provider’s religion. I don’t 

want somebody of that faith counseling me on my drug problem. 

I want somebody of another faith’’? Is that a legitimate complaint? 

Rev. LYNN. I think it is a legitimate complaint, and I think it is 

even more legitimate——

Mr. SCOTT. I mean, this doesn’t have anything to do with faithbased; I just don’t like the man’s religion. 

Rev. LYNN. Well, but I think that the——

Mr. SCOTT. Secular program, right? 

Rev. LYNN. Yes, but the beneficiary may well understand, particularly if he or she is in a room——

Mr. SCOTT. Well, you are talking about is it—I mean, if it is a 

secular program and it is run as a secular program and you just 

don’t happen to like—you just found out the guy’s religion is one 

you don’t agree with, ‘‘I want someone of another religion.’’ I mean, 

there used to be a time when hospitals, you know, ‘‘I don’t want 

a doctor of that race.’’

You know, what I mean, is this—if it is a secular program run 

appropriately—Professor Laycock, if you have got a secular proVerDate 0ct 09 2002 18:13 Mar 06, 2011 Jkt 000000 PO 00000 Frm 00152 Fmt 6633 Sfmt 6601 H:\WORK\CONST\111810\62343.000 HJUD1 PsN: 62343
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gram run appropriately without the proselytizing what is the complaint? 

Mr. LAYCOCK. Well, if you wholly secularize the religious providers then I think——

Mr. SCOTT. No, the program, not the provider. I mean, people 

have—people will come in with their religion. You have a program 

that is a secular program if you are suggesting that things are 

going on that are actually proselytizing then you have got another 

problem. Not just the alternative, you have got another problem. 

Mr. LAYCOCK. As I understood the idea for these programs back 

in the beginning—and there has been some substantial evolution 

since 1996—but as I understood the point back in 1996 the program had to provide the secular service that the government was 

willing to pay for and had to provide it——

Mr. SCOTT. Well, let me tell you, back in 1976 the bill—the original bill—allowed the program to require, as a condition to participation, that you take Communion and come to Wednesday night 

prayer sessions. 

Mr. LAYCOCK. But you got that fixed before it was enacted. 

Mr. SCOTT. Okay, well yes. That is right. And we think we got 

it fixed so that there is no proselytization. 

Mr. LAYCOCK. But what it said was, ‘‘Government funds cannot 

be used to pay for proselytization.’’

Mr. SCOTT. Okay. 

Mr. LAYCOCK. And one form of implementation that would have 

been consistent with that 1996 legislation would have been to say, 

‘‘The secular part of the program is paid for with government 

money; religious add-ons to the program were paid on with—paid 

for with private money, but they don’t have to be cleanly separated.’’

Mr. SCOTT. Well, yes they do—well, when we passed legislation 

out of this Committee it did have to be cleanly separated so that 

you could participate in the government-funded programs without 

any proselytizing added on, because as a matter of fact, the concern 

was the original bill said ‘‘paid for with government money,’’ which 

opened the opportunity for the youth choir director to come in 

and—volunteer to come in and lead the group in praise and prayer. 

We made sure that that was not possible. The program had to be 

secular. 

Mr. LAYCOCK. I understand that. In the intervening years we 

have added the separation requirement that any religious add-ons 

have to be separate in time or separate in space. That may well 

have been a mistake, but that is what we have done. 

Mr. NADLER. Excuse me. That add-on may have been a mistake 

or the original may have been a mistake? 

Mr. LAYCOCK. The requirement of separation may have been a 

mistake, but that is the direction we have gone in. And that does 

reduce the need for the secular alternative. I don’t think it eliminates. 

If we can still have religious art on the walls—and I don’t think 

we should take it down—then the beneficiaries have a reasonable 

religious objection to that. They can still be invited to the separate 

program that is going to occur later in the day and they may not 

150

want to deal with that, but you are right. The more we secularize 

the program the less——

Mr. SCOTT. So your assumption is that—your assumption is that 

there is still some proselytization going on in some of these programs for which you need an alternative. 

Mr. LAYCOCK. Well, there may be some proselytization going 

on——

Mr. SCOTT. Let me get on another question because—let me get 

on another question. 

Reverend Lynn, you mentioned Dr. Yorker, the psychologist who 

couldn’t get a job at a program because of his religion. It is my understanding that the faith-based office is treating discrimination 

cases on what they call a case-by-case basis, whatever that means. 

Can you explain how a—there is only one drug counseling program in the area; it is run by a faith-based organization that is discriminating. How does Dr. Yorker get a job as a drug counselor 

anywhere in the county? Or does his religion essentially eliminate 

any possibility of employment in a drug program? 

Rev. LYNN. I think the answer is that he is unlikely to find any 

job in that county——

Mr. SCOTT. Because of his religion? 

Rev. LYNN [continuing]. Because of his religion. And this could 

be a county-wide phenomenon or in entire states one could imagine 

a condition where he could not find a reasonable job if those wouldbe employers, including the religiously-based ones, are allowed to 

discriminate on the basis of religion. 

As far as the case-by-case review, we have repeatedly asked the 

Administration, the Justice Department, to explain what this caseby-case review is. But a case-by-case review that results in permitting discrimination in some cases but not others—if that is happening we have no standards, there are no written documents, 

there are no rules about how this is being applied. I don’t think you 

can have a case-by-case evaluation if some cases lead to saying no 

on the basis of religion to that job seeker. 

Mr. SCOTT. And, Mr. Chairman, if I can just get one thing on the 

record from Ms. Rogers—Professor Rogers, prior to 2001 or late 

2001 the Bush Executive order, which changed the Johnson Executive order, that constituted a change. Is it true that before then if 

you get a Federal contract you could not discriminate based on religion? 

Ms. ROGERS. Yes. That was the 1965 Lyndon B. Johnson Executive order that related to contracts and was amended by the Bush 

2002 Executive order. 

Mr. SCOTT. After 2002, if a faith-based organization is running 

a program, what legal prohibition is there against discriminating 

openly and notoriously on the basis of a person’s religion? 

Ms. ROGERS. Well, for that you would have to look at the program at issue because there are different statutes. For example, a 

charitable choice statute would allow that——

Mr. SCOTT. If there is no specific prohibition against discrimination in the program——

Ms. ROGERS. No overarching prohibition against discrimination? 

In some programs there are conditions that are like the one that 

is at issue in the World Vision case where the Justice Department 

151

issued a memo. There was a nondiscrimination provision that related to employment in that particular program. But other programs contain charitable choice provisions that would allow the 

discrimination and so we have——

Mr. SCOTT. Or they are silent. 

Ms. ROGERS. Or they are silent, yes. 

Mr. SCOTT. And in that case a program can have a practice of 

discriminating against persons in employment solely based on religion? 

Ms. ROGERS. Yes. In those cases where it is, you know—there is 

a charitable choice statute, for example, they could. 

Mr. SCOTT. Or if there is no specific prohibition? 

Ms. ROGERS. Well, I suppose that you would have to take a look 

at regulations and see what is there, but it is conceivable that that 

might be the case. 

Mr. SCOTT. And so a person applying for a job paid for with Federal money can be told, ‘‘We don’t hire people of your faith,’’ just 

like Mr. Yorker was told. That would be legal in those programs? 

Ms. ROGERS. If it was a religious group and they had the clearance—the charitable choice-type language—then they would be 

able to make those decisions on the basis of religion with regard 

to federally-funded jobs. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

I now yield 5 minutes to the gentleman from Arizona. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

And thank you all for being here. 

Mr. Chairman, I think one of the challenges we have in a situation like this is that there are organizations out there that seem 

genuinely committed to trying to erase any sort of religious expression from American life, and I am not going to try to make that 

case here this morning but I believe it is part of the issue. I wrote 

a bill here about 15 years ago that passed in the Arizona legislature that simply allowed people—private individuals on a voluntary 

basis—to contribute to a scholarship fund for children to go to a 

school of their parents’ choice. And that is private dollars that 

never touched the public coffers whatsoever. 

And the rub came in when some of those parents chose a religious school for their child. And of course, the ACLU, and Mr. 

Lynn, and others sued us in the Federal courts for the last 15 

years—last 12 years. And oral arguments were heard in the U.S. 

Supreme Court here about 2, 21⁄2 weeks ago. 

And I think the Supreme Court will uphold the Arizona provision 

because otherwise they would be saying that every dollar in everyone’s pocket is public money. That is exactly what the ACLU is arguing, that that is public money simply because it is subject to a 

tax credit. 

I am wondering how long it will be before the ACLU argues that 

money given to a church, because there is special tax treatment involved there, that it is deductible, that that money is also public 

money and that the church, if you are a Jewish synagogue, that 

you have to hire a Baptist to be your counselor for young marrieds. 

I mean, it just—the possibilities are endless. 

152

And as we all know by now, that yesterday President Obama 

issues a new Executive order dealing with the White House office 

of faith-based and neighborhood partnerships, but it was silent as 

to the degree to which religious entities could continue to enjoy the 

freedom of association through hiring. Now, the order’s lack of clarity has breathed a new life into what was once an otherwise longsettled question of whether grant recipients can hire and fire based 

on religious association. 

For 50 years our courts have said yes, but our current Administration officials have said that those questions will be answered on 

an ad hoc basis. I don’t know how a religious entity can possibly 

know what is permissible and what is not permissible under the 

Administration’s ad hoc approach. 

I mean, ad hoc is sort of synonymous with ‘‘making it up as you 

go,’’ and I think this violates the basic notions of due process. I 

mean, King George was famous for his ad hoc approach to almost 

everything. 

So I guess, Mr. Laycock, my first question here, before I get too 

exercised, is, is the Administration’s ad hoc policy a clear victory 

for those, if there are such groups, that would seek to deny religious entities the right to associate with or employ only those who 

share their religious beliefs? I mean, do you think that is a victory 

for those groups that want to remove that liberty to religious 

groups? 

Mr. LAYCOCK. No. I think it is postponing the issue. And none 

of the three witnesses like case-by-case or ad hoc, all right? Professor Rogers and Reverend Lynn would say you can never hire on 

the basis of religion if you have a Federal grant, and I would say 

you can. 

There is some room for case-by-case. There may be some jobs 

where, you know, where this is a determining issue, where it 

doesn’t really look like a burden, but I think most of the three of 

us believe—all three of us believe that in most cases there is a 

clear rule one way or the other, and the Administration’s case-bycase approach seems to be a way of not having to make that hard 

choice. 

Mr. FRANKS. Yes. Well, obviously I couldn’t agree with you more, 

and it frightens me to death that there is a consensus on this point, 

but I am grateful. 

I guess my last thought, Mr. Chairman, is that this is a pretty 

important area that we are dealing with, and it is my judgment 

that the ability to have a private donor intervene in the protocol 

here is the best approach—in other words, allowing individuals to 

give to these things and then get an even more powerful tax advantage than just deduction because this takes these burdens off of 

government and puts them in a situation where private individuals 

can vet these groups much better than government seems to. 

And I think that it kind of builds a firewall here that would 

probably make both sides a lot happier. Now, it depends on how 

the Supreme Court comes down on this case from Arizona, but I 

think that might be some—I don’t know, you know, I don’t know 

if I dare think that the ACLU would be happy with that since they 

are suing us in Federal court right now on it, but I think that we 

have to do something like this because otherwise we are going to 

153

say that, you know, anything that—within the shadow of the 

American flag can’t be religious, and I think that that would undermine everything that the country—at least the ideals that catalyzed it in the first place. 

My last thought, then, Mr. Laycock. Don’t you think that if this 

ad hoc approach happens that there are going to be a lot of litigation and arguments over it because of the lack of clarity, and how 

will the cost of litigation be borne, and would those principles be—

would some forebear on those principles until it was decided in 

court, and wouldn’t this be a pretty serious chill on the basic freedom of association for religious entities that couldn’t find the financial ability to fight the Obama administration to protect their 

rights? 

Mr. LAYCOCK. Well, the litigation would most commonly come in 

the form of an employee suing a religious agency for not hiring 

them or not promoting them and if the employee wins the agency 

has to pay the employee’s attorneys fees. There has been remarkably little of that litigation. 

Folks who don’t get hired tend to go on to the next job and not 

to file lawsuits so that most employment discrimination litigation 

is about promotions and discharges or pay rather than about hiring. So, so far the litigation burden has not been bad. 

Mr. FRANKS. Well, Mr. Chairman, I think that is great but I 

think that the ad hoc rule of the Administration is an open invitation for everybody just to sue because it is Friday. And so with 

that, I will yield back. 

Mr. NADLER. I thank the gentleman. 

I now recognize the gentleman from North Carolina. 

Mr. WATT. Thank you, Mr. Chairman. 

I think Mr. Franks and I have found some common ground 

here—maybe not in the consequences of what this rule will lead to. 

Our concern is that it will lead people to—groups to discriminate 

and take their chances because, as has been indicated, seldom do 

even—do people file lawsuits. 

They, in most cases, don’t even know they have been discriminated against. They don’t find out. It is not articulated as clearly 

as the case the Reverend Lynn described. 

So I am with you on that. I think all three witnesses seem to be 

with you on that. It seems to be delaying a very difficult choice for 

the Administration, and I want to come back to that. 

But first of all, I want to welcome Professor Rogers. Not that I 

don’t welcome the other two gentlemen also, but Professor Rogers 

is from Wake Forest University Divinity School, and at least a part 

of Wake Forest University is in my congressional district—not all 

of it. I am not sure where the divinity school is located so I am not 

sure whether you are in my district or not in my district, but since 

all politics is local, I want to make sure I welcome either my constituent or my near-constituent. 

Ms. ROGERS. Well, thank you. I can solve this because I actually 

live in Falls Church, Virginia, but teach classes that meet in Washington and in North Carolina. 

Mr. WATT. So she is not my constituent. I take back my—— 

[Laughter.] 

154

Ms. ROGERS. I appreciate your welcome nonetheless and will 

bring it back to my——

Mr. WATT [continuing]. Take back my special welcome and welcome all three of you on an equal footing in that case. 

But I do appreciate you extending your wisdom to Wake Forest, 

and I am sure the folks at Wake Forest University appreciate it. 

Let me come back to this issue, because Professor Laycock actually said the Administration seems to be avoiding a difficult decision. It went out of its way, apparently, to take this issue of employment out of the jurisdiction of the commission that was set up. 

Professor Rogers, you are on that commission. Am I missing 

something here? I mean, what is up with the Administration delaying a difficult decision? I mean, either you can discriminate or you 

can’t discriminate, and I don’t know that allowing it to happen on 

a case-by-case basis or evaluating it on a case-by-case basis—I am 

with Mr. Franks on that. 

What was the rationale for taking that part of this from the commission’s portfolio? 

Ms. ROGERS. Well, there wasn’t a lot of discussion about it, but—

from the Administration to us—but they were aware, of course, of, 

you know, a lot of the law in this area and felt that it was important for them to make this——

Mr. WATT. Okay. Well, now, this Administration has been in 

power now for 2 years. Is there any indication of when they will 

make this decision? You know, I am——

Ms. ROGERS. I have no information on that. 

Mr. WATT. Okay. 

Ms. ROGERS. No more than you do. I will say that people on the 

council—there were some of us who really wanted to address this 

issue within the context of the council; there were other council 

members who didn’t want to, and some in between. So there were 

different feelings about that, but the Administration decided it 

would handle it through this separate process, and I don’t have 

more——

Mr. WATT. What is the separate process? 

Ms. ROGERS. I have no information. 

Mr. WATT. Does anybody on this panel know what the separate 

process is? 

Reverend Lynn? 

Rev. LYNN. We, along with 57 other groups, have written to the 

attorney general that followed up on this question of when this policy will be discussed, when this Office of Legal Opinion memorandum will be reviewed, and I hope repealed, and we have had 

no luck whatsoever in moving them forward toward an answer, 

much less a change in the policy. And it is deeply disappointing. 

Mr. WATT. Okay. Well——

Ms. ROGERS. Representative Watt, I was just going to say that, 

if I may, that issue is very important in my mind, and obviously 

in yours as well. I do believe, though, that the Executive order and 

the recommendations that the council did make on a range of other 

issues are very important——

Mr. WATT. Oh, yes. I am not diminishing the value of the commission’s work. I am just——

155

Ms. ROGERS. I didn’t think you were, but I just wanted to raise 

those again because that was quite a bit of work and kept us very 

busy and was something that we feel very strongly about, these 

other issues. Now, the council itself—the membership of the council—would divide on the employment issue——

Mr. WATT. Now, am I clear, Professor Laycock, that you are in 

a different position on how that issue ought to be resolved from the 

other two members of this panel? 

Mr. LAYCOCK. Yes, sir. 

Mr. WATT. You believe that, using government money, a religious 

institution should be able to discriminate based on religion. 

Mr. LAYCOCK. Yes. Yes, I believe we should not use the government money to force the religious organization to change its——

Mr. WATT. So if the objective of an afterschool program is to get 

kids to perform better and there are two applicants, one of whom 

is clearly superior to—in achieving that objective—a teacher, long 

experienced in achieving that objective—the other one has no experience but happens to be a member of the particular faith, you 

think it is fine for that employer to select the person based on that 

person’s faith? 

Mr. LAYCOCK. Well, in that example it probably isn’t. Recall 

the——

Mr. WATT. Well, you know, either—we got a black or white rule 

here. That is what all of us have been advocating for a rule——

Mr. LAYCOCK. More than one rule. 

Mr. WATT [continuing]. And I agree we need a rule. You can’t 

have it both ways. You can either discriminate or you can’t discriminate. 

Mr. LAYCOCK. You can discriminate, but the——

Mr. WATT. You said you believe that they ought to be able to discriminate. 

Mr. LAYCOCK. The organization also has to win the grant on the 

merits. It has to be the best at delivering the services. And if it is 

hiring unqualified people it is not likely to win many grants. 

So the realistic comparison we are talking about for groups——

Mr. WATT. So you would take a——

Mr. LAYCOCK [continuing]. A few relatively qualified people, one 

of whom also supports the mission and——

Mr. WATT. Let’s change the equation, make sure that it is clear. 

This person has no qualifications but happens to be a Baptist or—

and this is a Baptist program—Baptist-run program. You think 

the—using Federal dollars we ought to support allowing them to 

use Federal dollars for that purpose? 

Mr. LAYCOCK. Yes, but only so long as they are the best at providing the service. And your hypothetical doesn’t exist in the real 

world. They are not going to be the best——

Mr. WATT. That is not a trick question. I am just——

Mr. LAYCOCK. I understand. 

Mr. WATT [continuing]. Just trying to be clear on—either one of 

the other two witnesses agree with that? 

Rev. LYNN. I certainly don’t agree with that——

Mr. WATT. Okay. I think I got that from your testimony. 

What about you, Ms. Rogers? You equivocated a little bit more 

than Reverend Lynn did. What about you, Professor Rogers? 

156

Ms. ROGERS. Yes, I disagree. I believe that when it is involving 

private money—the religious organization’s own money given by 

tithes and gifts of the people that subscribe to that faith—then 

there should be full freedom to make religion—religious calls on 

who is hired. Of course, Baptist churches should be able to hire 

Baptist preachers, as I said at the outset. But the money—direct 

government aid—changes the calculus. 

Mr. WATT. Okay. All right. 

Again, I am not—you know, I am just trying to make sure we 

get the record——

Ms. ROGERS. Right. And I would say that also that positions—

an organization—a religious organization could receive a government grant and I think it should not be able to make religious calls 

on the positions that are subsidized by that grant money, but it is 

positions that are outside, that are privately funded, then they 

should be able to make religious calls on those positions even 

though they are still getting a government grant. I just wanted 

to——

Mr. WATT. I don’t know how you are going to do that, but—I 

mean, money is fungible, and unless you set up two separate organizations I don’t think you can do that. But, you know, again, this 

is not intended to create an overarching debate. I am just trying 

to get this specific principle and where these three witnesses come 

out on this. 

And so my time has long since expired so I will——

Mr. LAYCOCK. If I might add, sir, very briefly, it is also fairly 

common to have employees who are paid 50 percent on the grant 

and 50 percent with other funds. 

Mr. WATT. So you would allow them to discriminate 50 percent 

of the time, or——

Mr. LAYCOCK. I would allow them to hire people who support 

their mission and preserve their religious identity. 

Mr. WATT. You sound as wishy-washy as the Administration on 

this. 

Mr. LAYCOCK. I would allow them to hire. You call that discrimination, I call that—that is what religious organizations do. 

Mr. WATT. Yes. Well, I agree. They do, and I actually sanction 

them doing it with their own money. I just can’t sanction them 

doing it with taxpayer money, so that is the divide. I mean, we are 

not—we are all adults here. 

I yield back. 

Mr. NADLER. Thank you. 

I just observed that with what Professor Laycock just said, then 

you have not the 50-50 situations but the round situation, for instance, where 950 employees were paid 95 percent with Federal 

money and 5 percent with non-federal money, which perhaps presents a different aspect of the case. 

That concludes our——

Mr. CONYERS. I don’t think so. 

Mr. NADLER. I am sorry, I didn’t—the Chairman of the full Committee. 

Mr. CONYERS. Thank you very much. 

I wanted to ask Chairman Bobby Scott if he had an observation 

that he wanted to weigh in on before I began. 

157

Mr. SCOTT. Do we have a definition—is there somewhere where 

there is a definition of what faith-based means? I mean, you kind 

of know it when you see it if it is a church, but if you just have 

a bunch of people who declare themselves to be religious are they 

exempt from civil rights laws under this theory? 

Rev. LYNN. In general, if one declares oneself to be a church, for 

example, you are presumed to be a charitable 501(c)(3) organization, and many churches never strictly apply for that; they are——

Mr. SCOTT. Well, I mean, for the purpose of this law, if a bunch 

of us get together, happen to be the same religion, can we declare 

ourselves a religious organization and therefore exempt because we 

just feel so strongly—we just don’t want to hire people of that religion? 

Rev. LYNN. I think that is perfectly permissible under the rules 

that are still in effect from the last Administration, unchanged by 

this one. 

Mr. SCOTT. Okay. The other question is, can you tell—just for the 

record, what is the law—present law on direct contracting with religious organizations and how it differs in this context with a 

voucher situation? 

Can the Federal Government contract with a church to provide 

services, and has that always been the case or has there been an 

evolving standard? And does the fact that it is a voucher where the 

beneficiary is actually making the choice make a difference in the 

proselytization that is going on in what would essentially be a federally-funded, or at least partially federally-funded, program? 

Ms. ROGERS. Congressman Scott, that was one issue that we 

asked in the Executive order. We asked the Administration to 

opine on because we couldn’t agree, in the Advisory Council, about 

that. Some in the Advisory Council would cite the school voucher 

decision—the Zelman decision from 2002 that upheld the fact that 

there can be some programs that include religious schools in them 

where people can use the voucher at the religious school——

Mr. SCOTT. But the choice is the parents’; it is not the state’s. 

Ms. ROGERS. Right. That that breaks the circuit in the Supreme 

Court’s view between the connection between church and state and 

thus makes it permissible in their view. Some believe that that decision applies and makes it so that you could take a social service 

voucher to a drug rehabilitation program and allow—that program 

could include, you know, part of the way you get off drugs is to accept our ideas about Jesus Christ and what he can mean for your 

life——

Mr. SCOTT. And that is with a voucher. But can you have a direct 

funding of a religious organization directly——

Ms. ROGERS. With that type of content you could not. Now, let 

me say that some of us would disagree with that reading, or at 

least question the indirect application in the social service voucher 

context, that there might be some differences between the school 

voucher context and the social service voucher context. 

When it comes to direct aid what we have said—what the Administration has said in the Executive order and what we said in 

our recommendations was that programs that are funded by direct 

aid cannot have religious content. That is, they cannot include worship, prayer, religious instruction, any of that——

158

Mr. SCOTT. Or anything that would provoke someone from wanting an alternative service? 

Ms. ROGERS. Well, your question earlier, I think, that it is clear 

in the Executive order that that program that is funded by direct 

aid has to be free of explicit religious content, but a beneficiary 

might feel that if they don’t want to enter a church for some religious reason, or perhaps for a non—you know, they just object to 

having to go to a church, or to go into a room, or go into a building 

that has religious symbols and the like, so we wanted to make sure 

that we provided that notice of that right for that kind of person, 

even if there isn’t religious content in the direct—the program that 

is funded by direct aid, that they would have a secular alternative 

if they want one. 

Mr. CONYERS. Thank you. I am so sorry that my colleague from 

Arizona isn’t with us, Trent Franks, but he will, of course, hear 

about this. But his claim that for 50 years the courts have said religious organizations can discriminate in employment based on religious stands a little bit closer scrutiny. 

As a matter of fact, the only way that could possibly apply is to 

privately-funded religious activities. But that does not apply when 

you are talking about taxpayer-funded activity. 

Do you agree, Reverend Lynn? 

Rev. LYNN. I certainly do. I have no idea what cases you could 

cite over a 50-year period that reached the conclusion that Congressman Franks has reached. And in fact, there is very little hard, 

black-letter law on this matter, very few cases. There is certainly 

not 50 years in the direction that Mr. Franks has discussed. It simply is not there. 

Mr. CONYERS. And I wanted to welcome you. I noticed my colleague, Mr. Watt, welcomed Professor Rogers. I would like to welcome you, only the law school you went to isn’t anywhere remotely 

near my congressional district, but I do it anyway. 

Rev. LYNN. Well, I appreciate that. I have spoken at law schools 

in your district. 

Mr. CONYERS. That is pretty close. 

Do you agree with this discussion, Ms. Rogers? 

Ms. ROGERS. Yes. I don’t know what his citation to a 50-year 

precedent is—I am sorry he is not here to answer that question. 

I don’t know what he was referring to. 

I think we do have this long tradition that many of you have referenced starting, I think, with FDR in the 1940’s about equal opportunities in government-funded—in federally-funded employment, and that is a precedent that has been longstanding that I am 

quite familiar with. So I don’t understand the reference that he 

made. 

Mr. CONYERS. And, Professor Laycock, may I be bold enough to 

solicit your agreement in this discussion? 

Mr. LAYCOCK. Sure. I assume he must have been referring to the 

702 exemption in Title 7, but as all three witnesses have said, you 

know, the whole point of dispute is whether that applies when the 

position is government funded in whole or in part, and that certainly is not settled. There are very few cases, they go both ways. 

We will just figure the Executive order, which has now been 

amended—even when the Executive order said no discrimination 

159

on the basis of religion there would have been a question about the 

priority of the statute and of the Executive order, and which was 

more specific as applied to this issue. So I think it is unsettled. But 

he must have been thinking about the exemption in Title 7. 

Mr. CONYERS. Let’s give him the benefit of the doubt. I will see 

him later on today, or not later than Monday, anyway, and we will 

continue this discussion. 

Now I come to one of your positions, Professor Laycock, that I 

would like to put under the microscope for a little more scrutiny. 

And again, I will start with Reverend Attorney Lynn and ask, 

isn’t there some restriction that privately-funded religious activities 

be separated from government-funded secular services? Is there 

some policy that makes that a pretty standard practice or, as Professor Laycock asserts, it doesn’t matter whether it is government 

funded or not? 

Rev. LYNN. I think it makes all the difference in the world. And 

in fact, in the Civil Rights Act, as amended in 1972, if you look at 

the record in this body and in the Senate there is discussion about 

how organizations ought to be able to hire and they consistently 

refer to private dollars. 

Senator Ervin, who was cited in Professor Rogers’ testimony, said 

that. He said that all the time, including on the floor. No one seriously was proposing in 1972 that with Federal dollars comes an exemption from the otherwise applicable civil rights principles of the 

country. It simply is not there. 

Mr. CONYERS. Professor Rogers, can you weigh in on this before——

Ms. ROGERS. Yes. 

Mr. CONYERS.—I turn to——

Ms. ROGERS. There is an article that I wrote, and in preparation 

for writing it I looked back at the 1972 history and found that the 

prime cosponsors—and this includes Sam Ervin—when he was 

making the case for the broadening of the 702 exemption he would 

cite institutions which he emphasized were supported solely by private money to make the case for that broadening of the exemption 

that happened in 1972, and also Senator Allen made similar types 

of statements citing that as part of his case for broadening the exemption. 

So if you are interested in that, there is more about that in the 

article that I wrote a few years ago. 

Mr. CONYERS. Mr. Chairman, can I have enough time to have 

Professor Laycock respond? 

Mr. NADLER. Without objection. 

Mr. CONYERS. Professor Laycock, you have been outvoted but 

that doesn’t mean anything around here. What say you? 

Mr. LAYCOCK. If I understood your question you initially asked 

about the requirement that the—any religious part of a program 

that is privately funded be separated in time and space from any 

secular part, and that is required by the Executive order; it is required by regulations that were in place before yesterday; and it 

seems to be settled about these programs. I suggest in my written 

testimony it may not be constitutionally required, but it is certainly 

required by regulation. 

160

You know, the current state of the law is—on the hiring issue, 

I think, is simply up in the air. Whatever people said in the legislative history, you have got a clear exemption of the statutory text 

of Title 7. The Bush people amended the 60-year Executive order—

the new Executive order from the Obama people doesn’t address it. 

The cases go both ways. So the hiring issue I don’t think there is 

any clear law in place. 

Mr. CONYERS. Well, we have made far more progress than I had 

expected. I am happy to hear you agree that funding—private 

money and government money should be generally be separated in 

time and location. 

Ms. ROGERS. Yes, and one of the interesting things, Chairman 

Conyers, is that people who disagree about the employment issue 

on the council were able to come together, and all of us agreed that 

as to religious activities that were privately funded those should be 

cleanly and carefully separated from a program funded by direct 

government aid. So even those who have differences over the employment issue on the council were able to come together on that 

point. 

And that is a very important point, because as we were discussing earlier, some earlier statutes did not make this as clear as 

it should be. So I am very pleased that the council recommendation 

that does, I hope, drive the point home was made a part of the Executive order and that there is a very high degree of consensus on 

those issues at the present time. 

Mr. CONYERS. Well, that is encouraging. 

Do you feel any better about that, Professor Laycock? 

Mr. LAYCOCK. I think that is a done deal. If the executive and 

Congress have come to agreement on that——

Mr. CONYERS. And you. 

Mr. LAYCOCK. I am not sure we needed to go that way, but we 

have gone that way. 

Mr. CONYERS. All right. Reluctance doesn’t change—it is like the 

way we vote sometimes here. You hold your nose and vote that 

way. It is reluctant; it is not with enthusiasm. So you remind me 

of the way some of our colleagues, including myself, have to vote 

sometimes. 

Ms. ROGERS. Chairman Conyers, another point I would make 

about that. As a religious person I am pleased that that requirement is there because I don’t want government meddling in religion. I don’t want it to tell a religious organization what they can 

and can’t say about religion, about matters of faith. 

So if the religious activities are privately funded and cleanly separated from the government program, then the religious organization is in charge of that, and as long as all the other things are 

observed, then that keeps the government out of meddling in the 

religious sphere. And I definitely, as a religious person myself, do 

not want the government meddling in the religious sphere. 

Mr. CONYERS. Thank you, Chairman Nadler. 

Mr. NADLER. Thank you. 

The gentleman from Georgia? 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Do the panelists agree or disagree that a person—a citizen in the 

United States—has a right to be free from religion? 

161

Ms. ROGERS. They have——

Mr. JOHNSON. Is there a right to be free from religion? 

Mr. LAYCOCK. Absolutely. 

Ms. ROGERS. I would put it differently. I would put it they have 

a right to be free from government establishments of religion, and 

so they should be free not to have the government pressure them 

in any way on religious matters, but they are not free from just encountering religion in the public square, where religion plays such 

a robust role. And I think that is appropriate. 

We don’t want the government playing that role; we want it to 

ensure that it does not pressure people along religious lines. That 

is an inappropriate role for government. 

Rev. LYNN. I would just take one step further and suggest, Congressman Johnson, that one thing that people who do not choose 

to be religious also have a right to expect is that their tax dollars 

will not be subsidizing the religion of other people—any of them or 

all of them. I think that is a core principle as well. 

Mr. NADLER. Excuse me. We are going to have to—there is an 

immediate vote in the Democratic caucus, so we are going to have 

to recess the hearing, not for too long I hope. 

This hearing——

Mr. LAYCOCK. Mr. Chairman, I apologize but I have a flight and 

I am going to have to leave at this recess. 

Mr. JOHNSON [continuing]. To explain why the government 

shouldn’t put up crosses——

Mr. NADLER. Then let me thank you for your attendance 

here——

Mr. JOHNSON. Well, if I might, Mr. Chairman, we were just getting ready to get into some good——

Mr. NADLER. Well——

Mr. JOHNSON. But only thing I want to say is I know that the 

witnesses have been here this morning, and I appreciate you being 

here. I look forward to hosting you again to answer some of the 

questions that I have. But I will yield and let the hearing be 

brought——

Mr. NADLER. I appreciate the gentleman’s actions. Let me say 

that——

Mr. LAYCOCK. Sir, I would be happy to answer in writing if you 

had a question you wanted to ask and didn’t get a chance. 

Mr. JOHNSON. Thank you. 

Mr. NADLER. Thank you. 

We will conclude the, but before we conclude I just wanted to 

claim a point of personal privilege. This may be the Subcommittee’s 

last meeting of this Congress. It has been an honor to have been 

able to serve as the Chair. Our jurisdiction gives us the responsibility of protecting the fundamental rights of this country. 

I want to thank the Members of this Subcommittee, especially 

our distinguished Ranking Member, the gentleman from Wisconsin, 

for their hard work and for the dedication they have always 

brought to this task. I want to thank the Committee staff, the Subcommittee staff. Most people never know just how hard they work 

behind the scenes, how dedicated they are, how talented each of 

them is. 

162

I wanted to thank our counsels, Heather Sawyer, Keenan Keller, 

Kanya Bennett on the Democratic side; Paul Taylor on the Republic side; Matthew Morgan, our clerk, without whom the Subcommittee could not function; and our chief of staff, David 

Lachmann. Many more people have also contributed to our work 

over the years—too many to mention, but we all—I and my colleagues genuinely appreciate their service. 

And the usual boilerplate language: All Members will have 5 legislative days to submit to the Chair additional question. We ask 

that—witnesses to respond as promptly as they can. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. Again, 

I thank everyone. I thank our witnesses; I thank the staff; I thank 

the Members. 

With that, this hearing is adjourned. 

[Whereupon, at 12:54 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE ROBERT C. ‘‘BOBBY’’ SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA, AND MEMBER, SUBCOMMITTEE

ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES


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PREPARED STATEMENT OF THE HONORABLE HENRY C. ‘‘HANK’’ JOHNSON, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA, AND MEMBER, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES


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ADDENDUM TO THE PREPARED STATEMENT OF THE REVEREND BARRY W. LYNN, 

EXECUTIVE DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE


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POST-HEARING QUESTIONS AND RESPONSES OF MELISSA ROGERS, DIRECTOR, CENTER

FOR RELIGION AND PUBLIC AFFAIRS, WAKE FOREST UNIVERSITY DIVINITY SCHOOL


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POST-HEARING QUESTIONS AND RESPONSES OF DOUGLAS LAYCOCK, ARMISTEAD M. 

DOBIE PROFESSOR OF LAW, HORACE W. GOLDSMITH RESEARCH PROFESSOR OF LAW, 

PROFESSOR OF RELIGIOUS STUDIES, UNIVERSITY OF VIRGINIA SCHOOL OF LAW


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POST-HEARING QUESTIONS AND RESPONSES OF REVEREND BARRY W. LYNN, 

EXECUTIVE DIRECTOR, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE


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LETTER FROM C. WELTON GADDY, PRESIDENT, INTERFAITH ALLIANCE


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LETTER FROM JON O’BRIEN, PRESIDENT, CATHOLICS FOR CHOICE


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LETTER FROM THE REVEREND J. BRENT WALKER, EXECUTIVE DIRECTOR, AND K. 

HOLLYN HOLLMAN, GENERAL COUNSEL, THE BAPTIST JOINT COMMITTEE FOR RELIGIOUS LIBERTY


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PREPARED STATEMENT OF ALAN YORKER, MA, LMFT


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Æ


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