```

[House Report 107-138]
[From the U.S. Government Publishing Office]

107th Congress                                            Rept. 107-138
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

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

 
                    COMMUNITY SOLUTIONS ACT OF 2001

                                _______
                                

                 July 12, 2001.--Ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                         [To accompany H.R. 7]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 7) to provide incentives for charitable 
contributions by individuals and businesses, to improve the 
effectiveness and efficiency of government program delivery to 
individuals and families in need, and to enhance the ability of 
low-income Americans to gain financial security by building 
assets, having considered the same, report favorably thereon 
with amendments and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendments...................................................     2
Purpose and Summary..............................................    11
Background and Need for the Legislation..........................    16
Hearings.........................................................    40
Committee Consideration..........................................    41
Vote of the Committee............................................    41
Committee Oversight Findings.....................................    50
Performance Goals and Objectives.................................    50
New Budget Authority and Tax Expenditures........................    50
Congressional Budget Office Cost Estimate........................    50
Constitutional Authority Statement...............................    55
Section-by-Section Analysis and Discussion.......................    55
Changes in Existing Law Made by the Bill, as Reported............    60
Committee Jurisdiction Letters...................................    67
Markup Transcript................................................    72
Dissenting Views.................................................   289
    The amendments are as follows:

    Strike section 104 and insert the following:

SEC. 104. CHARITABLE DONATIONS LIABILITY REFORM FOR IN-KIND CORPORATE 
                    CONTRIBUTIONS.

    (a) Definitions.--For purposes of this section:
            (1) Aircraft.--The term ``aircraft'' has the 
        meaning provided that term in section 40102(6) of title 
        49, United States Code.
            (2) Business entity.--The term ``business entity'' 
        means a firm, corporation, association, partnership, 
        consortium, joint venture, or other form of enterprise.
            (3) Equipment.--The term ``equipment'' includes 
        mechanical equipment, electronic equipment, and office 
        equipment.
            (4) Facility.--The term ``facility'' means any real 
        property, including any building, improvement, or 
        appurtenance.
            (5) Gross negligence.--The term ``gross 
        negligence'' means voluntary and conscious conduct by a 
        person with knowledge (at the time of the conduct) that 
        the conduct is likely to be harmful to the health or 
        well-being of another person.
            (6) Intentional misconduct.--The term ``intentional 
        misconduct'' means conduct by a person with knowledge 
        (at the time of the conduct) that the conduct is 
        harmful to the health or well-being of another person.
            (7) Motor vehicle.--The term ``motor vehicle'' has 
        the meaning provided that term in section 30102(6) of 
        title 49, United States Code.
            (8) Nonprofit organization.--The term ``nonprofit 
        organization'' means--
                    (A) any organization described in section 
                501(c)(3) of the Internal Revenue Code of 1986 
                and exempt from tax under section 501(a) of 
                such Code; or
                    (B) any not-for-profit organization 
                organized and conducted for public benefit and 
                operated primarily for charitable, civic, 
                educational, religious, welfare, or health 
                purposes.
            (9) State.--The term ``State'' means each of the 
        several States, the District of Columbia, the 
        Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
        American Samoa, the Northern Mariana Islands, any other 
        territory or possession of the United States, or any 
        political subdivision of any such State, territory, or 
        possession.
    (b) Liability.--
            (1) Liability of business entities that donate 
        equipment to nonprofit organizations.--
                    (A) In general.--Subject to subsection (c), 
                a business entity shall not be subject to civil 
                liability relating to any injury or death that 
                results from the use of equipment donated by a 
                business entity to a nonprofit organization.
                    (B) Application.--This paragraph shall 
                apply with respect to civil liability under 
                Federal and State law.
            (2) Liability of business entities providing use of 
        facilities to nonprofit organizations.--
                    (A) In general.--Subject to subsection (c), 
                a business entity shall not be subject to civil 
                liability relating to any injury or death 
                occurring at a facility of the business entity 
                in connection with a use of such facility by a 
                nonprofit organization, if--
                            (i) the use occurs outside of the 
                        scope of business of the business 
                        entity;
                            (ii) such injury or death occurs 
                        during a period that such facility is 
                        used by the nonprofit organization; and
                            (iii) the business entity 
                        authorized the use of such facility by 
                        the nonprofit organization.
                    (B) Application.--This paragraph shall 
                apply--
                            (i) with respect to civil liability 
                        under Federal and State law; and
                            (ii) regardless of whether a 
                        nonprofit organization pays for the use 
                        of a facility.
            (3) Liability of business entities providing use of 
        a motor vehicle or aircraft.--
                    (A) In general.--Subject to subsection (c), 
                a business entity shall not be subject to civil 
                liability relating to any injury or death 
                occurring as a result of the operation of 
                aircraft or a motor vehicle of a business 
                entity loaned to a nonprofit organization for 
                use outside of the scope of business of the 
                business entity, if--
                            (i) such injury or death occurs 
                        during a period that such motor vehicle 
                        or aircraft is used by a nonprofit 
                        organization; and
                            (ii) the business entity authorized 
                        the use by the nonprofit organization 
                        of motor vehicle or aircraft that 
                        resulted in the injury or death.
                    (B) Application.--This paragraph shall 
                apply--
                            (i) with respect to civil liability 
                        under Federal and State law; and
                            (ii) regardless of whether a 
                        nonprofit organization pays for the use 
                        of the aircraft or motor vehicle.
    (c) Exceptions.--Subsection (b) shall not apply to an 
injury or death that results from an act or omission of a 
business entity that constitutes gross negligence or 
intentional misconduct.
    (d) Superseding Provision.--
            (1) In general.--Subject to paragraph (2) and 
        subsection (e), this title preempts the laws of any 
        State to the extent that such laws are inconsistent 
        with this title, except that this title shall not 
        preempt any State law that provides additional 
        protection for a business entity for an injury or death 
        described in a paragraph of subsection (b) with respect 
        to which the conditions specified in such paragraph 
        apply.
            (2) Limitation.--Nothing in this title shall be 
        construed to supersede any Federal or State health or 
        safety law.
    (e) Election of State Regarding Nonapplicability.--A 
provision of this title shall not apply to any civil action in 
a State court against a business entity in which all parties 
are citizens of the State if such State enacts a statute--
            (1) citing the authority of this section;
            (2) declaring the election of such State that such 
        provision shall not apply to such civil action in the 
        State; and
            (3) containing no other provisions.
    (f) Effective Date.--This section shall apply to injuries 
(and deaths resulting therefrom) occurring on or after the date 
of the enactment of this Act.

    Strike title II and insert the following:

                TITLE II--EXPANSION OF CHARITABLE CHOICE

SEC. 201. PROVISION OF ASSISTANCE UNDER GOVERNMENT PROGRAMS BY 
                    RELIGIOUS AND COMMUNITY ORGANIZATIONS.

    Title XXIV of the Revised Statutes of the United States is 
amended by inserting after section 1990 (42 U.S.C. 1994) the 
following:

``SEC. 1991. CHARITABLE CHOICE.

    ``(a) Short Title.--This section may be cited as the 
`Charitable Choice Act of 2001'.
    ``(b) Purposes.--The purposes of this section are--
            ``(1) to enable assistance to be provided to 
        individuals and families in need in the most effective 
        and efficient manner;
            ``(2) to supplement the Nation's social service 
        capacity by facilitating the entry of new, and the 
        expansion of existing, efforts by religious and other 
        community organizations in the administration and 
        distribution of government assistance under the 
        government programs described in subsection (c)(4);
            ``(3) to prohibit discrimination against religious 
        organizations on the basis of religion in the 
        administration and distribution of government 
        assistance under such programs;
            ``(4) to allow religious organizations to 
        participate in the administration and distribution of 
        such assistance without impairing the religious 
        character and autonomy of such organizations; and
            ``(5) to protect the religious freedom of 
        individuals and families in need who are eligible for 
        government assistance, including expanding the 
        possibility of their being able to choose to receive 
        services from a religious organization providing such 
        assistance.
    ``(c) Religious Organizations Included as Providers; 
Disclaimers.--
            ``(1) In general.--
                    ``(A) Inclusion.--For any program described 
                in paragraph (4) that is carried out by the 
                Federal Government, or by a State or local 
                government with Federal funds, the government 
                shall consider, on the same basis as other 
                nongovernmental organizations, religious 
                organizations to provide the assistance under 
                the program, and the program shall be 
                implemented in a manner that is consistent with 
                the establishment clause and the free exercise 
                clause of the first amendment to the 
                Constitution.
                    ``(B) Discrimination prohibited.--Neither 
                the Federal Government, nor a State or local 
                government receiving funds under a program 
                described in paragraph (4), shall discriminate 
                against an organization that provides 
                assistance under, or applies to provide 
                assistance under, such program on the basis 
                that the organization is religious or has a 
                religious character.
            ``(2) Funds not aid to religion.--Federal, State, 
        or local government funds or other assistance that is 
        received by a religious organization for the provision 
        of services under this section constitutes aid to 
        individuals and families in need, the ultimate 
        beneficiaries of such services, and not support for 
        religion or the organization's religious beliefs or 
        practices. Notwithstanding the provisions in this 
        paragraph, title VI of the Civil Rights Act of 1964 (42 
        USC 2000d et seq.) shall apply to organizations 
        receiving assistance funded under any program described 
        in subsection (c)(4).
            ``(3) Funds not endorsement of religion.--The 
        receipt by a religious organization of Federal, State, 
        or local government funds or other assistance under 
        this section is not an endorsement by the government of 
        religion or of the organization's religious beliefs or 
        practices.
            ``(4) Programs.--For purposes of this section, a 
        program is described in this paragraph--
                    ``(A) if it involves activities carried out 
                using Federal funds--
                            ``(i) related to the prevention and 
                        treatment of juvenile delinquency and 
                        the improvement of the juvenile justice 
                        system, including programs funded under 
                        the Juvenile Justice and Delinquency 
                        Prevention Act of 1974 (42 U.S.C. 5601 
                        et seq.);
                            ``(ii) related to the prevention of 
                        crime and assistance to crime victims 
                        and offenders' families, including 
                        programs funded under title I of the 
                        Omnibus Crime Control and Safe Streets 
                        Act of 1968 (42 U.S.C. 3701 et seq.);
                            ``(iii) related to the provision of 
                        assistance under Federal housing 
                        statutes, including the Community 
                        Development Block Grant Program 
                        established under title I of the 
                        Housing and Community Development Act 
                        of 1974 (42 U.S.C. 5301 et seq.);
                            ``(iv) under subtitle B or D of 
                        title I of the Workforce Investment Act 
                        of 1998 (29 U.S.C. 2801 et seq.);
                            ``(v) under the Older Americans Act 
                        of 1965 (42 U.S.C. 3001 et seq.);
                            ``(vi) related to the intervention 
                        in and prevention of domestic violence, 
                        including programs under the Child 
                        Abuse Prevention and Treatment Act (42 
                        U.S.C. 5101 et seq.) or the Family 
                        Violence Prevention and Services Act 
                        (42 U.S.C. 10401 et seq.);
                            ``(vii) related to hunger relief 
                        activities; or
                            ``(viii) under the Job Access and 
                        Reverse Commute grant program 
                        established under section 3037 of the 
                        Federal Transit Act of 1998 (49 U.S.C. 
                        5309 note); or
                    ``(B)(i) if it involves activities to 
                assist students in obtaining the recognized 
                equivalents of secondary school diplomas and 
                activities relating to nonschool hours 
                programs, including programs under--
                            ``(I) chapter 3 of subtitle A of 
                        title II of the Workforce Investment 
                        Act of 1998 (Public Law 105-220); or
                            ``(II) part I of title X of the 
                        Elementary and Secondary Education Act 
                        (20 U.S.C. 6301 et seq.); and
                    ``(ii) except as provided in subparagraph 
                (A) and clause (i), does not include activities 
                carried out under Federal programs providing 
                education to children eligible to attend 
                elementary schools or secondary schools, as 
                defined in section 14101 of the Elementary and 
                Secondary Education Act of 1965 (20 U.S.C. 
                8801).
    ``(d) Organizational Character and Autonomy.--
            ``(1) In general.--A religious organization that 
        provides assistance under a program described in 
        subsection (c)(4) shall have the right to retain its 
        autonomy from Federal, State, and local governments, 
        including such organization's control over the 
        definition, development, practice, and expression of 
        its religious beliefs.
            ``(2) Additional safeguards.--Neither the Federal 
        Government, nor a State or local government with 
        Federal funds, shall require a religious organization, 
        in order to be eligible to provide assistance under a 
        program described in subsection (c)(4), to--
                    ``(A) alter its form of internal governance 
                or provisions in its charter documents; or
                    ``(B) remove religious art, icons, 
                scripture, or other symbols, or to change its 
                name, because such symbols or names are of a 
                religious character.
    ``(e) Employment Practices.--A religious organization's 
exemption provided under section 702 of the Civil Rights Act of 
1964 (42 U.S.C. 2000e-1) regarding employment practices shall 
not be affected by its participation in, or receipt of funds 
from, programs described in subsection (c)(4), and any 
provision in such programs that is inconsistent with or would 
diminish the exercise of an organization's autonomy recognized 
in section 702 or in this section shall have no effect. Nothing 
in this section alters the duty of a religious organization to 
comply with the nondiscrimination provisions of title VII of 
the Civil Rights Act of 1964 in the use of funds from programs 
described in subsection (c)(4).
    ``(f) Effect on Other Laws.--Nothing in this section shall 
alter the duty of a religious organization receiving assistance 
or providing services under any program described in subsection 
(c)(4) to comply with the nondiscrimination provisions in title 
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) 
(prohibiting discrimination on the basis of race, color, and 
national origin), title IX of the Education Amendments of 1972 
(20 U.S.C. 1681-1688) (prohibiting discrimination in education 
programs or activities on the basis of sex and visual 
impairment), section 504 of the Rehabilitation Act of 1973 (29 
U.S.C. 794) (prohibiting discrimination against otherwise 
qualified disabled individuals), and the Age Discrimination Act 
of 1975 (42 U.S.C. 6101-6107) (prohibiting discrimination on 
the basis of age).
    ``(g) Rights of Beneficiaries of Assistance.--
            ``(1) In general.--If an individual described in 
        paragraph (3) has an objection to the religious 
        character of the organization from which the individual 
        receives, or would receive, assistance funded under any 
        program described in subsection (c)(4), the appropriate 
        Federal, State, or local governmental entity shall 
        provide to such individual (if otherwise eligible for 
        such assistance) within a reasonable period of time 
        after the date of such objection, assistance that--
                    ``(A) is an alternative that is accessible 
                to the individual and unobjectionable to the 
                individual on religious grounds; and
                    ``(B) has a value that is not less than the 
                value of the assistance that the individual 
                would have received from such organization.
            ``(2) Notice.--The appropriate Federal, State, or 
        local governmental entity shall guarantee that notice 
        is provided to the individuals described in paragraph 
        (3) of the rights of such individuals under this 
        section.
            ``(3) Individual described.--An individual 
        described in this paragraph is an individual who 
        receives or applies for assistance under a program 
        described in subsection (c)(4).
    ``(h) Nondiscrimination Against Beneficiaries.--
            ``(1) Grants and cooperative agreements.--A 
        religious organization providing assistance through a 
        grant or cooperative agreement under a program 
        described in subsection (c)(4) shall not discriminate 
        in carrying out the program against an individual 
        described in subsection (g)(3) on the basis of 
        religion, a religious belief, or a refusal to hold a 
        religious belief.
            ``(2) Indirect forms of assistance.--A religious 
        organization providing assistance through a voucher, 
        certificate, or other form of indirect assistance under 
        a program described in subsection (c)(4) shall not deny 
        an individual described in subsection (g)(3) admission 
        into such program on the basis of religion, a religious 
        belief, or a refusal to hold a religious belief.
    ``(i) Accountability.--
            ``(1) In general.--Except as provided in paragraphs 
        (2) and (3), a religious organization providing 
        assistance under any program described in subsection 
        (c)(4) shall be subject to the same regulations as 
        other nongovernmental organizations to account in 
        accord with generally accepted accounting principles 
        for the use of such funds and its performance of such 
        programs.
            ``(2) Limited audit.--
                    ``(A) Grants and cooperative agreements.--A 
                religious organization providing assistance 
                through a grant or cooperative agreement under 
                a program described in subsection (c)(4) shall 
                segregate government funds provided under such 
                program into a separate account or accounts. 
                Only the separate accounts consisting of funds 
                from the government shall be subject to audit 
                by the government.
                    ``(B) Indirect forms of assistance.--A 
                religious organization providing assistance 
                through a voucher, certificate, or other form 
                of indirect assistance under a program 
                described in subsection (c)(4) may segregate 
                government funds provided under such program 
                into a separate account or accounts. If such 
                funds are so segregated, then only the separate 
                accounts consisting of funds from the 
                government shall be subject to audit by the 
                government.
            ``(3) Self audit.--A religious organization 
        providing services under any program described in 
        subsection (c)(4) shall conduct annually a self audit 
        for compliance with its duties under this section and 
        submit a copy of the self audit to the appropriate 
        Federal, State, or local government agency, along with 
        a plan to timely correct variances, if any, identified 
        in the self audit.
    ``(j) Limitations on Use of Funds; Voluntariness.--No funds 
provided through a grant or cooperative agreement to a 
religious organization to provide assistance under any program 
described in subsection (c)(4) shall be expended for sectarian 
instruction, worship, or proselytization. If the religious 
organization offers such an activity, it shall be voluntary for 
the individuals receiving services and offered separate from 
the program funded under subsection (c)(4). A certificate shall 
be separately signed by religious organizations, and filed with 
the government agency that disburses the funds, certifying that 
the organization is aware of and will comply with this 
subsection.
    ``(k) Effect on State and Local Funds.--If a State or local 
government contributes State or local funds to carry out a 
program described in subsection (c)(4), the State or local 
government may segregate the State or local funds from the 
Federal funds provided to carry out the program or may 
commingle the State or local funds with the Federal funds. If 
the State or local government commingles the State or local 
funds, the provisions of this section shall apply to the 
commingled funds in the same manner, and to the same extent, as 
the provisions apply to the Federal funds.
    ``(l) Indirect Assistance.--When consistent with the 
purpose of a program described in subsection (c)(4), the 
Secretary of the department administering the program may 
direct the disbursement of some or all of the funds, if 
determined by the Secretary to be feasible and efficient, in 
the form of indirect assistance. For purposes of this section, 
`indirect assistance' constitutes assistance in which an 
organization receiving funds through a voucher, certificate, or 
other form of disbursement under this section receives such 
funding only as a result of the private choices of individual 
beneficiaries and no government endorsement of any particular 
religion, or of religion generally, occurs.
    ``(m) Treatment of Intermediate Grantors.--If a 
nongovernmental organization (referred to in this subsection as 
an `intermediate grantor'), acting under a grant or other 
agreement with the Federal Government, or a State or local 
government with Federal funds, is given the authority under the 
agreement to select nongovernmental organizations to provide 
assistance under the programs described in subsection (c)(4), 
the intermediate grantor shall have the same duties under this 
section as the government when selecting or otherwise dealing 
with subgrantors, but the intermediate grantor, if it is a 
religious organization, shall retain all other rights of a 
religious organization under this section.
    ``(n) Compliance.--A party alleging that the rights of the 
party under this section have been violated by a State or local 
government may bring a civil action for injunctive relief 
pursuant to section 1979 against the State official or local 
government agency that has allegedly committed such violation. 
A party alleging that the rights of the party under this 
section have been violated by the Federal Government may bring 
a civil action for injunctive relief in Federal district court 
against the official or government agency that has allegedly 
committed such violation.
    ``(o) Training and Technical Assistance for Small 
Nongovernmental Organizations.--
            ``(1) In general.--From amounts made available to 
        carry out the purposes of the Office of Justice 
        Programs (including any component or unit thereof, 
        including the Office of Community Oriented Policing 
        Services), funds are authorized to provide training and 
        technical assistance, directly or through grants or 
        other arrangements, in procedures relating to potential 
        application and participation in programs identified in 
        subsection (c)(4) to small nongovernmental 
        organizations, as determined by the Attorney General, 
        including religious organizations, in an amount not to 
        exceed $50 million annually.
            ``(2) Types of assistance.--Such assistance may 
        include--
                    ``(A) assistance and information relative 
                to creating an organization described in 
                section 501(c)(3) of the Internal Revenue Code 
                of 1986 to operate identified programs;
                    ``(B) granting writing assistance which may 
                include workshops and reasonable guidance;
                    ``(C) information and referrals to other 
                nongovernmental organizations that provide 
                expertise in accounting, legal issues, tax 
                issues, program development, and a variety of 
                other organizational areas; and
                    ``(D) information and guidance on how to 
                comply with Federal nondiscrimination 
                provisions including, but not limited to, title 
                VI of the Civil Rights Act of 1964 (42 U.S.C. 
                2000d et seq.), title VII of the Civil Rights 
                Act of 1964 (42 U.S.C. 2000e et seq.), the Fair 
                Housing Act, as amended (42 U.S.C. 3601 et 
                seq.), title IX of the Education Amendments of 
                1972 (20 U.S.C. 1681-1688), section 504 of the 
                Rehabilitation Act of 1973 (29 U.S.C. 694), and 
                the Age Discrimination Act of 1975 (42 U.S.C. 
                6101-6107).
            ``(3) Reservation of funds.--An amount of no less 
        than $5,000,000 shall be reserved under this section. 
        Small nongovernmental organizations may apply for these 
        funds to be used for assistance in providing full and 
        equal integrated access to individuals with 
        disabilities in programs under this title.
            ``(4) Priority.--In giving out the assistance 
        described in this subsection, priority shall be given 
        to small nongovernmental organizations serving urban 
        and rural communities.''.

                          Purpose and Summary

    While the First Amendment to the Constitution provides that 
the Government shall not ``establish'' religion, or any 
particular religion, by directing governmental support to a 
particular religion, or to adherents of religion to the 
exclusion of adherents to no religion, the First Amendment also 
provides that the Government shall not prohibit the ``free 
exercise'' of religion.\1\ Consequently, Government must ensure 
that members of organizations seeking to take part in 
Government programs designed to meet basic and universal human 
needs are not discriminated against because of their religious 
views.
---------------------------------------------------------------------------
    \1\ The First Amendment to the Constitution provides that 
``Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof. . . .''
---------------------------------------------------------------------------
    With such constitutional concerns in mind, the rules for 
participation in programs of Government funding through grants 
and cooperative agreements,\2\ and through indirect forms of 
assistance, for the provision of social services must assess 
eligibility to participate without regard to the religious 
character of an organization, and any religious beliefs that 
organization might hold, or the intensity of those beliefs, 
should not be a basis for rejecting their participation out-of-
hand. Indeed, faith-based organizations often allow their 
beneficiaries greater and more flexible access to the social 
services they offer.\3\
---------------------------------------------------------------------------
    \2\ H.R. 7 refers to ``grants and cooperative agreements'' to avoid 
confusion with ``Government contracts.'' See 31 U.S.C. Sec. Sec. 6304; 
6305. Title 31 U.S.C. Sec. 6305 states ``Using cooperative agreements. 
An executive agency shall use a cooperative agreement as the legal 
instrument reflecting a relationship between the United States 
Government and a State, a local government, or other recipient when--
(1) the principal purpose of the relationship is to transfer a thing of 
value to the State, local government, or other recipient to carry out a 
public purpose of support or stimulation authorized by a law of the 
United States instead of acquiring (by purchase, lease, or barter) 
property or services for the direct benefit or use of the United States 
Government; and (2) substantial involvement is expected between the 
executive agency and the State, local government, or other recipient 
when carrying out the activity contemplated in the agreement.'' Title 
31 U.S.C. Sec. 6304 states: ``Using grant agreements. An executive 
agency shall use a grant agreement as the legal instrument reflecting a 
relationship between the United States Government and a State, a local 
government, or other recipient when--(1) the principal purpose of the 
relationship is to transfer a thing of value to the State or local 
government or other recipient to carry out a public purpose of support 
or stimulation authorized by a law of the United States instead of 
acquiring (by purchase, lease, or barter) property or services for the 
direct benefit or use of the United States Government; and (2) 
substantial involvement is not expected between the executive agency 
and the State, local government, or other recipient when carrying out 
the activity contemplated in the agreement.'' Insofar as documents 
governing the provision of social services by religious organizations 
under the programs covered by title II of H.R. 7 are labeled contracts, 
when in fact they more closely resemble grants rather than procurement 
contracts, such documents should be considered grants under H.R. 7 and 
they should be subject to its provisions.
    \3\ For example, Charles Clingman, executive director of the Jireh 
Development Corporation in Cincinnati, Ohio, testifying before the 
House Subcommittee on the Constitution, stated that, ``Unlike secular 
organizations, faith-based organizations develop immediate 
relationships with the clients and the people that they serve . . . 
They are neighborhood residents who we see on a daily basis at the 
grocery store, at the market and the bank, whatever . . . One thing we 
bring to the table is, at the grass roots level, we really do not 
close. If someone gets in trouble at midnight we allow them to call, 
based on the crisis they have. Other programs close at 5 o'clock. The 
Government closes at 5 o'clock. Faith-based organizations, i.e., 
churches, synagogues, mosques, they don't close. They are available to 
serve clients 24/7.'' Transcript of Hearings on ``State and Local 
Implementation of Existing Charitable Choice Programs'' before the 
House Subcommittee on the Constitution (107th Cong. 1st Sess.) (April 
24, 2001) at 38, 60. The Reverend Donna Jones of the Cookman United 
Methodist Church in north Philadelphia, who runs a charitable choice 
welfare-to-work program also testified that, ``We also found that we 
were offering something that was unique to our community . . . We also 
found that we got greater information about family situations, about 
domestic violence, about other barriers to employment that were 
happening in the house than other agencies were receiving. We also 
were--because we were a church, there was an expectation that was 
different than what they would have expected to have seen in a local 
agency . . . People expected us to go the extra mile. Also, because we 
were a church, we were more flexible in our ability to deliver 
services.'' Id. at 22-23.
---------------------------------------------------------------------------
    The so-called ``charitable choice'' principles, embodied in 
H.R. 7, allow for the public funding of faith-based 
organizations on the same basis as other nongovernmental 
organizations \4\ and permit them to maintain their religious 
character by choosing their staff, board members, and methods. 
The principles also protect the rights of conscience of their 
clients and ensure that alternative providers that are 
unobjectionable to them on religious grounds are available.\5\
---------------------------------------------------------------------------
    \4\ Subsection (c)(1) of the Charitable Choice Act of 2001 provides 
that ``for any program described in paragraph (4) that is carried out 
by the Federal Government, or by a State or local government with 
Federal funds, the government shall consider, on the same basis as 
other nongovernmental organizations, religious organizations to provide 
the assistance under the program, and the program shall be implemented 
in a manner that is consistent with the establishment clause and the 
free exercise clause of the first amendment to the Constitution.'' The 
requirement that religious organizations shall be considered ``on the 
same basis as other nongovernmental organizations'' does not impart to 
religious organizations any preferential treatment in the program 
application and administration process. Subsection (c)(1) further 
provides that, ``Neither the Federal Government, nor a State or local 
government receiving funds under a program described in paragraph (4), 
shall discriminate against an organization that provides assistance 
under, or applies to provide assistance under, such program on the 
basis that the organization is religious or has a religious 
character.''
    \5\ See subsection (g) of the Charitable Choice Act of 2001.
---------------------------------------------------------------------------
    ``Charitable choice'' is not new. Examples of existing laws 
that include ``charitable choice'' provisions are the Substance 
Abuse and Mental Health Services Administration, Pub. L. No. 
106-310, 42 U.S.C. Sec. 300x-65; the Community Services Block 
Grant Act of 1998, Pub. L. No. 105-285, 42 U.S.C. Sec. 9920; 
the Welfare Reform Act of 1996, Pub. L. No. 104-193, 42 U.S.C. 
Sec. 604a; and the Community Renewal Tax Relief Act of 2000, 
Pub. L. No. 106-554, 42 U.S.C. Sec. 290kk-1. Each was signed 
into law by President Clinton.
    H.R. 7 simply seeks to apply the tested principles of 
charitable choice, which in the case of welfare services have 
been Federal law for 5 years, to cover additional Federal 
programs, bringing greater clarity and constitutional adherence 
to a wider scope of Federal funding programs. The charitable 
choice language in H.R. 7 has been carefully tailored to 
respond to discussions of earlier versions of the provision. 
New language emphasizes that Government funding of a religious 
service provider is not intended to endorse religion but rather 
to purchase effective assistance; makes it clearer that 
beneficiaries may not be coerced into religious observance, but 
instead inherently religious activities such as worship and 
proselytization must be privately funded, voluntary, and 
offered separately from the Government-funded services; 
requires religious organizations to sign a certificate 
acknowledging this duty of non-coercion and seperation; clearly 
obligates Government to inform clients of their religious 
liberty rights; emphasizes that the civil rights exemption that 
allows religious organizations to take religion into account in 
hiring decisions does not remove their obligation to respect 
the other non-discrimination requirements in Federal law from 
which they are not already exempt; requires religious 
organizations to keep direct Government funds separate from 
other funds to enable Government to audit the books of a 
religious organization without entangling itself in strictly 
religious matters; emphasizes that religious organizations that 
receive Federal funds are held to the same performance 
standards as well as the same accounting standards as other 
grantees; requires religious organizations to conduct an annual 
self audit to ensure compliance and corrective action; provides 
for $50 million in new Federal funding for technical assistance 
to novice and small nongovernmental organizations to help 
ensure that they have the knowledge and administrative capacity 
to comply with these and other Federal requirements; and 
clarifies how charitable choice principles apply when an 
organization that receives Federal funds in turn subgrants 
funds to other organizations.
    Title II of H.R. 7, the ``Charitable Choice Act of 2001,'' 
provides that its purposes are ``(1) to enable assistance to be 
provided to individuals and families in need in the most 
effective and efficient manner; (2) to supplement the nation's 
social service capacity by facilitating the entry of new, and 
the expansion of existing, efforts by religious and other 
community organizations in the administration and distribution 
of Government assistance under the Government programs 
described in subsection (c)(4); (3) to prohibit discrimination 
against religious organizations on the basis of religion in the 
administration and distribution of Government assistance under 
such programs; (4) to allow religious organizations to 
participate in the administration and distribution of such 
assistance without impairing the religious character and 
autonomy of such organizations; and (5) to protect the 
religious freedom of individuals and families in need who are 
eligible for Government assistance, including expanding the 
possibility of their being able to choose to receive services 
from a religious organization providing such assistance.'' \6\
---------------------------------------------------------------------------
    \6\ H.R. 7 would expand Federal programs governed by charitable 
choice to include programs related to the prevention and treatment of 
juvenile delinquency and the improvement of the juvenile justice 
system, including programs funded under the Juvenile Justice and 
Delinquency Prevention Act of 1974; related to the prevention of crime 
and assistance to crime victims and offenders' families, including 
programs funded under title I of the Omnibus Crime Control and Safe 
Streets Act of 1968; related to the provision of assistance under 
Federal housing statutes, including the Community Development Block 
Grant Program established under title I of the Housing and Community 
Development Act of 1974; under subtitle B or D of title I of the 
Workforce Investment Act of 1998; under the Older Americans Act of 
1965; related to the intervention in and prevention of domestic 
violence, including programs under the Child Abuse and Prevention and 
Treatment Act or the Family Violence Prevention and Services Act; 
related to hunger relief activities; under the Job Access and Reverse 
Commute grant program established under section 3037 of the Federal 
Transit Act of 1998; or involving activities to assist students in 
obtaining the recognized equivalents of secondary school diplomas and 
activities relating to non-school hours programs, including programs 
under chapter 3 of subtitle A of title II of the Workforce Investment 
Act of 1998 or part I of title X of the Elementary and Secondary 
Education Act but not including activities carried out under Federal 
programs providing education to children eligible to attend elementary 
schools or secondary schools, as defined in section 14101 of the 
Elementary and Secondary Education Act of 1965. The intent of H.R. 7 is 
to apply charitable choice principles to all Federal social service 
programs that further Federal goals in the listed subject areas, 
including, for example, programs to strengthen responsible fatherhood 
and to reduce youth risk behaviors.
---------------------------------------------------------------------------
    Under H.R. 7, religious organizations receiving grants 
under covered programs may not use the provided funds for 
``sectarian instruction, worship, or proselytization,'' \7\ and 
a beneficiary's taking advantage of a social service program 
cannot be conditioned on taking part in such activities.\8\ 
Existing charitable choice law, part of the Welfare Reform Act 
of 1996, contains an explicit protection of a beneficiary's 
right to ``refus[e] to actively participate in a religious 
practice,'' thereby insuring a beneficiary's right to avoid any 
unwanted religious practices,\9\ and a similar provision in 
H.R. 7 makes clear that participation, if any, in sectarian 
instruction, worship, or proselytization must be voluntary and 
noncompulsory.
---------------------------------------------------------------------------
    \7\ In addition to the sectarian practices listed in subsection 
(j), the Supreme Court has found the following practices to be 
inherently religious. The Supreme Court has found that prayer; see 
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000); Lee 
v. Weisman, 505 U.S. 577 (1992); Wallace v. Jaffree, 472 U.S. 38 
(1985); School District of Abington Township v. Schempp, 374 U.S. 203 
(1963); Engel v. Vitale, 370 U.S. 421 (1962); devotional Bible reading; 
see School District of Abington Township, 374 U.S. at 203; veneration 
of the Ten Commandments, see Stone v. Graham, 449 U.S. 39 (1980) (per 
curiam); classes in confessional religion; see McCollum v. Board of 
Education of School District No. 71, 333 U.S. 203 (1948); and teaching 
the biblical creation story as science; see Edwards v. Aguillard, 482 
U.S. 578 (1987); Epperson v. Arkansas, 393 U.S. 97 (1968); are all 
forms of inherently religious speech by the Government. These practices 
should not be part of a Government-funded program.
    \8\ Subsection (j) of the Charitable Choice Act of 2001 also 
provides that, ``No funds provided through a grant or cooperative 
agreement to a religious organization to provide assistance under any 
[covered] program . . . shall be expended for sectarian instruction, 
worship, or proselytization. If the religious organization offers such 
an activity, it shall be voluntary for the individuals receiving 
services and offered separate from the program funded under subsection 
(c)(4). A certificate shall be separately signed by religious 
organizations and filed with the Government agency that disburses the 
funds, certifying that the organization is aware of and will comply 
with this subsection.''
    \9\ 42 U.S.C. Sec. 604a(g) (faith-based organizations may not 
discriminate or otherwise turn away a beneficiary from the 
organization's program because the beneficiary ``refus[es] to actively 
participate in a religious practice'').
---------------------------------------------------------------------------
    Such a provision is consistent with Supreme Court 
precedent. Supreme Court Justices O'Connor and Breyer require 
that no Government funds be diverted to ``religious 
indoctrination.'' Therefore, under H.R. 7, religious 
organizations receiving direct funding will have to separate 
their social service program from any sectarian instruction, 
worship, or indoctrination.\10\ If the Federal assistance is 
utilized for social service functions without attendant 
sectarian instruction, worship, or proselytization, then no 
constitutional problems are raised. If the aid flows into the 
entirety of a social service program and some ``religious 
indoctrination [is] taking place therein,'' then the 
indoctrination ``would be directly attributable to the 
Government.'' \11\ The Supreme Court in Bowen v. Kendrick,\12\ 
in upholding a Federal program allowing funds to be distributed 
to faith-based organizations for teen family counseling 
programs, also made clear when remanding the case to the 
District Court, that ``[t]he District Court should . . . 
consider on remand whether in particular cases [the federal] 
aid has been used to fund specifically religious activities in 
an otherwise substantially secular setting . . . Here it would 
be relevant to determine, for example, whether the Secretary 
[of Health and Human Services] has permitted [federal] grantees 
to use materials that have an explicitly religious content or 
are designed to inculcate the views of a particular religious 
faith.'' Therefore, if any part of a faith-based organization's 
activities involve ``religious indoctrination,'' such 
activities must be set apart from the Government-funded program 
and, hence, privately funded.\13\
---------------------------------------------------------------------------
    \10\ Mitchell v. Helms, 120 S.Ct. 2530, 2568 (2000) (O'Connor, J., 
concurring in the judgment).
    \11\ Id.
    \12\ 487 U.S. 589, 621 (1988).
    \13\ For example, a welfare-to-work program operated by a church in 
Philadelphia illustrates how this can be done. Teachers in the program 
conduct readiness-to-work classes in the church basement weekdays 
pursuant to a Government grant. During a free-time period the pastor of 
the church holds a voluntary Bible study in her office up on the ground 
floor. The sectarian instruction is privately funded and separated in 
both time and location from the welfare-to-work classes.
---------------------------------------------------------------------------
  On October 17, 2000, President Clinton stated his constitutional 
concerns regarding the implementation of the charitable choice 
provisions in Substance Abuse and Mental Health Services Administration 
(``SAMHSA'') programs as follows: ``This bill includes a provision 
making clear that religious organizations may qualify for SAMHSA's 
substance abuse prevention and treatment grants on the same basis as 
other nonprofit organizations. The Department of Justice advises, 
however, that this provision would be unconstitutional to the extent 
that it were construed to permit governmental funding of organizations 
that do not or cannot separate their religious activities from their 
substance abuse treatment and prevention activities that are supported 
by SAMHSA aid. Accordingly, I construe the act as forbidding the 
funding of such organizations and as permitting Federal, State, and 
local governments involved in disbursing SAMHSA funds to take into 
account the structure and operations of a religious organization in 
determining whether such an organization is constitutionally and 
statutorily eligible to receive funding.'' Weekly Compilation of 
Presidential Documents (Oct. 23, 2000) (Statement on Signing the 
Children's Health Act of 2000), p. 2504. He made an identical statement 
regarding the charitable choice provisions in the Community Renewal Tax 
Relief Act when he signed that measure into law on December 15, 2000. 
See White House Office of the Press Secretary, ``Statement of the 
President Upon Signing H.R. 4577, the Consolidated Appropriations Act, 
FY 2001'' (December 22, 2000), at 8. These concerns are the same as 
those addressed by the provision in subsection (j) of the Charitable 
Choice Act of 2001, which provides that, ``No funds provided through a 
grant or cooperative agreement to a religious organization to provide 
assistance under any [covered] program . . . shall be expended for 
sectarian instruction, worship, or proselytization. If the religious 
organization offers such an activity, it shall be voluntary for the 
individuals receiving services and offered separate from the program 
funded under subsection (c)(4).'' The required separation would not be 
met where the Government-funded program entails worship, sectarian 
instruction, or proselytizing. Under subsection (j), there are to be no 
practices constituting ``religious indoctrination'' performed by an 
employee while working in a Government-funded program. The same is true 
for volunteers. However, to say that the Government-funded program is 
to be devoid of sectarian practices is different from saying that the 
program must be entirely secular. Indeed, subsection (d) specifically 
guarantees that faith-based organizations may retain religious symbols, 
a religious name, specifically religious language in its chartering 
documents, and the selection of its governing board along religious 
lines. And, under subsection (e), the faith-based organization may 
staff on a religious basis and thereby retain is religious character. 
Most importantly, faith-based organization employees and volunteers can 
do their good works out of religious motive. While the task of helping 
the poor and needy is ``secular'' from the perspective of the 
Government, from the viewpoint of the faith-based organization and its 
workers it is a ministry of mercy driven by faith and guided by faith 
regarding how best to meet basic human needs.
    H.R. 7 also requires a religious organization receiving 
funds under a covered program to sign a certificate of 
compliance that certifies that the organization is aware of and 
will comply with the provisions against the use of Government 
funds for inherently religious activities. This certificate, 
which has the purpose of impressing upon both the Government 
grantor and the faith-based organization the importance of both 
voluntariness and the need to separate sectarian instruction, 
worship, and proselytization, must be filed with the Government 
agency disbursing the funds.
    Subsection (g) of the Charitable Choice Act of 2001 also 
protects beneficiaries of charitable choice programs by 
requiring the presence of an alternative that is 
unobjectionable to beneficiaries on religious grounds when a 
religious organization is providing social services.\14\ Such 
an alternative need not be secular.\15\ If, of course, a 
beneficiary objects to being served by any faith-based 
organization, such a beneficiary would be guaranteed a secular 
alternative. The alternative need not be a completely separate 
program. It also may be purchased on the open social services 
market. Subsection (g) also requires the appropriate Federal, 
State, or local governmental agency to give notice to 
beneficiaries receiving services under the covered programs of 
their right to an alternative that is unobjectionable to them 
on religious grounds.
---------------------------------------------------------------------------
    \14\ Subsection (g)(1) provides that, ``If an individual . . . has 
an objection to the religious character of the organization from which 
the individual receives, or would receive, assistance funded under any 
program described in subsection (c)(4), the appropriate Federal, State, 
or local governmental entity shall provide to such individual (if 
otherwise eligible for such assistance) within a reasonable period of 
time after the date of such objection, assistance that--(A) is an 
alternative that is accessible to the individual and unobjectionable to 
the individual on religious grounds; and (B) has a value that is not 
less than the value of the assistance that the individual would have 
received from such organization.'' Subsection (g)(2) also provides 
that, ``The appropriate Federal, State, or local governmental entity 
shall guarantee that notice is provided to the individuals [taking part 
in charitable choice programs] of the rights of such individuals under 
this section.''
    \15\ 42 U.S.C. Sec. 604a(e), part of the 1996 Welfare Reform Act, 
also does not require a secular alternative unless a secular 
alternative is the only alternative acceptable to the beneficiary: ``If 
an individual . . . has an objection to the religious character of the 
organization or institution from which the individual receives, or 
would receive, assistance funded under any program described in 
subsection (a)(2) of this section, the State in which the individual 
resides shall provide such individual (if otherwise eligible for such 
assistance) within a reasonable period of time after the date of such 
objection with assistance from an alternative provider that is 
accessible to the individual and the value of which is not less than 
the value of the assistance which the individual would have received 
from such organization.''
---------------------------------------------------------------------------
    Further, charitable choice principles prohibit faith-based 
organizations taking part in programs covered by title II of 
H.R. 7 from discriminating on the basis of religion against 
those who seek to be beneficiaries of such programs.\16\ 
Subsection (m) of the Charitable Choice Act of 2001 also 
provides that intermediaries authorized to act under a grant or 
other agreement to select nongovernmental organizations to 
provide assistance under any program covered by title II of 
H.R. 7 have the same duties under title II as the Government 
when selecting or otherwise dealing with subgrantors, but the 
intermediary grantor, if it is a religious organization, shall 
retain all other rights of a religious organization under title 
II.
---------------------------------------------------------------------------
    \16\ Subsection (h) of the Charitable Choice Act of 2001, for 
example, prohibits discrimination against beneficiaries of charitable 
choice programs by providing that a religious organization providing 
assistance through a grant or cooperative agreement, ``shall not 
discriminate, in carrying out the program, against an individual . . . 
on the basis of religion, a religious belief, or a refusal to hold a 
religious belief.'' Beneficiaries of charitable choice programs funded 
through indirect forms of assistance ``shall not deny an individual . . 
. admission into [a covered] program on the basis of religion, a 
religious belief, or a refusal to hold a religious belief.'' H.R. 7 
does not preempt any Federal, State, or local nondiscrimination laws 
pertaining to the serving of beneficiaries.
---------------------------------------------------------------------------
    Misguided understandings of the Constitution have for too 
long deterred Federal, State, and local governments from even 
inviting religious organizations to participate in 
informational meetings designed for those willing to compete 
for social service funds. H.R. 7 simply makes clear to the 
Federal Government, states, and localities, that if they 
provide a grant, to or enter into a cooperative agreement with, 
religious organizations under charitable choice principles, 
they need not fear that their actions are unconstitutional.\17\
---------------------------------------------------------------------------
    \17\ H.R. 7, by prohibiting discrimination against organizations 
based on religion, is Congress' attempt to make clear to grant and 
program distributors what the rules are for allowing faith-based 
organizations to compete on an equal basis with nonreligious 
organizations for Federal social service funds. What a religious 
organization believes should have no bearing on its eligibility to 
receive a grant. Insofar as there are statutory rights in H.R. 7 that 
inure to the benefit of religious social service providers, and also 
statutory duties on the part of such religious organizations, in the 
rare case a definition of ``religious organization'' may be required. 
Such a definition should be articulated by the courts on a case-by-case 
basis, just as the courts have done under title VII and the 
applicability of its Sec. 702 exempting religious organizations. See 
Hall v. Baptist Memorial Health Care Corporation, 215 F.3d 618, 624-25 
(6th Cir. 2000) (hospital was religious organization); Killinger v. 
Samford University, 113 F.3d 196, 199 (11th Cir. 1997) (university was 
religious organization); EEOC v. Presbyterian Ministries, Inc. 788 F. 
Supp. 1154, 1156 (W.D. Wash. 1992) (retirement home was religious 
organization); Fike v. United Methodist Children's Home, 547 F. Supp. 
286, 290 (E.D. Va. 1982) (residential care home for youth was no longer 
a religious organization).
---------------------------------------------------------------------------

                Background and Need for the Legislation

    The pervasive role of Government in providing social 
services, necessitating higher and higher taxes on its 
citizens, requires a fresh evaluation of the ways in which 
religious and other community organizations can best be made 
part of social welfare programs.
    Today, because Government controls most of the resources 
available for the provision of social services, private funding 
for private sector welfare services is increasingly not a 
practical alternative. In 2000, for example, approximately 45 
percent of the average American's income will go to pay 
federal, state, and local taxes, and the average American will 
have worked a full 167 days in order to pay those taxes (until 
June 16).\18\ The current situation leaves little left for 
citizens to contribute to non-governmental social service 
providers, as a family with two earners today pays more to the 
Government in taxes than the average family spends on their own 
food, clothing, and housing combined.\19\ In contrast, in 1957, 
a family with two earners only paid approximately a quarter of 
their budget in taxes.\20\
---------------------------------------------------------------------------
    \18\ See Americans for Tax Reform Foundation, ``Cost of Government 
Day Report: 2000'' (8th ed. 2000) at 10.
    \19\ See Amity Shlaes, The Greedy Hand: How Taxes Drive Americans 
Crazy and What To Do About It (Random House, 1999) at 14.
    \20\ Id.
---------------------------------------------------------------------------
    Despite an increase in the total amount citizens give to 
charity, there has been a substantial decline in the percentage 
of both the citizenry and the portion of their income devoted 
to philanthropy and charity since the rise of dramatically 
expanded Government welfare programs in the 1960's and the 
Government's taking a greater share of the average American's 
income. This phenomenon is startling. As Robert D. Putnam 
reveals in his book, Bowling Alone: The Collapse and Revival of 
American Community:

        Beginning in 1961, however, philanthropy's share of 
        Americans' income has fallen steadily for nearly four 
        decades . . . This array of evidence on declining 
        generosity is reinforced by what Americans from all 
        walks of life have told Roper and Yankelovich pollsters 
        in the two longest-running surveys on philanthropy. As 
        recently as the first half of the 1980's [,] nearly 
        half of all American adults reported that they had made 
        a contribution to charity in the previous month, and 
        more than half said that they contributed to religious 
        groups at least ``occasionally.'' However, both these 
        barometers of self-reported generosity fell steadily 
        over the next two decades. By the prosperous mid-1990's 
        barely one American in three reported any charitable 
        contribution in the previous month, and fewer than two 
        in five claimed even occasional religious giving . . . 
        If we were giving, at century's end, the same fraction 
        of our income as our parents gave in 1960 [,] U.S. 
        religious congregations would have $20 billion more 
        annually [to invest in good works].\21\
---------------------------------------------------------------------------
    \21\ Robert D. Putnam, Bowling Alone: The Collapse and Revival of 
American Community (Simon & Schuster 2000) at 123, 126 (emphasis 
added).

    The following chart compares total Federal outlays as a 
percentage of national income with total charitable giving by 
individuals as a percentage of national income between the 
years 1940 and 2000. The chart shows that, since the expansion 
of Federal welfare programs in the 1960's, total Federal 
outlays have increased approximately 20 percent as a percentage 
of national income, while charitable giving by individuals has 
decreased approximately 25 percent as a percentage of national 
income.

    Starting around 1960, an ever-widening ``charity gap'' has 
developed as Federal outlays have increased and charitable 
giving by individuals has decreased. As reported in a recent 
article in the American Sociological Review, ``In a society . . 
. in which the median congregation has only 75 regular 
participants and an annual budget of only $55,000, the 
substantially increased delivery of social services by 
congregations can occur only via increases in Government 
funding to congregations.'' \22\ While the Federal Government 
leaves, after taxes, so little for most average citizens to 
contribute to charity, it too often excludes faith-based 
organizations from the receipt of Government funds even when 
such organizations can meet basic human needs most effectively 
and when faith-based organizations can carry on their programs 
in accordance with both the free exercise of religion and the 
Establishment Clause.
---------------------------------------------------------------------------
    \22\ Mark Chaves, ``Religious Congregations and Welfare Reform: Who 
Will Take Advantage of `Charitable Choice'?'' 64 American Sociological 
Review 836, 844 (1999).
---------------------------------------------------------------------------
    The lack of neutral Government funding of both nonreligious 
and religious social service providers hurts the needy by 
denying them the ability to choose the provider that will best 
meet their needs.

  THE FIRST AMENDMENT'S RELIGION CLAUSES PROTECT INDIVIDUALS FROM AN 
   ESTABLISHMENT OF RELIGION WHILE ALSO PROTECTING THEIR FREEDOM TO 
                           EXERCISE RELIGION

    Commentators have described the First Amendment as erecting 
a ``wall of separation between church and state.'' However, the 
phrase ``wall of separation'' is taken from a reply Thomas 
Jefferson wrote a letter by a committee of the Danbury Baptist 
Association dated January 1, 1802, and the Supreme Court has 
made clear that the phrase ``wall of separation between church 
and state'' is only a metaphor and that ``[t]he metaphor itself 
is not a wholly accurate description of the practical aspects 
of the relationship that in fact exists between church and 
state.'' \23\ It was James Madison, not Thomas Jefferson, who 
was the principal drafter of the First Amendment, and in the 
debates concerning the wording of the First Amendment, Madison 
stated that he ``apprehended the meaning of the words to be, 
that Congress should not establish a religion, and enforce the 
legal observation of it by law, nor compel men to worship God 
in any manner contrary to their conscience.'' \24\ Madison 
further stated that he ``believed that the people feared one 
sect might obtain a preeminence, or two combine together, and 
establish a religion to which they would compel others to 
conform.'' \25\ Charitable choice principles are in accordance 
with Madison's understanding of the First Amendment: charitable 
choice principles do not prefer religion over non-religion, or 
any particular religion over any other particular religion, 
they protect beneficiaries' rights of conscience by allowing 
them non-religious alternatives, and they prevent 
discrimination against beneficiaries on the basis of religion.
---------------------------------------------------------------------------
    \23\ Lynch v. Donnelly, 465 U.S. 668, 673 (1984).
    \24\ 1 Annals of Congress 730 (1984) (August 15, 1789).
    \25\ Id. at 731.
---------------------------------------------------------------------------
    Unfortunately, too often faith-based organizations have 
been subject to blanket exclusionary rules applied by 
Government grant distributors. As described by the 
Congressional Research Service, ``interpretations and 
applications of the establishment of religion clause of the 
First Amendment as well as of the sometimes more strict 
provisions of state constitutions have in the past generally 
required programs operated by religious organizations that 
receive public funding in the form of grants or contracts to be 
essentially secular in nature. Religious symbols and art have 
had to be removed from the premises . . . Charitable choice 
attempts to move beyond these restrictions and allow faith-
based organizations to participate in publicly funded social 
services programs while retaining their religious character.'' 
CRS Report to Congress, RS20809: Public Aid and Faith-Based 
Organizations (Charitable Choice): An Overview (updated April 
18, 2001) at 2.\26\ The exclusion of certain faith-based social 
service providers from program eligibility simply because of 
what they believe, or because of how they practice and express 
what they believe, is discriminatory on the bases of religious 
speech and religious exercise. The charitable choice principles 
embodied in H.R. 7 eliminates restrictions on religious 
organizations that the Supreme Court no longer requires or 
considers constitutionally legitimate. Dr. Amy Sherman has 
written, ``Charitable Choice's most important effect thus far 
is that it has made collaboration plausible for those within 
Government and the faith community who had previously assumed 
such partnering was somehow outside the bounds of 
constitutionality under their (misguided) interpretation of the 
First Amendment.'' \27\
---------------------------------------------------------------------------
    \26\ See, e.g., 24 C.F.R. Sec. 570.200 (``Constitutional 
prohibition. In accordance with First Amendment Church/State 
Principles, as a general rule, CDBG [Community Development Block Grant] 
assistance may not be used for religious activities or provided to 
primarily religious entities for any activities, including secular 
activities.''); 24 C.F.R. Sec. 92.257 (``HOME funds [Home Investment 
Partnership Funds] may not be provided to primarily religious 
organizations, such as churches, for any activity including secular 
activities.''). See also Carl H. Esbeck, The Regulation of Religious 
Organizations as Recipients of Governmental Assistance (Center for 
Public Justice 1996), at 12-19.
    \27\ Dr. Amy S. Sherman, ``The Growing Impact of Charitable Choice: 
A Catalogue of New Collaborations Between Government and Faith-Based 
Organizations in Nine States'' (``Growing Impact''), The Center for 
Public Justice Charitable Choice Tracking Project (March 2000) at 9 
(emphasis in original).
---------------------------------------------------------------------------

EMPIRICAL AND ATTITUDINAL SURVEYS SHOW THAT EXISTING CHARITABLE CHOICE 
               PROGRAMS HAVE BEEN SUCCESSFUL AND POPULAR

    Support for increased Government aid for faith-based 
organizations that can best meet social service needs is 
strong, and particularly strong among African-Americans. 
Perhaps the most comprehensive survey of public attitudes 
toward charitable choice programs was conducted by researcher 
Mark Chaves and reported in the American Sociological Review. 
The study used a nationally representative sample of 1,456 
religious congregations and gathered data via a 60-minute 
interview with one key informant--a minister, priest, rabbi, or 
other leader--from 1,236 congregations.\28\ According to 
Chaves' survey, 30 percent of congregation attendees were aware 
of ``charitable choice'' legislation, and 45 percent would 
apply for Government funds to support social service 
projects.\29\ Chaves concluded that
---------------------------------------------------------------------------
    \28\ Mark Chaves, ``Religious Congregations and Welfare Reform: Who 
Will Take Advantage of `Charitable Choice'?'' 64 American Sociological 
Review 836, 838 (1999).
    \29\ Id. at 838.

        Apparently there is room for more public education 
        about charitable-choice opportunities, [and there is 
        only] a small subset of congregations that will not be 
        interested in these opportunities . . . 36 percent of 
        congregations, representing 45 percent of religious-
        service attenders, would be interested in applying for 
        Government money to support human services programs. 
        Thus, the ``market'' for charitable-choice 
        implementation in American religion apparently is 
        fairly sizable.\30\
---------------------------------------------------------------------------
    \30\ Id. at 839 (emphasis added).

    Chaves also reported that ``Informants from 64 percent of 
predominantly African American congregations expressed a 
willingness to apply for Government funds . . . Controlling for 
other congregational features, predominantly black 
congregations are five times more likely than other 
congregations to seek public support for social service 
activities.'' Id. at 841 (emphasis in original).
    Anticipating increased involvement of faith-based 
organizations in Federal social service programs, and in order 
to facilitate small nongovernmental organizations' 
participation in the programs covered by title II of H.R. 7 
generally, subsection (o) of the bill authorizes, from amounts 
made available to carry out the purposes of the Office of 
Justice Programs, funds to provide training and technical 
assistance, in procedures relating to potential application and 
participation in programs covered by title II of H.R. 7 to 
small nongovernmental organizations, as including religious 
organizations, in an amount not to exceed $50 million. 
Subsection (o) states that such aid may include assistance in 
creating a 501(c)(3) organization, grant writing workshops, and 
informational assistance regarding accounting, legal, and tax 
issues, informational assistance regarding how to comply with 
Federal nondiscrimination provisions. Subsection (o) also 
provides that, in providing such assistance, priority shall be 
given to small nongovernmental organizations serving rural and 
urban communities.

EXISTING CHARITABLE CHOICE PROGRAMS HAVE MET WITH MUCH SUCCESS AND FEW 
                      LAWSUITS AND OTHER PROBLEMS

    Existing charitable choice programs have had a significant 
impact on social welfare delivery. Dr. Amy Sherman of the 
Hudson Institute has conducted the most extensive survey of 
existing charitable choice programs. Dr. Sherman concluded 
that, currently, ``All together, thousands of welfare 
recipients are benefitting from services now offered through 
FBOs [faith-based organizations] and congregations working in 
tandem with local and state welfare agencies.'' \31\
---------------------------------------------------------------------------
    \31\ Sherman, ``Growing Impact,'' at 8.
---------------------------------------------------------------------------
    Dr. Sherman also found that fears of aggressive evangelism 
by publicly funded faith-based organizations have little basis 
in fact. According to Dr. Sherman:

        [O]ut of the thousands of beneficiaries engaged in 
        programs offered by FBOs [faith-based organizations] 
        collaborating with Government, interviewees reported 
        only two complaints by clients who felt uncomfortable 
        with the religious organization from which they 
        received help. In both cases--in accordance with 
        Charitable Choice guidelines--the client simply opted 
        out of the faith-based program and enrolled in a 
        similar program operated by a secular provider. In 
        summary, in nearly all the examples of collaboration 
        studied, what Charitable Choice seeks to accomplish is 
        in fact being accomplished: the religious integrity of 
        the FBOs working with Government is being protected and 
        the civil liberties of program beneficiaries enrolled 
        in faith-based programs are being respected.\32\
---------------------------------------------------------------------------
    \32\ Id. at 11 (emphasis added).

    Religious groups in the nine states Dr. Sherman surveyed 
also registered few complaints about their Government partners. 
According to Dr. Sherman, ``The vast majority reported that the 
church-state question was a `non-issue,' and that they enjoyed 
the trust of their Government partners and that they had been 
straightforward about their religious identity.'' \33\
---------------------------------------------------------------------------
    \33\ Id.
---------------------------------------------------------------------------
    The success of existing charitable choice programs has led 
the National Conference of State Legislatures (``NCSL'') to 
support their expansion. According to Sheri Steisel, director 
of NCSL's Human Services Committee, ``In many communities, the 
only institutions that are in a position to provide human 
services are faith-based organizations. Providing grants to or 
entering into cooperative agreements with faith-based and other 
community organizations to provide Government services is 
something that has proven effective in the states over the past 
5 years. As welfare reform continues to evolve, it is important 
that Government at all levels continues to explore innovative 
ways to provide services to its constituents. We are extremely 
pleased that the President is joining the states in exploring 
these new opportunities.'' \34\
---------------------------------------------------------------------------
    \34\ News Release, ``Faith Based Initiatives Nothing New to 
Nation's State Lawmakers'' (January 30, 2001).
---------------------------------------------------------------------------
    Only two challenges to the constitutional application and 
implementation of charitable choice programs have been filed. 
Both suits are ``as applied,'' rather than ``facial'' 
challenges, to 42 U.S.C. Sec. 604a. Each of these lawsuits was 
filed after Presidential candidate George W. Bush officially 
entered the race on June 12, 1999, and after then-Governor Bush 
delivered his first major policy address on faith-based 
organizations in Indianapolis, Indiana, on July 22, 1999.\35\
---------------------------------------------------------------------------
    \35\ While litigation challenging elements of charitable choice 
programs has been minimal, H.R. 7, in subsection (n), contains a 
compliance provision that provides that a party alleging that their 
rights under section 1994A of H.R. 7 have been violated by a State or 
local government may bring a civil action for injunctive relief 
pursuant to 42 U.S.C. Sec. 1983 (section 1979 of the Revised Statutes) 
against the State official or local government agency that has 
allegedly committed such violation. A party alleging that the rights of 
the party under section 1994A have been violated by the Federal 
Government may bring a civil action for injunctive relief in Federal 
district court against the official or Government agency that has 
allegedly committed such violation. This subsection limits parties 
alleging that their rights under section 1994A have been violated to 
injunctive relief, just as the 1996 Welfare Reform Act's charitable 
choice limited liability for violations of its provisions to injunctive 
relief.
---------------------------------------------------------------------------
    Charitable choice provisions provide for a variety of 
safeguards to prevent their unconstitutional application. In 
order to obtain any Government funds, faith-based organizations 
must demonstrate that they can effectively deliver the services 
they are promising, respect clients' civil liberties, and 
account for all public monies spent.
    Subsection (i) of the Charitable Choice Act of 2001 also 
provides that a religious organization providing assistance 
under any covered program shall be subject to the same 
regulations as other nongovernmental organizations to account 
in accord with generally accepted accounting principles for the 
use of such funds and its performance of the programs. Also, 
under subsection (i)(2)(A), religious organizations taking part 
in a covered program through a grant or cooperative agreement 
must segregate Government funds provided under such program 
into a separate account or accounts, and only the Government 
funds in the separate accounts will be subject to audit by the 
Government for purposes of monitoring their use in the covered 
Federal program. This is done, in part, to limit the scope of 
audits to funds from Government sources and thereby shield 
other accounts from Government monitoring.\36\ Under subsection 
(i)(2)(B), religious organizations taking part in a covered 
program through indirect forms of assistance may, at their 
discretion, segregate Government funds provided under such 
program into a separate account or accounts. If they do so, 
only the Government funds in the separate accounts will be 
subject to audit by the Government.\37\
---------------------------------------------------------------------------
    \36\ The separate accounts are for purposes of segregating the 
funds used during the course of a Federal program described in 
subsection (c)(4), and isolating them in the event of a Government 
audit of their use in a covered program, and for no other purpose.
    \37\ Because indirect aid to a faith-based organization is ``akin 
to the Government issuing a paycheck to an employee who, in turn, 
donates a portion of that check to a religious institution,'' Mitchell 
v. Helms, 530 U.S. 793, 841 (O'Connor, J., concurring in the judgment) 
(2000), such aid is permissible under the Establishment Clause and need 
not be segregated into a separate account for monitoring purposes.
---------------------------------------------------------------------------
    Further, it is not uncommon for program policies to require 
of providers periodic compliance self-audits in which any 
discrepancies uncovered in such a self-audit must be promptly 
reported to the Government along with a plan to timely correct 
any deficiencies. H.R. 7, in subsection (i)(3), requires such a 
self-audit for faith-based organizations receiving Federal 
funds. This is done to further meet the monitoring requirements 
required by Mitchell v. Helms to prevent diversion of funds to 
religious indoctrination.\38\
---------------------------------------------------------------------------
    \38\ 120 S.Ct. 2530, 2541 (2000) (upholding constitutionality of 
school aid program known as chapter 2, in which the Federal Government 
distributes funds to State and local governmental agencies, which in 
turn lend educational materials and equipment to public and private 
schools, including religious schools, with the enrollment of each 
participating school determining the amount of aid that it receives).
---------------------------------------------------------------------------

 A CONSTITUTIONAL ANALYSIS OF CHARITABLE CHOICE PRINCIPLES BEGINS WITH 
           AN ASSESSMENT OF THEIR NEUTRALITY TOWARD RELIGION

    In order to minimize governmental influence over individual 
religious choices, governmental programs should be neutral 
regarding the individual choices, whether religious or 
nonreligious, of the needy who are served by these programs. 
Recently, a majority of the Justices of the Supreme Court 
emphasized the importance of this neutrality principle in 
deciding cases under the Establishment Clause in Mitchell v. 
Helms.\39\ The plurality opinion stated that, ``In 
distinguishing between indoctrination that is attributable to 
the State and indoctrination that is not, we have consistently 
turned to the principle of neutrality, upholding aid that is 
offered to a broad range of groups or persons without regard to 
their religion . . . [I]f the Government, seeking to further 
some legitimate secular purpose, offers aid on the same terms, 
without regard to religion, to all who adequately further that 
purpose [,] then it is fair to say that any aid going to a 
religious recipient only has the effect of furthering that 
secular purpose.'' \40\ Justice O'Connor, in her concurring 
opinion in Helms, in which she was joined by Justice Breyer, 
also acknowledged that ``neutrality is an important reason for 
upholding Government-aid programs,'' a reason which the Supreme 
Court's recent cases have ``emphasized . . . repeatedly.'' \41\
---------------------------------------------------------------------------
    \39\ Id. at 2541 (2000).
    \40\ Mitchell v. Helms, 120 S.Ct. 2530, 2541 (2000) (plurality 
opinion).
    \41\ Mitchell v. Helms, 120 S.Ct. 2530, 2557 (2000) (O'Connor, J., 
concurring in the judgment).
---------------------------------------------------------------------------
    From Justice O'Connor's opinion, when combined with the 
numbers comprising the plurality, it can be said that: neutral, 
indirect aid to a religious organization does not violate the 
Establishment Clause,\42\ and neutral, direct aid to a 
religious organization does not, without more, violate the 
Establishment Clause.\43\
---------------------------------------------------------------------------
    \42\ Id. at 2558-59 (concurring opinion).
    \43\ Id. at 2557 (concurring opinion).
---------------------------------------------------------------------------
    Other cases decided by the Supreme Court also make clear 
that neutrally administered Government programs, open to all, 
are constitutional.\44\ The Committee also notes that the 
Supreme Court has never struck down a governmental funding 
program--state or Federal--as violative of the Establishment 
Clause where the program was directed to the needs of social 
services or health care.\45\
---------------------------------------------------------------------------
    \44\ See Agostini v. Felton, 521 U.S. 203, 231-32 (1997) (``[I]t is 
clear that title I [educational] services are allocated on the basis of 
criteria that neither favor nor disfavor religion . . . The services 
are available to all children who meet the act's eligibility 
requirements, no matter what their religious beliefs or where they go 
to school . . . The Board's program does not, therefore, give aid 
recipients any incentive to modify their religious beliefs or practices 
in order to obtain those services.''); Zobrest v. Catalina Foothills 
School District, 509 U.S. 1, 8 (1993) (sustaining section of Federal 
statute providing all ``disabled'' children with necessary aid, stating 
``We have never said that religious institutions are disabled by the 
First Amendment from participating in publicly sponsored social welfare 
programs [f]or if the Establishment Clause did bar religious groups 
from receiving general Government benefits, then a church could not be 
protected by the police and fire departments, or have its public 
sidewalk kept in repair.''); Witters v. Washington Department of 
Services for the Blind, 474 U.S. 481, 487-88 (1986) (sustaining 
Washington law granting all eligible blind persons vocational 
assistance, including assistance at religious institutions); Mueller v. 
Allen, 463 U.S. 388, 398-99 (1983) (sustaining Minnesota statute 
allowing all parents to deduct actual costs of school, including 
religious school, tuition, textbooks, and transportation, from State 
tax returns); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 
U.S. 236, 243-244 (1968) (sustaining New York law loaning secular 
textbooks to all children, including those at religious schools); 
Everson v. Board of Ed. of Ewing, 330 U.S. 1, 16-18 (1947) (sustaining 
local ordinance authorizing all parents to deduct from their State tax 
returns the costs of transporting their children to schools, including 
religious schools, on public buses).
    \45\ See Bowen v. Kendrick, 487 U.S. 589 (1988) (upholding the 
direct Federal funding of faith-based counseling centers addressing 
teenage sexuality under the Adolescent Family Life Act); Bradfield v. 
Roberts, 175 U.S. 291 (1899) (upholding an agreement between the 
Commissioners of the District of Columbia and a religiously affiliated 
hospital whereby the Federal Government would pay for the construction 
of a new building on the grounds of the hospital). Bradfield v. Roberts 
was cited by the Supreme Court in Bowen, 487 U.S. at 609 (``We note in 
addition that this Court has never held that religious institutions are 
disabled by the First Amendment from participating in publicly 
sponsored social welfare programs. To the contrary, in Bradfield v. 
Roberts, the Court upheld an agreement between the Commissioners of the 
District of Columbia and a religiously affiliated hospital whereby the 
Federal Government would pay for the construction of a new building on 
the grounds of the hospital. In effect, the Court refused to hold that 
the mere fact that the hospital was `conducted under the auspices of 
the Roman Catholic Church' was sufficient to alter the purely secular 
legal character of the corporation, particularly in the absence of any 
allegation that the hospital discriminated on the basis of religion or 
operated in any way inconsistent with its secular charter. In the 
Court's view, the giving of Federal aid to the hospital was entirely 
consistent with the Establishment Clause, and the fact that the 
hospital was religiously affiliated was `wholly immaterial.' '') 
(citations omitted).
---------------------------------------------------------------------------

 DIRECT FUNDING OF FAITH-BASED ORGANIZATIONS TO HELP MEET BASIC HUMAN 
  NEEDS, THROUGH GRANTS AND COOPERATIVE AGREEMENTS, IS CONSTITUTIONAL

    Direct payments may be made to faith-based organizations 
for public purposes without violating the establishment clause. 
The Supreme Court has held that faith-based organizations 
providing services that meet social service needs may be 
federally funded. In Bowen v. Kendrick,\46\ the Supreme Court 
upheld the direct Federal funding of faith-based counseling 
centers addressing teenage sexuality under the Adolescent 
Family Life Act (``AFLA''), which was passed by Congress in 
1981 in response to the ``severe adverse health, social, and 
economic consequences'' that often follow pregnancy and 
childbirth among unmarried adolescents. The AFLA established a 
program for providing direct monetary grants to public or 
nonprofit private organizations or agencies ``for services and 
research in the area of premarital adolescent sexual relations 
and pregnancy.'' \47\
---------------------------------------------------------------------------
    \46\ 487 U.S. 589 (1988).
    \47\ S.Rep. No. 97-161, at 1 (1981).
---------------------------------------------------------------------------
    In Bowen, the Court found that Congress had expressly 
recognized that Government alone could not solve the problems 
of adolescent premarital sexual relations, and that it intended 
through its legislation to encourage greater involvement from 
faith-based organizations in addressing these issues.\48\ The 
Court was satisfied that encouraging such involvement by faith-
based organizations served a clear secular purpose.\49\ The 
Court also found that there was nothing inherently religious 
about services funded under the AFLA.\50\ The Court saw nothing 
troubling in the congressional recognition that religion and 
religious organizations play an important part in solving 
social ills.\51\ Finally, the Court refused to countenance the 
notion that a faith-based organization could not receive direct 
Federal funds for the provision of public welfare services 
without impermissibly lending the imprimatur of Government on 
religious activity.\52\
---------------------------------------------------------------------------
    \48\ See Bowen v. Kendrick, 487 U.S. 589, 595-96 (1988) (``Indeed, 
Congress expressly recognized that legislative or governmental action 
alone would be insufficient . . . Accordingly, the AFLA expressly 
states that federally provided services in this area should promote the 
involvement of parents, and should ``emphasize the provision of support 
by other family members, religious and charitable organizations, 
voluntary associations, and other groups.'' [42 U.S.C. 
Sec. 300z(a)(10)(C)].'') (emphasis added).
    \49\ See id., at 602 (``As we see it, it is clear from the face of 
the statute that the AFLA was motivated primarily, if not entirely, by 
a legitimate secular purpose--the elimination or reduction of social 
and economic problems caused by teenage sexuality, pregnancy, and 
parenthood. [42 U.S.C. Sec. Sec. 300z(a), (b)].'').
    \50\ See id., at 594, 605 (1988) (``[T]he statute contains a 
listing of `necessary services' that may be funded. These services 
include pregnancy testing and maternity counseling, adoption counseling 
and referral services, prenatal and postnatal health care, nutritional 
information, counseling, child care, mental health services, and 
perhaps most importantly for present purposes, `educational services 
relating to family life and problems associated with adolescent 
premarital sexual relations' . . . Certainly it is true that a 
substantial part of the services listed as ``necessary services'' under 
the act involve some sort of education or counseling, but there is 
nothing inherently religious about these activities and appellees do 
not contend that, by themselves, the AFLA's `necessary services' 
somehow have the primary effect of advancing religion.'').
    \51\ See id., at 606-07 (1988) (``Putting aside for the moment the 
possible role of religious organizations as grantees, these provisions 
of the statute reflect at most Congress' considered judgment that 
religious organizations can help solve the problems to which the AFLA 
is addressed . . . Nothing in our previous cases prevents Congress from 
making such a judgment or from recognizing the important part that 
religion or religious organizations may play in resolving certain 
secular problems.'').
    \52\ See id., at 613-14 (1988) (``The facially neutral projects 
authorized by the AFLA--including pregnancy testing, adoption 
counseling and referral services, prenatal and postnatal care, 
educational services, residential care, child care, consumer education, 
etc.--are not themselves `specifically religious activities,' and they 
are not converted into such activities by the fact that they are 
carried out by organizations with religious affiliations.'').
---------------------------------------------------------------------------
    Further, in Committee for Public Education and Religious 
Liberty v. Regan,\53\ the Supreme Court explained that, ``We 
decline to embrace a formalistic dichotomy that bears so little 
relationship either to common sense or the realities of school 
finance. None of our cases requires us to invalidate these 
reimbursements simply because they involve payments in cash. 
The Court `has not accepted the recurrent argument that all aid 
is forbidden because aid to one aspect of an institution frees 
it to spend its other resources on religious ends.' '').
---------------------------------------------------------------------------
    \53\ 444 U.S. 646, 658 (1980) (upholding reimbursements to 
religious K-12 schools for State-required testing and rejecting a rule 
that direct cash payment was never permitted). The Supreme Court has 
been especially sensitive to Establishment Clause issues in the context 
of K-12 schools.
---------------------------------------------------------------------------

   THE SUPREME COURT HAS REJECTED OBJECTIONS TO FUNDING FAITH-BASED 
ORGANIZATIONS THAT ARE PREMISED ON THE DISCRIMINATORY NOTION THAT THEIR 
            EMPLOYEES CANNOT BE TRUSTED TO FOLLOW GUIDELINES

    Arguments that employees of faith-based organizations 
simply cannot be trusted to follow guidelines preventing the 
use of Government funds for proselytizing activities have been 
decisively rejected by the Supreme Court. Both the plurality 
opinion and the opinion of Justice O'Connor in Mitchell v. 
Helms stand for the proposition that members of religious 
organizations should be presumed to be acting in good 
faith.\54\
---------------------------------------------------------------------------
    \54\ See Mitchell v. Helms, 120 S.Ct. 2530, 2547 (2000) (plurality 
opinion) (``So long as the governmental aid is not itself unsuitable 
for use in the public schools because of religious content, . . . and 
eligibility for aid is determined in a constitutionally permissible 
manner, any use of that aid to indoctrinate cannot be attributed to the 
Government and is thus not of constitutional concern.'') (quotations 
omitted); id., at 2570 (O'Connor, J., concurring in the judgment) 
(``[T]he Court's willingness to assume that religious school 
instructors will inculcate religion has not caused us to presume also 
that such instructors will be unable to follow secular restrictions on 
the use of textbooks . . . [I]t is entirely proper to presume that 
these school officials will act in good faith.'').
---------------------------------------------------------------------------
    Some critics claim that it is unconstitutional for direct 
grants to be awarded to ``pervasively sectarian'' organizations 
which would risk ``an excessive entanglement [of Government] 
with religion.'' The so-called ``pervasively sectarian'' test 
was first articulated in Lemon v. Kurtzman.\55\ The last case 
in which the Court struck down governmental aid using the 
``pervasively sectarian'' test was Grand Rapids School District 
v. Ball,\56\ but Ball was recently discredited and partly 
overruled in Agostini v. Felton.\57\ Even Justice Blackmun, in 
a dissenting opinion joined by Justices Brennan, Marshall, and 
Stevens, described the phrase ``pervasively sectarian'' as ``a 
vaguely defined term of art.'' Bowen v. Kendrick, 487 U.S. 589, 
631 (1988) (Blackmun, J., dissenting). In Mitchell v. 
Helms,\58\ the majority of Justices reversed an appeals court 
holding that providing educational materials and equipment to 
pervasively sectarian schools was unconstitutional. As the 
Congressional Research Service concluded in its December 27, 
2000, Report to Congress on Charitable Choice, ``In its most 
recent decisions [,] the Court appears to have abandoned the 
presumption that some religious institutions, such as sectarian 
elementary and secondary schools, are so pervasively sectarian 
that they are constitutionally ineligible to participate in 
direct public aid programs . . . It also seems clear that for a 
different majority [of six] Justices (those joining in the 
Thomas and O'Connor opinions), the question of whether a 
recipient institution is pervasively sectarian is no longer a 
constitutionally determinative factor.'' CRS Report, Charitable 
Choice: Constitutional Issues and Developments Through the 
106th Congress (December 27, 2000) at 29, 32. Recently, the 
Fourth Circuit Court of Appeals in Columbia Union College v. 
Oliver, 2001 WL 716726 (4th Cir.) (June 26, 2001), held that 
the Constitution allows the Government to provide direct aid to 
a religious organization ``without resort to [a court's] 
examining'' its ``pervasively sectarian status,'' as long as 
there are protections in place prohibiting Federal funds from 
being used for proselytizing activities. Id. at * 7.\59\
---------------------------------------------------------------------------
    \55\ 403 U.S. 602, 613 (1971). See also Hunt v. McNair, 413 U.S. 
734, 743 (1973) (``Aid normally may be thought to have a primary effect 
of advancing religion when it flows to an institution in which religion 
is so pervasive that a substantial portion of its functions are 
subsumed in the religious mission or when it funds a specifically 
religious activity in an otherwise substantially secular setting.'').
    \56\ 473 U.S. 373 (1985).
    \57\ 521 U.S. 203, 219-23 (1997) (``Our more recent cases have 
undermined the assumptions upon which Ball [] relied . . . What has 
changed since we decided Ball . . . is our understanding of the 
criteria used to assess whether aid to religion has an impermissible 
effect.''). That understanding today rejects the notion that members of 
faith-based organizations simply cannot be trusted to follow guidelines 
preventing the use of Government funds for proselytizing. Both the 
plurality opinion and the opinion of Justice O'Connor in Mitchell v. 
Helms stand for the proposition that members of religious organizations 
should always be presumed to be acting in good faith. See Mitchell v. 
Helms, 120 S.Ct. 2530, 2547 (2000) (plurality opinion) (``So long as 
the governmental aid is not itself unsuitable for use in the public 
schools because of religious content, . . . and eligibility for aid is 
determined in a constitutionally permissible manner, any use of that 
aid to indoctrinate cannot be attributed to the Government and is thus 
not of constitutional concern.'') (quotations omitted); id., at 2570 
(O'Connor, J., concurring) (``[T]he Court's willingness to assume that 
religious school instructors will inculcate religion has not caused us 
to presume also that such instructors will be unable to follow secular 
restrictions on the use of textbooks . . . [I]t is entirely proper to 
presume that these school officials will act in good faith.'').
    \58\ 120 S.Ct. 2530 (2000).
    \59\ When President Clinton signed the re-authorization measure for 
the Community Services Block Grants Program (``CSBG'') into law on 
October 27, 1998, his accompanying statement regarding its charitable 
choice provisions relied on the ``pervasively sectarian'' standard that 
the courts have since abandoned. That statement stated that ``The 
Department of Justice advises, however, that the provision that allows 
religiously affiliated organizations to be providers under CSBG would 
be unconstitutional if and to the extent it were construed to permit 
governmental funding of `pervasively sectarian' organizations, as that 
term has been defined by the courts. Accordingly, I construe the act as 
forbidding the funding of pervasively sectarian organizations and as 
permitting Federal, State, and local governments involved in disbursing 
CSBG funds to take into account the structure and operations of a 
religious organization in determining whether such an organization is 
pervasively sectarian.'' 134 Weekly Compilation of Presidential 
Documents 2148 (Nov. 2, 1998) (Statement on Signing the Community 
Opportunities, Accountability, and Training and Educational Services 
Act of 1998). President Clinton's later statements on charitable choice 
provisions in October and December 2000, do not rely on the pervasively 
sectarian test. See supra, note 13.
---------------------------------------------------------------------------
    Despite the abandonment of the ``pervasively sectarian'' 
test by the courts, it continues to lead to the exclusion of 
faith-based organizations from equal participation in 
application processes for Federal social service funds.\60\
---------------------------------------------------------------------------
    \60\ See CRS Report to Congress, RL30388, Charitable Choice: 
Constitutional Issues and Developments Through the 106th Congress 
(updated December 27, 2000) at 1 (``[T]he establishment clause has in 
the past generally been interpreted to bar Government from providing 
direct assistance to organizations that are `pervasively sectarian.' As 
a consequence, Government funding agencies have often required 
religious social services providers, as conditions of receiving public 
funds, to be incorporated separately from their sponsoring religious 
institutions . . . and to remove religious symbols from the premises in 
which the services are provided.''); see also Congressional Research 
Service, RS20809: Public Aid and Faith-Based Organizations (Charitable 
Choice): An Overview (updated April 18, 2001) at 2-3 
(``[I]nterpretations and applications of the establishment of religion 
clause of the First Amendment as well as of the sometimes more strict 
provisions of State constitutions have in the past generally required 
programs operated by religious organizations that receive public 
funding in the form of grants or contracts to be essentially secular in 
nature . . . Moreover, religious entities that have been found to be 
`pervasively sectarian,' i.e., entities in which religion is a 
pervasive element of all that they do, have generally been 
constitutionally ineligible to participate in direct funding programs, 
because they have been deemed unable to separate their secular 
functions from their religious functions so that public aid can be 
confined to the former. Charitable choice attempts to move beyond these 
restrictions and allow faith-based organizations to participate in 
publicly funded social services programs while retaining their 
religious character.''). Although the courts have now abandoned the 
``pervasively sectarian'' test, this rule to exclude certain religious 
organizations is still present in Federal statutes and regulations, and 
too often guides decisions by federal, State, and local grant managers.
---------------------------------------------------------------------------

    INDIRECTLY FUNDED CHARITABLE CHOICE PROGRAMS ARE CONSTITUTIONAL

    Subsection (l) of title II of H.R. 7 authorizes the 
Secretary of the department administering a covered program to 
direct the disbursement of some or all of the funds, if 
determined by the Secretary to be feasible and efficient, in 
the form of indirect assistance. H.R. 7 defines ``indirect 
assistance'' as that in which assistance funds find their way 
to an organization ``only as a result of the private choices of 
individual beneficiaries,'' in accordance with Supreme Court 
precedent, drawing on language from Witters v. Washington 
Department of Services for the Blind,\61\ and Mueller v. 
Allen.\62\ ``Indirect'' means of funding are flexible, and 
include more than vouchers and certificates.
---------------------------------------------------------------------------
    \61\ 474 U.S. 481, 488 (1985) (opinion written by Justice Marshall) 
(``Certain aspects of Washington's program are central to our inquiry. 
As far as the record shows, vocational assistance provided under the 
Washington program is paid directly to the student, who transmits it to 
the educational institution of his or her choice. Any aid provided 
under Washington's program that ultimately flows to religious 
institutions does so only as a result of the genuinely independent and 
private choices of aid recipients.'').
    \62\ 463 U.S. 388, 399 (1983) (``Where, as here, aid to parochial 
schools is available only as a result of decisions of individual 
parents no imprimatur of State approval can be deemed to have been 
conferred on any particular religion, or on religion generally.'').
---------------------------------------------------------------------------
    Charitable choice programs administered through the use of 
vouchers or certificates to individuals, who may then choose to 
give them to nonreligious or religious organizations in return 
for social services, enjoy the widest constitutional berth. 
When voucher programs are created, and individuals are allowed 
to redeem their vouchers at approved sites, the latitude for 
religious expression and practice at those sites can be far 
greater. Where the design of the charitable choice program has 
not predetermined where the Government funding should go but 
has given a free choice to the immediate beneficiaries of the 
programs--for example, the voucher recipients--the Supreme 
Court has held such programs constitutional even though 
institutions presumed to be pervasively religious have 
benefitted.\63\ So long as the initial beneficiaries have a 
choice about where to redeem the vouchers or certificates, and 
a range of choices are available including religious and 
nonreligious social service organizations, such programs do not 
violate the First Amendment.
---------------------------------------------------------------------------
    \63\ See Mueller v. Allen, 463 U.S. 388, 399 (1983); Witters v. 
Washington Department of Services for the Blind, 474 U.S. 481, 487 
(1986); Zobrest v. Catalina Foothills School District, 509 U.S. 1, 10 
(1993).
---------------------------------------------------------------------------
    In Mueller v. Allen,\64\ the Supreme Court upheld a 
Minnesota statute allowing state taxpayers, in computing their 
state income tax, to deduct expenses incurred in providing 
``tuition, textbooks and transportation'' for their children 
attending elementary or secondary school, either nonreligious 
or religious. The Court stated that
---------------------------------------------------------------------------
    \64\ 463 U.S. 388 (1983).

        by channeling whatever assistance it may provide to 
        parochial schools through individual parents, Minnesota 
        has reduced the Establishment Clause objections to 
        which its action is subject . . . It is true, of 
        course, that financial assistance provided to parents 
        ultimately has an economic effect comparable to that of 
        aid given directly to the schools attended by their 
        children. It is also true, however, that under 
        Minnesota's arrangement public funds become available 
        only as a result of numerous, private choices of 
        individual parents of school-age children . . . Where, 
        as here, aid to parochial schools is available only as 
        a result of decisions of individual parents no 
        imprimatur of State approval can be deemed to have been 
        conferred on any particular religion, or on religion 
        generally.\65\
---------------------------------------------------------------------------
    \65\ Id. at 399.

    In Witters v. Washington Department of Services for the 
Blind,\66\ the Supreme Court upheld a program allowing a 
student who was pursuing a biblical studies degree at a 
Christian college to receive financial vocational assistance. 
The Court stated
---------------------------------------------------------------------------
    \66\ 474 U.S. 481 (1985).

        Certain aspects of Washington's program are central to 
        our inquiry. As far as the record shows, vocational 
        assistance provided under the Washington program is 
        paid directly to the student, who transmits it to the 
        educational institution of his or her choice. Any aid 
        provided under Washington's program that ultimately 
        flows to religious institutions does so only as a 
        result of the genuinely independent and private choices 
        of aid recipients. Washington's program is made 
        available generally without regard to the sectarian-
        nonsectarian, or public-nonpublic nature of the 
        institution benefitted, and is in no way skewed towards 
        religion . . . It creates no financial incentive for 
        students to undertake sectarian education. It does not 
        tend to provide greater or broader benefits for 
        recipients who apply their aid to religious education, 
        nor are the full benefits of the program limited, in 
        large part or in whole, to students at sectarian 
        institutions. On the contrary, aid recipients have full 
        opportunity to expend vocational rehabilitation aid on 
        wholly secular education, and as a practical matter 
        have rather greater prospects to do so . . . In this 
        case, the fact that aid goes to individuals means that 
        the decision to support religious education is made by 
        the individual, not by the State . . . On the facts we 
        have set out, it does not seem appropriate to view any 
        aid ultimately flowing to the Inland Empire School of 
        the Bible as resulting from a state action sponsoring 
        or subsidizing religion.'' \67\
---------------------------------------------------------------------------
    \67\ Id. at 488 (emphasis added).

    In Zobrest v. Catalina Foothills School District,\68\ the 
Supreme Court upheld a program allowing parents of a deaf 
student attending Catholic high school to require the public 
school district to provide interpreter for the student that 
would interpret classes that included religious instruction. 
The Court upheld the program, citing Mueller, as follows: ``We 
also pointed out that under Minnesota's scheme, public funds 
become available to sectarian schools only as a result of 
numerous private choices of individual parents of school-age 
children, thus distinguishing Mueller from our other cases 
involving the direct transmission of assistance from the State 
to the schools themselves.'' \69\
---------------------------------------------------------------------------
    \68\ 509 U.S. 1 (1993).
    \69\ Id. at 9.
---------------------------------------------------------------------------

          H.R. 7 CONTAINS CONSTITUTIONALLY ADEQUATE SAFEGUARDS

    When Government appropriates tax monies, it has a duty to 
reasonably account for how such funds are utilized. Regulatory 
controls that keep track of funds appropriated under neutral 
social service programs via grants or in-kind services--such as 
those appropriately attaching to organizations receiving 
support under programs following charitable choice principles--
are proper to help ensure that the monies actually benefit the 
poor and the needy as intended.
    Such controls are incorporated in H.R. 7. Subsection (i) of 
the Charitable Choice Act of 2001 provides that, ``a religious 
organization providing assistance under any [specified program] 
shall be subject to the same regulations as other 
nongovernmental organizations to account in accord with 
generally accepted accounting principles for the use of such 
funds and its performance of such program.'' H.R. 7 also makes 
the creation of separate accounts, containing only Federal 
funds received, mandatory for programs covered by title II of 
H.R. 7 that are directly funded.\70\
---------------------------------------------------------------------------
    \70\ Subsection (k) also provides that, ``If a State or local 
government contributes State or local funds to carry out a [specified 
program], the State or local government may segregate the State or 
local funds from the Federal funds provided to carry out the program or 
may commingle the State or local funds with the Federal funds. If the 
State or local government commingles the State or local funds, the 
provisions of this section shall apply to the commingled funds in the 
same manner, and to the same extent, as the provisions apply to the 
Federal funds.''
---------------------------------------------------------------------------
    The required accounting should be evenhanded for all 
providers, whether religious or nonreligious. In her concurring 
opinion in Mitchell v. Helms, Justice O'Connor made clear that 
as long as there are safeguards for preventing and detecting 
diversion of funds, it is not a constitutional problem if 
occasional mistakes are made.\71\
---------------------------------------------------------------------------
    \71\ See Mitchell v. Helms, 120 S.Ct. 2530, 2558 (2000) (O'Connor, 
J., concurring in the judgment). See also Bowen v. Kendrick, 487 U.S. 
589, 615 (1988) (upholding program allowing Federal funds be given to 
faith-based organizations for family counseling) (``We note in addition 
that the [Adolescent Family Life Act] requires each grantee to undergo 
evaluations of the services it provides, and also requires grantees to 
`make such reports concerning its use of Federal funds as the 
[Government] may require.' The application requirements of the act, as 
well, require potential grantees to disclose in detail exactly what 
services they intend to provide and how they will be provided. These 
provisions, taken together, create a mechanism whereby the [Government] 
can police the grants that are given out under the act to ensure that 
Federal funds are not used for impermissible purposes.'').
---------------------------------------------------------------------------
    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. According to 
Justice O'Connor, a program of aid need not be failsafe, nor 
does every program require pervasive monitoring.\72\ The 
statute limited aid to ``secular, neutral, and nonideological'' 
assistance, required that the aid supplement rather than 
supplant private-source funds, and expressly prohibited use of 
the aid for ``religious worship or instruction.'' \73\ State 
educational authorities required religious schools to sign 
assurances of compliance with the above-quoted statutory 
spending prohibition made a term of the contract.\74\ The state 
conducted monitoring visits, however infrequently, and did a 
random review of Government-purchased library books for their 
religious content.\75\ There was also monitoring of religious 
schools by local public school districts, including review of 
required project proposals submitted by the religious schools 
and annual program-review visits to each recipient school.\76\ 
The monitoring did catch instances of actual diversion, 
although not a substantial number, and Justice O'Connor was 
encouraged that when problems were detected they were 
corrected.\77\
---------------------------------------------------------------------------
    \72\ Id., 120 S.Ct. at 2569 (O'Connor, J., concurring in the 
judgment).
    \73\ Id.
    \74\ Id.
    \75\ Id.
    \76\ Id. at 2569-70.
    \77\ Id. at 2571-72.
---------------------------------------------------------------------------
    The charitable choice principles embodied in H.R. 7 address 
Justice O'Connor's concerns. Subsection (i) of title II of H.R. 
7 provides that a religious organization providing assistance 
under any covered program shall be subject to the same 
regulations as other non-governmental organizations to account 
in accord with generally accepted accounting principles for the 
use of such funds and its performance of such programs. In 
addition, a religious organization providing assistance through 
a grant or cooperative agreement under a covered program shall 
segregate Government funds provided under such program into a 
separate account or accounts, and the separate accounts 
consisting of funds from the Government, but only such separate 
accounts, shall be subject to audit by the Government regarding 
the administration of the covered program. H.R. 7 further 
requires a religious organization providing services under any 
covered program to conduct annually a self audit for compliance 
with its duties under this subsection and to submit a copy of 
the self audit to the appropriate Federal, State, or local 
government agency, along with a plan to timely correct 
variances, if any, identified in the self audit. H.R. 7 also 
requires that such a religious organization sign a certificate 
of compliance that certifies it is aware of and will comply 
with its duties under H.R. 7.

  H.R. 7 PRESERVES EXISTING GUARANTEES OF INSTITUTIONAL AUTONOMY FOR 
RELIGIOUS ORGANIZATIONS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

    One of the most important charitable choice principles is 
the guarantee of institutional autonomy that allows faith-based 
organizations to select staff on a religious basis. Faith-based 
organizations cannot be expected to sustain their religious 
drive without the ability to employ individuals who share the 
tenets and practices of their faith.\78\ In order to preserve 
the religious character of faith-based organizations, 
subsection (d) of the Charitable Choice Act of 2001 provides 
that
---------------------------------------------------------------------------
    \78\ Many faith-based organizations do not staff on a religious 
basis, nor do they desire to do so. However, many others do and believe 
it is essential to their continued vitality that they be able to 
continue to do so. Further, many faith-based organizations that staff 
on a religious basis do so with respect to some jobs but not others. 
Finally, many faith-based organizations do not staff on the basis of 
religion in any affirmative sense, but they do require that employees 
not be in open defiance of the organization's creed or teachings.

        (1) IN GENERAL. A religious organization that provides 
        assistance under [the specified programs] shall have 
        the right to retain its autonomy from Federal, State, 
        and local governments, including such organization's 
        control over the definition, development, practice, and 
---------------------------------------------------------------------------
        expression of its religious beliefs.

        (2) ADDITIONAL SAFEGUARDS. Neither the Federal 
        Government nor a State or local government with Federal 
        funds shall require a religious organization in order 
        to be eligible to provide assistance under [the 
        specified programs] to--(A) alter its form of internal 
        governance or provisions in its charter documents; or 
        (B) remove religious art, icons, scripture, or other 
        symbols, or to change its name, because such symbols or 
        names are of a religious character.

    Many faith-based organizations 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. They 
prefer working with those of the same faith, not out of animus 
toward others, but out of a desire to surround themselves with 
those who reinforce their faith. This guaranteed ability 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.\79\ Charitable choice laws 
specifically provide that faith-based organizations receiving 
Government funds retain this limited exemption from Federal 
employment nondiscrimination laws. H.R. 7 does this as well, 
using the same language from the 1996 Welfare Reform Act,\80\ 
with an additional clause making clear that contrary provisions 
in the Federal programs covered by title II of H.R. 7 have no 
force and effect \81\ and that the duties of religious 
organizations not to discriminate based on race, color, sex, 
and national origin--from which religious organizations are not 
exempt under title VII--are retained.\82\ While it is essential 
that faith-based organizations be permitted to make employment 
decisions based on religious considerations, along with all 
other providers, faith-based organizations must obey Federal 
civil rights laws prohibiting discrimination on the basis of 
race, color, national origin, gender, age, and disability. 
Subsection (e) makes clear that religious organizations retain 
their duty to follow the title VII nondiscrimination provisions 
regarding race, color, sex, and national origin, from which 
religious organizations are not exempt under title VII.\83\ 
H.R. 7 maintains the status quo regarding the Sec. 702(a) 
exemption in title VII. Courts have held that a religious 
organization does not forfeit the Sec. 702(a) exemption just 
because the organization is a recipient of Government 
funds.\84\
---------------------------------------------------------------------------
    \79\Section 702 of the Civil Rights Act of 1964 (42 U.S.C. 
Sec. 2000e-1(a)) states, ``This subchapter shall not apply to an 
employer with respect to the employment of aliens outside any State, or 
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.''
    \80\ See 42 U.S.C. Sec. 604a (``(f) Employment practices.--A 
religious organization's exemption provided under section 2000e-1 of 
this title regarding employment practices shall not be affected by its 
participation in, or receipt of funds from, programs described in 
subsection (a)(2) of this section.'').
    \81\ This additional clause was not necessary in the 1996 Welfare 
Reform Act because it codified charitable choice rules for a new 
program, whereas H.R. 7 covers already-existing programs that may have 
conflicting provisions. The 1996 Welfare Reform Act replaced the Aid to 
Families with Dependent Children program (``AFDC'') with the Temporary 
Assistance to Needy Families (``TANF'') program, shifting welfare 
responsibilities from the Federal Government to the states.
    \82\ Subsection (e) of the Charitable Choice Act of 2001 states: 
``A religious organization's exemption provided under section 702 of 
the Civil Rights Act of 1964 (42 U.S.C. 2000e-1) regarding employment 
practices shall not be affected by its participation in, or receipt of 
funds from, programs described in subsection (c)(4), and any provision 
in such programs that is inconsistent with or would diminish the 
exercise of an organization's autonomy recognized in section 702 or in 
this section shall have no effect. Nothing in this section alters the 
duty of a religious organization to comply with the nondiscrimination 
provisions of title VII of the Civil Rights Act of 1964 in the use of 
funds from programs described in subsection (c)(4).'' The latter 
sentence, like the provisions in subsection (f), are simply truisms, 
but they are included to avoid doubt about the continued applicability 
of these civil rights laws.
    \83\ Subsection (f) of the Charitable Choice Act of 2001 makes 
clear that, ``Nothing in this section shall alter the duty of a 
religious organization receiving assistance or providing services under 
any [covered program] to comply with the nondiscrimination provisions 
in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) 
(prohibiting discrimination on the basis of race, color, and national 
origin), title IX of the Education Amendments of 1972 (20 U.S.C. 1681-
1686) (prohibiting discrimination in educational institutions on the 
basis of sex and visual impairment), section 504 of the Rehabilitation 
Act of 1973 (29 U.S.C. 794) (prohibiting discrimination against 
otherwise qualified disabled individuals), and the Age Discrimination 
Act of 1975 (42 U.S.C. 6101-6107) (prohibiting discrimination on the 
basis of age).'' title VI of the Civil Rights Act of 1964 prohibits 
racial discrimination by those administering a social service program 
with Government aid. See 42 U.S.C. Sec. 2000d (``No person in the 
United States shall, on the ground of race, color, or national origin, 
be excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under any program or activity receiving 
Federal financial assistance . . .''). Further, section 504 of the 
Rehabilitation Act provides that, ``No otherwise qualified handicapped 
individual . . . shall, solely by reason of his handicap, be excluded 
from the participation in, be denied the benefits of, or be subjected 
to discrimination under any program or activity receiving Federal 
financial assistance . . .'' 29 U.S.C. Sec. 794. Section 504 affords 
disabled individuals the opportunity to participate in and benefit from 
programs offered by the recipient of Federal financial assistance by 
providing them ``meaningful access to the benefit that the grantee 
offers.'' Alexander v. Choate, 469 U.S. 287, 301, 304 (1985). Federal 
grantees need not make `` `fundamental' '' or `` `substantial' '' 
changes in their programs to accommodate the disabled, id. at 300, but 
``reasonable accommodations in the grantee's program or benefit may 
have to be made,'' to assure meaningful access by those with a 
disability. Id. at 301.
    \84\ See Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618, 
625 (6th Cir. 2000) (dismissing religious discrimination claim filed by 
employee against religious organization because organization was exempt 
from title VII and the receipt of substantial Government funding did 
not bring about a waiver of the exemption); Siegel v. Truett-McConnell 
College, 13 F. Supp.2d 1335, 1343-45 (N.D. Ga. 1994), aff'd, 73 F.3d 
1108 (11th Cir. 1995) (table) (dismissing religious discrimination 
claim filed by faculty member against religious college because college 
was exempt from title VII and the receipt of substantial Government 
funding did not bring about a waiver of the exemption or violate the 
Establishment Clause); Young v. Shawnee Mission Medical Center, 1988 
U.S. Dist. LEXIS 12248 (D. Kan. Oct. 21, 1988) (holding that religious 
hospital did not lose title VII exemption merely because it received 
Federal Medicare payments); see Little v. Wuerl, 929 F.2d 944, 951 (3d 
Cir. 1991) (holding that exemption to title VII for religious staffing 
by a religious organization is not waivable); Ward v. Hengle, 706 
N.E.2d 392, 395 (Ohio App.1997), app'l denied, 692 N.E.2d 617 (Ohio 
1998) (holding that exemption to title VII for religious staffing by a 
religious organization is not waivable); Arriaga v. Loma Linda 
University, 13 Cal. Rptr.2d 619 (Cal. App. 1992) (holding that 
religious exemption in state employment nondiscrimination law was not 
lost merely because religious college received state funding); Saucier 
v. Employment Security Dept., 954 P.2d 285 (Wash. App. 1998) (holding 
that Salvation Army's religious exemption from state unemployment 
compensation tax does not violate Establishment Clause merely because 
the job of a former employee in question, a drug abuse counselor, was 
funded by Federal and state grants).
---------------------------------------------------------------------------
    Occasionally, the charge is made that charitable choice is 
Government-funded job discrimination. This is untrue. The 
purpose of charitable choice funding is not to create jobs, or 
to fill the coffers of faith-based organizations, but to fund 
social services for those in need. It is the faith-based 
organization, of course, that is making staffing decision on 
the basis of religion, not the Government.\85\ Section 702(a) 
of the Civil Rights Act of 1964 has for decades exempted 
nonprofit private religious organizations, engaged in both 
religious and nonreligious nonprofit activities, from title 
VII's prohibition on discrimination in employment on the basis 
of religion.\86\ As enacted in 1964, the section 702 exemption 
permitted religious employers to discriminate on religious 
grounds in employment only with regard to ``religious 
activities.'' \87\ The 1972 amendment to section 702 expanded 
the exemption to permit religious employment discrimination 
with regard to all activities conducted by the religious 
employer regardless of whether they were religious or 
nonreligious in nature.\88\ The Supreme Court, including 
Justices Brennan and Marshall, upheld this expanded exemption 
in Corporation of the Presiding Bishop of the Church of Jesus 
Christ of Latter-day Saints v. Amos.\89\
---------------------------------------------------------------------------
    \85\ See Corporation of the Presiding Bishop of the Church of Jesus 
Christ of Latter-day Saints v. Amos, 483 U.S. 327, 337 n.15 (1987) 
(``Undoubtedly, [the complainant's] freedom of choice in religious 
matters was impinged upon, but it was the Church .., and not the 
Government, who put him to the choice of changing his religious 
practices or losing his job.'').
    \86\ Title VII exempts ``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.'' 42 U.S.C. Sec. 2000e-1(a).
    \87\ The original section 702 exemption, as enacted in 1964, read, 
in pertinent part: ``This title shall not apply to . . . a religious 
corporation, association, 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, or society of its 
religious activities or to an educational institution with respect to 
the employment of individuals to perform work connected with the 
educational activities of such institution.'' Pub. L. No. 88-352, 78 
Stat. 255, 42 U.S.C. Sec. 2000e-1 (1964).
    \88\ See Pub. L. No. 92-261, 86 Stat. 103 (1972) (amending 42 
U.S.C. 2000e (1964)).
    \89\ 483 U.S. 327 (1987). The section 702 exemption for religious 
organizations in title VII should not be confused with the so-called 
``ministerial exception,'' which is a legal doctrine developed by the 
courts, not Congress. The Free Exercise Clause, as interpreted by the 
courts, exempts hiring of clergy from title VII and other similar 
statutes and, as a consequence, precludes civil courts from 
adjudicating a broader range of employment discrimination suits by 
ministers against the church or religious institution employing them. 
See, e.g., Equal Employment Opportunity Commission v. Catholic 
University of America, 83 F.3d 455, 461 (D.C.Cir. 1996). However, 
persons are not covered by the so-called ``ministerial exception'' 
unless they perform ministerial functions. See id. at 464; see also 
EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 283 
(5th Cir.1981) (for purposes of exception, ``ministers'' includes non-
ordained faculty at Baptist seminary where no course has ``a strictly 
secular purpose ''). For example, in Weissman v. Congregation Shaare 
Emeth, 38 F.3d 1038 (8th Cir.1994), the court found that the plaintiff 
was able to bring an age discrimination action against his temple 
without violating the First Amendment because he ``was responsible for 
logistical support of activities including supervision of 
administrative, clerical, building maintenance, and custodial 
personnel. He also managed property and equipment and maintained 
financial records. He was not a member of the clergy and played no role 
in decisions relating to spiritual matters.'' Id. at 1040. See also 
EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795, 801 (4th Cir. 
2000) (``Where no spiritual function is involved, the First Amendment 
does not stay the application of a generally applicable law such as 
title VII to the religious employer unless Congress so provides.''); 
Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 
324, at 331 (3d Cir. 1993) (lay teacher in elementary parochial school 
not covered by ministerial exemption); DeMarco v. Holy Cross High 
School, 4 F.3d 166, 171-72 (2d.Cir. 1993) (lay math teacher not covered 
by ministerial exemption). Consequently, volunteers and other personnel 
at faith-based organizations performing secular, clerical, custodial, 
or administrative functions would not be covered by the ministerial 
exception.
---------------------------------------------------------------------------
    Section 702(a) is not waived or forfeited when a religious 
organization receives Federal funding. When it enacted title 
VII in 1964, Congress was aware that religious institutions of 
higher education eligible for exemption in section 703(e)(2) of 
title VII were receiving funds under Federal programs in the 
form of grants and student aid. Under the GI Bill, established 
in 1944, military veterans were able to attend the college or 
university of their choice--public or private, sectarian or 
non-sectarian--and the tuition costs were either offset or 
covered in full through a voucher payment sent to the selected 
school.\90\ When the title VII exemption for religious 
organizations allowing their hiring to be based on religion was 
expanded to include even non-ministerial positions in 1972, 
``Pell'' grants for students enrolling in undergraduate 
studies, including studies at religiously affiliated colleges, 
were under active discussion and became law that same year.\91\ 
Not only does no provision in Sec. 702(a) state that its 
exemption of nonprofit private religious organizations from 
title VII's prohibition on discrimination in employment is 
forfeited when a faith-based organization receives a Federal 
grant, but the Federal circuits that have faced the issue have 
also held that the protections of Sec. 702(a) cannot be 
waived.\92\ Further, private organizations, including faith-
based organizations, do not become ``state actors'' and thereby 
lose the status they enjoy as private organizations simply 
because they receive Government funds.\93\ This means that the 
Sec. 702(a) exemption does not violate any nondiscrimination 
norms in the Constitution.
---------------------------------------------------------------------------
    \90\ See Servicemen's Readjustment Act of 1944, Pub. L. No. 78-346, 
58 Stat. 284, 288-89 (1944) (``[A qualifying veteran] shall be eligible 
for and entitled to such course of education or training as he may 
elect, and at any approved educational or training institution at which 
he chooses to enroll . . . ''). The current program provides for 
payment to be made to the eligible serviceman directly. See 38 U.S.C. 
Sec. 3014.
    \91\ Pell Grants were established by the Education Amendments of 
1972, 20 U.S.C. Sec. 1070, for the purpose of subsidizing tuition, 
fees, and certain costs of attendance for people pursuing an 
undergraduate degree.
    \92\ See Hill v. Baptist Memorial Health Care Corp., 215 F.3d 618, 
625 (6th Cir. 2000) (``[T]he statutory exemptions from religious 
discrimination claims under title VII cannot be waived . . . The 
exemptions reflect a decision by Congress that religious organizations 
have a constitutional right to be free from Government 
intervention.''); Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991) 
(holding argument that religious organization can waive title VII 
exemption ``incorrectly views [the exemption] as a privilege or 
interest granted to those organizations. Instead, those exemptions 
reflect a decision by Congress that the Government interest in 
eliminating religious discrimination by religious organizations is 
outweighed by the rights of those organizations to be free from 
Government intervention.''); Siegel v. Truett-McConnell College, 13 F. 
Supp.2d 1335, 1343-45 (N.D. Ga. 1994), aff'd, 73 F.3d 1108 (11th Cir. 
1995) (table) (dismissing religious discrimination claim filed by 
faculty member against religious college because college was exempt 
from title VII and the receipt of substantial Government funding did 
not bring about a waiver of the exemption or violate the Establishment 
Clause).
    \93\ See Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (holding that 
nonprofit, privately operated school's receipt of public funds did not 
make its discharge decisions ``state actions'' subject to suit under 
Federal statute authorizing suits for deprivations of constitutional 
rights, notwithstanding that virtually all of school's income was 
derived from Government funding and that even though the private entity 
performed a function which served public such did not make its acts 
``state action ''); Blum v. Yaretsky, 457 U.S. 991 (1982) (holding that 
even though the State subsidized the cost of private nursing home 
facilities, paid the expenses of the patients, and licensed the 
facilities, the action of the nursing homes is not thereby converted 
into ``state action.'').
---------------------------------------------------------------------------
    Nor is staffing on a religious basis invidious 
discrimination based on an immutable trait, or for a purpose 
other than preserving the religious character of an 
organization. Indeed, a religious organization favoring the 
employment of those of like-minded faith is comparable to an 
environmental organization favoring employees devoted to 
environmentalism or a teacher's union hiring only those opposed 
to school voucher initiatives.
    Indeed, prohibiting religious organizations from 
maintaining their religious character through hiring practices 
would endanger Federal funding for child services and 
education. One survey found that 51 percent of nonprofit 
organizations delivering child services were religiously 
affiliated, and of those 82 percent received public funds. A 
majority of these religiously affiliated nonprofit 
organizations received over 40 percent of their budgets from 
Government sources. The survey also found that 70 percent of 
nonprofit colleges and universities were religiously 
affiliated, and of those 97 percent received public funds.\94\ 
The same survey found that 44 percent of the religiously 
affiliated nonprofit organizations delivering child services 
only hired staff who agreed with their religious orientation, 
or gave preference to them, and that 56 percent of the 
religiously affiliated nonprofit colleges and universities only 
hired staff who agreed with their religious orientation, or 
gave preference to them.\95\ In sum, roughly half of the 
religiously affiliated child care services and colleges and 
universities surveyed receive large amounts of public funds and 
maintain their religious character through hiring practices. A 
rule prohibiting Government funds from finding their way to 
religious organizations that make staffing decisions based on 
religion would pull public funding from these child care 
services and colleges and universities.\96\
---------------------------------------------------------------------------
    \94\ See Stephen V. Monsma, When Sacred and Secular Mix: Religious 
Nonprofit Organizations and Public Money (Rowman & Littlefield 
Publishers, Inc. 1996) at 68, Table 3.
    \95\ See id. at 74-75, Tables 6 and 7.
    \96\ Religiously motivated schools often consider religion in their 
hiring practices and remain viable because their students receive 
Federal funds. Students may use Federal veterans' benefits, Federal 
Pell Grants, and other Federal educational grants and loans at any 
accredited institution of higher learning, including religious schools 
and seminaries that discriminate in hiring faculty and staff based on 
religion.
---------------------------------------------------------------------------
    The Supreme Court has repeatedly held that the 
Establishment Clause is not violated when Government refrains 
from imposing a burden on religion, even though that same 
burden is imposed on the nonreligious who are otherwise 
similarly situated. In Corporation of the Presiding Bishop v. 
Amos,\97\ the Supreme Court upheld an exemption permitting 
religious organizations to discriminate on a religious basis in 
matters concerning employment. Finding that the exemption did 
not violate the Establishment Clause, the Supreme Court has 
made clear that ``it is a permissible legislative purpose to 
alleviate significant governmental interference with the 
ability of religious organizations to define and carry out 
their religious missions.'' \98\ Justice Brennan, in his 
concurring opinion in Amos, recognized that many religious 
organizations and associations engage in extensive social 
welfare and charitable activities, such as operating soup 
kitchens and day care centers or providing aid to the poor and 
the homeless. Even where the content of such activities is 
nonreligious, in the sense that it does not include sectarian 
teaching, proselytizing, prayer or ritual, Justice Brennan 
recognized that the religious organization's performance of 
such functions is likely to be ``infused with a religious 
purpose.'' \99\ He also recognized that churches and other 
religious entities ``often regard the provision of such 
services as a means of fulfilling religious duty and of 
providing an example of the way of life a church seeks to 
foster.'' \100\ Consequently, Justice Brennan concluded that 
the ``substantial potential for chilling religious activity 
makes inappropriate a case-by-case determination of the 
character of a nonprofit organization, and justifies a 
categorical exemption for nonprofit activities ... While not 
every nonprofit activity may be operated for religious 
purposes, the likelihood that many are makes a categorical rule 
a suitable means to avoid chilling the exercise of religion.'' 
\101\
---------------------------------------------------------------------------
    \97\ 483 U.S. 327 (1987).
    \98\ Id. at 335.
    \99\ Id. at 342 (Brennan, J., concurring).
    \100\ Id. at 344.
    \101\ Id. at 345.
---------------------------------------------------------------------------
    A religious organization may have good reason for 
preferring that individuals similarly committed to its 
religiously motivated mission operate such secular programs, 
for such collective activity can be ``a means by which a 
religious community defines itself.'' \102\ Indeed, such 
collective activity not only can advance the organization's own 
religious objectives, but also can further the religious 
mission of the individuals that constitute the religious 
community:
---------------------------------------------------------------------------
    \102\ Id. at 342.

        For many individuals, religious activity derives 
        meaning in large measure from participation in a larger 
        religious community. Such a community represents an 
        ongoing tradition of shared beliefs, an organic entity 
        not reducible to a mere aggregation of 
        individuals.\103\
---------------------------------------------------------------------------
    \103\ Id.

    Accordingly, the selection of coreligionists in particular 
social service programs will ordinarily advance a religious 
organization's religious mission, facilitate the religiously 
motivated calling and conduct of the individuals who are the 
constituents of that organization, and fortify the 
organization's religious tradition. Where an organization makes 
such a showing, the title VII prohibition on religious 
discrimination would impose ``significant governmental 
interference'' with the ability of that organization ``to 
define and carry out [its] religious mission[],'' \104\ even as 
applied to employees who are engaged in work that is secular in 
content. Where that is the case, the section 702(a) exemption 
would be a permissible religious accommodation that 
``alleviat[es] special burdens.'' \105\ The title VII 
exemption, as applied to employees of faith-based organizations 
in programs that are direct recipients of Government funding, 
is constitutionally sound.
---------------------------------------------------------------------------
    \104\ Id., at 335.
    \105\ Board of Education of Kiryas Joel Village School District v. 
Grumet, 512 U.S. 687, 705 (1994).
---------------------------------------------------------------------------
    When the Court permits a legislature to exempt religion 
from regulatory burdens, it enables private religious choice. 
To establish a religion connotes that a Government must take 
some affirmative step to achieve the prohibited result. On the 
other hand, for Government to passively leave religion where it 
found it cannot be an act establishing a religion. Pointing out 
that it had previously upheld laws that helped religious groups 
advance their purposes, the Supreme Court explained, ``A law is 
not unconstitutional simply because it allows churches to 
advance religion, which is their very purpose ... [T]he Court 
... has never indicated that statutes that give special 
consideration to religious groups are per se invalid.'' \106\ 
In other words, the state does not support or establish 
religion by leaving it alone.\107\
---------------------------------------------------------------------------
    \106\ Corporation of the Presiding Bishop of the Church of Jesus 
Christ of Latter-day Saints v. Amos, 483 U.S. 327, 338 (1987).
    \107\ See Walz v. Tax Commission, 397 U.S. 664, 673 (1970) (``We 
cannot read [a statute exempting religious organizations from taxes] as 
attempting to establish religion; it is simply sparing the exercise of 
religion from the burden of property taxation levied on private profit 
institutions.'').
---------------------------------------------------------------------------
    Charitable choice principles simply allow religious groups 
to retain their religious character while allowing them to 
compete for more social service funds with which to help people 
in need. H.R. 7 preserves religious organizations' exemption 
from the religion nondiscrimination provisions of title VII, 
and it also makes clear that religious organizations retain 
their duty to follow the title VII nondiscrimination provisions 
regarding race, color, sex, and national origin.\108\
---------------------------------------------------------------------------
    \108\ Title VII applies to employers with ``fifteen or more 
employees for each working day in each of twenty or more calendar weeks 
in the current or proceeding calendar year.'' 42 U.S.C. Sec. 2000e(b). 
Under title VII, employees of certain small organizations are not 
protected by title VII, and their protections against discrimination 
are found in state or local antidiscrimination statutes, or section 
1981. See 42 U.S.C. Sec. 1981 (``(a) Statement of equal rights. All 
persons within the jurisdiction of the United States shall have the 
same right in every State and Territory to make and enforce contracts, 
to sue, be parties, give evidence, and to the full and equal benefit of 
all laws and proceedings for the security of persons and property as is 
enjoyed by white citizens, and shall be subject to like punishment, 
pains, penalties, taxes, licenses, and exactions of every kind, and to 
no other. (b) `Make and enforce contracts' defined. For purposes of 
this section, the term `make and enforce contracts' includes the 
making, performance, modification, and termination of contracts, and 
the enjoyment of all benefits, privileges, terms, and conditions of the 
contractual relationship. (c) Protection against impairment. The rights 
protected by this section are protected against impairment by 
nongovernmental discrimination and impairment under color of State 
law.''). INSERT E
---------------------------------------------------------------------------
    Because H.R. 7 expands charitable choice principles to 
cover many new Federal programs, one uniform rule should apply 
to all programs and allow religious organizations to retain 
their autonomy over the definition, development, practice, and 
expression of their religious beliefs, including through hiring 
staff. This is so even when State or local laws provide 
otherwise, but only when Federal funds are used and only when 
such religious beliefs are sincerely held. See subsections 
(d)(1) and (k) of the Charitable Choice Act of 2001; see also 
United States v. Ballard, 322 U.S. 78 (1944) (while truth of 
religious beliefs may not be subjected to examination by trier 
of fact, the sincerity of religious claimant may to tested). 
This statutory right is enforceable, if need be, by the 
Compliance subsection. Subsection (n) gives a faith-based 
organization a private right of action for injunctive relief. 
This statutory right is very narrow in scope, and the 
experience to date is encouraging. Such a right has been 
present in existing charitable choice laws for five years and 
there are no known or reported instances in which faith-based 
organizations have asserted this narrow statutory right. 
Wherever federal funds go, this statutory right of religious 
organizations to staff on a religious basis should follow, as 
should, of course, their duty of nondiscrimination under 
federal civil rights laws, including those applicable duties to 
which they are the subject under title VII and the civil rights 
statutes listed in subsection (f). And, of course, subsection 
(h) does not permit religious discrimination against social 
service beneficiaries.
    There is considerable benefit in having one Federal rule 
for all Federal funds nationwide. However, where State or local 
governments do not use Federal funds, or where they segregate 
their own funds from Federal funds, these governments are not 
subject to the provisions of H.R. 7. Accordingly, they may 
apply their own civil rights laws to their own State or local 
funds.

  THERE IS NO CONSTITUTIONAL REQUIREMENT THAT RELIGIOUS ORGANIZATIONS 
   FORM SEPARATE 501(C)(3) ORGANIZATIONS IN ORDER TO COMPETE FOR AND 
                     ADMINISTER FUNDS UNDER H.R. 7

    There are also those who have expressed the notion that 
religious organizations incorporated under Sec. 501(c)(3) of 
the Internal Revenue Code cannot be intensely or significantly 
religious, and hence should be able to receive Federal funds, 
while a non-501(c)(3) religious organization should not be able 
to do so. The notion seems to be premised on an incorrect 
assumption that such an organization, being separate from the 
``pervasively sectarian'' parent, must be secular and thus 
constitutionally authorized to accept Government funds. 
However, the constitution does not bar ``pervasively 
sectarian'' organizations from accepting Government funds, 
under appropriate conditions, as the Supreme Court has recently 
emphasized. There is also nothing inherent in 501(c)(3) status 
that requires an organization not to be pervasively sectarian, 
and intensely or significantly religious organizations, 
including churches, can be 501(c)(3) organizations if they so 
choose. Under Sec. 508(c)(1)(A), ``churches'' and ``their 
integrated auxiliaries'' may take advantage of tax-exempt 
status without filing an application for tax-exemption under 
Sec. 501(c)(3), but many elect to do so anyway in order to 
create a separately funded organization. In any case, nothing 
about Sec. 501(c)(3) status means the organization has to, for 
example, take down religious symbols or refrain from staffing 
on a religious basis, just because it receives a Federal grant. 
Section 501(c)(3) only imposes two restrictions on nonprofit, 
tax-exempt public charities, including religious social service 
ministries: first, a blanket prohibition on the organization's 
involvement in political campaigns; and second, a requirement 
that no substantial part of its activities be devoted to 
lobbying. See 26 U.S.C. Sec. 501(c)(3). In sum, the provisions 
of Sec. 501(c)(3) allow a church or other religious 
organization to create an entity that is organized, governed, 
and funded separately, but they do not restrict a 501(c)(3) 
organization's involvement in religion. Charitable choice 
principles, not the provisions of Sec. 501(c)(3), define what a 
religious organization can and cannot do in order to lawfully 
compete for and administer funds under a Federal social service 
program, and there is no constitutional reason why a religious 
organization should not be able to use its existing rooms and 
buildings for training centers and office space. To impose such 
a requirement of separate incorporation by a religious 
organization seeking to take part in a Federal social service 
program would impose an unnecessary barrier to entry on the 
smallest faith-based organizations when H.R. 7 seeks to remove 
such unnecessary barriers. Under subsection (i)(2)(A) of title 
II of H.R. 7, a religious organization receiving funds directly 
through a grant or cooperative agreement need only create a 
separate account to receive the Government funds out of which 
charitable choice programs draw, rather than form a separate 
Sec. 501(c)(3) organization. This is done, in part, to limit 
the scope of audits to funds from Government sources and 
thereby shield other accounts from Government monitoring.

H.R. 7 ALSO INCLUDES PROVISIONS TO ENCOURAGE BUSINESSES TO MAKE IN-KIND 
 CHARITABLE DONATIONS BY PROTECTING THEM FROM LIABILITY, WITH CERTAIN 
   EXCEPTIONS FOR GROSS NEGLIGENCE AND INTENTIONAL MISCONDUCT, WHEN 
                  DONATED ITEMS CAUSE INJURY OR DEATH

    Section 104 of title I of H.R. 7 includes liability reform 
provisions covering charitable in-kind donations by businesses. 
Section 104 is intended to encourage businesses to make in-kind 
charitable contributions of equipment, motor vehicles, and 
aircraft by protecting them from liability, under Federal and 
state law with certain exceptions for gross negligence and 
intentional misconduct, in the event the donated items cause 
injury. Subsection (b) of section 104 provides that, subject to 
exceptions in subsection (c), a business entity shall not be 
subject to civil liability relating to any injury or death that 
results from the use of equipment donated by that business 
entity to a nonprofit organization. Businesses donating 
facilities to nonprofit organizations shall not be subject to 
civil liability relating to any injury or death occurring at 
the facility if the use occurs outside of the scope of business 
of the business entity, such injury or death occurs during a 
period that such facility is used by the nonprofit 
organization, and the business entity authorized the use of 
such facility by the nonprofit organization. Businesses shall 
not be subject to civil liability relating to any injury or 
death occurring as a result of the operation of aircraft or a 
motor vehicle of a business entity loaned to a nonprofit 
organization for use outside the scope of business of the 
business entity, if such injury or death occurs during a period 
that such motor vehicle or aircraft is used by a nonprofit 
organization, and the business entity authorized the use by the 
nonprofit organization of motor vehicle or aircraft that 
resulted in the injury or death.
    Subsection (c) provides that the protections of subsection 
(b) shall not apply to an injury or death that results from an 
act or omission of a business entity that constitutes gross 
negligence or intentional misconduct.
    Subsection (d) provides that, subject to subsection (e), 
the laws of any State are preempted to the extent that such 
laws are inconsistent with this title, except that this title 
shall not preempt any State law that provides additional 
protection for a business entity for an injury or death 
described in a paragraph of subsection (b) with respect to 
which the conditions specified in such paragraph apply. 
Subsection (d) also provides that nothing in this title shall 
be construed to supersede any Federal or State health or safety 
law. Subsection (e) provides that a provision of this title 
shall not apply to any civil action in a State court against a 
business entity in which all parties are citizens of the State 
if such State enacts a statute citing the authority of this 
section, declaring the election of such State that such 
provision shall not apply to such civil action in the State, 
and containing no other provisions.

                                SUMMARY

    While the First Amendment to the Constitution provides that 
the Government shall not ``establish'' religion, or any 
particular religion by directing governmental support to a 
particular religion or to adherents of religion to the 
exclusion of adherents to no religion, the First Amendment also 
provides that the Government shall not prohibit the ``free 
exercise'' of religion. Consequently, Government must ensure 
that members of organizations seeking to take part in 
Government programs designed to meet basic and universal human 
needs are not discriminated against because of their religious 
views. These ``charitable choice'' principles, part of H.R. 7, 
allow for the public funding of faith-based organizations with 
demonstrated abilities to meet basic needs, and they allow such 
organizations to choose their staff, board members, and 
methods, thus preserving their religious character. These 
principles also protect the rights of conscience of their 
clients by prohibiting the use of Government funds for 
sectarian instruction, worship, or proselytization and by 
ensuring that alternatives, not objectionable for religious 
reasons are available.
    Existing charitable choice programs have benefitted 
thousands of persons in need without raising significant 
constitutional concerns in their implementation. An expansion 
of such principles to cover even more Federal programs likewise 
raise no serious constitutional concerns, while preserving 
citizens' rights to freely exercise their religion without 
being dismissed out-of-hand in their attempts to take part in 
cooperative efforts with the Federal Government designed to 
reduce poverty and fulfill basic human needs.

                                Hearings

    The Committee's Subcommittee on the Constitution held 2 
days of oversight hearings on charitable choice, the first of 
which was held on April 24, 2001. That hearing explored how 
States and localities have successfully implemented existing 
``charitable choice'' provisions, governing certain Federal 
programs, and benefitted those in need. Testimony was received 
from the following witnesses: Dr. Amy Sherman, Senior Fellow, 
Welfare Policy Center, Hudson Institute; Reverend Donna 
Lawrence Jones, Cookman United Methodist Church, Philadelphia, 
PA; Charles Clingman, Executive Director, Jireh Development 
Corporation, Cincinnati, OH; and Reverend J. Brent Walker, 
Executive Director, Baptist Joint Committee on Public Affairs.
    The second oversight hearing was held on June 7, 2001. That 
hearing focused on the constitutional role of faith-based 
organizations in competing for Federal social service funds. 
Testimony was received from the following witnesses: Carl 
Esbeck, Senior Counsel to the Deputy Attorney General, United 
States Department of Justice; Douglas Laycock, Associate Dean 
for Research and Alice McKean Young Regents Chair in Law, The 
University of Texas School of Law; David N. Saperstein, Adjunct 
Professor of Law; Director, Religious Action, Center of Reform 
Judaism, Georgetown University Law Center; and Ira C. Lupu, 
Louis Harkey Mayo Research Professor of Law, The George 
Washington University School of Law.

                        Committee Consideration

    On June 28, 2001, the Committee met in open session and 
ordered favorably reported the bill, H.R. 7, with amendment, by 
a recorded vote of 20 to 5, a quorum being present.

                         Vote of the Committee

    1. An amendment was offered by Mr. Scott (for himself, Mr. 
Conyers, Mr. Nadler, Mr. Frank, Ms. Jackson Lee, Ms. Waters, 
Ms. Balwin, and Mr. Watt) to strike from the amendment offered 
by Mr. Sensenbrenner its provisions preserving religious 
organizations' exemption from the religion nondiscrimination 
provisions of title VII of the Civil Rights Act of 1964. The 
amendment was defeated by rollcall vote of 11 to 19.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................                              X
Mr. Gekas.......................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Barr........................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Hutchinson..................................................                              X
Mr. Cannon......................................................                              X
Mr. Graham......................................................                              X
Mr. Bachus......................................................                              X
Mr. Scarborough.................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................                              X
Mr. Conyers.....................................................              X
Mr. Frank.......................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             11              19
----------------------------------------------------------------------------------------------------------------

    2. An amendment was offered by Mr. Watt to strike language 
in the amendment offered by Mr. Sensenbrenner overriding any 
provisions in programs covered under subsection (c)(4) of the 
Charitable Choice Act of 2001 that are inconsistent with or 
would diminish the exercise of an organization's autonomy 
recognized in section 702 of the Civil Rights Act of 1964 or 
the Charitable Choice Act of 2001, and to add language to the 
end of subsection (e) of the Charitable Choice Act of 2001. The 
amendment was modified to omit its striking of language in the 
amendment of Mr. Sensenbrenner and to add the following 
language at the end of subsection (e): ``Nothing in this 
section alters the duty of a religious organization to comply 
with the nondiscrimination provisions of title VII of the Civil 
Rights Act of 1964 in the use of funds from programs described 
in subsection (c)(4).'' As so modified, the amendment was 
agreed to by unanimous consent.
    3. An amendment was offered by Mr. Nadler (for himself, Mr. 
Conyers, and Mr. Scott) that would perfect the amendment 
offered by Mr. Sensenbrenner a subsection providing that a 
party alleging that the rights of the party under subsection 
(f), (g), or (i) of the amendment offered by Mr. Sensenbrenner 
have been violated may bring a civil action seeking any form of 
legal or equitable relief, including a writ of mandamus, 
injunctive relief, or monetary damages, in a State court of 
general jurisdiction or in a District Court of the United 
States, against a religious organization, official, or 
Government agency, and that in any action or proceeding to 
enforce the foregoing rights, the court may allow a prevailing 
plaintiff reasonable attorneys' fees as part of the costs and 
may include expert fees as part of the attorneys' fees. The 
amendment was defeated by voice vote.
    4. An amendment was offered by Mr. Nadler that would strike 
subsection (h) of the Charitable Choice Act of 2001 contained 
in the amendment offered by Mr. Sensenbrenner and replace it 
with a a new subsection (h) providing that a religious 
organization shall be eligible for assistance under a program 
described in subsection (c)(4) only through an entity 
incorporated separately from its pervasively sectarian parent 
or affiliate under section 501(c)(3) of the Internal Revenue 
Code of 1986. The amendment was defeated by voice vote.
    5. An amendment was offered by Mr. Nadler (for himself, Mr. 
Conyers, Mr. Frank, Ms. Jackson Lee and Mr. Watt) that would 
have added language to the amendment offered by Mr. 
Sensenbrenner prohibiting religious organization receiving 
funds under programs covered by subsection (c)(4) from engaging 
any beneficiaries of such programs in religious worship, 
instruction, or proselytization while they were receiving 
assistance under a covered program. The amendment was defeated 
by rollcall vote of 7 to 22.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................                              X
Mr. Gekas.......................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Barr........................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Hutchinson..................................................                              X
Mr. Cannon......................................................                              X
Mr. Graham......................................................                              X
Mr. Bachus......................................................                              X
Mr. Scarborough.................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................                              X
Mr. Conyers.....................................................
Mr. Frank.......................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              7              22
----------------------------------------------------------------------------------------------------------------

    6. An amendment was offered by Mr. Scott (for himself and 
Ms. Waters) that would have provided that nothing in the 
Charitable Choice Act of 2001 in the amendment offered by Mr. 
Sensenbrenner shall affect any programs under the Elementary 
and Secondary Education Act of 1965. The amendment was defeated 
by a rollcall vote of 10 to 17.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................                              X
Mr. Gekas.......................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Barr........................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Hutchinson..................................................                              X
Mr. Cannon......................................................                              X
Mr. Graham......................................................                              X
Mr. Bachus......................................................                              X
Mr. Scarborough.................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................
Ms. Hart........................................................                              X
Mr. Flake.......................................................                              X
Mr. Conyers.....................................................
Mr. Frank.......................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             10              17
----------------------------------------------------------------------------------------------------------------

    7. An amendment was offered by Ms. Lofgren (for herself and 
Mr. Schiff) that would have striken section 104 of title I of 
H.R. 7 in the amendment offered by Mr. Sensenbrenner, which 
extends liability protection to businesses making in-kind 
donations to charitable organizations. The amendment was 
defeated by a rollcall vote of 7 to 13.

                                                   ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................                              X
Mr. Gekas.......................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................
Mr. Barr........................................................                              X
Mr. Jenkins.....................................................
Mr. Hutchinson..................................................                              X
Mr. Cannon......................................................
Mr. Graham......................................................                              X
Mr. Bachus......................................................
Mr. Scarborough.................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................
Ms. Hart........................................................                              X
Mr. Flake.......................................................
Mr. Conyers.....................................................
Mr. Frank.......................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              7              13
----------------------------------------------------------------------------------------------------------------

    8. An amendment was offered by Mr. Frank (for himself and 
Ms. Baldwin) that would have added language to subsection (g) 
of the Charitable Choice Act of 2001, in the amendment offered 
by Mr. Sensenbrenner, prohibiting a religious organization 
receiving indirect forms of assistance from discriminating, in 
carrying out a covered program, against an individual on the 
basis of a religious belief. The amendment was defeated by a 
rollcall vote of 7 to 15.

                                                   ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................                              X
Mr. Gekas.......................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Barr........................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Hutchinson..................................................
Mr. Cannon......................................................                              X
Mr. Graham......................................................                              X
Mr. Bachus......................................................
Mr. Scarborough.................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................
Ms. Hart........................................................                              X
Mr. Flake.......................................................
Mr. Conyers.....................................................
Mr. Frank.......................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              7              15
----------------------------------------------------------------------------------------------------------------

    9. An amendment was offered by Mr. Frank (for himself and 
Mr. Scott) that would strike subsection (e)(2) of the 
Charitable Choice Act of 2001 in the amendment offered by Mr. 
Sensenbrenner and insert a new subsection (f) listing the same 
anti-discrimination statutes listed in subsection (e)(2) and 
preceding them with the language ``nothing in section 1994A 
shall alter the duty of a religious organization receiving 
assistance or providing services under any program described in 
subsection (c)(4) to comply with the nondiscrimination 
provisions in'' the listed statutes. The amendment was agreed 
to by voice vote.
    10. An amendment was offered by Ms. Jackson Lee (for 
herself and Ms. Waters) that would strike from the Charitable 
Choice Act of 2001, in the amendment offered by Mr. 
Sensenbrenner, its provisions protecting the rights of a 
religious organization that provides assistance under a program 
described in subsection (c)(4) to retain its autonomy, 
including its control over the definition, development, 
practice, and expression of its religious beliefs, from State 
and local governments. The amendment would also have allowed 
State and local governments to require a religious 
organization, in order to be eligible to provide assistance 
under a program described in subsection (c)(4), to alter its 
form of internal governance or provisions of its charter 
documents, or to remove religious art, icons, scripture or 
other symbols, or to change its name, because such symbols or 
name are of a religious character. The amendment also would 
have striken subsection (j) of the Charitable Choice Act of 
2001. The amendment was defeated by a rollcall vote of 7 to 19.

                                                   ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................                              X
Mr. Gekas.......................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Barr........................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Hutchinson..................................................                              X
Mr. Cannon......................................................                              X
Mr. Graham......................................................                              X
Mr. Bachus......................................................                              X
Mr. Scarborough.................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................                              X
Mr. Conyers.....................................................
Mr. Frank.......................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              7              19
----------------------------------------------------------------------------------------------------------------

    11. An amendment was offered by Mr. Watt that would have 
inserted into the subsection of the Charitable Choice Act of 
2001 titled ``Effect on Other Laws,'' in the amendment offered 
by Mr. Sensenbrenner, a reference to the Fair Housing Act. The 
amendment was withdrawn.
    12. An amendment was offered by Mr. Nadler (for himself and 
Mr. Frank that would have striken from subsection (f)(1)(A) of 
the Charitable Choice Act of 2001, in the amendment offered by 
Mr. Sensenbrenner, the phrase ``is an alternative that is 
accessible to the individual and unobjectionable to the 
individual on religious grounds,'' and replaced it with ``is an 
alternative, including a nonreligious alternative, that is 
accessible and not objectionable to the individual.'' The 
amendment also would have added the following language at the 
end of that subsection: ``section 1994A of this title shall not 
apply with respect to assistance provided under a program 
described in subsection (c)(4) during a fiscal year by an 
organization if the requirement of paragraph (1) is not met 
with respect to that assistance.'' The amendment was defeated 
by voice vote.
    13. An amendment was offered by Mr. Scott that would have 
replaced the phrase ``an alternative that is accessible'' in 
subsection (f)(1)(A) of the Charitable Choice Act of 2001 in 
the amendment offered by Mr. Sensenbrenner, with the phrase 
``an alternative that is at least as accessible.'' The 
amendment was defeated by voice vote.
    14. An amendment was offered by Mr. Scott that would have 
added at the end of subsection (c)(1)(A) of the Charitable 
Choice Act of 2001 in the amendment offered by Mr. 
Sensenbrenner the following language: ``For purposes of this 
section, a religious organization is an organization which is 
pervasively sectarian, and states in the application for 
funding that it is a `pervasively sectarian organization.' '' 
The amendment was defeated by voice vote.
    15. An amendment was offered by Mr. Scott that would have 
added the following language to subsection (m) of the amendment 
offered by Mr. Sensenbrenner to title II of H.R. 7: ``Funding 
under this section shall be based on the objective merits of 
the applications submitted and shall not discriminate against 
an applicant based on the religious character of the 
organization.'' The amendment was defeated by a rollcall vote 
of 7 to 20.

                                                   ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................                              X
Mr. Gekas.......................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Barr........................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Hutchinson..................................................                              X
Mr. Cannon......................................................                              X
Mr. Graham......................................................                              X
Mr. Bachus......................................................                              X
Mr. Scarborough.................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................                              X
Mr. Conyers.....................................................              X
Mr. Frank.......................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              7              20
----------------------------------------------------------------------------------------------------------------

    16. An amendment was offered by Mr. Scott to the amendment 
offered by Mr. Sensenbrenner relating to training and technical 
assistance for small nongovernmental organizations that would 
have struck language referring to the Office of Justice 
Programs. The amendment also would have increased from $25 
million to $50 million the amounts the Attorney General was 
authorized to spend to provide training and technical 
assistance regarding procedures relating to potential 
application and participation in programs identified in 
subsection (c)(4), to small nongovernmental organizations, 
including religious organizations. The amendment also provided 
that such assistance shall include assistance in creating a 
501(c)(3) organization, grant writing workshops, informational 
assistance regarding accounting, legal, and tax issues, 
informational assistance regarding how to comply with Federal 
nondiscrimination provisions. The amendment also provided that, 
in providing such assistance, priority shall be given to small 
nongovernmental organizations serving rural and urban 
communities. By unanimous consent, the amendment was modified 
to omit the striking of language and to replace the phrase 
``Such assistance shall include'' with ``Such assistance may 
include.'' The amendment, as modified, was agreed to.
    17. An amendment was offered by Mr. Scott in the amendment 
offered by Mr. Sensenbrenner that would have added at the end 
of subsection (c)(3) the following language: ``Notwithstanding 
the provisions in this paragraph, title VI of the Civil Rights 
Act of 1964 (42 U.S.C. 2000d et seq.) shall apply to 
organizations receiving direct assistance funded under any 
program described in subsection (c)(4).'' The amendment was 
agreed to by voice vote.
    18. Mr. Sensenbrenner offered an amendment that would 
replace existing language in the employment practices 
provisions of H.R. 7 preserving religious organizations' 
current exemption from the religious nondiscrimination 
provisions of title VII with the same language used in the 1996 
Welfare Reform Act, with an additional clause making clear that 
contrary provisions in the Federal programs covered by H.R. 7 
have no force and effect. The amendment also makes clear that, 
when a beneficiary has an objection to the religious nature of 
a provider, an alternative provider is required that is 
unobjectionable to the beneficiary on religious grounds, but 
that the alternative provider need not be nonreligious. The 
amendment also permits review of the performance of Federal 
programs funded through religious organizations and not just 
its fiscal aspects; requires self-audits by religious 
organizations; makes a clearer statement that if a religious 
organization offers sectarian instruction, worship, or 
proselytization, it shall be voluntary for the individuals 
receiving services and offered separate from the program funded 
under this subpart; limits parties alleging that their rights 
under this section have been violated to injunctive relief; and 
authorizes the Attorney General to provide training and 
technical assistance regarding procedures relating to potential 
applications and participation in programs identified in 
subsection (c)(4), to small nongovernmental organizations, 
including religious organizations. The amendment offered by Mr. 
Sensenbrenner, as amended, was agreed to by voice vote.
    19. Final Passage. The motion to report favorably the bill 
H.R. 7, as amended, was adopted. The motion was agreed to by a 
rollcall vote of 20 to 5.

                                                   ROLLCALL NO. 8
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................              X
Mr. Gekas.......................................................              X
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Barr........................................................              X
Mr. Jenkins.....................................................              X
Mr. Hutchinson..................................................              X
Mr. Cannon......................................................              X
Mr. Graham......................................................              X
Mr. Bachus......................................................              X
Mr. Scarborough.................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Conyers.....................................................
Mr. Frank.......................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................                              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             20               5
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    Subsection (o) of title II of H.R. 7, the Charitable Choice 
Act of 2001, provides that, from amounts made available to 
carry out the purposes of the Office of Justice Programs, funds 
are authorized to provide training and technical assistance, 
directly, or through grants or other arrangements, in 
procedures relating to potential application and participation 
in covered programs to small nongovernmental organizations, as 
determined by the Attorney General, including religious 
organizations, in an amount not to exceed $50 million annually. 
An amount of no less than $5,000,000 shall be reserved under 
this section, and small nongovernmental organizations may apply 
for these funds to be used for assistance in providing full and 
equal integrated access to individuals with disabilities in 
programs covered by the Charitable Choice Act of 2001.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
the portion of this legislation referred to the Committee does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 7, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 11, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 7, the Community 
Solutions Act of 2001.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Lanette J. 
Walker (for Federal spending), who can be reached at 226-2860, 
Erin Whitaker (for revenues), who can be reached at 226-2720, 
and Shelley Finlayson (for the state and local impact), who can 
be reached at 225-3220.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Member
H.R. 7--Community Solutions Act of 2001.

                                SUMMARY

    H.R. 7 would establish certain guidelines for religious 
organizations or their affiliates to receive Federal funds for 
the provision of social services and would make several changes 
to tax law concerning deductions for charitable contributions. 
The Joint Committee on Taxation (JCT) estimates that the 
revenue loss associated with this legislation would be almost 
$50 billion over the 2002-2006 period and more than $120 
billion over the 2002-2011 period. Because H.R. 7 would affect 
revenues, pay-as-you-go procedures would apply. The bill also 
would establish certain reporting requirements of the Secretary 
of the Treasury and authorize the appropriation of $1 million 
each year for the Secretary to comply with those requirements. 
Assuming the appropriation of the specified amounts, CBO 
estimates that implementing H.R. 7 would cost $5 million over 
the 2001-2006 period.
    Section 104 of H.R. 7 contains an intergovernmental mandate 
as defined in the Unfunded Mandates Reform Act (UMRA) because 
it would preempt certain state liability laws. CBO estimates 
that complying with this mandate would result in no direct 
costs to state governments and thus would not exceed the 
threshold established in that act ($56 million in 2001, 
adjusted annually for inflation). Title 2 of the bill also 
would establish new requirements and prohibitions on state and 
local governments as conditions of receiving Federal assistance 
under numerous Federal programs. This bill contains no new 
private-sector mandates as defined in UMRA.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 7 is shown in the 
following table. The cost of this legislation falls within 
budget function 800 (general government).

                           BASIS OF ESTIMATE

    For this estimate, CBO assumes that H.R. 7 will be enacted 
by the end of fiscal year 2001 and that the authorized amounts 
will be appropriated for each year.
Spending Subject to Appropriation
    Title III would establish tax credits for certain financial 
institutions that provide individual development accounts and 
would set certain requirements for the administration of the 
accounts and for the withdrawals from those accounts by 
individual taxpayers. The bill would authorize the 
appropriation of $1 million in each year over the 2002-2008 
period for the Secretary of the Treasury to monitor the cost 
and performance of the individual development account programs 
and prepare an annual report to the Congress. Assuming the 
appropriation of the specified amounts, CBO estimates that 
implementing H.R. 7 would cost $5 million over the 2002-2006 
period.
    H.R. 7 would establish certain guidelines for religious 
organizations or their affiliates to receive Federal funds for 
the provision of social services. It also would require that 
any governmental organization that contracts with a religious 
organization to provide social services guarantee that eligible 
individuals who object to a specific service provider on 
religious grounds be directed to a different provider of 
comparable services. Although in many areas the number of 
providers would be sufficient to ensure that alternative 
providers would be available, very small communities might find 
it difficult to comply with these requirements. Although the 
requirement to find an alternate provider could increase 
Federal costs in some cases by requiring the Federal Government 
to pay a portion of the costs of such alternate providers, CBO 
has been unable to obtain data to estimate any such costs. 
However, CBO does not anticipate that any resulting costs to 
the Federal Government would be substantial.
Revenues
    H.R. 7 would allow taxpayers who do not itemize their 
deductions to deduct their charitable contributions up to the 
amount of the standard deduction, and continue to allow such 
taxpayers to take the standard deduction. The bill would allow 
taxpayers to exclude from their gross income otherwise taxable 
withdrawals from individual retirement accounts if those 
withdrawals were made for certain charitable distributions. The 
bill also would amend charitable contribution rules to enhance 
deductions for donations of food for all taxpayers other than 
certain corporations, and would limit the liability of 
corporate entities for certain charitable contributions of 
equipment.
    H.R. 7 would establish tax credits for certain financial 
institutions that provide a program for certain accounts in 
which eligible individuals receive matching contributions from 
those institutions (individual development account program). 
The tax credit for these financial institutions would be equal 
to the amount of matching contributions made under the program 
plus amounts for accounts opened or maintained during the 
taxable year. It would set certain requirements for the 
administration of individual development accounts and for 
withdrawals from those accounts by individual taxpayers.
    The Joint Committee on Taxation estimates that the revenue 
loss associated with this legislation would be almost $50 
billion over the 2002-2006 period and more than $120 billion 
over the 2002-2011 period.

                      PAY-AS-YOU-GO CONSIDERATIONS

    The Balanced Budget and Emergency Deficit Control Act sets 
up pay-as-you-go procedures for legislation affecting direct 
spending or receipts. The net changes in governmental receipts 
that are subject to pay-as-you-go procedures are shown in the 
following table. For the purposes of enforcing pay-as-you-go 
procedures, only the effects in the current year, the budget 
year, and the succeeding 4 years are counted.

        ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

    CBO has reviewed section 104 and title 2 of H.R. 7 for 
intergovernmental mandates.
Mandates
    Section 104 contains an intergovernmental mandate as 
defined in UMRA because it would preempt inconsistent or more 
stringent state liability laws that hold businesses civilly 
liable for injuries or death that result from the use of 
equipment, facilities, or vehicles donated or loaned to 
nonprofit organizations. This preemption would be an 
intergovernmental mandate as defined in UMRA, but because the 
preemption is narrow and state governments would not be 
required to take any action, CBO estimates complying with this 
mandate would result in no direct costs. Thus, the threshold 
established in UMRA ($56 million in 2001, adjusted annually for 
inflation) would not be exceeded.
Other Impacts
    Title 2 would establish new requirements and prohibitions 
on how state and local governments receive and use Federal 
funds under numerous Federal programs. Such programs include 
anything related to hunger relief activities, Federal housing 
under the Community Development Block Grant Program, prevention 
of domestic violence under the Child Abuse Prevention and 
Treatment Act, and services for the elderly under the Older 
Americans Act. Specifically, title 2 would require state and 
local governments to consider religious organizations on the 
same basis as other organizations to provide assistance under 
programs carried out using Federal funds.
    The bill also would require that the appropriate government 
entity notify applicants and recipients about provider options 
and provide, in a timely manner, an equivalent alternative from 
a nonreligious provider if a recipient objects to receiving 
services from a religious provider. In addition, state and 
local governments that discriminate on the basis of religion in 
selecting service providers could be sued for injunctive 
relief. All of those requirements are conditions of Federal 
assistance, and therefore, are not mandates under UMRA. 
However, those requirements could increase state and local 
costs to administer numerous Federal programs. In particular, 
some small communities could find it difficult or costly to 
comply with the alternate provider requirements. CBO does not 
have sufficient information to estimate the aggregate costs 
nationwide.

                 ESTIMATED IMPACT ON THE PRIVATE SECTOR

    This bill contains no new private-sector mandates as 
defined in UMRA.

                         ESTIMATE PREPARED BY:

Federal Spending: Lanette J. Walker (226-2860)
Federal Revenues: Erin Whitaker (226-2720)
Impact on State, Local, and Tribal Governments: Shelley 
    Finlayson (225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2960)

                         ESTIMATE APPROVED BY:

Peter H. Fontaine
Deputy Assistant Director for Budget Analysis
G. Thomas Woodward
Assistant Director for Tax Analysis Division

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clauses 1, 3 and 18 
of the Constitution.

               Section-by-Section Analysis and Discussion

 Section 104 of Title I--Charitable Donations Liability Reform for In-
                      Kind Corporate Contributions

Subsection (a)--Definitions
    This subsection defines the terms aircraft, business 
entity, equipment, facility, gross negligence, intentional 
misconduct, motor vehicle, nonprofit organization, and State, 
as used in section 104 of title I of H.R. 7.
Subsection (b)--Liability
    Subsection (b) applies with respect to civil liability 
under Federal and State law. Subsection (b) provides that, 
subject to subsection (c), a business entity shall not be 
subject to civil liability relating to any injury or death that 
results from the use of equipment donated by that business 
entity to a nonprofit organization. Businesses donating 
facilities to nonprofit organizations shall not be subject to 
civil liability relating to any injury or death occurring at 
the facility if the use occurs outside of the scope of business 
of the business entity, such injury or death occurs during a 
period that such facility is used by the nonprofit 
organization, and the business entity authorized the use of 
such facility by the nonprofit organization. Businesses shall 
not be subject to civil liability relating to any injury or 
death occurring as a result of the operation of aircraft or a 
motor vehicle of a business entity loaned to a nonprofit 
organization for use outside the scope of business of the 
business entity, if such injury or death occurs during a period 
that such motor vehicle or aircraft is used by a nonprofit 
organization, and the business entity authorized the use by the 
nonprofit organization of motor vehicle or aircraft that 
resulted in the injury or death.
Subsection (c)--Exceptions
    Subsection (c) provides that subsection (b) shall not apply 
to an injury or death that results from an act or omission of a 
business entity that constitutes gross negligence or 
intentional misconduct.
Subsection (d)--Superceding Provision
    Subsection (d) provides that, subject to subsection (e), 
this title preempts the laws of any State to the extent that 
such laws are inconsistent with this title, except that this 
title shall not preempt any State law that provides additional 
protection for a business entity for an injury or death 
described in a paragraph of subsection (b) with respect to 
which the conditions specified in such paragraph apply. 
Subsection (d) also provides that nothing in this title shall 
be construed to supersede any Federal or State health or safety 
law.
Subsection (e)--Election of State Regarding Nonapplicability
    Subsection (e) provides that a provision of this title 
shall not apply to any civil action in a State court against a 
business entity in which all parties are citizens of the State 
if such State enacts a statute citing the authority of this 
section, declaring the election of such State that such 
provision shall not apply to such civil action in the State, 
and containing no other provisions.
Subsection (f)--Effective Date
    Subsection (f) provides that this section shall apply to 
injuries and deaths resulting therefrom and occurring on or 
after the date of the enactment of this act.

   Section 201 of Title II of H.R. 7--Expansion of Charitable Choice

Subsection (a)--Short Title
    Subsection (a) provides that this section may be cited as 
the Charitable Choice Act of 2001.
Subsection (b)--Purposes
    Subsection (b) provides that the purposes of the Charitable 
Choice Act of 2001 are to enable assistance to be provided to 
individuals and families in need in the most effective and 
efficient manner; to supplement the nation's social service 
capacity by facilitating the entry of new, and the expansion of 
existing, efforts by religious and other community 
organizations in the administration and distribution of 
Government assistance under the covered Government programs; to 
prohibit discrimination against religious organizations on the 
basis of religion in the administration and distribution of 
Government assistance under such programs; to allow religious 
organizations to participate in the administration and 
distribution of such assistance without impairing the religious 
character and autonomy of such organizations; and to protect 
the religious freedom of individuals and families in need who 
are eligible for Government assistance, including expanding the 
possibility of their being able to choose to receive services 
from a religious organization providing such assistance.
Subsection (c)--Religious Organizations Included as Providers, 
        Disclaimers
    Subsection (c) provides that for any covered program that 
is carried out by the Federal Government, or by a State or 
local government with Federal funds, the Government shall 
consider, on the same basis as other non-governmental 
organizations, religious organizations to provide the 
assistance under the program, and the program shall be 
implemented in a manner that is consistent with the 
Establishment Clause and the Free Exercise Clause of the First 
Amendment to the Constitution. It also provides that neither 
the Federal Government, nor a State or local government 
receiving funds under a covered program, shall discriminate 
against an organization that provides assistance under, or 
applies to provide assistance under, such program on the basis 
that the organization is religious or has a religious 
character. Subsection (c) also makes clear that Federal, State, 
or local government funds or other assistance that is received 
by a religious organization for the provision of services under 
this section constitutes aid to individuals and families in 
need, the ultimate beneficiaries of such services, and not 
support for religion or the organization's religious beliefs or 
practices, and that the receipt by a religious organization of 
Federal, State, or local government funds or other assistance 
under this section is not an endorsement by the Government of 
religion or of the organization's religious beliefs or 
practices. Subsection (c) defines the covered programs as those 
that involve activities carried out using Federal funds and 
that are related to the prevention and treatment of juvenile 
delinquency and the improvement of the juvenile justice system, 
including programs funded under the Juvenile Justice and 
Delinquency Prevention Act of 1974; related to the prevention 
of crime and assistance to crime victims and offenders' 
families, including programs funded under title I of the 
Omnibus Crime Control and Safe Streets Act of 1968; related to 
the provision of assistance under Federal housing statutes, 
including the Community Development Block Grant Program 
established under title I of the Housing and Community 
Development Act of 1974; under subtitle B or D of title I of 
the Workforce Investment Act of 1998; under the Older Americans 
Act of 1965; related to the intervention in and prevention of 
domestic violence, including programs under the Child Abuse and 
Prevention and Treatment Act or the Family Violence Prevention 
and Services Act; related to hunger relief activities; under 
the Job Access and Reverse Commute grant program established 
under section 3037 of the Federal Transit Act of 1998; or that 
involve activities to assist students in obtaining the 
recognized equivalents of secondary school diplomas and 
activities relating to non-school hours programs, including 
programs under chapter 3 of subtitle A of title II of the 
Workforce Investment Act of 1998 or part I of title X of the 
Elementary and Secondary Education Act; but not if they include 
activities carried out under Federal programs providing 
education to children eligible to attend elementary schools or 
secondary schools, as defined in section 14101 of the 
Elementary and Secondary Education Act of 1965.
Subsection (d)--Organizational Character and Autonomy
    Subsection (d) provides that a religious organization that 
provides assistance under a covered program shall have the 
right to retain its autonomy from Federal, State, and local 
governments, including such organization's control over the 
definition, development, practice, and expression of its 
religious beliefs. Neither the Federal Government, nor a State 
or local government with Federal funds, shall require a 
religious organization, in order to be eligible to provide 
assistance under a covered program, to alter its form of 
internal governance or provisions in its charter documents or 
to remove religious art, icons, scripture, or other symbols, or 
to change its name, because such symbols or names are of a 
religious character.
Subsection (e)--Employment Practices
    Subsection (e) provides that a religious organization's 
exemption provided under section 702 of the Civil Rights Act of 
1964 regarding employment practices shall not be affected by 
its participation in, or receipt of funds from, covered 
programs, and any provision in such programs that is 
inconsistent with, or would diminish, the exercise of an 
organization's autonomy recognized in section 702 or in this 
section shall have no effect. The duties of religious 
organizations not to discriminate based on race, color, sex, 
and national origin, from which religious organizations are not 
exempt under title VII, are retained.
Subsection (f)--Effect on Other Laws
    Subsection (f) provides that nothing in this section alters 
the duty of a religious organization receiving assistance or 
providing services under a covered program to comply with the 
nondiscrimination provisions in title VI of the Civil Rights 
Act of 1964, title IX of the Education Amendments of 1972, 
section 504 of the Rehabilitation Act of 1973, and the Age 
Discrimination Act of 1975.
Subsection (g)--Rights of Beneficiaries of Assistance
    Subsection (g) provides that if a beneficiary has an 
objection to the religious character of the organization from 
which the individual receives, or would receive, assistance 
funded under any covered program, the appropriate Federal, 
State, or local governmental entity shall provide to such 
individual within a reasonable period of time after the date of 
such objection, assistance that is an alternative that is 
accessible to the individual and unobjectionable to the 
individual on religious grounds and has a value that is not 
less than the value of the assistance that the individual would 
have received from such organization. The appropriate Federal, 
State, or local governmental entity shall guarantee that notice 
is provided to the beneficiaries of their rights under this 
section.
Subsection (h)--Nondiscrimination against Beneficiaries
    Subsection (h) provides that a religious organization 
providing assistance through a grant or cooperative agreement 
under a covered program shall not discriminate, in carrying out 
the program, against a beneficiary on the basis of religion, a 
religious belief, or a refusal to hold a religious belief. A 
religious organization providing assistance through a voucher, 
certificate, or other form of indirect assistance under a 
covered program shall not deny a beneficiary admission into 
such program on the basis of religion, a religious belief, or a 
refusal to hold a religious belief.
Subsection (i)--Accountability
    Subsection (i) provides that a religious organization 
providing assistance under any covered program shall be subject 
to the same regulations as other non-governmental organizations 
to account, in accord with generally accepted accounting 
principles, for the use of such funds and its performance of 
such programs. A religious organization providing assistance 
through a grant or cooperative agreement under a covered 
program shall segregate Government funds provided under such 
program into a separate account or accounts, and only the 
separate accounts consisting of funds from the Government shall 
be subject to audit by the Government. A religious organization 
providing assistance through a form of indirect assistance 
under a covered program may segregate Government funds provided 
under such program into a separate account or accounts and, if 
such funds are so segregated, only the separate accounts 
consisting of funds from the Government shall be subject to 
audit by the Government. Subsection (i) further requires a 
religious organization providing services under any covered 
program to conduct annually a self audit for compliance with 
its duties under this section and to submit a copy of the self 
audit to the appropriate Federal, State, or local government 
agency, along with a plan to timely correct variances, if any, 
identified in the self audit.
Subsection (j)--Limitations on Use of Funds; Voluntariness
    Subsection (j) provides that no funds provided through a 
grant or cooperative agreement to a religious organization to 
provide assistance under any covered program shall be expended 
for sectarian instruction, worship, or proselytization. If the 
religious organization offers such an activity, it shall be 
voluntary for the individuals receiving services and offered 
separate from the program funded under subsection (c)(4). A 
certificate shall be separately signed by religious 
organizations, and filed with the Government agency that 
disburses the funds, certifying that the organization is aware 
of and will comply with this subsection. Noncompliance with the 
certificate is a violation of the grant or cooperative 
agreement and shall be enforced in the same manner as other 
breaches of a grant or cooperative agreement.
Subsection (k)--Effect on State and Local Funds
    Subsection (k) provides that if a State or local government 
contributes State or local funds to carry out a covered 
program, the State or local government may segregate the State 
or local funds from the Federal funds provided to carry out the 
program or may commingle the State or local funds with the 
Federal funds. If the State or local government commingles the 
State or local funds, the provisions of this section shall 
apply to the commingled funds in the same manner, and to the 
same extent, as the provisions apply to the Federal funds.
Subsection (l)--Indirect Assistance
    Subsection (l) provides that, when consistent with the 
purpose of a covered program, the Secretary of the department 
administering the program may direct the disbursement of some 
or all of the funds, if determined by the Secretary to be 
feasible and efficient, in the form of indirect assistance. 
Subsection (l) defines indirect assistance as assistance in 
which an organization receiving funds receives such funds only 
as a result of the choices of individual beneficiaries.
Subsection (m)--Treatment of Intermediate Grantors
    Subsection (m) provides that if a non-governmental 
organization, acting under a grant or other agreement with the 
Federal Government, or a State or local government with Federal 
funds, is given the authority under the agreement to select 
non-governmental organizations to provide assistance under a 
covered program, the intermediate grantor shall have the same 
duties under this section as the Government when selecting or 
otherwise dealing with subgrantors, but the intermediate 
grantor, if it is a religious organization, shall retain all 
other rights of a religious organization under this section.
Subsection (n)--Compliance
    Subsection (n) provides that a party alleging that the 
rights of the party under this section have been violated by a 
State or local government may bring a civil action for 
injunctive relief pursuant to section 1979 of the Revised 
Statutes against the State official or local government agency 
that has allegedly committed such violation. A party alleging 
that the rights of the party under this section have been 
violated by the Federal Government may bring a civil action for 
injunctive relief in Federal district court against the 
official or Government agency that has allegedly committed such 
violation.
Subsection (o)--Training and Technical Assistance for Small 
        Nongovernmental Organizations
    Subsection (o) provides that, from amounts made available 
to carry out the purposes of the Office of Justice Programs, 
funds are authorized to provide training and technical 
assistance, directly, or through grants or other arrangements, 
in procedures relating to potential application and 
participation in covered programs to small nongovernmental 
organizations, as determined by the Attorney General, including 
religious organizations, in an amount not to exceed $50 million 
annually. An amount of no less than $5,000,000 shall be 
reserved under this section, and small nongovernmental 
organizations may apply for these funds to be used for 
assistance in providing full and equal integrated access to 
individuals with disabilities in programs under this title. In 
giving out the assistance described in this subsection, 
priority shall be given to small nongovernmental organizations 
serving urban and rural communities.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
that portion of the bill within the jurisdiction of the 
Committee on the Judiciary, as reported, are shown as follows 
(new matter is printed in italics and existing law in which no 
change is proposed is shown in roman):

                 REVISED STATUTES OF THE UNITED STATES

           *       *       *       *       *       *       *
TITLE XXIV.--CIVIL RIGHTS.

           *       *       *       *       *       *       *

SEC. 1991. CHARITABLE CHOICE.

    (a) Short Title.--This section may be cited as the 
``Charitable Choice Act of 2001''.
    (b) Purposes.--The purposes of this section are--
            (1) to enable assistance to be provided to 
        individuals and families in need in the most effective 
        and efficient manner;
            (2) to supplement the Nation's social service 
        capacity by facilitating the entry of new, and the 
        expansion of existing, efforts by religious and other 
        community organizations in the administration and 
        distribution of government assistance under the 
        government programs described in subsection (c)(4);
            (3) to prohibit discrimination against religious 
        organizations on the basis of religion in the 
        administration and distribution of government 
        assistance under such programs;
            (4) to allow religious organizations to participate 
        in the administration and distribution of such 
        assistance without impairing the religious character 
        and autonomy of such organizations; and
            (5) to protect the religious freedom of individuals 
        and families in need who are eligible for government 
        assistance, including expanding the possibility of 
        their being able to choose to receive services from a 
        religious organization providing such assistance.
    (c) Religious Organizations Included as Providers; 
Disclaimers.--
            (1) In general.--
                    (A) Inclusion.--For any program described 
                in paragraph (4) that is carried out by the 
                Federal Government, or by a State or local 
                government with Federal funds, the government 
                shall consider, on the same basis as other 
                nongovernmental organizations, religious 
                organizations to provide the assistance under 
                the program, and the program shall be 
                implemented in a manner that is consistent with 
                the establishment clause and the free exercise 
                clause of the first amendment to the 
                Constitution.
                    (B) Discrimination prohibited.--Neither the 
                Federal Government, nor a State or local 
                government receiving funds under a program 
                described in paragraph (4), shall discriminate 
                against an organization that provides 
                assistance under, or applies to provide 
                assistance under, such program on the basis 
                that the organization is religious or has a 
                religious character.
            (2) Funds not aid to religion.--Federal, State, or 
        local government funds or other assistance that is 
        received by a religious organization for the provision 
        of services under this section constitutes aid to 
        individuals and families in need, the ultimate 
        beneficiaries of such services, and not support for 
        religion or the organization's religious beliefs or 
        practices. Notwithstanding the provisions in this 
        paragraph, title VI of the Civil Rights Act of 1964 (42 
        USC 2000d et seq.) shall apply to organizations 
        receiving assistance funded under any program described 
        in subsection (c)(4).
            (3) Funds not endorsement of religion.--The receipt 
        by a religious organization of Federal, State, or local 
        government funds or other assistance under this section 
        is not an endorsement by the government of religion or 
        of the organization's religious beliefs or practices.
            (4) Programs.--For purposes of this section, a 
        program is described in this paragraph--
                    (A) if it involves activities carried out 
                using Federal funds--
                            (i) related to the prevention and 
                        treatment of juvenile delinquency and 
                        the improvement of the juvenile justice 
                        system, including programs funded under 
                        the Juvenile Justice and Delinquency 
                        Prevention Act of 1974 (42 U.S.C. 5601 
                        et seq.);
                            (ii) related to the prevention of 
                        crime and assistance to crime victims 
                        and offenders' families, including 
                        programs funded under title I of the 
                        Omnibus Crime Control and Safe Streets 
                        Act of 1968 (42 U.S.C. 3701 et seq.);
                            (iii) related to the provision of 
                        assistance under Federal housing 
                        statutes, including the Community 
                        Development Block Grant Program 
                        established under title I of the 
                        Housing and Community Development Act 
                        of 1974 (42 U.S.C. 5301 et seq.);
                            (iv) under subtitle B or D of title 
                        I of the Workforce Investment Act of 
                        1998 (29 U.S.C. 2801 et seq.);
                            (v) under the Older Americans Act 
                        of 1965 (42 U.S.C. 3001 et seq.);
                            (vi) related to the intervention in 
                        and prevention of domestic violence, 
                        including programs under the Child 
                        Abuse Prevention and Treatment Act (42 
                        U.S.C. 5101 et seq.) or the Family 
                        Violence Prevention and Services Act 
                        (42 U.S.C. 10401 et seq.);
                            (vii) related to hunger relief 
                        activities; or
                            (viii) under the Job Access and 
                        Reverse Commute grant program 
                        established under section 3037 of the 
                        Federal Transit Act of 1998 (49 U.S.C. 
                        5309 note); or
                    (B)(i) if it involves activities to assist 
                students in obtaining the recognized 
                equivalents of secondary school diplomas and 
                activities relating to nonschool hours 
                programs, including programs under--
                            (I) chapter 3 of subtitle A of 
                        title II of the Workforce Investment 
                        Act of 1998 (Public Law 105-220); or
                            (II) part I of title X of the 
                        Elementary and Secondary Education Act 
                        (20 U.S.C. 6301 et seq.); and
                    (ii) except as provided in subparagraph (A) 
                and clause (i), does not include activities 
                carried out under Federal programs providing 
                education to children eligible to attend 
                elementary schools or secondary schools, as 
                defined in section 14101 of the Elementary and 
                Secondary Education Act of 1965 (20 U.S.C. 
                8801).
    (d) Organizational Character and Autonomy.--
            (1) In general.--A religious organization that 
        provides assistance under a program described in 
        subsection (c)(4) shall have the right to retain its 
        autonomy from Federal, State, and local governments, 
        including such organization's control over the 
        definition, development, practice, and expression of 
        its religious beliefs.
            (2) Additional safeguards.--Neither the Federal 
        Government, nor a State or local government with 
        Federal funds, shall require a religious organization, 
        in order to be eligible to provide assistance under a 
        program described in subsection (c)(4), to--
                    (A) alter its form of internal governance 
                or provisions in its charter documents; or
                    (B) remove religious art, icons, scripture, 
                or other symbols, or to change its name, 
                because such symbols or names are of a 
                religious character.
    (e) Employment Practices.--A religious organization's 
exemption provided under section 702 of the Civil Rights Act of 
1964 (42 U.S.C. 2000e-1) regarding employment practices shall 
not be affected by its participation in, or receipt of funds 
from, programs described in subsection (c)(4), and any 
provision in such programs that is inconsistent with or would 
diminish the exercise of an organization's autonomy recognized 
in section 702 or in this section shall have no effect. Nothing 
in this section alters the duty of a religious organization to 
comply with the nondiscrimination provisions of title VII of 
the Civil Rights Act of 1964 in the use of funds from programs 
described in subsection (c)(4).
    (f) Effect on Other Laws.--Nothing in this section shall 
alter the duty of a religious organization receiving assistance 
or providing services under any program described in subsection 
(c)(4) to comply with the nondiscrimination provisions in title 
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) 
(prohibiting discrimination on the basis of race, color, and 
national origin), title IX of the Education Amendments of 1972 
(20 U.S.C. 1681-1688) (prohibiting discrimination in education 
programs or activities on the basis of sex and visual 
impairment), section 504 of the Rehabilitation Act of 1973 (29 
U.S.C. 794) (prohibiting discrimination against otherwise 
qualified disabled individuals), and the Age Discrimination Act 
of 1975 (42 U.S.C. 6101-6107) (prohibiting discrimination on 
the basis of age).
    (g) Rights of Beneficiaries of Assistance.--
            (1) In general.--If an individual described in 
        paragraph (3) has an objection to the religious 
        character of the organization from which the individual 
        receives, or would receive, assistance funded under any 
        program described in subsection (c)(4), the appropriate 
        Federal, State, or local governmental entity shall 
        provide to such individual (if otherwise eligible for 
        such assistance) within a reasonable period of time 
        after the date of such objection, assistance that--
                    (A) is an alternative that is accessible to 
                the individual and unobjectionable to the 
                individual on religious grounds; and
                    (B) has a value that is not less than the 
                value of the assistance that the individual 
                would have received from such organization.
            (2) Notice.--The appropriate Federal, State, or 
        local governmental entity shall guarantee that notice 
        is provided to the individuals described in paragraph 
        (3) of the rights of such individuals under this 
        section.
            (3) Individual described.--An individual described 
        in this paragraph is an individual who receives or 
        applies for assistance under a program described in 
        subsection (c)(4).
    (h) Nondiscrimination Against Beneficiaries.--
            (1) Grants and cooperative agreements.--A religious 
        organization providing assistance through a grant or 
        cooperative agreement under a program described in 
        subsection (c)(4) shall not discriminate in carrying 
        out the program against an individual described in 
        subsection (g)(3) on the basis of religion, a religious 
        belief, or a refusal to hold a religious belief.
            (2) Indirect forms of assistance.--A religious 
        organization providing assistance through a voucher, 
        certificate, or other form of indirect assistance under 
        a program described in subsection (c)(4) shall not deny 
        an individual described in subsection (g)(3) admission 
        into such program on the basis of religion, a religious 
        belief, or a refusal to hold a religious belief.
    (i) Accountability.--
            (1) In general.--Except as provided in paragraphs 
        (2) and (3), a religious organization providing 
        assistance under any program described in subsection 
        (c)(4) shall be subject to the same regulations as 
        other nongovernmental organizations to account in 
        accord with generally accepted accounting principles 
        for the use of such funds and its performance of such 
        programs.
            (2) Limited audit.--
                    (A) Grants and cooperative agreements.--A 
                religious organization providing assistance 
                through a grant or cooperative agreement under 
                a program described in subsection (c)(4) shall 
                segregate government funds provided under such 
                program into a separate account or accounts. 
                Only the separate accounts consisting of funds 
                from the government shall be subject to audit 
                by the government.
                    (B) Indirect forms of assistance.--A 
                religious organization providing assistance 
                through a voucher, certificate, or other form 
                of indirect assistance under a program 
                described in subsection (c)(4) may segregate 
                government funds provided under such program 
                into a separate account or accounts. If such 
                funds are so segregated, then only the separate 
                accounts consisting of funds from the 
                government shall be subject to audit by the 
                government.
            (3) Self audit.--A religious organization providing 
        services under any program described in subsection 
        (c)(4) shall conduct annually a self audit for 
        compliance with its duties under this section and 
        submit a copy of the self audit to the appropriate 
        Federal, State, or local government agency, along with 
        a plan to timely correct variances, if any, identified 
        in the self audit.
    (j) Limitations on Use of Funds; Voluntariness.--No funds 
provided through a grant or cooperative agreement to a 
religious organization to provide assistance under any program 
described in subsection (c)(4) shall be expended for sectarian 
instruction, worship, or proselytization. If the religious 
organization offers such an activity, it shall be voluntary for 
the individuals receiving services and offered separate from 
the program funded under subsection (c)(4). A certificate shall 
be separately signed by religious organizations, and filed with 
the government agency that disburses the funds, certifying that 
the organization is aware of and will comply with this 
subsection.
    (k) Effect on State and Local Funds.--If a State or local 
government contributes State or local funds to carry out a 
program described in subsection (c)(4), the State or local 
government may segregate the State or local funds from the 
Federal funds provided to carry out the program or may 
commingle the State or local funds with the Federal funds. If 
the State or local government commingles the State or local 
funds, the provisions of this section shall apply to the 
commingled funds in the same manner, and to the same extent, as 
the provisions apply to the Federal funds.
    (l) Indirect Assistance.--When consistent with the purpose 
of a program described in subsection (c)(4), the Secretary of 
the department administering the program may direct the 
disbursement of some or all of the funds, if determined by the 
Secretary to be feasible and efficient, in the form of indirect 
assistance. For purposes of this section, ``indirect 
assistance'' constitutes assistance in which an organization 
receiving funds through a voucher, certificate, or other form 
of disbursement under this section receives such funding only 
as a result of the private choices of individual beneficiaries 
and no government endorsement of any particular religion, or of 
religion generally, occurs.
    (m) Treatment of Intermediate Grantors.--If a 
nongovernmental organization (referred to in this subsection as 
an ``intermediate grantor''), acting under a grant or other 
agreement with the Federal Government, or a State or local 
government with Federal funds, is given the authority under the 
agreement to select nongovernmental organizations to provide 
assistance under the programs described in subsection (c)(4), 
the intermediate grantor shall have the same duties under this 
section as the government when selecting or otherwise dealing 
with subgrantors, but the intermediate grantor, if it is a 
religious organization, shall retain all other rights of a 
religious organization under this section.
    (n) Compliance.--A party alleging that the rights of the 
party under this section have been violated by a State or local 
government may bring a civil action for injunctive relief 
pursuant to section 1979 against the State official or local 
government agency that has allegedly committed such violation. 
A party alleging that the rights of the party under this 
section have been violated by the Federal Government may bring 
a civil action for injunctive relief in Federal district court 
against the official or government agency that has allegedly 
committed such violation.
    (o) Training and Technical Assistance for Small 
Nongovernmental Organizations.--
            (1) In general.--From amounts made available to 
        carry out the purposes of the Office of Justice 
        Programs (including any component or unit thereof, 
        including the Office of Community Oriented Policing 
        Services), funds are authorized to provide training and 
        technical assistance, directly or through grants or 
        other arrangements, in procedures relating to potential 
        application and participation in programs identified in 
        subsection (c)(4) to small nongovernmental 
        organizations, as determined by the Attorney General, 
        including religious organizations, in an amount not to 
        exceed $50 million annually.
            (2) Types of assistance.--Such assistance may 
        include--
                    (A) assistance and information relative to 
                creating an organization described in section 
                501(c)(3) of the Internal Revenue Code of 1986 
                to operate identified programs;
                    (B) granting writing assistance which may 
                include workshops and reasonable guidance;
                    (C) information and referrals to other 
                nongovernmental organizations that provide 
                expertise in accounting, legal issues, tax 
                issues, program development, and a variety of 
                other organizational areas; and
                    (D) information and guidance on how to 
                comply with Federal nondiscrimination 
                provisions including, but not limited to, title 
                VI of the Civil Rights Act of 1964 (42 U.S.C. 
                2000d et seq.), title VII of the Civil Rights 
                Act of 1964 (42 U.S.C. 2000e et seq.), the Fair 
                Housing Act, as amended (42 U.S.C. 3601 et 
                seq.), title IX of the Education Amendments of 
                1972 (20 U.S.C. 1681-1688), section 504 of the 
                Rehabilitation Act of 1973 (29 U.S.C. 694), and 
                the Age Discrimination Act of 1975 (42 U.S.C. 
                6101-6107).
            (3) Reservation of funds.--An amount of no less 
        than $5,000,000 shall be reserved under this section. 
        Small nongovernmental organizations may apply for these 
        funds to be used for assistance in providing full and 
        equal integrated access to individuals with 
        disabilities in programs under this title.
            (4) Priority.--In giving out the assistance 
        described in this subsection, priority shall be given 
        to small nongovernmental organizations serving urban 
        and rural communities.

                     Committee Jurisdiction Letters

                           Markup Transcript

                            BUSINESS MEETING

                        THURSDAY, JUNE 28, 2001

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:35 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr., Chairman of the Committee, presiding.
    Chairman Sensenbrenner. The Committee will be in order. 
Without objection, the Chair has given the authority to grant 
or call recesses at any point in today's markup. A working 
quorum is present.
    Pursuant to notice, I now call up the bill H.R. 7, the 
Charitable Choice Act of 2001 for purposes of markup, and move 
its favorable recommendation to the House.
    Without objection, the bill will be considered as read and 
open to amendment at any point.
    [The bill, H.R. 7, follows:]
    
    
    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Ohio, Mr. Chabot, the Chairman of the Subcommittee on the 
Constitution for 5 minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    While the First Amendment to the Constitution provides that 
the government shall not establish a particular religion or 
religion over non-religion, the First Amendment also provides 
that the government shall not prohibit the free exercise of 
religion. Consequently, government must ensure that members of 
organizations seeking to take part in government programs 
designed to meet basic and universal human needs are not 
discriminated against because of their religious views.
    The simple principles of charitable choice, embedded in 
H.R. 7, the Community Solutions Act, which we're considering 
today, allow for the public funding of faith-based 
organizations that have demonstrated abilities to meet the 
basic needs of their neighbors in trouble, while also 
preserving the religious character of those organizations by 
allowing them to choose their staff, board members and methods. 
These principles also protect the rights of conscience of 
program beneficiaries by ensuring that alternative providers 
that are unobjectionable to them on religious grounds, are 
always available, and by prohibiting the use of Federal funds 
for sectarian worship, instruction of proselytizing. Charitable 
choice simply means equal access.
    Four existing charitable choice programs have been passed 
by Congress and signed into law by President Clinton, the first 
which was part of the 1996 Welfare Reform Act. These programs 
have benefited thousands of persons in need without raising 
constitutional concerns in their implementation.
    When the government takes so much from average citizens in 
taxes, little is left for those families to give to their local 
charities, including faith-based organizations. At the same 
time the government too often excludes out of hand faith-based 
organizations from the receipt of government funds, even when 
such organizations can help meet basic human needs most 
effectively, and in accordance with both the free exercise of 
religion and the establishment clause. Charitable choice 
programs seek to address this problem.
    The charitable choice principles in H.R. 7 recognize that 
it is wrong to assume that religious people can't be trusted to 
follow rules against using Federal funds for proselytizing 
activities, and on that basis deny them equal opportunities. 
The Supreme Court has long recognized that, and now the 
Congress should too.
    Charitable choice principles also recognize that people in 
need should have the benefit of the best social services 
available, whether the providers of those services are faith-
based or otherwise. That is the goal, helping the tens of 
thousands of America's people in need. We're considering today 
whether the legions of faith-based organizations in the inner 
cities and local communities can compete for Federal funds to 
help pay the heating bills in shelters for women victims of 
domestic violence, to help them pay for training materials 
teaching basic work skills, to help them feed the hungry, and 
to provide other social service to those that are most 
desperate among us.
    Some have tried to divert attention from the goal of 
helping people in need by raising the specter of federally-
funded discrimination. As the argument goes, religious 
organizations should not be allowed to maintain the religious 
character through hiring decisions if they receive Federal 
funds for the purpose of helping others. But the right of 
religious organizations to take religion into account when 
hiring staff has long been settled. That right is enshrined in 
the Civil Rights Act of 1964, and that right was upheld by 
unanimous Supreme Court, including Justice Brennan and Justice 
Marshall.
    As discussions of charitable choice programs have 
progressed, however, some opponents have objected that Federal 
funds should not be allowed to find their way to organizations 
that maintain their religious character through hiring 
decisions. That is truly a radical notion. It is not a recipe 
for maintaining the status quo, but rather, a recipe for 
withdrawing Federal funds from, among other things, religiously 
affiliated colleges and universities, religiously affiliated 
hospitals, and religiously affiliated day care centers, all of 
which already receive Federal funds through a variety of 
Federal programs, and all of which are essential parts of our 
education, health care and child care systems.
    The Constitution does not require rolling back essential 
services. Indeed, the Constitution and the free exercise clause 
allow Congress to improve essential services by letting 
religious organizations compete on an equal basis for Federal 
social service funds, which they will use to help the poor and 
the helpless and not to proselytize.
    H.R. 7 makes clear that you can't discriminate against 
faith-based organizations, and that what they believe should 
have no bearing on how they are evaluated regarding what they 
can do. The Supreme Court has made clear that religious people 
should be trusted to follow rules against using Federal funds 
to proselytize, and it's time that Congress did the same.
    Yield back the balance of my time.
    Mr. Berman. Would the gentleman yield?
    Mr. Chabot. I'm out of time.
    Chairman Sensenbrenner. The time of the gentleman has 
expired. Who wishes to give the statement for the minority in 
the absence of Mr. Conyers? The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you, Mr. Chairman.
    Today we wade into an area of the law which is, I think 
fair to say, in great flux. Certainly the split opinion by the 
Supreme Court in Mitchell v. Helms demonstrates just how 
closely divided the Justices are in the very difficult issues 
which surround entanglement between government and religion. 
While my sympathies are well known to my colleagues, the 
difficult issues with which the Court has been grappling, how 
much religious activity should be permitted in a publicly 
funded program? Which programs should be allowed to 
participate? What are the rights of program participants and 
employees vis-a-vis the publicly funded benefit? How much 
separation, if at all, should there be between the clearly 
sectarian and the clearly secular functions of an agency, are 
not trivial. We would do a disservice to the Nation if we 
simply wished these difficulties away and pretend that they did 
not exist.
    I think Chairman Sensenbrenner is to be commended for 
standing up to what can only be described as tremendous 
pressure from the White House and from his own leadership, to 
lay aside his concerns about these important questions and 
simply push the bill along.
    While I have many reservations about the language we have 
before us, indeed I think some changes made in the substitute 
are changes for the worse, and the risks this legislation poses 
to religious liberty, I do not think our disagreement should 
obscure the Chairman's very real efforts to begin to get this 
right.
    I hope today's markup will be a first step. I would note 
that Senator Sentorum and former Senator Wolford have assembled 
a group from many different viewpoints on this issue to try to 
find some common ground. I will be joining that effort, and I 
would invite the Chairman to view today's markup and his 
efforts leading up to today as a first step, and I would hope 
the Chairman would join that effort also, to find common 
ground.
    Religion should not divide this Nation. If anything, our 
common commitment to the freedom of conscience should be the 
one fundamental principle which unites all of us. I recall that 
when I was first elected to the Congress, one of my first 
efforts was to work for passage of the Religious Freedom 
Restoration Act, and last year for the Religious Land Use and 
Institutionalized Persons Act. Those efforts united everyone 
from the ACLU to the National Association of Evangelicals, from 
the Religious Action Center of Reform Judaism to the Christian 
Legal Society. In fact, many of the players in that legislation 
have been before the Constitution Subcommittee to present very 
differing views on this proposal.
    I think certain principles are applicable. Certainly 
Madison's view is expressed in his memorial in remonstrance, 
that it is a violation of individual religious liberty to 
compel one citizen to support another faith is still valid, 
whether it applies to the hiring of teachers of religious 
instruction in Madison's time, or to funding other pervasively 
sectarian activities as Justice Thomas and three other Justices 
would permit today.
    Mr. Chairman, under current law, pervasively sectarian 
institutions are perfectly free to compete for Federal grants 
for social programs on the same basis as non-sectarian 
institutions. They simply have to form a 501(c)(3) not-for-
profit affiliate in today's law. That provision that they must 
fund a 501(c)(3) is designed to protect the sectarian 
organization, to protect the church from government intrusion 
and government audits and government regulation. This bill, 
unfortunately and very unwisely, would repeal that requirement 
and would allow the funding directly into church funds, which 
would lead to government audits of those funds and of the 
church's funds with which they are commingled unavoidably. That 
is a very unfortunate step which will lead to government 
regulation of churches and other institutions and is the first 
step on a very bad road.
    Secondly, Mr. Chairman, this bill would extend the 
exemptions from the Civil Rights Act to activities involving 
the use of government funds, and under this bill, there would 
be enabled to be discrimination on the basis of religion and 
some other bases in the use of Federal funding, and I do not 
believe that if a church is running a soup kitchen for poor 
people, that they should be permitted to discriminate on a 
religious or other basis, in who can serve out the soup or who 
can drink the soup.
    Number three, this bill would permit the proselytization 
with government funds. It says the funds may not be used for 
proselytization, but it certainly does not preclude the 
church's funds from being commingled and used for 
proselytization in a program which is federally funded.
    I think these are three fundamental breaches of the wall of 
separation of church and state.
    Finally, on the subject of religious autonomy, religious 
institutions are being coaxed into a devil's bargain. There are 
precious few constitutional restrictions of the rules 
government may now apply to religious institutions. The day 
will come, when having permitted excessive entanglement between 
religious institutions and the government, there will be no 
protection for religion when government flexes its muscle. I do 
not understand why some of my conservative colleagues suddenly 
have so much trust in big government that they are willing to 
take such a phenomenal risk with freedom of religion.
    I thank the Chairman and I yield back.
    Chairman Sensenbrenner. Without objection, all Members' 
opening statements will appear in the record at this point, and 
I have an amendment at the desk.
    [The statement of Ms. Jackson Lee follows:]
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress From the State of Texas
    I want to thank Chairman Sensenbrenner and Ranking Member Conyers 
for convening this important markup on H.R. 7, ``the Charitable Choice 
Act of 2001.'' It is imperative that the Committee gives careful 
consideration to this legislation; we must evaluate its merits closely.
    The basic elements of charitable choice, as found in 104 of the 
1996 ``welfare reform'' law, provide that if a State administration 
Temporary Assistance for Needy Families (TANF) block granted programs, 
or Welfare-to-Work grants under TANF, the State may not, in the 
distribution of such funding or contracts discriminate against any 
religious organization. As a general matter, let me just say that we 
are confronting serious civil rights concerns with respect to 
government involvement in religion.
    The legislation before this committee clearly raises some serious 
constitutional issues which must be addressed. The limited proposed 
changes put forward by the Bush administration do little to the 
constitutional and civil rights problems that exist within this 
proposal. The Charitable Choice provisions of this bill remain in 
conflict with the Establishment Clause of the First Amendment and would 
possibly undermine nearly sixty years of federal civil rights 
protections against most uses of federal money by persons engaged in 
employment discrimination based on religion.
    Unfortunately, the charges incorporated into H.R. 7 are 
counterproductive or harmful and do little to change or address the 
issues even said he was committed to addressing. In short, the bill 
still allows federal funds to flow directly to religiously 
organizations and still in direct violation of the Establishment 
Clause. Although the U.S. Supreme Court has allowed religiously 
affiliated organizations to provide government-funded services in a 
secular manner, it has never allowed religious institutions to receive 
direct government aid. I am concerned that H.R. 7 would mandate that 
federal, State, and local governments award federally funded contracts 
to any religious organization, on the same basis as any other 
organization, without ``impairing the religious character of the 
organizations.'' Given that no changes were proposed to this problem, 
H.R. 7 still limits the availability of a State to even question 
whether or not it will be funded a sectarian or secular program, Mr. 
Chairman.
    Further, this bill attempts to address the employment 
discrimination problem in H.R. 7 by removing language that would allow 
religious organizations to require beneficiaries to ``adhere to the 
religious beliefs and practices of the organization.'' However, the 
``religious practices'' language does not change the fundamental civil 
rights problem with this provision. H.R. 7 would still put the 
government squarely in the business of funding discrimination. We must 
remember that the provision provides that religious organizations may 
retain their right under Title VII of the Civil Rights Act of 1964 to 
discriminate in employment by preferring members of their own religion.
    Allowing federal funds to go to persons who discriminate based on 
religion undermines core civil rights protections that date back to the 
time of President Franklin Delano Roosevelt. Although current law 
allows religious organizations to use their own private money to prefer 
members of their own religion, they generally cannot use federal funds 
to discriminate. Congress and the Executive Branch have further 
extended the prohibition on federally funded religious discrimination 
by adding statutes and regulations affecting a wide range of federal 
contracts and grants programs. For sixty years, the basic principle has 
been that the federal government should not be financing religious 
discrimination against others.
    Finally, while the Manager's Amendment deleted language allowing 
religious organizations to safeguard their ``religious practices'' the 
manager's amendment added other equally problematic new language 
striking out any provision (such as discrimination requirements) in any 
other government program which may be `inconsistent with'' or ``would 
diminish'' the religious organization's autonomy. This is all 
apparently quite confusing.
    Mr. Chairman, we must proceed very carefully.

    [The statement of Mr. Barr follows:]
   Prepared Statement of the Honorable Bob Barr, a Representative in 
                   Congress From the State of Georgia
    Mr. Chairman, the practice of engaging faith-based organizations in 
the delivery of social services using government funds is not new. This 
has been happening at the State and local level for years. Religious-
oriented and faith-based programs are provided funds to do what local 
governments do not have the capacity to do--provide a full spectrum of 
successful community services. It is time the federal government follow 
the lead of our State legislatures and local governments, and put the 
best organizations to work for the betterment of our communities.
    H.R. 7, the Charitable Choice Act of 2001, will significantly 
impact the degree to which prevention, treatment, and other social 
service programs reach and rehabilitate those most in need. The faith 
community has achieved results in ways in which other programs have 
not, mainly due to unique element of faith and how it impacts the 
structure and success of these programs. The Congress needs to support 
and encourage such programs that work, that is why I am pleased to be a 
co-sponsor of Congressman J.C. Watts' bill, H.R. 7.
    Mr. Chairman, I'd like to address the concern being raised by 
opponents of the legislation who charge that, on enactment of H.R. 7, 
the federal government will begin discriminating against certain 
religions that aren't officially ``approved'' or ``condoned'' by 
government bureaucrats. Opponenets also charge this legislation will 
result in the federal government being in a position of supporting, or 
even establishing, a religion or religious preference. These charges 
are completely unfounded.
    Charitable Choice is not a set-aside program; it is merely an 
opportunity to open up the system of delivery of social services, so 
that all groups meeting the prescribed performance requirements are 
allowed to compete fairly. If anything, under current law and practice, 
the government is practicing a form of discrimination by not allowing 
sectarian organizations to compete for government funds available to 
non-sectarian groups. Under this bill, any organization--religious or 
otherwise--would be able to compete, with the sole focus being on which 
groups best deliver services to the most needy in our communities. The 
religious affiliation or nature of an organization should not preclude 
it from receiving government funds, if such organizations successfully 
deliver needed services and so long as they meet the objective criteria 
the law requires.
    Recently, I participated in a panel discussion on Faith-Based 
Initiatives, as a part of the President's Faith-Based Summit. The on-
going goal of the summit is to establish networks of mutual support as 
we work to revitalize communities across the nation through faith-based 
and locally controlled initiatives.
    Government must begin to view faith-based and community 
organizations as partners, not competitors--or worse, as some would 
have it, adversaries--in the fight against drug usage, poverty, teen 
pregnancy, and other social ills. There are millions across the country 
who need help. Under President Bush's initiative, as reflected in this 
legislation, faith-based organizations can now play a vital and needed 
in role in providing that help. H.R. 7 will make a significant and 
needed impact on improving the lives of all members of the community, 
and I strongly support its passage.

    Chairman Sensenbrenner. The clerk will report the----
    Mr. Conyers. Hold it, Mr. Chairman, hold it. You missed----
    The Clerk. Amendment to H.R. 7, offered by Mr. 
Sensenbrenner----
    Mr. Conyers. Hold it, Mr. Chairman. You missed the Ranking 
Member.
    Chairman Sensenbrenner. I had thought that the gentleman 
from New York had given the minority statement, but if the 
gentleman from Michigan wishes to say something, he is 
recognized for 5 minutes.
    Mr. Conyers. Thank you, sir. While I support the gentleman 
from New York entirely, I had prepared my own set of opening 
remark statements.
    And it will only take a moment or two, because we all agree 
at the outset that religious organizations play a positive role 
in our communities, and we all want them to play a large and 
positive role in the lives of our children. That's a good 
starting point.
    Now, there are some, however, that believe we can 
accomplish this goal by government mandate. Some believe we can 
have the best of both worlds, better social services, and more 
religion, without intruding on religious prerogatives. But what 
they fail to grasp is that we pass new laws--if we pass new 
laws requiring that our government begin funding religious--
pervasively religious programs, we'll be sacrificing two of our 
Nation's most fundamental principles of justice and liberty. We 
will be saying that it's okay to use taxpayer funds to fund 
employment discrimination.
    Now at this stage and time in the development of our Nation 
toward improved policies of race, do we really want to say 
that? By taking the religious exemption to the civil rights 
laws and extending it to charitable choice, as the measure 
before us unfortunately does, we'll be saying it's acceptable 
to openly discriminate against gays, or divorced persons, or 
unmarried pregnant women, or women who have had an abortion, or 
persons who use birth control, or even persons who favor 
reproductive rights, and against individuals married to a 
member of another race, or any manner of unusual personal 
sentiments that one may be entitled to have, but that we don't 
want grafted into the law.
    And so that's why all the civil rights groups strongly have 
reservations about the measure before us. It has nothing to do 
with anything against religion, but they believe we do nothing 
to help poor and needy individuals if we indeed tolerate more 
discrimination. By approving the expenditure of government 
funds for pervasively-sectarian programs, this measure 
wittingly opens a very large hole in the wall separating church 
and state, and I say this because the safeguards included in 
this legislation are frankly largely illusory. The non-
sectarian alternative provided in the bill, for openers, is 
totally unfunded. The language specifying that the religious 
aspects of government funded programs ought to be voluntary and 
offered separately will be impossible to enforce. The audit 
requirements will be of little or no benefit since they are 
self imposed and not subject to government review or any other 
outside review. So because our First Amendment, we have the 
most carefully and strongly, a very diverse Nation, maybe in 
the world. Our country has more religious diversity than 
anywhere else on the planet. Dr. Martin Luther King, Jr. once 
said in America, that the church is not the master of the 
State, nor is it the servant of the State, but it is the 
conscience of the State. My fear is that under this bill, 
religion may become the servant of the State rather than its 
conscience.
    So if all of us gathered here really want to do something 
to help religion, you might try to include the proposed 
charitable tax deductions in their $2 trillion tax bill, which 
was so heavily slanted toward the wealthy. If you want to do 
something to improve social services, then we might consider 
increasing funding for drug treatment, for literacy, for child 
welfare. If you want to help our kids and our urban areas, we 
might try to figure a better way to rebuild our crumbling 
schools. And so I urge that we carefully and soberly consider 
the alternatives that will be presented before us during this 
discussion.
    And I thank the Chairman very much.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The Chair would like to announce what the schedule will be 
for today. We are told that at approximately noon there will be 
votes on several amendments and a recommittal and passage vote 
on the Energy and Water Appropriations Bill currently pending 
on the floor. At that point in time, it is the intention of the 
Chair to adjourn for lunch, and we will come back either at 
1:30 or 2:00 o'clock, depending upon when these votes are 
called.
    It is also the intention of the Chair not to adjourn this 
Committee until we have a final vote on the motion to report 
the bill favorably, so I would urge the Members to be prepared 
to stick around because we're going to get this done today, one 
way or the other.
    The Chair has an amendment at the desk and the clerk will 
report the amendment.
    The Clerk. Amendment to H.R. 7 offered by Mr. 
Sensenbrenner.
    Chairman Sensenbrenner. Will the clerk pull the microphone 
closer to her?
    The Clerk. Amendment to H.R. 7 offered by Mr. 
Sensenbrenner. Strike section 104 and insert the following.
    Chairman Sensenbrenner. Without objection, the amendment 
will be considered as read and open for amendment at any point.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. And the Chair recognizes himself.
    The proposed changes embodied in my amendment clarify 
current provisions and improve the legislation by refining the 
bill in ways that further protect it from constitutional 
challenge. I realize that some entered the room today intending 
to oppose reporting H.R. 7 favorably. However, I encourage all 
of you to consider the important changes made by this 
amendment, and to perhaps re-examine your position on the 
entire bill. I sincerely believe this amendment firms up the 
constitutionality of the bill and expands the options of 
individuals to receive government services from the type of 
organization they themselves are most comfortable with.
    To begin with, this amendment would make it clear that when 
a beneficiary has an objection to the religious nature of a 
provider, an alternative provider is required that is 
unobjectionable to the beneficiary on religious grounds, that 
the alternative provider need not be non-religious in 
character. The same requirement appears charitable choice 
provisions of the 1996 Welfare Reform Act. If, of course, a 
beneficiary objects to being served by any faith-based 
organization, under this amendment, such a beneficiary would be 
guaranteed a secular alternative.
    Existing charitable choice law contains an explicit 
protection of a beneficiary's right to refuse to actively 
participate in a religious practice, thereby ensuring the 
beneficiary's right to avoid any, and I mean any, unwanted 
sectarian practices. This protection is in 42 U.S.C. 204a(g), 
part of the Welfare Reform Act of 1996. Such a provision makes 
clear that participation, if any, in a sectarian practice is 
voluntary and noncompulsory. Further, Justices O'Connor and 
Breyer, in the Helms case, require that no government funds be 
diverted to religious indoctrination. Therefore, religious 
organizations receiving direct funding will have to separate 
their social service program from sectarian practices. If any 
part of a faith-based organization's activities involve 
religious indoctrination, such activities must be set apart 
from the government funded program, and hence, privately 
funded.
    For example, a welfare-to-work program operated by a church 
in Philadelphia illustrates how this can be done successfully. 
Teachers in the program conduct readiness-to-work classes in 
the church basement weekdays pursuant to a government grant. 
During a free time period, the pastor of the church holds a 
voluntary Bible study in her office up on the ground floor, 
separate from where the social services activities take place. 
The sectarian instruction is privately funded and separated in 
both time and location from the welfare-to-work classes. And no 
one is required to participate in the Bible study in order to 
complete the readiness-to-work program.
    The Department of Justice recommends that H.R. 7 be 
strengthened by amending Subsection (i) by including an even 
clearer statement of the voluntariness requirement, namely 
that, quote, ``If the religious organization offers sectarian 
instruction, worship or proselytization, it shall be voluntary 
for the individuals receiving services and offered separate 
from the program funded under this subpart.'' Unquote. Also the 
amendment includes a requirement that a certificate shall be 
separately signed by religious organizations and filed with the 
government agency that disburses the funds, certifying that the 
organization is aware of and will take care to comply with this 
subsection.
    The amendment makes clear that a failure to comply with the 
terms of the certification may result in the withholding of 
funds and the suspension or termination of the agreement. The 
amendment also makes clear that volunteers cannot come in to a 
federally-funded program and proselytize or otherwise engage in 
sectarian activity. The amendment also includes Subsection 
(h)(1), to permit the review of the performance of the program 
itself and not just its fiscal aspect. This amendment is needed 
to prevent an unconstitutional preference for faith-based 
organizations as secular programs are subject to both types of 
review, meaning performance review and fiscal review.
    I ask unanimous consent for four additional minutes.
    Also, nothing in H.R. 7 prevents officials from 
implementing reasonable and prudent procurement regulations, 
and it is not uncommon for program policies to require 
providers to conduct 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. This amendment, which is a good suggestion 
from the Department of Justice, would codify such a self-audit 
requirement for faith-based organizations receiving Federal 
funds, and it would be prudent to add this additional provision 
to H.R. 7.
    One of the most important guarantees of institutional 
autonomy is a faith-based organization's ability to select its 
own staff in a manner that takes into account 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 laws 
specifically provide that faith-based organizations retain this 
limited exemption from Federal employment nondiscrimination 
laws.
    The amendment would replace existing language in H.R. 7 
with the same language used in the 1996 Welfare Reform Act, 
which was signed into law by President Clinton, with an 
additional clause, making it clear that contrary provisions in 
Federal programs covered by H.R. 7 have no force in effect. 
This additional clause was not necessary in the '96 Welfare 
Reform Act because it codified charitable choice rules for a 
new program, whereas H.R. 7 covers already existing programs 
that may have conflicting provisions. This amendment is offered 
to avoid any confusion.
    The language of the 1996 Welfare Reform Act did nothing, 
and I repeat, nothing to roll back existing civil rights laws, 
and that same language is used in this amendment. It is 
important for all of us to understand that this bill and the 
amendment do not change existing antidiscrimination laws one 
bit, either with respect to employers or beneficiaries. Faith-
based organizations must comply with civil rights laws, 
prohibiting discrimination on the basis of race, color, 
national origin, gender, age and disability.
    Since 1964 faith-based organizations have been entitled to 
the title VII exemption to hire staff that share religious 
beliefs. The courts, including the Supreme Court, have upheld 
this exemption. Do critics of these laws really want to revoke 
current public funding from thousands of child care centers, 
colleges and universities that receive Federal funds in the 
form of Pell grants, veteran's benefits, vocational training, 
et cetera, because these institutions hire faculty and staff 
that share religious beliefs?
    My amendment would also limit parties alleging that their 
rights under this section have been violated to injunctive 
relief, just as the 1996 Welfare Reform Act charitable choice 
provisions limit liability for violations of its provisions to 
injunctive relief.
    This amendment has been requested by the National League of 
Cities, the National Association of Counties and the Conference 
of Mayors.
    Finally, my amendment further solidifies the 
constitutionality of H.R. 7 and will assist in the practical 
implementation of its terms. I urge my colleagues to support 
it, and my time has now expired.
    [The statement of Chairman Sensenbrenner follows:]
  Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a 
         Representative in Congress From the State of Wisconsin
    The proposed changes embodied in my amendment clarify H.R. 7's 
current provisions and improve the legislation by refining the bill in 
ways that further protect it from constitutional challenge. I realize 
that some entered the room today intending to oppose reporting H.R. 7 
favorably, however, I urge you to consider the important changes made 
by this amendment and perhaps reexamine your position on the entire 
bill. I sincerely believe that the amendment firms up the 
constitutionality of the bill and expands the options of individuals to 
receive government services from the type of organization they are most 
comfortable with.
    To begin with, this amendment would make clear that, when a 
beneficiary has an objection to the religious nature of a provider, an 
alternative provider is required that is unobjectionable to the 
beneficiary on religious grounds, but that the alternative provider 
need not be nonreligious. This same requirement appears in the 
charitable choice provisions of the 1996 Welfare Reform Act. If, of 
course, a beneficiary objects to being served by any faith-based 
organization, under this amendment such a beneficiary would be 
guaranteed a secular alternative.
    Existing charitable choice law contains an explicit protection of a 
beneficiary's right to ``refus[e] to actively participate in a 
religious practice,'' thereby insuring a beneficiary's right to avoid 
any unwanted sectarian practices.
    This protection is in 42 U.S.C. Sec. 604a(g), part of the Welfare 
Reform Act of 1996. Such a provision makes clear that participation, if 
any, in a sectarian practice is voluntary or noncompulsory. Further, 
Justices O'Connor and Breyer require that no government funds be 
diverted to ``religious indoctrination.'' Therefore, religious 
organizations receiving direct funding will have to separate their 
social service program from their sectarian practices. If any part of a 
faith-based organization's activities involve ``religious 
indoctrination,'' such activities must be set apart from the 
government-funded program and, hence, privately funded.
    For example, a welfare-to-work program operated by a church in 
Philadelphia illustrates how this can be done successfully. Teachers in 
the program conduct readiness-to-work classes in the church basement 
weekdays pursuant to a government grant. During a free-time period the 
pastor of the church holds a voluntary Bible study in her office up on 
the ground floor.
    The sectarian instruction is privately funded and separated in both 
time and location from the welfare-to-work classes--and no one is 
required to participate in the bible study in order to complete the 
bible study in order to complete the readiness-to-work program.
    The Department of Justice recommends that H.R. 7 be strengthened by 
amending subsection (i) by including an even clearer statement of the 
voluntariness requirement, namely that ``If the religious organization 
offers [sectarian instruction, worship, or proselytization], it shall 
be voluntary for the individuals receiving services and offered 
separate from the program funded under this subpart.'' Also, the 
amendment includes a requirement that a certificate shall be separately 
signed by religious organizations, and filed with the government agency 
that disburses funds, certifying that the organization is aware of and 
will take care to comply with this subsection.
    The amendment makes clear that a failure to comply with the terms 
of the certification may result in the withholding of the funds and the 
suspension or termination of the agreement. The amendment also makes 
clear that volunteers cannot come into a federally funded program and 
proselytize or otherwise engage in sectarian activity.
    The amendment also includes subsection (h)(1) to permit review of 
the performance of the program itself, not just its fiscal aspects. 
This amendment is needed to prevent an unconstitutional preference for 
faith-based organizations, as secular programs are subject to both 
types of review.
    Also, nothing in H.R. 7 prevents officials from implementing 
reasonable and prudent procurement regulations, and it is not uncommon 
for program policies to require providers to conduct 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. This amendment, which is a good suggestion 
from the Department of Justice, would codify such a self-audit 
requirement for faith-based organizations receiving federal funds, and 
it would be prudent to add this additional provision to H.R. 7.
    One of the most important guarantees of institutional autonomy is a 
faith-based organization's ability to select its own staff in a manner 
that takes into account 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 
laws specifically provide that faith-based organizations retain this 
limited exemption from federal employment nondiscrimination laws.
    The amendment would replace existing language in H.R. 7 with the 
same language used in the 1996 Welfare Reform Act, which was signed 
into law by President Clinton, with an additional clause making clear 
that contrary provisions in the federal programs covered by H.R. 7 have 
no force and effect. This additional clause was not necessary in the 
1996 Welfare Reform Act because it codified charitable choice rules for 
a new program, whereas H.R. 7 covers already-existing programs that may 
have conflicting provisions. This amendment is offered to avoid any 
confusion. The language of the 1996 Welfare Reform Act did nothing to 
``roll back'' existing civil rights laws, and that same language is 
used in this amendment.
    It is important for all to understand that this bill does not 
change the anti-discrimination laws one bit--either with respect to 
employees or beneficiaries.
    Faith-based organizations must comply with civil rights laws 
prohibiting discrimination on the basis of race, color, national 
origin, gender, age and disability. Since 1964, Faith-based 
organizations have been entitled to the Title VII exemption to hire 
staff that share religious beliefs--courts, including the Supreme 
Court, have upheld this exemption. Do the critics of these laws really 
want to revoke current public funding from the thousands of child care 
centers, colleges and universities that receive federal funds--in the 
form of Pell Grants, veterans benefits, vocational training, etc.--
because these institutions hire faculty and staff that share religious 
beliefs?
    My amendment would also limit parties alleging that their rights 
under this section have been violated to injunctive relief, just as the 
1996 Welfare Reform Act's charitable choice limited liability for 
violations of its provisions to injunctive relief.
    This amendment has been requested by the National League of Cities, 
the National Association of Counties, and the Conference of Mayors.
    This amendment further solidifies the constitutionality of H.R. 7 
and will assist in the practical implementation of its terms. I urge my 
colleagues to support it.

    Mr. Conyers. A friendly inquiry, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman will state his 
friendly inquiry.
    Mr. Conyers. This sounds like a substitute amendment. It 
has all the earmarks of it, but it's called an amendment. So 
what's your response to my friendly inquiry?
    Chairman Sensenbrenner. The answer is that it was not 
offered as a substitute, and the Chair will stipulate that the 
inquiry was friendly.
    Mr. Conyers. Okay. Thank you so much.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, for 
what purpose do you seek recognition?
    Mr. Nadler. I have two questions. I have a memo here from 
Americans United for Separation of Church and State, which make 
a couple of comments. I want to ask for your comment on their 
comments, whether----
    Chairman Sensenbrenner. I have not seen the memo, but go 
ahead.
    Mr. Nadler. I'll read it. It's only a paragraph. It says: 
``The new version'', meaning the substitute, ``leaves language 
intact that would allow for employment discrimination based on 
religious practices, tenets or teachings. The new H.R. 7 
extends the title VII exemption, allowing religious-based 
employment discrimination to taxpayer-funded programs under 
charitable choice. If this exemption is extended in this way, 
it will result in the religious practices discrimination that 
is supposedly being stricken. The courts have recognized that 
institutions eligible for this exemption may discriminate in 
employment based on religious tenets and teachings in addition 
to simply refusing to hire someone of a certain religion.''
    In other words, under this--even under this changed H.R. 7, 
a publicly-funded program could discriminate in employment 
against an applicant or employee if they are, for example, 
unmarried and pregnant, divorced, gay or lesbian, or engaged in 
any other activity that violates the tenets and teachings of 
the group's religion.
    My question is the following. A, does this correctly state 
what--what the bill as amended does?
    Chairman Sensenbrenner. No.
    Mr. Nadler. And second--okay. And second, my understanding 
of the current law is that a church or other sectarian 
institution quite properly can discriminate on the basis of 
religion in its own religious officials, ministers, deacons and 
so forth, but that if you want to have a publicly-funded 
program, you cannot discriminate on the basis of religion in 
who maintains the soup kitchen, for example, and that this bill 
would allow that to happen. Is that--well, first of all, you 
just said, in what way is this description incorrect, and 
second, is my second question correct?
    Chairman Sensenbrenner. The description that you have read 
to me--and again, I do not have it in writing in front of me 
and I have not seen it--seems to indicate that the amendment 
that I have offered to this bill somehow either reduces civil 
rights protections to people who are seeking employment, or 
expands the exemption that was contained in title VII from the 
time it was initially enacted by Congress. That is not what the 
amendment does. The amendment keeps title VII exactly the way 
it is as it is applied to the organizations that would be 
qualified for grants under this bill.
    Mr. Nadler. But does the tenets and--doesn't the tenets and 
teachings provision extend the exemption in title VII beyond 
where it was?
    Chairman Sensenbrenner. Well, you know, that would depend 
upon how the courts, you know, interpreted religious 
discrimination. You know, it is obvious that the original 
purpose of title VII was to protect a religious institution 
from a suit if they refused to hire as a clergy person someone 
not of their denomination, but it has been--that exemption has 
been expanded in further enactments by the Congress. Most 
recently, the 1996 Welfare Reform Law, that provided a 
religious institution that type of exemption from the 
antidiscrimination laws in hiring and employment.
    Mr. Nadler. Thank you. Let me just suggest that--let me 
just make one comment. A lot of comment on this bill has been 
saying that, well, this doesn't change in certain respects what 
was done in the charitable choice provisions or the faith-based 
provisions of the Welfare Reform Act of 1996, it simply extends 
it into other program areas. I simply want to comment that at 
the time the Welfare Reform Bill was passed, there was a lot of 
debate about the Welfare Reform Bill, there was almost no 
debate about the charitable choice provision in the Welfare 
Reform Bill. It was just included, an omnibus bill, and some of 
us believe that that was a very wrong thing to do at that 
point, and it will be equally wrong to extend it. Yield back.
    Mr. Chabot. Mr. Chairman. Will you yield for a question, 
Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Ohio seek recognition?
    Mr. Chabot. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    I rise in strong support of this amendment, and I'd like to 
commend President Bush for his leadership on this critical 
issue, and I applaud the President and Chairman Sensenbrenner, 
and Representatives J.C. Watts and Tony Hall for their good 
work in moving this legislation forward today.
    Charitable choice proposals have received bipartisan 
backing in the past. I offer the words of former Vice President 
Al Gore, who strongly supported expanding charitable choice 
during his presidential campaign. In a major address to the 
Salvation Army, Mr. Gore couldn't have summarized the purposes 
of H.R. 7 and its provisions under this amendment more 
succinctly. In that address he stated, and I quote: ``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 and 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.'' 
Unquote.
    After referring to the charitable choice provisions in the 
1996 Welfare Reform Act, Mr. Gore continued, quote: ``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.'' Unquote.
    That is precisely what H.R. 7 does. Proposed Subsection (f) 
guarantees a beneficiary an alternative to which they have no 
religious objection. Proposed Subsection (i) states clearly 
that if a religious organization offers religious instruction 
or worship, a beneficiary must engage in it voluntarily and 
separate and apart from the federally-funded program. And 
proposed Subsection (e) does just what Mr. Gore correctly 
prescribes, it allows churches to remain churches, even when 
they apply for and administer social service programs. And it 
does so in the same words used in the 1996 Welfare Reform Act, 
which Mr. Gore referred to explicitly and approvingly in his 
speech. Indeed, it was President Clinton who signed those same 
words into law.
    I also offer the words of civil rights leader Rosa Parks in 
support of the amendment's proposed section (e). In endorsing 
H.R. 7 she stated it would reduce, quote, ``discriminatory 
barriers currently suffered by the many grass roots churches 
who are unable to access funding for education and social 
welfare programs.'' Unquote. Of course for a church to be 
protected from discriminatory barriers that lie between it and 
funds for social service programs, it must be free to remain a 
church when it applies for such funds, and retain its current 
exemption from title VII.
    That is precisely what this amendment does. Under this 
proposed amendment, H.R. 7 is constitutionally airtight. We 
even have a statement to that effect from the Fourth Circuit 
Court of Appeals, which just yesterday held that the 
Constitution allows the government to provide direct aid to a 
religious organization without having to resort to an 
examination of whether that organization is pervasively 
sectarian or not. The court held that as long as there are 
protections in place prohibiting Federal funds from being used 
for proselytizing activities, a faith-based organization must 
not be presumed to be incapable of following the rules against 
using government funds for worship activities, and on that 
basis, redlined from government programs. H.R. 7 explicitly 
prohibits the use of Federal funds for sectarian worship, 
instruction or proselytizing activities, just as the program 
upheld by the Fourth Circuit did in that case just yesterday.
    This amendment will make H.R. 7 even clearer on this point 
by adding language stating that if the religious organization 
offers such an activity, it shall be voluntary for the 
individuals receiving services and offered separate from the 
program funded under this subpart.
    To see how the provision operates, we need only to look at 
how it works in the charitable choice program run by the 
Reverend Donna Jones of North Philadelphia, whose church runs a 
welfare-to-work program there. She testified before the 
Subcommittee on the Constitution and described how teachers in 
the program conduct readiness-to-work classes in the church 
basement week days, pursuant to a government grant. During a 
free time period, the pastor of the church may hold a voluntary 
Bible study in her office up on the ground floor. The sectarian 
instruction is therefore privately funded and separated in both 
time and location from the welfare-to-work classes.
    Summing up, the amendment stands solidly within the four 
corners of the Constitution, and it opens wide the door to 
faith-based organizations wanting to apply for Federal funds to 
help pay the heating bills in shelters for women victims of 
domestic violence, to help pay for training materials teaching 
basic work skills, and to help them feed the hungry in soup 
kitchens. I urge my colleagues to join in supporting this 
important amendment.
    Chairman Sensenbrenner. The gentleman's time has expired. 
For what purpose the gentleman from California seek 
recognition?
    Mr. Berman. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Berman. Mr. Chairman, as I struggle with this issue, 
I'd like to ask a question regarding your manager's amendment. 
Both Mr. Chabot and you have made reference to the protection 
for the recipient of assistance to, if he or she has an 
objection to the religious character of the referral, to obtain 
admission into a secular alternative. But the base bill on H.R. 
7, on page 15, speaks of that as an alternative that is 
accessible to the individual, and--I'm sorry. The base bill, 
H.R. 7 says that it is an alternative, including a non-
religious alternative that is accessible to the individual, 
with the words ``including a non-religious alternative.'' The 
manager's amendment says, ``In an alternative that is 
accessible to the individual and unobjectionable to the 
individual on religious grounds.''
    And I'm curious about why the wording was changed. It 
leaves at least an implication that a secular alternative, a 
non-religious alternative does not need to be available and----
    Chairman Sensenbrenner. Would the gentleman yield?
    Mr. Berman. I'd be happy to.
    Chairman Sensenbrenner. The way this is worded is that if 
the beneficiary demands a secular alternative, they get it, you 
know, assuming there are no religious alternatives that are 
unobjectionable to the individual on religious grounds.
    Mr. Berman. But, again, what's the purpose of deleting the 
phrase ``including a non-religious alternative,'' a way of 
making clear that that is the case?
    Chairman Sensenbrenner. If the gentleman will further 
yield.
    Mr. Berman. Yes.
    Chairman Sensenbrenner. It was tightening up the language 
with exactly the same effect. The determination on what type of 
a program is unobjectionable to the individual on religious 
grounds rests with the individual, and this was a tightening up 
of the language to further empower individuals to make their 
decision rather than having it being made by the government 
either as a matter of law or otherwise. The fact is, is that if 
there is no religious alternative that is unobjectionable on 
religious grounds, then a secular alternative must be provided.
    Mr. Green. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from California has 
the time.
    Mr. Berman. I'm sorry. I yield.
    Chairman Sensenbrenner. For what purpose the gentleman from 
Wisconsin, Mr. Green, seek recognition?
    Mr. Green. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Green. Thank you, Mr. Chairman.
    I'd like to commend the authors of the underlying 
legislation, but I guess more to the point for where we are, 
commend the Chairman for his thoughtful amendment. As the 
Chairman knows, over the last number of days, I am one of many 
who have tried to look carefully at many of the issues that are 
raised by H.R. 7. These are sensitive and weighty issues that 
are before us. And those who are concerned about the larger 
implications of the legislation we take up today, should be. We 
should tread carefully. We should tread sensitively. But, Mr. 
Chairman, as I take a look at your amendment, and review it 
carefully, I believe that you have done just that. I believe 
that you have done a great service to this legislation by using 
accepted standards and constitutionally settled principles to 
make sure that religious freedom is protected, and that some of 
the concerns which have been already expressed, are addressed 
fairly, honestly, and again, in a settled manner.
    I think that those of us who come from States like 
Wisconsin--and Wisconsin is known for its progressive tradition 
in the area of education reform and health care reform and 
welfare reform--we've seen what the community of faith can do 
in its delivery of services. We see the tremendous potential 
that is there when we utilize community leaders, when we turn 
to what is working, when we turn to those unsung heroes in 
neighborhoods all across this country. I believe that H.R. 7 
will help us unleash the great potential of those community 
leaders, and I'm convinced that your amendment that you bring 
forward today will ensure that we do it in a way that is 
sensitive to the larger issues that have been raised. So----
    Mr. Gekas. Would the gentleman yield?
    Mr. Green. Mr. Chairman, once again I commend you for your 
amendment, and encourage my colleagues to adopt the amendment.
    Mr. Gekas. Would the gentleman yield for a moment?
    Mr. Green. Yes, I will yield.
    Mr. Gekas. The gentleman will recall that he and I had an 
extensive consultation on the contents of the present 
legislation, and the gentleman, I must say, went a long way in 
convincing me that some of my concerns about the accommodation 
to cults, which have no good purpose in most instances, and 
might be accommodated by this legislation. The gentleman, as I 
say, convinced me that the provisions here would prevent such 
an accommodation. Is he willing to confirm that?
    Mr. Green. I certainly am. I believe we had that discussion 
as we were racing off to a vote. I believe that those who look 
carefully at this legislation and will look at the actual 
language and the protections that have been enshrined and the 
fact that this legislation is about opening up opportunities 
for groups to provide services that are currently being 
provided--we're not launching new services or programs here--
will realize that these types of opportunities are probably not 
attractive to the vast majority of organizations that are out 
there because we have a number of accountability provisions in 
here, we have tough standards. Any organization which is 
applying here to provide services has to demonstrate that they 
can provide these services in a verifiable way. They have to 
agree to Generally Accepted Accounting Principles. I believe 
that there won't be that many organizations, especially early 
on, that will embrace these opportunities, but those that do, I 
think will go a long way towards shaping lives in communities 
and neighborhoods, so I am satisfied, particularly with the 
Chairman's mark, that we have addressed those concerns.
    Ms. Waters. Would the gentleman yield?
    Mr. Green. I would be happy to yield what little time I 
have left.
    Ms. Waters. I was interested in the question that was 
raised by Mr. Gekas. He specifically asked you what would 
prevent cults, religious cults, from participating in this 
legislation. And I was listening very carefully to your answer, 
and your answer did not say that they could not. You suggested 
that maybe they won't want to do that because of accountability 
standards that you are alluding to that are in the bill that I 
don't see. Would you agree that any religious organization can 
participate because the bill specifically does not allow 
discrimination against any religious organization. Would you 
agree?
    Mr. Chabot. Will the gentleman yield?
    Mr. Green. The gentleman would be happy to yield.
    Mr. Chabot. Thank you for yielding. You don't have much 
time left, but the bottom line is, is that those agencies----
    Chairman Sensenbrenner. Without objection, the gentleman 
from Wisconsin will be given 2 additional minutes.
    Mr. Chabot. Thank the gentleman. If you'll continue to 
yield.
    This is one of the items that's been brought up for many of 
the folks that are opposed to the whole faith-based initiative. 
The bottom line is any of these organizations or so-called 
cults are free to try to get contracts to serve the public. 
What will ultimately be the determinative factor is what group, 
what organization can best provides services to the people at 
the most efficient cost. And so that's the bottom line answer. 
So anybody can try to compete for the available dollars out 
there, but what's going to have to be looked at is who can 
provide the services best. And they can look at track records, 
for example, of some of the organizations, what they've done in 
the past.
    Mr. Goodlatte. Would the gentleman yield?
    Ms. Waters. Will the gentleman yield for a question?
    Mr. Goodlatte. Would the gentleman yield?
    Ms. Waters. Would the gentleman yield for a question?
    Mr. Green. I would yield time to Mr. Goodlatte.
    Mr. Goodlatte. I thank you, and I'll be very brief, but I 
would ask the gentleman from Ohio, is it not true that the same 
complaint that the gentlewoman from California raises exists in 
the secular society as well, that there are today secular 
organizations that compete for funds that are of extreme 
natures or may be offensive to people. They simply aren't of a 
religious sort. And they're allowed to compete for these funds 
today. I don't know why we should draw a discriminatory line 
between religious and non-religious organizations.
    Ms. Waters. Will the gentleman yield? That does not speak 
to my question. Would the gentleman yield?
    Mr. Green. No. Actually, I would like to reclaim my time 
and try to answer the question that was first posed. First off, 
let's remember, as my colleague from Virginia has pointed out, 
that in current law, such groups could compete for dollars 
right now under certain programs. And there's an interesting 
study out that's referred to I think in some of our materials, 
which shows that the legitimate fear that many have raised in 
the past about such organizations entering into these programs 
has been completely unfounded.
    The reason why is charitable choice is not a set-aside, it 
is not a pot of money which is going to enrich any group.
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    Mr. Frank. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose the gentleman from 
Massachusetts seek recognition?
    Mr. Frank. To strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Frank. First, the gentleman's question I think has not 
yet been answered. And I was struck by what seems to me an 
inconsistency. When the Nation of Islam was hired by many 
housing authorities some years ago to patrol the housing 
authorities--I think Baltimore was one and some others--to 
provide security, a number of people, some of whom are strong 
supporters--not necessarily on this Committee, but in the 
Congress--of this bill, were very upset, and indeed, political 
pressure was brought successfully I think on HUD to disallow 
the Nation of Islam from providing these services because some 
people thought it was a religious cult and they disagree very 
much with it. My guess it--I never went to any of the housing 
authorities to do an on-spot inspection--my guess is, judged by 
results, they probably did a very good job of keeping order in 
those housing authorities. And I think we ought to note to 
those who objected to the Nation of Islam being involved 
before, that this is the sort of legislation that will I think 
bring about their return, judged solely on results, and 
objections that people might have to various aspects of the way 
the Nation of Islam worships or what their theology is would be 
irrelevant. And I think that's just----
    Mr. Nadler. Would the gentleman yield?
    Mr. Frank. Well, let me first--I want to ask--I'll yield 
briefly.
    Mr. Nadler. Just one observation. The grounds for which the 
Nation of Islam was evicted, in effect, from those contracts, 
was that they discriminated on the basis of religion in who 
they hired as security guards.
    Mr. Frank. And that would now no longer be the case.
    Mr. Nadler. That would no longer be----
    Ms. Waters. Will the gentleman yield?
    Mr. Frank. Let me just get to my other point here if I can, 
and then I'll get back to this. Because I wanted to ask the 
Chairman, and I appreciate his effort to try and make some 
improvements. On the bottom of page 17 there's a provision that 
may have been in the original one, that says, ``No funds shall 
be expended for sectarian instruction, worship'', or a word no 
one really has an easy time pronouncing--``proselytization.'' 
Now, I appreciate that, but here's my question. What if the 
organization that gets the money believes that a religious 
message is inherent in providing the service? What if people 
believe that you cannot get people to get off drugs or to stop 
violent behavior, or to stop imbibing alcohol excessively or 
doing other things? What if inherently in their message is, you 
do this by becoming a Christian, or a better Christian, or a 
better Muslim or a better Jew? Is that allowed under the bill?
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Frank. Yes.
    Chairman Sensenbrenner. The answer to the question is no it 
is not, and those organizations would not be eligible for 
funding under H.R. 7.
    Mr. Frank. Well, I appreciate that and I think that's a 
very important point to make. That is, you could not--and I'm 
told there are organizations that do this--so in addition to 
strictly trying to convert people, if in fact you sincerely 
believed that the way to cure the problem that had brought 
people to you, the way to inculcate in them better behavior, 
involved inherently a religious message, that could not be 
funded under this program; it would have to be done entirely 
separately?
    Chairman Sensenbrenner. Would the gentleman yield further? 
The gentleman's conclusion is correct. It is up to the 
religious organization to make a determination, if they can 
separate out their religious mission from their social services 
mission. If they can do that, they're eligible under H.R. 7. 
But if they can't do that, then they're not.
    Mr. Frank. And I appreciate the gentleman saying that, 
because again I want to make it clear. What we're saying is if 
the fact that they may believe that the social service mission 
cannot be accomplished in a non-religious context, that would 
make that ineligible for Federal funding. They're free to do 
that in other ways, but they could not get Federal funding to 
do that; is that correct?
    Chairman Sensenbrenner. If the gentleman would yield 
further. That is what the language of the amendment prohibits 
doing, and that is, is that if the program, under H.R. 7, is 
funded, the Federal funds cannot be used in any manner 
whatsoever for sectarian instruction, worship or 
proselytization, and those functions must be privately funded 
and they are voluntary, and the clients or beneficiaries have 
the opportunity to opt out or to seek another alternative.
    Mr. Frank. Well, let me say, I assume this would mean 
though that you don't kind of enroll in the program, and then 
when it gets to the religious part, you get out; you are 
entitled to a totally separate program?
    Chairman Sensenbrenner. That is correct.
    Mr. Frank. And it's not an in and out kind of----
    Chairman Sensenbrenner. That is correct, and the 
gentleman's time has expired. And let me find out how many 
votes we're going to have.
    There will be two votes on amendments, recommittal after 10 
minutes debate, and final passage. The Committee is recess 
until 1:30. Please be prompt because we'll start in right away.
    [Whereupon, at 11:51 a.m., the Committee recessed, to 
reconvene at 1:30 p.m., the same day.]
    ***AFTERNOON SESSION***
    Chairman Sensenbrenner. The Committee will be in order.
    Pending at the time the Committee recessed was an amendment 
to the bill by the Chairman.
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose the gentleman from 
Virginia seek recognition?
    Mr. Scott. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Scott. And before that, a parliamentary inquiry, Mr. 
Chairman.
    Chairman Sensenbrenner. State your inquiry.
    Mr. Scott. When your amendment was introduced, was it 
introduced as an amendment or an amendment and unanimous 
consent to consider it as the original text for the purposes of 
amendment?
    Chairman Sensenbrenner. It was introduced as an amendment. 
The base bill is what is amendable.
    Mr. Scott. And parliamentary inquiry?
    Chairman Sensenbrenner. State your inquiry.
    Mr. Scott. So if there are amendments to the manager's 
amendment, they should be introduced before it's adopted?
    Chairman Sensenbrenner. That's correct.
    And with that happy note, this is a vote on a rule. Is 
there a vote on the previous question? Okay. I would ask the 
Members to come back promptly after voting, and the Committee 
stands in recess. The gentleman from Virginia, Mr. Scott, will 
be first to be recognized, so he should come back first. 
[Laughter.]
    Chairman Sensenbrenner. The Committee stands recessed.
    [Recess]
    Chairman Sensenbrenner. The Committee will be in order.
    Pending at the time of the recess was an amendment to the 
bill offered by the Chairman. Before recognizing the gentleman 
from Virginia, let me reiterate my announcement of this 
morning, that the Chair intends not to adjourn the Committee 
until we vote to report the bill one way or the other, 
notwithstanding the announcement that the House will suspend 
its work on the Agriculture Appropriations Committee between 
6:00 and 7:00 p.m.
    For what purpose does the gentleman from Virginia seek 
recognition?
    Mr. Scott. Mr. Chairman, move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, for several weeks I've been asking 
the question about various versions of charitable choice as to 
whether or not under the versions that we would finally get to 
vote on, whether or not you can proselytize during the program 
or not. We heard--we read reports that Mr. DeJulio, the 
Director of the Faith-Based Office in the White House--we heard 
quotes from him that said that pervasively sectarian programs 
could in fact be funded. We heard from the chief sponsor of the 
bill, that religion is a methodology, and therefore, obviously, 
that's what you were paying for. We've heard references to 
Democratic leaders as to what their position is on this. The 
Democratic platform that was adopted by the Democratic 
Convention last summer, supported faith-based funding with the 
provision that no proselytization should be funded, and no 
funds should be used in a discriminatory manner.
    Mr. Chairman, your manager's amendment finally answers the 
question one way or another, and says that there shall be no 
proselytization during the program. It is consistent with the 
views expressed by the Department of Justice, where they said 
there should be no proselytization paid for by Federal money, 
nor volunteers or any other way during the government sponsored 
program. In fact, Mr. Chairman, the manager's amendment, in 
terms of proselytization is a restatement of present law 
without charitable choice. Any program that can get funded 
under the manager's amendment can also be funded now with one 
exception. And that is organizations that do not want to comply 
with civil rights laws. The requirements that symbols can be 
there, under the manager's amendment, is a question of 
constitutional implications. If the Supreme Court requires them 
to take--them to be taken down, then the statute we're adopting 
can't cure that. If the Supreme Court does not allow the 
symbols to be taken down, then of course, you can do it under 
present law.
    What we have right now is a question of whether or not 
organizations can discriminate, and that's really all that's 
left in the bill. The main effect, the main effect, after we've 
gone through the constitutional process of which religion will 
get funded and which will not, the main effect is that 
organizations receiving Federal funds can discriminate. The 
sponsors of federally-funded programs under the bill can 
discriminate based on religion, and that's really what this 
debate is all about, nothing more. The extent to whether 
teachings and tenets are also covered by the right to 
discriminate is a technical question that we can consider, but 
after you've stripped it to its bare essentials, the only thing 
the bill allows not that's not allowed under present law, is 
the right to discriminate based on religion.
    We will have amendments that will focus on this simple 
question as to whether the sponsor of a federally-funded 
program can discriminate based on religion for the first time 
in decades, so that we will consider that question as we 
consider amendments.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    Ms. Lofgren. Mr. Chairman.
    Chairman Sensenbrenner. Are there amendments?
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California seek recognition?
    Ms. Lofgren. To strike the last word.
    Chairman Sensenbrenner. The gentlewoman's recognized for 5 
minutes.
    Ms. Lofgren. I wanted to comment briefly on the discussion 
that was had before the lunch break, which has to do with 
whether or not cults could be funded under this act. And I 
guess in a way I'm a little bit reluctant to use the word 
``cult'' because in some cases, one person's cult is another 
person's faith. But in looking at this, I think we are clearly 
going to be opening ourselves up to a situation that I think 
the proponents of this measure do not desire, and perhaps have 
not fully envisioned.
    In thinking about religions that are not the majority 
religion in the United States, under this act and with the 
manager's--with the Chairman's amendment, we note that you 
cannot require a faith-based group to remove their religious 
scriptures, arts, icons and the like, and the only way a 
recipient of the services can get out of being served by the 
faith-based group is if they have objections to the religious 
character of the organization. It's not clear to me that--and 
maybe this is a question for the Chairman--let's say I'm 
receiving child care as part of the federally-funded welfare 
program, and in California, a large California county, it's the 
wickens who are providing the child care, which is actually not 
an improbable situation in some parts of the State. Can I 
require that a separate child care provider be established 
because I don't like the wickens? And if then I'm sent to the 
Catholics, can I require that still another child care be 
provided until I finally get to the Lutherans, which is what I 
am? Is that--would that be the impact of this amendment?
    Chairman Sensenbrenner. The answer to your question is no. 
Anybody who applies for--to receive funds under this program, 
either directly or indirectly, will have to adhere to all of 
the qualifications of the program, many of which already exist. 
We're not creating new social services programs in this bill, 
but what we are doing is opening up the eligibility to faith-
based organizations to provide those types of social services.
    Ms. Lofgren. Well, reclaiming----
    Chairman Sensenbrenner. The opt out and choice provisions 
that are contained in the manager's amendment, you know, make 
it clear that nobody will be forced to go into a faith-based 
program, and while it is not stated expressly, if someone 
objects to all faith-based programs, there has to be a secular 
alternative.
    Now, you know, to answer you question, if you don't like 
denomination 1, you can object to that, and then go to 2 or 3 
or 4, until you finally get a denomination that is of your 
choosing. There's nothing in this legislation that requires a 
local government to do that. If the Lutherans don't want to put 
on one of these programs because somebody insists upon going to 
a Lutheran program, the Lutherans don't have to put on one of 
these programs.
    Ms. Lofgren. No, that's--if I may, that is clear. But I 
guess what I'm--what I'm struggling with is there are a whole--
I mean I probably have more Buddhists than Baptists in my 
district, and there are some people who don't believe in what 
the Buddhists believe, and they are a likely provider of 
services. And it's not clear to me that we will avoid a result 
where people who have one faith are required to--because 
there's a----
    Chairman Sensenbrenner. The gentlewoman yield?
    Ms. Lofgren. Yes, I will.
    Chairman Sensenbrenner. Under this bill there is no 
requirement that somebody who objects to receiving secular 
social services in a Buddhist-owned facility and sponsored by a 
Buddhist congregation or Buddhist faith-based organization, or 
however they are organized, to have to enroll in that social 
services program. There has to be, under H.R. 7 and the 
Chairman's amendment, an alternative that is non-objectionable 
to the individual seeking the social services.
    Ms. Lofgren. All right. So if I am understanding the 
Chairman correctly, every--I was in local government for a lot 
longer than I've been in Congress, and we actually funded a lot 
of social services with faith-based groups, I mean from the 
Catholic Charities, the Cathedral of Faith and many, many 
others. We also had secular programs that we funded for the 
same activities. So if you're a local government, you better 
make sure that you have a non-faith-based organization, or else 
any one person can throw chaos into your program by objecting, 
and then you would fail to have an alternative.
    I have problems with this in many respects, but I guess one 
of the overlying things I fail to understand is why, in 
practically every county of this country we're already funding 
services through faith-based groups, we need to do this. I 
mean, but I see my time has expired. And I thank the Chairman 
for allowing me to strike the last word.
    Mr. Schiff. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Schiff. For what purpose do you seek recognition?
    Mr. Schiff. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. I'd like to speak briefly to the premise of 
direct government funding of churches and synagogues and other 
religious institutions.
    The separation of church and state was designed out of a 
desire to avoid the excessive entanglement for two reasons. 
One, it was to protect the people from the government's use of 
its coercive power for religious purposes. And second, it was 
designed to protect people's free exercise of religion by 
guarding churches from unwarranted government intrusion. Direct 
funding of religious institutions, whether characterized under 
the beneficent sounding, wonderfully alliterative expression, 
charitable choice, does not serve either priority of the 
founders. In fact, I believe, although well meaning, it 
undermines both church and state, and in so doing, undermines 
our basic freedoms.
    How does it do this? How does it undermine the State? 
Fundamentally, I believe it precludes real accountability in 
the delivery of services. The principle of greater funding with 
accountability that we all subscribe to is sacrificed. Would 
this Committee or any Committee call in the GAO to audit, 
investigate the performance of the Catholic Church in 
delivering services, or the Mormon Temple or a Jewish synagogue 
or any other religious institution, there would be the most 
natural sensitivity not to pry, a sensitivity that does not 
exist in the scrutiny we would so willingly permit of a 
doctor's billings under Medicare or a military contractor, or 
any other secular provision of services in exchange for Federal 
funds.
    But how does it undermine the church? And I think this is 
the more serious concern. Fundamentally, I believe it would 
compromise the mission of a religious organization in an effort 
to get Federal dollars. Mr. Frank's earlier point that this 
would preclude a church, for example, from arguing that a 
belief in the Lord is essential to progress in a person's life 
that is being served, whereas the argument that these 
objectives can be met without a belief in God would be 
federally funded, basically tells a religious organization that 
as long as they do not espouse a belief in the Lord as a 
component of recovery, it will get Federal funding. Is this 
really what we wish to do? Do we wish to turn religious 
institutions into vendors of government programs? Do we want 
them competing with each other for grants and a 
politicalization of religious institutions that would accompany 
that? Would it be appropriate for Members of Congress to write 
in support of one church's grant application or against 
another? Which churches will qualify for funding? What litmus 
test will be given? Do they need to be conventional? Can they 
be unconventional?
    I want to congratulate the administration and the Chair for 
the creative thinking in dealing with new ways of wrestling 
with old challenges, but sometimes, often in fact, the founders 
get it right. In the establishment clause it says ``Congress 
shall make no law respecting an establishment of religion or 
prohibiting the free exercise thereof.'' No law respecting an 
establishment of religion. We are talking about direct 
government funding of religion. Do we really believe that 
Jefferson or Madison would have countenanced direct government 
funding of churches and synagogues? Neither Jefferson nor 
Madison was hostile to religion. Both were protective of 
religion, and because protective, they would have believed this 
idea ill conceived. I urge a no vote.
    Chairman Sensenbrenner. Are there amendments? The gentleman 
from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk, 
Scott No. 1.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the amendment to H.R. 7, offered by 
Mr. Scott, Mr. Conyers, Mr. Nadler, Mr. Frank, Ms. Jackson Lee, 
Ms. Waters, Ms. Baldwin and Mr. Watt.
    Page 13, strike line 13 and all that follows through line 
23 on page 13. Redesignate accordingly.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes in support of his amendment.
    Mr. Scott. Mr. Chairman, it is ironic that we would 
consider H.R. 7 just 2 days after marking the 60th year 
anniversary of President Roosevelt's signing of Executive Order 
8802. Mr. Chairman, that Executive Order provides in part, 
``whereas there is evidence that available or needed workers 
have been barred from employment in industries engaged in 
defense production solely because of considerations of race, 
creed, color or national origin, to the detriment of workers' 
morale and of national unity'', and goes on to order, ``all 
contracting agencies of the government of the United States 
shall include in all defense contracts hereafter, negotiated by 
them, a provision obligating the contractor not to discriminate 
against any worker because of race, creed, color or national 
origin.''
    Mr. Chairman, today we witnessed the erosion of 60 years of 
civil rights law. This amendment that I'm offering strikes a 
provision in the bill that allows sponsors of Federal programs 
to discriminate on the basis of religion, and specifically 
overrides any contradictory statutes. Religiously-affiliated 
organizations, including Catholic Charities, Lutheran Services, 
Jewish Federations, and a vast array of smaller faith-based 
organizations, now sponsor government programs, and contrary to 
President Bush's recent 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. In fact, the bill before us 
restates the present law with the exception of the application 
of civil rights laws. Any program that can get funds under the 
manager's amendment can get money now, except those who refuse 
to comply with civil rights laws.
    Now, 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. And before the civil rights laws of the 
1960's, people of certain religions routinely suffered 
invidious discrimination when they sought employment. President 
Roosevelt's Executive Order 60 years ago, and the civil rights 
laws of the 1960's, outlawed schemes which allowed job 
applicants to be rejected solely because of their religious 
beliefs.
    Now, some of us are frankly shocked that we would even have 
a debate as to whether sponsors of Federal programs can 
discriminate in hiring. But then we remember that the passage 
of the civil rights laws of the 1960's was not unanimous, and 
it is clear that we're using charitable choice to re-debate the 
passage of basic anti-discrimination laws. Now, I believe that 
publicly-funded employment discrimination was wrong in the 
1940's and 1960's, and it is still wrong.
    Now, some have suggested that organizations should be able 
to discriminate in employment, to select employees who share 
their vision and philosophy. Under current civil rights laws, 
you can discriminate against a person based on their views on 
the environment, views of abortion or gun control, you can 
select staff based on their commitment to serve the poor or 
whether you think they have compassion to help others kick 
drugs. You can discriminate based on a criminal record or 
credit record or educational achievement. But because of our 
sorry history of discrimination against certain Americans, we 
had to establish protected classes, and under present law you 
cannot discriminate against an individual based on race, sex, 
national origin or religion.
    Now religious organizations were given an exemption to 
consider religion and hiring with church funds. We have not--
but we have not allowed sponsors of federally-funded programs 
to reject applicants for jobs paid for with Federal money 
solely because of their religion.
    Mr. Chairman, charitable choice represents an historic 
reversal of decades of progress and civil rights law 
enforcement. We established the policy years ago that we should 
not discriminate based on religion. The President and the 
supporters of charitable choice have promised to invest needed 
resources in our inner cities, and they can do so today under 
present law. But it is insulting to suggest that they will not 
make those investments unless we turn the clock back on our 
civil rights.
    And I hope, Mr. Chairman, we'll adopt the amendment. Yield 
back the balance of my time, Mr. Chairman.
    Chairman Sensenbrenner. Gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. You're recognized for 5 minutes.
    Mr. Chabot. Thank you. I rise in opposition to this 
amendment. This amendment strikes the same language used in the 
1996 Welfare Reform Act. It's part of all existing charitable 
choice laws now. It would override the title VII exemption. All 
we want to do is preserve the status quo. This amendment 
proposed to change it. We agree withthe unanimous Supreme Court 
that upheld the title VII exemption as written, not as is 
proposed under this amendment which would change it. This is a 
change in existing law that would upset the balance struck over 
the past 30 years.
    One of the most important charitable choice principles is 
the guarantee of institutional autonomy that allows faith-based 
organizations to select staff on a religious basis. H.R. 7 
preserves this guarantee, and it's supported by no less a civil 
rights leader than Rosa Parks. As I stated before, even Al 
Gore, during his campaign, said that, quote, ``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.''
    And therefore, I rise in opposition to this amendment. 
Yield back the balance of my time.
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose gentleman from 
Michigan seek recognition? 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman. I rise in support of 
the amendment, which I'm proud to add my name behind Mr. 
Scott's.
    I'll only take a few minutes, Mr. Chairman. But I notice 
that our colleague, the gentleman from Texas, Chet Edwards, has 
been sitting in the audience for many an hour, and I wonder if 
we could allow him to come up and take the vacant seat next to 
Mr. Schiff for whatever time he may remain, if there's no 
problem with that.
    Chairman Sensenbrenner. Without objection, provided he does 
not exercise undue influence upon Mr. Schiff. [Laughter.]
    Mr. Conyers. Mr. Schiff may be a hopeless case from your 
point of view already, Mr. Chairman. I doubt if he'll be able 
to do much with Mr. Schiff one way or the other.
    But at any rate, ladies and gentlemen, from my perspective, 
the his amendment is the key to whether we ought to have a bill 
or not. I think we've--I think that we could see our way 
through--I hate to use that term that starts with a ``P'' 
because it's been mispronounced so much, and I've taken 
exception to everyone that has mispronounced it, so I'm not 
going to even try to do it. But let me point out to you that if 
we were to follow the recommendations of the Scott amendment, I 
think we would--I think we could all work this out very quickly 
in the very short time that's left between now and the time we 
go into recess. And for that reason, if not on the great 
substantive reasons that I would offer, I ask the generous 
consideration of everyone in the Committee, because this--this 
is troublesome, and I think this Scott amendment cures it.
    And I'd like everyone to know that I've been joined in 
support of this by Ms. Rosa Parks, whose name has been raised 
more times than anybody else not a Member of the Committee. So 
if everybody would think carefully about the words and the 
meaning of the Scott amendment, quickly glance at the short 
letter of Rosa Parks herself, which I ask unanimous consent to 
put in the record at this time.
    Chairman Sensenbrenner. Without objection.
    [The letter of Ms. Parks follows:]
    
    
    Mr. Conyers. And I will return my time.
    Mr. Hutchinson. Mr. Chairman, Mr. Chairman, Mr. Chairman.
    Chairman Sensenbrenner. For what purpose the gentleman from 
Arkansas seek recognition?
    Mr. Hutchinson. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Hutchinson. I want to thank the gentleman from Michigan 
for introducing the letter of Rosa Parks. I think that is very 
helpful. I read that, and I appreciate that introduction. I 
also appreciate the tone of this discussion today. I think this 
is one of the most important and fundamental issues that we can 
debate in terms of the Constitution and some very important 
principles. I have always believed that the government should 
not be directing the churches as to what to do, and religious 
organizations. And I think to accomplish that goal, you have to 
make sure that there's not too much entanglement, there's not a 
potential for overreach by the government in terms of what the 
churches or religious organizations do.
    I look at the amendment that's been offered by the 
gentleman from Virginia, and that would delete the protection 
of the religious organizations from the exemption that's 
already provided in the civil rights law. The--Mr. Chabot, the 
Chairman of the Constitution Committee, has referred to the 
fact that this exemption was included in the charitable choice 
provisions of the Welfare Reform Law. It was also, obviously, 
originally provided in the 1964 adoption of the civil rights 
laws. And so I see that this is simply preserving the status 
quo that has been recognized in our civil rights laws.
    It's important to note, in my judgment, that the paragraph 
that the amendment designs to remove, provides that the 
religious organization exemption regarding employment practices 
shall not be affected by its participation in these programs. 
It only applies to employment practices, which is the exemption 
that was already existing under the civil rights laws.
    Mr. Weiner. Will the gentleman yield?
    Mr. Hutchinson. Let me go ahead and finish here if I might, 
then I'd be happy to yield.
    And then there is a very important section that follows, 
that nothing in this section alters the duty of a religious 
organization to comply with the nondiscrimination provisions in 
title VI of the Civil Rights Act, which prohibits 
discrimination on the basis of race, color and national origin. 
I think what the Chairman has done in working very hard with 
the administration and others, is to craft a good balance in 
preserving the autonomy of the religious organization, but also 
assuring the preservation of a status quo in regard to our 
civil rights protections, and part of that protection is to 
allow the religious exemption in regard to employment 
practices. Otherwise, you'll be altering the nature of the 
religious organization itself.
    And I think that the Supreme Court's review of this is 
important. It's my understanding that they did review this 
similar type of exemption from the Welfare Reform Law and 
upheld that, and that it's a good balance that has been 
maintained. I think it is a very tough question that we're 
addressing, but I think that what the Chairman has done and 
others have done is to maintain that balance. And so I would--I 
believe it's appropriate that the amendment that's being 
offered be rejected. I'd be happy to yield.
    Mr. Weiner. Mr. Hutchinson, yeah, I am deeply divided on 
this bill, and one of the four things I made note of that I was 
interested in seeing if we could have corrected is something 
that is--I notice in your response, and Mr. Chabot's also, 
there's no addressing of the merits of being able to 
discriminate based on religion. Later on in the bill it talks 
about--it talks about the fact that these people are not going 
to be doing sectarian instruction. They aren't going to be 
involved in worship. They aren't going to be proselytizing. A 
great deal of energy has been put in by the sponsors of this to 
say that those things will not be happening.
    Can you give me a real-life example about why it would be 
desirable for a church to be able to run a soup kitchen, hire 
someone--discriminate against someone in hiring based on their 
religion or their race? Why would you want that? Why not take 
that exemption--nothing in this amendment strikes it from the 
law. It only strikes it from who would be the beneficiaries of 
the assistance.
    Mr. Hutchinson. Reclaiming my time.
    Mr. Weiner. Certainly.
    Mr. Hutchinson. It's very important to note that what you 
just cited about discrimination based upon race, that is not 
allowed. Clearly, this provision, which is on page 13, says 
that nothing in this section alters the duty of a religious 
organization to comply with the non-discrimination provisions 
in title VI, which prohibits discrimination on the basis of 
race.
    Mr. Weiner. Well, if you'll forgive me then, well, why 
don't you address the part about discriminating against based 
on their religion? Why is it desirable to allow them to do that 
in this context, since it's a non-religious function they're 
performing?
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Frank. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Massachusetts seek recognition?
    Mr. Frank. To strike the requisite number of words.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Frank. I think the gentleman's amendment is a very 
important one. We are talking here, not about altering a 
religious organization's structure. We're not remotely 
suggesting that you will tell people who they can hire as 
members of the clergy or what conditions will be imposed there. 
What we are talking about is a religious organization, deciding 
voluntarily, in addition to its ongoing religious mission, to 
apply for Federal funds to provide a social service.
    Now, the Chairman, in a very cogent and clear-cut way, 
said, that in doing that, the religious organization may not 
inculcate its religion. It can be motivated by its religion. 
Obviously, it will be. And that's to the benefit of our 
society, that there are people who are religiously motivated to 
help others. But the Chairman made it very clear, that insofar 
as their accepting the Federal funds--and this is what the 
gentleman from New York was alluding to--they will not be 
carrying out the religious functions. So then the question is 
why should they be able to discriminate, the gentleman from 
Arkansas says, and I think that's probably right, they won't be 
able to discriminate based on race, but he didn't answer the 
question of the gentleman from New York as to why they should 
be allowed to discriminate based on religion. So that's the 
fundamental question: why should you be allowed to take Federal 
money to provide a service which, as the Chairman has pointed 
out, will not be religious in its content, it will not be 
sectarian, it will not proselytize? Why should you then be able 
to say, ``We're not going to hire you if you are not of our 
religion?'' That's the question that is unanswered.
    There are further questions that we have. There is also 
this list, the non-discrimination statutes, that must be 
followed. They are the Federal statutes. Some States have 
decided to go beyond what the Federal Government has done in 
preventing discrimination, and I would ask, because it's not 
clear to me, is this preemptive of State employment 
discrimination laws other than those which might track the 
Federal one? I would yield to anyone who could give me the 
answer to that. By specifying the Federal anti-discrimination 
laws that apply, does this mean that State anti-discrimination 
laws which cover subjects not covered under the Federal law, 
would be preempted in effect, and the religious organizations 
would not have to apply--follow them? I would yield to anyone 
who would answer that.
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Frank. Yes, Mr. Chairman.
    Chairman Sensenbrenner. I'll answer the second part of your 
question and I'll seek my own time for the first part. The 
second part, relative to Federal preemption. Federal law 
applies where Federal funds go, and State law does not apply. 
If the religious organization accepted State funds, and by 
implication, local government funds, then State laws would 
apply to them as well.
    Mr. Frank. So it would preempt State laws or allow them 
to----
    Chairman Sensenbrenner. It would allow them to ignore State 
laws when Federal--only Federal funds are used, but would not 
allow them to ignore State laws when State funds are used.
    Mr. Frank. What if there was a mix of Federal funds and 
private funds?
    Chairman Sensenbrenner. Then they could ignore State laws.
    Mr. Frank. That seems to me to be a serious flaw and hardly 
consistent with the sporadic States' rights professions that we 
hear from the other side. The principle ought not to be that 
you can get out of following a State's enactment because you 
have accepted some Federal funds, and the Chairman has very 
straightforwardly made it clear. If you get some Federal funds 
and you have some of your own funds, you might--not might--you 
are then allowed to ignore a State law that would otherwise be 
binding on you. I do not think we ought to be embodying the 
principle that the acceptance of Federal funds somehow then 
cancels State law.
    There are a number of things. For instance, the States get 
highway money from the Federal Government. Does that principal 
apply? Should we then say that a State highway department can 
ignore its State's own laws with regard--or contractors getting 
the State highway money? That, really, frankly, surprises me in 
the very radical nature of a repudiation of what the State can 
do. In other words, you are in the State and you have set a 
policy that there will not be discrimination based on this or 
that or the other, other than what the Federal Government does. 
And an organization in your State, which decides to do a 
program, and it's got 70 percent of its money, and it gets 30 
percent of the Federal money, that Federal money now becomes a 
license to ignore State anti-discrimination law. If there's a 
conflict between the laws, then the Federal would apply, but I 
had not previously thought it would be the case that accepting 
Federal funds allowed you to violate State law. And I think 
that is a very grievous flaw which the amendment would deal 
with.
    Let me say there's one other question that I had.
    Chairman Sensenbrenner. The gentleman's time has expired. 
The Chair moves to strike the last word, and recognizes himself 
for 5 minutes.
    The gentleman from Massachusetts knows that there is no 
substantive change in anti-discrimination laws that is proposed 
by this bill. The title VII, with its exemption for religious 
hiring by religious institutions, is no stronger and no weaker 
under H.R. 7 as amended, then it is under the present law.
    What the Scott amendment proposes to do is to go beyond the 
current law, to go beyond the 1996 Welfare Reform Act similar 
provisions, and to apply a test which makes it illegal to 
discriminate by religion in hiring.
    Now, I will answer the questions from the other side on why 
this exemption is necessary. In many cases, the same people 
that are hired by the church will perform the social services 
activities. There is a prohibition against commingling funds. I 
would imagine that they would receive two paychecks based upon 
the time they spend in the social services sector versus the 
time they spend in the religious sector. Many of the very 
effective faith-based religious programs in the social services 
area will not be hiring new people, and that is why it is 
important that this exemption be maintained as it has been in 
the law since 1964, and for that reason I would hope that the 
amendment by the gentleman from Virginia would be rejected.
    Mr. Frank. Would the gentleman yield?
    Chairman Sensenbrenner. And I yield.
    Mr. Frank. I thank the Chairman. I would disagree that this 
doesn't expand the title VII exemption on this basis. The title 
VII exemption, as I understand it, is for religious activities. 
But as the Chairman himself said, money can be accepted under 
this program for non-religious activities. In fact, the 
Chairman's own language says that money----
    Chairman Sensenbrenner. Well, reclaiming my time, that 
issue was debated and resolved in 1996 with the Welfare Reform 
Act, which was signed by President Clinton. And in the last 
campaign, the Democratic candidate for President, Al Gore, said 
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.
    Mr. Frank. The gentleman yield?
    Chairman Sensenbrenner. Now, part of that religious 
character is being able to hire people of one's own religious 
denomination. What my amendment to this bill does is very 
clearly saying that with the programs that are funded through 
H.R. 7, you cannot proselytize or have any type of sectarian 
worship or instruction involved in it, but it seems to me that 
we don't want to put ourselves in a position of forcing the 
Catholic Church to hire a militant atheist for its social 
services program, having a Jewish faith-based organization 
having to hire an evangelical fundamentalist Protestant, or 
having a mainline Protestant denomination having to hire 
someone who worships the sun.
    Mr. Frank. Will the gentleman yield?
    Mr. Scott. Would the gentleman yield?
    Chairman Sensenbrenner. I'm happy to yield to the gentleman 
from Massachusetts.
    Mr. Frank. First, I want to reject the notion of 
infallibility, whether it is presidential or vice presidential. 
Gore and Clinton can say what they want. It doesn't establish 
the merits. I think the gentleman----
    Chairman Sensenbrenner. If the gentleman will yield, we 
already established in this Committee that President Clinton 
was not infallible a couple of years ago.
    Mr. Frank. I said that. You've just---- [Laughter.]
    Mr. Frank. You've just resurrected him. But the point I 
would make is this: the gentleman has been--he says, should a 
Jewish organization have to hire an evangelical Christian, for 
example? Yeah. I think if you're taking Federal money and 
you're doing a non-religious function, yes, it ought not to be 
the case that a Jewish organization can refuse to hire an 
evangelical Christian or vice versa.
    Chairman Sensenbrenner. Reclaiming my time, I believe that 
you and I have a philosophical disagreement on whether Federal 
law should require the Jewish organization to hire an 
evangelical Christian to perform its social services program, 
and I yield back the balance of my time.
    Mr. Nadler. Would the gentleman yield?
    Mr. Scott. Mr. Chairman?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. Just one comment. 
First of all----
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you. It has been stated--the Chairman 
said a moment ago, it's been stated several times that this or 
that was debated and decided in the Welfare Act of 1996. My 
recollection is that the charitable choice provisions in the 
Welfare Act of 1996 were placed in that bill with no discussion 
whatsoever, no debate on the floor of the House as to anything 
to do with the charitable choice, and I don't remember this 
Committee debating it or having it in front of us either. Nor 
do I think that the Congress in 1996 was infallible, any more 
than I think that President Clinton or Vice President Gore were 
infallible.
    And by the way, this Committee did not establish that the 
President was infallible in 1998. We made certain allegations. 
The Senate quite properly rejected those allegations.
    But stepping that aside---- [Laughter.]
    Mr. Green. But putting that aside, the fact is that to 
establish in law--and I think it was a real mistake to do so in 
1996; it ought to be repealed, and it ought to be not extended 
now--to have the notion that a Protestant church or a Catholic 
church or a Jewish synagogue can discriminate in employment on 
the basis of religion for who's going to ladle out the soup at 
the soup kitchen, or who's going to be the doctor if they're 
running a medical program. Who's going to be the priest, yes, 
that makes sense. If the Catholic church doesn't want to have 
women as priests, or the Orthodox Jews don't want to have women 
as rabbis, that's their privilege, and certainly that was the 
point of the title VII exemption of the Civil Rights Act. But 
when it comes to non-religious functions with Federal money, if 
the Salvation Army wants to proselytize before you can have 
your soup at the soup kitchen, that's their privilege as long 
as they're not using Federal money. And if they want to 
discriminate, that's not their privilege, because it's against 
the Civil Rights laws, and we shouldn't be carving out an 
exception for churches or anybody else as long as it uses 
Federal money and as long as it's not for religious function.
    Mr. Frank. The gentleman yield?
    Mr. Nadler. I yield to the gentleman from Massachusetts.
    Mr. Frank. I thank the gentleman. I am really astounded 
that apparently one of the merits of this is that we're going 
to validate the right of one religion to refuse to hire 
adherence of another religion for non-religious purposes. I 
mean I had not realized that the model that we were using in 
this was the inter-religious relationships of the Ukraine, 
because that seems to be what we're doing. [Laughter.]
    Mr. Frank. We are promoting religious discrimination, that 
the Jews shouldn't hire the Catholics, and the Catholics 
shouldn't hire the Protestants, I find that an appalling thing 
for us to be doing, and the fact that it may have been done in 
the welfare bill, which I voted against, and now I learned 
there was another reason for my voting against that foolish 
bill. And the notion that once having done something, Congress 
can never again change it, comes strangely to my ears from 
people who I thought were elected in 1994 precisely to undo a 
lot of what had been done before. But what you're doing is 
embodying the principle, apparently, that in totally non-
religious activities--religious activities--activities in fact, 
whereas we've made clear, ``You are prohibited from dealing 
with religion. In those purely secular activities, you can take 
Federal money, discriminate based on religion and ignore State 
laws to the contrary.'' That's a terrible idea.
    Chairman Sensenbrenner. The question is on the amendment--
--
    Mr. Green. Mr. Chairman.
    Chairman Sensenbrenner. What purpose does the gentleman 
from Wisconsin, Mr. Green, seek recognition?
    Mr. Green. Move to strike the requisite number of words.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Green. Thank you, Mr. Chairman.
    By way of clarification of the discussion we just had, I 
think in reference made to how we're saying that Catholics 
shouldn't hire Protestants and vice versa, I think we're saying 
the opposite. I think we're saying they're not forced to under 
this law. There's been a lot of talk about freedom of religion 
and free exercise of religion and the autonomy of religious 
organizations. That is what the key issue is here. I think this 
amendment would destroy autonomy of religious organizations.
    Now, as the Chairman I think has put very eloquently, we 
are not changing law here. We are, instead, recognizing and 
reinforcing existing law, law that has been on the books for a 
number of years. We keep hearing how this wasn't really debated 
in 1996 as part of Welfare Reform. There's been a bit of time 
since 1996 and the present. It is interesting that it isn't 
brought up again until this point.
    If this was a mistake, if this was something that the other 
side didn't intend to support, if they didn't know what they 
were voting on, they've had a few years to talk about this, 
instead of bringing it up at this point.
    Mr. Nadler. Would the gentleman yield----
    Mr. Green. No, not on my dime. Let me finish my comments 
here. I don't have much time.
    Let me suggest here, at the very best, what this amendment 
seeks to do is to refight a fight that was already fought and 
settled some years ago. At the very least what it will do is 
threaten the autonomy and the religious freedom of religious 
organizations. And at the very worst, I think it's a broadside 
against these organizations. It seeks to punish any of these 
organizations which decide that they would like to toil in the 
fields and get involved in the war on poverty.
    What we're saying here is if an organization, if a 
religious organization sees a problem in its neighborhoods, in 
its communities, if it wants to get involved, if it wishes to 
take up the fight, whether it be homelessness, whether it be 
poverty relief, whether it be hunger relief, if it chooses to 
do that, if it wants to get involved in the fight, it should 
surrender an exemption that it enjoys now. I don't think we 
want to do that. I think we want to encourage these 
organizations to get involved in the fight, not send them away.
    Mr. Weiner. Would the gentleman yield?
    Mr. Green. This amendment--this amendment would send them 
away. It would tell them that they should not, they dare not 
get involved in the fight against poverty. I think that's a 
terrible message. I think that's a message that is the opposite 
of what we should be trying to do here today, of what this 
Congress tried to do a few years ago, of what we should be 
doing in the future to finish the war on poverty.
    Mr. Weiner. Will the gentleman yield on that point?
    Mr. Watt. Will the gentleman yield?
    Mr. Green. I will yield to Mr. Weiner.
    Mr. Weiner. I ask this question as a supporter of title 
VII, and I think that so far the responses to this amendment 
have presupposed that someone who supports this amendment, 
supports eliminating title VII. The question is simply why is 
it necessary to fight to protect a right to discriminate based 
on religion when it's a nonreligious position?
    I think that much of this debate misses people like me, who 
fundamentally believe that title VII is the right thing to do, 
who want to----
    Mr. Green. I'd be happy to answer the question.
    Mr. Weiner.--who want to support this initiative, but no 
one has yet told me why it's desirable.
    Mr. Green. Reclaiming my time.
    Mr. Weiner. Certainly.
    Mr. Green. Reclaiming my time, the point is, instead, why 
should such an organization have to give something up just 
because it wants to get involved in the war on poverty?
    Mr. Weiner. Would the gentleman permit me----
    Mr. Green. What you're saying, what this amendment says is, 
if they dare to get involved, then they should surrender. Then 
they should surrender the ability to be religiously autonomous, 
to take control of their own organization. That's what this 
amendment is saying. So I don't view this as a benign 
amendment. I view this as an amendment that is a broadside on 
religious autonomy of these organizations.
    I yield back the balance of my time.
    Mr. Watt. Mr. Chairman?
    Mr. Weiner. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from North Carolina seek recognition?
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    I, with all respect to the gentleman from Wisconsin, I 
think he is confusing the free exercise of religion with the 
free exercise of bigotry. I have absolutely no problem with the 
free exercise of religion, but when somebody asks me why should 
we not allow churches or religions to discriminate, that is the 
free exercise of bigotry. That is not the free exercise of 
religion.
    Second, with all due respect to him, again, he is right. We 
did think we had fought this fight before. We thought we had 
fought it in 1964 and '65, not in 1996 or, you know. Some of us 
thought that we had outlawed all of this bigotry that we're 
talking about, and now we are here raising it again.
    So I just think he's missed the point. I'll yield the 
balance of my time to Mr. Scott.
    Mr. Scott. Thank you, and I thank the gentleman for 
yielding.
    I think we've been subjected to a bizarre suggestion that, 
unless we pass a new bill, we cannot preserve present law. You 
preserve present law by not passing a bill.
    We have a question from the gentleman from New York, why 
should you be able to discriminate? We haven't gotten an answer 
to that because the answer to that would be the same answer 
you'd give to someone running any other secular program. Under 
the manager's amendment, the program you're running cannot be 
advancing religion. You can't have worship service, you can't 
proselytize during the program.
    And if you have a secular program offered by a secular 
organization that just doesn't want to hire people of certain 
religions, the question is why should they have to?
    Mr. Hutchinson. Would the gentleman yield?
    Mr. Scott. Let me finish this. The gentleman from North 
Carolina said that we argued that, and we thought we'd settled 
it in 1965, that whether you liked to hire people of those 
religions or not, as a matter of policy, you have to, 
particularly when you're receiving Federal funds.
    I'll yield the rest of my time to the gentleman from North 
Carolina----
    Mr. Hutchinson. Would the gentleman from North Carolina 
yield?
    Mr. Watt. I'm happy to yield to the gentleman.
    Mr. Hutchinson. I thank the gentleman.
    And this is a very fair question. It gets to the heart of 
the issue, so I think it's fair to put us on the spot and ask 
us that, although I think the Chairman articulated a response. 
It might not be acceptable, but it is the answer. I would give 
another answer, that if you have a religious organization 
that----
    Mr. Watt. Let me just respond to the Chairman quickly, 
though----
    Mr. Hutchinson. It's your time.
    Mr. Watt. It certainly is----
    Mr. Hutchinson. I would like to answer.
    Mr. Watt.--not as a matter of policy do I accept his 
explanation when it comes to the service of soup. I don't have 
any--nobody can justify to me why a church, a private group, 
anybody ought to be able to discriminate in the service of 
soup. We ought to be trying to find the most qualified person 
to serve that soup.
    Mr. Frank. Even chicken soup?
    Mr. Hutchinson. May I respond?
    Mr. Watt. We ought not be trying to find a Baptist or, you 
know----
    Mr. Hutchinson. I have an answer, and I would like to 
provide an answer.
    Mr. Watt. All right. I'll yield back to the gentleman.
    Mr. Hutchinson. The question was originally asked to me, 
and I would look at this way, if you have a religious 
organization, even if they're engaging in the delivery of a 
secular service, there is certain expectation when an 
individual goes to that church property to receive a service; 
that is, what they receive and who they receive it from is 
consistent with the religion.
    For example, if you have a Jewish soup kitchen, and they're 
required to hire a white supremacist, I think that when people 
go there to get the soup, they would be a little bit surprised 
to see tatoos----
    Mr. Watt. White supremacy is not a protected class. It's a 
good cliche, but----
    Mr. Hutchinson. I'm sorry, what?
    Mr. Watt. It's not a protected class under title VII.
    Mr. Frank. Would the gentleman yield?
    Mr. Hutchinson. I think the issue is discrimination on the 
basis of religion, and there is such a religion, and there is 
such a circumstance, and I think----
    Mr. Watt. There's no--I'm not aware of any religion called 
white supremacy.
    Mr. Frank. Would the gentleman yield?
    Mr. Watt. I'll yield to the gentleman from Massachusetts.
    Mr. Frank. The answer was backwards. We're not denying that 
they have a right to discriminate based on outrageous political 
views, but you're talking about religion. And what's 
interesting, this is reversed. You're now using religion as if 
it could be a proxy for bigotry, and if you're saying, ``Well, 
there were these white supremacy religions,'' I suppose I would 
argue they shouldn't be allowed to come into this program, but 
this bill goes much further than what you're arguing for.
    This says, and the Chairman said, ``Well, you know, the 
Protestant shouldn't have to hire the Jews.'' I don't know. 
Maybe what are we saying, the Jews don't have to hire a 
Catholic to serve chicken soup?
    Mr. Graham. Mr. Chairman?
    Chairman Sensenbrenner. The time of the gentleman from 
North Carolina has expired.
    For what purpose does the gentleman from South Carolina, 
Mr. Graham, seek recognition?
    Mr. Graham. I'd like to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Graham. These are emotional, a lot of emotional things 
being said here that make us all wince a little bit when you 
talk about discrimination and religion, and is that really what 
we're trying to do here?
    Someone suggested that the local government has been doing 
this for a long time. I think it was Ms. Lofgren said that 
local government has been engaging in using faith-based 
associations to help with local problems. I think that's 
probably true. I think that's probably a good idea. I think 
this is a good idea.
    What motivates people to want to serve soup or take care of 
people with AIDS or folks that are just hurting in general? 
Some people are motivated to help their fellow man for a lot of 
reasons, and there's a group of those people who are motivated 
by belief in God, that their religious beliefs compel them to 
associate together to do good, to go out and help people who 
are hurting.
    This bill says, ``Come on in and help us, but you're going 
to check your proseltyzing at the door. If you want to serve 
soup, if you want to help people who are downtrodden, we're not 
going to be biased against you because you want to associate 
together for religious reasons because that's your motivation 
to help. If you've got something to bring to the table and you 
can do it well, you're welcome. Come on in. No more bias 
against you.''
    It's funny that one of the first things that Congress did 
when we organized, with many of the Founding Fathers still 
alive, is we bought 16,000 Bibles with public funds. I'm not 
advocating doing that, but I am advocating that we kind of 
mimic what local government has done and use some good old 
common sense here. Nobody supporting this bill wants to take 
Federal money and prop up a religion. What I want to do is 
allow people who are motivated because of their religious 
beliefs to help somebody to have a shot at doing it, if they 
can do it well, and take the bias that exists today against 
those people and throw it in the trash bin where it belongs.
    We've got strict guidelines that regulate your motivation, 
but if you're pure at heart and you want to help people who are 
downtrodden, whatever problems they have, and you're willing to 
check your religion at the door in terms of practicing it, but 
taking your heart and the motivation for wanting to help, you 
are welcome. It is no more or no less, and the Welfare Reform 
Bill has the exact same language. We're allowing people to 
employ folks who have been on Welfare for four/five 
generations, who are banded together, nuns--I guess I can't be 
a nun for a lot of reasons, but I don't want to keep nuns from 
helping people who are motivated because of their religion to 
bring some caring, some comfort to people who are hurting----
    Mr. Weiner. Would the gentleman yield on that point?
    Mr. Graham.--and not convert them to Catholicism.
    Mr. Weiner. Would the gentleman yield on that point?
    Mr. Graham. Yes, I'll be glad to.
    Mr. Weiner. You know, I think that the problem is, you 
know, you're talking to someone who agrees with everything you 
said, and someone who's predisposed----
    Mr. Graham. Let's vote for the bill then.
    Mr. Weiner.--predisposed to be supportive of the bill, who 
now is asking a substantive question about an amendment, and 
I've yet to really get, and Mr. Hutchinson came the closest to 
doing it, but I hear the rhetoric in support of the bill, and I 
appreciate it. But for someone who's wrestling with the 
efficacy of the bill, when I hear such a fever pitch about 
defending a right that no one can really justify practicing, I 
agree with title VII. Sold. I'm with you 100 percent. Why would 
you want to, if it's purely a secular activity, if none of that 
is written into the law, you can't do anything sectarian at 
all, why is there such a fierce defense of the right to 
discriminate based on religion?
    You know, it makes someone like me, who is sitting on the 
fence wavering back and forth, who's getting tugged by people 
on both sides, to say, ``You know what, this makes me very 
nervous. What is it that I'm missing about this that makes it 
so--''
    Mr. Graham. I will try to answer that question.
    Mr. Weiner. Thank you, sir.
    Mr. Graham. In the Welfare Reform Bill, we have the exact 
same language that we're proposing here. Here's what we're 
trying to say: that if you're motivated by your religious 
beliefs and that your association is formed around a 
denomination or religious belief, a set of principles, we, the 
Federal Government, are not asking you to change who you are to 
help your fellow man, we're requiring you to leave your 
religious practices at the door, but you, and others, are 
advocating to me that you can help only under our terms. This 
is not about fostering people who have a religious prejudice, 
this is about allowing people motivated, some because of their 
belief in God and associations----
    Mr. Weiner. Would the gentleman yield?
    Mr. Graham. Please let me finish my thought.
    You're wanting us to make these groups disband. We're 
wanting them to come into the--come into to----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Graham. Come in and help, that's all.
    Mr. Weiner. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York, Mr. Weiner, rise?
    Mr. Weiner. Wish to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Weiner. I have to say, you know, I came to this room, 
as some in the audience are aware, you know, seriously 
considering, and I still am, supporting this bill because I 
think that, on one hand, there's a great deal of great work 
being done, and I don't understand where, in the amendment, 
that we're currently considering, it says you have to abandon 
your religion. I don't know where in this, in this amendment it 
says you have to disband your organization. I don't know where 
it says that someone with a good heart will be driven out of 
the program.
    I think it's a fairly simple proposition, and I've asked it 
several different times, whenever anyone has yielded, I am 
asking what is a substantive question about why it is that it's 
necessary to have the protections of title VII included, when 
title VII, let's face the facts, title VII was written under 
the precept that we don't want to require people of one 
religion who are engaging in their religion, who are 
participating in religious activities, from being forced to 
embraced, through hiring, someone who disagrees with those 
religious precepts. So we carved out this exemption which, for 
some in this body, is controversial, I support it. I believe 
it's the right thing to do.
    But now we have a nonreligious element to that 
organization. It's nonreligious not because I say it is, but 
because, Chairman Sensenbrenner, in his very sensible 
alternative that I think went a long way to assuaging people 
like me about the true intents of this bill, wrote it in, in so 
many words. In a colloquy between Mr. Frank and Mr. 
Sensenbrenner, they made it even clearer that you can't even 
say you've got to find--you've got to find a spirit, you've got 
to find God before you get off alcohol. You can't even say 
that, according to the colloquy.
    And now here it is an amendment to simply say, look, if 
you're going to do these purely secular things, these 
nonreligious things that just happen to be under the umbrella 
of a religious organization, people who want to help, they want 
to do the right thing, simply don't, for the purposes of hiring 
for those jobs, don't discriminate based on religion.
    And rather than have a debate about why it's necessary to 
have that, there is a--there is the straw man of we're trying 
to tear down the program. Well, I don't know if the sponsor is 
or isn't, but I really do believe that this is one of the two 
or three things that we can fix, make this a bill that will be 
widely acceptable in this body, and I just don't see--I just 
don't see the wisdom on a political level by----
    Mr. Issa. Would the gentleman yield?
    Mr. Weiner. Certainly.
    Mr. Issa. Perhaps I can give you an example that might 
clarify why I think that, as the law is about to be written, it 
has merit.
    In our own congressional offices, we have a charge to 
represent, fairly and equally, the people who voted for us and 
the people who will never vote for us, some 600,000 per 
district, and we take that charge seriously, and we execute it, 
I think, diligently to a Member. But in our own organizations, 
on both sides of the aisle, we staff with people who believe as 
we believe, and we would never consider putting together a paid 
staff of people who didn't vote for us, voted for our opponent 
and still don't agree with us.
    Mr. Weiner. Okay. If you'll permit me to reclaim the time, 
that's not what title VII says. You're not covered under title 
VII. You've got to be a religious organization exercising a 
religious, a predominantly religious function in order to 
qualify for title VII. We're now taking a nonreligious 
function, by the testimony of everyone, by the words of the 
bill, and we're extending--we're extending Federal dollars for 
this non-government program operating under religious umbrella. 
I'm with you, tentatively, for now, for the moment.
    And all we're saying is, for those purposes, you can't 
discriminate based on religion. I'm not talking about based on 
your views on the world. You can probably discriminate based on 
that now. I'm not saying based on whether you think it's a good 
or bad thing to have a drug treatment program. You can 
discriminate on that based on now. Why do you want to 
discriminate based on religion? Answer that question.
    Mr. Frank. Would the gentleman yield?
    Mr. Weiner. Certainly, sir, even though I'm not sure you're 
the best person to answer.
    Mr. Frank. No, I said--but you've the hit---- [Laughter.]
    Mr. Frank. You've hit the point that I think is so 
disturbing about this. The assumption against this amendment is 
that there is somehow something unpleasant or debilitating 
about asking religious people to associate with someone of 
another religion. My friend from South Carolina said, ``Well, 
they're motivated by their common religion, and you don't want 
to take that away.'' What is it about associating with someone 
of good faith of a different religion that so drains you of 
your motive to be helpful? It's that very notion that somehow 
forcing you--forcing a Jew to associate with a Protestant or a 
Protestant with a Muslim or a Muslim with a Catholic that 
somehow this is disorienting.
    Mr. Weiner. Will the gentleman yield?
    Mr. Frank. You are promoting a sense of religious 
exclusivity and hostility. Yeah, I do not want Jews and 
Protestants to treat each other as I treat people who run 
against me in an election. [Laughter.]
    Chairman Sensenbrenner. The time of the gentleman from New 
York has expired.
    Ms. Waters. Mr. Chairman?
    Mr. Bachus. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Alabama, Mr. Bachus, seek recognition?
    Mr. Bachus. To strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Bachus. Earlier in this debate, the Nation of Islam was 
brought up by the gentleman from Massachusetts and the 
gentleman from North Carolina in that agreements they had to--
with certain public housing communities. And it was said 
earlier in this hearing that the problem with the Nation of 
Islam that we objected to was that they were hiring people 
based on their religion.
    Now, in fact, that wasn't, if it was raised, it was raised 
only incidentally, because the Baltimore Sun and several 
other--I conducted those hearings, as Chairman of the Oversight 
Committee, some of them that we participated in. I wanted to 
tell you my recollection. I've gone back and read during the 
break what some of the news coverage of the day was. What they 
were accused of doing was roughing up residents, of coercing 
the residents, of even the word ``racketeering'' was used, of 
people that had businesses, intimidating people that had 
businesses in the community----
    Mr. Weiner. Would the gentleman yield----
    Mr. Bachus. And of violating people's civil rights by 
holding and--let me get this right, I don't want to--by strong-
arming and holding people suspected of breaking laws----
    Mr. Weiner. Would the gentleman yield on the point just----
    Mr. Bachus.--and interrogating them.
    Mr. Weiner. Would the gentleman yield?
    Ms. Waters. Would the gentleman yield?
    Mr. Weiner. I might be able to shed some light on that.
    Mr. Bachus. I will yield in----
    Mr. Weiner. I was the----
    Mr. Bachus.--of disseminating anti-Semitic literature, 
which actually calls for--called for acts of violence and also 
anti----
    Mr. Weiner. If the gentleman would yield, I might be able 
to shed some--I was, at the time, in the City Council, and I 
was the Subcommittee Chairman of Public Housing. The fact is 
that largely what got people's goat is the fact that it was the 
Nation of Islam and their core beliefs. That's what made it--
now, there were other issues that were raised, but at the crux 
of the issue was because they were the Nation of Islam, a 
virulently anti-Semitic organization, and a lot of people were 
offended by that.
    Ms. Waters. Would the gentleman yield?
    Mr. Weiner. I will gladly yield back.
    Mr. Bachus. But what I'm saying is what was--and the 
hearings were about things they were saying--they were actually 
advocating violence, and----
    Ms. Waters. Will the gentleman just for a moment?
    Mr. Bachus. I will yield.
    Ms. Waters. And since you bring it up, I just kind of want 
to set the record straight. For those of us who have the very, 
very serious problems in public housing of drugs and crime, et 
cetera, the Muslims were--were absolutely effective in helping 
to deal with those problems. Yes, there are other problems, and 
I was more interested in what people had to say about them 
proselytizing, but I want to tell you, they did not--there's 
never been any history of roughing up people, of creating harm. 
That's not what they were doing. They were taking very young 
men who didn't have a sense of themselves and helping them to 
stay out of jail and to go to school and keeping those projects 
safe for all of the residents.
    Mr. Bachus. And there was a--and there was a serious debate 
as to whether they were breaking the law or not, and----
    Mr. Frank. Mr. Chairman, a parliamentary inquiry.
    Mr. Bachus. But there were people with other organizations 
which said they were----
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Alabama.
    Mr. Bachus. But what I'm saying, the discussion did not 
focus on the fact of them hiring----
    Mr. Frank. Will the gentleman yield for a parliamentary 
inquiry?
    Mr. Bachus. I never remember that being mentioned.
    Mr. Frank. Will the gentleman yield for a parliamentary 
inquiry?
    Mr. Bachus. I will yield, but I----
    Mr. Frank. I thank the gentleman. Does the fact that none 
of this discussion relates to the amendment under consideration 
bother anybody but me?
    Mr. Bachus. Well, it does in the----
    Chairman Sensenbrenner. The Chair does not make subjective 
evaluations of Members' debates.
    Mr. Bachus. It was brought up----
    Chairman Sensenbrenner. You wouldn't want me to do that, 
would you?
    Mr. Frank. On relevance, I definitely would.
    Mr. Bachus. It was brought up----
    Mr. Frank. I would just like to make a point of order this 
is not germane to the amendment under debate.
    Mr. Bachus. I'll take back my time. It was brought up that 
the objection to the Nation of Islam and their contracts with 
the public housing----
    Mr. Frank. If the gentleman will yield, but not in the 
context of this amendment.
    Mr. Bachus.--because they were hiring people of their own 
religion. That's not what the newspaper accounts say, and 
that's not why my recollection was.
    Chairman Sensenbrenner. The gentleman yields back.
    The question is on----
    Ms. Waters. Mr. Chairman? Mr. Chairman?
    Chairman Sensenbrenner. The question is on the amendment--
--
    Ms. Waters. Mr. Chairman? Mr. Chairman? [Laughter.]
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Waters, for what purpose do you seek recognition?
    Ms. Waters. Strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Waters. So much has been said here today. I think it's 
going to take us a while to be able to deal with the 
misinformation that is being disseminated here.
    First of all, I keep hearing that there are--there is some 
bias against religious organizations seeking Federal funds. I 
do not believe that to be true. As a matter of fact, I think if 
we take a look at the Catholic charities, many of our Jewish 
organizations, we will find that they do very, very well in 
responding to requests for proposal, and they have child care 
centers, they have senior citizens operations, they have all 
kinds of operations. In my district, we have churches, even 
small churches who have done quite well in competing for 
Government money.
    So I wish, unless there is some documentation or 
information that somebody can bring forward to show that 
there's some bias that religious organizations are not able to 
compete, I wish we would just get that off the table because 
that simply is not true.
    Secondly, it was said earlier that many of the cults or 
more bizarre religious organizations that some people have some 
concerns about--Mr. Gekas, for one, who was trying to figure 
out would they be able to get Government funding. I think we 
tried to make it clear that all, all religious organizations, 
be it cult or not, will be eligible to compete for funding 
under this legislation.
    Someone said, ``Well, you don't have to worry about that 
because if they were interested, they would be doing it today, 
and many of those cults that you're worried about are not doing 
it.'' But I have to bring to your attention, they would not 
receive the kind of exemptions that we are promoting in this 
legislation if they competed today. If they compete, if this 
bill is passed, they will find it much easier, and they will 
want to be more involved because they will not be prohibited 
from discriminating in any shape, form or fashion that they 
would like to if they describe that as part of their religion.
    What really worries me, I'm not so worried so much about 
even whether or not people are going to discriminate based on 
race. I mean, as much as we work at it, that happens today. But 
what I'm worried about is the expansion of the discriminations. 
If your religion says you do not accept women who are 
divorcees, you do not accept a person who's had a child out of 
wedlock, that it's against your religion to allow a gay person 
to be a part of your operation, we're just expanding the 
opportunities for discrimination. Where does it stop?
    There are all kinds of religions. Someone just brought me 
this religion that is organized around Satanism and talking 
about what they believe in, and they would be free to exercise 
their beliefs under this bill. So I am supporting this 
amendment, and I'm hopeful that we can start to speak in ways 
that we can document, as we move forward, so that we can roll 
out the truth about what we're doing. The fact of the matter 
is, if we do not exclude from this legislation the ability to 
discriminate, we will be opening up Pandora's box to expand 
discrimination beyond what we know and understand about 
discrimination today.
    So I would ask my colleagues to please support the 
amendment.
    Mr. Scarborough. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Florida, Mr. Scarborough, seek recognition?
    Mr. Scarborough. To strike the last word. There have been--
--
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scarborough. There have been a lot of sort of hysterics 
going on here, the free exercise of bigotry and other things, 
people talking about that, a lot of show-boating, but I do want 
to talk to Mr. Weiner.
    And, Mr. Weiner, you've asked the question repeatedly, and 
I'm not speaking for the Chairman, I'm not speaking for 
anybody, but let me take a crack at this thing, and maybe we 
can have a little back and forth here to see if you--because I 
understand what the gentleman from California was starting to 
get at, where we've heard it said over and over again that 
Members' offices, the culture of Members' offices reflect the 
Member himself or herself. Likewise, we've, you know, we've 
heard about the culture of IBM, the culture of Microsoft. 
There, I mean, there is a culture to each organization which 
either makes that organization effective or makes it fail.
    Now, I think it's safe to say, and there may be some people 
that disagree with me on this Committee, but the majority of 
Americans do believe that, by their inherent nature, faith-
based organizations can effectively deliver a service to their 
communities in need in a way that the Department of HHS cannot. 
If that were not the case, then obviously Al Gore, and George 
W. Bush, and just about every other politician wouldn't be 
talking about how great faith-based organizations are in 
delivering services to the most needy.
    I do believe, although it has not been articulated well, 
and I'm not trying to persuade you, I'm just merely saying that 
there are some of us that believe this that may not be able to 
articulate it very well, that there is a culture in, let's say, 
rural Protestant Church that is separate from a culture in, 
let's say, an urban synagogue or in a Catholic Church that is 
separate from another.
    And I see Ms. Waters. She's about to explode, and I'm sure 
I'm going to be a bigot, and this, that, and the other, but I'm 
just saying there is----
    Chairman Sensenbrenner. The Chair is prepared to declare a 
30-second recess.
    Mr. Scarborough. Why is that?
    Chairman Sensenbrenner. So that nobody explodes. We don't 
want that to happen.
    Mr. Scarborough. I love Ms. Waters---- [Laughter.]
    Mr. Scarborough. I love Ms. Waters, and Ms. Waters loves 
me. She hugs me on the floor every chance she gets. That's why 
she got up. She couldn't resist herself. [Laughter.]
    Mr. Scarborough. But there is a culture, seriously, there 
is an inherent culture in these organizations, like, for 
instance, and I'll talk about my church. I'm Southern Baptist. 
I disagree with a lot of things they believe about people who 
are divorced not being able to be deacons or, or women not 
being able to preach, all right? But I do know that there are 
Southern--and if that offends me, I can, I can take a hike. But 
there are, even though I disagree with some of the things that 
people in the Southern Baptist Church believe in, they can 
effectively deliver services because of the culture of whether 
it's First Baptist Church of Pensacola or----
    Mr. Weiner. Will the gentleman yield on that point?
    Mr. Scarborough. Yes, sir, I will.
    Mr. Weiner. Would the gentleman yield on that? And I'm 
convinced the Southern Baptist Church can deliver those under 
this bill.
    Perhaps you can enlighten me, and using the example of the 
Southern Baptist Church or whatever you referred to, someone 
coming in for a job interview to work in a job training program 
to teach typing to someone who had been laid off----
    Mr. Scarborough. Right.
    Mr. Weiner. Why is it, give me an example, just so I can 
fully get my mind around it, why is it necessary that they be 
Baptist and why is it not only necessary, why is it so 
important to this program that it means offending 35 or 40 
Members around here who might be willing to make this a bill 
that 300 people can vote for?
    Mr. Scarborough. Yeah, well, I don't think it's--reclaiming 
my time--I don't think it's necessary. And, obviously, I think 
most of us on this panel, I would hope, would agree that it 
would be extraordinarily bigoted for any, any organization, be 
it a faith-based or secular organization, to prevent people 
from being hired. But I think the biggest concern is 
compelling, for instance, a synagogue in a certain area to hire 
a fundamentalist, right wing, religious, whatever, that would, 
after all----
    Mr. Weiner. Typing teacher?
    Mr. Scarborough. Hold on a second. Hold on a second.
    Mr. Weiner. What does a right-wing typing teacher do, only 
type with the right hand?
    Mr. Scarborough. We're talking about, and again---- 
[Laughter.]
    Mr. Scarborough. Again, if you want to get laughs, that's 
fine, but, for instance, delivering soup, let's say, for 
instance, in an area that's heavily served, let's say a 
synagogue in an urban part of the area, listen, they want to 
get their soup. They don't want to hear somebody with views 
that's completely different from their own views. And I 
understand, I understand what the bill says that they're not 
allowed to do that. But, again, if you compel these 
organizations, again, whose culture, many Americans believe, 
allow faith-based organizations to deliver services more 
effectively than, say, the Department of HHS----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Scarborough.--there's a risk of changing the very 
culture of those organizations.
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Scarborough. Thank you.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California, Ms. Lofgren, seek recognition?
    Ms. Lofgren. To strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. I--I was fascinated by the last exchange 
because, apparently, even though there is a prohibition on 
proselytizing, the reality would be that there would be 
proselytizing, and therefore we need to make sure that 
religious institutions can discriminate against people who are 
not of their religion so that they can violate this statute, 
which I think is a very odd proposition.
    But I would just, going back to my experience in local 
government, I would just like to say I think this bill is a, is 
a solution in search of a problem. I mean, we used all kinds of 
contracts with religious-based organizations. Catholic 
Charities ran the Immigration Counseling Center. The only 
instance in my 14 years on the Board of Supervisors that ever 
came to my attention that someone, a religious group felt that 
they might not be--having treated fairly, was an evangelical 
church who wondered were they being treated fairly, and I met 
with them, and we made sure that they were brought into the 
opportunity to provide food through the food service, the 
largest faith-based group in Santa Clara County, PAC, which 
has, I think now, 17 parishes and churches. They provide 
homework centers, the biggest homework centers for all the kids 
after school. They wouldn't even consider discriminating 
against a tutor based on their religion, and Catholic Charities 
wouldn't even consider discriminating against a psychologist in 
hiring for one of the programs, the mental health programs they 
run. It would be inconceivable.
    So I really strongly believe that Mr. Scott's amendment is 
necessary and that this bill is probably not, but I would like 
to yield to Mr. Scott, at this point.
    Mr. Scott. Thank you, and I thank the gentlelady for 
yielding.
    I just want to make a couple of points. First of all, a lot 
has been said about Welfare Reform. What has not been said is 
that when President Clinton signed the bill, he indicated that 
he thought that portion of the Welfare Reform Bill was 
unconstitutional, rules were not implemented to promulgate that 
portion of the legislation.
    It was also suggested that this is the same old language 
that we have in Welfare Reform--not true. The provision in 
Welfare Reform has the ability to discriminate, but it 
specifically said that nothing in this section shall be 
construed to preempt any provision of a State Constitution or 
State statute that prohibits or restricts the expenditure of 
State funds in and by religious organizations. So, if you have 
commingled funds, and it's illegal to discriminate under State 
law, you can't do that. But under this, under the manager's 
amendment, you waive all State laws.
    The gentleman from New York really hasn't been given a good 
answer to his question. If you have a--if you have a person of 
faith running a secular program, the present law in America is 
that they are subject to civil rights laws, whether they like 
it or not.
    Mr. Gekas. Mr. Chairman?
    Mr. Scott. That has been the policy for years. If they 
receive Federal money, if they're running a large organization 
and hire people, whether they like it not, we've set the policy 
that they cannot discriminate against people based on their 
religion.
    What we're doing in this bill is saying, well, maybe that 
was a bad idea. I think that was a good idea, and we ought not 
change it.
    I yield back the balance of her time.
    Mr. Gekas. Mr. Chairman?
    Chairman Sensenbrenner. Let me try to put the question. The 
question is on the Scott amendment to the Chairman's amendment. 
Those in--well, I recognize somebody on the Republican side 
next.
    For what purpose does the gentleman from Pennsylvania, Mr. 
Gekas, seek recognition?
    Mr. Gekas. For the excellent reason of yielding to the 
gentleman from South Carolina.
    Chairman Sensenbrenner. Well, you can strike the last word. 
You're recognized for 5 minutes.
    Mr. Gekas. And I yield to the gentleman from South 
Carolina.
    Mr. Graham. I would like to--Mr. Scott maybe can help me 
with this. I think the law is pretty clear, as I understand it, 
and maybe my understanding is wrong.
    Title VII that exists today in Federal law has an 
exemption, as I understand it, for religious organizations, 
that they're not required under title VII to change their 
hiring practices, but they are required not to discriminate on 
the basis of race, color, national origin, sex, age, and 
disability, and that there are several cases that maintain that 
you do not lose that ability to hire, based on your religious 
principles, if you receive Federal funds.
    There are several schools that--St. Francis College in 
Brooklyn, Mary Grove College in Detroit, the Baptist 
Theological Seminary in Richmond--maintain the religious 
character of their schools through hiring practices. They offer 
child care services, Pell grants and other Federal aid is 
provided to students attending those schools, and there's a 
line of cases that say that if you're a religious organization, 
you can, in fact, receive Federal support and funding and not 
change your religious hiring practices, but you can't 
discriminate otherwise.
    I would argue that that logic applies here, that we're--
that we're allowing people to participate in providing services 
in a secular way. We're requiring them to leave their religious 
practices at the door, but we're not going to require them to 
change their hiring practices because to do so would undermine 
the character of the organization, and there is many cases that 
seem to uphold that concept.
    Mr. Frank. Would the gentleman from Pennsylvania yield?
    Mr. Gekas. Yes, I will yield, but only to the gentleman of 
Illinois first, and then receive the rest of the time that I 
might yield to the gentleman from Massachusetts.
    Mr. Frank. Hope will spring eternal. [Laughter.]
    Mr. Hyde. I have been listening to this with great 
attention all afternoon, and I--at the risk of oversimplifying, 
I would like to cut to the chase. What we're talking about in 
the, in the whole, is an army of people out there motivated by 
spiritual impulses who want to do good, who want to help solve 
poverty, disease, violence in the community, homelessness, 
hunger, and some of them are clergy, some of them are not. They 
are religiously motivated, and we've spent all afternoon 
finding ways to keep them out. We've got enough help. We don't 
need--there's too much God out there. We suffer from an excess 
of God, for some crazy reason.
    Discrimination. If the First Baptist Church wants to do 
something as the First Baptist Church, take care of some 
homeless people, the fact that they want to retain their 
identity and not become another local United Fund operation, 
there's nothing wrong with that. There's nothing wrong with the 
Black Caucus saying, ``You want to join us, you've got to be 
black.''
    Ms. Waters. We don't say that.
    Mr. Hyde. Oh, well, Pete Stark didn't get in, did he? Am I 
welcome?
    Ms. Waters. Yes.
    Mr. Hyde. What are the dues?
    Ms. Waters. Huh?
    Mr. Hyde. What are the dues? [Laughter.]
    Ms. Waters. Mr. Chairman----
    Chairman Sensenbrenner. Yes?
    Ms. Waters. I must correct the record. You do not have to 
be black to be a member of the Black Caucus.
    Mr. Hyde. You mean an associate member.
    Ms. Waters. No, I do not mean an associate member.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Pennsylvania.
    Mr. Hyde. All right. I'm sorry. Let me finish.
    There is discrimination and there is invidious 
discrimination. I don't think it's discriminating for Baptists 
to want to hire Baptists to do something as the Baptist Church 
is going to do. I think that's fine. That's not invidious 
discrimination. So, as far as I'm concerned, we ought to figure 
out ways to facilitate the exploitation, the benign 
exploitation of these wonderful people who want to help us with 
our very human problems, instead of finding ways to say no 
because, for fear, some God might sneak in under the, under the 
door.
    Thank you.
    Mr. Frank. Will the gentleman yield?
    Chairman Sensenbrenner. The time of the gentleman is about 
to expire in 5 seconds----
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The question is on the amendment of 
the gentleman from Virginia, Mr. Scott, to the Chairman's 
amendment.
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. Those in favor, will say aye.
    Mr. Watt. Mr. Chairman, you are passing over a Member down 
here.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California seek recognition?
    Mr. Schiff. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. The very narrow question that's been presented 
by this amendment is simply whether religious institutions 
should be allowed to discriminate on religious grounds in 
providing secular services with Federal dollars.
    Now, the point has been made that this is already the law, 
but the fact of the matter is this is not already the law. 
There is no provision of the law that allows direct Federal 
funding of religious institutions for secular services with a 
provision allowing religious discrimination and the provision 
of those services or in hiring decisions. So this is new law.
    Now, the point is also made that why should we preclude 
religious institutions from entering the war on poverty.
    Mr. Graham. Would the gentleman yield?
    Mr. Schiff. When I'm finished, I will be glad to yield. Why 
should we preclude religious institutions from entering the war 
on poverty? Well, of course, we're not. Religious institutions 
are involved in the war on poverty. They've been vital in the 
war on poverty for all of the reasons that the gentleman from 
Illinois has also mentioned, and that's a good thing. The 
question is whether they should be able to receive Federal 
funds and discriminate on religious grounds. That's a very 
different question than whether they should be involved in the 
war on poverty.
    I would ask can a secular organization discriminate on 
religious grounds? Would we allow a secular organization that's 
providing soup or food or other services to discriminate on 
religious grounds? No, we would not. Aren't we then preferring 
religion by allowing religious organizations to discriminate 
when providing secular services, where we do not allow secular 
organizations to do the same thing?
    Now, some of the Members have made the I find astounding 
point, as the gentleman from California did, that, well, in our 
congressional offices we can choose people of like political 
mind. But, plainly, we cannot in our political offices decide 
that we will only hire people of a certain religion. Indeed, it 
would be inappropriate for us to ask, in our congressional 
offices, what the religious views are of potential job 
applicants. That would be completely inappropriate, and I think 
it no more appropriate, when we're talking about the provision 
of purely secular services for religious organizations, to ask 
the same question.
    The only, I believe, real objection to this amendment was 
made by the Chairman, and it's a very real concern and a 
practical one, and that is that many of these religious 
organizations are small, they have small staffs, and it is the 
same people who would be desired to provide the religious 
service and, in a separate context, the secular service, and 
that's a real problem.
    But, ultimately, the question then becomes what is more 
important, that we allow, out of desire to accommodate those 
smaller institutions, that we allow the commingling of 
functions of that individual and the potential of commingling 
of dollars in support of that individual, that we allow the 
discrimination in the hiring of that individual as an 
accommodation, whether that ought to outweigh the issue of 
being able to discriminate on religious grounds and the use of 
Federal dollars.
    And I must say that when you weigh the two, that very real 
and understandable practical concern, against the very strong 
desire not to discriminate on religious grounds, the practical 
concern must give way.
    Mr. Graham. Would the gentleman yield?
    Mr. Schiff. I will in just one moment.
    I think that the reasons this bill has been offered, most 
eloquently expressed by the gentleman from Illinois, are very 
well-founded and understandable, and the opposition has nothing 
to do with a desire to take God out of public life or 
charitable institutions. I think, rather, the concern is out of 
a desire to strengthen and keep strong those institutions, and 
at the same time recognize that, in circumstances where we're 
talking about purely secular services, there is no need, and 
every desire not to discriminate.
    I would be happy to yield the balance of my time.
    Mr. Graham. Just to give you my interpretation of the law, 
I disagree with the gentleman's interpretation of current law. 
Section 702(a) of the Civil Rights Act of 1964 exempts 
nonprofit private religious organizations engaged in both 
religious and secular nonprofit activities from title VII's 
prohibition on discrimination of employment on the basis of 
religion.
    The United States Supreme Court in The Corporation of the 
Presiding Bishop of the Church of Jesus Christ of Latter Day 
Saints versus Amos held that no provision in 702(a) states, 
``By receiving Federal funds, that the prohibition--that the 
exemption is waived. Title VII's prohibition on discrimination 
in employment is not forfeited when a faith-based organization 
receives a Federal grant.''
    I believe that's the law, and this amendment would change 
the law.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The question is on the Scott amendment to the Chairman's 
amendment.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. Record vote is ordered. Those 
in favor of the Scott amendment to the Chairman's amendment 
will, as your names are called, answer aye, those opposed, no, 
and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    Mr. Hyde. No.
    The Clerk. Mr. Hyde, no. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Barr?
    Mr. Barr. No.
    The Clerk. Mr. Barr, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
    Mr. Hutchinson. No.
    The Clerk. Mr. Hutchinson, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Graham?
    Mr. Graham. No.
    The Clerk. Mr. Graham, no. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no. Mr. Scarborough?
    Mr. Scarborough. No.
    The Clerk. Mr. Scarborough, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Frank?
    Mr. Frank. Aye.
    The Clerk. Mr. Frank, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Are there additional Members in the 
room who desire to cast their vote or change their vote?
    The gentleman from Arizona?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Chairman Sensenbrenner. Further Members who wish to change 
or cast their votes?
    If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 11 ayes and 19 nays.
    Chairman Sensenbrenner. The amendment is not agreed to.
    Are there further amendments?
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from North Carolina seek recognition?
    Mr. Watt. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Watt. It's the one that starts, ``Page 13, line 19.''
    The Clerk. Amendment to the Sensenbrenner amendment to H.R. 
7 offered by Mr. Watt.
    Mr. Watt. Mr. Chairman, I ask unanimous consent the 
amendment be considered as read.
    Chairman Sensenbrenner. Without objection, so ordered.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman. I hope this doesn't set 
off a repeat of the same debate again that we just had on the 
Scott amendment.
    The concerns, although I voted for the Scott amendment, 
that I thought were going to be raised about the Scott 
amendment was that his amendment was too broad, and basically 
wiped out the religious organizations' exemption under the 
Civil Rights Act of 1964, which I believe is, as Mr. Weiner has 
indicated, an important exemption to have for the religious 
activities of a church or religious organization.
    Where I think we run into problems is the language on Page 
13, starting on lines 19 through 23, which says, ``and any 
provision in such programs that is inconsistent with or would 
diminish the exercise of an organization's autonomy, recognized 
in section 702 or in this section, shall have no effect.''
    I think the Chairman's language walks both sides of this. 
It says, on one hand, that religious organizations have an 
exemption. It says, on the other side, that basically they can 
do anything that they want to do, whether it's with their own 
funds or with Government funds, and this amendment would simply 
make it clear that the religious exemption for religious 
activities under title VII is protected, but that nothing in 
this section would alter the duty of a religious organization 
to comply with the nondiscrimination provisions of title VII of 
the Civil Rights Act of 1964 in the use of funds from programs 
described under this bill.
    I think it's absolutely important to be clear that 
religious organizations are not required to hire members of 
other faiths to perform their core religious functions, but I 
also think it is absolutely imperative that we make it crystal 
clear that in the use of Federal funds we will not tolerate 
employment discrimination, and I am hopeful that my colleagues 
will agree with that proposition and will support this 
amendment, and I yield back the balance of my time.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Ohio seek recognition?
    Mr. Chabot. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I must oppose the 
amendment. The only reason the language of E(e) is in there is 
because when the 1996 Welfare Reform Act passed, it created an 
entirely new Federal program. It replaced AFDC with TANF, so 
there was no need to make sure any inconsistent Federal 
provisions were preempted, but H.R. 7 applies the same title 
VII exemption to these existing Federal programs, so we have to 
make sure that preservation is consistently applied. The bottom 
line is, is the recommended insertion is redundant. Nothing in 
the bill does anything to prevent the enforcement of other 
Federal civil rights laws. These laws already apply of their 
own force.
    I yield back the balance of my time.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Massachusetts seek recognition?
    Mr. Frank. Mr. Chairman, I speak in--I ask to strike the 
requisite number of words for the purpose of----
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Frank.--speaking in favor of the amendment.
    I must say, as a general principle, I rarely, I don't think 
ever, have found redundancy to be a good reason for rejecting 
something. If there is any ambiguity, we ought to clear it up.
    I do not think there are professions in the world less 
opposed to redundancy than that of legislators and lawyers. And 
when any of us objects to something on the grounds of 
redundancy, I am inclined to think that it is not a full 
explanation. And I want to talk about the importance of the 
gentleman's amendment and respond to some of the things that 
were said before.
    The gentleman from Illinois, the former Chairman, spoke 
with his usual eloquence, but I have to say not with his usual 
relevance. Of course, we welcome the religiously motivated 
people who want to help. I want to be very clear. I have, 
throughout my public career, benefitted enormously, and I'm 
proud of my work with them. The archdiocese of Boston has had a 
housing program for as long as I can remember that's 
extraordinarily successful, and I'm very pleased, now that I'm 
the ranking Democrat on the Housing Subcommittee, to be able to 
work with them even more. Of course, they do good work, but 
they have never felt that they had to discriminate in the 
hiring of architects. They never felt that they had to 
discriminate in the hiring of developers, nor did they think 
that having to hire architects without regard to the 
architect's religion somehow destroyed the cohesion of the 
Catholic Church, somehow undermined the ability of the 
archdiocese to be a faith community, and that's what I find 
troubling about this. There are two aspects of it.
    First, this bill assumes, it seeks a significant expansion 
of the extent to which faith-based organizations are the 
vehicle for Federal funding. Let's be very clear. The notion is 
that they are an underutilized resource. The problem is that if 
you simultaneously substantially increase their role in the 
provision of the services and allow them to discriminate based 
on religion in hiring people to perform those services, you now 
have a significant impediment to people who may not be 
religious or who may be of a very minority religion to getting 
hired. You're no longer talking about some incidental thing. 
The goal of this is to make faith-based institutions a major 
source of service delivery, all the more reason than not to 
tell them to discriminate in the hiring for the nonreligious 
aspects of this.
    Secondly, I'm disturbed by the implications of what we've 
heard. The suggestion is--the statement is that somehow it is 
deleterious to the very purpose of a religious organization for 
its members to have to hire nonbelievers in their religion to 
do nonreligious things. I urge my colleagues to think about 
this. What we are doing is encouraging a kind of religious 
segregation that does not serve religion well.
    Yes, people of common religion ought to be able to come 
together undisturbed in their worship services. They ought to 
be able to hire people to perform these religious services 
undeterred by any law. They ought to be, when motivated, coming 
together to provide this service. But the notion that somehow, 
when they come together, when they use their institution as the 
locus with Federal funding providing, providing this service, 
if they are joined by people of different religions, that 
somehow is deleterious to them, is a very troubling thought.
    Now, people have said, ``Well, suppose it's someone who is 
hostile.'' That's a different story. If you came in with a 
tailored piece of language that said, ``People need not put up 
with people who are going to be in total disagreement,'' that's 
a different set of circumstances. That's not this bill. This 
bill says, and we've heard justifications, well, you know, if 
you're a Baptist, you shouldn't have to associate with a 
Catholic or an Episcopalian in providing the social service. If 
you're a Jew, people have said, ``Well, a Jew shouldn't have to 
have a right wing fundamentalist serving the soup.'' No, I 
think that's quite wrong.
    Indeed, people talk about our congressional offices. Our 
congressional offices, of course, are different than religions, 
but even there I would think it wrong, when my office was 
hiring someone, to perform a service unrelated to my election, 
cleaning my office, doing these sorts of things, no, I don't 
believe I should be allowed to impose a political test.
    Mr. Hyde. Would the gentleman yield?
    Mr. Frank. I'll yield to the gentleman.
    Mr. Hyde. The gentleman is perfectly correct. In large-
scale undertakings involving architects and other professional 
people, I certainly agree with the gentleman, but you have a 
small operation. The institution performing the service is 
entitled to its identity without being accused of being 
bigoted.
    Mr. Frank. No, I didn't use the word ``bigoted.'' The 
gentleman from Florida did, at some point, he said he thought 
it would be bigoted. But this amendment, this language in the 
law does not say it only applies to small organizations. It 
applies to large ones, as well, and I do not think, and here's 
where I differ with my friend from Illinois, I do not think it 
destroys your identity----
    Chairman Sensenbrenner. The time of the gentleman----
    Mr. Frank.--to have to share your space with someone of a 
different religion.
    Chairman Sensenbrenner.--has expired.
    Ms. Hart. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Pennsylvania seek recognition?
    Ms. Hart. Move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Hart. Thank you, Mr. Chairman. This amendment really 
does, in my opinion, attempt to do similar damage to the 
legislation that the prior amendment attempted to do, and when 
I call it damage, I do so for a reason.
    The reason this bill is being advanced in the first place 
is to allow churches to continue to provide these services and 
get some help in providing those services as a contractor, not 
to change the character of the church, but to allow this church 
to participate in something they were heretofore forbidden from 
participating in.
    If we accept these amendments, we do one thing that I think 
is completely wrong, and that is we don't allow them to retain 
the character which makes them so attractive as a service 
provider to begin with. There's a lot of assumptions being made 
by those who support these amendments that these churches are 
going to go out and hire a whole bunch of people to provide 
these services, when, in reality, anyone who's ever worked with 
any of the churches that provide these kinds of services are 
mostly very small, small groups of congregants, some who are 
paid, most who are volunteer, who are driven to provide this 
service from their hearts, from a spiritual desire to serve. 
Some of them will do it as a profession. These churches are not 
going to be spending money wildly, hiring a whole bunch of new 
people just to provide a separate service. That's my first 
point.
    My second point is that the Supreme Court, as I know Mr. 
Graham mentioned earlier, upheld the opportunity or the 
decision of these churches to hire whom they please and to make 
the decision to hire people of their religion in The Presiding 
Bishop versus Amos. But the Supreme Court also stated, in 
Rendell Baker versus Cohen, that just because a faith-based 
organization is providing a service as a contractor to the 
State, they do not become State actors. They do not, therefore, 
lose the status that they enjoy as a private religious 
organization simply because they're getting Government money.
    So those who support this amendment are asking that we 
completely change the law and, in two cases, and I'm sure many 
more, where it was upheld by the Supreme Court that we don't 
need to require that change because if we did require that 
change, there would be no reason to have this bill.
    Mr. Nadler. Mr. Chairman?
    Ms. Hart. Is he asking me to yield? Is that a yes?
    Mr. Nadler. No.
    Ms. Hart. Okay. And, finally----
    Mr. Nadler. Will the gentlelady yield?
    Ms. Hart. I'm just going to finish because I'm almost done.
    If a Catholic School hires a teacher, they have every 
right, I think most people would agree, to hire a Catholic 
teacher. Many of those Catholic Schools have been also given 
Government money to provide services that could be provided 
someplace else. That has also been upheld. They are not forced, 
then, to hire an additional teacher and not discriminate in 
their hiring, that they could use the same teacher that they 
have or hire another Catholic teacher. There is nothing wrong 
with that. It's been supported over and over again, and I stand 
by that the bill, as it's written, I think it stands by the 
Constitution, it stands by decisions of the U.S. Supreme Court, 
and I would reject this amendment.
    Thank you, Mr. Chairman.
    Mr. Nadler. Would the gentlelady yield?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York, Mr. Nadler----
    Mr. Nadler. Strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you.
    I have listened very carefully to what Ms. Hart just said, 
and I'd like to make a comment on it. It really illustrates, 
the discussion really illustrates the basic problem with this 
bill.
    As far as I can understand this bill, and I've been 
thinking about it and listening, through hearings and hearings, 
there are two problems, and only two problems the bill 
addresses. Both are perhaps valid problems. Both could be 
addressed by very narrow changes in the law, and the problem 
with the bill is that you take huge changes, way overbroad, 
which raise real problems, in order to deal with the narrow 
problem.
    For example, let's take this question of religious 
discrimination in employment. If a church, small church, large 
church, whatever, gets a $20-million grant, and they're going 
to hire a corps of people to administer the grant for secular 
purposes, then those people should not be subjected to 
religious discrimination, and you know it's for secular purpose 
to run a soup kitchen or whatever, et cetera.
    But we are told, what about the small church? We don't want 
to change the character of the church. And what it really comes 
down to is let's say you have a small church, and you get a 
small grant, and the grant is going to be used for material 
things, but the existing employees of the church are going to 
administer the grant, are going to run the soup kitchen. The 
minister, his wife, the assistant minister are going to run it, 
and what they're really saying is you should not be required by 
the civil rights laws, under such a condition, to say, ``Well, 
we can't automatically use the existing employees of the 
church. You have to conduct a job search in accordance with 
title VII.'' And to that I would agree.
    And this whole problem could be dealt with by a simple 
amendment or a simple law that said that, if a faith-based 
institution was receiving funds for a secular purpose, and if 
they were not going to hire new people for that to administer 
that, they could use their existing people, and that that 
wouldn't constitute an exception to--that wouldn't constitute a 
title VII problem, but if they hired new people, they should 
have to follow whatever the requirements of nondiscrimination, 
if it's for the secular purpose, but if it's not for a secular 
purpose, you shouldn't be funding it in the first place.
    And so I think that this whole question of employment 
discrimination is way overbroad, and to the extent that there's 
a real problem that's raised and that still could be addressed 
by this, it can be dealt with simply by saying, as I said, and 
I'm drafting such an amendment now or I hope my staff is busy 
doing so, that a faith-based institution that receives a 
Federal grant and that is not--can use its existing, 
preexisting employees and that that would not constitute 
religious discrimination because you didn't open it up for a 
brand-new job search. But insofar as you do open it up to a new 
job search, you shouldn't discriminate in employment.
    The second question, really, is not on this amendment, but 
is on the question of why we need this bill in the first place, 
and that is--and I'll address it more with an amendment I have 
coming up--but, basically, small churches don't have the 
resources, allegedly, or the expertise to organize 501(c)(3)s 
and so forth, provide the expertise, provide assistance for 
small searches--small churches, rather, and if you do those two 
things, I think you've really accomplished the entire purpose, 
the entire proper purpose of the bill. I don't think anybody 
would oppose it.
    Now, if there is an improper purpose of the bill, if the 
real--if some people have a purpose of encouraging religious 
proselytization with Federal funds, that would not be served. 
But except for that--and it shouldn't be served--but except for 
that, all we need is two small changes in the law that takes 
care of two problems, that when you get down to it and you 
listen to everything, that's what they ultimately come down to: 
How do small churches participate with Federal grants----
    Ms. Lofgren. Would the gentleman yield?
    Mr. Nadler.--and for the protection of the small church, 
require the 501(c)(3), but give them help in forming it, give 
them help in making it.
    And, second of all, let the existing staff work on it 
without having to go through a job search. And you do those two 
things, you don't really need anything else.
    Ms. Lofgren. Would the gentleman yield?
    Mr. Nadler. I think Mr. Hutchinson wanted--are you asking 
to yield?
    Ms. Lofgren. Actually----
    Mr. Nadler. Maxine?
    Ms. Lofgren. I was.
    Mr. Nadler. I yield to the gentlelady. I will yield to the 
gentlelady.
    Ms. Waters. I'm not on this one.
    Chairman Sensenbrenner. I believe that the gentlelady from 
California, other gentlelady from California, is trying to get 
your attention.
    Ms. Lofgren. I was. Just a quick point. I think that the 
suggestion you've made is a useful one and addresses an issue 
that we've not yet discussed here, at least so far as I can 
recall, which is where you have a small grant, and absent an 
ability to prevent discrimination on the basis of religion, you 
might have a small church that essentially is going to 
subsidize its religious mission with Government funds by hiring 
the person they could not afford to hire as pastor to run the 
soup kitchen to relieve the need to pay the pastor.
    That is an important issue because behind all of this is 
our concern, I think, I hope that it's universal about not 
becoming involved in the establishment of religion. And if you 
think about the tremendous diversity of religious thought in 
the United States, I think it's important to all of us that we 
are very careful about that. For example, in my won district, I 
have many Hindus, Sikhs, Buddhists, Jane, the largest Jane 
temple in North America----
    Chairman Sensenbrenner. The time of the gentleman from New 
York has expired.
    Mr. Hutchinson. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Arkansas seek recognition?
    Mr. Hutchinson. To strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hutchinson. Thank you, Mr. Chairman. I was just 
reviewing the amendment that's offered by the gentleman from 
North Carolina, and the debate is being centered around the 
debate on the last amendment, which is the employment 
discrimination exemption under title VII. The amendment, it 
appears to me, goes to the use of funds from the programs which 
we acknowledge in the underlying bill is not exempted and 
should be offered on a nondiscriminatory basis.
    It appears to me, if I'm understanding this correctly, that 
the amendment is consistent with the underlying bill. The 
problem is that you're asking to strike a portion of Subsection 
E that is important, and if the amendment was offered, if the 
language was offered at the conclusion of that whole section, 
that it might be fit because I don't see it as inconsistent, 
and I just wanted to----
    Mr. Watt. Would the gentleman yield?
    Mr. Hutchinson. I would be happy to yield to the gentleman 
from North Carolina to see if I have the correct understanding.
    Mr. Watt. I think you do not have the correct 
understanding. What I'm trying to do, and maybe I didn't do it 
artfully, but what I'm trying to do is retain the religious 
exemption for core religious purposes, but prohibit 
discrimination in employment, which is what title VII is, title 
VII, not title VI, retain the prohibition against 
discrimination in employment with Federal funds. That's the 
purpose.
    Mr. Hutchinson. Reclaiming my time, I will be voting 
against this amendment for the reason that it strikes a portion 
of the bill that is important for consistency purposes in 
maintaining the exemption, but I do not see a particular 
problem in the language itself that you have provided in there 
because I do not believe there should be discrimination in the 
use of funds from the programs----
    Mr. Watt. Would the gentleman yield?
    Mr. Hutchinson. Yes.
    Mr. Watt. The gentleman is indicating he would support the 
language if I put it at the end?
    Mr. Hutchinson. If I have the correct understanding, that 
is, I would, yes.
    Mr. Watt. So what, what does the gentleman understand that 
the language starting with the word ``and'' and ending with 
``effect'' on lines 19 through 23, what purpose does the 
gentleman think that that language serves?
    Mr. Hutchinson. Reclaiming my time. That language refers to 
any provision in such programs, and so this would be programs 
that would be subject to grant application by faith-based 
organizations and it's making it clear that, despite the 
language of those specific programs, the religious organization 
exemption, under the Civil Rights Act, is still applicable.
    Mr. Watt. Would the gentleman say that one more time.
    Mr. Hutchinson. When it says that any provision in such 
programs, those programs are the substantive programs that the 
faith-based organizations can make application to for grant 
money. And so it's, it's making it clear if there was an error 
in the language of those programs, that the religious 
organizations' exemption, under the Civil Rights law, still 
applies.
    Mr. Watt. Okay. Would the gentleman yield further?
    Mr. Hutchinson. I would be happy to yield further.
    Mr. Watt. Would you yield to me for the purpose of a 
unanimous consent request?
    Mr. Hutchinson. I would be happy to yield.
    Mr. Watt. I ask unanimous consent that my amendment be 
revised to leave in the language on Page that it now provides 
be stricken and that this language, the additional language, be 
added at the end of line 23 instead.
    Chairman Sensenbrenner. Well, the Chair would like to have 
a clarification. If the language you are proposing to be added 
at the end of line 23, just to make sure that the bill is 
properly drafted and not inconsistent, wouldn't it be better to 
start with nothing in this section and then continue with the 
language; in other words, striking out ``provided, however, 
that''?
    Mr. Watt. I'm sorry. Say that again, Mr. Chairman.
    Chairman Sensenbrenner. To strike ``provided, however, 
that,'' and begin--capitalize ``N'' for ``Nothing,'' and then 
insert the rest after line 23.
    There would be nothing stricken, and in addition, I would 
say nothing in this section alters the duty of a religious 
organization to comply with the nondiscrimination provisions--
--
    Mr. Scott. I accept the Chairman's friendly amendment.
    Chairman Sensenbrenner. Okay, without objection, the 
modification is agreed to. Without objection, the amendment as 
modified is agreed to.
    Are there further amendments?
    For what purpose does the gentleman from New York seek 
recognition?
    Mr. Nadler. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Nadler. Madam Clerk, the amendment that I'm offering is 
the amendment by Mr. Conyers, Scott, and Nadler. I'm offering 
it on behalf of Mr. Conyers, who is not here.
    The one that starts, ``On page 20 at the end add the 
following.''
    The Clerk. Amendment by Mr. Conyers, Scott, and Mr. Nadler 
to the amendment offered by Mr. Sensenbrenner.
    On page 20 at the end add the following (o) Enforcement of 
individual----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. And the gentleman from New York is 
recognized for 5 minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    This amendment is--this amendment is simple and 
straightforward. Where the bill offers----
    Chairman Sensenbrenner. Will the Democratic staff allow Mr. 
Nadler to be heard?
    The gentleman is recognized.
    Mr. Nadler. Thank you, Mr. Chairman.
    This amendment is simple and straightforward. Where the 
bill offers language designed to protect individual rights and 
liberties, those persons whose rights and liberties are 
supposed to be protected should be given the ability to enforce 
those rights in a court.
    I hope this will be noncontroversial and the majority will 
choose to accept it in the spirit in which it is offered.
    For weeks and weeks, this bill has been hung up over the 
issues concerning separation of church and state. The Chairman, 
to his credit, identified the very difficult and complex 
problems that emerge when government funds religious 
organizations. To his credit, he has insisted on critical 
provisions protecting beneficiaries so they have the rights to 
a comparable secular alternative and the right to opt out of 
any religious activities.
    The problem is, while the bill specifically authorizes 
religious organizations to seek redress in court if their 
rights under the bill are violated, there is no comparable 
provision protecting the religious rights of individual 
beneficiaries. So we are concerned that all of the protective 
language added at the behest of the Chairman could turn out to 
be an empty promise, existing in theory but not in practice.
    As a result, this amendment gives individual beneficiaries 
the right to seek to enforce these rights in court.
    We also add the right of harmed parties to obtain 
reimbursement of their attorneys fees. Obviously, most 
individuals will have little ability to bring an expensive 
lawsuit if they're not able to recover their legal fees. I know 
of few homeless people who can afford to bring a lawsuit where 
there is no secular homeless shelter available.
    Now, as will all legal rights, I'm hopeful it will not be 
necessary to resort to court action to obtain compliance. As 
the Members know, very often the knowledge that a right is 
legally enforceable itself guarantees its compliance.
    There are few rights more important to this country than 
religious freedom. If the right is important enough to include 
in the bill, it should be important enough to be enforceable in 
court.
    I urge my colleagues to support this common-sense 
amendment. And I yield back.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Ohio, Mr. Chabot, seek recognition?
    Mr. Chabot. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I won't use all the 
time.
    But this amounts to a lawyers' full-employment bill. We 
want the funds to be used to improve the lives of people who 
need services, whether it's for homeless people or whether it's 
for domestic violence, whatever it might be that the faith-
based organization is providing.
    We prefer the money to go to help people in need rather 
than to line trial lawyers' pockets. For that reason, I oppose 
the amendment.
    I yield back the balance of my time.
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. Will the gentleman from Ohio yield 
to me?
    Mr. Chabot. I'd be happy to yield to the Chairman.
    Chairman Sensenbrenner. If you look at the amendment that 
has been offered by the gentleman from New York, the defendant 
in these cases would be the responsible party--religious 
organization official or government agency.
    This would have a chilling effect on religious 
organizations signing up to provide the services that are 
intended to be funded in H.R. 7, because now some trial lawyer 
could file a lawsuit alleging a violation under the First 
Amendment and literally bankrupt the organization before the 
case even goes to trial.
    I don't think we want to put in a liability section that 
has every faith-based organization running away from this 
program. The effect of this is extremely crippling, in terms of 
broadening the base of people who can provide social services.
    And I agree with the gentleman from Ohio that this very 
pernicious amendment should be rejected.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. Will the gentleman yield back now?
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. Will the gentleman from Ohio yield 
back now?
    Mr. Chabot. I yield back the balance of my time.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Frank.
    Mr. Frank. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Frank. I yield to the gentleman from New York.
    Mr. Nadler. Thank you. Thank you. I thank the gentleman 
from Massachusetts.
    Let me make two comments.
    First of all, any trial lawyer recognizes who has the deep 
pockets. He's not going to sue the church; he's going to sue 
the local government.
    They have the deep pockets in this situation, so I wouldn't 
worry terribly much about the churches being bankrupted, 
because they're not going bother suing the church. They're 
going to sue the local government or the government agency 
under whose aegis this was done.
    Secondly, if, as Mr. Chabot says, we're worried about using 
the funds--the funds being used up on lawsuits and it being a 
trial lawyer's haven, why do we give the right to bring a 
lawsuit to the churches? The fact is that rights are only real 
if they're enforceable. And the churches, if their rights are 
violated, need the power to bring a lawsuit to enforce their 
rights.
    But at the same, a beneficiary whose rights established in 
this bill--to an alternative, a nonreligious alternative, for 
example, or to various other things, not to be proselytized--if 
those rights are going to be enforced and not merely be 
worthless, needs the right to be able to go into court to 
enforce his rights.
    So it's the same on both sides. Either the churches 
shouldn't have the right and neither should the beneficiaries, 
to bring a lawsuit. In which case, all the provisions of the 
bill would not be very important, because they would not 
enforceable in law, or the churches and the beneficiaries 
should have the rights to enforce their respective rights at 
law lest they be merely hortatory rights.
    And, again, I wouldn't worry about the churches because--
being defendants because the trial lawyers are going to sue the 
jurisdiction and the--either the Federal Government or the 
local government because they have the deep pockets, not the 
church.
    Mr. Chabot. Mr. Chairman?
    Mr. Nadler. I yield back.
    Mr. Frank. Is the gentleman from New York finished?
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Massachusetts.
    Mr. Frank. Did somebody want me to yield?
    Mr. Chabot. Will the gentleman yield?
    Mr. Frank. I'll yield to the gentleman from Ohio.
    Mr. Chabot. I thank the gentleman for yielding. The bill 
already provides----
    Mr. Nadler. Can't hear you, sir.
    Mr. Chabot. The bill already provides for lawsuits against 
States and local governments for injunctive relief only. And 
if--and that's, in essence, if somebody is alleged to have 
violated the law. And that was on the request of county 
associations, the Conference of Mayors, and other local 
government entities.
    And I thank the gentleman for yielding.
    Mr. Frank. Does the gentleman want to me yield further?
    Mr. Nadler. Yes.
    Mr. Frank. I'll yield further to the gentleman from New 
York.
    Mr. Nadler. Well, the fact of the matter is that that's--I 
think--reading that section, it says: when the rights of the 
party under this section have been violated by State or local 
government, may bring a civil action for injunctive relief.
    That's fine as far as it goes. But, in effect, the rights 
may have been violated by the people administering the grants, 
and there, in that case, agents for the State or local 
government. And the purpose of this amendment is to make sure 
that you can sue the State and that you can get relief in that 
section, too.
    And by the way, if a church breaks the law, they should be 
liable, although, as a practical matter, you are going to sue 
the State not the church because they don't have the money.
    But no one should be able to break the law and not be 
subject to an enforcement action.
    I yield back to the gentleman.
    Mr. Frank. Mr. Chairman, having addressed what I had to say 
on this subject, I yield back.
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Wisconsin, Mr. Green, seek recognition?
    Mr. Green. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Green. Mr. Chairman, briefly, I wanted to commend you 
for your recent statement in opposition to this amendment. I 
think you put it very, very well.
    This bill already provides for injunctive relief, which 
will protect the rights of the aggrieved.
    I think that this amendment would lead merely to an 
operation of harassing faith-based organizations. This is an 
effort, I think, by some, who do not believe that they can 
defeat this bill, to make it as ineffective as possible by 
discouraging the very organizations that we hope will take this 
up.
    This is to put fear into them, to make them cringe because 
of the potential wide-open liability of trial lawyers, of 
lawsuits. This is the last think I think we need as we're 
trying to make--to reach out to community organizations and 
have them be partners with us and take on so many of these 
challenges that we all agree are affecting so many 
neighborhoods and communities all across the country.
    And, Mr. Chairman, with that, I yield back my time.
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Texas, Ms. Jackson Lee, seek recognition?
    Ms. Jackson Lee. To strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. Mr. Chairman, I'm going to use this time 
to make some general observation and comment on the basis of 
Mr. Nadler's and Mr. Conyer's and Mr. Scott's amendment, as I 
understand it.
    And it is--it is interesting that what we're doing here in 
this room is, in essence, codifying a relationship between the 
State and religion that we've never done in the time of our 
existence as a democracy. And so the proliferation of 
amendments is simply to take us back to the purity of our 
origins, which is the separation of church and state, and not 
creating an established religion.
    This is not to say that our religious entities have not 
been coddled and nurtured and respected in this country. That 
is why they have proliferated.
    But what we're asking to have done here in this legislation 
is to be able to establish religious entities as substitutes 
for governmental social services responsibilities. All to the 
best, if you will.
    But as they step into the shoes a governmental entity, they 
are then--and that is why you have these requests from the 
national League of Cities and National Association of Counties, 
because what they're suggesting is, if you're going to place 
religious so-and-so to do my welfare-to-work, to do my job 
training, then the question has to be, if they are substituting 
for these broad-based social services, which I welcome the 
concept of the good Samaritan, but then, as well, they will be 
responsible, as government is responsible, in protecting the 
rights of anyone who walks through their doors.
    When you have a Catholic school doing the business that it 
traditionally does, teaching children in the way that they 
teach them and the religious beliefs that they teach them, they 
are not stepping into the shoes of a governmental entity, 
attempting to take the responsibilities away from the public 
school system.
    So this amendment speaks to the question of the rights that 
anyone has in coming under the First Amendment in any aspect of 
this society.
    And what we're suggesting here is, because you have 
codified religion, because you have put forward a legislative 
initiative that establishes the involvement of the religious 
community with Federal funding, the Federal Government, and 
government, you now have to be subjected to the protective 
rights that citizens have, be it that they are poor, that they 
are homeless, that they need welfare-to-work training, they are 
addicted, whatever they might be.
    We have never extended the long arm of reach of the Federal 
Government to the hallowed halls of sanctuaries when we have 
either prayed or bowed or said our prayers on Friday night or 
Saturday or 12 noon on Wednesday or high noon on Sunday. The 
Federal Government has not done that.
    But when you begin to codify--and I have the greatest 
admiration for the spiritual, the religious community, and have 
fought for their existence and their survival and welcome their 
interest in being the new good Samaritan, if you will, in the 
sector that deals with secular issues, such as welfare reform 
and such as the addicted and HIV/AIDS. I welcome that.
    But my concern is, do we realize that in the rush to make 
good on campaign promises, that we're literally codifying?
    I think what my dear friends on the other side of the aisle 
are saying to me is that, ``No, we're not, because we're not 
establishing the Muslim faith as an established religion, or 
the Catholic faith.'' No, we're not, but we're giving 
governmental strength, if you will, to the religious body by 
its utilization of Federal tax dollars.
    And, therefore, even though there is sensitivity to this, 
you're opening yourself up to the responsibilities of adhering 
to the Bill of Rights, to the Civil Rights Act, and to the 
First Amendment and others, that governmental entities equally 
have the responsibility.
    If we can understand that, maybe these amendments will 
bring forward the unity of purpose and we can get a resolution 
of H.R. 7 that would answer the concerns of those who want to 
be the good Samaritan, which I applaud and welcome.
    But at the same time, there is a sense of acceptance that 
we're doing something extremely extraordinary and out of sync, 
if you will, with the historical and constitutional basis of 
this country. We have never sought to codify religion in this 
nation.
    And I would argue----
    Chairman Sensenbrenner. The gentlewoman's time----
    Ms. Jackson Lee.--with those who say that we are not----
    Chairman Sensenbrenner.--has expired.
    Ms. Jackson Lee.--establishing religion.
    Mr. Weiner. Mr. Chairman?
    Ms. Jackson Lee. I yield back.
    Ms. Lofgren. Mr. Chairman?
    Mr. Weiner. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York, Mr. Weiner, seek recognition?
    Mr. Weiner. To strike the last word.
    And in particular----
    Chairman Sensenbrenner. Recognized for 5 minutes.
    Mr. Weiner. And I would like to ask you, Mr. Chairman, as 
the author the bill--I'm inclined to vote against this 
amendment because I believe the compliance section is 
sufficient to ensure compliance.
    But I believe the place where the compliance is going to be 
most handy is when enforcing a person's ability to opt out. And 
I just, for the purposes--so I can understand if I'm correct 
about that.
    The way I read, on page 14, the rights of beneficiaries, it 
says that anyone who wishes to opt out, the appropriate 
Federal, State, or local government entity shall provide--it 
says ``shall provide''--to such individual if otherwise 
eligible for such assistance, within reasonable period of time 
after the date of such objection, assistance that is accessible 
and is of the same value.
    Am I correct in interpreting the compliance section as 
allowing an individual beneficiary, if they've been denied that 
right, to then sue the government agency or file a civil claim 
against the government agency, meaning the city or State, to 
enforce that right?
    Chairman Sensenbrenner. If the gentleman would yield?
    Mr. Weiner. Certainly.
    Chairman Sensenbrenner. The answer to the question is yes, 
but the relief is limited to injunctive relief only, to obtain 
the same right pursuant to this section, and not for damages.
    Mr. Weiner. Understood. And I think, frankly, that this is 
appropriate.
    But it does raise the question, and just so I'm sure that I 
understand, if we have the following dynamic: Let's say in a 
corner of rural Idaho, a church sets up a job training program. 
Someone walks into that church, says, ``I don't like this job 
training program because of my religious beliefs,'' it then 
requires the State of Idaho, if that person is entitled to 
benefits, to then set up another job training program for that 
individual. Is that correct, sir?
    Chairman Sensenbrenner. If the gentleman would yield?
    Mr. Weiner. Certainly.
    Chairman Sensenbrenner. The program does not have to be 
identical to the faith-based organization, but it is required 
to have a value that is not less than the value of the 
assistance that the individual would have received from such 
organization, meaning the faith-based organization. And this is 
page 15, lines 4 through 6.
    Mr. Weiner. So if--and I appreciate that.
    So if--if a State or a locality does chose to set up one of 
these programs, they better have allocated fundings to at least 
set up two, because they might be in the circumstance that--
we've set up now an entitlement under this law for that person 
to then get a separate and distinct program at least of the 
same value.
    Chairman Sensenbrenner. Yes. If the gentleman would yield?
    Mr. Weiner. Certainly.
    Chairman Sensenbrenner. The answer to that question is yes, 
but again emphasizing that it does not have to be the identical 
program----
    Mr. Weiner. Understood.
    Chairman Sensenbrenner.--that is provided in the basement 
of the Baptist church in Idaho.
    Mr. Weiner. Right. But it does have to be a separate and 
distinct program, meaning that when you agree to set up--or the 
State of Idaho agrees to set up one, they'd better have a few 
shekels in their pocket to get ready to set up the second in 
every case because all it takes is one objector to require the 
creation of a second program.
    Chairman Sensenbrenner. The answer to the gentleman's 
question is yes.
    Mr. Weiner. Got it. Thank you very much. I yield back my 
time.
    Ms. Lofgren. Mr. Chairman? Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California----
    Ms. Lofgren. To strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. I am interested in the compliance section as 
well, and understanding that probably all of the recipients--or 
at least the great majority of the recipients of services 
funded under this initiative will be poor people, how these 
poor people will gather the resources to bring the action to 
gain the rights that are theirs under this act----
    Chairman Sensenbrenner. Will the gentlewoman yield?
    Ms. Lofgren. Yes, I certainly will.
    Chairman Sensenbrenner. The Legal Services Corporation is 
ready and eager to enforce those rights.
    Ms. Lofgren. Well, what they're----
    Chairman Sensenbrenner. The Appropriations Committee has 
given them an increase in their appropriation.
    Ms. Lofgren. The--reclaiming my time, the Legal Aid Society 
is so poorly funded that they are swamped and unable to take 
hardly any new cases, at least in the area where I represent.
    Without the ability of attorneys fees, I think that this is 
a--for most recipients--an illusory remedy.
    And I think there are questions. If this bill becomes law, 
there will be questions that need testing.
    I was thinking, who will apply in Santa Clara County for 
funds under this act? And I have no idea, but one of the 
churches--the Metropolitan Church in downtown San Jose is--it's 
a gay church, it's Protestant.
    And if they do the daycare and a welfare mother objects, it 
won't be because they're Protestants; it's because the welfare 
mother may be biased against gay people.
    Well, does that qualify for an exemption? I don't think so, 
because it's not about religion; it's about one's bias against 
gay people.
    But that's going to have be tested----
    Chairman Sensenbrenner. Will the gentlewoman yield?
    Ms. Lofgren. Certainly.
    Chairman Sensenbrenner. The decision on where to go to get 
these social services rests with the individual seeking the 
social services, whether it is getting social services from a 
grant organization or one that accepts voucher funds.
    So if the welfare mother that you're talking about doesn't 
want her kids at a daycare in the basement of a church that is 
predominantly gay, she just sends them someplace else.
    Ms. Lofgren. Reclaiming my time, that is certainly not the 
case in Santa Clara County. We have a dramatic shortage of 
daycare facilities and the Department of Social Services does 
provide a direction to the TANF program recipients on where to 
go and where to enroll their children.
    There's a huge backlog----
    Chairman Sensenbrenner. Will the gentlewoman yield further?
    I believe this bill would broaden the types of choices 
available to qualified people in Santa Clara County on where to 
go to receive social services because there would be more 
qualified organizations providing them.
    Mr. Frank. Would the gentlewoman yield?
    Ms. Lofgren. Certainly.
    Mr. Frank. Well, I think that points out what I think is a 
somewhat empty promise. Yes, if you took that part of the bill 
seriously, it would require a very significant expansion of 
Federal funding. That is true.
    To make that work, anytime the Federal Government funded a 
faith-based program anywhere, it would have to fund equally in 
that same area a non-faith-based program.
    In other words, we've got a new doctrine here. Instead of 
separate but equal, we're going to create the doctrine of 
secular but equal. And anytime the Federal Government funds--to 
make that work, what the gentleman just said, it promises a 
great expansion.
    Anytime the Federal Government funds a faith-based program, 
it will, to comply with this bill, have to fund a secular and 
equal other program. And I am very skeptical that the money to 
do that is here.
    But as one of the witnesses brought forward by the majority 
said, to make that work will require a very substantial 
increase in Federal funding, which I guess the biggest faith-
based initiative is to think that that Federal money is coming. 
[Laughter.]
    Ms. Lofgren. Well, reclaiming my time, I do believe that we 
are--without an opportunity for the poor to assert their 
rights, with either this amendment or something like it, that 
we are going to end up with a series of very unfortunate 
circumstances that will arouse the American public and their 
ire.
    And I see that my time is about to expire, so I yield back 
what remains of it, Mr. Chairman.
    Chairman Sensenbrenner. The question is on the Nadler 
amendment to the Chairman's amendment.
    Those in favor will signify by saying aye.
    Opposed, no.
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to.
    For what purpose does the gentleman from New York seek 
recognition?
    Mr. Nadler. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Nadler. Nadler No. 1.
    The Clerk. Amendment to the amendment to H.R. 7 offered by 
Mr. Nadler. On page 16, strike line 9 and all that follows 
through line 12 on page 17 (h) Additional protection for 
organizational autonomy and accountability.
    Mr. Nadler. Mr. Chairman, I ask unanimous consent to waive 
the reading.
    Chairman Sensenbrenner. Without objection.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. And the gentleman is recognized for 
5 minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    A great deal has been said about protecting the autonomy of 
religious organizations and about ensuring that these 
organizations can participate in the delivery of Federal 
programs without giving up that autonomy and without 
undermining the delivery of those services.
    The most simple way to do this and to ensure accountability 
in the use of the Federal funds is to do what religiously 
affiliated organizations have done for years: set up a separate 
501(c)(3) corporation for the purposes of delivering those 
services.
    Setting up such an organization prevents any danger that 
funds for distinctly religious purposes and taxpayer money that 
is to be used to provide needed service, needed secular 
services in the community, will be commingled and will be 
diverted to an inappropriate use.
    It also ensures that the governmental agency administering 
the program can fully audit the activities of the grantee 
without the specter of government authorities combing through 
the church's books and quizzing the choir master or the 
minister over the use of funds.
    I think that a committee dominated by attorneys should well 
understand why a separate entity is in the interest of both 
autonomy and accountability and certainly in the interest of 
the church.
    Does anyone here think that an attorney who commingled 
trust accounts with firm accounts would stay in practice very 
long? We have rules against this sort of thing for very clear 
and understandable reasons.
    Similarly, as every Member of this Committee knows, we are 
not allowed to use our office funds and any private funds in 
the same activity. This would include a community event that we 
may want to sponsor to promote local businesses. But once we 
have started using our office funds to pay for part it, we 
cannot use other funds to pick up the rest, even to pay for 
those items on which we cannot spend our office funds.
    That's a very strict rule. We all live by it--at least I 
hope we all live by it--and for very good reason.
    Does anyone here believe that setting up an additional 
church bank account and then forbidding government activities 
from looking beyond that account, as this bill does, could 
possibly fail to lead to mischief?
    People of faith are good and honorable members of our 
community. But there have also been those who have abused their 
standing as religious leaders. And we have no right to play 
fast and loose with millions of dollars of the taxpayers' money 
by ignoring the fact that some people are tempted to abuse the 
trust when money is involved.
    We need to legislate for the real, not the ideal, world. 
Already there's been a suit filed alleging that public money 
has been used to purchase Bibles for religious instruction. I 
do not think any Member of this Committee would condone that.
    Separating out the publicly funded activities from the 
specifically religious activities has always served to protect 
against this sort of problem.
    Religious organizations in my district and all over the 
country do this all time. We work with them to obtain public 
funds for them, and they do outstanding work for the 
communities that we represent.
    I have heard only two arguments why we should not require a 
separate entity. The first came from a minister who testified 
before the Constitution Subcommittee about her community 
activities. She told us that they had become the process of 
setting up a 501(c)(3), and had even obtained legal assistance 
to do so, but dropped the whole thing because they felt 
uncomfortable with the idea.
    Let me stress, her testimony was not that doing so violated 
a sincerely held religious belief of her congregation.
    Is that a reason to change the law and risk lack of 
accountability in the use of public money?
    No one is telling this church to stop engaging in their 
religiously motivated efforts to do good works. No one is 
telling the church that they cannot receive public money to do 
so. But feeling uncomfortable with requirements of 
accountability in the administration of public money is no 
reason to waive those requirements.
    The other reason that has been given for opposing this 
requirement is that it is just too darn hard to draw up the 
incorporation papers and file them with the Secretary of State. 
Mind you, I've never heard this argument made by an actual 
religious organization. Indeed, many of the religious 
organizations that support this legislation have been setting 
up 501(c)(3)s for many years.
    We are told that there are small congregations out there 
that just cannot muster the resources to do what daycare 
centers and newsstands and other small businesses and charities 
do all the time. This may be true, but my experience is that 
they do just fine and usually receive volunteer legal services 
from their community, just as they might receive free 
electrical work from a member of the congregation.
    It also raises a red flag in my mind. If an organization 
cannot do the simple paperwork to set up a separate 501(c)(3), 
why is the Federal Government so confident that they can 
administer large sums of public money? I would take that as a 
warning sign.
    I do, however, agree with the Chairman, who has added a new 
subsection in his mark, providing for technical assistance to 
those small organizations that may have trouble complying with 
this or other requirements necessary to administer a public 
program.
    For that reason, my amendment makes clear that they shall 
be entitled to receive that assistance specifically for the 
purpose of complying with this new subsection. We should be 
encouraging people to do things the right way and people who 
are able to deliver needed social service should not be 
prevented from doing so because they lack the administrative 
know-how to work their ways through the rules.
    My amendment addresses that problem so that simple but 
important requirement will not become an obstacle to 
participation.
    Chairman Sensenbrenner. The gentleman's time has expired. 
And I yield myself 5 minutes in opposition to the amendment.
    This amendment is not necessary. And I believe that it is 
important that the religious organization have the choice on 
whether or not to set up a separate 501(c)(3) organization to 
operate its faith-based initiative activities or not. There is 
no requirement in the Constitution.
    And let me explain what the bill does.
    First of all, the bill provides for limited audits by the 
government agency administering the grant covered by the bill, 
and these are the grant recipients under that part of the 
faith-based initiative.
    Religious organizations receiving funds directly from the 
government must establish separate accounts for deposit of the 
government funds received pursuant to a program established by 
H.R. 7. Only the separate accounts consisting of funds from the 
government shall be subject to audit by the government.
    And that addresses the gentleman from New York's concern 
that the IRS would be snooping around in the private funds that 
the church uses for its religious activities.
    Secondly, religious organizations providing assistance 
through indirect assistance may establish a separate account 
for deposit of the Federal funds. If the funds are so 
segregated, only the separate accounts consisting of funds from 
the government shall be subject to audit or review by the 
government as a result of accepting the indirect funds.
    Because indirect aid to a faith-based organization is, 
quote, ``akin to the government issuing a paycheck to an 
employee who in turn donates a portion of that check to a 
religious institution,'' unquote, and that comes from Justice 
O'Connor's concurring opinion in Mitchell v. Helms. Such aid is 
permissible under the Establishment Clause and need not be 
segregated into a separate account.
    These are the same types of audits that the government 
agency can conduct of nonreligious organizations receiving the 
funds from programs covered by H.R. 7. The purpose of the audit 
is to determine that the funds are being accounted for 
appropriately without subjecting the church accounts that do 
not contain Federal funds to government rummaging.
    So the bill as drafted is consistent with the Constitution. 
It is consistent with the Supreme Court decision. There should 
not be a requirement that the church set up a separate 
501(c)(3) in order to receive either the direct funds or the 
indirect funds. But if they should choose to do so, there's 
nothing in this legislation stopping them.
    And I yield back the balance of my time.
    For what purpose does the gentleman from North Carolina 
seek recognition?
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    I rise in support of Mr. Nadler's amendment, but I do want 
to applaud the Chairman for his effort to dramatically improve 
what was in the original bill, H.R. 7, and at least require, at 
a minimum, a separate account, because that was not in the 
original bill. And I think the Chairman certainly recognized 
the problems with that.
    But I think we really need to go further for a couple 
reasons. Last week, about 50,000 Baptists descended on the city 
of Charlotte in my congressional district. And they had a 
discussion about the faith-based initiative, but unfortunately 
I was in Washington and not able to attend.
    But I sent a letter, and this is one of the two points that 
I made in my letter to the ministers and other religious people 
who attended that conference, that commingling of taxpayer 
funds with church funds, instead of requiring a separate 
nonprofit, would be dangerous for two reasons. First of all--
and I'm reading now from my letter, which I will ask unanimous 
consent to submit for the record, so that you'll have the 
entirety of the letter in the file.
    [The letter of Mr. Watt follows:]
    
    
    Mr. Watt. First, it makes it more difficult, if not 
impossible, to separate the church's religious activities from 
the activities being undertaken with government funds, and this 
will severely threaten the required separation of church and 
state.
    Second--and really, this is more of a concern to me than 
even the first one. Second, we think this commingling of 
government and church funds will lead to serious legal, perhaps 
criminal problems for some churches in the future, and that the 
most likely victims of these legal problems will be small or 
minority churches, or churches unwilling to support a 
President's political agenda.
    So basically, what I think we're on the verge of 5 years 
down the road if we allow funds to go directly into church 
coffers, either in separate accounts or in commingled accounts, 
is a bunch of ministers and church people are going to run the 
risk of being indicted, and I've expressed this opinion in the 
hearings, and I think those indictments are more likely to be 
against people in smaller minority, probably churches that are 
not mainstream churches, because this will be used as a 
mechanism for--for kind of separating the good guys or the bad 
guys, possibly even separating the guys who support some 
political agenda from those who don't support a political 
agenda.
    If we have these funds separated in a separate 501(c)(3) 
organization, I think we have minimized the prospect of that 
happening.
    I'm the first to concede that there is not a legal 
constitutional requirement to do this, but I think the 
practical reasons for doing Mr. Nadler's amendment are just 
powerful, and I hope that my colleagues will support this 
amendment. I yield back, Mr. Chairman.
    Chairman Sensenbrenner. Okay. The question is on the 
amendment by Mr. Nadler to the Chairman's amendment. Those in 
favor will signify by saying aye.
    Opposed, no.
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to.
    For what purpose does the gentleman from New York seek 
recognition?
    Mr. Nadler. I have another amendment at the desk.
    Chairman Sensenbrenner. The clerk will report another 
amendment.
    Mr. Nadler. The undesignated amendment, the one without the 
number.
    The Clerk. Amendment to the amendment to H.R. 7. Offered by 
Mr. Nadler, Mr. Conyers, Mr. Frank, Ms. Jackson Lee and Mr. 
Watt.
    On page 18, line 1, insert before the period, ``or shall 
such organization engage beneficiaries in such worship, 
instruction, or proselytization while they are receiving such 
assistance.''
    [The amendment follows:]
    
    
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5--
--
    Mr. Nadler. Can I ask unanimous consent that the first word 
in the quote should read ``nor'' not ``or?''
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, this 
amendment makes clear that the program cannot seek to engage 
participants in proselytization while they're participating in 
a program. Obviously, religious organizations are free to 
engage in any religious activity they wish, and participants 
are certainly free to participate in religious activities 
voluntarily. It is not enough to say that no funds may be used 
for this--for the proselytization. If this program will allow 
the program to be held in the religious institution, and allow 
the program to exist side by side with other religious 
activities, it would be easy to bring in someone to lead a 
prayer or proselytize who is not being paid for with the public 
money. We need to make clear that it simply cannot a part of 
the publicly-funded activity.
    We also need to make clear that voluntary participation 
means just that, voluntary. There can be no cajoling or other 
forms of coaxing or coercing of participants to come to the 
meeting, or participate in the religious activity. If they want 
to, that's fine, but I can tell you that the communities I 
represent are not pleased by the idea that someone who comes in 
out of the cold for help might become the target of someone who 
thinks they need to be spiritually completed. I, for one, am 
happy to remain incomplete and so are most of my constituents.
    The idea of using government programs to convert people is 
repugnant, and we should be clear that it is not permitted. No 
one should have to run a gauntlet or experience the pressure of 
a so-called voluntary prayer or proselytization session when 
they go to receive a public service or a publicly-funded 
service. What should they do, leave the room, leave early? Let 
the church do its business. Let the program, the federally-
funded program do its business, and leave the participants out 
of it. If they want to go to a church session, they're 
obviously free to do it.
    This language should discourage subtle coercion, because, 
obviously, as I said before, it would be--the legislation now 
prohibits the use of the Federal funds for--itself for 
proselytization, but it really doesn't prohibit other funds 
from being used to subject the subjects of the program to 
proselytization, and they ought to. I think it's saying that 
such organizations shall not engage beneficiaries in such 
worship, instruction or proselytization while they're receiving 
such assistance, is eminent common sense, and should be 
accepted, I hope, by the majority.
    I thank you. I yield back.
    Chairman Sensenbrenner. For what purpose the gentleman from 
Ohio seek recognition?
    Mr. Chabot. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman, I'll be brief.
    This is, again, it's an amendment which we consider to be 
unnecessary, and therefore I oppose it. The so-called opt-out 
provision allows a beneficiary to, in essence, take a pass on 
any parts of a social service that may include religious 
instruction, worship or proselytizing, and it's already clear. 
The opt-out language in the amendment reads, and I quote: ``If 
the religious organization offers such an activity''--referring 
to religious instruction, worship or proselytizing--``it shall 
be voluntary for the individuals receiving services and offered 
separate from the program funded under Subsection (c)(4).'' So 
it's been----
    Mr. Nadler. Would the gentleman yield?
    Mr. Chabot.--I think crystal clear----
    Chairman Sensenbrenner. Would the gentleman yield to me?
    Mr. Chabot. I'd be happy to yield to the gentleman from 
Wisconsin.
    Chairman Sensenbrenner. This amendment goes even further 
than that, because if you read the text of the gentleman's 
amendment, a person who is a member of the church, who seeks 
social services that are funded through H.R. 7, can't go to 
church any more, because it said, ``nor shall such organization 
engage beneficiaries in such worship, instruction or 
proselytization while they are receiving such assistance.'' So 
one could be an existing member of St. Anne's Catholic Church 
or the First Baptist Church, qualify for social services 
programs that are funded through H.R. 7 at their own church, 
and then the church can't engage the beneficiaries, even though 
they happen to be a pre-existing member of the church, in 
worship, instruction or proselytization.
    Mr. Nadler. Would the gentleman yield?
    Chairman Sensenbrenner. I would hope that this amendment 
would be rejected for that reason as well.
    Mr. Nadler. Would the gentleman yield?
    Mr. Chabot. Reclaiming my time, I'll yield to the gentleman 
from New York.
    Mr. Nadler. Thank you. I think Mr. Chabot is correct in 
thinking that my amendment was incorrect and thinking that my 
amendment simply says the same thing as the bill. It does go 
further than the bill. I want to commend the ingenious legal 
mind of the Chairman for conjuring up an extreme interpretation 
of the amendment, way beyond what I intended or anybody else 
would ever conceive of, and so his interpretation goes way 
beyond the bill and the amendment.
    All the amendment says, all the bill says, I should say, 
the bill says you can opt out, if they're engaging in a 
religious proselytization in the public service, you can opt 
out and go to a different public service which doesn't engage 
in that. You can leave the room. What the amendment says is 
that they may not engage in proselytization or worship during 
the provision of the social service. Whether or not that 
particular proselytization is paid for--in other words, the 
minister can't come into the room where they're doing the drug 
detox and lead a prayer.
    It does not say--as the Chairman implies it says--that a 
member of the church who wants to go to the hot lunch program 
or the drug detox program can't do so or can't go to church 
again. All it does say----
    Mr. Chabot. Reclaiming my time.
    Mr. Nadler. Can I say one more----
    Mr. Chabot. Reclaiming my time. All right, go ahead.
    Mr. Nadler. All it says, a member of the church certainly 
could go to the hot lunch program or the detox program, and he 
can certainly continue to go to church. All this says is that 
at the hot lunch program, they cannot bring in someone to say--
to lead the group in prayer. They can certainly lead the group 
in prayer upstairs in the church. I yield back.
    Mr. Chabot. Reclaiming my time, I'll yield to the other 
gentleman from Wisconsin, Mr. Green.
    Mr. Green. I thank my colleague for yielding. I don't know 
who to believe here, my good friend from Ohio, or my good 
friend, the Chairman, from Wisconsin. Why not just remove all 
shadow of doubt and defeat the amendment, and we won't have to 
deal with such problems.
    Mr. Chabot. Reclaiming my time, I continue to oppose the 
amendment for the reasons that I stated and the reason that the 
Chairman--and I'm going to go with my Chairman, and I yield 
back the balance of my time.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Massachusetts seek recognition?
    Mr. Frank. Well, first, Mr. Chairman, I do want to note 
that while I----
    Chairman Sensenbrenner. Do you want to strike the last 
word?
    Mr. Frank. I want to strike the last 5 minutes, Mr. 
Chairman. [Laughter.]
    Mr. Frank. What I----
    Chairman Sensenbrenner. Without objection, the clock is 
turned back and the gentleman's recognized for the next 5 
minutes.
    Mr. Frank. I am aware that in our profession we give 
ourselves in court the privilege of what is called pleading in 
the alternative, in which you can submit to a judge two 
entirely opposite theories and hope he'll pick one of them. I 
want to congratulate the majority for extending that, and in 
the previous amendment, arguing in the alternative, and 
opposing the gentleman from New York with two totally 
contradictory and opposing arguments. I guess anything that 
wins.
    What bothers me is--and I think the language could use some 
tightening. I think the gentleman from Wisconsin made a point 
that wasn't intended, probably isn't the interpretation, but I 
agree that we could tighten it up a little.
    And I want to get to that, to a procedural point, Mr. 
Chairman. It's been my understanding that it was the intention 
to complete this bill today. If that is the case, I want to 
object very strenuously, and this is an example. We have not 
been filibustering. We started on this very complicated subject 
early. We had a break for a vote. We came back again about a 
quarter to 2:00. No one thinks this bill is going to be on the 
floor as soon as we come back. Rushing through this 
extraordinarily complicated subject, on which a lot of people 
are sort of torn, and where there are a great number of 
difficult issues to deal with, in a couple of more hours on a 
day like today, when we're going to be further interrupted for 
votes, really does a disservice to this concept. I think people 
are trying seriously to work out how we can best tap the 
willingness of faith-based organizations to make an even 
greater contribution to the service of social problems.
    And if you insist on using the majority to force the pace 
of this today, I think you will be making it harder rather than 
easier. And I'll show you why I am not fully ready. We didn't 
see this bill until late yesterday. It's a lot to try and deal 
with in a day. I think people are making a serious set of good-
faith efforts to improve it. There are a whole lot of problems 
with beneficiary discrimination that we're going to get to. I 
have a problem with the opt out. I understand that. And 
certainly we don't want to say that if you are a member of the 
congregation and you're getting the service, you can't 
participate. The Chairman has raised a point that I think has 
to be clarified. But I have problems with the opt out.
    Again, I talked before about separate but equal. I mean we 
had a period in American history where we tried to maintain two 
separate sets of institutions, one for white people and one for 
black people. Now, nothing quite so invidious is being 
maintained here, but we are being told that we're going to have 
two separate sets of social programs. We're going to have the 
religious and the secular. And, again, it was a witness brought 
forward by the majority, Professor Laycock, who said this 
program will be a fraud unless we have two completely equal 
sets of institutions, and they have to be in each area. If you 
fund a program in one area, you're going to have to fund a 
secular program in that same area. And I think that, as I said, 
we learned before, separate is inherently unequal.
    The opt out reminds me of what people tried to do in the 
cases in Oklahoma and Texas--McLoren and Sweatt are the cases--
where they said, ``Okay, we don't have a law school--we're not 
going to let black people into the white law school, but we'll 
send you out of State or let you go to law school in a separate 
place.'' Again, we're not talking about anything as invidious 
as racial discrimination, but we're talking about something 
that still shouldn't be part of the policy of the United States 
Government. We're going to set up and fund with Federal tax 
dollars, to which you have contributed, religious 
organizations, and the intent is, of the current 
administration, obviously, to channel much of the social 
service programming through them. And then we'll say, ``If you 
don't like this, if you have a constitutionally-protected 
objection to it, we'll let you opt out, we'll find you another 
way.'' I am deeply skeptical that we will ever remotely 
approach equality. And the notion of an opt out is just 
offensive. It's, ``Okay, well, you'll have to drop out. You'll 
have to go away here. You have to go there.'' It puts a burden 
on the beneficiary that shouldn't be put, particularly since 
many of these intended beneficiaries are not the best 
organized, best integrated personalities in the world.
    Now, these are very difficult issues. I raise them here 
because I think the Chairman made a point about the 
advisability of redrafting the gentleman from New York's 
amendment, but we can't do that in a couple of hours. We can't 
do that if that is the intention, to just rush this bill 
through today. For what? So that the majority can say, ``Well, 
we got a bill out?'' Because no one thinks it's going to the 
floor right away. We've been making a good-faith effort. I 
would hope that we would continue for a little while longer, 
and then recess this markup, and come back, give us a chance to 
look at things. I have found this useful. The gentleman from 
New York, my colleague from Brooklyn, has been trying very 
seriously to grapple with some of these issues.
    So I have both a substantive point, which is I think that 
the amendment is better than the existing bill, but I think it 
could be further improved.
    Of course, we have this other problem, by the way, because 
of the parliamentary footing that the majority chose to use. If 
in fact, we were dealing with an original text, the gentleman 
from New York's amendment would be further subject to 
amendment. The Chairman made a point, and I think it could have 
been done.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Frank. That's now been preempted parliamentarily.
    Mr. Scott. Mr. Chairman, Mr. Chairman?
    Chairman Sensenbrenner. For what purpose the gentleman from 
Virginia seek recognition?
    Mr. Scott. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. And I'd like to inquire from the Chairman, 
whether or not the legislative intent of the language on page 
17, line 24--or I guess beginning at line 20, says that no 
funds provided through a grant shall be expended for sectarian 
worship--sectarian instruction, worship or proselytization, and 
if the religious organization offers such activity, it should 
be voluntary for the individuals receiving the service, offered 
separate from the program. Whether that means that during the 
government-funded program there should be no worship, 
proselytization, sectarian instruction by volunteers or 
otherwise, and any religious activities would be totally 
separate and apart from--and voluntary--separate and apart from 
the government program? Is that----
    Chairman Sensenbrenner. The answer to the question is yes.
    Mr. Scott. Thank you.
    Chairman Sensenbrenner. That's what it says. The question 
is on the Nadler amendment to the Chairman's amendment. Those 
in favor will signify by saying aye.
    Opposed, no.
    The noes appear to have it. The noes----
    Mr. Nadler. rollcall, Mr. Chairman.
    Chairman Sensenbrenner. rollcall is ordered. The question 
is on agreeing to the amendment offered by the gentleman from 
New York, Mr. Nadler, to the amendment offered by the Chairman. 
Those in favor will, as your names are called, answer aye, 
those opposed no, and the clerk will call the role.
    The Clerk. Mr. Hyde?
    Mr. Hyde. No.
    The Clerk. Mr. Hyde, no. Mr. Gekas?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Barr?
    [No response.]
    The Clerk. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Hutchinson?
    Mr. Hutchinson. No.
    The Clerk. Mr. Hutchinson, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Graham?
    Mr. Graham. No.
    The Clerk. Mr. Graham, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    Mr. Scarborough. No.
    The Clerk. Mr. Scarborough, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    [No response.]
    The Clerk. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    Mr. Frank. Aye.
    The Clerk. I'm sorry? Mr. Frank?
    Mr. Frank. Aye.
    The Clerk. Mr. Frank, aye. Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. Pass.
    The Clerk. Ms. Jackson Lee, pass. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Are there additional Members in the 
room who desire to cast or change their vote? The gentleman 
from Pennsylvania?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no.
    Chairman Sensenbrenner. Gentleman from North Carolina?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. Gentleman from Georgia?
    Mr. Barr. No.
    The Clerk. Mr. Barr, no.
    Chairman Sensenbrenner. Gentleman from Tennessee?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. Gentleman from Alabama?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Chairman Sensenbrenner. Gentleman from Florida?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Chairman Sensenbrenner. Gentleman from Arizona?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Chairman Sensenbrenner. Gentleman from Florida?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye.
    Chairman Sensenbrenner. Further Members who wish to cast--
the gentlewoman from Texas.
    Ms. Jackson Lee. How am I recorded?
    The Clerk. Ms. Jackson Lee, pass.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
to change their votes? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 7 ayes and 22 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments to the amendment?
    Mr. Scott. I have an amendment at the desk, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk, 
No. 6.
    Chairman Sensenbrenner. The clerk will report the Scott 
amendment No. 6.
    The Clerk. Amendment to the amendment to H.R. 7, offered by 
Mr. Scott and Ms. Waters.
    On page 10, line 10 strike ``paragraph-'' through----
    Mr. Scott. Mr. Chairman----
    Mr. Chabot. Mr. Chairman, reserving a point or order.
    Chairman Sensenbrenner. A point of order is reserved. The 
gentleman from----
    Mr. Scott. Move that reading be waived.
    Chairman Sensenbrenner. Without objection, the reading of 
the amendment will be waived and the gentleman from Virginia is 
recognized for 5 minutes.
    [The amendment follows:]
    
    
    Mr. Scott. Mr. Chairman, this amendment that I'm offering 
with the gentlelady from California simply prevents charitable 
choice rules to applying to programs under the Elementary and 
Secondary Education Act. Both the Senate and House recently 
passed, by overwhelming majorities, bipartisan education bills. 
Charitable choice was not considered by either the House or the 
Senate authorizing Committees, nor was it debated on the House 
or Senate floors, because doing so would have jeopardized an 
otherwise bipartisan bill. As controversial as charitable 
choice is in the social service context, and even more so when 
applying it to elementary and secondary programs. For the first 
time ever, H.R. 7 would establish direct grants to pervasively 
sectarian institutions, including private religious schools, to 
run elementary and secondary programs. The courts have not even 
decided the constitutionality of vouchers in situations like 
this, an indirect aid scenario, and here we are immediately 
providing direct aid to these institutions.
    Charitable choice is not needed for churches and other 
houses of worship to participate in these programs, so long as 
they comply with civil rights laws. But the meager protections 
that are in charitable choice for adults, are simply inadequate 
when running programs for children. The provisions prohibiting 
proselytization during government services does not go far 
enough when we deal with children. The law has consistently 
differentiated between children and adults, for example, when 
we talk about prayers. Children are more susceptible to 
coercion, and so we can have city council approved prayers at 
official ceremonies involving adults, but we can't have school-
sponsored prayers dealing with children. Here children 
represent a truly captured audience, and even proselytization 
that occurs outside of a program may cross the line, 
particularly when parents are not consulted or informed.
    Now, I would like to add that the language providing 
alternatives is particularly unrealistic in a school situation, 
given the huge demands for these programs and the current 
system's inability to meet that demand. The quote, 
``alternatives'' available to children are particularly 
obnoxious because all of the normal children would go to one 
program, while the one or two children belonging to another 
religion would have to be separated and relegated to another 
room.
    I'd like to note that the original charitable choice bill 
introduced by then Senator Ashcroft, covered just about 
everything except elementary and secondary education programs. 
This amendment is supported by the National Education 
Association, the American Federation of Teachers, the American 
Association of School Administrators, and I'd like to submit 
their letters of support for the record.
    Chairman Sensenbrenner. Without objection.
    Mr. Scott. I yield back.
    [The material referred to follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Ohio insist upon 
his point of order?
    Mr. Chabot. I'll withdraw my point of order, Mr. Chairman.
    Chairman Sensenbrenner. Does the gentleman seek 
recognition?
    Mr. Chabot. I do. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I'll be brief.
    I oppose the amendment. The amendment in essence would 
eliminate adult GED and after-school programs from coverage, 
and these are very important programs that provide very 
important services to significant people within our Nation, and 
should not be excluded. The Supreme Court has upheld direct 
government funding to elementary schools, provided that the 
proper monitoring procedures are in place. So for those and 
other reasons, we oppose this amendment.
    Mr. Weiner. Would the gentleman yield for a question? Would 
the gentleman yield for a question?
    Mr. Chabot. I'd yield.
    Mr. Weiner. I'm predisposed to oppose the amendment as 
well, but the gentleman, in his explanation, offers an 
interesting question. What if you have an after-school program, 
you have a student or say two students who opt out of it? 
According to the bill, they have to be provided with a program, 
an alternative that has a value that is not less than the value 
of the assistance that the individual would have received from 
such organizations. How--how do you, as the Chairman of the 
Subcommittee, see that working? Part of the value of an after-
school program is you are hanging out with a bunch of other 
children, you have different rooms to travel in, you have a 
basketball court in one room and arts and crafts, a tutoring 
program. Do you envision an after-school program being 
constructed of the same value, meaning you have a gym with one 
kid running around, you have a tutoring program where the tutor 
waits to see if that kid wants to stop by, a wicker workshop in 
the next room, seeing if maybe that fellow wants to run in 
there. How do you conceive of the opt-out program working in a 
construct of the underlying bill?
    Mr. Chabot. Will the gentleman yield?
    Mr. Weiner. Sure, it's your time.
    Mr. Chabot. I thank the gentleman for yielding. The 
recipient clearly has the option, if they object to a religious 
program providing that service, to go to either another 
religious program, or secular program----
    Mr. Weiner. Right.
    Mr. Chabot. And that will be determined on a case-by-case 
basis as to whether it's been appropriate and whether it's of 
comparable funding, and they're entitled to that under this 
bill.
    Mr. Weiner. Will the gentleman yield further? Will the 
gentleman yield further?
    Mr. Chabot. It's your time.
    Mr. Weiner. Actually, it's not. It's your time, but I 
appreciate it.
    Mr. Chabot. I'll yield.
    Mr. Weiner. In Cincinnati, in your district, in Brooklyn, 
in mine, you can't shake a stick without hitting an after-
school program. Thank goodness there are plenty of alternatives 
around. But the explanation for why this is needed, we've 
also--we've always been pointed to the parts of our community 
that are served by churches that are sometimes not in big 
cities. Let's say it's a corner of rural Idaho that has an 
after-school program set up in the local Baptist church in the 
basement. They have an after-school program. Someone in rural 
Idaho who's not of that faith feels uncomfortable, or a child 
doesn't want to go to that after-school program. What do you 
envision--how is this actually going to work on the ground? You 
say it has to be something of equal value. How do you replicate 
that in a community that has no other after-school programs 
because it also has to be accessible? I'm curious. In the real 
world, in that real world example, how would you envision the 
bill working?
    Mr. Chabot. Reclaiming my time.
    Mr. Weiner. Certainly.
    Mr. Chabot. I think the gentleman raises a very important, 
very interesting point. This is something that he and I and Mr. 
Green had an opportunity to discuss on the floor a bit. I don't 
know that we're ever going to come to a conclusion which is 
satisfactory to the gentleman, but we're going to--you know, 
you have to look at it. You mentioned Idaho as an opportunity, 
a rural area. It may be a little bit more difficult there than 
it might be in a large city, to provide a comparable service, 
but that's something that's going to have to be worked out. And 
ultimately we may end up in the court in determining how this--
injunctive relief--not for money damages, but for injunctive 
relief--but this is again something that we've had for some 
time.
    Mr. Weiner. But what do you----
    Mr. Chabot. Under Welfare Reform--under Welfare Reform, 
we've had this, for example, since 1996, and this is not new 
law, it's an expansion of existing law, in essence, and I'd be 
happy to continue to yield to the gentleman.
    Mr. Weiner. Well, certainly. But putting aside the 
litigation, what do you envision? I mean, you're a supporter of 
the bill. It was your Subcommittee and you're an expert in 
this. What do you envision in that case, and what's the dream 
Chabot scenario? How does it work out? Do we really--are going 
to have to create? Is that rural Idaho community going to have 
to create--I mean, what do you think is going to happen, I'm 
asking?
    Mr. Chabot. Reclaiming my time, I cannot, with great 
candor, determine exactly what the program in Idaho is going to 
do, nor should I be the one that should make that 
determination. As our former Chairman, Mr. Hyde, mentioned, 
there's an army of people out there that want to provide 
services for the right reasons. These are people of goodwill 
who really care about helping underprivileged children, about 
helping homeless children, about providing after-school care, a 
whole range of activities out there that our country needs in 
great amounts for all kinds of people for all kinds of reasons. 
And we're trying to provide the resources to many groups and 
organizations and faith-based organizations that have not, 
unfortunately, been able to take advantage of this and provide 
those services for some time. We're going to have to see in 
practice how this actually works, and they're going to have to 
work within the constraints and the confines of this law
    So again, I commend the President for putting this program 
forward, and I commend this body for debating this issue in an 
intelligent manner and trying to craft good legislation, but I 
can't tell you exactly what it's going to look like in Idaho, 
and I yield back the balance of my time.
    Mr. Weiner. Would the gentleman yield?
    Mr. Frank. Mr. Chairman? Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Massachusetts seek recognition?
    Mr. Frank. To strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Frank. I think we have gotten to one of the serious 
problems with this bill. The gentleman from Brooklyn was taking 
the argument seriously, and he's being told, well, we don't 
know how it's going to work out. I've asked to be distributed 
an excerpt from the transcript of the hearing that the 
gentleman from Ohio's Subcommittee had with Professor Laycock 
from the University of Texas, who was here at the request of 
the majority to be a strong witness in favor of this program. 
And Professor Laycock says, on page 48 in what's been given 
out, ``We will not put religious conditions on the money to the 
provider and we will protect the beneficiary by really making 
available an alternate provider. You have got to really do that 
or this program is a fraud.''
    And on the next page, 64, actually my name is omitted, it 
begins with me. I ask him about this, and he says again--I say, 
``Do we have to have in place a complete alternative set of 
programs that meet the condition?'' And Mr. Laycock says, at 
line 1510, ``If you read my written testimony, you will see I 
said yes, this is where the real issue is. How do we make this 
happen? This is a religious liberty bill, it is not a funding 
bill. The higher the levels of funding the better this will 
work.''
    Well, he says you have to have a complete parallel set, but 
what bothers me is, I then turn to Mr. Esbeck, representing the 
administration, the Justice Department, and I asked him if he 
agreed with Mr. Laycock that you had to have the complete set 
of alternatives, and he said no. That's why I do not believe 
that this promise is going to be kept. Indeed it isn't even 
being made by the administration. I can't charge them with 
breaking a promise. They won't make it.
    Here's Mr. Esbeck on page 66, lines 1527: ``let's say it is 
a drug rehabilitation service, if they have one objector, they 
could simply employ a clinical psychologist to deliver the 
services to that one particular individual.'' We're now going 
to have the social service delivered by the one individual.
    I said, well, what if there were 6 or 7 or 11? The 
administration has basically answered the gentleman from New 
York and said, no, we're not even going to try.
    And I finally asked him--and this is at the bottom of page 
67--``Do you agree with Professor Laycock's characterization 
that for this program to be fair and justifiable there needs to 
be a substantively equal secular alternative set of programs?''
    Mr. Esbeck, representing the Justice Department, the 
administration witness here: ``I think in my earlier answer I 
was showing you an example where that was not necessary. So I 
guess the answer is no.''
    The problem is that without a lot more work, given the 
administration's position, we are being asked to adopt a 
program that will work out, in the words of Professor Laycock, 
fraudulently.
    Mr. Weiner. Will the gentleman yield?
    Mr. Frank. Yes.
    Mr. Weiner. I just want to make a point. I mean, I think 
it's also important to know that a job training program 
teaching people to type, you can very easily send a typist over 
to a person's home or have them meet in someone's office and 
teach them to type. What troubles me about after-school 
programs is the very nature of after-school programs. You can't 
just remove a child from that environment and then surround 
them with people----
    Mr. Frank. Well----
    Mr. Weiner. I'm sorry.
    Mr. Frank. No, I agree with the guy, when he's saying this 
context--but by the way, that's true of job training programs. 
As everyone knows, job training programs don't simply teach you 
the physical skill. They teach you how to get up and get there 
on time. They teach you how to work with other people. Whenever 
you are dealing--we are dealing here with problems that are 
often behavioral, and the notion that it's equal if you just 
send a clinical psychologist there, to being part of this 
social setting, is wrong. And again, I am disturbed because Mr. 
Esbeck, on behalf of the Bush administration, denies what seems 
to many of us to be the central principle on which we've heard. 
He says, no, Professor Laycock is wrong. You don't have to do 
it equally.
    Now, the relevance of that is this: the more you allow 
religious content in the program, the more you generate the 
possibility that people are going to want a separate program 
which is going to cost a lot of money, which will be very 
difficult with our current fiscal situation, and which Mr. 
Esbeck says won't be there. So while we cannot control in this 
the funding, this is an argument, it seems to me, for 
diminishing the likelihood that you're going to drive people to 
want that alternative. That's why some of us have supported 
some of these amendments that try to preserve this right. But 
fundamentally, what this transcript shows is the witness that 
the majority brought forward, the professor from the University 
of Texas, Mr. Laycock, says, here's what you need to make this 
fair, and the Justice Department says basically, no, we're not 
going to do that.
    Chairman Sensenbrenner. The gentleman's time has expired. 
For what purpose does the gentlewoman from California, Ms. 
Waters, seek recognition?
    Ms. Waters. To strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Waters. It was mentioned that within a few weeks ago 
the House and Senate passed bills reauthorizing the Elementary 
and Secondary Education Act programs. Provisions within each 
bill allow community groups to compete for after-school grants 
and to provide tutoring assistance to pupils attending low-
performing schools. These measures are intended to improve our 
children's education.
    However, neither bill included a charitable choice 
amendment to establish direct grants to private religious 
schools and other sectarian entities, to provide educational 
services to elementary and secondary students. Such an 
amendment was not even considered on the floor or in Committee, 
and yet that's exactly what this bill would do. It would sneak 
in direct grants to religious groups through the back door.
    If this is an important aspect to educational services, 
then why wasn't it discussed when we dealt with the education 
reauthorization bill? I think I know why: because the authors 
of the bill knew that such a provision would be very 
objectionable to the Education and Workforce Committee and that 
it would undergo far too much scrutiny on the floor.
    Well, we must not allow such underhanded tactics. 
Charitable choice is offensive and problematic enough without 
adding in provisions relating to after-school and tutoring. 
These provisions would again entangle the Government with 
religion. To allow our Government to dole out funding to 
private religious schools is to invite an inappropriate melding 
of church and state.
    I would like to quote from a letter I received yesterday 
from the American Federation of Teachers in opposition to H.R. 
7. It says in part, and I quote, ``Allowing Federal funds to 
flow directly to pervasively sectarian religious organizations, 
to provide Government services such as education through 
charitable choice, raises serious constitutional issues 
regarding the separation of church and state.''
    The letter goes on to note that the bill could force 
susceptible young children in education programs to listen to 
religious messages that make them uncomfortable and may be 
contrary to their family's religious orientation.
    We here on the Judiciary Committee are very consciously 
working within our jurisdictional guidelines. The authors of 
this bill should be held to the same standard. These provisions 
should not be in this bill, and I urge you to strike them.
    Ms. Lofgren. Would the gentlelady yield?
    Ms. Waters. I yield to the gentlelady from California.
    Ms. Lofgren. I think that your statement is wise, and I 
would like to make an additional observation about the 
amendment before us.
    In the example raised by the gentleman from New York, he 
described an after-school program that might be located at a 
church or an institution, a faith-based institution. But 
oftentimes these after-school programs are actually located at 
the school, and there is very limited space, and you might have 
outside groups that come in and actually provide the services 
on the school site.
    If the Wiccans actually had the lowest-cost program and 
they want to come on to the school site and provide the after-
school care, they agree not to proselytize, but they're dressed 
as witches. The parents don't have another option. The kid is 
at school. The kid can't go anywhere else. The school can't 
accommodate an additional program. So you're going to end up 
with the Wiccans and no possibility of implementing the opt-out 
that is essential to even arguably making this bill 
constitutional. And I thank the gentlelady for yielding.
    Chairman Sensenbrenner. Would the gentlelady yield?
    Ms. Waters. Let me just----
    Chairman Sensenbrenner. Would the gentlelady yield further?
    Ms. Waters. Reclaiming my time, I would think that my 
friends on the opposite side of the aisle would really be 
afraid of what has been constructed in this bill that would 
allow their children to receive religious messages that do not 
comport or agree with where they stand religiously in the 
family. I think this is the greatest possible intrusion.
    Let me just say, if you're an adult, you can tell somebody 
about what offends you, you don't like it. But what do children 
know? What do children know who are put in this position? We 
are sending them for tutoring, for after-school programs, and 
to have to encounter the possibility of being given religious 
messages by people you don't know and you certainly don't agree 
with. I think this is not a liberal issue. This is really not a 
conservative issue. But I have heard conservatives more than 
anybody else talk about protecting the right of parents to be 
able to infuse the values that they care about in their 
children rather than having other people interfere with that.
    Chairman Sensenbrenner. The gentlewoman's----
    Ms. Waters. I think this is dangerous.
    Chairman Sensenbrenner.--time has expired. The question is 
on the amendment offered by the gentleman from Virginia, Mr. 
Scott, to the Chairman's amendment. Those in favor will say 
aye. Opposed, no? The noes appear to have it.
    Ms. Waters. rollcall.
    Chairman Sensenbrenner. A rollcall is requested and will be 
ordered. The question is on the adoption of the Scott amendment 
to the Chairman's amendment. Those in favor will, as your names 
are called, answer aye; those opposed, no; and the clerk will 
call the roll.
    The Clerk. Mr. Hyde?
    Mr. Hyde. No.
    The Clerk. Mr. Hyde, no. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Barr?
    [No response.]
    The Clerk. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Hutchinson?
    Mr. Hutchinson. No.
    The Clerk. Mr. Hutchinson, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Graham?
    [No response.]
    The Clerk. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no. Mr. Scarborough?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    [No response.]
    The Clerk. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    Mr. Frank. Aye.
    The Clerk. Mr. Frank, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Pass.
    The Clerk. Ms. Jackson Lee, pass. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Additional Members in the room who 
wish to cast or change their vote? The gentleman from North 
Carolina?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Ohio?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Chairman Sensenbrenner. The gentleman from South Carolina?
    Mr. Graham. No.
    The Clerk. Mr. Graham, no.
    Chairman Sensenbrenner. The gentleman from Tennessee?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. The gentleman from Georgia?
    Mr. Barr. No.
    The Clerk. Mr. Barr, no.
    Chairman Sensenbrenner. Additional Members in the room who 
wish to cast or----
    Ms. Jackson Lee. How am I recorded, Mr. Chairman?
    The Clerk. Ms. Jackson Lee, pass.
    Chairman Sensenbrenner. The gentlewoman from Texas?
    Ms. Jackson Lee. Aye.
    Chairman Sensenbrenner. Does the gentlewoman from Texas 
wish to change her vote?
    Ms. Jackson Lee. I was--yes, I'd like to vote aye.
    The Clerk. Ms. Jackson Lee, aye.
    Chairman Sensenbrenner. If there are no further Members who 
wish to cast or change their vote, the clerk will report.
    The Clerk. Mr. Chairman, there are 10 ayes and 17 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    Ms. Lofgren. Mr. Chairman, I have----
    Chairman Sensenbrenner. The gentlewoman from California--I 
was instructed by the Democratic staff to recognize the 
gentlewoman from California next. For what purpose does the 
gentlewoman from California seek----
    Ms. Lofgren. I have an amendment at the desk designated the 
Lofgren-Schiff amendment.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the amendment to H.R. 7, offered by 
Representative Lofgren and Representative Schiff, strike 
section 104.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentlewoman from California is 
recognized for 5 minutes.
    Ms. Lofgren. Mr. Chairman, we have had a lengthy and I 
think useful discussion about the role of religious and the 
need to protect the free exercise of religion, but there's 
something else in this bill that also needs to be attended to 
that I don't think is really about charitable choice at all, 
and that is section 104 that this amendment would strike.
    It appears to me to be written for really no other purpose 
than to shield corporations from the responsibility they should 
continue to have for those items or services they may 
contribute or, if you look at the plain language, also rent or 
charge a fee for. This bill creates such a high standard, 
namely, either gross negligence or intentional misconduct, that 
it almost guarantees immunity from liability for injuries or 
death that could result from furnishing materials, vehicles, 
real property to nonprofit agencies.
    Let me just give a couple of examples. On page 3 of the 
Chairman's amendment, there is a liability relief for business 
entities that provide use of facilities to nonprofit 
organizations, specifically when the use occurs outside of the 
scope of the business or the business entity; it's limited also 
that the injury or death would occur when the facility is used 
by the nonprofit entity and that it's authorized by the 
business.
    Section (b)(2) indicates that the facility doesn't even 
have to be donated to the nonprofit. It can be rented or a 
profit could be made by the business for furnishing space.
    Well, think about some scenarios that could be covered by 
this. For example, you've got a store in a city and there's 
extra room in back of the store that is rented, because times 
are tough in the commercial world, to a baby-sitter, a 
nonprofit baby-sitter, perhaps even a church. Now, the store 
owner neglects to check the smoke detectors, and the store 
owner neglects to make sure that the emergency exits are 
cleared. When the facility catches fire and the 3-year-olds are 
injured, the store owner would be exempt from liability for the 
injuries sustained by the pre-schoolers because the conduct 
involved would be mere negligence, not gross misconduct or 
intentional misconduct.
    Let me give another example in the motor vehicle section on 
page 4. Take a corporation--it's very common. The corporations 
have vans that they use for their own employees. Times are 
tough in the corporate world, especially in Silicon Valley. If 
a corporation decides to lease or rent that employee van to the 
Girl Scouts but fails to check on the bald tires, that van 
flips and incinerates the Girl Scout troop, the business that 
has made a profit by providing that van to the Girl Scouts is 
immune from liability for their negligence. And I can't imagine 
that that's what the proponents of charitable choice wish to 
do.
    Finally, on page 5, there's a provision eliminating 
liability for business entities providing tours of facilities. 
Now, I must confess, I have thought long and hard about why 
this provision would be here because this is not even limited 
to nonprofits. It appears to be completely extraneous to the 
whole issue that we've been discussing all day, which is faith-
based matters. It appears that if you were a factory owner and 
you did a tour for salesmen, and the salesmen in the bowels of 
the manufacturing facility ended up being beaned by a faulty 
line, that you would be exempt from liability under this 
section, although that has absolutely nothing to do with 
religion. So I am just bemused by that.
    I also am astonished, frankly, that in the manager's 
amendment, the few sections that would carve out liability when 
misconduct is a sexual offense, when misconduct is a hate 
crime, when misconduct violates a Federal or State civil rights 
law, when misconduct----
    Chairman Sensenbrenner. The gentlewoman's time has expired.
    Ms. Lofgren. I'd ask unanimous consent for an additional 
minute.
    Chairman Sensenbrenner. Without objection.
    Ms. Lofgren. When misconduct is a crime of violence, those 
have been removed in the amendment. So if you had--I know a 
woman who is a psychologist who specializes in counseling child 
molesters for a profit, she's in business. If she rents out the 
first floor of her building to the day care and her clients 
molest the children in the day care, this bill is going to 
preclude any finding of liability for that negligence, and I 
cannot believe that that is something that proponents of faith-
based programs would wish to do. And I yield back the balance 
of my time.
    Chairman Sensenbrenner. The Chair will recognize himself 
for 5 minutes in opposition to the amendment.
    Section 104 provides that businesses that provide in-kind 
charitable contributions shall not be liable for death or 
injury arising from the use of those contributions unless there 
is gross negligence or intentional misconduct. The gentlewoman 
spotted the fact that the original bill had a number of 
instances contained in there, including hate crimes and sexual 
assaults. Those are all intentional misconduct, and there is no 
exemption from liability if any of the beneficiaries under 
charitable choice are victims of that kind of activity.
    The liability protection in the manager's amendment applies 
in four instances: first, when a charity uses equipment donated 
by a business; second, when a charity uses the facilities of a 
business; third, when a charity uses motor vehicles or aircraft 
of a business; and, fourth, when a charity takes a tour of the 
facilities of a business.
    This provision extends to those matters the same basic 
concept that this Committee embraced for volunteers in the 
Volunteer Protection Act of 1997. That bill passed this 
Committee by a vote of 20 to 7. It passed the House by a vote 
of 390 to 95. It passed the other body by a vote of 99 to 1 and 
was signed into law by former President Clinton.
    I am hopeful that we can have the same type of bipartisan 
support for this provision that we had for the Volunteer 
Protection Act. The basic idea is that donating something to a 
charity should not be a high-risk venture. You should not have 
to endure unlimited liability for ordinary negligence to be a 
good corporate citizen. That type of litigation limits the good 
works that charities can do.
    For example, potential liability for the use of donated 
motor vehicles can discourage businesses from helping kids go 
on a field trip or to get to summer camp. We do not want these 
kinds of good works hindered by the threat of lawsuits.
    For those of you who don't like this type of protection, 
we've also taken care of your concerns. All the States under 
the manager's amendment are free to override the provisions of 
this section and to reinstate liability laws should they 
choose. I think it is unlikely that States would reject this 
type of provision, but they can do so if they choose.
    I yield back the balance of my time and declare the 
Committee in recess----
    Mr. Frank. Mr. Chairman----
    Chairman Sensenbrenner.--and come back following the votes.
    [Recess.]
    Chairman Sensenbrenner. The Committee will be in order. 
Pending at the time of the recess was the Lofgren amendment 
striking section 104----
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner.--of the Chairman's mark. For what 
purpose does the gentleman from Massachusetts seek recognition?
    Mr. Frank. To strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Frank. Mr. Chairman, first, I am still puzzled as to 
why this bill decides that any tour of a business facility, 
including one for which people pay, is a matter of faith-based.
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Frank. Yes.
    Chairman Sensenbrenner. I would ask unanimous consent that 
the Sensenbrenner amendment be modified to delete that section.
    Mr. Frank. I object, Mr. Chairman--oh, delete the whole 
section?
    Chairman Sensenbrenner. No. To delete the section relating 
to tours.
    Mr. Frank. Tours. No objection.
    Chairman Sensenbrenner. Without objection, so ordered.
    Mr. Frank. Well, I thank the Chairman for that. I still--
I'm a little frustrated because I am denied the explanation of 
how it got in here in the first place. I think that would be a 
more interesting tour than those for which you were going to 
give people liability. But the gentleman's point illustrates 
the absolute unreasonableness of the apparent decision by the 
House leadership that this Committee must finish this bill. I 
believe that the Chairman has played up until now a very 
constructive role in trying to improve this bill, and I 
appreciate what he did. I realize that matters of scheduling 
are not entirely autonomous ones for the Committee.
    But precisely because the Chairman was working so hard to 
get some revisions, we on our side of the aisle did not see 
this bill until yesterday afternoon. This is a very complex 
bill. It has a lot of references to other statutes. It is a 
subject on which a number of Members feel favorably inclined in 
some ways, subject to some amendments. And because of the way 
things have turned out, we are going to be asked to pass this 
bill without it being given adequate consideration.
    It is now a time when many Members have left on both sides. 
I have had Members on both sides say to me, gee, I got a plane 
to catch. No doubt that the majority will be able to muster a 
quorum, at least a working quorum, to shut down debate on the 
bill if they can't quite get it voted out. And those who are 
insisting that this be done--I don't impute this desire to the 
Chairman. Those who are insisting that this be done do this 
whole bill, this whole concept, a disservice.
    Again, the Chairman just agreed, we needed an amendment 
here. The Chairman earlier pointed out what I thought was a 
flaw in the wording of the amendment offered by the gentleman 
from New York. I've got amendments to deal with other parts of 
this bill. The beneficiaries section has some serious problems.
    One of the things that's clear to me, if you look at this 
bill, is that it is a license for people to discriminate 
against gay and lesbian people. Beneficiaries, for instance, 
are protected against discrimination based on some laws, but 
they are explicitly not protected against discrimination based 
on State laws, and that is an invitation for people to 
discriminate based on sexual orientation.
    I'd like to be able to explore these things, but what we're 
going to be dealing with now--members are barely here, even 
after they've been asked, some Members will be leaving, Members 
are under pressure to get out of town. A complicated bill 
involving important constitutional and policy questions is 
being rushed through, and why? It cannot come to the floor of 
the House for 10 days and, indeed, will not come to the floor 
of the House very soon. The rational thing to do would be to 
resume on this bill, even on the Tuesday. Members had 
originally been told there would be voted on Monday. We could 
come back on Tuesday in July and have the 4 or 5 hours left to 
consider this. Instead, consideration of this bill will be 
truncated. Important questions will not be dealt with fairly. 
It will be voted out under pressure. A bill that was 
substantially revised, to the good--and I appreciate the 
revisions--but revised so late given the timing of the markup 
that we did not have adequate chance to prepare.
    Now, that's what you do if you were trying not to resolve 
an important public policy issue, but if you're trying to get 
some political points because you think you're in trouble. 
Obviously, things have not been going well for the 
administration in their mind, and so they felt that they needed 
before this recess to have a success to talk about. And the 
sole purpose of this rushed and truncated markup on a bill 
which we have not had adequate chance to study is so the 
administration can recoup a little of what it has lost. And it 
does this at the expense of the effort to build a consensus 
behind this bill.
    We were prepared to be serious about this, to debate it. We 
were working our way through the issues. We got through the 
employment issue. We were going to get into the beneficiary 
issue. We've made also serious progress in dealing with the 
question of the proselytization. But that now gets--that plug 
gets pulled because no one thinks between now and whatever time 
the deadline will come you're going to get adequate 
consideration given all these constraints.
    I really very much regret that this has happened.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    The gentleman from Virginia, Mr. Scott?
    Mr. Scott. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, I would hope that we would adopt 
this amendment so we could give coherent attention to the 
issue. This is a tort reform issue, not a charitable choice 
issue. As the Chairman has pointed out, we have good Samaritan 
laws that might achieve bipartisan consensus, but we can't do 
that in the middle of a charitable choice debate. There are 
some provisions that involve motor vehicles, for example, where 
we usually exempt motor vehicle liability because there's 
usually insurance. We don't have time to really do this, and I 
would hope we'd accept this amendment and try to deal with the 
issue on another day.
    I yield back.
    Ms. Lofgren. Would the gentleman yield?
    Mr. Scott. I yield to the gentlelady from California.
    Ms. Lofgren. I think your point in terms of the insurance 
issue is a good one, and I wanted to make just two additional 
comments about the amendment and also the deletion of the 
carve-outs in the underlying bill.
    The Chairman is obviously correct that a sexual offense is 
an intentional act and, therefore, would not be--would be 
covered under the underlying bill. But the point is that 
liability can attach to someone other than the tort feasor in 
the case of some sexual attacks, for example, the famous case 
where negligence in the lock that allowed the hotel guest to 
be--to have a room broken into and to be raped. And there was 
negligence found on the part of the hotel.
    If, for example, you have--and I gave an earlier example of 
someone who I actually happen to know who is a psychologist, 
whose specialty is child molesters. If that person rents space 
in the bottom of her building and then hires as an attendant or 
a handyman a registered child molester, and the child molester 
molests the children in the downstairs basement, you can--sure, 
you can go ahead and sue the child molester, but chances are he 
is going to be judgment-proof. And it's the negligence of the 
owner of the building that really needs to be called into 
account, number one, so that there can be remedial funds made 
available to counsel the children who have been damaged; and, 
number two, there's a reason for tort law, which is to hold 
people to ordinary standards of care. And the idea isn't just 
to tag people once they've messed up, but to have people think 
and not do stupid things so that we live in a safer 
environment.
    I think that the elimination of the sex provision and the 
crime of violence provision and the hate crime provision is a 
serious mistake. I object to the whole section, but at least we 
ought to have those carve-outs because I think they are serious 
issues.
    I thank the gentleman for yielding to make those points.
    Chairman Sensenbrenner. The gentleman yields back.
    The question is--the gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. I want to simply say 
that I agree with the amendment of the gentlelady from 
California. And having said that, I want to associate myself 
with the remarks of Mr. Frank. I am very disturbed by the rush 
job of this bill. As Mr. Frank said, we first saw this bill or 
the Chairman's mark late last--oh, 6, 7 o'clock yesterday, I 
think it was. And there's obviously not been a proper time--
enough time to do a proper job of analyzing this and going 
through it.
    Now, of course, given the way we rushed through the tax 
bill, that may be a pattern.
    Let me say one other thing, though. There are rumors afloat 
today that there may be a move by the Chairman to move the 
previous question at some time tonight. I earnestly hope that's 
not the case. In the 9 years I've been on the Committee, I 
recall three occasions--I recall two occasions when the 
previous question was called. The previous question, of course, 
eliminating the right of the minority or, for that matter, 
perhaps majority Members to offer amendments. Once was during 
the Contract on America, I forget which bill it was, and the 
Chairman at that time was apologetic and in effect said he had 
no choice, he had been instructed to get the bill out that day 
by the Speaker or whoever. But we had had 4 or 5 days on the 
bill.
    Earlier this year, you, sir, called the previous question. 
And maybe there was a reason in that one Member of the 
Committee was being obstreperous in offering dilatory--using 
many dilatory tactics. Nobody's doing--nobody's doing that 
today. If we simply do not have enough time to go through all 
the amendments today, a second day of markup on a bill of this 
nature is not too much to ask. It would be a gross violation of 
comity between the parties and of the traditions, I think, at 
least in the years that I've been here, of the Committee to 
move the previous question. And I hope that the Chairman won't 
do it, and I hope that it will not be necessary for the 
minority, if he should do it, to engage in a lot of dilatory 
tactics for the rest of the session.
    Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The question is on the Lofgren 
amendment to the Chairman's amendment. Those in favor will 
signify by saying aye. Opposed, no? The noes appear to have it.
    Ms. Lofgren. rollcall, Mr. Chairman.
    Chairman Sensenbrenner. A rollcall is requested. The 
question is on agreeing to the Lofgren amendment to the 
Sensenbrenner amendment. Those in favor will, as your names are 
called, answer aye; those opposed, no; and the clerk will call 
the roll.
    The Clerk. Mr. Hyde?
    Mr. Hyde. No.
    The Clerk. Mr. Hyde, no. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Barr?
    Mr. Barr. No.
    The Clerk. Mr. Barr, no. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Hutchinson?
    Mr. Hutchinson. No.
    The Clerk. Mr. Hutchinson, no. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Graham?
    Mr. Graham. No.
    The Clerk. Mr. Graham, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    [No response.]
    The Clerk. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    Mr. Frank. Aye.
    The Clerk. Mr. Frank, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Are there additional Members--the 
gentleman from California?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Chairman Sensenbrenner. Are there additional Members who 
desire to cast their votes or to change their votes? If not, 
the clerk will report.
    The Clerk. Mr. Chairman, there are 7 ayes and 13 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr.----
    Mr. Frank. I offer an amendment. It's the one that's 
headed, ``Offered by Mr. Frank and Ms. Baldwin.''
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the amendment to H.R. 7, offered by 
Mr. Frank and Ms. Baldwin. Page 15----
    Mr. Frank. I ask unanimous consent that it be considered as 
read.
    Chairman Sensenbrenner. Without objection.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Frank. This goes to a section we have not previously 
debated. We've dealt with employment discrimination. This deals 
with beneficiary discrimination.
    Now, on page 15, we have non-discrimination against 
beneficiaries. Interesting, the very fact that we are dealing 
with this shows the controversial nature of some aspects of 
this program. Ordinarily, when the Federal Government is 
funding programs, we don't worry about discrimination against 
beneficiaries. But apparently there is the perception from 
people who know this best that some of the organizations 
receiving this money might be inclined to discriminate against 
beneficiaries. Obviously, that is impermissible with Federal 
funds.
    But the problem is that it seems to me to be very 
incomplete. There is a provision on page 13--I think it's 
inappropriately placed, but I hope it's suppose to mean that. 
Under section (e), employment practices, there's subsection (1) 
and then subsection (2), and subsection (2) says, ``Nothing in 
this section alters the duty of a religious organization to 
comply with certain laws.''
    Now, it's placed in the bill as if it only applied to 
employment. I am assuming we would clarify that it was meant to 
imply to beneficiaries as well as employment. If not, we'll 
have some problems. But even assuming that for the moment, 
here's what it says: You shall not, if you are a religious 
organization, discriminate based on title VI of the Civil 
Rights Act, race, color, or national origin, sex in education 
but not elsewhere under title IX, and then section 504 of the 
Rehab Act and the Age Discrimination Act.
    It then says you shouldn't discriminate based on religion. 
Well, one of the things it clearly leaves out, I believe 
intended, was any State law that added to these protections. 
And, obviously, what we are talking about primarily here are 
State laws that ban discrimination against people based on 
their sexual orientation.
    In other words, this bill licenses the recipients of these 
funds to discriminate against beneficiaries based on their 
sexual orientation, because by terms it says no discrimination 
based on race, on color, on national origin, on disability.
    By the way, it also would allow some discrimination based 
on sex, because title IX deals with discrimination in 
educational programs or activities on the basis of sex, but 
other discrimination on the basis of sex would apparently be 
allowed.
    My amendment--and it's cosponsored by the gentlewoman from 
Wisconsin, who had to leave--says you shall not, if you take 
these funds, discriminate based on any basis prohibited under 
Federal, State, or local law. In other words, I do not think 
the Federal Government ought to take this as a license--I do 
not think the Federal Government ought to license private 
organizations to violate State anti-discrimination law, but the 
bill does that. The bill says if you take Federal funds for 
this program--previously the gentlewoman from Wisconsin had 
said if you have both a mix of Federal and private funds, you 
could avoid State anti-discrimination laws in employment. Well, 
now that also happens with regard to the beneficiaries. And 
obviously it is intended to allow some organizations to say no 
to gay, lesbian, bisexual, or transgendered people who might 
otherwise be protected by State law and deny them these 
benefits.
    Now, again, we have the mythical separate but equal 
alternative. Yes, if you're denied these benefits, 
theoretically there will be another existing set. But it is 
abhorrent to be told that you can't even have your choice of 
these.
    We're not talking now about someone who says, oh, I don't 
want this religious instruction--or I don't want this religious 
organization giving me the service. We're talking about someone 
who wants the service, who is protected against discrimination 
by State law, but who by virtue of this bill can be turned away 
from a federally funded program when the State law would 
protect him or her against discrimination because this law 
allows a discrimination against not the employment--the 
employees, but the beneficiaries.
    I think that is significantly unworthy of something that 
comes in the guise of trying to alleviate our social distress, 
and I point it also would allow sex discrimination in non-
educational activities. I do not understand how people can 
consider this to be a great social advance.
    Chairman Sensenbrenner. The gentleman's time has expired.
    For what purpose does the gentleman from Ohio, Mr. Chabot, 
seek recognition?
    Mr. Chabot. Move to strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I'll be very brief.
    I oppose the amendment, rise to oppose it. There is no 
reason to believe that either gays or lesbians would be or 
should be discriminated by any of the programs here. There's 
absolutely no intention in that or any reason to believe that 
that's the case, and for that reason we oppose it.
    Mr. Frank. Would the gentleman yield?
    Mr. Chabot. I'd be happy to yield.
    Mr. Frank. Well, but I would assume you would also think 
there was no reason to believe that people would discriminate 
based on race or conditions of disability, yet you put into the 
bill that they can't. So if we're going to go on the good-faith 
assumption that it wouldn't happen, it wouldn't be in the bill. 
In fact, you put several categories in the bill and leave out 
State laws, which are the only protections that now exist for 
gays and lesbians.
    Mr. Chabot. Well, reclaiming my time, Congress has the 
opportunity--has had the opportunity to act in this area, thus 
far at the Federal level has chosen not to do so. There's no 
reason for this bill to be the vehicle for that occurring. It's 
a debate that it's a legitimate----
    Mr. Frank. Would the gentleman yield? Because the gentleman 
misstates me.
    Mr. Chabot. I'm not yielding yet. So there's no--there's no 
reason in this specific bill to have this be the bill that 
deals with that particular----
    Mr. Frank. Would the gentleman yield?
    Mr. Chabot. I'll yield.
    Mr. Frank. And neither does the amendment that we offer do 
that. The amendment does not name any categories. What the 
amendment says is we will respect State law. This is not an 
effort to include in Federal law any new protection.
    I would also point out that the bill includes a protection 
that's not in Federal law, religious discrimination. So you 
don't confine yourself in this bill to banning only that 
discrimination currently banned under Federal law. You add, as 
you should, religious discrimination. So the question is: Why 
do we pre-empt State law here in this one area, or whatever 
area the States want to add?
    Mr. Chabot. Well, reclaiming my time, this is Federal 
dollars which the Federal Government has the right to 
essentially set the rules on. And thus far Congress has chosen 
not to act with respect to discrimination relative to gays or 
lesbians. There's no reason for us to----
    Mr. Frank. Would the gentleman yield?
    Mr. Chabot. This particular--I'll be happy----
    Mr. Frank. Thank you. But neither has Congress done this 
with regard to religion. You added religion here. This is not 
simply saying only those which the Federal Government had done. 
And there might be State laws--State laws may offer more 
protection on the basis of sex discrimination, not sexual 
orientation but sex, than Federal law. You allow that to be 
overridden. You only protect sex discrimination in regard to 
education, and there is no general ban here on sex 
discrimination. Some States which have equal rights amendments, 
they would find these disregarded.
    I understand that Congress has the power to do that. I 
simply don't understand why in the context of a bill that's 
supposed to be enhancing our sense of compassion we license 
people to discriminate against some categories that their 
States have tried to protect against discrimination.
    Mr. Chabot. Reclaiming my time, under existing law, other 
than based upon religion, you clearly cannot discriminate for 
race, color, national origin, or any other item, and this is 
just the determination that there's no reason to bring in 
sexual orientation under this particular bill. It's a 
legitimate debate for Congress to have at some point in time. 
This is not the bill to do that----
    Mr. Frank. If the gentleman would yield, that----
    Mr. Chabot. Essentially what we're trying to do here is 
we're trying to allow religious groups who can provide good 
services for people who really need the help, whether it's 
women who are being abused, whether it's children, whether 
it's--a whole range of very needy people. We want to allow 
religious groups to compete for those existing dollars because 
we realize that some of those groups can do a better job than 
others----
    Mr. Frank. Would the gentleman yield?
    Mr. Chabot.--and we want to provide the best service, the 
most efficient service to those needy people as we possibly 
can. And there are, as I mentioned, race and color and national 
origin. Those are all protected, as we already had the 
religious discussion and the discrimination relative to 
religion, all the way back to the 1964 civil rights law. It was 
determined not to include religion. It's just--it's the belief 
that this is not the law to deal with gays or lesbians, the 
sexual orientation issue. I'll be happy to yield.
    Mr. Frank. If the gentleman would yield, I am appalled by 
that. What you're saying is because we haven't done it before, 
this is a new program, it's expanding it. And, yes, if you're 
abused and, yes, if you're in trouble, you'll get help, but if 
a group getting Federal funds decides that because you're a 
lesbian, the fact that you've been abused as a wife, they can 
deny you, you say that's okay. That's appalling.
    Mr. Chabot. Well, reclaiming my time, again, it's been 
stated this is an expansion of existing programs. In essence, 
much of this is not new programs. We're already doing this. We 
were doing this under the welfare reform bill back in 1996, 
which was signed by President Clinton. To my knowledge, there's 
nothing in there relative to discrimination of gays and 
lesbians, and, again, this is not the bill to do that. And I 
yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the Frank 
amendment to the Chairman's amendment. Those in favor will say 
aye. Those opposed, no? The noes appear to have it.
    Mr. Frank. rollcall.
    Chairman Sensenbrenner. A rollcall will be ordered. All 
those in favor of the Frank amendment to the Sensenbrenner 
amendment will, as your names are called, answer aye; those 
opposed, no; and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    Mr. Hyde. No.
    The Clerk. Mr. Hyde, no. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Barr?
    Mr. Barr. No.
    The Clerk. Mr. Barr, no. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Hutchinson?
    [No response.]
    The Clerk. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Graham?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    [No response.]
    The Clerk. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    Mr. Frank. Aye.
    The Clerk. Mr. Frank, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Are there additional Members who 
wish to cast or to change their vote? The gentleman from North 
Carolina?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from South Carolina?
    Mr. Graham. No.
    The Clerk. Mr.----
    Chairman Sensenbrenner. Graham.
    The Clerk. Mr. Graham, no.
    Chairman Sensenbrenner. Further Members? The gentleman from 
Tennessee?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. Further Members?
    [No response.]
    Chairman Sensenbrenner. The clerk will report.
    The Clerk. Mr. Chairman, there are 7 ayes and 15 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to. 
Are there----
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner.--further amendments? The gentleman 
from Massachusetts, Mr. Frank.
    Mr. Frank. Mr. Chairman, I have a second amendment here. It 
says, ``Offered by Mr. Frank and Mr. Scott.''
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the amendment to----
    Mr. Frank. I ask unanimous consent it be considered as 
read.
    Chairman Sensenbrenner. Well, if the amendment can be 
distributed, at least someone will be able to see if a point of 
order lies. The clerk will continue to report.
    The Clerk. Amendment to the amendment to H.R. 7, offered by 
Mr. Frank and Mr. Scott. Page 3, line 24--page 13, line 24, 
Strike ``(2) Effect on other laws''----
    Chairman Sensenbrenner. Without objection, the amendment 
will be considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Massachusetts 
will be recognized for 5 minutes.
    Mr. Frank. Mr. Chairman, unlike my previous amendment, 
which tried substantively to expand the protection, this one is 
aimed at clarifying what seemed to me possible ambiguities in 
the protections already included in there with 2.
    On page 9 of the Chairman's mark, beginning at 20, line 20, 
it says, ``Funds not aid to religion,'' and it says that the 
money that would, in effect, be given to the organizations, the 
faith-based organizations, for the purpose of this assistance 
shouldn't be construed as support for religion or the 
organization's religious belief.
    As a statement of fact and constitutional principle, that 
is unexceptional. I just wanted to make sure that this was not 
interpreted as somehow avoiding the effect of the non-
discrimination statutes that are in there, that is, the non-
discrimination statutes applied to the entities, and one 
potential interpretation was that if you hold that the money 
being given is not being given to the organizations, that 
somehow that might mean that they were not as organizations 
subject to the anti-discrimination statutes. If I am assured 
that that was not the intention, maybe we could even work that 
out technically. But that's the purpose.
    In other words, I wanted to make sure that the anti-
discrimination statutes that are listed beginning on page 13, 
subsection (2), that those, in fact, do apply to the 
organizations even if it's interpreted as not being aid to 
them.
    Secondly, there is just a question of the way the bill is 
constructed, and I hope it's not intended this way, but that's 
the other thing I would add. On page 13 it says, ``(e) 
Employment Practices.'' The provision that I assume bans 
discrimination against beneficiaries is listed here as 
subsection (2) of (e) under Employment Practices. It seemed to 
me that it ought to be made a separate section, that is, I just 
wanted to make clear that if you read this, someone might 
think--would think that employment practices in general effect 
on other laws, that there is then nothing that covers 
beneficiaries.
    If this is read literally to apply, subsection (2)(b) line 
24 only to be employment practices, then there's no language 
about beneficiaries. It then goes on to talk about rights of 
beneficiaries about their rights to withdraw.
    So what I was trying to do was to get clarification that 
subsection (2) on lines 24 and thereafter applies to 
beneficiaries as well as to employees, and also that when we 
say that this aid is not aid to the religious organization but 
aid to the individuals, that that does not work also to exempt 
them from the effects of the statute.
    I would yield----
    Chairman Sensenbrenner. Would the gentleman yield? Is it 
the effect of the gentleman's amendment, which to me seems to 
consist solely of inserting the word ``receiving assistance'' 
or ``providing services'' under any program described under 
subsection (c)(4), and the rest is identical to what is----
    Mr. Frank. Except can I make one other point, Mr. Chairman? 
The other thing it does is simply re-letter so that it takes 
that section out from under being a subsection of employment 
practices. You're right. It adds providing services, and then 
it re--it re-designates so that the anti-discrimination section 
is a separate--is not subsumed under (e), which is employment 
practices.
    I don't strike anything. All I do is to re-letter it. The 
way this is worded, on page 13, it says, ``(e) Employment 
Practices,'' and then subsection (2) is ``Effect on Other 
Laws.'' I just take that out from under employment practices 
and make that (f). It doesn't change it. It says--you have (e) 
and then you have--subsection (2) becomes (f), because I assume 
that is not intended to apply only to employment practices, but 
to employment practices and beneficiaries.
    The question is: Is subsection (2), beginning on page 24, 
intended to apply only to employment practices? If it does, 
then nothing provides anti-discrimination protection for 
beneficiaries.
    The Chairman is right. Other than the indirect, that 
section is identical. But, again, it's a question of how it's 
placed in the bill.
    Chairman Sensenbrenner. If the gentleman would yield?
    Mr. Frank. Yes.
    Chairman Sensenbrenner. We're prepared to accept the 
amendment.
    Mr. Frank. I thank the Chairman.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Massachusetts, Mr. Frank. Those 
in favor will signify by saying aye. Opposed, no? The ayes 
appear to have it. The ayes have it and the amendment is agreed 
to.
    Are there further amendments? The gentleman from--the 
gentlewoman from Texas, Ms. Jackson Lee?
    Ms. Jackson Lee. Mr. Chairman, I have an amendment at the 
desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment. Which amendment does the gentlewoman prefer to have 
reported?
    Ms. Jackson Lee. The Jackson Lee-Waters amendment.
    Chairman Sensenbrenner. Is the clerk clear which amendment 
is the one that is being called up?
    The Clerk. Amendment to the amendment to H.R. 7, offered by 
Ms. Jackson Lee and Ms. Waters. Page 12, beginning on line 21, 
strike ``Federal, State and local governments'' and insert 
``Federal government.''
    Page 13, beginning on line 1, strike ``Neither'' and all 
that follows through the word ``shall'' on line 3----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentlewoman from Texas is 
recognized for 5 minutes.
    Ms. Jackson Lee. I thank the gentleman very much. I thank 
the Chairman.
    Our understanding of H.R. 7 is that it pre-empts State and 
local contracting requirements related to religious 
organizations. Supporters of charitable choice argue that it 
would override State and local non-discrimination employment 
laws if those laws are contrary to sincerely held religious 
beliefs and have also argued it would override State and local 
contracting requirements with respect to contracting with 
diverse providers.
    Now, we have indicated two things in this session today: 
one, that we are not doing anything extraordinary--some of us 
disagree with that--but that we are leaving intact basic laws 
of protection, whether they be civil rights, the First 
Amendment, and also laws of non-discrimination.
    This is a simple amendment because it extends the 
protection of Federal, State, and local laws protecting 
individuals against discrimination on bases other than religion 
to this legislation. And, therefore, what it does is that it 
prohibits eliminating the protections that State and local 
governments provide. And that--I would say that it adds and 
enhances to this legislation by allowing the State laws and the 
local laws to stand. It doesn't change any laws. It simply 
allows those certification requirements of local governments 
that may require non-discrimination to be applied and not have 
the Federal law pre-empt such laws.
    I'd ask my colleagues to consider this in the light of the 
fact that all of the entities that I have had represent their 
concern to me or interest in this legislation clearly indicate 
that they do not want to discriminate, and they want to be able 
to adhere to the laws and, as well, practice their faith. For 
those who would be impacted, who might be discriminated 
against, this would add an extra measure of protection if State 
and local laws have non-discrimination laws within them. This 
would provide the protection for it.
    With that, I yield back.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    What we have in the bill right now in every single--is in 
every single previously passed charitable choice bill. The 
whole idea here is to allow new players into the game. A faith-
based organization needs to be able to preserve its autonomy 
against infringements by any level of government, and these are 
Federal funds. We want a uniform rule throughout all 50 States 
for the use of Federal funds. There are State provisions that 
try to limit freedoms the U.S. Supreme Court has held are part 
of our religion clauses when it comes to Federal money.
    If States or localities have different notions of church-
state issues, all they have to do is keep their funds separate 
and their own provisions will apply to their own separated 
funds.
    We don't want to overrule how States use their own State 
funds. We want to apply the same equal access rules when 
Federal funds are used. And, therefore, we respectfully oppose 
the amendment.
    I yield back the balance of my time.
    Chairman Sensenbrenner. Would the gentleman yield?
    Mr. Chabot. I'd be happy to yield.
    Chairman Sensenbrenner. My reading of the section on page 
18 that this amendment seeks to delete is that it leaves it up 
to the State or locality to make a determination on whether 
they want their laws to apply. If there are exclusively Federal 
funds going into the faith-based organization, then this is not 
a relevant issue. If the faith-based organization accepts 
Federal funds as well as either State or local funds, then the 
State or local government, if they wish their laws to apply, 
can require that their funds be segregated from the Federal 
funds.
    So what the amendment of the gentlewoman from Texas 
attempts to do is to take away the choice of State or local 
governments to make that determination for themselves in their 
extension of the funds to the faith-based organization. I think 
that State and local governments should have that right and as 
a result would oppose the amendment and urge that the Committee 
vote it down.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Ohio.
    Mr. Chabot. I yield back.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California, Ms. Waters, seek recognition?
    Ms. Waters. I would like to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Waters. Mr. Chairman and Members, I am going to speak 
out in opposition to section 201(d) of H.R. 7, the 
organizational character and autonomy provision, and section 
201(j), the effect on State and local funds. As a result of 
these sections, charitable choice would pre-empt State and 
local laws' contracting requirements.
    Under section 201(d)(1), religious organizations are given 
the right to retain autonomy from Federal, State, and local 
governments. This provision extends to the organization's 
control over the definition, development practice, and 
expression of its religious beliefs. section 201(d)(2)(A) would 
enable religious organizations to avoid Federal, State, or 
local requirements that the organization alter its internal 
governance and character documents. section 201(j) applies 
charitable choice provisions to any State or local funds that 
are commingled with Federal funds.
    These provisions create discrimination issues. For example, 
State and local contracting requirements apparently would not 
apply beyond the extent to which they exist under charitable 
choice. Even supporters of charitable choice acknowledge as 
much. Carl Esbeck, one of the drafters of charitable choice, 
stated the following in an article on charitable choice: 
``States and municipalities often have non-discrimination laws 
and procurement policies enacted pursuant to governmental 
spending power. When these spending power laws do not permit 
faith-based organizations to select staff on the basis of faith 
commitments, the laws are not enforceable against FBOs acting 
pursuant to charitable choice contracts or grants.''
    Supporters also tell us that charitable choice would 
override State and local non-discrimination employment laws if 
those laws are contrary to sincerely held religious beliefs. We 
don't even know what that encompasses. The phrase is not 
defined in the bill and would arguably be extended to cover 
almost anything a person believes. We know that the courts are 
already reluctant to delve into the politically sticky area of 
deciding the merits of a religious tenet. Even worse, this 
provision goes further than to allow sincerely held religious 
beliefs. It applies to any arbitrary practice, decision, or 
rule that the religious organization uses. In other words, if a 
religious group believes that all their employees must be bald-
headed men over the age of 70, this provision would make it 
acceptable.
    We're also told, again, by supporters of charitable choice 
that it would override State and local contracting requirements 
for culturally diverse providers. Specifically, supporters have 
stated that a State or locality would not be able to require 
that the governing board of a faith-based provider reflect the 
ethnic, gender, or cultural diversity of the community or 
beneficiaries. Their response is that such matters of internal 
governance are under the control of the faith-based 
organization. Under section 201(j), any State or local funds 
that are commingled with Federal funds would be exempt from 
State or local laws and requirements. This is clear 
overreaching.
    The first question we need to ask is: Why is Congress 
interfering with States' rights on this issue? Furthermore, how 
can we justify as constitutional a bill that allows religious 
organizations to blatantly ignore valid employment and 
contracting non-discrimination laws. These provisions, like 
many other provisions in H.R. 7, are unbalanced and unfair. Our 
amendment would revise them so as to prevent blatant 
discrimination.
    I urge you to amend these problematic parts of H.R. 7 and 
take a step towards a bill we can truly support. It is very 
seldom that I witness this kind of pre-emption at the Federal 
Government level. To override States and their local laws is 
far, far reaching, and I would hope that in the interest of 
honoring what so many people on the opposite side of the aisle 
preach about, States' rights, that we would support this 
amendment.
    I yield back the balance of my time.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Frank?
    Mr. Frank. Mr. Chairman, I am disturbed by a couple of 
things about this bill. One is the institution of--
institutionalization of the principle that it's perfectly 
reasonable for religious organizations not to want to hire 
people of other religions for non-religious purposes, as if it 
was somehow an imposition on them to do so.
    Secondly, though, we have this principle now that says you 
can take Federal funds and use the fact that you have received 
Federal funds to exempt you from the existence of State laws, 
State anti-discrimination laws and some other laws.
    This notion that the Federal Government can immunize you 
from following State laws that otherwise fairly apply to 
everybody is really very troubling, it's very radical, and 
wholly unnecessary.
    Now, Members will tell us that it was in the welfare bill. 
I would say a couple of things about that. First of all, I 
voted against the welfare bill, so I do not feel concluded by 
it.
    Secondly, I think it is fair to say that much of what was 
being done in the welfare bill, the focus was on the welfare 
part. I don't believe this got a lot of attention.
    Finally, we are not the Supreme Court of the United States. 
The notion that having once legislated a certain way we are, 
therefore, precluded from unlegislating or doing it differently 
is, of course, a proposition to which no one holds any 
adherence. It's something that may be thrown in, but it's not 
an argument. It's an absence--it's a substitute for an 
argument.
    The question is: Is it good or bad public policy? And I 
do--and I appreciate the gentleman from Ohio making it very 
explicit that this is not a bill where we are going to deal 
with the rights of gay men and lesbians. The point, though, is 
that many States have. This is not in my judgment--I'm not 
asking--my colleagues weren't asking that we make this a 
vehicle to give gay and lesbian Americans more protections than 
they already have. I agree that should be in another bill.
    What this bill does, though, is to say to some 
organizations that are now governed by State laws protecting 
gays and lesbians that, by the receipt of Federal funds, some 
entities can get an exemption from that. What this bill does is 
to reduce the protection that gay and lesbian citizens have. 
And that, it would seem to me, ought to be as inappropriate as 
using this as a vehicle for expansion.
    The way you have this bill, you are using it as a license 
to cut back on rights that many States have seen fit to grant 
to gays and lesbians, perhaps to other categories, because 
right now if a religious organization or any other wants to 
give a purely secular service--they're not covered by the 
religious exemption--then they would be covered by this in some 
States, maybe not in others. New Jersey even has a public 
accommodations statute that's very broad.
    So what this bill says is by taking Federal funds, a 
private entity previously subject to a legislated requirement 
not to discriminate based on sexual orientation can now do so. 
That seems to me terribly unfair to gay, lesbian, and bisexual 
Americans who will have less protection as a result of this law 
than before. And it's a terrible precedent and a terrible 
statement.
    What you're saying, again, is take Federal funds an dy can 
be exempted from some of these State laws. You know, I think 
back--I see my friend from California, and I think of her 
extraordinary distinguished predecessor, Gus Hawkins, whom so 
many of us revered. I remember when we did the Civil Rights 
Restoration Act back in the days when we thought the Federal 
Government should be expanding people's rights, not being an 
excuse to cut them back. And when people complained about the 
Civil Rights Restoration Act, which made it clear that if you 
took Federal funds you couldn't discriminate after the Supreme 
Court had somewhat shortchanged that statutory interpretation, 
he said, you know, if you dip your fingers in the Federal till, 
don't complain if a little democracy rubs off on them.
    Well, you're absolutely reversing this. And so both 
specifically by reducing the protections that now exist for gay 
men and lesbians and in general by setting the precedent or 
reaffirming it and broadening it from the welfare bill that 
accepting Federal funds is a license not to follow existing 
State law, I think this bill does terrible damage.
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from North Carolina seek recognition?
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognize for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    I, in addition to the States' rights arguments that have 
been asserted, really have serious reservations about what we 
are doing--what we are saying to State and local governments, 
particularly on page 13 at lines 9 through 12, because the 
effect of what we are saying is that if a State or local 
government makes an effort or is making an effort to comply 
with the decisions of the United States Supreme Court about 
what is constitutionally permissible and what is not 
constitutionally permissible, we are in this bill prohibiting 
them from doing that. And that just seems extremely 
counterproductive to me.
    I mean, here we are a Nation of laws. We may, as I quite 
often do, disagree with the decisions of the United States 
Supreme Court, but they are the final arbiters of the 
Constitution in our structure. And for us to be saying to State 
and local governments, even though you are trying to comply 
with the constitutional mandates as they have been set out by 
the United States Supreme Court, we are directing you in this 
law that we are passing not to require a religious organization 
to remove religious icons or what have you.
    And I think those are some of the cases where the Supreme 
Court has really said that in some cases that could be 
necessary to comply with the United States Constitution.
    How do we look as a--I mean, I suppose we could go at it 
directly and try to amend the Constitution. We have. But this 
is an indirect way of saying to the States we can't--we can't--
we don't have the votes to amend the Constitution. We've done 
as aggressive a job as we can do on changing the composition of 
the United States Supreme Court, and we've failed to revise the 
interpretation of the Constitution that they have come down 
with, even having had control of the Court for whatever period 
of time. Now we are going to direct you in a Federal statute 
not to comply with what the Supreme Court has said the law is. 
This is unprecedented.
    And I just--it's unprecedented for us to be usurping State 
and local laws, first of all, those of us who give so much lip 
service to States' rights consistently, but then to go beyond 
that and say, All right, States, we are directing you not to 
follow the Supreme Court's decisions when we all know that that 
in our process is the final word on legal and constitutional 
issues is just--is just outrageous. I think we should support 
this amendment, and I yield back--I'm sorry. I was going to 
yield the balance of my time. I got carried away. I was going 
to yield to Ms. Jackson Lee.
    Thank you.
    Ms. Jackson Lee. I may have to ask--thank you very much, 
Mr. Watt.
    Mr. Chairman, let me answer the concern that you raised 
about the fact that this has not been done before, and to say, 
with Mr. Watt's commentary, this is a restatement of existing 
law. But in the evolution of charitable choice provisions, for 
example, the Community Renewal Tax Relief Act of 2000, which 
amended certain provisions and grant programs administered by 
the Substance Abuse and Mental Health Service----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Ms. Jackson Lee. Can I have someone strike the last word so 
I can get some time to finish my point, please?
    Chairman Sensenbrenner. The gentlewoman has already been 
recognized in support of her amendment.
    Ms. Jackson Lee. Mr. Nadler, would you yield to me when you 
get through, please? Thank you.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    I wish to commend the gentleladies, Ms. Jackson Lee and Ms. 
Waters, for their excellent amendment, and I yield to the 
gentlelady from Texas.
    Ms. Jackson Lee. I thank the distinguished gentleman very 
much.
    I wanted to make a point that this has occurred in previous 
legislation, the Community Renewal Tax Relief Act of 2000, had 
language in the legislation, which we supported, many of us, 
that nothing in this section shall be construed to modify or 
affect the provisions of any other Federal or State law or 
regulation that relates to discrimination in employment.
    I think we can come together on this simply by 
acknowledging that all we want to do is leave existing law in 
place and not undermine any existing rights or enhance any 
existing rights. We are not trying to write legislation that 
would cause us to give rights, we're just trying not to take 
rights away.
    And I don't think any religious entity, willing to be the 
Good Samaritan, as I have indicated, would be opposed, Mr. 
Chairman, to just having the present laws that they are 
governed by, in their particular jurisdiction, remain in place. 
They've lived under those laws, and I think they would rightly 
be willing to do so.
    This amendment that myself and Ms. Waters are offering 
clearly just asks that we not exempt from the obligation to 
adhere to, not exempt these entities participating under this 
legislation from existing nondiscriminatory State and local 
laws. And I would ask my colleagues to support this amendment, 
as it restates and is supported by previous legislation by the 
Act of 2000, the Community Renewal Tax Relief Act of 2000.
    With that, I yield.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Texas, Ms. Jackson Lee, to the 
Chairman's amendment.
    Those in favor, all say aye.
    Opposed, no.
    The noes appear to have it.
    Ms. Jackson Lee. rollcall.
    Chairman Sensenbrenner. A rollcall is ordered.
    Those in favor of the Jackson Lee amendment to the 
Sensenbrenner amendment will, as your names are called, answer 
aye; those opposed, no, and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    Mr. Hyde. No.
    The Clerk. Mr. Hyde, no. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Barr?
    [No response.]
    The Clerk. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Hutchinson?
    Mr. Hutchinson. No.
    The Clerk. Mr. Hutchinson, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Graham?
    Mr. Graham. No.
    The Clerk. Mr. Graham, no. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no. Mr. Scarborough?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    Mr. Frank. Aye.
    The Clerk. Mr. Frank, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Are there additional Members who 
wish or desire to cast or change their vote?
    The gentleman from North Carolina?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Georgia?
    Mr. Barr. No.
    The Clerk. Mr. Barr, no.
    Chairman Sensenbrenner. The gentleman from Tennessee?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. If there are no further Members who 
desire to cast or change their vote, the clerk will report.
    The Clerk. Mr. Chairman, there are 9 ayes and 19 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    The Clerk. Excuse me, Mr. Chairman. I'm sorry. There are 7 
ayes and 19 nays.
    Chairman Sensenbrenner. As corrected, the rollcall will 
stand.
    The gentleman from North Carolina, Mr. Watt?
    Mr. Watt. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the Sensenbrenner amendment to H.R. 
7----
    Mr. Watt. I am going to ask unanimous consent the amendment 
be considered as read.
    Chairman Sensenbrenner. Without objection, so ordered.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    I believe, Mr. Chairman, that this is an oversight that I 
am trying to correct. If you look at the bill starting on Page 
10, the definition of programs includes the Federal housing 
statutes, including community development block grants. That's 
at the top of Page 11. Yet, when you get over to Page 14, and 
you start to itemize the impact on other laws, the Fair Housing 
Act is left out, and----
    Chairman Sensenbrenner. Would the gentleman yield?
    Mr. Watt. Yes, I'm happy to yield.
    Chairman Sensenbrenner. The subsection that the gentleman 
is attempting to amend deals with employment practices. The 
Fair Housing Act, as amended, deals with the sale or rental of 
housing. It has nothing to do with employment, and consequently 
this was not an oversight because the Fair Housing Act is not 
relevant to employment practices.
    Mr. Watt. Okay. I think the gentleman is right, and I 
withdraw the amendment.
    Chairman Sensenbrenner. Are there further amendments?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Mr. Chairman, I have one more amendment at the 
desk. I think it's No. 2.
    Chairman Sensenbrenner. The clerk will report one more 
Nadler amendment. [Laughter.]
    Chairman Sensenbrenner. This is the final Nadler amendment?
    Mr. Nadler. I believe so.
    Chairman Sensenbrenner. Can we count on it?
    Mr. Nadler. Unless I have further inspiration.
    Chairman Sensenbrenner. The clerk will report the 
amendment, and those in the room will please be uninspiring. 
[Laughter.]
    The Clerk. Amendment to the amendment to H.R. 7 offered by 
Mr. Nadler and Mr. Frank. Page 15, strike line 1 through line 3 
and insert:
    ``(A) Is an alternative''----
    Mr. Nadler. Mr. Chairman, I ask unanimous consent that 
further reading of the amendment be dispensed with.
    Chairman Sensenbrenner. Without objection.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chairman, this bill promises a nonreligious alternative 
to any eligible individual who does not wish to participate in 
a religious program or a program run by a particular religion. 
I think everyone believes that in order to prevent the 
religious coercion of the most vulnerable members of our 
society, those seeking help from the Government, with the 
burdens of poverty, drug addiction, homelessness, and the many 
other terrible social ills addressed by programs in this bill 
should not be subject to religious proselytization as the cost 
of getting the services they need.
    I certainly agree with that view. If religious liberty has 
any meaning, it is that no one should have the right to use 
public money and the power of the State to coerce those living 
in the shadows of life into giving up their own religious 
autonomy. So profound a principle is this that even supporters 
of the bill have agreed that an alternative must always be made 
available.
    In fact, Professor Douglas Laycock, a respected legal 
scholar who was called at the hearings before the Subcommittee 
as a witness by the majority went so far as to say in our 
hearing that the entire program would be a ``fraud,'' if such 
an alternative were not made available.
    But a funny thing happened on the way to protecting the 
religious autonomy of the poor seeking help. The budget 
proposed by the President and passed by this House actually 
cuts funding from any of these social programs. These are 
programs that are not now fully funded. Those of us who try to 
help our constituents obtain these services know that they are 
often not available in a reasonable period of time or in an 
accessible location or, in some cases, not at all. We all know 
that a young person who sincerely wants to kick drug addiction 
may be told, ``Sorry. We don't have any room for you right now. 
Come back in 6 months.'' By that time, he could be dead or 
infected with HIV or no longer able to participate in the 
program.
    So where is the alternative envisioned in the bill going to 
come from? The bill provides no new money. It pays for not one 
additional bed or home or bowl of soup or detox. It certainly 
does not pay for these alternatives. In fact, if no new money 
is available, those alternatives will likely lose their 
funding, in some cases, to religious organizations.
    The alternative which everyone agrees is absolutely 
necessary to make this program work, to make it constitutional 
and certainly to make it something other than a way to foist 
the religious beliefs of some onto society's most vulnerable 
members is simply a hollow promise. This amendment is intended 
to give that promise meeting. If you are going to have 
charitable choice, you are going to have to provide an 
alternative choice. If you cannot or you will not, then there 
will be no charitable choice, and everyone has agreed that 
there should be no charitable choice without a real choice, 
without a secular choice. This amendment will require 
proponents of this program to put their money where their 
principles are.
    I have also restored language from the original legislation 
making clear that among the alternatives that must be available 
are nonreligious alternatives. It does no good to tell a person 
to find a less objectionable religious program when all they 
need is a place to keep from freezing to death for the night. I 
have, however, obtained language from the Chairman's mark 
making clear that the alternative must be religiously not 
objectionable to the individual, in addition to being 
accessible and of equal value. I guess you could call this the 
secular, but equal amendment. I know there are weaknesses with 
this approach that have been discussed today, but it's better 
than not making real the alternative.
    I strongly urge the adoption of this amendment. Without the 
adoption of this amendment, the entire project really is State-
sponsored religious coercion. The very reason why the Framers 
of our Constitution were concerned that excessive entanglement 
between Government and religion would endanger religious 
liberty. Here is a clear illustration of why they are correct.
    And I must say that this amendment is a time for the 
sponsors of the bill to show that they are sincere in their 
protestations that they mean for there to be a nonreligious 
alternative so that there's no religious coercion because this 
amendment says that the charitable choice provisions in a given 
program are eliminated if there is no charitable choice made 
avail--if there's no secular alternative made available in a 
reasonable time. This will force funding of reasonable 
alternatives.
    Thank you, Mr. Chairman. I yield back.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I rise to oppose the 
amendment.
    The focus should be a case-by-case determination of what 
the individual beneficiary wants. The alternatives the bill 
currently provides for might be, for example, another faith-
based organization, not objectionable to the beneficiary or an 
alternative purchased on the open market or provided by 
volunteers or a third one would be an alternative secular 
provider.
    The bill, without the amendment, allows States and 
localities more flexibility in offering alternatives, and it 
allows beneficiaries greater choice, and for that reason, we 
oppose the amendment.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from New York, Mr. Nadler.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to.
    Are there further amendments?
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk, 
Scott No. 9.
    Chairman Sensenbrenner. The clerk will report amendment No. 
9.
    The Clerk. Amendment to the amendment to H.R. 7 offered by 
Mr. Scott. Page 15, line 1 after ``that is'' insert ``at least 
as.''
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, this amendment will ensure that 
program beneficiaries would have equal access to alternative 
programs. Under the current language of the manager's 
amendment, program beneficiaries who object to the religious 
character of a program must be provided with an alternative 
program, but an alternative program needs to be at least as 
accessible as the designated program in order to offer a real 
alternative. If the alternative is located much farther away, 
not on a public transportation line or has other accessibility 
issues, then it may be technically accessible, but it is not a 
reasonable alternative for the beneficiary.
    If we're serious about offering alternative programs to 
those who are uncomfortable with the religious character of an 
organization, then we must make sure that the alternative 
programs are not just technically available, but at least as 
accessible as the original program. My amendment adds this 
clarifying language, and I ask that you support it.
    Chairman Sensenbrenner. The Chair recognizes himself in 
opposition to the amendment.
    This amendment makes this safety valve unworkable. If 
somebody lives across the street from that Baptist Church in 
Idaho that we spent most of the afternoon talking about and 
doesn't want to go to the Baptist Church for an after-school 
program or social services provided under the bill, this 
requires that the alternative program be at least as close as 
the Baptist Church across the street. Now, that's unreasonable. 
I would hope the amendment would be voted down, as a result of 
that.
    I yield back the balance of my time.
    The question is on the adoption of the Scott amendment to 
the Sensenbrenner amendment.
    Those in favor will signify by saying aye.
    Opposed, no.
    Noes appear to have it, the noes have it, and the amendment 
is not agreed to.
    Are there further amendments?
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Scott. No. 12.
    Chairman Sensenbrenner. No. 12.
    The Clerk. Amendment to the amendment to H.R. 7 offered by 
Mr. Scott, Page 9, line 11 after the period add, ``For the 
purposes of this section, a religious organization is an 
organization which is pervasively sectarian, and states in the 
application for funding that it is a pervasively sectarian 
organization.''
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, we've waived significant laws for religious 
organizations. Civil rights may not apply, there's separate 
alternatives that are available if the organization making an 
application is a religious organization, but I couldn't find a 
definition of what religious organization meant.
    If an organization is going to be entitled to benefits 
under the bill, we should know it before the problem occurs. So 
this amendment provides a description of what a religious 
organization is that says it's a pervasively sectarian 
organization and states that it ought to say so in the 
application, otherwise secular programs might try to benefit 
from the provisions of the bill by suggesting, when they get in 
trouble on discrimination, that they are religious because they 
began reading Bible versus around the programs, and they are 
now a religious organization and ought to qualify.
    We ought to know that up front. This defines religion and 
says if you're going to be a religious organization for the 
purposes of this bill, then you ought to say so up front.
    I'd hope you'd adopt the amendment.
    Mr. Hyde. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Illinois, Mr. 
Hyde.
    Mr. Hyde. I think the word ``pervasive'' is a little bit 
pejorative. I'm surprised that the gentleman looked through a 
dictionary and could only come up with this. Pervasively 
sectarian could be an atheist, pervasively atheist, agnostic, 
sectarian. Why not just say sectarian? Why the pervasive? It 
just seems to me that's pejorative.
    Mr. Scott. Will the gentleman yield?
    Mr. Hyde. Sure.
    Mr. Scott. I used that term because that's what the Supreme 
Court has used when they look at religious organizations. They 
generally use the term ``pervasively sectarian.'' So, if you 
want to strike it--if you'll adopt the amendment if I strike 
it. [Laughter.]
    Mr. Chabot. Would the gentleman from Illinois yield?
    Mr. Hyde. Yes.
    Mr. Chabot. I thank the gentleman for yielding.
    I, as well as the Chairman, or former Chairman, oppose this 
particular amendment. The pervasively sectarian standard in the 
law is dead. As the Congressional Research Service concluded in 
its December 27th, 2000, report to Congress on charitable 
choice, ``In its most recent decisions, the Court appears to 
have abandoned the presumption that some religious institution, 
such as sectarian, elementary, and secondary schools, are so 
pervasively sectarian that they are constitutionally ineligible 
to participate in direct public aid programs.''
    ``It also seems clear that for a majority, a different 
majority of six justices, those joining in the Thomas and 
O'Connor opinions, the question of whether a recipient 
institution is pervasively sectarian is no longer a 
constitutionally determinative factor.''
    So, therefore, the pervasively sectarian test is dead.
    Another one of its obituaries was written just yesterday by 
the Fourth Circuit Court of Appeals, as I had mentioned earlier 
in that case this morning, which held that the Constitution 
allows the Government to provide direct aid to a religious 
organization, ``without resort to a Court's examining its 
pervasively sectarian status, as long as there are protections 
in place prohibiting Federal funds from being used for a 
proselytizing activities.''
    The Supreme Court has decisively rejected the idea that 
religious people simply can't be trusted to follow rules 
against using Federal funds for proselytizing activities. Both 
the plurality opinion and the opinion joined by Justices 
O'Connor and Breyer in Mitchell v. Helms stand for the 
proposition that members of religious organizations should 
always be presumed to be acting in good faith.
    In Mitchell v. Helms, the controlling opinion of Justices 
O'Connor and Breyer states that, ``The Court's willingness to 
assume that religious school instructors will inculcate 
religion has not caused us to presume also that such 
instructors will be unable to follow secular restrictions on 
the use of textbooks. It is entirely proper to presume that 
these school officials will act in good faith.''
    In Mitchell v. Helms, the majority reversed an appeals 
court holding that providing educational materials and 
equipment to pervasively sectarian schools was 
unconstitutional.
    So, just to reiterate, the pervasively sectarian standard 
in the law is completely dead, and I thank the gentleman for 
yielding.
    Chairman Sensenbrenner. Does the gentleman from Illinois 
yield back?
    Mr. Hyde. I yield back.
    Chairman Sensenbrenner. The question is on the Scott 
amendment to the Sensenbrenner amendment.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. The noes have it. The amendment 
is not agreed to.
    Are there further amendments?
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott?
    Mr. Scott. I have an amendment at the desk, No. 14.
    Chairman Sensenbrenner. The clerk will report Scott No. 14.
    The Clerk. Amendment to the amendment to H.R. 7 offered by 
Mr. Scott. Page 19, line 20, after ``COMPLIANCE,'' insert 
``Funding under this section shall be based on the objective 
merits of the applications submitted and shall not discriminate 
against an applicant based on the religious character of the 
organization.''
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, this amendment provides that decisions to 
fund one organization--a decision to fund one organization or 
another must be made on objective merits and not religious 
discrimination. We have heard all day that all religions will 
be treated fairly. This amendment protects minority religions 
which I think, frankly, will not be treated fairly. If a 
minority religion has the best program, it ought to get the 
contract. There should not be discrimination against a religion 
because it's not the religion favored by the Government 
officials making the decision.
    So, Mr. Chairman, as we heard earlier, we're going to treat 
all religions fairly, well, let's put it in the bill.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot?
    Mr. Chabot. Move to strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I oppose the 
amendment. This is already provided for in Subsection 
(c)(1)(b), no discrimination----
    Mr. Scott. Can you say what pages that's on----
    Mr. Chabot.--on the basis of religion----
    Mr. Scott. Excuse me. What page is that on?
    Mr. Chabot.--no discrimination on the basis of religion for 
or against faith-based providers. This is already the whole 
purpose of the bill. Let's not get judges involved in saying 
what is objective or what is not. The term ``applicant'' 
doesn't fit in the context of indirectly funded programs such 
as vouchers, and therefore we oppose the amendment.
    Yield back the balance.
    Chairman Sensenbrenner. The question is on----
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner.--the adoption of the Scott 
amendment.
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from North Carolina seek recognition?
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. We were just trying to find the provision that 
he----
    Chairman Sensenbrenner. Would the gentleman yield?
    Mr. Watt. Yes.
    Chairman Sensenbrenner. It is on Page 9, (1)(b), lines 12 
through 19, inclusive.
    Mr. Watt. Page 9.
    Mr. Scott. Will the gentleman yield?
    Mr. Watt. Yes, I will yield to the gentleman.
    Mr. Scott. Mr. Chairman, that says that you cannot 
discriminate against a religion because it has a religious 
character. It does not say that you can't discriminate against 
one religion because you don't like that religion. If you have 
picked one religious group over another because the Government 
officials prefer that religion, notwithstanding the fact that 
the other program had a better program by any objective 
standard, you ought not discriminate against an organization 
because you don't like their religion.
    Now, this is where I think we may have a disagreement. I 
don't believe--I believe that the minority religions aren't 
going to get any funds under this because Government officials 
will pick their favorite religion because of politics, the one, 
the religion that has the most votes, not the program that has 
the best merits. And this amendment says that you can't 
discriminate against one religion or another, just because it 
has religious character and you pick a religious group, if it 
is, by any objective standard, a minority religion has a better 
program, then it ought to get the contract.
    Now, if this amendment isn't passed, then all that 
discussion we had about treating religions fairly was a waste 
of time because this says that you have to treat religions 
fairly. And either you're going to do it or you're not, and if 
you want to treat religions fairly, you ought to adopt this 
amendment.
    Mr. Watt. Reclaiming my time, Mr. Chairman.
    We've had a lot of discussion today about religion and not 
discriminating against religions and not disadvantaging 
religions, but in the final analysis, the delivery of services 
of the Government is about the delivery of services, and who 
can deliver those services the best. That's why, I take it, 
this bill, this whole idea is being advanced because some 
people, a number of us agree that religious institutions can 
deliver certain social services and Government services that 
have been delivered by the Government in the past more 
effectively than the Government.
    But in the final analysis, this should never be about 
discriminating against one religion because it's got less 
members or less votes or--this should always be about providing 
a provider of service that will do the best job, which is what 
we all are about as the Government here.
    And while I respect your reference to the language on Page 
9, it simply does not do what Mr. Scott's amendment would do, 
and I think we have done ourselves, and the public and 
taxpayers a major disservice if we are not striving to get the 
most efficient and best provider of services out there to 
deliver whatever it is we're trying to deliver, whether it's 
drug counseling or education or whatever we're delivering 
through these organizations.
    And I agree with Mr. Scott. I think quite often this 
language is going to be used to favor mainstream religions to 
the advantage of other religions that might be able to deliver 
the services substantially better and more effectively. It's 
going to be used in some section of town because that section 
of town votes and not in the other section of town because that 
other section of town doesn't vote, and that's the very thing 
that we should not be countenancing under this legislation, and 
I think if we are serious about this, we've got to adopt Mr. 
Scott's amendment.
    Chairman Sensenbrenner. The question is on the Scott 
amendment to the Sensenbrenner----
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Lofgren.
    Ms. Lofgren. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. I will not consume 5 minutes. I, just in favor 
of this amendment, I think it's important that there be a 
process put in place in the selection process so that we do not 
end up with favoring one religion over another. Frankly, if 
that patterns emerges, and it's quite possible it may, that's 
clearly violative of the First Amendment, and this whole thing 
is going to fall apart.
    I think it is important to prevent that--that circumstance 
by providing a process to--where the first amendment can be 
sustained. And I think, you know, I don't know what is in the 
minds of all of the Members of the Committee, but there may be 
assumptions across America that it will be the predominant 
religion in America that is often selected. Well, I'll tell 
you, there are parts of the country, especially in the State 
I'm from, where the predominant religion of the citizens and 
voters is not the predominant religion of America.
    And so unless there is a process for fairness, and I do not 
buy the argument that there cannot be objective standards. I 
mean, in my decades of service in local government, you have 
RFPs, you have standards, that is routine, and it is imposed, 
oftentimes, by the Federal Government, as well as State 
Government. So you can do objective standards, and if we don't 
do it, we're just going to end up with lawsuits all over the 
country, and I think the----
    Mr. Scott. Would the gentlelady yield?
    Ms. Lofgren. I would yield to Mr. Scott.
    Mr. Scott. I would also add, since you mentioned local 
officials having to evaluate, if you don't have objective 
standards by which an applicant got the contract, how does the 
agency that let the contract evaluate the program if it's not 
on objective criteria? Do we say it's a good religion--
religious experience or what? You have to have some kind of 
objective standard to let the contract to begin with and then 
to follow up to see if they complied with the contract.
    Ms. Lofgren. Reclaiming my time. The lack of standards, 
also, will instigate, will be an incentive to litigation 
because people are very edgy about their religious beliefs and 
take those beliefs very seriously. And if you have a 
competition between the Sikhs, the Buddhists and the Janes in 
my district, and one of those is selected and the other two are 
not, and there is no objective criteria, the losers are going 
to maybe suspect that they were not selected because of their 
religious beliefs rather than the program they put forward. And 
I think that the lack of dealing with this up front is a severe 
problem.
    I yield back the balance of my time and thank the Chairman 
for----
    Chairman Sensenbrenner. The question is on the Scott 
amendment to the Sensenbrenner amendment.
    Those in favor will say aye.
    Opposed, no.
    Noes appear to have it. Noes have it, and the amendment is 
not agreed to.
    Mr. Scott. Mr. Chairman, I'd like a recorded vote on that 
one.
    Chairman Sensenbrenner. A recorded vote will be ordered. 
Those in favor of the Scott amendment to the Sensenbrenner 
amendment will, as your names are called, answer aye; those 
opposed, no, and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    Mr. Hyde. No.
    The Clerk. Mr. Hyde, no. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Barr?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
    Mr. Hutchinson. No.
    The Clerk. Mr. Hutchinson, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Graham?
    Mr. Graham. No.
    The Clerk. Mr. Graham, no. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no. Mr. Scarborough?
    Mr. Scarborough. No.
    The Clerk. Mr. Scarborough, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Frank?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Mr. Barr. Mr. Chairman?
    Chairman Sensenbrenner. Gentleman from Georgia, Mr. Barr?
    Mr. Barr. No.
    Chairman Sensenbrenner. Are there any other Members in the 
chamber who wish to cast or change their votes?
    The Clerk. Mr. Barr, no.
    Chairman Sensenbrenner. If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 7 ayes and 20 nays.
    Chairman Sensenbrenner. The amendment is not agreed to. Are 
there further amendments? The prolific gentleman from Virginia.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk, 
No. 8. And I just have two more amendments, Mr. Chairman, this 
one and one more.
    Chairman Sensenbrenner. Would you like to have them 
considered en bloc?
    Mr. Scott. No, Mr. Chairman. [Laughter.]
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the amendment to H.R. 7, Offered by 
Mr. Scott. Page 20, line 7 strike ``From'' and all that 
follows----
    Mr. Scott. Mr. Chairman, I'd ask unanimous consent that the 
amendment be considered as read.
    Chairman Sensenbrenner. Without objection. The gentleman's 
recognized for 5 minutes.
    [The amendment follows:]
    
    
    Mr. Scott. Mr. Chairman, this amendment doubles the 
technical assistance funds provided to small community and 
religious-based organizations to operate programs. Because the 
Department of Justice will be providing technical assistance 
across the multitude of agencies and departments, in addition 
to the level of assistance it may be required to provide--that 
it may be required to provide, I believe that the proposed 
funding level of $25 million is inadequate.
    In addition to doubling the funding for technical 
assistance, the amendment lays out several specific kinds of 
technical assistance that should be provided by the Department 
of Justice, and these include: assistance in creating 
501(c)(3)'s; grant-writing assistance, which may include 
workshops and reasonable guidance, information and referrals to 
other non-governmental organizations that provide expertise in 
accounting, legal issues, tax issues; information and guidance 
on how to comply with Federal nondiscrimination provisions. It 
also requires that priority be given to small non-governmental 
organizations serving urban and rural communities. In addition, 
it sets aside $5 million for technical assistance to help small 
non-governmental agencies, organizations make their programs 
accessible to the disabled.
    Mr. Chairman, the critics of charitable choice have been 
accused of not understanding the power or faith and accused of 
wanting to defund programs like Habitat for Humanity and 
Catholic Charities. That's wrong. The fact is that there is 
broad bipartisan support for involving faith- and community-
based organizations to help our communities. We just shouldn't 
have to sell off our civil rights to get those investments. By 
providing technical assistance to community and religious 
organizations, particularly those that are small, we can 
actually increase their participation in Federal programs 
without sabotaging civil rights.
    I hope we would adopt the amendment, and I yield back the 
balance of my time.
    Mr. Chabot. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. Mr. Chairman, in conjunction with staff, we're 
trying to figure out exactly what this amendment means, and 
without a little more time, we just have to--have to oppose it, 
although Mr. Scott is a tremendously effective Member of 
Congress, so we would ask perhaps if we have a little more 
time.
    Chairman Sensenbrenner. Gentleman from Illinois, Mr. Hyde, 
recognized for 5 minutes.
    Mr. Hyde. Mr. Chairman, the last paragraph says, ``in 
giving out such assistance described in this section, priority 
shall be given to small, non-governmental organizations serving 
urban and rural communities.''
    Previous amendments were talking about who has the best 
program rather than discriminating against unpopular or 
minority religions. Now here we're supposed to give priority to 
small----
    Mr. Watt. Will the gentleman yield?
    Mr. Hyde. Yes.
    Mr. Watt. This is assistance--this is assistance to access 
the funds and know how to technically comply with the law. 
That's why it's written that way.
    Mr. Hyde. Well, I understand, but you're giving a 
preference to small, non-governmental organizations.
    Ms. Jackson Lee. Would the Chairman yield? Would Mr. Hyde 
yield?
    Mr. Hyde. Yes, I'll yield.
    Ms. Jackson Lee. Mr. Hyde, I know that in the course of 
talking to a lot of religious groups in my community, one of 
the apprehensions they had was understanding the Federal 
system. I can't speak for Mr. Scott in terms of his provision 
on--the last provision, but I know the technical assistance to 
allow them or encourage them or provide a road map on how to 
access these funds to be the good samaritan, I think is very 
productive. It opens the doors to more applicants. It keeps 
them within the guidelines of the regulations that will be 
promulgated, and also, it will allow them to understand all 
aspects of receiving Federal funds, and yet being able to do 
the service. So I would hope that we would come to some 
agreement on this amendment about technical assistance. I yield 
back.
    Mr. Watt. Will the former Chairman yield? Will Mr. Hyde 
yield?
    Mr. Hyde. I'll yield back so the Chairman can get the time.
    Chairman Sensenbrenner. I move to strike the last word, and 
recognize myself for 5 minutes.
    Mr. Watt. Would the Chairman yield just for----
    Chairman Sensenbrenner. Well, I'm going to make a deal you 
can't refuse. I'm willing to accept the amendment if on paren 
two you strike the word ``shall'' and replace it with ``may.'' 
And that gives the Justice Department flexibility but not a 
mandate.
    Mr. Scott. I'll agree to that. Ask unanimous consent that 
after paren 2, ``Such assistance'', ``may'' instead of 
``shall.''
    Chairman Sensenbrenner. Without objection, so ordered. 
And----
    Mr. Watt. Would the Chairman yield just briefly while he's 
thinking?
    Chairman Sensenbrenner. I just want to make sure that the 
Justice Department administers the funds. And page 20, you 
strike the word ``from'' on line 7 through ``funds'', which 
means that OJP does not have the mandate to administer this 
program. I would just as soon that you omit that so that the 
Office of Justice Programs does this, rather than something 
else in the Justice Department.
    Mr. Scott. I'd ask unanimous consent that that amendment be 
adopted.
    Chairman Sensenbrenner. Without objection, the amendment is 
further modified, and without objection, the Scott amendment is 
agreed to.
    Are there further amendments?
    Mr. Scott. I have an amendment.
    Chairman Sensenbrenner. One more? You're not going to quit 
when you're ahead? [Laughter.]
    Chairman Sensenbrenner. The clerk will report the last 
Scott amendment.
    Mr. Scott. No. 11.
    The Clerk. Amendment to the amendment to H.R. 7, Offered by 
Mr. Scott. Page 10, line paren, period, end paren, add paren, 
``Notwithstanding the provisions of this paragraph, title VI of 
the Civil Rights Act of 1964 (42 USC 2000d et seq.)''----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read. The gentleman will be recognized for 5 
minutes.
    [The amendment follows:]
    
    
    Mr. Scott. Thank you, Mr. Chairman. I'm not sure whether 
there's a--a problem with the bill or not, but it seems as 
though this is a clarifying amendment to make sure that title 
VI actually applies to direct grants. There is language in the 
bill that says that funds are not aid to religion. In the past 
that language has been used to specifically exempt the 
application of title VI. Without this amendment, the bill will 
say that title VI applies, but the provision of title VI only 
applies to organizations in receipt of Federal funds, and the 
bill seems to say that this is not direct aid to the 
organization, and therefore, title VI doesn't apply.
    Small organizations getting Federal funds under this 
amendment would therefore be able to discriminate because they 
wouldn't be covered by title VI because they're not receiving 
Federal funds. In fact, they're not even covered by title VII, 
so they're not covered by any civil rights bills, unless this 
amendment is adopted saying that if you get money, 
notwithstanding the no-aid-to-religion language, you're still 
technically in receipt of Federal funds and title VI shall 
apply.
    Yield back.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. Gentleman from Ohio, Mr. Chabot, is 
recognized for 5 minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I'll be very brief. We 
opposed the amendment. It's already crystal clear, already 
covered. It's very unnecessary. It's already covered under 
section E(e), and we yield back the balance of the time.
    Chairman Sensenbrenner. The question is on----
    Mr. Scott. Excuse me, Mr. Chairman, could you yield and say 
what section you're looking at again? On what page and line, if 
you could?
    Mr. Chabot. We'll get the page for you. It's the bottom of 
page 13, line 24.
    Mr. Scott. 13, line 24.
    Mr. Watt. Will the gentleman yield?
    Mr. Scott. Will the gentleman yield?
    Mr. Chabot. It's my time. I'll yield.
    Mr. Scott. I would ask on page 9, line 20, you say that 
Federal, State or local funds or other assistance received by a 
religious organization constitutes aid to an individual and 
families and not support for the religion or the organization's 
religious beliefs. If that's the case, title VI, although it 
applies, it only applies to organizations receiving funds. You 
just said that they don't receive funds. And so what this 
amendment says is whatever you meant by--in line 20, you really 
mean it on page 14, where title VI applies. Now, does title VI 
apply or not? And if you--because you said they're not 
receiving funds, title VI only applies to organizations 
receiving funds.
    Mr. Chabot. Reclaiming my time, our contention is it does 
apply, and it's clear, and there's really nothing else to 
discuss.
    Mr. Scott. Is it the legislative--would the gentleman 
yield?
    Mr. Chabot. I'll continue to yield.
    Mr. Scott. Is it the legislative intent that the non-
discrimination provisions of title VI apply to everyone getting 
money under this bill, whether they're technically in receipt 
of funds by the organization or not? Is that the legislative 
intent?
    Mr. Chabot. Yeah. They must be receiving funds.
    Mr. Scott. Well, you just said on page 9 that they're not 
receiving funds. That means that title VI doesn't apply, and 
they can discriminate at will, based on race, religion, 
everything else.
    Mr. Chabot. Title VI only applies to institutions receiving 
funds from the government.
    Mr. Scott. That's right. And does the language on page 9, 
which says they don't receive funds, mean that title VI doesn't 
apply to organizations receiving funds under this bill?
    Mr. Chabot. I'm going to have to consult with staff here.
    [Pause]
    Chairman Sensenbrenner. The gentleman from Ohio.
    Mr. Chabot. Relative to paragraph 2, it says, ``Federal, 
State or local government funds or other assistance that is 
received by a religious organization for the provision of 
services under this section, constitutes aid to individuals and 
families in need, the ultimate beneficiaries of such services, 
and not support for religion or the organization's religious 
beliefs or practices.'' So it seems.
    Mr. Scott. As to title VI, title VI doesn't apply.
    Mr. Chabot. I'll yield back the balance of my time. We 
think----
    Chairman Sensenbrenner. The question is on the adoption of 
Scott amendment No. 11.
    Mr. Watt. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman from North Carolina's 
recognized for 5 minutes.
    Mr. Watt. I yield to Mr. Scott.
    Mr. Scott. Well, Mr. Chairman, based on that reading, it is 
obvious that no civil rights laws apply. Title VI applies to 
organizations receiving Federal funds, and you've 
conveniently--and this isn't the first time this is done. I 
mean I've seen memos from some organizations, say if you can 
get a not-state aid amendment into a bill, you have essentially 
exempted the organization from title VI oversight. And that's 
what the purpose of the language on line--page 9, line 20. It 
is to say--make the fiction that the organization receiving 
funds really didn't receive funds. And that fiction blows away 
title VI of the civil rights laws and means that the 
organization can discriminate any kind of way it wants. It's 
not subject to title VII under religion, and if it's got less 
than 15 employees----
    Mr. Chabot. Will the gentleman yield?
    Mr. Scott.--Title VII doesn't even kick in anyway.
    Mr. Chabot. Will the gentleman yield?
    Mr. Scott. They can discriminate based on race, religion, 
any kind of thing they want to rely on with that language in 
there, and all my little amendment says is that title VI anti-
discrimination provisions ought to apply.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from North Carolina.
    Mr. Watt. I yield to Mr. Chabot.
    Mr. Chabot. Thank you. It's clear--we've reviewed it 
again--it's clear that title VI, that it applies, and it's our 
contention--we disagree on it, but it seems to be very clear to 
us.
    Mr. Watt. Reclaiming my time, I--for the life of me, it may 
be clear to you, but it certainly is not clear to us. If you've 
got a provision in the law that says this is not aid to the 
organization, this is not money that's going to the 
organization, it's going to individuals and families in need, 
the ultimate beneficiaries of such service, and not support for 
religion or the organization's religious beliefs or practices, 
then basically you've said that it doesn't apply. Unless you 
put some proviso at the end that says it does apply, which is 
what Mr. Scott is trying to do.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The time belongs to the gentleman 
from North Carolina.
    Mr. Watt. I yield to Mr. Nadler.
    Mr. Nadler. Thank you. I've been listening to this 
discussion in some confusion, as I imagine some other people 
have. What I seem to come away from is that Mr. Scott says--and 
Mr. Watt--that without ameliorative language, title VI would 
not apply. Mr. Chabot says, ``Oh, yes, title VI does apply.'' 
Everybody seems to agree that title VI should apply. The 
question is over the interpretation.
    I'd ask Mr. Chabot, do you agree that title VI should apply 
in this situation?
    Mr. Chabot. I agree it should, and it does. It seems to be 
crystal clear.
    Mr. Nadler. All right. And reclaiming my time, there's a 
real disagreement here as to whether it does or not. Everybody 
seems to agree that it should. So why not simply put in a 
statement that says it does? What possible harm is there to 
just clarify the point, Mr. Chabot?
    Mr. Chabot. You could amend anything and repeat the 
language redundancy upon redundancy. If it's clear already, 
there's no reason to----
    Mr. Nadler. Well, in this case--reclaiming my time----
    Mr. Chabot.--amend something just for the purpose of 
amending it.
    Mr. Nadler. In this case, I would suggest and I would urge 
that it would serve a great purpose--either you're right or 
wrong. If you're right, the amendment's superfluous but 
harmless. If you're wrong, the amendment is necessary. And 
there would seem to be a lot of pretty good legal minds that 
think that maybe you're wrong. So why not accept the amendment? 
It seems to me that if we all agree that title VI should apply, 
then simply saying we must oppose the amendment because, 
although it doesn't do anything wrong, it doesn't do anything 
right either, is a little over rigid. Why not satisfy 
everybody? Get rid of an hour debate on the floor a couple 
weeks from now, and say, either this language or some other 
language that someone can draft if you don't like this language 
for some reason, and say title VI applies.
    Mr. Watt. Reclaiming my time, I yield to Ms. Lofgren.
    Ms. Lofgren. I would just urge the same point made by Mr. 
Nadler. We've had a lot of disagreements today on the merits of 
what should be included, what shouldn't be included, but it 
seems to me foolish when we agree that we can't clarify it. And 
if we can have, you know, six lawyers arguing the point and not 
agreeing here for 20 minutes, it seems to me there will be 
lawyers across the country disagreeing. And to make it clear is 
a reasonable thing to do, and I would urge that we do so.
    Mr. Chabot. Would the gentlelady yield? I'm not sure whose 
time it is over there.
    Ms. Lofgren. It's Mr. Watt's time.
    Mr. Watt. I yield to Mr. Chabot.
    Mr. Chabot. Okay. I thank the gentleman for yielding. We 
continue to believe that it's clear, that it's already covered, 
that the language is unnecessary and redundant, but since it's 
redundant, it's really not harmful, and so for that reason, we 
will withdraw our objection to the amendment.
    Chairman Sensenbrenner. The gentleman's time is expired. 
The question is on Scott amendment No. 11 to the Sensenbrenner 
amendment. Those in favor, will signify by saying aye.
    Opposed, no.
    The ayes have it, and the amendment is agreed to.
    There being no further amendments, the question is on 
adoption of the Sensenbrenner amendment as amended. Those in 
favor will signify by saying aye.
    Those opposed, no.
    The ayes appear to have it.
    Mr. Nadler. Mr. Chairman----
    Chairman Sensenbrenner. This is on the Sensenbrenner 
amendment. This is not on reporting the bill.
    Mr. Nadler. Oh, sorry.
    Chairman Sensenbrenner. The ayes appear to have it. The 
ayes have it.
    A reporting quorum is present.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The question occurs on the motion 
to report the bill, H.R. 7, favorably as amended.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. All in favor will say aye.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. Opposed, no.
    The ayes appear to have it.
    Mr. Scott. I was seeking recognition before the motion. 
Before the vote. I sought recognition before the vote.
    Chairman Sensenbrenner. The Chair will vitiate the voice 
vote. For what purpose the gentleman from Virginia seek----
    Mr. Scott. Mr. Chairman, I was just looking at the 
amendment that was adopted, and there seems to be--there's a 
technical glitch to it. Page 10, it should read ``line 2'' 
after the period. I think----
    Chairman Sensenbrenner. Without objection, the amendment is 
so modified.
    The question now again occurs on the motion to report the 
bill H.R. 7 favorably, as amended. All those in favor will say 
aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it. A rollcall is 
requested. Those in favor of the motion to favorably report 
will, as your names are called, answer aye; those opposed, no. 
And the clerk will call the roll.
    Mr. Nadler. I thought it was requesting a rollcall on the 
Sensenbrenner amendment. I don't need a rollcall on this.
    Chairman Sensenbrenner. We want one. This is final passage. 
The clerk will call the roll.
    The Clerk. Mr. Hyde?
    Mr. Hyde. Yes.
    The Clerk. Mr. Hyde, yes. Mr. Gekas?
    Mr. Gekas. Yes, aye.
    The Clerk. Mr. Gekas, aye. Mr. Coble?
    Mr. Coble. Yes, aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Barr?
    Mr. Barr. Aye.
    The Clerk. Mr. Barr, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Hutchinson?
    Mr. Hutchinson. Aye.
    The Clerk. Mr. Hutchinson, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Graham?
    Mr. Graham. Aye.
    The Clerk. Mr. Graham, aye. Mr. Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye. Mr. Scarborough?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters, no. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there additional Members in the 
chamber who desire to cast or change their vote? Gentleman from 
Florida?
    Mr. Scarborough. Aye.
    The Clerk. Mr. Scarborough, aye.
    Chairman Sensenbrenner. Are there additional Members who 
desire to cast or change their vote? If not, the clerk will 
report.
    The Clerk. Mr. Chairman, there are 18 ayes and 5 nays.
    Chairman Sensenbrenner. And the motion to favorably report 
is agreed to. Without objection, the bill will be reported in 
the----
    The Clerk. Excuse me. 20 ayes, and 5 nays.
    Chairman Sensenbrenner. The final rollcall is so modified. 
Without objection, the bill will be reported in the form of a 
single amendment in the nature of a--strike that.
    Without objection, the Chairman is authorized to move to go 
to conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes. 
All Members will be given 2 days, as provided by House rules, 
in which to submit additional dissenting, supplemental, or 
minority views.
    The Chair extends his heartfelt thanks to the patience of 
all Members, staff and audience for sticking us--with us 
through this ordeal, and without objection, the Committee is 
adjourned.
    [Whereupon, at 8:00 p.m., the Committee was adjourned.]
                            Dissenting Views

    We dissent from the provisions in H.R. 7 which fall within 
the Committee on the Judiciary's jurisdiction (sec. 201 and 
104).
    We strongly believe that religious organizations can and 
should play an important and positive role in meeting our 
nation's social welfare needs. However, we cannot support 
legislation which seeks to enlarge the role of religious 
institutions by sanctioning government-funded discrimination 
and by breaking down the historic separation between church and 
state. This is why the legislation is opposed by a broad range 
of groups, including civil rights organizations (the Leadership 
Conference on Civil Rights, the NAACP, the NAACP Legal Defense 
Fund, the ACLU, Americans United for Separation of Church and 
State, the National Abortion Rights Action League, People for 
the American Way, the National Gay and Lesbian Task Force, the 
National Organization for Women), religious organizations (the 
Interfaith Alliance, the Baptist Joint Committee, the American 
Jewish Committee, the Union of American Hebrew Congregations, 
the Unitarian Universalist Association of Congregations), 
education organizations (the National Education Association, 
the American Federation of Teachers), and organized labor 
(AFSCME, Service Employees International Union).\1\
---------------------------------------------------------------------------
    \1\ Letter from the Coalition Against Religious Discrimination to 
Members of the House of Representatives (June 25, 2001) (listing 51 
national organizations that oppose charitable choice) (on file with the 
House Judiciary Committee).
---------------------------------------------------------------------------
Summary of Legislation and Democratic Concerns
    Section 201 of H.R. 7 adds a new section 1994A to title 42 
of the U.S. Code designed to expand previously enacted 
``charitable choice'' laws \2\ to include eight new categories 
of Federal grant programs (relating to, among other things, 
juvenile justice, crime, housing, job training, domestic 
violence, hunger relief, seniors services, and education). 
Under the bill, the Federal Government--or a State or local 
government using covered Federal funds--is prohibited from 
discriminating in the award of grants against religious 
organizations on account of their religious character.\3\ This 
right is enforceable by a lawsuit brought by a religious 
organization against the local, State and/or Federal 
Government.\4\
---------------------------------------------------------------------------
    \2\ The Personal Work and Work Opportunity Reconciliation Act of 
1996, P.L.104-193, title I Sec. 104 (Aug. 22, 1996), 110 Stat. 2161, 42 
U.S.C. 604a (hereinafter, the ``Welfare Reform Act''); The Community 
Services Grant Program, P.L. 105-285, title II, Sec. 201 (Oct. 27, 
1998), 112 Stat. 2749, 42 U.S.C. 9920; The Substance Abuse and Mental 
Health Services Act, P.L. 106-310, 42 U.S.C. Sec. 300x-65; and The 
Community Renewal Tax Relief Act of 2000 (H.R. 5662 included in 
Consolidated Appropriations Act of 2001, P.L. 106-554 (Dec. 12, 2000), 
114 Stat. 2763).
    \3\ Manager's amendment to H.R. 7, section 201 adding proposed 
section 1994A(c)(1)(B), 107th Cong. (2001).
    \4\ Manager's amendment to H.R. 7, section 201 adding proposed 
section 1994A(n), 107th Cong. (2001).
---------------------------------------------------------------------------
    The bill extends the current exemption in the civil rights 
law (section 702 of the Civil Rights Act of 1964) which permits 
religious organizations to discriminate in employment on 
account of religion to allow religious organizations to use 
public funds to discriminate on account of religion.\5\ Because 
the current section 702 exemption permits religious 
organizations to discriminate in employment on the basis of so-
called ``tenets and teachings,'' the bill therefore would 
permit religious groups to use taxpayer money to discriminate 
not just on account of a prospective employee's religion, but 
upon his or her failure to adhere to religious doctrine (e.g., 
being pregnant and unmarried, being gay or lesbian).\6\ 
Significantly, this ability to discriminate would supercede any 
Federal, State, or local civil rights law or contracting 
requirement or condition to the contrary.\7\
---------------------------------------------------------------------------
    \5\ Manager's amendment to H.R. 7, section 201 adding proposed 
section 1994A(e), 107th Cong. (2001).
    \6\ David M. Ackerman, Scope of the title VII Exemption Contained 
in title II of H.R. 7, as Approved by the House Judiciary Committee, 
CRS Report prepared for Rep. John Conyers, Jr. (July 3, 2001), at 2, 3 
(on file with House Judiciary Committee).
    \7\ Several features of H.R. 7 make it clear that the legislation 
will supercede State and local laws:
---------------------------------------------------------------------------
  First, subsection (d) specifies that a religious organization 
receiving Federal funds ``shall have the right to retain its autonomy 
from Federal, State, and local governments, including such 
organization's control over the definition, development, practice and 
expression of its religious beliefs.'' The same subsection operates to 
protect the organization's internal governance against any governmental 
interference. Under the Constitution's Supremacy Clause, this 
subsection would take precedence over a State law, for example, 
protecting gays and lesbians, unmarried, or pregnant individuals from 
employment discrimination.
  Second, subsection (e) specifies that a provision in a program 
receiving Federal funds under a covered program--which would include 
State programs that receive and distribute Federal funds--that is 
``inconsistent with or would diminish the exercise of [a religious] 
organization's autonomy'' as recognized in section 702 of the Civil 
Rights Act or the bill generally ``shall have no effect.'' This broad 
language would serve to negate, for example, a condition in a State 
grant program specifying that entities that received funds would need 
to agree not to discriminate on the bases of specified protective 
categories in employment.
 Third, H.R. 7 does not include language from the Welfare Reform Act's 
charitable choice law specifying that nothing in that law is to 
``preempt any provision of a State constitution or State statute that 
prohibits or restricts the expenditure of State funds in or by 
religious organizations.'' Given that Congress has previously opted to 
include language deferring to State law, we can only presume that H.R. 
7 was specifically designed to supercede State law.
    In an effort to prevent the legislation from being 
unconstitutional under the Establishment Clause, the bill 
includes several purported first amendment safeguards. Thus, 
the legislation states that if a beneficiary objects to the 
religious character of a provider, the governmental entity is 
required to provide an alternative service that is 
unobjectionable on religious grounds.\8\ The bill also 
specifies that religious organizations receiving grants may not 
discriminate against beneficiaries on the basis of their 
religion, and that religious organizations receiving indirect 
assistance (e.g., a voucher) may not deny admission on the 
basis of religion.\9\ In addition, the legislation states that 
government funds may not be used for sectarian instruction, 
worship, or proselytization, and that if the religious 
organization offers such activity, it is to be ``voluntary'' 
and ``offered separate'' from the government funded 
program.\10\
---------------------------------------------------------------------------
    \8\ Manager's amendment to H.R. 7, section 201 adding proposed 
section 1994A(g), 107th Cong. (2001).
    \9\ See infra  note 60.
    \10\ Manager's amendment to H.R. 7, section 201 adding proposed 
section 1994A(j), 107th Cong. (2001).
---------------------------------------------------------------------------
    Enforcement of these strictures is largely left to the 
religious organization. Thus, the religious organization is 
expected to file a certificate that it is aware of and will 
comply with the limitations on the use of its funds and the 
voluntary and separate requirement.\11\ Religious organizations 
are also supposed to conduct an annual ``self audit'' of their 
duties under the legislation.\12\
---------------------------------------------------------------------------
    \11\ Manager's amendment to H.R. 7, section 201 adding proposed 
section 1994A(j), 107th Cong. (2001).
    \12\ The only outside audit permitted under H.R. 7 is with regard 
to separate financial accounts set up to hold the government funds. 
Manager's admendment to H.R. 7 section 201 adding proposed section 
1994A(i)(2)(A). The legislation also includes an annual authorization 
of $50 million (from the Office of Justice Programs and the COPS on the 
Beat program) to give small religious organizations training and 
technical assistance in seeking grants. Manager's admendment to H.R. 7, 
section 201 adding proposed section 1994A(o)(1).
---------------------------------------------------------------------------
    Finally, Subsection (l) of the legislation would introduce 
a major change to our social service programs, granting 
agencies the discretion to take any or all of the funds in 
programs covered by the legislation (e.g., for housing, hunger 
relief and the like) and convert it into an indirect aid 
program by which beneficiaries could provide ``vouchers'' to 
the religious organization, which could in turn receive Federal 
funds. Such ``voucherized'' programs would be exempt from the 
requirement that the religious organization not discriminate 
against beneficiaries on religious grounds as well as the 
requirement that any sectarian instruction, worship, or 
proselytization be ``voluntary'' and ``offered separate'' from 
the government funded program.
    Section 104 of H.R. 7 is a ``tort reform'' provision. It 
supersedes State law to limit businesses from civil liability 
for donated equipment, the provision of their facilities, and 
the provision of their motor vehicles or aircrafts to nonprofit 
organizations.\13\
---------------------------------------------------------------------------
    \13\ Section 104 would create an extremely high standard to prove 
corporate negligence, gross negligence or intentional misconduct. This 
means that unless the corporation knew at the time of donation that the 
equipment, motor vehicle or aircraft or facility would likely injure or 
kill the user, the corporation could not be held liable. As a result, a 
corporate donor would be virtually immune from responsibility for 
injuries it may have caused.
---------------------------------------------------------------------------
    We cannot support the Judiciary-reported provisions of the 
legislation because in an effort to increase the role of 
religion in meeting society's needs, the legislation sacrifices 
two of our nation's most fundamental principles--equal 
protection and the separation of church and state.
    In terms of equal protection, the legislation runs counter 
to the long held principle that it is unacceptable for any 
group or entity to discriminate with taxpayer funds. Given that 
the bill's proponents claim that government funds will only be 
used for wholly secular purposes, we cannot understand why it 
is necessary to sanction discrimination in employment on 
account of religion. Nor can we understand why the bill permits 
religious organizations to discriminate on the basis of 
``tenets and teachings,'' which sweep in employment 
discrimination against gays and lesbians, unmarried pregnant 
women, women who have had an abortion, and persons who advocate 
reproductive choice. Equally disturbing is the fact that the 
bill sets aside not only Federal civil rights protections, but 
also State and local laws and contracting requirements designed 
to protect against discriminating in employment with government 
funds.
    With regard to the separation of church and state, we are 
concerned that the supposed ``safeguards'' included in the 
manager's amendment include several loopholes and are unlikely 
as a practical matter to insure that the Establishment Clause 
is respected. At the same time, the legislation is likely to 
serve to entangle government and religion, and in so doing, 
diminish the respect of our citizens for each. Recent press 
reports indicate that such inappropriate entanglement has 
already begun.\14\
---------------------------------------------------------------------------
    \14\ See discussion of alleged quid pro quo between Bush 
administration and Salvation Army, supra. p. 13.
---------------------------------------------------------------------------
    We also believe it is somewhat inconsistent for the 
Administration to be advocating this legislation as a tool to 
respond to poverty and other social ills, when H.R. 7 does not 
authorize a single dollar in additional funds for any of the 
social service programs covered by the bill. Even more 
problematic is that cuts in the Administration's budget assure 
that even if H.R. 7 is enacted, it will only serve to pit 
religious organizations, secular non-profits, and government 
agencies against each other for an ever declining share of 
Federal funds. Finally, in terms of the State liability law 
limits included in the bill, we fear that unilateral changes of 
this nature undermine federalism and expose the most vulnerable 
members of society to greater risk of accident and harm from 
faulty equipment and dangerous facilities.
    We support the notion that government can and should seek 
increased involvement of non-profits--including religious 
organizations--in meeting our nation's social welfare needs. At 
present, tax preferences provided to non-profits by the Federal 
Government total an estimated $25.8 billion per year.\15\ Many 
of us are supportive of efforts to extend these tax benefits 
even further (although such extension was not sufficiently 
important for the Administration to include in their recently 
passed $1.35 trillion tax legislation).
---------------------------------------------------------------------------
    \15\ Staff of Joint Economic Committee, 106th Cong., Tax 
Expenditures: A Review and Analysis 3 (Comm. Print 1999).
---------------------------------------------------------------------------
    In addition, we would note that the Federal Government 
already provides billions upon billions of dollars of direct 
annual support to non-profit organizations, including 
religiously affiliated organizations who have set up 501(c)(3) 
entities and operate within constitutional boundaries not 
required by H.R. 7. President Bush admitted as much in a recent 
speech when he acknowledged that under current law, Federal 
funds already go to child care and Head Start programs housed 
in churches and pay for health care in Catholic, Baptist, or 
other denominational hospitals. Illustrative of this success 
are Catholic Charities USA--which receives $600 million per 
year in government funds \16\ and is able to offer services 
through more than 1400 agencies, institutions, and 
organizations,\17\ and Lutheran Services in America, which 
serves over 3 million persons annually in over 3,000 
communities.\18\
---------------------------------------------------------------------------
    \16\ Catholic Charities USA, http://www.catholiccharitiesusa.org/
who/stats.html.
    \17\ Catholic Charities USA, http://www.catholiccharitiesusa.org/
who/history.html.
    \18\ Lutheran Services in America, http://www.lutheranservices.org/
whoweare.htm.
---------------------------------------------------------------------------
    In fact, when President Bush visited Habitat for Humanity 
and proclaimed that it was an example of the need for 
charitable choice, the president and founder of Habitat for 
Humanity said he did not need new laws, and he insisted that he 
was ``thriving'' under present laws. Contrary to President 
Bush's recent assertions, we are 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 the 
civil rights laws. Any program which can be funded under H.R. 
7, as reported, can be funded now, except that under this bill 
the sponsoring organizations can refuse to comply with the 
civil rights laws.
    Charitable Choice represents a false promise to struggling 
communities who desperately need resources. While it is 
described as a plan to help faith-based organizations receive 
and administer government grants, Charitable Choice in practice 
only represents an assault on our civil rights laws. It is also 
more clear than ever with the recent reports from the 
Washington Post that a sweeping roll back in civil rights 
protections at all levels is at the core of charitable choice.
    Certainly, government can do more in collaboration with 
religious and non-profit organizations. We can expend funds to 
help religiously affiliated groups understand and comply with 
the law and seek Federal funding.\19\ Also, we can encourage 
religious leaders to serve on government task forces fighting 
social ills, and insure that government offices provide 
appropriate information on social services offered by houses of 
worship. Unfortunately, H.R. 7 does not focus on bipartisan 
common sense initiatives which would move our nation forward. 
Instead it divides us along lines of religion, sexual status, 
marital status, and race. For these and the reasons set forth 
herein, we dissent from the Judiciary-reported provisions in 
H.R. 7.
---------------------------------------------------------------------------
    \19\ ``In this regard, President Bush did request that Congress 
place $700 million in a `Compassion Capital Fund' to support charitable 
organizations providing social services, claiming it was a ``noble 
mission'' during his February 27, 2001 Address to a Joint Session of 
Congress. Yet, the President's budget proposal only included $89 
million for the fund. Even this reduced request was ignored in the 
budget resolution adopted by the Majority.
---------------------------------------------------------------------------

 I. H.R. 7 Allows Religious Organizations Receiving Taxpayer Funds to 
           Discriminate in Employment on Account of Religion

    Our principal objection to the legislation is that it 
permits taxpayer funds to be used to discriminate in 
employment. This violates one of the most fundamental 
principles of civil rights, first enunciated by President 
Franklin D. Roosevelt by Executive Order 60 years ago that the 
government should not fund employers, religious or otherwise, 
who engaged in discrimination on account of race, religion, 
color or national origin.\20\
---------------------------------------------------------------------------
    \20\ Exec. Order 8802 (June 25, 1941). This fundamental principle 
of non-discrimination subsequently was reflected in other executive 
orders by every future President.
---------------------------------------------------------------------------
    We are perplexed why the Majority has so fervently sought 
to extend the right to discriminate on religious grounds given 
that they have separately argued that the funds referenced 
under the bill will be used for wholly secular purposes. They 
cannot have it both ways--either the Federal funds will be used 
for religious purposes, in which case there may be a 
justification for tolerating religious discrimination (but 
would render the legislation constitutionally suspect); or the 
funds will be used in a non-sectarian manner, in which case 
there is no reason to discriminate on the basis of religion. As 
Democratic Members made clear at the markup, cooking soup and 
giving it to the poor can be done equally well by persons of 
all religious beliefs.
    Even more problematic is the bill's sanctioning of 
discrimination based on religious ``tenets and teachings.'' 
Under this doctrine, religious institutions are permitted to 
discriminate in employment against anyone who disagrees with or 
conducts themselves in a manner at odds with any form of the 
religious institutions' doctrine or practices.\21\ Thus, under 
the bill, an organization could use taxpayer funds to 
discriminate against gays and lesbians,\22\ against divorced 
persons,\23\ against unmarried pregnant women,\24\ against 
women who have had an abortion, persons who use birth control, 
persons who favor reproductive rights,\25\ or persons involved 
in interracial dating or marriage.\26\ Again, while there may 
be some conceivable justification for this type of 
discrimination in the context of a religious organization 
employing persons associated with its religious function, there 
is no legitimate justification for extending such 
discrimination with regard to government-funded secular 
services for the poor and needy, as the bill does.
---------------------------------------------------------------------------
    \21\ See infra note 6.
    \22\ See Hall v. Baptist Memorial Healthcare Corp., 215 F. 3d 618 
(6th Cir. 2000).
    \23\ See Little v. Wuerl, 929 F. 2d 944 (3rd Cir. 1991).
    \24\ See Cline v. Catholic Diocese of Toledo, 206 F. 3d 651 (6th 
Cir. 2000).
    \25\ See Maguire v. Marquette University, 814 F. 2d 1213 (7th Cir. 
1987).
    \26\ NAACP Legal Defense Fund Information Sheet. The report states, 
``under the language of [charitable choice], Bob Jones University could 
become a provider of services under one or more Federal programs and 
require that employees . . . subscribe to its religious tenets and not 
engage in interracial dating . . .''. (On file with the House Judiciary 
Committee).
---------------------------------------------------------------------------
    Notwithstanding the series of changes made to the 
employment discrimination language pursuant to the manager's 
amendment, there is no question that after all is said and 
done, the bill will sanction this form of tenets and teachings 
discrimination. In a Memorandum issued subsequent to the 
Committee Markup, the Congressional Research Service stated 
that the bill would authorize this type of discrimination, 
noting that ``[j]udicial decisions have held the [religious] 
exemption to apply to discrimination based on tenets, 
teachings, beliefs, behavior and practices.'' \27\ The CRS 
Memorandum then goes on to cite a long list of cases where 
persons were discriminated against by religious organizations 
because, among other things, they failed to have their first 
marriage properly annulled, they were gay, they had 
extramarital sex, they supported reproductive choice, or they 
were actively involved in a church which had gay and lesbian 
members.\28\
---------------------------------------------------------------------------
    \27\ See infra note 6.
    \28\ Id.
---------------------------------------------------------------------------
    We would further note that the protections against 
discrimination in H.R. 7 on the basis of race are not complete. 
The application of the ``ministerial exception'' to any 
publicly funded positions also should be given serious 
consideration and review. There is a question as to how 
enforceable title VII's protections against racial 
discrimination in employment will be once publicly funded 
religious discrimination is allowed. Given that the eleven 
o'clock hour is still one of the most segregated hours in 
America, an all white religious organization could simply tell 
otherwise qualified minority candidates of the same religion, 
we only hire those that belong to our church.
    The non-discrimination language included in the bill not 
only sets aside Federal civil rights laws, it goes so far as to 
obviate State and local laws and Federal, State, and local 
contracting requirements intended to safeguard against 
religious discrimination in employment. Thus if a State had 
decided that as a matter of public policy it did not want to 
tolerate religious discrimination by a non-profit engaged in 
secular affairs, or that religious organizations who utilized 
State provided funds should not be permitted to discriminate, 
or even that they should be able to discriminate on account of 
religion, but not on account of ``tenets and teachings,'' all 
of these laws and contracting requirements would be set aside 
under H.R. 7. To us, this turns the principle of federalism and 
respect for State prerogatives on its head.
    The consequences of H.R. 7's superceding State civil rights 
protections are quite extreme. Under the legislation, a 
national religious organization could choose to accept a single 
Federal grant and attempt to use that as a shield to avoid laws 
protecting gay and lesbian employment rights in all 50 States. 
For example, Maryland's law on domestic partner benefits could 
be set aside under H.R. 7. This means that even if the Bush 
administration abandons its proposal to issue an administrative 
ruling setting such State and local civil rights protections 
aside,\29\ opponents of such protections would be able to 
accomplish even greater immunity from such laws under H.R. 7.
---------------------------------------------------------------------------
    \29\ Dana Milbank, Bush Drops Rule On Hiring of Gays; Democrats: 
``Faith Based'' Initiative at Risk, WASHINGTON POST, July 11, 2001, at 
A10.
---------------------------------------------------------------------------
    At its core, the Majority and supporters of H.R. 7 
challenge the fundamental notion of ``protected class'' as 
currently recognized by our civil rights laws. The Majority has 
suggested that organizations should be able to discriminate in 
employment to select employees who share their vision and 
philosophy. Under current civil rights laws, employers can 
discriminate against a person based on their views on the 
environment, abortion, gun control, or just about any other 
basis. Employers can also select staff based on their 
commitment to serve the poor or whether they think prospective 
applicants have compassion to help others kick drugs. But 
because of a sorry history of discrimination against certain 
Americans, we have had to establish ``protected classes'' and 
under present law employers, including religious organizations 
who sponsor Federal programs, cannot discriminate against an 
individual based on race, sex, national origin, or religion.
    It is for these reasons that civil rights groups such as 
the NAACP, the NAACP Legal Defense Fund and the Leadership 
Conference on Civil Rights are so strongly opposed to the bill. 
They have nothing against religion, but they do believe we do 
nothing to help poor and needy individuals if we tolerate more 
discrimination. Thus, on July 8, 2001, Julian Bond, the 
Chairman of the NAACP, the nation's oldest and largest civil 
rights organization declared that ``[t]he Administration's 
faith-based plan threatens to erase sixty years of civil rights 
protections.'' \30\ The NAACP Legal Defense Fund has written 
that the religious discrimination provisions in charitable 
choice legislation are ``wholly inconsistent with longstanding 
principle that Federal moneys should not be used to 
discriminate in any form.'' \31\ Wade Henderson, the Executive 
Director of the Leadership Conference on Civil Rights, the 
nation's most broadly based civil rights organization, has 
testified that ``charitable choice threatens to erode [the 
fundamental principle of non-discrimination] by allowing 
Federal funds to go to persons who discriminate in employment 
based on religion.'' \32\
---------------------------------------------------------------------------
    \30\ Statement by Julian Bond, Chairman, NAACP at NAACP National 
Convention, July 8, 2001, at 16. (On file with House Judiciary 
Committee).
    \31\ See infra note 26.
    \32\ Statement by Wade Henderson, Executive Director, Leadership 
Conference on Civil Rights before the Committee on the Judiciary, U.S. 
Senate, 107th Cong. (June 6, 2001) at 3.
---------------------------------------------------------------------------
    Given the obvious and real nature of our concerns regarding 
the bill's sanctioning of employment discrimination, we are not 
surprised that the legislation's supporters have resorted to a 
series of myths to justify H.R. 7. Of course, upon close 
scrutiny, none of these myths can be sustained:

        Myth 1--Religious discrimination is needed so that 
        small religious organizations can share religious 
        employees between non-secular and secular functions

    This claim suffers from several legal deficiencies. As a 
threshold matter, title VII only applies to organizations which 
employ 15 or more persons.\33\ This means that extension of the 
section 702 exemption is not needed to permit small religious 
organizations to be able to hire persons of their own religion. 
Second, the courts have said that under the First Amendment 
Free Exercise Clause, religious institutions are entitled to a 
``ministerial exception'' permitting them to bypass title VII's 
prohibitions on discrimination with respect to race, gender, 
and national origin to hire their clergy and spiritual 
leaders.\34\ Again, extending the reach of the section 702 
employment discrimination exemption will do little to help 
religious groups share the costs of their clergy between their 
religious and secular accounts.
---------------------------------------------------------------------------
    \33\ See infra note 6.
    \34\ Id.
---------------------------------------------------------------------------
    The 15 person threshold requirement and ministerial 
exception should therefore cover most of the needs of small 
religious organizations. To the extent there is any gap in 
coverage, we note that the Majority never proposed a tightening 
amendment. Instead, H.R. 7 appears to use the issue of small 
religious organization needs as an excuse to justify wide scale 
relief from our anti-discrimination laws.

        Myth 2--We should extend the religious civil rights 
        employment exemption because it is based on previous 
        charitable choice laws signed by President Clinton and 
        which have been implemented without controversy

    This contention also fails for a variety of reasons. Most 
obvious is the notion that a previous act of Congress cannot 
and should not bind a future Congress, particularly with regard 
to a dubious legal principle. Beyond that it is important to 
note that there are numerous, major differences between H.R. 7 
and other charitable choice laws. Among other things, H.R. 7 
covers a far broader range of programs and includes a far 
larger pot of funds than previous charitable choice laws.\35\ 
H.R. 7 also includes a variety of different safeguards and 
permits a broader range of religious discrimination with 
respect to beneficiaries than previous charitable choice 
laws.\36\
---------------------------------------------------------------------------
    \35\ Based on the Bush Budget, the funds covered by the previous 
charitable choice laws total approximately $21 billion ($3 billion for 
SAMHSA; $16 billion for TANF; $2.4 billion for Community Development 
Block Grants). By contrast, the social service programs covered by H.R. 
7 total at least $47 billion ($.3 billion for juvenile justice; $6.5 
billion for crime control and domestic violence; $28 billion for 
housing; $7 billion for job training; $1 billion for seniors services; 
$4.1 billion for hunger; $1.4 billion for GED and after school 
programs).
    \36\ See notes 10, 60, 61 and accompanying text.
---------------------------------------------------------------------------
    In addition, the legislative history of the previous 
charitable choice laws makes clear that these laws were never 
carefully considered or debated. We begin with the fact that 
until this Congress there has never been a hearing on 
charitable choice legislation in the House or the Senate. The 
Judiciary Committee--which has jurisdiction over the issue--has 
never been involved in any previous charitable choice 
legislation. Moreover, when charitable choice has been added to 
legislation in the past, it has often been done at the very end 
of the process, with no opportunity for Democratic input or 
amendment.\37\
---------------------------------------------------------------------------
    \37\ The charitable choice provision of the Welfare Reform Act was 
offered in conference. It was not included in the House bill. Democrats 
never had a chance to strike the provision because conferees were never 
given an opportunity to offer amendments. Charitable choice was also 
added to the re-authorization of Community Services Block Grant (CSBG) 
in the 105th Congress as part of a larger Human Services 
reauthorization that included Head Start, CSBG, and Low Income Heating 
Energy Assistance Program (LIHEAP). It was the last item to be 
considered by the conferees due to the controversy. This marked the 
first time that Charitable Choice was debated on the House floor. The 
debate occurred at 1 a.m. Charitable Choice language was signed into 
law twice in the 106th Congress on the SAMHSA programs--as part of H.R. 
4365, the Children's Health Act of 2000, P.L. 106-310, and as part of 
the omnibus end of year spending bill, H.R. 4577, P.L. 106-554. The 
language in H.R. 4577 replaced the language signed into law pursuant to 
H.R. 4365. In both cases, the charitable choice provisions were added 
without any opportunity to offer amendments.
---------------------------------------------------------------------------
    It is also misleading to contend that prior charitable 
choice laws have been enacted with the endorsement of President 
Clinton. To the contrary, shortly after the Welfare Reform Act 
was enacted, the Clinton administration proposed amendments to 
clarify the charitable choice provisions to ensure that 
religiously affiliated organizations could not participate if 
they were ``pervasively sectarian.'' \38\ Additionally, in 
connection with the signing of the Community Services Block 
Grant law in 1998 and the Substance Abuse Mental Services Act 
in 2000, President Clinton specifically noted that the 
Department of Justice believed charitable choice was 
potentially unconstitutional, and as a result construed the law 
as forbidding the funding of pervasively sectarian 
organizations.\39\
---------------------------------------------------------------------------
    \38\ The Clinton administration filed the following comments in 
connection with the proposed amendments: ``We recommend amending sec. 
104 to clarify that it does not compel or allow States to provide TANF 
benefits through pervasively sectarian organizations, either directly 
or through vouchers redeemable with these organizations. . . . 
[P]rovisions of sec. 104 and its legislative history could be read 
inconsistent with the constitutional limits.'' The Administration's 
amendment to charitable choice failed to be included in a final package 
of technical amendments to the welfare laws adopted by Congress.
    \39\ Statement on Signing the Children's Health Act of 2000, 36 
Weekly Comp. Pres. Doc. 2504 (October 17, 2000):
---------------------------------------------------------------------------
      The Department of Justice advises, however, that this 
      provision would be unconstitutional to the extent that it 
      were construed to permit governmental funding of 
      organizations that do not or cannot separate their 
      religious activities from their substance abuse treatment 
      and prevention activities that are supported by SAMHSA aid. 
      Accordingly, I construe the act as forbidding the funding 
      of such organizations and as permitting Federal, State, and 
      local governments involved in disbursing SAMHSA funds to 
      take into account the structure and operations of a 
      religious organization in determining whether such an 
      organization is constitutionally and statutorily eligible 
      to receive funding.

President Clinton stated similarly at the 1998 signing of The Community 
Services Grant Program:

      The Department of Justice advises, however, that the 
      provision that allows religiously affiliated organizations 
      to be providers under CSBG would be unconstitutional if and 
      to the extent it were construed to permit governmental 
      funding of ``pervasively sectarian'' organizations, as that 
      term has been defined by the courts. Accordingly, I 
      construe the act as forbidding the funding of pervasively 
      sectarian organizations and as permitting Federal, State, 
      and local governments involved in disbursing CSBG funds to 
      take into account the structure and operations of a 
      religious organization in determining whether such an 
      organization is pervasively sectarian.
    Fourth, current charitable choice laws have barely been 
implemented, much less analyzed for effectiveness. As of 
September 2000, 50 States had not implemented policies to 
facilitate the participation of faith-based organizations in 
charitable choice programs.\40\ It is also incorrect to assert, 
as proponents have done, that prior charitable choice laws have 
not been subject to legal challenge. Even on the very thin 
implementation record before us, the legal and constitutional 
issues raised by charitable choice have already engendered five 
legal challenges.\41\
---------------------------------------------------------------------------
    \40\ Center for Public Justice, ``States Fail Charitable Choice 
Check-Up,'' Press Release (Oct. 5, 2000).
    \41\ See American Jewish Congress and Texas Civil Rights Project v. 
Bost 00-A-CA-528-SS (W.D. Tex.)(challenging the Jobs Partnership of 
Washington County's use of State funding to buy Bibles and give Bible 
instruction for its welfare-to-work training program); AJCongress v. 
Bernik, No. 317896 (Superior Court, County of San Francisco)(alleging 
that the California Employment Development Department solicited 
proposals for $5 million to be earmarked solely for faith-based, but 
not secular, groups); Freedom From Religion Foundation v. Thompson 00-
C-0617C (W.D. Wis.) (challenging the use of State funds by Faithworks, 
an alternative to Alcoholics Anonymous, which encourages belief in a 
higher power); Lara v. Tarrant County (Tex. Supreme Court) (challenging 
a prison chaplain's clear preference for Christianity when approving 
volunteer teachers for a prison-funded education program); Pedreira v. 
Kentucky Baptist Homes, C/A 3:00CV-210-SKY 2001 (W.D. Ky.)(challenging 
the firing of a lesbian worker from a State-funded residential child 
care run by ministries).

        Myth 3--Even outside of charitable choice, various 
        religiously affiliated organizations--such as hospitals 
        and colleges--receive Federal funds and regularly 
---------------------------------------------------------------------------
        discriminate on account of religion

    This argument was trotted out several times during our 
markup. It is somewhat difficult to respond to, because to our 
knowledge, the Majority has not cited any specific examples. As 
best we can ascertain, the Majority bases their argument on the 
fact that religious colleges are receiving Pell Grants, and 
religious hospitals are receiving Medicaid and Medicare 
payments, at the same time they utilize the section 702 
religious exemption. The principal flaw in this contention is 
that funds received from Pell Grants, Medicare, and Medicaid 
are indirect. They flow from choices made by beneficiaries, not 
the government. As a result, to the extent any such religiously 
affiliated hospital or college is engaged in discrimination, it 
is not with direct government funds.\42\
---------------------------------------------------------------------------
    \42\ Siegel v. Truett-McConnell College, Inc. confirms the 
important distinction between direct and indirect Federal aid. The 
plaintiff in Siegel argued that the college received substantial funds 
from Federal and State sources, such as Pell grants, and therefore was 
not entitled to the title VII exemption. The Court ruled that the 
college was entitled to the title VII exemption because there was no 
``direct Federal or State subsidy . . .'' and that ``[t]he government 
does not directly pay for any one teacher's salary, including Mr. 
Siegel's.'' The court went on to distinguish this case involving 
indirect benefit (where students choose their college) from a direct 
benefit (where government provides a direct contract for services). 
Siegel v. Truett-McConnell College, 13 F. Supp.2d 1335, 1343-45 (N.D. 
Ga. 1994), aff'd, 73 F.3d 1108 (11th Cir. 1995).
---------------------------------------------------------------------------
    If a limited number of religious institutions are receiving 
Federal grants at the same time they are engaging in employment 
discrimination, it is possible the Majority does not realize 
the institutions may be doing so in violation of Federal law. 
Certainly, to the extent they are receiving Federal funds from 
grants concerning crime control, housing, job training, 
domestic violence, and education--all programs covered by H.R. 
7--they would not be able to lawfully discriminate on account 
of religion, as those laws contain specific provisions 
preventing religious discrimination.\43\
---------------------------------------------------------------------------
    \43\ See Omnibus Crime Control and Safe Streets Act of 1998, 42 U. 
S. C. Sec. 3701 et seq. (includes a religious nondiscrimination 
provision at 42 U. S. C. Sec. 3789d(c)); federally assisted housing 
programs, 42 U. S. C. Sec. 13601 et seq. (includes a nondiscrimination 
provision requiring compliance with all civil rights laws at 42 U. S. 
C. Sec. 13603(b)(2)); Workforce Investment Act of 1998, 29 U. S. C. 
Sec. 2801 et seq. (includes a religious nondiscrimination provision at 
29 U. S. C. Sec. 2938); domestic violence programs, see, e.g., 42 U. S. 
C. Sec. 10603 (includes a religious nondiscrimination provision at 42 
U. S. C. Sec. 10604(e)); the Child Care Development Block Grant Act of 
1990, 42 U. S. C. 9858 et seq. (includes a modified religious 
nondiscrimination provision at 42 U. S. C. Sec. 9858L); the Community 
Development Block Grant Program of the Housing and Community 
Development Act of 1974, 42 U. S. C. Sec. 5301 et seq. (includes a 
nondiscrimination provision requiring compliance with all civil rights 
laws at 42 U. S. C. Sec. 5304 (b) (2)); and the Job Access and Reverse 
Commute grant program of the Federal Transit Act of 1998, 49 U. S. C. 
Sec. 5309 note (includes a religious nondiscrimination provision at 49 
U. S. C. Sec. 53329(b)).

        Myth 4--Using Federal funds to discriminate in 
---------------------------------------------------------------------------
        employment has been upheld by the courts

    This contention rests on the Majority's misreading of the 
Supreme Court's decision in Corporation of the Presiding Bishop 
v. Amos. \44\ That case did uphold the religious exemption set 
forth in section 702 of the Civil Rights Act, however, it did 
not involve any use of Federal funds. As a matter of fact, the 
Court went out of its way to distinguish the title VII 
exemption from other government programs that might advance 
religion through financial support or active involvement of the 
sovereign religious activity. Specifically, the Court held the 
exemption was ``rationally related to the legitimate purpose of 
alleviating significant governmental interference with the 
ability of the religious organizations to define and carry out 
their religious missions.'' \45\ At most, permitting such 
discrimination was an ``accommodation'' required by the First 
Amendment's Free Exercise Clause that minimized the burden on 
religious organizations to predict which of their activities a 
secular court might consider religious.\46\ Obviously, none of 
these factors or justifications are present in H.R. 7, which 
clearly involves the use of Federal funds for wholly secular 
purposes and activities.\47\
---------------------------------------------------------------------------
    \44\ Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987).
    \45\ 483 U.S. at 339. As Justice Brennen noted in upholding the 
section 702 religious exemption for privately funded, religious non-
profit activities: ``What makes the application of a religious-secular 
distinction difficult is that the character of an activity is not self-
evident. As a result, determining whether an activity is religious or 
secular requires a searching case-by-case analysis. This results in 
considerable ongoing government entanglement in religious affairs.'' 
483 U.S. at 343.
    \46\ 483 U.S. at 334-35.
    \47\ Additionally, because H.R. 7 prohibits direct funds being used 
for sectarian instruction, worship, or proselytization, jobs used with 
taxpayer money would be beyond the scope of Amos. Therefore, none of 
the entanglement concerns raised by Amos would be applicable to an 
analysis of publicly funded secular positions.
---------------------------------------------------------------------------
    Nor is it true, as proponents claim, that Justice Brennan's 
separate opinion in Amos would lend support to H.R. 7's 
extension of the religious exemption. He wrote, ``the potential 
for coercion caused by such a provision is in serious tension 
with our commitment to individual freedom of conscience in 
matters of religious belief.'' \48\
---------------------------------------------------------------------------
    \48\ 483 U.S. 327, 340-41.
---------------------------------------------------------------------------
    If anything, the case law on this point supports the 
contention that it is unconstitutional to use Federal funds to 
engage in discrimination. This was the holding of the district 
court in Dodge v. Salvation Army. \49\ That case involved a 
religious organization--the Salvation Army--which used public 
funds to exclude members of the Wiccan faith from employment. 
The court found that such action was unconstitutional under the 
Establishment Clause because it treated religious non-profits 
preferably to non-religious non-profits.\50\
---------------------------------------------------------------------------
    \49\ Dodge v. Salvation Army, 1989 WL 53857 (S.D. Miss. 1989).
    \50\ The court concluded that such an arrangement was 
unconstitutional because:

      The benefits received by the Salvation Army were not 
      indirect or incidental. The grants constituted direct 
      financial support in the form of a substantial subsidy, and 
      therefore to allow the Salvation Army to discriminate on 
      the basis of religion, concerning the employment of the 
      Victims' Assistance Coordinator, would violate the 
      Establishment Clause of the First Amendment in that it has 
      a primary effect of advancing religion and creating 
      excessive government entanglement.

II. H.R. 7 Breaks Down the Historic Separation Between Church and State

    With regard to the separation between church and state, we 
are concerned that the safeguards included in the bill may be 
too weak, and that the bill will pave the way for excessive 
entanglement between government and religion. We are also 
concerned that the new voucher authorizations in the bill pose 
severe constitutional problems. These concerns demonstrate that 
the bill may be unconstitutional under the Establishment 
Clause.
Safeguards
    We are particularly concerned that the most critical 
Establishment Clause safeguard included in the legislation--a 
beneficiary's right to a secular alternative to a faith-based 
service--is an unfunded and unenforceable mandate. The 
principal problem is that there is not a single dollar 
appropriated to meet the requirement, which serves as the lynch 
pin for H.R. 7, nor has there been any indication from the 
Administration that they intend to fund this mandate. The 
Majority's own witness, Professor Douglas Laycock acknowledged 
that the government must ``really [make] available an alternate 
provider . . . you have got to really do that or this program 
is a fraud.'' \51\ Yet at the same hearing, the 
Administration's own witness would not commit to fully funding 
the alternative program. When asked point blank by Rep. Frank 
whether for the charitable choice program to be fair and 
justifiable there needs to be a substantively equal secular 
alternative set of programs, Carl H. Esbeck, Senior Counsel at 
the Department of Justice responded, ``I think in [an] earlier 
answer I was showing you an example where that was not 
necessary. So I guess the answer is no.'' \52\
---------------------------------------------------------------------------
    \51\ The Charitable Choice Act of 2001: Markup Before the House 
Judiciary Committee, H. Doc. No. HJU179.000, p. 214 (June 28, 2001).
    \52\ Id. at 67.
---------------------------------------------------------------------------
    If the Federal Government will not find the resources to 
meet the requirement of a secular alternative, it is unlikely 
the financially strapped State and local governments will be 
able to make up the difference. In this regard, the National 
League of Cities has written: ``Local governments are already 
hard-pressed to deliver much needed services, and they are 
especially vulnerable to the impact of budget cuts in social 
service programs. Without the financial support from the 
Federal Government, it will be impossible for cities to satisfy 
this provision of H.R. 7; thus leaving cities vulnerable to 
litigation.'' \53\
---------------------------------------------------------------------------
    \53\ Letter from Donald J. Borut, Exec. Dir., Nat'l League of 
Cities to Hon. John Conyers, Jr., p. 2 (June 27, 2001) (on file with 
the House Judiciary Committee).
---------------------------------------------------------------------------
    The other key religious protections included in the bill--
the requirement that government funds may not be used for 
``sectarian instruction, worship, or proselytization,'' and the 
requirement that if the religious organization offers such 
activity, it is to be ``voluntary'' and ``offered separate'' 
from the government funded program--are largely left to self 
enforcement.\54\ Of course, we do not question the good faith 
of our non-profit or religious organizations, but it does seem 
that the Majority could offer stronger safeguards for this core 
constitutional concern than self certifications and self 
audits.
---------------------------------------------------------------------------
    \54\ It is worth noting that the bill still does not contain the 
most obvious safeguard with regard to separation of church and state--a 
simple statement that a religious organization may not proselytize at 
the same time and place as a government funded programs.
---------------------------------------------------------------------------
    Particularly questionable is whether a sectarian religious 
program offered in conjunction with a covered Federal program, 
such as after school programs for young children, can ever be 
truly ``voluntary'' to the children involved. We all know the 
tremendous peer pressure impressionable children can be under, 
and they can hardly be expected to be aware of their statutory 
rights to object under H.R. 7, let alone willing to assert such 
legal rights against a religious organization.\55\ A similar 
concern exists for other categories of beneficiaries, such as 
drug addicts. As the Association for Addiction Professionals 
testified before the Senate Judiciary Committee, ``[t]he 
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 [with 
the religious coercion] in order to continue to receive 
services.'' \56\
---------------------------------------------------------------------------
    \55\ ``The bill would leave it up to the children in an after 
school program to ask for a non-religious alternative. But experience 
with `voluntary' school prayer demonstrates that peer pressure or other 
factors may hinder children from exercising that right.'' See Mr. 
Bush's ``Faith Based'' Agenda, N. Y. TIMES, July 8, 2001, at A10.
    \56\ Statement by John L. Avery, Government Relations Director of 
The Association for Addiction Professionals (NAADAC) before the 
Committee on the Judiciary, U.S. Senate 107th Cong. (June 6, 2001).
---------------------------------------------------------------------------
    The bill's other purported protection--the specification 
that religious organizations receiving grants may not 
discriminate against beneficiaries on the basis of their 
religion--is also likely to be problematic in practice. One 
obvious problem is that this protection is limited to religious 
discrimination; it offers no protection against discrimination 
on account of sex, pregnancy status, marital status, or sexual 
orientation.\57\ The fact that the legislation includes a 
savings clause stating that specified civil rights protections 
are unaffected by the bill is of little import, since none of 
the cited laws provide any protection with regard to these 
categories of beneficiaries.\58\
---------------------------------------------------------------------------
    \57\ Reps. Frank and Baldwin attempted to offer an amendment to 
prevent discrimination on any basis prohibited under applicable 
Federal, State, or local laws, including sexual orientation.
    \58\ Letter from Laura W. Murphy, Director, ACLU and Terri 
Schroeder, Legislative Representative, ACLU, p. 11 (June 27, 2001) (on 
file with the House Judiciary Committee) (``At first glance, the 
paragraph may appear to provide significant protection to persons 
suffering employment discrimination caused by federally-funded 
religious organizations. However, a closer examination shows what 
protections are missing. Specifically, the paragraph saves absolutely 
no laws protecting persons against discrimination based on religion, 
sex, pregnancy status, marital status, or sexual orientation in any 
federally-funded program or activity.''). See also Statement by Wade 
Henderson, supra note 32, at 5. (``None of the cited laws provide any 
protection against employment discrimination based on religion, sex, 
pregnancy status, marital status, or sexual orientation.'').
---------------------------------------------------------------------------
    Even the protection against religious discrimination 
against beneficiaries is incomplete with regard to indirect 
aid. The original version of the legislation required that for 
indirect forms of disbursement religious organizations were 
prohibited from discriminating based on religion in all 
respects.\59\ The manager's amendment weakened the protection 
to merely require that a religious organization cannot deny 
admission based on religion.\60\ This means, for example, 
pressure to convert can be applied once admission is granted. 
Also, the protections that proselytization must be voluntary 
and separately offered do not apply to indirect aid. Finally, 
like the other religious safeguards applicable to 
beneficiaries, this anti-discrimination protection is not 
enforceable in court. In contrast to the provisions protecting 
religious organizations against discrimination, which are 
enforceable in court and allow recovery of attorney's fees,\61\ 
beneficiaries facing discrimination are given no such right.
---------------------------------------------------------------------------
    \59\ H.R. 7, section 201 adding proposed section 1994A(g)(2), 107th 
Cong. (2001), as introduced. ``A religious organization providing 
assistance through a voucher, certificate, or other form of indirect 
disbursement under a program described in subsection (c)(4) shall not 
discriminate, in carrying out the program, against an individual 
described in subsection (f)(3) on the basis of religion, a religious 
belief, or a refusal to hold a religious belief.''
    \60\ Manager's amendment to H.R. 7, section 201 adding proposed 
section 1994A(h)(2), 107th Cong. (2001) provides, ``A religious 
organization providing assistance through a voucher, certificate, or 
other form of indirect assistance under a program described in 
subsection (c)(4) shall not deny an individual described in subsection 
(f)(3) admission into such program on the basis of religion, a 
religious belief, or refusal to hold a religious belief.'' (emphasis 
added).
    \61\ The proposed section 1994A(n) authorizes the bringing of a 
civil action pursuant to title 43, section 1979 of the Revised Statutes 
of the United States, the codified version of what is commonly known as 
section 1983 of the United States Code. title 42, section 1988 allows 
for the awarding of attorney's fees in a 1979 action.
---------------------------------------------------------------------------
Entanglement
    We are also concerned that by unleashing the process 
contemplated by H.R. 7, Congress will be inviting excessive 
entanglement between the church and state, particularly with 
regard to raw political calculations. The last several months 
have already unleashed a flurry of such activity, as the White 
House has used the full weight of its office to curry political 
support from impacted religious groups and elected 
representatives.
    Perhaps the most telling instance of the dangers of such 
entanglement can be seen in the discussed quid pro quo between 
the Bush White House and the Salvation Army relating to H.R. 
7.\62\ On July 10, 2001, the Washington Post, citing the text 
of a confidential Salvation Army document, stated that the 
Salvation Army had received a ``firm commitment'' from the 
White House to issue a regulation protecting such charities 
from State and city laws and regulations against discrimination 
in employment on the basis of sexual orientation, or requiring 
domestic partner benefits.
---------------------------------------------------------------------------
    \62\ See infra note 29.
---------------------------------------------------------------------------
    The Salvation Army document states: ``We suggested the 
amendment to OMB Circular #A-102 to staff at the White House 
Office of Faith-Based and Community Initiatives as one 
potential solution.'' The document goes on to say that White 
House officials ``first want to move the charitable choice 
provisions in the legislation and use the political momentum of 
this effort to push forward religious exemptions to domestic 
partnership benefit ordinances and municipal contract clauses 
that protect against any form of sexual orientation 
discrimination.'' The document goes on to observe, ``The 
Salvation Army's role will be a surprise to many in the media'' 
and urges efforts to ``minimize the possibility of any `leak' 
to the media.''
    Subsequently, on July 12, 2001, the Washington Post 
reported that senior White House officials, including Karl 
Rove, President Bush's senior advisor, were involved in 
discussions with the Salvation Army; contrary to the Bush 
Administration's earlier position that senior officials were 
not involved.
    It is difficult to conceive of a more troubling fact 
pattern from the perspective of separation of church and state. 
We have a large religious organization--that receives more than 
$300 million in Federal funds per year--allegedly entering into 
a secret deal by which the White House agrees to use taxpayer 
funds and resources to weaken civil rights laws if the 
religious organization supports the White House's legislative 
agenda.
    Incidents such as this clearly raise the specter that 
religion may see its role as an independent voice of compassion 
in our society diminished. This was the very concern 
articulated by Rev. J. Brent Walker of the Baptist Joint 
Committee, when he stated, ``[r]eligion has historically stood 
outside of government's control serving as a constant critic of 
government. Accepting government funding creates a dependency 
on government that will have the effect of silencing the 
prophetic witness. How can a religion raise a prophet's fist 
against government when it has the other hand open for a 
handout? It simply can't do both at the same time.'' \63\
---------------------------------------------------------------------------
    \63\ Brent J. Walker, What is Charitable Choice, Baptist Joint 
Committee Information Sheet on Charitable Choice (Spring 2001) (on file 
with the House Judiciary Committee).
---------------------------------------------------------------------------
    An equally salient concern is that in the onslaught of 
lobbying for government grants by religious organizations, 
small and minority religions may be left underfunded and under 
appreciated. This of course would send a very dangerous message 
about which religions are worthy of government support and 
which are not. As Rabbi David Saperstein, the Director of the 
Religious Action Center of Reform Judaism testified: ``The 
prospect of intense competition for limited funding; the 
politicizing of church affairs to obtain funds; the impact on 
those made to feel they are outsiders when they fail to obtain 
the funds--this leads to the very kind of sectarian competition 
and divisiveness that have plagued so many other nations and 
which we have been spared because of the separation of church 
and state.'' \64\
---------------------------------------------------------------------------
    \64\ Reform Action Center of Reform Judaism, ``Rabbi Saperstein 
Testifies Before Congress in Opposition to Charitable Choice,'' Press 
Release (June 7, 2001).
---------------------------------------------------------------------------
    Early activities and statements by the Administration 
already provide cause for concern in this area. For example, 
when Stephen Goldsmith, a White House special adviser and a 
principal architect of the faith based plan, conducted a 
briefing in Augusta, Georgia in February, only ``churches'' 
were sent invitations.\65\ Neither Jewish congregations nor 
secular nonprofits were invited. Similarly, when the White 
House hosted a meeting with Muslim groups last month, Muslim 
leaders walked out after an intern from David Bonior's office 
attending the meeting with the group was mistakenly removed by 
the Secret Service.\66\
---------------------------------------------------------------------------
    \65\ OMB Watch, ``Analysis of Bush administration's Charitable 
Choice Initiatives,'' p. 4 (Apr. 23, 2001).
    \66\ Caryle Murphy, Muslim Leaders Leave White House Briefing; 
Removal of Intern Leads to Walkout, WASHINGTON POST, June 29, 2001, at 
A35.
---------------------------------------------------------------------------
    It is also noteworthy that in an interview on Face the 
Nation, when CBS correspondent Bob Schieffer asked Mr. 
Goldsmith whether the Nation of Islam, which runs successful 
inmate rehabilitation programs, would be eligible to apply for 
a grant under charitable choice, Mr. Goldsmith answered, ``I 
would say, if [the Nation of Islam] preach[es] hate, if they 
can't perform the terms of the contract, they shouldn't be 
allowed to apply.'' Obviously, the last thing we want to do is 
put the Administration in a position of deciding which faiths 
are acceptable and which are not under their charitable choice 
plan. Yet when Rep. Scott offered an amendment to insure that 
discrimination between religions was not tolerated, and that 
any funding decisions were purely merit based, it was rejected 
by the Majority.
Voucher Expansion and Discrimination
    Another serious concern with regard to the manager's 
amendment is that it provides an unprecedented new 
authorization of the use of vouchers and other indirect aid 
available for use by religious organizations. It also permits 
religious organizations to religiously discriminate in such 
voucherized programs, and to avoid the safeguards preventing 
the use of such funds for sectarian instruction, worship, or 
proselytization as well as the ``voluntary and offered'' 
separate requirement. These changes, effectuated in the fine 
print of the manager's amendment, and inserted without the 
benefit of any public hearings or discussion, constitute a 
massive expansion of the use of vouchers, and create major new 
loopholes in the bill's religious safeguards.
    The authorization of the new voucher program appears in 
proposed new subsection (l). This language was not contained in 
the original version of H.R. 7, nor has it appeared in any 
previous charitable choice law. It would grant the 
Administration the ability to unilaterally convert more than 
$47 billion in social service programs into vouchers. 
Amazingly, this wholesale conversion in the nature of these 
programs could occur without any action by Congress, or even 
any regulatory action subject to outside comment. The action 
would even include education programs, despite the fact that 
such measures have created considerable legal and policy 
controversy in other contexts. In one fell swoop, this change 
could dramatically alter the nature of the nation's efforts to 
fight hunger, homelessness, crime, juvenile delinquency, and 
job training in a manner never contemplated or considered by 
Congress. At a minimum, such a wholesale change deserves more 
consideration than comes from being added in the middle of the 
night to a manager's amendment primarily touted for its other 
changes.
    Our concerns with the new voucher program extend beyond its 
authorization. Tucked away in the manager's amendment is 
another clause which permits religious organizations 
participating in these ``voucherized'' programs to discriminate 
against beneficiaries on account of their religion. This is 
because, as noted above, subsection (h) of the Committee-
reported version of the bill deletes language from the original 
bill generally prohibiting religious discrimination against 
beneficiaries by religious organizations, and instead, merely 
states they ``shall not deny . . . admission'' on the basis of 
religion. Again, this language did not appear in the original 
version of H.R. 7 or any other charitable choice law.
    This means that religious groups could use their social 
service programs in an effort to convert non-believers to their 
faith. Given the controversy which ensued when the ``Teen 
Challenge'' group admitted in a recent congressional hearing 
that they seek to convert Jewish persons in their programs to 
make them ``completed Jews,'' we are surprised that language 
allowing such proselytization in these ``voucherized programs'' 
would be added to the manager's amendment.
    Equally objectionable is the fact that such proselytization 
could occur with Federal funds provided under the bill. This is 
because, as noted earlier, the bill's safeguards do not apply 
to ``voucherized programs.'' A careful reading of subsection 
(j) indicates that the bill's prohibitions on sectarian 
instruction, worship, or proselytization with Federal funds and 
the requirement that any religious activity be ``voluntary'' 
and ``offered separate'' only applies with programs receiving 
direct Federal funds, not indirect aid.
Constitutional Concerns
    We also continue to be concerned that the Judiciary-
reported version of the bill may be found unconstitutional. 
Contrary to the Majority's assertions, we need to do far more 
than consider whether the legislation is ``neutral,'' as 
emphasized by the plurality opinion in Mitchell v. Helms. \67\ 
The critical opinion was the concurring opinion written by 
Justice O'Connor and joined by Justice Breyer which represents 
the balance of power on the Court in terms of establishment 
clause doctrine.\68\
---------------------------------------------------------------------------
    \67\ Mitchell v. Helms, 530 US 793, 809 (2000).
    \68\ The Justices in Mitchell v. Helms, 530 US 793 (2000) joined in 
three different opinions. Justice Thomas wrote the plurality opinion, 
joined by Chief Justice Rehnquist and Justices Scalia and Kennedy. Id., 
at 801. Justice Souter, joined by Justices Stevens and Ginsburg, wrote 
a dissent. Id. at 868. Justice O'Connor, joined by Justice Breyer, 
wrote the determinative opinion in the case and the one that provides 
the most authoritative guidance on the current meaning of the 
establishment clause. Id. at 836.
---------------------------------------------------------------------------
    A reading of Justice O'Connor's concurrence makes clear 
that she specifically rejected the plurality's single-minded 
and exclusive focus on neutrality and disputed the plurality's 
contention that direct government aid to a pervasively 
sectarian institution is constitutionally acceptable: ``we have 
never held that a government-aid program passes constitutional 
muster solely because of the neutral criteria it employs as a 
basis for distributing aid . . . I also disagree with the 
plurality's conclusion that actual diversion of government aid 
to religious indoctrination is consistent with the 
Establishment Clause.'' \69\
---------------------------------------------------------------------------
    \69\ Mitchell v. Helms, 530 US 793, 840 (O'Connor, J., concurring).
---------------------------------------------------------------------------
    In Justice O'Connor's view, a statute raises sensitive 
establishment clause concerns when it involves direct funding 
of religion, as H.R. 7 clearly does: ``In terms of public 
perception, a government program of direct aid to religious 
schools based on number of students attending each school 
differs meaningfully from the government distributing aid 
directly to individual students who, in turn, decide to use the 
aid at the same religious schools . . . This Court has 
recognized special Establishment Clause dangers where the 
government makes direct money grants to sectarian 
institutions.'' \70\
---------------------------------------------------------------------------
    \70\ Id. at 842, 843. Even Justice Thomas, writing for the four 
justice plurality admitted that: ``Of course, we have seen `special 
Establishment Clause dangers', when money is given to religious schools 
or entities directly rather than . . . indirectly. But direct payments 
of money are not at issue in this case. . . .'' (citations omitted), 
530 U.S. at 818-819 (Thomas, J., plurality opinion).
---------------------------------------------------------------------------
    In cases such as this, Justice O'Connor will look at a 
range of factors, including, notably, the constitutional 
safeguards present, and the degree of entanglement between 
government and religion. In Justice O'Connor's own words, ``the 
program [should] include adequate safeguards'' \71\ and the 
funds should not ``create an excessive entanglement between 
government and religion.'' \72\
---------------------------------------------------------------------------
    \71\ Id. at 867.
    \72\ Id. at 845.
---------------------------------------------------------------------------
    Under these tests, there is a very real concern that H.R. 7 
would fail to pass constitutional muster. As previously noted, 
the bill's so-called ``safeguards'' include numerous loopholes 
and are largely left to the religious organization to enforce. 
This is in stark contrast to the safeguards included in the 
school aid program upheld in Mitchell, where the State was 
given the power to cut off aid upon any violation, and 
conducted numerous monitoring visits and random reviews of the 
religious school to insure compliance. Also, as noted above, 
significant government entanglement with religion is not only 
inevitable, it has already begun to occur. We are also gravely 
concerned about the bill's new voucher provisions. The most 
serious problem is that these provisions allow pervasively 
sectarian organizations to use Federal money for sectarian 
purposes, including attempting to convert beneficiaries. Even 
if the funding is provided indirectly, it seems likely that any 
bill allowing religious organizations to proselytize in 
federally funded programs would be suspect. Collectively, these 
infirmities raise serious constitutional problems with regard 
to H.R. 7.

  III. H.R. 7 Does not Authorize a Single Additional Dollar to Fund a 
                     Covered Social Welfare Program

    It is difficult to support legislation which purports to 
provide an enhanced ability to fight poverty when the 
legislation itself does not authorize a single dollar in 
additional funds for charitable choice programs. This fact, 
when combined with the severe cuts in the Administration's 
budget for social services will place severe constraints on the 
ultimate viability of charitable choice programs.
    It is indeed ironic that at the same time the 
Administration is touting the benefit of making the various 
programs set forth in H.R. 7 eligible for charitable choice, it 
has elected to slash the budgets of those very programs.\73\ 
For example, with regard to local crime prevention, the Bush 
budget cuts funds by $1 billion. This includes cutting funds 
for juvenile delinquency programs, such as gang-free schools 
and communities, incentive grants for local delinquency 
prevention, drug reduction program, and victims of child abuse.
---------------------------------------------------------------------------
    \73\ Staff of House Comm. On The Budget, 107th Cong., Bush Budget 
Cuts Priority Programs (April 30, 2001) (on file with House Judiciary 
Committee); Materials provided by Senate Budget Committee (on file with 
House Judiciary Committee).
---------------------------------------------------------------------------
    The Bush budget treats public housing needs--also covered 
by H.R. 7--no better, cutting funds by more than $1 billion. 
This includes the termination of the $309 million Public 
Housing Drug Elimination Grant, and cutting the Public Housing 
Capital Fund by $700 million. The Public Housing Drug 
Elimination Grant Program is used for anti-crime and anti-drug 
law enforcement and security activities in public housing. The 
Public Housing Capital Fund provides critical building repairs 
in public housing.
    Job training is cut by more than $500 million under the 
Administration's budget. This will translate into vastly 
reduced job training through the Workforce Investment Act for 
low income workers, dislocated workers, and other unemployed or 
underemployed individuals. The Older Americans Act--also 
covered by H.R. 7--which provides funds for elderly nutrition 
programs, home care, and ombudsman services for residents of 
long-term care facilities would also be cut by more than $5 
million under the Bush budget.
    We shouldn't be surprised that the Administration's budget 
treats the programs covered under H.R. 7 so uncharitably, when 
it also cuts the programs subject to previously enacted 
charitable choice laws. For example, with regard to Temporary 
Assistance for Needy Families (TANF), the subject of the 1996 
Welfare legislation, the Bush budget eliminates $319 million in 
supplemental grants as well as $2 billion in contingency fund 
grants. The Administration would also reduce the Community 
Development Block Grant program, the subject of the Community 
Services Block Grant law, by more than $500 million.

IV. H.R. 7 unjustifiably protects business entities from negligent acts 
            and unnecessarily preempts traditional State law

    Finally, we object to the liability provisions included in 
sec. 104 of the bill. First, they were included without the 
benefit of support from a single witness, or any statement of 
justification or support. The provisions were so sloppily and 
hastily pasted together, that the original bill, and the 
manager's amendment, included provisions bearing no 
relationship whatsoever to non-profits.\74\ The final version 
still contains very tenuous liability relief--for example, the 
exemption applies to the use of facilities and motor vehicles 
or aircrafts, regardless of whether a nonprofit pays for its 
use.\75\
---------------------------------------------------------------------------
    \74\ Section 104(B)(4) of H.R. 7, as introduced, and the manager's 
amendment exempted business entities from civil liability relating to 
any injury to or death of an individual occurring at a facility of the 
business entity, if the injury or death occurred during a tour of the 
facility in an area of the facility that was not otherwise accessible 
to the public.
    \75\ H.R. 7 sections 104(B)(2) and 104(B)(3), 107th Cong. (2001).
---------------------------------------------------------------------------
    We are also concerned that under the bill even if donated 
equipment injures or kills, the corporation would be absolved 
of any duty it currently owes to the charity that received the 
items and to the injured person who suffered because of the 
business's negligent act. Despite the fact that the 
corporations are in the best position to determine if the 
donated equipment is properly maintained and reasonably safe, 
this bill shifts the costs away from the corporation and onto 
the charity. If the charity is also shielded from liability, 
under State law, or if it is without sufficient financial 
resources, the injured person would have to shoulder the loss 
completely.
    To the extent there is any problem with corporate liability 
for charitable in-kind donations, we would suggest that the 
States are fully capable of passing their own laws protecting 
volunteers from personal civil liability. Moreover, by 
mandating these provisions on the States, we may invite legal 
challenges to Congressional authority to legislate in this 
area, particularly under the Supreme Court's decision in United 
States v. Lopez and its progeny.\76\
---------------------------------------------------------------------------
    \76\ 514 S.Ct. 549 (1995). In Lopez, The Court held that the Gun-
Free School Zones Act of 1990, which made illegal the knowing 
possession of a gun in a school zone, was beyond Congress' Commerce 
Clause authority. Congress acted to remedy the constitutional infirmity 
in the Gun-Free School Zones law by limiting it to firearms that 
``ha[ve] moved in or that otherwise affects interstate or foreign 
commerce.'' See 18 U.S.C. Sec. 922q.
---------------------------------------------------------------------------
    Proponents' arguments that the legislation protects State 
prerogatives because it allows the States to opt-out \77\ miss 
the mark. It is an odd formulation of federalism which grants 
all power to Congress unless the States affirmatively act to 
protect their interests. As proponents well know, it is no easy 
feat to obtain approval in a state house and senate and obtain 
the governor's signature. Moreover, many States meet on a 
biennial basis and could not even consider electing to opt-out 
for several years.
---------------------------------------------------------------------------
    \77\ Manager's amendment to H.R. 7, section 104(e), 107th Cong. 
(2001).
---------------------------------------------------------------------------
Conclusion
    We believe that the government does nothing to respond to 
America's social problems by sanctioning government-funded 
discrimination. We also do nothing to strengthen our religious 
freedoms by breaking down the separation between church and 
state.
    Rather than propose legislation which opens up even greater 
divisions in our society, as H.R. 7 does, we urge the 
Administration and the Majority to work with us in a bipartisan 
basis in expanding the role of religion in a manner which 
protects both equal protection and freedom of religion.

                                   John Conyers, Jr.
                                   Barney Frank.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Tammy Baldwin.
                                   Adam B. Schiff.
```