U.S. GOVERNMENT PRINTING OFFICE

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CONSTITUTIONAL ROLE OF FAITH-BASED ORGANIZATIONS IN COMPETITIONS FOR FEDERAL SOCIAL SERVICE FUNDS

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

JUNE 7, 2001

Serial No. 17

Printed for the use of the Committee on the Judiciary

(

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(II)

COMMITTEE ON THE JUDICIARY

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman

HENRY J. HYDE, Illinois

GEORGE W. GEKAS, Pennsylvania

HOWARD COBLE, North Carolina

LAMAR SMITH, Texas

ELTON GALLEGLY, California

BOB GOODLATTE, Virginia

STEVE CHABOT, Ohio

BOB BARR, Georgia

WILLIAM L. JENKINS, Tennessee

ASA HUTCHINSON, Arkansas

CHRIS CANNON, Utah

LINDSEY O. GRAHAM, South Carolina

SPENCER BACHUS, Alabama

JOE SCARBOROUGH, Florida

JOHN N. HOSTETTLER, Indiana

MARK GREEN, Wisconsin

RIC KELLER, Florida

DARRELL E. ISSA, California

MELISSA A. HART, Pennsylvania

JEFF FLAKE, Arizona

JOHN CONYERS, JR., Michigan

BARNEY FRANK, Massachusetts

HOWARD L. BERMAN, California

RICK BOUCHER, Virginia

JERROLD NADLER, New York

ROBERT C. SCOTT, Virginia

MELVIN L. WATT, North Carolina

ZOE LOFGREN, California

SHEILA JACKSON LEE, Texas

MAXINE WATERS, California

MARTIN T. MEEHAN, Massachusetts

WILLIAM D. DELAHUNT, Massachusetts

ROBERT WEXLER, Florida

TAMMY BALDWIN, Wisconsin

ANTHONY D. WEINER, New York

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel

JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

WILLIAM L. JENKINS, Tennessee

LINDSEY O. GRAHAM, South Carolina

SPENCER BACHUS, Alabama

JOHN N. HOSTETTLER, Indiana

MELISSA A. HART, Pennsylvania,

Vice Chair

LAMAR SMITH, Texas

ASA HUTCHINSON, Arkansas

JERROLD NADLER, New York

BARNEY FRANK, Massachusetts

JOHN CONYERS, JR., Michigan

ROBERT C. SCOTT, Virginia

MELVIN L. WATT, North Carolina

BRADLEY S. CLANTON, Chief Counsel

JONATHAN A. VOGEL, Counsel

PAUL B. TAYLOR, Counsel

CRYSTAL M. ROBERTS, Counsel

DAVID LACHMANN, Minority Professional Staff Member

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C O N T E N T S

JUNE 7, 2001

OPENING STATEMENT

The Honorable Steve Chabot, a Representative in Congress From the State

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

WITNESSES

Mr. Carl Esbeck, Senior Counsel to the Deputy Attorney General, United

States Department of Justice

Oral Testimony ..................................................................................................... 6

Prepared Statement ............................................................................................. 7

Mr. Douglas Laycock, Associate Dean for Research and Alice McKean Young

Regents Chair in Law, University of Texas Law School

Oral Testimony ..................................................................................................... 18

Prepared Statement ............................................................................................. 20

Mr. David N. Saperstein, Adjunct Professor of Law, Director, Religious Action, Center of Reform Judaism, Georgetown University Law Center

Oral Testimony ..................................................................................................... 26

Prepared Statement ............................................................................................. 27

Mr. Ira C. Lupu, Louis Harkey Mayo Research Professor of Law, George

Washington School of Law

Oral Testimony ..................................................................................................... 32

Prepared Statement ............................................................................................. 33

APPENDIX

Material submitted for the record .......................................................................... 61

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CONSTITUTIONAL ROLE OF FAITH-BASED ORGANIZATIONS IN COMPETITIONS FOR FEDERAL SOCIAL SERVICE FUNDS

Thursday, June 7, 2001

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Subcommitteee met, pursuant to call, at 10 a.m., in Room

2141, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommitteee] presiding.

Mr. CHABOT. The Committee will come to order. This is the

Subcommitteee on the Constitution. I am Steve Chabot, the Chairman of the Subcommittee. Also present is Jerry Nadler from New

York, the Ranking Member of the Subcommittee. We have some

other Members who are down at the White House at a signing

ceremony on the tax cut bill, and some of our Democratic colleagues will be here shortly as well, but we are going to get started. I want to apologize to the witnesses. We are running a little

bit late here, but the President of course had his schedule, and that

was a very important ceremony. I know some of us would have

liked to have been there as well, but we felt we needed to be here.

This is the second in a series of hearings to be held by this Subcommittee on the President’s faith-based initiative. The subject

matter of this particular hearing is the constitutional role of faithbased organizations in competitions for Federal social service

funds.

While the first amendment to the Constitution provides that the

government shall not establish a particular religion, or religion

over nonreligion, the first amendment also provides that the government shall not prohibit the free exercise of religion. Consequently, government must ensure that Members of organizations

seeking to take part in government programs designed to meet

basic and universal human needs are not discriminated against because of their religious views.

The simple principles of charitable choice allow for the public

funding for faith-based organizations with demonstrated ability to

meet the basic needs of their neighbors in trouble, while preserving

the religious character of those organizations by allowing them to

choose their staff, board Members and methods. These principles

also protect the rights of conscience of program beneficiaries by ensuring that alternative providers that are unobjectionable to them

on religious grounds are always available.

2

Charitable choice simply means equal access. Charitable choice

is not a new idea. Existing charitable choice programs passed by

the Congress and signed into law by President Clinton have benefited thousands of persons in need without raising constitutional

concerns in their implementation.

My own State of Ohio has benefited greatly from charitable

choice programs. Taxes are so high in part because the government

funds and administers social service programs that have for most

of American history been run largely by faith-based organizations

at the local level.

Today, a family with two earners pays over 40 percent of their

budget in taxes, more than they spend on their own food, clothing,

and housing combined. When the government takes so much, little

is left for those families to give to the local charities, including

faith-based organizations.

At the same time, the government too often excludes out of hand

faith-based organizations from the receipt of government funds,

even when such organizations can help meet basic human needs

most effectively and in accordance with both the free exercise of religion and the establishment clause.

Charitable choice programs seek to address this problem. Charitable choice principles recognize that it is wrong to assume that religious people can’t be trusted to follow rules against using Federal

funds for proselytizing activase, and on that basis deny them equal

opportunities. Charitable choice principles also recognize that people in need should have the benefit of the best social services available, whether the providers of those services are faith-based or otherwise.

That is the goal: helping the tens of thousands of Americans who

need help in this country.

Some have tried to divert attention from the goal of helping people in need by raising the specter of federally funded discrimination. As the argument goes, religious organizations should not be

allowed to maintain their religious character through hiring decisions if they receive Federal funds for the purpose of helping others. But the right of religious organizations to take religion into account when hiring staff has long been settled. That right is enshrined in the Civil Rights Act of 1964 and that right was upheld

by a unanimous Supreme Court, including Justices Brennan and

Marshall.

As the discussions of charitable choice programs have progressed,

however, some opponents have objected that Federal funds should

not be allowed to find their way to organizations that maintain

their religious character through hiring decisions. That is a truly

radical notion. It is not a recipe for maintaining the status quo but,

rather, a recipe for withdrawing Federal funds from, among other

things, religiously affiliated colleges and universities, religiously affiliated hospitals and religiously affiliated day-care centers, all of

which already receive Federal funds through a variety of Federal

programs and all of which are an essential part of our education,

health-care and child-care systems in this Nation.

One survey found that 51 percent of nonprofit organizations delivering child services were religiously affiliated and, of those, 82

percent received public funds. The survey also found that 70 perVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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cent of nonprofit colleges and universities were religiously affiliated

and, of those, 97 percent receive public funds. The same survey

found that 44 percent of the religiously affiliated nonprofit organizations delivering child services only hire staff who agree with

their religious orientation, or give preference to them, and that 56

percent of the religious affiliated nonprofit colleges and universities

do the same.

So this is the debate we engage in today: Does the Constitution

require rolling back essential services or does it allow for improving

them by letting religious organizations compete on an equal basis

for Federal social service funds which they will use to help the poor

and the helpless, and not to proselytize?

Finally, some critics of charitable choice argue that faith-based

organizations should be required to create separate entities under

section 501(c)(3) of the Internal Revenue Code before they should

be allowed to compete for Federal social service funds. However

501(c)(3) status in this context is a red herring. Nothing in

501(c)(3) means an organization has to, for example, take down all

religious symbols or refrain from staffing on a religious basis just

because it receives a Federal grant. The provisions of 501(c)(3)

allow a church or other religious organization to create an entity

that is organized, governed, and funded separately, but they do not

restrict what such a 501(c)(3) organization may do, other than restrict its involvement in political campaigns and require that no

substantial part of its activity be devoted to lobbying. But we are

not discussing political campaign work or lobbying at this hearing.

We are discussing the constitutional role faith-based organizations

can play to help people.

Following our April 24th hearing, which examined how States

and localities were implementing existing charitable choice programs, today we explore the constitutional role of faith-based organizations in competitions for Federal social service funds. I look forward to hearing from the witnesses today, and I now yield 5 minutes to the gentleman from New York, the Ranking Member of the

Subcommittee, Mr. Nadler.

Mr. NADLER. Thank you, Mr. Chairman. I especially want to

thank the Chair for its consideration in holding the beginning of

this hearing. As you know, a number of the Democratic Members

of the Committee have a standing obligation to caucus business on

Thursday morning from 9 to 10, and I greatly appreciate the

Chair’s indulgence in adhering to that, in dealing with that standing problem.

Today, we will explore an area of the law which is, I think it is

fair to say, in great flux. Certainly the split opinion by the Supreme Court in Mitchell v. Helms demonstrates just how closely

the justices are divided on the very difficult issues which surround

new entanglement between government and religion.

While my sympathies are well known to my colleagues, the difficult issues with which the Court has been grappling—how much

religious activity should be permitted in a publicly funded program,

which program should be allowed to participate, what are the

rights of program participants and employees with respect to a

publicly funded benefit, how much separation, if at all, should

4

there be between the clearly sectarian and the clearly secular functions of an agency—are not trivial.

We would do a disservice to the Nation if we simply wished these

difficulties away and pretended they did not exist.

I think Professor Laycock is correct in his observation that the

framers were not necessarily thinking of government-funded social

services on the scale we have today. The 18th century was a very

different world from that of today and the framers could not have

foreseen the sort of issues we are considering today. I think it is

fair to say that on matters having to do with religion, the country

was no more unified then than now, so the original intent again

is at best problematic.

Having said that, I think certain principles are applicable. Certainly Madison’s view as expressed in his ‘‘Memorial and Remonstrance’’ that it is a violation of individual religious liberty to compel one citizen to support another faith, is still valid, whether it applies to the hiring of teachers of religious instruction, as was the

case in Madison’s time, or in funding other pervasively sectarian

activities, as Mr. Justice Thomas and three other justices hope to

permit.

We are treading on very shaky ground here, and it is perhaps a

good time to reflect on the fact that the free exercise clause exists

not, as some have argued, to protect government from religion, but

to protect religion from government and to protect the conscience

of each individual from the prospect of anyone using the power or

resources of the State to coerce people in any way on the most fundamental matters of belief.

Similarly, where government funding is used, issues of discrimination in employment or against potential program participants

must be adequately address ed. As the Supreme Court pointed out

nearly 20 years ago in the Bob Jones University case, which has

been the subject of an alarming epidemic of amnesia over the last

year, the United States does have a compelling interest in eliminating all vestiges of discrimination on the basis of race and, I

would add, on other grounds as well, that the Congress as well as

the State and local governments have found fit to include.

Public money comes from every American taxpayer regardless of

race, religion, creed, national origin, disability, sexual orientation

or identity and, no American should be denied employment opportunities or the ability to receive government-funded services on

those bases.

Now, of course, under current law without charitable choice, sectarian organizations can and, as the Chairman pointed out with

some figures, do participate in Federal Governments, but no discrimination in the spending of the Federal funds is allowed. And,

contrary to what the Chair said a few minutes ago, sectarian organizations, churches, synagogues, and so forth certainly can discriminate on religious or racial or sexual grounds if they wish, but

not in the spending of government funds. Any church or synagogue

can say we won’t have women as priests or ministers and so forth

and so on. Government will not interfere with such decisions. But

it is a very different thing, and under charitable choice law it is

not permitted, to discriminate on the basis of sex or religion or race

or anything else and who may ladle out the soup in the soup kitchVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
5

en or who may participate in drinking the soup on the basis of

race, religion or anything else. And that is what we are talking

about today.

There is attention in the various proposals we have seen between

religious autonomy guaranteed to the participating programs and

the rights of participants and employees to be free from discrimination or proselytization. What happens when there is a conflict?

How are these rights balanced? The legislation is woefully silent.

Perhaps our witnesses can help us clarify the rules so that there

will be no doubts when the time comes to expend public money.

Finally, on the subject of religious autonomy, I genuinely fear for

religious autonomy in a world without the Lemon test and without

the Sherbert rule. Religious institutions are being coaxed into a

devil’s bargain. There are precious few constitutional restrictions

on the rules government may now apply to religious institutions,

and in the wake of Boerne, Congress’ efforts to provide such protections by statute, an effort in which three of our witnesses were key

players, seem to have come to very little. The day may well come

when having permitted excessive entanglement between religious

institutions and the government, there will be no protection for religion when government flexes its muscles. I do not understand

why some of my conservative colleagues suddenly have so much

trust in big government that they are willing to take such a phenomenal risk.

I hope that at some point we will have the opportunity to hold

at least one legislative hearing to examine the nuts and bolts of the

proposals before the Congress. I think proponents and opponents of

some of these proposals should agree that if we are going to change

the rules, we should look very carefully at the specifics before we

leap.

I look forward with anticipation to the testimony of our very distinguished panel and I thank you, Mr. Chairman.

Mr. CHABOT. Thank you.

Mr. CHABOT. Are there other Members of the panel that would

like to make opening statements? Okay. If not, we will introduce

the witnesses here this morning. We want to thank you all again

for coming and again apologize for starting a little bit late.

Our first witness today is Carl H. Esbeck, Senior Counsel to the

Deputy Attorney General at the Department of Justice. Mr.

Esbeck, who works with the White House Office of Faith-Based and

Community Initiatives, will offer the opinion of the Department on

the constitutional role of faith-based organizations in competing for

Federal social service program funds. Mr. Esbeck is presently on

leave from the University of Missouri School of Law in Columbia,

Missouri where he has taught courses in civil procedure, constitutional law, Federal civil rights litigation, and the first amendment

and church State relations. Mr. Esbeck was formerly Director of

the Center for Law and Religious Freedom, an advocacy organization and public interest law firm located in Washington, D.C. Mr.

Esbeck has published widely on first amendment religious issues

and he has been active in the development of charitable choice

principles, and we welcome you here this morning.

Our second witness will be H. Douglas Laycock, who holds the

Alice McKean Young Regent’s Chair in Law and is Associate Dean

6

for Research at the University of Texas School of Law at Austin.

Professor Laycock is a leading scholar on the law of religious liberty. He has argued many cases on religious liberty, including

those before the United States Supreme Court. Professor Laycock

is also a Member of the American Law Institute and an elected Fellow of the American Academy of Arts and Sciences. We welcome

you also this morning.

Our third witness is Rabbi David N. Saperstein. Rabbi

Saperstein is an Adjunct Professor of Law and Director and Counsel of the Religious Action Center of Reform Judaism at the

Georgetown University Law Center. We welcome you here as well,

Professor and Rabbi.

And our fourth and final witness is Ira C. Lupu, professor of law

at the George Washington University School of Law. Professor

Lupu’s writings are primarily in the field of constitutional law with

an emphasis on the religion clauses of the first amendment. Professor Lupu has also served as Professor-in-Residence on the appellate staff of the civil division of the U.S. Department of Justice,

where he represented the government in a variety of cases in the

courts of appeal.

We want to thank you all again for appearing this morning. And

I would like to ask each of you to please try to summarize your testimony in 5 minutes or less, and, without objection, your written

statement will be made part of the permanent hearing record. And

we actually, as you probably all know, have a lighting system, and

you have 5 minutes. When the yellow light comes on you have got

1 minute to kind of wrap it up, and when the red light comes up

we would appreciate that you wrap up at that point. We will give

you a little flexibility, but if you can keep within that, we would

certainly appreciate it. And our first witness would be Mr. Esbeck.

STATEMENT OF CARL H. ESBECK, SENIOR COUNSEL TO THE

DEPUTY ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE

Mr. ESBECK. Thank you, Chairman and Members of the House.

I do appreciate Mr. Nadler’s opening remarks which I think sets

that right tone that there is an exploration here where we do, I

think, have several points of common ground and I want to touch

on each one of those, at least as I see it.

First, it is easy to forget as we get into the constitutional issues

that this is about people and, of course, people who are poor or

have special needs. These faith-based groups are specially positioned to reach hard to reach people. I think that is because they

have high access and high credibility. And by high access, I mean

they are right there in the neighborhood. They are working with

people who are their neighbors in that community. These are people that they cross paths with at their local grocery store. And by

high credibility, I mean these are the leaders of that community in

which the people in need are living and these leaders are highly

trusted. They have experience with them. They are well known.

Charitable choice provides an option to take into account these

specially positioned faith-based organizations. Charitable choice

doesn’t claim to be the only way, or it is just another way.

7

Second, everyone here wants faith-based organizations to retain

their religious character. No one wants to give them funding beyond their means and then raise hopes and have them dashed. No

one wants to silence what they call their prophetic voice, which is

their way of saying they speak out and criticize government and

culture, and no one wants them to become dependent on government funding and lose their religious moorings. And that is why

charitable choice spends a good deal of time surrounding these organizations with their protection for autonomy. If they can retain

their freedom, then they will be free to continue doing their good

work.

A third area of common ground, no one wants to use government

money to force religion upon somebody else, least of all beneficiaries. The statute is drafted to take care of that.

Fourth, there is continuing interest, maybe growing interest, in

exploring indirect forms of aid. And this is sort of like how the G.I.

Bill works. There is interest in it because there are less constitutional restrictions as to how the faith-based organizations ultimately use those resources.

And fifth and last, no one wants to do harm to that venerable

American tradition, the separation of church and State. But the

question here is not choosing between separation of church and

State and something else; instead, the debate is over what do we

mean by separation. Charitable choice, as you know, says separation doesn’t entail discrimination against those faith-based groups

that have a high religious character; so it shifts the question.

No longer is it an exploration of those—their character, trying to

ascertain are you somehow too religious, whatever that line means.

Instead, the question is what can you do, can you do it, are you

willing to do it in accordance with the statutory and constitutional

parameters?So what are those—well, I am sure we will explore

them in more depth in a bit.

But first, there can be no government aid diverted to sectarian

activity; and second, no one receiving welfare benefits can be compelled to participate in sectarian activities against their will. Charitable choice funding is not for every faith-based organization. If

there is a total integration of sectarian activities and delivery of social services, then surely they cannot participate in direct funding.

But for those faith-based organizations that are able and willing to

follow those rules, then charitable choice provides a valuable option, another option for raising people out of poverty.

Mr. CHABOT. Thank you very much Mr. Esbeck.

[The prepared statement of Mr. Esbeck follows:]

PREPARED STATEMENT OF CARL H. ESBECK

INTRODUCTION

By letter of May 22, 2001, the House Subcommittee on the Constitution, Committee on the Judiciary, invited the views of the U.S. Department of Justice concerning statutory and constitutional issues raised by § 1994A (charitable choice) of

H.R. 7, The Community Solutions Act of 2001. Thank you for the invitation. This

document is the Department’s response to the Subcommittee’s letter.

Charitable choice is already part of three federal social service programs. The provision first appeared in the Personal Responsibility and Work Opportunity RecVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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1 42 U.S.C. § 604a (Supp. 1996). Charitable choice appeared as § 104 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104–193, 110 Stat. 2105,

2161 (1996). Section 604a applies to two federal revenue streams: Temporary Assistance to

Needy Families and Welfare to Work monies. Welfare to Work funds were made subject to

PRWORA in the 1997 Balanced Budget Act. 2 42 U.S.C. § 9920 (Supp. 1998). Charitable choice appeared as § 679 of the Community Services Block Grant Act, which was Title II of the Coats’ Human Services Reauthorization Act of

1998, Pub. L. No. 105–285, 112 Stat. 2702, 2749 (Oct. 27, 1998). 3 42 U.S.C. § 300x–65 (Supp. 2000). SAMHSA concerns expenditures for substance abuse treatment and prevention under Titles V and XIX of the Public Health Services Act. The charitable

choice provision pertaining to SAMHSA, signed by President Clinton on October 17, 2000, appeared as Title XXXIII, § 3305 of the Children’s Health Act of 2000, Pub. L. No. 106–310, 114

Stat. 1212 (2000).

SAMHSA substance abuse treatment and prevention expenditures were again made subject

to a charitable choice provision in the Community Renewal Tax Relief Act of 2000, signed by

President Clinton on December 21, 2000. See 42 U.S.C. § 290kk (Supp. 2000). This Act was incorporated by reference in the Consolidated Appropriation Act of 2001, Pub. L. No. 106–554. 4 42 U.S.C. § 604a(d)(1). The parallel subsection in H.R. 7 is § 1994A(d)(1). 5 42 U.S.C. § 604a(d)(2). The parallel subsection in H.R. 7 is § 1994A(d)(2). 6 42 U.S.C. § 604a(i). The parallel subsection in H.R. 7 is § 1994A(l). 7 42 U.S.C. § 604a(b) and (c). The parallel subsection in H.R. 7 is § 1994A(c)(1).

onciliation Act of 1996 (PRWORA),1 two years later it was incorporated into the

Community Services Block Grant Act of 1998,2 and last year it was made part of

the reauthorization of funding for the Substance Abuse and Mental Health Services

Administration (SAMHSA).3 Each of these programs has the overarching goal of

helping those in poverty or treating those suffering from chemical dependency, and

the programs seek to achieve their purpose by providing resources in the most effective and efficient means available. The object of charitable choice, then, is not to

support or sponsor religion or the participating religious providers. Rather, the goal

is secular, namely, to secure assistance for the poor and individuals with needs, and

to do so by leveling the playing field for providers of these services who are faithbased.

Charitable choice is often portrayed as a source of new federal financial assistance

made available to—indeed earmarked for—religious charities. It is not. Rather,

charitable choice is a set of grant rules altering the terms by which federal funds

are disbursed under existing programs of aid. As such, charitable choice interweaves

three fundamental principles, and each principle receives prominence in the legislation.

First, charitable choice imposes on both government and participating FBOs the

duty to not abridge certain enumerated rights of the ultimate beneficiaries of these

welfare programs. The statute rightly protects these individuals from religious discrimination by FBOs, as well as from compulsion to engage in sectarian practices

against their will.

Second, the statute imposes on government the duty to not intrude into the institutional autonomy of faith-based providers. Charitable choice extends a guarantee

to each participating faith-based organization [FBO] that, notwithstanding the receipt of federal grant monies, the organization ‘‘shall retain its independence from

Federal, State, and local governments, including such organization’s control over the

definition, development, practice, and expression of its religious beliefs.’’ 4 In addition to this broadly worded safeguard, there are more focused prohibitions on specific types of governmental interference such as demands to strip religious symbols

from the walls of FBOs and directives to remake the governing boards of these providers.5 A private right of action gives ready means of enforcement to these protections of institutional autonomy.6

Third, the statute reinforces the government’s duty to not discriminate with respect to religion when determining the eligibility of private-sector providers to deliver social services.7 In the past, an organization’s ‘‘religiosity,’’ obviously a matter

of degree not reducible to bright- lines, was said to disqualify providers found to be

‘‘pervasively sectarian.’’ That inquiry was always fraught with difficulties. Now,

rather than probing into whether a service provider is thought to be ‘‘too religious’’

as opposed to ‘‘secular enough,’’ charitable choice focuses on the nature of the desired services and the means by which they are to be provided. Accordingly, the relevant question is no longer ‘‘Who are you?’’ but ‘‘What can you do?’’ So long as a

provider is prepared to operate in line with all statutory and constitutional parameters, then an organization’s degree of ‘‘religiosity’’ is no longer relevant.

Because they are a useful way of framing the most pertinent statutory and constitutional questions, we expand on these three principles below. Moreover, as will

be discussed, the Department of Justice recommends certain amendments to

§ 1994A of H.R. 7.

9

8 Charitable choice contemplates both direct and indirect forms of aid. 42 U.S.C. § 604a(a)(1).

This is most apparent in H.R. 7 by comparing the subparts of § 1994A(g). If the means of funding is indirect, as with, for example, federal child-care certificates, then choice is intrinsic to

the beneficiary’s selection of a child care center at which to ‘‘spend’’ his or her certificate. 9 It may be that on some occasions no FBOs successfully compete for a grant or cooperative

agreement. This is to be expected. Charitable choice is not a guarantee that resources will flow

to FBOs. Rather, charitable choice guarantees only that FBOs will not be discriminated against

with respect to religion. 10 42 U.S.C. § 604a(e)(1). The parallel subsection in H.R. 7 is § 1994A(f)(1). The alternative

may be another provider not objectionable to the beneficiary, or the government may find it

more cost efficient to purchase the needed services on the open market. 11 42 U.S.C. § 604a(g) (FBOs may not discriminate against beneficiaries ‘‘on the basis of religion [or] a religious belief’’). The parallel subsection in H.R. 7 is § 1994A(g)(1). 12 42 U.S.C. § 604a(g) (FBOs may not discriminate or otherwise turn away a beneficiary from

the organization’s program because the beneficiary ‘‘refus[es] to actively participate in a religious practice’’). Thus, a beneficiary cannot be forced into participating in sectarian activity. For

reasons not apparent, § 1994A(g)(1) of H.R. 7 omits this right of beneficiaries to avoid unwanted

sectarian practices. As will be noted below, the Department of Justice recommends an amendment to correct this omission.

By virtue of § 604a(j), any such sectarian practices must be privately funded in their entirety

and, hence, conducted separate from the government-funded program. See Part III, below, discussing the need to separate sectarian practices from the government-funded program. 13See DeStefano v. Emergency Housing Group, Inc., 2001 WL 399241* 10–12 (2d Cir. Apr.

20, 2001) (dictum expressing belief that it would be violative of Establishment Clause should

beneficiaries of state-funded alcohol treatment program be compelled to attend Alcoholics Anonymous sessions, such sessions being deemed religious indoctrination). 14The ‘‘actual notice’’ requirement first appeared in the SAMHSA reauthorization. See 42

U.S.C. § 300x–65(e)(2). The parallel subsection in H.R. 7 is § 1994A(f)(2). Of course, nothing in

prior versions of charitable choice prevents the government/grantor from ensuring actual notice

of rights to beneficiaries. Moreover, while it may be prudent for the grantor to provide notice

of rights whether required by the underlying legislation or not, the absence of a requirement

in older versions of the law hardly rises to the level of a constitutional concern. 15 (i) LIMITATIONS ON USE OF FUNDS FOR CERTAIN PURPOSES; VOLUNTARINESS.—

No funds provided through a grant or COOPERATIVE AGREEMENT contract to a religious organization to provide assistance under any program described in subsection (c)(4) shall be expended

for sectarian worship, instruction, WORSHIP, or proselytization. IF THE RELIGIOUS ORGANIZATION

OFFERS SUCH AN ACTIVITY, IT SHALL BE VOLUNTARY FOR THE INDIVIDUALS RECEIVING SERVICES

AND OFFERED SEPARATE FROM THE PROGRAM FUNDED UNDER THIS SUBPART. A certificate shall

be SEPARATELY signed by RELIGIOUS such organizations, and filed with the government agency

that disbursed the funds, CERTIFYING that gives assurance the organization IS AWARE OF AND

will comply with this subsection. FAILURE TO COMPLY WITH THE TERMS OF THE CERTIFICATION

MAY, IN ADDITION TO OTHER SANCTIONS AS PROVIDED BY LAW, RESULT IN THE WITHHOLDING OF

THE FUNDS AND THE SUSPENSION OR TERMINATION OF THE AGREEMENT. [NOTE: Italics represent

Strike-through text & CAPS represent Highlighted text]

I. THE RIGHTS OF BENEFICIARIES

In programs subject to charitable choice, when funding goes directly to a social

service provider the ultimate beneficiaries are empowered with a choice.8 Beneficiaries who want to receive services from an FBO may do so, assuming, of course,

that at least one FBO has received funding.9 On the other hand, if a beneficiary

has a religious objection to receiving services at an FBO, then the government is

required to provide an equivalent alternative.10 This is the ‘‘choice’’ in charitable

choice. Moreover, some beneficiaries, for any number of reasons, will inevitably

think their needs better met by an FBO. This possibility of choosing to receive their

services at an FBO is as important a matter as is the right not to be assigned to

a religious provider. There is much concern voiced by civil libertarians about the latter choice, whereas the former is often overlooked. Supporters of charitable choice

regard both of these choices—to avoid an FBO or to seek one out—as important.

If a beneficiary selects an FBO, the provider cannot discriminate against the beneficiary on account of religion or a religious belief.11 Moreover, the text’s explicit

protection of ‘‘a refusal to actively participate in a religious practice’’ insures a beneficiary’s right to avoid any unwanted sectarian practices.12 Hence, participation, if

any, is voluntary or noncompulsory. When direct funding is involved, one recent

court decision suggested that this ‘‘opt-out’’ right is required by the first amendment.13 Beneficiaries are required to be informed of their rights.14

The Department of Justice recommends that § 1994A of H.R. 7 be strengthened

by amending subsection (i) along the lines indicated in the note below.15 This proposal has a clearer statement of the voluntariness requirement. The provision on

separating the government-funded program from sectarian practices is discussed in

Part III, below. The suggested Certificate of Compliance has the purpose of impressVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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16 Religious organizations often serve a useful role as moral critics of culture and, in particular, the actions of government. The mention of ‘‘control over . . . expression’’ in 42 U.S.C.

§ 604a(d)(1), prohibits government from using the threat of denial of a grant, or withholding

monies due under an existing grant, as a means of ‘‘chilling’’ the prophetic voice of the FBO. 17 42 U.S.C. § 604a(f). The parallel subsection in H.R. 7 is § 1994A(e)(2). In order that these

employment protections be more clear to all concerned, while still achieving the intended purpose, the Department of Justice recommends that the ‘‘Employment Practices’’ subsection to

§ 1994A be amended as set out below:

(e) EMPLOYMENT PRACTICES.—

(1) IN GENERAL.—In order to aid in the preservation of its religious character AND

AUTONOMY, a religious organization that provides assistance under a program described

in subsection (c)(4) may, notwithstanding any other provision of FEDERAL law PER- TAINING TO RELIGIOUS DISCRIMINATION IN EMPLOYMENT, require that its employees adhere to the religious beliefs and practices of the organization TAKE INTO ACCOUNT THE

RELIGION OF THE MEMBERS OF THE ORGANIZATION WHEN HIRING, PROMOTING, TRANSFERRING, OR DISCHARGING AN EMPLOYEE.

(2) TITLE VII.—The exemption of a religious organization provided under section

702(A), AND THE EXEMPTION OF AN EDUCATIONAL INSTITUTION UNDER SECTION or 703(e)(2) of the Civil Rights Act of 1964 (42 U.S.C. § § 2000e–1(A), 2000e–2(e)(2)), re- garding employment practices shall not be affected by the religious organization’s OR IN- STITUTION’S provision of assistance under, or receipt of funds from, PURSUANT TO a program described in subsection (c)(4). NOTHING IN THIS SECTION ALTERS THE DUTY OF A

RELIGIOUS ORGANIZATION TO OTHERWISE COMPLY WITH THE NONDISCRIMINATION PROVI- SIONS IN TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (42 U.S.C. § 2000E ET SEQ.).[NOTE:

Italics represent Strike-through text & CAPS represent Highlighted text]

This proposed amendment would ensure that FBOs may continue to staff on a religious basis.

However, in this proposal religious considerations may not affect the terms of the compensation

package. Hence, there is no intended ‘‘religious override’’ of minimum wage laws, or matters like

social security or unemployment compensation. Additionally, under this proposal any employment nondiscrimination provisions imbedded in the underlying federal program legislation cannot affect an FBO’s right to staff on a religious basis. Finally, the § § 702(a), 703(e)(2) exceptions

in Title VII, while not broadened in any respect, are expressly preserved. 18 In addition to Title VII of the Civil Rights Act of 1964, see, e.g., Title VI of the Civil Rights

Act of 1964, 42 U.S.C. § 2000d et seq. (1994) (prohibiting discrimination on the bases of race,

color, and national origin); Title IX of the Educational Amendments of 1972, 20 U.S.C. § § 1681–

1688 (1994) (prohibiting discrimination in educational programs and activities on the bases of

sex and visual impairment); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994)

(prohibiting discrimination against otherwise qualified disabled individuals, including individuals with a contagious disease or an infection such as HIV); The Age Discrimination Act of 1975,

29 U.S.C. § 706(8)(c) (1994) (prohibiting discrimination on the basis of age).

ing upon both the government/grantor and the FBO the importance of both voluntariness and the need to separate sectarian practices.

II. THE AUTONOMY OF FAITH-BASED PROVIDERS

Care must be taken that government funding not cause the religious autonomy

of FBOs to be undermined. Likewise, care must be taken that the availability of

government funding not cause FBOs to fall under the sway of government or silence

their prophetic voice. Accordingly, charitable choice was drafted to vigorously safeguard the ‘‘religious character’’ of FBOs, explicitly reserving to these organizations

‘‘control over the definition, development, practice, and expression’’ of religious belief.16 Additionally, congressional protection for the institutional autonomy of FBOs

was secured so as to leave them free to succeed at what they do well, namely reaching under-served communities. Finally, protecting institutional autonomy was

thought necessary to draw reluctant FBOs into participating in government programs, something many FBOs are unlikely to do if they face invasive or compromising controls.

One of the most important guarantees of institutional autonomy is an FBO’s ability to select its own staff in a manner that takes into account its faith. Many FBOs

believe that they cannot maintain their religious vision over a sustained time period

without the ability to replenish their staff with individuals who share the tenets and

doctrines of the association. The guarantee is central to each organization’s freedom

to define its own mission according to the dictates of its faith. It was for this reason

that Congress wrote an exemption from religious discrimination by religious employers into Title VII of the Civil Rights Act of 1964. And charitable choice specifically

provides that FBOs retain this limited exemption from federal employment nondiscrimination laws.17 While it is essential that FBOs be permitted to make employment decisions based on religious considerations, FBOs must, along with secular

providers, follow federal civil rights laws prohibiting discrimination on the bases of

race, color, national origin, gender, age, and disability.18

11

19See Blum v. Yaretsky, 457 U.S. 991 (1982) (holding that pervasive regulation and the receipt of government funding at a private nursing home does not, without more, constitute state

action); Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (holding that a private school heavily funded by the state is not thereby state actor); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 164

(1978) (holding that the enactment of a law whereby the state acquiesces in the private acts

of a commercial warehouse does not thereby convert the acts of the warehouse into those of the

state). 20That an act of religious staffing is not attributable to the government and thus not subject

to Establishment Clause norms restraining actions by government has already been ruled on

by the Supreme Court. See Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 337

(1987) (‘‘A law is not unconstitutional simply because it allows churches to advance religion,

which is their very purpose . . . [I]t must be fair to say that the government itself has advanced

religion through its own activities and influence.’’); id. at 337 n.15 (‘‘Undoubtedly, [the employ- ee’s] freedom of choice in religious matters was impinged upon, but it was the Church . . . and

not the Government, who put him to the choice of changing his religious practices or losing his

job.’’). 21 483 U.S. at 342–44 (Brennan, J., concurring). 22We acknowledge that many FBOs do not staff on a religious basis, nor do they desire to

do so. But many others do, and desire to continue doing so. Further, many FBOs that staff on

a religious basis do so with respect to some jobs but not others. Finally, many FBOs do not staff

on the basis of religion in any affirmative sense, but they do require that employees not be in

open defiance of the organization’s creed. The employment practices of FBOs, as well as their

religious motives, are varied and complex, yet another reason for government to eschew attempts to regulate the subject matter.

Opponents of charitable choice have charged that it permits a form of ‘‘government-funded job discrimination.’’ We do not believe this is the case for the following

reasons. First, there is a certain illogic to the claim that charitable choice is ‘‘funding job discrimination.’’ The purpose of charitable choice, and the underlying federal

programs, is not the creation or funding of jobs. Rather, the purpose is to fund social

services. The FBO’s employment decisions are wholly private. Because the government is not involved with an FBO’s internal staffing decisions, there is no causal

link between the government’s singular and very public act of funding and an FBO’s

numerous and very private acts related to its staffing. Importantly, these internal

employment decisions are manifestly not ‘‘state or governmental action’’ for purposes of the Fifth and Fourteenth Amendments.19 Hence, because the Constitution

restrains only ‘‘governmental action,’’ these private acts of religious staffing cannot

be said to run afoul of constitutional norms.20

Second, critics of charitable choice are wrong when they claim to have detected

a contradiction. Why, they ask, is it important to staff on a religious basis when

the FBOs cannot engage in religious indoctrination within a government-funded

program? Since there can be no such indoctrination, they go on, what possible difference could it make that employees share the FBO’s faith? There is no contradiction, however, once this line of argumentation is seen as failing to account for the

FBO’s perspective. From the government’s perspective, to feed the hungry or house

the destitute is secular work. But from the perspective of the FBO, to operate a soup

kitchen or open a shelter for the homeless are acts of mercy and thus spiritual service. In his concurring opinion in Corporation of the Presiding Bishop v. Amos, Justice William Brennan, remembered as one of the Court’s foremost civil libertarians,

saw this immediately when he wrote that what government characterizes as social

services, religious organizations view as the fulfillment of religious duty, as service

in grateful response to unmerited favor, as good works that give definition and focus

to the community of faithful, or as a visible witness and example to the larger society.21 All of which is to observe that even when not engaged in ‘‘religious indoctrination’’ such as proselytizing or worship, FBOs view what they are doing as religiously

motivated and thus may desire that such acts of mercy and love be performed by

those of like-minded creed.22

Third, it is not always appreciated that private acts of religious staffing are not

motivated by prejudice or malice. In no way is religious staffing by FBOs comparable to the invidious stereotyping, even outright malice, widely associated with

racial and ethnic discrimination. Rather, the FBO is acting—and understandably

so—in accord with the dictates of its sincerely held religious convictions. Justice

William Brennan, once again, was quick to recognize the importance of such civil

rights exemptions to the autonomy of faith-based organizations:

Determining that certain activities are in furtherance of an organization’s

religious mission, and that only those committed to that mission should

conduct them, is thus a means by which a religious community defines

itself. Solicitude for a church’s ability to do so reflects the idea that furtherVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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23 483 U.S. at 342–43 (Brennan, J., concurring). 24 Cf. op-ed column by Nathan J. Diament, A Slander Against Our Sacred Institutions, Washington Post p. A23 (May 28, 2001) (‘‘Their assumption is that faith-based hiring by institutions

of faith is equal in nature to every other despicable act of discrimination in all other contexts.

This is simply not true.’’). 25The nature and history of this expansion in the Equal Employment Opportunity Act of 1972

is set forth in Amos, 483 U.S. at 332-33. A co-sponsor of the 1972 expansion, Senator Sam Ervin,

explained its purpose in terms of reinforcing the separation of church and state. The aim, said

Senator Ervin, was to ‘‘take the political hands of Caesar off the institutions of God, where they

have no place to be.’’ 118 Cong. Rec. 4503 (1972). 26 42 U.S.C. § 2000e–1(a) (1994). Religious educational institutions are separately exempt

under 42 U.S.C. § 2000e–2(e)(2) (1994). 27The Title VII religious exemption was upheld in Corporation of the Presiding Bishop v.

Amos, 483 U.S. 327 (1987). Amos held that the exemption was not a religious preference violative of the Establishment Clause. Moreover, the Establishment Clause permits Congress to

enact exemptions from regulatory burdens not compelled by the Free Exercise Clause, as well

as regulatory exemptions that accommodate only religious practices and organizations. Id. at

334, 338. 28See Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618, 625 (6th Cir. 2000) (dismissing religious discrimination claim filed by employee against religious organization because

organization was exempt from Title VII and the receipt of substantial government funding did

not bring about a waiver of the exemption); Siegel v. Truett-McConnell College, 13 F. Supp.2d

1335, 1343–45 (N.D. Ga. 1994), aff’d, 73 F.3d 1108 (11th Cir. 1995) (table) (dismissing religious

discrimination claim filed by faculty member against religious college because college was exempt from Title VII and the receipt of substantial government funding did not bring about a

waiver of the exemption or violate the Establishment Clause); Young v. Shawnee Mission Medical Center, 1988 U.S. Dist. LEXIS 12248 (D. Kan. Oct. 21, 1988) (holding that religious hospital

did not lose Title VII exemption merely because it received federal Medicare payments); see Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991) (exemption to Title VII for religious staffing by

a religious organization is not waivable); Arriaga v. Loma Linda University, 10 Cal.App.4th

1556, 13 Cal. Rptr.2d 619 (1992) (religious exemption in state employment nondiscrimination

law was not lost merely because religious college received state funding); Saucier v. Employment

Security Dept., 954 P.2d 285 (Wash. Ct. App. 1998) (Salvation Army’s religious exemption from

state unemployment compensation tax does not violate Establishment Clause merely because

the job of a former employee in question, a drug abuse counselor, was funded by federal and

state grants). 29 42 U.S.C. § 604a(f). The parallel subdivision in H.R. 7 is § 1994A(e)(2). 30 In regard to the constitutional and practical difficulties with sorting out, and then barring

from program participation, those FBOs thought to fit that slippery category of ‘‘pervasively sectarian,’’ the plurality in Mitchell v. Helms, 120 S. Ct. 2530 (2000), said as follows:

ance of the autonomy of religious organizations often furthers individual religious freedom as well.23

Which is to say, not all discrimination is malevolent.24 A religious organization

favoring the employment of those of like-minded faith is comparable to an environmental organization staffing only with employees devoted to preserving the environment, a feminist organization hiring only those devoted to the cause of expanded

opportunities for women, or a teacher’s union hiring only those opposed to school

vouchers. To bar a religious organization from hiring on a religious basis is to assail

the very animating cause for which the organization was formed in the first place.

If these FBOs cannot operate in accord with their own sense of self-understanding

and mission, then many will decline to compete for charitable choice funding. If that

happens, the loss will be borne most acutely by the poor and needy.

Fourth, in a very real sense Congress already made a decision to protect religious

staffing by FBOs back in 1964, and then to expand on its scope in 1972.25 Section

702(a) of Title VII of the Civil Rights Act of 1964 26 exempts religious organizations

from Title VII liability for employment decisions based on religion.27 Opponents

claim that the § 702(a) exemption is waived when an FBO becomes a federally funded provider of social services. The law is to the contrary. Waiver of rights is

disfavored in the law, and, as would be expected, the case law holds that the

§ 702(a) exemption is not forfeited when an FBO becomes a provider of publicly

funded services.28 Indeed, charitable choice expressly states that the § 702(a) exemption is preserved.29 In light of the fact that the statutory language makes clear to

FBOs that they will not be ‘‘impair[ed]’’ in their ‘‘religious character’’ if they participate in charitable choice, it is wholly contradictory to then suggest that FBOs have

impliedly waived this valuable autonomy right.

Charitable choice affirmatively enables and requires government to stop ‘‘picking

and choosing’’ between groups on the basis of religion. No longer can there be wholesale elimination of able and willing providers found by regulators or civil magistrates to be ‘‘too religious,’’ a constitutionally intrusive and analytically problematic determination.30 With charitable choice, religion is irrelevant during the grant

13

[T]he inquiry into the recipient’s religious views required by a focus on whether a school

is pervasively sectarian is not only unnecessary but also offensive. It is well established,

in numerous other contexts, that courts should refrain from trolling through a person’s

or institution’s religious beliefs . . . Although the dissent welcomes such probing . . .

we find it profoundly troubling.

Id. at 2551 (citations omitted).

The problem is more thoroughly addressed at Vol. 42 Wm & Mary L. Rev. 883, 907–14 (2001)

(collecting cases suggesting that to require distinguishing between pervasively and non-pervasively sectarian organizations is inconsistent with the Court’s case law elsewhere holding that

civil authorities should refrain from probing the inner workings of religious organizations). 31See Mitchell v. Helms, 120 S. Ct. 2530, 2558–59 (2000) (O’Connor, J., concurring in the

judgment). 32See Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (providing special education

services to Catholic high school student not prohibited by Establishment Clause); Witters v.

Washington Dept. of Servs. For the Blind, 474 U.S. 481 (1986) (upholding a state vocational rehabilitation grant to disabled student that elected to use the grant to obtain training as a youth

pastor); Mueller v. Allen, 463 U.S. 388 (1983) (upholding a state income tax deduction for parents paying school tuition at religious schools); see also Rosenberger v. Rector and Visitors, 515

U.S. 819, 878–79 (1995) (Souter, J., dissenting) (distinguishing cases upholding indirect funding

to individuals, admitted to be the law of the Court, from direct funding to religious organizations). 33 42 U.S.C. § § 9858–9858q (1994). 34 120 S. Ct. 2530 (2000) (plurality opinion). 35 Id. at 2556 (O’Connor, J., concurring in the judgment). Her opinion was joined by Justice

Breyer. See Marks v. United States, 430 U.S. 188, 193 (1977) (when Supreme Court fails to

issue a majority opinion, the opinion of the members who concurred in the judgment on narrowest grounds is controlling).

awarding process. Nor does the government, in making awards, need to sort out

those groups thought ‘‘genuinely’’ religious from those deemed pseudo- religious.

This means that, contrary to the critics’ fears, charitable choice leads to less, rather

than more, regulation of religion.

Additionally, welfare beneficiaries have greater choice when selecting their service

provider. For those beneficiaries who, out of spiritual interests or otherwise, believe

they will be better served by an FBO, such choices will now be available in greater

number. Expanding the variety of choices available to needy individuals in turn reduces the government’s influence over how those individual choices are made.

III. THE NEUTRALITY PRINCIPLE

When discussing Establishment Clause restraints on a government’s program of

aid, a rule of equal-treatment or nondiscrimination among providers, be they secular

or religious, is termed ‘‘neutrality’’ or the ‘‘neutrality principle.’’ Charitable choice

is consistent with neutrality, but courts need not wholly embrace the neutrality

principle to sustain the constitutionality of charitable choice.

The U.S. Supreme Court distinguishes, as a threshold matter, between direct and

indirect aid.31 For any given program, charitable choice allows, at the government’s

option, for direct or indirect forms of funding, or both. Indirect aid is where the ultimate beneficiary is given a coupon, or other means of free agency, such that he or

she has the power to select from among qualified providers at which the coupon may

be ‘‘redeemed’’ and the services rendered. In a series of cases, and in more recent

commentary contrasting indirect aid with direct-aid cases, the Supreme Court has

consistently upheld the constitutionality of mechanisms providing for indirect means

of aid distributed without regard to religion.32 The Child Care and Development

Block Grant Program of 1990,33 for example, has been providing low income parents

indirect aid for child care via ‘‘certificates’’ redeemable at, inter alia, churches and

other FBOs. The act has never been so much as even challenged in the courts as

unconstitutional.

In the context of direct aid, the Supreme Court decision that has most recently

addressed the neutrality principle is Mitchell v. Helms.34 The four-Justice plurality,

written by Justice Thomas, and joined by the Chief Justice, and Justices Scalia and

Kennedy, embraced, without reservation, the neutrality principle. In the sense of

positive law, however, Justice O’Connor’s opinion concurring in the judgment is controlling in the lower courts and on legislative bodies.35

Before proceeding in greater detail, the controlling principle coming from Mitchell

v. Helms can be briefly stated: A government program of aid that directly assists the

delivery of social services at a faith-based provider, one selected by the government

without regard to religion, is constitutional, but real and meaningful controls must

14

36Mitchell does not speak—except in the most general way—to the scope of the Establishment

Clause when it comes to other issues such as religious exemptions in regulatory or tax laws,

religious symbols on public property, or religious expression by government officials. In that regard, Mitchell continues the splintering of legal doctrine leading to different Establishment

Clause tests for different contexts. 37 Id. at 2558–59. 38 Id. at 2557. Justice O’Connor explained that by ‘‘neutral’’ program of aid she meant ‘‘whether the aid program defines its recipients by reference to religion.’’ Id. at 2560. To be ‘‘neutral’’

in this sense, a grant program must be facially nondiscriminatory with respect to religion, and,

where there is discretion in awarding a grant, nondiscriminatory as applied. 39 Id. at 2556, 2563–66. Meek v. Pittenger, 421 U.S. 349 (1975) (plurality in part), had struck

down loans to religious schools of maps, photos, films, projectors, recorders, and lab equipment,

as well as disallowed services for counseling, remedial and accelerated teaching, and psychological, speech, and hearing therapy. 40 120 S. Ct. at 2556, 2563–66. Wolman v. Walter, 433 U.S. 229 (1977) (plurality in part), had

struck down use of public school personnel to provided guidance, remedial and therapeutic

speech and hearing services away from the religious school campus, disallowed the loan of instructional materials to religious schools, and disallowed transportation for field trips by religious school students. 41See Bowen v. Kendrick, 487 U.S. 589 (1989) (upholding, on its face, religiously neutral funding of teenage sexuality counseling centers); Bradfield v. Roberts, 175 U.S. 291 (1899) (upholding use of federal funds for construction at a religious hospital). In sharp contrast, the Court

has been ‘‘particularly vigilant’’ in monitoring compliance with the Establishment Clause in K12 schools, where the government exerts ‘‘great authority and coercive power’’ over students

through a mandatory attendance requirements. Edwards v. Aguillard, 482 U.S. 578, 583–84

(1987). 42Mitchell, 120 S. Ct. at 2556, 2560. Agostini v. Felton, 521 U.S. 203 (1997), upheld a program

whereby public school teachers go into K-12 schools, including religious schools, to deliver remedial educational services. 43Mitchell, 120 S. Ct. at 2560. Plaintiffs were well counseled not to argue that the program

lacked a secular purpose. The secular-purpose prong of the test is easily satisfied. See, e.g.,

Bowen v. Kendrick, 487 U.S. 589, 602 (1988) (‘‘a court may invalidate a statute only if it is motivated wholly by an impermissible purpose’’).

be built into the program so that the aid is not diverted and spent on religious indoctrination.36

Based on Justice O’Connor’s opinion, when combined with the four Justices comprising the plurality, it can be said that: (1) neutral, indirect aid to a religious organization does not violate the Establishment Clause; 37 and (2) neutral, direct aid to

a religious organization does not, without more, violate the Establishment Clause.38

Having indicated that program neutrality is an important but not sufficient factor

in determining the constitutionality of direct aid, Justice O’Connor went on to say

that: (a) Meek v. Pittenger 39 and Wolman v. Walter 40 should be overruled; (b) the

Court should do away with all presumptions of unconstitutionality; (c) proof of actual diversion of government aid to religious indoctrination would be violative of the

Establishment Clause; and (d) while adequate safeguards to prevent diversion are

called for, an intrusive and pervasive governmental monitoring of FBOs is not required.

The federal program in Mitchell entailed aid to K-12 schools, public and private,

secular and religious, allocated on a per-student basis. The same principles apply,

presumably, to social service and health care programs, albeit, historically the Court

has scrutinized far more closely direct aid to K-12 schools compared to social welfare

and health care programs.41

In cases involving programs of direct aid to K-12 schools, Justice O’Connor started

by announcing that she will follow the analysis first used in Agostini v. Felton.42

She began with the two-prong Lemon test as modified in Agostini: is there a secular

purpose and is the primary effect to advance religion? Plaintiffs did not contend that

the program failed to have a secular purpose, thus she moved on to the second part

of the Lemon/Agostini test.43 Drawing on Agostini, Justice O’Connor noted that the

primary-effect prong is guided by three criteria. The first two inquiries are whether

the government aid is actually diverted to the indoctrination of religion and whether

the program of aid is neutral with respect to religion. The third criterion is whether

15

44 In Mitchell, plaintiffs did not contend that the program created excessive administrative entanglement. 120 S. Ct. at 2560. Prior to Agostini, entanglement analysis was a separate, third

prong to the Lemon test.

The Supreme Court has long since stop using ‘‘political divisiveness’’ inquiry as a separate

aspect of entanglement analysis. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 617 n.14 (1988)

(rejecting political divisiveness alone as a basis for invalidating governmental aid program).

Hence, neither the plurality nor Justice O’Connor gave even passing mention to ‘‘political divisiveness.’’ We follow their lead. 45 Alternatively, the same evidence shifted under the effect prong of Lemon/Agostini can be

examined pursuant to Justice O’Connor’s no-endorsement test. Mitchell, 120 S. Ct. at 2560. The

no-endorsement test asks whether an ‘‘objective observer’’ would feel civic alienation upon examining the program of aid and learning that some of the grants are awarded to FBOs. A finding

of government endorsement of religion is unlikely unless a facially neutral program, when applied, singles out religion for favoritism. In Mitchell, Justice O’Connor did not utilize the alternative no-endorsement test when doing the Lemon/Agostini analysis. We follow her lead. She

did, however, use the no-endorsement test for another purpose. See id. at 2559 (explaining why

she thought the plurality was wrong to abandon the direct-aid/indirect-aid distinction). 46 Religious neutrality, explained Justice O’Connor, ensures that an aid program does not provide a financial incentive for the individuals intended to ultimately benefit from the aid ‘‘to undertake religious indoctrination.’’ Mitchell, 120 S. Ct. at 2561 (quoting Agostini). 47One of the aims of charitable choice is that faith-based and other community organizations

be able to expand their capacity to provided for the social service needs of under-served neighborhoods. In that sense, then, charitable choice is supplemental. For many neutral programs of

aid, application of the supplement/not-supplant factor would, if allowed to be controlling, conflict

with long-settled precedent. For example, the Court has long since allowed state-provided textbooks and bussing for religious schools. See Cochran v. Louisiana State Bd. of Educ., 281 U.S.

370 (1930) (textbooks); Everson v. Board of Educ., 330 U.S. 1 (1947) (bussing). Once the government provided textbooks and bussing, monies in a school’s budget could be shifted to other uses,

including to sectarian uses. Yet such aid is in apparent conflict with the admonition to supplement/not-supplant. See also Committee for Public Education v. Regan, 444 U.S. 646, 661–62

(1980), where the Court upheld aid that ‘‘supplanted’’ expenses otherwise borne by religious

schools for state-required testing. Even the dissent in Mitchell concedes that reconciliation between Regan and an absolute prohibition on aid that supplants rather than supplements ‘‘is not

easily explained.’’ 120 S. Ct. at 2588 n.17 (Souter, J., dissenting). Regan suggests that no ‘‘blanket rule’’ exists. Id. at 2544 n.7 (plurality).

The Supreme Court’s past practice is to trace the government funds to the point of expenditure, rejecting any requirement whereby government funds must not be provided where the public funds thereby‘‘free up’’ private money which then might be diverted to religious indoctrination. See Regan, 444 U.S. at 658 (‘‘The Court has not accepted the recurrent argument that all

aid is forbidden because aid to one aspect of an institution frees it to spend its other resources

on religious ends.’’); New York v. Cathedral Academy, 434 U.S. 125, 134 (1977) (‘‘this Court has

never held that freeing private funds for sectarian uses invalidates otherwise secular aide to

religious institutions’’). 48 120 S. Ct. at 2557, 2562. 49 Id. at 2562. On at least one occasion the Supreme Court upheld direct cash payments to

religious K-12 schools. See Committee for Public Education v. Regan, 444 U.S. 646 (1980). The

payments were in reimbursement for state-required testing. Rejecting a rule that cash was

never permitted, the Regan Court explained:

We decline to embrace a formalistic dichotomy that bears so little relationship either

to common sense or the realities of school finance. None of our cases requires us to invalidate these reimbursements simply because they involve [direct] payments in cash.

Id. at 658. See also Mitchell, 120 S. Ct. at 2546 n.8 (plurality noting that monetary assistance

is not ‘‘per se bad,’’ just a factor calling for more care).

Justice O’Connor explained that monetary aid is of concern because it ‘‘falls precariously close

to the original object of the Establishment Clause prohibition.’’ Mitchell, 120 S. Ct. at 2566. Part

of that history, explicated in Everson v. Board of Educ., 330 U.S. 1 (1947), was the defeat spearContinued

the program creates excessive administrative entanglement,44 now clearly downgraded to just one more factor to weigh under the primary-effect prong.45

After outlining for the reader the Court’s Lemon/Agostini approach, Justice

O’Connor then inquired into whether the aid was actually diverted, in a manner attributable to the government, and whether program eligibility was religion neutral.

Because the federal K-12 educational program under review in Mitchell was facially

neutral, and administered evenhandedly, as to religion,46 she spent most of her

analysis on the remaining factor, namely, diversion of grant assistance to religious

indoctrination. Justice O’Connor noted that the educational aid in question was, by

the terms of the statute, required to supplement rather than to supplant monies received from other sources,47 that the nature of the aid was such that it could not

reach the ‘‘coffers’’ of places for religious inculcation, and that the use of the aid was

statutorily restricted to ‘secular, neutral, and nonideological’’ purposes.48 Concerning

the form of the assistance, she noted that the aid consisted of educational materials

and equipment rather than cash, and that the materials were on loan to the religious schools.49

16

headed in Virginia by James Madison of a proposed tax. As more precisely explained by Justice

Thomas, the legislation defeated in Virginia was a tax ear-marked for the support of clergy.

Rosenberger v. Rector and Visitors, 515 U.S. 819, 852 (1995) (Thomas, J., concurring). Opposition to a tax ear-marked for explicitly religious purposes indeed does go to the heart of the adoption of the Establishment Clause. Charitable choice monies, however, come from general tax revenues, are awarded in a manner that is neutral as to religion, and do not fund sectarian practices. 50 120 S. Ct at 2561–68. 51 Justice O’Connor’s statement sidelining future reliance on presumptions that employees of

highly religious organizations cannot or will not follow legal restraints on the expenditure of

government funds is as follows:

I believe that our definitive rejection of [the] presumption [in Agostini] also stood for— or at least strongly pointed to—the broader proposition that such presumptions of religious indoctrination are normally inappropriate when evaluating neutral school-aid programs under the Establishment Clause.

Id. at 2567.

52See id. at 2561 (noting that Agostini rejected a presumption drawn from Meek and later

Aguilar); id. at 2563–64 (quoting from Meek the ‘‘pervasively sectarian’’ rationale and noting it

created an irrebutable presumption which Justice O’Connor later rejects); id. at 2567 (requiring

proof of actual diversion, thus rendering ‘‘pervasively sectarian’’ test irrelevant); id. at 2568 (rejecting presumption that teachers employed by religious schools cannot follow statutory requirement that aid be use only for secular purposes); and id. at 2570 (rejecting presumption of bad

faith on the part of religious school officials). 53While Justice O’Connor did not join in the plurality’s denunciation of the ‘‘pervasively sectarian’’ doctrine as bigoted, her opinion made plain that the doctrine has lost relevance. Thus,

while not taking issue with the plurality’s condemnation of the doctrine as anti-Catholic, she

in fact explicitly joined in overruling the specific portions of Meek that set forth the operative

core of the ‘‘pervasively sectarian’’ concept. 120 S. Ct. at 2563. 54 Id. at 2568. 55 Id. A lower court recently applied this principle by striking down direct monetary payments,

unrestricted as to use, to reimburse schools, including religious schools, to reimburse them for

the cost of Internet access. See Freedom From Religion Foundation v. Bugher, 2001 WL 476595

(7th Cir. Apr. 27, 2001). Once received, the money went into general revenues and could later

be used for sectarian purposes. On the other hand, the lower trial court decision in the same

case upheld a parallel program whereby the state provided a below-cost Internet link to schools,

including religious schools. Hence, the aid could not be diverted to sectarian use. 55 F. Supp.2d

962 (W.D. Wis. 1999). While on appeal, the plaintiffs’ challenge to this parallel program was

dropped when, in the interim, Mitchell v. Helms was handed down. 56 120 S. Ct. at 2569. 57 Id.

Justice O’Connor proceeded to reject a rule of unconstitutionality where the character of the aid is merely capable of diversion to religious indoctrination, hence overruling Meek and Wolman.50 As the Court did in Agostini, Justice O’Connor rejected

employing presumptions of unconstitutionality and indicated that henceforth she

will require proof that the government aid was actually diverted to indoctrination.51

Because the ‘‘pervasively sectarian’’ test is such a presumption, indeed, an

irrebutable presumption (i.e., any direct aid to a highly religious organization is

deemed to advance sectarian objectives), 52 Justice O’Connor is best understood to

have rendered the ‘‘pervasively sectarian’’ test no longer relevant when assessing

neutral programs of aid.53

Justice O’Connor requires that no government funds be diverted to ‘‘religious indoctrination,’’ thus religious organizations receiving direct funding will have to separate their social service program from their sectarian practices.54 If the federal assistance is utilized for educational functions without attendant sectarian activities,

then there is no problem. If the aid flows into the entirety of an educational program and some ‘‘religious indoctrination [is] taking place therein,’’ then the indoctrination ‘‘would be directly attributable to the government.’’ 55 Hence, if any part

of an FBO’s activities involve ‘‘religious indoctrination,’’ such activities must be set

apart from the government-funded program and, hence, are privately funded.

A welfare-to-work program operated by a church in Philadelphia illustrates how

this can be done successfully. Teachers in the program conduct readiness-to-work

classes in the church basement weekdays pursuant to a government grant. During

a free-time period the pastor of the church holds a voluntary Bible study in her office up on the ground floor. The sectarian instruction is privately funded and separated in both time and location from the welfare to work classes.

In the final part of her opinion, Justice O’Connor explained why safeguards in the

federal educational program at issue in Mitchell reassured her that the program,

as applied, was not violative of the Establishment Clause. A neutral program of aid

need not be failsafe, nor does every program require pervasive monitoring.56 The

statute limited aid to ‘‘secular, neutral, and nonideological’’ assistance and expressly

prohibited use of the aid for ‘‘religious worship or instruction.’’ 57 State educational

17

58 Id. 59 Id. 60 Id. at 2569–70. 61 Id. at 2571–72. 62Id. at 2572 (‘‘[r]egardless of whether these factors are constitutional requirements . . .’’). 63 Monetary payments are just a factor to consider, not controlling. This makes sense given

Justice O’Connor’s concurring opinion in Bowen v. Kendrick, wherein she joined in approving

cash grants to religious organizations, even in the particularly‘‘sensitive’’ area of teenage sexual

behavior, as long as there is no actual ‘‘use of public funds to promote religious doctrines.’’ Bowen v. Kendrick, 487 U.S. 589, 623 (1988) (O’Connor, J., concurring). See also supra note 49. 64The Department of Justice recommends that H.R. 7 be clarified by the following amendment:

(i) LIMITATIONS ON USE OF FUNDS; VOLUNTARINESS FOR CERTAIN PURPOSES.—No funds provided through a grant or COOPERATIVE AGREEMENT contract to

a religious organization to provide assistance under any program described in subsection (c)(4) shall be expended for sectarian worship, instruction, WORSHIP, or proselytization. IF THE RELIGIOUS ORGANIZATION OFFERS SUCH AN ACTIVITY, IT SHALL BE VOL- UNTARY FOR THE INDIVIDUALS RECEIVING SERVICES AND OFFERED SEPARATE FROM THE

PROGRAM FUNDED UNDER THIS SUBPART. A certificate shall be SEPARATELY signed by RE- LIGIOUS such organizations, and filed with the government agency that disbursed the

funds, CERTIFYING that gives assurance the organization IS AWARE OF AND will comply

with this subsection. FAILURE TO COMPLY WITH THE TERMS OF THE CERTIFICATION MAY, IN ADDITION TO OTHER SANCTIONS AS PROVIDED BY LAW, RESULT IN THE WITHHOLDING

OF THE FUNDS AND THE SUSPENSION OR TERMINATION OF THE AGREEMENT.[NOTE: Italics

represent Strike-through text & CAPS represent Highlighted text] 65 Justice O’Connor nowhere defined what she meant by ‘‘religious indoctrination.’’ However,

elsewhere the Supreme Court has found that prayer, devotional Bible reading, veneration of the

Ten Commandments, classes in confessional religion, and the biblical creation story taught as

science are all inherently religious. 42 Wm & Mary, supra note 30, at 915 (collecting cases). 66 In the Substance Abuse and Mental Health Services Administration reauthorization the

segregation of accounts is required. 42 U.S.C. § 300x-65(g)(2). This improves accountability, espeContinued

authorities required religious schools to sign Assurances of Compliance with the

above-quoted spending prohibitions being express terms in the grant agreement.58

The state conducted monitoring visits, albeit infrequently, and did a random review

of government-purchased library books for their sectarian content.59 There was also

monitoring of religious schools by local public school districts, including a review of

project proposals submitted by the religious schools and annual program-review visits to each recipient school.60 The monitoring did catch instances of actual diversion,

albeit not a substantial number, and Justice O’Connor was encouraged that when

problems were detected they were timely corrected.61

Justice O’Connor said that various diversion-prevention factors such as supplement/not-supplant, aid not reaching religious coffers, and the aid being in-kind rather than monetary are not talismanic. She made a point not to elevate them to the

level of constitutional requirements.62 Rather, effectiveness of these diversion-prevention factors, and other devices doing this preventative task, are to be sifted and

weighed given the overall context of, and experience with, the government’s program.63

Charitable choice is responsive to the Lemon/Agostini test and Justice O’Connor’s opinion in Mitchell v. Helms:

1. The legislation gives rise to neutral programs of aid and expressly prohibits

diversion of the aid to ‘‘sectarian worship, instruction, or proselytization.’’ Thus, sectarian aspects of an FBO’s activities would have to be segmented

off and, if continued, privately funded. An amendment recommended by the

Department of Justice is set out in the note below.64 Under this proposal,

direct monetary funding is allowed where an FBO, by structure and operation, will not permit diversion of government funds to religious indoctrination.65 Some FBOs, of course, will be unable or unwilling to separate their

program in the required fashion. Charitable choice is not for such providers.

Those FBOs who do not qualify for direct funding should be considered candidates for indirect means of aid.

2. Participation by beneficiaries is voluntary or noncompulsory. A beneficiary

assigned to an FBO has a right to demand an alternative provider. Having

elected to receive services at an FBO, a beneficiary has the additional right

to ‘‘refuse to participate in a religious practice.’’ See discussion in Part I,

above.

3. Government-source funds are kept in accounts separate from an FBO’s private-source funds, and the government may audit, at any time, those accounts that receive government funds.66 Thus, charitable choice does take

18

cially in helping to avoid diversion to ‘‘religious coffers,’’ with little loss of organizational autonomy. The parallel subsection in H.R. 7 is § 1994A(h)(1). 67See 42 U.S.C. 300x–65(g)(1). 68See 42 U.S.C. 300x–65(i). 69 All federal programs involving financial assistance to nonprofit institutions require annual audits by a certified public accountant whenever the institution receives more than $300,000

a year in total federal awards. Executive Office of the President of the United States, Office

of Management and Budget, Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations, 62 Fed. Reg. 35289 to 35302 (June 30, 1997). The independent audit is not

just over financial expenditures, but includes a review for program compliance. 70See notes 15 and 64, supra, for an example of a ‘‘Certification of Compliance’’ requirement

drafted into the charitable choice provision. 71 A self-audit subpart for insertion into H.R. 7 at § 1994A(h)(3), would read as follows: ‘‘An

organization providing services under a program described in this section shall conduct annually

a self audit for compliance with its duties under this section and submit a copy of the self audit

to the appropriate Federal, State, or local government agency, along with a plan to timely correct variances, if any, identified in the self audit.’’

special care, because the aid is in the form of monetary grants, in two ways:

separate accounts for government funds are established, hence, preventing

the diversion of ‘‘cash to church coffers;’’ 67 and direct monetary grants are

restricted to program services, hence, must not be diverted to sectarian practices.68

4. For larger grantees, the government requires regular audits by a certified

public accountant. The results are to be submitted to the government, along

with a plan of correction if any variances that are uncovered.69

Nothing in charitable choice prevents officials from implementing reasonable and

prudent procurement regulations, such as requiring providers to sign a Certification

of Compliance promising attention to essential statutory duties.70 Additionally, it is

not uncommon for program policies to require of providers periodic compliance selfaudits. Any discrepancies uncovered in a self-audit must be promptly reported to the

government along with a plan to timely correct any deficiencies.71 The Department

of Justice believes it prudent to add these additional provisions to § 1994A of H.R.

7.

CONCLUSION

Charitable choice facially satisfies the constitutional parameters of the Lemon/

Agostini test, including Justice O’Connor’s application of that test in Mitchell v.

Helms. Adoption of the Department of Justice’s recommendations in notes 15, 17,

64, and 71, above, will further clarify and strengthen § 1994A’s provisions, as well

as ease its scrutiny in the courts. Moreover, for many cooperating FBOs, those willing to properly structure their programs and be diligent with their operating practices, it appears that charitable choice can be applied in accord with the applicable

statutory and constitutional parameters.

Mr. CHABOT. Professor Laycock.

STATEMENT OF DOUGLAS LAYCOCK, ASSOCIATE DEAN FOR

RESEARCH AND ALICE McKEAN YOUNG REGENTS CHAIR IN

LAW, THE UNIVERSITY OF TEXAS LAW SCHOOL

Mr. LAYCOCK. I need to be clear that I am speaking for myself

and not for the University of Texas. I agree with much of what Mr.

Nadler said in his opening statement. I was heavily involved in the

recent religious liberty legislation over the last several years. I was

involved, representing the parents who objected to prayer at Texas

high school football games. I think we need to do as much as we

can to separate the religious choices of the American people from

the power of government. I think this bill or these proposals are

a step in that direction.

The trap of government money has already been set and to some

extent sprung. Billions of dollars are spent, government money, on

social services delivered through religious providers in government

contracts and grants. And many of those, all of that money is subject to no particular statutory standards designed to protect reliVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6601 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
19

gious liberty, and much of it is distributed on condition that the religious provider secularize itself, to abandon or suppress much of

the religious part of its mission.

Charitable choice proposals contain three principles designed to

protect the religious liberty of both the providers and of the beneficiaries. I think there are some real questions about how we implement those three principles, but plainly these three principles are

a step in the right direction.

First, nondiscrimination. The executive branch, when it awards

a grant or contract, cannot discriminate against religious organizations in favor of the secular. I think it would be better to also say

neither can it discriminate in favor of the religious and against the

secular or among different religions. There is no such provision in

place today, and we have evidence in prior hearings that some

agencies contract regularly with religious providers. Some agencies

refuse to contract with religious providers. I would not be at all

surprised to learn that there are some agencies that contract with

Catholic charities but not Jewish charities, or the other way

around. There are simply no visible standards in place. A nondiscrimination rule on charitable choice is the first principal step

in the right direction.

Two, deregulation of the religious providers. Charitable choice

says when the religious provider takes the government money, it

has to deliver full secular value for that money but it does not have

to secularize the associated parts of its operation. It can continue

to operate as a religious organization, do whatever religious functions it wants on top of or alongside the secular services the government is paying for. The standard is it has to provide full secular

value.

And, three, protect beneficiaries. Beneficiaries are entitled under

these proposals to an alternate provider, a secular provider if they

prefer, simply by asking for it. They are entitled not to be required

to participate actively in religious exercises even if they choose the

religious providers. Those protections don’t exist in current law either. If the Federal agency in your community has contracted with

Catholic Charities and they are the only game in town, you get the

service from Catholic Charities. You have don’t have a current

right to an alternate provider. Charitable choice will provide that

right.

So three principles, deregulation, nondiscrimination, and protecting beneficiaries are all protective of religious liberty. They are

plainly steps in the right direction.

Now, as I have indicated in my written testimony, and don’t have

a whole lot of time to elaborate here, I don’t think those three protections are going to be easy to implement. I am not an expert on

the delivery of social services, but I think there is a lot of work to

be done by the witnesses, by the administration and by the Congress about how we actually make those three protections work.

But today we are not trying to make them work. We don’t have

them in place. We don’t have any rule of nondiscrimination. We

don’t have any rule of protecting beneficiaries and we certainly

don’t have any rule of deregulating the religious providers. I think

attention to implementation is the right thing.

20

Let me say just a little bit about this controversy over hiring. It

is an essential part of deregulating the religious providers to the

extent that very few of them refuse to hire any Member not of their

own church, but many of them prefer Members of their own

church—grant a preference. It is a serious intrusion into religious

liberty to take that away. Title 7 protects that right today. There

has been much talk that, well, if you are federally funded, that

Title 7 right goes away. Well, certainly nothing in Title 7 says that,

and there is no general Federal spending clause statute like there

is with respect to race.

With respect to race we say if you take Federal money, you can’t

discriminate based on race. Period, no exceptions. There is no such

statute with respect to religion. We do not have a spending clause

statute that says if you take government money you cannot discriminate on the basis of religion. Simply does not exist in any kind

of general form.

Think about the case at Yale just a year ago when Yale was discriminating against Orthodox Jews in its dormitories. There was no

claim under Federal law because they took Federal money; there

were only claims under State law.

So the status quo is religious organizations get to prefer their

own Members. That is a sensible status quo, and we should not

offer them Federal money on condition that they surrender that essential part of the free exercise of their religion. Thank you, Mr.

Chairman.

Mr. CHABOT. Thank you, professor.

[The prepared statement of Mr. Laycock follows:]

PREPARED STATEMENT OF DOUGLAS LAYCOCK

Thank you for the opportunity to testify on the legal issues surrounding charitable

choice. This statement is submitted in my personal capacity as a scholar. I hold the

Alice McKean Young Regents Chair in Law at The University of Texas at Austin,

but of course The University takes no position on any issue before the Committee.

I. SEPARATION OF CHURCH AND STATE.

The debate over charitable choice has been cast as a debate over separation of

church and state. I think the usual formulation of the charitable choice debate is

misleading, for reasons I will explain. But let me begin by making clear my own

starting premises.

I support the separation of church and state. The religious choices and commitments of the American people should be as separated as possible from the influence

of government. The religious choices and commitments of believers and of non-believers should be equally protected, and equally insulated from government influence.

Church-state questions arise in three great clusters of issues: government regulation, government speech, and government money. With respect to government regulation, I have often testified to this committee about the need to separate religious

practices from government regulation. With respect to government speech, most recently I represented the parents who objected to Texas high schools opening their

football games with prayer. Santa Fe Independent School District v. Doe, 530 U.S.

290 (2000). In Texas, that is a more radically separationist position than anyone

outside Texas can fully appreciate.

With respect to government money, I long accepted the widespread fallacy that

the ultimate goal is to separate religion from government money. But I have gradually come to realize that that is a means, not an end. The goal is to separate private

religious choices and commitments from government influence, including the powerfully distorting influence that government can buy with its money. Government

should minimize its influence over the religious choices and commitments of both

the providers and the beneficiaries of government-funded social services. That goal

is difficult to achieve, but charitable choice is a step in the right direction.

21

Think of government setting out to buy secular goods and services in the marketplace. It wants wine for the State Department, or sausage for the Army. Or it wants

medical care for its citizens, or child care, or drug treatment. Government spends

a lot of money on these things.

When it purchases secular goods or services, government has three choices with

respect to religion:

1. Government can prefer religious providers.

2. Government can prefer secular providers.

3. Government can buy without regard to religion (e.g., from all qualified providers, or from the low bidder, or on some other neutral criterion).

Which rule better separates the religious choices and commitments of the American people from the influence of government? Buying only from the religious, or

only from the secular, creates powerful incentives to change religious behavior. Rule

1 says, ‘‘Get religion and we’ll do business with you.’’ Rule 2 says, ‘‘Secularize yourself, and we’ll do business with you.’’ Some potential providers cannot or will not

change; under the first two rules, they will be penalized for their religious or secular

commitments. Other potential providers are more pliable; government will coerce

them into changing their religious behavior.

It is actually Rule 3, buying without regard to religion, that minimizes government’s influence on religious choices and commitments. If government buys without

regard to religion, no one has to change their religious behavior to do business with

the government. That is the key concept of charitable choice. It is a good concept.

Despite the conventional wisdom of many separationists, funding everyone equally

separates private religious choice from government influence more effectively than

funding only secular providers.

So what does the Establishment Clause mean under this view? It means a lot.

Government cannot sponsor, endorse, or pay for religious beliefs or religious functions. It can buy from religious providers, but it can buy only secular goods or services. The essential safeguards of the establishment clause are that government must

get full secular value for its money, and that no one may be coerced, steered, or encouraged towards or away from a religious practice or a religious provider of services. If a religious provider wants to add religious services in conjunction with the

government-funded secular services, the religious provider must pay for the religious services itself, and no beneficiary of the government-funded program can be

required to participate.

Charitable choice would be an important step in the right direction. Even so,

there are problems of implementation, and many ways to get this wrong. And there

are many misconceptions in the current debate.

II. WHAT IS OLD.

Throughout most of our nation’s history, government has paid religious organizations to deliver social services. The founders did it without apparent controversy;

even Thomas Jefferson sent missionaries to run schools for Indians. Current programs, not under the rubric of charitable choice, spend vast sums through religious

charities.

You will likely hear that charitable choice flatly violates the original understanding of the Establishment Clause. That claim is not true; it conflates two issues

that the founders treated separately. I have studied that history at length, and I

have written two separationist articles, refuting overbroad historical claims of those

who want more government support for religion. Douglas Laycock, ‘‘Nonpreferential’’

Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875

(1986); Douglas Laycock, ‘‘Noncoercive’’ Support for Religion: Another False Claim

About the Establishment Clause, 26 Val. U.L. Rev. 37 (1992). There is simply no

doubt that the founders squarely rejected financial support for churches, even if that

support were even-handed and nonpreferential.

But the issue in the 1780s was the funding of the religious functions of churches—the salaries of clergy and the building and maintenance of places of worship.

Funding education or social services was simply not an issue in their time. The

modern question is whether government can pay religious and secular providers

even-handedly to deliver secular services. The founders had nothing to say about

that issue.

The modern issue first arose in the nineteenth-century battle over schools. Protestants controlled the public schools, conducted Protestant religious exercises and

taught Christianity in ways acceptable to Protestants. Catholics objected and sought

funding for their own schools. Protestants were more numerous, and they won the

22

fight. They said that their own religious exercises in the public schools were nonsectarian, and therefore constitutionally unobjectionable, but that Catholic schools

were sectarian, and that funding those schools even for math and reading would be

like funding the church itself. The Supreme Court has rejected the first half of this

remarkable theory; it now prohibits religious exercises in the public schools. The

second half—that funding religious schools is like funding churches—still affects Supreme Court doctrine in the school cases, but to an ever declining extent. This doctrine is not traceable to the founders or to the First Amendment. It originates in

the Protestant position in the nineteenth-century school wars, and the nineteenthcentury Protestants conspicuously failed in their effort to write this doctrine explicitly into the Constitution.

The Protestant hostility to funding religious schools never extended to funding religious social services—probably for the simple reason that many Protestants provided social services but until recently, few Protestants ran schools. Whatever the

reasons, funding of religious social services has been remarkably uncontroversial.

We have had more than a century of bitter political and legal battles over funding

religious schools, but until now, almost no conflict over funding religious social services.

I know of only two Supreme Court cases. Bradfield v. Roberts, 175 U.S. 291

(1899), upheld a contract in which Congress paid for a new building at a religious

hospital and paid the hospital to care for indigent patients. Bowen v. Kendrick, 487

U.S. 589 (1988), upheld the Adolescent Family Life Act, under which the government contracted with many providers, including religious ones, to provide counseling and services related to adolescent sexuality and pregnancy. The Court noted

‘‘the long history of cooperation and interdependency between governments and

charitable or religious organizations.’’ Id. at 609.

So we have a long and largely uncontroversial history of government funding social services through religious providers. That is what charitable choice does, yet

there is suddenly a huge controversy. Why? What is new about charitable choice?

Three things so far as I can tell: protection against discrimination, deregulation of

religious providers, and protection of program beneficiaries.

III. WHAT IS NEW.

A. Ending Government Discrimination.

Under most of our existing and historic programs, contracting with a religious

provider is discretionary with the executive. Some bureaucrats prefer to deal with

religious organizations; some prefer to avoid them. Some bureaucrats may prefer

certain religions and avoid others. There has generally been no statutory obligation

of equal treatment. Any constitutional obligation of equal treatment is little known

and undeveloped. Bureaucrats have felt free to discriminate, and they have done so.

Opinion polls show that much of the public wants to discriminate openly and flagrantly, funding services from churches they admire, and refusing to fund services

from churches they do not admire.

Charitable choice prohibits discrimination against religious providers. This is a

step forward for religious liberty. It tells the executive that it cannot use its control

of government spending to influence or penalize religious choices and commitments;

it must instead try to minimize its influence on those choices and commitments. It

would be even better to prohibit all discrimination on the basis of religion—to equally prohibit discrimination against secular providers, against religious providers, or

among religious providers of different faiths.

B. Deregulating Providers.

Charitable choice proposals deregulate the religious providers. They state that religious providers need not secularize themselves to be eligible. These provisions protect religious liberty and enhance separation of church and state.

It has been common for religious providers to create a separate not-for-profit corporation to contract with the government. I am not an expert on the details of social

service programs; I don’t know how often such a requirement appears in statutes,

how often it is imposed by the executive, or how often it is just the common practice

and only assumed to be a requirement. But this tradition is a centerpiece of the opposition to charitable choice. Opponents say government can’t pay the church to feed

the homeless, but that the church can create a wholly-owned subsidiary or affiliate

corporation, and government can pay this church affiliate to feed the homeless.

This is a formalistic distinction that does nothing to protect religious liberty. Corporate affiliates exist in filing cabinets and the minds of lawyers; they may be wholly intertwined operationally. Either the church or its affiliate may respect or abuse

the religious liberty of the clients it serves under the government-funded program.

23

I am concerned about the actual operation of the program, not about how many corporations have been formed.

There is some support in the cases for this notion that two corporations matter— but not much. Bradfield v. Roberts, the 1899 opinion upholding government money

to a religious hospital, is written on the ground that the hospital is not the church,

but merely a corporation controlled by the church. This has always struck me as

classic nineteenth-century formalism, but at any rate, the opinion does not create

a requirement of separate incorporation. It simply decides the case before it, in

which separate incorporation was one of the facts.

In the cases on religious schools, the Court has created a category of institutions

it calls ‘‘pervasively sectarian.’’ Even at the height of restrictions on aid to religious

schools, some forms of aid could go to pervasively sectarian institutions, but aid to

those institutions was more tightly restricted than aid to other religious institutions

that were not pervasively sectarian. This doctrine is said to support the requirement

of two corporations; opponents of charitable choice presume that the church itself

is pervasively sectarian, but that its affiliate may not be. The presumption is fallacious; a church might operationally separate its delivery of social services from its

purely religious functions, whether or not it separately incorporates them, and the

separately incorporated affiliate might combine its religious and secular work.

With respect to social services, the Court reserved the question of pervasively sectarian providers in Bowen v. Kendrick. See 487 U.S. at 611, following cases which

it characterized as having ‘‘left open the consequences which would ensue if they

allowed federal aid to go to institutions that were in fact pervasively sectarian.’’

More recently, four justices in a school case repudiated the whole concept of pervasively sectarian, correctly noting that the Court had steadily reduced its reliance on

the concept, that the concept had originated as a code word for Catholic, and that

it had grown directly out of virulent nineteenth-century anti-Catholicism. Mitchell

v. Helms, 530 U.S. 793, 828-29 (2000) (plurality opinion). Two more Justices, concurring, did not join in the concept’s overt repudiation, but neither did they rely on it.

Id. at 836-67 (O’Connor, J., concurring). It seems quite unlikely that the distinction

between pervasively sectarian institutions and other religious institutions will be revived and actually extended to control cases about social services. Charitable choice

legislation should not codify this discredited concept.

Whether there is one corporation or two, the real question is whether the religious

provider must secularize the part of its operation that delivers government-funded

services. Certainly it must fund any religious elements itself; government can pay

only for secular services. But must it abandon religious elements altogether? Charitable choice proposals say no, and that is the right answer.

To say that a religious provider must conceal or suppress its religious identity,

refrain from religious speech, remove religious symbols from its work area, or hire

people who are not committed to its mission, is an indirect way of saying that government can contract only with secular providers. Attaching such conditions to a

government contract uses the government’s power of the purse to coerce people to

abandon religious practices. Such coercion is just as indefensible as if the government coerced people to participate in religious practices. Charitable choice provisions that protect the religious liberty of religious providers are pro-separation; they

separate the religious choices and commitments of the American people from government influence.

The ultimate irony in this debate are the people who oppose charitable choice on

the ground that if religious organizations take government money, they will eventually be regulated and secularized—and then also oppose charitable choice on the

ground that it protects religious providers against secularizing regulation. They cannot have it both ways. The status quo, in which bureaucrats have discretion to contract with religious providers or boycott them, on whatever conditions the executive

chooses to impose, is far more dangerous to religious organizations than a charitable

choice bill with clear protections against discrimination and against secularization.

C. Protecting Beneficiaries.

The third change in charitable choice is that it provides explicit protection for the

religious liberty of the beneficiaries of government programs. They are entitled by

statute to a secular provider on demand. If they choose to accept a religious provider, they may be exposed to religious exercises, but they cannot be required to actively participate.

These are important protections, and I would not support any bill that omitted

them. They do not exist in present law. When a bureaucrat chooses to contract with

Catholic Charities, no current law requires that he have a secular provider available

for all those who request it. And any constitutional protections for program beneficiaries are, like the protections for providers, little known and undeveloped.

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IV. IMPLEMENTATION.

Charitable choice is in principle a great improvement for religious liberty. But the

difficulties of implementation are serious. Those difficulties are not new; they exist

under the status quo, where they have received no serious attention from either

side. These difficulties are more visible under charitable choice, because contracts

with religious providers are more visible, and both sides have begun thinking about

the difficulties. I doubt that either side has thought enough.

I am no expert on government grants and contracts or on the delivery of social

services. I cannot offer full solutions to these problems, but I can flag some of the

more obvious risks.

A. Ending Government Discrimination.

Charitable choice says government cannot discriminate in the award of grants

and contracts. How do you enforce that? Legislatures have found it necessary to

enact procurement laws with so many protections against corruption that the process of buying anything for the government has come to be a standard source of

jokes. To the usual risks of government contracting, add the religious biases of the

general public and of the officers awarding the grants and contracts. Some of them

are deeply religious; some of them are strongly secularist; nearly all of them like

some religions more than others, and have some religions they really mistrust.

Choosing someone to deliver social services is more complex than picking the low

bidder on a pencil contract. How do you keep thousands of government employees,

federal, state, and local, from discriminating on religious grounds when they award

grants and contracts?

I don’t know the answer to that question. We are learning that just telling them

not to discriminate doesn’t work. It appears that open and obvious religious discrimination continued under the limited charitable choice provisions enacted in

1996. Amy Sherman’s study, reported at a House hearing in April, found that some

states are contracting frequently with religious providers, and that others are not

doing so at all.

I don’t know how you police bureaucrats, but I think you have to assume that

many of them will continue to engage in religious discrimination despite the enactment of charitable choice. Some will refuse to deal with religious providers; some

will refuse to deal with non-Christian religions, or non-Western religions; some will

prefer religious providers and discriminate against secular providers. You at least

need a reporting requirement, so that implementation can be monitored, and you

may need to require explanations of any obvious over-or-under representation of religious providers. As we have learned from the civil rights experience, resolving

claims of subtle discrimination is a difficult task.

Decentralization reduces the risk of discrimination. For those services that can

feasibly be delivered through vouchers, vouchers privatize the choice of providers

and thus deprive government employees of the opportunity to discriminate. Decentralized contract awards, with many government employees choosing providers,

spreads the risk of discrimination better than centralized contract awards with one

or a few employees choosing providers.

B. Deregulating Providers.

Charitable choice proposals have made the most conceptual progress with respect

to deregulating providers. Existing legislation and other pending proposals have

clear and specific provisions to protect the religious liberty of providers who accept

government grants or contracts.

These protections have to be in the statute, because no one can count on the

courts to provide them constitutionally. The federal courts systematically underprotect the free exercise of religion, and the Supreme Court believes that when the government awards a contract, it can define the job very precisely and attach all sorts

of conditions to ensure that the contractor adheres to the job specifications. Rust v.

Sullivan, 500 U.S. 173 (1991). When Congress means to deregulate, it has to say

so.

It would be better to vote down charitable choice than to remove the deregulation

of religious providers. From a religious liberty perspective, the worst outcome would

be to codify a rule that government offers money to religious providers but only on

condition that they agree to secularize themselves. An unambiguous and highly visible offer of government payments to change one’s religious practice would be worse

than the muddled, regulated, and discriminatory status quo.

These protections will be somewhat easier to enforce than the basic rule of no discrimination in the award of contracts, because victims of violations will know immediately when government asks them to change their hiring rules or downplay their

religious message. Still, you have to assume that there will be political and bureauVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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cratic resistance to the deregulation of religious providers, and that continued vigilance will be necessary to make it work.

C. Protecting Beneficiaries.

Most charitable choice proposals provide equally clear protections for program

beneficiaries. Beneficiaries should be entitled to a secular provider on demand, to

decline to actively participate in religious exercises, and to clear notice of these

rights. But these rights may be very difficult to implement.

Social service programs have never been funded sufficiently to meet the need, and

recent legislation ensures that these programs will be even more severely starved

for funds in the future. We have not succeeded in guaranteeing even one provider

for all the people who need these services. How can we plausibly guarantee a choice

of providers?

The problem is hard enough in big cities; it is far worse in small towns and rural

areas. It is hard to envision religious and secular providers operating side by side

with government funds in New York City. It is impossible to imagine in

Waxahachie, Texas. Nor do I think it is just a matter of sending one or a few dissenters to a private practitioner. Private practitioners tend not to locate in low-income areas, and anyway, there may be many beneficiaries who don’t want a religious provider. The beneficiaries are vulnerable and dependent and may be afraid

to assert their rights, but government and government-funded providers should not

take advantage of that. The goal should be to give each beneficiary his free choice

of a religious or secular provider, and at the very least, not to push a religious provider on anyone. I suspect that is a much bigger challenge than the sponsors of

charitable choice have talked about in public.

Again, these problems are probably no worse than under the status quo; they are

just more visible. When government contracts with religious providers today, I am

not aware that it makes any effort to provide secular alternatives. Once gain, charitable choice is an improvement in concept. But implementation is likely to be difficult.

D. Program Efficacy.

A frequent policy question about charitable choice is whether religious providers

will help more beneficiaries than secular providers. I don’t know; social services are

not my field. But my work on religious liberty and the associated experience of religious diversity makes me nearly certain that that is the wrong question.

The right question is whether religious providers will help different beneficiaries

than secular providers. If some people in need respond to religious messages but not

secular ones, and other people in need respond to secular messages but not religious

ones, then the only way to help both groups is to make available both religious and

secular providers.

Whether there are significant numbers of people in both groups is an empirical

question, but the answer will surely be yes. There are many Americans for whom

God is the only source of ultimate meaning and for whom religious messages are

more motivating than any secular message ever could be. There are many others

for whom stories of God are a giant fraud or a giant game of pretend. And there

are yet many others in between, whose views of God are not strong enough to motivate either reform or resistance. Given the enormous diversity of religious views in

the country, it seems almost inevitable that there will be a similar diversity of responses to religious and secular providers of social services, and that each type of

provider may reach some beneficiaries that the other type of provider could not.

In any event, the question to ask is not whether religious providers will help more

people than secular providers, or vice versa. The question to ask is whether offering

people a choice of religious or secular providers will help more people than exclusive

reliance on one or the other.

V. CONCLUSION.

Religion should not be forced on any American, but neither should any American

be excluded from the operation of social welfare programs because of his religion,

or lack thereof. The Religion Clauses are designed to let people of fundamentally

different views about religion live together in peace, in mutual liberty, and in equality. Religious choices and commitments are left to the private sector, and to that

end, government should neither prefer the religious nor prefer the secular. In its

own operations, it must necessarily be secular. But when it chooses to contract out

to the private sector, it should contract without regard to religion. This principle

minimizes government influence on religion and thus maximizes religious liberty,

and this is the true meaning and purpose of separation of church and state.

26

Minimizing government influence is easier said than done. Charitable choice is

admirable in its commitments to nondiscrimination on the basis of religion, to deregulating religious providers, and to protecting program beneficiaries. But each of

these commitments will be difficult to implement; each of them requires careful attention from the Congress and from those expert in the delivery of social services.

Mr. CHABOT. Professor Saperstein.

STATEMENT OF DAVID N. SAPERSTEIN, ADJUNCT PROFESSOR

OF LAW; DIRECTOR, RELIGIOUS ACTION, CENTER OF REFORM JUDAISM, GEORGETOWN UNIVERSITY LAW CENTER

Mr. SAPERSTEIN. Good morning, Mr. Chairman, and distinguished Members of the Subcommittee. I am here today to urge

that you reject charitable choice. Charitable choice is bad for religion. It is bad public policy. It is unconstitutional and it is socially

divisive. And all this for a program that may not result in one more

needy person being helped.

Let me address some of the policy issues first. With government

money comes government rules, regulations, audits, monitoring, interference and control. It will result in a limitation of religious autonomy and freedom.

Second, with government money comes compromises in the religious mission of the churches, synagogues, mosques of America.

Third, by opening up our Nation’s limited funding for social services to, potentially, scores of thousands of houses of worship, millions of dollars will be diverted from and thus weaken what is

widely regarded as the finest, most effective social service providers

today: the superb, albeit overwhelmed, religiously affiliated social

service providers such as Catholic Charities, Jewish Federation,

Lutheran Social Services, all of which abide by the vast majority

of regulations applicable to all charities.

Fourth, charitable choice will lead to increased religious competition and divisiveness in America. Choosing between professional

social service agencies is one thing. Choosing between local houses

of worship comes much closer to choosing between religion. You are

going to find the Episcopal Church, the AME Zion Church, and the

local mosque competing against each other for grants, and they are

going to come to you here on Capitol Hill for assistance. One will

receive it in the end, and one won’t; and they will want to know

from you why. And, of course, politics will determine who gets

these grants, and that means it will be the smaller minority religious groups that are likely to be left out.

Indeed these very political realities already result in many minority religious groups facing particular problems, for example, in

finding locations to build houses of worship. In the recent Pew poll,

it shows that substantial majorities of Americans feel that, for example, Buddhist and Muslim social service providers should not receive government Federal funds. This is not helpful to either religion or poor people in America.

And fifth, such funding violates the religious rights of taxpayers.

As Jefferson said, to compel a man to furnish contributions of

money for the propagation of opinions which he disbelieves is sinful

and tyrannical. And this helps explain why so many religious leaders on the left and the right oppose the program.

Let me then address the legal and constitutional issues. First, in

all of the discussions of all the cases that you will be reading about

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and hearing about, there is one central principle, one legal standard you must keep in mind. The Supreme Court of the United

States, and the vast majority of lower courts as well, has never

upheld direct government cash support for pervasively sectarian institutions. Indeed, in cases where it has given indirect support, it

has distinguished it; either direct versus indirect, cash versus inkind, or pervasively sectarian institution against religiously affiliated or other religious organization.

Secondly, the rights of beneficiaries would inevitably be infringed. As Professor Laycock and others have noted, in the real

world, protecting beneficiaries will be difficult and, I might add, all

but impossible.

Third, churches and synagogues have rightly been exempted

from many laws that would compromise their religious freedom, including the right to discriminate whom they hire on religious

grounds. Major government funding for programs with such exemptions is a debatable constitutional point, but if constitutional, such

federally funded programs will be part of a campaign that will

weaken civil rights in America and give government sanction for

unintentionally dividing America along religious lines.

So in deciding on charitable choice, you on Capitol Hill are faced

with a wrenching tension between two valid moral principles. The

first is that government should accommodate the ability of religious

organizations to function, and it is only that exemption that is

given in the Amos decision—as the Amos decision described it—

only to further the religious function of the entity. And to take

away that exemption is to curtail that religious freedom in a manner that will threaten other exemptions.

On the other hand, we have an equally valid principle that with

government money we shouldn’t be discriminating against people.

The notion that under these programs, government-funded social

service programs run by a Protestant church might run ads that

read, ‘‘Jews, Catholics, Muslims need not apply’’, ‘‘no unmarried

mothers will be hired;’’ and, unless I read Watts-Hall incorrectly,

even that ‘‘no blacks need apply,’’ should be deeply troubling to all.

Mr. Chairman, there is much in the President’s program on

which we can work together with everyone across the board on

ways to stimulate through the tax system more money to religious

organizations, as well as others providing aid to the poor; much in

terms of technical assistance. There is much that we can do. What

we shouldn’t do is tear this country apart over this fight about

whether to directly fund religious organizations. We have programs

in effect. Let’s stop, take a look at how they work in real life, and

then come back and address this very problematic issue.

Mr. CHABOT. Thank you, Professor.

[The prepared statement of Rabbi Saperstein follows:]

PREPARED STATEMENT OF RABBI DAVID SAPERSTEIN

Good morning Mr. Chairman, distinguished members of the Committee. I am

Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism

which represents over 1,700 rabbis and 900 synagogues with 1.5 million members.

I am also an attorney and for many years have taught church-state law on the faculty of Georgetown University Law School.

I am honored to share this hearing today with three such distinguished constitutional law scholars. Each one is a friend and dedicated champion of religious freeVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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dom. I remain disappointed by their support for charitable choice. It seems to contradict so many of the goals and principles we have together espoused elsewhere.

Mr. Chairman, almost all of our 900 synagogues run social service programs. They

range from homeless shelters to day care for homeless children so the parents can

look for or go to work; from feeding programs to health care provision; from transitional housing programs aimed at helping the homeless get off the streets to literacy

programs for kids in our schools. We are enormously proud of these efforts and we

commend the President for his call to strengthen this work and to create closer partnership between the government and the faith community. There is much that can

and should be done and we are willing to work with him and others in advancing

shared goals; but we strongly oppose that component of the Faith Based Initiative

that would involve direct government funding our synagogues, indeed of any of

America’s pervasively sectarian institutions.

So I am here today to urge you to reject charitable choice. Charitable choice is

bad for religion, bad public policy, unconstitutional, and socially divisive. All this for

a program that will not necessarily help one more needy person.

CHARITABLE CHOICE IS BAD PUBLIC POLICY

The politician’s version of the old lawyer’s adage goes, ‘‘when the law is against

you, argue the public policy; and when the public policy is against you, argue the

law.’’ There are, in this case, however, strong public policy and legal arguments

against charitable choice. So before discussing the vital constitutional and legal reasons to oppose charitable choice, I want to review a number of the policy reasons

to be deeply alarmed about charitable choice concerned.

First, with government money comes government rules, regulation, audits, monitoring, interference, and control. Your colleague Representative Chet Edwards has

warned ‘‘it will be a religious nightmare to have federal agents, including IRS

agents auditing the finance of churches, synagogue and mosques across the land.’’

And he’s right. Even on the issue of effectiveness of the programs there will be intrusive monitoring. President Bush, for one, has often stressed the importance of accountability, arguing that schools and other recipients of federal funds need to be

held accountable for the results they achieve, or fail to achieve. And he’s not wrong.

Taxpayers have a right to know what results are being achieved with what the

President often reminds us is their money. So, too, it seems, for religious organizations, including houses of worship. In April, Dr. John DiIulio, the Director of the

White House office on Faith Based and Community Outreach, said that the Administration would conduct annual audits to ensure that funds did not continue to go

to groups whose programs failed. (Of course, the government’s definition of failure

and the church’s definition may be quite different.)

Second, with government money comes compromises in the religious mission of

the churches, synagogues and mosques of America. Reliance on government funding,

creates the temptation to mute the prophetic obligation of calling the government

to account. Further, when there are limits placed on religious activity in government-funded programs (as the Constitution demands), those churches committed to

including such activities as essential to their programs must either compromise

their mission to obtain the money or ignore the rules with potentially serious negative consequences to the beneficiaries of services and to the churches.

In addition to the threat to their traditional—and cherished—autonomy, government funding of houses of worship provides another, more subtle but equally alarming, danger—the undermining of the mission of the institution. To be sure, I don’t

think that erosion of the character of religious institution will be intentional or immediate. But it’s likely nonetheless.

The Wall Street Journal reported an interesting example of the type of ‘‘mission

creep’’ that is likely, perhaps inevitable, as religious institutions look to the government for funding. Massachusetts subsidizes portion a large of charitable work undertaken by Catholic Charities in that state. In the mid-1990’s, the state began to

shift its funding priority from other areas to substance abuse. As the funding shifted, so did the programs offered by Catholic Charities. Programs such as soup kitchens and childcare closed, and drug and alcoholic treatment centers opened. By 1995,

Catholic Charities in Massachusetts spent 80% of its funds on substance abuse programs.

Stanley Carlson-Theis, a leading policy analyst now working in the White House

Faith-Based Initiative office, has termed this shift of emphasis ‘‘vendorism.’’

Vendorism, he notes, is a ‘‘process in which government grants end up diverting the

priority of charities, changing their direction and turning them into mere vendors

of government programs.’’ What a loss to our nation if our houses of worship were

to become ‘‘vendors of government programs!’’

29

Third, by opening up our nation’s limited funding for social services to, potentially, scores of thousands of houses of worship, countless millions of dollars will be

diverted from, and thus weaken, what are widely regarded as the finest, most effective social service providers today—the superb (albeit overwhelmed) ‘‘religiously affiliated’’ social service providers (such as Catholic Charities, Jewish Federations, Lutheran Social Services etc.), all of which abide by the vast majority of regulations

applicable to other charities. Without a national commitment to substantial increases in funding, there is no guarantee one more needy person will be helped by

this ill-advised initiative.

Fourth, charitable choice will lead to increased religious competition and divisiveness in America. For Catholic charities and the Jewish federations to compete for

grants is one thing. The local agencies they support are professional social service

providers that, over the years, have worked out the pattern of funding and working

relationships. Local houses of worship are altogether different. Choosing between

them (local houses of worship) comes much closer to choosing between religions. It

is difficult to know how many of our 350,000 houses of worship (some 60% of whom,

according to the studies, provide social service programs) will seek government

funding for their social service. Let’s assume it will be only one-tenth. That will

mean 35,000 local churches, together with local religious ministries and schools will

be competing. The prospect of the Episcopal Church, the AME Zion Church, and the

local mosque, competing one against the other for grants is deeply troubling and

should be so for Congress; they all come to you here on Capitol Hill for assistance.

One gets it and the others don’t and they want to know from you: Why? And, of

course, politics will often determine who gets these grants and that means that it

is the smaller, minority religious groups who are likely to be left out. Indeed, these

very political realities already result in many minority religious groups facing particular problems in finding locations to build houses of worship. The recent Pew

polls showed that substantial majorities feel that Buddhist and Muslim social service providers should not receive federal funds.

The prospect of intense competition for limited funding; the politicizing of church

affairs to obtain funds; the impact on those made to feel they are the outsiders when

they fail to obtain the funds—this leads to the very kind of sectarian competition

and divisiveness that have plagued so many other nations and which we have been

spared because of the separation of church and state. The debate over these programs thus far suggests the potential for real ugliness that lies ahead if we move

forward. Rev. Jerry Falwell, for example, suggested that Islamic organizations

should never be eligible for funding, because the ‘‘Muslim faith teaches hate.’’ Rev.

Eugene Rivers (who runs such effective programs) has argued that opponents of

Charitable Choice on the right and on the left are racially-motivated, claiming that

their concern is that federal money will go to inner- city, and largely African-American, churches. The religious right and the secular left, Rivers told the website

Beliefnet.com, ‘‘share an indifference to the needs of the poor and the inner city.’’

And fifth, such funding violates the religious rights of the taxpayers. Even in

cases where courts have held that taxpayers do not have standing to assert a free

exercise claim to contest the use of their tax dollars for religious purposes, it still

is wrong on a policy level and it exacerbates religious tensions. As Jefferson said:

‘‘[T]o compel a man to furnish contributions of money for the propagation of opinions

which he disbelieves, is sinful and tyrannical.’’ This helps explain why so many religious leaders—on the left and the right—oppose the program.

This last issue has been particularly problematic for my community. We have

often been the targets of people who seek to convert us to their religion. You may

remember that last year during our High Holiday celebrations, a period they referred to as a time of heightened spiritual awareness, the Southern Baptist Convention specifically targeted Jews for conversion. And two weeks ago, the head of Teen

Challenge, a group often trumpeted by the President as the kind of faith based organizations he believes ought to get government funding (and to which he provided

funding in Texas), acknowledged that his program has the effect of converting (in

his term, ‘‘completing’’) Jewish kids. They have every right to engage in this activity

(as wrong as I may think it would be). But the notion that their efforts to convert

our children will now be enhanced by our tax dollars which have freed up money

to go about this work is, I hope, as troublesome to you as it is painful to us.

CHARITABLE CHOICE IS UNCONSTITUTIONAL

Four constitutional and legal issues compel rejection of these charitable choice

proposals.

First, in all the discussion of all the cases that you have heard here today, there

is one central principle, one legal standard, that you must keep in mind. The SuVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
30

preme Court of the United States (and the vast majority of the lower courts as well)

has never upheld direct government cash support for pervasively sectarian institutions. Indeed, in cases (many of which have been alluded to here today) where the

High Court and other courts have upheld some type of government support for religious institutions, they have gone out of their way to distinguish it from exactly the

kind of direct government subsidy of houses of worship and religious ministries and

parochial schools that is entailed in charitable choice.

In Bowen, the case that upheld government support for religious groups that provided pregnancy care services and prevention services, the Court said: ‘‘ Even when

the challenged statute appears to be neutral on its face, we have always been careful to ensure that direct government aid to religiously affiliated institutions does not

have the primary effect of advancing religion. One way in which direct government

aid might have that effect is if the aid flows to institutions that are ‘pervasively sectarian.’ We stated in Hunt that:

[a]id normally may be thought to have a primary effect of advancing religion

when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.’’

In Rosenberger, upholding the use of student fees at a state university to pay for

publications including religious publications, the court observed:

The neutrality of this program distinguishes the student fees from a tax levied

for the direct support of a church . . . The Court of Appeals and the dissent)

are correct to extract from our decisions the principle that we have recognized

special Establishment Clause dangers where the government makes direct

money payments to sectarian institutions.’’

Thus, even if the pervasively sectarian doctrine is dead, as some suggest after

Mitchell v. Helms, even those justices who wrote the plurality in Helms recognize

there are special concerns in funding such entities.

But I believe this misreads Helms. The principle articulated in Bowen and Rosenberger was reaffirmed as recently as last year when a majority of the Court in

Helms—two Justices who concurred in the holding allowing the loan of federallyfunded computers to religious schools, joined by three dissenting Justices—noted the

special concerns associated with the flow of government funds to pervasively religious organizations. As Justice O’Connor noted in her concurring opinion, ‘‘Our concern with direct monetary aid is based on more than just [concern about] diversion

[of tax-funded aid to religious uses]. In fact, the most important reason for according

special treatment to direct money grants is that this form of aid follows precariously

close to the original object of the Establishment Clause’s prohibition.’’ The Supreme Court has noted that in pervasively sectarian institutions, religion

is so subsumed in the entire program that it cannot be separated out, and since

funding is fungible, a major program of support to any part of the institution will

constitute government funding of religion, thereby violating the Establishment

Clause. Common sense says the justices are right. And because support to any part

of the institution is support to all of it, such government funding violates what has

been a first principle of the First Amendment. As James Madison wrote: ‘‘The Appropriation or funding of the United States for the use and support of religious societies contrary to the article of the Constitution which declares that Congress shall

make no law respecting an establishment of religion.’’

Second, the rights of beneficiaries would inevitably be infringed. As Professor

Laycock and others have noted, in the real world, protecting beneficiaries will be

difficult, and, I might add, all but impossible. How can we ensure that the promise

of a non-sectarian provider of social services is made real, especially given the challenge of providing such services in rural or inner- city areas? How can we ensure

that beneficiaries have the right, not just in theory but also in practice, to decline

to participate in religious exercises without jeopardizing their benefits? No matter

what kind of protections charitable choice legislation tries to create, without extensive government surveillance such abuses will continue. And such surveillance, of

course, poses its own set of risks for religious institutions.

Third, churches and synagogues have been (rightly!) exempted from many laws

that would compromise their religious freedom, including the right to discriminate

in whom they hire on religious grounds. Major government funding for programs

with such exemptions may be constitutional but such a program can be part of a

campaign to weaken civil rights and will give government sanction for dividing

America along religious lines.

Since the High Court has determined that these exemptions are not mandated by

the Constitution but are rather a constitutionally permissible means for the legislative body to accommodate religion, this debate over whether the flow of government

31

funds should result in a lifting of the exemption is a statutory and policy argument.

(It should be noted that there is a constitutional argument that granting a ‘‘religion

specific’’ exemption for government funded programs is a violation of the Establishment Clause under the second prong of the Lemon test i.e. primary effect of advancing religion, particularly as applied in the Texas Monthly case, prohibited the singling out of religion for a benefit. This remains an unresolved issue.)

So in deciding on Charitable Choice, you are faced with a wrenching tension between two valid moral principles. The first is that government should accommodate

the ability of religious organizations to function. To take the exemption away is to

curtail that religious freedom in a manner that will threaten other exemptions.

When religious groups buy into that, they could be jeopardizing their birthright of

a unique constitutional and legal status in exchange for the privilege of lining up

at the public trough to fight among themselves over the porridge of government

funds. The second is that government money should not be used to discriminate

against protected classes of people. To grant the exemption, with anything more

than incidental government funding behind it, is to turn back the clock on civil

rights in this country, allowing for widespread discrimination on the basis of religious identity and practice. This is the approach of the Watts/Hall Bill. The notion

that a job notice could be placed in the newspaper seeking employees for a government funded social service program run by a Protestant church that reads ‘‘Jews,

Catholics, Muslims need not apply’’ or ‘‘No unmarried mothers will be hired;’’ or, if

I read Watts-Hall correctly, ‘‘no Blacks need apply,’’ is deeply and profoundly troubling to many in the religious community, on Capitol Hill, and, according to a recent

Pew Poll on this issue, to 78% of the American public.

There is only one way to prevent this problem: don’t violate the constitutional prohibition against direct government funding of sectarian organizations.

Only this will both protect religion and allow for robust, unqualified protections

of civil rights. To give the money and then choose either to allow the exemption or

to deny it, will pit many religious communities of America against the other civil

rights communities. As was the case with the Religious Liberty Protection Act last

year, this will foist on Congress an anguishing and politically explosive choice for

the many Republican, Democratic, and Independent Members of Congress who are

committed both to religious freedom and strong protections of other civil rights.

Finally, much has been made of the argument that all the proponents of charitable choice want is a level playing field, i.e., neutrality between religions and other

groups. But it is not the opponents of charitable choice who concocted the idea of

treating religion differently; it was the framers of the Constitution. Only religion

has an Establishment Clause with all of the attendant protections and limitations

that imposes. To abandon this idea in pursuit of ‘‘a level playing field’’ is a political

time bomb for religion in America. To insist that religion be treated just like everything else is, again, to jeopardize the many special treatments and exemptions that

religion enjoys. Why would those who intend to enhance religious protections advocate that? If we insist on treating religion ‘‘equally’’ to obtain funding, others will

argue we should do so in all matters. This is particularly puzzling from some of my

colleagues here who have been eloquent in arguing in the Free Exercise realm that

facial neutrality, (i.e., treating religion like everything else), is not what is constitutionally called for. Rather the Constitution requires the functional neutrality of government towards religion. And the best way to achieve that is to keep government

and religion separate even at the cost of direct government funding of religious institutions. For 200 years, the wall separating church and state has kept religion free

of government interference, protecting the religious freedom of all, and allowing religion to flourish with remarkable vitality and strength. Taking the sledgehammer of

government funding to the wall would be a major retreat from the vision of our

founders.

A BETTER PATH

There is much to commend in the President’s proposed Faith Based Initiative and

there are myriad ways that government and the religious community can partner

to strengthen the religious community’s social service work and, together, to better

serve our nation’s poor and needy.

There are many constitutional ways to achieve our common goals: providing technical assistance and training programs for staff of all groups; best practice sharing;

targeted research on how to improve programs; reducing, or even eliminating, fees

for all small organizations, including churches and synagogues, to establish separately incorporated 501(C) social service arms to assist the poor; providing more and

better information to the public about available programs; and encouraging charitable contributions through appropriate tax relief.

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To those who support Charitable Choice, I would say: with so many arguments

and dilemmas, let’s take the time to evaluate the Charitable Choice programs that

exist, find out what works and what doesn’t, and, examine what the real life impact

on beneficiaries.

Together, with mutual respect and some hard work, we can respect religious liberty, protect our Constitution and our religious institutions, maintain religion’s vital

role in the public square, and promote the excellent work our religious institutions

do in carrying out their prophetic mission to help those in need.

Mr. CHABOT. And our final witness this morning will be Professor Lupu.

STATEMENT OF IRA C. LUPU, LOUIS HARKEY MAYO RESEARCH PROFESSOR OF LAW, THE GEORGE WASHINGTON

UNIVERSITY SCHOOL OF LAW

Mr. LUPU. Thank you, Mr. Chairman. Like Professor Laycock, I

am here from a university, but of course I am not representing that

university or its interests in this conversation. I am here as a

scholar. I have interests and concerns of my own about the issues

we are talking about this morning.

I think there are a number of things that I believe all the witnesses and probably most people in this room would agree on.

First, faith-based organizations perform crucial functions in helping poor and others, other people, in need in America. Second, if

we are going to have a regime of charitable choice, we should be

very careful to have schemes to protect beneficiaries against various kinds of coercion, and it won’t be easy to do.

Third, if we have a regime of charitable choice, we should be concerned about the autonomy of religious providers up to some limits

of the Constitution and competing policies, but sometimes those

competing policies are serious and we have to take them into account.

And, fourth, if we are to have a regime of charitable choice, we

should be very careful about setting it up so there is no sectarian

discrimination among the various providers who are competing for

possible contracts. I don’t think any of us would disagree with any

of those four statements.

I think there is some disagreement in the room about two things.

One is the scope of the establishment clause limits on the methods

and means and particularities of government transfers to faithbased organizations, and those are constitutional limits that the

courts eventually will be called on to enforce. And, second, the

question of the so-called co-religionist exemption from Title 7 and

whether or not it should extend to faith-based organizations when

they are operating under government contracts. And I think the

question of the co-religionist exemption is a question of policy; it is

not a question in which the Constitution requires the Congress to

act one way or the other. It is a question to be determined as a

matter of policy about whether or not social services will be best

delivered to those in need if we permit the exemption to be preserved or if we do not.

So I want to spend my brief time—and I hope we will return to

both these subjects in questions later—on those two issues of potential or actual disagreement, the scope of establishment clause

limits and the policy questions implicit in the question of the hiring

discrimination exemption.

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First, with respect to the establishment clause limits, there has

been for many years in this country a debate between what I consider two paradigms of the establishment clause: the separationist

paradigm which says no aid to religious organizations for a variety

of reasons, including some that Rabbi Saperstein identified and

that I think are actually quite paternalistic. They are reasons to

say we shouldn’t have programs of government aid through religious organizations because the religious organizations will be

tempted to accept it and they will then be corrupted by it.

My own view, and I think the courts have been moving in this

direction, is that we should trust faith-based organizations to make

their own judgments about whether these programs will be good or

bad for them. The law has been moving away from the paradigm

of strict separation and toward but not completely to a paradigm

of government neutrality as between religious and secular groups

in the distribution of aid. And as I understand the current law, the

requirements are that aid from government to sectarian organizations must have no religious content.

This rule is broader than no indoctrination, no proselytizing, no

worship, no sectarian teaching. The rule, as I understand it, is the

government aid must have no religious content. That means the

goods that the government pays for must have no religious content.

The government can pay for peanut butter and it can pay for mattresses for homeless people to sleep on, but it cannot pay for Bibles

or religious instructional material. And services also must have no

religious content, and services are more complicated than goods because services will include counseling services, and it will be difficult to monitor whether faith-based organization counseling services to beneficiaries have or do not have religious content. But that

is the constitutional rule that these programs must be designed to

follow.

Now, I see I have very little time left and I have barely begun

to scratch the edge of the question of the co-religionist exemption,

but let me just repeat my general view of it. This is a matter of

policy, not a matter of constitutionality. There are good policy arguments to maintain the exemption for faith-based organizations,

even with Federal funds. They will go to religious community, religious cohesion, and perhaps to the effectiveness of the delivery of

social services to those in need. But there are also, of course, some

very good policy arguments not to maintain that exemption, and

they go to the heart of this country’s commitment to nondiscrimination; that is to say, it is ordinarily unfair and inefficient to exclude

people from jobs based on their faith.

Those policies are in conflict in this debate, and I think we

should pursue those questions among others as we proceed in this

conversation. Thank you.

Mr. CHABOT. Thank you very much.

[The prepared statement of Mr. Lupu follows:]

PREPARED STATEMENT OF PROFESSOR IRA C. LUPU

Mr. Chairman and members of the Subcommittee:

Thank you for the opportunity to testify on the constitutional role of faith-based

organizations in competition for federal social service funds (commonly known as

‘‘Charitable Choice’’). I am a professor of law at The George Washington University,

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1Much of my writing has focused on questions arising under the Religion Clauses of the Constitution. I (and my co-author Robert Tuttle) discuss the inclusion of faith-based organizations

in federally financed social service projects in an article entitled ‘‘The Distinctive Place of Religious Entities in Our Constitutional Order,’’ 46 Villanova Law Review, No, 5 (forthcoming, October, 2001). 2 Under current law, such organizations are explicitly included as eligible providers of services

under the 1996 Welfare Reform Act, a variety of other services to low-income individuals and

families pursuant to the Community Development Block Grant Act, and both federal grants and

federally funded state grants to programs designed to treat substance abuse. The proposed Community Solutions Act of 2001, H.R. 7, 107th Cong., 1st sess. (hereafter ‘‘H.R. 7’’) would extend

the explicit inclusion of faith-based providers to a wide range of additional federally funded services, including matters involving relief of hunger, control of crime and delinquency, domestic violence, and secondary school equivalence programs, among others. H.R. 7, sec. 201(c)(4). 3This provision in the 1996 Welfare Reform Act is codified at 42 U.S.C. sec. 604a(g).

4See, e.g., id. at sec. 604a(e)(1).

but I am not here on behalf of the University or any other organization. I am here

as a citizen and constitutional scholar,1 concerned about the questions before you.

Throughout our history, faith-based organizations have made impressive and

deeply important contributions to social well-being in America. Many such organizations, along with their secular counterparts, have been especially committed to serving our most vulnerable and disadvantaged citizens. These organizations have

helped alleviate the cruelties associated with poverty in America, and have aided

countless people in making strides toward self-reliance and a better life.

Any involvement between religious organizations and government, however, raises

serious constitutional issues under both the Establishment Clause and the Free Exercise Clause of the First Amendment. The inclusion of faith-based organizations in

federally financed social service programs 2 implicates four categories of constitutional concern: 1) religious coercion, in violation of the Free Exercise Clause, of both

beneficiaries and providers of federally funded social service programs; 2) government financial support and supervision, in violation of the Establishment Clause,

of private activity with religious content; 3) the risks of sect-based discrimination

by government officials against some faith-based providers seeking contracts with

government; and 4) government involvement with religious discrimination in the

employment practices of faith-based organizations. Moreover, these four categories

of concern must be addressed in both the design and the implementation, at all levels of government, of any federal legislation of this character.

My conclusions, elaborated below, are that any such legislation: 1) should recognize the rights of program beneficiaries to be free of unwanted religious experience,

and to have meaningful access to secular options for the receipt of federally financed

services; 2) should recognize the rights of religious freedom of providers, up to the

limits of the Establishment Clause; 3) should prohibit the use of federal funds to

purchase materials with religious content or to compensate labor for services that

include religious content; 4) should include specification of award criteria sufficient

to provide safeguards against sectarian discrimination by award-granting officers;

and 5) may EITHER forbid OR permit faith-based organizations to limit hiring to

their coreligionists, whether or not the hiring is done with federal funds (i.e., the

Constitution does not require either of those policy choices, and does permit the

Congress to choose between them). With respect to all of the above issues, Congress

should be mindful to design legislation with constitutional limits explicitly recognized and should be sensitive to the many ways in which administration of such

schemes may touch upon constitutional values.

I. RESPECT FOR THE RELIGIOUS FREEDOM OF BENEFICIARIES.

Of all the issues presented by the inclusion of faith-based organizations in federal

social service programs, this one produces the least disagreement. Proponents and

opponents of such legislation concur that beneficiaries should never be forced to accept religiously influenced social services, or be forced to accept any such services

in a religious setting. Accordingly, the 1996 Welfare Reform Act, and subsequent enactments or proposals of this variety, include provisions forbidding religious organizations from conditioning services upon a beneficiary’s religious participation,3 and

provisions guaranteeing to beneficiaries the right to receive services from an alternative, secular provider.4

The principal concern about the rights of beneficiaries involves the possibility that

they will face subtle pressures to relinquish those rights. Beneficiaries may feel that

they cannot object to religious content in the social services they are receiving without risking their benefits; moreover, the alternative secular providers typically required by law may be geographically remote or otherwise inaccessible to beneficiaries. Here, it is very important that there be clear rules, disclosed in advance

35

5 Id. secs. 604a(d)(1), 604a(d)(2)(A), 604a(d)(2)(B). Section 201(d) of H.R. 7 contains similar

safeguards of the religious autonomy of providers. 6 A four-Justice plurality in Mitchell would have gone still further, and would permit private

diversion of government assistance to religious use so long as the overall program is religionneutral and the government aid itself lacks religious content. 530 U.S. at 820-24. The concurring

opinion of Justice O’Connor, joined by Justice Breyer, rejected this view, and emphasized the

no-diversion principle. Id. at 857-860. Grouped with the three dissenters in Mitchell, the O’Connor-Breyer opinion means that a majority of the current Court would not approve of any program of aid to faith-based groups that would permit them to use the aid in explicitly religious

ways.

to beneficiaries, that they need not participate or acquiesce in religious activities as

a condition of receiving federally funded services. These requirements of disclosure

should be written into every government contract with a faith-based organization,

and failure to abide by such requirements should be made grounds for contract termination. It is also constitutionally necessary that state and local governments take

affirmative steps to ensure that secular, alternative service providers are available

and reasonably accessible to all, and that information about such providers is made

readily available to beneficiaries.

II. RESPECT FOR THE RELIGIOUS AUTONOMY OF PROVIDERS.

This is a relatively new proposition in the discourse about the role of faith-based

organizations in provision of government-financed service, and it is in some tension

with Establishment Clause limits, discussed below, on that role. Despite that tension, I believe that existing and proposed Charitable Choice legislation is on sound

ground in explicitly providing that religious providers do not have to surrender autonomy in matters of religious symbolism, internal governance, or theology in exchange for participation in a federally funded program.5 Indeed, for the government

to require alteration of religious trappings, governance, or teaching as a condition

of participation might itself violate the Constitution, especially if the requirements

extended to any part of the religious provider’s enterprise that was not funded by

the government. To put this another way, the government should not be using its

power of the purse to induce religious providers to alter the iconography, internal

governance or teachings of their faith, nor should government be creating disincentives for the provision of religiously themed social services, if such services are to

be financed entirely with private support.

III. ESTABLISHMENT CLAUSE LIMITS ON RELIGIOUS CONTENT OF FEDERALLY FUNDED

GOODS AND SERVICES.

The inclusion of faith-based providers in government social service programs

raises subtle and difficult issues involving constitutional limitations, generated by

the Establishment Clause, on government expenditures. Virtually all constitutional

scholars agree that government may not finance sectarian proselytizing and worship, but the agreement quickly breaks down on issues of the more general scope

of the prohibition of the Establishment Clause, and how best to enforce that prohibition.

Discourse over Establishment Clause limits typically divides into two camps, both

of which tend to press their claims beyond the contours of existing law. One group,

the strict separationists, argues that government may not directly finance the provision of secular goods and services in a sectarian setting, and argues further that

the government may not directly aid ‘‘pervasively sectarian’’ organizations at all, because of the inseparability of the secular and sectarian in such organizations. The

other group, the neutralists, argues that government must include religious providers (including the so-called ‘‘pervasively sectarian’’) in social programs on the

same terms as secular providers, and that religious content of the programs should

not be of concern to government so long as private parties create that religious content and no one is coerced into participation.

The law of the Establishment Clause is evolving in a way that is inconsistent with

both of these polar positions. First, the Supreme Court has been moving toward permitting government to provide direct assistance to the secular functions of religious

organizations. The Court’s opinions in Bowen v. Kendrick, 487 U.S. 589 (1988),

Agostini v. Felton, 521 U.S. 203 (1997), and most recently in Mitchell v. Helms, 530

U.S. 793 (2000), all uphold government provision of such assistance so long as the

overall program is religion-neutral and there are programmatic safeguards against

diversion of government aid to religious use.6 Second, the Court has been moving

away from a categorical prohibition on the distribution of government resources to

so- called ‘‘pervasively sectarian’’ organizations. Although Bowen v. Kendrick, decided in 1988, had seemed to reinforce the vitality of that category, the recent deciVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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7 Id. at 826-829. Chief Justice Rehnquist joined in this opinion, suggesting that he no longer

takes the view, adopted in his opinion for the Court in Bowen v. Kendrick, that the Establishment Clause requires a categorical prohibition on government assistance to ‘‘pervasively sectarian’’ organizations. For my own view of the anti-Catholic bias associated with the origins of

the concept of ‘‘pervasively sectarian’’ organizations, see Ira C. Lupu, The Increasingly Anachronistic Case Against School Vouchers, 13 Notre Dame J. of Law, Ethics, & Public Policy 375,

385-88 (1999). 8The Supreme Court has long adhered to this proposition. See, e.g., Hunt v. NcNair, 413 U.S.

734, 743 (1973) (government may not fund ‘‘specifically religious activit[ies] in an otherwise substantially secular setting.’’); accord, Tilton v. Richardson, 403 U.S. 672 (1971). 9 Agostini, 521 U.S. at 222-223.

10 Id. at 234. See also Mitchell, 530 U.S. at 844-45 (O’Connor, J., joined by Breyer, J., concurring). 11This testimony does not address the device of government vouchers, made available to service beneficiaries and redeemable by faith-based providers. Such a device, which involves the intervening private choice of beneficiaries in the selection of faith-based providers, appears to

stand on safer constitutional ground than direct grants to, or contracts with, religious organizations, in which government officials themselves select religious providers. Even such voucher

programs, however, must be designed to facilitate the purchase of social services with secular

value. The validity of such voucher programs may well turn on the overall neutrality between

faith-based and secular providers in the mix of those eligible to receive and redeem vouchers

in any particular jurisdiction. 12 42 U.S.C. at sec. 604a(j). See also H.R. 7, sec. 201(i) (‘‘No funds provided through a grant

or contract to a religious organization to provide assistance under any program described [herein] shall be expended for sectarian worship, instruction, or proselytization.’’) 13For a recent and illustrative example of a court limiting government support for Alcoholics

Anonymous, see DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397 (2nd Cir. 2001).

See also Warner v. Orange County Dept. of Probation, 115 F.3d 1068 (2d Cir. 1997), reaff’d after

remand, 173 F.3d 120 (2nd Cir), cert. denied, 528 U.S. 1003 (1999) (county may not condition

probation on participation in Alcoholics Anonymous, because of AA’s religious content).

sion in Mitchell v. Helms has undermined it considerably. In Mitchell, a four-Justice

plurality repudiated the idea of a separate juridical category of ‘‘pervasively sectarian’’ organizations,7 and the concurring Justices, while not joining in this explicit

repudiation, refused to abide by any such categorization and approved of aid for secular educational purposes to highly sectarian schools.

Indeed, the categorical prohibition on direct government transfers to ‘‘pervasively

sectarian’’ organizations is deeply flawed. Courts and agencies have no business trying to measure the degree of sectarianism of any particular group, especially when

sectarian commitments are difficult to understand from the outside. Government

may not finance religious exercises and practices, but questions of whether government is doing so should be analyzed program-by-program, practice-by-practice, rather than on the basis of gross generalizations about religious organizations as a

whole.

The law of the Establishment Clause has thus been changing in ways that are

consistent with the philosophy of Charitable Choice. Government may become a

partner in the secular activities of faith-based organizations whose efforts advance

secular purposes, but may not become a partner in—nor regulate—the private

project of religious worship, transformation, and belief. These latter concerns, like

matters encompassed by the right of privacy, are in our constitutional scheme beyond the scope of government’s jurisdiction; such distinctively religious concerns

must be left in private hands to ensure their integrity and to keep government within the bounds of the temporal.8 Government may not act with the purpose or effect

of ‘‘advancing or inhibiting religion,’’ 9 and ‘‘excessive entanglement between government and religion’’ 10 will be among the criteria used to measure such ‘‘inhibition.’’ If these evolving principles are applied to Charitable Choice, certain conclusions

and concerns follow. Foremost, the government may finance those aspects of social

service programs that are secular in content (e.g., food, office supplies, secular educational materials), but it may NOT directly pay for goods or services with religious

content.11 Thus, the provisions of existing and proposed law that prohibit government monies from being used for ‘‘sectarian worship, instruction, or proselytization’’ 12 are required by the Constitution, but do not go far enough. Government

money may not be used to pay directly for any materials, any counseling, or any

other services that incorporate concepts of divine, ultimate, or superhuman authority; the teachings of Alcoholics Anonymous, for example, which encourage participants to surrender their lives to divine custodianship, are not properly made the object of direct government support.13

The distinction between secular goods and services, for which government may

pay, and goods or services with religious content, for which government may not

pay, bears acutely on the design of Charitable Choice programs. In light of the Supreme Court’s repudiation of the concept that some organizations are so ‘‘pervaVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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14 In her crucial concurring opinion in Mitchell v. Helms, Justice O’Connor suggested a distinction between goods and services in her willingness to uphold the provision of educational

materials to sectarian schools, while adhering to her ruling in Grand Rapids v. Ball, 473 U.S.

373 (1985), that government-financed salary supplements paid to teachers in such schools to

teach secular subjects in after-school programs were unconstitutional. One might fairly presume,

Justice O’Connor suggested, that such teachers would continue to advance the school’s religious

mission in the after school program. 530 U.S. at 857-860. 15The facts of Mitchell v. Helms revealed that Louisiana had required all nonpublic schools

to certify that the materials and equipment provided by the state would be used only for ‘‘secular, neutral, and nonideological purposes,’’ as required by federal law, and Justice O’Connor’s

concurring opinion approved of this device to avoid excessive entanglements and help insure

compliance with constitutional limits. 530 U.S. at 861-64. 16There is a difference of constitutional stature between requirements of segregation of accounts—those reflecting only secular expenditures which government may lawfully make—and

requirements of allocation of expenditures between the religious and the secular. The latter

would permit government to pay for one half of the overall expense for a clergy member’s salary

if one-half of the clergy member’s work were secular. This sort of allocation is constitutionally

insufficient, because such a scenario would not permit the confident assertion that government

had not directly financed religious activity and because monitoring the allocation would invite

impermissible government scrutiny of the work of the clergy. By contrast, account segregation

only requires the government to look at the expenditures in the exclusively secular category to

which government funds had been devoted. Indeed, H.R. 7 endeavors to respond precisely to

these concerns by requiring segregation of government funds into a separate account or accounts, and providing that ‘‘[o]nly the government funds shall be subject to audit by the government.’’ H.R. 7, Title II, sec. 201(h)(2). 17See Charles Glenn, The Ambiguous Embrace: Government and Faith-Based Schools and Social Agencies (Princeton 2000), at 62-73; see also Charitable Choice Dance Begins, Christianity

Today, April 2, 2001 (describing conflict among Teen Challenge leaders over whether to accept

government funds, which in turn would force a secularization of their program). 18 Justice O’Connor suggested this analogy in her opinion for the Court in Agostini v. Felton,

521 U.S. 203, 235 (1997).

sively sectarian’’ that they may never be the recipients of government assistance,

contracts and programs should be designed to permit faith- based organizations, and

those who monitor or audit them on behalf of the government, to separate expenditures into categories of those eligible for government support and those ineligible.

Goods and materials are obviously easier to monitor and label in these ways than

are services, especially counseling services. Goods may be readily inspected for religious content without any governmental intrusion into private religious practices.

The content of counseling services, by contrast, will be determined in part by individualized interactions between counselors and beneficiaries.14 Moreover, some

kinds of counseling more readily invites religious influence than others—for example, counseling those who have problems with substance abuse seems more likely

to involve matters of the spirit than does job training. If there lurks a danger of

‘‘excessive entanglement’’ between government and faith-based organizations in

Charitable Choice programs, the monitoring of counseling services is the flash point

for that danger. Perhaps the best solution to this problem is a combination of clear

guidelines to faith-based organizations regarding the required secularity of the content of their government-financed services, and a requirement that all organizations

certify that such services have been rendered in compliance with such requirements.15

In any event, such separation, monitoring and auditing of federally funded activities are essential to the constitutionality of particular grants, contracts, and practices.16 If faith-based organizations are unwilling to tolerate such segregation and

monitoring of their expenditures, they should not participate in government-financed programs. The auditing process should examine each program, not each

faith-based provider viewed as a whole. Some programs operated by faith-based organizations may be so entirely infused with religiosity in their philosophy and methods of service that segregation of secular and religious expenditures will be impossible, at least with respect to counseling services. Teen Challenge, for example, is

a well- publicized substance abuse program that has been described in precisely this

way.17 If government auditors are unable or unwilling to examine expenditures for

religious content, government should not enter into these arrangements.

One additional concern arising under the Establishment Clause is that charitable

choice programs may be thought to ‘‘endorse’’ religious belief in violation of the Constitution, in a way analogous to government support of sectarian religious symbols

in public places.18 I do not give such objections much credence. First, unlike government support of religious holidays or symbols, each instance of which can be identified and analyzed, Charitable Choice programs involve religion-neutral umbrellas

under which many private programs are sponsored. Second, that the religious

speech of religious organizations must be private—and privately financed—underVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6621 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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19See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (private religious speech in a public, state-owned forum cannot be attributed to the state). 20Whatever force arguments based on government endorsement of religious speech may have

in the setting of voucher programs to support private education, in which the mix of participating schools may be highly tilted toward the religious variety or towards a particular faith,

see Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000), both federal and statewide social

service programs ordinarily include a wide variety of options, secular and otherwise, and overall

government neutrality between religion and secularity is therefore much easier to identify and

defend. 21Some religious leaders have already expressed fears that Charitable Choice programs will

lead to government financing of religious movements of which such leaders in some fashion disapprove. See Leslie Lenkowsky, Funding the Faithful, Why Bush is Right, Commentary, Vol.

111, No. 6 (June 2001) 19, 20. A survey done for the Pew Forum on Religion and Public Life

reported recently that ‘‘Most Americans would not extend [the right to participate in government-financed social services] to . . . Muslim Americans, Buddhist Americans, Nation of Islam

and the Church of Scientology. Many also have reservations about [including] the Church of

Jesus Christ of Latter-Day Saints . . .’’ See Faith-Funding Backed, But Church-State Doubts

Abound, wysiwyg://12/http://pewforum.org/events/0410/report/execsum.php3. 22 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); Larson v.

Valente, 456 U.S. 228 (1982). Related questions would arise if contracting officers systematically

favored secular providers over religious providers, or systematically preferred the faith-based

over the secular. 23The criteria currently employed by government grantors and contracting agencies do not always inspire confidence in this regard. See, e.g., Department of Health and Human Services,

Substance Abuse and Mental Health Services Administration, Center for Substance Abuse Prevention, Guidance for Applicants No. SP–01–006, Minority HIV Prevention Initiatives (Issued

March 2001), at 9: ‘‘Funding Criteria Decisions to fund a grant are based on: 1. The strengths

and weaknesses of the application as determined by the Peer Review Committee 2. Concurrence

of the CSAP National Advisory Council 3. Availability of funds 4. Overall program balance in

terms of geography and race/ethnicity of target populations.’’ 24See, e.g., Lakewood v. Plain dealer Publishing Co., 486 U.S. 750 (1988) (invalidating a city

ordinance requiring a permit from the city’s mayor in order to place newsracks on public property, because the permit scheme impermissibly conferred unbridled discretion on the mayor);

Hague v. CIO, 307 U.S. 496 (1939) (holding unconstitutional a scheme requiring a permit for

assemblies in the streets and parks, because the standards for permits did not adequately curb

abuses of discretion); Saia v. New York, 334 U.S. 558 (1948) (invalidating ordinance requiring

permit to use a sound truck because of inadequacy of standards to confine impermissible uses

of discretion.). 25See Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 698–99 (1970) (Harlan, J., concurring) (remarking on the value of property tax exemptions for broad classes of property owners, including religious organizations, as a useful device for checking abuse of discretion by taxing officers, and suggesting that discretionary subsidies to religious organizations might invite

such abuse).

mines the argument that it may be attributed to the government for Establishment

Clause purposes.19 If constitutional limitations concerning beneficiaries’ rights and

providers’ duties are followed, beneficiaries and others should be able to discern that

the government message in a charitable choice program is that secular gains will

follow from the pursuit of work, abstention from drugs, etc., and that any religious

message is separable, private, and attributable to the religious entity alone.20

IV. PREVENTING SECTARIAN DISCRIMINATION AGAINST PROVIDERS.

An issue that has been given insufficient attention in the Charitable Choice debate thus far arises from the danger that government contract officers will invidiously discriminate against certain religious denominations in the making of awards.

It is easy to see how faiths that are widely adhered to and/or well-respected in a

particular state or local community might have advantages in the competition for

federal social service funds; inversely, faiths that are less widely followed in the

U.S., either because they depart from our predominant Judeo-Christian tradition, or

for some other reason become the target of bias or suspicion, may labor under comparable disadvantages.21 Even if those authorized to enter into contracts on behalf

of the government do not share any such bias, bureaucratic caution and fear of public criticism may lead such officers in the same direction. This sort of sectarian discrimination, whether overt or covert, is presumptively unconstitutional.22

Although nothing in any existing or proposed legislation authorizes such discrimination, there are not adequate safeguards against it. One such safeguard would involve tightening up the awards criteria utilized by contracting agencies.23 More precise criteria would facilitate the monitoring of contracting agencies and would likely

improve their accountability to norms of nondiscrimination. This is a constitutional

strategy widely used in the realm of freedom of speech and assembly,24 and would

be salutary in this context as well.25 Congress should consider requiring all agencies, state or federal, which enter contracts with or make grants to faith-based orgaVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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26 An extremely thorough analysis of this question can be found in Memorandum for William

P. Marshall, Deputy Counsel to the President, from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, Re: Application of the Coreligionists

Exemption in Title VII of the Civil Right Act of 1964, 42 U.S.C. sec. 2000e-1, to Religious Organizations That Would Directly Receive Substance Abuse and Mental Health Services Administration Funds Pursuant to Section 704 of H.R. 4923, the ‘‘Community Renewal and New Markets Act of 2000’’ (copy on file with the author of this testimony). 27Title VII, Civil Rights Act of 1964, sec. 703(a), 42 U.S.C. sec. 2000e-2(a). 28Title VII of the Civil Rights Act of 1964, sec. 702(a), 42 U.S.C. sec. 2000e-1(a) (1994). The

original statute enacted in 1964, limited the exemption to employees involved in carrying out

‘‘religious activities’’ of such organizations; the 1972 amendments to Title VII deleted the word

‘‘religious’’ as a modifier of activities in the exemption, so as to extend the exemption to employees engaged in any of their employers’ activities. For discussion of the reasons for this extension,

see Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v.

Amos, 483 U.S. 327, 335–36 (1987). 29 None of these enactments or proposals would relieve religious organizations of other antidiscrimination norms, such as those which forbid discrimination based on race. See, e.g. H.R.

7, sec. 201(c)(3). 30Such discrimination would violate the First Amendment’s Religion Clauses, the Fifth

Amendment’s Due Process Clause, and the prohibition on Religious Tests for public office in Article VI. 31See Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (private school receiving over 90% of its

funding from the state is not a state actor when it fires a teacher because of her speech activities); Blum v. Yaretsky, 457 U.S. 991 (1982) (private nursing home is not a state actor when

Continued

nizations, to specify award criteria in ways that are sufficiently precise and transparent to permit evaluation of the religious evenhandedness with which they are

employed.

V. HIRING DISCRIMINATION BY FAITH-BASED PROVIDERS.

Whether religious organizations may retain, in their government-funded programs, their statutory exemption from the federal ban on religious discrimination

in employment is a hotly disputed matter. The issue raises concerns of freedom of

association and workforce composition for such organizations, on the one hand, and

government guarantees of equality of employment opportunity for those who might

be hired to perform government-funded social services, on the other. Although current law leaves this precise question open, I believe that, with respect to employees

compensated with funds originating from the federal government, Congress may either preserve the exemption to cover such employees or refuse to preserve it; that

is, the decision about the scope of the exemption within Charitable Choice programs

is a matter of policy, not a matter upon which the Constitution dictates a result one

way or the other.26 I also believe that Congress should carefully gather information

about the costs and benefits of these policy options before committing in full to either.

For most employers in the U.S., Title VII of the 1964 Civil Rights Act forbids discrimination based on religion.27 For those organizations whose purposes and activities are primarily religious, however, the same statute provides an exemption ‘‘with

respect to the employment of individuals of a particular religion to perform work

connected with the carrying on by such [organization] of its activities.’’ 28 Current

Charitable Choice proposals preserve this exemption from the prohibition on religious discrimination in hiring to the federally funded activities of religious organizations.29

At first glance, the extension of the co-religionist exemption to government funded

positions seems troubling indeed. Religious discrimination ordinarily runs counter

to well- settled norms of equal employment opportunity in America. In most circumstances, such discrimination is unfair, invidious, and inefficient in its exclusion

of highly qualified individuals from employment. When the employment is for activity designed to aid our neediest or most troubled citizens, exclusion of capable workers on religious grounds may undercut national purposes in delivering the best social services. Moreover, co-religionists within a faith-based organization may be

more tempted than others to inject religious content into government-funded programs. Government itself may not discriminate based on religion in hiring for government positions, 30 and the question arises whether government may authorize

the use of tax dollars to do what government itself may not.

For a variety of reasons, however, extension of the co-religionist exemption to federally funded activities carried out in religious organizations does not offend the

Constitution. First, discretionary action taken by private parties with the use of government funds ordinarily does not constitute ‘‘state action’’ subject to the Constitution.31 The decision by a religious organization to limit hiring to co-religionists is

40

it decides to transfer patients supported by Medicaid, a government-financed program, from one

level of care to another). 32See Norwood v. Harrison, 413 U.S. 455 (1973) (state which has engaged in de jure racial

segregation in public schools may not lend textbooks to private segregated schools). 33See Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). 34For a description of the role of religious organizations in the provision of such services in

early America, see Marvin Olasky, The Tragedy of American Compassion (Regnery 1992), at 6– 23.35See Amos, 483 U.S. at 340-46 (Brennan, J., concurring). 36 Extension of the coreligionist exemption to government financed employment within religious organizations may also be defended as an equalizer, putting such organizations on the

same footing as ideological organizations which can favor their own sympathizers whether or

not the employment positions are government-financed. The ACLU or the Sierra Club may limit

hiring for all positions to those who share their beliefs, and the co-religionist exemption permits

religious organizations to do likewise. To be sure, this argument is imperfect to the extent that

religious affiliation is a matter of identity or narrow theological creed rather than general religious sentiment; the coreligionist exemption permits exclusion by religious organizations of

those who share all of their social values, and their enthusiasm for such values, but who do

not share their particular method of worship. Nevertheless, religious organizations are uniquely

situated in connection with the question of religious discrimination in employment, and this

uniqueness provides a constitutionally sufficient reason to treat them differently from secular

organizations for these purposes.

not attributable to the government, even if government funds are paying the employees’ salaries, unless the government requires the discrimination. Because the coreligionist exemption permits, but does not require private discrimination, the government cannot be held constitutionally responsible for it.

There are two possible exceptions to this principle suggested by current law. First,

government may not subsidize private discrimination if the subsidy will tend to undercut some constitutional duty of the state.32 Second, if the state delegates exclusive functions of sovereignty to private parties, constitutional requirements (including those of nondiscrimination in employment) will attach to the delegation.33 Neither of these exceptions, however, fits the question of extending the co-religionist

hiring exemption to federally funded social services. Discrimination in favor of coreligionists by some faith-based organizations does not undercut any state responsibility to ensure that it refrain from religious discrimination itself; rather, the exemption preserves the state’s neutrality toward a particular private choice. And the

provision of social services for the poor is far from an exclusive function of sovereignty; religious organizations have been instrumental in such activity for so long

that one is tempted to say that support for social services involves the state in ‘‘religious action,’’ rather than involving religious organizations in ‘‘state action.’’ 34

Second, there are affirmative reasons, rooted in freedom of religious association

and national employment policy, to preserve the co-religionist exemption in government-financed programs. The existing co-religionist exemption in Title VII rests in

part upon a judgment that religious organizations should be free to pursue religious

cohesion and common values among their employees, whether or not such employees

have religious duties.35 Of course, pursuant to Establishment Clause principles discussed above, employees are forbidden from engaging in explicitly religious activity

on their government-financed time. Nevertheless, religious organizations may be religiously motivated in choosing to provide social services, whether or not the services

themselves are intrinsically religious. Accordingly, the sense of community and religious spirit on which success of the group’s efforts depend may be hampered by a

requirement that members of all faiths be considered in hiring. To the extent this

occurs, the overarching policy concern for the best possible provision of social services by religious organizations may be undermined.

Moreover, the employees working for religious organizations pursuant to government contracts may also be performing other duties that are privately financed. In

such circumstances, elimination of the co-religionist exemption for government-funded jobs would force religious organizations to split employment opportunities between co-religionists in the privately financed positions and non-co-religionists in

the government-financed jobs (with whatever inefficiencies such job-splitting entailed), or to hire non-co-religionists to do jobs formerly reserved for co- religionists.

To the extent the co-religionist exemption is a means for harnessing the energy of

faith in community service rather than merely a way to reserve employment for

‘‘members of the club,’’ the creation of disincentives to hire co-religionists may undermine the private as well as the publicly supported activities of faith-based

groups.36

Despite these considerations supporting the constitutionality of preserving the coreligionist exemption to government-financed employment positions, Congress may

41

37 In at least one case of federal grants for which faith-based organizations are explicitly eligible, Congress has indeed chosen not to so preserve the exemption. With respect to ‘‘formula

grants’’ made to the states by the Substance Abuse and Mental Health Services Administration

of the Department of Health and Human Services, religious discrimination is completely prohibited. 42 U.S.C. sec. 300x–57(a)(2) (1994). 38With respect to clergy positions, the courts have held that exemption from all nondiscrimination law is constitutionally required. See, e.g., Rayburn v. General Conference of Seventh Day Adventists, 772 F.2d 1164 (4th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). 39 By contrast, self-serving declarations like those in H.R. 7 concerning whether receipt of government funds constitutes aid to the receiving organization (as contrasted with its beneficiaries),

see sec. 201(c)(2), or whether receipt of such funds constitutes government endorsement of religious belief, id. at sec. 201(c)(3), add nothing to the facial validity of congressional enactments.

The questions addressed by such provisions must be independently asked and answered by the

courts in appropriate circumstances. 40There have been lawsuits arising over the application of Charitable Choice programs within

particular religious providers. See Funding of Faith Works Challenged, Milwaukee Journal Sentinel, Oct. 13, 2000 (describing lawsuit against Wisconsin for aiding the religious activities of

Faith Works, an addiction recovery program); ‘Charitable Choice’ Gets Challenge; Suit targets

state spending on church-based social work, Dallas Morning News, July 25, 2000, p. 23A (describing suit against Texas officials for supporting religious activities in the Jobs Partnership

of Washington County, Texas.) Such suits do not necessarily signify that courts generally can

police these matters effectively, nor do such suits, if successful, necessarily mean that violations

of the Constitution within such programs are widespread.

of course choose not to so preserve it.37 Whether or not the exemption is required

by the Free Exercise Clause of the Constitution with respect to privately supported

positions within religious organizations,38 Congress has the authority to impose full

and complete nondiscrimination requirements with respect to government financed

employment positions. Because religious organizations may forego such funding, or

accept it and continue to hire only co-religionists for their privately financed positions, the free exercise rights of such organizations would not be unconstitutionally

compromised by the failure to extend the co-religionist exemption to government financed employment. Conditioning government funds on full nondiscrimination in

employment with those funds would obviously serve legitimate national interests in

equal employment opportunity, and therefore would fall within the legislative prerogative.

Accordingly, Congress may constitutionally choose between 1) preserving the coreligionist exemption from nondiscrimination requirements within the federally financed activities of religious organizations, because the exemption may enhance

these organizations’ religious freedom, organizational efficiency, and service delivery; or 2) refusing to preserve the exemption in such programs, because it undercuts

equality of employment opportunity and may actually lead to hiring those not best

able to deliver social services to their intended beneficiaries. This choice is one for

Congress to make, and is not dictated by the requirements of the Constitution. Instead, the choice should be controlled by a careful, empirical assessment of the relative costs and benefits of the various policy options. Because such an assessment

has not, to my knowledge, yet been undertaken, I urge caution in the legislative approach to this delicate question.

VI. FACIAL VALIDITY VERSUS VALIDITY AS APPLIED.

The Supreme Court in Bowen v. Kendrick, 487 U.S. 589 (1988), emphasized the

distinction between the facial validity of a government program which authorizes direct transfers of material assistance to religious organizations, among others, and

the validity of particular grants made or contracts entered under such a program.

The kinds of safeguards, alluded to above, which Congress has enacted in earlier

Charitable Choice legislation will go a long way toward ensuring that any subsequent legislation will also survive attacks on its facial validity. Thus, provisions requiring 1) the inclusion of secular as well as religious providers, 2) respect for religious freedom of beneficiaries and providers, 3) prohibitions on religious content in

goods and services for which funds directly transferred from government are spent,

and 4) nondiscrimination in the distribution of funds will go a long way toward ensuring that the overall scheme will survive constitutional challenge.39

The Congress should be mindful, however, that much of what will go on in the

contracting process, and even more of what will transpire in the actual delivery of

these services, will be difficult to monitor and is unlikely to find its way into the

courts.40 Beneficiaries may consent to unconstitutional practices, or may feel too dependent upon providers to complain even if they do not consent. Accordingly, any

such legislation should provide for mechanisms of constitutional accountability, pursuant to which beneficiaries, providers, agencies of state and local government, civil

liberties groups and others can be assured that constitutional concerns are being reVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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41State and local contracting agencies in particular need concrete guidance concerning relevant constitutional limitations. The current Charitable Choice contract in the State of Texas,

for example, purports to limit the religiosity of the efforts of faith-based organizations performed

under contract with the state by providing that ‘‘The purpose of this contract is the provision

of social services; no state expenditures have as their objective the funding of sectarian worship,

instruction, or proselytization.’’ Texas Department of Human Services, Contract for Local Innovation Projects, Section II.F. (copy on file with the author of this testimony). This provision,

which focuses on state purposes rather than provider behavior, seems wholly inadequate as a

mechanism for communicating to providers that their state-financed efforts—means as well as

ends—must be entirely secular in content. I do not attribute this choice of language in the Texas

contract to any sort of constitutional bad faith; rather, it seems to me to reflect a lack of awareness or a deep uncertainty on the part of state officers of precisely what the Constitution requires of them in these circumstances.

spectfully observed.41 Such concerns should be rigorously enforced by government

officers to whom beneficiaries and providers alike should have easy access. Moreover, the auditing practices used, auditing results obtained, and performance evaluations conducted by or for government agencies should be widely and readily accessible.

Mr. CHABOT. I want to compliment all the witnesses for staying

within the time constraints very well. Sometimes it doesn’t go all

that well, and all the witnesses were very, very good in that respect.

Professor Lupu, I would like to begin with you if I could, maybe

let you expand a little bit on whether or not we should trust faithbased organizations essentially to follow the law. Haven’t arguments that Members of faith-based organizations simply cannot be

trusted to follow the guidelines preventing the use of government

funds for proselytizing activities been decisively rejected by the Supreme Court? Doesn’t both plurality opinion and the opinion of Justice O’Connor, which was joined by Justice Breyer in the Mitchell

vs. Helms case, stand for the proposition that Members of religious

organizations should be presumed to act in good faith? Which is I

think what you basically indicated, the law was heading in that direction.

Mr. LUPU. Mr. Chairman, I believe you have stated accurately

what those opinions reflect, that there will be a presumption that

Members of religious organizations will act in good faith.

But if I may elaborate on this question just a bit, I think in a

great many circumstances, Members of faith-based organizations,

they are not lawyers, they don’t have constitutional lawyers on

their staffs, and they are really not sure exactly what those requirements are. And the law on this subject has been in sufficient

flux that it seems to me very important that in any legislation of

this sort and in whatever contracts they may enter into with State

and local government, that they be given very clear guidance on

what those limitations are. I think clear guidance on what the limits are is very important in having this sort of scheme run in the

way that is consistent with the Constitution.

Mr. CHABOT. Thank you very much, Professor Lupu. I appreciate

it.

Professor Esbeck, if I could ask you to expound again on something that Professor Lupu brought up. Would you discuss what the

monitoring procedures that would be put in place under the proposed charitable choice programs would be to ensure that the religious organizations that would receive public funding do comply

with those procedures and how we would be protected to make sure

43

that we don’t have organizations going off in directions which

aren’t appropriate?

Mr. ESBECK. Sure, I would be happy to. Of course, the legislation, like all legislation, just begins to sketch the outlines of what

sort of monitoring and enforcement there would be for any funding

program. We start with the proposition that faith-based organizations are to be treated like other grantees. And so in that regard,

of course, they can be audited, and those audits would be announced or unannounced. For very large grantees, the Office of

Management and Budget requires that they secure a certified public accountant, and the CPA comes in and does a thorough-going

audit according to OMB guidelines. And that is each year, and then

that audit, along with any variances that are detected and a plan

to correct those problems, is filed with the government, the

grantors, so that they can see what kind of job that faith-based organization is doing.

In addition, of course, there is some self-enforcement, if you will,

because the beneficiaries themselves, the object of the social service, is given a private right of action, and they have rights under

the statute. And if they feel that their rights are being violated,

they are being discriminated against or something is occurring in

the delivery of services that is contrary to their rights, they then

can notify the faith-based organization of the problem, as well as

the government grantor, and bring a private cause of action if it

comes to that. Hopefully, it would be resolved informally.

Then the Department of Justice, going beyond H.R. 7, suggests

two additional rules of prudence, and those are set out in our written statement at the bottom of page 5 in a footnote where we block

out a suggested amendment. And there are two additional things

there, and there are also mentioned, I should say, at the end of my

statement footnotes 70 and 71. One is that there be, just for faithbased organizations, an annual requirement of a self-audit of the

critical provision. I say ‘‘critical’’ for church-State separation reasons, because that is where there is a requirement that there be

separation of sectarian activities from the government-funded program; and also that they self-audit themselves to make sure that

any beneficiaries who are participating in sectarian activities are

doing so of their own volition. And then in addition, there is this

separate certificate of compliance.

We wanted to impress upon these faith-based organizations that

they have special responsibilities to comply with this separation

and the voluntariness requirements, so that they would separately

sign off on those, and then there is an enforcement mechanism behind that certification.

Mr. CHABOT. Thank you very much, Professor. The bells that we

just heard indicate that there is a vote on the floor. So rather than

going into an additional 5 minutes at this time, we will go over and

vote and then come right back and continue with the witnesses, the

questions to the witnesses. So at this time we are in recess for

probably 10 minutes. Thank you.

[Recess.]

Mr. CHABOT. The Committee will come to order. If the witnesses

could take their seats again, we will get on with our questions. Before we get to the next questioner, I just wanted to recognize that

44

we are aware there are a number of faith-based organizations, Salvation Army and others, some homeless shelter folks. And we want

to thank you for your work and also we appreciate you being here

today to observe firsthand Congress as it deals with this very important issue and one of the President’s highest priorities. So we

welcome you here today, and we are happy that you were able to

come to Washington to see us acting on this issue.

And at this time I will recognize the gentleman from New York,

the Ranking Member, Mr. Nadler, for 5 minutes to ask questions.

Mr. NADLER. Thank you, Mr. Chairman.

First question for Professor Laycock. I was intrigued with your

three principles, because with one possible exception I think they

are the current law without—and certainly probably constitutionally mandated, some of them—without charitable choice.

Nondiscrimination versus religious organizations I would think

on an equal protection basis, if nothing else—I mean, I assume

that is the current law, and if it isn’t we should fix it. And we don’t

need charitable choice for that.

I assume that the Fifth Avenue Baptist Church Free Lunch Program, Inc. can compete on an equal basis with the Fifth Avenue

Block Association Free Lunch, Inc. for Federal funding. Is that not

the case, and that it would be illegal for government to discriminate vis-a-vis one or the other because one is affiliated with a religious group?

Mr. LAYCOCK. I think it should be unconstitutional for government to discriminate in that way. We don’t have a case that says

so. I don’t think the bureaucrats have the slightest idea that they

are under that restriction. This would make it a lot more visible.

Mr. NADLER. I don’t think anybody will—okay, but we don’t need

charitable choice for that. A simple—okay, let’s go further.

Deregulation of religious providers need not secularize itself.

Again, the church doesn’t have to secularize itself; it is simply that

the provision of the social service must be done in a secular manner. Is that not the old law?

Mr. LAYCOCK. I am not sure where the requirements in the old

law come from, but it certainly seems to be the conventional wisdom that the separately—that there needs to be a separately created organization to take the money, and that that organization

needs to be secularized.

You know, I think the people who say don’t offer all this money

to religious organizations, you will bribe them into secularizing

themselves, are describing the status quo. They are describing the

conditions that the executive currently puts on these grants when

they go to religiously affiliated organizations.

Mr. NADLER. And do you oppose that condition for the provision

of the service?

Mr. LAYCOCK. I think if we had a court that cared about free exercise, that would be an unconstitutional condition. The government should not say to religious organizations, if you get rid of

enough of that religious stuff we will give you some money.

Mr. NADLER. Well, not get rid of that religious stuff we will give

you some money, but don’t put the religious stuff in the provision

of the federally funded service; isn’t that the key distinction?

Mr. LAYCOCK. I think that is a distinction without a difference.

45

Mr. NADLER. Let me ask you this then, Professor, because I think

here we are coming to the nub of it. Certainly we know that a

church may discriminate on the—may say we don’t hire women

rabbis, we don’t hire women priests, cantors, whatever. No one

quarrels with that. I have assumed that the law has always been

that if you are running a hot lunch—I will keep using this example

because it is easy, if you are running a hot lunch program, you

can’t discriminate on the basis of anything, sex, religion, whatever,

and who ladles out the soup or who gets the soup. That is the current law. Do you think that should change?

Mr. LAYCOCK. I think if you are running a hot lunch program,

and it is a religious organization running the hot lunch

program——.

Mr. NADLER. With its own money. But I am talking about with

government money.

Mr. LAYCOCK. With government money, I think plenty of people

disagree with that. The Title 7 exemption doesn’t care whether you

have government money or not. There is at least one district court

case in Mississippi that says if it is funded with government

money, it must be a secular position. There are other cases that go

the other way.

Mr. NADLER. That is not clear in current law.

Mr. LAYCOCK. Pardon?

Mr. NADLER. With government money. Whether you can discriminate in who ladles out the soup hired with government money is

unclear under current law?

Mr. LAYCOCK. I think it is clear enough under the statute, but

there is at least one case that says you lose the exemption, which

is why I think people are pushing this language.

Mr. NADLER. Let me ask the following because I think this goes

to the nub of it. Somebody’s running a church or church-affiliated

501(c)(3); either way, is running a drug detoxification program. The

drug detoxification says in effect, stop using drugs because it is

good for your health, and anyway it is illegal. Nobody has a problem with that. The drug detoxification program says stop—and pay

for it with Federal money; otherwise it is not an issue, obviously.

Paid for with Federal money, the drug detoxification program says

to the addicts, stop using drugs because Jesus wants you to stop

using drugs. Is that constitutional? Should it be permissible with

Federal money?

Mr. LAYCOCK. It is not constitutional for the government to pay

for that. I think it is constitutional for the government to pay for

the secular portion of the services that that group is delivering and

for them to also offer that same message, religious message, in addition to the secular treatment to those same people.

Mr. NADLER. But if the religious message is the cure—in other

words, as I understand part of the reasoning or the alleged rationale for faith-based social services, aside from the discrimination

question, it is for many people a religious motivation is more effective, allegedly, and probably true in many cases; a religious motivation is more effective in getting somebody off drugs or not to be a

recidivist and going to prison or whatever. So if it is intimately

bound up, stop using drugs because Jesus wants you to, stop stealVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
46

ing everybody’s cars because Jesus wants you to, can the government pay for that—in effect pay for that message?

Mr. LAYCOCK. I don’t think government can pay for that message, but neither should government require that that message be

delivered by some other organization in some other place on some

other day. To get the grant or the contract, the organization has

to offer some secular treatment that the government can pay

for——. Mr. CHABOT. The gentleman from New York is recognized for an

additional minute.

Mr. LAYCOCK. But if it does that, then it should also be able to

say Jesus will help you achieve those goals.

Mr. NADLER. Let me ask Rabbi Saperstein to comment on the

same question.

Mr. SAPERSTEIN. It would seem, for example, in your drug rehabilitation program that from—if I understand Professor Laycock— you can have a program in which the people running it said, ‘‘We

have a 2-hour program here, and there are two parts to it. The first

hour we have drug counselors, paid for by government money, and

we don’t put religious content; and the second hour we are doing

it, but we regard this program as a whole. This won’t work for you

unless you go to both parts. We can’t make you do it, but we are

telling you, you are not going to have a success without both.’’ The

notion that these people aren’t, in some way, being coerced to participate in it and that these are really functionally very different

things that are constituted and administered, troubles me.

Mr. NADLER. Do you think that is okay constitutionally?

Mr. SAPERSTEIN. No, I don’t.

Mr. NADLER. Is it permitted under current law? Would it be permitted under charitable choice?

Mr. SAPERSTEIN. It is not permitted under current law as I believe current law is generally understood. I agree with Professor

Laycock’s depiction on that. I do not believe that that would be constitutional if government money goes to that. The Court has always

said, because of the fungibility argument in pervasively sectarian

institutions, where religion is subsumed in all of this, that in essence you are paying for the entire thing.

Mr. CHABOT. The gentleman is recognized for an additional

minute.

Mr. NADLER. Thank you. I have one more question for you. At

a recent hearing, the executive director of Teen Challenge stated

that some participants become, quote, completed Jews, unquote,

after completing their substance abuse program. The President has

cited this program as a model program. How do you reconcile a program whose cure is a religious one, with a right under the statute

not to be proselytized to participate in the program, leaving aside

the offensive term, offensive to Jews, ‘‘completed Jew,’’ implying

that an adherence to the Jewish religion is not somehow complete.

Shouldn’t parents be concerned that if their kids are in trouble

and vulnerable, that government will fund someone to use that vulnerability to induce them to abandon perhaps their parents’ faith?

Mr. SAPERSTEIN. That is, of course, the human dilemma of all of

this. The people often being subject to this kind of social coercion

that is going on there and the pressure to participate are exactly

47

the people who are most vulnerable, at a time of their lives they

need the greatest help and are most subject to influence here. It

is why some of these programs work, but it is why the government

then is complicit in the religious activity that is going on. And the

notion you would correct that by having audits done by the very

institution that is perpetrating the problem—that is a bit bewildering to me.

Mr. CHABOT. The gentleman’s time has expired. The gentleman

from Tennessee, Mr. Jenkins, is recognized for 5 minutes.

Mr. JENKINS. Thank you, Mr. Chairman. And I apologize to the

Committee and to the witnesses for being late. I had another what

I consider to be very important meeting. So I would like to just use

my time if I could to catch up here, and go from my left to right

and just ask what the witnesses, what their testimony was very

briefly with respect to the constitutionality of Federal funds being

used by faith-based organizations under the concept that has been

advanced here. Professor Lupu, what was your——. Mr. LUPU. Well, the point I emphasized in my testimony and I

will repeat, and it is related to the question that was just asked,

has to do with what the government may pay for, what it may not

pay for. I believe the government may aid faith-based organizations

in delivery of secular social services, but the government may not

pay for goods or services with religious content. And goods are the

much easier case than services to segregate and to monitor.

Habitat for Humanity, to use an example that the President used

in his speech the other day, they are religiously motivated but they

acquire land and they help people build housing. So if the government helps pay for land or nails or lumber, then I think there is

not a great problem in the government supporting that sort of program.

When Teen Challenge, for a different sort of example, uses salvation as a method for helping people end substance abuse, I think

there is a severe constitutional problem in aiding that sort of service.

Mr. SAPERSTEIN. My position, Mr. Jenkins, is that the Supreme

Court has never upheld direct funding of pervasively sectarian institutions except in the most limited kinds of circumstances. And

it has always distinguished it where it has upheld aid, from direct

cash support for pervasively sectarian institutions. Its major concern is they are so bound together, that the religion is so infused

into the life of these entities, that support for one part of it is government support for religion that is prohibited by the Constitution.

And asking for a level playing field, treating religion just like everyone else, in the long run, is going to be harmful for religion,

jeopardizing all the special protections and exemptions that we

have.

Mr. JENKINS. Have there been cases since 1996 when the Welfare

Reform Act was passed and some Federal moneys have been used?

Mr. SAPERSTEIN. Yes. There are a number of cases coming up

through the courts. In Texas we had a case where Federal money

was used to buy Bibles as part of the program. That is now being

contested. My appeal at the end of my testimony was we have the

laws on the books for the last 5 years; let’s stop, don’t go any further, let’s look at those, see how they really work in real life. Let’s

48

really learn from them and let’s see what really happened to the

beneficiaries, let’s see how religion did get woven into it. Let’s assess whether it is doable and how to work it before we go on.

Mr. JENKINS. Thank you sir. Professor Laycock.

Mr. LAYCOCK. Well, I emphasize that charitable choice in principle protects the religious liberty of both the providers and the

beneficiaries. It guarantees no discrimination on the basis of religion. It deregulates the religious providers and it protects the beneficiaries by saying they can go somewhere else or they can refuse

to participate.

I agree with Mr. Nadler that we were down to the nub of it when

he was questioning me. Is it—do we better protect religious liberty

by saying here are billions of dollars in government money; to be

eligible for it you have to promise you will not add the religious

component of your message, you will not say that God can help you

get off drugs, or here’s money to suppress your religious message?

Or is it better for both the providers and the beneficiaries to say

we will give you money for the secular part of your program whether you add that religious message or not. We will not put religious

conditions on the money to the provider and we will protect the

beneficiary by really making available an alternate provider. You

have got to really do that or this program is a fraud.

But without that, Mr. Nadler’s solution is both the provider and

the beneficiary are deprived of that religious alternative.

The beneficiary didn’t get a choice between a religious and a secular provider and the provider has to supress any religious message that it might want to supplement the program with. And we

use tons of government money to bribe people into these programs

in which the religious alternative disappears and only the secular

alternative is available.

Mr. CHABOT. The gentleman is recognized for an additional

minute to let Mr. Esbeck address the questions.

Mr. ESBECK. Mr. Jenkins, if I could refer you to page 5 of my testimony, there is agreement here that government money cannot be

diverted to sectarian activity, or religious indoctrination as the

Court calls it. So what we have tried to do at the Department of

Justice was to recommend a refinement so that—and of course the

struggle is how do you prevent that from happening in a program

where sectarian activity may be going on by a faith based organization but they are also delivering social services.

And so the language that we recommend here, which is set out

at the bottom of page 5 in this footnote, the first sentence of course

says, the constitutional rule, that no government funds can be used

for sectarian activity and it says proselytizing, which is the example being here used, is an example obviously of sectarian activity.

But then the next sentence tries to give guidance, obviously broad

guidance because it is a statute, it is not regulations, it is not sort

of detailed implementation, nuts and bolts kind of things, but it

says that if the religious organization offers such activity, referring

back to sectarian activity, then it says that it shall be voluntary

for the individuals receiving the services and offered separate from

the program funded under this subpart.

So what it sets up is this: You have got a government funded

program where there is no sectarian activity going on. That is what

49

separation means. But the overall organization may be quite religious, but they are able to follow the rules so that the government

funds just come into this program where no sectarian activities go

on. If there are sectarian activities, it is outside of the government

funded program. That is the beginning, at least, of what begins to

approach some bright lines so that people know what they can do

and what they cannot do.

Mr. CHABOT. The gentleman’s time has expired. The gentleman

from Virginia, Mr. Scott, is recognized for 5 minutes.

Mr. SCOTT. Thank you. I would like to follow up on that idea because it seems under present law that as long as you are not, Mr.

Esbeck, as long as you are not actually paying for the specific proselytization that is going on it can be part and parcel of the drug

rehabilitation program.

My question is during the federally paid for drug counseling program, if somebody signs up for drug counseling services, are you

saying that they can fully participate in that program without any

proselytization, worship or religious instruction?

Mr. ESBECK. Your characterization of the present law I am not

sure if under——.

Mr. SCOTT. Under present charitable choice law you can convert

the drug counseling program into a worship service.

Mr. ESBECK. That is not—I am sorry.

Mr. SCOTT. So long as you are not paying for the assistant minister who is leading the group in prayer and worship.

Mr. ESBECK. That is not our current understanding.

Mr. SCOTT. Can you under present charitable choice law or under

the amendment in a drug counseling program, proselytize,

worship——.

Mr. ESBECK. Or do bible teaching, no.

Mr. SCOTT [continuing]. During the program?

Mr. ESBECK. Not during the government funded program.

Mr. SCOTT. Okay. Then what is the necessity of the separate but

equal program; if there is no worship going on during the program,

why do you need an alternative program?

Mr. ESBECK. What this permits, and I think I alluded to this in

my opening remarks, in the past if the organization was so-called

pervasively sectarian, then it was simply assumed that if money

came in, it would be diverted to sectarian activity. It was a rule

that they couldn’t even apply.

Mr. SCOTT. Let me get it clear. You can participate in the drug

counseling program and not be subjected to sectarian worship?

Mr. ESBECK. Are you talking about the prior situation or the current?

Mr. SCOTT. Under the current charitable choice law can you or

can you not be subjected, voluntarily, to sectarian worship during

the program?

Mr. ESBECK. Within the government funded program you should

not be subjected to worship.

Mr. SCOTT. And if there is a 2-hour block of time during which

the government funded drug counseling program is going on, there

shall be no sectarian worship or proselytization or advancement of

religion during that 2-hour period; is that what you are saying?

50

Mr. ESBECK. During the government funded program there

should not be worship or sectarian activity or proselytizing. I am

not sure about this 2-hour period that you are referring to.

Mr. SCOTT. The drug counseling program, if the drug counselor

says we are going to have a session from 6 to 8 on Tuesday night,

from 6 to 8 you are saying there should be no sectarian worship,

no proselytization, no attempt to convert or anything else during

that period of time?

Mr. ESBECK. During the government funded program there

should be no sectarian activity. I think the problem that we are

having in communication is how are you defining the government

funded program.

Mr. SCOTT. 6 to 8. Because your testimony talks

about—and this is what is difficult in getting a straight answer—

your testimony talks about people not being—beneficiary’s right to

avoid any unwarranted or unwanted sectarian practices. Suppose

they want to be prayed over and worshipped with during the program.

Mr. ESBECK. If someone who qualifies as a beneficiary under the

program wants to partake in sectarian activity, they need to go

outside that government funded program and they can voluntarily

participate in that.

Mr. SCOTT. Okay. So let’s get this straight: The beneficiary can

receive—cannot receive unwanted sectarian worship nor wanted

sectarian worship?

Mr. ESBECK. Inside the government funded program.

Mr. SCOTT. Inside the government program.

Mr. ESBECK. That is right.

Mr. SCOTT. If there is no religion going on, and let me tell you

that is 180 degrees contrary to what everybody else has been saying about this program, because if that is your position you have

no reason for an alternative program, a separate but equal program down the street, and you have to excuse—there is no reason

to be discriminating based on religion and employment if it is a totally secular program, no sectarian worship going on. Why do you

need to discriminate in that kind of activity anymore than any

other small organization needs to discriminate?

The fact of the matter is that everybody assumes that this avoid

unwanted sectarian practices means that you can get wanted sectarian practices, you can convert it into a worship service. If I am

wrong and you are right, then we don’t have a problem. Because

you don’t need to discriminate and you don’t need to proselytize

during the program and therefore you don’t need charitable choice.

Mr. CHABOT. The gentleman’s time has expired but the witness

has time to answer the question.

Mr. ESBECK. I don’t know if there was a question there, but there

were declaratory——.

Mr. SCOTT. The question——.

Mr. ESBECK [continuing]. Remarks. I would like to say that the

Department of Justice doesn’t agree with the characterization of

what everyone is saying about this program is different than what

we have said in our oral remarks here and in our written testimony.

51

Mr. SCOTT. Let me say that the chief sponsor in the Senate said

in a forum when you are talking about drug rehabilitation religion

is a methodology, that that is what you are paying for, the religious

conversion. If it is your position that during the 2-hour period of

the drug counseling program there should be no worship, no sectarian proselytization, then it begs the question what is charitable

choice all about if it is not funding the religion? Why do you need

charitable choice?

Mr. CHABOT. That is the Senate. We don’t care what they say

anyway. The gentleman from——. Mr. NADLER. A month ago you did.

Mr. CHABOT. Not anymore. The gentleman from—you want to

answer?

Mr. ESBECK. There was finally a question in that. And if once the

government funded drug rehabilitation program is over, or if there

is a break, as one of the hypotheticals I pointed out as an illustration in my written testimony, they then, for those who voluntarily

want to, they can outside of that program take place or take part

in sectarian activity if they want to.

Mr. SCOTT. Mr. Chairman, how is that different than present

law, the law without charitable choice?

Mr. ESBECK. Because under present law as Professor Laycock

said, the requirement that these groups not be pervasively religious

or pervasively sectarian in fact has driven them into being largely

secular throughout. What charitable choice does is it shifts the

focus. No longer is it what—who are you but the question is what

can you do. So you can remain pervasively sectarian but then have

a separate government funded program where you follow the rules.

Mr. CHABOT. The gentleman’s time has expired. The gentleman

from Indiana, Mr. Hostettler, is recognized for 5 minutes.

Mr. HOSTETTLER. Thank you, Mr. Chairman. I appreciate the

panelists, witnesses giving us the Court’s interpretation of the Constitution with regard to this very important issue. I would, however, note that I would agree with Thomas Jefferson in a letter

that he wrote to Charles Hammond, a friend, on August 18th,

1821, we are want to quote Jefferson often in this discussion on the

separation of church and state, and this is what he said to Mr.

Hammond in another letter: ‘‘it has long, however, been my opinion

and I have never shrunk from its expression that the germ of dissolution of our Federal Government is in the constitution of the

Federal judiciary, working like gravity by night and by day, gaining a little today and a little tomorrow and advancing its noiseless

step like a thief over the field of jurisdiction until all shall be

usurped.’’

And I think that is the discussion we are having today is that

we are not really talking about the law as established in the Constitution or in article 1, section 7, direction on how to actually create law, which doesn’t mention anything about the United States

Supreme Court. But there was a Supreme Court justice that

issued—that published his commentaries in 1833 about this very

important issue, the first amendment. And I hope that today we

don’t confuse what the current Court and recent Court has said

about the first amendment and the actual amendment to the Constitution itself.

52

Joseph Story said this, talking about—and first the prohibition

of any establishment of religion and the freedom of religious opinion and worship, he said this, ‘‘The promulgation of the great doctrines of religion, the being and attributes and province of one Almighty God, the responsibility to him for all our actions founded

upon moral freedom and accountability, the future state of rewards

and punishments, the cultivation of all the personal, social and benevolent virtues, these can never be a matter of indifference in any

well ordered community, never a matter of indifference,’’ or neutrality, if we wanted to use a different word today. ‘‘It is indeed difficult to conceive how any civilized society can well exist without

them. This is a point wholly distinct from that of the right of private judgment in matters of religion and the freedom of public worship according to the dictates of one’s own conscience.’’ So the idea of what the first amendment actually said and means

is in Story’s opinion wholly distinct from the right of private judgment in matters of religion and the freedom of public worship. He

went on to say, ‘‘Probably at the time of the adoption of the Constitution and of the amendment to it′′—meaning the first amendment now under consideration—′′the general if not the universal

sentiment in America was that Christianity ought to receive encouragement from the States so far as it is not incompatible once

again with the private rights of conscience and the freedom of religious worship.’’ He went on to say that the real object of the amendment was,

in Story’s words, ‘‘not to countenance much less to advance

Mohammedism or Judaism or infidelity by prostrating Christianity

but to exclude all rivalry among Christian sects and to prevent a

national ecclesiastical establishment which would give to an hierarchy the exclusive patronage of the national government.’’ Now, in some of the testimony that I received and that I have

perused today, we don’t even put quotation marks around the idea

of separation of church and state. We just assume it as being the

truth as if it was found somewhere in the Constitution. So we in

fact by not inferring the colloquial nature of that phrase, we actually in the words of the Judiciary Committee in 1853 and 1854

said, ‘‘Had the people during the revolution had a suspicion of any

attempt to war against Christianity, that revolution would have

been strangled in its cradle.’’

So in my opinion that is basically what the Judiciary Committee

150 years ago was talking about and it is what we are talking

about really here today. The Judiciary Committee said in that report, ‘‘What is an establishment of religion? It must have a creed

defining what a man must believe, it must have rights and ordinances which believers must observe, it must have ministers of defined qualifications to teach the doctrines and administer the

rights, it must have tests for the submission and penalties for the

nonconformist.’’ There never was an established religion without

these.

The Senate Judiciary Committee said this about the establishment of religion. ‘‘What is meant by the clause the establishment

of religion? It referred without doubt to that establishment which

existed in the mother country which was an endowment and the

public expense in exclusion of or in preference to any other by givVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
53

ing to its Members exclusive political rights and by compelling the

attendance of those who rejected its communion upon its worship

or religious observances.’’ I don’t think what we are talking about here today is exclusivity

on a national basis, universal exclusivity on a national basis, in

that we are allowing what I understand is virtually every organization that considers itself a faith based organization to take part,

whether or not they believe in the doctrines of the religion that was

so pointed out in Story’s commentary.

So—and I would just like to ask the witnesses’ opinion of a potential act that may be introduced, hypothetically speaking of

course. Say, for example, an act regulating the grants of land for

the Society of United Brethren for Propagating the Gospel, let’s

say, Among the Heathen. If that statute, for example, said that the

said surveyor general required to be caused several tracts of land

for the Society of, say, United Brethren for Propagating the Gospel

Among the Heathen, would you consider that to be unconstitutional?

Mr. LAYCOCK. That is a real statute. Congress really did it. It

was unconstitutional. I must say I support this program but not because the establishment clause is a noncompetition covenant

among Christians. And with all respect, relying on Justice Story

discredits this enterprise.

Mr. HOSTETTLER. James Madison didn’t believe so. That is why

he appointed him.

Someone said something about predating—it was actually signed

into law by George Washington, June 1, 1796. And that was after,

actually, the first amendment.

Mr. CHABOT. The gentleman is recognized for an additional

minute to allow——. Mr. LUPU. At the time that statute was drafted I guess it was

commonplace in this culture to consider the Members of native

American tribes——. Mr. HOSTETTLER. That was not my question. My question was is

it constitutional.

Mr. LUPU. It is not. It was not and even if it was then it surely

would not be so considered today and it should not.

Mr. SAPERSTEIN. In terms of your comment about President

Madison, I would hate to hold Presidents responsible for the decisions made by justices to the Supreme Court that they appoint

more generally.

I am concerned about the very rivalry that you talked about. I

think opening a door to have all religious groups in America competing for government funds exacerbates, and does not ameliorate,

that rivalry.

Mr. HOSTETTLER. Mr. Esbeck, do you have any? I am just curious. Because this is the Constitution Subcommitteee and we are

very concerned about constitutionality as opposed to anything else,

and that is what I was speaking of, according to the first amendment, and what was thought of by, for example, the President of

the Continental Congress that passed the——. Mr. ESBECK. Our enterprise here is to try and apply the establishment cause as interpreted by the United States Supreme Court.

They have the power of judicial review, Marbury v. Madison. EvVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6601 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
54

erybody here on both sides or three or four sides of the issue is trying their best to apply the Court’s law in Mitchell v. Helms, Agostini v. Felton, Bowen v. Kendrick, et cetera.

Mr. CHABOT. The gentleman’s time has expired. The gentleman

from Massachusetts, Mr. Frank, is recognized.

Mr. FRANK. It had not occurred to me that I guess the Northwest

Ordinance might in fact be a precedent for this. I haven’t had a

chance to look through it. I haven’t come across any reference to

heathens but perhaps it is in here in a footnote, and I will look further.

I appreciate Professor Laycock making clear what is and isn’t involved here and I think that was very helpful. Also to Professor

Lupu, I appreciate your making it explicit that not everything has

to be constitutionalized, that the Constitution is a broad framework

and that we have policy choices.

A few years ago there was a great deal of unhappiness because

some public housing authorities employed the Nation of Islam to

provide security in the public housing programs. I notice Federal

housing wasn’t one of the specific areas covered in this bill, crime

control. Now, my impression is that the Nation of Islam, judging

purely by results, did a very good job of enforcing order in the public housing projects, probably on an unarmed basis. For a variety

of reasons they did a very good job. Yet there was a great deal of

outcry, including the people who are now sponsors of the charitable

choice provision, objecting to that. Under the charitable choice provision would not the Nation of Islam have every right to in fact reapply if there were programs for—we have one in fact, the Public

Housing Drug Elimination Program. The President said he wanted

to get rid of it, but Secretary Martinez said it is ineligible activity

through other funding. Would charitable choice not empower the

Nation of Islam to go in there and say, well, look, judge me purely

on the results, I will hire who I want to hire and I will use my approach, Professor Lupu?

Mr. LUPU. Absolutely they would have the right to apply. It is

an organization that purports to deliver certain social service,

whether it is drug rehabilitation or whatever it is. They can say,

here we are, here are our merits.

Mr. SAPERSTEIN. If one of the postions was that they would only

hire African Americans and not whites, would that raise a problem

under this?

Mr. FRANK. Under the bill if it is religiously—I gather that is

probably their theology. In fact we did have the Nation of Islam

doing that a few years ago, I think it was in Baltimore, some other

places. It caused some unhappiness. Professor Laycock, what is

your view of this?

Mr. LAYCOCK. They are clearly entitled to participate and they

can’t be barred because people dislike their religion. If they have

racial qualifications in hiring that is not exempt under any language in this bill. They can’t discriminate on the basis of race. And

the Bob Jones case says preventing racial discrimination does

serve——. Mr. FRANK. Even if it is religiously—so if the Nation of Islam announced that it was going to hire white people, then they would

be—because—without affirmative action we can see that. I think

55

that is an honest answer. I think it is one of the problems. I do

think there are some inconsistencies with people who were against

it before.

But now the other issue I have, Professor Laycock, you said, I

thought very honestly, that without the right to participate in a

purely secular program for the beneficiaries this would be a fraud.

And I suggested the phrase before that we are talking not about

separate but equal, but secular but equal. The problem is, and this

is a very important problem I think for the people who want charitable choice, I have other problems with it, but taking what you

say, those of us who understand how we fund social service programs, the notion that would you have a completely parallel set of

programs out there everywhere and, again, you have said and you

have been honest about this, can’t be 20 miles away if the other

one is within your neighborhood. You have got to be able to get

there. The inefficiency is enormous. Plus you have this problem:

We have funding cycles. So we fund a program. And 3 months after

the funding cycle has ended, six people say I don’t like this program, I don’t want to become a completed Jew. I am very happy

incomplete. And we got to give them a separate program. Where

does it come from? Do we have a reserve pool to fund new things?

I understand what you say, taking it on that term, I think the

notion that you can create nationwide—and it really is like separate but equal but in this case secular but equal will be inherently

unequal, that there is simply no practical way to have in place a

complete alternative set of programs that meet the condition that

you say is necessary for this not to be fraudulent.

Mr. LAYCOCK. If you read my written testimony, you will see I

said yes, this is where the real issue is. How do we make this happen? This is a religious liberty bill, it is not a funding bill. The

higher the levels of funding the better this will work. If funding

continues to shrink, this thing will not work at all.

Mr. FRANK. Mr. Esbeck, speaking for the Bush administration,

we have just heard now from one of the articulate defenders of this

program that the higher the funding levels for various social services the better off we will be. The phrase ‘‘fat chance’’ comes to

mind as I look at the President’s budget. I am wondering would

you agree that there are financial issues involved in funding—well,

let me—first of all, would you agree with Professor Laycock that

the existence of a substantively equal set of programs for people to

participate in is essential to the fair workings of this program?

Mr. ESBECK. Well, there is one possibility and that is that rather

than have two programs in the same geographic area, the government when they get a religious objector to receiving services from

a faith based organization, let’s say it is a drug rehabilitation service, if they have one objector, they could simply employ a clinical

psychologist to deliver the services to that one particular individual. You don’t——.

Mr. FRANK. Home schooling.

Mr. ESBECK [continuing]. Have entirely separate or parallel programs.

Mr. FRANK. What if there were 7 or maybe there was 11. Maybe

there is just more than just one. Let me ask you, if you agreed with

Professor Laycock’s I thought quite honest and valid argument that

56

if you do not have—even taking this program on its own terms, if

you are going to allow sectarian content in part of the government

funded program, interrelated with it although not specifically funded by it, do you agree that for this to be fair you have to have a

completely secular alternative roughly equal in convenience and efficacy available for people who object? Do you agree with that principle?

Mr. CHABOT. The gentleman’s time has expired, but the gentleman is granted an additional minute to have the question answered and use it as he sees fit.

Mr. ESBECK. I am told that throughout this country there are

secular alternatives——. Mr. FRANK. I asked if you agree with the principle. Do you agree

with what Professor Laycock said that it needs to be that for that

to be fair?

Mr. ESBECK. I think in my earlier answer I suggested to you one

alternative as opposed to have the——. Mr. FRANK. But the question is do you think we need it. You are

going beyond that. Do you agree with Professor Laycock’s characterization that for this program to be fair and justifiable there

needs to be a substantively equal secular alternative set of programs? Do you agree with that principle?

Mr. ESBECK. I think in my earlier answer I was showing you an

example where that was not necessary. So I guess the answer is

no.

Mr. FRANK. You don’t agree with Professor Laycock. Thank you.

I know you don’t agree with him on the funding, so you guys can

work it out later.

Mr. CHABOT. The gentleman’s time has expired. The gentleman

from North Carolina, Mr. Watt, is recognized for 5 minutes.

Mr. WATT. Thank you, Mr. Chairman. And let me start by thanking the Chairman. Intentionally or unintentionally, you have accomplished something that is very, very important here in this

hearing, I think, which is to get us beyond a rhetorical level down

to a practical level. On the rhetorical level, those who often express

concerns about what we are doing here often get characterized as

nonreligious or whatever, all kinds of different things. But down at

the practical level, I think if we could get some meeting of the

minds, I think there would be a great deal of common ground and

I think these witnesses have identified a number of those areas of

common ground.

Unfortunately, we are not always hearing the same thing from

the people who are talking about this program. Mr. Esbeck is here.

I read the beginning of his statement. He says this is the official

department’s response; that is, the Justice Department’s response,

to the Committee’s letter. Mr. Dilulio I don’t know if he is in the

Justice Department or he is in the executive branch or White

House, I mean you obviously may not be speaking for him, Mr.

Esbeck, because one of the problems that we have had is getting

him to answer some of these practical, nonrhetorical questions

about how this thing gets implemented. I am looking at a press report here that says last month Mr. Dilulio argued that programs

in which the religious and secular elements cannot be separated

should only be eligible for vouchers. That got Dilulio in trouble

57

with conservatives who argued that some of the most effective programs use religion as an integral part of their curriculum and

should not be excluded, which I take to be inconsistent with what

Mr. Esbeck said. If it is not, he is even more explicit about it because yesterday he said, or some time last week he said more appropriate for these kinds of religious programs to be funded with

vouchers, quote, but if they want to apply for direct grants, quote,

fine. So, if the heart of the program that they are moving forward

on is prayer and religious curriculum, I think Mr. Dilulio has said

that is fine. Mr. Esbeck has said the Justice Department is not

going to allow that, as I heard his testimony this morning.

Now, that brings me to a real concern about these, and this has

nothing to do with the first amendment of the Constitution. I think

Professor Lupu and Professor Saperstein both agree that that is

not constitutional. This is policy. What happens when a faith-based

recipient of government funds doesn’t comply with the government

guidelines about proselytizing. Is, quote-unquote, good faith

enough? Will there be unannounced audits of not only the books,

the financial records, but of the content of these programs to determine whether they are proselytizing or not? And how will they be

carried out and what implications will that have for the Federal

Government injecting itself into the religious activities of these organizations?

I am just raising some questions here. Maybe they won’t get a

chance to answer them.

Mr. CHABOT. The gentleman’s time has expired, but the witnesses are given sufficient time——. Mr. WATT. I am not through with the questions yet. I am just

on a roll here, so let me finish the questions.

Mr. CHABOT. That is debatable. The gentleman is recognized for

such additional time as he might consume to ask his questions as

long as it is reasonable.

Mr. WATT. Thank you. I appreciate it. Does the government have

discretion in what and how to audit? Could these audits be tainted

with political or partisan considerations? What is the enforcement

mechanism that you referred to in the footnote on page 5, Mr.

Esbeck? Is there going to be a right of private action as opposed

to a government right to come in and police this and what implication does that have for the independence of government and religion?

These are some of the practical questions that we get down to.

I think that unfortunately you all will give us very nice, tidy answers to because you understand the law and because you are honest brokers here. I mean, I haven’t heard anything today that I

thought was just absolute dishonesty, and that is unusual in hearings. But I am telling you that the people at the rhetorical level,

at the political level are not talking about this in the case that Mr.

Esbeck has wrapped his arms around it from a legal perspective.

So I put those things out there, not because I am unreligious. I

want you to know I was born in a house where the front yard adjoined the church yard. I couldn’t have been anything other than

a Presbyterian. I couldn’t get out of my house without going across

the lot. So I have been in church for a long, long time. But I also

have tremendous respect for keeping the government out of reliVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6601 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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gious activities and not putting religious organizations in precarious positions where 5 years down the road some preacher because

he didn’t vote for somebody is going to get prosecuted or have his

program terminated. And you can’t determine whether he complied

with the law or didn’t comply with the law without making an assessment of the religious activities that he either did or did not engage in.

Mr. CHABOT. The gentleman’s time has expired. But the witnesses can address the questions put to the panel by the Member.

Mr. LUPU. If I may have one word on it, Mr. Watt did not use

the word entanglement or excessive entanglement in his questions

but he certainly might well have. That is what he was asking

about. I do think that there are issues of monitoring and auditing

that are very serious, that are very delicate, that are very complicated. Many of them will be quite subvisibility to people like you.

They will happen in local communities, they will happen when

States administer their contracts. And if I were in your position in

trying to design legislation of this character, I would be very mindful of the tension between enforcing the limits of the establishment

clause and the problems of monitoring and intrusion that those

limits might create. I think those issues are quite serious.

Mr. LAYCOCK. I agree those are the right questions to ask. I

would suggest you might not have the right witnesses to answer

them. The four of us are experts in constitutional law, first amendment law, the law on religion. You need to get some people who

are experienced and experts in the nuts and bolts of actually administering these programs and delivering these services to answer

questions about how it actually works on the ground.

Mr. WATT. Mr. Esbeck, I think he is experienced in this area.

Mr. ESBECK. Professor Laycock has it right. We in fact are people

who would look at the Constitution on statutory issues, and the implementation or what Mr. Nadler called the sort of nuts and bolts

is not what we were of course asked to testify to here and prepare

to.

I would just say that of course the government has a vast

amount of experience in the regulatory oversight of Federal programs and issuance of grants. And from what little I have been

able to learn about that is when a statute is passed, of course there

is quite a lot of consideration given to the very next layer, which

is the regulatory layer, and then underneath that is policy explanations.

And also I am told that when a new program begins or when an

old program is reauthorized, always with some changes, there are

a number of workshops that are held which are free, workshops for

those who are considering applying for grants as to the dos and

don’ts, what they can do, what the rules are, and then even after

grants are approved and an organization is a new grantee or an old

grant is renewed, again there are workshops. And there is something called a project officer over every grant and he or she is sort

of the person assigned to be a point of contact to answer questions,

and so on. So it is not like these organizations are just cast out

there on their own without some sort of guidance or ability.

Mr. SCOTT. But if they are given one set of instructions from the

White House and another set of instructions from the Justice DeVerDate 11-MAY-2000 13:52 Sep 25, 2001 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6601 G:\WORK\CONST\060701\72981.000 HJUD2 PsN: HJUD2
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partment, whose instructions are they giving? I guess that is the

political question on this side. But a more practical question, you

are absolutely right that the government has much experience with

the administration of grants. I am not sure that you are so right

that they have experience in the administration of grants where

the recipient on the other side has the kind of political and moral

and religious authority that some of these religious organizations

tend to have.

Now, that creates this disparity. One group gets away with proselytizing and never gets looked at, audited, certainly not prosecuted

because it just can’t be done politically. And then the little guy

down at the end of the line, where there is no political price, typically in my community, is the guy that gets indicted because instead of using the money, all the money to do drug rehabilitation,

he went out and bought two or three Bibles.

Mr. SAPERSTEIN. Because there is, under H.R. 7, the right of action here and, depending on how the law is read, (perhaps you are

right) if the government did not fund a church because of its perception of the mix of religion with the program, or a right of the

church to sue the government, here and the right (outside this) bill

for taxpayers to contest violations of church and state. You are

also—this is—and because Professor Lupu so rightly said, this is

a confused area of law. There really is no great certainty about it.

This is clearly begging for a spew of lawsuits that are going to really burden the individual church here. We are putting them in a

Catch-22 situation where they are going to get sued: dammed if

they do, dammed if they don’t. That is just not wise public policy.

Mr. WATT. Thank you, Mr. Chairman, for your indulgence.

Mr. CHABOT. We thank the gentleman. I think you made some

very good points. I want to thank the witnesses for their testimony

here this morning. I think it was very helpful in Congress’ attempt

to deal with this very important issue. I think you shed a lot of

light.

Mr. ESBECK. Do I have just 15 seconds to make one point?

Mr. CHABOT. Yes.

Mr. ESBECK. The comment was made that the White House sort

of obliquely and Mr. John Dilulio, or Dr. Dilulio is saying different

things. I would just point out that Dr. Dilulio has testified in a

House Committee and that testimony is available. And that was a

Committee chaired by the Honorable Mark Souder. And I know

that the White House Office of Faith-based and Community Initiatives has made a number of information papers available and I am

in communication with them from time to time, and it is my understanding that the position of the Department of Justice today in

our written testimony is consistent with the White House Office of

Faith-based Initiatives.

Mr. CHABOT. Thank you. We appreciate the panel’s testimony. I

want to thank the Members for being here. Mr. Nadler.

Mr. NADLER. I now ask unanimous consent that all Members

shall be permitted to revise and extend their remarks and submit

any additional material for the records.

Mr. CHABOT. Without objection. And I also want to thank you

very much. I also want to thank the folks who came here from the

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faith-based community and thank you for your work with the

American people. And with that, we are adjourned.

[Whereupon, at 12:08 p.m., the Subcommitteee was adjourned.]

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