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[Senate Hearing 107-375]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 107-375

           FAITH-BASED SOLUTIONS: WHAT ARE THE LEGAL ISSUES?

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              JUNE 6, 2001

                               __________

                          Serial No. J-107-24

                               __________

         Printed for the use of the Committee on the Judiciary

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                            WASHINGTON : 2002
____________________________________________________________________________
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
                                     MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director

                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     7
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................    22

                               WITNESSES

Adams, Charles, Rev., Pastor, Hartford Memorial Baptist Church, 
  Detroit, Michigan..............................................    46
Avery, John L., Government Relations Director, National 
  Association of Alcoholism and Drug Abuse Counselors, 
  Alexandria, Virginia...........................................    61
Diament, Nathan J., Director of Public Policy, Union of Orthodox 
  Jewish Congregations of America, Washington, D.C...............    66
Esbeck, Carl H., Senior Counsel to the Deputy Attorney General, 
  Department of Justice, Washington, D.C.........................    22
Foltin, Richard T., Legislative Director and Counsel, American 
  Jewish Committee, Washington, D.C..............................    81
Goode, W. Wilson, Sr., Rev. Dr., Senior Advisor on Faith-Based 
  Initiatives, Public/Private Ventures, and Rector, Amachi 
  Program, Philadelphia, Pennsylvania............................    42
Henderson, Wade, Executive Director, Leadership Conference on 
  Civil Rights, Washington, D.C..................................    65
Laycock, Douglas, Alice McKean Young Regents Chair in Law, 
  University of Texas, Austin, Texas.............................    74
Morgan, Edward, President, Christian Herald Association, New 
  York, New York.................................................    59
Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania...................................................    10
Scott, Hon. Robert C., a Representative in Congress from the 
  State of Virginia..............................................    13
Valentin-Castanon, Eliezer, Rev., Program Director, General Board 
  of Church and Society, United Methodist Church, Washington, 
  D.C............................................................    51
Zwiebel, David, Rabbi, Executive Vice President for Government 
  and Public Affairs, Agudath Israel of America, New York, New 
  York...........................................................    47

                         QUESTIONS AND ANSWERS

Responses of Richard T. Foltin to questions submitted by Senator 
  Leahy..........................................................    83
Responses of Richard T. Foltin to questions submitted by Senator 
  Kennedy........................................................    85

 
           FAITH-BASED SOLUTIONS: WHAT ARE THE LEGAL ISSUES?

                              ----------                              

                        WEDNESDAY, JUNE 6, 2001

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:02 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Biden, Schumer, Durbin, Hatch, 
Specter, Sessions, and Brownback.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. The Committee will be in order.
    I wanted to follow a tradition that I have followed now for 
20-some-odd years. I have chaired probably half a dozen 
different Committees at different times. I have been twice in 
the minority, three times in the majority, which gives you some 
indication of how the Senate changes all the time. What I have 
always done is started a new Committee with a gavel that my son 
made for me in high school. I know I embarrass him every time I 
mention that, but this is the gavel I have always used and so 
that is where we will start.
    I would say to my friend, Senator Hatch, we are starting 
with this hearing out of courtesy both to him and to President 
Bush, even though we have not yet reorganized the Senate.
    Senator Hatch and I have joined with Senators Biden, 
DeWine, Thurmond and Feinstein to introduce S. 304, the Drug 
Abuse Education, Prevention, and Treatment Act. It takes a very 
comprehensive approach to the drug problems that most affect 
our communities. It is designed to reduce illegal drug use and 
to provide appropriate drug education, prevention, and 
treatment programs.
    Senator Hatch wanted the charitable choice language to be 
included in the bill and he had been planning this hearing 
earlier this year. He had had to postpone earlier to 
accommodate my schedule. I am proceeding with it this morning 
to accommodate him. He had done the planning as chairman, and 
he did it in furtherance of our common interest in passing this 
anti-drug legislation. As it was on the schedule, I wanted, as 
I said, to accommodate him and go forward.
    Now, I also wanted to demonstrate at the outset my 
intention to find ways to work constructively with the Bush 
administration. When I chaired this Committee in the early days 
of this Congress, we proceeded with expeditious hearings on the 
President's nomination of John Ashcroft to be Attorney General. 
Because we did that, we were able to move on the floor of the 
Senate Senator Ashcroft's nomination within 48 hours of the 
time his papers actually came up here from the White House. So 
within 48 hours of the time his nomination hit the Senate, with 
the unanimous approval to move forward of both Democrats and 
Republicans, we did that.
    President Bush has a faith-based initiative. I believe this 
is probably going to be the first Senate hearing on the 
President's administration priority. I have made clear some of 
my concerns and reservations about this proposal, but we are 
trying to find some common ground here and that is why we are 
going forward.
    The Hatch-Leahy anti-drug abuse legislation is an important 
effort. I think we can make progress in the fight against drugs 
by using it. In fact, I have every intention of moving forward 
on judicial nominations within a couple of weeks of the time 
the Senate has been reorganized.
    Long before Congress passed the first charitable choice 
provision in 1996, the Federal Government and the States had 
established strong cooperative relationships with a broad range 
of faith-based charities. Indeed, many faith-based charities 
receive millions, or even billions of dollars a year in 
Government funds today without any new initiative.
    We owe a debt of gratitude to groups like Catholic 
Charities and the United Jewish Communities, among others, that 
offer critically needed social services through publicly funded 
and professionally managed programs. Given the success of these 
programs, I have to ask why we need extensive expansion of 
Government involvement in faith-based charities. I want to know 
just what is the problem we are trying to fix, and I hope our 
witnesses will tell us that.
    We could also use the hearing to address some of the 
serious legal and policy concerns that have been raised about 
proposed expansions of charitable choice by religious leaders, 
civil rights leaders, and ordinary Americans across the 
country.
    I have more in my written statement, but among those 
concerns is the impact of charitable choice on religion. There 
is an old saying about a certain road that is paved with good 
intentions and where it leads to. Charitable choice may be 
well-intentioned, but I do have grave concerns about where it 
may lead us.
    I will include in the record a letter signed by almost 
1,000 religious leaders from across the theological spectrum 
who say that charitable choice poses a danger to religion 
because the flow of Government dollars and the accountability 
for how those funds are used will inevitably undermine the 
independence and integrity of houses of worship.
    When so many of our religious leaders reject a proposal 
that is purportedly designed to help religious organizations, I 
think we in Congress should at least listen. No matter how we 
feel about this proposal, we do know, and I think we all 
agree--whether we are supporters or opponents of this, we all 
know that we do not want Government meddling with our religion, 
whatever religion we have.
    According to a recent report by the Pew Forum, most 
Americans, 68 percent, worry that faith-based initiatives will 
lead to inappropriate Government interference with religious 
organizations. I worry that an expansion of charitable choice 
could harm religion in other ways, and we should consider how 
Government funding of religious charities will affect the 
spirit of giving that we now see in this country.
    Some ministers predict that an infusion of Government 
funding will result in a decrease of volunteerism within their 
congregations. The congregation would think that they don't 
need to give money. Charitable organizations have already 
suffered one financial blow this year in the form of estate tax 
repeal. According to the Treasury Department, this legislation 
will reduce charitable giving by as much as $6 billion a year, 
and that is lot less money for some of the social programs that 
faith-based organizations now conduct.
    There are also questions about how current charitable 
choice proposals will affect State licensing and certification 
requirements. In 1997, then Governor Bush sponsored laws in 
Texas that exempted faith-based drug treatment and child care 
centers from State health and safety regulations, and now we 
are seeing the results of that.
    At one center for troubled youth, a girl was bound with 
rope and duct tape. At another, police arrested the supervisor 
for unlawful restraint after he allegedly roped two children 
together and made them dig in a sewage pit. There was no 
supervision because there was an exemption for faith-based 
organizations.
    Many social service providers require specialized training 
to address the medical needs of their patients; in drug 
treatment, for example, the programs established in S. 304. 
Drug addiction is a medical disease that has established 
medical treatments. Spiritual instruction may be fine, but it 
alone cannot adequately address the medical needs of the 
addicted person. We must make sure that if a faith-based 
organization receives Federal funds they are held to the same 
standards of licensing and expertise and all that their secular 
counterparts would.
    Then, of course, there is the constitutional question. Does 
the Establishment Clause permit public money to flow directly 
to churches, synagogues, mosques, and other houses of worship? 
In the past, the Supreme Court has considered direct financial 
aid of the sort contemplated by charitable choice to be 
unconstitutional.
    In Texas, an employment program financed under charitable 
choice is now accused of proselytizing. The program bought 
Bibles for students, required them to study Scripture, and 
taught them ``to find employment through a relationship with 
Jesus Christ.'' Probably a noble gesture, but many of the 
students claimed that they had been pressured to change their 
beliefs.
    The Reverend John Castellani, the executive director of 
Teen Challenge, testified before a House Subcommittee last 
month on charitable choice. Teen Challenge offers a year-long 
residential drug treatment program which challenges the 
residents to embrace the Christian faith.
    During his testimony, Castellani was asked if this would 
preclude participants from other faiths. He responded that it 
accepts anyone, including Jews, some of whom he said may have 
returned to Judaism, but some of whom become ``completed 
Jews,'' meaning they have converted to Christianity.
    Many people took a great deal of concern from that 
statement. Some might suggest that it is a terribly arrogant 
statement, basically saying that if you are a Jew and you do 
not convert to Christianity, then you are an incomplete Jew. I 
think that that may be a new tenet in one of the world's oldest 
religions. This sort of response has fueled concern that 
charitable choice will result in government-funded 
proselytizing. So these are things we have to look at.
    I will submit for the record the written testimony of Dr. 
Derek Davis, of Baylor University, who is a leading expert on 
the religion clauses.
    We have to ask does this ease back from our Nation's 
commitment to equal protection under the law. The charitable 
choice provisions now before Congress would give government-
funded religious organizations an unprecedented exemption from 
the Federal civil rights laws.
    Unlike other recipients of taxpayer dollars, faith-based 
social service providers would be entitled to discriminate on 
the basis of religious when hiring and firing staff. What does 
that mean?
    The New York Times ran a story in April about a woman named 
Alicia Pedreira. She worked as a therapist at the Kentucky 
Baptist Home for Children. She was fired because the religious 
organization said that her beliefs did not reflect their core 
values. Is this discrimination on the basis of religion, or is 
religion being used as a pretext to discriminate against 
homosexuals?
    By allowing discrimination on the basis of religion, we may 
open the door to other forms of discrimination, including race. 
As the New York Times noted, ``In theory, an organization like 
Bob Jones University could receive public funds to hire 
employees while forbidding them to engage in interracial 
dating.''
    Religion plays a role in our society, and it can do that 
without undermining our anti-discrimination laws. I hold my 
religion deeply; I practice it faithfully, but I also keep it 
separate from my duties as a U.S. Senator and as one who must 
show equal deference to all people of this country.
    Last year, we worked together on a bipartisan basis and we 
crafted a bill that protected religious liberty without 
sacrificing civil rights and we passed it, and I hope we can do 
that again. We need to work closely together.
    I think this is an important issue, and I don't pretend to 
have all the answers, but I do think it is important enough 
that when Senator Hatch had asked to have this hearing, even 
though today was the first day of a different Senate, I felt 
both out of respect for his concern and my respect for him 
personally that we would go forward with this hearing.
    [The prepared statement of Senator Leahy follows:]

 STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF 
                                VERMONT

    We are proceeding with this hearing today out of courtesy to 
Senator Hatch and President Bush.
    Senator Hatch and I have joined with Senators Biden, DeWine, 
Thurmond and Feinstein to introduce S.304, the Drug Abuse Education, 
Prevention, and Treatment Act of 2001, which takes a comprehensive 
approach to the drug problems that most affect our communities, with 
provisions designed to reduce illegal drug use and to provide 
appropriate drug education, prevention, and treatment programs.
    Senator Hatch insisted that charitable choice language be included 
in the bill. Senator Hatch had been planning this hearing earlier this 
year and had to postpone it to accommodate my schedule. I am proceeding 
with it this morning to accommodate him, the planning he did when he 
thought that he would be chairing the hearing, and in furtherance of 
our common interest in passing our anti-drug legislation.
    With all the recriminations that have been flying around over the 
last several days in connection with the shift in control in the 
Senate, I also wanted to demonstrate at the outset my intention to find 
ways to work constructively with the Bush Administration.
    When I chaired this Committee in the early days of this Congress we 
proceeded with expeditious hearings on the President's nomination of 
John Ashcroft to be Attorney General. Having done so, we were in 
position to have this Committee and the Senate proceed promptly and 
without delay to consider and vote on the confirmation of the Attorney 
General as soon as the nomination was received.
    President Bush has his Faith-Based Initiative and, I believe, this 
will be the first Senate hearing on that Bush Administration priority. 
I have tried to make clear and will again today my concerns and 
reservations about this proposal. But we are proceeding out of a 
willingness to discuss this matter, to consider it, and to try to find 
common ground with Senate Republicans and the Bush Administration. The 
Hatch-Leahy anti-drug abuse legislation is an important effort, and 
with it we can make new progress in the nation's fight against drug 
abuse.
    If my willingness to proceed with this previously scheduled hearing 
is used against us or against the efforts of the Majority Leader to 
reorganize the Senate and its committees without complication and 
delay, I will have learned that no good deed will go unpunished by the 
Republican opposition, and I will not make that mistake again.
    Consistent with the steps toward cooperation and progress that 
Majority Leader Daschle is leading and in contrast to the posture 
struck by Senator Lott's recent memorandum urging his side to wage war, 
fight and battle the Senate Democratic majority, we are marking the 
Senate's transition today on this committee with a hearing that takes 
full account of the interests of Republicans and the Republican 
administration.
    Now to the matter at hand: Long before Congress passed the first 
charitable choice provision in 1996, the Federal Government and the 
States had established strong cooperative relationships with a broad 
range of faith-based charities. Indeed, many faith-based charities 
receive millions or even billions of dollars a year in government 
funds. We owe a debt of gratitude to groups like Catholic Charities and 
the United Jewish Communities, among others, that offer critically 
needed social services through publicly-funded and professionally 
managed programs. Given the success of these programs, we ask why we 
need extensive expansion of government involvement in faith-based 
charities. What exactly is the problem that we are trying to fix? I 
hope that our witnesses will speak to this basic question.
    We should also use this hearing to address some of the serious 
legal and policy concerns that have been raised about proposed 
expansions of charitable choice by religious leaders, civil rights 
leaders, and ordinary Americans across the country. I discuss a number 
of concerns in my written statement, which I will make available and 
incorporate in the record.
    Among those concerns are the impact of charitable choice on 
religion. There is an old saying about a certain road that is paved 
with good intentions. Charitable choice may be well intentioned, but I 
have grave concerns about where it may lead us. I will also include in 
the record a letter signed by 969 religious leaders from across the 
theological spectrum. These religious leaders say that charitable 
choice poses a danger to religion because ``[t]he flow of government 
dollars and the accountability for how those funds are used will 
inevitably undermine the independence and integrity of houses of 
worship.'' When so many of our religious leaders reject a proposal that 
is purportedly designed to help religious organizations, we in Congress 
should proceed with great care.
    Americans do not want the government meddling with their religion. 
According to a recent report by the Pew Forum, most Americans - 68 
percent - worry that faith-based initiatives will lead to inappropriate 
government interference with religious organizations.
    Expansion of charitable choice could harm religion in other ways. 
We should consider how government funding of religious charities will 
affect the spirit of giving that religious charities currently inspire. 
Some ministers predict that an infusion of government funding will 
result in a decrease of volunteerism within their congregations, 
because church-goers will get the impression that their small 
contributions of time and money are no longer needed. This would work 
against the stated goals of charitable choice.
    Charitable organizations have already suffered one financial blow 
this year, in the form of the estate tax repeal. According to the 
Treasury Department, this aspect of the President's $1.35 trillion tax 
legislation will reduce charitable giving by as much as $6 billion a 
year. That means less money will be available for the sorts of social 
programs that the faith-based organizations currently operate.
    There are also many questions about how current charitable choice 
proposals will affect State licensing and certification requirements. 
In 1997, then-Governor Bush sponsored laws in Texas that exempted 
faith-based drug treatment and child care centers from State health and 
safety regulations. We are starting to see the results of the Texas 
experiment. At one center for troubled youth, a girl was bound with 
rope and duct tape. At another, police arrested the supervisor for 
unlawful restraint after he allegedly roped two children together and 
made them dig in a sewage pit. These cases are very troubling.
    Many social service providers require specialized training to 
address the medical needs of their patients. Take for example the drug 
treatment programs established by 5.304. Drug addiction is a medical 
disease, with established medical treatments. Spiritual instruction 
alone cannot adequately address the medical needs of the addicted 
person. We need to ensure that faith-based organizations that receive 
federal drug treatment funds are held to the same professional 
standards as their secular counterparts.
    Then there are the constitutional questions. Does the Establishment 
Clause permit public money to flow directly to churches, synagogues, 
mosques, and other houses of worship? In the past, the Supreme Court 
has considered direct financial aid of the sort contemplated by 
charitable choice to be unconstitutional, because the government 
monitoring needed to prevent the use of public funds for 
proselytization creates excessive entanglement between government and 
religion.
    In Texas, an employment program financed under charitable choice 
has been accused of proselytizing. The program bought Bibles for 
students, required them to study Scripture, and taught them ``to find 
employment through a relationship with Jesus Christ.'' Many of the 
students claimed that they had been pressured by the program to join a 
church or change their beliefs.
    The Reverend John Castellani, executive director of Teen Challenge, 
testified before a House subcommittee last month on charitable choice. 
Teen Challenge offers a year-long residential drug treatment program 
which, according to its web site, ``challenge[s] the residents to 
embrace the Christian faith.'' During his testimony, Castellani was 
asked if his program would accept participants from other faiths. He 
responded that it accepts anyone, including Jews, some of whom return 
to Judaism, and some of whom become ``completed Jews,'' meaning they 
have converted to Christianity. This sort of response has fueled 
concern that charitable choice will result in government-funded 
proselytizing. The constitutional issues posed by charitable choice are 
substantial, with substantial consequences for the relationship between 
church and state in America. I will submit for the record the written 
testimony of Dr. Derek Davis of Baylor University, a leading expert on 
the religion clauses, who examines these issues at greater length.
    As we will explore today, charitable choice proposals also raise 
serious questions about our nation's commitment to equal protection 
under the law. The charitable choice provisions now before Congress 
would give government-funded religious organizations an unprecedented 
exemption from the federal civil rights laws. Unlike other recipients 
of taxpayer dollars, faithbased social service providers would be 
entitled to discriminate on the basis of religion when hiring and 
firing staff.
    What does it mean to discriminate ``on the basis of religion''? The 
New York Times ran a story in April about a woman named Alicia 
Pedreira. She worked as a therapist at the Kentucky Baptist Homes for 
Children, which receives State funds. She was fired because the 
religious organization said that employing a gay person was contrary to 
the organization's ``core values.'' Is this discrimination on the basis 
of religion, or is religion being used as a pretext to discriminate 
against homosexuals? By allowing discrimination on the basis of 
religion, we may open the door to other forms of discrimination, 
including race. As the Times noted, ``In theory, an organization like 
Bob Jones University could receive public funds to hire employees while 
forbidding them to engage in interracial dating.''
    Religion can certainly play a role in our society without 
undermining our anti-discrimination laws. We learned that last year, 
when we considered legislation to ensure the highest level of legal 
protection for the free exercise of religion. Members of this 
Committee, working together on a bipartisan basis, were able to craft a 
bill that protected religious liberty without sacrificing civil rights. 
I supported that legislation, and it passed Congress with the blessing 
of religious leaders and civil rights leaders alike. That experience 
should serve as a guide as we consider charitable choice.
    I hope that in today's hearing, we can start to identify the 
problems that the faith-based initiative is trying to solve. If 
problems do exist, we should work to address them without running 
roughshod over the Constitution or our commitment to civil rights.
    Most importantly, I hope this hearing allows us to move forward on 
5.304 and pass this important drug treatment legislation through this 
Committee and through the Senate. This bill can do a world of good, and 
we should act on it promptly.

    Chairman Leahy. Senator Hatch?

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman. I want to 
thank you, and congratulations on becoming Chairman of this 
very important Committee. I look forward to working with you. I 
enjoy our relationship and we are good friends, and hopefully 
we can accomplish a lot together.
    Senator Biden. If the Senator would yield for a second?
    Senator Hatch. I would be happy to do so.
    Senator Biden. It is obvious that we understand it is 
better to be lucky than good.
    Chairman Leahy. No. It is better to be a Vermonter than to 
be good.
    [Laughter.]
    Chairman Leahy. Vermont is a very special place. You may 
have read a lot about it.
    I am sorry. Go ahead, Orrin. I will stop if you stop.
    Senator Hatch. I have to admit it is a very special place.
    Senator Brownback. I will agree with that.
    Chairman Leahy. Joseph Smith was born there, don't forget, 
don't forget. I was in the town of his birth on the day of his 
birthday about a week or so ago, Senator Hatch. I want you to 
know I was there.
    Senator Hatch. You would do well to pay more attention to 
what he had to say.
    [Laughter.]
    Senator Hatch. We have been hearing more and more about 
charitable choice or faith-based solutions over the past 
several years. Of course, it was a policy endorsed 
wholeheartedly during the presidential campaign by both 
President Bush and former Vice President Al Gore.
    Numerous faith-based groups and religious leaders have 
embraced the notion that sectarian groups should be allowed to 
competed on the merits for funding to administer secular 
services to the American public, if they can demonstrate that 
they meet the requirements provided in the programs.
    Moreover, the American public overwhelmingly favors 
allowing faith-based groups to have the opportunity to provide 
social services to those in need. Although I have been one who 
is somewhat skeptical of the polls and polling data, it is 
interesting to note that according to a recent poll conducted 
by the independent Pew Research Center, 75 percent of the 
American public supports the concept of faith-based funding, 
while only 21 percent oppose it.
    The Pew poll also found that the majority of both 
Republicans and Democrats strongly favored allowing churches 
and religious institutions to apply for Federal grants to 
provide services to the needy. Thus, this broad support for 
charitable choice crosses party lines and ideological 
differences, and the composition of our panelists today 
reflects this.
    While Americans understand the need for faith-based 
programs, there are some who have raised concerns concerning 
the constitutionality of allowing faith-based groups to receive 
Government funds. But let's be clear about one thing: this 
issue has not been a partisan matter to date. Since 1996, 
charitable choice legislation has received bipartisan support 
from both Houses of Congress, as well as from the Clinton 
administration. These laws have allowed faith-based providers 
to compete for Federal grants to provide services such as job 
training and drug rehabilitation. Indeed, religious charities 
currently receive about $3 billion each year in Federal funds 
to administer certain social services.
    President Bush has made the increased involvement of faith-
based organizations to address some of our social problems a 
priority. Indeed, he created an Office of Faith-Based Services 
within the White House to give these bipartisan programs a 
higher profile.
    The current debate centers around whether it is appropriate 
to remove restrictions from existing funding streams to allow 
more groups to help those who need help themselves. I believe 
that after careful consideration of all the various concerns, 
Americans who are most in need will benefit greatly from 
building further on our charitable choice programs, which 
President Clinton also supported.
    A couple of months ago I, along with Senators Leahy, Biden 
and others, introduced the bipartisan S. 304, the Drug Abuse 
Education, Prevention, and Treatment Act of 2001 to shore up 
our National commitment to the demand reduction component of 
our National drug control strategy, which was mentioned by 
Senator Leahy.
    We introduced this legislation because we know that in 
order to reduce effectively drug abuse in America, we need to 
increase the resources we devote to prevent people from using 
drugs in the first place and also break the cycle of addiction 
for those whose lives are devalued and consumed by these 
substances. It only seemed appropriate in expanding prevention 
and treatment programs that we tap every resource available to 
carry out these important services, and it only seemed logical 
to tap the resources faith-based providers can offer.
    To achieve this goal, S. 304 includes charitable choice 
provisions that require the Government to consider, on the same 
basis as other non-governmental organizations, faith-based 
organizations for providing the drug prevention and treatment 
assistance under the programs authorized by the bill. This 
provision is virtually identical to provisions in other Federal 
programs that are currently the law of the land.
    Now, I know that at the time we introduced S. 304 Senator 
Leahy and others had some concerns and questions about the 
charitable choice provisions and wanted to explore the legal 
issues further. That is why we are here today. I continue to 
remain committed to working with my good friend to address any 
concerns within this very important bill. This hearing will 
enable us to examine some of the possible concerns and 
hopefully develop answers, where needed.
    Charitable choice has its critics. Some have argued that it 
violates the Establishment Clause of the First Amendment, while 
others have argued that rampant discrimination would occur as a 
result of charitable choice. Still others complain that 
religious organizations will become dependent on the Federal 
Government and lose their religious independence if they vie 
for Government grants. There are all valid concerns, and we 
hope to air them out and address them with the help of our 
witnesses today.
    I believe all of our witnesses here today would agree with 
me that we need to do more to ensure that everyone who is in 
need of a helping hand, whether that be drug treatment, a hot 
lunch, literacy tutoring, or spiritual guidance, can simply 
reach out and that hand will be there.
    The bipartisan and, in the words of some, ``revolutionary'' 
S. 304 is a step in that direction. It offers promise to those 
who are addicted to drugs, who are some of our Nation's most 
destitute citizens. I am proud to say that since its 
introduction, numerous organizations, political officials, and 
concerned Americans have contacted the Committee to praise the 
bill.
    At a press conference held prior to introducing the bill, 
prevention and treatment experts, standing beside law 
enforcement officials, regardless of party affiliation, spoke 
in unison about how the various prevention and treatment 
components of this bill will help to lower drug abuse in 
America.
    S. 304 bespeaks our commitment to do more to prevent and 
treat substance abuse. Such efforts, it is safe to say, will 
prove worthwhile. Let me just emphasize, however, that while 
this legislation will prove enormously helpful, it is not a 
cure-all. Parents, grandparents, priests, pastors, rabbis, 
teachers, sports heroes, celebrities, and everyone else 
involved in a child's life needs to take an active role in 
educating our children about the dangers of drugs.
    Drug abuse knows no boundaries. It doesn't discriminate on 
the basis of gender, race, age, or class. It is truly an equal 
opportunity destroyer, and unless children are given the 
knowledge and truth of how drugs will ruin their health and 
future, they are vulnerable to the lies of those who are 
peddling drugs. That is why it is so important that we enlist 
everyone, including faith-based groups, in the fight to save 
our children.
    The fact is there is no simple answer to the problem of 
drug abuse. We all must step up our efforts to do everything we 
can to decrease the odds that our youth will fall prey to drug 
abuse and increase the odds that they will live healthy, 
productive lives.
    All of our panelists who work with children understand the 
pivotal role responsible, caring adults can play in the lives 
of at-risk children. Allowing faith-based providers the 
opportunity to reach more of these children will result in less 
children falling prey to drugs and more children succeeding in 
life.
    So I look forward to hearing our panelists' suggestions, 
based on their own experience and expertise, about what works, 
what doesn't, and what can be done. In particular, I am 
interested in listening to any suggestions that you may have 
for improving this legislation. That is important, as well.
    I appreciate those who are here from Congress, and welcome 
both of you to the Committee today and welcome all of the other 
witnesses. This ought to be a very good hearing and we ought to 
learn a lot about what we should be doing in this area.
    So thank you, Mr. Chairman. I appreciate it.
    Chairman Leahy. Well, I thank you.
    We have Senator Santorum, of Pennsylvania, and Congressman 
Bobby Scott, of Virginia, here. I will start with Senator 
Santorum. I would indicate that I think the Senate goes in at 
11:00. I am going to have to be on the floor at that time. I 
think we have a vote thereafter, but I would hope to keep the 
Committee going.
    I would also note, as I said earlier, because people had 
asked what the schedules might be, I intend to begin nomination 
hearings for the judiciary certainly within a week or so of the 
time we are reorganized. I had the opportunity to conduct a 
large number of the hearings in President Reagan's last 2 years 
of office and a number of the hearings in the normal rotation 
of members during former President Bush's presidency.
    I mention that because I read that a leading member of the 
Republic Party's leadership said that Senator Leahy has given 
no indication of being at all bipartisan. I would note that we 
have not had any hearings on judges yet this year. I intend to 
have them within two weeks of the time we organize. I would 
also note that of the ones I chaired before, I think I ended up 
voting for 98 or 99 percent of them. But for newer members of 
the Senate who might not have known my record, I would pass 
that on.
    Senator Santorum, we are delighted to have you here.

STATEMENT OF HON. RICK SANTORUM, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Santorum. Thank you, Mr. Chairman. I am glad to 
hear those words.
    Let me first congratulate you and Senator Hatch for 
introducing S. 304, and I would like to just sort of move into 
the two major areas of discussion of the President's 
initiative.
    One is what I refer to as beneficiary choice; others term 
it charitable choice. I choose to call it beneficiary choice 
because what this provision does is actually gives 
beneficiaries the opportunity to choose between a secular 
program and a faith-based program. The requirements in the laws 
that have passed to date require that there is a secular 
alternative available as a prerequisite to having a faith-based 
alternative.
    So there can never be a situation where someone is 
receiving Government funds or Government grants and it is a 
faith-based organization and they are the only one who is a 
recipient of Government grants for that particular purpose. So 
we understand that what we are talking about here is giving 
people the opportunity to choose between two different types of 
treatment with respect to government-funded programs.
    I just want to bring you up to date on sort of where we are 
now. Right now, with the existing statutory authority, the 
White House can move forward in the area of discretionary 
grants to faith-based organizations where faith-based 
organizations are sort of in play and where they get involved 
in provision of services.
    About 75 percent of the money that is available for the 
poor in discretionary grants is already covered by the previous 
legislation we passed. The biggest chunk of that is obviously 
TANF. What we are talking about expanding is actually a very 
small part of money relative to what is already in law that we 
can already act upon.
    One is in the area of what you are addressing here today, 
which is in the area of juveniles and drug abuse and juvenile 
justice, and the other is in the area of housing and allowing 
faith-based organizations to be more involved in housing.
    But what is happening and I think what has gone 
underreported is that the administration is already 
implementing charitable choice or beneficiary choice in a very 
aggressive way throughout the agencies. There are five agencies 
that now have directors in the agencies that are working, and 
they are working with Governors to promote charitable choice or 
beneficiary choice at the State level in a variety of programs 
that the State administers for the Federal Government.
    The other thing that I wanted to stress in response to 
Senator Leahy's concerns is what problem are we trying to fix 
with beneficiary choice. That is a good question because, as 
Senator Leahy mentioned, there are lots of faith-based 
organizations that receive Government funds today. And he 
mentioned some of them, but what he mentioned, and I think it 
is really the case in point, are large, denominational churches 
that have access to Federal dollars, Catholic Charities being 
one, Lutheran Social Services another. But there are a variety 
of others that freely access Federal funds under conditions 
that they find acceptable.
    The organizations that do not access these funds are 
smaller, most non-denominational, or small, denominational 
churches who do not have the infrastructure to go out and 
interact with the Government, with all the rules and 
regulations that are required under that.
    So what we have ended up doing with previous charitable 
choice or just previous Government funding is in a sense 
discriminate against these small, non-denominational churches, 
primarily in the minority community, primarily in the African-
American community and in the emerging Latino community. So a 
lot of these churches simply don't have the wherewithal or the 
network to be able to function in the area of communicating 
with the Government. What this provision tries to do is, in 
fact, create an opportunity for these organizations to reach 
in.
    Now, one of the things that was asked was what do you think 
we can do to improve some of the concerns that people have with 
Government funds going to faith-based organizations or going to 
churches or synagogues or mosques. What are the concerns we 
have with the violation of the Establishment Clause? How can we 
deal with the concerns of Title VII, which is discrimination in 
hiring?
    Well, a couple of things. First off, one suggestion I would 
make--and this is something that Senator Lieberman and I have 
been working on, and, as you know, he is the cosponsor of one 
of the bills I am going to talk about today and he has been a 
strong supporter of charitable choice in the past--is that we 
could require a new requirement that instead of funding any 
organization that goes out there and provides social services 
that we require churches to set up a separate 501(c)(3) as a 
way for them to receive funds.
    Instead of funding directly churches, if there is a concern 
about direct funding of churches, and that is a concern 
particularly when it comes to some of the smaller churches that 
may be eligible--it is not concern for Catholic Charities 
because you don't fund the Catholic Church; you fund a separate 
501(c)(3). We may have that as a requirement that may allay 
some of the fears of direct funding of churches, and it is 
something that certainly I would be amenable to as an 
additional provision of the charitable choice laws.
    On the other concern about hiring, I would just suggest 
that there has been a blanket exemption for faith-based 
organizations to the civil rights requirement under Title VII. 
That has been upheld by the Supreme Court. To say this is 
unprecedented, I am not too sure is necessarily accurate. It 
is, in fact, the precedent of the Court that permits 
discrimination.
    We are concerned, I understand, now that we are going to be 
giving Government dollars to faith-based organizations that may 
be discriminatory. We give Government dollars now to faith-
based organizations that, quote, ``may be discriminatory.'' We 
provide for all of these organizations a charitable deduction. 
So you can give tax dollars to these supposedly bigoted 
organizations, and so we support them right now with Government 
dollars.
    As Senator Leahy has mentioned before, there are a lot of 
organizations now, faith-based in nature, that receive 
Government funds. There are a lot of faith-based hospitals that 
receive Government funds, schools and educational institutions 
that receive Government funds, all of whom now have exemptions 
from these hiring requirements.
    Again, if we are focused on where this initiative is 
focused on, it is focused primarily on smaller, non-
denominational churches or smaller denominational churches 
principally in poor, minority areas. To bring this up in this 
context, you know, I just question whether that is really a 
concern or whether this is sort of trying to grasp at straws to 
find a problem where one has really not existed in the past.
    So I think there are adequate safeguards in place. This is 
something that we have been doing for quite some time, and I am 
hopeful that we can move forward to further expand it. Again, I 
am willing, as I think I mentioned today, to look at ways to 
provide some additional safeguards to make sure that we don't 
get into the situation that we are directly funding churches 
and church outreach and proselytization, which I don't think 
anybody has the intention of doing. We want to fund services. 
That is what the object of charitable choice is all about, is 
to provide services to people, not to promote particular 
religious organizations.
    Finally, the second provision that is in the President's 
initiative which I think is vitally important is having to do 
with charitable giving. This has broad bipartisan support. We 
have introduced a bill, Senator Lieberman and I, that provides 
non-itemizers, people who do not fill out the long form, the 
ability to deduct charitable donations above $500. The reason 
we use $500 is because in the standard deduction on the short 
form, there is an assumption of $500 of charitable giving. So 
above $500 would be eligible, on the short form, to be able to 
deduct.
    One of the concerns Senator Leahy with the death tax repeal 
is the reduction in charitable giving. This would be more than 
compensate for any potential reduction in the amount of 
charitable giving, to provide this incentive for people who do 
not fill out the long form. Seventy percent of filers fill out 
the short form. This would provide an incentive to do so. We 
also have provisions having to do with IRA rollovers.
    Chairman Leahy. Your point is that people will give 
charitable contributions that they don't have to itemize or 
have to establish that they gave in greater amounts than people 
who planning estates do in laying out specific items that are 
going to then be audited by the IRS? Now, that is faith-based. 
That is faith-based, I want to tell you right now. That is 
faith-based giving, faith that they will do it, but that is 
okay.
    Senator Santorum. We all are subject to potential audit 
from our deductions that we take, but this is an opportunity 
for those who right now do not have the opportunity to get any 
tax benefits from charitable giving.
    What I have found, at least, is that particularly in a lot 
of the churches that I go to in the inner city a lot of people 
there are very, very generous and give an enormous percentage 
of their income relative to most people to their churches and 
don't really get any tax benefit for doing so. I think this 
would encourage that and help that along.
    There are a couple of other provisions that are mentioned 
in there. I don't want to take up any more of your time. You 
have been gracious with our time and I appreciate it.
    Chairman Leahy. Thank you, Senator.
    Congressman Scott, you and I have discussed this whole 
thing at length before and I appreciate your coming over. I 
know that you have got all kinds of tugs on your time over on 
the House side. I also know that Senator Santorum does, too, so 
obviously either one of you feel free to go whenever you want.
    Congressman Scott, thank you for coming over here and thank 
you for appearing before us.

STATEMENT OF HON. ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF VIRGINIA

    Representative Scott. Thank you, Chairman Leahy, Ranking 
Member Hatch, and other members of the Committee. I am pleased 
to have the opportunity to appear before you to discuss my 
concerns regarding charitable choice.
    Religiously affiliated organizations, as it has been 
mentioned--Catholic Charities, Lutheran Services, Jewish 
Federations, and a vast array of other organizations--now 
sponsor Government programs. Contrary to President Bush's 
assertions, I am unaware of anyone who opposes these 
organizations operating public programs and providing services.
    They are funded like all other private organizations are 
funded. They are prohibited from using taxpayer money to 
advance their religious beliefs and they are subject to civil 
rights laws. Charitable choice, however, seeks to alter this 
longstanding relationship between church and state by allowing 
sponsors of federally-funded programs to advance their 
religious beliefs during the programs and by allowing religious 
discrimination in employment paid for with Federal dollars.
    Now, just as an aside, for the smaller organizations, the 
smaller churches, there is no help in charitable choice for 
those organizations. They are going to have the same problems 
that any small neighborhood organization has, a civic 
organization. They don't have the board structure, they don't 
have the accounting. They are not going to be able to withstand 
an audit. They don't have grant-writers. Those same problems 
are going to occur for any small organization.
    Charitable choice does two things. It allows 
proselytization during the program and it allows employment 
discrimination with Federal funds. Now, we can't intelligently 
discuss the pros and cons of charitable choice until we get a 
straight answer to one fundamental question, and that is are we 
funding the faith or not. In a recent commencement address the 
President said, ``Government should never fund the teaching of 
faith, but it should support the good works of the faithful.''
    Furthermore, the legislation itself prohibits Federal funds 
from being used to pay for proselytization. But if the 
Government is, in fact, not funding the faith, then there is no 
need to discuss the preservation of the religious character of 
the sponsoring organization. There is no need for a separate 
secular service elsewhere. There is no need to provide for 
employment discrimination. In fact, there is no need for 
charitable choice. If the Government is not funding the faith, 
the organization can receive funds just as Catholic Charities 
does now without charitable choice.
    Contrary to the President's assertions, this morning's 
Washington Post cites the founder of Habitat for Humanity 
saying that his organization is thriving under the present law. 
Unfortunately, the provisions in charitable choice guaranteeing 
the right to retain the religious character of the sponsor also 
guarantees that the program will promote religious views.
    The prohibition against using Federal funds for 
proselytization does not prevent volunteers from taking 
advantage of the captured audience and converting the Federal 
program into a virtual worship service. Furthermore, many 
supporters of charitable choice acknowledge that the religious 
experience is exactly what is being funded.
    At a forum a few months ago my friend, Senator Santorum, 
criticized me for not recognizing that with some drug 
rehabilitation programs religion is a methodology. At recent 
hearings, sponsors have explained that their programs are 
successful because of the religious nature of the program. So 
if the faith is being funded, we need to candidly express the 
Establishment Clause implications of having Government 
officials pick and choose between which religion will have its 
faith advanced during a government-funded program. So you have 
to answer the question, are you funding the faith or not. If 
not, you don't need charitable choice. And if so, address the 
Establishment Clause of the First Amendment.
    There is another important policy question that has to be 
addressed, and that is should we allow employment 
discrimination in federally-funded programs. Now, the Ranking 
Member, Mr. Hatch, cited the Pew poll to show that people 
support faith-based funding. That same poll said that 78 
percent opposed discrimination in hiring, that same poll. Now, 
when you are talking Constitution, I think you get off base by 
citing polls, but if you are going to cite the poll, let's cite 
the whole thing. Seventy-eight percent opposed discrimination 
in employment.
    Discrimination in employment is not unprecedented in 
America. There was a time when some Americans, because of their 
religion, were not considered qualified for certain jobs. In 
fact, before 1960 it was thought that a Catholic could not be 
elected President. Before the civil rights laws of the 1960's, 
people of certain religions routinely suffered invidious 
discrimination when they sought employment.
    Sixty years ago this month, President Roosevelt established 
the principle in an executive order that you cannot 
discriminate in Government defense contracts on the basis of 
race, religion, color, or national origin. And the civil rights 
law of the 1960's outlawed schemes which allowed job applicants 
to be rejected solely because of their religious beliefs.
    Some of us are frankly shocked that we would be even having 
a debate over whether sponsors of Federal programs can 
discriminate in hiring. But then we remember that the passage 
of the civil rights laws in the 1960's was not unanimous, and 
it is clear that we are now using charitable choice to re-
debate the passage of basic anti-discrimination laws.
    Mr. Chairman, I believe that publicly financed employment 
discrimination was wrong in the 1960's and it is still wrong. 
Some have suggested that organizations should be able to 
discriminate in employment to select employees who share their 
vision and philosophy. Under present law, you can discriminate 
on just about anything you want, but because of our sorry 
history of discrimination against certain Americans, we have 
had to establish protected classes. Under Title VII, you cannot 
discriminate against an individual based on race, sex, national 
origin, or religion.
    The current exemption under Title VII for religious 
organizations is a common-sense exemption, but that exemption 
is intended to apply to the use of the funds of the religious 
organization. It was never expected to apply to the use of 
Federal funds.
    In addition to the insulting prospect that otherwise 
qualified individuals might be denied employment solely because 
of their race, there are other civil rights implications in 
terms of gender and race that have to be considered.
    Courts have read a constitutionally-based ministerial 
exception into Title VII that excludes some employment 
decisions by religious organizations from all provisions of 
Title VII, allowing discrimination on race, gender, and 
everything else. It is unclear how the ministerial exception 
would affect civil rights applicants under charitable choice. 
Other witnesses will discuss the shortcomings of Title VI in 
addressing that issue.
    Some suggest charitable choice is no different from present 
law which allows religiously-affiliated hospitals and colleges 
to receive public funds and then discriminate in some of their 
high-level positions. The courts in those cases have 
distinguished cases involving indirect benefits, like a college 
student choosing where to go with his Pell grant, from a direct 
benefit where the Government provides a direct contract for 
services.
    Now, if charitable choice were a voucher program where the 
drug addict would select the program he is going to participate 
in, rather than a grant program where the Government selects 
the program, the analysis might be different. But there is no 
question that there should be no discrimination in programs 
selected by the Government to provide those services.
    Charitable choice therefore represents an historic reversal 
of decades of progress in civil rights enforcement. The 
President and supports of charitable choice have promised to 
invest resources in our inner cities, but it is insulting to 
suggest that we can't get those investments unless we turn the 
clock back on civil rights. Therefore, the faith-based 
initiative should not proceed without strong civil rights 
protections.
    Mr. Chairman, there are other problems with it. You have 
mentioned licensing. That is one. There are other problems with 
the Establishment Clause and discrimination. I think those are 
the two major ones.
    Let me just say one final thing. We have talked about the 
present laws that have been passed and enacted. The Committee 
ought to review the signing statements when President Clinton 
signed those bills. He stated, in signing, that he was signing 
them with the interpretation under the Establishment Clause 
which specifically rules unconstitutional most of what they are 
trying to do under charitable choice. It is interesting that 
there has been, under the Clinton administration, no funding of 
the pervasively sectarian organizations because that is a 
direct affront to the Establishment Clause.
    I thank you for holding the hearing, Mr. Chairman and Mr. 
Hatch, and thank you for your courtesy in allowing me to 
participate.
    Chairman Leahy. Thank you very much.
    Senator Hatch. Could I make one comment?
    Chairman Leahy. Of course.
    Senator Hatch. Representative Scott, you mentioned in your 
testimony that the charitable choice legislation would permit 
religious groups to advance their religion during the provision 
of government-funded social services.
    I would just like to clarify that the charitable choice 
legislation that we have drafted specifically prohibits 
religious organizations from using funds for, quote, 
``sectarian worship, instruction, or proselytization,'' 
unquote.
    The law that exists today was enacted during Lyndon 
Johnson's tenure and does permit religious discrimination based 
upon valid religious reasons. Both the Democrat Senate and 
Democrat House of Representatives at the time passed that 
legislation.
    I wanted to make it clear that our bill specifically 
prohibits religious organizations from using funds for worship 
or proselytization or particular indoctrination or anything 
like that.
    Representative Scott. Well, Mr. Hatch, in my remarks I 
pointed out that although that prohibition is there, there is 
nothing to prohibit volunteers from coming over and capturing 
the program and converting it into a worship service.
    Now, if it is the position that those words are to prohibit 
not only the Federal funds to be used for proselytization but 
also the program through volunteers or otherwise being 
converted into a religious program, then you don't need 
charitable choice.
    I would also point out that the civil rights exception with 
Title VII was in the expectation that that would be church 
money that you would be using, not Federal money, in hiring. 
The church can hire whatever the church or religious 
organization wants, but with Federal funds I think, according 
to the poll that you cited, 78 percent of the people would 
oppose using Federal funds in a discriminatory fashion.
    Senator Hatch. Well, I would also accept that with regard 
to personal religious beliefs. I mean, I think the civil rights 
law is basically pretty clear on that.
    Representative Scott. Not with Federal money.
    Senator Santorum. They didn't differentiate. You are 
projecting that they differentiated in the case and they did 
not do so in that case.
    Senator Hatch. That is right.
    Representative Scott. Well, they didn't differentiate 
because there was no expectation that you would ever fund 
pervasively sectarian organizations.
    Senator Santorum. You are making an assumption of what the 
court is saying without any backing to say that.
    Senator Hatch. Well, we are not doing that here.
    Chairman Leahy. Well, I think the Congressman raises a 
valid point. The Senator may disagree with it, but I think it 
is still one of the things this Committee is going to have to 
wrestle with and I think that is something both of you would 
agree on.
    I am going to submit for the record a number of items. Of 
course, we will leave the record open for a week for 
submissions and questions.
    If there are no questions of either of these members, I 
want to excuse them.
    Senator Brownback. Mr. Chairman?
    Chairman Leahy. Senator Brownback?
    Senator Brownback. I don't have any particular questions 
for these members, but because there is still some question 
about how we are organized, I would like to ask unanimous 
consent that my opening statement be included in the record, as 
I went on the Committee this term in Congress and I know there 
is a question about how things are organized now.
    Senator Biden. You mean you want it in before you get 
knocked off the Committee?
    Senator Brownback. That is correct.
    [Laughter.]
    Chairman Leahy. Sam, we want you on the Committee.
    Let me do this just so there won't be any precedential 
thing, and I mentioned this before you came in. This hearing 
had been noticed by Senator Hatch earlier.
    Senator Hatch. At your request.
    Chairman Leahy. He had wanted to have it at a different 
time and had to change it because of me. Obviously, with that 
and with the history of accommodation between the two of us, I 
went forward with the hearing.
    Let's do it this way. By consent, anybody who was a member 
of the Committee last week, and I hope will be on it in the 
future, can feel free to submit statements and questions and 
participate in this.
    Just so people will understand the precedent, we made an 
exception for this hearing, my courtesy to Senator Hatch and 
his courtesy to me earlier on the scheduling. Again, as I said, 
while we have not held judicial confirmation hearings yet this 
year, for a number of reasons, we will begin those within two 
weeks of the time of reorganization, and I would hope even less 
than two weeks, but I just don't know how the paperwork moves 
around. So this will probably be the only hearing we will do 
until that.
    Obviously, the Senator has had probably as much an interest 
in this as anybody in the Senate and should have a right to get 
his questions in.
    Gentlemen, thank you very much for being here. Well, could 
you hold just a moment? I am sorry.
    Senator Biden. If I could just ask a few questions of our 
colleagues?
    Chairman Leahy. Yes, go ahead.
    Senator Biden. Bobby, can you wait just for a second? I 
won't take much of your time.
    Mr. Chairman, I would ask unanimous consent that my opening 
statement be placed in the record as if read.
    Chairman Leahy. Without objection.
    Senator Biden. There is an old expression that was revived 
when Ronald Reagan was President, which is ``if it ain't broke, 
don't fix it,'' and I am not sure that we are going to break 
something that is fixed here. I am not sure, I just simply 
don't know.
    I would like you both to answer just two questions, and I 
am not going to talk about the Establishment Clause or the 
constitutional issues for the moment, but I acknowledge they 
are issues that have to be resolved.
    When we are talking about, as you do, Senator Santorum, the 
need to get to much smaller faith-based organizations that 
don't have the infrastructure to compete for Government 
funding, can you tell me whether or not you are assuming that 
they will have to meet the same standards relative to 
competence, capability, et cetera, to be able to get the money?
    Senator Santorum. They are going to have to compete for 
this funding like anybody else.
    I was just in Pittsburgh earlier this week and we had 
something that we have never done in Pittsburgh all as a result 
of this discussion on the faith-based initiative, which is a 
bunch of the small, denominational churches got together with 
the Catholic Church and with other churches in the Pittsburgh 
community and they formed a consortium to take advantage of 
what they see now as a more receptive Government toward their 
institutions and their ministries in these small communities.
    I talked to the bishop in Pittsburgh about this several 
months ago and encouraged him to move forward with this. The 
Catholic Church has a great--I mean, as far as technical 
assistance is concerned, they have been doing it for a long 
time; they know how to do it and they do it well. What they are 
going to do is provide some technical assistance to some of 
these churches which heretofore have not participated.
    All of these churches are now willing to come forward 
because they see a less hostile Government toward what they do. 
Now, that doesn't necessarily mean that the Government won't 
say to them, well, we don't particularly want to fund what 
particularly you do, because there may be some things that the 
Government may not be willing to fund.
    Senator Biden. Well, let me get to one place that I know a 
lot about substantively. There is a lot I don't know, as is 
obvious, but one of the things I do know a fair amount about 
just from doing it for so many years is the drug treatment 
area.
    I know you are not a spokesman for the administration, but 
you are very involved in this. Based on your statement, which I 
thought was very clear explaining where we were now, can you 
tell me whether the administration definitely supports medical-
based treatment for drug abuse; that it wouldn't support 
funding that did not meet basic medical standards?
    Senator Santorum. I am not a spokesman for the 
administration on this and, as you know, we have an expansion 
already with, I guess, the bill that was signed in December 
that gets into drug and alcohol treatment.
    I would suspect that the agency in charge, which I assume 
in this case would be the Department of Health and Human 
Services, would have certain criteria that organizations would 
have to be competent in to be eligible to receive those funds, 
and I don't believe they will waive those criteria for this 
program.
    Senator Biden. Would you oppose language in legislation 
requiring that in these beneficial choice, as you call it, or 
charitable choice programs the personnel administering the 
program be licensed and certified under whatever the State or 
Federal law is?
    Senator Santorum. I think those are things that we 
certainly can work on. Obviously, one of the concerns on any of 
these treatments is to make sure that we don't create so many 
limitations on these programs that they can't be effective.
    But I would agree with this: there are certain things, 
there are certain base requirements--
    Senator Biden. Basic threshold requirements.
    Senator Santorum.--basic things that we should adhere to, 
and we shouldn't change them simply because it is a faith-based 
organization.
    Senator Biden. Good. Again, let me give you just one 
example because I want to make sure I understand this. For 
example, let's assume there is a day care facility provided by 
a faith-based organization under the new legislation. I assume 
you would be arguing that in order to receive this funding, 
they would have to adhere to basic requirements--smoke 
detectors, emergency doors, all those basic things.
    Senator Santorum. All the requirements that are going to be 
required of secular organizations should be similarly required 
of anybody competing for these funds.
    Senator Biden. Lastly--and I appreciate the time--
Congressman Scott, I thought quite frankly your constitutional 
analysis was right on the button in terms of the distinction 
between indirect and direct aid.
    What I would like to ask you is if you could only pick one 
concern, what is the single most serious concern you have? It 
may be an unfair question because they may be of equal 
consequence to you.
    Representative Scott. Part of the concern is--I think you 
started off with if it is not broke, don't fix it--what are we 
trying to fix. Why are you providing discrimination? I think 
that is the most offensive, and according to the poll that was 
cited--and I hate citing polls particularly when you are 
talking about the Constitution because it doesn't work in a 
constitutional analysis, but 78 percent don't agree with that.
    Charitable choice doesn't help the small organization. They 
have still got to go and get the grant. They have got to write 
the grant. They are going to be audited. They have to perform. 
Small organizations have the same problems, and the technical 
assistance can be done under present law. The outreach, the 
attitude, that can be done under present law. What charitable 
choice does is you can proselytize during the program. You can 
have a religious message and you can discriminate based on 
religion.
    Senator Biden. Is it only on religion? That is not 
insignificant, but is it only an ability to discriminate based 
on religion?
    Representative Scott. My view is that the ministerial 
exception probably allows racial discrimination, too. There 
will be others who will speak to that. Furthermore, I have 
never seen a church sued for racial discrimination in hiring. 
In one State, maybe once a year you might, but with all of the 
hiring decisions made by all of the churches, the suggestion 
that there is no discrimination out there is ridiculous.
    Senator Biden. Can Catholic Charities now, which sets up a 
501(c)(3) in order to be able to receive Government funding--if 
either of you would answer this question, can they say that no 
one can work for Catholic Charities who is not a Roman 
Catholic? Are they able to say that now?
    Senator Santorum. They don't say that.
    Senator Biden. I know they don't say that. I am just trying 
to ask the question. Well, let's say a 501(c)(3) program set up 
by the Lutheran Church for housing. In my State, the Lutheran 
Church has done more to provide housing for the elderly than 
any organization in my State.
    Legally, as it stands now, can they say that you cannot 
work the Lutheran 501(c)(3) program unless you are a Lutheran? 
They can say that about their church.
    Representative Scott. There are some positions possibly in 
Catholic Charities that you have to be Catholic, but those will 
not be paid for with Federal money.
    Senator Santorum. It is hard for me to answer that question 
because I don't know of any organization that makes that claim. 
What many will say is that people have to believe in certain 
things or have to have a certain approach that is consistent 
with their approach, but that is no different than any other 
organization.
    Senator Biden. With 12 years of Catholic education, I 
understand it. As a practicing Catholic, I understand it. As a 
guy who carries my rosary beads, I understand it. I have got 
that part; I understand it. I am not asking whether Catholics 
discriminate. I want to know, can we?
    Representative Scott. I don't know of any real estate 
agency that says they discriminate in renting, but if you send 
testers out there, the white will get the apartment and the 
black won't.
    Senator Biden. I guess what I am trying to get at is there 
any distinction between the existing method by which religious-
based organizations set up programs to aid and assist in the 
social service area, whether it is housing or drug rehab or 
whatever it happens to be--now, they are required to have a 
501(c)(3) to do it and get Federal money.
    Is there any distinction between what the law requires now 
and what would be required if this legislation passed?
    Senator Santorum. No, there is no change.
    Representative Scott. Yes, there is a change.
    Senator Santorum. There is no change.
    Senator Biden. I want you to tell me why.
    Senator Santorum. There is nothing in any of these statutes 
that changes the Civil Rights Act. There is nothing in there.
    Representative Scott. Then we don't need charitable choice 
if there is no change.
    Senator Santorum. But those are not amendments to the Civil 
Rights Act.
    Representative Scott. Well, then you say there is a change. 
If there is no change, you don't need charitable choice. I am 
suggesting that there is a change, and the change is that the 
religious organization can take the Federal money and hire 
somebody with the Federal money and discriminate on the basis 
of religion, and possibly race, too, but certainly in the words 
of the legislation they can discriminate--
    Senator Santorum. With all due respect, that is not a 
question of hiring. That is a question of uses of Government 
funds, but it is not a question of Title VII. The issue of 
Title VII and hiring has nothing to do with what the 
organization uses the money for. It is whether they can hire or 
not.
    Senator Biden. Well, my time is up, and I made a wise 
decision in not deciding to chair this Committee. So I yield to 
the Senator from New York, who is temporarily chairing it, and 
I am getting the heck out of here and go pray on this.
    Senator Schumer. [presiding]. Well, thank you, and we are 
going to take a 15-minute break because of the interregnum 
passing of the baton on the floor which we want to be part of.
    I guess you are the Ranking Member as of 11:00.
    The Ranking Member wanted to make a brief statement and we 
will do that.
    Senator Hatch. Well, I just wanted to state for the record 
that at the request of Senator Biden, S. 304 requires that, 
quote, ``Any program carried out with funds authorized under 
this Act shall be based on a program shown to be efficacious, 
and shall incorporate research-based principles of effective 
substance abuse treatment,'' unquote. I just want to make that 
matter clear.
    Senator Specter. Mr. Chairman, before we break, may I ask 
one question?
    Senator Schumer. Well, we really have to be on the floor.
    Senator Specter. Well, let me just make a very brief 
statement without articulating a question.
    Senator Schumer. The Senator from Pennsylvania is 
recognized.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. I commend Senator Santorum and Congressman 
Scott for their work here today. There may not be time for a 
response, but the concern that I have is the one on 
proselytizing. There are many complex issues on separation of 
church and state, and there isn't time for a response now.
    I just want to welcome former mayor Wilson Goode, from 
Philadelphia, who is here on panel three. This hearing has been 
set on about the toughest day of the year, if not the 20 years 
that I have been here.
    Thank you very much.
    Senator Schumer. I thank you.
    Representative Scott. Mr. Chairman, I can respond in a 
second.
    Senator Schumer. I would ask that the record be laid open 
for written responses for both the Senator from Pennsylvania 
and my good friend from Virginia.
    With that, we will resume at 11:20.
    [The Committee stood in recess from 11:03 a.m. to 11:41 
a.m.]
    Senator Schumer. The hearing will come to order. I 
apologize to everybody. As you know, Senator Byrd was sworn in 
as President pro tem and that made Senator Daschle Majority 
Leader, and I thought that Senators should have the opportunity 
to be there to witness something that is historic and unique in 
American history, the passing of the baton in a peaceful way. 
So I apologize to everybody who had to wait.
    Our next witness is Mr. Carl H. Esbeck. Mr. Esbeck is 
senior counsel to the Deputy Attorney General at the Department 
of Justice. He works in cooperation with the Office of Faith-
Based and Community Initiatives at the White House.
    Mr. Esbeck, we appreciate your taking the time to be here. 
You have 5 minutes and the rest of your statement will be put 
in the record.

   STATEMENT OF CARL H. ESBECK, SENIOR COUNSEL TO THE DEPUTY 
   ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Esbeck. Thank you, Chairman Schumer.
    I believe that we do have common ground in several 
respects. First, as we get into the legal issues, and indeed 
they are important, it is easy to forget that ultimately this 
is about people, and, of course, people who are poor and people 
who are needy, in particular with chemical addictions.
    Faith-based groups are uniquely positioned to reach these 
hard-to-reach individuals for two reasons, I think. They have 
high access and high credibility. By high access I mean they 
are in these neighborhoods, they know these people. These are 
the people they run into at the grocery stores and at the 
corner gas stations. But also they have high credibility with 
these people. They trust them, they know these leaders. They 
have had experience with them. Charitable choice provides 
options. It would be foolish not to take advantage of these 
specially-situated faith-based organizations.
    Second, everyone here wants faith-based organizations to 
retain their full religious character. Neither side wants to 
give them funding beyond their means without adequate technical 
assistance, and no one wants to silence what they call their 
prophetic voice, which is to say when they speak out and 
criticize Government. And no one wants them to become dependent 
on Government funding and thereby lose their religious 
moorings.
    That is why a good deal of the text of charitable choice is 
spent surrounding these organizations with autonomy 
protections. If they retain that autonomy or freedom, then they 
will be free to continue to do their good work.
    The third area of common ground: No one here wants to force 
religion upon those who are receiving services, and the 
drafters of the bill take care of that.
    Fourth, there is continued, maybe growing interest in 
indirect forms of aid. That is sort of like the funding that we 
had through a GI bill. The interest, of course, is because 
there are then less constitutional restrictions on faith-based 
organizations. This ought to be pursued.
    And fifth, and last, no one wants to harm that venerable 
American tradition, separation of church and state. But the 
choice here is not between church and state and something else. 
Instead, the debate is over what do you mean by separation.
    What charitable choice does is it shifts the focus. No 
longer is the focus on the organization and you ask, well, who 
are you, or how intensely religious are you. Instead, the 
question is what can you do; how can you restructure who you 
are so that you can operate within the statutory and 
constitutional parameters. If you are willing to do that, then 
you compete for funding the same as anyone else.
    Now, what does a program have to do in order to comport 
with the latest U.S. Supreme Court cases? First, there can be 
no Government aid diverted to sectarian activity. Second, no 
one receiving welfare benefits can be compelled to participate 
in sectarian activities.
    Charitable choice is not for every faith-based 
organization. No one has ever claimed otherwise. But for those 
faith-based organizations who are willing and able to follow 
the rules, charitable choice provides another very valuable 
option for raising Americans out of poverty.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Esbeck follows:]

  STATEMENT OF CARL H. ESBECK, SENIOR COUNSEL TO THE DEPUTY ATTORNEY 
                     GENERAL, DEPARTMENT OF JUSTICE

                              Introduction

    By letter of May 24, 2001, the Senate Judiciary Committee invited 
the views of the U.S. Department of Justice concerning statutory and 
constitutional issues raised by Sec. 701 (charitable choice) of S. 304, 
The Drug Abuse Education, Prevention, and Treatment Act of 2001. Thank 
you for the invitation. This document is the Department's response to 
the Committee's letter.
    Charitable choice is already part of three federal social service 
programs. The provision first appeared in the Personal Responsibility 
and Work Opportunity Reconciliation 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 faith-based.
    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 brightlines, 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 Sec. 701 of S. 304.

                     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 Sec. 701 of S. 304 be 
strengthened by amending subsection (h) 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 Ill, 
below. The suggested Certificate of Compliance has the purpose of 
impressing 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\
    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 furtherance 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 Sec. 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 Sec. 702(a) exemption is not 
forfeited when an FBO becomes a provider of publicly funded 
services.\28\ Indeed, charitable choice expressly states that the 
Sec. 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 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 
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 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 LemonlAgostini 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\
    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 an hour break for free-time 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 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 diversionprevention 
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 LemonlAgostini 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 1, 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 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 self-
audits. 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 Sec. 701 of S. 304.

                               Conclusion

    Charitable choice facially satisfies the constitutional parameters 
of the LemonlAgostini 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 Sec. 701'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.

                               End Notes

    Senator Schumer. Thank you, Mr. Esbeck, and we appreciate 
your concise testimony. Your entire statement, as I mentioned, 
will be read in the record. Let me just ask you a couple of 
questions here.
    Now, let me ask you this one: Do you read S. 304 so that it 
would allow a faith-based group that takes Federal grants to 
refuse to hire not just someone of a different religion but, 
say, someone who has a different lifestyle the group 
disapproves of, children outside of marriage, sexual 
orientation?
    Mr. Esbeck. Under Title VII--and I should say charitable 
choice just sort of incorporates the Federal civil rights 
regime that is there. Under 702(a), a religious organization 
can continue to staff on a religious basis. Or if you want to 
put that in the negative, they can continue to, but not on 
lifestyle matters.
    Senator Schumer. But not on lifestyle matters. Okay, thank 
you.
    If religious groups that receive Federal funding aren't 
going to engage in worship or religious instruction in the 
programs they run, then just tell the Committee why they would 
need to be allowed to refuse to hire adherents of other faiths 
to administer non-religious programs. Obviously, if it is a 
religious program, it would be a different issue.
    Mr. Esbeck. That is a good and commonly asked question and 
it has to do with a matter of perspective. Of course, from the 
Government perspective, to supply housing for the homeless or 
food for the hungry, that is secular business. But from the 
standpoint of the faith-based organization, it is religiously 
motivated.
    A good way to think about this is think of the ministry of 
Mother Teresa. Obviously, from the Government's perspective she 
is doing secular work because she is tending to the sick and to 
the dying. But obviously from the standpoint of her and the 
religious order that she represents, she is doing this as a 
matter of mercy or a mission of mercy out of her religious 
motivation. So they obviously want to gather people who are of 
like-minded faith.
    Senator Schumer. Now, in your testimony you give the 
example of a faith-based welfare-to-work program in 
Philadelphia that engages in Bible study that you believe to be 
constitutional because it wasn't funded by the Government. It 
took place during a break in the job training class and it was 
held in a different room from the job training class. You seem 
to be saying that this sort of separation was the sort of model 
you need to comply with the Constitution.
    This is, to me, one of the most difficult questions. I am 
not adverse to seeing religious organizations perform 
activities. When I wrote the crime bill, I made sure that 
churches, for instance, could run after-school programs because 
in many communities that was the best place to run them.
    But what happens if the faith-based program doesn't 
separate religious study out of the social program? Let us say 
we have the ``come to God, get yourself off drugs''--or ``come 
to Jesus,'' but I don't want to involve one religion or 
another, so ``come to God, get yourself off drugs'' program, 
and the program is Bible study and let's say it works. Should 
that be funded?
    Mr. Esbeck. Let me ask you to turn to the bottom of page 5 
of my prepared remarks. In that footnote, what we set forth 
there for the Department of Justice is our sort of 
codification, if you will, of the constitutional parameters 
that come out of the recent court opinion, Mitchell v. Helms of 
last year, which built upon Agostini v. Felton from 1997.
    Let me state it and then point you to the particular 
sentence. Again, it is footnote 15, bottom of page 5.
    Senator Schumer. Footnote 15, yes. It is nice that you told 
us it was page 5, but we don't have numbers on the pages.
    Mr. Esbeck. Sorry.
    Senator Schumer. So footnote 15. Thanks.
    Mr. Esbeck. Let me just sort of state it directly. In the 
government-funded program, there cannot be sectarian activity.
    Senator Schumer. Correct.
    Mr. Esbeck. And, of course, a Bible study would be 
sectarian activity. So with reference to this proposed 
amendment to the bill, if you will look at the second 
sentence--the first sentence, of course, is just a rewriting of 
the sentence which is in the bill, but this codifies the two 
rules that I mentioned in my opening remarks, one of which is 
directly pertinent here.
    It says, ``If the religious organization offers such 
activity,'' which is sectarian activity, ``it shall be 
voluntary for the individuals receiving the services and 
offered separate from the program funded under the Act.'' So 
the sectarian activity, if it is a Bible study, has to be 
offered separate from the government-funded program. In that 
particular example, it was a readiness to work program funded 
by welfare-to-work funds. But that study was separate, and also 
it was very clear that it was completely volitional.
    Senator Schumer. Okay, so let me just give you the 
hypothetical of a program whose major method, say, in drug 
treatment was Bible study and 90 percent of it was Bible study. 
You would say that could not be funded?
    Mr. Esbeck. That could not be directly funded under the 
parameters of Mitchell v. Helms, that is right.
    Senator Schumer. And the bill doesn't attempt to change 
that? It is a tough question. I mean, it is a tough question.
    Mr. Esbeck. Not only doesn't it change it, but it writes a 
rule which makes it clear that they cannot do that.
    Senator Schumer. All right. Let me ask you this one; this 
is about Mitchell as well. Justice O'Connor's controlling 
opinion places importance on the fact that Federal funds did 
not, quote, ``reach the coffers of a religious school'' in that 
case. Rather, the State paid for books and other materials that 
were loaned to religious schools.
    In the case of S. 304 and other charitable choice bills, 
Federal money would go directly into the coffers of religious 
groups, which would free up money to pay for religious 
activities. Do you think this is permissible under Justice 
O'Connor's opinion?
    Mr. Esbeck. What Justice O'Connor had there were several 
factors which she pulled out which she saw as, and I think 
rightly so, preventing diversion of Government funds to 
sectarian activities, which, of course, violates her rule. 
Under charitable choice, it is required that separate accounts 
be kept, and the Government funds have to be kept in these 
separate accounts so that any funds from that account cannot be 
diverted to sectarian activities.
    Senator Schumer. So you are saying the funds couldn't be 
diverted to that activity, but if the funds took the place and 
then the privately-raised funds by the religious organization 
were used for that activity, that would be okay?
    Mr. Esbeck. Yes. The Supreme Court under the Establishment 
Clause, even going way back to the 1930's, has rejected the 
interpretation of the Establishment Clause or the so-called 
freed-up funds theory. That has never been--
    Senator Schumer. I agree with you there. I don't think that 
that is fair to say, well, you get the money for this, then you 
can use your own money for that. But that is the very argument 
the President is making in terms of family planning money, 
because the present law doesn't allow us to fund family 
planning activities overseas. But the President has said 
repeatedly it is fungible. So if we give money to this group to 
do allowed activities, then they can use their own money for 
family planning. It is a total contradiction.
    How would you, as a member of the administration, resolve 
that contradiction?
    Mr. Esbeck. It depends upon what constitutional doctrine 
you are using there. We just used the one under the 
Establishment Clause, but in the Mexico City policy the 
question there is what is the scope of the Federal spending 
power. That is a completely different test. The Court has said 
as a matter of constitutional law that the Government can 
choose to withhold funds under its spending power to achieve 
public policy purposes.
    Senator Schumer. I have other questions which I would ask 
unanimous consent be submitted in writing.
    They have called a vote, so I want to give my colleague, 
Senator Hatch, a chance to ask questions before we briefly 
recess for that vote.
    Senator Hatch?
    Senator Hatch. Thank you.
    Senator Schumer. If you don't mind, Orrin, I will go vote 
while you are asking the questions and come right back.
    Senator Hatch. If you can hurry back, yes, I will recess if 
you don't get back in time.
    Senator Schumer. Good. We have held you up long enough and 
we won't hold everybody up longer. Thanks.
    Senator Hatch. Mr. Esbeck, Senator Santorum and 
Representative Scott were asked what exemptions exist in Title 
VII for religious discrimination in hiring by a religious 
organization. I believe the question referred to whether 
Catholic Charities can say we will only hire Catholics.
    For clarification purposes, can you just elucidate on that?
    Mr. Esbeck. Right. Under Title VII, the 702(a) exemption, 
which is for religious organizations who choose to staff on a 
religious basis--Catholic Charities can have a rule that we 
hire only Catholics. I recognize they don't have that, but they 
can if they want to, and I believe that was the question that 
Senator Biden was asking.
    Senator Hatch. The critics of charitable choice seem to 
argue that members of faith-based organizations simply cannot 
be trusted to follow guidelines preventing the use of 
Government funds for proselytizing activities. Hasn't this 
argument been decisively rejected by the Supreme Court in the 
past?
    Mr. Esbeck. Yes. Again, that takes us back to Mitchell v. 
Helms. The controlling opinion there says that within the 
government-funded program there is to be no sectarian activity. 
Obviously, proselytizing is a sectarian activity. It is one of 
those three specifically called out in the charitable choice 
statute.
    But the difference that we have here--I mean, several prior 
questions were, well, then what is the difference between the 
prior system and charitable choice? Actually, it is quite a 
lot. What charitable choice does is it ends the discrimination 
against those who have a high religiosity or have a high 
profile in their religious character.
    Under the old regime, they could not even qualify for 
applications for grant funding, but now it shifts the debate. 
It is no longer who are they, but what can they do, what are 
they willing to do. So they continue to have a high level of 
religiosity, but if they are prepared to structure a federally-
funded program in a way that meets those Mitchell v. Helms 
parameters and keep sectarian activity out of that, they can do 
that.
    Senator Hatch. Well, some have expressed concern over 
Government's entanglement with religion under the Lemon test, I 
suppose. But hasn't the Supreme Court made clear that where 
there are adequate safeguards, Government funds may 
constitutionally be awarded to faith-based organizations for 
the delivery of social services?
    Mr. Esbeck. Yes. Again, we can look to Mitchell, but there 
are many other cases that deal with that. The controlling 
opinion there again said, sure, there has to be some 
monitoring, of course, to prevent this diversion of Government 
funds to sectarian activity, but you no longer need to have 
this pervasive, almost brooding daily monitoring of these 
organizations. So that sort of excessive entanglement test has 
been much toned down, I would say, on the current Court.
    Senator Hatch. It is my understanding that charitable 
choice provisions do provide for a variety of safeguards to 
prevent their unconstitutional application. Isn't it true, for 
example, that in order to obtain any Government funds, faith-
based organizations must demonstrate that they can effectively 
deliver the services that they are promising and that they have 
to respect clients' civil liberties and account for all public 
money spent?
    Mr. Esbeck. Yes, all three of those things are true. If 
they can't deliver the services, they are simply not going to 
be competitive in trying to get the grant.
    Senator Hatch. Well, some critics claim that it is 
unconstitutional for direct grants to be awarded to, quote, 
``pervasively sectarian,'' unquote, organizations that would 
risk, quote, ``an excessive entanglement of Government with 
religion,'' unquote.
    However, the so-called pervasively sectarian test was first 
articulated in Lemon v. Kurtzman. The last case in which the 
Court struck down governmental aid using the pervasively 
sectarian test was Grand Rapids School v. Ball, as I understand 
it, but Ball was recently discredited, I believe, and partly 
overruled in Agostini v. Felton. Even Justice Blackmun, in a 
dissenting opinion joined by Justices Brennan, Marshall and 
Stevens, described the phrase, quote, ``pervasively 
sectarian,'' unquote, as, quote, ``a vaguely defined term of 
art,'' unquote.
    Is it your view that the pervasively sectarian test really 
has been discredited?
    Mr. Esbeck. It is now irrelevant. That is my view. Let me 
explain just briefly why. It is a presumption, and the Court in 
Mitchell v. Helms, when you put the four-judge plurality 
together with Justice O'Connor's two-judge opinion, it is 
pretty clear that there is to be no operative presumption that 
when an organization of high religiosity receives Federal funds 
that they are presumed to have diverted those to sectarian 
activities. Justice O'Connor made it clear there has got to be 
actual proof of diversion, so the presumption is gone.
    Senator Hatch. Well, thank you. I hate to have you wait, 
but I am not sure that colleagues on the other side or our side 
will have questions when I return. But I am going to have to 
recess so I can get over and vote. I am stuck with a whole wide 
variety of meetings, so I may not be able to return, but I just 
want to thank you for being willing to be here and for your, I 
think, very careful elucidation of what this bill is all about, 
or what faith-based aid is all about.
    So with that, we will recess until Senator Schumer or 
others can get back.
    [The Committee stood in recess from 12:01 p.m. to 12:13 
p.m.]
    Senator Schumer [presiding]. Again, I apologize. We had a 
vote on the education bill.
    Mr. Esbeck, thank you. I don't have any further questions. 
If I do, I will submit them in writing and, with unanimous 
consent, ask that you respond within a reasonable period of 
time.
    I would like to call panel three forward. They are: 
Reverend Dr. W. Wilson Goode, Sr., Dr. Charles G. Adams, Rabbi 
David Zwiebel, Reverend Eliezer Valentin-Castanon, Mr. Edward 
Morgan, Mr. John Avery, Mr. Wade Henderson, Mr. Nathan Diament, 
Mr. Doug Laycock, and Mr. Richard Foltin.
    It is a very full panel, but we are trying to accommodate 
everybody, given the schedule. So I am going to ask each member 
of the panel to adhere strictly to the five-minute rule, and 
the Committee would not look askance if you could say what you 
had to say in less than 5 minutes.
    To save a little time, I am to just ask unanimous consent 
that instead of reading everybody's biography we just have it 
inserted into the record.
    Senator Schumer. We will begin with Dr. Goode. Thank you 
very much for coming, Dr. Goode.

STATEMENT OF REVEREND DR. W. WILSON GOODE, SR., SENIOR ADVISER 
   ON FAITH-BASED INITIATIVES, PUBLIC/PRIVATE VENTURES, AND 
       RECTOR, AMACHI PROGRAM, PHILADELPHIA, PENNSYLVANIA

    Reverend Goode. Mr. Chairman, good morning. I come in 
support of S. 304 and I just want to really make a couple of 
comments.
    I am W. Wilson Goode, Senior Adviser on Faith-Based 
Initiatives, Public/Private Ventures, and Chairman of the 
Mayor's Commission on Faith-Based and Community Initiatives. I 
come to speak of a specific problem that the bill addresses, 
and that is children of incarcerated parents.
    There are 2.2 million children in the country whose parents 
are incarcerated, and if indeed we include those who are on 
probation and parole, there are at least 20 million children 
who fall in that category. These children are the most at-risk 
in our society. They suffer from high rates of child abuse and 
neglect, illiteracy, drug and alcohol abuse, crime, violence, 
and 70 percent of them become incarcerated themselves. They 
also suffer from premature death.
    Research shows that having a mentor will have a significant 
reduction on young persons and that they will not involve 
themselves in drugs and alcohol. It will improve their school 
performance and attendance, and reduce the incidence of 
violence and improve their relationships with their custodial 
parents.
    Through grants from the Pew Charitable Trust and William E. 
Simon Foundation, Public/Private Ventures has developed the 
Amachi Program. ``Amachi'' means ``who knows what but God has 
brought us through this child.'' The goal of the program is to 
involve a consistent, caring adult in the life of a child whose 
parents are in jail.
    In partnership with Big Brothers, Big Sisters, the local 
congregation, and the Center for Research on Religion and Urban 
Civil Society at the University of Pennsylvania, Public/Private 
Ventures has started the Amachi Program. To date, 550 
volunteers have been identified and recruited from 43 
congregations in 4 geographic areas of Philadelphia where there 
are large concentrations of children whose parents are in jail. 
We believe that we can give these children a real chance at not 
going to jail themselves.
    The mentors are given criminal background checks, child 
abuse checks, and trained and interviewed before a match with a 
child takes place. The caretakers and the children are 
interviewed before the match. The bringing together of the 
child and the mentor is done under the high national standards 
of Big Brothers/Big Sisters of America. The local Big Brothers/
Big Sisters indeed will monitor the match.
    To date, we have recruited over 550 adults as mentors. We 
expect to have 600 by the end of June, and we have recruited 
more than 800 children on rosters whose caretakers and parents 
have agreed to let them be mentored.
    Senator Schumer. One minute, Reverend Goode.
    Reverend Goode. To date, 250 of these children have been 
matched with a mentor. We expect to have 600 by August 1.
    In conclusion, let me just simply say that I believe that 
by having resources available to local faith institutions, we 
can redirect the lives of young people. Without this 
intervention, without a loving, caring adult in their lives, 
without intervening in their lives, they will end up in jail 
themselves. There is no better way, in my view, to turn the 
lives of young folks around and reduce our prison population 
and change the entire culture of communities than through a 
program like this.
    Thank you for your time, sir.
    [The prepared statement of Reverend Goode follows:]

  STATEMENT OF REV. DR. W. WILSON GOODE, SR., SENIOR ADVISOR ON FAITH-
               BASED INITIATIVES, PUBLIC/PRIVATE VENTURES

    I am W. Wilson Goode, Sr., Senior Advisor on Faith-Based 
Initiatives for Public/Private Ventures (P/PV). I come to this job 
after more than 35 years of active community and government service: I 
served for 10 years as the head of a local civic/neighborhood 
organization. I have also served as both Mayor and City Manager of 
Philadelphia. Most importantly, I have been a member of the same 
congregation for 47 experience.
    I will not address in this testimony all aspects of 5.304, but will 
focus on the charitable choice provision that will allow faith-based 
organizations to compete for government contracts to provide numerous 
services, including mentoring and drug treatment services.
    Let me add that I know firsthand the value of faith-based 
institutions being allowed to compete for government contracts and 
services. From 1966 to 1978, I worked with 50 faith-based organizations 
that utilized various housing programs to construct over 2,000 housing 
units for low and moderate-income families. As Mayor of Philadelphia 
from 1984 to 1992, I allowed faith-based organizations to compete for 
various social service contracts. These faith-based groups received 
more than $40 million annually. I have now put all my experience to 
work in the area of faith-based initiatives. I have done so because I 
believe it is the best hope for solving many of the social problems 
facing our urban and rural areas.
    This morning, I want to focus my comments on mentoring. 
Specifically, I want to talk about children whose parents are 
incarcerated, on probation or on parole. I believe these children are 
the most at-risk children in our country. Moreover, there are 2.2 
million of them whose parents are in federal, state and local jails. If 
we add to this list those parents who are on probation or on parole, 
the number of children is over 20 million.
    Through a grant from The Pew Charitable Trusts and the William E. 
Simon Foundation, Public/Private Ventures has developed a model that we 
believe will respond to these children. Here is the model:

                        AMACHI MENTORING PROGRAM

    By every measure, children of current and former prisoners are 
among the most severely at-risk children and youth, as they suffer from 
high rates of child abuse and neglect, illiteracy, drug and alcohol 
abuse, crime, violence, incarceration and premature death. Although 
there is no single approach to measurably improving the life prospects 
of these children, P/PV's evaluation of Big Brothers Big Sisters of 
America (BBBSA) documented that having a mentor significantly reduces a 
young person's initiation of drug and alcohol use, improves their 
school performance and attendance, reduces their incidences of 
violence, and improves their relationship with their custodial parent. 
Providing the children of incarcerated parents with this kind of 
support is the focus of the Amachi mentoring program. The goal is to 
involve consistently caring and supportive adults in the lives of 
prisoners' children.
    Amachi is a West African word meaning, ``Who knows but what God has 
brought us through this child.'' It is our hope that this name will 
reflect the spirit of hope for children that will unify all of our 
partners, both secular and faith-based.
    Amachi is a partnership of P/PV, the Big Brother Big Sister 
Association, local congregations and the Center for Research on 
Religion and Urban Civil Society at the University of Pennsylvania.

                            THE AMACHI MODEL

    Volunteer mentors recruited by congregations will be matched with 
the children of current or former prisoners. The Amachi program offers 
three types of mentoring programs:
        1. Community-based, one-to-one mentoring perfected by BBBSA 
        over many years, which pairs one child with one mentor who meet 
        weekly for at least one hour, choosing their own activities, 
        schedule and location;
        2. School-based, one-to-one mentoring, in which the pair meets 
        at the child's school at least one hour a week at a time 
        cleared with school administrators, and engages in either 
        recreational or educational activities; and
        3. Church-based, one-to-one mentoring similar to school-based 
        mentoring with the exception that the mentoring pair meets on 
        church property rather than at the school.
    Big Brother Big Sister case managers screen the volunteers and 
provide case management and supervision for all of the matches.
    In training volunteers, emphasis will be on the developmental 
approach identified in the P/PV study of BBBSA as more productive than 
a prescriptive approach that only offers youth such advice as ``stop 
drugs'' or ``go to church.'' Instead, volunteers will be trained to 
focus on developing trust, engaging in enjoyable activities and waiting 
for the youth to ask the mentor for guidance.

                          PROJECT ORGANIZATION

    Amachi staff are working with pastors to identify children of 
prisoners from their churches' communities and with prison chaplains to 
solicit child information from prisoners. Both incarcerated parents and 
custodial parents are asked for permission to engage the children in 
the mentoring program.
    At the same time, staff have identified 43 congregations that are 
willing and able to participate in mentoring. More than 550 mentoring 
volunteers have come from these churches. Additional congregations, 
representing all faiths, will be added in ensuing years.
    The churches are organized into four clusters of 10 to 12 churches 
per cluster in Southwest Philadelphia, West Kensington, North Central 
Philadelphia and South Philadelphia. These areas were chosen because of 
the great number of children of incarcerated parents in these areas as 
well as P/PV staff's familiarity with the congregations and 
neighborhoods.
    One religious organization in each cluster has hired a Community 
Impact Director to manage the recruitment of volunteers, as well as 
volunteer pre-match training and post-match support. In turn, each of 
the 43 churches will designate a Church Coordinator, who will help 
mobilize and support the volunteers once they begin meeting with youth. 
Finally, each congregation will be responsible for maintaining at least 
10 volunteer mentors in Amachi at all times. Continued participation in 
the project will be based on the cluster maintaining that number of 
volunteers.
    As of today, 550 volunteers have been recruited from congregations 
located in the four selected Amachi neighborhoods and from one suburban 
congregation. To date, BBBS staff and volunteers have screened, trained 
and approved 542 of the 550 volunteers. These Amachi volunteers 
represent an 84% increase in the number of mentors involved with the 
local BBBS affiliate. Of the 542 volunteers, 363 are females and 179 
are males. A concentrated effort has been underway since March to 
specifically recruit additional male mentors. Amachi staff have 
identified 800 children interested in having an Amachi mentor.
    BBBS staff are currently engaged in an intensive effort to match 
children and volunteers. Two hundred fifty matches have been made to 
date, and the goal is to make 600 total matches by August 1, 2001.
    As you can see, the Amachi program is working well. Already there 
are testimonies from children and mentors of lives being changed. I 
humbly urge you to support this effort and other faith-based efforts. 
Let me quickly mention one other program at Public/Private Ventures. 
Although it is not related directly to your Bill 304, it is indirectly 
related. Illiteracy keeps many children in darkness. Illiterate 
children and adults are at greater risk of committing crimes, selling 
drugs, and ending up in prison. The YET Center model could change much 
of that.

                              YET PROGRAM

    In March 2000, Public/Private Ventures made grants to 21 faith-
based organizations, representing a variety of settings from 
storefronts to large congregations, to develop literacy programs for 
those ages 4 to 24 years. The Youth Education for Tomorrow (YET) 
Centers are funded by The Pew Charitable Trusts and the Annie E. Casey 
Foundation and currently serve approximately 600 young people.
    Each YET Center operates four or five days each week with 90-minute 
daily sessions for those who are deficient in reading and language 
skills one to three years below grade level. Professional teachers are 
hired by the institutions and assisted by volunteers. The program 
consists of four parts: an oral language/vocabulary activity, a student 
writing activity, a basic reading program, concluding with an adult 
reading to the students from library-recommended books. All centers are 
using the model, and for the school-year programs that started in the 
fall, mid-year testing in January revealed that after only three and a 
half months students gained an average of almost one school year in 
reading achievement, with older students gaining several years. While 
testing, intake procedures and monitoring are new to these faith-based 
settings, all have been using the model.

                                SUMMARY

    I appreciate the opportunity to testify on 5.304 and to present you 
with a faith-based mentoring model for children of inmates, which has 
already resulted in measurable success. The fact that 250 children of 
inmates and volunteer mentors have been identified, trained, and 
matched in a short period of time (5 months) shows both the need for 
and willingness of faith-based organizations to be involved in the 
various drug treatment and prevention provisions that the charitable 
choice component of 5.304, Drug Abuse Education, Prevention, and 
Treatment Act of 2001, seeks to provide. I have also noted the literacy 
model because there is a strong connection between illiteracy rates in 
children and subsequent drug use and crime.
    Again, thank you for the opportunity to testify before you, and I 
wish you well in the passage of this important legislation.

    Senator Schumer. Thank you. Of course, Dr. Goode had years 
of experience in the political arena as mayor and understood 
the need to stay within the five-minute rule, and I hope all of 
the other gentlemen who are here, probably not having held 
elected office, will follow his fine example.
    Dr. Adams?

STATEMENT OF REVEREND CHARLES ADAMS, PASTOR, HARTFORD MEMORIAL 
               BAPTIST CHURCH, DETROIT, MICHIGAN

    Reverend Adams. Thank you, Senator Schumer. I am Charles 
Adams, Pastor of Hartford Memorial Baptist Church in Detroit, 
Michigan. I am a former president of the Progressive National 
Baptist Convention, Incorporated, which was the denominational 
home of Martin Luther King, Jr., whom I will quote in this 
statement.
    I am also a member of the Baptist Joint Committee on Public 
Affairs and served as its chairman, and what I have is 
essentially the message written by our executive director who 
is a pastor and a lawyer, the Reverend Dr. Brent Walker.
    All of my religious affiliations focus aggressively on 
public policy issues concerning religious liberty and its 
constitutional corollary, the separation of church and state. 
Religion has thrived in this country because the separation has 
been maintained. To endanger that is, of course, to take away 
religious liberty as we now know it.
    Charitable choice is wrong-headed; it wants to do right, 
but it wants to do it in the wrong way. First, it is 
unconstitutional. It promotes religion as a healing therapy in 
ways that breach the wall of separation between church and 
state. Now, there are many protections against breaching that 
wall, and we do not think that that protection is going to be 
advanced through charitable choice, but weakened.
    Secondly, it violates the rights of taxpayers. There is no 
reason why my tax monies should promote anybody's religion for 
any purpose.
    Thirdly, charitable choice results in excessive 
entanglement with religion. If Government makes a contract with 
a religious group, it is entering into the substance of that 
group's religion.
    Fourthly, charitable choice dampens religion's prophetic 
voice. Religion has historically stood outside of Government 
control, serving as a critic of Government. How can religion 
continue to raise the fist against Government tyranny when it 
has an open hand receiving Government favors?
    Dr. Martin Luther King, Jr., arguably the 20th century's 
best example of religion's prophetic voice, said ``The church 
must be reminded that it is not the master or the servant of 
the state, but rather the conscience of the state. It must be 
the guide and critic of the state and never its tool. If the 
church does not recapture its prophetic zeal, it will become an 
irrelevant social club without moral authority.'' There are 
political implications in accepting money from Government. Are 
churches now to be the tools of one political regime rather 
than another?
    Fifthly, charitable choice authorizes religious 
discrimination in employment. We dare not turn back the clock 
on civil rights in order to expand social services for the 
needy.
    Sixth, charitable choice encourages unhealthy rivalry and 
competition among religious groups. We enjoy religious peace in 
this country, despite our dizzying diversity, for the most part 
because Government has stayed out of religion. Representative 
Chet Edwards from Texas said that he an think of no better way 
to destroy religion in America than to put a pot of money out 
there and let all the churches fight over who gets it. 
Charitable choice is a recipe for religious conflict.
    We hope that if you read the Baptist Joint Committee's book 
on keeping faith, you will notice the right ways that 
Government can help churches and other religious organizations 
perform public services that are necessary. We can keep the 
faith without changing the law. The law is good; let it stay as 
it is.
    Senator Schumer. Thank you, Dr. Adams.
    Our next witness is Rabbi David Zwiebel, someone I have had 
the pleasure of knowing for a very long period of time.
    Rabbi Zwiebel, from my home State of New York.

STATEMENT OF RABBI DAVID ZWIEBEL, EXECUTIVE VICE PRESIDENT FOR 
 GOVERNMENT AND PUBLIC AFFAIRS, AGUDATH ISRAEL OF AMERICA, NEW 
                         YORK, NEW YORK

    Rabbi Zwiebel. Thank you, Mr. Chairman. I serve as 
Executive Vice President for Government and Public Affairs of 
Agudath Israel of America, which is a 79-year-old national 
Orthodox Jewish organization. I am an attorney by profession, 
but my assigned role here today is to speak not so much as a 
lawyer but as an executive of a faith-based group that has had 
experience in the administration of government-funded social 
service programs.
    For the past quarter century or so, Agudath Israel, among 
its various other activities, has sponsored a variety of social 
service projects, most of them in the New York City area, which 
have serviced many thousands of needy persons.
    Let me draw on our experience to offer four observations 
concerning the charitable choice initiative. The first relates 
to the motivation of faith-inspired service providers.
    When Agudath Israel decided in the mid-1970's to go into 
the area of social services for the needy, we were motivated 
not merely by some general humanitarian concern, certainly by 
some organizational need to establish a new service 
bureaucracy, but because we saw it as a ``mitzvah,'' if I may, 
a good religious deed.
    While the actual services we have provided have been non-
sectarian in nature, they have also been infused with an 
underlying spirit of holy service, and I dare say that a large 
measure of the effectiveness of our programs is attributable to 
the religious vision and animates our service.
    A second point: While our programs are open to all needy 
persons, regardless of religious identity or observance, the 
fact is that many of our clients are our own constituents, 
Orthodox Jews who have known and identified with Agudath Israel 
for many, many years.
    This should hardly come as a surprise. A social service 
provider that has its roots in the community, that understands 
the unique characteristics and sensitivities of the community, 
that enjoys the confidence of the community, has a leg up in 
being able to effectively assess and address the needs of the 
community. And while there are other types of community-based 
organizations that can fulfill a similar role, there is no 
question that religious institutions are often the very 
institutions that retain the greatest level of trust and 
credibility at the grass-roots level.
    Third, many of the people we serve have had problems in 
their lives. They come to us because they are determined to 
turn their lives around, to find new hope, a new faith, a new 
beginning. Quite frankly, when they do so, some of them have 
God on their minds. These people choose Agudath Israel 
precisely because they know the type of organization we are, 
and while we are meticulous in ensuring that the social 
services we provide are entirely non-sectarian, we do try to 
accommodate those of our clients who are looking for religious 
counseling, working with them after hours, referring them to a 
rabbi or a Jewish education program, facilitating their desire 
to come closer to their faith and to their God.
    Hence, my point: While Government ought not fund sectarian 
activities, at the same time Government ought not exclude from 
the social service mix the very institutions to which so many 
needy Americans are likely to turn for service precisely 
because of the added spiritual dimension that those 
institutions are able to offer.
    So long as no Government funds are used for religious 
activities, so long as no beneficiary is compelled to 
participate in religious activities, so long as the funded 
services are entirely separable from the provider's religious 
activities, neither law nor logic can justify the exclusion of 
faith-based providers simply because they also make religious 
services available to their clients.
    My fourth and final point relates to the civil rights issue 
we have been discussing today. I elaborate on this in my 
written testimony, but the bottom line is that if Government 
chooses to enlist religious groups to help address the Nation's 
urgent social needs, it must do so in a manner that allows a 
faith-based organization to remain faithful to its base.
    The genius of America has been its ability to strike the 
appropriate balance between the sometimes competing values of 
promoting equality and respecting diversity. Insisting that all 
faith-based providers sacrifice their religious principles and 
practices as the price they must pay if they wish to service 
the needy with Government funds would upset that delicate 
balance and do violence to the foundation block of religious 
freedom upon which our society has been built. Let's not 
steamroll religious liberty in the name of civil rights. Let's 
remember that religious rights are civil rights, too.
    Thank you.
    [The prepared statement of Rabbi Zwiebel follows:]

STATEMENT OF DAVID ZWIEBEL, EXECUTIVE VICE PRESIDENT FOR GOVERNMENT AND 
     PUBLIC AFFAIRS, AGUDATH ISRAEL OF AMERICA, NEW YORK, NEW YORK,

    Mr. Chairman, Members of the Committee:
    My name is David Zwiebel. I serve as executive vice president for 
government and public affairs for Agudath Israel of America, a 79-year-
old national Orthodox Jewish movement. I am a rabbi, and an attorney by 
profession; and I also serve as Agudath Israel's general counsel.
    It is my assigned role here today to speak not so much as a lawyer, 
but as an executive of a faith-based organization that has had 
experience in the administration of government-funded social service 
programs, and that fully supports the expansion of the federal 
``charitable choice'' program. For the past quarter-century or so, 
Agudath Israel, among its various other activities, has sponsored a 
variety of social service projects, most of them in New York City, 
running the gamut from employment training and placement to housing and 
neighborhood stabilization, from mentoring programs for at-risk youth 
to visitation programs for homebound and institutionalized seniors. 
These activities, which have serviced many thousands of needy persons, 
have been subsidized through a variety of government grants. In my 
testimony today, I will draw on several aspects of Agudath Israel's 
experience to offer a number of observations concerning the charitable 
choice initiative currently under consideration.

    1. The Motivation of Faith-Inspired Service Providers: When Agudath 
Israel decided in the mid-`70's to go into the area of social services 
for the needy, we were motivated not merely by some general 
humanitarian concern, certainly not by some organizational need to 
establish a new service bureaucracy, but because we saw it as a 
``mitzvah''--if not quite a religious obligation, then at least a good 
religious deed. Helping an unemployed breadwinner or a widowed 
homemaker find a job, bringing cheer and companionship to a lonely 
senior, working with troubled teens--all of these and many more are 
part of a Jew's religious mandate on this earth to perform 
``tzedakah'', righteous acts of charity; and we at Agudath Israel were 
determined to do whatever we could to carry out that mandate on a 
communal basis. While the actual services we have provided over the 
years have been non-sectarian in nature, they have also been infused 
with an underlying spirit of holy service--and I dare say that a large 
measure of our effectiveness is attributable to the religious vision 
that animates our service.
    Which brings me to the first general point I would like to make: 
When government enlists faith-based groups like ours to help address 
urgent social needs, it enlists groups that approach this task with a 
special dedication and devotion that can make a tangible difference in 
the quality of the service they provide. It would be an unfortunate 
loss for our caring society were that extra ingredient of motivation, 
enthusiasm and effectiveness excluded from the government funded 
service mix.

    2. The Grassroots Credibility of Faith-Based Organizations: Agudath 
Israel's programs are open to all needy persons, regardless of 
religious identity or observance. Many of our ``clients'' are not 
Jewish, and many of our Jewish clients are not Orthodox or otherwise 
observant. We don't ask the people we serve what their faith is; nor do 
we maintain records of such matters, for they are entirely irrelevant 
to the services we provide.
    At the same time, I would be less than fully candid with this 
committee were I to suggest that the overall profile of our social 
service clientele mirrors that of the general society around us. The 
reality is that a disproportionately high percentage of the people who 
seek out our social services are our own constituents--needy Orthodox 
Jews who have known and identified with Agudath Israel for many, many 
years.
    This should hardly come as a surprise, and leads me to the second 
general point I'd like to make. When public policy makers ponder how 
most effectively to service needy Americans, a significant factor in 
the overall equation should be the comfort level that the intended 
beneficiary will have with the service provider. That, in turn, will 
often hinge on the credibility the provider enjoys within the 
community. A social service provider that has its roots in the 
community, that understands the unique characteristics and 
sensitivities of the community, that is respected by and enjoys the 
confidence of the community--that provider will start with a 
significant leg up in being able effectively to assess and address the 
needs of the community. And, while there are other types of community-
based organizations that can fill a similar role, there is no denying 
that religious institutions are often the very institutions that retain 
the greatest level of trust and credibility at the grassroots level 
where it is needed most in reaching needy Americans.

    3. The Spiritual Dimension of Certain Clients' Needs:Coming back to 
Agudath Israel's client base, a good number of the people we serve have 
had problems in their lives. Some of them have engaged in unhealthy 
lifestyles and destructive patterns of behavior; some come from 
dysfunctional family backgrounds; some have experienced emotional 
trauma and devastation. They come to us because they are determined to 
turn their lives around, to find new hope, new faith, a new beginning. 
And, quite frankly, when they do so, some of them have G-d on their 
minds.
    These people choose Agudath Israel precisely because they know the 
type of organization we are. To be sure, they are in need of the social 
services we provide, but they also sense that they are in need of 
something else to put their lives in order, something spiritual--a 
reconnection with their Maker and with their Jewish faith. And while we 
are meticulous in ensuring that the social services we provide are 
entirely non-sectarian, we do try to accommodate those of our clients 
who are looking for religious counseling--by working with them after 
hours, by referring them to a rabbi or a Jewish education program, by 
facilitating their desire to come closer to their faith and their G-d.
    Hence my third point: Countless Americans who are in need of social 
services are looking for something beyond merely material assistance. 
When they make the decision to turn their lives around, they will often 
seek out religious institutions to help them find their way back. While 
government ought not fund sectarian activities, at the same time 
government ought not exclude from the social service mix the very 
institutions to which many needy Americans are likely to turn for 
service precisely because of the added spiritual dimension those 
institutions are able to offer. So long as no government funds are used 
for religious activities, so long as no beneficiary is compelled to 
participate in religious activities, so long as the funded social 
services are entirely separable from the provider's religious 
activities, neither law nor logic can justify the exclusion of faith-
based social service providers simply because they also make religious 
services available to their clients.

    4. Respecting the Religious Tenets and Identity of a Faith-Based 
Provider: In the early 1980's, New York City Mayor Edward I. Koch 
promulgated ``Executive Order 50,'' requiring all entities receiving 
city funds to pledge nondiscrimination on a variety of bases, including 
sexual orientation. At that time, Agudath Israel was slated to enter 
into a number of social service contracts with the city, including 
contracts that funded after-school activities for youths. We decided, 
however, that we could not accept the mayor's conditions; our rabbinic 
leadership insisted that organizational employees who serve in the 
positions of role models must embody the core values of traditional 
Judaism. We sued the mayor, as did the Salvation Army and the New York 
City Archdiocese, and we ultimately won--proving, I guess, that 
sometimes you can fight City Hall--but the bottom line is that we were 
all prepared to give up our city funding had Hizzoner's executive order 
been upheld.
    There is a lesson to be learned from this incident as well. If 
government chooses to enlist religious groups to help address the 
nation's urgent social needs, for the reasons I have already suggested 
and others as well, it must do so in a manner that allows a faith-based 
organization to remain faithful to its base. To insist that a religious 
charity adopt secular nondiscrimination standards, for example, even 
where those standards conflict with religious doctrine, or to insist 
that religious symbols be removed from a faith-based provider's 
facilities, is simply a polite way to say that religious charities 
should not be eligible to receive funds. No self-respecting religious 
organization would ever trade in its sacred tenets for a pot of 
government lentils.
    It is not my role here today to expound at length on the legal 
issues surrounding the right of a religious organization that receives 
government funding to maintain policies and practices that reflect its 
own religious tenets. Suffice it to note that there is ample authority 
under federal law that reflects Congress' longstanding view that 
receipt of federal funds does not require religious entities to abandon 
their religious identities.
    Consider, for example, the law that excuses a health care facility 
that receives federal funding from making its facilities available or 
providing personnel for the performance of any sterilization procedure 
or abortion, if such activity would be contrary to the facility's 
religious beliefs. 42 U.S.C. sec. 300a-7(b). Or consider Title IX of 
the Education Amendments of 1972, which generally prohibits sex 
discrimination by schools that receive federal financial assistance, 
but explicitly exempts ``an educational institution which is controlled 
by a religious organization if the application of this subsection would 
not be consistent with the religious tenets of such organization.'' 20 
U.S.C. sec. 1681 (a) (3). Clearly, government itself would not be 
permitted to discriminate on the basis of sex or restrict sterilization 
or abortion rights. But, as these two laws demonstrate, government is 
not thereby precluded from extending financial assistance to an entity 
whose religious tenets demand such discrimination or restriction--and 
the entity, in turn, is not required to abandon its faith as a pre-
condition to receiving the assistance.
    To be sure, there may exist religious organizations whose 
principles or policies are so far removed from the American mainstream 
that they ought not be eligible for federal funding under the 
charitable choice program. Public support should not be extended to any 
group, including any faith-based group, that preaches racial hatred or 
religious terrorism, for example. But, as the famous Bob Jones case 
makes clear, the law is already experienced in drawing the line 
between, on the one hand, groups whose positions are so repugnant to 
our shared democratic values as to render them ineligible for public 
support through tax exemption; and, on the other hand, more mainstream 
religious bodies whose tenets may diverge from the norms of secular 
society but are nonetheless deemed charitable entities eligible for 
public support through tax exemption. Bob Jones University v. United 
States, 461 U.S. 574 (1983). That line-drawing exercise, difficult 
though it may occasionally be, has served our nation well; it can and 
should be employed in the charitable choice context as well.
    I make this point, frankly, with some degree of trepidation. A 
religious group, or a religious practice, that is considered mainstream 
today may be considered beyond the American pale tomorrow, as the 
Supreme Court noted in Bob Jones itself, 461 U.S. at 574. And as our 
society in general moves toward greater egalitarianism, there is 
danger--a term I use advisedly--that religious communities that 
envision different roles for male and female, or that regard certain 
types of conduct or lifestyle as immoral or sinful, or that embrace any 
set of values at variance with those of the broader secular society, 
will no longer be able to participate fully in American life, their 
beliefs and traditions steamrolled in the noble name of civil rights.
    The genius of America has been its ability to strike the 
appropriate balance between the sometimes competing values of promoting 
equality and respecting diversity. Insisting that all faith-based 
providers sacrifice their religious principles and practices as the 
price they must pay if they wish to service the needy with government 
funds would upset that delicate balance and do violence to the 
foundation block of religious freedom upon which our society has been 
built. That is why Agudath Israel strongly supports the provision in 
the existing charitable choice laws, and in the proposed expansion of 
those laws, that allows religious charities to retain their identities 
and policies. In our view, this must remain an indispensable feature of 
any such legislation.
    Thank you.

    Senator Schumer. Thank you, Rabbi Zwiebel.
    Our next witness is Reverend Eliezer Valentin-Castanon.

   STATEMENT OF REVEREND ELIEZER VALENTIN-CASTANON, PROGRAM 
DIRECTOR, GENERAL BOARD OF CHURCH AND SOCIETY, UNITED METHODIST 
                     CHURCH, WASHINGTON, DC

    Reverend Valentin-Castanon. Thank you, Mr. Chairman. I am 
shortening my testimony, but I would like to request that my 
entire testimony be printed in the record.
    Senator Schumer. Without objection, everyone's entire 
testimony will be part of the record.
    Reverend Valentin-Castanon. Thank you.
    I would like to thank you again for this opportunity to 
speak to you on a matter as important as serving the need. We 
welcome the great attention that Congress and the 
administration have given to religion in the public square, and 
for the recognition of the great work that we do for the 
marginalized and needy in our communities.
    We are grateful for the recognition that we have not only 
been the conscience of the Nation, but also the ones to help 
carry the burdens of the poor and the unwanted. We thank you 
for the recognition that religious organizations to contribute 
to this country not only with prayers, but with sweat and 
blood.
    I am Eliezer Valentin-Castanon. I am a program director of 
the General Board of Church and Society, United Methodist 
Church, and I am also an ordained minister of our church who 
works on church-state issues for the denomination. As part of 
my responsibilities with the Methodist Church, I work on a 
variety of issues that are affected by charitable choice.
    The United Methodist Church has charged the General Board 
of Church and Society with the ``responsibility...to seek the 
implementation of the social principles and other policy 
statements of the General Conference on Christian Social 
concerns.'' It is because of this charge that I come to you 
today to speak on behalf of the General Board of Church and 
Society on the issue of charitable choice.
    The United Methodist Church has not adopted language 
regarding charitable choice. Nevertheless, our General 
Conference has been very clear about what the church 
understands is appropriate when a church is seeking to enter 
into a partnership with the state in order to offer community 
services.
    In the Book of Resolutions of the church, our church has 
stated that, ``Governmental provision of material support for 
church-related agencies inevitably raises important questions 
of religious establishment. In recognition, however, that some 
health, education, and welfare agencies have been founded by 
churches without regard to religious proselytizing, we consider 
that such agencies may, under certain circumstances, be proper 
channels for public programs in these fields. When government 
provides support for programs administered by private agencies, 
it has the most serious obligation to establish and enforce 
standards guaranteeing the equitable administration of such 
programs and the accountability of such agencies to the public 
authority.''
    We believe that no private agency, because of its religious 
affiliation, ought to be exempted from any of the requirements 
of such standards. In particular, our church believes that 
Government resources should not be provided to any church-
related agency unless it meets the following minimum criteria.
    First, the services of the agency shall be the designed and 
administered in such a way as to avoid serving a sectarian 
purpose or interest. The services to be provided by the agency 
shall be available to all persons, without regard to race, 
color, national origin, creed, or political persuasion. Skill, 
competence, and integrity in the performance of duties shall be 
the principal considerations in the employment of personnel and 
shall not be superseded by any requirement of religious 
affiliation.
    This, Mr. Chairman, has been the position of our church 
concerning the relationship between church and state to this 
day. As you can see, the United Methodist Church does support 
partnership between church and state. As a matter of fact, our 
church has been in partnership with the state in many different 
ventures, providing non-sectarian and non-proselytizing social 
and educational services in our community, never losing sight 
of our faith and our commitment to serve Christ.
    From the following examples--and I am not going to read 
them all because there are too many and too lengthy, but let me 
just mention some of the names: the Chollas View Workfirst 
Center, in San Diego, California; Southside Employment 
Coalition, in St. Louis, Missouri; Family Pathfinders, in 
Smiley, Texas; Louisville Works and Kairos Business Services, 
in Louisville, Kentucky. All of them have been working in 
partnership with the state offering services to the community.
    The United Methodist Church has no difficulty in partnering 
with government to do what is right for people in need. The 
above examples show that we have been doing it for many years, 
and very successfully. Nevertheless, the United Methodist 
Church's practice of setting up separate, non-profit 
corporations for such organizations that want to provide these 
services to the community clashes directly with the main 
provisions of charitable choice.
    The United Methodist Church cannot support legislation that 
clearly endorses religious discrimination in the hiring and 
firing practices of community social services ministries paid 
for by Federal Government dollars. Our church believes that 
programs serving the community and funded with Federal and 
State dollars should not be allowed to use faith to 
discriminate.
    The preservation of the church's character so strongly 
argued by the supporters of this legislation cannot be upheld 
by sacrificing civil rights that we all have struggled so hard 
to defend. Integrity and skill should be the reasons for hiring 
and firing people from government jobs, not their faith 
affiliation.
    [The prepared statement of Reverend Valentin-Castanon 
follows:]

 STATEMENT OF REV. ELIEZER VALENTIN-CASTANON, GENERAL BOARD OF CHURCH 
                  AND SOCIETY, UNITED METHODIST CHURCH

                              Introduction

    Thank you, Mr. Chairman and Members of the Committee, for this 
opportunity to speak to you on a matter as important as serving the 
needy. We welcome the great attention that Congress and the 
administration have given to religion in the public square and for the 
recognition of the great work that we do for the marginalized and needy 
in our communities. We are grateful for the recognition that we have 
not only been the conscience of the nation but also the ones to help 
carry the burdens of the poor and the unwanted. We thank you for the 
recognition that religious organizations do contribute to this country 
not only with prayers but with sweat and blood.
    I am Eliezer Valentin-Castanon, a Program Director of the General 
Board of Church and Society (GBCS) of The United Methodist Church. I am 
also an ordained minister of our Church, who works for the church on 
issues of Church-Government relations. Part of my responsibilities with 
The United Methodist Church is to work in a variety of issues that in 
one way or another are affected by Charitable Choice (i.e., TANF, 
Welfareto-work, etc.)
    The United Methodist Church has charged the GBCS with the 
``responsibility. . . to seek the implementation of the Social 
Principles and other policy statements of the General Conference on 
Christian Social concerns.'' In addition, GBCS ``shall speak its 
convictions, interpretations and concerns to the Church and to the 
world.'' \1\
---------------------------------------------------------------------------
    \1\ The Book of Discipline of The United Methodist Church 2000. 
Pages 490-491.
---------------------------------------------------------------------------
    It is because of this charge that I come to you today to speak on 
behalf of the GBCS on the issue of Charitable Choice.\2\ The United 
Methodist Church has not adopted language regarding Charitable Choice. 
Nevertheless, our General Conference\3\ has been very clear about what 
the Church understands is appropriate when a church is seeking to enter 
in a partnership with the State in order to offer community social 
services (i.e., Drug rehabilitation). In the Book of Resolutions of The 
United Methodist Church 2000, our Church has stated that:

    \2\ Neither I nor the GBCS has received a federal grant or contract 
in the current or preceding two fiscal years.
    \3\ The General Conference of The United Methodist Church is the 
highest legislative body of the church. This is the body that makes 
legal and theological decisions regrading the life of the church. 
General Conference meets every four years in different part of the 
country.
---------------------------------------------------------------------------
        ``Governmental provision of material support for church-related 
        agencies inevitably raises important questions of religious 
        establishment. In recognition, however, that some health, 
        education, and welfare agencies have been founded by churches 
        without regard to religious proselytizing, we consider that 
        such agencies may, under certain circumstances, be proper 
        channels for public programs in these fields. When government 
        provides support for programs administered by private agencies, 
        it has the most serious obligation to establish and enforce 
        standards guaranteeing the equitable administration of such 
        programs and the accountability of such agencies to the public 
        authority.''

    We believe that no private agency, because of its religious 
affiliations, ought to be exempted from any of the requirements of such 
standards. In particular our Church believes ``that government 
resources should not be provided to any church-related agency unless it 
meets the following minimum criteria:

        1. The services to be provided by the church-related agency 
        shall meet a genuine community need;
        2. The services of the agency shall be designed and 
        administered in such a way as to avoid serving a sectarian 
        purpose or interest;
        3. The services to be provided by the agency shall be available 
        to all persons without regard to race, color, national origin, 
        creed, or political persuasion;
        4. The services to be rendered by the agency shall be performed 
        in accordance with accepted professional and administrative 
        standards;
        5. Skill, competence, and integrity in the performance of 
        duties shall be the principal considerations in the employment 
        of personnel and shall not be superseded by any requirement of 
        religious affiliation. . .''

    In addition, the Church believes:

        ``. . .that churches have a moral obligation to challenge 
        violations of the civil rights. . . and requirement of 
        attendance at church activities in order to qualify for social 
        services''

    As you can see The United Methodist Church does support 
partnerships between church and state. As a matter of fact, our Church 
has been in partnership with the state in many different ventures, 
providing nonsectarian and non-proselytizing social and educational 
services in our communities, never losing sight of our faith or our 
commitment to serve Christ.
    From the following examples you can see the breath of our Church's 
partnership with government in providing community social services.

                 United Methodist Community Ministries

     CHOLLAS VIEW WORKFIRST CENTER AND SAN DIEGO YOUTH AT WORK \4\

Metro United Methodist Urban Ministries San Diego, California
    Metro United Methodist Urban Ministries of San Diego is a 35-year-
old organization described by its director, John Hughes, as a ``faith-
based incubator,'' and it has grown dramatically over the last several 
years since it began to more actively access public programs linked in 
large part to welfare reform and related federal measures. ``Our 
mission is to help churches help people,'' according to Hughes. Metro 
is managing partner of the Chollas View Workfirst Center, housed at the 
Chollas View United Methodist Church in southeast San Diego, a 
predominantly Hispanic and African American neighborhood. It is a major 
player in San Diego Youth at Work, which provides job training, 
educational incentives and assistance with general life skills.
---------------------------------------------------------------------------
    \4\ These examples are part of a United Methodist cross agency 
document, soon to be released, espousing the Church's position on 
Charitable Choice. This information was gather by Mr. Elliot Wright a 
community development consultant for the General Board of Global 
Ministries.
---------------------------------------------------------------------------
    The Chollas View Workfirst Center, which has 14 other partners, 
developed initially because the church parking lot was used as a pick-
up and drop-off point for persons in an early workfirst transportation 
sector (van driving) training program. It is now a multi-service 
program funded by U.S. Department of Labor money through a competitive 
process. The center provides vocational training, paid work experience, 
support services, childcare on site, transportation, employment 
readiness training, job placement and employment retention services. 
The Chollas View Church is itself a collaborating agency, as is All 
Congregations Together, an interfaith organization that primarily 
offers mentoring services to persons leaving welfare.
    San Diego Youth at Work targets young people ages 14-21. It too is 
funded primarily by the federal Department of Labor and will likely 
last three, and perhaps five years, according to Hughes. It has three 
components: 1) matching talents with needed and available resources, 
such as finding out the interests and abilities of young people and 
finding the right program or educational opportunity to development 
abilities;. 2) Community coaches, who are from the community and help 
young people map their futures; 3) Support services, including food, 
clothing, rent, tires and other material needs. Much of these services 
are supplied by one of Metro's two Good Neighbor Centers.
    Metro itself provides relatively few direct services. It is more of 
a broker, a builder of networks. At present, some 95 percent of Metro's 
budget comes from government sources, the other five percent from 
churches and private donations. What about religious content that might 
seem relevant in the public-funded programs? ``We make it clear that we 
are faith-based, that we are part of the United Methodist Church. We do 
not limit services based on religion and we hire persons of many faiths 
or no faith, depending on their abilities. We do pray at meetings. We 
are a Christian organization. Our philosophy on this point is that of 
St. Francis: 'Preach the gospel at all times and, if necessary, use 
words.''
    Hughes noted that Metro over the years has learned to ``speak 
church and speak social service.'' He worries about new faith-based 
players that may not have both vocabularies and may lack the capacity 
to produce the results expected by government funders. Consequently, he 
and colleagues in San Diego are exploring the possibility of a local 
faith-based institute to identify and train strategic leaders and to 
develop the idea that some faith-based groups may best serve as brokers 
and legitimizers. Hughes foresees a growing need for an institute that 
could offer faith-based consultation and possibly build a pool of funds 
for faith-based social service providers.

                         Family Pathfinders \5\

             SMILEY UNITED METHODIST CHURCH, SMILEY, TEXAS

    Volunteers within The United Methodist Church of Smiley, Texas, 60 
miles east of San Antonio, were already helping people prepare for 
meaningful work before they learned about Texas Family Pathfinders, a 
state-initiated program that enlists and makes small grants to faith-
based and community groups engaged in welfare-to-work. And the people 
at Smiley Church are still doing the work now that the state grant is 
gone. In fact, they did not reapply because, says Nelda Patterson, who 
spearheaded the ministry, ``we just didn't have the money to keep 
taking state grants.'' A mystery? Not really. Reimbursements were 
notoriously slow and the small congregation-a 100 members church with 
an average Sunday attendance of 50- did not have the up front funds to 
carry the formal program.
---------------------------------------------------------------------------
    \5\ Martha Ward, director of Family Pathfinders, reports that 
across the state of Texas more United Methodist congregations are 
involved in the program than of any other denomination.
---------------------------------------------------------------------------
    It all started at Smiley like so many things churches do: Someone 
had a dream. In this case, it was Nelda Patteson who over a period of 
time had helped a young woman become a Licensed Practical Nurse (LPN). 
But the young nurse had a hard time keeping jobs, and Ms. Patteson 
figured that she ``needed to get smarter about how to help people.'' 
She became certified to lead a program called ``Survival Skills for 
Women,'' consisting of 10 sessions over five weeks. She offered the 
training to five women, mostly from a local housing project, coming off 
welfare. Things went well.
    ``About that time [1998] we learned that the state had some money 
for faith-based programs. We applied and received $10,000 to help nine 
TANF-certified women receive computer training and literacy education 
at a center in Gonzales, the county seat. We were one of five 
recipients out of 100 applicants at that time.'' The funds came through 
Family Pathfinders, a Texas effort to mobilize and encourage faith 
groups to get involved in welfare-to-work training and mentoring. In 
Smiley, the money went to pay for the computer course and child care in 
Gonzales and for travel back and forth. Volunteers led the ``Survival 
Skills for Women'' course at the church. The results were positive on 
all counts, including the relationships established with the women 
coming off welfare.
    The church realized no money from the program and that was not a 
problem. ``We liked what the money went for,'' said Ms. Patteson, ``but 
the state was so slow in paying the reimbursement that we couldn't 
continue. As it was, we had to borrow $1,500 from the local United 
Methodist Women to pay the initial tuition, child care and travel 
costs. That was paid back when the check arrived.''
    Ms. Patteson and others at the Smiley church stay in touch with the 
women who went through the program. They have also offered to share the 
techniques of their success with other churches in the region. ``Maybe 
a larger congregation would have the funds to tide it over,'' Ms. 
Patteson said.
    The growth of the congregation's awareness of poverty and the 
people caught in it is an important outcome of the temporary 
partnership with a government program, according to Ms. Patterson. 
``Before, some people in the church thought anyone who lived in a 
housing project was just lazy. Now they know that's not so. There is 
more caring about persons now.''

             Louisville Works and Kairos Business Services

         WESLEY HOUSE COMMUNITY SERVICES, LOUISVILLE, KENTUCKY

    Wesley House Community Services has leveraged a grant from Emerging 
Ministries with Women, Children and Families (funded by the Women's 
Division) into ongoing public funding for two programs that help women 
leaving welfare to build solid lives. Louisville Works, a computer 
training program, and Kairos Business Services, an internship program, 
do prepare persons for work in offices, but the objectives are bigger.
    Getting the students into ``just any jobs'' so that they leave the 
welfare roles is not enough, according to Katie Chapman, director of 
the two programs. The two programs aim at equipping participants to 
deal with the ups and down of real life and to feel a sense of security 
in knowing that Wesley House is there should they need a safe, caring 
place. Wesley House is a United Methodist national mission institution 
(linked to the General Board of Global Ministries) with programs in 
childhood, youth and family and senior services.
    Since the Women's Division seed grant was received in 1997, 
Louisville Works and Kairos have trained a total of 200 persons, with 
much of the current funding coming through the Kentucky version of 
Temporary Assistance for Needy Families (TANF). State government 
reimbursed Wesley for student tuition. Other funding comes from church 
and other private sources. Kairos is an eight-week internship that goes 
beyond basic computer training. Case management for students in each 
program is provided by the Jefferson County social service agency. One 
measure of the success at Wesley is the fact that the computer 
instructor in the Spring, 2001 was a single mother of four who was 
herself a graduate of Louisville Works and of Kairos. Her ability to 
identify and communicate with the students is seen as a major reason 
attendance is excellent in the classes.

   Near Southside Employment Coalition and Youth Opportunity Program

                   KINGDOM HOUSE, ST. LOUIS, MISSOURI

    Kingdom House is a 99-year-old community center of the Missouri 
East Annual Conference with a long history of partnerships with 
government and private agencies. It is a major sponsor of and until 
recently housed the Near Southside Employment Coalition, an ecumenical 
program whose director is actually paid by Kingdom House. Near 
Southside serves an area south of downtown St. Louis filled with a 
mixture of public housing and ``gentrified'' residences. Almost all of 
the public housing residents are African-American; many single women 
heads of households. Near Southside's workforce development programs 
was 15 years old and had a good track record, and then came welfare-
towork. The employment coalition entered into a performance-based 
contract with the state to provide job training services to 75 persons. 
The experience was less than a happy one, according to Near Southside 
director William McRoberts. Relatively few persons were initially 
referred to the agency and, says McRoberts, the training period was too 
short, the procedures unclear and the bureaucracy heavy-handed. 
McRoberts says that his agency did not ``staff up'' at the outset, that 
is, hire additional people, so that Near Southside did not lose as much 
money as did some non-profits with TANF contracts in the early days of 
welfare reform. The state was reimbursing services providers at $1,800 
per individual, while the actual cost was closer to $4,500 per person, 
according to McRoberts.
    Near Southside did not reapply for a direct state contract but it 
did sign on to a pilot project funded by a combination of state and 
private foundation money. The pilot involves training persons to work 
in customer services, primarily through ``call centers,'' a growing 
field that pays $9 or $10 per hour. The funding partners are the Annie 
E. Casey Foundation, through its Jobs Partnership Program, and the 
Missouri State Department of Social Service Block Grants. Near 
Southside provides customer services and job readiness training and 
computer literacy courses. Kingdom House in 1997 was certified to 
receive Youth Opportunity Program (YOP) tax credits from the state of 
Missouri. Under this arrangement, individuals and corporations who give 
money to YOP at Kingdom House receive a 50 percent credit on their 
state income taxes. YOP is a social development program for low income, 
``at risk'' youth. It provides recreational and other after school 
activities. Since 1997, Kingdom House has received $1 million through 
the tax credit plan, according to Ralph Lewis, director of development.

                      Transitional Journey Program

      COOKMAN UNITED METHODIST CHURCH, PHILADELPHIA, PENNSYLVANIA

    The Transitional Journey Program of the Cookman United Methodist 
Church in Philadelphia is, according to a University of Pennsylvania 
research report, the only real charitable choice venture in the state; 
indeed, it is one of very few in the whole country. It got underway in 
1998 with a $150,000 state allocation for welfare-towork training, 
placement and follow-up. For the first year, the money was in the form 
of a performancebased contact and some of the staff members were not 
paid for months while Cookman waited for reimbursement We worked on 
hope and despair,'' says the Rev. Donna Jones, pastor of the 
smallmembership congregation in poverty-ridden North Philadelphia. The 
second year was easier because part of the money was a grant and, also, 
additional funding came from local and national United Methodist 
agencies.
    Cookman worked with 192 persons leaving welfare in the first three 
years of Transitional Journey, which has a job placement rate of 87 
percent and an overall retention rate of 60 percent, which is quite 
high. Some of the program graduates change jobs in the first year but 
are counted as working if the break is short. ``People quit or get 
fired and come back to our doorstep, and we help them find another 
job,'' says Pastor Jones. The program has a small staff of case 
workers. It has received some in-kind contributions, including computer 
and other equipment from the Dupont Corporation.
    Most of the program participants are women and 80 percent have no 
high school diplomas. Transitional Journey offers a GED program and 
training in English as a second language. Counseling is offered and 
children of the women are invited to take part in the church's 
activities for children and youth, including recreation.
    As a charitable choice contractor, Transitional Journey includes 
religious content in its training, however, it must use non-government 
funds to buy the Bibles it distributes to persons who want them. Pastor 
Jones recalls that during the first year one student called the state 
to complain of ``too much'' religious content. ``That's why we have all 
the students sign waivers, so that they know that our program is 
Christ-centered, but the religious part of it is strictly voluntary.'' 
For example, a Muslim who came through the program excused herself from 
the sessions of faith and selfhood. ``Sisters of Faith,'' a related 
program encourages a deeper faith commitment and builds skills to 
``live faith daily.''
    The initial state grant was wrapped up in March, 2001, with a 
second application pending, expected to become effective in June, 2001.

             What are the problems with Charitable Choice?

    The United Methodist Church has no difficulty in partnering with 
government to do what is right for people in need. The above examples 
show that we have been doing this for many years and very successfully. 
Nevertheless, The United Methodist Church's practice of setting up 
separate nonprofit corporations for church organizations that want to 
provide these services to the community clashes directly with one of 
the main provisions of Charitable Choice.
    We do not have any difficulty with the government providing access 
to religiously motivated organizations (i.e., separate non-profit 
religiously affiliated corporations) to compete for federal dollars. We 
cannot agree, however, in the establishment of `faith ``as a separate 
category that sets religious groups apart from requirements which 
others are obligated to meet in order to provide social services.
    When President George W. Bush said that he intended to ``[b]ring 
faith organizations to the table and [to] remove legal barriers to full 
participation in public programs and access to public program funds,'' 
we were troubled. When he said that ``Private and charitable groups, 
including religious ones, should have the fullest opportunity permitted 
by law to compete on a level playing field, so long as they achieve 
valid public purposes. . .,'' we were cautious.
    We believe, however, that the key point in President's Bush 
statement is that private and charitable groups ``should have the 
fullest opportunity permitted by law to compete.'' Thus, we should use 
what is permitted by law, we should use what we know has worked and 
improve on it, rather than to create a new program that, in our 
opinion, is a solution looking for a problem.
    The United Methodist Church cannot support legislation that clearly 
endorses religious discrimination in the hiring and firing practices in 
community social service ministries paid by the Federal government. Our 
Church believes that programs serving the community and funded with 
federal or state dollars should not be allowed to use faith to 
discriminate. The preservation of the Church's character, so strongly 
argued by the supporters of this legislation, cannot be upheld by 
sacrificing civil rights that we all have struggled so hard to defend. 
Integrity and skills should be the reasons for hiring or firing people 
from a government-paid job, not their faith affiliation. We believe 
that our actions are the loudest witnesses we can present to the world 
to show the love of God through Christ.
    The United Methodist Church is a strong supporter of Title VII, 
Section 702 (a), of the Civil Rights Act of 1964, which allows for 
religious discrimination on the basis of a religious group's doctrines 
and rules. We can accept this discrimination as long as the 
discrimination takes place in church-related ministries and where the 
ministry is paid by their own members. We cannot agree, nor support, 
religious groups' discrimination while using tax dollars. It is one 
thing for the church to require that their pastors, organists, sextons, 
and other employees of the church to be from their faith and 
conviction, another thing, entirely different, is for religious groups 
receiving tax dollars, in order to provide secular services, to be 
allowed to use the same criteria for hiring their employees for 
government related programs. Therefore, in our estimate, violating 
civil right laws using federal dollars.
    In addition, we must pay heed to Justice Rehnquist is warning 
regarding government funding of religious organizations: ``There is the 
risk that direct government funding, even if it is designated for 
specific secular purposes, may nonetheless advance the pervasively 
sectarian institution's `religious mission.'' As long as government 
attempts to separate what is religious from secular in entities like 
churches, synagogues, mosques, etc, it risks becoming excessively 
entangled with religion, thus advancing it or hindering religion, both 
clear violations of the establishment clause.

                               Conclusion

    Charitable Choice clearly contradicts the minimum requirements set 
forth by our church as to what must be in place before a religious 
group accepts tax dollars in order to provide social services. We 
believe that Charitable Choice is not the right way to help the needy 
nor is it the best way to foment healthy Church-Government relations. 
Let me list for you five areas were we disagree with this policy.
        1. It steps across the boundary of church-state separation by 
        exempting ``Faith-Based'' groups (used here to refer 
        exclusively to ``religiously sectarian groups,'' since ``Faith-
        Based'' groups are more broadly defined) from compliance with 
        civil rights laws barring hiring discrimination on religious 
        grounds with tax dollars, or by not requiring separate 
        incorporation of contract holders, thus allowing local churches 
        to receive funding directly into their accounts, and by 
        allowing religious content in service programs.
        2. This relationship may result in excessive religious reliance 
        on public money, leading to a weakening of the role of a 
        religious group's prophetic voice. How can a prophet raise his/
        her voice against government policies while simultaneously 
        asking for government help?
        3. Since government funding brings government oversight through 
        compliance reviews and audits. This government review will lead 
        to government interference in the internal affairs of religious 
        groups.
        4. Elected officials will be tempted to play politics with 
        religion (which we have seen already happening in some states). 
        Houses of worship may compete against one another for 
        government contracts, encouraging rivalry among religious 
        groups who are looking to access the same pot of money. Who 
        will decide which religious group is better suited to provide 
        services? Or which services are more worthy? This situation 
        could widen the divisions that are present in today's religious 
        landscape in America, driving us further apart.
        5. In the area of drug rehabilitation, we find that the line 
        that separates Church and State is completely crossed over. No 
        one can honestly believe that a program funded with tax 
        dollars, which requires as a major component of treatment the 
        acceptance of Jesus Christ as Lord and Savior, will not advance 
        religion. How can this scenario be considered as not advancing 
        religion when this requirement is exactly what we find in the 
        Gospel of St. Matthew as one of the responsibilities of 
        believers? ``Go to the people of all nations and make them my 
        disciples'' (28:19).
    For Christians, under this circumstance, more clearly than any 
other, tax dollars will clearly go to advance a religious purpose.
    This is not an exhaustive list of our concerns regarding Charitable 
Choice, but reflects some of the major difficulties we have with this 
policy.
    We agree with the Baptist Joint Committee and other religious 
groups that there are alternative options where religious groups are 
involve in providing services to the community in partnership with the 
State. We believe that there are alternatives to continue and expand 
church-state partnerships without bringing down the wall of separation 
between church and state, which has protected and enhanced our 
religious liberties and American democracy. Therefore, we would like to 
recommend the following so that we might continue the partnership and 
to further enhance it.
    First, let religious groups create separate affiliate (non-profit) 
corporations that are not ``pervasively sectarian,'' with technical 
assistance from the federal government (something that HUD has been 
doing). This will enable faith based organizations to receive 
government money and perform the services with religious motivation, 
but without proselytizing, discrimination, or teaching religion.
    Second, encourage increased private giving by passing legislation 
expanding deductibility rules for charitable contributions. This money 
could be directed by individuals to the charities of their choice with 
no regulatory strings attached.
    Third, foster cooperation between religious groups and government 
that do not involve taxpayer's dollars. Government could publicize the 
good work that private religious and other non-profit social service 
groups are doing and make referrals to these organizations when needed 
and appropriate. Churches and government have been working together for 
many years; this can continue and be expanded without sacrificing each 
others' freedom.
    Fourth, churches could also work in partnership with the State in 
providing volunteers in governmentorganized mentoring projects, as long 
as government does not promote religion.\6\
---------------------------------------------------------------------------
    \6\ See for additional ideas and suggestions ``In Good Faith: A 
Dialogue on Government Funding of Faith Based Social Services.'' The 
Feistein Center for American Jewish History, Temple University, 
Philadelphia, PA.
---------------------------------------------------------------------------
    Let me conclude with the words of Dr. Martin Luther King, Jr., 
regarding the relationship between the Church's prophetic voice and the 
State.
    The church must be reminded that it is not the master or the 
servant of the state, but rather the conscience of the state. It must 
be the guide and the critic of the state, and never its tool.\7\
---------------------------------------------------------------------------
    \7\ King, Jr., Martin Luther. Strength to Love. 1963.
---------------------------------------------------------------------------
    Thank you for your attention.

    Senator Schumer. Thank you very much, Reverend.
    Now, we will have Mr. Edward Morgan, of the Christian 
Herald Association.

    STATEMENT OF EDWARD MORGAN, PRESIDENT, CHRISTIAN HERALD 
                ASSOCIATION, NEW YORK, NEW YORK

    Mr. Morgan. Thank you, Senator Schumer.
    My name is Edward Morgan and I am President of Christian 
Herald Association, a 122-year-old faith-based charity in New 
York City. We operate the historic Bowery Mission on 
Manhattan's Lower East Side, which is one hundred-percent 
privately supported.
    We also operate a 77-bed program publicly funded by the 
City Department of Homeless Services, the Nation's largest, 
called the Bowery Mission Transitional Center. BMTC is the 
highest-performing substance abuse center in the City of New 
York.
    Finally, we also operate one of New York's major summer 
camps for at-risk inner-city children, plus after-school 
programs in six locations. I believe each of these three 
programs relates to the charitable choice issue before the 
Committee today.
    The Bowery Mission is a traditional faith-based program 
which relies solely on private funding. Here, faith-based 
activities are a daily component of the services we deliver, 
and we consider this program inappropriate for public funding.
    On the other hand, the Bowery Mission Transitional Center 
is a custom-designed partnership between government and 
provider, held in a separate 501(c)(3) corporation. In this 
arrangement, no religious activities are required of our 
clients and our programming does not promote our faith.
    The charitable choice issue at BMTC revolves around the 
current legal hurdles to freely hiring people of faith. The 
not-so-secret ingredient in our successful program is employees 
of faith who have reached the bottom themselves and found that 
a power higher than themselves is their only hope, and that the 
real meaning of life is reaching out to other people with 
unconditional love and earning their trust and seeing them 
triumph over adversity as well.
    Does having exclusively people of faith on the staff of our 
publicly-financed project mean we are promoting religious with 
government funds? No. Absolutely no religious activities are 
required. Does it mean, however, that clients might catch this 
communicable disease called faith from staffers because it is 
attractive? Absolutely.
    Since the Bowery Mission Transitional Center opened in 
January of 1994, over 700 men have graduated and moved from 
public dependence in city shelters to achieve independent, 
productive lives, at a cost to the city of less than $15,000 
per graduate. Ninety-five percent of them have not returned to 
the city shelter system 1 year later--living proof that 
partnerships between government and faith-based charities can 
achieve superior results.
    Our belief that the success and the integrity of our 
services depends on our freedom to hire men and women of faith 
is reflected in the current inability of our children's 
organization, Kids With A Promise, to collect a $600,000 grant 
from the Office of Juvenile Justice and Delinquency Prevention 
because of existing restrictions and assurances in hiring. As 
with the Bowery Mission Transitional Center, Kids With A 
Promise's programs are effective precisely because they are 
delivered by people who demonstrate the compassion and 
commitment to others that comes with their faith.
    I thank the Committee for a chance to be heard, and I 
believe such programs such as the Bowery Mission Transitional 
Center represent the future of charitable partnerships in our 
city and in this country. By combining the resources of 
government with the compassion, hope and vision offered by 
faith-based programs, together we can provide men, women and 
children with the most effective care this country has to 
offer.
    Thank you.
    [The prepared statement of Mr. Morgan follows:]

 STATEMENT OF EDWARD MORGAN, PRESIDENT, CHRISTIAN HERALD ASSOCIATION, 
                           NEW YORK, NEW YORK

    My name is Edward Morgan and I'm President of Christian Herald 
Association, a 122 year old faith-based charity in New York. We operate 
the historic Bowery Mission on Manhattan's Lower East Side, which is 
100% privately supported. We also operate a 77 bed program funded by 
the City Department of Homeless Services, called The Bowery Mission 
Transitional Center. BMTC is the highest performing substance abuse 
shelter in the City. And finally, we also operate one of New York's 
major summer camps for at-risk inner-city children, currently in its 
107th year plus after-school programs in six locations. Each of these 
three programs relates to a charitable choice issue before the 
Committee today, I believe.
    At the Christian Herald, we run two types of adult transitional 
programs. The first, represented by the Bowery Mission is a traditional 
faith-based program which relies solely on private funding. Here, 
faith-based activities are part of every day's schedule and are a 
crucial component of the services we deliver.
    The second type of program is represented by the Bowery Mission 
Transitional Center--a custom designed partnership between government 
and provider held in a separate 501 (C)-3 corporation. In this 
arrangement, no religious activities are required of our clients, and 
our programming does not promote our faith. The charitable choice issue 
at BMTC revolves around the current legal hurdles to freely hiring 
people of faith. The not-so-secret ingredient in this successful 
program is employees of faith who have reached the bottom themselves 
and found, as countless others have through history, that a power 
higher than themselves is their only hope-- that the real meaning of 
life is reaching out to other people with unconditional love, earning 
their trust and seeing them triumph over adversity as well. Although 
they do not proselytize, they are open about their faith, and will 
freely share their beliefs with any client who expresses interest.
    Since the Bowery Mission Transitional Center opened in January of 
1994, over 700 men have graduated and moved from public dependence in 
city shelters to achieve independent productive lives at a cost of less 
than $15,000 per graduate. Ninety five percent have not returned to the 
city shelter system one year later. We are the most successful 
substance-abuse shelter in New York City--living proof that 
partnerships between the government and faith-based charities can 
achieve superior results to secular organizations without infringing on 
the separation between church and state or diluting our religious 
heritage, provided that we are free to hire staff based on their 
religious preference.
    Our belief that the success and the integrity of our services 
depends on our unrestricted ability to hire men and women of faith is 
reflected in the recent decision of our children's organization, Kids 
With A Promise, to turn down a $600,000 grant from the Office of 
Juvenile Justice and Delinquency Prevention, funding that would 
severely inhibit our hiring people of faith. As with the Bowery Mission 
Transitional Center, Kids With A Promise's programs are effective
    precisely because they're delivered by people who demonstrate the 
compassion and commitment to others that comes with their faith.
    I thank the Committee for a chance to be heard. I believe programs 
such as The Bowery Mission Transitional Center represent the future of 
charitable services in this country. By combining the resources of the 
government with the compassion, hope, and vision offered by faith-based 
programs, we can together provide men, women, and children with the 
most effective care this country has to offer.
    Thank you.

    Senator Schumer. Thank you very much, Mr. Morgan, another 
fine New Yorker of a somewhat different view than our previous 
New Yorker.
    I would also like to welcome Congresswoman Carolyn 
Kilpatrick, of the 15th District of Michigan. She came here 
specifically to welcome Dr. Adams, who is her constituent.
    Thank you for coming, Congresswoman.
    Our next witness is Mr. John Avery, Director of Government 
Relations for NAADAC, the association for addiction 
professionals.

  STATEMENT OF JOHN L. AVERY, GOVERNMENT RELATIONS DIRECTOR, 
 NATIONAL ASSOCIATION OF ALCOHOLISM AND DRUG ABUSE COUNSELORS, 
                      ALEXANDRIA, VIRGINIA

    Mr. Avery. Thank you, Senator Schumer and members of the 
Committee. We would like to commend you for considering Senate 
304, which is an important piece of legislation regarding the 
demand reduction strategy of drug addiction in our Nation.
    We represent addiction professionals, counselors, on the 
front line of treatment. For the past 30 years, we have 
advocated quality, standardized, improved, research-based, 
effective care. NAADAC welcomes and supports any organization, 
faith-based or secular, that wants to provide quality 
treatment. We feel that more treaters in the field is a good 
thing.
    But our concern is not with who provides the care, but 
rather by what clinical standards that care is provided. We 
support the application of science-based, evidence-based best 
practices. Drug addiction is a chronic illness and it requires 
an individualized assessment and comprehensive treatment over a 
period of time, and that treatment may also involve medical 
and/or psychiatric components. It is essential that a treatment 
plan evolve based on the needs and progress of the clients, and 
that assessment must be provided by a competent professional to 
do so.
    Our official position statement is attached; you have it 
for your reference. There are just a couple of points I would 
like to address.
    Number one, addiction treatment is a public health service, 
not a social service. Secondly, 19 States now license 
individual addiction clinicians, and 31 States have other forms 
of certification. These licensure and certification provisions 
provide public health and safety criteria and consumer 
protection standards, as well as accountability.
    Thirdly, we believe that no provider of a public health 
service should be permitted to discriminate in employment. The 
provision that an alternative be provided in a reasonable 
period of time, in reality, is not practical because of the 
treatment gap. Often, at a moment in time when a person needs 
services there may be no other alternative.
    Chemical dependency is a stigmatized illness, and the 
treatment gap itself is the most glaring example of this. In 
any given year, 13 million Americans might need treatment, and 
yet only 3 million Americans will receive care.
    The cost of illicit drugs alone is $116.9 billion to 
society. Combine that with alcoholism and it is $294 billion. 
Yet, for treatment, we provide $5.5 billion for drug addiction 
alone, and $11.9 billion if you combine it with alcoholism. In 
other words, America pays 25 times for addiction what it spends 
on treatment.
    NIDA Director Alan Leshner has said that addiction is a 
brain disease and that this medical condition requires formal 
treatment. We often confuse individual behavior with the 
disease. While an individual's behavior may be illegal, 
sometimes criminal, and frequently obnoxious, we would not deny 
competent medical treatment to a person, say, for coronary 
illness or any other life-threatening illness because we didn't 
approve of their behavior. Addiction is a brain disease and 
ought not to be stigmatized as sin or willful misconduct or 
immoralism.
    The current understanding of the Establishment Clause of 
the Constitution requires that faith-based organizations 
provide treatment in a secular atmosphere. There is a long 
history in our country of agencies doing this. So our question 
is why do we need new law? The mechanisms for new providers to 
enter the field already exist.
    We also believe that an overtly religious atmosphere which 
suggests, even if not stated, that treatment is somehow 
contingent on religious belief or practice is essentially 
implied coercion. Such coercion is in violation of the 
patient's civil rights. It is also in violation of the ethical 
code which most professionals practice.
    We welcome faith-based organizations who wish to provide 
treatment under current law, and we don't want to confuse 
professionally competent treatment with the adjunctive and 
supportive role that religious organizations play in the 
community. There is a strong role for spirituality and 
religious affiliation, freely chosen by the individual.
    Thank you.
    [The prepared statement of Mr. Avery follows:]

STATEMENT OF JOHN L. AVERY, LICSW, MPA, GOVERNMENT RELATIONS DIRECTOR, 
     NATIONAL ASSOCIATION OF ALCOHOLISM AND DRUG ABUSE COUNSELORS, 
                          ALEXANDRIA, VIRGINIA

    Mr. Chairman, Ranking Member, members of the committee. Thank you 
for the opportunity to appear before you today. NAADAC represents 
13,000 licensed or certified addiction counselors from across the 
United States. Our membership reflects a multi-disciplinary range of 
professional, clinical and academic preparation. Our common denominator 
is that we are all chemical dependency counselors, clinical specialists 
in addiction, serving on the frontlines of chemical dependency 
treatment. We have for the past thirty years advocated for the 
development and deployment of the highest standards of care for 
patients seeking treatment for addiction to alcohol and other drugs.
    NAADAC welcomes and supports any organization, faith-based or 
secular, committed to providing quality treatment and care to persons 
afflicted with drug addiction. The need is great. The treatment gap is 
wide. The number of treatment providers across the nation is declining. 
More providers and funding should result in increased access and 
availability of treatment. This is a good thing given the public health 
crisis addiction poses to our nation.
    NAADAC's concern is not with who provides care, but rather by what 
clinical standards that care is provided. We are committed to the 
application of science based, best practices, perhaps as most 
succinctly stated in the National Institute on Drug Abuse (NIDA) 
publication Principles of Drug Addiction Treatment, a Research-based 
Guide (NIH ~ 004180, October, 1999). Addiction is a chronic, complex 
illness requiring individualized assessment and treatment. Such care 
should be comprehensive and should extend over a sustained period of 
time. Treatment may include episodes of medical and/or psychiatric 
care. As drug addiction impairs social functioning, social service 
interventions may be indicated as well. The essential element is that 
treatment plans continually evolve based on the individual needs and 
progress of the patient. The treater needs to be competent to provide 
such care.
    The NAADAC position statement on what is often called ``charitable 
choice'' identifies six principles that we believe should inform your 
deliberations. This statement was sent to all members of the 107th 
Congress and key persons in the administration. A copy is attached for 
your reference.
    The six principles are:

        1. There is no wrong door to treatment. Specific populations 
        have distinct addiction treatment needs. We support faith-based 
        providers who comply with current state regulations governing 
        substance abuse treatment.
        2. Addiction treatment delivered in the public sector is and 
        should continue to be a public health service. Regulations and 
        guidelines to insure consumer protection and safety must be 
        maintained.
        3. Charitable choice provisions must support state 
        requirements. Nineteen states now license individual addiction 
        treatment providers. The other thirty-one states have some 
        other form of certification or credentialing process. These 
        public health and safety criteria provide consumer protection 
        and accountability in addiction treatment.
        4. Charitable choice provisions must not undermine the Civil 
        Rights Act prohibition on discriminatory hiring practices. We 
        believe that federally funded, public health clinical service 
        providers should not discriminate in employment practices.
        5. Requirements to provide secular treatment alternatives 
        ``within a reasonable time period'' are often unattainable. 
        Addiction treatment is provided in the context of a window of 
        opportunity when the patient is sufficiently ill or desperate 
        to seek help. The patient's acute medical need for 
        detoxification, often life threatening, does not allow for 
        delay. The lack of availability of treatment services in many 
        communities renders this provision impractical.
        6. Taxpayers expect all federally funded programs to comply 
        with stringent accountability and outcome measurement 
        standards. All providers should be held to the same federal 
        standards that safeguard the public treasury.

    Chemical dependency is a highly stigmatized illness. There is a 
profound disconnect between what science and research indicates 
regarding this disease and public opinion. The most glaring evidence of 
this misunderstanding is the treatment gap. In any given year there are 
between 13 and 16 million chemically dependent Americans in need of 
treatment, but only 3 million receive care. (SAMHSA,1999; Institute of 
Medicine, 1997.)
    Recently released CSAT research indicates that in 1997 the social 
cost of illicit drug addiction alone is $116.9 billion When combined 
with alcoholism the social cost rises to $294 billion. In contrast 
expenditures for treatment are $5.5 billion for drug addiction alone 
and $11.9 million when combined with alcoholism treatment. Substance 
abuse costs America 25 times what the nation spends on treatment. 
(Coffey et al. National Estimates of Expenditures for Substance Abuse 
Treatment, 1997. SAMHSA Publication No. SMA-01-3511, February 2001.)
    NIDA director Alan Leshner summarizes what scientific research has 
taught us about drug abuse: ``. . .addiction is a brain disease that 
develops over time as a result of the initial voluntary behavior of 
using drugs. The consequence is virtually uncontrollable compulsive 
drug craving, seeking, and use that interferes with, if not destroys, 
and individual's functioning in the family and in society. This medical 
condition demands formal treatment.'' (Leshner, A.L., Ph.D., Addiction 
is a Brain Disease, Issues in Science and Technology. VOl.XVII, Num.3, 
The University of Texas at Dallas, Spring 2001)
    Treatment delayed is effectively treatment denied. Access to care 
in real time is critical by the very nature of the illness. As a brain 
disorder it requires qualified professional care. The salient issue is 
the clinical competency of the treatment provider.
    We often confuse the manifestation of the illness, the individual 
behaviors of the addict with the disease itself. That is what we see 
and experience. These behaviors are often illegal, sometimes criminal, 
and frequently obnoxious. Yet we would not deny competent medical 
treatment to a person with coronary disease or any other life 
threatening ailment on the basis of how we judge their behavior. 
Medical care would be provided and their behaviors dealt with in other 
settings. Addiction is a brain disease and must not be stigmatized as 
sin, willful misconduct, or immoralism.
    It is not clear to us what problem Title VII seeks to address. 
Section 701.(a) page 132 lines 20-21 states ``the program is 
implemented in a manner consistent with the Establishment Clause of the 
first amendment of the Constitution.'' Section 701. (K) page 138 lines 
3-5 states ``. . .shall be based on a program shown to be efficacious 
and should incorporate research based principles of effective substance 
abuse treatment.'' So why the need for new law? The mechanisms for new 
treatment providers to enter the field already exist.
    Current understanding of the Establishment Clause of the 
Constitution requires that faith-based organizations provide treatment 
in a secular atmosphere. There is a long tradition of faith-based 
organizations of many denominations providing chemical dependency 
services in accordance with current federal, state, and local law. 
Catholic Charities, the Salvation Army, and Volunteers of America to 
name but a few. We believe that a sectarian, doctrinal or overtly 
religious atmosphere that suggests, even if not stated, that treatment 
or recovery is somehow contingent on adherence to certain religious 
practices and beliefs, is not compatible with quality care. The patient 
presenting for addiction treatment is very vulnerable to subtle and 
implied coercion. As other treatment options may not exist in real 
time, the presenting patient may comply in order to continue to receive 
services. Such coercion would be a violation of the patient's civil 
rights. It is also a violation of the ethical code of all human service 
professional associations.
    We welcome faith-based organizations seeking to provide addiction 
treatment under current law. There is a crying need for more providers 
if the treatment gap is to be narrowed and eventually closed. We should 
not, however, confuse professionally competent clinical addiction 
treatment with the vital adjunctive role community based resources play 
in reintegrating the newly recovering individual into society.
    There is a strong role for spirituality and freely chosen 
congregational or denominational affiliation in the lives of 
individuals and families. Indeed in the recovering community there is a 
long tradition of participation in Twelve Step groups. It is noteworthy 
that the Twelve Step tradition leaves all questions of doctrine, 
practice, and affiliation to individual determination and conscience.
    NAADAC believes that it is the individualized treatment plan, based 
on the assessment by skilled trained professionals, that is the 
cornerstone of effective treatment. We strongly believe that expanded 
treatment opportunities will have a vital impact on the nation's demand 
reduction strategy.

    Senator Schumer. Thank you, Mr. Avery. I think this is all 
excellent testimony, and I appreciate everybody moving things 
along. You probably heard the answer to the question I gave to 
our previous witness.
    Mr. Wade Henderson is a leader in Washington and Executive 
Director of the Leadership Conference on Civil Rights and 
another longtime friend of mine, although not a New York 
resident.

  STATEMENT OF WADE HENDERSON, EXECUTIVE DIRECTOR, LEADERSHIP 
          CONFERENCE ON CIVIL RIGHTS, WASHINGTON, D.C.

    Mr. Henderson. Thank you, Chairman Schumer. Again, I am 
Wade Henderson and I am the Executive Director of the 
Leadership Conference on Civil Rights. I am pleased to appear 
before you on behalf of the Leadership Conference to discuss 
the charitable choice provisions in the administration's faith-
based initiative, and to discuss the potential harm to civil 
rights laws that could result from the failure to consider 
appropriate safeguards.
    The Leadership Conference on Civil Rights is the Nation's 
oldest, largest and most diverse coalition of organizations 
committed to the protection of civil and human rights in the 
United States. It is a privilege to represent the civil and 
human rights community in addressing the Committee today.
    I would like to make a few opening remarks, a few opening 
observations at the outset, and then I would like to use the 
remainder of my time within the five-minute framework to 
discuss the issue of discrimination, which is at the heart of 
today's hearing.
    First, I would like to observe that the Leadership 
Conference approaches this issue with great respect for the 
many religiously-affiliated organizations, such as Catholic 
Charities USA, the United Jewish Communities, Lutheran Social 
Services and, yes, Habitat for Humanity, that have long 
received Federal, State and local funds to serve important 
needs in our communities. The charitable choice provisions 
under consideration today will have no effect on the important 
work of these well-known organizations.
    Second, to my knowledge, none of the Leadership Conference 
members who oppose charitable choice are seeking to change in 
any way the operation of the several religiously affiliated 
groups that already participate in Federal programs.
    Third, we also strongly support the fundamental principle 
that our Nation's privately funded religious organizations, our 
churches, synagogues, mosques and other houses of worship, 
should always enjoy the constitutional freedom to pursue their 
religious missions through their ministries to our communities.
    The Leadership Conference and many of its member 
organizations have supported religious freedom with our own 
long history of working toward laws that protect religious 
exercise, including the right of each person to be free from 
discrimination based on religion.
    Lastly, in this context the Leadership Conference would 
also like to offer its commitment to you and to other members 
of this Committee to work to find better, non-discriminatory 
ways to ensure that Federal money goes to whichever 
organization, whether secular or religious, that can best serve 
a community's needs and is willing to abide by the laws that 
apply to Federal contracts and grants.
    We understand the frustration of many smaller, privately 
funded service providers--in fact, Senator Santorum mentioned 
it in his testimony--both religiously affiliated and secular, 
who feel excluded from Federal programs because the regulatory 
hurdles seem too high. We believe that we can find appropriate 
ways to bring these organizations into Federal programs, even 
as we remain committed to civil rights protections and other 
necessary safeguards. We believe that such a win-win solution 
is possible and it is well worth all of our efforts in trying 
to find it.
    Now, with respect to the issue of discrimination which is 
at the heart of today's hearing, we observe that the issue of 
charitable choice threatens a cornerstone principle of American 
civil rights law, which is that Federal funds generally will 
not go to persons or institutions who discriminate against 
others. This principle is roughly 60 years old and began with 
Franklin Roosevelt and his executive order.
    We think that that principle is so important we should find 
a way to ensure that discrimination does not occur, and we 
think that the current proposals under consideration, in fact, 
expand current law in ways that could be harmful. Now, even 
though we are not seeking to change religious exemptions 
currently in place, when you have provisions like those in S. 
304 that not only track Title VII of the Civil Rights Act of 
1964 in giving a religious exemption to those organizations 
engaged in that activity, but create a new standard that goes 
beyond Title VII, because it does not apply to organizations 
with 15 or more employees, it seems to us to be an 
extraordinary leap.
    There is no need to create a new standard under the law 
simply to encourage religiously affiliated organizations to do 
more to provide services in communities around the country. And 
we would join in making that call, but the real issue is that 
if, in fact, you don't choose to discriminate, there is no need 
to expand the law beyond its current parameters.
    We are happy to add additional comments and support for 
this position. Thank you.
    Senator Schumer. Thank you, Mr. Henderson.
    Our next witness is Nathan Diament. He is the Director of 
Public Policy for what we fondly know in New York as the OU, or 
the Union of Orthodox Jewish Congregations in America.
    Thank you, Nathan.

  STATEMENT OF NATHAN J. DIAMENT, DIRECTOR OF PUBLIC POLICY, 
UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA, WASHINGTON, 
                              D.C.

    Mr. Diament. Thank you, Senator Schumer, and I will try to 
be faithful to my New York heritage and speak quickly.
    I represent the Union of Orthodox Jewish Congregations, the 
largest Orthodox Jewish umbrella organization in the United 
States, entering its second century of serving the community.
    I will refer you to my written testimony for our discussion 
of the Establishment Clause. I, like Mr. Henderson, am going to 
devote most of my remarks to this so-called civil rights issue. 
But before I do that, I would just like to note something that 
was said at the outset of this hearing and I think it is 
important to remember, and that is that these initiatives have 
always been bipartisan initiatives, just like they are in the 
case of S. 304.
    I would refer you and the other members of the Committee to 
the two speeches that I have appended to my testimony, one from 
President Bush and one delivered by Al Gore before the 
Salvation Army in 1999, in which I don't think you will find a 
more ringing endorsement of charitable choice and expanding the 
partnership between faith-based social service providers and 
the Government.
    The fact that this initiative is now receiving greater 
attention should not be the cause for partisanship. The faith-
based initiative does seem to have become a political Rorschach 
test, with some people projecting their worst fears upon it. 
But the fact that this initiative raises complex and critical 
questions should give rise to careful and reasoned discussion, 
as we have engaged in today, rather than the over-heated fear-
mongering which is seen in some press releases.
    With regard to the Establishment Clause, I would simply say 
that our view is that the Establishment Clause demands 
neutrality toward religion and non-religion on the part of the 
Government. It says that the Government may not favor the 
religious over the secular, but it also may not favor the 
secular over the sacred. The Establishment Clause, as the 
Supreme Court has said, demands neutrality toward religion, not 
hostility.
    The issue I want to devote most of my time to is regarding 
the hiring issue. There is another religion clause, as you well 
know, Senator Schumer, in the Constitution, and that is there 
Free Exercise Clause. We in the Orthodox Jewish community are 
certainly concerned with issues of religious coercion, and we 
believe that beneficiaries of these programs are entitled to 
have their free exercise rights protected.
    We would encourage the Government, through whatever means 
possible, to promote and protect the first freedom of religious 
liberty. But at the same time, the providers, the faith-based 
organizations, have free exercise rights as well, and the 
accusation that suggests that all American houses of worship 
are, in fact, houses of bigotry is unacceptable.
    The Civil Rights Act of 1964 is the great bulwark against 
objectionable acts of discrimination, and it is Title VII of 
that very Act, crafted by the architects of modern civil rights 
law, that provides this exemption. It is interesting that Mr. 
Scott cited the Pew poll about this issue. If you look at that 
poll and if you look at the way this question was asked to the 
people who were polled, they were given no information and no 
indication that this protection for faith-based organizations 
is as old as 1964. They were led to believe perhaps that this 
is some new invention, and I think that is a critical component 
of this discussion as well.
    The fact of the matter is that the opponents of the 
charitable choice initiative, having been defeated in the 
courts and Congress in bipartisan votes on the constitutional 
Establishment Clause question, have latched on to this issue to 
try to defeat the charitable choice initiative.
    The fact of the matter is that this is a free exercise 
right of the faith-based organizations. Those who appreciate 
the role of religious institutions in America, as you do and as 
other members of this Committee do, should resist the easy 
equation that opponents assert. They seem to suggest that every 
act of discrimination, even those by faith-based institutions 
on the basis of faith, is like every other act of 
discrimination, and that is not true. And if it is true, the 
implications are dangerous indeed.
    A defining element of the civil rights era was a commitment 
to root out invidious discrimination not only in the public 
sector, but in private contexts as well, at lunch counters and 
in motel rooms and on bus lines. If, as the critics suggest, 
your synagogue and mine are, in fact, such bigoted 
institutions, then the Federal Government ought to be rooting 
it out there by any means possible as well.
    Why do we offer these institutions the benefit of tax-
exempt status if they are full of bigotry? Why do we afford 
their supporters tax deductions for their contributions? Why do 
we hallow their role in society as we do?
    There are other arguments to be made against the faith-
based initiative.
    Senator Schumer. You have spoken fast, but not fast enough, 
so if you could conclude.
    Mr. Diament. I conclusion, I will just say that there are 
other arguments to be made over which we may reasonably 
disagree, but slandering our sacred institutions with the 
charge of bigotry is unacceptable and must be ruled out of 
bounds.
    [The prepared statement of Mr. Diament follows:]

STATEMENT OF NATHAN J. DIAMENT, ESQ., DIRECTOR OF PUBLIC POLICY, UNION 
              OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA

                              Introduction

    Thank you, Senator Leahy and Senator Hatch, for the opportunity to 
address this Committee today. My name is Nathan Diament and I am 
privileged to serve as the director of public policy for the Union of 
Orthodox Jewish Congregations of America. The UOJCA is a non-partisan 
organization in its second century of serving the traditional Jewish 
community, and is the largest Orthodox Jewish umbrella organization in 
the United States representing nearly 1,000 synagogues and their many 
members nationwide.
    On behalf of the UOJCA, I come before you today to address two 
legal issues that are relevant to the effort to expand the already 
existing partnership between government and faith-based social service 
providers: the first issue is the Constitutional issue raised by the 
First Amendment's religion clauses, the second issue relates to 
religious liberty protections contained in our nation's civil rights 
statutes.
    But before addressing the legal issues, I would like to suggest 
that we step back for a moment and appreciate the broader context of 
our conversation today. Since this nation's founding, evaluating the 
role of religion in our society's public life has been part of our 
national conversation. But in recent months, this issue has been re-
engaged with new vigor and prominence. Last year's nomination of an 
Orthodox Jew to a national ticket put the discussion back on the front 
page. This year's creation of the White House Office of Faith-Based & 
Community Initiatives has served as a catalyst for continuing this 
national discussion. The fact that we are having this discussion is in 
itself a wonderful thing for our democratic society.
    Just as important is the fact that we are having a national 
discussion about finding new ways to address our social welfare 
challenges, particularly those confronting lower income populations. To 
have President Johnson's declaration of a war on poverty cited once 
again in public addresses appreciatively, rather than derisively is a 
welcome development.\1\
---------------------------------------------------------------------------
    \1\ Remarks by President Bush at University of Notre Dame 
Commencement Exercises, May 21, 2001. Attached as Appendix 1.
---------------------------------------------------------------------------
    One more word of introduction, I believe is critical. It is the 
case that the Bush Administration's focus on faith-based initiatives 
has given this policy issue a new degree of attention. But I 
respectfully remind you that this is not a new initiative. It received 
bipartisan support in the U.S. Senate and was signed into law by 
President Clinton on four occasions since 1996.\2\ Moreover, it was one 
of the few public policy initiatives that enjoyed support during the 
last presidential campaign from both parties' presidential candidates.
---------------------------------------------------------------------------
    \2\ Personal Responsibility & Work Opportunity Reconciliation Act 
(Pub. Law 104-193); Community Services Block Grant (Pub. Law 105-285); 
Children's Health Act (Pub. Law 106-310); and Community Renewal Tax 
Relief Act (Pub. Law 106-554).
---------------------------------------------------------------------------
    In a major address to the Salvation Army, it was candidate A1 Gore 
who stated: ``The men and women who work in faith . . .based 
organizations are driven by their spiritual commitment . . .they have 
sustained the drug addicted, the mentally ill, the homeless; they have 
trained them, educated them, cared for them . . .most of all they have 
done what government can never do . . .they have loved them.'' Mr. Gore 
went on to propose what he called a ``New Partnership'' under which the 
``charitable choice'' concept would be expanded. He stated: ``As long 
as there is always a secular alternative for anyone who wants one, and 
as long as no one is required to participate in religious observances 
as a condition for receiving services, faith-based organizations can 
provide jobs and job training, counseling and mentoring, food and basic 
medical care. They can do so with public funds--and without having to 
alter the religious character that is so often the key to their 
effectiveness.'' \3\
---------------------------------------------------------------------------
    \3\ Remarks by Vice President A1 Gore on the Role of Faith-Based 
Organizations, delivered May 24, 1999. Attached as Appendix 2.
---------------------------------------------------------------------------
    I raise this today not to minimize in the least the commitment of 
President Bush and his Administration to this effort which is well 
known, but to remind you that, to date, ``charitable choice'' 
initiatives have been bipartisan initiatives--just as they are in 
Senate Bill 304, which enjoys bipartisan sponsorship in this 
Committee.\4\ The speeches delivered by Mr. Bush and Mr. Gore that I 
have appended to my testimony clearly reflect their common commitment 
to this cause.
---------------------------------------------------------------------------
    \4\ Drug Abuse Education, Prevention and Treatment Act of 2001--
Senators Hatch, Leahy, Biden, DeWine, Feinstein, and Thurmond--
sponsors.
---------------------------------------------------------------------------
    The fact that this initiative is now receiving greater attention 
should not be the cause for baser partisanship. The faith-based 
initiative does seem to have become a political Rorschach test, with 
some interest groups projecting their worst fears upon it.\5\ But the 
fact that this initiative raises complex and critical questions should 
give rise to careful and reasoned discussion--as we have engaged in 
today--rather than overheated fear mongering.
---------------------------------------------------------------------------
    \5\ See, Diament, A Faith-Based Rorschach Test, The Washington 
Post, March 20, 2001.
---------------------------------------------------------------------------
           SOCIAL SERVICE GRANTS AND THE ESTABLISHMENT CLAUSE

    America's synagogues, churches and other faith-based charities 
already play an important role in addressing many social challenges--
through soup kitchens and literacy programs, clothing drives and job 
skills training, our faith communities remain the ``little platoons'' 
of our civilized society. My organization believes that these 
institutions can play an even larger and more beneficial role if they 
are supported in that effort.
    We at the UOJCA do not suggest, as some might, that every faith-
based social service provider will do a better job than a secular or 
government agency. Each of these agencies are programmed and staffed by 
real people--some will do better than others. We do not assert that 
every person in need will best be served by a faith-based provider--
some will, some won't; we've long ago realized that ``one-size-fits-
all'' approaches do not work in most contexts--we need H.U.D. and 
Habitat for Humanity, H.H.S. and the Hebrew Home for the Aged. 
Moreover, we do not believe that including faith-based providers in the 
partnerships that government forms should be an excuse for letting the 
government shirk its commitment to devote an appropriate level of 
financial and human resources directly to addressing social needs.\6\ 
But we do believe that if the government decides not to go it alone, 
but to invite partners from the private and public interest sectors in 
tackling social welfare challenges, then the government ought not say 
to one class of agencies--``you may not be our partner because you are 
religious.'' \7\
---------------------------------------------------------------------------
    \6\ For this reason, the UOJCA welcomed President Bush's recently 
announced plans to increase federal funding allocations for housing 
rehabilitation and drug treatment program grants. Notre Dame 
Commencement Address, Appendix 1.
    \7\ This is exactly what the four existing charitable choice laws 
do; they do not provide for the indiscriminate funneling of government 
funds to churches and synagogues, they do provide that government grant 
makers cannot red-line such programs out of the funding pool on the 
sole basis of their religious character. Moreover, while charitable 
choice provisions permit participation by faith-based organizations, 
such participation is not mandated in any way.
---------------------------------------------------------------------------
    We submit that the Constitution's Establishment Clause stands for a 
simple proposition: that the government may not favor one religion over 
others, or religion over non-religion. But it does not stand for the 
proposition that government must favor the secular over the sacred. The 
Establishment Clause, as the Supreme Court has said, demands neutrality 
toward religion, not hostility.\8\
---------------------------------------------------------------------------
    \8\ `` `It has never been thought either possible or desirable to 
enforce a regime of total separation'. . . nor does the Constitution 
require complete separation of church and state; it affirmatively 
mandates accommodation, not merely tolerance, of all religions, and 
forbids hostility toward any.'' Lynch v. Donnelly, 465 U.S. 668, 673 
(1984).
    The Court will speak again to the Establishment Clause and the 
neutrality principle before the end of this month when it rules in the 
pending case of Good News Club v. Milford Central School District. This 
case challenges the policy of a New York school district that allows 
its public school facilities to be used for meetings by a wide range of 
civic and youth groups after school hours, but refused to allow a 
Christian youth group to use facilities for its meetings due to their 
religious content.
---------------------------------------------------------------------------
    Neutrality, I submit to you, means that in a grant program, 
government must be ``faithblind,'' if you will. Government ought to 
establish grant criteria that have nothing to do with whether 
prospective grantees are religious or secular, but simply whether they 
have the capacity to perform the service and obtain the results the 
government seeks to achieve through the grant. That is the essence of 
what the Establishment Clause demands in this context.
    Support for this neutrality-centered view can be found in many 
Supreme Court precedents the most recent of which is Mitchell v. Helms, 
decided just one year ago.\9\ In Helms, six of the nine justices came 
down squarely on the side of the neutrality view of the Establishment 
Clause.\10\ The issue before the Court was the constitutionality of a 
federal grant program which allows local education agencies to use 
federal funds for the purchase of supplementary educational materials, 
including textbooks and computers, for schools within their 
jurisdiction.\11\ Because the aid was also made available to parochial 
schools within the jurisdiction, it was challenged as a violation of 
the Establishment Clause.\12\ The Court rejected this challenge.
---------------------------------------------------------------------------
    \9\ 530 U.S. 793, 120 S.Ct. 2530 (2000).
    \10\ This position is clearly enunciated by the plurality opinion 
of Justices Thomas, Rhenquist, Scalia and Kennedy and is at the core of 
the concurrence by Justices O'Connor and Breyer.
    \11\ Chapter 2 of the Education Consolidation and Improvement Act 
of 1981, Pub. L. 97-35, 95 Stat. 469, as amended, 20 U.S.C. Sec. 7301-
7373.
    \12\ Many public interest organizations, including the UOJCA, filed 
friend of the court briefs in the Helms case. Not surprisingly, those 
who question the neutrality principle today in the context of 
charitable choice also questioned it there. It is worth noting that the 
Solicitor General, on behalf of Secretary of Education Richard Riley, 
argued in support of the program's constitutionality. See, http://
supreme.lp.findlaw.com/supreme court/dockeddecdocket.html#98-1648.
---------------------------------------------------------------------------
    Justices Thomas, Rhenquist, Kennedy and Scalia rejected the 
challenge on the basis of a neutralitycentered understanding of the 
Establishment Clause without any qualifications.
    For these justices, so long as secular government aid is provided 
to religious institutions on the basis of religion-neutral criteria it 
does not violate the Establishment Clause, and the constitutionality of 
currently enacted and pending charitable choice laws is unquestionable.
    Justice O'Connor, joined by Justice Breyer, also invoked the 
principle of neutrality, but with qualifications.\13\ Inasmuch as this 
concurrence was essential to the Court's holding, it can be said that 
it is the O'Connor opinion that is controlling. Working with the 
framework she developed previously in Agostini v. Felton,\14\ Justice 
O'Connor determined that the program at issue did not violate the 
Establishment Clause because it furthered a secular purpose, did not 
have the primary effect of advancing religion,\15\ and did not raise 
the likelihood that an ``objective observer'' \6\ would believe the 
program was a governmental endorsement of a particular religion.
---------------------------------------------------------------------------
    \13\ Justice O'Connor was not prepared to accept what she viewed as 
the plurality's ``treatment of neutrality [as a] factor of singular 
importance'' above other factors developed in the Agostini case. 120 S. 
Ct. at 2556.
    \14\ 521 U.S. 203 (1997), upholding a government funded program for 
secular special education teachers to teach in parochial schools. 
Writing for the Court's majority in Agostini, Justice O'Connor revised 
the much-maligned three prong test of Lemon v. Kurtzman, 403 U.S. 602 
(1971).
    \15\ For Justice O'Connor, the question of whether an aid program 
has the primary effect of advancing religion is determined by whether: 
a. the aid is actually diverted for religious indoctrination; b. the 
eligibility for program participation is made with regard to religion; 
and c. the program creates excessive administrative entanglement.
    \16\ Justice O'Connor's ``objective observer'' is not the typical 
person on the street, but a person ``acquainted with the text, 
legislative history, and implementation of the statute.'' Wallace v. 
Jaffree, 472 U.S. 38, 76 (1985).
---------------------------------------------------------------------------
    It is important to note that, as part of this analysis, Justice 
O'Connor, like the Helms plurality, explicitly rejected the precedents 
of Meek v. Pittinger \17\ and Wolman v. Walter,\18\ which had held even 
the capability for (as opposed to the actual) diversion of government 
aid to religious purposes to be sufficient grounds to render an 
otherwise neutral aid program an Establishment Clause violation.\19\ 
Justice O'Connor embraced this position even after distancing herself 
from what she characterized as the ``plurality's conclusion that actual 
diversion of government aid to religious indoctrination is consistent 
with the Establishment Clause.'' \20\ Finally, Justice O'Connor 
stressed that the aid provided under the education grant program was 
``secular, neutral and nonideological,'' supplemented funds from 
private sources, and was expressly prohibited from being used for 
religious instruction purposes.\21\
---------------------------------------------------------------------------
    \17\ 421 U.S. 349 (1975).
    \18\ 433 U.S. 229 (1977).
    \19\ 20 S. Ct. at 2562.
    \20\ 20 S. Ct. at 2558. Justice O'Connor notes that the plurality 
bases its reasoning for this point on the Court's precedents that have 
allowed government aid to be utilized to access religious instruction, 
specifically Witters v. Washington, 474 U.S. 481 (1983), and Zobrest v. 
Catalina Foothills Sch. Dist., 509 U.S. 1 (1993). O'Connor correctly 
notes that those cases relied heavily on the ``understanding that the 
aid was provided directly to the individual student who, in turn, made 
the choice of where to put that aid to use,'' 120 S. Ct. at 2558, as 
opposed to a per-capita, direct aid program at issue in Helms. With 
regard to this issue in this context of direct aid to faith-based 
social service agencies, see below at note 27.
    \21\ 20 S. Ct. at 2569.
---------------------------------------------------------------------------
    Taking all of these considerations together, it is possible to 
construct a regime under which faithbased organizations may receive 
government social service grants in a manner consistent with the latest 
interpretation of the Establishment Clause.\22\ This regime is 
evidenced in the previously enacted charitable choice laws and in your 
bill, 5.304. The eligibility criteria for receiving a grant are 
religion neutral.\23\ The grant program serves the secular purpose of 
providing social welfare services to needy individuals. The grant funds 
are expressly prohibited from being ``expended for sectarian worship, 
instruction or proselytization.'' \24\ And Justice O'Connor's 
sophisticated ``objective observer'' would not believe that government 
support for the faith-based provider under this legislation constituted 
the endorsement of the particular religion.\25\ Moreover, the bill's 
accounting and auditing requirements \26\ are a safeguard against the 
diversion of funds for religious purposes, as well as an appropriate 
means of ensuring that public funds are expended for their specifically 
intended programmatic purposes.\27\
---------------------------------------------------------------------------
    \22\ Of course, Mitchell v. Helms and the long line of school/
religion cases that came before it pose Establishment Clause questions 
squarely in the area of K-12 education, where the Court has been most 
sensitive to Establishment Clause concerns. It is quite plausible that 
an assessment of the constitutionality of charitable choice programs 
would employ more relaxed criteria than those discussed in the Helms 
opinion.
    \23\ S.304, Sec. 701 (a) provides that ``the government shall 
consider, on the same basis as other nongovernmental organizations, 
religious organizations to provide assistance. . .''
    \24\ S.304, Sec. 701(h).
    \25\ Bipartisan legislation pending in the House of Representatives 
addresses this point even more explicitly by stating that the receipt 
of funds by a religious organization ``is not and should not be 
perceived as an endorsement by the government of religion.'' H.R.7, 
Sec. 201(c)(3).
    \26\ S.304, Sec. 701(f).
    \27\ These last two provisions lessen the need for the aid to flow 
on the basis of private and independent choices discussed above, note 
20. At the same time, it is certainly the case that any ``voucherized'' 
mechanisms, as opposed to direct grants, for charitable choice will 
satisfy the conditions set out by Justice O'Connor in this regard. From 
a policy standpoint, however, a voucher-based approach has two 
principle shortcomings; it reinforces the non-neutral treatment of 
religious entities and it biases against newer participants and 
programs who cannot overcome start-up costs while waiting for vouchers 
to be presented by beneficiaries.
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  FREE EXERCISE OF RELIGION CONSIDERATIONS; FOR PROGRAM BENEFICIARIES

    There are other safeguards in charitable choice laws that are not 
necessitated by the
    Establishment Clause, but by the Constitution's Free Exercise 
Clause--a feature of the First Amendment that ought to carry equal 
weight to the Establishment Clause but, for a variety of reasons, often 
seems forgotten--even by the Supreme Court.\28\
---------------------------------------------------------------------------
    \28\Members of this Committee are well aware of the Court's recent 
apathy toward the Free Exercise Clause beginning with Employment 
Division v. Smith, 474 U.S. 872 (1990), resulting in the passage of the 
Religious Freedom Restoration Act, 42 U.S.C. Sec. 2000bb. ``RFRA'' was 
struck down by the Court in City of Boerne v. Flores, 117 S.Ct. 2157 
(1997) to which congress, led by members of this Committee, responded 
last year with the Religious Land Use and Institutionalized Persons 
Act, 42 U.S.C. Sec. 2000cc.
---------------------------------------------------------------------------
    As members of a minority religion in this country, we in the 
Orthodox Jewish community are terribly sensitive to the issue of 
religious coercion in general, and certainly in situations where 
government support, albeit indirect, is involved. We believe government 
should bolster the ``first freedom'' of religious liberty at every 
opportunity. Thus, we would insist that there be adequate safeguards to 
prevent any eligible beneficiary from being religiously coerced by a 
government-supported service provider. We believe that a requirement 
that each beneficiary be entitled to a readily accessible alternative 
service program and that each beneficiary be put on specific notice 
that they are entitled to such an alternative is the proper method for 
dealing with this issue. Moreover, as a condition for receiving federal 
assistance, faith providers must agree not to refuse to serve an 
eligible beneficiary on the basis of their religion or their refusal to 
hold a particular religious belief. These safeguards are contained in 
5.304.\29\
---------------------------------------------------------------------------
    \29\ Sec. 701 (d) and Sec. 701(e), respectively. Some have 
suggested that allowing a beneficiary to opt out of the faith-related 
portions of the faith-based agency's program while being entitled to 
partake of the secular portions of the program is an appropriate 
safeguard. This too is contained in S.304, Sec. 701(e)(1): ``A 
religious organization providing assistance. . .shall not discriminate. 
. .on the basis of. . .a refusal to actively participate in a religious 
practice.'' We believe this is insufficient. It would force 
beneficiaries to constantly assert their objection in contexts where 
that might be difficult, if not awkward. The best safeguard, in the 
view of the UOJCA, for the religious ``objector'' is to facilitate his 
or her participation in an acceptable alternative program.
---------------------------------------------------------------------------
  FREE EXERCISE OF RELIGION CONSIDERATIONS; FOR FAITH-BASED PROVIDERS

    There are also critical religious liberty considerations with 
regard to the protections afforded to religious organizations by the 
Constitution and federal civil rights laws. As you are already aware, 
the one that has received considerable attention from critics of the 
faith-based initiative is the thirty-seven year old federal law \30\ 
permitting religious organizations to hire employees on the basis of 
religion.\31\ A few basic points must be made with regard to this 
argument which, I believe, will set the record straight and refute the 
accusation that suggests that all American houses of worship are, in 
fact, houses of bigotry.
---------------------------------------------------------------------------
    \30\ A recent survey conducted by the Pew Forum on Religion and 
Public Life noted broad support for the faith-based initiative overall, 
but concerns over permitting religious social service providers to 
receive government funds while continuing to possess the right to hire 
on the basis of religion. At no point, however, was any information 
offered to the respondents apprising them of the limited nature of the 
exemption, see below, or its creation as part of the Civil Rights Act 
of 1964. See, http://pewforum.org/events/0410/report/topline.php3.
    \31\ Section 702 of the Civil Rights Act of 1964, as amended 42 
U.S.C. Sec. 2000e-1, provides in relevant part: ``This subchapter shall 
not apply. . .to a religious corporation, association, educational 
institution or society with respect to the employment of individuals of 
a particular religion to perform work connected with the carrying on by 
such corporation, association, educational institution, or society of 
its activities.''
---------------------------------------------------------------------------
    As the members of this Committee are well aware, the Civil Rights 
Act of 1964 is the great bulwark against objectionable acts of 
discrimination and Title VII of that Act bans discrimination in 
employment on the basis of race, ethnicity, gender, religion and 
national origin. It was the very same architects of modern civil rights 
law who created a narrow exemption in the 1964 Act permitting churches, 
synagogues and all other religious organizations to make hiring 
decisions on the basis of religion.\32\
---------------------------------------------------------------------------
    \32\ Religious institutions remain bound by prohibitions against 
employment discrimination on the basis of race, ethnicity and the like.
---------------------------------------------------------------------------
    It would be absurd, to say the least, to suggest that a Catholic 
parish could be subjected to a federal lawsuit if it refused to hire a 
Jew for its pulpit. In 1972, still the heyday of civil rights reforms, 
Congress expanded the statutory exemption to apply to virtually all 
employees of religious institutions, whether they serve in clergy 
positions or not. The Free Exercise Clause demands this broad 
protection, and in 1987, the Supreme Court unanimously upheld the Title 
VII exemption as constitutional.\33\
---------------------------------------------------------------------------
    \33\ Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987). The 
majority opinion assumed only ``for the sake of argument'' that the 
Sec. 702 exemption as enacted in 1964, prior to its 1972 expansion by 
congress, was sufficient to meet the requirements of the Free Exercise 
Clause, 483 U.S. at 336, while Justice Brennan, joined by Justice 
Marshall, suggested that the broader exemption was also supported by 
Free Exercise requirements; he noted that `` `[r]eligion included 
important communal events for most believers. They exercise their 
religion through religious organizations, and these organizations must 
be protected by the [Free Exercise] [C]lause.' '' 483 U.S. at 341, 
quoting Laycock, Towards a General Theory of the Religion Clauses, 81 
Colum.L. Rev. 1373, 1389 (1981).
---------------------------------------------------------------------------
    This well-established law has now become a central feature of the 
opposition to charitable choice; so much so that the interest groups 
who have joined together to fight charitable choice over the last few 
years have called themselves the ``Coalition Against Religious 
Discrimination'' and decry the fact that this initiative will ``turn 
back the clock on civil rights.''
    In fact, what is happening here is savvy political gamesmanship, 
not substantive argument. These very same opponents have lost their 
argument for the strictest view of church-state separation in the 
courts and in Congress. After all, the charitable choice laws that I 
described earlier received bipartisan support in the face of their 
protestations. Thus, they have cast about for a more potent political 
argument, and have found it in invoking the evils of discrimination--
something all Americans rightly oppose.
    But the assumption underlying the opponents' assertion 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. In fact, in the incredibly diverse and fluid society 
that is America 2001, religious groups are increasingly open and 
reflective of that diversity. There are now black Jews, Asian 
Evangelicals and white Muslims and these trends will only increase. 
This is because, at their core, religious groups are supposed to care 
not about where you come from or what you look like, only what you 
believe.\34\ Religious institutions are thus compelled to ignore a 
person's heredity and champion his or her more transcendent 
characteristics.\35\
---------------------------------------------------------------------------
    \34\ Secular groups that are ideologically driven--from liberal to 
conservative--function in a similar manner and enjoy an analogous 
constitutional protection for their hiring practices under the freedom 
of expressive association, also recognized under the First Amendment. 
Thus, even though Planned Parenthood may receive government grants, it 
cannot be compelled to hire pro-lifers.
    \35\ Of course, one cannot overlook the fringe groups such as the 
Church of the Creator and Aryan Church that propound a ``theology'' of 
racial and ethnic hatred and hold themselves out as ``religions.'' They 
are despicable and give mainstream religions a bad name. But we don't 
generally make our public policy decisions on the basis of the radical 
extremist; we afford everyone the freedom of speech even though it will 
benefit the neo-Nazi or the flag-burner. This approach should not be 
abandoned here.
---------------------------------------------------------------------------
    Those who appreciate the role of religious institutions in America 
should resist the easy equation the opponents assert, for its 
implications are dangerous indeed. After all, a defining element of the 
civil rights era was a commitment to root out invidious forms of 
discrimination not only in public institutions, but in the private 
sector--at lunch counters, in motel rooms and on bus lines. If faith 
institutions' hiring practices are so terribly wrong, are we not 
obligated to oppose them however we can irrespective of whether they 
receive federal funds? If, as the critics suggest, your church and my 
synagogue are such bigoted institutions, why do we offer them the 
benefit of tax-exempt status? Why do we afford their supporters tax 
deductions for their contributions? Why do we hallow their role in 
society as we do?
    There are other arguments to be made against the faith-based 
initiative over which we may reasonably differ. Some people may hold 
fast to a vision of stricter separation of church and state--even in 
the face of Supreme Court decisions to the contrary, while others may 
believe that the best way to serve Americans in need is solely through 
government agencies. We ought to vigorously debate these points as we 
have at this hearing. But slandering our sacred institutions with the 
charge of bigotry is unacceptable and must be ruled out of bounds.
    A second rejoinder, with regard to the specific goals of this 
policy initiative, is important as well. If the goal of charitable 
choice is to leverage the unique capacities of faith-based providers 
with government grants, to force them to dilute their religious 
character is the same as saying you don't believe in the whole 
enterprise.\36\ The critics, obviously do not, but we believe that, 
carefully considered and properly structured, expanding the partnership 
between government and faith-based social service agencies is a 
critical component of a strategy to bring new solutions to America's 
social welfare challenges.
---------------------------------------------------------------------------
    \36\ Again in Vice President Gore's words, ``the religious 
character [of these organizations] that is so often the key to their 
effectiveness.'' Appendix 2. See also, Jeffrey Rosen, Religious Rights, 
The New Republic, February 26, 2001.
---------------------------------------------------------------------------
                               CONCLUSION

    At the end of the day, the debates surrounding the faith-based 
initiative come down to questions of cynicism versus hope. The cynics 
see a slippery slope down every path; some see deeply religious people 
as untrustworthy--incapable of following regulations and perpetually 
plotting to proselytize their neighbor, while others see every civil 
servant as a regulator lacking restraint just waiting to emasculate 
America's religious institutions.
    But if we set our minds--and our hearts--to it, we can find a way 
to be more hopeful. After all, what this is really about is bringing 
some new hope and some real help to people in need through a new 
avenue.

    Senator Schumer. Thank you.
    Our next witness is Mr. Doug Laycock. Mr. Laycock is the 
Associate Dean for Research at the University of Texas Law 
School. We are hearing from him in his capacity as a legal 
scholar.

STATEMENT OF DOUGLAS LAYCOCK, ALICE MCKEAN YOUNG REGENTS CHAIR 
           IN LAW, UNIVERSITY OF TEXAS, AUSTIN, TEXAS

    Mr. Laycock. Thank you, Senator Schumer, and I should also 
say that in my capacity as a supporter of separation of church 
and state, and given the lineup today maybe it is relevant to 
say the last thing I did on the separation issue was represent 
the parents who successfully objected to opening Texas football 
games with prayers. That was a radically separationst position 
in Texas. It interfered with two religions, as best I could 
tell.
    As Senator Leahy and Senator Hatch said at the beginning of 
this hearing, billions of dollars of government money passes 
through religious charities and religious social services 
organizations every year. So what is the problem? What is new 
about this bill?
    One thing I would say is billions of dollars every year and 
2 cases in the Supreme Court in 100 years about social 
services. We have had a 150-year battle over funding of 
religious schools. We have had no remotely comparable battle 
legally or politically over funding of religious social 
services, until the debate over this legislation.
    I would not assume that the Supreme Court's school cases 
apply to social services. They may, but historically there have 
simply been two lines of cases and the church social services 
funding has been upheld. So this is not a funding bill; this is 
a religious liberties bill.
    Charitable choice contains three principles that protect 
the religious liberty of providers and of beneficiaries that 
are not in the current law that is sending that $3 billion a 
year. One is non-discrimination among providers. Today, the 
executive is free to contract with religious providers, free to 
boycott religious providers and contract only with the secular, 
free to contract only with Catholic charities and not with 
Jewish charities. There is no statutory non-discrimination, and 
the constitutional non-discrimination rule is little known, 
little developed and not enforced.
    Charitable choice bills provide no discrimination against 
the religious providers, and I think it would be better frankly 
if they made it both ways--no discrimination in favor of 
religious providers or among religious providers either.
    Second, charitable choice deregulates the religious 
providers. It makes explicit in this statute for the first time 
that you don't have to secularize your operations in order to 
be eligible for a Government contract. If you deliver full 
secular value for the Government's money, then you can do 
whatever religious operation on top of that you want to do. 
That is not in the current law either, and that does indeed 
protect the religious liberty of the providers.
    Hiring is an essential part of that, and let me just say it 
is not part of our law and it has not been part of our law that 
federally assisted religious organizations cannot discriminate 
on the basis of religion. Federally assisted organizations 
can't discriminate on the basis of race or sex or handicap, but 
there is no such law about religion. A reminder that was in the 
news is when Yale University got sued last year for 
discriminating against Orthodox Jews in its dormitories, there 
was no Federal spending statute involved in that. They had to 
rely on State law.
    Third, it protects beneficiaries. There is under current 
law no right to have an alternate provider. If Catholic 
Charities has the contract in your town, you go to Catholic 
Charities. You are not protected in your right to go anywhere 
else. Charitable choice introduces that for the first time.
    Now, let me emphasize, because I don't have time to develop 
it, in my written testimony I say these three protections are 
important, but they are very hard to implement. It is hard to 
guarantee that there will be two providers side by side, 
especially in small towns all across America. It is hard to 
control the bureaucrats who award these contracts and make sure 
they don't discriminate or don't try to regulate the churches 
anyway.
    I wish the Committee and the witnesses were spending more 
time on implementation and less time on the underlying 
question. I think this is sound in principle. It protects 
religious liberty, in principle. It is pro-separation of church 
and state, in principle. The difficulty is in the details. How 
do you actually implement these three protections in a world 
with not nearly enough government money to go around and less 
government money in the future than there has ever been in the 
past?
    [The prepared statement of Mr. Laycock follows:]

      STATEMENT OF DOUGLAS LAYCOCK, UNIVERSITY OF TEXAS LAW SCHOOL

    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.
    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 
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 
nineteenth-century 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. 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.

                          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 bureaucratic 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.
    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.

    Senator Schumer. Thank you, Mr. Laycock. You are not from 
New York, but you spoke almost as fast as Mr. Diament.
    Our final witness is Mr. Richard Foltin, the Executive 
Director and Counsel in the American Jewish Committee's Office 
of Government and International Affairs.

   STATEMENT OF RICHARD T. FOLTIN, LEGISLATIVE DIRECTOR AND 
      COUNSEL, AMERICAN JEWISH COMMITTEE, WASHINGTON, D.C.

    Mr. Foltin. Thank you. I am an expatriate New Yorker and I 
will also try to speak quickly.
    In the view of the American Jewish Committee, the 
charitable choice approach to Government funding of social 
services is an unconstitutional breach of the principle of 
separation of church and state and just plain bad public 
policy. It eliminates longstanding and important church-state 
and anti-discrimination safeguards that have historically been 
in place when Government dollars flow to religiously affiliated 
organizations.
    Perhaps as crucially, there is a conceptual paradox at the 
heart of charitable choice. It is an approach that seeks to 
allow Government to utilize the spiritual ministry of churches, 
synagogues and other pervasively religious institutions as a 
tool in the provision of social services, while at the same 
time assuring that the programs are administered in a fashion 
that protects beneficiaries of these services from religious 
coercion and protects religious institutions from undue 
interference by the state. This is an approach to social 
services provision that is untenable because of the practical, 
to say nothing of the constitutional problems posed by any 
effort to reconcile these inconsistent goals.
    Given all these problems that charitable choice presents, 
the irony is that, in light of the longstanding partnership 
between Government and religiously affiliated organizations, it 
is an approach that is simply unnecessary.
    Our concerns about charitable choice do not reflect any 
lack of high regard for the important work that religious 
institutions do in providing social services, nor an effort to 
erect an impassable barrier to cooperation between those 
institutions and the Government in the provision of services.
    In fact, religiously affiliated organizations have received 
Government funds to provide services under the standards and 
practices that both incorporate proper anti-discrimination and 
church-state safeguards, and preserve the religious identities 
of the providers.
    In addition, there are non-financial ways in which the 
Government can cooperate with any religious organization, as 
set forth in the document ``In Good Faith: A Dialogue on 
Government Funding of Faith-Based Social Services,'' in which 
AJC participated in preparation with supporters of charitable 
choice and which I ask be made part of the record.
    Senator Schumer. Without objection.
    Mr. Foltin. When it comes to the transfer of funds, 
however, to pervasively religious organizations, first, I want 
to note that the reports of the demise of the pervasively 
religious organization test are greatly overstated, to 
paraphrase Mark Twain.
    There is still not only longstanding practice, but judicial 
precedent that tells us that, contrary to what charitable 
choice does, it is not appropriate to permit houses of worship 
and other pervasively religious institutions to receive 
taxpayer dollars for provision of social services.
    The Supreme Court has repeatedly affirmed that such funding 
amounts to an unconstitutional advancing of religion because of 
the substantial risk that Government funding, even if it is 
designated for specific secular purposes, may nonetheless 
advance the pervasively sectarian institution's religious 
mission. Although the great bulk of these cases had to do with 
schools, one important case in this area, Bowen v. Kendrick, 
explicitly had to do with a social service provider.
    Moreover, and while, of course, there is not time to go 
into this now, I think the argument that somehow the Mitchell 
case has undone this notion of looking to the nature of the 
institution receiving the service simply does not hold up to a 
fair analysis of the concurring opinion of Justice O'Connor, 
taken together with the dissent.
    Now, beyond these concerns, charitable choice presents an 
additional problem. When institutions with a thoroughly 
religious environment provide social services, recipients of 
those services may be coerced either explicitly or tacitly to 
take part in religious activities as a price of receiving 
services. None of the purported safeguards in charitable choice 
are adequate to deal with these issues, as is laid out in my 
testimony.
    Let me just conclude by turning for a moment to the issue 
of discrimination. Charitable choice allows religious providers 
to make employment decisions based on religion with respect to 
the employees hired to provide taxpayer-funded services. 
Religious institutions are appropriately permitted to prefer 
co-religionists in hiring decisions under the limited exemption 
of Title VII that recognizes the powerful religious liberty 
interests involved.
    It was important that those provisions were in Title VII, 
and we would defend them to any extent they ever were under 
attack. But the explicit extension of that exemption to cover 
employees providing publicly-funded services as part of a 
program premised on substantial expansion of the role of 
pervasively religious organizations in social services 
provision runs counter to fundamental civil rights principles. 
The issue here is not one of bigotry by the religious 
institutions, but of the proper role of Government and the 
kinds of services that it funds.
    Senator Schumer. Thank you, Mr. Foltin.
    I want to thank all of the witnesses. I think it was done 
in a rather shortened way, abbreviated way, but I think we had 
excellent testimony that drew the issues to a head.
    I apologize. I have so many questions, and I know other 
members do. On this day, as you can see, we are busy. I have an 
amendment on the floor that they are holding up debate on the 
floor until I get over there. So what we are going to do is two 
things; first, put the entire statements in the record. I am 
going to ask every one of my colleagues to read them because I 
think it draws the issues. We had a direct meeting of the 
issues in the testimony here.
    Second, we are going to be submitting written questions to 
every one of the witnesses which will be made part of the 
record.
    With that, I thank you for your patience, and look forward 
to continuing the dialogue on this issue.
    Our hearing is adjourned.
    [Whereupon, at 1:03 p.m., the Committee was adjourned.]
    [Questions and answers follow:]

                         QUESTIONS AND ANSWERS

 Responses of Richard T. Foltin to questions submitted by Senator Leahy

    Question 1: You are familiar with the statement attributed to a 
White House aide implying that, under the President's proposals, 
government dollars could be used to pay for light bulbs while private 
funds pay for Bibles. Do you think it is constitutional for a religious 
provider to receive federal dollars for a program in which the federal 
funds are not put toward proselytizing, but private funds or volunteer 
support are used for activities that are religious in nature?
    Answer: As a preliminary matter, it remains constitutionally 
problematic for government dollars to flow directly to religious 
organizations whose religious mission is inextricably linked with their 
operations, i.e., what the Supreme Court has termed ``pervasively 
sectarian organizations.'' But, regardless of the nature of the funded 
institution (that is, even if the organization is one that is 
religiously affiliated but not pervasively religious), it also remains 
the case that public funds may not be used to promote religious 
doctrines. That prohibition may not be evaded through what amounts to a 
bookkeeping trick in which federal funds are used for the secular 
aspects of the program, while that same program includes religious 
elements, such as proselytization, that are ostensibly supported by 
private funds or volunteer activity. Such an evasion would give rise, I 
submit, to an ``as applied'' constitutional challenge that the program 
was administered in a way that led to violations of the Establishment 
Clause.

    Question 2: Proponents of ``charitable choice'' point to the fact 
that it has been on the books for five years as evidence that it is 
benign and will not lead to excessive litigation. How do you respond?
    Answer: The relative lack of controversy since ``charitable 
choice'' was first enacted in 1996, as part of the welfare reform law, 
tells us nothing about either the benignity or the potential for 
litigation of this initiative. By all reports, churches and other 
religious organizations have not been racing to enter into contracts 
with government, perhaps in part because religious leaders have 
recognized the dangers and the potential for litigation posed by 
``charitable choice.'' Moreover, the programs supported by the 
``charitable choice'' measures enacted since 1996 serve, by definition, 
persons who are in extremis and who are, therefore, least likely to 
raise problems with undue impositions on their religious principles. 
Nevertheless, we have begun to see a number of cases filed in the 
courts involving concerns of the type raised in my testimony about 
discrimination and government funds being used to support religion-
teaching activities. As the number of ``charitable choice'' contracts 
increases--a likely scenario given that the current administration 
supports a broad extension of this approach and has a different view 
than the previous administration as to what kinds of institutions may 
constitutionally receive public funds--we should expect to see a rise 
in the number of lawsuits.

    Question 3: At the hearing we heard the view that the Supreme Court 
has backed away from its holding that government funds should not flow 
directly to ``pervasively sectarian organizations,'' and a related 
suggestion that we should not expect the Court to trust government 
funding of pervasively religious social service providers to be treated 
in the same fashion as government funding of religious schools. What do 
you think of these characterizations of the current state of the law?
    Answer: While it would be foolish to claim that the current 
condition of church-state is one of pristine clarity, the reports of 
the demise of the ``pervasively sectarian organizations'' standard are 
greatly exaggerated. The three dissenters in last year's Supreme Court 
decision in Helms v. Mitchell clearly want to adhere to that framework 
of analysis, and it is difficult to reconcile the concurrence of 
Justices O'Connor and Breyer with the plurality's call for that 
approach to be discarded.
    The concurrence pointedly distinguishes a situation, such as that 
in Helms, involving the loan of federally-funded computers to religious 
schools, from situations involving the flow of government funds to such 
institutions. As Justice O'Connor noted in her concurring opinion, 
``Our concern with direct monetary aid [to religious schools] is based 
on more than just [concern about] diversion [of taxfunded aid to 
religious use]. In fact, the most important reason for according 
special treatment to direct money grants is that this form of aid falls 
precariously close to the original object of the Establishment Clause's 
prohibition.'' Thus, at least as to religious schools, the notion that 
certain religious organizations should not directly receive public 
funds has not been overturned. Since Justice O'Connor was dealing in 
Helms with aid to religious schools, an area dealt with directly by the 
courts in numerous cases, there was no need for her to deal with the 
general issue of the ``pervasively sectarian organization'' standard. 
But these concerns about funding ``fall[ing] precariously close to the 
original object of the Establishment Clause's prohibition'' apply 
equally to houses of worship and similar institutions that are, at 
least as much as religious schools, paradigmatically ``pervasively 
sectarian.''

    Question 4: It has been suggested that the view that religious 
institutions ought not to discriminate on the basis of religion with 
respect to persons hired to provide government funded social services 
somehow casts aspersions on all hiring decisions made by religious 
institutions on the basis of religion--even when with private funds--as 
manifestations of ``religious bigotry.'' Is this a fair statement of 
how you, as an opponent of ``charitable choice,'' view those hiring 
decisions?
    Answer: No. My objection to the fashion in which ``charitable 
choice'' allows religious organizations to discriminate on the basis of 
religion with respect to persons hired to provide government funded 
social services does not reflect a view that religious organizations 
manifest ``religious bigotry'' when they invoke the Title VII exemption 
that allows religious organizations to prefer members of their own 
faith in making hiring decisions.
    In his concurring opinion in Corporation of Presiding Bishop v. 
Amos, 483 U.S. 327 (1987) (upholding the constitutionality of the Title 
VII exemption), Justice Brennan, joined by Justice Marshall, citing an 
article by Professor Douglas Laycock said, ``[r]eligious organizations 
have an interest in autonomy in ordering their internal affairs, so 
that they may be free to: `select their own leaders, define their own 
doctrines, resolve their own disputes, and run their own institutions. 
Religion includes important communal elements for most believers. They 
exercise their religion through religious organizations, and these 
organizations must be protected by the [Free Exercise] [C]lause.''' 
Justice Brennan went on, ``[A religious] community represents an 
ongoing tradition of shared beliefs, an organic entity not reducible to 
a mere aggregation of individuals. 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 furtherance of the 
autonomy of religious organizations often furthers individual religious 
freedom as well.'' Thus, it is a fundamental aspect of the religious 
freedom that is protected as our first liberty in the First Amendment 
that religious organizations, the vehicle through which religious 
communities manifest their religious missions, should be able to demand 
that the individuals they hire to work for those organizations 
subscribe to the creed and practices of their faith. Such a demand is 
not a manifestation of ``religious bigotry'' but, rather, a reflection 
of the need to maintain the integrity of the organization.
    Explicit extension of the exemption to cover employees providing 
publicly funded services is not required by the concerns addressed in 
Amos. Much of the Amos analysis, as amplified in the concurring 
opinions, turns on the problems that would be posed in limiting the 
exemption to religious activities of a religious organization, not the 
least of which would be placing the state in the position of parsing 
which activities of the organization are secular and which are 
religious. With respect to programs funded by the government, however, 
the state, as a matter of constitutional principle, may fund only the 
secular activities of religious organizations, thereby making 
unnecessary an explicit extension of the Title VII exemption to 
employees providing publicly funded services. To the contrary, such an 
explicit extension, as part of a program premised on substantial 
expansion of the role of pervasively religious organizations in social 
services provision, would run counter to fundamental civil rights 
principles, as well as identify the government with using religious 
criteria for employment. It is these concerns that underlie our 
opposition to the provisions of ``charitable choice'' that deal with 
employment discrimination, and not any view that religious 
organizations manifest ``religious bigotry'' when they rely on 
religious criteria in making employment decisions.

                                

   Responses of Richard T. Foltin to questions submitted by Senator 
                                Kennedy

    Question 1: Many of our most vulnerable citizens--drug and alcohol 
addicts, the mentally ill, and those living in poverty, will be the 
ones seeking the services provided by faith based organizations. 
Considering this fact, I would like the panelists to address how this 
legislation does or does not protect and ensure the rights of these 
individuals? Specifically, either from experience or from your 
understanding of the legislation, can you describe the process by which 
an individual who objects to religious treatment would be able to opt-
out? Is the burden on the individual--who may or may not be competent 
to affirmatively assert his or her objections, or does the provider 
have an obligation to explain the methods to the individual and 
ascertain whether he or she objects to religious treatment? Does the 
faith based provider have an obligation to notify the individual that 
there is an alternative, non-faith based organization, or are we 
relying on the individual's knowledge of his or her rights? If the 
individual is a minor or is mentally incompetent, is there a duty to 
receive a waiver from a parent, guardian or custodian?
    Answer: Proponents of ``charitable choice'' have pointed to several 
provisions of 5.304 as affording sufficient protection for persons 
receiving government-funded services from religious coercion. But these 
ostensible protections, including prohibitions on the use of program 
funds for ``sectarian worship, instruction or proselytization'' and on 
discrimination against beneficiaries on the basis of religion, as well 
as the requirement that beneficiaries of social services shall be 
entitled to have those services provided by ``an alternative 
organization,'' are simply insufficient.
    As to the prohibitions on use of funds for sectarian purposes and 
on discrimination, it is not reasonable to expect pervasively religious 
institutions to provide for a separation between the provision of 
secular social services for which taxpayer dollars are used and the 
religion-teaching activities of those organizations. Moreover, nothing 
in ``charitable choice'' precludes privately funded religious 
activities from taking place in and around the services paid for with 
public funds in a fashion that will suggest strongly to beneficiaries 
that these are activities in which they ought to be engaged.
    With respect to the requirement that assistance be made available 
from ``an alternative organization that is accessible to the 
individual,'' this requirement is pregnant with unanswered questions 
such as: must the alternative provider be secular, is the alternative 
provider to be made available on an ongoing basis or simply created as 
individuals object to an offered religious provider, who shall pay for 
the establishment of the alternative provider, and what type of burden 
will be imposed on the beneficiary to confirm his or her religious 
objection? This lack of clarity as to the particulars of the 
requirement that an alternative provider be made available makes it 
difficult to answer this and the subsequent questions as to how this 
structure should work. We should, therefore, approach with great 
suspicion any assurance by proponents that this structure will 
sufficiently protect the rights of individuals.
    In any event, it is, frankly, difficult to believe that alternative 
providers will always be reasonably available, if available at all, 
particularly in rural or homogenous areas, whatever S.304 may say. It 
is important to recall as well, that the recipients of services 
provided under ``charitable choice'' are often in extremis. They may 
not clearly understand their options and their rights, they may be 
subject to pressure from government officials and peers not to ``make 
waves,'' and they may be reluctant to take steps that might delay or 
obstruct their receipt of badly needed services.
    Turning, then, to the specific queries at the end of question one, 
it really is not feasible to describe, after reading the legislation 
(which is similar to the provisions that have been appeared in other 
bills that include ``charitable choice ''), the process by which an 
individual who objects to religious treatment would be able to opt-out. 
Certainly, nothing in the bill precludes state and local officials who 
are administering a program from placing the burden on the individual 
to affirmatively assert his or her objections. The bill does provide 
for some form of notice to beneficiaries, which is an improvement over 
earlier ``charitable choice'' initiatives, but, again, lacks, 
specificity or clarity. At the most basic level, we are not told how 
the determination is to made which is the ``appropriate Federal, State, 
or local governmental entity'' to provide notice.

    Question 2: S.304 states that an individual has a right to ``an 
alternative organization that is accessible to the individual.'' What 
is your understanding of what constitutes an acceptable ``alternative'' 
organization? When comparing a faith based organization and a non-faith 
based organization, what factors do you believe are most significant in 
determining whether that organization is an acceptable alternative 
(i.e., number of individuals served, comparable funding, number of 
staff members, success rates)?
    Answer: The bill provides no clear standard as to what will 
constitute an acceptable alternative organization, other than to say 
that the organization shall be ``accessible'' and that the assistance 
provided by that organization shall have ``a value that is not less 
than the value of the assistance that the individual would have 
received from such organization.'' Certainly, the factors suggested in 
question 2 are among those that should be considered in determining 
what is acceptable, but perhaps as crucial as the question of what is 
acceptable is the question of who decides what is acceptable. Is 
acceptability to be determined by the beneficiary, a federal rule-
making agency, or the state or local agencies responsible for 
administering the program? And how is this determination to be policed? 
Are the courts, in the end, going to be responsible for resolving a 
dispute as to whether an acceptable alternative has been offered? To 
the extent a challenge to acceptability turns on a challenge being made 
by the beneficiary, all of the concerns as to barriers to objections by 
beneficiaries raised above apply.

    Question 3: Continuing with the provision addressed in question 2, 
how ``accessible'' must the non-faith based organization be to the 
individual? For example, if an individual objects to a faith based 
organization walking distance from where he or she lives, does the city 
and/or state have an obligation to provide an alternative within 
walking distance? In the same city or town? Same county? Same state? 
Furthermore, does the city or state have an obligation to provide 
transportation if that individual is unable to get to the secular 
organization?
    Answer: These are, again, questions that the bill does not resolve. 
These answers will have to be provided by a federal rule-making agency 
or the state administrator, with disputes to be resolved in the courts.

    Question 4: The legislation provides that these alternative 
services must be provided in a ``reasonable period of time after the 
date'' an individual files an objection to the faith based services. 
Under this provision, for example, what happens to the drug or alcohol 
addict during the time period between when a complaint is lodged and 
when an alternative organization is established. Does that individual 
have to choose between asserting his rights or receiving urgent care 
and treatment?
    Answer: Once again, questions that the bill does not resolve. But, 
clearly, a huge problem is presented in terms of the acceptability of 
an alternative provider if that alternative is not available to those 
in need of urgent care and treatment. The only way to guard against 
inequities in terms of the provisions of services is to create 
alternative providers at the same time as faith-based services receive 
contracts. But this is an approach that would bring it with all sorts 
of difficulties in funding and inefficiencies.

    Question 5: Do you believe the enforcement mechanism in the 
legislation is adequate? Do you think it is effective and realistic to 
rely on individuals--many of whom lack the financial ability and 
personal desire to file a lawsuit--to ensure compliance with the 
legislation. What other enforcement mechanisms might exist?
    Answer: No enforcement mechanism is explicitly provided other than 
the private cause of action that may be available under subsection (g). 
Plainly, as the question reflects and as I stated in my response to 
question 1, that is a palpably inadequate enforcement mechanism. Absent 
the creation of a federal authority to ensure compliance, it is 
difficulty to know what mechanism would actually assure adequate 
safeguarding of the right to an acceptable alternative.

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