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89–410 PDF 2003

STRENGTHENING AMERICA’S COMMUNITIES:

EXAMINING THE IMPACT OF FAITH-BASED

HOUSING PARTNERSHIPS

HEARINGS

BEFORE THE

SUBCOMMITTEE ON 

HOUSING AND COMMUNITY OPPORTUNITY

OF THE

COMMITTEE ON FINANCIAL SERVICES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

MARCH 25, APRIL 28, 2003

Printed for the use of the Committee on Financial Services

Serial No. 108–14

(

(II)

HOUSE COMMITTEE ON FINANCIAL SERVICES 

MICHAEL G. OXLEY, Ohio, Chairman

JAMES A. LEACH, Iowa 

DOUG BEREUTER, Nebraska 

RICHARD H. BAKER, Louisiana 

SPENCER BACHUS, Alabama 

MICHAEL N. CASTLE, Delaware 

PETER T. KING, New York 

EDWARD R. ROYCE, California 

FRANK D. LUCAS, Oklahoma 

ROBERT W. NEY, Ohio 

SUE W. KELLY, New York, Vice Chairman 

RON PAUL, Texas 

PAUL E. GILLMOR, Ohio 

JIM RYUN, Kansas 

STEVEN C. LATOURETTE, Ohio 

DONALD A. MANZULLO, Illinois 

WALTER B. JONES, JR., North Carolina 

DOUG OSE, California 

JUDY BIGGERT, Illinois 

MARK GREEN, Wisconsin 

PATRICK J. TOOMEY, Pennsylvania 

CHRISTOPHER SHAYS, Connecticut 

JOHN B. SHADEGG, Arizona 

VITO FOSELLA, New York 

GARY G. MILLER, California 

MELISSA A. HART, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

PATRICK J. TIBERI, Ohio 

MARK R. KENNEDY, Minnesota 

TOM FEENEY, Florida 

JEB HENSARLING, Texas 

SCOTT GARRETT, New Jersey 

TIM MURPHY, Pennsylvania 

GINNY BROWN-WAITE, Florida 

J. GRESHAM BARRETT, South Carolina 

KATHERINE HARRIS, Florida 

RICK RENZI, Arizona 

BARNEY FRANK, Massachusetts 

PAUL E. KANJORSKI, Pennsylvania 

MAXINE WATERS, California 

CAROLYN B. MALONEY, New York 

LUIS V. GUTIERREZ, Illinois 

NYDIA M. VELA ́ ZQUEZ, New York 

MELVIN L. WATT, North Carolina 

GARY L. ACKERMAN, New York 

DARLENE HOOLEY, Oregon 

JULIA CARSON, Indiana 

BRAD SHERMAN, California 

GREGORY W. MEEKS, New York 

BARBARA LEE, California 

JAY INSLEE, Washington 

DENNIS MOORE, Kansas 

CHARLES A. GONZALEZ, Texas 

MICHAEL E. CAPUANO, Massachusetts 

HAROLD E. FORD, JR., Tennessee 

RUBE ́ N HINOJOSA, Texas 

KEN LUCAS, Kentucky 

JOSEPH CROWLEY, New York 

WM. LACY CLAY, Missouri 

STEVE ISRAEL, New York 

MIKE ROSS, Arkansas 

CAROLYN MCCARTHY, New York 

JOE BACA, California 

JIM MATHESON, Utah 

STEPHEN F. LYNCH, Massachusetts 

BRAD MILLER, North Carolina 

RAHM EMANUEL, Illinois 

DAVID SCOTT, Georgia 

ARTUR DAVIS, Alabama 

BERNARD SANDERS, Vermont

Robert U. Foster, III, Staff Director 

(III)

SUBCOMMITTEE ON HOUSING AND COMMUNITY OPPORTUNITY

ROBERT W. NEY, Ohio, Chairman

MARK GREEN, Wisconsin, Vice Chairman 

DOUG BEREUTER, Nebraska 

RICHARD H. BAKER, Louisiana 

PETER T. KING, New York 

WALTER B. JONES, Jr., North Carolina 

DOUG OSE, California 

PATRICK J. TOOMEY, Pennsylvania 

CHRISTOPHER SHAYS, Connecticut 

GARY G. MILLER, California 

MELISSA A. HART, Pennsylvania 

PATRICK J. TIBERI, Ohio 

KATHERINE HARRIS, Florida 

RICK RENZI, Arizona 

MAXINE WATERS, California 

NYDIA M. VELA ́ ZQUEZ, New York 

JULIA CARSON, Indiana 

BARBARA LEE, California 

MICHAEL E. CAPUANO, Massachusetts 

BERNARD SANDERS, Vermont 

MELVIN L. WATT, North Carolina 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

BRAD MILLER, North Carolina 

DAVID SCOTT, Georgia 

ARTUR DAVIS, Alabama 

(V)

C O N T E N T S 

Page 

Hearings held on: 

March 25, 2003 ................................................................................................. 1

April 28, 2003 ................................................................................................... 35

Appendixes: 

March 25, 2003 ................................................................................................. 59

April 28, 2003 ................................................................................................... 125

WITNESSES 

TUESDAY, MARCH 25, 2003

Anthony, Rev. Wendell, Pastor, Fellowship Chapel, Detroit, Michigan .............. 14

Caldwell, Rev. Kirbyjon, Pastor, Windsor Village United Methodist Church, 

Houston, Texas ..................................................................................................... 15

Daniels, Bishop Sedgwick, Pastor, Holy Redeemer Institutional Church of 

God in Christ, Milwaukee, Wisconsin ................................................................ 18

Fairbanks, Dr. E. LeBron, President, Mount Vernon Nazarene University, 

Mount Vernon, Ohio ............................................................................................ 12

Feingold, Ellen, President, Jewish Community Housing for the Elderly, also 

appearing on behalf of the National Association of Homes and Services 

for the Aging and the Association of Jewish Aging Services, Boston, Massachusetts ................................................................................................................. 16

Kmiec, Douglas W., J.D., Dean, Catholic University of America School of 

Law, Washington, DC .......................................................................................... 21

Walker, Rev. J. Brent, Executive Director, Baptist Joint Committee, Washington, DC ............................................................................................................. 19

APPENDIX 

Prepared statements: 

Oxley, Hon. Michael G. .................................................................................... 60

Anthony, Rev. Wendell ..................................................................................... 61

Caldwell, Rev. Kirbyjon ................................................................................... 64

Daniels, Bishop Sedgwick ................................................................................ 68

Kmiec, Douglas W. ........................................................................................... 70

Fairbanks, Dr. E. LeBron ................................................................................ 75

Feingold, Ellen .................................................................................................. 79

Walker, Rev. J. Brent ....................................................................................... 86

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Barney, Hon. Frank: 

Americans United for Separation of Church and State, prepared statement ............................................................................................................... 98

‘‘Providing shelter’’ The Observer, March 30, 2003 ........................................ 106

American Civil Liberties Union, prepared statement ........................................... 109

WITNESSES 

MONDAY, APRIL 28, 2003

Weicher, John, Assistant Secretary, Housing, Federal Housing Commissioner, 

U.S. Department of Housing and Urban Development, accompanied by 

Ryan Streeter, Director, Center for Faith-Based and Community Initiatives 

and Frank Jimenez, Chief of Staff ...................................................................... 39

Page

VI

APPENDIX 

Prepared statements: 

Weicher, John ................................................................................................... 126

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Frank, Hon. Barney: 

National Community Development Association, prepared statement ......... 131

(1)

STRENGTHENING AMERICA’S COMMUNITIES: 

EXAMINING THE IMPACT OF FAITH 

BASED HOUSING PARTNERSHIPS 

Tuesday, March 25, 2003

U.S. HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON HOUSING AND COMMUNITY

OPPORTUNITY, 

COMMITTEE ON FINANCIAL SERVICES, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 3:04 p.m., in Room 

2128, Rayburn House Office Building, Hon. Robert Ney [chairman 

of the subcommittee] presiding. 

Present: Representatives Ney, Green, Waters, Watt, Clay, Miller, 

Scott, Davis, and Frank (ex officio). 

Mr. NEY. [Presiding.] Good afternoon. The Subcommittee on 

Housing and Community Opportunity will come to order. I want to 

welcome members of the committee that are here—our Ranking 

Member Ms. Waters, Mr. Frank and Mr. Green. 

Today’s hearing is about the Department of Housing and Urban 

Development’s January 6, 2003 proposed regulation that intended 

to provide more opportunities for faith-based organizations to assist 

in meeting the needs of the poor and distressed neighborhoods. 

Today, there are hundreds of faith-based organizations helping the 

homeless, providing decent affordable housing, and critical services 

for our nation’s homeless seniors and disabled. 

As President Bush said when he announced his faith-based initiative, government has a solemn responsibility to help meet the 

needs of poor Americans and distressed neighborhoods, but it does 

not have a monopoly on compassion. In 1996, Congress enacted 

charitable choice legislation that sought to expand the involvement 

of religious organizations in social service programs. In January, 

2001, President Bush issued two executive orders to create a White 

House Office of Faith-Based and Community Initiatives, and five 

centers for Faith-Based and Community Initiatives in five Federal 

agencies. 

Most recently, on December 12, 2002, the Administration announced several additional administrative measures to enhance its 

faith-based initiative administratively. In a limited way, faithbased organizations currently are allowed to participate in various 

Federal programs. However, the current regulations present a 

roadblock to full participation by faith-based organizations, hindering their ability to help those in need. The House-proposed rule 

would remove some of the barriers faith-based organizations now 

2

encounter when trying to participate in helping provide important 

programs. The new HUD regulations would modify requirements 

for eight specific programs: housing opportunities for people with 

AIDS, emergency shelters grants, shelter-plus care, the supportive 

housing program, HOPE III, HOME, and CDBG. 

I want to point out that Ohio has been among the states that 

have led the way in supporting charitable choice programs. In 

2002, the Bliss Institute at the University of Akron and the Hudson Institute in Virginia jointly prepared a survey of governmentfunded faith-based programs in 15 states. The report notes that 

Ohio, California, Michigan and Texas lead the way in terms of dollars invested, while Ohio, Michigan and Wisconsin hold the most 

contracts. 

The committee has invited a broad cross-section of representatives from faith-based organizations who have experience providing 

social services. I think that everyone here shares the intent of 

HUD in crafting this regulation, which is ensuring the delivery of 

Federally funded services to very low and low-income people. While 

we all may agree on that goal, there are certainly different views 

on how to achieve it. 

Our witnesses today are here to share their experiences providing social services, as well as their views on whether or not the 

proposed rule will make the Federal funds more accessible to organizations such as theirs, and if not, what can be done to improve 

the proposal. I look forward to hearing from our witnesses. I want 

to take a moment to recognize that because of the diversity of faithbased organizations that flourish under our Constitution’s protection, we were unable to accommodate every group that wanted to 

come and testify today. 

Without objection, members will be allowed to submit their written statements for the record. Hearing no objection, they will be 

submitted for the record. 

I yield to our ranking member, Ms. Waters, for her opening 

statement. 

Ms. WATERS. Thank you very much, Chairman Ney. 

I would like to thank you and, of course, our own ranking member, Congressman Barney Frank, for agreeing to have this very 

special and important hearing. I would like to also thank all of our 

witnesses who have come today. I know that most of them are extremely busy and the fact that they have given up their time to be 

with us is certainly appreciated by me and other members of this 

committee. 

This hearing is extremely important for any number of reasons. 

The HUD, Department of Housing and Urban Development, is proposing new regulations to deal with the President’s executive order 

relative to his faith-based initiative. The President has come up 

with a faith-based initiative because the President obviously believes that somehow our religious organizations are able to provide 

services to the communities that need it. What is interesting about 

the President’s initiative is it does nothing to allow faith-based organizations to provide services to the community other than allow 

them to discriminate. Faith-based organizations can already, under 

501(c)(3) operations where you separate the money that comes from 

the Federal government into the 501(c)(3) corporation, rather than 

3

mixing the money in the collection plate. They can already under 

501(c)(3)s provide any services that the Federal government funds, 

that they allow to go to organizations that provide these kinds of 

services. 

Some of us are extremely concerned because the President’s executive order absolutely violates Title VII and it flies in the face of 

President Johnson’s executive order, which further supported Title 

VII in saying that if you receive Federal money, if you receive government money, you may not discriminate. This initiative by the 

President suggests that somehow religious organizations should be 

able to pick and choose who they hire. If they do not like somebody’s skin color, if they do not like their gender, if they do not like 

the other organizations they are associated with, if they do not like 

the communities they live in—whatever—they would be allowed to 

undermine all of the civil rights work that many of our people have 

died for, to make sure that we do not have discrimination and the 

Federal government resources. 

Further, the President has put no new money out there for this 

initiative. The Federal government would open up even further, 

even though it can be done now, the opportunity for our faith-based 

organizations to compete for CDBG monies. That is, the money 

that goes from the Federal government to the cities, the Community Development Block Grant monies that area already being used 

by many of the community organizations throughout the country. 

Faith-based organizations would be in competition with these organizations, with the ability to discriminate. Faith-based organizations can already apply for CDBG monies. I know because I assist 

faith-based organizations in applying for money to do everything 

from build senior citizens’ housing to have child daycare programs. 

And so this would simply do two things or three: number one, 

open up the ability to discriminate, which some of us are adamantly opposed to, we have worked too hard, we have fought too 

long to open up the ability to discriminate; and it would allow for 

a kind of proselytizing where you could have all kinds of religious 

symbols and relics et cetera, et cetera, and perhaps even discriminate against one religious organization against another. 

Unanimous consent for one additional minute. 

I noted in my research on this that I think it was Pat Robertson 

who said, he did not like the faith-based initiative because he did 

not think some religious organizations were Christian enough and 

they did not deserve to be funded. We have another ex-member of 

Congress, Mr. Bob Barr, who pointed out a religious organization 

that he did not like. He said they should not be allowed on military 

bases. So you open up the whole discussion of what is and what 

is not a good religious organization; what is an acceptable religious 

organization. Is it all right for the AMEs as opposed to the 

Pentecostals? Do they worship Christ the way we want them to? 

I do not think we want that kind of government involvement in religion. 

Finally, let me say this. There are some religious organizations 

now that are under investigation. Even with the walls that we 

have built up requiring that the 501(c)(3)s be used in order to operate programs, they have gotten into trouble because they mixed the 

money from the 501(c)(3) with the collection plate money. I daresay 

4

to you that many ministers who do not have the infrastructure, 

they do not have the grantsmanship capability, they do not have 

the assistance to go after this money and to implement these programs. They are opening themselves up for indictment by the very 

people who are telling you that they want you to get into this business in a certain kind of way. I would submit to you that the government needs to keep its hands out of the church, and the government needs to make sure that there is a wall that separates the 

501(c)(3) from the collection plate. Every minister who cares about 

their ability to do what they want to do in practicing their religion 

should be opposed to this faith-based initiative. 

With that, I yield back the balance of my time, and I thank you, 

Mr. Chairman. 

Mr. NEY. The chair recognizes the gentleman from Wisconsin, 

Mr. Green. 

Mr. GREEN. Thank you, Mr. Chairman. I appreciate your leadership in holding this hearing. I have, as you might gather, a very 

different approach than the last speaker. 

I think we need to recognize that government and faith-based organizations share many of the same objectives. At their best, all 

strive to help the less fortunate, both work to strengthen our communities, and both obviously try to make a better future for families. I have always supported the idea of returning to the charitable 

ideas that built America—local organizations, staffed by local people working on the ground to serve and solve local problems. 

We in government can do everything in our power to foster a 

healthy environment for community renewal. We can pass laws. 

We can implement all kinds of programs and services. We can and 

we should plow more funds into these areas. In the short term, our 

efforts will do some good, but there can be no real, long-lasting 

community renewal unless we succeed in reviving the spirit of individuals, families and neighborhoods. That is something that government cannot do. That takes the hard work of individuals and 

local organizations like the faith-based groups that are represented 

here today. 

Each year in America, we spend billions of dollars providing social services. It just makes sense that we find the most effective 

way to deliver those services to the folks who really need them, 

whether that is through government or whether on some occasions 

that may be through private groups. Government should not and 

cannot retreat from its critical poverty relief mission, but at least 

in some cases, local faith-based organizations can do that mission 

more effectively than the Federal government, lift more lives and 

save more streets. 

At one time, faith-based organizations were at the core of efforts 

to improve our communities. They were very effective and have a 

proven record of success. Gradually, they have been pushed aside 

by big government, which has all too often proven to be a far less 

helpful alternative. The pendulum is just now beginning to swing 

back, as charitable choice is implemented. Under the leadership of 

then-Governor Tommy G. Thompson of Wisconsin, Wisconsin was 

one of the leaders in implementing charitable choice initiatives. 

HUD’s proposal follows President Bush’s executive order to give 

faith-based organizations more opportunities to provide these servVerDate 0ct 09 2002 09:52 Oct 09, 2003 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 C:\DOCS\89410.TXT MICAH PsN: MICAHW
5

ices for the sake of the people they help and for the future of our 

communities. 

I look forward to hearing from today’s witnesses about their experiences in the community and with government, and how we can 

ensure their continued participation in providing services to those 

who are most in need. 

Finally, I am particularly honored to have Bishop Daniels of Milwaukee’s Holy Redeemer Church of God in Christ here today to describe the profoundly beneficial impact his congregation and its affiliated entities have had on the largest city in my home State of 

Wisconsin. I have had the pleasure of meeting Bishop Daniels, 

most recently last July when President Bush visited the Holy Redeemer congregation to see first-hand what great work they are 

doing. Holy Redeemer serves the Milwaukee community through a 

network of social services, from housing to community development, foster care, shelters, and food pantries, to workforce readiness training, counseling, and even providing health services. 

Holy Redeemer has a history of serving the community with a 

level of dedication that I believe makes them truly unique. Bishop 

Daniels, it is a pleasure to have you before this subcommittee. I am 

proud of what you are doing and I look forward to your testimony. 

Mr. Chairman, I yield back. 

Mr. NEY. The chair recognizes the gentleman from Massachusetts for three minutes, Mr. Frank. 

Mr. FRANK. Thank you, Mr. Chairman. 

First, I want to express my disappointment that we have no representative of HUD here today. We had assumed that the majority 

would have invited the Administration, as in my experience it always has on an oversight hearing over a particular Administration’s program. In fact, the gentleman from California and I wrote 

a letter to the Secretary because we had assumed he had declined 

to send a representative. He told us he had not been invited. I 

should note that we have remedied that lack of, I think, courtesy 

to the department involved by exercising our right under rule 11 

of the House. So all the members on the Democratic side have exercised our right to ask for secretarial hearings, which is a matter 

of right, and we will have a HUD representative. I think it is a 

grave error not to have HUD explain some of these issues. As I 

said, I am surprised that the majority assume, frankly, that it 

would be a good idea not to have HUD here. 

I am particularly concerned about a couple of aspects of this. 

One, this program is now going to be available under the Community Development Block Grant Program. That means every governing body of every community of 50,000 or more in America will 

be given the Federal funds to give to whatever religion they wish. 

I want to know how HUD is going to be supervising that; how they 

will supervise, for example, the rule that says you can build a 

house of worship with a mix of private and public funds, but you 

cannot worship in the public funds part. I am just wondering how 

we are prepared to police that, not that I think it is a good idea 

to get into a situation where you have to do that throughout the 

country, through CDBG. 

I also want to reinforce the point that was made so well by the 

ranking member, the gentlewoman from California. Beginning in 

6

1954 with the case of Brown v. Board of Education, one of the great 

things about this Federal government has been its dedication to 

abolishing discrimination based on race, based on religion, based on 

gender, based on age, based on handicaps. There have been court 

opinions. There have been statutes. There have been regulations. 

There have been executive orders. The President’s proposal appears 

to me to be a turning back of that clock. It sanctions discrimination. Indeed, we have previously held that while you might have 

a right to discriminate purely privately, the receipt of Federal 

funds gives you an even greater obligation not to discriminate. This 

proposal turns that on its head. People who receive Federal funds 

as we have interpreted this, and it has not been refuted, religious 

groups who receive Federal funds for secular purposes will be allowed to discriminate on religious grounds. That seems to me a terrible retreat from the principle of non-discrimination to which we 

have been committed. 

Indeed, the Federal funds, instead of giving you an added burden 

not to discriminate, become a license to discriminate. I know there 

are people who say, well, you should never burden people. I am reminded of the great words of the gentlewoman from California’s 

distinguished predecessor, Mr. Gus Hawkins, who said when we reenacted a bill that the Supreme Court had narrowed, we said if you 

take Federal funds, you cannot discriminate, and people complained about interference. If you dip your hands in the Federal 

till, do not complain when a little democracy rubs off on your fingers. 

Now, what we are being told is you can dip your hands in the 

Federal till, and you come away immunized from the responsibility 

not to discriminate. I would like to ask particularly some of the 

representatives of the religious groups because—and I will finish in 

one minute, Mr. Chairman—as the gentlewoman from California 

quite correctly pointed out, there is nothing in the law now properly interpreted which says that religious groups cannot get the 

money. The point is that they have to abide by the rules everybody 

else abides by. Apparently, there are some religious groups that 

have said, and I have heard this from members in this Congress, 

we cannot take the money to provide homeless shelters or drug 

treatment programs or soup kitchens or other important social purposes unless we can hire only our own people. The notion that 

there is something wrong about religious people joining in non-religious activities with people of other religions is profoundly disturbing to me. I would think the world would have had too much 

of that, too much of the notion of religious separatism. 

So I really need to have answered for me what is it about people 

of other religions that makes people want to discriminate against 

them in hiring for purely secular purposes? 

With that, Mr. Chairman, I look forward to the hearing, and I 

would note again that we have delivered the letter, and I look forward to our having—and I am sorry, apparently there was a misunderstanding—but we will have a second day of hearings under 

the rule in which we will get a representative from HUD because 

there are some important questions to be answered. 

Mr. NEY. The gentleman from Georgia, Mr. Scott? 

7

Mr. SCOTT. Thank you very much, Chairman Ney and Ranking 

Member Waters and Ranking Member Frank. I want to thank you 

for holding this hearing today regarding HUD’s proposed rule on 

faith-based organizations. 

I also want to thank the panel of witnesses today for coming before us and giving your important testimony. I look forward to 

hearing from faith-based organizations about their experiences in 

working with governmental agencies to address community needs. 

I believe that we should look to find creative ways to help more individuals in need in our community. And I believe that we have got 

to also be very concerned about keeping our constitutional protections against discrimination. Therein lies the rub. Where is the balance and how can we help smaller faith-based groups participate 

in HUD programs? 

I come from an area in this country that—a district that is 

urban, suburban, rural. I know, as many of my colleagues do, we 

run for office every other year, and we know the pivotal role that 

churches play in our communities. And certainly in many, many 

communities, but perhaps nowhere more significantly a role the 

church plays than in those African American communities, and 

many lower-income communities where the church is the central 

entity in that community, around which culture and educational, 

social development, community development takes place. 

So on one level the church is very attractive as a means, as a 

vehicle to do a tremendous amount of good. I have a number of 

ministers who have reached out to me and say, ‘‘I want to participate in this faith-based initiative; my church can qualify here; I 

want to do some things; I want to help drug addiction; I want to 

improve the community; I want to build a community center; I 

want to do these things—can you help me get some of that faithbased initiatives grants and money, and how do we go about this?’’ 

But yet, the nagging question comes back to me of this balance. 

There have been some very disturbing questions raised by our 

ranking member, Ms. Maxine Waters, and certainly our ranking 

member, Mr. Frank of Massachusetts. We have got the find answers to those questions. It certainly disturbs me that HUD saw 

fit not to have a representative come here. 

Mr. NEY. The time of the gentleman has expired. 

Mr. SCOTT. May I just wrap up with one final point, please? 

Mr. NEY. The gentleman may. 

Mr. SCOTT. Thank you so much. 

I think governing those answers have got to be this big, big issue 

of how do we deal effectively with the separation of church and 

state. Having been one who has fought that battle to the Supreme 

Court, there are three legs upon which that separation rests, 

around which pivots, hopefully, this discussion, for it to be meaningful. One leg is that it must be religious-neutral. What we do 

must neither advance a religious cause, nor restrain it. The other 

is secular—that there be a secular purpose; and thirdly, that there 

is no religious entanglement. 

I am looking for answers to questions today so that I can take 

back to my constituency and make the right decision, and I look 

forward to receiving those answers. 

Thank you, Mr. Chairman, for expanding my time. 

8

Mr. NEY. The time of the gentleman has expired. 

The gentleman, Mr. Watt, from North Carolina? 

Mr. WATT. Thank you, Mr. Chairman. 

I appreciate the chairman convening this hearing. Like Mr. 

Frank, I am disappointed that we do not have a representative 

here from HUD to answer some of the difficult questions that are 

being raised. I want to thank all of these witnesses for being here, 

but I doubt that they are going to be able to address the concerns 

that we have about it, because I think uniformly they are interested in the same thing that we are interested in, which is how do 

you get services into communities and do it in an effective way that 

gets results. 

I heard my wife say a couple of days ago to somebody that she 

was giving up aggravation and stress for Lent. So I am trying to 

make sure that I do not get aggravated and stressed about this 

issue because the truth is, I know that religious institutions, 

churches have been providing services in my community and our 

communities for years and years and years before this President 

ever came along talking about some kind of faith-based initiative. 

The only difference I can discern is that as soon as he started talking about the faith-based initiative and showing up in some of the 

churches in our communities, a bunch of my ministers starting lining up at the door saying to me, ‘‘I want some of that faith-based 

money.’’ They were surprised when I told them that at the same 

time the President was announcing his faith-based initiative, he 

was actually cutting many of the programs that they had been accessing to provide housing to our communities and social services 

to our communities, and after school programs to our communities, 

and that there was no such thing as a faith-based fund. So I am 

not sure exactly what the fuss was all about. 

So you should know first of all that I have concerns about this 

because the total amount of funds that are available to do this stuff 

is being cut by the President, at the same time he is talking about 

having some faith-based initiative. He is going to need a bunch of 

help from churches and other institutions to get the same amount 

of services because you have less money out there to do it with. 

Second, I think this is going to open churches up. 

Mr. NEY. The time of the gentleman has expired. Would you like 

to wrap up? 

Mr. WATT. No, I think I will just—I am going to follow my wife’s 

entreaty. I am going to give up this aggravation and stress for 

Lent. I mean, you know, we have made the point. 

Mr. FRANK. Mr. Chairman, unanimous consent that as a great 

admirer of Mrs. Watt, could I ask that this part of the record be 

sent to her? 

Mr. NEY. Absolutely. 

[Laughter.] 

I would also note if we would like to give up aggravation and 

stress for Lent, we will recess for a month. That would probably 

help the country, too. 

Mr. WATT. I do not think they are going to let me do that, but 

if you want to make that motion, I will second it. 

[Laughter.] 

Mr. NEY. With that, the gentleman from Alabama, Mr. Davis? 

9

Mr. DAVIS. Thank you, Mr. Chairman. 

Let me thank all of you for coming today. At the risk of echoing 

some of what has been said, I want to pause for a minute on the 

point my friend from North Carolina just made. If you look at a 

lot of the programs that you all are trying to bring within the purview of faith-based organizations, they have an interesting characteristic in common. Almost every single one of them is under the 

President’s budget axe right now. I am struck by that. I am struck 

by the Administration’s withdrawing with one hand what it extends with the other hand. I would I suppose issue this invitation 

to all of you. The same passion and zeal that you bring to the cause 

of including faith-based organizations in various government programs, I hope that you will take that same passion down to 1600 

Pennsylvania Avenue or to whatever is the street of HUD, to let 

them know that these programs are vitally important regardless of 

whether faith-based organizations are allowed to participate or not. 

I compliment you for recognizing something that I do think is 

very important, that there is a moral dimension to the social commitment and the social fabric we have in this country. I happen to 

come from the third poorest congressional district in America, and 

I talk a great deal about religion and faith, but I do it in this sense. 

I do it in the sense that when Matthew says as you do unto the 

least of these, you do it unto me. That is the sense that ought to 

animate, frankly, a lot more of our political debate. To the extent 

that all of you recognize that, and I think that all of you do, I hope 

that is the message that you take down the street, that as you do 

unto the least of these, you do it unto me. 

I want to make a larger point. As someone who was born in 

Montgomery, Alabama, the home of the Montgomery bus boycott, 

which was a classic instance of faith firing a movement in this 

country, I have this old-fashioned belief, frankly, that churches do 

very well when they are independent, and that churches do very 

well when they do not have to come hat in hand to the Federal government seeking anything. When Martin Luther King was standing in the well of that church in Montgomery, Alabama in 1954, 

he could not pick up the phone and call Dwight Eisenhower’s Administration. I happen to think that in some ways he was the better for that, and that his cause was the better for that. 

So as we talk about weakening even symbolically the wall between church and state, I think we ought to recognize this. Churches get their moral firepower in some ways from their sense of independence and from their sense that their cause does not require 

the Federal government’s permission or the Federal government’s 

largesse. 

I would make just one last point. I am deeply concerned that the 

whole notion of faith-based access has taken on an air of political 

patronage. I cannot tell you how many preachers in my community 

endorse certain politicians because they thought they would get the 

faith-based hook-up. There is something wrong with that. There is 

something wrong with political patronage having a religious cloak 

around it. And there is something wrong with men of faith and 

women of faith feeling that they have to meet some informal political litmus test. That is an inevitable cost of this erosion of the 

10

wall. It is an inevitable cost of what this Administration is doing 

when it comes to weakening that wall. 

I yield back. I thank you, Mr. Chairman, for extending my time. 

Mr. NEY. Mr. Miller of North Carolina. 

Mr. MILLER. Thank you. I will not use my entire time. 

Both my maternal grandmother and my maternal grandfather 

had died by the time my mother was age four. She was raised in 

a Baptist orphanage in Thomasville, North Carolina. I understand 

very well the great works that we do when we act on faith, when 

we do truly love our neighbors as ourselves. But I do share many 

of the concerns that other members of the committee have raised 

about these proposed rules, that there is no reason that when religious groups are receiving Federal funds that they should not be 

held to the same rules as everyone else. 

Mr. NEY. I thank the gentleman, and I want to welcome all the 

witnesses to Washington, D.C., the U.S. Capital. Thank you in advance for your testimony that will be so important. 

I would like to start with the introduction of Dr. E. LeBron Fairbanks, President of Mount Vernon Nazarene University, Mount 

Vernon, Ohio, which happens to be in Knox County in the 18th district in Ohio, of which I am from. I was at the university just this 

past week and met a lot of good people up there. It is a wonderful 

university. They were preparing, in fact, the students to go do a lot 

of charitable work. Some headed out to New York and other parts 

of the United States. I just really want to give our warm welcome 

to Dr. Fairbanks today. And for the introduction of the next witness, I will yield to our ranking member, Ms. Waters. 

Ms. WATERS. Thank you very much, Mr. Chairman. I would certainly like to introduce my good friend, Reverend Wendell Anthony, 

who is the pastor of Fellowship Chapel, Detroit, Michigan. But before I do that, I am not introducing, but I certainly want to welcome Reverend Kirbyjon Caldwell, pastor of the Windsor Village 

United Methodist Church in Houston, Texas. He is a friend. He is 

a friend of my husband’s, and I am welcome in his church. While 

we may disagree philosophically and politically on some things, I 

want you to know you are welcome, and indeed I appreciate your 

friendship. 

The introduction that I am making today is of Reverend Wendell 

Anthony, an extraordinary minister. He is a native of St. Louis, 

Missouri. He was educated in the Detroit public school system from 

elementary through high school. He graduated from Wayne State 

University with a BA in political science, and Marygrove College 

with an MA in pastoral ministry. He also attended the University 

of Detroit for advanced study and Black theology. Reverend Anthony is a certified social worker with the state of Michigan. 

I would like to just share with you that he is the current President of the Detroit branch of the NAACP, the largest branch in the 

country, with a current membership of more than 45,000 persons. 

He is a single father with two daughters, and he has received so 

many rewards and so much recognition for his work. I have been 

to his church on many occasions. He is the member of a lot of 

boards and councils inside the city of Detroit, including New Detroit, Incorporated; Michigan Coalition of Human Rights; and the 

Minority State Health Policy Advisory Council. I am also blessed 

11

to be invited each year to the NAACP banquet where he has about 

10,000 paying individuals in one room, and four head tables of different colors around the auditorium. It is the most amazing thing 

that you would see. 

Lastly, let me just say this. He is responsible for a lot of ministries and programs, but I happened to be at his church when he 

started and organized the Rwanda relief effort, and with the Detroit branch of the NAACP, raised nearly $1 million in monies for 

transport of victuals, food, clothing, medical supplies and aid to 

Rwanda, Goma and Zaire. This an extraordinary man whose ministry has touched so many lives in so many ways. He is operating 

out of his church a number of programs that I saw listed here that 

I cannot put my finger on at this time, but I welcome him and I 

want you to know that we are particularly advantaged by his presence here today. 

Thank you very much for being with us, Dr. Wendell Anthony. 

Mr. NEY. I want to thank the gentlelady. Also, I was so caught 

up in the great job that Dr. Fairbanks does up there with the staff 

and the students, I did fail to mention that he also has been associated with Nazarene education programs in Switzerland, the Philippines and Ohio since 1978, and he serves as a Presidential mentor in the Executive Leadership Institute of the Council for Christian Colleges and Universities. 

I would like at this time to introduce Reverend Kirbyjon 

Caldwell, pastor of Windsor Village United Methodist Church. That 

is in Houston, Texas. He is the senior pastor of the Windsor Village 

United Methodist Church. Over the past 20 years, Pastor Caldwell 

has grown the Windsor congregation from 25 members to the largest United Methodist Church in the nation. Reverend Caldwell attributes the evolution of Windsor Village to his belief that the 

church must embrace theology, identify societal problems, and deliver solutions holistically. I want to welcome the witness. 

We will yield to the gentleman from Massachusetts to introduce 

the next witness. 

Mr. FRANK. Thank you, Mr. Chairman. 

Our next witness is no stranger to these deliberations. Her name 

is Ellen Feingold. She is from Newton, Massachusetts and she is 

a very experienced individual, both in the field of civil rights and 

is a leader of a faith-based organization that has been very wellfunded by the Federal government, although not as well-funded as 

she would like, but there is a lot of that going around. But Ms. 

Feingold, who has a very distinguished career, was during the 

Carter Administration director of civil rights in the Department of 

Transportation, so she has a particular expertise in the discrimination area. She was the co-chair of the commission we recently had 

appointed by a bipartisan congressional effort, on senior housing. 

And most relevantly today, she runs Jewish Community Housing 

for the Elderly. It has the word ‘‘Jewish’’ in it, and it has never 

been denied any money for that reason. It is an organization set 

up by the Jewish community in greater Boston to deal with housing problems. She administers a large number of units. It has continued to be called the Jewish Community Housing for the Elderly. 

It does not discriminate, but it’s very much a faith-based organization. Even more, as she will note, she represents the association of 

12

housing groups, all of which are faith-based, and none of which 

have, she tells us, suffered any discrimination. So she brings a 

multiple of important perspectives to this hearing. 

Mr. NEY. I want to thank the gentleman, and yield to Mr. Green 

for the introduction of the next witness. 

Mr. GREEN. Thank you, Mr. Chairman. 

As I made reference to in my opening remarks, I am very proud 

to have here today Bishop Sedgwick Daniels. He is the pastor of 

the Holy Redeemer Church of God in Christ in Milwaukee, Wisconsin. Since 1986, Holy Redeemer has served the Milwaukee community not just as a place of worship, but as a true multi-faceted 

community resource. The services provided by Holy Redeemer include education, housing and social services. It is a true treasure 

in our community, and I welcome him here with the subcommittee. 

Mr. NEY. The next witness is the Reverend J. Brent Walker, who 

is the executive director of the Baptist Joint Committee in Washington, D.C. Reverend Walker served as the general counsel for the 

committee for 10 years before becoming its fifth executive director 

in more than 65 years. Reverend Walker is an ordained minister 

and an adjunct professor at Georgetown University Law Center. 

Welcome. 

The last witness is Douglas Kmiec. He is the dean of the school 

of law at Catholic University of America in Washington, D.C. Dean 

Kmiec also taught at Notre Dame and Pepperdine University. The 

dean served as principal deputy and assistant attorney general, office of legal counsel, in the Department of Justice from 1985 to 

1989. He also received the distinguished service award from the 

Department of Housing and Urban Development in 1983. 

I want to welcome all the witnesses. Without objection, your 

written statements will be made part of the record. You will each 

be recognized for a five-minute summary of your testimony. I would 

also note and I would apologize, I do have a conflict and Mr. Green, 

the vice chairman, will be chairing the committee, but it is a very 

important step you are taking in being here today. 

Dr. Fairbanks? 

STATEMENT OF E. LEBRON FAIRBANKS, PRESIDENT, MOUNT 

VERNON NAZARENE UNIVERSITY, MOUNT VERNON, OHIO 

Mr. FAIRBANKS. Mr. Chairman and committee members, greetings. 

Mount Vernon Nazarene University is located on a beautiful 401-

acre campus in Mount Vernon, Ohio, a city of 15,000 people located 

approximately 50 miles northeast of Columbus. The university was 

founded in 1968 on property purchased by community leaders and 

given to the new faith-based institution. The strong town-gown 

partnership is even more powerful and dynamic today. Enrollment 

this year in our numerous academic programs exceeds 2,300 students, a significant increase from the 191 students in the founding 

class. Consistent with our motto, ‘‘to seek to learn is to seek to 

serve.’’ Mount Vernon Nazarene University educates students to 

embrace their chosen vocations of business, education, ministry, social work or medicine with a servant’s heart. 

As I understand the current HUD regulations, institutions like 

Mount Vernon Nazarene University are ineligible for any Federal 

13

housing assistance due to our faith-based nature. For the institution I serve, adequate quality housing on campus for low-income 

families, especially single parent and married students is crucial 

and currently unavailable. Since many of our students come from 

the Appalachian region of Ohio, West Virginia and Eastern Kentucky, and are first-generation college students, they simply cannot 

afford the typical rental facilities off-campus. I applaud and support the efforts of the Department of Housing and Urban Development to broaden the eligibility for Federally funded low-cost housing to include faith-based organizations and institutions. We only 

desire to be able to compete on equal footing for Federal assistance 

with all other eligible organizations. 

I want to respond to the three specific questions asked of this 

panel. Number one, the proposed regulations, if enacted, as I understand them, would provide significant assistance. I recommend 

a clear definition and statement be added for faith-based higher 

education institutions such as Mount Vernon Nazarene University. 

Number two, the partnership between the Federal government 

and faith-based institutions could be substantially strengthened. In 

our situation, the lack of affordable housing leads some students to 

choose a college or university without the definitive and critical 

link between service and learning. 

Number three, approving the proposed HUD rule would enable 

faith-based higher education institutions to serve more low-income 

individuals who yearn to become self-sufficient. 

Let me offer you an illustration of one woman’s desire for selfsufficiency. Shannon, a Mount Vernon Nazarene University student, was single with a small child living in a previously funded, 

but subsequently sold HUD housing development. The neighborhood had deteriorated and become dangerous. Shannon wanted to 

move, but could not afford alternative housing. Each day after student teaching, she picked up her child from day care and literally 

prayed, ‘‘please do not let anything happen to me or my baby; help 

me survive another night.’’ Shannon’s story could be repeated by 

other Mount Vernon Nazarene University students. I am pleased 

to report today that Shannon graduated with honors from our university and is a dedicated, influential teacher in the Mount Vernon 

school district, working with children of low-income families. 

I believe passionately in faith-based higher education institutions. In the past 35 years, the 11,000 alumni of the institution I 

serve have been challenged to make a difference in their world. 

Other faith-based institutions can echo our experience. We solicit 

your assistance in significantly increasing our potential for influence by approving and strengthening the proposed HUD regulatory 

changes for faith-based organizations. 

Thank you. 

[The prepared statement of E. LeBron Fairbanks can be found on 

page 12 in the appendix.] 

Mr. GREEN. Thank you for your testimony. 

Reverend Anthony, welcome. 

14

STATEMENT OF REVEREND WENDELL ANTHONY, PASTOR, 

FELLOWSHIP CHAPEL, DETROIT, MICHIGAN 

Reverend ANTHONY. Thank you. To the committee and to those 

of my colleagues who have gathered here, let me thank you first 

of all for having me here to say a word about this most critical 

issue. 

First of all, let me just indicate at the outset that faith-based initiatives is the very initiative that causes us to be churches and institutions of faith. An initiative of faith requires a lot of work. We 

walk by faith, and not by sight, particularly when the budget is 

short all we have is faith, in many instances. So from the very outset, faith is the root which causes this tree to grow. 

I do want to just say, as we remember executive order 11246, 

which prohibits the Federal government from discriminating 

against Federal employees, government contractors and subcontractors and grantees that have construction contracts on the 

basis of race, creed, religion, color, national origin or sex, has a 

long and distinguished history in preserving the equal opportunity 

of our nation. It even dates back to President Franklin Delano Roosevelt and his work with human rights activist A. Philip Randolph. 

As we look at the proposed rule change presented by HUD, it 

would unfortunately give religious organizations a special right to 

ignore laws and the Constitution of the United States which guarantees the freedom of religious expression, as well as denominational preference. It is my fear that the current language in the 

HUD proposed law suggests that religious institutions may retain 

their independence from Federal, state or local governments. It can 

be misinterpreted to suggest that religious institutions are exempt 

from the non-discrimination laws. 

It is also my concern, particularly coming from an area in our nation where we have a large community of Muslim Americans, many 

who practice Islam, who are not a part of the Christian tradition, 

that these laws and this new regulation can somehow be misconstrued to allow us to discriminate against those who do not 

share our particular theological view. Scriptures teach us that God 

is no respecter of any persons. I am also concerned that this rule 

would present a barrier to dollars that are already reduced in the 

Community Development Block Grant programs, particularly as it 

relates to the dissemination of monies that go for organizations in 

our communities. 

Further, I am concerned about the direct funding to religious institutions that proselytize and provide religious instruction at facilities where beneficiaries of such programs may redeem coupons, 

certificates or vouchers. The direct funding could lead to a mixture 

and a merger of funds from the regular offering plate to those that 

come in through Federal programs. Additionally, this carrot and 

stick approach—the carrot, of course, being, one, to gain political 

favors and support on the basis of financial contributions; the stick 

being in auditing or eliminating from financial services of a church 

or institution that in fact does not carry the political line. 

I would like to recommend to this committee, however, that we 

do consider the increase of funding to faith-based organizations 

that are small, that need resources, that need financial resources, 

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munity development corporation, to do housing, to do education. 

We are in the process of building a new church. We are in the process of doing single-family homes, senior homes, establishing a community center and a retail component. We created a community development corporation to do those things. While we relish money 

and need support, we do not relish the government coming into our 

business and calling us to task on issues that have nothing to do 

with what we are doing in terms of faith-based development. 

We also believe that there is a great need to provide funding and 

to restructure lending practices to small and low-income families. 

They can have an appropriate credit review to review the process 

of scoring, to review the process of how one secures mortgages, because we run into that when we want to provide housing to people 

who have low income. They have a problem with getting the very 

housing that we want to provide to them. So we hope and we pray 

that the government would not interfere with the work of the 

church. The church has been doing it for many, many years after 

the government intervention. So often the government gives us a 

little to get in, but not enough to continue. We believe that if we 

fund the appropriate organizations, we can accomplish the 

strengthening of America and its families. 

[The prepared statement of Wendell Anthony can be found on 

page 14 in the appendix.] 

Mr. GREEN. [Presiding.] Thank you for your testimony. 

Reverend Caldwell, welcome. 

STATEMENT OF REVEREND KIRBYJON CALDWELL, PASTOR, 

WINDSOR VILLAGE UNITED METHODIST CHURCH 

Reverend CALDWELL. Thank you, Acting Chairman Green, and to 

Ranking Members Waters and Frank, and the balance of the members of the committee. Thank you so much for inviting each of us 

to be here. 

Congresswoman Waters mentioned the fact that I know her husband, and indeed her husband and I grew up in the same ’hood, 

if you would, affectionately known as Fitzwater, Texas—Houston, 

Texas—Fitzwater, Texas. And while growing up in Fitzwater, while 

I had no idea I would I would become a pastor, if I may say, the 

Lord placed on my spirit, yea, even at a young age, that more 

churches need to take the sanctuary to the streets, take the sanctuary to the streets. That has really been our approach at Windsor. 

We have over eight or nine different 501(c)(3)s, which are independently managed and run, independent from the church, one of 

which is a CDC. We develop houses. We develop programs for persons with AIDS, schools, et cetera, et cetera. 

To be very honest with you, we have been doing this for almost 

17 years, and all of a sudden, abracadabra, it becomes faith-based, 

complete with all the political hoopla associated with it. I think it 

is unfortunate because it seems as if we are getting substance and 

style confused. I am happy to hear all the comments from the 

members of the committee, because it has really enlightened me. 

I am not a politician. I am not a lawyer. I am just a little pastor 

trying to help the people. But to hear the program referred to as 

almost mandatory, as if you have to get involved, I think is a little 

bit misleading. If you do not like the policy of the faith-based deal, 

16

then do not apply. Some folk have mentioned it is very Christian, 

and I really abhor that statement that was made by the gentleman 

you mentioned, Congresswoman. That was very unfortunate because based on my interpretation, the Administration is very clear 

that this is truly an ecumenical initiative, and in fact it is even for 

folk with no faith. You do not have to believe in anything or anybody, and you can still apply for funds. 

I think that gets to the very core issue, which is, as I understand 

it, the Administration in general, HUD in particular wants to level 

the playing field so that whosoever will, if you could, could and 

would come. It is HUD’s desire to (A), remove whatever regulatory 

or administrative barriers that may be present; and (B), enhance 

or increase the capacity for building more programs for more people on a more equitable basis. 

I could go on and on and on, but I will close. I am not real sure 

how much time I have left, but anything we can do to improve the 

community and increase social entrepreneurship in helping the 

least, the last and the lost, without crossing the lines of the Constitution, I think we should get after it. Again, I am not a legislator. I leave it up to this sage and insight wisdom of those of you 

who are seated here how to work that out. But please, do not deny 

those who are trying to make a difference. Contrary to some popular opinion, Windsor and the 501(c)(3)s have not received a lot of 

money, in fact any money from the Administration, but we want 

to make certain—that is not to say we will not try to get some. But 

it is to say that I think there are more smaller entities in America 

that could really benefit, not just from the financial support, but 

from the technical support which the faith-based initiative offers, 

as I understand it, is ready, able and willing to lend. 

Thank you very much. 

[The prepared statement of Kirbyjon Caldwell can be found on 

page 15 in the appendix.] 

Mr. GREEN. Thank you. You may not have the wisdom of a legislator, but I know we do not have your wisdom, and that is why we 

have invited you here. We appreciate your testimony. 

Ms. Feingold, welcome. 

STATEMENT OF ELLEN FEINGOLD, PRESIDENT, JEWISH 

COMMUNITY HOUSING FOR THE ELDERLY 

Ms. FEINGOLD. Thank you so much for inviting me. I am so 

pleased to be here. 

Jewish Community Housing for The Elderly has facilities that 

are in both Congressman Frank’s and Congressman Capuano’s district. I am sorry Congressman Capuano is not here to hear us. We 

have found no obstacles for a faith-based, a faith-committed organization in accessing Federal funds. We own and manage over 1,000 

units of housing for low-income seniors. Their average age is over 

80. Their average income is under $10,000. Over half of them are 

eligible for nursing homes, but they can stay in our buildings because of the services we are able to access for them. We are proud 

of our record of nondiscrimination, both in employment and also in 

the residents that come and live in our buildings. 

In addition to representing my own organization, I am also representing the American Association of Homes and Services for the 

17

Aging, with over 5,600 nonprofit organizations of whom 75 percent 

are faith-based. I am also representing the Association of Jewish 

Aging Services, obviously all of whose organizations are faithbased. We are talking about well over one million seniors living in 

the housing that these faith-based organizations are now providing 

with HUD money. It does not sound like a problem that needs solving. No member organization of either of these associations has 

ever complained of obstacles on the basis of their being faith-based 

organizations. We do bring an extra measure of commitment, quality and value to what we do, but we do it on a nonsectarian basis. 

Everybody is welcome. 

When I was co-chair of the Commission on Affordable Housing 

and Health Care Facility Needs of Seniors in the 21st Century, the 

Seniors Commission heard testimony all over the country. We 

heard people praising the faith-based organizations that had created housing, but what we heard much more than that was, we 

need more. Where is the money to build more? The organizations 

are there. They are competent. They are committed. They are 

ready. There is no money to do it with. That is what we need to 

be focusing on. 

Ultimately, the commission put out 50 recommendations that 

might make it better, easier to create more senior housing. Not one 

of them deals with the issue of obstacles to faith-based organizations because it was never presented to us as a problem and none 

of the members of the commission several of whom are in fact running faith-based organizations, saw it as a problem. We strongly 

oppose any actions that would lower the standards in any way for 

the facilities that are built with Federal funds. We oppose the use 

of funds to create spaces that are sectarian. We are well able to 

function within our faith in the spaces that come under our nonsectarian guidelines. 

I brought with me something that I want to give to you. At Jewish Community Housing for the Elderly, we have a community 

Seder. Passover is coming. This is the Haggadah we use. For those 

of you who have never been to a seder, it is a service that recounts 

the Exodus. This Haggadah is in four languages—English, Hebrew, 

Russian and Chinese—because the participants in our seders, all 

of whom are voluntary, come in all colors, shapes, denominations 

and languages. The seder is obviously entirely funded with charitable funds, not with government funds. The books are produced 

with charitable funds, not government funds. It is one of the high 

points of the year. So is Chinese New Year, which our Chinese residents celebrate as a religious holiday. That is funded by private 

funds. We have no obstacles to respecting and celebrating the diversity of religions within our communities. 

The stark issue, again, is the lack of funds. We would build more 

in a heartbeat if we had more money. The 202 program is, I believe 

Secretary Martinez alone has—— 

Mr. GREEN. Ms. Feingold, if you could wrap your testimony up. 

Ms. FEINGOLD. I apologize. I just want to say that it is your constituents who call us and call you looking for more housing. We do 

not believe there is an obstacle. We do not believe this rule will 

make the slightest bit of difference. What will make a difference is 

more funding. 

18

Thank you very much. 

[The prepared statement of Ellen Feingold can be found on page 

16 in the appendix.] 

Mr. FRANK. Mr. Chairman, just briefly, I would just like to say 

a the end of this, it would now be appropriate if we asked Ms. 

Feingold only four questions. 

Mr. GREEN. Okay. 

[Laughter.] 

Ms. FEINGOLD. That sounds like the seder. 

Mr. GREEN. Bishop Daniels, welcome. Good to see you again. 

STATEMENT OF BISHOP SEDGWICK DANIELS, PASTOR, HOLY 

REDEEMER INSTITUTIONAL CHURCH OF GOD IN CHRIST, 

MILWAUKEE, WISCONSIN 

Bishop DANIELS. Thank you. Let me also say that I spoke with 

Bishop Patterson this morning, the presiding bishop of our church, 

who supports the comments that I shall make at this time. 

Thank you, Mr. Acting Chairman, and distinguished members of 

this august body. I am pleased to be here today to testify to you 

with respect to the efforts of Holy Redeemer Church of God in 

Christ and its affiliated entities and connection with the development of efforts to improve the lives of citizens in our city, Milwaukee, Wisconsin. 

Mr. Chairman, perhaps a little background may be helpful to 

you. We founded Holy Redeemer ministry 17 years ago with eight 

persons, and have grown this ministry to over 5,000 persons, representing people of every background and skill. Our organization 

has more than 39 affiliated entities which are involved in self-improvement activities such as the creation of a 140,000 square foot 

youth center in a neighborhood densely populated by low-income 

students; development of multiple public-private operations; school 

initiatives which have resulted in improvement of education for 

some of the most economically distressed youngsters in Milwaukee. 

We have now educated and are now educating more than 750 students daily, including students at risk and other students in our 

schools. 

The development of a health clinic has been our focus on bringing the marvels of medicine directly to the community that we 

serve through a clinic located on our campus, which is affiliated 

with a faith-based organization called Covenant Health Care—a 

large health care provider in Wisconsin. Our campus is a redevelopment of a 10-acre site which was previously distressed and in 

fact was vacant. We have turned this site into a vibrant complex 

and campus serving literally thousands of people each day who receive a variety of services—meals, job training, health education 

and care, top-flight elementary and adult education. 

Our mission, then, is to have a 24/7 outreach to this community. 

The demographic data for this community reflects that not only are 

we providing services, but this has resulted in the employment of 

hundreds of people. The success stories are indeed marvelous. One 

of the best examples is one of our school administrators, who 

through many efforts used welfare outreach services to college, 

educates herself, ultimately becoming a college graduate. And after 

several years of working as a teacher, she became one of our school 

19

administrators on our campus. In fact, President George W. Bush 

visited our campus last year to get a first-hand view of the remarkable effects we are having on people and changing lives. 

The examples go on and on with respect to how we have changed 

the lives of people. We have also been critically involved in the 

housing initiative in our community. When we consciously moved 

our campus to the economically depressed central city area, many 

were surprised that we did so and thought that we might move to 

a tranquil suburban environment. But we intentionally did not do 

so because we really knew where the needs were. One of the things 

we found was that many people had housing needs—elderly people, 

people who were in transition, people who were searching for the 

American homeownership dream. We therefore, with the cooperation of the city of Milwaukee and through the use of Federal tax 

credits, developed a premier low-rise elderly housing project, which 

has received many recognitions, including a special award from the 

Federal Home Loan Bank Board. The facility is over-subscribed 

and there is a tremendous demand for us to provide additional facilities for seniors. 

We also obtained and rehabilitated many homes in the area 

where we are, for transitional needs of our people. Many of these 

people have used this program as a springboard to putting their 

lives back together, and they have moved on to very productive citizenship. In connection with the local bank, we have also instituted—— 

Mr. GREEN. Mr. Daniels, we need you to wrap up, please. 

Bishop DANIELS. Very good. That is a good thing to tell a minister. 

[Laughter.] 

——our homeownership seminar and progressive program. 

In summary, I think that it is important to know that people 

that have visited our campus have noted that we have been able 

to create an improved housing stock in our neighborhood, created 

an environment with literally hundreds of people from our neighborhood have meaningful life-supporting jobs. This is the commission to which we are called, and we hope that you through your 

legislative powers will recognize that such faith-based initiatives 

such as ours are vital in many communities throughout the country. 

Thank you. 

[The prepared statement of Sedgwick Daniels can be found on 

page 18 in the appendix.] 

Mr. GREEN. Thank you very much. 

Mr. Walker, welcome. 

STATEMENT OF REVEREND J. BRENT WALKER, EXECUTIVE 

DIRECTOR, BAPTIST JOINT COMMITTEE, WASHINGTON, D.C. 

Reverend WALKER. Thank you, Mr. Chairman, and members of 

the subcommittee for this opportunity to speak to you about a matter as important as religious liberty and the separation of church 

and state. 

Although as the chairman mentioned, I serve as an adjunct professor at Georgetown University Law Center, I speak today only on 

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tist Joint Committee has always advocated a well-balanced and 

sensibly centrist approach to church-state issues. We take seriously 

both religion clauses in the First Amendment—no establishment 

and free exercise—as essential guarantees for our God-given religious liberty. 

We appreciate the good works of religiously affiliated nonprofits, 

in careful cooperation with government entities such as HUD. But 

we believe that religion will be harmed, not helped, by efforts of 

government to fund pervasively religious enterprises or otherwise 

to advance religion. This is precisely what the Administration is 

trying to do through its proposed regulations. Government-funded 

religion is the wrong way to do right. Government’s attempts to 

level the playing field, as the metaphor goes, usually results in religion getting leveled by government. Religion is different and it 

should be treated differently. It is treated differently in the First 

Amendment—sometimes deserving special accommodation under 

the free exercise clause; sometimes special or unique constraints 

under the establishment clause. 

We are particularly concerned with three aspects of this proposal. One, the proposed rules open the door for government-funded religion. It is a settled constitutional principle that government 

may not fund pervasively sectarian or pervasively religious organizations and enterprises. The proposed rules ignore the pervasively 

sectarian doctrine. And even where an organization is not pervasively religious, but only religiously affiliated, it cannot use government funds to finance specifically religious activities. The proposed 

rules try to answer this constitutional requirement by prohibiting 

the funds from being used to support, quote, inherently religious 

activities, unquote. But the problem with this nebulous, novel and 

ill-defined concept is that the establishment clause prohibits activities which, while perhaps not inherently religious, may be administered in various religious ways and religious context in training 

seminars and counseling services and other activities. 

Number two, the proposed rules allow for religious structures to 

be built with government funds that violate the establishment 

clause, as Congressman Frank mentioned. The rules specifically 

permit structures to be used for both religious and secular purposes, as long as the funding is proportionately reduced to equal 

the percentage of religious use. This approach creates the potential 

for excessive entanglement between church and state. It raises the 

specter of accounting problems and logistical difficulties and burdensome auditing and recordkeeping, and would most certainly create the need for perpetual monitoring. The rule change on government funding of religious structures opens a can of constitutional 

and administrative worms that will be inimical to the autonomy of 

religious organizations, and promote the very excessive entanglement which the First Amendment was designed to prohibit. 

Third, the proposed rules permit discrimination on the basis of 

religion in hiring in government-funded programs. Now, we support 

title VII’s exemption for churches, allowing them to discriminate on 

the basis of religion in their employment practices. But the proposed rules permit discrimination even in programs substantially 

funded by government. While allowing religious organizations to 

discriminate in the private sector is a welcomed accommodation of 

21

religion, to subsidize religious discrimination is arguably unconstitutional and in any case an unconscionable advancement of religion. How odd for the Administration to use the language of nondiscrimination to promote a policy that leads to government-funded 

discrimination. 

In summary then, government should not fund organizations 

that are pervasively religious. Government may fund religiously affiliated ones, organizations as you have heard that serve out of religious motivation to be sure, but not in a way that integrates religion into its programs, involves religious worship or instruction, 

education and proselytizing, or discriminates on the basis of religion in hiring or serving beneficiaries. Any religious programming 

by these groups should be separately offered and privately funded 

and voluntarily attended. To the degree the existing HUD regulations serve these ends, they should be retained. But to the extent 

the proposed HUD regulations vary from these principles, they 

should be rejected. 

Thank you very much. 

[The prepared statement of J. Brent Walker can be found on 

page 19 in the appendix.] 

Mr. GREEN. Mr. Walker, thank you. Thanks so much. 

Mr. Kmiec, welcome. 

STATEMENT OF DOUGLAS W. KMIEC, J.D. DEAN, CATHOLIC 

UNIVERSITY OF AMERICA SCHOOL OF LAW, WASHINGTON, 

D.C. 

Mr. KMIEC. Thank you, Mr. Chairman. 

I am pleased to respond to the subcommittee’s invitation. I have 

spent most of my life teaching or writing or thinking about constitutional questions. It was my privilege to serve as President 

Reagan’s head of the office of legal counsel in the Department of 

Justice and to spend part of the first Bush Administration there as 

well. So I will address myself mostly, if not entirely, to those constitutional questions suggested by other witnesses and that may be 

raised by the members. 

Let me begin with my conclusion, and that is that these regulations do not transgress the guarantee of freedom of religion found 

in the First Amendment of the United States Constitution. Instead, 

they do three things which are perfectly consistent with constitutional case law, as well as text, and that is first, they establish the 

principle of nondiscrimination. Government funds shall neither be 

distributed giving favoritism to nor discriminated against religious 

organizations. Significantly, this applies to both the Federal government and state and local governments that are often in partnership with the Department of Housing and Urban Development administering funds. Both are enjoined to treat religious organizations under the same eligibility requirements, and in my judgment 

not only is this fully constitutional, this is a principle that is unassailable and long overdue. 

Second, it explicitly provides that funds supplied directly to a 

faith-based organization may not be used to support inherently religious activities such as worship, religious instruction and proselytization. Importantly, from the standpoint of religious freedom 

and nondiscrimination, the regulations make clear that even 

22

though government funds cannot be used for these purposes, nothing precludes a faith-based organization from continuing inherently 

religious activities from nongovernmental sources. Analogously, the 

regulations ensure that faith-based organizations can retain their 

independence, something which I have heard other members of the 

panel speak eloquently to, allowing for example, the continued use 

of a religious organizational name, as well as the inclusion of religion in the organization’s definition, practice and expression. 

Similarly, if HUD funds are provided for acquisition, construction 

or rehabilitation, and these are provided for under the regulations 

for structures that are either wholly secularly or of mixed use, that 

government funding cannot exceed the pro-rata secular portion. 

That aspect of the regulation merits constitutional inquiry, and I 

know in the question and answer period we may spend some time 

with it. I think it deserves a close look. 

Thirdly, no current or prospective beneficiary of a governmentfunded service shall be discriminated against on the basis of religion or religious belief. No genuine faith-based organization would 

ever think about discriminating against someone who is a beneficiary on the basis of their religious belief. The men and women 

who are at this table are at this table because they believe they 

were called by a higher power to serve their fellow man in specific 

and very necessary ways. They are not in the practice of turning 

people away, and the HUD regulations establish that and affirm 

that proposition. 

In summary, Mr. Chairman, the HUD regulations eliminate a 

variety of constitutionally unwarranted regulations of the past. In 

the past, regulations have categorically excluded religious organizations with the demeaning terminology ‘‘pervasively sectarian organization.’’ The Supreme Court of the United States in its most recent holdings has made clear that the terminology ‘‘pervasively religious or sectarian organization’’ is a demeaning one because it 

comes out of a 19th century hatred for religious believers and immigrants to our country. These regulations, importantly, separate 

us and put distance between that odious practice and the present 

day. 

Thank you, Mr. Chairman. I would be happy to answer any questions. 

[The prepared statement of Douglas W. Kmiec can be found on 

page 21 in the appendix] 

Mr. GREEN. Thank you, Mr. Kmiec, for your testimony. I appreciate it very much. 

Questions—Mr. Kmiec, let me begin with you. The standards 

that are in the proposed rule with respect to opening up service 

provision to organizations which may be faith-based, how does that 

compare to the standards that are in the existing welfare reform 

law passed by the Clinton Administration? Do you know? Can you 

answer that? 

Mr. KMIEC. Well, I am not prepared to look at the specific Clinton proposals, but the one thing that is true is that what HUD has 

done here is follow a template that Congress has approved before 

several times in the context of charitable choice legislation. So to 

the extent that charitable choice worked its way into those specific 

23

Clinton Administration regulations, I think these are quite comparable. 

Mr. GREEN. Thank you. I would like to go back—Reverend 

Caldwell, we have had testimony from some of the other witnesses 

that there are no obstacles or hindrances to faith-based organizations or community organizations accessing Federal funds and providing services. You started off with some smaller organizations 

which have provided services. Have you encountered obstacles? 

Have you seen challenges in working with the Federal government? 

Reverend CALDWELL. No, sir. We have not encountered any obstacles because we have not applied for any funds. But it has been 

the experience of some of my colleagues that they have encountered 

obstacles, and that is one reason I am here today. 

Mr. GREEN. Let me ask you this, then, why is it that you have 

not applied? 

Reverend CALDWELL. Well, my shortest and most intelligent answer is that in the past we have not wanted to get involved in the 

red tape, to be honest with you. We are not afraid or ashamed to 

be audited. I think any church worth its salt ought to be open to 

Mrs. Jones and Mr. Booker and the U.S. government. But the impression is that it has been multilayered, and we have just kind 

of gone it alone—period, new paragraph. We intend to apply for 

funds regardless of what happens to this particular legislation. 

Excuse me, I erred. We did receive a $500,000 grant from OCS 

during the Clinton Administration to help build what is called the 

Power Center, where we took an old dilapidated K-Mart building 

and gutted it. It now provides employment for over 247 persons, 

has a $14.5 million annual economic impact cash flow on the community. It is an amazing example of how private enterprises and 

nonprofit entities can and I think must come together to make an 

indelibly divine difference in the community. But that was an application filed by our Pyramid CDC, not by the church. 

Mr. GREEN. When you took a look at, or when you weighed the 

costs and the benefits of making application for Federal funds, and 

again largely have chosen not to do so, was one of your fears that 

in order to meet all the requirements and sort through the red 

tape, that you would have to hire additional people? 

Reverend CALDWELL. That is absolutely correct. In addition to 

that, to be very honest with you, I had heard such nightmarish stories about the process, we simply chose not to get involved. Again, 

you should not go based on hearsay. But we have so many things 

going on. We have nine or ten different 501(c)(3)s, 14,000-member 

church, half of them think they are the pastor on any given good 

day, so we have a lot of dynamics happening, and the last thing 

we needed to do was to allocate an inordinate percentage of our intellectual and financial resources to go after a grant which we may 

not even get. 

Mr. GREEN. Bishop Daniels, could you relate some of Holy Redeemer’s experience in working with the Federal government in 

terms of Federal funds? Have you seen red tape and obstacles? 

Bishop DANIELS. Oh, definitely. For instance, there are some hurdles that we are overcoming even as I speak now. There was an 

abandoned building next door where there was flight from a manufacturing company. We wanted to turn that into, as opposed to it 

24

becoming a drug house and loitering et cetera, into a youth center. 

We were clearly told that if we were to receive any assistance 

through funds, whether it is city, that would be processed through 

CDBG and the State of Wisconsin and the Federal government, 

that it could not and would not by any stretch of the imagination 

be given to the church, and it could not be given. There were a 

number of hurdles that we had to overcome as a result of that. It 

was clear as we began to work through ultimately the title of that 

property had to be a separate organization altogether, to work to 

save the kids. What people do not understand is at 3 o’clock, all 

of those kids become our kids. It does not matter where they attend 

or what they do, we were just trying to get them off the streets and 

from killing one another, and getting them into constructive programs. 

Mr. GREEN. Thank you very much. 

The gentlelady from California is recognized. 

Ms. WATERS. Yes, first of all let me thank all of our ministers 

and heads of organizations who are here today, and just really commend you on the programs that you already have and the work 

that you have already done, long before you heard about anything 

called a faith-based initiative. Let me just say to Reverend 

Kirbyjon Caldwell, 17 years, and how many nonprofits do you have 

over there? 

Reverend CALDWELL. We have nine nonprofits. 

Ms. WATERS. Nine nonprofits, 17 years, a CDC, and you did it 

without the government. 

Reverend CALDWELL. So far. 

Ms. WATERS. So far, you have done it without the government. 

Reverend CALDWELL. Yes, ma’am. 

Ms. WATERS. There were no obstacles to you setting up a 

501(c)(3). 

Reverend CALDWELL. That is correct. 

Ms. WATERS. You can have a nonprofit corporation. 

Reverend CALDWELL. That is correct. 

Ms. WATERS. There is no obstacle to you applying for CDBG 

monies in the city of Houston. 

Reverend CALDWELL. No obstacles locally? 

Ms. WATERS. Yes. 

Reverend CALDWELL. Not to my knowledge. 

Ms. WATERS. That is Federal money that we send down to the 

cities for them to give out to the communities to do all these kinds 

of programs—senior citizens, child care, et cetera. There are no obstacles to you or any other religious organization in applying for 

those funds under your 501(c)(3). Is that correct? 

Reverend CALDWELL. None to us. I cannot speak to the other organizations. 

Ms. WATERS. Well, here is the point that I am making. 

Reverend CALDWELL. Yes, ma’am. 

Ms. WATERS. I think it was Mr. Kmiec who said that it is important to have this faith-based initiative to get rid of and establish 

the principle of nondiscrimination for religion. Title VII does that. 

The Constitution does that. You are not discriminated in any way, 

and you are protected by Title VII and government law. What I 

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tive is this. Somebody is telling ministers that somehow you should 

be able to administer these programs without having to set up a 

501(c)(3) or a separate organization; that you can commingle it 

with the church; and that you can use some of the laws that are 

on the books for religious organizations that allow you to hire within the religion in the same way when you use Federal money. That 

is where the rub, the disagreement comes in. 

Much of what is being described is red tape that has nothing to 

do with discrimination against a religious organization. It does not 

matter. When you get money from the Federal government, you are 

going to go through some red tape. Nobody is going to reach in the 

government’s pocket and hand anybody any money. You are going 

to go through some red tape. You are going to be scrutinized, and 

John Ashcroft is going to indict you if you spend the money outside 

of the regulations and the laws. And that we have to make very 

clear to everybody, that there will be no way even under faithbased initiative that you will be able not to be able to account in 

ways that we all would want to account. So we need to be clear 

about that. There is no discrimination now against religious organizations in competing for money. 

The other thing is, does anyone here believe that there is a new 

pot of money called faith-based money? If so, raise your hand. 

Okay, we are clear about that. There is no new money called faithbased money. Technical assistance that was mentioned by Reverend Anthony, we can all agree on. We are not against religious 

organizations getting money. Again, we assist and we help people 

to set up CDCs and EDCs and even help to set up nonprofit organizations in order to do that. Do we all agree that a lot of churches 

could use some technical assistance in order to set up a 501(c)(3) 

or EDC or CDC in order to provide services, Reverend Anthony? 

Reverend ANTHONY. Yes, congresswoman, we do. I come from Detroit, and what we are doing—I am affiliated with an organization 

called New Detroit, Incorporated. What is part of our charge is to 

assist groups to do just that; to develop 501(c)(3)s. I also come from 

an area where the faith-based initiative has been used by some in 

administrative offices as a carrot and a stick approach. By that, I 

mean if I look at the history of those in Michigan who have benefited from the state’s version of faith-based initiative, it has been 

those who are particularly friendly to the past Administration. The 

past Administration that was in office for 12 years used that as a 

measure by which to access the African American community. I am 

very clear about that. We are very clear about that. 

I do not think you will find any of us who oppose churches working with the government in partnership to do community development. We have always done that. The problem is I come from a 

state that has a $1.8 billion deficit, and within that confine we are 

looking now at churches to make up some of the areas where the 

government may not be able to provide services. Where are we 

going to get the money to do that? From our offerings, from our coffers? The problem that we run into is that we can do CDCs. Reverend Caldwell can do CDCs, but there are many other smaller 

churches and organizations that cannot. They need the assistance. 

Monies need to be provided through agencies that can assist them 

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in terms of developing their programs and professional staff development. 

We get that all the time. There is an old African proverb that 

says even the smallest deed is better than the greatest intention. 

I think we may have a good intention, but what we need is some 

small deeds, those deeds being money and capital and sense. 

The other concern that I have is I look at what we see coming 

from many religious leaders today who are in various denominations. As we look at what is happening in the world, I think that 

it sets a precedent for some individuals to mis-use that initiative. 

I do no think that the vast majority of folk may be subject to that, 

but I do think that it opens up the door for people to discriminate—— 

Mr. GREEN. I must ask you to wrap up. 

Reverend ANTHONY. ——particularly as it relates to the area 

where I come from, which has a high degree of Muslim Americans 

who are not antithetical to America, but I know if certain folk get 

monies, they will not be able to participate in those programs. 

Mr. GREEN. Thank you. The gentlelady’s time has expired. The 

gentleman from Massachusetts, Mr. Frank. 

Mr. FRANK. Mr. Kmiec, let me ask—you did not touch on the 

question of employment discrimination. As you read this, would the 

recipients be allowed to take the money for the secular purpose and 

agree to hire only members of their own religion? 

Mr. KMIEC. I agree with Congresswoman Waters that it is a fundamental guarantee of religious organizations in our society to be 

able to maintain their character by the people they hire. 

Mr. FRANK. So the answer is yes. 

Mr. KMIEC. That is correct. 

Mr. FRANK. Now, so you believe that as this is constructed, you 

said you agree with Congresswoman Walters. Well, a Congresswoman named ‘‘Walters’’ might have said that. I do not think Ms. 

Waters said it. The question is—— 

Mr. KMIEC. I believe Congresswoman Waters said quite eloquently—— 

Mr. FRANK. I am sorry. I only have five minutes, Mr. Kmiec. Excuse Mr. Kmiec, I only have five minutes. I have to ask you this. 

And I want to ask the other members who are in favor of this, I 

am troubled, I must say, by the notion that it somehow would 

erode or corrode or detract from a religious organization engaged 

in secular good works, because that is obviously what we are talking about here—that religious organizations engaged in good works 

that were funded with Federal money for secular purposes—I am 

troubled by the notion that it is wrong to ask them to associate 

with people of other religions. That just seems to me to be such a 

troubling notion. Let me ask, beginning with Mr. Fairbanks. Why 

would it be a problem if you were to do something purely secular, 

to hire people of other religions? 

Mr. FAIRBANKS. Let me say that we are involved with our students in a variety of projects, and they are for sure not associated 

with religious groups. 

Mr. FRANK. I have a specific question. Why would it be a distraction to you—how would it take away from your mission if you got 

27

money to provide drug treatment or help for the homeless and you 

had to hire people of other religions? How would that hurt? 

Mr. FAIRBANKS. If a person would affirm their belief in what we 

are intending to do with our mission, our vision, and embrace 

those, then we could—— 

Mr. FRANK. What do you mean by—you mean your general religious mission or your specific one for which you got the money? Let 

me pass on to Reverend Caldwell. Reverend Caldwell, do you believe that if you got Federal money to do drug treatment or youth 

work or any of these other things that were secular, that it would 

be a problem if you had to hire people of other religions? 

Reverend CALDWELL. Mr. Congressman, we work with folk of big 

faith, little faith and no faith. 

Mr. FRANK. So you are not asking for this. In other words, if we 

were to pass this without allowing discrimination in employment, 

that would not be a problem for you? 

Reverend CALDWELL. Until I get it, I really do not know, but I 

do not think so. Let me quickly say—— 

Mr. FRANK. That is the only question I had to ask about. Let me 

just ask again now to Bishop Daniels, when you set up that youth 

center next door, and you had people maybe teaching the kids to 

play basketball or do other things, would they have to be only people of your religion? Would it detract from your mission if you had 

to hire people without regard to their religion? 

Bishop DANIELS. No, it does not detract, but we cannot even get 

to that point. 

Mr. FRANK. I understand that. Many of us are in favor of that. 

But let me ask, why do you think it is bad for religion to have to 

hire people of other religions, for running the youth center? 

Bishop DANIELS. I did not say it was bad. 

Mr. FRANK. I know you did not, but I am asking Professor Kmiec 

to explain his view that it is, apparently. 

Mr. KMIEC. I think the way I would approach it, congressman, 

would be this. Every citizen of this country contributes to the general fund that this body has to allocate. We generally do not say 

when a taxpayer comes up—— 

Mr. FRANK. No, you are evading my question. I am sorry. We 

only have five minutes. I am asking you—— 

Mr. KMIEC. ——they generally do not say—— 

Mr. FRANK. Professor, you know better. You know what the rules 

are. 

Mr. KMIEC. ——what religions are—— 

Mr. FRANK. Mr. Chairman, I ask you to tell the witness to stop 

the filibuster. 

Mr. GREEN. Let’s have some decorum here. 

Mr. FRANK. The witness is not answering the question. 

Mr. GREEN. I believe he is attempting to answer the question. 

Mr. FRANK. No, he is not. 

Mr. GREEN. He may not be answering the way you like it. 

Mr. FRANK. No, he is not answering. The question is, what is 

wrong in asking a religion—how does it hurt a—— 

Mr. KMIEC. What is wrong with it, congressman, is that you are 

making religious believers into second-class citizens. We all contribute to the general funds of the United States of America. We 

28

all have an interest in seeing them fairly apportioned. These individuals at this table have a special interest in the well-being and 

welfare of the—— 

Mr. FRANK. You are not answering my question. 

Mr. KMIEC. I am answering your question directly—— 

Mr. FRANK. No, you are not. 

Mr. KMIEC. If you wish to use a political polemic—— 

Mr. FRANK. You are evading the question. The question is, how 

does it hurt their ability to do that if a Christian has to hire Jews, 

if Jews have to hire Protestants, and Protestants have to hire 

Catholics—how does that hurt them in the performance of their 

mission? 

Mr. KMIEC. Well, it hurts them in this sense. It fundamentally 

changes who they are. Congressman Scott said it very well in his 

opening remarks and questions, and I know he has serious questions about these constitutional issues as well. But one of the 

things he said very thoughtfully is that people come to religious 

leaders in their community because they trust them, because they 

do good, because they are the cement of families and the things of 

community. These people who are those religious leaders cannot 

just shed their religious—— 

Mr. FRANK. Excuse me, but—— 

Mr. GREEN. The gentleman’s time has expired. 

Mr. Scott of Georgia? 

Mr. FRANK. Will the gentleman yield to me for 30 seconds, 

please? 

Mr. GREEN. Mr. Scott? 

Mr. SCOTT. Yes, I would be glad to yield. 

Mr. FRANK. Thank you. I just want to point out how totally nonresponsive that answer was. Of course, these are good people. In 

fact, one, two said they did not have to discriminate. You are imputing to them, frankly, something I would not impute to them. 

You are telling us that for them to be able to do their mission and 

remain true to their religion, they have to say that there is something wrong with associating with people of other religions. I find 

that frankly much more anti-religious than any other criticisms I 

have heard, that somehow if you are going to be a religious institution, it is not enough to have co-religionists in your worship; it is 

not enough to have co-religionists in your religious community; but 

when you then decide to perform a secular function, being forced 

to associate with non-believers somehow detracts. I find that a very 

odd way to defend religious leaders. 

I thank the gentleman for yielding. 

Mr. SCOTT. Thank you very much. You are certainly welcome. 

My concern is trying to figure out exactly why these proposed 

changes are being offered. It seems to me that these restrictions 

and these regulations were written into the HUD requirements for 

a very important reason, and that was to maintain that very important separation of church and state. Now, if you could answer 

for me, of what value and why would we want to remove the requirement that employment be religious neutral? Why would we 

want to require that the person being employed must be a member 

of that church or that organization or that religion, when in effect 

this is not private money, but all of the people’s money from all of 

29

the different religions made up in this wonderful United States? 

Why is that of benefit? Why do we need to do that? Why do we 

need to change this rule? 

Mr. KMIEC. I do not really think we are changing the rule, in 

fairness, congressman. I think what we are doing is applying the 

principle of Title VII that as very carefully, as Congressman Waters pointed out before, navigated the two provisions that are in 

the Constitution. We have to remember that the Constitution does 

not have a separation of church and state. It has two simultaneous 

guarantees of free exercise of belief and practice, as well as, as the 

reverend said before me, protection against an establishment of religion. So my direct answer to your question, congressman, would 

be this. We do not ask other citizens to shed their most fundamental beliefs to participate in Federal programs. These citizens 

you have before you raise money from private sources as well as 

public sources. They ought to have both available to them to do 

good work. They should not have to fundamentally go through a 

metamorphosis and to deny who they are in order to qualify. 

Mr. SCOTT. But aren’t they able to do that now? For example, the 

rule that we are trying to remove states this. It says a primarily 

religious organization receiving funds under the program will not 

discriminate against any employee or applicant for employment 

under the program on the basis of religion, and will not limit employment or give preference in employment to persons on the basis 

of religion. It does not say you cannot do one or the other. 

It seems to me that this is a very carefully worded, fair placement in the rules to allow you to do exactly what you want to do, 

but it also prevents you from discriminating. That is the rub here. 

Mr. KMIEC. I certainly agree with regard to any of the other prohibited categories that we find, for example, in executive order 

11246, and nothing that HUD has proposed here would invite any 

form of racial discrimination, national origin discrimination and so 

forth. But we have a special constitutional protection for freedom 

of belief. I think what HUD’s regulations very thoughtfully are trying to do is to say, in regard to that special protection, we are saying to these people they do not have to change their character. 

Congressman Waters, again, asked one of the witnesses if he had 

ever applied for a Community Development Block Grant. The fact 

of the matter is, as I understand it, the statutes that frame that 

program have a specific provision in it that say recipients, contractors thereunder, will not discriminate on the basis or draw distinctions on the basis of religion. Well, if the reverend wanted to accept 

those monies—he indicated that he never had—it would fundamentally change the nature of the organization that he represents. 

Mr. SCOTT. Let me ask this, if I may, Mr. Chairman, what are 

some of the problems that you are experiencing now that requires 

us to mandate these changes? To my way of reading this, it clearly 

would remove—— 

Mr. GREEN. The gentleman’s time has expired. 

Mr. SCOTT. Ten seconds please—a much needed protection 

against discrimination. I cannot get an answer to why we are doing 

this. If we could get some answers, if we could get some reasons, 

if we could get some evidence that showed this is what we are trying to get to, to remove—— 

30

Mr. GREEN. The gentleman’s has expired. 

The gentleman from North Carolina, Mr. Watt, is recognized for 

five minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

I am going to try assiduously to follow my wife’s lesson. 

Mr. KMIEC. I already violated that. 

[Laughter.] 

Mr. WATT. No, no. If you would just stay out of this, I think I 

can do it a lot easier. 

[Laughter.] 

Because I think I see everybody else on this panel kind of moving 

away from you. You have marginalized yourself so much that I cannot imagine that there is anybody else on this panel that agrees 

with what you say. If there is, I am going to give them a chance 

to tell me that, but I am going to do it without getting stressed out 

and aggravated. 

Mr. KMIEC. Thank you for that vote of confidence. 

Mr. WATT. Let me just pose this simple hypothetical. You have 

an after school program that the Federal government is trying to 

teach kids to read better. And the most qualified teacher to teach 

the child to read happens to be a person who is not affiliated with 

your denomination. You have somebody in your denomination, your 

church, your congregation that, if you just look at him, somebody 

outside your congregation is better qualified to teach that course—

teach the child to read. Is there anybody on this panel other than 

Mr. Kmiec who believes that you ought to be allowed to discriminate against that better qualified teacher because they are not a 

member of your denomination or your congregation? Anybody else 

on this panel take that position? 

Reverend WALKER. Assuming there is government funding. 

Mr. WATT. Assuming government funding, yes. 

Reverend WALKER. If they are living off the collection plate, certainly Title VII—— 

Mr. WATT. Right, right. Title VII applies to you in your religious 

activities. You know, you are exempt. You obviously are not going 

to hire a Jewish rabbi to preach at a Baptist Church. That is what 

that was designed to do. 

Well, I mean, not on an ongoing basis. You invite him in as a 

guest minister, but I just want to know, is there anybody on this 

panel who thinks you ought to be able to discriminate against the 

most qualified person to teach that after school program. 

Bishop DANIELS. Could I just respond? 

Mr. WATT. Yes, sir. 

Bishop DANIELS. I think that if you just contain it to the question 

of the most qualified person to teach is just one thing. But there 

is a whole other dynamic in faith-based in the real world, and that 

is very possibly the person that also teaches may also have to be 

the person that will have to open the door and close the door, and 

take care of the property and answer to. So there are a lot of components that may be included in that, rather than just that one—— 

Mr. WATT. So basically what you are saying is you would redefine the job and maybe make it more inclusive, so that the person 

that you were interviewing may not be the most qualified person 

after you added all that criteria. I understand that. I mean, I am 

31

not trying to get you around that. But there is something that Mr. 

Kmiec said that I just fundamentally disagree with. This thing—

shedding their fundamental beliefs—I mean, we quit allowing people who had racist views to carry out their fundamental beliefs. I 

mean, it is illegal. Do you understand what I am saying? 

Mr. GREEN. The gentleman’s time has expired. 

The chair now recognizes the gentleman from Alabama, Mr. 

Davis, for five minutes. 

Mr. DAVIS. Thank you, Mr. Chairman. 

Let me pick up on the hypothetical from Mr. Watt. Let me go to 

his Catholic day care school that he talked about. Does anyone on 

this panel believe that if, let’s say hypothetically, a Catholic day 

care school accepted money from the Federal government, but if 

say a Southern Baptist family from Alabama moved into the neighborhood and the child from the Southern Baptist family wanted to 

go to that Catholic day care center, does anybody think that if that 

institution was getting public money they ought to be able to keep 

that child out? 

Okay. As we say in the courtroom, let the record reflect nobody 

agreed with that. So given that, now let’s expand that hypothetical. 

Let’s say that a whole bunch of Southern Baptists or a whole 

bunch of Jewish children moved into the neighborhood around a 

Catholic day care center. And let’s say that we got to the point 

where the only folk in the Catholic day care center were Southern 

Baptists and Jews. Does anybody on the panel think that if that 

Catholic day care center was getting public money, they ought to 

be able to throw out the Baptists and the Jews. Does anybody 

think that? 

Okay. Let the record reflect nobody thinks that. So given that, 

if it does not fundamentally change, Mr. Kmiec, the nature of an 

institution if a Catholic day care center ends up servicing only 

Jews and Southern Baptists, how does it change their character if 

they end up hiring Jews and Southern Baptists? 

Mr. KMIEC. Universities and day care centers and religious organizations create themselves because they have a body of belief that 

they want to propagate. They think it is very important. I suspect 

that if there is a Catholic day care center, as there are in many 

urban inner-city areas in this country, that their populations frequently are non-Catholic; it has turned out that the private schools 

that have stayed in the inner-city areas in this country have been 

the Catholic schools, in many cases, and oftentimes their students 

do not share Catholic belief. But the fact of the matter is that the 

priests and the brothers and the sisters who stay involved in that 

teaching, stay involved in that teaching because they believe their 

faith has something specific to say, even if there are nonbelievers 

in front of them. But they would not stay in the business if you 

told them that they could not share their religious beliefs with 

those people who come to them, whatever the religious perspectives 

of the students may be. 

Mr. DAVIS. Let me interrupt you just to make this point and 

move to my next question. I think what makes your position collapse when it relates to discrimination is a very basic point. If it 

does not change the character of an institution to make it serve 

people of a different faith, I find it impossible to see how the charVerDate 0ct 09 2002 09:52 Oct 09, 2003 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 C:\DOCS\89410.TXT MICAH PsN: MICAHW
32

acter of the institution is somehow contaminated if it has to absorb 

people of a different faith. Because you cannot make the Jews and 

Southern Baptists in that school believe whatever is being taught 

to them, but you still have to serve them. So if that, again, does 

not contaminate, I do not see why employment does. 

Let me move to a totally separate point in the limited time that 

I have. What really bothers me about a lot of this is a very simple 

conundrum that I think a lot of the government would be faced 

with. As all of you know, it is difficult getting Federal grants under 

the best of circumstances. Now, if somebody does not get a Federal 

grant right now, they might think it is because they did not fill out 

their paperwork; they might think it is because of any number of 

reasons. If we move full-scale in the direction of these faith-based 

initiatives, if a given church does not get a grant, my concern is 

that that church will think that it somehow did not fit the state’s 

test for religions, or that that church will think, well, we were not 

religious enough or holy enough. That perception that I think 

would exist with a lot of churches is, in my mind, one of the most 

pernicious things about this movement. Can any of you address 

that concern—the fact that even if we are not purporting to do it, 

we are possibly creating a perception that some churches are good 

enough and some churches are not; that some churches serve the 

state’s mission and some churches do not. Can anybody address 

that issue? 

Reverend ANTHONY. Congressman, I hear what you are saying, 

but I would come down in another perspective. I do not think it 

would be so much that we would think we are not holy enough, because politicians cannot determine our spirituality. I would simply 

say that many of us might think we are not political enough to the 

degree that the monies that have been allocated are connected to 

those who are friendly to those in Administrations that are doing 

the allocating. As for me and my house, we do have people there 

who are not of our faith and of our tradition. I think in many cases, 

churches may not even want folks who are members of the church 

because when it comes time to firing folk, you have to deal with 

their whole families. It creates a problem. 

And often we share congregations and denominations with different preachers and that sort of thing, but in terms of on Sunday 

morning, I am preaching Jesus. So you know that when you come. 

Now, on Monday, Tuesday, Wednesday, Thursday, Friday and Saturday in terms of the church at work, that is through our community outreach center, that is through our housing program, whosoever will will come on Sunday morning, but you know what you are 

getting when you come there. So I think that the real rub is that 

may be those who take advantage of the fact that if you do not 

come down theologically the way I come, then you cannot play in 

the game. And that is where the problem is. 

Mr. GREEN. The gentleman’s time has expired. 

I thank all the witnesses for their testimony today, and for their 

answering questions. The chair notes that some members may 

have additional questions for this panel that they may wish to submit in writing. Without objection, the hearing record will remain 

open for 30 days for members to submit written questions to these 

witnesses and to place their responses in the record. 

33

Mr. FRANK. Mr. Chairman, also we have some statements from 

others that we would like to place in the record as well. 

Mr. GREEN. Without objection. 

The hearing is adjourned. 

[Whereupon, at 4:55 p.m., the subcommittee was adjourned.] 

(35)

STRENGTHENING AMERICA’S COMMUNITIES: 

EXAMINING THE IMPACT OF FAITH-BASED 

HOUSING PARTNERSHIPS—DAY 2

Monday, April 28, 2003

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON HOUSING AND

COMMUNITY OPPORTUNITY, 

COMMITTEE ON FINANCIAL SERVICES, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 4:00 p.m., in Room 

2220, Rayburn House Office Building, Hon. Robert W. Ney [chairman of the subcommittee] presiding. 

Present: Representatives Ney, Renzi, Watt and Frank (ex officio). 

Chairman NEY. Today the subcommittee will hold a second day 

of hearings to examine the effect of faith-based housing partnerships, specifically HUD’s January 6th, 2003, proposed regulation 

that would provide more opportunities for faith-based organizations 

to address the needs of the poor and also distressed neighborhoods. 

Although enacted into law in four previous statutes, charitable 

choice has been the subject of persistent discussion and debate. 

President Bush’s initiative in the 107th Congress to rally the armies of compassion elevated the debate into the national spotlight. 

As the President stated when he announced his faith-based initiative, the government has a solemn responsibility to help the needs 

of poor Americans in distressed neighborhoods but does not have 

a monopoly on compassion. 

Earlier this month, the Senate passed Senate Bill 476, which is 

aimed at making it easier for religious groups to compete for Federal grants and be responsive to the needs of their communities. 

The measure calls for $12.7 billion over 10 years in new tax incentives for charitable giving and additional spending for social services. 

This legislative action follows in the wake of a series of initiatives announced by the Bush Administration which culminated in 

HUD’s early January proposed rules change. The Department’s 

proposed regulation would accomplish the following: A, permit the 

consideration of religion in employment practices by religious organizations; B, terminate the general requirement that provided services be free from religious influence; and, C, prohibit government 

consideration of applicant’s religion when distributing funds. 

When it comes to lessening the effects of poverty in addressing 

the needs of those who are suffering, some of the most creative and 

passionate volunteers are affiliated with faith-based organizations. 

36

It should come as no surprise that faith-based organizations have 

the experience and knowledge to meet the social needs of their 

communities in a more compassionate manner than the Federal 

Government itself in Washington. They know their communities, 

they know the families that need assistance, and they know what 

housing and services are available in their neighborhoods. 

In an effort to craft more bipartisan legislation, the Bush Administration agreed to the Senate’s removal to any mention of religion 

in the bill. 

I appreciate the Administration’s willingness to work with Congress and look forward to continued cooperation as we consider this 

important endeavor. 

I would also like to thank the members of the subcommittee for 

their commitment and passion towards this issue. No matter where 

they are at on the issue, they have been obviously passionate and 

committed, as well as witnesses, you today, all of you for your time 

in coming here. 

With us today to discuss the Administration’s view is Mr. John 

Weicher, Assistant Secretary for Housing, an FHA Commissioner 

at HUD, also more famously known as a former Ohio State University professor; as well as HUD’s Chief of Staff, Frank Jimenez; and 

Anthony Streeter, the Director of Faith-Based Programs for HUD. 

Welcome, gentlemen. We look forward to your testimony today. 

I would like to recognize the gentleman from Massachusetts, Mr. 

Frank. 

Mr. FRANK. Thank you, Mr. Chairman. I appreciate your calling 

this hearing. There was a misunderstanding as to whether or not 

we had wanted HUD to testify in the first round of this, and I appreciate the agreement of everyone to move forward today. 

I would say that the fact that there aren’t more members here 

is not a sign of lack of interest. It is a sign of a lack of roll call 

votes on the floor of the House. Members make plans, sometimes 

in advance. This hearing came afterwards. 

I am glad to be joined by my colleague from North Carolina. I 

appreciate the Chairman making a point of being here. Trying to 

fit hearings in is tough,and I wish this didn’t have to be on a day 

when there weren’t votes, but I have no complaint about that. I 

had agreed to it, because it is hard to fit them in. I appreciate having this much. 

A couple of points, and I will be also outlining some of the questions I hope you will answer. 

First, I want to stipulate that we agree that having faith-based 

groups involved in the provision of services is very important. The 

position of many of us is that that has been going on. 

I will be submitting for the record, and I ask unanimous consent, 

Mr. Chairman—— 

Chairman NEY. Without objection. 

Mr. FRANK. ——to put in a couple of statements, one of which 

I think is quite relevant, from the National Community Development Association, the people who administer at the local level the 

CDBG programs. They make the point that there are in fact now 

literally thousands of faith-based groups across the country that do 

participate through CDBG. 

37

The question is not whether or not faith-based groups participate. 

[The following information can be found on page 131 in the appendix.] 

Mr. FRANK. At our last hearing we also had people from the 

American Association of Homes and Services for the Aging, a majority of whom are religious-based. 

And I was just invited, and couldn’t make it because of scheduling, to an event honoring Monsignor Michael Groden who heads 

the Archdiocese Office on Housing in Boston.. They have been a superb user of Federal housing programs and have helped build a 

great deal of housing. This is the official archdiocese office. 

So that is not the question. The question is, for many of us, do 

religious groups, to be able to participate, need to be able to discriminate with those Federal funds against nonmembers of their 

religion? That is a very critical question. 

Another question has come up with regard specifically to the 

HUD rule, and that is the feasibility and advisability and maybe 

constitutionality of the commingling of funds, and that is one the 

things that I want to address here. 

We are told that this program, as the President has announced 

it, assumes that people could get money and build a building that 

would be partly for religious purposes and partly for nonreligious 

purposes; and the amount that the building can be used in one way 

or the other would depend on the amount of money being put in. 

Now, one question I have is, is that physical or temporal? That 

is, since some religious institutions only have worship 1 day a 

week, maybe 2 or 3 days a week, does that mean that you could 

take a building and build it, and if you prayed in it 1 day a week, 

then you could use the whole building 6 days a week for other purposes? Or is it a physical separation? 

Another question is, how do we enforce some of these rules with 

regard to Community Development Block Grant entitlement communities? Frankly, some people have said that the Federal Government will be careful with the religious groups that it deals with, 

and that it won’t deal with groups that might be problematic. But 

under the Community Development Block Grant I assume I understand correctly that an entitlement city under this rule could take 

the money and give it to any religious institution it wanted to. 

Does that mean that the Church of Scientology, the Nation of Islam 

and others would be eligible for the money and could then hire only 

its own members? 

Finally, I was pleased to see Secretary Martinez say at a recent 

hearing here, actually, on the down payment assistance program, 

that he did not think that we were abridging anybody’s civil rights. 

Well, I have some questions about that. We have an Executive 

Order, 11246, that goes back to Franklin Roosevelt and A. Philip 

Randolph that has been interpreted by people as applying to the 

Community Development Block Grant program, and the Executive 

Order here says it no longer does. 

We also have this question: There is language in here that says 

the recipients will be independent from State and local governments. Does this purport to preempt or to say that State and local 

laws, we don’t abide by them? 

38

And then we have this issue: Congress could, by statute, preempt 

State and local laws. But is the Administration contending that the 

Executive Order—that the President, by himself, can affect the 

binding nature of State and local laws? 

If we have State and local laws through which a grantee would 

ordinarily be subject, is it the position of the Administration that 

this Executive Order diminishes the force of those State and local 

laws? Because I think we run then into serious constitutional 

issues. 

So those are the questions that I will be returning to. 

Thank you, Mr. Chairman. 

Chairman NEY. Thank you. 

Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman. 

I think every single one of the questions that my colleague from 

Massachusetts, Mr. Frank, has raised are important issues; and I 

certainly subscribe to them. But the ones I probably have the most 

serious concerns about have to do with the ability of religious organizations to discriminate in their employment practices and whether the effect of allowing them to discriminate on the basis of religion may, in effect, be a substitute for allowing them to discriminate on the basis of race. 

In my part of the country, 11 o’clock on Sunday morning unfortunately is still the most segregated hour in America; and if you say 

to particular religions that—or churches, for that matter, even 

within the same religion, that in the conduct of your nonprofit governmental function you have the capacity to discriminate on the 

basis of religion, the effect of that is to be saying to them that you 

have the ability to discriminate on the basis of race. 

I personally and the people that I represent and the people that 

have marched and fought and struggled against that kind of discrimination for years and years and years cannot abide that result. 

It is that simple for me. 

I am not an opponent of faith-based initiatives. In the 22 years 

of legal practice that I had before I was elected to Congress in 

1992, I was probably regarded, certainly within the State of North 

Carolina, perhaps nationally, as one of the lawyers who did more 

religious representation of institutions, church litigation, church 

reconciliation—you name it, I did a little bit of it. There are still 

institutions throughout my Congressional District—housing developments, nonprofit developments, senior citizen developments, 

health care developments—all of which originated with a 501(c)(3) 

organization that emanated from a church. 

It is not something that I am alien to. I think it is absolutely important and necessary. But in none of those situations did they 

have the capacity through their 501(c)(3) organization to discriminate, either on the basis of religion or race. 

I just think—we have taken this faith-based initiative and made 

it—and it has become a hot button needlessly, because the capacity 

was already there to do everything that one could do that a religious-based organization through a 501(c)(3) could do except discriminate and accept commingled funds. 

Those are the two components of this that I think are unnecessary and unwise and possibly unconstitutional, and I don’t know 

39

why we have even got to get there to accomplish the governmental 

purpose that we have set out to accomplish, because we have been 

accomplishing it for all of these years. 

So I am concerned about that. I appreciate the chairman giving 

me the opportunity to make an opening statement, and I will be 

asking questions to try to clarify these gentlemen’s position on that 

and HUD’s position on that and, presumptively, this Administration’s position on that. 

Thank you. 

Chairman NEY. Thank the gentleman. 

We have also been joined by the gentleman from Arizona, Mr. 

Renzi. 

I want to again thank all of the members for coming here today 

to have the hearing. 

If there is no further request for statements, we will begin with 

Mr. Weicher. Welcome. 

STATEMENT OF JOHN C. WEICHER, ASSISTANT SECRETARY 

FOR HOUSING, HUD, ACCOMPANIED BY FRANK R. JIMENEZ, 

CHIEF OF STAFF, OFFICE OF THE SECRETARY, HUD, AND 

RYAN STREETER, DIRECTOR, CENTER FOR FAITH-BASED 

AND COMMUNITY INITIATIVES, HUD 

Mr. WEICHER. Thank you, Mr. Chairman, Mr. Frank, Mr. Watt, 

Mr. Renzi, for the opportunity to join you this afternoon to discuss 

this major initiative of President Bush and Secretary Martinez. Because of our long history of partnering with faith-based and community organizations to provide housing and other important services, the initiative is especially relevant to HUD’s work. I am here 

on behalf of the Department to present our views on the role of 

faith-based organizations. 

With me are Ryan Streeter, Director of the HUD Center for 

Faith-Based and Community Initiatives, and HUD Chief of Staff 

Frank Jimenez, an alumnus of the University of Miami. 

With the committee’s permission—— 

Chairman NEY. Is that Florida or Ohio? 

Mr. WEICHER. Wrong one, sir. 

Chairman NEY. Well, we beat them. 

Mr. WEICHER. With the committee’s permission, I will be referring many questions to them as the principal persons with the 

most detailed knowledge on this subject in the Department. 

The Administration’s goals are clear and achievable: to provide 

the best possible quality in government-funded service; to support 

the essential work of all charities, whether secular or religious, regardless of their size; and to ensure a level playing field for all 

groups and organizations that are working to transform lives. 

These community caretakers fulfill a critical need in this country. 

As President Bush said in October of last year, an America without 

faith-based organizations caring for people in need is an America 

without hope. 

One of the President’s first official acts was to sign Executive 

Order 13199, which created the White House Office of Faith-Based 

and Community Initiatives. He directed the Office to lead a determined attack on need by strengthening and expanding the role of 

faith-based and community organizations in addressing the NaVerDate 0ct 09 2002 09:52 Oct 09, 2003 Jkt 000000 PO 00000 Frm 00045 Fmt 6601 Sfmt 6601 C:\DOCS\89410.TXT MICAH PsN: MICAHW
40

tion’s social problems. The Office reaches into every community of 

need, while giving special attention to homeless individuals, prisoners, at-risk youth, addicts, impoverished senior citizens and families moving from welfare to work. 

Through Executive Order 13198, the President also created Centers for Faith-Based and Community Initiatives in several Federal 

agencies, including HUD. By order of the President, these agencies 

have conducted extensive reviews of regulations to identify barriers 

to participation by faith-based and other community organizations 

in our programs. 

The HUD Center coordinates the work of the Department as we 

seek to eliminate these barriers so that faith-based and other community groups can compete for Federal funds on an equal footing 

with other charities. 

We have discovered a number of common obstacles, beginning 

with a prevailing perception among Federal officials that collaboration with religious organizations is legally suspect. 

Also, some programs essentially bar religious organizations from 

applying for funding. For instance, HOME funds may not be granted to religious organizations, quote, ‘‘for any activity including secular activities.’’ 

Also, there are inappropriate and extensive restrictions on religious activities, creating another barrier that restricts faith-based 

organizations from receiving HUD funding. I discuss some examples in my prepared statement. 

Both President Bush and Secretary Martinez are working to remove these barriers. 

The President took decisive action when he signed Executive 

Order 13279 on December 12th of last year. The order sets out 

clear principles ensuring that all eligible social service organizations are able to compete on an equal footing for Federal financial 

assistance. Under the order, Federal programs must be implemented in such a way that they do not violate the establishment 

clause and the free exercise clause of the first amendment to the 

Constitution. 

HUD is actively implementing the order to ensure that our policies and programs create a level playing field for faith-based organizations. 

As a first step, Secretary Martinez is actively encouraging the 

participation of grassroots organizations in all grant applications. 

These organizations touch many lives on the local level, yet are frequently overshadowed in the grant-making process by their larger 

and more visible cousins. 

Our SuperNOFA for 2003 clearly states that these faith-based 

and other community organizations are eligible to apply. We are 

conducting Webcasts specifically designed to educate these providers about the SuperNOFA and the application process. We have 

installed a toll-free telephone number to help them understand the 

application process, and we continue to make grant applications 

easier for potential new partners to understand. 

Education is key to helping faith-based and other community organizations successfully navigate the grant-making process. To ensure that this message is heard, we have appointed faith-based and 

community liaisons in each of HUD’s 10 regional offices and 81 

41

field offices. Their job is to reach out to faith-based and other community groups that lack experience in working with HUD. 

HUD is coupling educational outreach with administrative reforms that are removing the barriers to effective partnerships with 

America’s community of faith. 

We have reviewed each of HUD’s major programs to determine 

the degree to which they comply with the requirements of Executive Order 13279. 

To tie these efforts together, HUD issued a proposed rule on January 6th of this year that will revise our regulations for eight programs and remove unwarranted regulatory barriers to the equal 

participation of faith-based organizations. The intent of the proposed rule is to ensure that HUD programs are open to all qualified organizations, regardless of their religious character. The rule 

would also clearly establish the proper uses of grant funds. 

The public comment period for the proposed rule closed March 

6th. We are in the process of carefully reviewing the comments we 

have received. 

No matter how big or small the organization, no matter its level 

of experience in competing for Federal grants, no matter its religious affiliation or secular nature, HUD wants every potential partner to have the opportunity to compete for Federal resources. If a 

faith-based or other community organization wants to work with 

us, and if they can do the job, then we will welcome them with 

open arms and do everything we can to help them succeed in their 

communities. In this way, we will provide the best possible service 

to those who suffer in poverty and despair; and we will help to expand society’s capacity to respond with compassion to human need. 

Thank you, Mr. Chairman. 

Chairman NEY. I want to thank the gentleman for his testimony. 

The other two gentlemen are available if the members have questions of them. 

[The prepared statement of John Weicher can be found on page 

39 in the appendix.] 

Chairman NEY. My questions are going to be centered on the 

process. Because HUD will be one of the first, obviously, of the 

agencies to be coming out with rules. So what will be the process 

in order to finalize this rule? 

Mr. WEICHER. It is the normal rulemaking process, Mr. Chairman. 

As I mentioned, we have received comments on the rule. The 

comment period closed a little less than 2 months ago. We are required to review the comments to consider how we might modify 

the rule in light of the comments; and I might say that in my experience at HUD there is—any proposed rule is going to be revised 

in final if there are comments. That is just the norm. 

Chairman NEY. So you would expect some changes? 

Mr. WEICHER. I would, because we always wind up having 

changes. 

Then we will—the final rule—we will draft the final rule, and 

the preamble to the final rule will explain how we reacted to each 

of the major kinds of comments we received in the comment period. 

42

That rule is then reviewed by OMB. The formal review period for 

OMB is 90 days, and after their approval it is submitted to the 

Federal Register and becomes final. 

Chairman NEY. Do you have any anticipated guesstimate of 

when it will be finalized? 

Mr. WEICHER. No, Mr. Chairman. I can’t really give you an estimate on that. We certainly will be moving on it as expeditiously 

as we can, but I can’t really give you a date on it. 

Chairman NEY. Thank you. 

Mr. Frank. 

Mr. FRANK. Mr. Weicher, I know this is not your primary area 

of responsibility. I appreciate that we have a group that includes 

it. 

Under the Community Development Block Grant statute, as it 

now exists, Section 109, states: No person in the U.S. shall, on the 

ground of race, color, national origin, religion or sex, be excluded 

from participation in, be denied the benefits of, CDBG.’’ Now that 

is the statute. 

As I read the Executive Order with CDBG, it says that you cannot be denied the benefit of a program, but it leaves out employment. Is it the Administration’s intention to allow grantees to discriminate based on religion under the CDBG program, that is, to 

decline to hire someone not of their religion, if they choose to? 

Mr. WEICHER. Mr. Frank, with your permission, I will refer that 

question to Mr. Jimenez. 

Mr. JIMENEZ. Thank you, Mr. Congressman. We are actually 

grateful for this opportunity—— 

Mr. FRANK. We have 5 minutes. So what is the specific answer? 

Mr. JIMENEZ. The answer is no. Nothing in the proposed regulation or in the Executive Order attempts to override the CDBG statute on the point of religious hiring. 

Mr. FRANK. Okay. So under the CDBG program, recipients could 

not discriminate in hiring based on religion, correct? 

Mr. JIMENEZ. That is correct. That is because Congress has 

passed a more specific statute. 

Mr. FRANK. Right. But in every other HUD program you could? 

Mr. JIMENEZ. It is my understanding that there is one other specific statute governing the HOME program where Congress has in 

that specific statute, as with CDBG, revoked the freedom that it 

gave religious organizations in Title VII, the freedom to take religion into account when hiring. 

Mr. FRANK. So the position of HUD then is that you recognize 

that where there is a statutory requirement that there be no discrimination based on religion, then there cannot be under this Executive Order, but in every other HUD program you could discriminate based on religion as a grantee? 

Mr. JIMENEZ. Yes, sir. This proposed rule covers six other—— 

Mr. FRANK. So the answer is yes. 

Secondly, with regard to preemption or diminution of State and 

local laws, what—there is language in here—it doesn’t say specifically is that they don’t apply. It says they will retain their independence from State and local laws. I must say that as we debated 

that, as I recall, a couple of years ago on the floor of the House and 

43

in committee the general understanding was that that probably 

meant that they wouldn’t have to comply with them. 

What is the effect? If there is a State or local law requiring nondiscrimination based on sexual orientation or marital status or religion, does that apply or not apply? 

Mr. JIMENEZ. Neither the proposed regulation nor the Executive 

Order, as you indicated, specifically addresses the issue of preemption. 

Mr. FRANK. That is what I am asking you now. What do you 

think it means? How are you guys going to interpret it? 

Mr. JIMENEZ. It is the Administration’s position that—first of all, 

preemption questions are highly unlikely to arise because—— 

Mr. FRANK. They just did. Excuse me. I hate to contradict you. 

I just raised it. 

Mr. JIMENEZ. In the real world outside of Congress. 

Mr. FRANK. Let me just say that you are wrong. We have had 

this with regard to San Francisco. We have had it with regard to 

New York City. The notion that there won’t be some conflict between local laws and Federal policy—in fact, we had a debate on 

the floor of the House about whether or not we would change the 

law because of a domestic partnership issue involving San Francisco. I think it was under some Federal program. 

So I need to know the answer. What is your answer? 

Mr. JIMENEZ. I believe you are correct. They will arise from time 

to time, just not regularly. But the answer is that preemption questions are to be decided be the courts on a case-by-case basis. 

Mr. FRANK. They won’t be decided by the courts unless someone 

gets them into the courts. 

What is the Administration’s position? You say the Administration is not going to take a position? 

Mr. JIMENEZ. If a State or local ordinance specifically targets 

faith-based organizations—— 

Mr. FRANK. Mr. Jimenez, stop beating around the bush. You 

know better. If you don’t want to answer the question, tell me. You 

are not here under subpoena. You can refuse to answer the question. But let’s not waste time. 

We are not talking, as you know, about laws that specifically target religious groups. We are talking about an antidiscrimination 

law of general applicability at the State or local level that a religious organization may feel impinges on it. Is it the Administration’s position that they cannot abide by that because of the language here about their independence from State and local governments? 

Mr. JIMENEZ. Neither the proposed regulation nor the Executive 

Order take a position on that question. 

Mr. FRANK. So the Administration has no position on it? 

Mr. JIMENEZ. No, sir. Not at this time. 

Mr. FRANK. Let me ask Mr. Weicher. If I am a Mayor of a city, 

I ask HUD: What does it mean? Or if I ask the general counsel, 

what would you tell me? 

Mr. WEICHER. Mr. Frank, it will be—when the issue is raised, it 

would be addressed by the Department and by the Administration. 

It would not be addressed by my office, of course, but it would be 

addressed. 

44

Mr. FRANK. You are here as HUD’s representative. 

Mr. WEICHER. Yes. But, as you know, I am not a lawyer. 

Mr. FRANK. That is very disappointing. Let me give you the answer I don’t think you want to give. The answer is, yes, you want 

it to be preempted, but you are a little bit unclear about the ability 

to preempt a State law by Executive Order. I must say, when this 

arose in the context of the statute, it was clear that that same language was intended to be preemptive. And, because you are now 

dealing with a situation where you can’t preempt you are going to 

duck the question. 

But I people ought to be clear that that is the—that was the intention, that is essentially what you have in mind. 

Mr. JIMENEZ. Sir, if it were specifically intended to be preemptive, there would have been language to that effect. 

Mr. FRANK. No, because if you got too explicit you could run into 

some kinds of problems. It was specifically intended to be preemptive. But let me ask you, as a matter of policy, do you think it 

should or shouldn’t be? 

Mr. JIMENEZ. My personal opinion, I believe—— 

Mr. FRANK. No, not your personal opinion, HUD, the official Administration position. You are not here personally. You are here as 

a representative of the Administration. 

Mr. JIMENEZ. As I said earlier, each case would have to be determined on the facts of each specific case. So we would make that 

determination on a case-by-case basis. We would look at the local 

or State ordinance in question, we would look at the terminology, 

the intended effect, the scope of the ordinance or the law, and then 

apply the law as we understand it at that time. But we don’t see 

this rule or the Executive Order as having a blanket preemptive 

effect one way or the other. 

Chairman NEY. The time of the gentleman has expired. 

Mr. Renzi. 

Mr. FRANK. It is a waste of time. Go ahead. 

Mr. RENZI. Thank you. 

Thank you all for your testimony. 

Maybe following up a little bit with the ranking member, we 

have got 501(c)(3) organizations out there who currently, under 

Title VII, are allowed to hire based upon religious preferences. But 

when they receive the Federal moneys they can’t deny services, 

they can’t deny providing their best efforts to any organization, so 

they cannot discriminate based on religion; is that correct? 

Mr. JIMENEZ. The proposed regulation makes very clear that, for 

all eight of the grant programs covered by the regulation, the recipient of the funds cannot take religion into account when determining who receives their services. So beneficiaries must have access to that organization’s services regardless of religious belief or 

practice. 

Mr. RENZI. So we are not going to discriminate on how the Federal monies are used. We are going to set up a law that allows 

them to use the money. Is there any oversight then that follows up 

a year or 2 years from now? Is there any kind of Federal accounting that says, okay, not only are we going to say you can’t do that 

but we are going to come back later and make sure that you are 

not doing that? 

45

Mr. JIMENEZ. The purpose and the intent of the regulation is to 

place faith-based organizations on an equal footing with secular organizations. HUD intends to treat faith-based organizations in the 

very same way that it treats secular organizations. That means 

that all grant recipients, secular and faith-based alike, will be required to sign general assurances of compliance with all applicable 

laws and regulations; and then, in addition, there will be the periodic compliance review that HUD performs on all grant recipients, 

not just secular or faith-based. 

Mr. RENZI. So you will actually be able to know that up front, 

provide the language that says you can’t do this, you are going to 

be able to do the oversight and watch how the monies are spent? 

Mr. JIMENEZ. Yes, sir. 

Mr. RENZI. So there really is no threat of discrimination here, 

particularly if we have that oversight feature? 

Mr. JIMENEZ. Not at all, sir. 

Mr. RENZI. Let me move to a question that I had. I was really 

privileged before I came to Congress to insure 1,700 non-profit organizations across the United States, insure more crisis centers for 

domestic violence against battered, abused women and children 

than any other insurance agent in the country; and I learned a lot 

from it. 

When I would go to the conventions, in particular one in Seattle 

one year where the domestic violence center leaders were there, I 

saw a split as to whether or not there should be a reliance on Federal funding, nonprofit organizations getting on the Federal dole, 

maybe at times losing some of their—or losing, maybe not spending 

as much time or strength of effort in building their donor base, 

which is a lot of, I believe, if I am right, a lot of where these nonprofit organizations get their revenues from. 

Is it—what is your feeling on—any of the panel—on setting up 

a Federal dole or setting up a Federal pipeline to help these organizations? Are there unintended consequences that they have become 

too reliant? 

Mr. STREETER. That is really a decision that each of those organizations needs to make for itself. I think, for our purposes here, the 

interest we have is in—as Mr. Jimenez said, leveling the playing 

field for faith-based organizations. 

We wanted to make sure that for all interested applicants it be 

as fair and open a competition as possible, and whether or not an 

organization would want to receive funding really depends on their 

willingness to compete. 

Mr. RENZI. Well said. 

Let me say this to you. The Habitat for Humanity has laid out 

a model that is exceptional. Our former President, Jimmy Carter, 

becoming one of the Nation’s best leaders of Habitat for Humanity, 

a secular organization. If nonprofit 501(c)(3) organizations want to 

reflect that model, want to become those type of organizations in 

small communities that help build houses in 48 hours, these Federal funds will help them become mini Habitat for Humanities; am 

I right? 

Mr. STREETER. Federal funds under the programs affected by this 

rule, you mean? 

Mr. RENZI. Yes. 

46

Mr. STREETER. Uh-huh. 

Mr. RENZI. In other words, you could have non-government-based 

organizations, faith-based organizations become small Habitat for 

Humanities across the country where we could actually build more 

homes? 

Mr. STREETER. That is right, as long as the organizations choose 

to build themselves that way. We are not designing any specific 

programs here for faith-based organizations. Rather, we are opening up the competition by changing the regulations so it is a level 

playing field. 

Mr. RENZI. What other areas—or how—what creative ideas have 

you seen that these moneys could be used for good work? Where 

is the—my example is neutral. Where is the good housing going to 

be put to work? 

Mr. STREETER. Well, every day there are people doing great 

things with very small budgets in communities all across the country. They work in all kinds of fields, providing shelter for the homeless, providing shelter and stable housing for the elderly and the 

disabled; and often that is done by those who have deep roots in 

the communities where the people are that they are serving. Those 

are grassroots organizations who, for a number of reasons, both 

faith-based and secular groups, have not been in our networks, 

have been intimidated by the regulations as they currently stand 

on the books. 

Mr. RENZI. Well said. So if we are able to get Federal funds to 

those organizations, we are going to build more houses, we are 

going to be able to home and provide safe areas, warm comfort for 

homeless, we are going to feed more people, we are going to reach 

out, to take better care on the street, with the needy. 

Mr. STREETER. It is our view that by increasing the field of competitors that the end result is a better quality service for the people 

in need. 

Mr. RENZI. Thank you, sir. Thank you. 

Chairman NEY. Thank you. 

Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman. 

I neglected to say hello to my friend, Mr. Streeter. I met you in 

Charlotte. Good to see you again. I meant to say that when I first 

came in. I knew that I had seen you before, but it is great to see 

you again. I appreciate you all being here. 

Let me just kind of get—I mean, I am reading something here 

that—and I wanted you all to maybe set me at ease that I 

shouldn’t be concerned about what I am concerned about. 

It is not the discrimination in the recipients of a particular service. I presume that that is something that you can enforce. But, 

under HOPE III, under housing opportunities for persons with 

AIDS, under Emergency Shelter Grant programs, ESG, under shelter plus care, and under Supportive Housing Program, SHP, and 

under youth bill, the Federal Regulations 24 CFR and the particular sections that related to each of those programs had a provision which said: A primarily religious organization receiving funds 

under the program will not discriminate against any employee or 

applicant for employment under the program on the basis of reliVerDate 0ct 09 2002 09:52 Oct 09, 2003 Jkt 000000 PO 00000 Frm 00052 Fmt 6601 Sfmt 6601 C:\DOCS\89410.TXT MICAH PsN: MICAHW
47

gion and will not limit employment or give preference in employment to persons on the basis of religion. 

The proposed rules delete that language in 24 CFR. Now that 

may be because it was unnecessary because these organizations, 

religious organizations and all other organizations, can’t discriminate in employment. 

The problem is that religious organizations can discriminate in 

employment on the basis of religion. My concern—and all of black 

America’s concern, to be honest with you—is that by eliminating 

those provisions you have invited churches to discriminate in their 

employment practices on the basis of religion; and the result of 

that is not only to allow them to discriminate on the basis of religion but that the result of their being able to discriminate on the 

basis of religion is synonymous, in 95 percent of religious America, 

with allowing them to discriminate on the basis of race. 

Now the simple question I am raising is, should I not be concerned about that? Is that not the intent of this Administration or 

can religious organizations now discriminate under these proposed 

rules? If the proposed rules were adopted, would they be allowed 

to discriminate in the delivery of these services on the basis of religion? Would they be able to say, if you are not Jewish, you can’t 

work here? We hire only Jewish employees because we are a Jewish church—in the delivery. Then what happens then if a nonJewish person happens to be the most qualified person? 

Or if it is a white church—and in my area of the country, still, 

most of most churches are either black or white—can they say, we 

hire only Baptists who are members of our church and therefore we 

hire no black people? 

That is the question I am—you know, if you can set me at ease 

about that question, you know, I don’t have any problem with this 

program. Now, somebody please set me at ease about this. Is that 

what you are intending, or put—if not, why did you terminate 

these provisions? 

Mr. JIMENEZ. Mr. Congressman, I would be happy to attempt to 

answer your question. I know that you know this already, but for 

those in attendance today who may not know this let me just state 

for the record that our rule is very clear that all faith-based organizations are subject to the parts of Title VII that prohibit discrimination on the basis of race as well as gender, national origin—— 

Mr. WATT. You are playing games with me, Mr. Jimenez. You are 

playing games with me now. That does not answer my question. 

Mr. JIMENEZ. I didn’t finish with my answer, sir. 

Mr. WATT. Go ahead. 

Mr. JIMENEZ. But I think that needs to be said for the record, 

to put the minds of people here at ease who may think that our 

rule directly allows discrimination on the basis of race. It does not. 

On your question about whether or not the rule allows faithbased organizations to take religion into account when hiring—— 

Mr. WATT. To discriminate on the basis of religion. 

Mr. JIMENEZ. To take religion into account—— 

Mr. WATT. To discriminate. 

Mr. JIMENEZ. ——hiring decisions. HUD is not breaking new 

ground here. To lay out the groundwork, Congress in 1964 gave all 

faith-based organizations the right to take religion into account 

48

when hiring. Congress expanded that right in 1972. The Supreme 

Court upheld that right as constitutional in 1987. 

Mr. WATT. So you are saying now that you take what the Supreme Court said to extend all of the way over into building a 

house out there; and if I am not a member of your church, even 

if I am the most qualified employee out there to build that house, 

you can refuse to hire me. 

Mr. JIMENEZ. Actually, we are not taking the Supreme Court’s 

lead so much as we are following Congress’ lead. This rule covers 

eight different grant programs. Congress said that faith-based organizations cannot take religion into account when hiring for two 

of these programs. For the remaining six, the ones that you named, 

Congress has had the opportunity, ample opportunity to take back 

from faith-based organizations their freedom to take religion—— 

Mr. WATT. Mr. Jimenez, if that is the official position of this Administration, I am saying point blank to you and this Administration that that is a racist position. It is, and that will be the result 

of it, and I can’t be any more blunt than that. 

Now if you want to be labeled with that, if HUD wants to be labeled with this, if this Administration wants to be labeled with 

that, then so be it. But what you just said to me is that you think 

it is okay. You think everything I just described to you is okay. I 

think you are making a serious, serious misjudgment; and I think 

this Administration is. 

I yield back the balance of my time. 

Chairman NEY. What I will do is—the gentleman yields back the 

balance of his time. On my time here, I have got another question, 

but I will let you put your thoughts out. 

Mr. JIMENEZ. Congressman Watt, just to be clear, any faithbased organization that uses its religious hiring freedom as a pretext for racial discrimination, in my opinion, in HUD’s opinion, in 

this Administration’s opinion, is doing something reprehensible and 

illegal. One cannot use the religious hiring freedom as a pretext for 

racial discrimination. 

But, more importantly, I don’t think when Congress—with respect to six of these eight grant programs, when Congress allowed 

the faith-based recipients of those funds to take religion into account in hiring, I don’t think Congress thought that it was performing a racist act; and this Administration certainly doesn’t believe that either. 

Chairman NEY. Let me ask you this—we will go another round 

of questioning. What is your—to get it clear in my mind—I don’t 

know the legal history of this, but what you are saying is that this 

has existed for X number of years, 1964, 1972. Was there any 

change in the last 10 years on this or—— 

Mr. JIMENEZ. I would be happy to lay it out for you. 

This CDBG statute was authorized by the Congress in 1974. 

In 1990, Congress amended that statute and said that faithbased recipients of CDBG funds don’t have religious hiring freedoms. 

In 1990, Congress first authorized the HOME program and, at 

the same time, said that faith-based recipients of Home funds do 

not enjoy religious hiring freedoms. 

49

That is the first two of the eight grant programs covered by this 

rule. There are six others. Two of them were passed or first authorized by Congress in 1987. The remaining four were first authorized 

by Congress in 1990. Congress knew how to tell faith-based organization that they did not have religious hiring freedoms and Congress demonstrated how with respect to the first two grant programs. 

But Congress deliberately did not do the same with respect to 

the other six. We are simply following Congress’ lead, and we think 

Congress—— 

Chairman NEY. This existed before President Bush? 

Mr. JIMENEZ. That is correct. 

Mr. FRANK. Before one President Bush, not before the other. 

Mr. NEY. And after 41, then President Clinton. So this has been 

there. 

Mr. JIMENEZ. This has been the law. 

Chairman NEY. Whether they were Democrat controlled or a 

Democrat or Republican President and they didn’t change it? 

Mr. JIMENEZ. Exactly. 

Chairman NEY. So, therefore, would we consider them racist? I 

am trying to lay it out. Although people might want to change it. 

It might be the desire of Congress to change it. 

Mr. JIMENEZ. If Congress wants to take some or all of the remaining six and say that faith-based organizations do not enjoy religious hiring freedoms, that is Congress’ prerogative. I don’t think 

the Administration is necessarily calling on Congress to do that, 

but Congress has that freedom if it wishes. 

Chairman NEY. Let me ask the question—as this started, as I assume there were some barriers, that is why this issue came up. I 

think it came up like—I don’t know, one of the Senators had supported this during the election process, and both sides of the aisle 

had come out with some type of idea to stop barriers, or groups just 

because they were of a certain religion, if I can recall on this issue. 

What kind of barriers were out there? What kind of government—do you have any idea of what some of the government barriers were for these groups? 

Mr. STREETER. I will be happy to answer that question, Mr. 

Chairman. 

With respect to the proposed rule and the current regulations 

that are on the books, we had in seven of the eight programs here, 

for instance, prohibitions on anything bordering on religious influences. That generally tends to be implemented sort of at the lowest 

possible level. People would tend to shun faith-based organizations 

altogether if they have any doubt as to whether or not this organization was the kind of organization that should be funded under 

a given program. Two programs outright exclude faith-based organizations as a general rule. 

Again, the way this translates on the street into a barrier is that 

a local official, whether it is a local CDBG official from a city or 

a HUD official in a field office, will be of the mind and have been 

of the mind that they ought to instruct faith-based organizations 

either not to apply or will tell others not to work with faith-based 

organizations. That has, in fact, happened. So that would be a barrier. 

50

Overall, we just find that there is a problem with the tone in the 

regulations; and they make it very, very difficult for faith-based organizations to apply if there is any question. We have run into a 

number of cases where faith-based organizations have had problems on this front simply because they have been told they better 

not apply or, if they do, they need to completely strip their facilities 

of anything that looks religious and the like. 

There are other barriers as well. I mean, there are barriers in 

the grants process, which doesn’t necessarily apply to this proposed 

rule, but there are barriers as well in terms of the complexity of 

the documents that are required to file in terms of the application 

process as a whole and the documents that support it. We have 

been engaged in an effort to simplify that as well so that it is easier for smaller grass roots organizations to understand. 

Chairman NEY. Thanks. 

Mr. Frank. 

Mr. FRANK. That part is not controversial. I note in the Executive Order in Part 3 it is repetitive. It applies to eight programs. 

The parts that say you can’t be penalized for your religious character, which is in Part 1, the parts that say you shouldn’t be penalized for religious name, those are noncontroversial. In fact, they 

are often not followed, and they should not have been followed, and 

they should have been changed. 

So that is not controversial, much of what you said. What is controversial is what Mr. Watt mentioned. 

Now, Mr. Jimenez, I know you just forgot—I am sure it was on 

your mind, but you forgot to mention that those six programs you 

talked about where you said Congress in fact did not include in discrimination language, but from almost the beginning regulations 

were promulgated, beginning with President Bush and then President Clinton, which did in fact say no religious discrimination. 

So my sense has been here is that Congress didn’t feel the need 

to do that because all of them did have that language in there. So 

two had it statutorily, but the other six programs you talk about 

have, from their beginning, had language promulgated by regulation which said you couldn’t discriminate. That was President Bush 

and President Clinton. 

And you didn’t then answer Mr. Watt’s question. You gave a history of it. But, in fact, previously, while they didn’t have that—they 

weren’t prohibited by statute from religious discrimination, they 

were prohibited by regulation. 

Mr. JIMENEZ. That is absolutely correct. 

Mr. FRANK. Thank you. 

What then about the substantive question Mr. Watt asked? 

Let me put it to you this way. Under CDBG, you are the experts 

in this program. A Mayor who decides to give the money to the Nation of Islam to protect housing authority security—that happened 

before, in fact. I remember a number of my Republican colleagues 

were quite exercised about it. Under these regulations, a Mayor 

who decides to give the Nation of Islam money to protect his or her 

housing tenants, that is perfectly okay, and the Nation of Islam 

may employ only its congregants; is that correct? 

51

Mr. JIMENEZ. Well, it is a two-part question, as I hear it. The 

first part was whether or not they could give services or permit 

only adherents to be beneficiaries, and the answer is no. 

Mr. FRANK. Not beneficiaries. We are talking only about employees. You know that, Mr. Jimenez. You are not being honest with 

us intellectually. I am disappointed in that. You know we are talking about employees. We are asking about whether a Mayor can 

give money to the Nation of Islam to provide security services and 

hire only congregants of the Nation of Islam? Is that—— 

Mr. JIMENEZ. I am being completely honest. I thought I heard in 

your answer something about beneficiaries. However, as far as taking religion into account when hiring—— 

Mr. FRANK. No, answer the question. It is a simple question. The 

Nation of Islam, under these rules, are they an eligible grantee and 

can they then hire only people who are members of the Nation of 

Islam? 

Mr. JIMENEZ. If the Nation of Islam is a legitimate religious organization. I don’t know enough about the Nation of Islam to comment on that. 

Mr. FRANK. I had hoped maybe you would answer a question 

honestly. I think you are not. 

Next one. How about Scientology? Suppose a Mayor somewhere 

gives a grant to the Church of Scientology, which has been recognized as a religion. You say legitimate religion. I assume the test 

here is—let me ask. Is there a test other than the one we use, the 

IRS’ tax exemption? Is there some other test that is going to be involved here as to whether you are a legitimate religion? That would 

make us very nervous. How do you decide? 

Mr. JIMENEZ. The only test that this Administration applies is 

whether or not the services provided by the faith-based organization work. 

Mr. FRANK. No, Mr. Jimenez, you are changing the subject, and 

you know it. You said you don’t know if the Nation of Islam is a 

legitimate religion. I understood they were a legitimate religion by 

the applicable test: They got a tax exemption, and they are recognized by the IRS. Are you suggesting that there is some additional 

test as to whether or not you are a legitimate religion to qualify? 

Mr. JIMENEZ. I don’t know if there is something else about the 

Nation of Islam that could disqualify them from the program. 

Mr. FRANK. I am asking you procedurally now. Your determination not to answer tough questions is impressive, but it doesn’t get 

you away from the tough issues. In this program, it says faithbased organizations. We are talking now not about HUD but about 

the entitlement communities. I am the Mayor of an entitlement 

community. Under this program, if it is legally recognized as a religion by State and Federal law, are they then automatically eligible 

for grants under the CDBG faith-based program and can hire only 

their own? 

Mr. JIMENEZ. If there were no other disqualifying factors, any 

faith-based organization—— 

Mr. FRANK. What disqualifying factors would there be? 

Mr. JIMENEZ. I am not familiar enough. 

Mr. FRANK. I get it. I think the fact that you don’t answer—— 

52

Mr. JIMENEZ. Sir, I will answer your question as directly as I 

can. 

Mr. FRANK. What about Scientology? 

Mr. JIMENEZ. If they have—sir, if they provide a service that fits 

within the HUD criteria of providing either services for the homeless—— 

Mr. FRANK. Not CDBG—but let me ask you another question. In 

terms of the money that goes to build the house of worship for dual 

purpose that can be partially a house of worship, is that measured 

physically or temporally? Can I say, okay, 22 percent of the building was built with public funds, and it can be used 22 percent of 

the time for religious purposes, or 22 percent of the building or 11 

percent half of the time? I mean, what are the rules that apply? 

Can it be temporal? Can I say 22 percent of the money came from 

the Federal Government. The building can be used 78 percent of 

the time, the whole building, for religious purposes? Is that accurate? 

Mr. JIMENEZ. Yes. That was our intention. 

Mr. FRANK. Okay. 

Mr. JIMENEZ. There is more here that I think that you would like 

to hear, with all due respect, Mr. Congressman. On that particular 

part of the HUD rule, it was never HUD’s intent to subsidize, even 

partly, principal places of worship. Upon issuing the proposed rule 

and hearing comments about the rule—— 

Mr. FRANK. You are changing it? 

Mr. JIMENEZ. Well, we are closely considering all comments that 

have been received. 

Mr. FRANK. I am glad you are closely considering all comments. 

Mr. JIMENEZ. We are considering several options of amending the 

language. 

Mr. FRANK. The part that says CDBG funds may be used for the 

acquisition, construction or rehabilitation of structures, where a 

structure is used for both eligible and inherently religious activities, they may not exceed the cost of those portions, et cetera, that 

is under serious consideration to be changed? 

Mr. JIMENEZ. That is. We think that there is a way of clarifying 

our intent and easing some of the concerns about that language, 

and we are presently entertaining options. 

Mr. FRANK. Last question. 

Mr. FRANK. Last question, to go back to the point that Mr. Watt 

and I have been trying so hard to get an answer, the fact that the 

effect of religious-based hiring might be racially exclusionary, Orthodox Jews in Brooklyn, Mormons somewhere else, the Nation of 

Islam in Baltimore, is that, in and of itself, a disqualifying factor 

in your mind and in the minds of the Administration? 

Mr. JIMENEZ. If racial discrimination is intended? 

Mr. FRANK. No, not if it is intended. You know that we are not 

talking about intended. You are not being honest. You know that 

is not what we are talking about. We are talking about the fact 

that there aren’t very many black Orthodox Jews. There aren’t 

very many white members of the Nation of Islam. If the effect in 

this is to get a segregated impact, is that in any way a problem 

from the Administration standpoint? 

53

Mr. JIMENEZ. We agree with Congress that the freedom to take 

religion into account in hiring is a freedom that should generally—— 

Mr. FRANK. Would you answer my question? Does the fact that 

it might have a racially discriminatory or exclusionary aspect, is 

that troubling? I didn’t ask you whether or not you agree. 

Mr. JIMENEZ. I think it is troubling on a personal basis, but I 

think on a legal basis—— 

Mr. FRANK. On the Administration basis, from the Administration standpoint, is it irrelevant as a policy matter? 

Mr. JIMENEZ. I think it is irrelevant as a legal matter. As a policy matter, I think it is relevant. But there are many things in this 

country that are troubling, and I think we should all as people—— 

Mr. FRANK. Are you doing anything about it, if it is troubling as 

a policy matter? 

Mr. JIMENEZ. Is the question whether or not we are doing anything to end de facto segregation? 

Mr. FRANK. That isn’t what I asked. 

Chairman NEY. The time of the gentleman has expired. 

Mr. Renzi. 

Mr. RENZI. Thank you, Mr. Chairman. 

When we talk about the true effect or the true intent here, isn’t 

it really honorable though that what we are trying to do is that we 

have got faith-based organizations that are already established in 

the community, who have already proven themselves worthy of 

good deeds in the community, who currently, legally are allowed to 

discriminate based upon hiring practices as to faith? These are established Title VII freedoms. These organizations are now in a position where they can expand services or provide services and that 

those services, the populations that they will actually serve are the 

disadvantaged, are the most needy, are at times the Hispanics in 

Arizona. And so, if we are able to get the Federal funds to these 

organizations who are currently doing good with their work, then 

the most needy, the most disadvantaged of all races and colors and 

creeds and genders will be the ones who benefit. Isn’t that really 

the honorable intent and not to discriminate as this discussion has 

been taking? 

Mr. JIMENEZ. All along this Administration has been very clear. 

The focus should be primarily the people in need, the people who 

are suffering, the people who need services. 

We have found in our experience that many faith-based organizations themselves either represent a disproportionately minority 

population or serve a disproportionately minority clientele. These 

changes are going to make it easier for faith-based organizations 

to help the people all throughout America and especially in inner 

cities and other places. 

Mr. RENZI. You mean to tell me, you actually have people of faith 

who are actually helping people of color, sir, in a disproportionate 

aspect as to the amount of white people who are working for them? 

You mean we actually have faith-based organizations who are, 

right now, disproportionate as to the numbers of employees? So if 

you were to take the number of employees that they have in the 

organization and you look at where their dollars are going, where 

the real help is going, you are seeing that they are actually helping 

54

people of color, people of need, people of poverty, is that what you 

are telling me? 

Mr. JIMENEZ. Absolutely. And that is what we see in our experience everyday. And I might also add, the religious hiring freedom 

that was given by Congress when Title VII of the Civil Rights Act 

of 1964 was passed, that freedom is not a controversial one. It was 

affirmed in ’64, reaffirmed in ’72 with broad, bipartisan support in 

Congress. It was unanimously upheld as constitutional by the Supreme Court in 1987. 

This is not a controversial freedom. 

Mr. RENZI. Thank you. 

Chairman NEY. Mr. Watt? 

Mr. WATT. Let me just direct this to Mr. Renzi, since he seems 

to be directing all his comments toward me. 

Mr. RENZI. Not directed towards you, but directed towards the 

goodness of the programs. 

Mr. WATT. And just make it clear to you, from my perspective, 

the ends don’t justify any means. When you fought as hard to 

eliminate discrimination and segregation and racism as I have, 

even sometimes when you get good ends, you’ve still got to look at 

the means through which that happens. And we will have that conversation in private if you would like, if you would like to pursue 

it, but let me get back to this. 

Mr. Weicher, you have let them run your interference for you, 

and I don’t mean that in any negative sense. But it is your statement that was the statement that we started with, and your statement on Page 2 says—describes the President’s order of December 

12, Executive Order 13279, that sets out clear principles, and I am 

quoting, ‘‘Ensuring that all eligible social service organizations are 

able to compete on an equal footing for Federal financial assistance.’’ and then the next paragraph, you say, ‘‘HUD is simply’’—

well, you say, ‘‘HUD’’—I am quoting, ‘‘HUD is actively implementing the order to ensure that our policies and programs create 

a level playing field for faith-based organizations. 

Now, I take it that a level playing field would be a playing field 

that either allows discrimination or doesn’t allow discrimination, 

Habitat for Humanity, none of the 501(c)(3)organizations have the 

ability to discriminate on the basis of race. How is it that giving 

churches, who are grant recipients, the right to discriminate on the 

basis of race or religion creates some level playing field? There is 

something unequal about that as far as I am concerned. 

If I set up a 501(c)(3) organization, I am bound by the civil rights 

laws of this country. I can’t discriminate on the basis of race or religion. 

Mr. RENZI. Yes, you can. Sorry to interrupt you, sir. Yes, you can, 

but that is the point, under Title VII, you can discriminate. 

Chairman NEY. Would the gentleman like to yield or not? 

Mr. WATT. Why don’t I just ask my questions to Mr. Renzi, since 

he knows so damn much about this. And I wouldn’t like to be interrupted either. 

Chairman NEY. You can continue. 

Mr. WATT. Now, churches have the right to discriminate in their 

religious activities, 501(c)(3) organizations do not. Is that correct or 

not correct, Mr. Weicher? 

55

Mr. WEICHER. Mr. Watt, as I was saying to Mr. Frank, I am not 

a lawyer, and I am not an expert. 

Mr. WATT. Why did they send you over here to deliver this? 

Mr. FRANK. Will the gentleman yield? I can answer that. 

Because when we wrote the letter, we said that we would want 

someone at the assistant-secretary level or above, and Mr. Weicher 

seemed to be the only assistant secretary in town today. 

Mr. WATT. Okay. At least there is some rational explanation. 

Mr. FRANK. If the gentleman would let me yield further. 

And they think the Administration was not interested in giving 

answers to some of these questions at a level where they might sort 

of have trouble backing away later. 

Mr. WATT. All right, Mr. Jimenez. 

Chairman NEY. Would the gentleman yield? 

Go ahead. 

Mr. WATT. I am stuck with you, although I can’t get an answer 

out of anybody on this panel. I am just trying to get an answer. 

I am not adverse to you. 

Mr. JIMENEZ. The question again is—— 

Mr. WATT. How does this create a level playing field, I guess, is 

the question that I started off asking, before I was so generously 

interrupted by my colleague. 

Chairman NEY. We will generously give you some overtime. 

Mr. JIMENEZ. The Administration feels strongly that faith-based 

organizations should have the same access to HUD grants. 

Mr. WATT. As do I. 

Mr. JIMENEZ. Except that before this rule, faith-based organizations had to jump through hoops that secular organizations didn’t 

have to. 

Mr. WATT. And I don’t think they should either, Mr. Jimenez. We 

are on the same side of that issue. 

But the issue that we don’t seem to be on the same side of is 

whether there can be discrimination in employment based on religion or—and, therefore, as a substitute based on race—in the use 

of Federal funds, not the—not in the pulpit. 

I am the staunchest supporter you would like to have to not putting a Baptist minister in a Jewish synagogue. I mean, I wouldn’t 

think of anything that ridiculous, which is why the religious exemption is in Title VII, but it never was in Title VII to allow 

churches to deliver services that are basically governmental services, social services, into the community: Housing, after school programs. 

And for this Administration to somehow take the silence of Congress on that as a license to go into the community and tell churches that you can discriminate, is just unforgivable in my opinion. 

Mr. JIMENEZ. Sir, I think I can answer your question. 

It is not just the religious services that faith-based organizations 

provide. In 1972, Congress expanded the religious hiring freedom 

that faith-based organizations enjoy under Title VII. And they extended it to all employees of the faith-based organization, whether 

or not they perform inherently religious functions. And it was that 

expanded freedom that the Supreme Court upheld unanimously in 

1987. 

56

I might also add that Charitable Choice has been on the books 

since 1996 and it governs—— 

Mr. WATT. I am sure this is in response to a question I asked, 

Mr. Jimenez. I can’t get a damn thing out of you all when I ask 

you a question, and you keep trying to give me stuff when I don’t 

ask you a question. Everybody keeps trying to give me information 

when I don’t ask a question. I can’t get any answers out of anybody 

when I ask a question. I mean, I am disturbed by that. 

If this Administration would send somebody over here who can 

answer the questions and stand up for the Administration and say 

what their policy is, which is that they intend to encourage religious discrimination in these programs, which is very apparent 

from the three gentlemen that they sent over here, I think is an 

abomination. And I think it is going to backfire on you. I think it 

is going to backfire on you from a social perspective, and all of this 

stuff that you were doing in the community in advance of finalizing 

the regulations, which is just politics, trying to get into every black 

church in the country, that is going to backfire on you, too. 

I yield back. I yield the rest of my time to Mr. Renzi. 

Chairman NEY. And I will answer any question if you ask me 

one. 

Mr. RENZI. Thank you, Mr. Watt. 

Chairman NEY. Anybody else have any desire to ask a question? 

Mr. WATT. I don’t want to beat them up. I would like to get some 

answers. 

Mr. JIMENEZ. I would be happy to answer a question. 

Mr. FRANK. One statement. 

Mr. Jimenez mentioned the 1972 Amendments, which did extend 

the freedom from religion. But those who cite that cite, to quote 

from Sam Ervin at the time, in which he says, ‘‘The hands of Caesar have no place in the institution of God.’’ Well, we are in a situation where the hands of Caesar are carrying money, and it is 

qualitatively different. It may be right or wrong. 

But, in fact, to invoke Sam Ervin’s quote when he said, ‘‘The 

hands of Caesar have no place in the institution of God,’’ when we 

have now decided that we are going to provide Federal money to 

carry out Federal purposes to these institutions, it is clearly not an 

automatic extension. 

So I would say that the invocation of the ‘72 Act does not meet 

the arguments that my colleague raised. And again the very justification that I see, citing Sam Ervin, it is a little bit different, I 

think a lot different, because once you have said—it is one thing 

to say we are doing this to give complete independence in the Federal Government. It is another to say, well, now the Federal Government is giving us money to tell us how to spend it. 

Mr. JIMENEZ. This would not be the first time, sir. 

Mr. FRANK. I am talking about the ‘72 Act. One thing on the ‘96, 

yes, that is true, that was done as part of the Welfare Bill. The 

Welfare Bill was very controversial. But it is also the case that 

when Bill Clinton signed it, he announced he was not going to enforce it. So it was not something that has, in fact, been in effect 

for very much time. 

Chairman NEY. Any other questions of the witness? 

57

I want to thank, again, the members for coming. And thank the 

witnesses for their interest and for coming here to the hearing 

today. 

[Whereupon, at 5:15 p.m., the subcommittee was adjourned.] 

(59)

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March 25, 2003

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April 28, 2003

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