[Senate Hearing 107-375]
[From the U.S. Government Printing Office]
S. Hrg. 107-375
FAITH-BASED SOLUTIONS: WHAT ARE THE LEGAL ISSUES?
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
JUNE 6, 2001
Serial No. J-107-24
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 7
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
Specter, Hon. Arlen, a U.S. Senator from the State of
Adams, Charles, Rev., Pastor, Hartford Memorial Baptist Church,
Detroit, Michigan.............................................. 46
Avery, John L., Government Relations Director, National
Association of Alcoholism and Drug Abuse Counselors,
Alexandria, Virginia........................................... 61
Diament, Nathan J., Director of Public Policy, Union of Orthodox
Jewish Congregations of America, Washington, D.C............... 66
Esbeck, Carl H., Senior Counsel to the Deputy Attorney General,
Department of Justice, Washington, D.C......................... 22
Foltin, Richard T., Legislative Director and Counsel, American
Jewish Committee, Washington, D.C.............................. 81
Goode, W. Wilson, Sr., Rev. Dr., Senior Advisor on Faith-Based
Initiatives, Public/Private Ventures, and Rector, Amachi
Program, Philadelphia, Pennsylvania............................ 42
Henderson, Wade, Executive Director, Leadership Conference on
Civil Rights, Washington, D.C.................................. 65
Laycock, Douglas, Alice McKean Young Regents Chair in Law,
University of Texas, Austin, Texas............................. 74
Morgan, Edward, President, Christian Herald Association, New
York, New York................................................. 59
Santorum, Hon. Rick, a U.S. Senator from the State of
Scott, Hon. Robert C., a Representative in Congress from the
State of Virginia.............................................. 13
Valentin-Castanon, Eliezer, Rev., Program Director, General Board
of Church and Society, United Methodist Church, Washington,
Zwiebel, David, Rabbi, Executive Vice President for Government
and Public Affairs, Agudath Israel of America, New York, New
QUESTIONS AND ANSWERS
Responses of Richard T. Foltin to questions submitted by Senator
Responses of Richard T. Foltin to questions submitted by Senator
FAITH-BASED SOLUTIONS: WHAT ARE THE LEGAL ISSUES?
WEDNESDAY, JUNE 6, 2001
United States Senate,
Committee on the Judiciary,
The Committee met, pursuant to notice, at 10:02 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Biden, Schumer, Durbin, Hatch,
Specter, Sessions, and Brownback.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. The Committee will be in order.
I wanted to follow a tradition that I have followed now for
20-some-odd years. I have chaired probably half a dozen
different Committees at different times. I have been twice in
the minority, three times in the majority, which gives you some
indication of how the Senate changes all the time. What I have
always done is started a new Committee with a gavel that my son
made for me in high school. I know I embarrass him every time I
mention that, but this is the gavel I have always used and so
that is where we will start.
I would say to my friend, Senator Hatch, we are starting
with this hearing out of courtesy both to him and to President
Bush, even though we have not yet reorganized the Senate.
Senator Hatch and I have joined with Senators Biden,
DeWine, Thurmond and Feinstein to introduce S. 304, the Drug
Abuse Education, Prevention, and Treatment Act. It takes a very
comprehensive approach to the drug problems that most affect
our communities. It is designed to reduce illegal drug use and
to provide appropriate drug education, prevention, and
Senator Hatch wanted the charitable choice language to be
included in the bill and he had been planning this hearing
earlier this year. He had had to postpone earlier to
accommodate my schedule. I am proceeding with it this morning
to accommodate him. He had done the planning as chairman, and
he did it in furtherance of our common interest in passing this
anti-drug legislation. As it was on the schedule, I wanted, as
I said, to accommodate him and go forward.
Now, I also wanted to demonstrate at the outset my
intention to find ways to work constructively with the Bush
administration. When I chaired this Committee in the early days
of this Congress, we proceeded with expeditious hearings on the
President's nomination of John Ashcroft to be Attorney General.
Because we did that, we were able to move on the floor of the
Senate Senator Ashcroft's nomination within 48 hours of the
time his papers actually came up here from the White House. So
within 48 hours of the time his nomination hit the Senate, with
the unanimous approval to move forward of both Democrats and
Republicans, we did that.
President Bush has a faith-based initiative. I believe this
is probably going to be the first Senate hearing on the
President's administration priority. I have made clear some of
my concerns and reservations about this proposal, but we are
trying to find some common ground here and that is why we are
The Hatch-Leahy anti-drug abuse legislation is an important
effort. I think we can make progress in the fight against drugs
by using it. In fact, I have every intention of moving forward
on judicial nominations within a couple of weeks of the time
the Senate has been reorganized.
Long before Congress passed the first charitable choice
provision in 1996, the Federal Government and the States had
established strong cooperative relationships with a broad range
of faith-based charities. Indeed, many faith-based charities
receive millions, or even billions of dollars a year in
Government funds today without any new initiative.
We owe a debt of gratitude to groups like Catholic
Charities and the United Jewish Communities, among others, that
offer critically needed social services through publicly funded
and professionally managed programs. Given the success of these
programs, I have to ask why we need extensive expansion of
Government involvement in faith-based charities. I want to know
just what is the problem we are trying to fix, and I hope our
witnesses will tell us that.
We could also use the hearing to address some of the
serious legal and policy concerns that have been raised about
proposed expansions of charitable choice by religious leaders,
civil rights leaders, and ordinary Americans across the
I have more in my written statement, but among those
concerns is the impact of charitable choice on religion. There
is an old saying about a certain road that is paved with good
intentions and where it leads to. Charitable choice may be
well-intentioned, but I do have grave concerns about where it
may lead us.
I will include in the record a letter signed by almost
1,000 religious leaders from across the theological spectrum
who say that charitable choice poses a danger to religion
because the flow of Government dollars and the accountability
for how those funds are used will inevitably undermine the
independence and integrity of houses of worship.
When so many of our religious leaders reject a proposal
that is purportedly designed to help religious organizations, I
think we in Congress should at least listen. No matter how we
feel about this proposal, we do know, and I think we all
agree--whether we are supporters or opponents of this, we all
know that we do not want Government meddling with our religion,
whatever religion we have.
According to a recent report by the Pew Forum, most
Americans, 68 percent, worry that faith-based initiatives will
lead to inappropriate Government interference with religious
organizations. I worry that an expansion of charitable choice
could harm religion in other ways, and we should consider how
Government funding of religious charities will affect the
spirit of giving that we now see in this country.
Some ministers predict that an infusion of Government
funding will result in a decrease of volunteerism within their
congregations. The congregation would think that they don't
need to give money. Charitable organizations have already
suffered one financial blow this year in the form of estate tax
repeal. According to the Treasury Department, this legislation
will reduce charitable giving by as much as $6 billion a year,
and that is lot less money for some of the social programs that
faith-based organizations now conduct.
There are also questions about how current charitable
choice proposals will affect State licensing and certification
requirements. In 1997, then Governor Bush sponsored laws in
Texas that exempted faith-based drug treatment and child care
centers from State health and safety regulations, and now we
are seeing the results of that.
At one center for troubled youth, a girl was bound with
rope and duct tape. At another, police arrested the supervisor
for unlawful restraint after he allegedly roped two children
together and made them dig in a sewage pit. There was no
supervision because there was an exemption for faith-based
Many social service providers require specialized training
to address the medical needs of their patients; in drug
treatment, for example, the programs established in S. 304.
Drug addiction is a medical disease that has established
medical treatments. Spiritual instruction may be fine, but it
alone cannot adequately address the medical needs of the
addicted person. We must make sure that if a faith-based
organization receives Federal funds they are held to the same
standards of licensing and expertise and all that their secular
Then, of course, there is the constitutional question. Does
the Establishment Clause permit public money to flow directly
to churches, synagogues, mosques, and other houses of worship?
In the past, the Supreme Court has considered direct financial
aid of the sort contemplated by charitable choice to be
In Texas, an employment program financed under charitable
choice is now accused of proselytizing. The program bought
Bibles for students, required them to study Scripture, and
taught them ``to find employment through a relationship with
Jesus Christ.'' Probably a noble gesture, but many of the
students claimed that they had been pressured to change their
The Reverend John Castellani, the executive director of
Teen Challenge, testified before a House Subcommittee last
month on charitable choice. Teen Challenge offers a year-long
residential drug treatment program which challenges the
residents to embrace the Christian faith.
During his testimony, Castellani was asked if this would
preclude participants from other faiths. He responded that it
accepts anyone, including Jews, some of whom he said may have
returned to Judaism, but some of whom become ``completed
Jews,'' meaning they have converted to Christianity.
Many people took a great deal of concern from that
statement. Some might suggest that it is a terribly arrogant
statement, basically saying that if you are a Jew and you do
not convert to Christianity, then you are an incomplete Jew. I
think that that may be a new tenet in one of the world's oldest
religions. This sort of response has fueled concern that
charitable choice will result in government-funded
proselytizing. So these are things we have to look at.
I will submit for the record the written testimony of Dr.
Derek Davis, of Baylor University, who is a leading expert on
the religion clauses.
We have to ask does this ease back from our Nation's
commitment to equal protection under the law. The charitable
choice provisions now before Congress would give government-
funded religious organizations an unprecedented exemption from
the Federal civil rights laws.
Unlike other recipients of taxpayer dollars, faith-based
social service providers would be entitled to discriminate on
the basis of religious when hiring and firing staff. What does
The New York Times ran a story in April about a woman named
Alicia Pedreira. She worked as a therapist at the Kentucky
Baptist Home for Children. She was fired because the religious
organization said that her beliefs did not reflect their core
values. Is this discrimination on the basis of religion, or is
religion being used as a pretext to discriminate against
By allowing discrimination on the basis of religion, we may
open the door to other forms of discrimination, including race.
As the New York Times noted, ``In theory, an organization like
Bob Jones University could receive public funds to hire
employees while forbidding them to engage in interracial
Religion plays a role in our society, and it can do that
without undermining our anti-discrimination laws. I hold my
religion deeply; I practice it faithfully, but I also keep it
separate from my duties as a U.S. Senator and as one who must
show equal deference to all people of this country.
Last year, we worked together on a bipartisan basis and we
crafted a bill that protected religious liberty without
sacrificing civil rights and we passed it, and I hope we can do
that again. We need to work closely together.
I think this is an important issue, and I don't pretend to
have all the answers, but I do think it is important enough
that when Senator Hatch had asked to have this hearing, even
though today was the first day of a different Senate, I felt
both out of respect for his concern and my respect for him
personally that we would go forward with this hearing.
[The prepared statement of Senator Leahy follows:]
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF
We are proceeding with this hearing today out of courtesy to
Senator Hatch and President Bush.
Senator Hatch and I have joined with Senators Biden, DeWine,
Thurmond and Feinstein to introduce S.304, the Drug Abuse Education,
Prevention, and Treatment Act of 2001, which takes a comprehensive
approach to the drug problems that most affect our communities, with
provisions designed to reduce illegal drug use and to provide
appropriate drug education, prevention, and treatment programs.
Senator Hatch insisted that charitable choice language be included
in the bill. Senator Hatch had been planning this hearing earlier this
year and had to postpone it to accommodate my schedule. I am proceeding
with it this morning to accommodate him, the planning he did when he
thought that he would be chairing the hearing, and in furtherance of
our common interest in passing our anti-drug legislation.
With all the recriminations that have been flying around over the
last several days in connection with the shift in control in the
Senate, I also wanted to demonstrate at the outset my intention to find
ways to work constructively with the Bush Administration.
When I chaired this Committee in the early days of this Congress we
proceeded with expeditious hearings on the President's nomination of
John Ashcroft to be Attorney General. Having done so, we were in
position to have this Committee and the Senate proceed promptly and
without delay to consider and vote on the confirmation of the Attorney
General as soon as the nomination was received.
President Bush has his Faith-Based Initiative and, I believe, this
will be the first Senate hearing on that Bush Administration priority.
I have tried to make clear and will again today my concerns and
reservations about this proposal. But we are proceeding out of a
willingness to discuss this matter, to consider it, and to try to find
common ground with Senate Republicans and the Bush Administration. The
Hatch-Leahy anti-drug abuse legislation is an important effort, and
with it we can make new progress in the nation's fight against drug
If my willingness to proceed with this previously scheduled hearing
is used against us or against the efforts of the Majority Leader to
reorganize the Senate and its committees without complication and
delay, I will have learned that no good deed will go unpunished by the
Republican opposition, and I will not make that mistake again.
Consistent with the steps toward cooperation and progress that
Majority Leader Daschle is leading and in contrast to the posture
struck by Senator Lott's recent memorandum urging his side to wage war,
fight and battle the Senate Democratic majority, we are marking the
Senate's transition today on this committee with a hearing that takes
full account of the interests of Republicans and the Republican
Now to the matter at hand: Long before Congress passed the first
charitable choice provision in 1996, the Federal Government and the
States had established strong cooperative relationships with a broad
range of faith-based charities. Indeed, many faith-based charities
receive millions or even billions of dollars a year in government
funds. We owe a debt of gratitude to groups like Catholic Charities and
the United Jewish Communities, among others, that offer critically
needed social services through publicly-funded and professionally
managed programs. Given the success of these programs, we ask why we
need extensive expansion of government involvement in faith-based
charities. What exactly is the problem that we are trying to fix? I
hope that our witnesses will speak to this basic question.
We should also use this hearing to address some of the serious
legal and policy concerns that have been raised about proposed
expansions of charitable choice by religious leaders, civil rights
leaders, and ordinary Americans across the country. I discuss a number
of concerns in my written statement, which I will make available and
incorporate in the record.
Among those concerns are the impact of charitable choice on
religion. There is an old saying about a certain road that is paved
with good intentions. Charitable choice may be well intentioned, but I
have grave concerns about where it may lead us. I will also include in
the record a letter signed by 969 religious leaders from across the
theological spectrum. These religious leaders say that charitable
choice poses a danger to religion because ``[t]he flow of government
dollars and the accountability for how those funds are used will
inevitably undermine the independence and integrity of houses of
worship.'' When so many of our religious leaders reject a proposal that
is purportedly designed to help religious organizations, we in Congress
should proceed with great care.
Americans do not want the government meddling with their religion.
According to a recent report by the Pew Forum, most Americans - 68
percent - worry that faith-based initiatives will lead to inappropriate
government interference with religious organizations.
Expansion of charitable choice could harm religion in other ways.
We should consider how government funding of religious charities will
affect the spirit of giving that religious charities currently inspire.
Some ministers predict that an infusion of government funding will
result in a decrease of volunteerism within their congregations,
because church-goers will get the impression that their small
contributions of time and money are no longer needed. This would work
against the stated goals of charitable choice.
Charitable organizations have already suffered one financial blow
this year, in the form of the estate tax repeal. According to the
Treasury Department, this aspect of the President's $1.35 trillion tax
legislation will reduce charitable giving by as much as $6 billion a
year. That means less money will be available for the sorts of social
programs that the faith-based organizations currently operate.
There are also many questions about how current charitable choice
proposals will affect State licensing and certification requirements.
In 1997, then-Governor Bush sponsored laws in Texas that exempted
faith-based drug treatment and child care centers from State health and
safety regulations. We are starting to see the results of the Texas
experiment. At one center for troubled youth, a girl was bound with
rope and duct tape. At another, police arrested the supervisor for
unlawful restraint after he allegedly roped two children together and
made them dig in a sewage pit. These cases are very troubling.
Many social service providers require specialized training to
address the medical needs of their patients. Take for example the drug
treatment programs established by 5.304. Drug addiction is a medical
disease, with established medical treatments. Spiritual instruction
alone cannot adequately address the medical needs of the addicted
person. We need to ensure that faith-based organizations that receive
federal drug treatment funds are held to the same professional
standards as their secular counterparts.
Then there are the constitutional questions. Does the Establishment
Clause permit public money to flow directly to churches, synagogues,
mosques, and other houses of worship? In the past, the Supreme Court
has considered direct financial aid of the sort contemplated by
charitable choice to be unconstitutional, because the government
monitoring needed to prevent the use of public funds for
proselytization creates excessive entanglement between government and
In Texas, an employment program financed under charitable choice
has been accused of proselytizing. The program bought Bibles for
students, required them to study Scripture, and taught them ``to find
employment through a relationship with Jesus Christ.'' Many of the
students claimed that they had been pressured by the program to join a
church or change their beliefs.
The Reverend John Castellani, executive director of Teen Challenge,
testified before a House subcommittee last month on charitable choice.
Teen Challenge offers a year-long residential drug treatment program
which, according to its web site, ``challenge[s] the residents to
embrace the Christian faith.'' During his testimony, Castellani was
asked if his program would accept participants from other faiths. He
responded that it accepts anyone, including Jews, some of whom return
to Judaism, and some of whom become ``completed Jews,'' meaning they
have converted to Christianity. This sort of response has fueled
concern that charitable choice will result in government-funded
proselytizing. The constitutional issues posed by charitable choice are
substantial, with substantial consequences for the relationship between
church and state in America. I will submit for the record the written
testimony of Dr. Derek Davis of Baylor University, a leading expert on
the religion clauses, who examines these issues at greater length.
As we will explore today, charitable choice proposals also raise
serious questions about our nation's commitment to equal protection
under the law. The charitable choice provisions now before Congress
would give government-funded religious organizations an unprecedented
exemption from the federal civil rights laws. Unlike other recipients
of taxpayer dollars, faithbased social service providers would be
entitled to discriminate on the basis of religion when hiring and
What does it mean to discriminate ``on the basis of religion''? The
New York Times ran a story in April about a woman named Alicia
Pedreira. She worked as a therapist at the Kentucky Baptist Homes for
Children, which receives State funds. She was fired because the
religious organization said that employing a gay person was contrary to
the organization's ``core values.'' Is this discrimination on the basis
of religion, or is religion being used as a pretext to discriminate
against homosexuals? By allowing discrimination on the basis of
religion, we may open the door to other forms of discrimination,
including race. As the Times noted, ``In theory, an organization like
Bob Jones University could receive public funds to hire employees while
forbidding them to engage in interracial dating.''
Religion can certainly play a role in our society without
undermining our anti-discrimination laws. We learned that last year,
when we considered legislation to ensure the highest level of legal
protection for the free exercise of religion. Members of this
Committee, working together on a bipartisan basis, were able to craft a
bill that protected religious liberty without sacrificing civil rights.
I supported that legislation, and it passed Congress with the blessing
of religious leaders and civil rights leaders alike. That experience
should serve as a guide as we consider charitable choice.
I hope that in today's hearing, we can start to identify the
problems that the faith-based initiative is trying to solve. If
problems do exist, we should work to address them without running
roughshod over the Constitution or our commitment to civil rights.
Most importantly, I hope this hearing allows us to move forward on
5.304 and pass this important drug treatment legislation through this
Committee and through the Senate. This bill can do a world of good, and
we should act on it promptly.
Chairman Leahy. Senator Hatch?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
Senator Hatch. Well, thank you, Mr. Chairman. I want to
thank you, and congratulations on becoming Chairman of this
very important Committee. I look forward to working with you. I
enjoy our relationship and we are good friends, and hopefully
we can accomplish a lot together.
Senator Biden. If the Senator would yield for a second?
Senator Hatch. I would be happy to do so.
Senator Biden. It is obvious that we understand it is
better to be lucky than good.
Chairman Leahy. No. It is better to be a Vermonter than to
Chairman Leahy. Vermont is a very special place. You may
have read a lot about it.
I am sorry. Go ahead, Orrin. I will stop if you stop.
Senator Hatch. I have to admit it is a very special place.
Senator Brownback. I will agree with that.
Chairman Leahy. Joseph Smith was born there, don't forget,
don't forget. I was in the town of his birth on the day of his
birthday about a week or so ago, Senator Hatch. I want you to
know I was there.
Senator Hatch. You would do well to pay more attention to
what he had to say.
Senator Hatch. We have been hearing more and more about
charitable choice or faith-based solutions over the past
several years. Of course, it was a policy endorsed
wholeheartedly during the presidential campaign by both
President Bush and former Vice President Al Gore.
Numerous faith-based groups and religious leaders have
embraced the notion that sectarian groups should be allowed to
competed on the merits for funding to administer secular
services to the American public, if they can demonstrate that
they meet the requirements provided in the programs.
Moreover, the American public overwhelmingly favors
allowing faith-based groups to have the opportunity to provide
social services to those in need. Although I have been one who
is somewhat skeptical of the polls and polling data, it is
interesting to note that according to a recent poll conducted
by the independent Pew Research Center, 75 percent of the
American public supports the concept of faith-based funding,
while only 21 percent oppose it.
The Pew poll also found that the majority of both
Republicans and Democrats strongly favored allowing churches
and religious institutions to apply for Federal grants to
provide services to the needy. Thus, this broad support for
charitable choice crosses party lines and ideological
differences, and the composition of our panelists today
While Americans understand the need for faith-based
programs, there are some who have raised concerns concerning
the constitutionality of allowing faith-based groups to receive
Government funds. But let's be clear about one thing: this
issue has not been a partisan matter to date. Since 1996,
charitable choice legislation has received bipartisan support
from both Houses of Congress, as well as from the Clinton
administration. These laws have allowed faith-based providers
to compete for Federal grants to provide services such as job
training and drug rehabilitation. Indeed, religious charities
currently receive about $3 billion each year in Federal funds
to administer certain social services.
President Bush has made the increased involvement of faith-
based organizations to address some of our social problems a
priority. Indeed, he created an Office of Faith-Based Services
within the White House to give these bipartisan programs a
The current debate centers around whether it is appropriate
to remove restrictions from existing funding streams to allow
more groups to help those who need help themselves. I believe
that after careful consideration of all the various concerns,
Americans who are most in need will benefit greatly from
building further on our charitable choice programs, which
President Clinton also supported.
A couple of months ago I, along with Senators Leahy, Biden
and others, introduced the bipartisan S. 304, the Drug Abuse
Education, Prevention, and Treatment Act of 2001 to shore up
our National commitment to the demand reduction component of
our National drug control strategy, which was mentioned by
We introduced this legislation because we know that in
order to reduce effectively drug abuse in America, we need to
increase the resources we devote to prevent people from using
drugs in the first place and also break the cycle of addiction
for those whose lives are devalued and consumed by these
substances. It only seemed appropriate in expanding prevention
and treatment programs that we tap every resource available to
carry out these important services, and it only seemed logical
to tap the resources faith-based providers can offer.
To achieve this goal, S. 304 includes charitable choice
provisions that require the Government to consider, on the same
basis as other non-governmental organizations, faith-based
organizations for providing the drug prevention and treatment
assistance under the programs authorized by the bill. This
provision is virtually identical to provisions in other Federal
programs that are currently the law of the land.
Now, I know that at the time we introduced S. 304 Senator
Leahy and others had some concerns and questions about the
charitable choice provisions and wanted to explore the legal
issues further. That is why we are here today. I continue to
remain committed to working with my good friend to address any
concerns within this very important bill. This hearing will
enable us to examine some of the possible concerns and
hopefully develop answers, where needed.
Charitable choice has its critics. Some have argued that it
violates the Establishment Clause of the First Amendment, while
others have argued that rampant discrimination would occur as a
result of charitable choice. Still others complain that
religious organizations will become dependent on the Federal
Government and lose their religious independence if they vie
for Government grants. There are all valid concerns, and we
hope to air them out and address them with the help of our
I believe all of our witnesses here today would agree with
me that we need to do more to ensure that everyone who is in
need of a helping hand, whether that be drug treatment, a hot
lunch, literacy tutoring, or spiritual guidance, can simply
reach out and that hand will be there.
The bipartisan and, in the words of some, ``revolutionary''
S. 304 is a step in that direction. It offers promise to those
who are addicted to drugs, who are some of our Nation's most
destitute citizens. I am proud to say that since its
introduction, numerous organizations, political officials, and
concerned Americans have contacted the Committee to praise the
At a press conference held prior to introducing the bill,
prevention and treatment experts, standing beside law
enforcement officials, regardless of party affiliation, spoke
in unison about how the various prevention and treatment
components of this bill will help to lower drug abuse in
S. 304 bespeaks our commitment to do more to prevent and
treat substance abuse. Such efforts, it is safe to say, will
prove worthwhile. Let me just emphasize, however, that while
this legislation will prove enormously helpful, it is not a
cure-all. Parents, grandparents, priests, pastors, rabbis,
teachers, sports heroes, celebrities, and everyone else
involved in a child's life needs to take an active role in
educating our children about the dangers of drugs.
Drug abuse knows no boundaries. It doesn't discriminate on
the basis of gender, race, age, or class. It is truly an equal
opportunity destroyer, and unless children are given the
knowledge and truth of how drugs will ruin their health and
future, they are vulnerable to the lies of those who are
peddling drugs. That is why it is so important that we enlist
everyone, including faith-based groups, in the fight to save
The fact is there is no simple answer to the problem of
drug abuse. We all must step up our efforts to do everything we
can to decrease the odds that our youth will fall prey to drug
abuse and increase the odds that they will live healthy,
All of our panelists who work with children understand the
pivotal role responsible, caring adults can play in the lives
of at-risk children. Allowing faith-based providers the
opportunity to reach more of these children will result in less
children falling prey to drugs and more children succeeding in
So I look forward to hearing our panelists' suggestions,
based on their own experience and expertise, about what works,
what doesn't, and what can be done. In particular, I am
interested in listening to any suggestions that you may have
for improving this legislation. That is important, as well.
I appreciate those who are here from Congress, and welcome
both of you to the Committee today and welcome all of the other
witnesses. This ought to be a very good hearing and we ought to
learn a lot about what we should be doing in this area.
So thank you, Mr. Chairman. I appreciate it.
Chairman Leahy. Well, I thank you.
We have Senator Santorum, of Pennsylvania, and Congressman
Bobby Scott, of Virginia, here. I will start with Senator
Santorum. I would indicate that I think the Senate goes in at
11:00. I am going to have to be on the floor at that time. I
think we have a vote thereafter, but I would hope to keep the
I would also note, as I said earlier, because people had
asked what the schedules might be, I intend to begin nomination
hearings for the judiciary certainly within a week or so of the
time we are reorganized. I had the opportunity to conduct a
large number of the hearings in President Reagan's last 2 years
of office and a number of the hearings in the normal rotation
of members during former President Bush's presidency.
I mention that because I read that a leading member of the
Republic Party's leadership said that Senator Leahy has given
no indication of being at all bipartisan. I would note that we
have not had any hearings on judges yet this year. I intend to
have them within two weeks of the time we organize. I would
also note that of the ones I chaired before, I think I ended up
voting for 98 or 99 percent of them. But for newer members of
the Senate who might not have known my record, I would pass
Senator Santorum, we are delighted to have you here.
STATEMENT OF HON. RICK SANTORUM, A U.S. SENATOR FROM THE STATE
Senator Santorum. Thank you, Mr. Chairman. I am glad to
hear those words.
Let me first congratulate you and Senator Hatch for
introducing S. 304, and I would like to just sort of move into
the two major areas of discussion of the President's
One is what I refer to as beneficiary choice; others term
it charitable choice. I choose to call it beneficiary choice
because what this provision does is actually gives
beneficiaries the opportunity to choose between a secular
program and a faith-based program. The requirements in the laws
that have passed to date require that there is a secular
alternative available as a prerequisite to having a faith-based
So there can never be a situation where someone is
receiving Government funds or Government grants and it is a
faith-based organization and they are the only one who is a
recipient of Government grants for that particular purpose. So
we understand that what we are talking about here is giving
people the opportunity to choose between two different types of
treatment with respect to government-funded programs.
I just want to bring you up to date on sort of where we are
now. Right now, with the existing statutory authority, the
White House can move forward in the area of discretionary
grants to faith-based organizations where faith-based
organizations are sort of in play and where they get involved
in provision of services.
About 75 percent of the money that is available for the
poor in discretionary grants is already covered by the previous
legislation we passed. The biggest chunk of that is obviously
TANF. What we are talking about expanding is actually a very
small part of money relative to what is already in law that we
can already act upon.
One is in the area of what you are addressing here today,
which is in the area of juveniles and drug abuse and juvenile
justice, and the other is in the area of housing and allowing
faith-based organizations to be more involved in housing.
But what is happening and I think what has gone
underreported is that the administration is already
implementing charitable choice or beneficiary choice in a very
aggressive way throughout the agencies. There are five agencies
that now have directors in the agencies that are working, and
they are working with Governors to promote charitable choice or
beneficiary choice at the State level in a variety of programs
that the State administers for the Federal Government.
The other thing that I wanted to stress in response to
Senator Leahy's concerns is what problem are we trying to fix
with beneficiary choice. That is a good question because, as
Senator Leahy mentioned, there are lots of faith-based
organizations that receive Government funds today. And he
mentioned some of them, but what he mentioned, and I think it
is really the case in point, are large, denominational churches
that have access to Federal dollars, Catholic Charities being
one, Lutheran Social Services another. But there are a variety
of others that freely access Federal funds under conditions
that they find acceptable.
The organizations that do not access these funds are
smaller, most non-denominational, or small, denominational
churches who do not have the infrastructure to go out and
interact with the Government, with all the rules and
regulations that are required under that.
So what we have ended up doing with previous charitable
choice or just previous Government funding is in a sense
discriminate against these small, non-denominational churches,
primarily in the minority community, primarily in the African-
American community and in the emerging Latino community. So a
lot of these churches simply don't have the wherewithal or the
network to be able to function in the area of communicating
with the Government. What this provision tries to do is, in
fact, create an opportunity for these organizations to reach
Now, one of the things that was asked was what do you think
we can do to improve some of the concerns that people have with
Government funds going to faith-based organizations or going to
churches or synagogues or mosques. What are the concerns we
have with the violation of the Establishment Clause? How can we
deal with the concerns of Title VII, which is discrimination in
Well, a couple of things. First off, one suggestion I would
make--and this is something that Senator Lieberman and I have
been working on, and, as you know, he is the cosponsor of one
of the bills I am going to talk about today and he has been a
strong supporter of charitable choice in the past--is that we
could require a new requirement that instead of funding any
organization that goes out there and provides social services
that we require churches to set up a separate 501(c)(3) as a
way for them to receive funds.
Instead of funding directly churches, if there is a concern
about direct funding of churches, and that is a concern
particularly when it comes to some of the smaller churches that
may be eligible--it is not concern for Catholic Charities
because you don't fund the Catholic Church; you fund a separate
501(c)(3). We may have that as a requirement that may allay
some of the fears of direct funding of churches, and it is
something that certainly I would be amenable to as an
additional provision of the charitable choice laws.
On the other concern about hiring, I would just suggest
that there has been a blanket exemption for faith-based
organizations to the civil rights requirement under Title VII.
That has been upheld by the Supreme Court. To say this is
unprecedented, I am not too sure is necessarily accurate. It
is, in fact, the precedent of the Court that permits
We are concerned, I understand, now that we are going to be
giving Government dollars to faith-based organizations that may
be discriminatory. We give Government dollars now to faith-
based organizations that, quote, ``may be discriminatory.'' We
provide for all of these organizations a charitable deduction.
So you can give tax dollars to these supposedly bigoted
organizations, and so we support them right now with Government
As Senator Leahy has mentioned before, there are a lot of
organizations now, faith-based in nature, that receive
Government funds. There are a lot of faith-based hospitals that
receive Government funds, schools and educational institutions
that receive Government funds, all of whom now have exemptions
from these hiring requirements.
Again, if we are focused on where this initiative is
focused on, it is focused primarily on smaller, non-
denominational churches or smaller denominational churches
principally in poor, minority areas. To bring this up in this
context, you know, I just question whether that is really a
concern or whether this is sort of trying to grasp at straws to
find a problem where one has really not existed in the past.
So I think there are adequate safeguards in place. This is
something that we have been doing for quite some time, and I am
hopeful that we can move forward to further expand it. Again, I
am willing, as I think I mentioned today, to look at ways to
provide some additional safeguards to make sure that we don't
get into the situation that we are directly funding churches
and church outreach and proselytization, which I don't think
anybody has the intention of doing. We want to fund services.
That is what the object of charitable choice is all about, is
to provide services to people, not to promote particular
Finally, the second provision that is in the President's
initiative which I think is vitally important is having to do
with charitable giving. This has broad bipartisan support. We
have introduced a bill, Senator Lieberman and I, that provides
non-itemizers, people who do not fill out the long form, the
ability to deduct charitable donations above $500. The reason
we use $500 is because in the standard deduction on the short
form, there is an assumption of $500 of charitable giving. So
above $500 would be eligible, on the short form, to be able to
One of the concerns Senator Leahy with the death tax repeal
is the reduction in charitable giving. This would be more than
compensate for any potential reduction in the amount of
charitable giving, to provide this incentive for people who do
not fill out the long form. Seventy percent of filers fill out
the short form. This would provide an incentive to do so. We
also have provisions having to do with IRA rollovers.
Chairman Leahy. Your point is that people will give
charitable contributions that they don't have to itemize or
have to establish that they gave in greater amounts than people
who planning estates do in laying out specific items that are
going to then be audited by the IRS? Now, that is faith-based.
That is faith-based, I want to tell you right now. That is
faith-based giving, faith that they will do it, but that is
Senator Santorum. We all are subject to potential audit
from our deductions that we take, but this is an opportunity
for those who right now do not have the opportunity to get any
tax benefits from charitable giving.
What I have found, at least, is that particularly in a lot
of the churches that I go to in the inner city a lot of people
there are very, very generous and give an enormous percentage
of their income relative to most people to their churches and
don't really get any tax benefit for doing so. I think this
would encourage that and help that along.
There are a couple of other provisions that are mentioned
in there. I don't want to take up any more of your time. You
have been gracious with our time and I appreciate it.
Chairman Leahy. Thank you, Senator.
Congressman Scott, you and I have discussed this whole
thing at length before and I appreciate your coming over. I
know that you have got all kinds of tugs on your time over on
the House side. I also know that Senator Santorum does, too, so
obviously either one of you feel free to go whenever you want.
Congressman Scott, thank you for coming over here and thank
you for appearing before us.
STATEMENT OF HON. ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF VIRGINIA
Representative Scott. Thank you, Chairman Leahy, Ranking
Member Hatch, and other members of the Committee. I am pleased
to have the opportunity to appear before you to discuss my
concerns regarding charitable choice.
Religiously affiliated organizations, as it has been
mentioned--Catholic Charities, Lutheran Services, Jewish
Federations, and a vast array of other organizations--now
sponsor Government programs. Contrary to President Bush's
assertions, I am unaware of anyone who opposes these
organizations operating public programs and providing services.
They are funded like all other private organizations are
funded. They are prohibited from using taxpayer money to
advance their religious beliefs and they are subject to civil
rights laws. Charitable choice, however, seeks to alter this
longstanding relationship between church and state by allowing
sponsors of federally-funded programs to advance their
religious beliefs during the programs and by allowing religious
discrimination in employment paid for with Federal dollars.
Now, just as an aside, for the smaller organizations, the
smaller churches, there is no help in charitable choice for
those organizations. They are going to have the same problems
that any small neighborhood organization has, a civic
organization. They don't have the board structure, they don't
have the accounting. They are not going to be able to withstand
an audit. They don't have grant-writers. Those same problems
are going to occur for any small organization.
Charitable choice does two things. It allows
proselytization during the program and it allows employment
discrimination with Federal funds. Now, we can't intelligently
discuss the pros and cons of charitable choice until we get a
straight answer to one fundamental question, and that is are we
funding the faith or not. In a recent commencement address the
President said, ``Government should never fund the teaching of
faith, but it should support the good works of the faithful.''
Furthermore, the legislation itself prohibits Federal funds
from being used to pay for proselytization. But if the
Government is, in fact, not funding the faith, then there is no
need to discuss the preservation of the religious character of
the sponsoring organization. There is no need for a separate
secular service elsewhere. There is no need to provide for
employment discrimination. In fact, there is no need for
charitable choice. If the Government is not funding the faith,
the organization can receive funds just as Catholic Charities
does now without charitable choice.
Contrary to the President's assertions, this morning's
Washington Post cites the founder of Habitat for Humanity
saying that his organization is thriving under the present law.
Unfortunately, the provisions in charitable choice guaranteeing
the right to retain the religious character of the sponsor also
guarantees that the program will promote religious views.
The prohibition against using Federal funds for
proselytization does not prevent volunteers from taking
advantage of the captured audience and converting the Federal
program into a virtual worship service. Furthermore, many
supporters of charitable choice acknowledge that the religious
experience is exactly what is being funded.
At a forum a few months ago my friend, Senator Santorum,
criticized me for not recognizing that with some drug
rehabilitation programs religion is a methodology. At recent
hearings, sponsors have explained that their programs are
successful because of the religious nature of the program. So
if the faith is being funded, we need to candidly express the
Establishment Clause implications of having Government
officials pick and choose between which religion will have its
faith advanced during a government-funded program. So you have
to answer the question, are you funding the faith or not. If
not, you don't need charitable choice. And if so, address the
Establishment Clause of the First Amendment.
There is another important policy question that has to be
addressed, and that is should we allow employment
discrimination in federally-funded programs. Now, the Ranking
Member, Mr. Hatch, cited the Pew poll to show that people
support faith-based funding. That same poll said that 78
percent opposed discrimination in hiring, that same poll. Now,
when you are talking Constitution, I think you get off base by
citing polls, but if you are going to cite the poll, let's cite
the whole thing. Seventy-eight percent opposed discrimination
Discrimination in employment is not unprecedented in
America. There was a time when some Americans, because of their
religion, were not considered qualified for certain jobs. In
fact, before 1960 it was thought that a Catholic could not be
elected President. Before the civil rights laws of the 1960's,
people of certain religions routinely suffered invidious
discrimination when they sought employment.
Sixty years ago this month, President Roosevelt established
the principle in an executive order that you cannot
discriminate in Government defense contracts on the basis of
race, religion, color, or national origin. And the civil rights
law of the 1960's outlawed schemes which allowed job applicants
to be rejected solely because of their religious beliefs.
Some of us are frankly shocked that we would be even having
a debate over whether sponsors of Federal programs can
discriminate in hiring. But then we remember that the passage
of the civil rights laws in the 1960's was not unanimous, and
it is clear that we are now using charitable choice to re-
debate the passage of basic anti-discrimination laws.
Mr. Chairman, I believe that publicly financed employment
discrimination was wrong in the 1960's and it is still wrong.
Some have suggested that organizations should be able to
discriminate in employment to select employees who share their
vision and philosophy. Under present law, you can discriminate
on just about anything you want, but because of our sorry
history of discrimination against certain Americans, we have
had to establish protected classes. Under Title VII, you cannot
discriminate against an individual based on race, sex, national
origin, or religion.
The current exemption under Title VII for religious
organizations is a common-sense exemption, but that exemption
is intended to apply to the use of the funds of the religious
organization. It was never expected to apply to the use of
In addition to the insulting prospect that otherwise
qualified individuals might be denied employment solely because
of their race, there are other civil rights implications in
terms of gender and race that have to be considered.
Courts have read a constitutionally-based ministerial
exception into Title VII that excludes some employment
decisions by religious organizations from all provisions of
Title VII, allowing discrimination on race, gender, and
everything else. It is unclear how the ministerial exception
would affect civil rights applicants under charitable choice.
Other witnesses will discuss the shortcomings of Title VI in
addressing that issue.
Some suggest charitable choice is no different from present
law which allows religiously-affiliated hospitals and colleges
to receive public funds and then discriminate in some of their
high-level positions. The courts in those cases have
distinguished cases involving indirect benefits, like a college
student choosing where to go with his Pell grant, from a direct
benefit where the Government provides a direct contract for
Now, if charitable choice were a voucher program where the
drug addict would select the program he is going to participate
in, rather than a grant program where the Government selects
the program, the analysis might be different. But there is no
question that there should be no discrimination in programs
selected by the Government to provide those services.
Charitable choice therefore represents an historic reversal
of decades of progress in civil rights enforcement. The
President and supports of charitable choice have promised to
invest resources in our inner cities, but it is insulting to
suggest that we can't get those investments unless we turn the
clock back on civil rights. Therefore, the faith-based
initiative should not proceed without strong civil rights
Mr. Chairman, there are other problems with it. You have
mentioned licensing. That is one. There are other problems with
the Establishment Clause and discrimination. I think those are
the two major ones.
Let me just say one final thing. We have talked about the
present laws that have been passed and enacted. The Committee
ought to review the signing statements when President Clinton
signed those bills. He stated, in signing, that he was signing
them with the interpretation under the Establishment Clause
which specifically rules unconstitutional most of what they are
trying to do under charitable choice. It is interesting that
there has been, under the Clinton administration, no funding of
the pervasively sectarian organizations because that is a
direct affront to the Establishment Clause.
I thank you for holding the hearing, Mr. Chairman and Mr.
Hatch, and thank you for your courtesy in allowing me to
Chairman Leahy. Thank you very much.
Senator Hatch. Could I make one comment?
Chairman Leahy. Of course.
Senator Hatch. Representative Scott, you mentioned in your
testimony that the charitable choice legislation would permit
religious groups to advance their religion during the provision
of government-funded social services.
I would just like to clarify that the charitable choice
legislation that we have drafted specifically prohibits
religious organizations from using funds for, quote,
``sectarian worship, instruction, or proselytization,''
The law that exists today was enacted during Lyndon
Johnson's tenure and does permit religious discrimination based
upon valid religious reasons. Both the Democrat Senate and
Democrat House of Representatives at the time passed that
I wanted to make it clear that our bill specifically
prohibits religious organizations from using funds for worship
or proselytization or particular indoctrination or anything
Representative Scott. Well, Mr. Hatch, in my remarks I
pointed out that although that prohibition is there, there is
nothing to prohibit volunteers from coming over and capturing
the program and converting it into a worship service.
Now, if it is the position that those words are to prohibit
not only the Federal funds to be used for proselytization but
also the program through volunteers or otherwise being
converted into a religious program, then you don't need
I would also point out that the civil rights exception with
Title VII was in the expectation that that would be church
money that you would be using, not Federal money, in hiring.
The church can hire whatever the church or religious
organization wants, but with Federal funds I think, according
to the poll that you cited, 78 percent of the people would
oppose using Federal funds in a discriminatory fashion.
Senator Hatch. Well, I would also accept that with regard
to personal religious beliefs. I mean, I think the civil rights
law is basically pretty clear on that.
Representative Scott. Not with Federal money.
Senator Santorum. They didn't differentiate. You are
projecting that they differentiated in the case and they did
not do so in that case.
Senator Hatch. That is right.
Representative Scott. Well, they didn't differentiate
because there was no expectation that you would ever fund
pervasively sectarian organizations.
Senator Santorum. You are making an assumption of what the
court is saying without any backing to say that.
Senator Hatch. Well, we are not doing that here.
Chairman Leahy. Well, I think the Congressman raises a
valid point. The Senator may disagree with it, but I think it
is still one of the things this Committee is going to have to
wrestle with and I think that is something both of you would
I am going to submit for the record a number of items. Of
course, we will leave the record open for a week for
submissions and questions.
If there are no questions of either of these members, I
want to excuse them.
Senator Brownback. Mr. Chairman?
Chairman Leahy. Senator Brownback?
Senator Brownback. I don't have any particular questions
for these members, but because there is still some question
about how we are organized, I would like to ask unanimous
consent that my opening statement be included in the record, as
I went on the Committee this term in Congress and I know there
is a question about how things are organized now.
Senator Biden. You mean you want it in before you get
knocked off the Committee?
Senator Brownback. That is correct.
Chairman Leahy. Sam, we want you on the Committee.
Let me do this just so there won't be any precedential
thing, and I mentioned this before you came in. This hearing
had been noticed by Senator Hatch earlier.
Senator Hatch. At your request.
Chairman Leahy. He had wanted to have it at a different
time and had to change it because of me. Obviously, with that
and with the history of accommodation between the two of us, I
went forward with the hearing.
Let's do it this way. By consent, anybody who was a member
of the Committee last week, and I hope will be on it in the
future, can feel free to submit statements and questions and
participate in this.
Just so people will understand the precedent, we made an
exception for this hearing, my courtesy to Senator Hatch and
his courtesy to me earlier on the scheduling. Again, as I said,
while we have not held judicial confirmation hearings yet this
year, for a number of reasons, we will begin those within two
weeks of the time of reorganization, and I would hope even less
than two weeks, but I just don't know how the paperwork moves
around. So this will probably be the only hearing we will do
Obviously, the Senator has had probably as much an interest
in this as anybody in the Senate and should have a right to get
his questions in.
Gentlemen, thank you very much for being here. Well, could
you hold just a moment? I am sorry.
Senator Biden. If I could just ask a few questions of our
Chairman Leahy. Yes, go ahead.
Senator Biden. Bobby, can you wait just for a second? I
won't take much of your time.
Mr. Chairman, I would ask unanimous consent that my opening
statement be placed in the record as if read.
Chairman Leahy. Without objection.
Senator Biden. There is an old expression that was revived
when Ronald Reagan was President, which is ``if it ain't broke,
don't fix it,'' and I am not sure that we are going to break
something that is fixed here. I am not sure, I just simply
I would like you both to answer just two questions, and I
am not going to talk about the Establishment Clause or the
constitutional issues for the moment, but I acknowledge they
are issues that have to be resolved.
When we are talking about, as you do, Senator Santorum, the
need to get to much smaller faith-based organizations that
don't have the infrastructure to compete for Government
funding, can you tell me whether or not you are assuming that
they will have to meet the same standards relative to
competence, capability, et cetera, to be able to get the money?
Senator Santorum. They are going to have to compete for
this funding like anybody else.
I was just in Pittsburgh earlier this week and we had
something that we have never done in Pittsburgh all as a result
of this discussion on the faith-based initiative, which is a
bunch of the small, denominational churches got together with
the Catholic Church and with other churches in the Pittsburgh
community and they formed a consortium to take advantage of
what they see now as a more receptive Government toward their
institutions and their ministries in these small communities.
I talked to the bishop in Pittsburgh about this several
months ago and encouraged him to move forward with this. The
Catholic Church has a great--I mean, as far as technical
assistance is concerned, they have been doing it for a long
time; they know how to do it and they do it well. What they are
going to do is provide some technical assistance to some of
these churches which heretofore have not participated.
All of these churches are now willing to come forward
because they see a less hostile Government toward what they do.
Now, that doesn't necessarily mean that the Government won't
say to them, well, we don't particularly want to fund what
particularly you do, because there may be some things that the
Government may not be willing to fund.
Senator Biden. Well, let me get to one place that I know a
lot about substantively. There is a lot I don't know, as is
obvious, but one of the things I do know a fair amount about
just from doing it for so many years is the drug treatment
I know you are not a spokesman for the administration, but
you are very involved in this. Based on your statement, which I
thought was very clear explaining where we were now, can you
tell me whether the administration definitely supports medical-
based treatment for drug abuse; that it wouldn't support
funding that did not meet basic medical standards?
Senator Santorum. I am not a spokesman for the
administration on this and, as you know, we have an expansion
already with, I guess, the bill that was signed in December
that gets into drug and alcohol treatment.
I would suspect that the agency in charge, which I assume
in this case would be the Department of Health and Human
Services, would have certain criteria that organizations would
have to be competent in to be eligible to receive those funds,
and I don't believe they will waive those criteria for this
Senator Biden. Would you oppose language in legislation
requiring that in these beneficial choice, as you call it, or
charitable choice programs the personnel administering the
program be licensed and certified under whatever the State or
Federal law is?
Senator Santorum. I think those are things that we
certainly can work on. Obviously, one of the concerns on any of
these treatments is to make sure that we don't create so many
limitations on these programs that they can't be effective.
But I would agree with this: there are certain things,
there are certain base requirements--
Senator Biden. Basic threshold requirements.
Senator Santorum.--basic things that we should adhere to,
and we shouldn't change them simply because it is a faith-based
Senator Biden. Good. Again, let me give you just one
example because I want to make sure I understand this. For
example, let's assume there is a day care facility provided by
a faith-based organization under the new legislation. I assume
you would be arguing that in order to receive this funding,
they would have to adhere to basic requirements--smoke
detectors, emergency doors, all those basic things.
Senator Santorum. All the requirements that are going to be
required of secular organizations should be similarly required
of anybody competing for these funds.
Senator Biden. Lastly--and I appreciate the time--
Congressman Scott, I thought quite frankly your constitutional
analysis was right on the button in terms of the distinction
between indirect and direct aid.
What I would like to ask you is if you could only pick one
concern, what is the single most serious concern you have? It
may be an unfair question because they may be of equal
consequence to you.
Representative Scott. Part of the concern is--I think you
started off with if it is not broke, don't fix it--what are we
trying to fix. Why are you providing discrimination? I think
that is the most offensive, and according to the poll that was
cited--and I hate citing polls particularly when you are
talking about the Constitution because it doesn't work in a
constitutional analysis, but 78 percent don't agree with that.
Charitable choice doesn't help the small organization. They
have still got to go and get the grant. They have got to write
the grant. They are going to be audited. They have to perform.
Small organizations have the same problems, and the technical
assistance can be done under present law. The outreach, the
attitude, that can be done under present law. What charitable
choice does is you can proselytize during the program. You can
have a religious message and you can discriminate based on
Senator Biden. Is it only on religion? That is not
insignificant, but is it only an ability to discriminate based
Representative Scott. My view is that the ministerial
exception probably allows racial discrimination, too. There
will be others who will speak to that. Furthermore, I have
never seen a church sued for racial discrimination in hiring.
In one State, maybe once a year you might, but with all of the
hiring decisions made by all of the churches, the suggestion
that there is no discrimination out there is ridiculous.
Senator Biden. Can Catholic Charities now, which sets up a
501(c)(3) in order to be able to receive Government funding--if
either of you would answer this question, can they say that no
one can work for Catholic Charities who is not a Roman
Catholic? Are they able to say that now?
Senator Santorum. They don't say that.
Senator Biden. I know they don't say that. I am just trying
to ask the question. Well, let's say a 501(c)(3) program set up
by the Lutheran Church for housing. In my State, the Lutheran
Church has done more to provide housing for the elderly than
any organization in my State.
Legally, as it stands now, can they say that you cannot
work the Lutheran 501(c)(3) program unless you are a Lutheran?
They can say that about their church.
Representative Scott. There are some positions possibly in
Catholic Charities that you have to be Catholic, but those will
not be paid for with Federal money.
Senator Santorum. It is hard for me to answer that question
because I don't know of any organization that makes that claim.
What many will say is that people have to believe in certain
things or have to have a certain approach that is consistent
with their approach, but that is no different than any other
Senator Biden. With 12 years of Catholic education, I
understand it. As a practicing Catholic, I understand it. As a
guy who carries my rosary beads, I understand it. I have got
that part; I understand it. I am not asking whether Catholics
discriminate. I want to know, can we?
Representative Scott. I don't know of any real estate
agency that says they discriminate in renting, but if you send
testers out there, the white will get the apartment and the
Senator Biden. I guess what I am trying to get at is there
any distinction between the existing method by which religious-
based organizations set up programs to aid and assist in the
social service area, whether it is housing or drug rehab or
whatever it happens to be--now, they are required to have a
501(c)(3) to do it and get Federal money.
Is there any distinction between what the law requires now
and what would be required if this legislation passed?
Senator Santorum. No, there is no change.
Representative Scott. Yes, there is a change.
Senator Santorum. There is no change.
Senator Biden. I want you to tell me why.
Senator Santorum. There is nothing in any of these statutes
that changes the Civil Rights Act. There is nothing in there.
Representative Scott. Then we don't need charitable choice
if there is no change.
Senator Santorum. But those are not amendments to the Civil
Representative Scott. Well, then you say there is a change.
If there is no change, you don't need charitable choice. I am
suggesting that there is a change, and the change is that the
religious organization can take the Federal money and hire
somebody with the Federal money and discriminate on the basis
of religion, and possibly race, too, but certainly in the words
of the legislation they can discriminate--
Senator Santorum. With all due respect, that is not a
question of hiring. That is a question of uses of Government
funds, but it is not a question of Title VII. The issue of
Title VII and hiring has nothing to do with what the
organization uses the money for. It is whether they can hire or
Senator Biden. Well, my time is up, and I made a wise
decision in not deciding to chair this Committee. So I yield to
the Senator from New York, who is temporarily chairing it, and
I am getting the heck out of here and go pray on this.
Senator Schumer. [presiding]. Well, thank you, and we are
going to take a 15-minute break because of the interregnum
passing of the baton on the floor which we want to be part of.
I guess you are the Ranking Member as of 11:00.
The Ranking Member wanted to make a brief statement and we
will do that.
Senator Hatch. Well, I just wanted to state for the record
that at the request of Senator Biden, S. 304 requires that,
quote, ``Any program carried out with funds authorized under
this Act shall be based on a program shown to be efficacious,
and shall incorporate research-based principles of effective
substance abuse treatment,'' unquote. I just want to make that
Senator Specter. Mr. Chairman, before we break, may I ask
Senator Schumer. Well, we really have to be on the floor.
Senator Specter. Well, let me just make a very brief
statement without articulating a question.
Senator Schumer. The Senator from Pennsylvania is
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
Senator Specter. I commend Senator Santorum and Congressman
Scott for their work here today. There may not be time for a
response, but the concern that I have is the one on
proselytizing. There are many complex issues on separation of
church and state, and there isn't time for a response now.
I just want to welcome former mayor Wilson Goode, from
Philadelphia, who is here on panel three. This hearing has been
set on about the toughest day of the year, if not the 20 years
that I have been here.
Thank you very much.
Senator Schumer. I thank you.
Representative Scott. Mr. Chairman, I can respond in a
Senator Schumer. I would ask that the record be laid open
for written responses for both the Senator from Pennsylvania
and my good friend from Virginia.
With that, we will resume at 11:20.
[The Committee stood in recess from 11:03 a.m. to 11:41
Senator Schumer. The hearing will come to order. I
apologize to everybody. As you know, Senator Byrd was sworn in
as President pro tem and that made Senator Daschle Majority
Leader, and I thought that Senators should have the opportunity
to be there to witness something that is historic and unique in
American history, the passing of the baton in a peaceful way.
So I apologize to everybody who had to wait.
Our next witness is Mr. Carl H. Esbeck. Mr. Esbeck is
senior counsel to the Deputy Attorney General at the Department
of Justice. He works in cooperation with the Office of Faith-
Based and Community Initiatives at the White House.
Mr. Esbeck, we appreciate your taking the time to be here.
You have 5 minutes and the rest of your statement will be put
in the record.
STATEMENT OF CARL H. ESBECK, SENIOR COUNSEL TO THE DEPUTY
ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Esbeck. Thank you, Chairman Schumer.
I believe that we do have common ground in several
respects. First, as we get into the legal issues, and indeed
they are important, it is easy to forget that ultimately this
is about people, and, of course, people who are poor and people
who are needy, in particular with chemical addictions.
Faith-based groups are uniquely positioned to reach these
hard-to-reach individuals for two reasons, I think. They have
high access and high credibility. By high access I mean they
are in these neighborhoods, they know these people. These are
the people they run into at the grocery stores and at the
corner gas stations. But also they have high credibility with
these people. They trust them, they know these leaders. They
have had experience with them. Charitable choice provides
options. It would be foolish not to take advantage of these
specially-situated faith-based organizations.
Second, everyone here wants faith-based organizations to
retain their full religious character. Neither side wants to
give them funding beyond their means without adequate technical
assistance, and no one wants to silence what they call their
prophetic voice, which is to say when they speak out and
criticize Government. And no one wants them to become dependent
on Government funding and thereby lose their religious
That is why a good deal of the text of charitable choice is
spent surrounding these organizations with autonomy
protections. If they retain that autonomy or freedom, then they
will be free to continue to do their good work.
The third area of common ground: No one here wants to force
religion upon those who are receiving services, and the
drafters of the bill take care of that.
Fourth, there is continued, maybe growing interest in
indirect forms of aid. That is sort of like the funding that we
had through a GI bill. The interest, of course, is because
there are then less constitutional restrictions on faith-based
organizations. This ought to be pursued.
And fifth, and last, no one wants to harm that venerable
American tradition, separation of church and state. But the
choice here is not between church and state and something else.
Instead, the debate is over what do you mean by separation.
What charitable choice does is it shifts the focus. No
longer is the focus on the organization and you ask, well, who
are you, or how intensely religious are you. Instead, the
question is what can you do; how can you restructure who you
are so that you can operate within the statutory and
constitutional parameters. If you are willing to do that, then
you compete for funding the same as anyone else.
Now, what does a program have to do in order to comport
with the latest U.S. Supreme Court cases? First, there can be
no Government aid diverted to sectarian activity. Second, no
one receiving welfare benefits can be compelled to participate
in sectarian activities.
Charitable choice is not for every faith-based
organization. No one has ever claimed otherwise. But for those
faith-based organizations who are willing and able to follow
the rules, charitable choice provides another very valuable
option for raising Americans out of poverty.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Esbeck follows:]
STATEMENT OF CARL H. ESBECK, SENIOR COUNSEL TO THE DEPUTY ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE
By letter of May 24, 2001, the Senate Judiciary Committee invited
the views of the U.S. Department of Justice concerning statutory and
constitutional issues raised by Sec. 701 (charitable choice) of S. 304,
The Drug Abuse Education, Prevention, and Treatment Act of 2001. Thank
you for the invitation. This document is the Department's response to
the Committee's letter.
Charitable choice is already part of three federal social service
programs. The provision first appeared in the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996 (PRWORA),\1\ two years
later it was incorporated into the Community Services Block Grant Act
of 1998,\2\ and last year it was made part of the reauthorization of
funding for the Substance Abuse and Mental Health Services
Administration (SAMHSA).\3\ Each of these programs has the overarching
goal of helping those in poverty or treating those suffering from
chemical dependency, and the programs seek to achieve their purpose by
providing resources in the most effective and efficient means
available. The object of charitable choice, then, is not to support or
sponsor religion or the participating religious providers. Rather, the
goal is secular, namely, to secure assistance for the poor and
individuals with needs, and to do so by leveling the playing field for
providers of these services who are faith-based.
Charitable choice is often portrayed as a source of new federal
financial assistance made available to-indeed earmarked for-religious
charities. It is not. Rather, charitable choice is a set of grant rules
altering the terms by which federal funds are disbursed under existing
programs of aid. As such, charitable choice interweaves three
fundamental principles, and each principle receives prominence in the
First, charitable choice imposes on both government and
participating FBOs the duty to not abridge certain enumerated rights of
the ultimate beneficiaries of these welfare programs. The statute
rightly protects these individuals from religious discrimination by
FBOs, as well as from compulsion to engage in sectarian practices
against their will.
Second, the statute imposes on government the duty to not intrude
into the institutional autonomy of faith-based providers. Charitable
choice extends a guarantee to each participating faith-based
organization [FBO] that, notwithstanding the receipt of federal grant
monies, the organization ``shall retain its independence from Federal,
State, and local governments, including such organization's control
over the definition, development, practice, and expression of its
religious beliefs.'' \4\ In addition to this broadly worded safeguard,
there are more focused prohibitions on specific types of governmental
interference such as demands to strip religious symbols from the walls
of FBOs and directives to remake the governing boards of these
providers.\5\ A private right of action gives ready means of
enforcement to these protections of institutional autonomy.\6\
Third, the statute reinforces the government's duty to not
discriminate with respect to religion when determining the eligibility
of private-sector providers to deliver social services.\7\ In the past,
an organization's ``religiosity,'' obviously a matter of degree not
reducible to brightlines, was said to disqualify providers found to be
``pervasively sectarian.'' That inquiry was always fraught with
difficulties. Now, rather than probing into whether a service provider
is thought to be ``too religious'' as opposed to ``secular enough,''
charitable choice focuses on the nature of the desired services and the
means by which they are to be provided. Accordingly, the relevant
question is no longer ``Who are you?'' but ``What can you do?'' So long
as a provider is prepared to operate in line with all statutory and
constitutional parameters, then an organization's degree of
``religiosity'' is no longer relevant.
Because they are a useful way of framing the most pertinent
statutory and constitutional questions, we expand on these three
principles below. Moreover, as will be discussed, the Department of
Justice recommends certain amendments to Sec. 701 of S. 304.
I. The Rights of Beneficiaries
In programs subject to charitable choice, when funding goes
directly to a social service provider the ultimate beneficiaries are
empowered with a choice.\8\ Beneficiaries who want to receive services
from an FBO may do so, assuming, of course, that at least one FBO has
received funding.\9\ On the other hand, if a beneficiary has a
religious objection to receiving services at an FBO, then the
government is required to provide an equivalent alternative.\10\
This is the ``choice'' in charitable choice. Moreover, some
beneficiaries, for any number of reasons, will inevitably think their
needs better met by an FBO. This possibility of choosing to receive
their services at an FBO is as important a matter as is the right not
to be assigned to a religious provider. There is much concern voiced by
civil libertarians about the latter choice, whereas the former is often
overlooked. Supporters of charitable choice regard both of these
choices--to avoid an FBO or to seek one out--as important.
If a beneficiary selects an FBO, the provider cannot discriminate
against the beneficiary on account of religion or a religious
belief.\11\ Moreover, the text's explicit protection of ``a refusal to
actively participate in a religious practice'' insures a beneficiary's
right to avoid any unwanted sectarian practices.\12\ Hence,
participation, if any, is voluntary or noncompulsory. When direct
funding is involved, one recent court decision suggested that this
``opt-out'' right is required by the first amendment.\13\ Beneficiaries
are required to be informed of their rights.\14\
The Department of Justice recommends that Sec. 701 of S. 304 be
strengthened by amending subsection (h) along the lines indicated in
the note below.\15\ This proposal has a clearer statement of the
voluntariness requirement. The provision on separating the government-
funded program from sectarian practices is discussed in Part Ill,
below. The suggested Certificate of Compliance has the purpose of
impressing upon both the government/grantor and the FBO the importance
of both voluntariness and the need to separate sectarian practices.
II. The Autonomy of Faith-Based Providers
Care must be taken that government funding not cause the religious
autonomy of FBOs to be undermined. Likewise, care must be taken that
the availability of government funding not cause FBOs to fall under the
sway of government or silence their prophetic voice. Accordingly,
charitable choice was drafted to vigorously safeguard the ``religious
character'' of FBOs, explicitly reserving to these organizations
``control over the definition, development, practice, and expression''
of religious belief.\16\ Additionally, congressional protection for the
institutional autonomy of FBOs was secured so as to leave them free to
succeed at what they do well, namely reaching under-served communities.
Finally, protecting institutional autonomy was thought necessary to
draw reluctant FBOs into participating in government programs,
something many FBOs are unlikely to do if they face invasive or
One of the most important guarantees of institutional autonomy is
an FBO's ability to select its own staff in a manner that takes into
account its faith. Many FBOs believe that they cannot maintain their
religious vision over a sustained time period without the ability to
replenish their staff with individuals who share the tenets and
doctrines of the association. The guarantee is central to each
organization's freedom to define its own mission according to the
dictates of its faith. It was for this reason that Congress wrote an
exemption from religious discrimination by religious employers into
Title VII of the Civil Rights Act of 1964. And charitable choice
specifically provides that FBOs retain this limited exemption from
federal employment nondiscrimination laws.\17\ While it is essential
that FBOs be permitted to make employment decisions based on religious
considerations, FBOs must, along with secular providers, follow federal
civil rights laws prohibiting discrimination on the bases of race,
color, national origin, gender, age, and disability.\18\
Opponents of charitable choice have charged that it permits a form
of'' government-funded job discrimination.'' We do not believe this is
the case for the following reasons. First, there is a certain illogic
to the claim that charitable choice is ``funding job discrimination.''
The purpose of charitable choice, and the underlying federal programs,
is not the creation or funding of jobs. Rather, the purpose is to fund
social services. The FBO's employment decisions are wholly private.
Because the government is not involved with an FBO's internal staffing
decisions, there is no causal link between the government's singular
and very public act of funding and an FBO's numerous and very private
acts related to its staffing. Importantly, these internal employment
decisions are manifestly not ``state or governmental action'' for
purposes of the Fifth and Fourteenth Amendments.\19\ Hence, because the
Constitution restrains only ``governmental action,'' these private acts
of religious staffing cannot be said to run afoul of constitutional
Second, critics of charitable choice are wrong when they claim to
have detected a contradiction. Why, they ask, is it important to staff
on a religious basis when the FBOs cannot engage in religious
indoctrination within a government-funded program? Since there can be
no such indoctrination, they go on, what possible difference could it
make that employees share the FBO's faith? There is no contradiction,
however, once this line of argumentation is seen as failing to account
for the FBO's perspective. From the government's perspective, to feed
the hungry or house the destitute is secular work. But from the
perspective of the FBO, to operate a soup kitchen or open a shelter for
the homeless are acts of mercy and thus spiritual service. In his
concurring opinion in Corporation of the Presiding Bishop v. Amos,
Justice William Brennan, remembered as one of the Court's foremost
civil libertarians, saw this immediately when he wrote that what
government characterizes as social services, religious organizations
view as the fulfillment of religious duty, as service in grateful
response to unmerited favor, as good works that give definition and
focus to the community of faithful, or as a visible witness and example
to the larger society.\21\ All of which is to observe that even when
not engaged in religious indoctrination'' such as proselytizing or
worship, FBOs view what they are doing as religiously motivated and
thus may desire that such acts of mercy and love be performed by those
of like-minded creed.\22\
Third, it is not always appreciated that private acts of religious
staffing are not motivated by prejudice or malice. In no way is
religious staffing by FBOs comparable to the invidious stereotyping,
even outright malice, widely associated with racial and ethnic
discrimination. Rather, the FBO is acting-and understandably so-in
accord with the dictates of its sincerely held religious convictions.
Justice William Brennan, once again, was quick to recognize the
importance of such civil rights exemptions to the autonomy of faith-
Determining that certain activities are in furtherance of an
organization's religious mission, and that only those committed
to that mission should conduct them, is thus a means by which a
religious community defines itself. Solicitude for a church's
ability to do so reflects the idea that furtherance of the
autonomy of religious organizations often furthers individual
religious freedom as well.\23\
Which is to say, not all discrimination is malevolent.\24\ A
religious organization favoring the employment of those of like-minded
faith is comparable to an environmental organization staffing only with
employees devoted to preserving the environment, a feminist
organization hiring only those devoted to the cause of expanded
opportunities for women, or a teacher's union hiring only those opposed
to school vouchers. To bar a religious organization from hiring on a
religious basis is to assail the very animating cause for which the
organization was formed in the first place. If these FBOs cannot
operate in accord with their own sense of self-understanding and
mission, then many will decline to compete for charitable choice
funding. If that happens, the loss will be borne most acutely by the
poor and needy.
Fourth, in a very real sense Congress already made a decision to
protect religious staffing by FBOs back in 1964, and then to expand on
its scope in 1972.\25\ Section 702(a) of Title VII of the Civil Rights
Act of 1964 \26\ exempts religious organizations from Title VII
liability for employment decisions based on religion.\27\ Opponents
claim that the Sec. 702(a) exemption is waived when an FBO becomes a
federally funded provider of social services. The law is to the
contrary. Waiver of rights is disfavored in the law, and, as would be
expected, the case law holds that the Sec. 702(a) exemption is not
forfeited when an FBO becomes a provider of publicly funded
services.\28\ Indeed, charitable choice expressly states that the
Sec. 702(a) exemption is preserved.\29\ In light of the fact that the
statutory language makes clear to FBOs that they will not be
``impair[ed]'' in their ``religious character'' if they participate in
charitable choice, it is wholly contradictory to then suggest that FBOs
have impliedly waived this valuable autonomy right.
Charitable choice affirmatively enables and requires government to
stop ``picking and choosing'' between groups on the basis of religion.
No longer can there be wholesale elimination of able and willing
providers found by regulators or civil magistrates to be ``too
religious,'' a constitutionally intrusive and analytically problematic
determination.\30\ With charitable choice, religion is irrelevant
during the grant awarding process. Nor does the government, in making
awards, need to sort out those groups thought ``genuinely'' religious
from those deemed pseudo-religious. This means that, contrary to the
critics' fears, charitable choice leads to less, rather than more,
regulation of religion.
Additionally, welfare beneficiaries have greater choice when
selecting their service provider. For those beneficiaries who, out of
spiritual interests or otherwise, believe they will be better served by
an FBO, such choices will now be available in greater number. Expanding
the variety of choices available to needy individuals in turn reduces
the government's influence over how those individual choices are made.
III. The Neutrality Principle
When discussing Establishment Clause restraints on a government's
program of aid, a rule of equal-treatment or nondiscrimination among
providers, be they secular or religious, is termed ``neutrality'' or
the ``neutrality principle.'' Charitable choice is consistent with
neutrality, but courts need not wholly embrace the neutrality principle
to sustain the constitutionality of charitable choice.
The U.S. Supreme Court distinguishes, as a threshold matter,
between direct and indirect aid.\31\ For any given program, charitable
choice allows, at the government's option, for direct or indirect forms
of funding, or both. Indirect aid is where the ultimate beneficiary is
given a coupon, or other means of free agency, such that he or she has
the power to select from among qualified providers at which the coupon
may be ``redeemed'' and the services rendered. In a series of cases,
and in more recent commentary contrasting indirect aid with direct-aid
cases, the Supreme Court has consistently upheld the constitutionality
of mechanisms providing for indirect means of aid distributed without
regard to religion.\32\ The Child Care and Development Block Grant
Program of 1990,\33\ for example, has been providing low income parents
indirect aid for child care via ``certificates'' redeemable at, inter
alia, churches and other FBOs. The act has never been so much as even
challenged in the courts as unconstitutional.
In the context of direct aid, the Supreme Court decision that has
most recently addressed the neutrality principle is Mitchell v.
Helms.\34\ The four-Justice plurality, written by Justice Thomas, and
joined by the Chief Justice, and Justices Scalia and Kennedy, embraced,
without reservation, the neutrality principle. In the sense of positive
law, however, Justice O'Connor's opinion concurring in the judgment is
controlling in the lower courts and on legislative bodies.\35\
Before proceeding in greater detail, the controlling principle
coming from Mitchell v. Helms can be briefly stated: A government
program of aid that directly assists the delivery of social services at
a faith-based provider, one selected by the government without regard
to religion, is constitutional, but real and meaningful controls must
be built into the program so that the aid is not diverted and spent on
Based on Justice O'Connor's opinion, when combined with the four
Justices comprising the plurality, it can be said that: (1) neutral,
indirect aid to a religious organization does not violate the
Establishment Clause;\37\ and (2) neutral, direct aid to a religious
organization does not, without more, violate the Establishment
Clause.\38\ Having indicated that program neutrality is an important
but not sufficient factor in determining the constitutionality of
direct aid, Justice O'Connor went on to say that: (a) Meek v. Pittenger
\39\ and Wolman v. Walter \40\ should be overruled; (b) the Court
should do away with all presumptions of unconstitutionality; (c) proof
of actual diversion of government aid to religious indoctrination would
be violative of the Establishment Clause; and (d) while adequate
safeguards to prevent diversion are called for, an intrusive and
pervasive governmental monitoring of FBOs is not required.
The federal program in Mitchell entailed aid to K-12 schools,
public and private, secular and religious, allocated on a per-student
basis. The same principles apply, presumably, to social service and
health care programs, albeit, historically the Court has scrutinized
far more closely direct aid to K-12 schools compared to social welfare
and health care programs.\41\
In cases involving programs of direct aid to K-12 schools, Justice
O'Connor started by announcing that she will follow the analysis first
used in Agostini v. Felton.\42\ She began with the two-prong Lemon test
as modified in Agostini: is there a secular purpose and is the primary
effect to advance religion? Plaintiffs did not contend that the program
failed to have a secular purpose, thus she moved on to the second part
of the Lemon/Agostini test.\43\ Drawing on Agostini, Justice O'Connor
noted that the primary-effect prong is guided by three criteria. The
first two inquiries are whether the government aid is actually diverted
to the indoctrination of religion and whether the program of aid is
neutral with respect to religion. The third criterion is whether the
program creates excessive administrative entanglement,\44\ now clearly
downgraded to just one more factor to weigh under the primary-effect
After outlining for the reader the Court's LemonlAgostini approach,
Justice O'Connor then inquired into whether the aid was actually
diverted, in a manner attributable to the government, and whether
program eligibility was religion neutral. Because the federal K-12
educational program under review in Mitchell was facially neutral, and
administered evenhandedly, as to religion,\46\ she spent most of her
analysis on the remaining factor, namely, diversion of grant assistance
to religious indoctrination. Justice O'Connor noted that the
educational aid in question was, by the terms of the statute, required
to supplement rather than to supplant monies received from other
sources,\47\ that the nature of the aid was such that it could not
reach the ``coffers'' of places for religious inculcation, and that the
use of the aid was statutorily restricted to ``secular, neutral, and
nonideological'' purposes.\48\ Concerning the form of the assistance,
she noted that the aid consisted of educational materials and equipment
rather than cash, and that the materials were on loan to the religious
Justice O'Connor proceeded to reject a rule of unconstitutionality
where the character of the aid is merely capable of diversion to
religious indoctrination, hence overruling Meek and Wolman.\50\ As the
Court did in Agostini, Justice O'Connor rejected employing presumptions
of unconstitutionality and indicated that henceforth she will require
proof that the government aid was actually diverted to
indoctrination.\51\ Because the ``pervasively sectarian'' test is such
a presumption, indeed, an irrebutable presumption (i.e., any direct aid
to a highly religious organization is deemed to advance sectarian
objectives),\52\ Justice O'Connor is best understood to have rendered
the ``pervasively sectarian'' test no longer relevant when assessing
neutral programs of aid.\53\
Justice O'Connor requires that no government funds be diverted to
``religious indoctrination,'' thus religious organizations receiving
direct funding will have to separate their social service program from
their sectarian practices.\54\ If the federal assistance is utilized
for educational functions without attendant sectarian activities, then
there is no problem. If the aid flows into the entirety of an
educational program and some ``religious indoctrination [is] taking
place therein,'' then the indoctrination ``would be directly
attributable to the government.'' \55\ Hence, if any part of an FBO's
activities involve ``religious indoctrination,'' such activities must
be set apart from the government-funded program and, hence, are
A welfare-to-work program operated by a church in Philadelphia
illustrates how this can be done successfully. Teachers in the program
conduct readiness-to-work classes in the church basement weekdays
pursuant to a government grant. During an hour break for free-time the
pastor of the church holds a voluntary Bible study in her office up on
the ground floor. The sectarian instruction is privately funded and
separated in both time and location from the welfare to work classes.
In the final part of her opinion, Justice O'Connor explained why
safeguards in the federal educational program at issue in Mitchell
reassured her that the program, as applied, was not violative of the
Establishment Clause. A neutral program of aid need not be failsafe,
nor does every program require pervasive monitoring.\56\ The statute
limited aid to ``secular, neutral, and nonideological'' assistance and
expressly prohibited use of the aid for ``religious worship or
instruction.'' \57\ State educational authorities required religious
schools to sign Assurances of Compliance with the above-quoted spending
prohibitions being express terms in the grant agreement.\58\ The state
conducted monitoring visits, albeit infrequently, and did a random
review of government-purchased library books for their sectarian
content.\59\ There was also monitoring of religious schools by local
public school districts, including a review of project proposals
submitted by the religious schools and annual program-review visits to
each recipient school.\60\ The monitoring did catch instances of actual
diversion, albeit not a substantial number, and Justice O'Connor was
encouraged that when problems were detected they were timely
Justice O'Connor said that various diversion-prevention factors
such as supplement/not-supplant, aid not reaching religious coffers,
and the aid being in-kind rather than monetary are not talismanic. She
made a point not to elevate them to the level of constitutional
requirements.\62\ Rather, effectiveness of these diversionprevention
factors, and other devices doing this preventative task, are to be
sifted and weighed given the overall context of, and experience with,
the government's program.\63\
Charitable choice is responsive to the LemonlAgostini test and
Justice O'Connor's opinion in Mitchell v. Helms:
1. The legislation gives rise to neutral programs of aid and
expressly prohibits diversion of the aid to ``sectarian worship,
instruction, or proselytization.'' Thus, sectarian aspects of an FBO's
activities would have to be segmented off and, if continued, privately
funded. An amendment recommended by the Department of Justice is set
out in the note below.\64\ Under this proposal, direct monetary funding
is allowed where an FBO, by structure and operation, will not permit
diversion of government funds to religious indoctrination.\65\ Some
FBOs, of course, will be unable or unwilling to separate their program
in the required fashion. Charitable choice is not for such providers.
Those FBOs who do not qualify for direct funding should be considered
candidates for indirect means of aid.
2. Participation by beneficiaries is voluntary or noncompulsory. A
beneficiary assigned to an FBO has a right to demand an alternative
provider. Having elected to receive services at an FBO, a beneficiary
has the additional right to ``refuse to participate in a religious
practice.'' See discussion in Part 1, above.
3. Government-source funds are kept in accounts separate from an
FBO's private-source funds, and the government may audit, at any time,
those accounts that receive government funds.\66\ Thus, charitable
choice does take special care, because the aid is in the form of
monetary grants, in two ways: separate accounts for government funds
are established, hence, preventing the diversion of ``cash to church
coffers;\67\ and direct monetary grants are restricted to program
services, hence, must not be diverted to sectarian practices.\68\
4. For larger grantees, the government requires regular audits by a
certified public accountant. The results are to be submitted to the
government, along with a plan of correction if any variances that are
Nothing in charitable choice prevents officials from implementing
reasonable and prudent procurement regulations, such as requiring
providers to sign a Certification of Compliance promising attention to
essential statutory duties.\70\ Additionally, it is not uncommon for
program policies to require of providers periodic compliance self-
audits. Any discrepancies uncovered in a self-audit must be promptly
reported to the government along with a plan to timely correct any
deficiencies.\71\ The Department of Justice believes it prudent to add
these additional provisions to Sec. 701 of S. 304.
Charitable choice facially satisfies the constitutional parameters
of the LemonlAgostini test, including Justice O'Connor's application of
that test in Mitchell v. Helms. Adoption of the Department of Justice's
recommendations in notes 15, 17, 64, and 71, above, will further
clarify and strengthen Sec. 701's provisions, as well as ease its
scrutiny in the courts. Moreover, for many cooperating FBOs, those
willing to properly structure their programs and be diligent with their
operating practices, it appears that charitable choice can be applied
in accord with the applicable statutory and constitutional parameters.
Senator Schumer. Thank you, Mr. Esbeck, and we appreciate
your concise testimony. Your entire statement, as I mentioned,
will be read in the record. Let me just ask you a couple of
Now, let me ask you this one: Do you read S. 304 so that it
would allow a faith-based group that takes Federal grants to
refuse to hire not just someone of a different religion but,
say, someone who has a different lifestyle the group
disapproves of, children outside of marriage, sexual
Mr. Esbeck. Under Title VII--and I should say charitable
choice just sort of incorporates the Federal civil rights
regime that is there. Under 702(a), a religious organization
can continue to staff on a religious basis. Or if you want to
put that in the negative, they can continue to, but not on
Senator Schumer. But not on lifestyle matters. Okay, thank
If religious groups that receive Federal funding aren't
going to engage in worship or religious instruction in the
programs they run, then just tell the Committee why they would
need to be allowed to refuse to hire adherents of other faiths
to administer non-religious programs. Obviously, if it is a
religious program, it would be a different issue.
Mr. Esbeck. That is a good and commonly asked question and
it has to do with a matter of perspective. Of course, from the
Government perspective, to supply housing for the homeless or
food for the hungry, that is secular business. But from the
standpoint of the faith-based organization, it is religiously
A good way to think about this is think of the ministry of
Mother Teresa. Obviously, from the Government's perspective she
is doing secular work because she is tending to the sick and to
the dying. But obviously from the standpoint of her and the
religious order that she represents, she is doing this as a
matter of mercy or a mission of mercy out of her religious
motivation. So they obviously want to gather people who are of
Senator Schumer. Now, in your testimony you give the
example of a faith-based welfare-to-work program in
Philadelphia that engages in Bible study that you believe to be
constitutional because it wasn't funded by the Government. It
took place during a break in the job training class and it was
held in a different room from the job training class. You seem
to be saying that this sort of separation was the sort of model
you need to comply with the Constitution.
This is, to me, one of the most difficult questions. I am
not adverse to seeing religious organizations perform
activities. When I wrote the crime bill, I made sure that
churches, for instance, could run after-school programs because
in many communities that was the best place to run them.
But what happens if the faith-based program doesn't
separate religious study out of the social program? Let us say
we have the ``come to God, get yourself off drugs''--or ``come
to Jesus,'' but I don't want to involve one religion or
another, so ``come to God, get yourself off drugs'' program,
and the program is Bible study and let's say it works. Should
that be funded?
Mr. Esbeck. Let me ask you to turn to the bottom of page 5
of my prepared remarks. In that footnote, what we set forth
there for the Department of Justice is our sort of
codification, if you will, of the constitutional parameters
that come out of the recent court opinion, Mitchell v. Helms of
last year, which built upon Agostini v. Felton from 1997.
Let me state it and then point you to the particular
sentence. Again, it is footnote 15, bottom of page 5.
Senator Schumer. Footnote 15, yes. It is nice that you told
us it was page 5, but we don't have numbers on the pages.
Mr. Esbeck. Sorry.
Senator Schumer. So footnote 15. Thanks.
Mr. Esbeck. Let me just sort of state it directly. In the
government-funded program, there cannot be sectarian activity.
Senator Schumer. Correct.
Mr. Esbeck. And, of course, a Bible study would be
sectarian activity. So with reference to this proposed
amendment to the bill, if you will look at the second
sentence--the first sentence, of course, is just a rewriting of
the sentence which is in the bill, but this codifies the two
rules that I mentioned in my opening remarks, one of which is
directly pertinent here.
It says, ``If the religious organization offers such
activity,'' which is sectarian activity, ``it shall be
voluntary for the individuals receiving the services and
offered separate from the program funded under the Act.'' So
the sectarian activity, if it is a Bible study, has to be
offered separate from the government-funded program. In that
particular example, it was a readiness to work program funded
by welfare-to-work funds. But that study was separate, and also
it was very clear that it was completely volitional.
Senator Schumer. Okay, so let me just give you the
hypothetical of a program whose major method, say, in drug
treatment was Bible study and 90 percent of it was Bible study.
You would say that could not be funded?
Mr. Esbeck. That could not be directly funded under the
parameters of Mitchell v. Helms, that is right.
Senator Schumer. And the bill doesn't attempt to change
that? It is a tough question. I mean, it is a tough question.
Mr. Esbeck. Not only doesn't it change it, but it writes a
rule which makes it clear that they cannot do that.
Senator Schumer. All right. Let me ask you this one; this
is about Mitchell as well. Justice O'Connor's controlling
opinion places importance on the fact that Federal funds did
not, quote, ``reach the coffers of a religious school'' in that
case. Rather, the State paid for books and other materials that
were loaned to religious schools.
In the case of S. 304 and other charitable choice bills,
Federal money would go directly into the coffers of religious
groups, which would free up money to pay for religious
activities. Do you think this is permissible under Justice
Mr. Esbeck. What Justice O'Connor had there were several
factors which she pulled out which she saw as, and I think
rightly so, preventing diversion of Government funds to
sectarian activities, which, of course, violates her rule.
Under charitable choice, it is required that separate accounts
be kept, and the Government funds have to be kept in these
separate accounts so that any funds from that account cannot be
diverted to sectarian activities.
Senator Schumer. So you are saying the funds couldn't be
diverted to that activity, but if the funds took the place and
then the privately-raised funds by the religious organization
were used for that activity, that would be okay?
Mr. Esbeck. Yes. The Supreme Court under the Establishment
Clause, even going way back to the 1930's, has rejected the
interpretation of the Establishment Clause or the so-called
freed-up funds theory. That has never been--
Senator Schumer. I agree with you there. I don't think that
that is fair to say, well, you get the money for this, then you
can use your own money for that. But that is the very argument
the President is making in terms of family planning money,
because the present law doesn't allow us to fund family
planning activities overseas. But the President has said
repeatedly it is fungible. So if we give money to this group to
do allowed activities, then they can use their own money for
family planning. It is a total contradiction.
How would you, as a member of the administration, resolve
Mr. Esbeck. It depends upon what constitutional doctrine
you are using there. We just used the one under the
Establishment Clause, but in the Mexico City policy the
question there is what is the scope of the Federal spending
power. That is a completely different test. The Court has said
as a matter of constitutional law that the Government can
choose to withhold funds under its spending power to achieve
public policy purposes.
Senator Schumer. I have other questions which I would ask
unanimous consent be submitted in writing.
They have called a vote, so I want to give my colleague,
Senator Hatch, a chance to ask questions before we briefly
recess for that vote.
Senator Hatch. Thank you.
Senator Schumer. If you don't mind, Orrin, I will go vote
while you are asking the questions and come right back.
Senator Hatch. If you can hurry back, yes, I will recess if
you don't get back in time.
Senator Schumer. Good. We have held you up long enough and
we won't hold everybody up longer. Thanks.
Senator Hatch. Mr. Esbeck, Senator Santorum and
Representative Scott were asked what exemptions exist in Title
VII for religious discrimination in hiring by a religious
organization. I believe the question referred to whether
Catholic Charities can say we will only hire Catholics.
For clarification purposes, can you just elucidate on that?
Mr. Esbeck. Right. Under Title VII, the 702(a) exemption,
which is for religious organizations who choose to staff on a
religious basis--Catholic Charities can have a rule that we
hire only Catholics. I recognize they don't have that, but they
can if they want to, and I believe that was the question that
Senator Biden was asking.
Senator Hatch. The critics of charitable choice seem to
argue that members of faith-based organizations simply cannot
be trusted to follow guidelines preventing the use of
Government funds for proselytizing activities. Hasn't this
argument been decisively rejected by the Supreme Court in the
Mr. Esbeck. Yes. Again, that takes us back to Mitchell v.
Helms. The controlling opinion there says that within the
government-funded program there is to be no sectarian activity.
Obviously, proselytizing is a sectarian activity. It is one of
those three specifically called out in the charitable choice
But the difference that we have here--I mean, several prior
questions were, well, then what is the difference between the
prior system and charitable choice? Actually, it is quite a
lot. What charitable choice does is it ends the discrimination
against those who have a high religiosity or have a high
profile in their religious character.
Under the old regime, they could not even qualify for
applications for grant funding, but now it shifts the debate.
It is no longer who are they, but what can they do, what are
they willing to do. So they continue to have a high level of
religiosity, but if they are prepared to structure a federally-
funded program in a way that meets those Mitchell v. Helms
parameters and keep sectarian activity out of that, they can do
Senator Hatch. Well, some have expressed concern over
Government's entanglement with religion under the Lemon test, I
suppose. But hasn't the Supreme Court made clear that where
there are adequate safeguards, Government funds may
constitutionally be awarded to faith-based organizations for
the delivery of social services?
Mr. Esbeck. Yes. Again, we can look to Mitchell, but there
are many other cases that deal with that. The controlling
opinion there again said, sure, there has to be some
monitoring, of course, to prevent this diversion of Government
funds to sectarian activity, but you no longer need to have
this pervasive, almost brooding daily monitoring of these
organizations. So that sort of excessive entanglement test has
been much toned down, I would say, on the current Court.
Senator Hatch. It is my understanding that charitable
choice provisions do provide for a variety of safeguards to
prevent their unconstitutional application. Isn't it true, for
example, that in order to obtain any Government funds, faith-
based organizations must demonstrate that they can effectively
deliver the services that they are promising and that they have
to respect clients' civil liberties and account for all public
Mr. Esbeck. Yes, all three of those things are true. If
they can't deliver the services, they are simply not going to
be competitive in trying to get the grant.
Senator Hatch. Well, some critics claim that it is
unconstitutional for direct grants to be awarded to, quote,
``pervasively sectarian,'' unquote, organizations that would
risk, quote, ``an excessive entanglement of Government with
However, the so-called pervasively sectarian test was first
articulated in Lemon v. Kurtzman. The last case in which the
Court struck down governmental aid using the pervasively
sectarian test was Grand Rapids School v. Ball, as I understand
it, but Ball was recently discredited, I believe, and partly
overruled in Agostini v. Felton. Even Justice Blackmun, in a
dissenting opinion joined by Justices Brennan, Marshall and
Stevens, described the phrase, quote, ``pervasively
sectarian,'' unquote, as, quote, ``a vaguely defined term of
Is it your view that the pervasively sectarian test really
has been discredited?
Mr. Esbeck. It is now irrelevant. That is my view. Let me
explain just briefly why. It is a presumption, and the Court in
Mitchell v. Helms, when you put the four-judge plurality
together with Justice O'Connor's two-judge opinion, it is
pretty clear that there is to be no operative presumption that
when an organization of high religiosity receives Federal funds
that they are presumed to have diverted those to sectarian
activities. Justice O'Connor made it clear there has got to be
actual proof of diversion, so the presumption is gone.
Senator Hatch. Well, thank you. I hate to have you wait,
but I am not sure that colleagues on the other side or our side
will have questions when I return. But I am going to have to
recess so I can get over and vote. I am stuck with a whole wide
variety of meetings, so I may not be able to return, but I just
want to thank you for being willing to be here and for your, I
think, very careful elucidation of what this bill is all about,
or what faith-based aid is all about.
So with that, we will recess until Senator Schumer or
others can get back.
[The Committee stood in recess from 12:01 p.m. to 12:13
Senator Schumer [presiding]. Again, I apologize. We had a
vote on the education bill.
Mr. Esbeck, thank you. I don't have any further questions.
If I do, I will submit them in writing and, with unanimous
consent, ask that you respond within a reasonable period of
I would like to call panel three forward. They are:
Reverend Dr. W. Wilson Goode, Sr., Dr. Charles G. Adams, Rabbi
David Zwiebel, Reverend Eliezer Valentin-Castanon, Mr. Edward
Morgan, Mr. John Avery, Mr. Wade Henderson, Mr. Nathan Diament,
Mr. Doug Laycock, and Mr. Richard Foltin.
It is a very full panel, but we are trying to accommodate
everybody, given the schedule. So I am going to ask each member
of the panel to adhere strictly to the five-minute rule, and
the Committee would not look askance if you could say what you
had to say in less than 5 minutes.
To save a little time, I am to just ask unanimous consent
that instead of reading everybody's biography we just have it
inserted into the record.
Senator Schumer. We will begin with Dr. Goode. Thank you
very much for coming, Dr. Goode.
STATEMENT OF REVEREND DR. W. WILSON GOODE, SR., SENIOR ADVISER
ON FAITH-BASED INITIATIVES, PUBLIC/PRIVATE VENTURES, AND
RECTOR, AMACHI PROGRAM, PHILADELPHIA, PENNSYLVANIA
Reverend Goode. Mr. Chairman, good morning. I come in
support of S. 304 and I just want to really make a couple of
I am W. Wilson Goode, Senior Adviser on Faith-Based
Initiatives, Public/Private Ventures, and Chairman of the
Mayor's Commission on Faith-Based and Community Initiatives. I
come to speak of a specific problem that the bill addresses,
and that is children of incarcerated parents.
There are 2.2 million children in the country whose parents
are incarcerated, and if indeed we include those who are on
probation and parole, there are at least 20 million children
who fall in that category. These children are the most at-risk
in our society. They suffer from high rates of child abuse and
neglect, illiteracy, drug and alcohol abuse, crime, violence,
and 70 percent of them become incarcerated themselves. They
also suffer from premature death.
Research shows that having a mentor will have a significant
reduction on young persons and that they will not involve
themselves in drugs and alcohol. It will improve their school
performance and attendance, and reduce the incidence of
violence and improve their relationships with their custodial
Through grants from the Pew Charitable Trust and William E.
Simon Foundation, Public/Private Ventures has developed the
Amachi Program. ``Amachi'' means ``who knows what but God has
brought us through this child.'' The goal of the program is to
involve a consistent, caring adult in the life of a child whose
parents are in jail.
In partnership with Big Brothers, Big Sisters, the local
congregation, and the Center for Research on Religion and Urban
Civil Society at the University of Pennsylvania, Public/Private
Ventures has started the Amachi Program. To date, 550
volunteers have been identified and recruited from 43
congregations in 4 geographic areas of Philadelphia where there
are large concentrations of children whose parents are in jail.
We believe that we can give these children a real chance at not
going to jail themselves.
The mentors are given criminal background checks, child
abuse checks, and trained and interviewed before a match with a
child takes place. The caretakers and the children are
interviewed before the match. The bringing together of the
child and the mentor is done under the high national standards
of Big Brothers/Big Sisters of America. The local Big Brothers/
Big Sisters indeed will monitor the match.
To date, we have recruited over 550 adults as mentors. We
expect to have 600 by the end of June, and we have recruited
more than 800 children on rosters whose caretakers and parents
have agreed to let them be mentored.
Senator Schumer. One minute, Reverend Goode.
Reverend Goode. To date, 250 of these children have been
matched with a mentor. We expect to have 600 by August 1.
In conclusion, let me just simply say that I believe that
by having resources available to local faith institutions, we
can redirect the lives of young people. Without this
intervention, without a loving, caring adult in their lives,
without intervening in their lives, they will end up in jail
themselves. There is no better way, in my view, to turn the
lives of young folks around and reduce our prison population
and change the entire culture of communities than through a
program like this.
Thank you for your time, sir.
[The prepared statement of Reverend Goode follows:]
STATEMENT OF REV. DR. W. WILSON GOODE, SR., SENIOR ADVISOR ON FAITH-
BASED INITIATIVES, PUBLIC/PRIVATE VENTURES
I am W. Wilson Goode, Sr., Senior Advisor on Faith-Based
Initiatives for Public/Private Ventures (P/PV). I come to this job
after more than 35 years of active community and government service: I
served for 10 years as the head of a local civic/neighborhood
organization. I have also served as both Mayor and City Manager of
Philadelphia. Most importantly, I have been a member of the same
congregation for 47 experience.
I will not address in this testimony all aspects of 5.304, but will
focus on the charitable choice provision that will allow faith-based
organizations to compete for government contracts to provide numerous
services, including mentoring and drug treatment services.
Let me add that I know firsthand the value of faith-based
institutions being allowed to compete for government contracts and
services. From 1966 to 1978, I worked with 50 faith-based organizations
that utilized various housing programs to construct over 2,000 housing
units for low and moderate-income families. As Mayor of Philadelphia
from 1984 to 1992, I allowed faith-based organizations to compete for
various social service contracts. These faith-based groups received
more than $40 million annually. I have now put all my experience to
work in the area of faith-based initiatives. I have done so because I
believe it is the best hope for solving many of the social problems
facing our urban and rural areas.
This morning, I want to focus my comments on mentoring.
Specifically, I want to talk about children whose parents are
incarcerated, on probation or on parole. I believe these children are
the most at-risk children in our country. Moreover, there are 2.2
million of them whose parents are in federal, state and local jails. If
we add to this list those parents who are on probation or on parole,
the number of children is over 20 million.
Through a grant from The Pew Charitable Trusts and the William E.
Simon Foundation, Public/Private Ventures has developed a model that we
believe will respond to these children. Here is the model:
AMACHI MENTORING PROGRAM
By every measure, children of current and former prisoners are
among the most severely at-risk children and youth, as they suffer from
high rates of child abuse and neglect, illiteracy, drug and alcohol
abuse, crime, violence, incarceration and premature death. Although
there is no single approach to measurably improving the life prospects
of these children, P/PV's evaluation of Big Brothers Big Sisters of
America (BBBSA) documented that having a mentor significantly reduces a
young person's initiation of drug and alcohol use, improves their
school performance and attendance, reduces their incidences of
violence, and improves their relationship with their custodial parent.
Providing the children of incarcerated parents with this kind of
support is the focus of the Amachi mentoring program. The goal is to
involve consistently caring and supportive adults in the lives of
Amachi is a West African word meaning, ``Who knows but what God has
brought us through this child.'' It is our hope that this name will
reflect the spirit of hope for children that will unify all of our
partners, both secular and faith-based.
Amachi is a partnership of P/PV, the Big Brother Big Sister
Association, local congregations and the Center for Research on
Religion and Urban Civil Society at the University of Pennsylvania.
THE AMACHI MODEL
Volunteer mentors recruited by congregations will be matched with
the children of current or former prisoners. The Amachi program offers
three types of mentoring programs:
1. Community-based, one-to-one mentoring perfected by BBBSA
over many years, which pairs one child with one mentor who meet
weekly for at least one hour, choosing their own activities,
schedule and location;
2. School-based, one-to-one mentoring, in which the pair meets
at the child's school at least one hour a week at a time
cleared with school administrators, and engages in either
recreational or educational activities; and
3. Church-based, one-to-one mentoring similar to school-based
mentoring with the exception that the mentoring pair meets on
church property rather than at the school.
Big Brother Big Sister case managers screen the volunteers and
provide case management and supervision for all of the matches.
In training volunteers, emphasis will be on the developmental
approach identified in the P/PV study of BBBSA as more productive than
a prescriptive approach that only offers youth such advice as ``stop
drugs'' or ``go to church.'' Instead, volunteers will be trained to
focus on developing trust, engaging in enjoyable activities and waiting
for the youth to ask the mentor for guidance.
Amachi staff are working with pastors to identify children of
prisoners from their churches' communities and with prison chaplains to
solicit child information from prisoners. Both incarcerated parents and
custodial parents are asked for permission to engage the children in
the mentoring program.
At the same time, staff have identified 43 congregations that are
willing and able to participate in mentoring. More than 550 mentoring
volunteers have come from these churches. Additional congregations,
representing all faiths, will be added in ensuing years.
The churches are organized into four clusters of 10 to 12 churches
per cluster in Southwest Philadelphia, West Kensington, North Central
Philadelphia and South Philadelphia. These areas were chosen because of
the great number of children of incarcerated parents in these areas as
well as P/PV staff's familiarity with the congregations and
One religious organization in each cluster has hired a Community
Impact Director to manage the recruitment of volunteers, as well as
volunteer pre-match training and post-match support. In turn, each of
the 43 churches will designate a Church Coordinator, who will help
mobilize and support the volunteers once they begin meeting with youth.
Finally, each congregation will be responsible for maintaining at least
10 volunteer mentors in Amachi at all times. Continued participation in
the project will be based on the cluster maintaining that number of
As of today, 550 volunteers have been recruited from congregations
located in the four selected Amachi neighborhoods and from one suburban
congregation. To date, BBBS staff and volunteers have screened, trained
and approved 542 of the 550 volunteers. These Amachi volunteers
represent an 84% increase in the number of mentors involved with the
local BBBS affiliate. Of the 542 volunteers, 363 are females and 179
are males. A concentrated effort has been underway since March to
specifically recruit additional male mentors. Amachi staff have
identified 800 children interested in having an Amachi mentor.
BBBS staff are currently engaged in an intensive effort to match
children and volunteers. Two hundred fifty matches have been made to
date, and the goal is to make 600 total matches by August 1, 2001.
As you can see, the Amachi program is working well. Already there
are testimonies from children and mentors of lives being changed. I
humbly urge you to support this effort and other faith-based efforts.
Let me quickly mention one other program at Public/Private Ventures.
Although it is not related directly to your Bill 304, it is indirectly
related. Illiteracy keeps many children in darkness. Illiterate
children and adults are at greater risk of committing crimes, selling
drugs, and ending up in prison. The YET Center model could change much
In March 2000, Public/Private Ventures made grants to 21 faith-
based organizations, representing a variety of settings from
storefronts to large congregations, to develop literacy programs for
those ages 4 to 24 years. The Youth Education for Tomorrow (YET)
Centers are funded by The Pew Charitable Trusts and the Annie E. Casey
Foundation and currently serve approximately 600 young people.
Each YET Center operates four or five days each week with 90-minute
daily sessions for those who are deficient in reading and language
skills one to three years below grade level. Professional teachers are
hired by the institutions and assisted by volunteers. The program
consists of four parts: an oral language/vocabulary activity, a student
writing activity, a basic reading program, concluding with an adult
reading to the students from library-recommended books. All centers are
using the model, and for the school-year programs that started in the
fall, mid-year testing in January revealed that after only three and a
half months students gained an average of almost one school year in
reading achievement, with older students gaining several years. While
testing, intake procedures and monitoring are new to these faith-based
settings, all have been using the model.
I appreciate the opportunity to testify on 5.304 and to present you
with a faith-based mentoring model for children of inmates, which has
already resulted in measurable success. The fact that 250 children of
inmates and volunteer mentors have been identified, trained, and
matched in a short period of time (5 months) shows both the need for
and willingness of faith-based organizations to be involved in the
various drug treatment and prevention provisions that the charitable
choice component of 5.304, Drug Abuse Education, Prevention, and
Treatment Act of 2001, seeks to provide. I have also noted the literacy
model because there is a strong connection between illiteracy rates in
children and subsequent drug use and crime.
Again, thank you for the opportunity to testify before you, and I
wish you well in the passage of this important legislation.
Senator Schumer. Thank you. Of course, Dr. Goode had years
of experience in the political arena as mayor and understood
the need to stay within the five-minute rule, and I hope all of
the other gentlemen who are here, probably not having held
elected office, will follow his fine example.
STATEMENT OF REVEREND CHARLES ADAMS, PASTOR, HARTFORD MEMORIAL
BAPTIST CHURCH, DETROIT, MICHIGAN
Reverend Adams. Thank you, Senator Schumer. I am Charles
Adams, Pastor of Hartford Memorial Baptist Church in Detroit,
Michigan. I am a former president of the Progressive National
Baptist Convention, Incorporated, which was the denominational
home of Martin Luther King, Jr., whom I will quote in this
I am also a member of the Baptist Joint Committee on Public
Affairs and served as its chairman, and what I have is
essentially the message written by our executive director who
is a pastor and a lawyer, the Reverend Dr. Brent Walker.
All of my religious affiliations focus aggressively on
public policy issues concerning religious liberty and its
constitutional corollary, the separation of church and state.
Religion has thrived in this country because the separation has
been maintained. To endanger that is, of course, to take away
religious liberty as we now know it.
Charitable choice is wrong-headed; it wants to do right,
but it wants to do it in the wrong way. First, it is
unconstitutional. It promotes religion as a healing therapy in
ways that breach the wall of separation between church and
state. Now, there are many protections against breaching that
wall, and we do not think that that protection is going to be
advanced through charitable choice, but weakened.
Secondly, it violates the rights of taxpayers. There is no
reason why my tax monies should promote anybody's religion for
Thirdly, charitable choice results in excessive
entanglement with religion. If Government makes a contract with
a religious group, it is entering into the substance of that
Fourthly, charitable choice dampens religion's prophetic
voice. Religion has historically stood outside of Government
control, serving as a critic of Government. How can religion
continue to raise the fist against Government tyranny when it
has an open hand receiving Government favors?
Dr. Martin Luther King, Jr., arguably the 20th century's
best example of religion's prophetic voice, said ``The church
must be reminded that it is not the master or the servant of
the state, but rather the conscience of the state. It must be
the guide and critic of the state and never its tool. If the
church does not recapture its prophetic zeal, it will become an
irrelevant social club without moral authority.'' There are
political implications in accepting money from Government. Are
churches now to be the tools of one political regime rather
Fifthly, charitable choice authorizes religious
discrimination in employment. We dare not turn back the clock
on civil rights in order to expand social services for the
Sixth, charitable choice encourages unhealthy rivalry and
competition among religious groups. We enjoy religious peace in
this country, despite our dizzying diversity, for the most part
because Government has stayed out of religion. Representative
Chet Edwards from Texas said that he an think of no better way
to destroy religion in America than to put a pot of money out
there and let all the churches fight over who gets it.
Charitable choice is a recipe for religious conflict.
We hope that if you read the Baptist Joint Committee's book
on keeping faith, you will notice the right ways that
Government can help churches and other religious organizations
perform public services that are necessary. We can keep the
faith without changing the law. The law is good; let it stay as
Senator Schumer. Thank you, Dr. Adams.
Our next witness is Rabbi David Zwiebel, someone I have had
the pleasure of knowing for a very long period of time.
Rabbi Zwiebel, from my home State of New York.
STATEMENT OF RABBI DAVID ZWIEBEL, EXECUTIVE VICE PRESIDENT FOR
GOVERNMENT AND PUBLIC AFFAIRS, AGUDATH ISRAEL OF AMERICA, NEW
YORK, NEW YORK
Rabbi Zwiebel. Thank you, Mr. Chairman. I serve as
Executive Vice President for Government and Public Affairs of
Agudath Israel of America, which is a 79-year-old national
Orthodox Jewish organization. I am an attorney by profession,
but my assigned role here today is to speak not so much as a
lawyer but as an executive of a faith-based group that has had
experience in the administration of government-funded social
For the past quarter century or so, Agudath Israel, among
its various other activities, has sponsored a variety of social
service projects, most of them in the New York City area, which
have serviced many thousands of needy persons.
Let me draw on our experience to offer four observations
concerning the charitable choice initiative. The first relates
to the motivation of faith-inspired service providers.
When Agudath Israel decided in the mid-1970's to go into
the area of social services for the needy, we were motivated
not merely by some general humanitarian concern, certainly by
some organizational need to establish a new service
bureaucracy, but because we saw it as a ``mitzvah,'' if I may,
a good religious deed.
While the actual services we have provided have been non-
sectarian in nature, they have also been infused with an
underlying spirit of holy service, and I dare say that a large
measure of the effectiveness of our programs is attributable to
the religious vision and animates our service.
A second point: While our programs are open to all needy
persons, regardless of religious identity or observance, the
fact is that many of our clients are our own constituents,
Orthodox Jews who have known and identified with Agudath Israel
for many, many years.
This should hardly come as a surprise. A social service
provider that has its roots in the community, that understands
the unique characteristics and sensitivities of the community,
that enjoys the confidence of the community, has a leg up in
being able to effectively assess and address the needs of the
community. And while there are other types of community-based
organizations that can fulfill a similar role, there is no
question that religious institutions are often the very
institutions that retain the greatest level of trust and
credibility at the grass-roots level.
Third, many of the people we serve have had problems in
their lives. They come to us because they are determined to
turn their lives around, to find new hope, a new faith, a new
beginning. Quite frankly, when they do so, some of them have
God on their minds. These people choose Agudath Israel
precisely because they know the type of organization we are,
and while we are meticulous in ensuring that the social
services we provide are entirely non-sectarian, we do try to
accommodate those of our clients who are looking for religious
counseling, working with them after hours, referring them to a
rabbi or a Jewish education program, facilitating their desire
to come closer to their faith and to their God.
Hence, my point: While Government ought not fund sectarian
activities, at the same time Government ought not exclude from
the social service mix the very institutions to which so many
needy Americans are likely to turn for service precisely
because of the added spiritual dimension that those
institutions are able to offer.
So long as no Government funds are used for religious
activities, so long as no beneficiary is compelled to
participate in religious activities, so long as the funded
services are entirely separable from the provider's religious
activities, neither law nor logic can justify the exclusion of
faith-based providers simply because they also make religious
services available to their clients.
My fourth and final point relates to the civil rights issue
we have been discussing today. I elaborate on this in my
written testimony, but the bottom line is that if Government
chooses to enlist religious groups to help address the Nation's
urgent social needs, it must do so in a manner that allows a
faith-based organization to remain faithful to its base.
The genius of America has been its ability to strike the
appropriate balance between the sometimes competing values of
promoting equality and respecting diversity. Insisting that all
faith-based providers sacrifice their religious principles and
practices as the price they must pay if they wish to service
the needy with Government funds would upset that delicate
balance and do violence to the foundation block of religious
freedom upon which our society has been built. Let's not
steamroll religious liberty in the name of civil rights. Let's
remember that religious rights are civil rights, too.
[The prepared statement of Rabbi Zwiebel follows:]
STATEMENT OF DAVID ZWIEBEL, EXECUTIVE VICE PRESIDENT FOR GOVERNMENT AND
PUBLIC AFFAIRS, AGUDATH ISRAEL OF AMERICA, NEW YORK, NEW YORK,
Mr. Chairman, Members of the Committee:
My name is David Zwiebel. I serve as executive vice president for
government and public affairs for Agudath Israel of America, a 79-year-
old national Orthodox Jewish movement. I am a rabbi, and an attorney by
profession; and I also serve as Agudath Israel's general counsel.
It is my assigned role here today to speak not so much as a lawyer,
but as an executive of a faith-based organization that has had
experience in the administration of government-funded social service
programs, and that fully supports the expansion of the federal
``charitable choice'' program. For the past quarter-century or so,
Agudath Israel, among its various other activities, has sponsored a
variety of social service projects, most of them in New York City,
running the gamut from employment training and placement to housing and
neighborhood stabilization, from mentoring programs for at-risk youth
to visitation programs for homebound and institutionalized seniors.
These activities, which have serviced many thousands of needy persons,
have been subsidized through a variety of government grants. In my
testimony today, I will draw on several aspects of Agudath Israel's
experience to offer a number of observations concerning the charitable
choice initiative currently under consideration.
1. The Motivation of Faith-Inspired Service Providers: When Agudath
Israel decided in the mid-`70's to go into the area of social services
for the needy, we were motivated not merely by some general
humanitarian concern, certainly not by some organizational need to
establish a new service bureaucracy, but because we saw it as a
``mitzvah''--if not quite a religious obligation, then at least a good
religious deed. Helping an unemployed breadwinner or a widowed
homemaker find a job, bringing cheer and companionship to a lonely
senior, working with troubled teens--all of these and many more are
part of a Jew's religious mandate on this earth to perform
``tzedakah'', righteous acts of charity; and we at Agudath Israel were
determined to do whatever we could to carry out that mandate on a
communal basis. While the actual services we have provided over the
years have been non-sectarian in nature, they have also been infused
with an underlying spirit of holy service--and I dare say that a large
measure of our effectiveness is attributable to the religious vision
that animates our service.
Which brings me to the first general point I would like to make:
When government enlists faith-based groups like ours to help address
urgent social needs, it enlists groups that approach this task with a
special dedication and devotion that can make a tangible difference in
the quality of the service they provide. It would be an unfortunate
loss for our caring society were that extra ingredient of motivation,
enthusiasm and effectiveness excluded from the government funded
2. The Grassroots Credibility of Faith-Based Organizations: Agudath
Israel's programs are open to all needy persons, regardless of
religious identity or observance. Many of our ``clients'' are not
Jewish, and many of our Jewish clients are not Orthodox or otherwise
observant. We don't ask the people we serve what their faith is; nor do
we maintain records of such matters, for they are entirely irrelevant
to the services we provide.
At the same time, I would be less than fully candid with this
committee were I to suggest that the overall profile of our social
service clientele mirrors that of the general society around us. The
reality is that a disproportionately high percentage of the people who
seek out our social services are our own constituents--needy Orthodox
Jews who have known and identified with Agudath Israel for many, many
This should hardly come as a surprise, and leads me to the second
general point I'd like to make. When public policy makers ponder how
most effectively to service needy Americans, a significant factor in
the overall equation should be the comfort level that the intended
beneficiary will have with the service provider. That, in turn, will
often hinge on the credibility the provider enjoys within the
community. A social service provider that has its roots in the
community, that understands the unique characteristics and
sensitivities of the community, that is respected by and enjoys the
confidence of the community--that provider will start with a
significant leg up in being able effectively to assess and address the
needs of the community. And, while there are other types of community-
based organizations that can fill a similar role, there is no denying
that religious institutions are often the very institutions that retain
the greatest level of trust and credibility at the grassroots level
where it is needed most in reaching needy Americans.
3. The Spiritual Dimension of Certain Clients' Needs:Coming back to
Agudath Israel's client base, a good number of the people we serve have
had problems in their lives. Some of them have engaged in unhealthy
lifestyles and destructive patterns of behavior; some come from
dysfunctional family backgrounds; some have experienced emotional
trauma and devastation. They come to us because they are determined to
turn their lives around, to find new hope, new faith, a new beginning.
And, quite frankly, when they do so, some of them have G-d on their
These people choose Agudath Israel precisely because they know the
type of organization we are. To be sure, they are in need of the social
services we provide, but they also sense that they are in need of
something else to put their lives in order, something spiritual--a
reconnection with their Maker and with their Jewish faith. And while we
are meticulous in ensuring that the social services we provide are
entirely non-sectarian, we do try to accommodate those of our clients
who are looking for religious counseling--by working with them after
hours, by referring them to a rabbi or a Jewish education program, by
facilitating their desire to come closer to their faith and their G-d.
Hence my third point: Countless Americans who are in need of social
services are looking for something beyond merely material assistance.
When they make the decision to turn their lives around, they will often
seek out religious institutions to help them find their way back. While
government ought not fund sectarian activities, at the same time
government ought not exclude from the social service mix the very
institutions to which many needy Americans are likely to turn for
service precisely because of the added spiritual dimension those
institutions are able to offer. So long as no government funds are used
for religious activities, so long as no beneficiary is compelled to
participate in religious activities, so long as the funded social
services are entirely separable from the provider's religious
activities, neither law nor logic can justify the exclusion of faith-
based social service providers simply because they also make religious
services available to their clients.
4. Respecting the Religious Tenets and Identity of a Faith-Based
Provider: In the early 1980's, New York City Mayor Edward I. Koch
promulgated ``Executive Order 50,'' requiring all entities receiving
city funds to pledge nondiscrimination on a variety of bases, including
sexual orientation. At that time, Agudath Israel was slated to enter
into a number of social service contracts with the city, including
contracts that funded after-school activities for youths. We decided,
however, that we could not accept the mayor's conditions; our rabbinic
leadership insisted that organizational employees who serve in the
positions of role models must embody the core values of traditional
Judaism. We sued the mayor, as did the Salvation Army and the New York
City Archdiocese, and we ultimately won--proving, I guess, that
sometimes you can fight City Hall--but the bottom line is that we were
all prepared to give up our city funding had Hizzoner's executive order
There is a lesson to be learned from this incident as well. If
government chooses to enlist religious groups to help address the
nation's urgent social needs, for the reasons I have already suggested
and others as well, it must do so in a manner that allows a faith-based
organization to remain faithful to its base. To insist that a religious
charity adopt secular nondiscrimination standards, for example, even
where those standards conflict with religious doctrine, or to insist
that religious symbols be removed from a faith-based provider's
facilities, is simply a polite way to say that religious charities
should not be eligible to receive funds. No self-respecting religious
organization would ever trade in its sacred tenets for a pot of
It is not my role here today to expound at length on the legal
issues surrounding the right of a religious organization that receives
government funding to maintain policies and practices that reflect its
own religious tenets. Suffice it to note that there is ample authority
under federal law that reflects Congress' longstanding view that
receipt of federal funds does not require religious entities to abandon
their religious identities.
Consider, for example, the law that excuses a health care facility
that receives federal funding from making its facilities available or
providing personnel for the performance of any sterilization procedure
or abortion, if such activity would be contrary to the facility's
religious beliefs. 42 U.S.C. sec. 300a-7(b). Or consider Title IX of
the Education Amendments of 1972, which generally prohibits sex
discrimination by schools that receive federal financial assistance,
but explicitly exempts ``an educational institution which is controlled
by a religious organization if the application of this subsection would
not be consistent with the religious tenets of such organization.'' 20
U.S.C. sec. 1681 (a) (3). Clearly, government itself would not be
permitted to discriminate on the basis of sex or restrict sterilization
or abortion rights. But, as these two laws demonstrate, government is
not thereby precluded from extending financial assistance to an entity
whose religious tenets demand such discrimination or restriction--and
the entity, in turn, is not required to abandon its faith as a pre-
condition to receiving the assistance.
To be sure, there may exist religious organizations whose
principles or policies are so far removed from the American mainstream
that they ought not be eligible for federal funding under the
charitable choice program. Public support should not be extended to any
group, including any faith-based group, that preaches racial hatred or
religious terrorism, for example. But, as the famous Bob Jones case
makes clear, the law is already experienced in drawing the line
between, on the one hand, groups whose positions are so repugnant to
our shared democratic values as to render them ineligible for public
support through tax exemption; and, on the other hand, more mainstream
religious bodies whose tenets may diverge from the norms of secular
society but are nonetheless deemed charitable entities eligible for
public support through tax exemption. Bob Jones University v. United
States, 461 U.S. 574 (1983). That line-drawing exercise, difficult
though it may occasionally be, has served our nation well; it can and
should be employed in the charitable choice context as well.
I make this point, frankly, with some degree of trepidation. A
religious group, or a religious practice, that is considered mainstream
today may be considered beyond the American pale tomorrow, as the
Supreme Court noted in Bob Jones itself, 461 U.S. at 574. And as our
society in general moves toward greater egalitarianism, there is
danger--a term I use advisedly--that religious communities that
envision different roles for male and female, or that regard certain
types of conduct or lifestyle as immoral or sinful, or that embrace any
set of values at variance with those of the broader secular society,
will no longer be able to participate fully in American life, their
beliefs and traditions steamrolled in the noble name of civil rights.
The genius of America has been its ability to strike the
appropriate balance between the sometimes competing values of promoting
equality and respecting diversity. Insisting that all faith-based
providers sacrifice their religious principles and practices as the
price they must pay if they wish to service the needy with government
funds would upset that delicate balance and do violence to the
foundation block of religious freedom upon which our society has been
built. That is why Agudath Israel strongly supports the provision in
the existing charitable choice laws, and in the proposed expansion of
those laws, that allows religious charities to retain their identities
and policies. In our view, this must remain an indispensable feature of
any such legislation.
Senator Schumer. Thank you, Rabbi Zwiebel.
Our next witness is Reverend Eliezer Valentin-Castanon.
STATEMENT OF REVEREND ELIEZER VALENTIN-CASTANON, PROGRAM
DIRECTOR, GENERAL BOARD OF CHURCH AND SOCIETY, UNITED METHODIST
CHURCH, WASHINGTON, DC
Reverend Valentin-Castanon. Thank you, Mr. Chairman. I am
shortening my testimony, but I would like to request that my
entire testimony be printed in the record.
Senator Schumer. Without objection, everyone's entire
testimony will be part of the record.
Reverend Valentin-Castanon. Thank you.
I would like to thank you again for this opportunity to
speak to you on a matter as important as serving the need. We
welcome the great attention that Congress and the
administration have given to religion in the public square, and
for the recognition of the great work that we do for the
marginalized and needy in our communities.
We are grateful for the recognition that we have not only
been the conscience of the Nation, but also the ones to help
carry the burdens of the poor and the unwanted. We thank you
for the recognition that religious organizations to contribute
to this country not only with prayers, but with sweat and
I am Eliezer Valentin-Castanon. I am a program director of
the General Board of Church and Society, United Methodist
Church, and I am also an ordained minister of our church who
works on church-state issues for the denomination. As part of
my responsibilities with the Methodist Church, I work on a
variety of issues that are affected by charitable choice.
The United Methodist Church has charged the General Board
of Church and Society with the ``responsibility...to seek the
implementation of the social principles and other policy
statements of the General Conference on Christian Social
concerns.'' It is because of this charge that I come to you
today to speak on behalf of the General Board of Church and
Society on the issue of charitable choice.
The United Methodist Church has not adopted language
regarding charitable choice. Nevertheless, our General
Conference has been very clear about what the church
understands is appropriate when a church is seeking to enter
into a partnership with the state in order to offer community
In the Book of Resolutions of the church, our church has
stated that, ``Governmental provision of material support for
church-related agencies inevitably raises important questions
of religious establishment. In recognition, however, that some
health, education, and welfare agencies have been founded by
churches without regard to religious proselytizing, we consider
that such agencies may, under certain circumstances, be proper
channels for public programs in these fields. When government
provides support for programs administered by private agencies,
it has the most serious obligation to establish and enforce
standards guaranteeing the equitable administration of such
programs and the accountability of such agencies to the public
We believe that no private agency, because of its religious
affiliation, ought to be exempted from any of the requirements
of such standards. In particular, our church believes that
Government resources should not be provided to any church-
related agency unless it meets the following minimum criteria.
First, the services of the agency shall be the designed and
administered in such a way as to avoid serving a sectarian
purpose or interest. The services to be provided by the agency
shall be available to all persons, without regard to race,
color, national origin, creed, or political persuasion. Skill,
competence, and integrity in the performance of duties shall be
the principal considerations in the employment of personnel and
shall not be superseded by any requirement of religious
This, Mr. Chairman, has been the position of our church
concerning the relationship between church and state to this
day. As you can see, the United Methodist Church does support
partnership between church and state. As a matter of fact, our
church has been in partnership with the state in many different
ventures, providing non-sectarian and non-proselytizing social
and educational services in our community, never losing sight
of our faith and our commitment to serve Christ.
From the following examples--and I am not going to read
them all because there are too many and too lengthy, but let me
just mention some of the names: the Chollas View Workfirst
Center, in San Diego, California; Southside Employment
Coalition, in St. Louis, Missouri; Family Pathfinders, in
Smiley, Texas; Louisville Works and Kairos Business Services,
in Louisville, Kentucky. All of them have been working in
partnership with the state offering services to the community.
The United Methodist Church has no difficulty in partnering
with government to do what is right for people in need. The
above examples show that we have been doing it for many years,
and very successfully. Nevertheless, the United Methodist
Church's practice of setting up separate, non-profit
corporations for such organizations that want to provide these
services to the community clashes directly with the main
provisions of charitable choice.
The United Methodist Church cannot support legislation that
clearly endorses religious discrimination in the hiring and
firing practices of community social services ministries paid
for by Federal Government dollars. Our church believes that
programs serving the community and funded with Federal and
State dollars should not be allowed to use faith to
The preservation of the church's character so strongly
argued by the supporters of this legislation cannot be upheld
by sacrificing civil rights that we all have struggled so hard
to defend. Integrity and skill should be the reasons for hiring
and firing people from government jobs, not their faith
[The prepared statement of Reverend Valentin-Castanon
STATEMENT OF REV. ELIEZER VALENTIN-CASTANON, GENERAL BOARD OF CHURCH
AND SOCIETY, UNITED METHODIST CHURCH
Thank you, Mr. Chairman and Members of the Committee, for this
opportunity to speak to you on a matter as important as serving the
needy. We welcome the great attention that Congress and the
administration have given to religion in the public square and for the
recognition of the great work that we do for the marginalized and needy
in our communities. We are grateful for the recognition that we have
not only been the conscience of the nation but also the ones to help
carry the burdens of the poor and the unwanted. We thank you for the
recognition that religious organizations do contribute to this country
not only with prayers but with sweat and blood.
I am Eliezer Valentin-Castanon, a Program Director of the General
Board of Church and Society (GBCS) of The United Methodist Church. I am
also an ordained minister of our Church, who works for the church on
issues of Church-Government relations. Part of my responsibilities with
The United Methodist Church is to work in a variety of issues that in
one way or another are affected by Charitable Choice (i.e., TANF,
The United Methodist Church has charged the GBCS with the
``responsibility. . . to seek the implementation of the Social
Principles and other policy statements of the General Conference on
Christian Social concerns.'' In addition, GBCS ``shall speak its
convictions, interpretations and concerns to the Church and to the
\1\ The Book of Discipline of The United Methodist Church 2000.
It is because of this charge that I come to you today to speak on
behalf of the GBCS on the issue of Charitable Choice.\2\ The United
Methodist Church has not adopted language regarding Charitable Choice.
Nevertheless, our General Conference\3\ has been very clear about what
the Church understands is appropriate when a church is seeking to enter
in a partnership with the State in order to offer community social
services (i.e., Drug rehabilitation). In the Book of Resolutions of The
United Methodist Church 2000, our Church has stated that:
\2\ Neither I nor the GBCS has received a federal grant or contract
in the current or preceding two fiscal years.
\3\ The General Conference of The United Methodist Church is the
highest legislative body of the church. This is the body that makes
legal and theological decisions regrading the life of the church.
General Conference meets every four years in different part of the
``Governmental provision of material support for church-related
agencies inevitably raises important questions of religious
establishment. In recognition, however, that some health,
education, and welfare agencies have been founded by churches
without regard to religious proselytizing, we consider that
such agencies may, under certain circumstances, be proper
channels for public programs in these fields. When government
provides support for programs administered by private agencies,
it has the most serious obligation to establish and enforce
standards guaranteeing the equitable administration of such
programs and the accountability of such agencies to the public
We believe that no private agency, because of its religious
affiliations, ought to be exempted from any of the requirements of such
standards. In particular our Church believes ``that government
resources should not be provided to any church-related agency unless it
meets the following minimum criteria:
1. The services to be provided by the church-related agency
shall meet a genuine community need;
2. The services of the agency shall be designed and
administered in such a way as to avoid serving a sectarian
purpose or interest;
3. The services to be provided by the agency shall be available
to all persons without regard to race, color, national origin,
creed, or political persuasion;
4. The services to be rendered by the agency shall be performed
in accordance with accepted professional and administrative
5. Skill, competence, and integrity in the performance of
duties shall be the principal considerations in the employment
of personnel and shall not be superseded by any requirement of
religious affiliation. . .''
In addition, the Church believes:
``. . .that churches have a moral obligation to challenge
violations of the civil rights. . . and requirement of
attendance at church activities in order to qualify for social
As you can see The United Methodist Church does support
partnerships between church and state. As a matter of fact, our Church
has been in partnership with the state in many different ventures,
providing nonsectarian and non-proselytizing social and educational
services in our communities, never losing sight of our faith or our
commitment to serve Christ.
From the following examples you can see the breath of our Church's
partnership with government in providing community social services.
United Methodist Community Ministries
CHOLLAS VIEW WORKFIRST CENTER AND SAN DIEGO YOUTH AT WORK \4\
Metro United Methodist Urban Ministries San Diego, California
Metro United Methodist Urban Ministries of San Diego is a 35-year-
old organization described by its director, John Hughes, as a ``faith-
based incubator,'' and it has grown dramatically over the last several
years since it began to more actively access public programs linked in
large part to welfare reform and related federal measures. ``Our
mission is to help churches help people,'' according to Hughes. Metro
is managing partner of the Chollas View Workfirst Center, housed at the
Chollas View United Methodist Church in southeast San Diego, a
predominantly Hispanic and African American neighborhood. It is a major
player in San Diego Youth at Work, which provides job training,
educational incentives and assistance with general life skills.
\4\ These examples are part of a United Methodist cross agency
document, soon to be released, espousing the Church's position on
Charitable Choice. This information was gather by Mr. Elliot Wright a
community development consultant for the General Board of Global
The Chollas View Workfirst Center, which has 14 other partners,
developed initially because the church parking lot was used as a pick-
up and drop-off point for persons in an early workfirst transportation
sector (van driving) training program. It is now a multi-service
program funded by U.S. Department of Labor money through a competitive
process. The center provides vocational training, paid work experience,
support services, childcare on site, transportation, employment
readiness training, job placement and employment retention services.
The Chollas View Church is itself a collaborating agency, as is All
Congregations Together, an interfaith organization that primarily
offers mentoring services to persons leaving welfare.
San Diego Youth at Work targets young people ages 14-21. It too is
funded primarily by the federal Department of Labor and will likely
last three, and perhaps five years, according to Hughes. It has three
components: 1) matching talents with needed and available resources,
such as finding out the interests and abilities of young people and
finding the right program or educational opportunity to development
abilities;. 2) Community coaches, who are from the community and help
young people map their futures; 3) Support services, including food,
clothing, rent, tires and other material needs. Much of these services
are supplied by one of Metro's two Good Neighbor Centers.
Metro itself provides relatively few direct services. It is more of
a broker, a builder of networks. At present, some 95 percent of Metro's
budget comes from government sources, the other five percent from
churches and private donations. What about religious content that might
seem relevant in the public-funded programs? ``We make it clear that we
are faith-based, that we are part of the United Methodist Church. We do
not limit services based on religion and we hire persons of many faiths
or no faith, depending on their abilities. We do pray at meetings. We
are a Christian organization. Our philosophy on this point is that of
St. Francis: 'Preach the gospel at all times and, if necessary, use
Hughes noted that Metro over the years has learned to ``speak
church and speak social service.'' He worries about new faith-based
players that may not have both vocabularies and may lack the capacity
to produce the results expected by government funders. Consequently, he
and colleagues in San Diego are exploring the possibility of a local
faith-based institute to identify and train strategic leaders and to
develop the idea that some faith-based groups may best serve as brokers
and legitimizers. Hughes foresees a growing need for an institute that
could offer faith-based consultation and possibly build a pool of funds
for faith-based social service providers.
Family Pathfinders \5\
SMILEY UNITED METHODIST CHURCH, SMILEY, TEXAS
Volunteers within The United Methodist Church of Smiley, Texas, 60
miles east of San Antonio, were already helping people prepare for
meaningful work before they learned about Texas Family Pathfinders, a
state-initiated program that enlists and makes small grants to faith-
based and community groups engaged in welfare-to-work. And the people
at Smiley Church are still doing the work now that the state grant is
gone. In fact, they did not reapply because, says Nelda Patterson, who
spearheaded the ministry, ``we just didn't have the money to keep
taking state grants.'' A mystery? Not really. Reimbursements were
notoriously slow and the small congregation-a 100 members church with
an average Sunday attendance of 50- did not have the up front funds to
carry the formal program.
\5\ Martha Ward, director of Family Pathfinders, reports that
across the state of Texas more United Methodist congregations are
involved in the program than of any other denomination.
It all started at Smiley like so many things churches do: Someone
had a dream. In this case, it was Nelda Patteson who over a period of
time had helped a young woman become a Licensed Practical Nurse (LPN).
But the young nurse had a hard time keeping jobs, and Ms. Patteson
figured that she ``needed to get smarter about how to help people.''
She became certified to lead a program called ``Survival Skills for
Women,'' consisting of 10 sessions over five weeks. She offered the
training to five women, mostly from a local housing project, coming off
welfare. Things went well.
``About that time  we learned that the state had some money
for faith-based programs. We applied and received $10,000 to help nine
TANF-certified women receive computer training and literacy education
at a center in Gonzales, the county seat. We were one of five
recipients out of 100 applicants at that time.'' The funds came through
Family Pathfinders, a Texas effort to mobilize and encourage faith
groups to get involved in welfare-to-work training and mentoring. In
Smiley, the money went to pay for the computer course and child care in
Gonzales and for travel back and forth. Volunteers led the ``Survival
Skills for Women'' course at the church. The results were positive on
all counts, including the relationships established with the women
coming off welfare.
The church realized no money from the program and that was not a
problem. ``We liked what the money went for,'' said Ms. Patteson, ``but
the state was so slow in paying the reimbursement that we couldn't
continue. As it was, we had to borrow $1,500 from the local United
Methodist Women to pay the initial tuition, child care and travel
costs. That was paid back when the check arrived.''
Ms. Patteson and others at the Smiley church stay in touch with the
women who went through the program. They have also offered to share the
techniques of their success with other churches in the region. ``Maybe
a larger congregation would have the funds to tide it over,'' Ms.
The growth of the congregation's awareness of poverty and the
people caught in it is an important outcome of the temporary
partnership with a government program, according to Ms. Patterson.
``Before, some people in the church thought anyone who lived in a
housing project was just lazy. Now they know that's not so. There is
more caring about persons now.''
Louisville Works and Kairos Business Services
WESLEY HOUSE COMMUNITY SERVICES, LOUISVILLE, KENTUCKY
Wesley House Community Services has leveraged a grant from Emerging
Ministries with Women, Children and Families (funded by the Women's
Division) into ongoing public funding for two programs that help women
leaving welfare to build solid lives. Louisville Works, a computer
training program, and Kairos Business Services, an internship program,
do prepare persons for work in offices, but the objectives are bigger.
Getting the students into ``just any jobs'' so that they leave the
welfare roles is not enough, according to Katie Chapman, director of
the two programs. The two programs aim at equipping participants to
deal with the ups and down of real life and to feel a sense of security
in knowing that Wesley House is there should they need a safe, caring
place. Wesley House is a United Methodist national mission institution
(linked to the General Board of Global Ministries) with programs in
childhood, youth and family and senior services.
Since the Women's Division seed grant was received in 1997,
Louisville Works and Kairos have trained a total of 200 persons, with
much of the current funding coming through the Kentucky version of
Temporary Assistance for Needy Families (TANF). State government
reimbursed Wesley for student tuition. Other funding comes from church
and other private sources. Kairos is an eight-week internship that goes
beyond basic computer training. Case management for students in each
program is provided by the Jefferson County social service agency. One
measure of the success at Wesley is the fact that the computer
instructor in the Spring, 2001 was a single mother of four who was
herself a graduate of Louisville Works and of Kairos. Her ability to
identify and communicate with the students is seen as a major reason
attendance is excellent in the classes.
Near Southside Employment Coalition and Youth Opportunity Program
KINGDOM HOUSE, ST. LOUIS, MISSOURI
Kingdom House is a 99-year-old community center of the Missouri
East Annual Conference with a long history of partnerships with
government and private agencies. It is a major sponsor of and until
recently housed the Near Southside Employment Coalition, an ecumenical
program whose director is actually paid by Kingdom House. Near
Southside serves an area south of downtown St. Louis filled with a
mixture of public housing and ``gentrified'' residences. Almost all of
the public housing residents are African-American; many single women
heads of households. Near Southside's workforce development programs
was 15 years old and had a good track record, and then came welfare-
towork. The employment coalition entered into a performance-based
contract with the state to provide job training services to 75 persons.
The experience was less than a happy one, according to Near Southside
director William McRoberts. Relatively few persons were initially
referred to the agency and, says McRoberts, the training period was too
short, the procedures unclear and the bureaucracy heavy-handed.
McRoberts says that his agency did not ``staff up'' at the outset, that
is, hire additional people, so that Near Southside did not lose as much
money as did some non-profits with TANF contracts in the early days of
welfare reform. The state was reimbursing services providers at $1,800
per individual, while the actual cost was closer to $4,500 per person,
according to McRoberts.
Near Southside did not reapply for a direct state contract but it
did sign on to a pilot project funded by a combination of state and
private foundation money. The pilot involves training persons to work
in customer services, primarily through ``call centers,'' a growing
field that pays $9 or $10 per hour. The funding partners are the Annie
E. Casey Foundation, through its Jobs Partnership Program, and the
Missouri State Department of Social Service Block Grants. Near
Southside provides customer services and job readiness training and
computer literacy courses. Kingdom House in 1997 was certified to
receive Youth Opportunity Program (YOP) tax credits from the state of
Missouri. Under this arrangement, individuals and corporations who give
money to YOP at Kingdom House receive a 50 percent credit on their
state income taxes. YOP is a social development program for low income,
``at risk'' youth. It provides recreational and other after school
activities. Since 1997, Kingdom House has received $1 million through
the tax credit plan, according to Ralph Lewis, director of development.
Transitional Journey Program
COOKMAN UNITED METHODIST CHURCH, PHILADELPHIA, PENNSYLVANIA
The Transitional Journey Program of the Cookman United Methodist
Church in Philadelphia is, according to a University of Pennsylvania
research report, the only real charitable choice venture in the state;
indeed, it is one of very few in the whole country. It got underway in
1998 with a $150,000 state allocation for welfare-towork training,
placement and follow-up. For the first year, the money was in the form
of a performancebased contact and some of the staff members were not
paid for months while Cookman waited for reimbursement We worked on
hope and despair,'' says the Rev. Donna Jones, pastor of the
smallmembership congregation in poverty-ridden North Philadelphia. The
second year was easier because part of the money was a grant and, also,
additional funding came from local and national United Methodist
Cookman worked with 192 persons leaving welfare in the first three
years of Transitional Journey, which has a job placement rate of 87
percent and an overall retention rate of 60 percent, which is quite
high. Some of the program graduates change jobs in the first year but
are counted as working if the break is short. ``People quit or get
fired and come back to our doorstep, and we help them find another
job,'' says Pastor Jones. The program has a small staff of case
workers. It has received some in-kind contributions, including computer
and other equipment from the Dupont Corporation.
Most of the program participants are women and 80 percent have no
high school diplomas. Transitional Journey offers a GED program and
training in English as a second language. Counseling is offered and
children of the women are invited to take part in the church's
activities for children and youth, including recreation.
As a charitable choice contractor, Transitional Journey includes
religious content in its training, however, it must use non-government
funds to buy the Bibles it distributes to persons who want them. Pastor
Jones recalls that during the first year one student called the state
to complain of ``too much'' religious content. ``That's why we have all
the students sign waivers, so that they know that our program is
Christ-centered, but the religious part of it is strictly voluntary.''
For example, a Muslim who came through the program excused herself from
the sessions of faith and selfhood. ``Sisters of Faith,'' a related
program encourages a deeper faith commitment and builds skills to
``live faith daily.''
The initial state grant was wrapped up in March, 2001, with a
second application pending, expected to become effective in June, 2001.
What are the problems with Charitable Choice?
The United Methodist Church has no difficulty in partnering with
government to do what is right for people in need. The above examples
show that we have been doing this for many years and very successfully.
Nevertheless, The United Methodist Church's practice of setting up
separate nonprofit corporations for church organizations that want to
provide these services to the community clashes directly with one of
the main provisions of Charitable Choice.
We do not have any difficulty with the government providing access
to religiously motivated organizations (i.e., separate non-profit
religiously affiliated corporations) to compete for federal dollars. We
cannot agree, however, in the establishment of `faith ``as a separate
category that sets religious groups apart from requirements which
others are obligated to meet in order to provide social services.
When President George W. Bush said that he intended to ``[b]ring
faith organizations to the table and [to] remove legal barriers to full
participation in public programs and access to public program funds,''
we were troubled. When he said that ``Private and charitable groups,
including religious ones, should have the fullest opportunity permitted
by law to compete on a level playing field, so long as they achieve
valid public purposes. . .,'' we were cautious.
We believe, however, that the key point in President's Bush
statement is that private and charitable groups ``should have the
fullest opportunity permitted by law to compete.'' Thus, we should use
what is permitted by law, we should use what we know has worked and
improve on it, rather than to create a new program that, in our
opinion, is a solution looking for a problem.
The United Methodist Church cannot support legislation that clearly
endorses religious discrimination in the hiring and firing practices in
community social service ministries paid by the Federal government. Our
Church believes that programs serving the community and funded with
federal or state dollars should not be allowed to use faith to
discriminate. The preservation of the Church's character, so strongly
argued by the supporters of this legislation, cannot be upheld by
sacrificing civil rights that we all have struggled so hard to defend.
Integrity and skills should be the reasons for hiring or firing people
from a government-paid job, not their faith affiliation. We believe
that our actions are the loudest witnesses we can present to the world
to show the love of God through Christ.
The United Methodist Church is a strong supporter of Title VII,
Section 702 (a), of the Civil Rights Act of 1964, which allows for
religious discrimination on the basis of a religious group's doctrines
and rules. We can accept this discrimination as long as the
discrimination takes place in church-related ministries and where the
ministry is paid by their own members. We cannot agree, nor support,
religious groups' discrimination while using tax dollars. It is one
thing for the church to require that their pastors, organists, sextons,
and other employees of the church to be from their faith and
conviction, another thing, entirely different, is for religious groups
receiving tax dollars, in order to provide secular services, to be
allowed to use the same criteria for hiring their employees for
government related programs. Therefore, in our estimate, violating
civil right laws using federal dollars.
In addition, we must pay heed to Justice Rehnquist is warning
regarding government funding of religious organizations: ``There is the
risk that direct government funding, even if it is designated for
specific secular purposes, may nonetheless advance the pervasively
sectarian institution's `religious mission.'' As long as government
attempts to separate what is religious from secular in entities like
churches, synagogues, mosques, etc, it risks becoming excessively
entangled with religion, thus advancing it or hindering religion, both
clear violations of the establishment clause.
Charitable Choice clearly contradicts the minimum requirements set
forth by our church as to what must be in place before a religious
group accepts tax dollars in order to provide social services. We
believe that Charitable Choice is not the right way to help the needy
nor is it the best way to foment healthy Church-Government relations.
Let me list for you five areas were we disagree with this policy.
1. It steps across the boundary of church-state separation by
exempting ``Faith-Based'' groups (used here to refer
exclusively to ``religiously sectarian groups,'' since ``Faith-
Based'' groups are more broadly defined) from compliance with
civil rights laws barring hiring discrimination on religious
grounds with tax dollars, or by not requiring separate
incorporation of contract holders, thus allowing local churches
to receive funding directly into their accounts, and by
allowing religious content in service programs.
2. This relationship may result in excessive religious reliance
on public money, leading to a weakening of the role of a
religious group's prophetic voice. How can a prophet raise his/
her voice against government policies while simultaneously
asking for government help?
3. Since government funding brings government oversight through
compliance reviews and audits. This government review will lead
to government interference in the internal affairs of religious
4. Elected officials will be tempted to play politics with
religion (which we have seen already happening in some states).
Houses of worship may compete against one another for
government contracts, encouraging rivalry among religious
groups who are looking to access the same pot of money. Who
will decide which religious group is better suited to provide
services? Or which services are more worthy? This situation
could widen the divisions that are present in today's religious
landscape in America, driving us further apart.
5. In the area of drug rehabilitation, we find that the line
that separates Church and State is completely crossed over. No
one can honestly believe that a program funded with tax
dollars, which requires as a major component of treatment the
acceptance of Jesus Christ as Lord and Savior, will not advance
religion. How can this scenario be considered as not advancing
religion when this requirement is exactly what we find in the
Gospel of St. Matthew as one of the responsibilities of
believers? ``Go to the people of all nations and make them my
For Christians, under this circumstance, more clearly than any
other, tax dollars will clearly go to advance a religious purpose.
This is not an exhaustive list of our concerns regarding Charitable
Choice, but reflects some of the major difficulties we have with this
We agree with the Baptist Joint Committee and other religious
groups that there are alternative options where religious groups are
involve in providing services to the community in partnership with the
State. We believe that there are alternatives to continue and expand
church-state partnerships without bringing down the wall of separation
between church and state, which has protected and enhanced our
religious liberties and American democracy. Therefore, we would like to
recommend the following so that we might continue the partnership and
to further enhance it.
First, let religious groups create separate affiliate (non-profit)
corporations that are not ``pervasively sectarian,'' with technical
assistance from the federal government (something that HUD has been
doing). This will enable faith based organizations to receive
government money and perform the services with religious motivation,
but without proselytizing, discrimination, or teaching religion.
Second, encourage increased private giving by passing legislation
expanding deductibility rules for charitable contributions. This money
could be directed by individuals to the charities of their choice with
no regulatory strings attached.
Third, foster cooperation between religious groups and government
that do not involve taxpayer's dollars. Government could publicize the
good work that private religious and other non-profit social service
groups are doing and make referrals to these organizations when needed
and appropriate. Churches and government have been working together for
many years; this can continue and be expanded without sacrificing each
Fourth, churches could also work in partnership with the State in
providing volunteers in governmentorganized mentoring projects, as long
as government does not promote religion.\6\
\6\ See for additional ideas and suggestions ``In Good Faith: A
Dialogue on Government Funding of Faith Based Social Services.'' The
Feistein Center for American Jewish History, Temple University,
Let me conclude with the words of Dr. Martin Luther King, Jr.,
regarding the relationship between the Church's prophetic voice and the
The church must be reminded that it is not the master or the
servant of the state, but rather the conscience of the state. It must
be the guide and the critic of the state, and never its tool.\7\
\7\ King, Jr., Martin Luther. Strength to Love. 1963.
Thank you for your attention.
Senator Schumer. Thank you very much, Reverend.
Now, we will have Mr. Edward Morgan, of the Christian
STATEMENT OF EDWARD MORGAN, PRESIDENT, CHRISTIAN HERALD
ASSOCIATION, NEW YORK, NEW YORK
Mr. Morgan. Thank you, Senator Schumer.
My name is Edward Morgan and I am President of Christian
Herald Association, a 122-year-old faith-based charity in New
York City. We operate the historic Bowery Mission on
Manhattan's Lower East Side, which is one hundred-percent
We also operate a 77-bed program publicly funded by the
City Department of Homeless Services, the Nation's largest,
called the Bowery Mission Transitional Center. BMTC is the
highest-performing substance abuse center in the City of New
Finally, we also operate one of New York's major summer
camps for at-risk inner-city children, plus after-school
programs in six locations. I believe each of these three
programs relates to the charitable choice issue before the
The Bowery Mission is a traditional faith-based program
which relies solely on private funding. Here, faith-based
activities are a daily component of the services we deliver,
and we consider this program inappropriate for public funding.
On the other hand, the Bowery Mission Transitional Center
is a custom-designed partnership between government and
provider, held in a separate 501(c)(3) corporation. In this
arrangement, no religious activities are required of our
clients and our programming does not promote our faith.
The charitable choice issue at BMTC revolves around the
current legal hurdles to freely hiring people of faith. The
not-so-secret ingredient in our successful program is employees
of faith who have reached the bottom themselves and found that
a power higher than themselves is their only hope, and that the
real meaning of life is reaching out to other people with
unconditional love and earning their trust and seeing them
triumph over adversity as well.
Does having exclusively people of faith on the staff of our
publicly-financed project mean we are promoting religious with
government funds? No. Absolutely no religious activities are
required. Does it mean, however, that clients might catch this
communicable disease called faith from staffers because it is
Since the Bowery Mission Transitional Center opened in
January of 1994, over 700 men have graduated and moved from
public dependence in city shelters to achieve independent,
productive lives, at a cost to the city of less than $15,000
per graduate. Ninety-five percent of them have not returned to
the city shelter system 1 year later--living proof that
partnerships between government and faith-based charities can
achieve superior results.
Our belief that the success and the integrity of our
services depends on our freedom to hire men and women of faith
is reflected in the current inability of our children's
organization, Kids With A Promise, to collect a $600,000 grant
from the Office of Juvenile Justice and Delinquency Prevention
because of existing restrictions and assurances in hiring. As
with the Bowery Mission Transitional Center, Kids With A
Promise's programs are effective precisely because they are
delivered by people who demonstrate the compassion and
commitment to others that comes with their faith.
I thank the Committee for a chance to be heard, and I
believe such programs such as the Bowery Mission Transitional
Center represent the future of charitable partnerships in our
city and in this country. By combining the resources of
government with the compassion, hope and vision offered by
faith-based programs, together we can provide men, women and
children with the most effective care this country has to
[The prepared statement of Mr. Morgan follows:]
STATEMENT OF EDWARD MORGAN, PRESIDENT, CHRISTIAN HERALD ASSOCIATION,
NEW YORK, NEW YORK
My name is Edward Morgan and I'm President of Christian Herald
Association, a 122 year old faith-based charity in New York. We operate
the historic Bowery Mission on Manhattan's Lower East Side, which is
100% privately supported. We also operate a 77 bed program funded by
the City Department of Homeless Services, called The Bowery Mission
Transitional Center. BMTC is the highest performing substance abuse
shelter in the City. And finally, we also operate one of New York's
major summer camps for at-risk inner-city children, currently in its
107th year plus after-school programs in six locations. Each of these
three programs relates to a charitable choice issue before the
Committee today, I believe.
At the Christian Herald, we run two types of adult transitional
programs. The first, represented by the Bowery Mission is a traditional
faith-based program which relies solely on private funding. Here,
faith-based activities are part of every day's schedule and are a
crucial component of the services we deliver.
The second type of program is represented by the Bowery Mission
Transitional Center--a custom designed partnership between government
and provider held in a separate 501 (C)-3 corporation. In this
arrangement, no religious activities are required of our clients, and
our programming does not promote our faith. The charitable choice issue
at BMTC revolves around the current legal hurdles to freely hiring
people of faith. The not-so-secret ingredient in this successful
program is employees of faith who have reached the bottom themselves
and found, as countless others have through history, that a power
higher than themselves is their only hope-- that the real meaning of
life is reaching out to other people with unconditional love, earning
their trust and seeing them triumph over adversity as well. Although
they do not proselytize, they are open about their faith, and will
freely share their beliefs with any client who expresses interest.
Since the Bowery Mission Transitional Center opened in January of
1994, over 700 men have graduated and moved from public dependence in
city shelters to achieve independent productive lives at a cost of less
than $15,000 per graduate. Ninety five percent have not returned to the
city shelter system one year later. We are the most successful
substance-abuse shelter in New York City--living proof that
partnerships between the government and faith-based charities can
achieve superior results to secular organizations without infringing on
the separation between church and state or diluting our religious
heritage, provided that we are free to hire staff based on their
Our belief that the success and the integrity of our services
depends on our unrestricted ability to hire men and women of faith is
reflected in the recent decision of our children's organization, Kids
With A Promise, to turn down a $600,000 grant from the Office of
Juvenile Justice and Delinquency Prevention, funding that would
severely inhibit our hiring people of faith. As with the Bowery Mission
Transitional Center, Kids With A Promise's programs are effective
precisely because they're delivered by people who demonstrate the
compassion and commitment to others that comes with their faith.
I thank the Committee for a chance to be heard. I believe programs
such as The Bowery Mission Transitional Center represent the future of
charitable services in this country. By combining the resources of the
government with the compassion, hope, and vision offered by faith-based
programs, we can together provide men, women, and children with the
most effective care this country has to offer.
Senator Schumer. Thank you very much, Mr. Morgan, another
fine New Yorker of a somewhat different view than our previous
I would also like to welcome Congresswoman Carolyn
Kilpatrick, of the 15th District of Michigan. She came here
specifically to welcome Dr. Adams, who is her constituent.
Thank you for coming, Congresswoman.
Our next witness is Mr. John Avery, Director of Government
Relations for NAADAC, the association for addiction
STATEMENT OF JOHN L. AVERY, GOVERNMENT RELATIONS DIRECTOR,
NATIONAL ASSOCIATION OF ALCOHOLISM AND DRUG ABUSE COUNSELORS,
Mr. Avery. Thank you, Senator Schumer and members of the
Committee. We would like to commend you for considering Senate
304, which is an important piece of legislation regarding the
demand reduction strategy of drug addiction in our Nation.
We represent addiction professionals, counselors, on the
front line of treatment. For the past 30 years, we have
advocated quality, standardized, improved, research-based,
effective care. NAADAC welcomes and supports any organization,
faith-based or secular, that wants to provide quality
treatment. We feel that more treaters in the field is a good
But our concern is not with who provides the care, but
rather by what clinical standards that care is provided. We
support the application of science-based, evidence-based best
practices. Drug addiction is a chronic illness and it requires
an individualized assessment and comprehensive treatment over a
period of time, and that treatment may also involve medical
and/or psychiatric components. It is essential that a treatment
plan evolve based on the needs and progress of the clients, and
that assessment must be provided by a competent professional to
Our official position statement is attached; you have it
for your reference. There are just a couple of points I would
like to address.
Number one, addiction treatment is a public health service,
not a social service. Secondly, 19 States now license
individual addiction clinicians, and 31 States have other forms
of certification. These licensure and certification provisions
provide public health and safety criteria and consumer
protection standards, as well as accountability.
Thirdly, we believe that no provider of a public health
service should be permitted to discriminate in employment. The
provision that an alternative be provided in a reasonable
period of time, in reality, is not practical because of the
treatment gap. Often, at a moment in time when a person needs
services there may be no other alternative.
Chemical dependency is a stigmatized illness, and the
treatment gap itself is the most glaring example of this. In
any given year, 13 million Americans might need treatment, and
yet only 3 million Americans will receive care.
The cost of illicit drugs alone is $116.9 billion to
society. Combine that with alcoholism and it is $294 billion.
Yet, for treatment, we provide $5.5 billion for drug addiction
alone, and $11.9 billion if you combine it with alcoholism. In
other words, America pays 25 times for addiction what it spends
NIDA Director Alan Leshner has said that addiction is a
brain disease and that this medical condition requires formal
treatment. We often confuse individual behavior with the
disease. While an individual's behavior may be illegal,
sometimes criminal, and frequently obnoxious, we would not deny
competent medical treatment to a person, say, for coronary
illness or any other life-threatening illness because we didn't
approve of their behavior. Addiction is a brain disease and
ought not to be stigmatized as sin or willful misconduct or
The current understanding of the Establishment Clause of
the Constitution requires that faith-based organizations
provide treatment in a secular atmosphere. There is a long
history in our country of agencies doing this. So our question
is why do we need new law? The mechanisms for new providers to
enter the field already exist.
We also believe that an overtly religious atmosphere which
suggests, even if not stated, that treatment is somehow
contingent on religious belief or practice is essentially
implied coercion. Such coercion is in violation of the
patient's civil rights. It is also in violation of the ethical
code which most professionals practice.
We welcome faith-based organizations who wish to provide
treatment under current law, and we don't want to confuse
professionally competent treatment with the adjunctive and
supportive role that religious organizations play in the
community. There is a strong role for spirituality and
religious affiliation, freely chosen by the individual.
[The prepared statement of Mr. Avery follows:]
STATEMENT OF JOHN L. AVERY, LICSW, MPA, GOVERNMENT RELATIONS DIRECTOR,
NATIONAL ASSOCIATION OF ALCOHOLISM AND DRUG ABUSE COUNSELORS,
Mr. Chairman, Ranking Member, members of the committee. Thank you
for the opportunity to appear before you today. NAADAC represents
13,000 licensed or certified addiction counselors from across the
United States. Our membership reflects a multi-disciplinary range of
professional, clinical and academic preparation. Our common denominator
is that we are all chemical dependency counselors, clinical specialists
in addiction, serving on the frontlines of chemical dependency
treatment. We have for the past thirty years advocated for the
development and deployment of the highest standards of care for
patients seeking treatment for addiction to alcohol and other drugs.
NAADAC welcomes and supports any organization, faith-based or
secular, committed to providing quality treatment and care to persons
afflicted with drug addiction. The need is great. The treatment gap is
wide. The number of treatment providers across the nation is declining.
More providers and funding should result in increased access and
availability of treatment. This is a good thing given the public health
crisis addiction poses to our nation.
NAADAC's concern is not with who provides care, but rather by what
clinical standards that care is provided. We are committed to the
application of science based, best practices, perhaps as most
succinctly stated in the National Institute on Drug Abuse (NIDA)
publication Principles of Drug Addiction Treatment, a Research-based
Guide (NIH ~ 004180, October, 1999). Addiction is a chronic, complex
illness requiring individualized assessment and treatment. Such care
should be comprehensive and should extend over a sustained period of
time. Treatment may include episodes of medical and/or psychiatric
care. As drug addiction impairs social functioning, social service
interventions may be indicated as well. The essential element is that
treatment plans continually evolve based on the individual needs and
progress of the patient. The treater needs to be competent to provide
The NAADAC position statement on what is often called ``charitable
choice'' identifies six principles that we believe should inform your
deliberations. This statement was sent to all members of the 107th
Congress and key persons in the administration. A copy is attached for
The six principles are:
1. There is no wrong door to treatment. Specific populations
have distinct addiction treatment needs. We support faith-based
providers who comply with current state regulations governing
substance abuse treatment.
2. Addiction treatment delivered in the public sector is and
should continue to be a public health service. Regulations and
guidelines to insure consumer protection and safety must be
3. Charitable choice provisions must support state
requirements. Nineteen states now license individual addiction
treatment providers. The other thirty-one states have some
other form of certification or credentialing process. These
public health and safety criteria provide consumer protection
and accountability in addiction treatment.
4. Charitable choice provisions must not undermine the Civil
Rights Act prohibition on discriminatory hiring practices. We
believe that federally funded, public health clinical service
providers should not discriminate in employment practices.
5. Requirements to provide secular treatment alternatives
``within a reasonable time period'' are often unattainable.
Addiction treatment is provided in the context of a window of
opportunity when the patient is sufficiently ill or desperate
to seek help. The patient's acute medical need for
detoxification, often life threatening, does not allow for
delay. The lack of availability of treatment services in many
communities renders this provision impractical.
6. Taxpayers expect all federally funded programs to comply
with stringent accountability and outcome measurement
standards. All providers should be held to the same federal
standards that safeguard the public treasury.
Chemical dependency is a highly stigmatized illness. There is a
profound disconnect between what science and research indicates
regarding this disease and public opinion. The most glaring evidence of
this misunderstanding is the treatment gap. In any given year there are
between 13 and 16 million chemically dependent Americans in need of
treatment, but only 3 million receive care. (SAMHSA,1999; Institute of
Recently released CSAT research indicates that in 1997 the social
cost of illicit drug addiction alone is $116.9 billion When combined
with alcoholism the social cost rises to $294 billion. In contrast
expenditures for treatment are $5.5 billion for drug addiction alone
and $11.9 million when combined with alcoholism treatment. Substance
abuse costs America 25 times what the nation spends on treatment.
(Coffey et al. National Estimates of Expenditures for Substance Abuse
Treatment, 1997. SAMHSA Publication No. SMA-01-3511, February 2001.)
NIDA director Alan Leshner summarizes what scientific research has
taught us about drug abuse: ``. . .addiction is a brain disease that
develops over time as a result of the initial voluntary behavior of
using drugs. The consequence is virtually uncontrollable compulsive
drug craving, seeking, and use that interferes with, if not destroys,
and individual's functioning in the family and in society. This medical
condition demands formal treatment.'' (Leshner, A.L., Ph.D., Addiction
is a Brain Disease, Issues in Science and Technology. VOl.XVII, Num.3,
The University of Texas at Dallas, Spring 2001)
Treatment delayed is effectively treatment denied. Access to care
in real time is critical by the very nature of the illness. As a brain
disorder it requires qualified professional care. The salient issue is
the clinical competency of the treatment provider.
We often confuse the manifestation of the illness, the individual
behaviors of the addict with the disease itself. That is what we see
and experience. These behaviors are often illegal, sometimes criminal,
and frequently obnoxious. Yet we would not deny competent medical
treatment to a person with coronary disease or any other life
threatening ailment on the basis of how we judge their behavior.
Medical care would be provided and their behaviors dealt with in other
settings. Addiction is a brain disease and must not be stigmatized as
sin, willful misconduct, or immoralism.
It is not clear to us what problem Title VII seeks to address.
Section 701.(a) page 132 lines 20-21 states ``the program is
implemented in a manner consistent with the Establishment Clause of the
first amendment of the Constitution.'' Section 701. (K) page 138 lines
3-5 states ``. . .shall be based on a program shown to be efficacious
and should incorporate research based principles of effective substance
abuse treatment.'' So why the need for new law? The mechanisms for new
treatment providers to enter the field already exist.
Current understanding of the Establishment Clause of the
Constitution requires that faith-based organizations provide treatment
in a secular atmosphere. There is a long tradition of faith-based
organizations of many denominations providing chemical dependency
services in accordance with current federal, state, and local law.
Catholic Charities, the Salvation Army, and Volunteers of America to
name but a few. We believe that a sectarian, doctrinal or overtly
religious atmosphere that suggests, even if not stated, that treatment
or recovery is somehow contingent on adherence to certain religious
practices and beliefs, is not compatible with quality care. The patient
presenting for addiction treatment is very vulnerable to subtle and
implied coercion. As other treatment options may not exist in real
time, the presenting patient may comply in order to continue to receive
services. Such coercion would be a violation of the patient's civil
rights. It is also a violation of the ethical code of all human service
We welcome faith-based organizations seeking to provide addiction
treatment under current law. There is a crying need for more providers
if the treatment gap is to be narrowed and eventually closed. We should
not, however, confuse professionally competent clinical addiction
treatment with the vital adjunctive role community based resources play
in reintegrating the newly recovering individual into society.
There is a strong role for spirituality and freely chosen
congregational or denominational affiliation in the lives of
individuals and families. Indeed in the recovering community there is a
long tradition of participation in Twelve Step groups. It is noteworthy
that the Twelve Step tradition leaves all questions of doctrine,
practice, and affiliation to individual determination and conscience.
NAADAC believes that it is the individualized treatment plan, based
on the assessment by skilled trained professionals, that is the
cornerstone of effective treatment. We strongly believe that expanded
treatment opportunities will have a vital impact on the nation's demand
Senator Schumer. Thank you, Mr. Avery. I think this is all
excellent testimony, and I appreciate everybody moving things
along. You probably heard the answer to the question I gave to
our previous witness.
Mr. Wade Henderson is a leader in Washington and Executive
Director of the Leadership Conference on Civil Rights and
another longtime friend of mine, although not a New York
STATEMENT OF WADE HENDERSON, EXECUTIVE DIRECTOR, LEADERSHIP
CONFERENCE ON CIVIL RIGHTS, WASHINGTON, D.C.
Mr. Henderson. Thank you, Chairman Schumer. Again, I am
Wade Henderson and I am the Executive Director of the
Leadership Conference on Civil Rights. I am pleased to appear
before you on behalf of the Leadership Conference to discuss
the charitable choice provisions in the administration's faith-
based initiative, and to discuss the potential harm to civil
rights laws that could result from the failure to consider
The Leadership Conference on Civil Rights is the Nation's
oldest, largest and most diverse coalition of organizations
committed to the protection of civil and human rights in the
United States. It is a privilege to represent the civil and
human rights community in addressing the Committee today.
I would like to make a few opening remarks, a few opening
observations at the outset, and then I would like to use the
remainder of my time within the five-minute framework to
discuss the issue of discrimination, which is at the heart of
First, I would like to observe that the Leadership
Conference approaches this issue with great respect for the
many religiously-affiliated organizations, such as Catholic
Charities USA, the United Jewish Communities, Lutheran Social
Services and, yes, Habitat for Humanity, that have long
received Federal, State and local funds to serve important
needs in our communities. The charitable choice provisions
under consideration today will have no effect on the important
work of these well-known organizations.
Second, to my knowledge, none of the Leadership Conference
members who oppose charitable choice are seeking to change in
any way the operation of the several religiously affiliated
groups that already participate in Federal programs.
Third, we also strongly support the fundamental principle
that our Nation's privately funded religious organizations, our
churches, synagogues, mosques and other houses of worship,
should always enjoy the constitutional freedom to pursue their
religious missions through their ministries to our communities.
The Leadership Conference and many of its member
organizations have supported religious freedom with our own
long history of working toward laws that protect religious
exercise, including the right of each person to be free from
discrimination based on religion.
Lastly, in this context the Leadership Conference would
also like to offer its commitment to you and to other members
of this Committee to work to find better, non-discriminatory
ways to ensure that Federal money goes to whichever
organization, whether secular or religious, that can best serve
a community's needs and is willing to abide by the laws that
apply to Federal contracts and grants.
We understand the frustration of many smaller, privately
funded service providers--in fact, Senator Santorum mentioned
it in his testimony--both religiously affiliated and secular,
who feel excluded from Federal programs because the regulatory
hurdles seem too high. We believe that we can find appropriate
ways to bring these organizations into Federal programs, even
as we remain committed to civil rights protections and other
necessary safeguards. We believe that such a win-win solution
is possible and it is well worth all of our efforts in trying
to find it.
Now, with respect to the issue of discrimination which is
at the heart of today's hearing, we observe that the issue of
charitable choice threatens a cornerstone principle of American
civil rights law, which is that Federal funds generally will
not go to persons or institutions who discriminate against
others. This principle is roughly 60 years old and began with
Franklin Roosevelt and his executive order.
We think that that principle is so important we should find
a way to ensure that discrimination does not occur, and we
think that the current proposals under consideration, in fact,
expand current law in ways that could be harmful. Now, even
though we are not seeking to change religious exemptions
currently in place, when you have provisions like those in S.
304 that not only track Title VII of the Civil Rights Act of
1964 in giving a religious exemption to those organizations
engaged in that activity, but create a new standard that goes
beyond Title VII, because it does not apply to organizations
with 15 or more employees, it seems to us to be an
There is no need to create a new standard under the law
simply to encourage religiously affiliated organizations to do
more to provide services in communities around the country. And
we would join in making that call, but the real issue is that
if, in fact, you don't choose to discriminate, there is no need
to expand the law beyond its current parameters.
We are happy to add additional comments and support for
this position. Thank you.
Senator Schumer. Thank you, Mr. Henderson.
Our next witness is Nathan Diament. He is the Director of
Public Policy for what we fondly know in New York as the OU, or
the Union of Orthodox Jewish Congregations in America.
Thank you, Nathan.
STATEMENT OF NATHAN J. DIAMENT, DIRECTOR OF PUBLIC POLICY,
UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA, WASHINGTON,
Mr. Diament. Thank you, Senator Schumer, and I will try to
be faithful to my New York heritage and speak quickly.
I represent the Union of Orthodox Jewish Congregations, the
largest Orthodox Jewish umbrella organization in the United
States, entering its second century of serving the community.
I will refer you to my written testimony for our discussion
of the Establishment Clause. I, like Mr. Henderson, am going to
devote most of my remarks to this so-called civil rights issue.
But before I do that, I would just like to note something that
was said at the outset of this hearing and I think it is
important to remember, and that is that these initiatives have
always been bipartisan initiatives, just like they are in the
case of S. 304.
I would refer you and the other members of the Committee to
the two speeches that I have appended to my testimony, one from
President Bush and one delivered by Al Gore before the
Salvation Army in 1999, in which I don't think you will find a
more ringing endorsement of charitable choice and expanding the
partnership between faith-based social service providers and
The fact that this initiative is now receiving greater
attention should not be the cause for partisanship. The faith-
based initiative does seem to have become a political Rorschach
test, with some people projecting their worst fears upon it.
But the fact that this initiative raises complex and critical
questions should give rise to careful and reasoned discussion,
as we have engaged in today, rather than the over-heated fear-
mongering which is seen in some press releases.
With regard to the Establishment Clause, I would simply say
that our view is that the Establishment Clause demands
neutrality toward religion and non-religion on the part of the
Government. It says that the Government may not favor the
religious over the secular, but it also may not favor the
secular over the sacred. The Establishment Clause, as the
Supreme Court has said, demands neutrality toward religion, not
The issue I want to devote most of my time to is regarding
the hiring issue. There is another religion clause, as you well
know, Senator Schumer, in the Constitution, and that is there
Free Exercise Clause. We in the Orthodox Jewish community are
certainly concerned with issues of religious coercion, and we
believe that beneficiaries of these programs are entitled to
have their free exercise rights protected.
We would encourage the Government, through whatever means
possible, to promote and protect the first freedom of religious
liberty. But at the same time, the providers, the faith-based
organizations, have free exercise rights as well, and the
accusation that suggests that all American houses of worship
are, in fact, houses of bigotry is unacceptable.
The Civil Rights Act of 1964 is the great bulwark against
objectionable acts of discrimination, and it is Title VII of
that very Act, crafted by the architects of modern civil rights
law, that provides this exemption. It is interesting that Mr.
Scott cited the Pew poll about this issue. If you look at that
poll and if you look at the way this question was asked to the
people who were polled, they were given no information and no
indication that this protection for faith-based organizations
is as old as 1964. They were led to believe perhaps that this
is some new invention, and I think that is a critical component
of this discussion as well.
The fact of the matter is that the opponents of the
charitable choice initiative, having been defeated in the
courts and Congress in bipartisan votes on the constitutional
Establishment Clause question, have latched on to this issue to
try to defeat the charitable choice initiative.
The fact of the matter is that this is a free exercise
right of the faith-based organizations. Those who appreciate
the role of religious institutions in America, as you do and as
other members of this Committee do, should resist the easy
equation that opponents assert. They seem to suggest that every
act of discrimination, even those by faith-based institutions
on the basis of faith, is like every other act of
discrimination, and that is not true. And if it is true, the
implications are dangerous indeed.
A defining element of the civil rights era was a commitment
to root out invidious discrimination not only in the public
sector, but in private contexts as well, at lunch counters and
in motel rooms and on bus lines. If, as the critics suggest,
your synagogue and mine are, in fact, such bigoted
institutions, then the Federal Government ought to be rooting
it out there by any means possible as well.
Why do we offer these institutions the benefit of tax-
exempt status if they are full of bigotry? Why do we afford
their supporters tax deductions for their contributions? Why do
we hallow their role in society as we do?
There are other arguments to be made against the faith-
Senator Schumer. You have spoken fast, but not fast enough,
so if you could conclude.
Mr. Diament. I conclusion, I will just say that there are
other arguments to be made over which we may reasonably
disagree, but slandering our sacred institutions with the
charge of bigotry is unacceptable and must be ruled out of
[The prepared statement of Mr. Diament follows:]
STATEMENT OF NATHAN J. DIAMENT, ESQ., DIRECTOR OF PUBLIC POLICY, UNION
OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA
Thank you, Senator Leahy and Senator Hatch, for the opportunity to
address this Committee today. My name is Nathan Diament and I am
privileged to serve as the director of public policy for the Union of
Orthodox Jewish Congregations of America. The UOJCA is a non-partisan
organization in its second century of serving the traditional Jewish
community, and is the largest Orthodox Jewish umbrella organization in
the United States representing nearly 1,000 synagogues and their many
On behalf of the UOJCA, I come before you today to address two
legal issues that are relevant to the effort to expand the already
existing partnership between government and faith-based social service
providers: the first issue is the Constitutional issue raised by the
First Amendment's religion clauses, the second issue relates to
religious liberty protections contained in our nation's civil rights
But before addressing the legal issues, I would like to suggest
that we step back for a moment and appreciate the broader context of
our conversation today. Since this nation's founding, evaluating the
role of religion in our society's public life has been part of our
national conversation. But in recent months, this issue has been re-
engaged with new vigor and prominence. Last year's nomination of an
Orthodox Jew to a national ticket put the discussion back on the front
page. This year's creation of the White House Office of Faith-Based &
Community Initiatives has served as a catalyst for continuing this
national discussion. The fact that we are having this discussion is in
itself a wonderful thing for our democratic society.
Just as important is the fact that we are having a national
discussion about finding new ways to address our social welfare
challenges, particularly those confronting lower income populations. To
have President Johnson's declaration of a war on poverty cited once
again in public addresses appreciatively, rather than derisively is a
\1\ Remarks by President Bush at University of Notre Dame
Commencement Exercises, May 21, 2001. Attached as Appendix 1.
One more word of introduction, I believe is critical. It is the
case that the Bush Administration's focus on faith-based initiatives
has given this policy issue a new degree of attention. But I
respectfully remind you that this is not a new initiative. It received
bipartisan support in the U.S. Senate and was signed into law by
President Clinton on four occasions since 1996.\2\ Moreover, it was one
of the few public policy initiatives that enjoyed support during the
last presidential campaign from both parties' presidential candidates.
\2\ Personal Responsibility & Work Opportunity Reconciliation Act
(Pub. Law 104-193); Community Services Block Grant (Pub. Law 105-285);
Children's Health Act (Pub. Law 106-310); and Community Renewal Tax
Relief Act (Pub. Law 106-554).
In a major address to the Salvation Army, it was candidate A1 Gore
who stated: ``The men and women who work in faith . . .based
organizations are driven by their spiritual commitment . . .they have
sustained the drug addicted, the mentally ill, the homeless; they have
trained them, educated them, cared for them . . .most of all they have
done what government can never do . . .they have loved them.'' Mr. Gore
went on to propose what he called a ``New Partnership'' under which the
``charitable choice'' concept would be expanded. He stated: ``As long
as there is always a secular alternative for anyone who wants one, and
as long as no one is required to participate in religious observances
as a condition for receiving services, faith-based organizations can
provide jobs and job training, counseling and mentoring, food and basic
medical care. They can do so with public funds--and without having to
alter the religious character that is so often the key to their
\3\ Remarks by Vice President A1 Gore on the Role of Faith-Based
Organizations, delivered May 24, 1999. Attached as Appendix 2.
I raise this today not to minimize in the least the commitment of
President Bush and his Administration to this effort which is well
known, but to remind you that, to date, ``charitable choice''
initiatives have been bipartisan initiatives--just as they are in
Senate Bill 304, which enjoys bipartisan sponsorship in this
Committee.\4\ The speeches delivered by Mr. Bush and Mr. Gore that I
have appended to my testimony clearly reflect their common commitment
to this cause.
\4\ Drug Abuse Education, Prevention and Treatment Act of 2001--
Senators Hatch, Leahy, Biden, DeWine, Feinstein, and Thurmond--
The fact that this initiative is now receiving greater attention
should not be the cause for baser partisanship. The faith-based
initiative does seem to have become a political Rorschach test, with
some interest groups projecting their worst fears upon it.\5\ But the
fact that this initiative raises complex and critical questions should
give rise to careful and reasoned discussion--as we have engaged in
today--rather than overheated fear mongering.
\5\ See, Diament, A Faith-Based Rorschach Test, The Washington
Post, March 20, 2001.
SOCIAL SERVICE GRANTS AND THE ESTABLISHMENT CLAUSE
America's synagogues, churches and other faith-based charities
already play an important role in addressing many social challenges--
through soup kitchens and literacy programs, clothing drives and job
skills training, our faith communities remain the ``little platoons''
of our civilized society. My organization believes that these
institutions can play an even larger and more beneficial role if they
are supported in that effort.
We at the UOJCA do not suggest, as some might, that every faith-
based social service provider will do a better job than a secular or
government agency. Each of these agencies are programmed and staffed by
real people--some will do better than others. We do not assert that
every person in need will best be served by a faith-based provider--
some will, some won't; we've long ago realized that ``one-size-fits-
all'' approaches do not work in most contexts--we need H.U.D. and
Habitat for Humanity, H.H.S. and the Hebrew Home for the Aged.
Moreover, we do not believe that including faith-based providers in the
partnerships that government forms should be an excuse for letting the
government shirk its commitment to devote an appropriate level of
financial and human resources directly to addressing social needs.\6\
But we do believe that if the government decides not to go it alone,
but to invite partners from the private and public interest sectors in
tackling social welfare challenges, then the government ought not say
to one class of agencies--``you may not be our partner because you are
\6\ For this reason, the UOJCA welcomed President Bush's recently
announced plans to increase federal funding allocations for housing
rehabilitation and drug treatment program grants. Notre Dame
Commencement Address, Appendix 1.
\7\ This is exactly what the four existing charitable choice laws
do; they do not provide for the indiscriminate funneling of government
funds to churches and synagogues, they do provide that government grant
makers cannot red-line such programs out of the funding pool on the
sole basis of their religious character. Moreover, while charitable
choice provisions permit participation by faith-based organizations,
such participation is not mandated in any way.
We submit that the Constitution's Establishment Clause stands for a
simple proposition: that the government may not favor one religion over
others, or religion over non-religion. But it does not stand for the
proposition that government must favor the secular over the sacred. The
Establishment Clause, as the Supreme Court has said, demands neutrality
toward religion, not hostility.\8\
\8\ `` `It has never been thought either possible or desirable to
enforce a regime of total separation'. . . nor does the Constitution
require complete separation of church and state; it affirmatively
mandates accommodation, not merely tolerance, of all religions, and
forbids hostility toward any.'' Lynch v. Donnelly, 465 U.S. 668, 673
The Court will speak again to the Establishment Clause and the
neutrality principle before the end of this month when it rules in the
pending case of Good News Club v. Milford Central School District. This
case challenges the policy of a New York school district that allows
its public school facilities to be used for meetings by a wide range of
civic and youth groups after school hours, but refused to allow a
Christian youth group to use facilities for its meetings due to their
Neutrality, I submit to you, means that in a grant program,
government must be ``faithblind,'' if you will. Government ought to
establish grant criteria that have nothing to do with whether
prospective grantees are religious or secular, but simply whether they
have the capacity to perform the service and obtain the results the
government seeks to achieve through the grant. That is the essence of
what the Establishment Clause demands in this context.
Support for this neutrality-centered view can be found in many
Supreme Court precedents the most recent of which is Mitchell v. Helms,
decided just one year ago.\9\ In Helms, six of the nine justices came
down squarely on the side of the neutrality view of the Establishment
Clause.\10\ The issue before the Court was the constitutionality of a
federal grant program which allows local education agencies to use
federal funds for the purchase of supplementary educational materials,
including textbooks and computers, for schools within their
jurisdiction.\11\ Because the aid was also made available to parochial
schools within the jurisdiction, it was challenged as a violation of
the Establishment Clause.\12\ The Court rejected this challenge.
\9\ 530 U.S. 793, 120 S.Ct. 2530 (2000).
\10\ This position is clearly enunciated by the plurality opinion
of Justices Thomas, Rhenquist, Scalia and Kennedy and is at the core of
the concurrence by Justices O'Connor and Breyer.
\11\ Chapter 2 of the Education Consolidation and Improvement Act
of 1981, Pub. L. 97-35, 95 Stat. 469, as amended, 20 U.S.C. Sec. 7301-
\12\ Many public interest organizations, including the UOJCA, filed
friend of the court briefs in the Helms case. Not surprisingly, those
who question the neutrality principle today in the context of
charitable choice also questioned it there. It is worth noting that the
Solicitor General, on behalf of Secretary of Education Richard Riley,
argued in support of the program's constitutionality. See, http://
Justices Thomas, Rhenquist, Kennedy and Scalia rejected the
challenge on the basis of a neutralitycentered understanding of the
Establishment Clause without any qualifications.
For these justices, so long as secular government aid is provided
to religious institutions on the basis of religion-neutral criteria it
does not violate the Establishment Clause, and the constitutionality of
currently enacted and pending charitable choice laws is unquestionable.
Justice O'Connor, joined by Justice Breyer, also invoked the
principle of neutrality, but with qualifications.\13\ Inasmuch as this
concurrence was essential to the Court's holding, it can be said that
it is the O'Connor opinion that is controlling. Working with the
framework she developed previously in Agostini v. Felton,\14\ Justice
O'Connor determined that the program at issue did not violate the
Establishment Clause because it furthered a secular purpose, did not
have the primary effect of advancing religion,\15\ and did not raise
the likelihood that an ``objective observer'' \6\ would believe the
program was a governmental endorsement of a particular religion.
\13\ Justice O'Connor was not prepared to accept what she viewed as
the plurality's ``treatment of neutrality [as a] factor of singular
importance'' above other factors developed in the Agostini case. 120 S.
Ct. at 2556.
\14\ 521 U.S. 203 (1997), upholding a government funded program for
secular special education teachers to teach in parochial schools.
Writing for the Court's majority in Agostini, Justice O'Connor revised
the much-maligned three prong test of Lemon v. Kurtzman, 403 U.S. 602
\15\ For Justice O'Connor, the question of whether an aid program
has the primary effect of advancing religion is determined by whether:
a. the aid is actually diverted for religious indoctrination; b. the
eligibility for program participation is made with regard to religion;
and c. the program creates excessive administrative entanglement.
\16\ Justice O'Connor's ``objective observer'' is not the typical
person on the street, but a person ``acquainted with the text,
legislative history, and implementation of the statute.'' Wallace v.
Jaffree, 472 U.S. 38, 76 (1985).
It is important to note that, as part of this analysis, Justice
O'Connor, like the Helms plurality, explicitly rejected the precedents
of Meek v. Pittinger \17\ and Wolman v. Walter,\18\ which had held even
the capability for (as opposed to the actual) diversion of government
aid to religious purposes to be sufficient grounds to render an
otherwise neutral aid program an Establishment Clause violation.\19\
Justice O'Connor embraced this position even after distancing herself
from what she characterized as the ``plurality's conclusion that actual
diversion of government aid to religious indoctrination is consistent
with the Establishment Clause.'' \20\ Finally, Justice O'Connor
stressed that the aid provided under the education grant program was
``secular, neutral and nonideological,'' supplemented funds from
private sources, and was expressly prohibited from being used for
religious instruction purposes.\21\
\17\ 421 U.S. 349 (1975).
\18\ 433 U.S. 229 (1977).
\19\ 20 S. Ct. at 2562.
\20\ 20 S. Ct. at 2558. Justice O'Connor notes that the plurality
bases its reasoning for this point on the Court's precedents that have
allowed government aid to be utilized to access religious instruction,
specifically Witters v. Washington, 474 U.S. 481 (1983), and Zobrest v.
Catalina Foothills Sch. Dist., 509 U.S. 1 (1993). O'Connor correctly
notes that those cases relied heavily on the ``understanding that the
aid was provided directly to the individual student who, in turn, made
the choice of where to put that aid to use,'' 120 S. Ct. at 2558, as
opposed to a per-capita, direct aid program at issue in Helms. With
regard to this issue in this context of direct aid to faith-based
social service agencies, see below at note 27.
\21\ 20 S. Ct. at 2569.
Taking all of these considerations together, it is possible to
construct a regime under which faithbased organizations may receive
government social service grants in a manner consistent with the latest
interpretation of the Establishment Clause.\22\ This regime is
evidenced in the previously enacted charitable choice laws and in your
bill, 5.304. The eligibility criteria for receiving a grant are
religion neutral.\23\ The grant program serves the secular purpose of
providing social welfare services to needy individuals. The grant funds
are expressly prohibited from being ``expended for sectarian worship,
instruction or proselytization.'' \24\ And Justice O'Connor's
sophisticated ``objective observer'' would not believe that government
support for the faith-based provider under this legislation constituted
the endorsement of the particular religion.\25\ Moreover, the bill's
accounting and auditing requirements \26\ are a safeguard against the
diversion of funds for religious purposes, as well as an appropriate
means of ensuring that public funds are expended for their specifically
intended programmatic purposes.\27\
\22\ Of course, Mitchell v. Helms and the long line of school/
religion cases that came before it pose Establishment Clause questions
squarely in the area of K-12 education, where the Court has been most
sensitive to Establishment Clause concerns. It is quite plausible that
an assessment of the constitutionality of charitable choice programs
would employ more relaxed criteria than those discussed in the Helms
\23\ S.304, Sec. 701 (a) provides that ``the government shall
consider, on the same basis as other nongovernmental organizations,
religious organizations to provide assistance. . .''
\24\ S.304, Sec. 701(h).
\25\ Bipartisan legislation pending in the House of Representatives
addresses this point even more explicitly by stating that the receipt
of funds by a religious organization ``is not and should not be
perceived as an endorsement by the government of religion.'' H.R.7,
\26\ S.304, Sec. 701(f).
\27\ These last two provisions lessen the need for the aid to flow
on the basis of private and independent choices discussed above, note
20. At the same time, it is certainly the case that any ``voucherized''
mechanisms, as opposed to direct grants, for charitable choice will
satisfy the conditions set out by Justice O'Connor in this regard. From
a policy standpoint, however, a voucher-based approach has two
principle shortcomings; it reinforces the non-neutral treatment of
religious entities and it biases against newer participants and
programs who cannot overcome start-up costs while waiting for vouchers
to be presented by beneficiaries.
FREE EXERCISE OF RELIGION CONSIDERATIONS; FOR PROGRAM BENEFICIARIES
There are other safeguards in charitable choice laws that are not
necessitated by the
Establishment Clause, but by the Constitution's Free Exercise
Clause--a feature of the First Amendment that ought to carry equal
weight to the Establishment Clause but, for a variety of reasons, often
seems forgotten--even by the Supreme Court.\28\
\28\Members of this Committee are well aware of the Court's recent
apathy toward the Free Exercise Clause beginning with Employment
Division v. Smith, 474 U.S. 872 (1990), resulting in the passage of the
Religious Freedom Restoration Act, 42 U.S.C. Sec. 2000bb. ``RFRA'' was
struck down by the Court in City of Boerne v. Flores, 117 S.Ct. 2157
(1997) to which congress, led by members of this Committee, responded
last year with the Religious Land Use and Institutionalized Persons
Act, 42 U.S.C. Sec. 2000cc.
As members of a minority religion in this country, we in the
Orthodox Jewish community are terribly sensitive to the issue of
religious coercion in general, and certainly in situations where
government support, albeit indirect, is involved. We believe government
should bolster the ``first freedom'' of religious liberty at every
opportunity. Thus, we would insist that there be adequate safeguards to
prevent any eligible beneficiary from being religiously coerced by a
government-supported service provider. We believe that a requirement
that each beneficiary be entitled to a readily accessible alternative
service program and that each beneficiary be put on specific notice
that they are entitled to such an alternative is the proper method for
dealing with this issue. Moreover, as a condition for receiving federal
assistance, faith providers must agree not to refuse to serve an
eligible beneficiary on the basis of their religion or their refusal to
hold a particular religious belief. These safeguards are contained in
\29\ Sec. 701 (d) and Sec. 701(e), respectively. Some have
suggested that allowing a beneficiary to opt out of the faith-related
portions of the faith-based agency's program while being entitled to
partake of the secular portions of the program is an appropriate
safeguard. This too is contained in S.304, Sec. 701(e)(1): ``A
religious organization providing assistance. . .shall not discriminate.
. .on the basis of. . .a refusal to actively participate in a religious
practice.'' We believe this is insufficient. It would force
beneficiaries to constantly assert their objection in contexts where
that might be difficult, if not awkward. The best safeguard, in the
view of the UOJCA, for the religious ``objector'' is to facilitate his
or her participation in an acceptable alternative program.
FREE EXERCISE OF RELIGION CONSIDERATIONS; FOR FAITH-BASED PROVIDERS
There are also critical religious liberty considerations with
regard to the protections afforded to religious organizations by the
Constitution and federal civil rights laws. As you are already aware,
the one that has received considerable attention from critics of the
faith-based initiative is the thirty-seven year old federal law \30\
permitting religious organizations to hire employees on the basis of
religion.\31\ A few basic points must be made with regard to this
argument which, I believe, will set the record straight and refute the
accusation that suggests that all American houses of worship are, in
fact, houses of bigotry.
\30\ A recent survey conducted by the Pew Forum on Religion and
Public Life noted broad support for the faith-based initiative overall,
but concerns over permitting religious social service providers to
receive government funds while continuing to possess the right to hire
on the basis of religion. At no point, however, was any information
offered to the respondents apprising them of the limited nature of the
exemption, see below, or its creation as part of the Civil Rights Act
of 1964. See, http://pewforum.org/events/0410/report/topline.php3.
\31\ Section 702 of the Civil Rights Act of 1964, as amended 42
U.S.C. Sec. 2000e-1, provides in relevant part: ``This subchapter shall
not apply. . .to a religious corporation, association, educational
institution or society with respect to the employment of individuals of
a particular religion to perform work connected with the carrying on by
such corporation, association, educational institution, or society of
As the members of this Committee are well aware, the Civil Rights
Act of 1964 is the great bulwark against objectionable acts of
discrimination and Title VII of that Act bans discrimination in
employment on the basis of race, ethnicity, gender, religion and
national origin. It was the very same architects of modern civil rights
law who created a narrow exemption in the 1964 Act permitting churches,
synagogues and all other religious organizations to make hiring
decisions on the basis of religion.\32\
\32\ Religious institutions remain bound by prohibitions against
employment discrimination on the basis of race, ethnicity and the like.
It would be absurd, to say the least, to suggest that a Catholic
parish could be subjected to a federal lawsuit if it refused to hire a
Jew for its pulpit. In 1972, still the heyday of civil rights reforms,
Congress expanded the statutory exemption to apply to virtually all
employees of religious institutions, whether they serve in clergy
positions or not. The Free Exercise Clause demands this broad
protection, and in 1987, the Supreme Court unanimously upheld the Title
VII exemption as constitutional.\33\
\33\ Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987). The
majority opinion assumed only ``for the sake of argument'' that the
Sec. 702 exemption as enacted in 1964, prior to its 1972 expansion by
congress, was sufficient to meet the requirements of the Free Exercise
Clause, 483 U.S. at 336, while Justice Brennan, joined by Justice
Marshall, suggested that the broader exemption was also supported by
Free Exercise requirements; he noted that `` `[r]eligion included
important communal events for most believers. They exercise their
religion through religious organizations, and these organizations must
be protected by the [Free Exercise] [C]lause.' '' 483 U.S. at 341,
quoting Laycock, Towards a General Theory of the Religion Clauses, 81
Colum.L. Rev. 1373, 1389 (1981).
This well-established law has now become a central feature of the
opposition to charitable choice; so much so that the interest groups
who have joined together to fight charitable choice over the last few
years have called themselves the ``Coalition Against Religious
Discrimination'' and decry the fact that this initiative will ``turn
back the clock on civil rights.''
In fact, what is happening here is savvy political gamesmanship,
not substantive argument. These very same opponents have lost their
argument for the strictest view of church-state separation in the
courts and in Congress. After all, the charitable choice laws that I
described earlier received bipartisan support in the face of their
protestations. Thus, they have cast about for a more potent political
argument, and have found it in invoking the evils of discrimination--
something all Americans rightly oppose.
But the assumption underlying the opponents' assertion is that
faith-based hiring by institutions of faith is equal in nature to every
other despicable act of discrimination in all other contexts. This is
simply not true. In fact, in the incredibly diverse and fluid society
that is America 2001, religious groups are increasingly open and
reflective of that diversity. There are now black Jews, Asian
Evangelicals and white Muslims and these trends will only increase.
This is because, at their core, religious groups are supposed to care
not about where you come from or what you look like, only what you
believe.\34\ Religious institutions are thus compelled to ignore a
person's heredity and champion his or her more transcendent
\34\ Secular groups that are ideologically driven--from liberal to
conservative--function in a similar manner and enjoy an analogous
constitutional protection for their hiring practices under the freedom
of expressive association, also recognized under the First Amendment.
Thus, even though Planned Parenthood may receive government grants, it
cannot be compelled to hire pro-lifers.
\35\ Of course, one cannot overlook the fringe groups such as the
Church of the Creator and Aryan Church that propound a ``theology'' of
racial and ethnic hatred and hold themselves out as ``religions.'' They
are despicable and give mainstream religions a bad name. But we don't
generally make our public policy decisions on the basis of the radical
extremist; we afford everyone the freedom of speech even though it will
benefit the neo-Nazi or the flag-burner. This approach should not be
Those who appreciate the role of religious institutions in America
should resist the easy equation the opponents assert, for its
implications are dangerous indeed. After all, a defining element of the
civil rights era was a commitment to root out invidious forms of
discrimination not only in public institutions, but in the private
sector--at lunch counters, in motel rooms and on bus lines. If faith
institutions' hiring practices are so terribly wrong, are we not
obligated to oppose them however we can irrespective of whether they
receive federal funds? If, as the critics suggest, your church and my
synagogue are such bigoted institutions, why do we offer them the
benefit of tax-exempt status? Why do we afford their supporters tax
deductions for their contributions? Why do we hallow their role in
society as we do?
There are other arguments to be made against the faith-based
initiative over which we may reasonably differ. Some people may hold
fast to a vision of stricter separation of church and state--even in
the face of Supreme Court decisions to the contrary, while others may
believe that the best way to serve Americans in need is solely through
government agencies. We ought to vigorously debate these points as we
have at this hearing. But slandering our sacred institutions with the
charge of bigotry is unacceptable and must be ruled out of bounds.
A second rejoinder, with regard to the specific goals of this
policy initiative, is important as well. If the goal of charitable
choice is to leverage the unique capacities of faith-based providers
with government grants, to force them to dilute their religious
character is the same as saying you don't believe in the whole
enterprise.\36\ The critics, obviously do not, but we believe that,
carefully considered and properly structured, expanding the partnership
between government and faith-based social service agencies is a
critical component of a strategy to bring new solutions to America's
social welfare challenges.
\36\ Again in Vice President Gore's words, ``the religious
character [of these organizations] that is so often the key to their
effectiveness.'' Appendix 2. See also, Jeffrey Rosen, Religious Rights,
The New Republic, February 26, 2001.
At the end of the day, the debates surrounding the faith-based
initiative come down to questions of cynicism versus hope. The cynics
see a slippery slope down every path; some see deeply religious people
as untrustworthy--incapable of following regulations and perpetually
plotting to proselytize their neighbor, while others see every civil
servant as a regulator lacking restraint just waiting to emasculate
America's religious institutions.
But if we set our minds--and our hearts--to it, we can find a way
to be more hopeful. After all, what this is really about is bringing
some new hope and some real help to people in need through a new
Senator Schumer. Thank you.
Our next witness is Mr. Doug Laycock. Mr. Laycock is the
Associate Dean for Research at the University of Texas Law
School. We are hearing from him in his capacity as a legal
STATEMENT OF DOUGLAS LAYCOCK, ALICE MCKEAN YOUNG REGENTS CHAIR
IN LAW, UNIVERSITY OF TEXAS, AUSTIN, TEXAS
Mr. Laycock. Thank you, Senator Schumer, and I should also
say that in my capacity as a supporter of separation of church
and state, and given the lineup today maybe it is relevant to
say the last thing I did on the separation issue was represent
the parents who successfully objected to opening Texas football
games with prayers. That was a radically separationst position
in Texas. It interfered with two religions, as best I could
As Senator Leahy and Senator Hatch said at the beginning of
this hearing, billions of dollars of government money passes
through religious charities and religious social services
organizations every year. So what is the problem? What is new
about this bill?
One thing I would say is billions of dollars every year and
2 cases in the Supreme Court in 100 years about social
services. We have had a 150-year battle over funding of
religious schools. We have had no remotely comparable battle
legally or politically over funding of religious social
services, until the debate over this legislation.
I would not assume that the Supreme Court's school cases
apply to social services. They may, but historically there have
simply been two lines of cases and the church social services
funding has been upheld. So this is not a funding bill; this is
a religious liberties bill.
Charitable choice contains three principles that protect
the religious liberty of providers and of beneficiaries that
are not in the current law that is sending that $3 billion a
year. One is non-discrimination among providers. Today, the
executive is free to contract with religious providers, free to
boycott religious providers and contract only with the secular,
free to contract only with Catholic charities and not with
Jewish charities. There is no statutory non-discrimination, and
the constitutional non-discrimination rule is little known,
little developed and not enforced.
Charitable choice bills provide no discrimination against
the religious providers, and I think it would be better frankly
if they made it both ways--no discrimination in favor of
religious providers or among religious providers either.
Second, charitable choice deregulates the religious
providers. It makes explicit in this statute for the first time
that you don't have to secularize your operations in order to
be eligible for a Government contract. If you deliver full
secular value for the Government's money, then you can do
whatever religious operation on top of that you want to do.
That is not in the current law either, and that does indeed
protect the religious liberty of the providers.
Hiring is an essential part of that, and let me just say it
is not part of our law and it has not been part of our law that
federally assisted religious organizations cannot discriminate
on the basis of religion. Federally assisted organizations
can't discriminate on the basis of race or sex or handicap, but
there is no such law about religion. A reminder that was in the
news is when Yale University got sued last year for
discriminating against Orthodox Jews in its dormitories, there
was no Federal spending statute involved in that. They had to
rely on State law.
Third, it protects beneficiaries. There is under current
law no right to have an alternate provider. If Catholic
Charities has the contract in your town, you go to Catholic
Charities. You are not protected in your right to go anywhere
else. Charitable choice introduces that for the first time.
Now, let me emphasize, because I don't have time to develop
it, in my written testimony I say these three protections are
important, but they are very hard to implement. It is hard to
guarantee that there will be two providers side by side,
especially in small towns all across America. It is hard to
control the bureaucrats who award these contracts and make sure
they don't discriminate or don't try to regulate the churches
I wish the Committee and the witnesses were spending more
time on implementation and less time on the underlying
question. I think this is sound in principle. It protects
religious liberty, in principle. It is pro-separation of church
and state, in principle. The difficulty is in the details. How
do you actually implement these three protections in a world
with not nearly enough government money to go around and less
government money in the future than there has ever been in the
[The prepared statement of Mr. Laycock follows:]
STATEMENT OF DOUGLAS LAYCOCK, UNIVERSITY OF TEXAS LAW SCHOOL
Thank you for the opportunity to testify on the legal issues
surrounding charitable choice. This statement is submitted in my
personal capacity as a scholar. I hold the Alice McKean Young Regents
Chair in Law at The University of Texas at Austin, but of course The
University takes no position on any issue before the Committee.
I. Separation of Church and State.
The debate over charitable choice has been cast as a debate over
separation of church and state. I think the usual formulation of the
charitable choice debate is misleading, for reasons I will explain. But
let me begin by making clear my own starting premises.
I support the separation of church and state. The religious choices
and commitments of the American people should be as separated as
possible from the influence of government. The religious choices and
commitments of believers and of non-believers should be equally
protected, and equally insulated from government influence.
Church-state questions arise in three great clusters of issues:
government regulation, government speech, and government money. With
respect to government regulation, I have often testified to this
committee about the need to separate religious practices from
government regulation. With respect to government speech, most recently
I represented the parents who objected to Texas high schools opening
their football games with prayer. Santa Fe Independent School District
v. Doe, 530 U.S. 290 (2000). In Texas, that is a more radically
separationist position than anyone outside Texas can fully appreciate.
With respect to government money, I long accepted the widespread
fallacy that the ultimate goal is to separate religion from government
money. But I have gradually come to realize that that is a means, not
an end. The goal is to separate private religious choices and
commitments from government influence, including the powerfully
distorting influence that government can buy with its money. Government
should minimize its influence over the religious choices and
commitments of both the providers and the beneficiaries of government-
funded social services. That goal is difficult to achieve, but
charitable choice is a step in the right direction.
Think of government setting out to buy secular goods and services
in the marketplace. It wants wine for the State Department, or sausage
for the Army. Or it wants medical care for its citizens, or child care,
or drug treatment. Government spends a lot of money on these things.
When it purchases secular goods or services, government has three
choices with respect to religion:
1. Government can prefer religious providers.
2. Government can prefer secular providers.
3. Government can buy without regard to religion (e.g., from
all qualified providers, or from the low bidder, or on some
other neutral criterion).
Which rule better separates the religious choices and commitments
of the American people from the influence of government? Buying only
from the religious, or only from the secular, creates powerful
incentives to change religious behavior. Rule 1 says, ``Get religion
and we'll do business with you.'' Rule 2 says, ``Secularize yourself,
and we'll do business with you.'' Some potential providers cannot or
will not change; under the first two rules, they will be penalized for
their religious or secular commitments. Other potential providers are
more pliable; government will coerce them into changing their religious
It is actually Rule 3, buying without regard to religion, that
minimizes government's influence on religious choices and commitments.
If government buys without regard to religion, no one has to change
their religious behavior to do business with the government. That is
the key concept of charitable choice. It is a good concept. Despite the
conventional wisdom of many separationists, funding everyone equally
separates private religious choice from government influence more
effectively than funding only secular providers.
So what does the Establishment Clause mean under this view? It
means a lot. Government cannot sponsor, endorse, or pay for religious
beliefs or religious functions. It can buy from religious providers,
but it can buy only secular goods or services. The essential safeguards
of the establishment clause are that government must get full secular
value for its money, and that no one may be coerced, steered, or
encouraged towards or away from a religious practice or a religious
provider of services. If a religious provider wants to add religious
services in conjunction with the government-funded secular services,
the religious provider must pay for the religious services itself, and
no beneficiary of the government-funded program can be required to
Charitable choice would be an important step in the right
direction. Even so, there are problems of implementation, and many ways
to get this wrong. And there are many misconceptions in the current
II. What Is Old.
Throughout most of our nation's history, government has paid
religious organizations to deliver social services. The founders did it
without apparent controversy; even Thomas Jefferson sent missionaries
to run schools for Indians. Current programs, not under the rubric of
charitable choice, spend vast sums through religious charities.
You will likely hear that charitable choice flatly violates the
original understanding of the Establishment Clause. That claim is not
true; it conflates two issues that the founders treated separately. I
have studied that history at length, and I have written two
separationist articles, refuting overbroad historical claims of those
who want more government support for religion. Douglas Laycock,
``Nonpreferential'' Aid to Religion: A False Claim About Original
Intent, 27 Wm. & Mary L. Rev. 875 (1986); Douglas Laycock,
``Noncoercive'' Support for Religion: Another False Claim About the
Establishment Clause, 26 Val. U.L. Rev. 37 (1992). There is simply no
doubt that the founders squarely rejected financial support for
churches, even if that support were even-handed and nonpreferential.
But the issue in the 1780s was the funding of the religious
functions of churches-- the salaries of clergy and the building and
maintenance of places of worship. Funding education or social services
was simply not an issue in their time. The modern question is whether
government can pay religious and secular providers even-handedly to
deliver secular services. The founders had nothing to say about that
The modern issue first arose in the nineteenth-century battle over
schools. Protestants controlled the public schools, conducted
Protestant religious exercises and taught Christianity in ways
acceptable to Protestants. Catholics objected and sought funding for
their own schools. Protestants were more numerous, and they won the
fight. They said that their own religious exercises in the public
schools were nonsectarian, and therefore constitutionally
unobjectionable, but that Catholic schools were sectarian, and that
funding those schools even for math and reading would be like funding
the church itself. The Supreme Court has rejected the first half of
this remarkable theory; it now prohibits religious exercises in the
public schools. The second half--that funding religious schools is like
funding churches--still affects Supreme Court doctrine in the school
cases, but to an ever declining extent. This doctrine is not traceable
to the founders or to the First Amendment. It originates in the
Protestant position in the nineteenth-century school wars, and the
nineteenth-century Protestants conspicuously failed in their effort to
write this doctrine explicitly into the Constitution.
The Protestant hostility to funding religious schools never
extended to funding religious social services--probably for the simple
reason that many Protestants provided social services but until
recently, few Protestants ran schools. Whatever the reasons, funding of
religious social services has been remarkably uncontroversial. We have
had more than a century of bitter political and legal battles over
funding religious schools, but until now, almost no conflict over
funding religious social services.
I know of only two Supreme Court cases. Bradfield v. Roberts, 175
U.S. 291 (1899), upheld a contract in which Congress paid for a new
building at a religious hospital and paid the hospital to care for
indigent patients. Bowen v. Kendrick, 487 U.S. 589 (1988), upheld the
Adolescent Family Life Act, under which the government contracted with
many providers, including religious ones, to provide counseling and
services related to adolescent sexuality and pregnancy. The Court noted
``the long history of cooperation and interdependency between
governments and charitable or religious organizations.'' Id. at 609.
So we have a long and largely uncontroversial history of government
funding social services through religious providers. That is what
charitable choice does, yet there is suddenly a huge controversy. Why?
What is new about charitable choice? Three things so far as I can tell:
protection against discrimination, deregulation of religious providers,
and protection of program beneficiaries.
III. What Is New.
A. ENDING GOVERNMENT DISCRIMINATION.
Under most of our existing and historic programs, contracting with
a religious provider is discretionary with the executive. Some
bureaucrats prefer to deal with religious organizations; some prefer to
avoid them. Some bureaucrats may prefer certain religions and avoid
others. There has generally been no statutory obligation of equal
treatment. Any constitutional obligation of equal treatment is little
known and undeveloped. Bureaucrats have felt free to discriminate, and
they have done so. Opinion polls show that much of the public wants to
discriminate openly and flagrantly, funding services from churches they
admire, and refusing to fund services from churches they do not admire.
Charitable choice prohibits discrimination against religious
providers. This is a step forward for religious liberty. It tells the
executive that it cannot use its control of government spending to
influence or penalize religious choices and commitments; it must
instead try to minimize its influence on those choices and commitments.
It would be even better to prohibit all discrimination on the basis of
religion--to equally prohibit discrimination against secular providers,
against religious providers, or among religious providers of different
B. DEREGULATING PROVIDERS.
Charitable choice proposals deregulate the religious providers.
They state that religious providers need not secularize themselves to
be eligible. These provisions protect religious liberty and enhance
separation of church and state.
It has been common for religious providers to create a separate
not-for-profit corporation to contract with the government. I am not an
expert on the details of social service programs; I don't know how
often such a requirement appears in statutes, how often it is imposed
by the executive, or how often it is just the common practice and only
assumed to be a requirement. But this tradition is a centerpiece of the
opposition to charitable choice. Opponents say government can't pay the
church to feed the homeless, but that the church can create a wholly-
owned subsidiary or affiliate corporation, and government can pay this
church affiliate to feed the homeless.
This is a formalistic distinction that does nothing to protect
religious liberty. Corporate affiliates exist in filing cabinets and
the minds of lawyers; they may be wholly intertwined operationally.
Either the church or its affiliate may respect or abuse the religious
liberty of the clients it serves under the government-funded program. I
am concerned about the actual operation of the program, not about how
many corporations have been formed.
There is some support in the cases for this notion that two
corporations matter--but not much. Bradfield v. Roberts, the 1899
opinion upholding government money to a religious hospital, is written
on the ground that the hospital is not the church, but merely a
corporation controlled by the church. This has always struck me as
classic nineteenth-century formalism, but at any rate, the opinion does
not create a requirement of separate incorporation. It simply decides
the case before it, in which separate incorporation was one of the
In the cases on religious schools, the Court has created a category
of institutions it calls ``pervasively sectarian.'' Even at the height
of restrictions on aid to religious schools, some forms of aid could go
to pervasively sectarian institutions, but aid to those institutions
was more tightly restricted than aid to other religious institutions
that were not pervasively sectarian. This doctrine is said to support
the requirement of two corporations; opponents of charitable choice
presume that the church itself is pervasively sectarian, but that its
affiliate may not be. The presumption is fallacious; a church might
operationally separate its delivery of social services from its purely
religious functions, whether or not it separately incorporates them,
and the separately incorporated affiliate might combine its religious
and secular work.
With respect to social services, the Court reserved the question of
pervasively sectarian providers in Bowen v. Kendrick. See 487 U.S. at
611, following cases which it characterized as having ``left open the
consequences which would ensue if they allowed federal aid to go to
institutions that were in fact pervasively sectarian.'' More recently,
four justices in a school case repudiated the whole concept of
pervasively sectarian, correctly noting that the Court had steadily
reduced its reliance on the concept, that the concept had originated as
a code word for Catholic, and that it had grown directly out of
virulent nineteenth-century anti-Catholicism. Mitchell v. Helms, 530
U.S. 793, 828-29 (2000) (plurality opinion). Two more Justices,
concurring, did not join in the concept's overt repudiation, but
neither did they rely on it. Id. at 836-67 (O'Connor, J., concurring).
It seems quite unlikely that the distinction between pervasively
sectarian institutions and other religious institutions will be revived
and actually extended to control cases about social services.
Charitable choice legislation should not codify this discredited
Whether there is one corporation or two, the real question is
whether the religious provider must secularize the part of its
operation that delivers government-funded services. Certainly it must
fund any religious elements itself; government can pay only for secular
services. But must it abandon religious elements altogether? Charitable
choice proposals say no, and that is the right answer.
To say that a religious provider must conceal or suppress its
religious identity, refrain from religious speech, remove religious
symbols from its work area, or hire people who are not committed to its
mission, is an indirect way of saying that government can contract only
with secular providers. Attaching such conditions to a government
contract uses the government's power of the purse to coerce people to
abandon religious practices. Such coercion is just as indefensible as
if the government coerced people to participate in religious practices.
Charitable choice provisions that protect the religious liberty of
religious providers are pro-separation; they separate the religious
choices and commitments of the American people from government
The ultimate irony in this debate are the people who oppose
charitable choice on the ground that if religious organizations take
government money, they will eventually be regulated and secularized--
and then also oppose charitable choice on the ground that it protects
religious providers against secularizing regulation. They cannot have
it both ways. The status quo, in which bureaucrats have discretion to
contract with religious providers or boycott them, on whatever
conditions the executive chooses to impose, is far more dangerous to
religious organizations than a charitable choice bill with clear
protections against discrimination and against secularization.
C. PROTECTING BENEFICIARIES.
The third change in charitable choice is that it provides explicit
protection for the religious liberty of the beneficiaries of government
programs. They are entitled by statute to a secular provider on demand.
If they choose to accept a religious provider, they may be exposed to
religious exercises, but they cannot be required to actively
These are important protections, and I would not support any bill
that omitted them. They do not exist in present law. When a bureaucrat
chooses to contract with Catholic Charities, no current law requires
that he have a secular provider available for all those who request it.
And any constitutional protections for program beneficiaries are, like
the protections for providers, little known and undeveloped.
Charitable choice is in principle a great improvement for religious
liberty. But the difficulties of implementation are serious. Those
difficulties are not new; they exist under the status quo, where they
have received no serious attention from either side. These difficulties
are more visible under charitable choice, because contracts with
religious providers are more visible, and both sides have begun
thinking about the difficulties. I doubt that either side has thought
I am no expert on government grants and contracts or on the
delivery of social services. I cannot offer full solutions to these
problems, but I can flag some of the more obvious risks.
A. ENDING GOVERNMENT DISCRIMINATION.
Charitable choice says government cannot discriminate in the award
of grants and contracts. How do you enforce that? Legislatures have
found it necessary to enact procurement laws with so many protections
against corruption that the process of buying anything for the
government has come to be a standard source of jokes. To the usual
risks of government contracting, add the religious biases of the
general public and of the officers awarding the grants and contracts.
Some of them are deeply religious; some of them are strongly
secularist; nearly all of them like some religions more than others,
and have some religions they really mistrust. Choosing someone to
deliver social services is more complex than picking the low bidder on
a pencil contract. How do you keep thousands of government employees,
federal, state, and local, from discriminating on religious grounds
when they award grants and contracts?
I don't know the answer to that question. We are learning that just
telling them not to discriminate doesn't work. It appears that open and
obvious religious discrimination continued under the limited charitable
choice provisions enacted in 1996. Amy Sherman's study, reported at a
House hearing in April, found that some states are contracting
frequently with religious providers, and that others are not doing so
I don't know how you police bureaucrats, but I think you have to
assume that many of them will continue to engage in religious
discrimination despite the enactment of charitable choice. Some will
refuse to deal with religious providers; some will refuse to deal with
non-Christian religions, or non-Western religions; some will prefer
religious providers and discriminate against secular providers. You at
least need a reporting requirement, so that implementation can be
monitored, and you may need to require explanations of any obvious
over-or-under representation of religious providers. As we have learned
from the civil rights experience, resolving claims of subtle
discrimination is a difficult task.
Decentralization reduces the risk of discrimination. For those
services that can feasibly be delivered through vouchers, vouchers
privatize the choice of providers and thus deprive government employees
of the opportunity to discriminate. Decentralized contract awards, with
many government employees choosing providers, spreads the risk of
discrimination better than centralized contract awards with one or a
few employees choosing providers.
B. DEREGULATING PROVIDERS.
Charitable choice proposals have made the most conceptual progress
with respect to deregulating providers. Existing legislation and other
pending proposals have clear and specific provisions to protect the
religious liberty of providers who accept government grants or
These protections have to be in the statute, because no one can
count on the courts to provide them constitutionally. The federal
courts systematically underprotect the free exercise of religion, and
the Supreme Court believes that when the government awards a contract,
it can define the job very precisely and attach all sorts of conditions
to ensure that the contractor adheres to the job specifications. Rust
v. Sullivan, 500 U.S. 173 (1991). When Congress means to deregulate, it
has to say so.
It would be better to vote down charitable choice than to remove
the deregulation of religious providers. From a religious liberty
perspective, the worst outcome would be to codify a rule that
government offers money to religious providers but only on condition
that they agree to secularize themselves. An unambiguous and highly
visible offer of government payments to change one's religious practice
would be worse than the muddled, regulated, and discriminatory status
These protections will be somewhat easier to enforce than the basic
rule of no discrimination in the award of contracts, because victims of
violations will know immediately when government asks them to change
their hiring rules or downplay their religious message. Still, you have
to assume that there will be political and bureaucratic resistance to
the deregulation of religious providers, and that continued vigilance
will be necessary to make it work.
C. PROTECTING BENEFICIARIES.
Most charitable choice proposals provide equally clear protections
for program beneficiaries. Beneficiaries should be entitled to a
secular provider on demand, to decline to actively participate in
religious exercises, and to clear notice of these rights. But these
rights may be very difficult to implement.
Social service programs have never been funded sufficiently to meet
the need, and recent legislation ensures that these programs will be
even more severely starved for funds in the future. We have not
succeeded in guaranteeing even one provider for all the people who need
these services. How can we plausibly guarantee a choice of providers?
The problem is hard enough in big cities; it is far worse in small
towns and rural areas. It is hard to envision religious and secular
providers operating side by side with government funds in New York
City. It is impossible to imagine in Waxahachie, Texas. Nor do I think
it is just a matter of sending one or a few dissenters to a private
practitioner. Private practitioners tend not to locate in low-income
areas, and anyway, there may be many beneficiaries who don't want a
religious provider. The beneficiaries are vulnerable and dependent and
may be afraid to assert their rights, but government and government-
funded providers should not take advantage of that. The goal should be
to give each beneficiary his free choice of a religious or secular
provider, and at the very least, not to push a religious provider on
anyone. I suspect that is a much bigger challenge than the sponsors of
charitable choice have talked about in public.
Again, these problems are probably no worse than under the status
quo; they are just more visible. When government contracts with
religious providers today, I am not aware that it makes any effort to
provide secular alternatives. Once gain, charitable choice is an
improvement in concept. But implementation is likely to be difficult.
D. PROGRAM EFFICACY.
A frequent policy question about charitable choice is whether
religious providers will help more beneficiaries than secular
providers. I don't know; social services are not my field. But my work
on religious liberty and the associated experience of religious
diversity makes me nearly certain that that is the wrong question.
The right question is whether religious providers will help
different beneficiaries than secular providers. If some people in need
respond to religious messages but not secular ones, and other people in
need respond to secular messages but not religious ones, then the only
way to help both groups is to make available both religious and secular
Whether there are significant numbers of people in both groups is
an empirical question, but the answer will surely be yes. There are
many Americans for whom God is the only source of ultimate meaning and
for whom religious messages are more motivating than any secular
message ever could be. There are many others for whom stories of God
are a giant fraud or a giant game of pretend. And there are yet many
others in between, whose views of God are not strong enough to motivate
either reform or resistance. Given the enormous diversity of religious
views in the country, it seems almost inevitable that there will be a
similar diversity of responses to religious and secular providers of
social services, and that each type of provider may reach some
beneficiaries that the other type of provider could not.
In any event, the question to ask is not whether religious
providers will help more people than secular providers, or vice versa.
The question to ask is whether offering people a choice of religious or
secular providers will help more people than exclusive reliance on one
or the other.
Religion should not be forced on any American, but neither should
any American be excluded from the operation of social welfare programs
because of his religion, or lack thereof. The Religion Clauses are
designed to let people of fundamentally different views about religion
live together in peace, in mutual liberty, and in equality. Religious
choices and commitments are left to the private sector, and to that
end, government should neither prefer the religious nor prefer the
secular. In its own operations, it must necessarily be secular. But
when it chooses to contract out to the private sector, it should
contract without regard to religion. This principle minimizes
government influence on religion and thus maximizes religious liberty,
and this is the true meaning and purpose of separation of church and
Minimizing government influence is easier said than done.
Charitable choice is admirable in its commitments to nondiscrimination
on the basis of religion, to deregulating religious providers, and to
protecting program beneficiaries. But each of these commitments will be
difficult to implement; each of them requires careful attention from
the Congress and from those expert in the delivery of social services.
Senator Schumer. Thank you, Mr. Laycock. You are not from
New York, but you spoke almost as fast as Mr. Diament.
Our final witness is Mr. Richard Foltin, the Executive
Director and Counsel in the American Jewish Committee's Office
of Government and International Affairs.
STATEMENT OF RICHARD T. FOLTIN, LEGISLATIVE DIRECTOR AND
COUNSEL, AMERICAN JEWISH COMMITTEE, WASHINGTON, D.C.
Mr. Foltin. Thank you. I am an expatriate New Yorker and I
will also try to speak quickly.
In the view of the American Jewish Committee, the
charitable choice approach to Government funding of social
services is an unconstitutional breach of the principle of
separation of church and state and just plain bad public
policy. It eliminates longstanding and important church-state
and anti-discrimination safeguards that have historically been
in place when Government dollars flow to religiously affiliated
Perhaps as crucially, there is a conceptual paradox at the
heart of charitable choice. It is an approach that seeks to
allow Government to utilize the spiritual ministry of churches,
synagogues and other pervasively religious institutions as a
tool in the provision of social services, while at the same
time assuring that the programs are administered in a fashion
that protects beneficiaries of these services from religious
coercion and protects religious institutions from undue
interference by the state. This is an approach to social
services provision that is untenable because of the practical,
to say nothing of the constitutional problems posed by any
effort to reconcile these inconsistent goals.
Given all these problems that charitable choice presents,
the irony is that, in light of the longstanding partnership
between Government and religiously affiliated organizations, it
is an approach that is simply unnecessary.
Our concerns about charitable choice do not reflect any
lack of high regard for the important work that religious
institutions do in providing social services, nor an effort to
erect an impassable barrier to cooperation between those
institutions and the Government in the provision of services.
In fact, religiously affiliated organizations have received
Government funds to provide services under the standards and
practices that both incorporate proper anti-discrimination and
church-state safeguards, and preserve the religious identities
of the providers.
In addition, there are non-financial ways in which the
Government can cooperate with any religious organization, as
set forth in the document ``In Good Faith: A Dialogue on
Government Funding of Faith-Based Social Services,'' in which
AJC participated in preparation with supporters of charitable
choice and which I ask be made part of the record.
Senator Schumer. Without objection.
Mr. Foltin. When it comes to the transfer of funds,
however, to pervasively religious organizations, first, I want
to note that the reports of the demise of the pervasively
religious organization test are greatly overstated, to
paraphrase Mark Twain.
There is still not only longstanding practice, but judicial
precedent that tells us that, contrary to what charitable
choice does, it is not appropriate to permit houses of worship
and other pervasively religious institutions to receive
taxpayer dollars for provision of social services.
The Supreme Court has repeatedly affirmed that such funding
amounts to an unconstitutional advancing of religion because of
the substantial risk that Government funding, even if it is
designated for specific secular purposes, may nonetheless
advance the pervasively sectarian institution's religious
mission. Although the great bulk of these cases had to do with
schools, one important case in this area, Bowen v. Kendrick,
explicitly had to do with a social service provider.
Moreover, and while, of course, there is not time to go
into this now, I think the argument that somehow the Mitchell
case has undone this notion of looking to the nature of the
institution receiving the service simply does not hold up to a
fair analysis of the concurring opinion of Justice O'Connor,
taken together with the dissent.
Now, beyond these concerns, charitable choice presents an
additional problem. When institutions with a thoroughly
religious environment provide social services, recipients of
those services may be coerced either explicitly or tacitly to
take part in religious activities as a price of receiving
services. None of the purported safeguards in charitable choice
are adequate to deal with these issues, as is laid out in my
Let me just conclude by turning for a moment to the issue
of discrimination. Charitable choice allows religious providers
to make employment decisions based on religion with respect to
the employees hired to provide taxpayer-funded services.
Religious institutions are appropriately permitted to prefer
co-religionists in hiring decisions under the limited exemption
of Title VII that recognizes the powerful religious liberty
It was important that those provisions were in Title VII,
and we would defend them to any extent they ever were under
attack. But the explicit extension of that exemption to cover
employees providing publicly-funded services as part of a
program premised on substantial expansion of the role of
pervasively religious organizations in social services
provision runs counter to fundamental civil rights principles.
The issue here is not one of bigotry by the religious
institutions, but of the proper role of Government and the
kinds of services that it funds.
Senator Schumer. Thank you, Mr. Foltin.
I want to thank all of the witnesses. I think it was done
in a rather shortened way, abbreviated way, but I think we had
excellent testimony that drew the issues to a head.
I apologize. I have so many questions, and I know other
members do. On this day, as you can see, we are busy. I have an
amendment on the floor that they are holding up debate on the
floor until I get over there. So what we are going to do is two
things; first, put the entire statements in the record. I am
going to ask every one of my colleagues to read them because I
think it draws the issues. We had a direct meeting of the
issues in the testimony here.
Second, we are going to be submitting written questions to
every one of the witnesses which will be made part of the
With that, I thank you for your patience, and look forward
to continuing the dialogue on this issue.
Our hearing is adjourned.
[Whereupon, at 1:03 p.m., the Committee was adjourned.]
[Questions and answers follow:]
QUESTIONS AND ANSWERS
Responses of Richard T. Foltin to questions submitted by Senator Leahy
Question 1: You are familiar with the statement attributed to a
White House aide implying that, under the President's proposals,
government dollars could be used to pay for light bulbs while private
funds pay for Bibles. Do you think it is constitutional for a religious
provider to receive federal dollars for a program in which the federal
funds are not put toward proselytizing, but private funds or volunteer
support are used for activities that are religious in nature?
Answer: As a preliminary matter, it remains constitutionally
problematic for government dollars to flow directly to religious
organizations whose religious mission is inextricably linked with their
operations, i.e., what the Supreme Court has termed ``pervasively
sectarian organizations.'' But, regardless of the nature of the funded
institution (that is, even if the organization is one that is
religiously affiliated but not pervasively religious), it also remains
the case that public funds may not be used to promote religious
doctrines. That prohibition may not be evaded through what amounts to a
bookkeeping trick in which federal funds are used for the secular
aspects of the program, while that same program includes religious
elements, such as proselytization, that are ostensibly supported by
private funds or volunteer activity. Such an evasion would give rise, I
submit, to an ``as applied'' constitutional challenge that the program
was administered in a way that led to violations of the Establishment
Question 2: Proponents of ``charitable choice'' point to the fact
that it has been on the books for five years as evidence that it is
benign and will not lead to excessive litigation. How do you respond?
Answer: The relative lack of controversy since ``charitable
choice'' was first enacted in 1996, as part of the welfare reform law,
tells us nothing about either the benignity or the potential for
litigation of this initiative. By all reports, churches and other
religious organizations have not been racing to enter into contracts
with government, perhaps in part because religious leaders have
recognized the dangers and the potential for litigation posed by
``charitable choice.'' Moreover, the programs supported by the
``charitable choice'' measures enacted since 1996 serve, by definition,
persons who are in extremis and who are, therefore, least likely to
raise problems with undue impositions on their religious principles.
Nevertheless, we have begun to see a number of cases filed in the
courts involving concerns of the type raised in my testimony about
discrimination and government funds being used to support religion-
teaching activities. As the number of ``charitable choice'' contracts
increases--a likely scenario given that the current administration
supports a broad extension of this approach and has a different view
than the previous administration as to what kinds of institutions may
constitutionally receive public funds--we should expect to see a rise
in the number of lawsuits.
Question 3: At the hearing we heard the view that the Supreme Court
has backed away from its holding that government funds should not flow
directly to ``pervasively sectarian organizations,'' and a related
suggestion that we should not expect the Court to trust government
funding of pervasively religious social service providers to be treated
in the same fashion as government funding of religious schools. What do
you think of these characterizations of the current state of the law?
Answer: While it would be foolish to claim that the current
condition of church-state is one of pristine clarity, the reports of
the demise of the ``pervasively sectarian organizations'' standard are
greatly exaggerated. The three dissenters in last year's Supreme Court
decision in Helms v. Mitchell clearly want to adhere to that framework
of analysis, and it is difficult to reconcile the concurrence of
Justices O'Connor and Breyer with the plurality's call for that
approach to be discarded.
The concurrence pointedly distinguishes a situation, such as that
in Helms, involving the loan of federally-funded computers to religious
schools, from situations involving the flow of government funds to such
institutions. As Justice O'Connor noted in her concurring opinion,
``Our concern with direct monetary aid [to religious schools] is based
on more than just [concern about] diversion [of taxfunded aid to
religious use]. In fact, the most important reason for according
special treatment to direct money grants is that this form of aid falls
precariously close to the original object of the Establishment Clause's
prohibition.'' Thus, at least as to religious schools, the notion that
certain religious organizations should not directly receive public
funds has not been overturned. Since Justice O'Connor was dealing in
Helms with aid to religious schools, an area dealt with directly by the
courts in numerous cases, there was no need for her to deal with the
general issue of the ``pervasively sectarian organization'' standard.
But these concerns about funding ``fall[ing] precariously close to the
original object of the Establishment Clause's prohibition'' apply
equally to houses of worship and similar institutions that are, at
least as much as religious schools, paradigmatically ``pervasively
Question 4: It has been suggested that the view that religious
institutions ought not to discriminate on the basis of religion with
respect to persons hired to provide government funded social services
somehow casts aspersions on all hiring decisions made by religious
institutions on the basis of religion--even when with private funds--as
manifestations of ``religious bigotry.'' Is this a fair statement of
how you, as an opponent of ``charitable choice,'' view those hiring
Answer: No. My objection to the fashion in which ``charitable
choice'' allows religious organizations to discriminate on the basis of
religion with respect to persons hired to provide government funded
social services does not reflect a view that religious organizations
manifest ``religious bigotry'' when they invoke the Title VII exemption
that allows religious organizations to prefer members of their own
faith in making hiring decisions.
In his concurring opinion in Corporation of Presiding Bishop v.
Amos, 483 U.S. 327 (1987) (upholding the constitutionality of the Title
VII exemption), Justice Brennan, joined by Justice Marshall, citing an
article by Professor Douglas Laycock said, ``[r]eligious organizations
have an interest in autonomy in ordering their internal affairs, so
that they may be free to: `select their own leaders, define their own
doctrines, resolve their own disputes, and run their own institutions.
Religion includes important communal elements for most believers. They
exercise their religion through religious organizations, and these
organizations must be protected by the [Free Exercise] [C]lause.'''
Justice Brennan went on, ``[A religious] community represents an
ongoing tradition of shared beliefs, an organic entity not reducible to
a mere aggregation of individuals. Determining that certain activities
are in furtherance of an organization's religious mission, and that
only those committed to that mission should conduct them, is thus a
means by which a religious community defines itself. Solicitude for a
church's ability to do so reflects the idea that furtherance of the
autonomy of religious organizations often furthers individual religious
freedom as well.'' Thus, it is a fundamental aspect of the religious
freedom that is protected as our first liberty in the First Amendment
that religious organizations, the vehicle through which religious
communities manifest their religious missions, should be able to demand
that the individuals they hire to work for those organizations
subscribe to the creed and practices of their faith. Such a demand is
not a manifestation of ``religious bigotry'' but, rather, a reflection
of the need to maintain the integrity of the organization.
Explicit extension of the exemption to cover employees providing
publicly funded services is not required by the concerns addressed in
Amos. Much of the Amos analysis, as amplified in the concurring
opinions, turns on the problems that would be posed in limiting the
exemption to religious activities of a religious organization, not the
least of which would be placing the state in the position of parsing
which activities of the organization are secular and which are
religious. With respect to programs funded by the government, however,
the state, as a matter of constitutional principle, may fund only the
secular activities of religious organizations, thereby making
unnecessary an explicit extension of the Title VII exemption to
employees providing publicly funded services. To the contrary, such an
explicit extension, as part of a program premised on substantial
expansion of the role of pervasively religious organizations in social
services provision, would run counter to fundamental civil rights
principles, as well as identify the government with using religious
criteria for employment. It is these concerns that underlie our
opposition to the provisions of ``charitable choice'' that deal with
employment discrimination, and not any view that religious
organizations manifest ``religious bigotry'' when they rely on
religious criteria in making employment decisions.
Responses of Richard T. Foltin to questions submitted by Senator
Question 1: Many of our most vulnerable citizens--drug and alcohol
addicts, the mentally ill, and those living in poverty, will be the
ones seeking the services provided by faith based organizations.
Considering this fact, I would like the panelists to address how this
legislation does or does not protect and ensure the rights of these
individuals? Specifically, either from experience or from your
understanding of the legislation, can you describe the process by which
an individual who objects to religious treatment would be able to opt-
out? Is the burden on the individual--who may or may not be competent
to affirmatively assert his or her objections, or does the provider
have an obligation to explain the methods to the individual and
ascertain whether he or she objects to religious treatment? Does the
faith based provider have an obligation to notify the individual that
there is an alternative, non-faith based organization, or are we
relying on the individual's knowledge of his or her rights? If the
individual is a minor or is mentally incompetent, is there a duty to
receive a waiver from a parent, guardian or custodian?
Answer: Proponents of ``charitable choice'' have pointed to several
provisions of 5.304 as affording sufficient protection for persons
receiving government-funded services from religious coercion. But these
ostensible protections, including prohibitions on the use of program
funds for ``sectarian worship, instruction or proselytization'' and on
discrimination against beneficiaries on the basis of religion, as well
as the requirement that beneficiaries of social services shall be
entitled to have those services provided by ``an alternative
organization,'' are simply insufficient.
As to the prohibitions on use of funds for sectarian purposes and
on discrimination, it is not reasonable to expect pervasively religious
institutions to provide for a separation between the provision of
secular social services for which taxpayer dollars are used and the
religion-teaching activities of those organizations. Moreover, nothing
in ``charitable choice'' precludes privately funded religious
activities from taking place in and around the services paid for with
public funds in a fashion that will suggest strongly to beneficiaries
that these are activities in which they ought to be engaged.
With respect to the requirement that assistance be made available
from ``an alternative organization that is accessible to the
individual,'' this requirement is pregnant with unanswered questions
such as: must the alternative provider be secular, is the alternative
provider to be made available on an ongoing basis or simply created as
individuals object to an offered religious provider, who shall pay for
the establishment of the alternative provider, and what type of burden
will be imposed on the beneficiary to confirm his or her religious
objection? This lack of clarity as to the particulars of the
requirement that an alternative provider be made available makes it
difficult to answer this and the subsequent questions as to how this
structure should work. We should, therefore, approach with great
suspicion any assurance by proponents that this structure will
sufficiently protect the rights of individuals.
In any event, it is, frankly, difficult to believe that alternative
providers will always be reasonably available, if available at all,
particularly in rural or homogenous areas, whatever S.304 may say. It
is important to recall as well, that the recipients of services
provided under ``charitable choice'' are often in extremis. They may
not clearly understand their options and their rights, they may be
subject to pressure from government officials and peers not to ``make
waves,'' and they may be reluctant to take steps that might delay or
obstruct their receipt of badly needed services.
Turning, then, to the specific queries at the end of question one,
it really is not feasible to describe, after reading the legislation
(which is similar to the provisions that have been appeared in other
bills that include ``charitable choice ''), the process by which an
individual who objects to religious treatment would be able to opt-out.
Certainly, nothing in the bill precludes state and local officials who
are administering a program from placing the burden on the individual
to affirmatively assert his or her objections. The bill does provide
for some form of notice to beneficiaries, which is an improvement over
earlier ``charitable choice'' initiatives, but, again, lacks,
specificity or clarity. At the most basic level, we are not told how
the determination is to made which is the ``appropriate Federal, State,
or local governmental entity'' to provide notice.
Question 2: S.304 states that an individual has a right to ``an
alternative organization that is accessible to the individual.'' What
is your understanding of what constitutes an acceptable ``alternative''
organization? When comparing a faith based organization and a non-faith
based organization, what factors do you believe are most significant in
determining whether that organization is an acceptable alternative
(i.e., number of individuals served, comparable funding, number of
staff members, success rates)?
Answer: The bill provides no clear standard as to what will
constitute an acceptable alternative organization, other than to say
that the organization shall be ``accessible'' and that the assistance
provided by that organization shall have ``a value that is not less
than the value of the assistance that the individual would have
received from such organization.'' Certainly, the factors suggested in
question 2 are among those that should be considered in determining
what is acceptable, but perhaps as crucial as the question of what is
acceptable is the question of who decides what is acceptable. Is
acceptability to be determined by the beneficiary, a federal rule-
making agency, or the state or local agencies responsible for
administering the program? And how is this determination to be policed?
Are the courts, in the end, going to be responsible for resolving a
dispute as to whether an acceptable alternative has been offered? To
the extent a challenge to acceptability turns on a challenge being made
by the beneficiary, all of the concerns as to barriers to objections by
beneficiaries raised above apply.
Question 3: Continuing with the provision addressed in question 2,
how ``accessible'' must the non-faith based organization be to the
individual? For example, if an individual objects to a faith based
organization walking distance from where he or she lives, does the city
and/or state have an obligation to provide an alternative within
walking distance? In the same city or town? Same county? Same state?
Furthermore, does the city or state have an obligation to provide
transportation if that individual is unable to get to the secular
Answer: These are, again, questions that the bill does not resolve.
These answers will have to be provided by a federal rule-making agency
or the state administrator, with disputes to be resolved in the courts.
Question 4: The legislation provides that these alternative
services must be provided in a ``reasonable period of time after the
date'' an individual files an objection to the faith based services.
Under this provision, for example, what happens to the drug or alcohol
addict during the time period between when a complaint is lodged and
when an alternative organization is established. Does that individual
have to choose between asserting his rights or receiving urgent care
Answer: Once again, questions that the bill does not resolve. But,
clearly, a huge problem is presented in terms of the acceptability of
an alternative provider if that alternative is not available to those
in need of urgent care and treatment. The only way to guard against
inequities in terms of the provisions of services is to create
alternative providers at the same time as faith-based services receive
contracts. But this is an approach that would bring it with all sorts
of difficulties in funding and inefficiencies.
Question 5: Do you believe the enforcement mechanism in the
legislation is adequate? Do you think it is effective and realistic to
rely on individuals--many of whom lack the financial ability and
personal desire to file a lawsuit--to ensure compliance with the
legislation. What other enforcement mechanisms might exist?
Answer: No enforcement mechanism is explicitly provided other than
the private cause of action that may be available under subsection (g).
Plainly, as the question reflects and as I stated in my response to
question 1, that is a palpably inadequate enforcement mechanism. Absent
the creation of a federal authority to ensure compliance, it is
difficulty to know what mechanism would actually assure adequate
safeguarding of the right to an acceptable alternative.