[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
STRENGTHENING AMERICA'S COMMUNITIES:
EXAMINING THE IMPACT OF FAITH-BASED
HOUSING PARTNERSHIPS
=======================================================================
HEARINGS
BEFORE THE
SUBCOMMITTEE ON
HOUSING AND COMMUNITY OPPORTUNITY
OF THE
COMMITTEE ON FINANCIAL SERVICES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
MARCH 25, APRIL 28, 2003
__________
Printed for the use of the Committee on Financial Services
Serial No. 108-14
89-410 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpr.gov Phone: toll free (866) 512-1800; (202) 512�091800
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HOUSE COMMITTEE ON FINANCIAL SERVICES
MICHAEL G. OXLEY, Ohio, Chairman
JAMES A. LEACH, Iowa BARNEY FRANK, Massachusetts
DOUG BEREUTER, Nebraska PAUL E. KANJORSKI, Pennsylvania
RICHARD H. BAKER, Louisiana MAXINE WATERS, California
SPENCER BACHUS, Alabama CAROLYN B. MALONEY, New York
MICHAEL N. CASTLE, Delaware LUIS V. GUTIERREZ, Illinois
PETER T. KING, New York NYDIA M. VELAZQUEZ, New York
EDWARD R. ROYCE, California MELVIN L. WATT, North Carolina
FRANK D. LUCAS, Oklahoma GARY L. ACKERMAN, New York
ROBERT W. NEY, Ohio DARLENE HOOLEY, Oregon
SUE W. KELLY, New York, Vice JULIA CARSON, Indiana
Chairman BRAD SHERMAN, California
RON PAUL, Texas GREGORY W. MEEKS, New York
PAUL E. GILLMOR, Ohio BARBARA LEE, California
JIM RYUN, Kansas JAY INSLEE, Washington
STEVEN C. LaTOURETTE, Ohio DENNIS MOORE, Kansas
DONALD A. MANZULLO, Illinois CHARLES A. GONZALEZ, Texas
WALTER B. JONES, Jr., North MICHAEL E. CAPUANO, Massachusetts
Carolina HAROLD E. FORD, Jr., Tennessee
DOUG OSE, California RUBEN HINOJOSA, Texas
JUDY BIGGERT, Illinois KEN LUCAS, Kentucky
MARK GREEN, Wisconsin JOSEPH CROWLEY, New York
PATRICK J. TOOMEY, Pennsylvania WM. LACY CLAY, Missouri
CHRISTOPHER SHAYS, Connecticut STEVE ISRAEL, New York
JOHN B. SHADEGG, Arizona MIKE ROSS, Arkansas
VITO FOSELLA, New York CAROLYN McCARTHY, New York
GARY G. MILLER, California JOE BACA, California
MELISSA A. HART, Pennsylvania JIM MATHESON, Utah
SHELLEY MOORE CAPITO, West Virginia STEPHEN F. LYNCH, Massachusetts
PATRICK J. TIBERI, Ohio BRAD MILLER, North Carolina
MARK R. KENNEDY, Minnesota RAHM EMANUEL, Illinois
TOM FEENEY, Florida DAVID SCOTT, Georgia
JEB HENSARLING, Texas ARTUR DAVIS, Alabama
SCOTT GARRETT, New Jersey
TIM MURPHY, Pennsylvania BERNARD SANDERS, Vermont
GINNY BROWN-WAITE, Florida
J. GRESHAM BARRETT, South Carolina
KATHERINE HARRIS, Florida
RICK RENZI, Arizona
Robert U. Foster, III, Staff Director
Subcommittee on Housing and Community Opportunity
ROBERT W. NEY, Ohio, Chairman
MARK GREEN, Wisconsin, Vice MAXINE WATERS, California
Chairman NYDIA M. VELAZQUEZ, New York
DOUG BEREUTER, Nebraska JULIA CARSON, Indiana
RICHARD H. BAKER, Louisiana BARBARA LEE, California
PETER T. KING, New York MICHAEL E. CAPUANO, Massachusetts
WALTER B. JONES, Jr., North BERNARD SANDERS, Vermont
Carolina MELVIN L. WATT, North Carolina
DOUG OSE, California WM. LACY CLAY, Missouri
PATRICK J. TOOMEY, Pennsylvania STEPHEN F. LYNCH, Massachusetts
CHRISTOPHER SHAYS, Connecticut BRAD MILLER, North Carolina
GARY G. MILLER, California DAVID SCOTT, Georgia
MELISSA A. HART, Pennsylvania ARTUR DAVIS, Alabama
PATRICK J. TIBERI, Ohio
KATHERINE HARRIS, Florida
RICK RENZI, Arizona
C O N T E N T S
----------
Page
Hearings held on:
March 25, 2003............................................... 1
April 28, 2003............................................... 35
Appendixes:
March 25, 2003............................................... 59
April 28, 2003............................................... 125
WITNESSES
Tuesday, March 25, 2003
Anthony, Rev. Wendell, Pastor, Fellowship Chapel, Detroit,
Michigan....................................................... 14
Caldwell, Rev. Kirbyjon, Pastor, Windsor Village United Methodist
Church, Houston, Texas......................................... 15
Daniels, Bishop Sedgwick, Pastor, Holy Redeemer Institutional
Church of God in Christ, Milwaukee, Wisconsin.................. 18
Fairbanks, Dr. E. LeBron, President, Mount Vernon Nazarene
University, Mount Vernon, Ohio................................. 12
Feingold, Ellen, President, Jewish Community Housing for the
Elderly, also appearing on behalf of the National Association
of Homes and Services for the Aging and the Association of
Jewish Aging Services, Boston, Massachusetts................... 16
Kmiec, Douglas W., J.D., Dean, Catholic University of America
School of Law, Washington, DC.................................. 21
Walker, Rev. J. Brent, Executive Director, Baptist Joint
Committee, Washington, DC...................................... 19
APPENDIX
Prepared statements:
Oxley, Hon. Michael G........................................ 60
Anthony, Rev. Wendell........................................ 61
Caldwell, Rev. Kirbyjon...................................... 64
Daniels, Bishop Sedgwick..................................... 68
Kmiec, Douglas W............................................. 70
Fairbanks, Dr. E. LeBron..................................... 75
Feingold, Ellen.............................................. 79
Walker, Rev. J. Brent........................................ 86
Additional Material Submitted for the Record
Barney, Hon. Frank:
Americans United for Separation of Church and State, prepared
statement.................................................. 98
``Providing shelter'' The Observer, March 30, 2003........... 106
American Civil Liberties Union, prepared statement............... 109
WITNESSES
Monday, April 28, 2003
Weicher, John, Assistant Secretary, Housing, Federal Housing
Commissioner, U.S. Department of Housing and Urban Development,
accompanied by Ryan Streeter, Director, Center for Faith-Based
and Community Initiatives and Frank Jimenez, Chief of Staff.... 39
APPENDIX
Prepared statements:
Weicher, John................................................ 126
Additional Material Submitted for the Record
Frank, Hon. Barney:
National Community Development Association, prepared
statement.................................................. 131
STRENGTHENING AMERICA'S COMMUNITIES:
EXAMINING THE IMPACT OF FAITH
BASED HOUSING PARTNERSHIPS
----------
Tuesday, March 25, 2003
U.S. House of Representatives,
Subcommittee on Housing and Community Opportunity,
Committee on Financial Services,
Washington, D.C.
The subcommittee met, pursuant to call, at 3:04 p.m., in
Room 2128, Rayburn House Office Building, Hon. Robert Ney
[chairman of the subcommittee] presiding.
Present: Representatives Ney, Green, Waters, Watt, Clay,
Miller, Scott, Davis, and Frank (ex officio).
Mr. Ney. [Presiding.] Good afternoon. The Subcommittee on
Housing and Community Opportunity will come to order. I want to
welcome members of the committee that are here--our Ranking
Member Ms. Waters, Mr. Frank and Mr. Green.
Today's hearing is about the Department of Housing and
Urban Development's January 6, 2003 proposed regulation that
intended to provide more opportunities for faith-based
organizations to assist in meeting the needs of the poor and
distressed neighborhoods. Today, there are hundreds of faith-
based organizations helping the homeless, providing decent
affordable housing, and critical services for our nation's
homeless seniors and disabled.
As President Bush said when he announced his faith-based
initiative, government has a solemn responsibility to help meet
the needs of poor Americans and distressed neighborhoods, but
it does not have a monopoly on compassion. In 1996, Congress
enacted charitable choice legislation that sought to expand the
involvement of religious organizations in social service
programs. In January, 2001, President Bush issued two executive
orders to create a White House Office of Faith-Based and
Community Initiatives, and five centers for Faith-Based and
Community Initiatives in five Federal agencies.
Most recently, on December 12, 2002, the Administration
announced several additional administrative measures to enhance
its faith-based initiative administratively. In a limited way,
faith-based organizations currently are allowed to participate
in various Federal programs. However, the current regulations
present a roadblock to full participation by faith-based
organizations, hindering their ability to help those in need.
The House-proposed rule would remove some of the barriers
faith-based organizations now encounter when trying to
participate in helping provide important programs. The new HUD
regulations would modify requirements for eight specific
programs: housing opportunities for people with AIDS, emergency
shelters grants, shelter-plus care, the supportive housing
program, HOPE III, HOME, and CDBG.
I want to point out that Ohio has been among the states
that have led the way in supporting charitable choice programs.
In 2002, the Bliss Institute at the University of Akron and the
Hudson Institute in Virginia jointly prepared a survey of
government-funded faith-based programs in 15 states. The report
notes that Ohio, California, Michigan and Texas lead the way in
terms of dollars invested, while Ohio, Michigan and Wisconsin
hold the most contracts.
The committee has invited a broad cross-section of
representatives from faith-based organizations who have
experience providing social services. I think that everyone
here shares the intent of HUD in crafting this regulation,
which is ensuring the delivery of Federally funded services to
very low and low-income people. While we all may agree on that
goal, there are certainly different views on how to achieve it.
Our witnesses today are here to share their experiences
providing social services, as well as their views on whether or
not the proposed rule will make the Federal funds more
accessible to organizations such as theirs, and if not, what
can be done to improve the proposal. I look forward to hearing
from our witnesses. I want to take a moment to recognize that
because of the diversity of faith-based organizations that
flourish under our Constitution's protection, we were unable to
accommodate every group that wanted to come and testify today.
Without objection, members will be allowed to submit their
written statements for the record. Hearing no objection, they
will be submitted for the record.
I yield to our ranking member, Ms. Waters, for her opening
statement.
Ms. Waters. Thank you very much, Chairman Ney.
I would like to thank you and, of course, our own ranking
member, Congressman Barney Frank, for agreeing to have this
very special and important hearing. I would like to also thank
all of our witnesses who have come today. I know that most of
them are extremely busy and the fact that they have given up
their time to be with us is certainly appreciated by me and
other members of this committee.
This hearing is extremely important for any number of
reasons. The HUD, Department of Housing and Urban Development,
is proposing new regulations to deal with the President's
executive order relative to his faith-based initiative. The
President has come up with a faith-based initiative because the
President obviously believes that somehow our religious
organizations are able to provide services to the communities
that need it. What is interesting about the President's
initiative is it does nothing to allow faith-based
organizations to provide services to the community other than
allow them to discriminate. Faith-based organizations can
already, under 501(c)(3) operations where you separate the
money that comes from the Federal government into the 501(c)(3)
corporation, rather than mixing the money in the collection
plate. They can already under 501(c)(3)s provide any services
that the Federal government funds, that they allow to go to
organizations that provide these kinds of services.
Some of us are extremely concerned because the President's
executive order absolutely violates Title VII and it flies in
the face of President Johnson's executive order, which further
supported Title VII in saying that if you receive Federal
money, if you receive government money, you may not
discriminate. This initiative by the President suggests that
somehow religious organizations should be able to pick and
choose who they hire. If they do not like somebody's skin
color, if they do not like their gender, if they do not like
the other organizations they are associated with, if they do
not like the communities they live in--whatever--they would be
allowed to undermine all of the civil rights work that many of
our people have died for, to make sure that we do not have
discrimination and the Federal government resources.
Further, the President has put no new money out there for
this initiative. The Federal government would open up even
further, even though it can be done now, the opportunity for
our faith-based organizations to compete for CDBG monies. That
is, the money that goes from the Federal government to the
cities, the Community Development Block Grant monies that area
already being used by many of the community organizations
throughout the country. Faith-based organizations would be in
competition with these organizations, with the ability to
discriminate. Faith-based organizations can already apply for
CDBG monies. I know because I assist faith-based organizations
in applying for money to do everything from build senior
citizens' housing to have child daycare programs.
And so this would simply do two things or three: number
one, open up the ability to discriminate, which some of us are
adamantly opposed to, we have worked too hard, we have fought
too long to open up the ability to discriminate; and it would
allow for a kind of proselytizing where you could have all
kinds of religious symbols and relics et cetera, et cetera, and
perhaps even discriminate against one religious organization
against another.
Unanimous consent for one additional minute.
I noted in my research on this that I think it was Pat
Robertson who said, he did not like the faith-based initiative
because he did not think some religious organizations were
Christian enough and they did not deserve to be funded. We have
another ex-member of Congress, Mr. Bob Barr, who pointed out a
religious organization that he did not like. He said they
should not be allowed on military bases. So you open up the
whole discussion of what is and what is not a good religious
organization; what is an acceptable religious organization. Is
it all right for the AMEs as opposed to the Pentecostals? Do
they worship Christ the way we want them to? I do not think we
want that kind of government involvement in religion.
Finally, let me say this. There are some religious
organizations now that are under investigation. Even with the
walls that we have built up requiring that the 501(c)(3)s be
used in order to operate programs, they have gotten into
trouble because they mixed the money from the 501(c)(3) with
the collection plate money. I daresay to you that many
ministers who do not have the infrastructure, they do not have
the grantsmanship capability, they do not have the assistance
to go after this money and to implement these programs. They
are opening themselves up for indictment by the very people who
are telling you that they want you to get into this business in
a certain kind of way. I would submit to you that the
government needs to keep its hands out of the church, and the
government needs to make sure that there is a wall that
separates the 501(c)(3) from the collection plate. Every
minister who cares about their ability to do what they want to
do in practicing their religion should be opposed to this
faith-based initiative.
With that, I yield back the balance of my time, and I thank
you, Mr. Chairman.
Mr. Ney. The chair recognizes the gentleman from Wisconsin,
Mr. Green.
Mr. Green. Thank you, Mr. Chairman. I appreciate your
leadership in holding this hearing. I have, as you might
gather, a very different approach than the last speaker.
I think we need to recognize that government and faith-
based organizations share many of the same objectives. At their
best, all strive to help the less fortunate, both work to
strengthen our communities, and both obviously try to make a
better future for families. I have always supported the idea of
returning to the charitable ideas that built America--local
organizations, staffed by local people working on the ground to
serve and solve local problems.
We in government can do everything in our power to foster a
healthy environment for community renewal. We can pass laws. We
can implement all kinds of programs and services. We can and we
should plow more funds into these areas. In the short term, our
efforts will do some good, but there can be no real, long-
lasting community renewal unless we succeed in reviving the
spirit of individuals, families and neighborhoods. That is
something that government cannot do. That takes the hard work
of individuals and local organizations like the faith-based
groups that are represented here today.
Each year in America, we spend billions of dollars
providing social services. It just makes sense that we find the
most effective way to deliver those services to the folks who
really need them, whether that is through government or whether
on some occasions that may be through private groups.
Government should not and cannot retreat from its critical
poverty relief mission, but at least in some cases, local
faith-based organizations can do that mission more effectively
than the Federal government, lift more lives and save more
streets.
At one time, faith-based organizations were at the core of
efforts to improve our communities. They were very effective
and have a proven record of success. Gradually, they have been
pushed aside by big government, which has all too often proven
to be a far less helpful alternative. The pendulum is just now
beginning to swing back, as charitable choice is implemented.
Under the leadership of then-Governor Tommy G. Thompson of
Wisconsin, Wisconsin was one of the leaders in implementing
charitable choice initiatives. HUD's proposal follows President
Bush's executive order to give faith-based organizations more
opportunities to provide these services for the sake of the
people they help and for the future of our communities.
I look forward to hearing from today's witnesses about
their experiences in the community and with government, and how
we can ensure their continued participation in providing
services to those who are most in need.
Finally, I am particularly honored to have Bishop Daniels
of Milwaukee's Holy Redeemer Church of God in Christ here today
to describe the profoundly beneficial impact his congregation
and its affiliated entities have had on the largest city in my
home State of Wisconsin. I have had the pleasure of meeting
Bishop Daniels, most recently last July when President Bush
visited the Holy Redeemer congregation to see first-hand what
great work they are doing. Holy Redeemer serves the Milwaukee
community through a network of social services, from housing to
community development, foster care, shelters, and food
pantries, to workforce readiness training, counseling, and even
providing health services.
Holy Redeemer has a history of serving the community with a
level of dedication that I believe makes them truly unique.
Bishop Daniels, it is a pleasure to have you before this
subcommittee. I am proud of what you are doing and I look
forward to your testimony.
Mr. Chairman, I yield back.
Mr. Ney. The chair recognizes the gentleman from
Massachusetts for three minutes, Mr. Frank.
Mr. Frank. Thank you, Mr. Chairman.
First, I want to express my disappointment that we have no
representative of HUD here today. We had assumed that the
majority would have invited the Administration, as in my
experience it always has on an oversight hearing over a
particular Administration's program. In fact, the gentleman
from California and I wrote a letter to the Secretary because
we had assumed he had declined to send a representative. He
told us he had not been invited. I should note that we have
remedied that lack of, I think, courtesy to the department
involved by exercising our right under rule 11 of the House. So
all the members on the Democratic side have exercised our right
to ask for secretarial hearings, which is a matter of right,
and we will have a HUD representative. I think it is a grave
error not to have HUD explain some of these issues. As I said,
I am surprised that the majority assume, frankly, that it would
be a good idea not to have HUD here.
I am particularly concerned about a couple of aspects of
this. One, this program is now going to be available under the
Community Development Block Grant Program. That means every
governing body of every community of 50,000 or more in America
will be given the Federal funds to give to whatever religion
they wish. I want to know how HUD is going to be supervising
that; how they will supervise, for example, the rule that says
you can build a house of worship with a mix of private and
public funds, but you cannot worship in the public funds part.
I am just wondering how we are prepared to police that, not
that I think it is a good idea to get into a situation where
you have to do that throughout the country, through CDBG.
I also want to reinforce the point that was made so well by
the ranking member, the gentlewoman from California. Beginning
in 1954 with the case of Brown v. Board of Education, one of
the great things about this Federal government has been its
dedication to abolishing discrimination based on race, based on
religion, based on gender, based on age, based on handicaps.
There have been court opinions. There have been statutes. There
have been regulations. There have been executive orders. The
President's proposal appears to me to be a turning back of that
clock. It sanctions discrimination. Indeed, we have previously
held that while you might have a right to discriminate purely
privately, the receipt of Federal funds gives you an even
greater obligation not to discriminate. This proposal turns
that on its head. People who receive Federal funds as we have
interpreted this, and it has not been refuted, religious groups
who receive Federal funds for secular purposes will be allowed
to discriminate on religious grounds. That seems to me a
terrible retreat from the principle of non-discrimination to
which we have been committed.
Indeed, the Federal funds, instead of giving you an added
burden not to discriminate, become a license to discriminate. I
know there are people who say, well, you should never burden
people. I am reminded of the great words of the gentlewoman
from California's distinguished predecessor, Mr. Gus Hawkins,
who said when we reenacted a bill that the Supreme Court had
narrowed, we said if you take Federal funds, you cannot
discriminate, and people complained about interference. If you
dip your hands in the Federal till, do not complain when a
little democracy rubs off on your fingers.
Now, what we are being told is you can dip your hands in
the Federal till, and you come away immunized from the
responsibility not to discriminate. I would like to ask
particularly some of the representatives of the religious
groups because--and I will finish in one minute, Mr. Chairman--
as the gentlewoman from California quite correctly pointed out,
there is nothing in the law now properly interpreted which says
that religious groups cannot get the money. The point is that
they have to abide by the rules everybody else abides by.
Apparently, there are some religious groups that have said, and
I have heard this from members in this Congress, we cannot take
the money to provide homeless shelters or drug treatment
programs or soup kitchens or other important social purposes
unless we can hire only our own people. The notion that there
is something wrong about religious people joining in non-
religious activities with people of other religions is
profoundly disturbing to me. I would think the world would have
had too much of that, too much of the notion of religious
separatism.
So I really need to have answered for me what is it about
people of other religions that makes people want to
discriminate against them in hiring for purely secular
purposes?
With that, Mr. Chairman, I look forward to the hearing, and
I would note again that we have delivered the letter, and I
look forward to our having--and I am sorry, apparently there
was a misunderstanding--but we will have a second day of
hearings under the rule in which we will get a representative
from HUD because there are some important questions to be
answered.
Mr. Ney. The gentleman from Georgia, Mr. Scott?
Mr. Scott. Thank you very much, Chairman Ney and Ranking
Member Waters and Ranking Member Frank. I want to thank you for
holding this hearing today regarding HUD's proposed rule on
faith-based organizations.
I also want to thank the panel of witnesses today for
coming before us and giving your important testimony. I look
forward to hearing from faith-based organizations about their
experiences in working with governmental agencies to address
community needs. I believe that we should look to find creative
ways to help more individuals in need in our community. And I
believe that we have got to also be very concerned about
keeping our constitutional protections against discrimination.
Therein lies the rub. Where is the balance and how can we help
smaller faith-based groups participate in HUD programs?
I come from an area in this country that--a district that
is urban, suburban, rural. I know, as many of my colleagues do,
we run for office every other year, and we know the pivotal
role that churches play in our communities. And certainly in
many, many communities, but perhaps nowhere more significantly
a role the church plays than in those African American
communities, and many lower-income communities where the church
is the central entity in that community, around which culture
and educational, social development, community development
takes place.
So on one level the church is very attractive as a means,
as a vehicle to do a tremendous amount of good. I have a number
of ministers who have reached out to me and say, ``I want to
participate in this faith-based initiative; my church can
qualify here; I want to do some things; I want to help drug
addiction; I want to improve the community; I want to build a
community center; I want to do these things--can you help me
get some of that faith-based initiatives grants and money, and
how do we go about this?''
But yet, the nagging question comes back to me of this
balance. There have been some very disturbing questions raised
by our ranking member, Ms. Maxine Waters, and certainly our
ranking member, Mr. Frank of Massachusetts. We have got the
find answers to those questions. It certainly disturbs me that
HUD saw fit not to have a representative come here.
Mr. Ney. The time of the gentleman has expired.
Mr. Scott. May I just wrap up with one final point, please?
Mr. Ney. The gentleman may.
Mr. Scott. Thank you so much.
I think governing those answers have got to be this big,
big issue of how do we deal effectively with the separation of
church and state. Having been one who has fought that battle to
the Supreme Court, there are three legs upon which that
separation rests, around which pivots, hopefully, this
discussion, for it to be meaningful. One leg is that it must be
religious-neutral. What we do must neither advance a religious
cause, nor restrain it. The other is secular--that there be a
secular purpose; and thirdly, that there is no religious
entanglement.
I am looking for answers to questions today so that I can
take back to my constituency and make the right decision, and I
look forward to receiving those answers.
Thank you, Mr. Chairman, for expanding my time.
Mr. Ney. The time of the gentleman has expired.
The gentleman, Mr. Watt, from North Carolina?
Mr. Watt. Thank you, Mr. Chairman.
I appreciate the chairman convening this hearing. Like Mr.
Frank, I am disappointed that we do not have a representative
here from HUD to answer some of the difficult questions that
are being raised. I want to thank all of these witnesses for
being here, but I doubt that they are going to be able to
address the concerns that we have about it, because I think
uniformly they are interested in the same thing that we are
interested in, which is how do you get services into
communities and do it in an effective way that gets results.
I heard my wife say a couple of days ago to somebody that
she was giving up aggravation and stress for Lent. So I am
trying to make sure that I do not get aggravated and stressed
about this issue because the truth is, I know that religious
institutions, churches have been providing services in my
community and our communities for years and years and years
before this President ever came along talking about some kind
of faith-based initiative. The only difference I can discern is
that as soon as he started talking about the faith-based
initiative and showing up in some of the churches in our
communities, a bunch of my ministers starting lining up at the
door saying to me, ``I want some of that faith-based money.''
They were surprised when I told them that at the same time the
President was announcing his faith-based initiative, he was
actually cutting many of the programs that they had been
accessing to provide housing to our communities and social
services to our communities, and after school programs to our
communities, and that there was no such thing as a faith-based
fund. So I am not sure exactly what the fuss was all about.
So you should know first of all that I have concerns about
this because the total amount of funds that are available to do
this stuff is being cut by the President, at the same time he
is talking about having some faith-based initiative. He is
going to need a bunch of help from churches and other
institutions to get the same amount of services because you
have less money out there to do it with.
Second, I think this is going to open churches up.
Mr. Ney. The time of the gentleman has expired. Would you
like to wrap up?
Mr. Watt. No, I think I will just--I am going to follow my
wife's entreaty. I am going to give up this aggravation and
stress for Lent. I mean, you know, we have made the point.
Mr. Frank. Mr. Chairman, unanimous consent that as a great
admirer of Mrs. Watt, could I ask that this part of the record
be sent to her?
Mr. Ney. Absolutely.
[Laughter.]
I would also note if we would like to give up aggravation
and stress for Lent, we will recess for a month. That would
probably help the country, too.
Mr. Watt. I do not think they are going to let me do that,
but if you want to make that motion, I will second it.
[Laughter.]
Mr. Ney. With that, the gentleman from Alabama, Mr. Davis?
Mr. Davis. Thank you, Mr. Chairman.
Let me thank all of you for coming today. At the risk of
echoing some of what has been said, I want to pause for a
minute on the point my friend from North Carolina just made. If
you look at a lot of the programs that you all are trying to
bring within the purview of faith-based organizations, they
have an interesting characteristic in common. Almost every
single one of them is under the President's budget axe right
now. I am struck by that. I am struck by the Administration's
withdrawing with one hand what it extends with the other hand.
I would I suppose issue this invitation to all of you. The same
passion and zeal that you bring to the cause of including
faith-based organizations in various government programs, I
hope that you will take that same passion down to 1600
Pennsylvania Avenue or to whatever is the street of HUD, to let
them know that these programs are vitally important regardless
of whether faith-based organizations are allowed to participate
or not.
I compliment you for recognizing something that I do think
is very important, that there is a moral dimension to the
social commitment and the social fabric we have in this
country. I happen to come from the third poorest congressional
district in America, and I talk a great deal about religion and
faith, but I do it in this sense. I do it in the sense that
when Matthew says as you do unto the least of these, you do it
unto me. That is the sense that ought to animate, frankly, a
lot more of our political debate. To the extent that all of you
recognize that, and I think that all of you do, I hope that is
the message that you take down the street, that as you do unto
the least of these, you do it unto me.
I want to make a larger point. As someone who was born in
Montgomery, Alabama, the home of the Montgomery bus boycott,
which was a classic instance of faith firing a movement in this
country, I have this old-fashioned belief, frankly, that
churches do very well when they are independent, and that
churches do very well when they do not have to come hat in hand
to the Federal government seeking anything. When Martin Luther
King was standing in the well of that church in Montgomery,
Alabama in 1954, he could not pick up the phone and call Dwight
Eisenhower's Administration. I happen to think that in some
ways he was the better for that, and that his cause was the
better for that.
So as we talk about weakening even symbolically the wall
between church and state, I think we ought to recognize this.
Churches get their moral firepower in some ways from their
sense of independence and from their sense that their cause
does not require the Federal government's permission or the
Federal government's largesse.
I would make just one last point. I am deeply concerned
that the whole notion of faith-based access has taken on an air
of political patronage. I cannot tell you how many preachers in
my community endorse certain politicians because they thought
they would get the faith-based hook-up. There is something
wrong with that. There is something wrong with political
patronage having a religious cloak around it. And there is
something wrong with men of faith and women of faith feeling
that they have to meet some informal political litmus test.
That is an inevitable cost of this erosion of the wall. It is
an inevitable cost of what this Administration is doing when it
comes to weakening that wall.
I yield back. I thank you, Mr. Chairman, for extending my
time.
Mr. Ney. Mr. Miller of North Carolina.
Mr. Miller. Thank you. I will not use my entire time.
Both my maternal grandmother and my maternal grandfather
had died by the time my mother was age four. She was raised in
a Baptist orphanage in Thomasville, North Carolina. I
understand very well the great works that we do when we act on
faith, when we do truly love our neighbors as ourselves. But I
do share many of the concerns that other members of the
committee have raised about these proposed rules, that there is
no reason that when religious groups are receiving Federal
funds that they should not be held to the same rules as
everyone else.
Mr. Ney. I thank the gentleman, and I want to welcome all
the witnesses to Washington, D.C., the U.S. Capital. Thank you
in advance for your testimony that will be so important.
I would like to start with the introduction of Dr. E.
LeBron Fairbanks, President of Mount Vernon Nazarene
University, Mount Vernon, Ohio, which happens to be in Knox
County in the 18th district in Ohio, of which I am from. I was
at the university just this past week and met a lot of good
people up there. It is a wonderful university. They were
preparing, in fact, the students to go do a lot of charitable
work. Some headed out to New York and other parts of the United
States. I just really want to give our warm welcome to Dr.
Fairbanks today. And for the introduction of the next witness,
I will yield to our ranking member, Ms. Waters.
Ms. Waters. Thank you very much, Mr. Chairman. I would
certainly like to introduce my good friend, Reverend Wendell
Anthony, who is the pastor of Fellowship Chapel, Detroit,
Michigan. But before I do that, I am not introducing, but I
certainly want to welcome Reverend Kirbyjon Caldwell, pastor of
the Windsor Village United Methodist Church in Houston, Texas.
He is a friend. He is a friend of my husband's, and I am
welcome in his church. While we may disagree philosophically
and politically on some things, I want you to know you are
welcome, and indeed I appreciate your friendship.
The introduction that I am making today is of Reverend
Wendell Anthony, an extraordinary minister. He is a native of
St. Louis, Missouri. He was educated in the Detroit public
school system from elementary through high school. He graduated
from Wayne State University with a BA in political science, and
Marygrove College with an MA in pastoral ministry. He also
attended the University of Detroit for advanced study and Black
theology. Reverend Anthony is a certified social worker with
the state of Michigan.
I would like to just share with you that he is the current
President of the Detroit branch of the NAACP, the largest
branch in the country, with a current membership of more than
45,000 persons. He is a single father with two daughters, and
he has received so many rewards and so much recognition for his
work. I have been to his church on many occasions. He is the
member of a lot of boards and councils inside the city of
Detroit, including New Detroit, Incorporated; Michigan
Coalition of Human Rights; and the Minority State Health Policy
Advisory Council. I am also blessed to be invited each year to
the NAACP banquet where he has about 10,000 paying individuals
in one room, and four head tables of different colors around
the auditorium. It is the most amazing thing that you would
see.
Lastly, let me just say this. He is responsible for a lot
of ministries and programs, but I happened to be at his church
when he started and organized the Rwanda relief effort, and
with the Detroit branch of the NAACP, raised nearly $1 million
in monies for transport of victuals, food, clothing, medical
supplies and aid to Rwanda, Goma and Zaire. This an
extraordinary man whose ministry has touched so many lives in
so many ways. He is operating out of his church a number of
programs that I saw listed here that I cannot put my finger on
at this time, but I welcome him and I want you to know that we
are particularly advantaged by his presence here today.
Thank you very much for being with us, Dr. Wendell Anthony.
Mr. Ney. I want to thank the gentlelady. Also, I was so
caught up in the great job that Dr. Fairbanks does up there
with the staff and the students, I did fail to mention that he
also has been associated with Nazarene education programs in
Switzerland, the Philippines and Ohio since 1978, and he serves
as a Presidential mentor in the Executive Leadership Institute
of the Council for Christian Colleges and Universities.
I would like at this time to introduce Reverend Kirbyjon
Caldwell, pastor of Windsor Village United Methodist Church.
That is in Houston, Texas. He is the senior pastor of the
Windsor Village United Methodist Church. Over the past 20
years, Pastor Caldwell has grown the Windsor congregation from
25 members to the largest United Methodist Church in the
nation. Reverend Caldwell attributes the evolution of Windsor
Village to his belief that the church must embrace theology,
identify societal problems, and deliver solutions holistically.
I want to welcome the witness.
We will yield to the gentleman from Massachusetts to
introduce the next witness.
Mr. Frank. Thank you, Mr. Chairman.
Our next witness is no stranger to these deliberations. Her
name is Ellen Feingold. She is from Newton, Massachusetts and
she is a very experienced individual, both in the field of
civil rights and is a leader of a faith-based organization that
has been very well-funded by the Federal government, although
not as well-funded as she would like, but there is a lot of
that going around. But Ms. Feingold, who has a very
distinguished career, was during the Carter Administration
director of civil rights in the Department of Transportation,
so she has a particular expertise in the discrimination area.
She was the co-chair of the commission we recently had
appointed by a bipartisan congressional effort, on senior
housing. And most relevantly today, she runs Jewish Community
Housing for the Elderly. It has the word ``Jewish'' in it, and
it has never been denied any money for that reason. It is an
organization set up by the Jewish community in greater Boston
to deal with housing problems. She administers a large number
of units. It has continued to be called the Jewish Community
Housing for the Elderly. It does not discriminate, but it's
very much a faith-based organization. Even more, as she will
note, she represents the association of housing groups, all of
which are faith-based, and none of which have, she tells us,
suffered any discrimination. So she brings a multiple of
important perspectives to this hearing.
Mr. Ney. I want to thank the gentleman, and yield to Mr.
Green for the introduction of the next witness.
Mr. Green. Thank you, Mr. Chairman.
As I made reference to in my opening remarks, I am very
proud to have here today Bishop Sedgwick Daniels. He is the
pastor of the Holy Redeemer Church of God in Christ in
Milwaukee, Wisconsin. Since 1986, Holy Redeemer has served the
Milwaukee community not just as a place of worship, but as a
true multi-faceted community resource. The services provided by
Holy Redeemer include education, housing and social services.
It is a true treasure in our community, and I welcome him here
with the subcommittee.
Mr. Ney. The next witness is the Reverend J. Brent Walker,
who is the executive director of the Baptist Joint Committee in
Washington, D.C. Reverend Walker served as the general counsel
for the committee for 10 years before becoming its fifth
executive director in more than 65 years. Reverend Walker is an
ordained minister and an adjunct professor at Georgetown
University Law Center. Welcome.
The last witness is Douglas Kmiec. He is the dean of the
school of law at Catholic University of America in Washington,
D.C. Dean Kmiec also taught at Notre Dame and Pepperdine
University. The dean served as principal deputy and assistant
attorney general, office of legal counsel, in the Department of
Justice from 1985 to 1989. He also received the distinguished
service award from the Department of Housing and Urban
Development in 1983.
I want to welcome all the witnesses. Without objection,
your written statements will be made part of the record. You
will each be recognized for a five-minute summary of your
testimony. I would also note and I would apologize, I do have a
conflict and Mr. Green, the vice chairman, will be chairing the
committee, but it is a very important step you are taking in
being here today.
Dr. Fairbanks?
STATEMENT OF E. LEBRON FAIRBANKS, PRESIDENT, MOUNT VERNON
NAZARENE UNIVERSITY, MOUNT VERNON, OHIO
Mr. Fairbanks. Mr. Chairman and committee members,
greetings.
Mount Vernon Nazarene University is located on a beautiful
401-acre campus in Mount Vernon, Ohio, a city of 15,000 people
located approximately 50 miles northeast of Columbus. The
university was founded in 1968 on property purchased by
community leaders and given to the new faith-based institution.
The strong town-gown partnership is even more powerful and
dynamic today. Enrollment this year in our numerous academic
programs exceeds 2,300 students, a significant increase from
the 191 students in the founding class. Consistent with our
motto, ``to seek to learn is to seek to serve.'' Mount Vernon
Nazarene University educates students to embrace their chosen
vocations of business, education, ministry, social work or
medicine with a servant's heart.
As I understand the current HUD regulations, institutions
like Mount Vernon Nazarene University are ineligible for any
Federal housing assistance due to our faith-based nature. For
the institution I serve, adequate quality housing on campus for
low-income families, especially single parent and married
students is crucial and currently unavailable. Since many of
our students come from the Appalachian region of Ohio, West
Virginia and Eastern Kentucky, and are first-generation college
students, they simply cannot afford the typical rental
facilities off-campus. I applaud and support the efforts of the
Department of Housing and Urban Development to broaden the
eligibility for Federally funded low-cost housing to include
faith-based organizations and institutions. We only desire to
be able to compete on equal footing for Federal assistance with
all other eligible organizations.
I want to respond to the three specific questions asked of
this panel. Number one, the proposed regulations, if enacted,
as I understand them, would provide significant assistance. I
recommend a clear definition and statement be added for faith-
based higher education institutions such as Mount Vernon
Nazarene University.
Number two, the partnership between the Federal government
and faith-based institutions could be substantially
strengthened. In our situation, the lack of affordable housing
leads some students to choose a college or university without
the definitive and critical link between service and learning.
Number three, approving the proposed HUD rule would enable
faith-based higher education institutions to serve more low-
income individuals who yearn to become self-sufficient.
Let me offer you an illustration of one woman's desire for
self-sufficiency. Shannon, a Mount Vernon Nazarene University
student, was single with a small child living in a previously
funded, but subsequently sold HUD housing development. The
neighborhood had deteriorated and become dangerous. Shannon
wanted to move, but could not afford alternative housing. Each
day after student teaching, she picked up her child from day
care and literally prayed, ``please do not let anything happen
to me or my baby; help me survive another night.'' Shannon's
story could be repeated by other Mount Vernon Nazarene
University students. I am pleased to report today that Shannon
graduated with honors from our university and is a dedicated,
influential teacher in the Mount Vernon school district,
working with children of low-income families.
I believe passionately in faith-based higher education
institutions. In the past 35 years, the 11,000 alumni of the
institution I serve have been challenged to make a difference
in their world. Other faith-based institutions can echo our
experience. We solicit your assistance in significantly
increasing our potential for influence by approving and
strengthening the proposed HUD regulatory changes for faith-
based organizations.
Thank you.
[The prepared statement of E. LeBron Fairbanks can be found
on page 12 in the appendix.]
Mr. Green. Thank you for your testimony.
Reverend Anthony, welcome.
STATEMENT OF REVEREND WENDELL ANTHONY, PASTOR, FELLOWSHIP
CHAPEL, DETROIT, MICHIGAN
Reverend Anthony. Thank you. To the committee and to those
of my colleagues who have gathered here, let me thank you first
of all for having me here to say a word about this most
critical issue.
First of all, let me just indicate at the outset that
faith-based initiatives is the very initiative that causes us
to be churches and institutions of faith. An initiative of
faith requires a lot of work. We walk by faith, and not by
sight, particularly when the budget is short all we have is
faith, in many instances. So from the very outset, faith is the
root which causes this tree to grow.
I do want to just say, as we remember executive order
11246, which prohibits the Federal government from
discriminating against Federal employees, government
contractors and subcontractors and grantees that have
construction contracts on the basis of race, creed, religion,
color, national origin or sex, has a long and distinguished
history in preserving the equal opportunity of our nation. It
even dates back to President Franklin Delano Roosevelt and his
work with human rights activist A. Philip Randolph. As we look
at the proposed rule change presented by HUD, it would
unfortunately give religious organizations a special right to
ignore laws and the Constitution of the United States which
guarantees the freedom of religious expression, as well as
denominational preference. It is my fear that the current
language in the HUD proposed law suggests that religious
institutions may retain their independence from Federal, state
or local governments. It can be misinterpreted to suggest that
religious institutions are exempt from the non-discrimination
laws.
It is also my concern, particularly coming from an area in
our nation where we have a large community of Muslim Americans,
many who practice Islam, who are not a part of the Christian
tradition, that these laws and this new regulation can somehow
be misconstrued to allow us to discriminate against those who
do not share our particular theological view. Scriptures teach
us that God is no respecter of any persons. I am also concerned
that this rule would present a barrier to dollars that are
already reduced in the Community Development Block Grant
programs, particularly as it relates to the dissemination of
monies that go for organizations in our communities.
Further, I am concerned about the direct funding to
religious institutions that proselytize and provide religious
instruction at facilities where beneficiaries of such programs
may redeem coupons, certificates or vouchers. The direct
funding could lead to a mixture and a merger of funds from the
regular offering plate to those that come in through Federal
programs. Additionally, this carrot and stick approach--the
carrot, of course, being, one, to gain political favors and
support on the basis of financial contributions; the stick
being in auditing or eliminating from financial services of a
church or institution that in fact does not carry the political
line.
I would like to recommend to this committee, however, that
we do consider the increase of funding to faith-based
organizations that are small, that need resources, that need
financial resources, that need available technical assistance.
We created a CDC, community development corporation, to do
housing, to do education. We are in the process of building a
new church. We are in the process of doing single-family homes,
senior homes, establishing a community center and a retail
component. We created a community development corporation to do
those things. While we relish money and need support, we do not
relish the government coming into our business and calling us
to task on issues that have nothing to do with what we are
doing in terms of faith-based development.
We also believe that there is a great need to provide
funding and to restructure lending practices to small and low-
income families. They can have an appropriate credit review to
review the process of scoring, to review the process of how one
secures mortgages, because we run into that when we want to
provide housing to people who have low income. They have a
problem with getting the very housing that we want to provide
to them. So we hope and we pray that the government would not
interfere with the work of the church. The church has been
doing it for many, many years after the government
intervention. So often the government gives us a little to get
in, but not enough to continue. We believe that if we fund the
appropriate organizations, we can accomplish the strengthening
of America and its families.
[The prepared statement of Wendell Anthony can be found on
page 14 in the appendix.]
Mr. Green. [Presiding.] Thank you for your testimony.
Reverend Caldwell, welcome.
STATEMENT OF REVEREND KIRBYJON CALDWELL, PASTOR, WINDSOR
VILLAGE UNITED METHODIST CHURCH
Reverend Caldwell. Thank you, Acting Chairman Green, and to
Ranking Members Waters and Frank, and the balance of the
members of the committee. Thank you so much for inviting each
of us to be here.
Congresswoman Waters mentioned the fact that I know her
husband, and indeed her husband and I grew up in the same
'hood, if you would, affectionately known as Fitzwater, Texas--
Houston, Texas--Fitzwater, Texas. And while growing up in
Fitzwater, while I had no idea I would I would become a pastor,
if I may say, the Lord placed on my spirit, yea, even at a
young age, that more churches need to take the sanctuary to the
streets, take the sanctuary to the streets. That has really
been our approach at Windsor. We have over eight or nine
different 501(c)(3)s, which are independently managed and run,
independent from the church, one of which is a CDC. We develop
houses. We develop programs for persons with AIDS, schools, et
cetera, et cetera.
To be very honest with you, we have been doing this for
almost 17 years, and all of a sudden, abracadabra, it becomes
faith-based, complete with all the political hoopla associated
with it. I think it is unfortunate because it seems as if we
are getting substance and style confused. I am happy to hear
all the comments from the members of the committee, because it
has really enlightened me. I am not a politician. I am not a
lawyer. I am just a little pastor trying to help the people.
But to hear the program referred to as almost mandatory, as if
you have to get involved, I think is a little bit misleading.
If you do not like the policy of the faith-based deal, then do
not apply. Some folk have mentioned it is very Christian, and I
really abhor that statement that was made by the gentleman you
mentioned, Congresswoman. That was very unfortunate because
based on my interpretation, the Administration is very clear
that this is truly an ecumenical initiative, and in fact it is
even for folk with no faith. You do not have to believe in
anything or anybody, and you can still apply for funds.
I think that gets to the very core issue, which is, as I
understand it, the Administration in general, HUD in particular
wants to level the playing field so that whosoever will, if you
could, could and would come. It is HUD's desire to (A), remove
whatever regulatory or administrative barriers that may be
present; and (B), enhance or increase the capacity for building
more programs for more people on a more equitable basis.
I could go on and on and on, but I will close. I am not
real sure how much time I have left, but anything we can do to
improve the community and increase social entrepreneurship in
helping the least, the last and the lost, without crossing the
lines of the Constitution, I think we should get after it.
Again, I am not a legislator. I leave it up to this sage and
insight wisdom of those of you who are seated here how to work
that out. But please, do not deny those who are trying to make
a difference. Contrary to some popular opinion, Windsor and the
501(c)(3)s have not received a lot of money, in fact any money
from the Administration, but we want to make certain--that is
not to say we will not try to get some. But it is to say that I
think there are more smaller entities in America that could
really benefit, not just from the financial support, but from
the technical support which the faith-based initiative offers,
as I understand it, is ready, able and willing to lend.
Thank you very much.
[The prepared statement of Kirbyjon Caldwell can be found
on page 15 in the appendix.]
Mr. Green. Thank you. You may not have the wisdom of a
legislator, but I know we do not have your wisdom, and that is
why we have invited you here. We appreciate your testimony.
Ms. Feingold, welcome.
STATEMENT OF ELLEN FEINGOLD, PRESIDENT, JEWISH COMMUNITY
HOUSING FOR THE ELDERLY
Ms. Feingold. Thank you so much for inviting me. I am so
pleased to be here.
Jewish Community Housing for The Elderly has facilities
that are in both Congressman Frank's and Congressman Capuano's
district. I am sorry Congressman Capuano is not here to hear
us. We have found no obstacles for a faith-based, a faith-
committed organization in accessing Federal funds. We own and
manage over 1,000 units of housing for low-income seniors.
Their average age is over 80. Their average income is under
$10,000. Over half of them are eligible for nursing homes, but
they can stay in our buildings because of the services we are
able to access for them. We are proud of our record of
nondiscrimination, both in employment and also in the residents
that come and live in our buildings.
In addition to representing my own organization, I am also
representing the American Association of Homes and Services for
the Aging, with over 5,600 nonprofit organizations of whom 75
percent are faith-based. I am also representing the Association
of Jewish Aging Services, obviously all of whose organizations
are faith-based. We are talking about well over one million
seniors living in the housing that these faith-based
organizations are now providing with HUD money. It does not
sound like a problem that needs solving. No member organization
of either of these associations has ever complained of
obstacles on the basis of their being faith-based
organizations. We do bring an extra measure of commitment,
quality and value to what we do, but we do it on a nonsectarian
basis. Everybody is welcome.
When I was co-chair of the Commission on Affordable Housing
and Health Care Facility Needs of Seniors in the 21st Century,
the Seniors Commission heard testimony all over the country. We
heard people praising the faith-based organizations that had
created housing, but what we heard much more than that was, we
need more. Where is the money to build more? The organizations
are there. They are competent. They are committed. They are
ready. There is no money to do it with. That is what we need to
be focusing on.
Ultimately, the commission put out 50 recommendations that
might make it better, easier to create more senior housing. Not
one of them deals with the issue of obstacles to faith-based
organizations because it was never presented to us as a problem
and none of the members of the commission several of whom are
in fact running faith-based organizations, saw it as a problem.
We strongly oppose any actions that would lower the standards
in any way for the facilities that are built with Federal
funds. We oppose the use of funds to create spaces that are
sectarian. We are well able to function within our faith in the
spaces that come under our nonsectarian guidelines.
I brought with me something that I want to give to you. At
Jewish Community Housing for the Elderly, we have a community
Seder. Passover is coming. This is the Haggadah we use. For
those of you who have never been to a seder, it is a service
that recounts the Exodus. This Haggadah is in four languages--
English, Hebrew, Russian and Chinese--because the participants
in our seders, all of whom are voluntary, come in all colors,
shapes, denominations and languages. The seder is obviously
entirely funded with charitable funds, not with government
funds. The books are produced with charitable funds, not
government funds. It is one of the high points of the year. So
is Chinese New Year, which our Chinese residents celebrate as a
religious holiday. That is funded by private funds. We have no
obstacles to respecting and celebrating the diversity of
religions within our communities.
The stark issue, again, is the lack of funds. We would
build more in a heartbeat if we had more money. The 202 program
is, I believe Secretary Martinez alone has----
Mr. Green. Ms. Feingold, if you could wrap your testimony
up.
Ms. Feingold. I apologize. I just want to say that it is
your constituents who call us and call you looking for more
housing. We do not believe there is an obstacle. We do not
believe this rule will make the slightest bit of difference.
What will make a difference is more funding.
Thank you very much.
[The prepared statement of Ellen Feingold can be found on
page 16 in the appendix.]
Mr. Frank. Mr. Chairman, just briefly, I would just like to
say a the end of this, it would now be appropriate if we asked
Ms. Feingold only four questions.
Mr. Green. Okay.
[Laughter.]
Ms. Feingold. That sounds like the seder.
Mr. Green. Bishop Daniels, welcome. Good to see you again.
STATEMENT OF BISHOP SEDGWICK DANIELS, PASTOR, HOLY REDEEMER
INSTITUTIONAL CHURCH OF GOD IN CHRIST, MILWAUKEE, WISCONSIN
Bishop Daniels. Thank you. Let me also say that I spoke
with Bishop Patterson this morning, the presiding bishop of our
church, who supports the comments that I shall make at this
time.
Thank you, Mr. Acting Chairman, and distinguished members
of this august body. I am pleased to be here today to testify
to you with respect to the efforts of Holy Redeemer Church of
God in Christ and its affiliated entities and connection with
the development of efforts to improve the lives of citizens in
our city, Milwaukee, Wisconsin.
Mr. Chairman, perhaps a little background may be helpful to
you. We founded Holy Redeemer ministry 17 years ago with eight
persons, and have grown this ministry to over 5,000 persons,
representing people of every background and skill. Our
organization has more than 39 affiliated entities which are
involved in self-improvement activities such as the creation of
a 140,000 square foot youth center in a neighborhood densely
populated by low-income students; development of multiple
public-private operations; school initiatives which have
resulted in improvement of education for some of the most
economically distressed youngsters in Milwaukee. We have now
educated and are now educating more than 750 students daily,
including students at risk and other students in our schools.
The development of a health clinic has been our focus on
bringing the marvels of medicine directly to the community that
we serve through a clinic located on our campus, which is
affiliated with a faith-based organization called Covenant
Health Care--a large health care provider in Wisconsin. Our
campus is a redevelopment of a 10-acre site which was
previously distressed and in fact was vacant. We have turned
this site into a vibrant complex and campus serving literally
thousands of people each day who receive a variety of
services--meals, job training, health education and care, top-
flight elementary and adult education.
Our mission, then, is to have a 24/7 outreach to this
community. The demographic data for this community reflects
that not only are we providing services, but this has resulted
in the employment of hundreds of people. The success stories
are indeed marvelous. One of the best examples is one of our
school administrators, who through many efforts used welfare
outreach services to college, educates herself, ultimately
becoming a college graduate. And after several years of working
as a teacher, she became one of our school administrators on
our campus. In fact, President George W. Bush visited our
campus last year to get a first-hand view of the remarkable
effects we are having on people and changing lives.
The examples go on and on with respect to how we have
changed the lives of people. We have also been critically
involved in the housing initiative in our community. When we
consciously moved our campus to the economically depressed
central city area, many were surprised that we did so and
thought that we might move to a tranquil suburban environment.
But we intentionally did not do so because we really knew where
the needs were. One of the things we found was that many people
had housing needs--elderly people, people who were in
transition, people who were searching for the American
homeownership dream. We therefore, with the cooperation of the
city of Milwaukee and through the use of Federal tax credits,
developed a premier low-rise elderly housing project, which has
received many recognitions, including a special award from the
Federal Home Loan Bank Board. The facility is over-subscribed
and there is a tremendous demand for us to provide additional
facilities for seniors.
We also obtained and rehabilitated many homes in the area
where we are, for transitional needs of our people. Many of
these people have used this program as a springboard to putting
their lives back together, and they have moved on to very
productive citizenship. In connection with the local bank, we
have also instituted----
Mr. Green. Mr. Daniels, we need you to wrap up, please.
Bishop Daniels. Very good. That is a good thing to tell a
minister.
[Laughter.]
----our homeownership seminar and progressive program.
In summary, I think that it is important to know that
people that have visited our campus have noted that we have
been able to create an improved housing stock in our
neighborhood, created an environment with literally hundreds of
people from our neighborhood have meaningful life-supporting
jobs. This is the commission to which we are called, and we
hope that you through your legislative powers will recognize
that such faith-based initiatives such as ours are vital in
many communities throughout the country.
Thank you.
[The prepared statement of Sedgwick Daniels can be found on
page 18 in the appendix.]
Mr. Green. Thank you very much.
Mr. Walker, welcome.
STATEMENT OF REVEREND J. BRENT WALKER, EXECUTIVE DIRECTOR,
BAPTIST JOINT COMMITTEE, WASHINGTON, D.C.
Reverend Walker. Thank you, Mr. Chairman, and members of
the subcommittee for this opportunity to speak to you about a
matter as important as religious liberty and the separation of
church and state.
Although as the chairman mentioned, I serve as an adjunct
professor at Georgetown University Law Center, I speak today
only on behalf of the Baptist Joint Committee on Public
Affairs. The Baptist Joint Committee has always advocated a
well-balanced and sensibly centrist approach to church-state
issues. We take seriously both religion clauses in the First
Amendment--no establishment and free exercise--as essential
guarantees for our God-given religious liberty.
We appreciate the good works of religiously affiliated
nonprofits, in careful cooperation with government entities
such as HUD. But we believe that religion will be harmed, not
helped, by efforts of government to fund pervasively religious
enterprises or otherwise to advance religion. This is precisely
what the Administration is trying to do through its proposed
regulations. Government-funded religion is the wrong way to do
right. Government's attempts to level the playing field, as the
metaphor goes, usually results in religion getting leveled by
government. Religion is different and it should be treated
differently. It is treated differently in the First Amendment--
sometimes deserving special accommodation under the free
exercise clause; sometimes special or unique constraints under
the establishment clause.
We are particularly concerned with three aspects of this
proposal. One, the proposed rules open the door for government-
funded religion. It is a settled constitutional principle that
government may not fund pervasively sectarian or pervasively
religious organizations and enterprises. The proposed rules
ignore the pervasively sectarian doctrine. And even where an
organization is not pervasively religious, but only religiously
affiliated, it cannot use government funds to finance
specifically religious activities. The proposed rules try to
answer this constitutional requirement by prohibiting the funds
from being used to support, quote, inherently religious
activities, unquote. But the problem with this nebulous, novel
and ill-defined concept is that the establishment clause
prohibits activities which, while perhaps not inherently
religious, may be administered in various religious ways and
religious context in training seminars and counseling services
and other activities.
Number two, the proposed rules allow for religious
structures to be built with government funds that violate the
establishment clause, as Congressman Frank mentioned. The rules
specifically permit structures to be used for both religious
and secular purposes, as long as the funding is proportionately
reduced to equal the percentage of religious use. This approach
creates the potential for excessive entanglement between church
and state. It raises the specter of accounting problems and
logistical difficulties and burdensome auditing and
recordkeeping, and would most certainly create the need for
perpetual monitoring. The rule change on government funding of
religious structures opens a can of constitutional and
administrative worms that will be inimical to the autonomy of
religious organizations, and promote the very excessive
entanglement which the First Amendment was designed to
prohibit.
Third, the proposed rules permit discrimination on the
basis of religion in hiring in government-funded programs. Now,
we support title VII's exemption for churches, allowing them to
discriminate on the basis of religion in their employment
practices. But the proposed rules permit discrimination even in
programs substantially funded by government. While allowing
religious organizations to discriminate in the private sector
is a welcomed accommodation of religion, to subsidize religious
discrimination is arguably unconstitutional and in any case an
unconscionable advancement of religion. How odd for the
Administration to use the language of non-discrimination to
promote a policy that leads to government-funded
discrimination.
In summary then, government should not fund organizations
that are pervasively religious. Government may fund religiously
affiliated ones, organizations as you have heard that serve out
of religious motivation to be sure, but not in a way that
integrates religion into its programs, involves religious
worship or instruction, education and proselytizing, or
discriminates on the basis of religion in hiring or serving
beneficiaries. Any religious programming by these groups should
be separately offered and privately funded and voluntarily
attended. To the degree the existing HUD regulations serve
these ends, they should be retained. But to the extent the
proposed HUD regulations vary from these principles, they
should be rejected.
Thank you very much.
[The prepared statement of J. Brent Walker can be found on
page 19 in the appendix.]
Mr. Green. Mr. Walker, thank you. Thanks so much.
Mr. Kmiec, welcome.
STATEMENT OF DOUGLAS W. KMIEC, J.D. DEAN, CATHOLIC UNIVERSITY
OF AMERICA SCHOOL OF LAW, WASHINGTON, D.C.
Mr. Kmiec. Thank you, Mr. Chairman.
I am pleased to respond to the subcommittee's invitation. I
have spent most of my life teaching or writing or thinking
about constitutional questions. It was my privilege to serve as
President Reagan's head of the office of legal counsel in the
Department of Justice and to spend part of the first Bush
Administration there as well. So I will address myself mostly,
if not entirely, to those constitutional questions suggested by
other witnesses and that may be raised by the members.
Let me begin with my conclusion, and that is that these
regulations do not transgress the guarantee of freedom of
religion found in the First Amendment of the United States
Constitution. Instead, they do three things which are perfectly
consistent with constitutional case law, as well as text, and
that is first, they establish the principle of
nondiscrimination. Government funds shall neither be
distributed giving favoritism to nor discriminated against
religious organizations. Significantly, this applies to both
the Federal government and state and local governments that are
often in partnership with the Department of Housing and Urban
Development administering funds. Both are enjoined to treat
religious organizations under the same eligibility
requirements, and in my judgment not only is this fully
constitutional, this is a principle that is unassailable and
long overdue.
Second, it explicitly provides that funds supplied directly
to a faith-based organization may not be used to support
inherently religious activities such as worship, religious
instruction and proselytization. Importantly, from the
standpoint of religious freedom and nondiscrimination, the
regulations make clear that even though government funds cannot
be used for these purposes, nothing precludes a faith-based
organization from continuing inherently religious activities
from nongovernmental sources. Analogously, the regulations
ensure that faith-based organizations can retain their
independence, something which I have heard other members of the
panel speak eloquently to, allowing for example, the continued
use of a religious organizational name, as well as the
inclusion of religion in the organization's definition,
practice and expression.
Similarly, if HUD funds are provided for acquisition,
construction or rehabilitation, and these are provided for
under the regulations for structures that are either wholly
secularly or of mixed use, that government funding cannot
exceed the pro-rata secular portion. That aspect of the
regulation merits constitutional inquiry, and I know in the
question and answer period we may spend some time with it. I
think it deserves a close look.
Thirdly, no current or prospective beneficiary of a
government-funded service shall be discriminated against on the
basis of religion or religious belief. No genuine faith-based
organization would ever think about discriminating against
someone who is a beneficiary on the basis of their religious
belief. The men and women who are at this table are at this
table because they believe they were called by a higher power
to serve their fellow man in specific and very necessary ways.
They are not in the practice of turning people away, and the
HUD regulations establish that and affirm that proposition.
In summary, Mr. Chairman, the HUD regulations eliminate a
variety of constitutionally unwarranted regulations of the
past. In the past, regulations have categorically excluded
religious organizations with the demeaning terminology
``pervasively sectarian organization.'' The Supreme Court of
the United States in its most recent holdings has made clear
that the terminology ``pervasively religious or sectarian
organization'' is a demeaning one because it comes out of a
19th century hatred for religious believers and immigrants to
our country. These regulations, importantly, separate us and
put distance between that odious practice and the present day.
Thank you, Mr. Chairman. I would be happy to answer any
questions.
[The prepared statement of Douglas W. Kmiec can be found on
page 21 in the appendix]
Mr. Green. Thank you, Mr. Kmiec, for your testimony. I
appreciate it very much.
Questions--Mr. Kmiec, let me begin with you. The standards
that are in the proposed rule with respect to opening up
service provision to organizations which may be faith-based,
how does that compare to the standards that are in the existing
welfare reform law passed by the Clinton Administration? Do you
know? Can you answer that?
Mr. Kmiec. Well, I am not prepared to look at the specific
Clinton proposals, but the one thing that is true is that what
HUD has done here is follow a template that Congress has
approved before several times in the context of charitable
choice legislation. So to the extent that charitable choice
worked its way into those specific Clinton Administration
regulations, I think these are quite comparable.
Mr. Green. Thank you. I would like to go back--Reverend
Caldwell, we have had testimony from some of the other
witnesses that there are no obstacles or hindrances to faith-
based organizations or community organizations accessing
Federal funds and providing services. You started off with some
smaller organizations which have provided services. Have you
encountered obstacles? Have you seen challenges in working with
the Federal government?
Reverend Caldwell. No, sir. We have not encountered any
obstacles because we have not applied for any funds. But it has
been the experience of some of my colleagues that they have
encountered obstacles, and that is one reason I am here today.
Mr. Green. Let me ask you this, then, why is it that you
have not applied?
Reverend Caldwell. Well, my shortest and most intelligent
answer is that in the past we have not wanted to get involved
in the red tape, to be honest with you. We are not afraid or
ashamed to be audited. I think any church worth its salt ought
to be open to Mrs. Jones and Mr. Booker and the U.S.
government. But the impression is that it has been
multilayered, and we have just kind of gone it alone--period,
new paragraph. We intend to apply for funds regardless of what
happens to this particular legislation.
Excuse me, I erred. We did receive a $500,000 grant from
OCS during the Clinton Administration to help build what is
called the Power Center, where we took an old dilapidated K-
Mart building and gutted it. It now provides employment for
over 247 persons, has a $14.5 million annual economic impact
cash flow on the community. It is an amazing example of how
private enterprises and nonprofit entities can and I think must
come together to make an indelibly divine difference in the
community. But that was an application filed by our Pyramid
CDC, not by the church.
Mr. Green. When you took a look at, or when you weighed the
costs and the benefits of making application for Federal funds,
and again largely have chosen not to do so, was one of your
fears that in order to meet all the requirements and sort
through the red tape, that you would have to hire additional
people?
Reverend Caldwell. That is absolutely correct. In addition
to that, to be very honest with you, I had heard such
nightmarish stories about the process, we simply chose not to
get involved. Again, you should not go based on hearsay. But we
have so many things going on. We have nine or ten different
501(c)(3)s, 14,000-member church, half of them think they are
the pastor on any given good day, so we have a lot of dynamics
happening, and the last thing we needed to do was to allocate
an inordinate percentage of our intellectual and financial
resources to go after a grant which we may not even get.
Mr. Green. Bishop Daniels, could you relate some of Holy
Redeemer's experience in working with the Federal government in
terms of Federal funds? Have you seen red tape and obstacles?
Bishop Daniels. Oh, definitely. For instance, there are
some hurdles that we are overcoming even as I speak now. There
was an abandoned building next door where there was flight from
a manufacturing company. We wanted to turn that into, as
opposed to it becoming a drug house and loitering et cetera,
into a youth center. We were clearly told that if we were to
receive any assistance through funds, whether it is city, that
would be processed through CDBG and the State of Wisconsin and
the Federal government, that it could not and would not by any
stretch of the imagination be given to the church, and it could
not be given. There were a number of hurdles that we had to
overcome as a result of that. It was clear as we began to work
through ultimately the title of that property had to be a
separate organization altogether, to work to save the kids.
What people do not understand is at 3 o'clock, all of those
kids become our kids. It does not matter where they attend or
what they do, we were just trying to get them off the streets
and from killing one another, and getting them into
constructive programs.
Mr. Green. Thank you very much.
The gentlelady from California is recognized.
Ms. Waters. Yes, first of all let me thank all of our
ministers and heads of organizations who are here today, and
just really commend you on the programs that you already have
and the work that you have already done, long before you heard
about anything called a faith-based initiative. Let me just say
to Reverend Kirbyjon Caldwell, 17 years, and how many
nonprofits do you have over there?
Reverend Caldwell. We have nine nonprofits.
Ms. Waters. Nine nonprofits, 17 years, a CDC, and you did
it without the government.
Reverend Caldwell. So far.
Ms. Waters. So far, you have done it without the
government.
Reverend Caldwell. Yes, ma'am.
Ms. Waters. There were no obstacles to you setting up a
501(c)(3).
Reverend Caldwell. That is correct.
Ms. Waters. You can have a nonprofit corporation.
Reverend Caldwell. That is correct.
Ms. Waters. There is no obstacle to you applying for CDBG
monies in the city of Houston.
Reverend Caldwell. No obstacles locally?
Ms. Waters. Yes.
Reverend Caldwell. Not to my knowledge.
Ms. Waters. That is Federal money that we send down to the
cities for them to give out to the communities to do all these
kinds of programs--senior citizens, child care, et cetera.
There are no obstacles to you or any other religious
organization in applying for those funds under your 501(c)(3).
Is that correct?
Reverend Caldwell. None to us. I cannot speak to the other
organizations.
Ms. Waters. Well, here is the point that I am making.
Reverend Caldwell. Yes, ma'am.
Ms. Waters. I think it was Mr. Kmiec who said that it is
important to have this faith-based initiative to get rid of and
establish the principle of nondiscrimination for religion.
Title VII does that. The Constitution does that. You are not
discriminated in any way, and you are protected by Title VII
and government law. What I think has been the misunderstanding
about this faith-based initiative is this. Somebody is telling
ministers that somehow you should be able to administer these
programs without having to set up a 501(c)(3) or a separate
organization; that you can commingle it with the church; and
that you can use some of the laws that are on the books for
religious organizations that allow you to hire within the
religion in the same way when you use Federal money. That is
where the rub, the disagreement comes in.
Much of what is being described is red tape that has
nothing to do with discrimination against a religious
organization. It does not matter. When you get money from the
Federal government, you are going to go through some red tape.
Nobody is going to reach in the government's pocket and hand
anybody any money. You are going to go through some red tape.
You are going to be scrutinized, and John Ashcroft is going to
indict you if you spend the money outside of the regulations
and the laws. And that we have to make very clear to everybody,
that there will be no way even under faith-based initiative
that you will be able not to be able to account in ways that we
all would want to account. So we need to be clear about that.
There is no discrimination now against religious organizations
in competing for money.
The other thing is, does anyone here believe that there is
a new pot of money called faith-based money? If so, raise your
hand. Okay, we are clear about that. There is no new money
called faith-based money. Technical assistance that was
mentioned by Reverend Anthony, we can all agree on. We are not
against religious organizations getting money. Again, we assist
and we help people to set up CDCs and EDCs and even help to set
up nonprofit organizations in order to do that. Do we all agree
that a lot of churches could use some technical assistance in
order to set up a 501(c)(3) or EDC or CDC in order to provide
services, Reverend Anthony?
Reverend Anthony. Yes, congresswoman, we do. I come from
Detroit, and what we are doing--I am affiliated with an
organization called New Detroit, Incorporated. What is part of
our charge is to assist groups to do just that; to develop
501(c)(3)s. I also come from an area where the faith-based
initiative has been used by some in administrative offices as a
carrot and a stick approach. By that, I mean if I look at the
history of those in Michigan who have benefited from the
state's version of faith-based initiative, it has been those
who are particularly friendly to the past Administration. The
past Administration that was in office for 12 years used that
as a measure by which to access the African American community.
I am very clear about that. We are very clear about that.
I do not think you will find any of us who oppose churches
working with the government in partnership to do community
development. We have always done that. The problem is I come
from a state that has a $1.8 billion deficit, and within that
confine we are looking now at churches to make up some of the
areas where the government may not be able to provide services.
Where are we going to get the money to do that? From our
offerings, from our coffers? The problem that we run into is
that we can do CDCs. Reverend Caldwell can do CDCs, but there
are many other smaller churches and organizations that cannot.
They need the assistance. Monies need to be provided through
agencies that can assist them in terms of developing their
programs and professional staff development.
We get that all the time. There is an old African proverb
that says even the smallest deed is better than the greatest
intention. I think we may have a good intention, but what we
need is some small deeds, those deeds being money and capital
and sense.
The other concern that I have is I look at what we see
coming from many religious leaders today who are in various
denominations. As we look at what is happening in the world, I
think that it sets a precedent for some individuals to mis-use
that initiative. I do no think that the vast majority of folk
may be subject to that, but I do think that it opens up the
door for people to discriminate----
Mr. Green. I must ask you to wrap up.
Reverend Anthony. ----particularly as it relates to the
area where I come from, which has a high degree of Muslim
Americans who are not antithetical to America, but I know if
certain folk get monies, they will not be able to participate
in those programs.
Mr. Green. Thank you. The gentlelady's time has expired.
The gentleman from Massachusetts, Mr. Frank.
Mr. Frank. Mr. Kmiec, let me ask--you did not touch on the
question of employment discrimination. As you read this, would
the recipients be allowed to take the money for the secular
purpose and agree to hire only members of their own religion?
Mr. Kmiec. I agree with Congresswoman Waters that it is a
fundamental guarantee of religious organizations in our society
to be able to maintain their character by the people they hire.
Mr. Frank. So the answer is yes.
Mr. Kmiec. That is correct.
Mr. Frank. Now, so you believe that as this is constructed,
you said you agree with Congresswoman Walters. Well, a
Congresswoman named ``Walters'' might have said that. I do not
think Ms. Waters said it. The question is----
Mr. Kmiec. I believe Congresswoman Waters said quite
eloquently----
Mr. Frank. I am sorry. I only have five minutes, Mr. Kmiec.
Excuse Mr. Kmiec, I only have five minutes. I have to ask you
this. And I want to ask the other members who are in favor of
this, I am troubled, I must say, by the notion that it somehow
would erode or corrode or detract from a religious organization
engaged in secular good works, because that is obviously what
we are talking about here--that religious organizations engaged
in good works that were funded with Federal money for secular
purposes--I am troubled by the notion that it is wrong to ask
them to associate with people of other religions. That just
seems to me to be such a troubling notion. Let me ask,
beginning with Mr. Fairbanks. Why would it be a problem if you
were to do something purely secular, to hire people of other
religions?
Mr. Fairbanks. Let me say that we are involved with our
students in a variety of projects, and they are for sure not
associated with religious groups.
Mr. Frank. I have a specific question. Why would it be a
distraction to you--how would it take away from your mission if
you got money to provide drug treatment or help for the
homeless and you had to hire people of other religions? How
would that hurt?
Mr. Fairbanks. If a person would affirm their belief in
what we are intending to do with our mission, our vision, and
embrace those, then we could----
Mr. Frank. What do you mean by--you mean your general
religious mission or your specific one for which you got the
money? Let me pass on to Reverend Caldwell. Reverend Caldwell,
do you believe that if you got Federal money to do drug
treatment or youth work or any of these other things that were
secular, that it would be a problem if you had to hire people
of other religions?
Reverend Caldwell. Mr. Congressman, we work with folk of
big faith, little faith and no faith.
Mr. Frank. So you are not asking for this. In other words,
if we were to pass this without allowing discrimination in
employment, that would not be a problem for you?
Reverend Caldwell. Until I get it, I really do not know,
but I do not think so. Let me quickly say----
Mr. Frank. That is the only question I had to ask about.
Let me just ask again now to Bishop Daniels, when you set up
that youth center next door, and you had people maybe teaching
the kids to play basketball or do other things, would they have
to be only people of your religion? Would it detract from your
mission if you had to hire people without regard to their
religion?
Bishop Daniels. No, it does not detract, but we cannot even
get to that point.
Mr. Frank. I understand that. Many of us are in favor of
that. But let me ask, why do you think it is bad for religion
to have to hire people of other religions, for running the
youth center?
Bishop Daniels. I did not say it was bad.
Mr. Frank. I know you did not, but I am asking Professor
Kmiec to explain his view that it is, apparently.
Mr. Kmiec. I think the way I would approach it,
congressman, would be this. Every citizen of this country
contributes to the general fund that this body has to allocate.
We generally do not say when a taxpayer comes up----
Mr. Frank. No, you are evading my question. I am sorry. We
only have five minutes. I am asking you----
Mr. Kmiec. ----they generally do not say----
Mr. Frank. Professor, you know better. You know what the
rules are.
Mr. Kmiec. ----what religions are----
Mr. Frank. Mr. Chairman, I ask you to tell the witness to
stop the filibuster.
Mr. Green. Let's have some decorum here.
Mr. Frank. The witness is not answering the question.
Mr. Green. I believe he is attempting to answer the
question.
Mr. Frank. No, he is not.
Mr. Green. He may not be answering the way you like it.
Mr. Frank. No, he is not answering. The question is, what
is wrong in asking a religion--how does it hurt a----
Mr. Kmiec. What is wrong with it, congressman, is that you
are making religious believers into second-class citizens. We
all contribute to the general funds of the United States of
America. We all have an interest in seeing them fairly
apportioned. These individuals at this table have a special
interest in the well-being and welfare of the----
Mr. Frank. You are not answering my question.
Mr. Kmiec. I am answering your question directly----
Mr. Frank. No, you are not.
Mr. Kmiec. If you wish to use a political polemic----
Mr. Frank. You are evading the question. The question is,
how does it hurt their ability to do that if a Christian has to
hire Jews, if Jews have to hire Protestants, and Protestants
have to hire Catholics--how does that hurt them in the
performance of their mission?
Mr. Kmiec. Well, it hurts them in this sense. It
fundamentally changes who they are. Congressman Scott said it
very well in his opening remarks and questions, and I know he
has serious questions about these constitutional issues as
well. But one of the things he said very thoughtfully is that
people come to religious leaders in their community because
they trust them, because they do good, because they are the
cement of families and the things of community. These people
who are those religious leaders cannot just shed their
religious----
Mr. Frank. Excuse me, but----
Mr. Green. The gentleman's time has expired.
Mr. Scott of Georgia?
Mr. Frank. Will the gentleman yield to me for 30 seconds,
please?
Mr. Green. Mr. Scott?
Mr. Scott. Yes, I would be glad to yield.
Mr. Frank. Thank you. I just want to point out how totally
non-responsive that answer was. Of course, these are good
people. In fact, one, two said they did not have to
discriminate. You are imputing to them, frankly, something I
would not impute to them. You are telling us that for them to
be able to do their mission and remain true to their religion,
they have to say that there is something wrong with associating
with people of other religions. I find that frankly much more
anti-religious than any other criticisms I have heard, that
somehow if you are going to be a religious institution, it is
not enough to have co-religionists in your worship; it is not
enough to have co-religionists in your religious community; but
when you then decide to perform a secular function, being
forced to associate with non-believers somehow detracts. I find
that a very odd way to defend religious leaders.
I thank the gentleman for yielding.
Mr. Scott. Thank you very much. You are certainly welcome.
My concern is trying to figure out exactly why these
proposed changes are being offered. It seems to me that these
restrictions and these regulations were written into the HUD
requirements for a very important reason, and that was to
maintain that very important separation of church and state.
Now, if you could answer for me, of what value and why would we
want to remove the requirement that employment be religious
neutral? Why would we want to require that the person being
employed must be a member of that church or that organization
or that religion, when in effect this is not private money, but
all of the people's money from all of the different religions
made up in this wonderful United States? Why is that of
benefit? Why do we need to do that? Why do we need to change
this rule?
Mr. Kmiec. I do not really think we are changing the rule,
in fairness, congressman. I think what we are doing is applying
the principle of Title VII that as very carefully, as
Congressman Waters pointed out before, navigated the two
provisions that are in the Constitution. We have to remember
that the Constitution does not have a separation of church and
state. It has two simultaneous guarantees of free exercise of
belief and practice, as well as, as the reverend said before
me, protection against an establishment of religion. So my
direct answer to your question, congressman, would be this. We
do not ask other citizens to shed their most fundamental
beliefs to participate in Federal programs. These citizens you
have before you raise money from private sources as well as
public sources. They ought to have both available to them to do
good work. They should not have to fundamentally go through a
metamorphosis and to deny who they are in order to qualify.
Mr. Scott. But aren't they able to do that now? For
example, the rule that we are trying to remove states this. It
says a primarily religious organization receiving funds under
the program will not discriminate against any employee or
applicant for employment under the program on the basis of
religion, and will not limit employment or give preference in
employment to persons on the basis of religion. It does not say
you cannot do one or the other.
It seems to me that this is a very carefully worded, fair
placement in the rules to allow you to do exactly what you want
to do, but it also prevents you from discriminating. That is
the rub here.
Mr. Kmiec. I certainly agree with regard to any of the
other prohibited categories that we find, for example, in
executive order 11246, and nothing that HUD has proposed here
would invite any form of racial discrimination, national origin
discrimination and so forth. But we have a special
constitutional protection for freedom of belief. I think what
HUD's regulations very thoughtfully are trying to do is to say,
in regard to that special protection, we are saying to these
people they do not have to change their character.
Congressman Waters, again, asked one of the witnesses if he
had ever applied for a Community Development Block Grant. The
fact of the matter is, as I understand it, the statutes that
frame that program have a specific provision in it that say
recipients, contractors thereunder, will not discriminate on
the basis or draw distinctions on the basis of religion. Well,
if the reverend wanted to accept those monies--he indicated
that he never had--it would fundamentally change the nature of
the organization that he represents.
Mr. Scott. Let me ask this, if I may, Mr. Chairman, what
are some of the problems that you are experiencing now that
requires us to mandate these changes? To my way of reading
this, it clearly would remove----
Mr. Green. The gentleman's time has expired.
Mr. Scott. Ten seconds please--a much needed protection
against discrimination. I cannot get an answer to why we are
doing this. If we could get some answers, if we could get some
reasons, if we could get some evidence that showed this is what
we are trying to get to, to remove----
Mr. Green. The gentleman's has expired.
The gentleman from North Carolina, Mr. Watt, is recognized
for five minutes.
Mr. Watt. Thank you, Mr. Chairman.
I am going to try assiduously to follow my wife's lesson.
Mr. Kmiec. I already violated that.
[Laughter.]
Mr. Watt. No, no. If you would just stay out of this, I
think I can do it a lot easier.
[Laughter.]
Because I think I see everybody else on this panel kind of
moving away from you. You have marginalized yourself so much
that I cannot imagine that there is anybody else on this panel
that agrees with what you say. If there is, I am going to give
them a chance to tell me that, but I am going to do it without
getting stressed out and aggravated.
Mr. Kmiec. Thank you for that vote of confidence.
Mr. Watt. Let me just pose this simple hypothetical. You
have an after school program that the Federal government is
trying to teach kids to read better. And the most qualified
teacher to teach the child to read happens to be a person who
is not affiliated with your denomination. You have somebody in
your denomination, your church, your congregation that, if you
just look at him, somebody outside your congregation is better
qualified to teach that course--teach the child to read. Is
there anybody on this panel other than Mr. Kmiec who believes
that you ought to be allowed to discriminate against that
better qualified teacher because they are not a member of your
denomination or your congregation? Anybody else on this panel
take that position?
Reverend Walker. Assuming there is government funding.
Mr. Watt. Assuming government funding, yes.
Reverend Walker. If they are living off the collection
plate, certainly Title VII----
Mr. Watt. Right, right. Title VII applies to you in your
religious activities. You know, you are exempt. You obviously
are not going to hire a Jewish rabbi to preach at a Baptist
Church. That is what that was designed to do.
Well, I mean, not on an ongoing basis. You invite him in as
a guest minister, but I just want to know, is there anybody on
this panel who thinks you ought to be able to discriminate
against the most qualified person to teach that after school
program.
Bishop Daniels. Could I just respond?
Mr. Watt. Yes, sir.
Bishop Daniels. I think that if you just contain it to the
question of the most qualified person to teach is just one
thing. But there is a whole other dynamic in faith-based in the
real world, and that is very possibly the person that also
teaches may also have to be the person that will have to open
the door and close the door, and take care of the property and
answer to. So there are a lot of components that may be
included in that, rather than just that one----
Mr. Watt. So basically what you are saying is you would
redefine the job and maybe make it more inclusive, so that the
person that you were interviewing may not be the most qualified
person after you added all that criteria. I understand that. I
mean, I am not trying to get you around that. But there is
something that Mr. Kmiec said that I just fundamentally
disagree with. This thing--shedding their fundamental beliefs--
I mean, we quit allowing people who had racist views to carry
out their fundamental beliefs. I mean, it is illegal. Do you
understand what I am saying?
Mr. Green. The gentleman's time has expired.
The chair now recognizes the gentleman from Alabama, Mr.
Davis, for five minutes.
Mr. Davis. Thank you, Mr. Chairman.
Let me pick up on the hypothetical from Mr. Watt. Let me go
to his Catholic day care school that he talked about. Does
anyone on this panel believe that if, let's say hypothetically,
a Catholic day care school accepted money from the Federal
government, but if say a Southern Baptist family from Alabama
moved into the neighborhood and the child from the Southern
Baptist family wanted to go to that Catholic day care center,
does anybody think that if that institution was getting public
money they ought to be able to keep that child out?
Okay. As we say in the courtroom, let the record reflect
nobody agreed with that. So given that, now let's expand that
hypothetical. Let's say that a whole bunch of Southern Baptists
or a whole bunch of Jewish children moved into the neighborhood
around a Catholic day care center. And let's say that we got to
the point where the only folk in the Catholic day care center
were Southern Baptists and Jews. Does anybody on the panel
think that if that Catholic day care center was getting public
money, they ought to be able to throw out the Baptists and the
Jews. Does anybody think that?
Okay. Let the record reflect nobody thinks that. So given
that, if it does not fundamentally change, Mr. Kmiec, the
nature of an institution if a Catholic day care center ends up
servicing only Jews and Southern Baptists, how does it change
their character if they end up hiring Jews and Southern
Baptists?
Mr. Kmiec. Universities and day care centers and religious
organizations create themselves because they have a body of
belief that they want to propagate. They think it is very
important. I suspect that if there is a Catholic day care
center, as there are in many urban inner-city areas in this
country, that their populations frequently are non-Catholic; it
has turned out that the private schools that have stayed in the
inner-city areas in this country have been the Catholic
schools, in many cases, and oftentimes their students do not
share Catholic belief. But the fact of the matter is that the
priests and the brothers and the sisters who stay involved in
that teaching, stay involved in that teaching because they
believe their faith has something specific to say, even if
there are nonbelievers in front of them. But they would not
stay in the business if you told them that they could not share
their religious beliefs with those people who come to them,
whatever the religious perspectives of the students may be.
Mr. Davis. Let me interrupt you just to make this point and
move to my next question. I think what makes your position
collapse when it relates to discrimination is a very basic
point. If it does not change the character of an institution to
make it serve people of a different faith, I find it impossible
to see how the character of the institution is somehow
contaminated if it has to absorb people of a different faith.
Because you cannot make the Jews and Southern Baptists in that
school believe whatever is being taught to them, but you still
have to serve them. So if that, again, does not contaminate, I
do not see why employment does.
Let me move to a totally separate point in the limited time
that I have. What really bothers me about a lot of this is a
very simple conundrum that I think a lot of the government
would be faced with. As all of you know, it is difficult
getting Federal grants under the best of circumstances. Now, if
somebody does not get a Federal grant right now, they might
think it is because they did not fill out their paperwork; they
might think it is because of any number of reasons. If we move
full-scale in the direction of these faith-based initiatives,
if a given church does not get a grant, my concern is that that
church will think that it somehow did not fit the state's test
for religions, or that that church will think, well, we were
not religious enough or holy enough. That perception that I
think would exist with a lot of churches is, in my mind, one of
the most pernicious things about this movement. Can any of you
address that concern--the fact that even if we are not
purporting to do it, we are possibly creating a perception that
some churches are good enough and some churches are not; that
some churches serve the state's mission and some churches do
not. Can anybody address that issue?
Reverend Anthony. Congressman, I hear what you are saying,
but I would come down in another perspective. I do not think it
would be so much that we would think we are not holy enough,
because politicians cannot determine our spirituality. I would
simply say that many of us might think we are not political
enough to the degree that the monies that have been allocated
are connected to those who are friendly to those in
Administrations that are doing the allocating. As for me and my
house, we do have people there who are not of our faith and of
our tradition. I think in many cases, churches may not even
want folks who are members of the church because when it comes
time to firing folk, you have to deal with their whole
families. It creates a problem.
And often we share congregations and denominations with
different preachers and that sort of thing, but in terms of on
Sunday morning, I am preaching Jesus. So you know that when you
come. Now, on Monday, Tuesday, Wednesday, Thursday, Friday and
Saturday in terms of the church at work, that is through our
community outreach center, that is through our housing program,
whosoever will will come on Sunday morning, but you know what
you are getting when you come there. So I think that the real
rub is that may be those who take advantage of the fact that if
you do not come down theologically the way I come, then you
cannot play in the game. And that is where the problem is.
Mr. Green. The gentleman's time has expired.
I thank all the witnesses for their testimony today, and
for their answering questions. The chair notes that some
members may have additional questions for this panel that they
may wish to submit in writing. Without objection, the hearing
record will remain open for 30 days for members to submit
written questions to these witnesses and to place their
responses in the record.
Mr. Frank. Mr. Chairman, also we have some statements from
others that we would like to place in the record as well.
Mr. Green. Without objection.
The hearing is adjourned.
[Whereupon, at 4:55 p.m., the subcommittee was adjourned.]
STRENGTHENING AMERICA'S COMMUNITIES:
EXAMINING THE IMPACT OF FAITH-BASED
HOUSING PARTNERSHIPS--DAY 2
----------
Monday, April 28, 2003
House of Representatives,
Subcommittee on Housing and
Community Opportunity,
Committee on Financial Services,
Washington, D.C.
The subcommittee met, pursuant to call, at 4:00 p.m., in
Room 2220, Rayburn House Office Building, Hon. Robert W. Ney
[chairman of the subcommittee] presiding.
Present: Representatives Ney, Renzi, Watt and Frank (ex
officio).
Chairman Ney. Today the subcommittee will hold a second day
of hearings to examine the effect of faith-based housing
partnerships, specifically HUD's January 6th, 2003, proposed
regulation that would provide more opportunities for faith-
based organizations to address the needs of the poor and also
distressed neighborhoods.
Although enacted into law in four previous statutes,
charitable choice has been the subject of persistent discussion
and debate. President Bush's initiative in the 107th Congress
to rally the armies of compassion elevated the debate into the
national spotlight. As the President stated when he announced
his faith-based initiative, the government has a solemn
responsibility to help the needs of poor Americans in
distressed neighborhoods but does not have a monopoly on
compassion.
Earlier this month, the Senate passed Senate Bill 476,
which is aimed at making it easier for religious groups to
compete for Federal grants and be responsive to the needs of
their communities. The measure calls for $12.7 billion over 10
years in new tax incentives for charitable giving and
additional spending for social services.
This legislative action follows in the wake of a series of
initiatives announced by the Bush Administration which
culminated in HUD's early January proposed rules change. The
Department's proposed regulation would accomplish the
following: A, permit the consideration of religion in
employment practices by religious organizations; B, terminate
the general requirement that provided services be free from
religious influence; and, C, prohibit government consideration
of applicant's religion when distributing funds.
When it comes to lessening the effects of poverty in
addressing the needs of those who are suffering, some of the
most creative and passionate volunteers are affiliated with
faith-based organizations. It should come as no surprise that
faith-based organizations have the experience and knowledge to
meet the social needs of their communities in a more
compassionate manner than the Federal Government itself in
Washington. They know their communities, they know the families
that need assistance, and they know what housing and services
are available in their neighborhoods.
In an effort to craft more bipartisan legislation, the Bush
Administration agreed to the Senate's removal to any mention of
religion in the bill.
I appreciate the Administration's willingness to work with
Congress and look forward to continued cooperation as we
consider this important endeavor.
I would also like to thank the members of the subcommittee
for their commitment and passion towards this issue. No matter
where they are at on the issue, they have been obviously
passionate and committed, as well as witnesses, you today, all
of you for your time in coming here.
With us today to discuss the Administration's view is Mr.
John Weicher, Assistant Secretary for Housing, an FHA
Commissioner at HUD, also more famously known as a former Ohio
State University professor; as well as HUD's Chief of Staff,
Frank Jimenez; and Anthony Streeter, the Director of Faith-
Based Programs for HUD.
Welcome, gentlemen. We look forward to your testimony
today.
I would like to recognize the gentleman from Massachusetts,
Mr. Frank.
Mr. Frank. Thank you, Mr. Chairman. I appreciate your
calling this hearing. There was a misunderstanding as to
whether or not we had wanted HUD to testify in the first round
of this, and I appreciate the agreement of everyone to move
forward today.
I would say that the fact that there aren't more members
here is not a sign of lack of interest. It is a sign of a lack
of roll call votes on the floor of the House. Members make
plans, sometimes in advance. This hearing came afterwards.
I am glad to be joined by my colleague from North Carolina.
I appreciate the Chairman making a point of being here. Trying
to fit hearings in is tough,and I wish this didn't have to be
on a day when there weren't votes, but I have no complaint
about that. I had agreed to it, because it is hard to fit them
in. I appreciate having this much.
A couple of points, and I will be also outlining some of
the questions I hope you will answer.
First, I want to stipulate that we agree that having faith-
based groups involved in the provision of services is very
important. The position of many of us is that that has been
going on.
I will be submitting for the record, and I ask unanimous
consent, Mr. Chairman----
Chairman Ney. Without objection.
Mr. Frank. ----to put in a couple of statements, one of
which I think is quite relevant, from the National Community
Development Association, the people who administer at the local
level the CDBG programs. They make the point that there are in
fact now literally thousands of faith-based groups across the
country that do participate through CDBG.
The question is not whether or not faith-based groups
participate.
[The following information can be found on page 131 in the
appendix.]
Mr. Frank. At our last hearing we also had people from the
American Association of Homes and Services for the Aging, a
majority of whom are religious-based.
And I was just invited, and couldn't make it because of
scheduling, to an event honoring Monsignor Michael Groden who
heads the Archdiocese Office on Housing in Boston.. They have
been a superb user of Federal housing programs and have helped
build a great deal of housing. This is the official archdiocese
office.
So that is not the question. The question is, for many of
us, do religious groups, to be able to participate, need to be
able to discriminate with those Federal funds against
nonmembers of their religion? That is a very critical question.
Another question has come up with regard specifically to
the HUD rule, and that is the feasibility and advisability and
maybe constitutionality of the commingling of funds, and that
is one the things that I want to address here.
We are told that this program, as the President has
announced it, assumes that people could get money and build a
building that would be partly for religious purposes and partly
for nonreligious purposes; and the amount that the building can
be used in one way or the other would depend on the amount of
money being put in.
Now, one question I have is, is that physical or temporal?
That is, since some religious institutions only have worship 1
day a week, maybe 2 or 3 days a week, does that mean that you
could take a building and build it, and if you prayed in it 1
day a week, then you could use the whole building 6 days a week
for other purposes? Or is it a physical separation?
Another question is, how do we enforce some of these rules
with regard to Community Development Block Grant entitlement
communities? Frankly, some people have said that the Federal
Government will be careful with the religious groups that it
deals with, and that it won't deal with groups that might be
problematic. But under the Community Development Block Grant I
assume I understand correctly that an entitlement city under
this rule could take the money and give it to any religious
institution it wanted to. Does that mean that the Church of
Scientology, the Nation of Islam and others would be eligible
for the money and could then hire only its own members?
Finally, I was pleased to see Secretary Martinez say at a
recent hearing here, actually, on the down payment assistance
program, that he did not think that we were abridging anybody's
civil rights. Well, I have some questions about that. We have
an Executive Order, 11246, that goes back to Franklin Roosevelt
and A. Philip Randolph that has been interpreted by people as
applying to the Community Development Block Grant program, and
the Executive Order here says it no longer does.
We also have this question: There is language in here that
says the recipients will be independent from State and local
governments. Does this purport to preempt or to say that State
and local laws, we don't abide by them?
And then we have this issue: Congress could, by statute,
preempt State and local laws. But is the Administration
contending that the Executive Order--that the President, by
himself, can affect the binding nature of State and local laws?
If we have State and local laws through which a grantee
would ordinarily be subject, is it the position of the
Administration that this Executive Order diminishes the force
of those State and local laws? Because I think we run then into
serious constitutional issues.
So those are the questions that I will be returning to.
Thank you, Mr. Chairman.
Chairman Ney. Thank you.
Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman.
I think every single one of the questions that my colleague
from Massachusetts, Mr. Frank, has raised are important issues;
and I certainly subscribe to them. But the ones I probably have
the most serious concerns about have to do with the ability of
religious organizations to discriminate in their employment
practices and whether the effect of allowing them to
discriminate on the basis of religion may, in effect, be a
substitute for allowing them to discriminate on the basis of
race.
In my part of the country, 11 o'clock on Sunday morning
unfortunately is still the most segregated hour in America; and
if you say to particular religions that--or churches, for that
matter, even within the same religion, that in the conduct of
your nonprofit governmental function you have the capacity to
discriminate on the basis of religion, the effect of that is to
be saying to them that you have the ability to discriminate on
the basis of race.
I personally and the people that I represent and the people
that have marched and fought and struggled against that kind of
discrimination for years and years and years cannot abide that
result. It is that simple for me.
I am not an opponent of faith-based initiatives. In the 22
years of legal practice that I had before I was elected to
Congress in 1992, I was probably regarded, certainly within the
State of North Carolina, perhaps nationally, as one of the
lawyers who did more religious representation of institutions,
church litigation, church reconciliation--you name it, I did a
little bit of it. There are still institutions throughout my
Congressional District--housing developments, nonprofit
developments, senior citizen developments, health care
developments--all of which originated with a 501(c)(3)
organization that emanated from a church.
It is not something that I am alien to. I think it is
absolutely important and necessary. But in none of those
situations did they have the capacity through their 501(c)(3)
organization to discriminate, either on the basis of religion
or race.
I just think--we have taken this faith-based initiative and
made it--and it has become a hot button needlessly, because the
capacity was already there to do everything that one could do
that a religious-based organization through a 501(c)(3) could
do except discriminate and accept commingled funds.
Those are the two components of this that I think are
unnecessary and unwise and possibly unconstitutional, and I
don't know why we have even got to get there to accomplish the
governmental purpose that we have set out to accomplish,
because we have been accomplishing it for all of these years.
So I am concerned about that. I appreciate the chairman
giving me the opportunity to make an opening statement, and I
will be asking questions to try to clarify these gentlemen's
position on that and HUD's position on that and, presumptively,
this Administration's position on that.
Thank you.
Chairman Ney. Thank the gentleman.
We have also been joined by the gentleman from Arizona, Mr.
Renzi.
I want to again thank all of the members for coming here
today to have the hearing.
If there is no further request for statements, we will
begin with Mr. Weicher. Welcome.
STATEMENT OF JOHN C. WEICHER, ASSISTANT SECRETARY FOR HOUSING,
HUD, ACCOMPANIED BY FRANK R. JIMENEZ, CHIEF OF STAFF, OFFICE OF
THE SECRETARY, HUD, AND RYAN STREETER, DIRECTOR, CENTER FOR
FAITH-BASED AND COMMUNITY INITIATIVES, HUD
Mr. Weicher. Thank you, Mr. Chairman, Mr. Frank, Mr. Watt,
Mr. Renzi, for the opportunity to join you this afternoon to
discuss this major initiative of President Bush and Secretary
Martinez. Because of our long history of partnering with faith-
based and community organizations to provide housing and other
important services, the initiative is especially relevant to
HUD's work. I am here on behalf of the Department to present
our views on the role of faith-based organizations.
With me are Ryan Streeter, Director of the HUD Center for
Faith-Based and Community Initiatives, and HUD Chief of Staff
Frank Jimenez, an alumnus of the University of Miami.
With the committee's permission----
Chairman Ney. Is that Florida or Ohio?
Mr. Weicher. Wrong one, sir.
Chairman Ney. Well, we beat them.
Mr. Weicher. With the committee's permission, I will be
referring many questions to them as the principal persons with
the most detailed knowledge on this subject in the Department.
The Administration's goals are clear and achievable: to
provide the best possible quality in government-funded service;
to support the essential work of all charities, whether secular
or religious, regardless of their size; and to ensure a level
playing field for all groups and organizations that are working
to transform lives.
These community caretakers fulfill a critical need in this
country. As President Bush said in October of last year, an
America without faith-based organizations caring for people in
need is an America without hope.
One of the President's first official acts was to sign
Executive Order 13199, which created the White House Office of
Faith-Based and Community Initiatives. He directed the Office
to lead a determined attack on need by strengthening and
expanding the role of faith-based and community organizations
in addressing the Nation's social problems. The Office reaches
into every community of need, while giving special attention to
homeless individuals, prisoners, at-risk youth, addicts,
impoverished senior citizens and families moving from welfare
to work.
Through Executive Order 13198, the President also created
Centers for Faith-Based and Community Initiatives in several
Federal agencies, including HUD. By order of the President,
these agencies have conducted extensive reviews of regulations
to identify barriers to participation by faith-based and other
community organizations in our programs.
The HUD Center coordinates the work of the Department as we
seek to eliminate these barriers so that faith-based and other
community groups can compete for Federal funds on an equal
footing with other charities.
We have discovered a number of common obstacles, beginning
with a prevailing perception among Federal officials that
collaboration with religious organizations is legally suspect.
Also, some programs essentially bar religious organizations
from applying for funding. For instance, HOME funds may not be
granted to religious organizations, quote, ``for any activity
including secular activities.''
Also, there are inappropriate and extensive restrictions on
religious activities, creating another barrier that restricts
faith-based organizations from receiving HUD funding. I discuss
some examples in my prepared statement.
Both President Bush and Secretary Martinez are working to
remove these barriers.
The President took decisive action when he signed Executive
Order 13279 on December 12th of last year. The order sets out
clear principles ensuring that all eligible social service
organizations are able to compete on an equal footing for
Federal financial assistance. Under the order, Federal programs
must be implemented in such a way that they do not violate the
establishment clause and the free exercise clause of the first
amendment to the Constitution.
HUD is actively implementing the order to ensure that our
policies and programs create a level playing field for faith-
based organizations.
As a first step, Secretary Martinez is actively encouraging
the participation of grassroots organizations in all grant
applications. These organizations touch many lives on the local
level, yet are frequently overshadowed in the grant-making
process by their larger and more visible cousins.
Our SuperNOFA for 2003 clearly states that these faith-
based and other community organizations are eligible to apply.
We are conducting Webcasts specifically designed to educate
these providers about the SuperNOFA and the application
process. We have installed a toll-free telephone number to help
them understand the application process, and we continue to
make grant applications easier for potential new partners to
understand.
Education is key to helping faith-based and other community
organizations successfully navigate the grant-making process.
To ensure that this message is heard, we have appointed faith-
based and community liaisons in each of HUD's 10 regional
offices and 81 field offices. Their job is to reach out to
faith-based and other community groups that lack experience in
working with HUD.
HUD is coupling educational outreach with administrative
reforms that are removing the barriers to effective
partnerships with America's community of faith.
We have reviewed each of HUD's major programs to determine
the degree to which they comply with the requirements of
Executive Order 13279.
To tie these efforts together, HUD issued a proposed rule
on January 6th of this year that will revise our regulations
for eight programs and remove unwarranted regulatory barriers
to the equal participation of faith-based organizations. The
intent of the proposed rule is to ensure that HUD programs are
open to all qualified organizations, regardless of their
religious character. The rule would also clearly establish the
proper uses of grant funds.
The public comment period for the proposed rule closed
March 6th. We are in the process of carefully reviewing the
comments we have received.
No matter how big or small the organization, no matter its
level of experience in competing for Federal grants, no matter
its religious affiliation or secular nature, HUD wants every
potential partner to have the opportunity to compete for
Federal resources. If a faith-based or other community
organization wants to work with us, and if they can do the job,
then we will welcome them with open arms and do everything we
can to help them succeed in their communities. In this way, we
will provide the best possible service to those who suffer in
poverty and despair; and we will help to expand society's
capacity to respond with compassion to human need.
Thank you, Mr. Chairman.
Chairman Ney. I want to thank the gentleman for his
testimony. The other two gentlemen are available if the members
have questions of them.
[The prepared statement of John Weicher can be found on
page 39 in the appendix.]
Chairman Ney. My questions are going to be centered on the
process. Because HUD will be one of the first, obviously, of
the agencies to be coming out with rules. So what will be the
process in order to finalize this rule?
Mr. Weicher. It is the normal rulemaking process, Mr.
Chairman.
As I mentioned, we have received comments on the rule. The
comment period closed a little less than 2 months ago. We are
required to review the comments to consider how we might modify
the rule in light of the comments; and I might say that in my
experience at HUD there is--any proposed rule is going to be
revised in final if there are comments. That is just the norm.
Chairman Ney. So you would expect some changes?
Mr. Weicher. I would, because we always wind up having
changes.
Then we will--the final rule--we will draft the final rule,
and the preamble to the final rule will explain how we reacted
to each of the major kinds of comments we received in the
comment period.
That rule is then reviewed by OMB. The formal review period
for OMB is 90 days, and after their approval it is submitted to
the Federal Register and becomes final.
Chairman Ney. Do you have any anticipated guesstimate of
when it will be finalized?
Mr. Weicher. No, Mr. Chairman. I can't really give you an
estimate on that. We certainly will be moving on it as
expeditiously as we can, but I can't really give you a date on
it.
Chairman Ney. Thank you.
Mr. Frank.
Mr. Frank. Mr. Weicher, I know this is not your primary
area of responsibility. I appreciate that we have a group that
includes it.
Under the Community Development Block Grant statute, as it
now exists, Section 109, states: No person in the U.S. shall,
on the ground of race, color, national origin, religion or sex,
be excluded from participation in, be denied the benefits of,
CDBG.'' Now that is the statute.
As I read the Executive Order with CDBG, it says that you
cannot be denied the benefit of a program, but it leaves out
employment. Is it the Administration's intention to allow
grantees to discriminate based on religion under the CDBG
program, that is, to decline to hire someone not of their
religion, if they choose to?
Mr. Weicher. Mr. Frank, with your permission, I will refer
that question to Mr. Jimenez.
Mr. Jimenez. Thank you, Mr. Congressman. We are actually
grateful for this opportunity----
Mr. Frank. We have 5 minutes. So what is the specific
answer?
Mr. Jimenez. The answer is no. Nothing in the proposed
regulation or in the Executive Order attempts to override the
CDBG statute on the point of religious hiring.
Mr. Frank. Okay. So under the CDBG program, recipients
could not discriminate in hiring based on religion, correct?
Mr. Jimenez. That is correct. That is because Congress has
passed a more specific statute.
Mr. Frank. Right. But in every other HUD program you could?
Mr. Jimenez. It is my understanding that there is one other
specific statute governing the HOME program where Congress has
in that specific statute, as with CDBG, revoked the freedom
that it gave religious organizations in Title VII, the freedom
to take religion into account when hiring.
Mr. Frank. So the position of HUD then is that you
recognize that where there is a statutory requirement that
there be no discrimination based on religion, then there cannot
be under this Executive Order, but in every other HUD program
you could discriminate based on religion as a grantee?
Mr. Jimenez. Yes, sir. This proposed rule covers six
other----
Mr. Frank. So the answer is yes.
Secondly, with regard to preemption or diminution of State
and local laws, what--there is language in here--it doesn't say
specifically is that they don't apply. It says they will retain
their independence from State and local laws. I must say that
as we debated that, as I recall, a couple of years ago on the
floor of the House and in committee the general understanding
was that that probably meant that they wouldn't have to comply
with them.
What is the effect? If there is a State or local law
requiring nondiscrimination based on sexual orientation or
marital status or religion, does that apply or not apply?
Mr. Jimenez. Neither the proposed regulation nor the
Executive Order, as you indicated, specifically addresses the
issue of preemption.
Mr. Frank. That is what I am asking you now. What do you
think it means? How are you guys going to interpret it?
Mr. Jimenez. It is the Administration's position that--
first of all, preemption questions are highly unlikely to arise
because----
Mr. Frank. They just did. Excuse me. I hate to contradict
you. I just raised it.
Mr. Jimenez. In the real world outside of Congress.
Mr. Frank. Let me just say that you are wrong. We have had
this with regard to San Francisco. We have had it with regard
to New York City. The notion that there won't be some conflict
between local laws and Federal policy--in fact, we had a debate
on the floor of the House about whether or not we would change
the law because of a domestic partnership issue involving San
Francisco. I think it was under some Federal program.
So I need to know the answer. What is your answer?
Mr. Jimenez. I believe you are correct. They will arise
from time to time, just not regularly. But the answer is that
preemption questions are to be decided be the courts on a case-
by-case basis.
Mr. Frank. They won't be decided by the courts unless
someone gets them into the courts.
What is the Administration's position? You say the
Administration is not going to take a position?
Mr. Jimenez. If a State or local ordinance specifically
targets faith-based organizations----
Mr. Frank. Mr. Jimenez, stop beating around the bush. You
know better. If you don't want to answer the question, tell me.
You are not here under subpoena. You can refuse to answer the
question. But let's not waste time.
We are not talking, as you know, about laws that
specifically target religious groups. We are talking about an
antidiscrimination law of general applicability at the State or
local level that a religious organization may feel impinges on
it. Is it the Administration's position that they cannot abide
by that because of the language here about their independence
from State and local governments?
Mr. Jimenez. Neither the proposed regulation nor the
Executive Order take a position on that question.
Mr. Frank. So the Administration has no position on it?
Mr. Jimenez. No, sir. Not at this time.
Mr. Frank. Let me ask Mr. Weicher. If I am a Mayor of a
city, I ask HUD: What does it mean? Or if I ask the general
counsel, what would you tell me?
Mr. Weicher. Mr. Frank, it will be--when the issue is
raised, it would be addressed by the Department and by the
Administration. It would not be addressed by my office, of
course, but it would be addressed.
Mr. Frank. You are here as HUD's representative.
Mr. Weicher. Yes. But, as you know, I am not a lawyer.
Mr. Frank. That is very disappointing. Let me give you the
answer I don't think you want to give. The answer is, yes, you
want it to be preempted, but you are a little bit unclear about
the ability to preempt a State law by Executive Order. I must
say, when this arose in the context of the statute, it was
clear that that same language was intended to be preemptive.
And, because you are now dealing with a situation where you
can't preempt you are going to duck the question.
But I people ought to be clear that that is the--that was
the intention, that is essentially what you have in mind.
Mr. Jimenez. Sir, if it were specifically intended to be
preemptive, there would have been language to that effect.
Mr. Frank. No, because if you got too explicit you could
run into some kinds of problems. It was specifically intended
to be preemptive. But let me ask you, as a matter of policy, do
you think it should or shouldn't be?
Mr. Jimenez. My personal opinion, I believe----
Mr. Frank. No, not your personal opinion, HUD, the official
Administration position. You are not here personally. You are
here as a representative of the Administration.
Mr. Jimenez. As I said earlier, each case would have to be
determined on the facts of each specific case. So we would make
that determination on a case-by-case basis. We would look at
the local or State ordinance in question, we would look at the
terminology, the intended effect, the scope of the ordinance or
the law, and then apply the law as we understand it at that
time. But we don't see this rule or the Executive Order as
having a blanket preemptive effect one way or the other.
Chairman Ney. The time of the gentleman has expired.
Mr. Renzi.
Mr. Frank. It is a waste of time. Go ahead.
Mr. Renzi. Thank you.
Thank you all for your testimony.
Maybe following up a little bit with the ranking member, we
have got 501(c)(3) organizations out there who currently, under
Title VII, are allowed to hire based upon religious
preferences. But when they receive the Federal moneys they
can't deny services, they can't deny providing their best
efforts to any organization, so they cannot discriminate based
on religion; is that correct?
Mr. Jimenez. The proposed regulation makes very clear that,
for all eight of the grant programs covered by the regulation,
the recipient of the funds cannot take religion into account
when determining who receives their services. So beneficiaries
must have access to that organization's services regardless of
religious belief or practice.
Mr. Renzi. So we are not going to discriminate on how the
Federal monies are used. We are going to set up a law that
allows them to use the money. Is there any oversight then that
follows up a year or 2 years from now? Is there any kind of
Federal accounting that says, okay, not only are we going to
say you can't do that but we are going to come back later and
make sure that you are not doing that?
Mr. Jimenez. The purpose and the intent of the regulation
is to place faith-based organizations on an equal footing with
secular organizations. HUD intends to treat faith-based
organizations in the very same way that it treats secular
organizations. That means that all grant recipients, secular
and faith-based alike, will be required to sign general
assurances of compliance with all applicable laws and
regulations; and then, in addition, there will be the periodic
compliance review that HUD performs on all grant recipients,
not just secular or faith-based.
Mr. Renzi. So you will actually be able to know that up
front, provide the language that says you can't do this, you
are going to be able to do the oversight and watch how the
monies are spent?
Mr. Jimenez. Yes, sir.
Mr. Renzi. So there really is no threat of discrimination
here, particularly if we have that oversight feature?
Mr. Jimenez. Not at all, sir.
Mr. Renzi. Let me move to a question that I had. I was
really privileged before I came to Congress to insure 1,700
non-profit organizations across the United States, insure more
crisis centers for domestic violence against battered, abused
women and children than any other insurance agent in the
country; and I learned a lot from it.
When I would go to the conventions, in particular one in
Seattle one year where the domestic violence center leaders
were there, I saw a split as to whether or not there should be
a reliance on Federal funding, nonprofit organizations getting
on the Federal dole, maybe at times losing some of their--or
losing, maybe not spending as much time or strength of effort
in building their donor base, which is a lot of, I believe, if
I am right, a lot of where these nonprofit organizations get
their revenues from.
Is it--what is your feeling on--any of the panel--on
setting up a Federal dole or setting up a Federal pipeline to
help these organizations? Are there unintended consequences
that they have become too reliant?
Mr. Streeter. That is really a decision that each of those
organizations needs to make for itself. I think, for our
purposes here, the interest we have is in--as Mr. Jimenez said,
leveling the playing field for faith-based organizations.
We wanted to make sure that for all interested applicants
it be as fair and open a competition as possible, and whether
or not an organization would want to receive funding really
depends on their willingness to compete.
Mr. Renzi. Well said.
Let me say this to you. The Habitat for Humanity has laid
out a model that is exceptional. Our former President, Jimmy
Carter, becoming one of the Nation's best leaders of Habitat
for Humanity, a secular organization. If nonprofit 501(c)(3)
organizations want to reflect that model, want to become those
type of organizations in small communities that help build
houses in 48 hours, these Federal funds will help them become
mini Habitat for Humanities; am I right?
Mr. Streeter. Federal funds under the programs affected by
this rule, you mean?
Mr. Renzi. Yes.
Mr. Streeter. Uh-huh.
Mr. Renzi. In other words, you could have non-government-
based organizations, faith-based organizations become small
Habitat for Humanities across the country where we could
actually build more homes?
Mr. Streeter. That is right, as long as the organizations
choose to build themselves that way. We are not designing any
specific programs here for faith-based organizations. Rather,
we are opening up the competition by changing the regulations
so it is a level playing field.
Mr. Renzi. What other areas--or how--what creative ideas
have you seen that these moneys could be used for good work?
Where is the--my example is neutral. Where is the good housing
going to be put to work?
Mr. Streeter. Well, every day there are people doing great
things with very small budgets in communities all across the
country. They work in all kinds of fields, providing shelter
for the homeless, providing shelter and stable housing for the
elderly and the disabled; and often that is done by those who
have deep roots in the communities where the people are that
they are serving. Those are grassroots organizations who, for a
number of reasons, both faith-based and secular groups, have
not been in our networks, have been intimidated by the
regulations as they currently stand on the books.
Mr. Renzi. Well said. So if we are able to get Federal
funds to those organizations, we are going to build more
houses, we are going to be able to home and provide safe areas,
warm comfort for homeless, we are going to feed more people, we
are going to reach out, to take better care on the street, with
the needy.
Mr. Streeter. It is our view that by increasing the field
of competitors that the end result is a better quality service
for the people in need.
Mr. Renzi. Thank you, sir. Thank you.
Chairman Ney. Thank you.
Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman.
I neglected to say hello to my friend, Mr. Streeter. I met
you in Charlotte. Good to see you again. I meant to say that
when I first came in. I knew that I had seen you before, but it
is great to see you again. I appreciate you all being here.
Let me just kind of get--I mean, I am reading something
here that--and I wanted you all to maybe set me at ease that I
shouldn't be concerned about what I am concerned about.
It is not the discrimination in the recipients of a
particular service. I presume that that is something that you
can enforce. But, under HOPE III, under housing opportunities
for persons with AIDS, under Emergency Shelter Grant programs,
ESG, under shelter plus care, and under Supportive Housing
Program, SHP, and under youth bill, the Federal Regulations 24
CFR and the particular sections that related to each of those
programs had a provision which said: A primarily religious
organization receiving funds under the program will not
discriminate against any employee or applicant for employment
under the program on the basis of religion and will not limit
employment or give preference in employment to persons on the
basis of religion.
The proposed rules delete that language in 24 CFR. Now that
may be because it was unnecessary because these organizations,
religious organizations and all other organizations, can't
discriminate in employment.
The problem is that religious organizations can
discriminate in employment on the basis of religion. My
concern--and all of black America's concern, to be honest with
you--is that by eliminating those provisions you have invited
churches to discriminate in their employment practices on the
basis of religion; and the result of that is not only to allow
them to discriminate on the basis of religion but that the
result of their being able to discriminate on the basis of
religion is synonymous, in 95 percent of religious America,
with allowing them to discriminate on the basis of race.
Now the simple question I am raising is, should I not be
concerned about that? Is that not the intent of this
Administration or can religious organizations now discriminate
under these proposed rules? If the proposed rules were adopted,
would they be allowed to discriminate in the delivery of these
services on the basis of religion? Would they be able to say,
if you are not Jewish, you can't work here? We hire only Jewish
employees because we are a Jewish church--in the delivery. Then
what happens then if a nonJewish person happens to be the most
qualified person?
Or if it is a white church--and in my area of the country,
still, most of most churches are either black or white--can
they say, we hire only Baptists who are members of our church
and therefore we hire no black people?
That is the question I am--you know, if you can set me at
ease about that question, you know, I don't have any problem
with this program. Now, somebody please set me at ease about
this. Is that what you are intending, or put--if not, why did
you terminate these provisions?
Mr. Jimenez. Mr. Congressman, I would be happy to attempt
to answer your question. I know that you know this already, but
for those in attendance today who may not know this let me just
state for the record that our rule is very clear that all
faith-based organizations are subject to the parts of Title VII
that prohibit discrimination on the basis of race as well as
gender, national origin----
Mr. Watt. You are playing games with me, Mr. Jimenez. You
are playing games with me now. That does not answer my
question.
Mr. Jimenez. I didn't finish with my answer, sir.
Mr. Watt. Go ahead.
Mr. Jimenez. But I think that needs to be said for the
record, to put the minds of people here at ease who may think
that our rule directly allows discrimination on the basis of
race. It does not.
On your question about whether or not the rule allows
faith-based organizations to take religion into account when
hiring----
Mr. Watt. To discriminate on the basis of religion.
Mr. Jimenez. To take religion into account----
Mr. Watt. To discriminate.
Mr. Jimenez. ----hiring decisions. HUD is not breaking new
ground here. To lay out the groundwork, Congress in 1964 gave
all faith-based organizations the right to take religion into
account when hiring. Congress expanded that right in 1972. The
Supreme Court upheld that right as constitutional in 1987.
Mr. Watt. So you are saying now that you take what the
Supreme Court said to extend all of the way over into building
a house out there; and if I am not a member of your church,
even if I am the most qualified employee out there to build
that house, you can refuse to hire me.
Mr. Jimenez. Actually, we are not taking the Supreme
Court's lead so much as we are following Congress' lead. This
rule covers eight different grant programs. Congress said that
faith-based organizations cannot take religion into account
when hiring for two of these programs. For the remaining six,
the ones that you named, Congress has had the opportunity,
ample opportunity to take back from faith-based organizations
their freedom to take religion----
Mr. Watt. Mr. Jimenez, if that is the official position of
this Administration, I am saying point blank to you and this
Administration that that is a racist position. It is, and that
will be the result of it, and I can't be any more blunt than
that.
Now if you want to be labeled with that, if HUD wants to be
labeled with this, if this Administration wants to be labeled
with that, then so be it. But what you just said to me is that
you think it is okay. You think everything I just described to
you is okay. I think you are making a serious, serious
misjudgment; and I think this Administration is.
I yield back the balance of my time.
Chairman Ney. What I will do is--the gentleman yields back
the balance of his time. On my time here, I have got another
question, but I will let you put your thoughts out.
Mr. Jimenez. Congressman Watt, just to be clear, any faith-
based organization that uses its religious hiring freedom as a
pretext for racial discrimination, in my opinion, in HUD's
opinion, in this Administration's opinion, is doing something
reprehensible and illegal. One cannot use the religious hiring
freedom as a pretext for racial discrimination.
But, more importantly, I don't think when Congress--with
respect to six of these eight grant programs, when Congress
allowed the faith-based recipients of those funds to take
religion into account in hiring, I don't think Congress thought
that it was performing a racist act; and this Administration
certainly doesn't believe that either.
Chairman Ney. Let me ask you this--we will go another round
of questioning. What is your--to get it clear in my mind--I
don't know the legal history of this, but what you are saying
is that this has existed for X number of years, 1964, 1972. Was
there any change in the last 10 years on this or----
Mr. Jimenez. I would be happy to lay it out for you.
This CDBG statute was authorized by the Congress in 1974.
In 1990, Congress amended that statute and said that faith-
based recipients of CDBG funds don't have religious hiring
freedoms.
In 1990, Congress first authorized the HOME program and, at
the same time, said that faith-based recipients of Home funds
do not enjoy religious hiring freedoms.
That is the first two of the eight grant programs covered
by this rule. There are six others. Two of them were passed or
first authorized by Congress in 1987. The remaining four were
first authorized by Congress in 1990. Congress knew how to tell
faith-based organization that they did not have religious
hiring freedoms and Congress demonstrated how with respect to
the first two grant programs.
But Congress deliberately did not do the same with respect
to the other six. We are simply following Congress' lead, and
we think Congress----
Chairman Ney. This existed before President Bush?
Mr. Jimenez. That is correct.
Mr. Frank. Before one President Bush, not before the other.
Mr. Ney. And after 41, then President Clinton. So this has
been there.
Mr. Jimenez. This has been the law.
Chairman Ney. Whether they were Democrat controlled or a
Democrat or Republican President and they didn't change it?
Mr. Jimenez. Exactly.
Chairman Ney. So, therefore, would we consider them racist?
I am trying to lay it out. Although people might want to change
it. It might be the desire of Congress to change it.
Mr. Jimenez. If Congress wants to take some or all of the
remaining six and say that faith-based organizations do not
enjoy religious hiring freedoms, that is Congress' prerogative.
I don't think the Administration is necessarily calling on
Congress to do that, but Congress has that freedom if it
wishes.
Chairman Ney. Let me ask the question--as this started, as
I assume there were some barriers, that is why this issue came
up. I think it came up like--I don't know, one of the Senators
had supported this during the election process, and both sides
of the aisle had come out with some type of idea to stop
barriers, or groups just because they were of a certain
religion, if I can recall on this issue.
What kind of barriers were out there? What kind of
government--do you have any idea of what some of the government
barriers were for these groups?
Mr. Streeter. I will be happy to answer that question, Mr.
Chairman.
With respect to the proposed rule and the current
regulations that are on the books, we had in seven of the eight
programs here, for instance, prohibitions on anything bordering
on religious influences. That generally tends to be implemented
sort of at the lowest possible level. People would tend to shun
faith-based organizations altogether if they have any doubt as
to whether or not this organization was the kind of
organization that should be funded under a given program. Two
programs outright exclude faith-based organizations as a
general rule.
Again, the way this translates on the street into a barrier
is that a local official, whether it is a local CDBG official
from a city or a HUD official in a field office, will be of the
mind and have been of the mind that they ought to instruct
faith-based organizations either not to apply or will tell
others not to work with faith-based organizations. That has, in
fact, happened. So that would be a barrier.
Overall, we just find that there is a problem with the tone
in the regulations; and they make it very, very difficult for
faith-based organizations to apply if there is any question. We
have run into a number of cases where faith-based organizations
have had problems on this front simply because they have been
told they better not apply or, if they do, they need to
completely strip their facilities of anything that looks
religious and the like.
There are other barriers as well. I mean, there are
barriers in the grants process, which doesn't necessarily apply
to this proposed rule, but there are barriers as well in terms
of the complexity of the documents that are required to file in
terms of the application process as a whole and the documents
that support it. We have been engaged in an effort to simplify
that as well so that it is easier for smaller grass roots
organizations to understand.
Chairman Ney. Thanks.
Mr. Frank.
Mr. Frank. That part is not controversial. I note in the
Executive Order in Part 3 it is repetitive. It applies to eight
programs. The parts that say you can't be penalized for your
religious character, which is in Part 1, the parts that say you
shouldn't be penalized for religious name, those are
noncontroversial. In fact, they are often not followed, and
they should not have been followed, and they should have been
changed.
So that is not controversial, much of what you said. What
is controversial is what Mr. Watt mentioned.
Now, Mr. Jimenez, I know you just forgot--I am sure it was
on your mind, but you forgot to mention that those six programs
you talked about where you said Congress in fact did not
include in discrimination language, but from almost the
beginning regulations were promulgated, beginning with
President Bush and then President Clinton, which did in fact
say no religious discrimination.
So my sense has been here is that Congress didn't feel the
need to do that because all of them did have that language in
there. So two had it statutorily, but the other six programs
you talk about have, from their beginning, had language
promulgated by regulation which said you couldn't discriminate.
That was President Bush and President Clinton.
And you didn't then answer Mr. Watt's question. You gave a
history of it. But, in fact, previously, while they didn't have
that--they weren't prohibited by statute from religious
discrimination, they were prohibited by regulation.
Mr. Jimenez. That is absolutely correct.
Mr. Frank. Thank you.
What then about the substantive question Mr. Watt asked?
Let me put it to you this way. Under CDBG, you are the
experts in this program. A Mayor who decides to give the money
to the Nation of Islam to protect housing authority security--
that happened before, in fact. I remember a number of my
Republican colleagues were quite exercised about it. Under
these regulations, a Mayor who decides to give the Nation of
Islam money to protect his or her housing tenants, that is
perfectly okay, and the Nation of Islam may employ only its
congregants; is that correct?
Mr. Jimenez. Well, it is a two-part question, as I hear it.
The first part was whether or not they could give services or
permit only adherents to be beneficiaries, and the answer is
no.
Mr. Frank. Not beneficiaries. We are talking only about
employees. You know that, Mr. Jimenez. You are not being honest
with us intellectually. I am disappointed in that. You know we
are talking about employees. We are asking about whether a
Mayor can give money to the Nation of Islam to provide security
services and hire only congregants of the Nation of Islam? Is
that----
Mr. Jimenez. I am being completely honest. I thought I
heard in your answer something about beneficiaries. However, as
far as taking religion into account when hiring----
Mr. Frank. No, answer the question. It is a simple
question. The Nation of Islam, under these rules, are they an
eligible grantee and can they then hire only people who are
members of the Nation of Islam?
Mr. Jimenez. If the Nation of Islam is a legitimate
religious organization. I don't know enough about the Nation of
Islam to comment on that.
Mr. Frank. I had hoped maybe you would answer a question
honestly. I think you are not.
Next one. How about Scientology? Suppose a Mayor somewhere
gives a grant to the Church of Scientology, which has been
recognized as a religion. You say legitimate religion. I assume
the test here is--let me ask. Is there a test other than the
one we use, the IRS' tax exemption? Is there some other test
that is going to be involved here as to whether you are a
legitimate religion? That would make us very nervous. How do
you decide?
Mr. Jimenez. The only test that this Administration applies
is whether or not the services provided by the faith-based
organization work.
Mr. Frank. No, Mr. Jimenez, you are changing the subject,
and you know it. You said you don't know if the Nation of Islam
is a legitimate religion. I understood they were a legitimate
religion by the applicable test: They got a tax exemption, and
they are recognized by the IRS. Are you suggesting that there
is some additional test as to whether or not you are a
legitimate religion to qualify?
Mr. Jimenez. I don't know if there is something else about
the Nation of Islam that could disqualify them from the
program.
Mr. Frank. I am asking you procedurally now. Your
determination not to answer tough questions is impressive, but
it doesn't get you away from the tough issues. In this program,
it says faith-based organizations. We are talking now not about
HUD but about the entitlement communities. I am the Mayor of an
entitlement community. Under this program, if it is legally
recognized as a religion by State and Federal law, are they
then automatically eligible for grants under the CDBG faith-
based program and can hire only their own?
Mr. Jimenez. If there were no other disqualifying factors,
any faith-based organization----
Mr. Frank. What disqualifying factors would there be?
Mr. Jimenez. I am not familiar enough.
Mr. Frank. I get it. I think the fact that you don't
answer----
Mr. Jimenez. Sir, I will answer your question as directly
as I can.
Mr. Frank. What about Scientology?
Mr. Jimenez. If they have--sir, if they provide a service
that fits within the HUD criteria of providing either services
for the homeless----
Mr. Frank. Not CDBG--but let me ask you another question.
In terms of the money that goes to build the house of worship
for dual purpose that can be partially a house of worship, is
that measured physically or temporally? Can I say, okay, 22
percent of the building was built with public funds, and it can
be used 22 percent of the time for religious purposes, or 22
percent of the building or 11 percent half of the time? I mean,
what are the rules that apply? Can it be temporal? Can I say 22
percent of the money came from the Federal Government. The
building can be used 78 percent of the time, the whole
building, for religious purposes? Is that accurate?
Mr. Jimenez. Yes. That was our intention.
Mr. Frank. Okay.
Mr. Jimenez. There is more here that I think that you would
like to hear, with all due respect, Mr. Congressman. On that
particular part of the HUD rule, it was never HUD's intent to
subsidize, even partly, principal places of worship. Upon
issuing the proposed rule and hearing comments about the rule--
--
Mr. Frank. You are changing it?
Mr. Jimenez. Well, we are closely considering all comments
that have been received.
Mr. Frank. I am glad you are closely considering all
comments.
Mr. Jimenez. We are considering several options of amending
the language.
Mr. Frank. The part that says CDBG funds may be used for
the acquisition, construction or rehabilitation of structures,
where a structure is used for both eligible and inherently
religious activities, they may not exceed the cost of those
portions, et cetera, that is under serious consideration to be
changed?
Mr. Jimenez. That is. We think that there is a way of
clarifying our intent and easing some of the concerns about
that language, and we are presently entertaining options.
Mr. Frank. Last question.
Mr. Frank. Last question, to go back to the point that Mr.
Watt and I have been trying so hard to get an answer, the fact
that the effect of religious-based hiring might be racially
exclusionary, Orthodox Jews in Brooklyn, Mormons somewhere
else, the Nation of Islam in Baltimore, is that, in and of
itself, a disqualifying factor in your mind and in the minds of
the Administration?
Mr. Jimenez. If racial discrimination is intended?
Mr. Frank. No, not if it is intended. You know that we are
not talking about intended. You are not being honest. You know
that is not what we are talking about. We are talking about the
fact that there aren't very many black Orthodox Jews. There
aren't very many white members of the Nation of Islam. If the
effect in this is to get a segregated impact, is that in any
way a problem from the Administration standpoint?
Mr. Jimenez. We agree with Congress that the freedom to
take religion into account in hiring is a freedom that should
generally----
Mr. Frank. Would you answer my question? Does the fact that
it might have a racially discriminatory or exclusionary aspect,
is that troubling? I didn't ask you whether or not you agree.
Mr. Jimenez. I think it is troubling on a personal basis,
but I think on a legal basis----
Mr. Frank. On the Administration basis, from the
Administration standpoint, is it irrelevant as a policy matter?
Mr. Jimenez. I think it is irrelevant as a legal matter. As
a policy matter, I think it is relevant. But there are many
things in this country that are troubling, and I think we
should all as people----
Mr. Frank. Are you doing anything about it, if it is
troubling as a policy matter?
Mr. Jimenez. Is the question whether or not we are doing
anything to end de facto segregation?
Mr. Frank. That isn't what I asked.
Chairman Ney. The time of the gentleman has expired.
Mr. Renzi.
Mr. Renzi. Thank you, Mr. Chairman.
When we talk about the true effect or the true intent here,
isn't it really honorable though that what we are trying to do
is that we have got faith-based organizations that are already
established in the community, who have already proven
themselves worthy of good deeds in the community, who
currently, legally are allowed to discriminate based upon
hiring practices as to faith? These are established Title VII
freedoms. These organizations are now in a position where they
can expand services or provide services and that those
services, the populations that they will actually serve are the
disadvantaged, are the most needy, are at times the Hispanics
in Arizona. And so, if we are able to get the Federal funds to
these organizations who are currently doing good with their
work, then the most needy, the most disadvantaged of all races
and colors and creeds and genders will be the ones who benefit.
Isn't that really the honorable intent and not to discriminate
as this discussion has been taking?
Mr. Jimenez. All along this Administration has been very
clear. The focus should be primarily the people in need, the
people who are suffering, the people who need services.
We have found in our experience that many faith-based
organizations themselves either represent a disproportionately
minority population or serve a disproportionately minority
clientele. These changes are going to make it easier for faith-
based organizations to help the people all throughout America
and especially in inner cities and other places.
Mr. Renzi. You mean to tell me, you actually have people of
faith who are actually helping people of color, sir, in a
disproportionate aspect as to the amount of white people who
are working for them? You mean we actually have faith-based
organizations who are, right now, disproportionate as to the
numbers of employees? So if you were to take the number of
employees that they have in the organization and you look at
where their dollars are going, where the real help is going,
you are seeing that they are actually helping people of color,
people of need, people of poverty, is that what you are telling
me?
Mr. Jimenez. Absolutely. And that is what we see in our
experience everyday. And I might also add, the religious hiring
freedom that was given by Congress when Title VII of the Civil
Rights Act of 1964 was passed, that freedom is not a
controversial one. It was affirmed in '64, reaffirmed in '72
with broad, bipartisan support in Congress. It was unanimously
upheld as constitutional by the Supreme Court in 1987.
This is not a controversial freedom.
Mr. Renzi. Thank you.
Chairman Ney. Mr. Watt?
Mr. Watt. Let me just direct this to Mr. Renzi, since he
seems to be directing all his comments toward me.
Mr. Renzi. Not directed towards you, but directed towards
the goodness of the programs.
Mr. Watt. And just make it clear to you, from my
perspective, the ends don't justify any means. When you fought
as hard to eliminate discrimination and segregation and racism
as I have, even sometimes when you get good ends, you've still
got to look at the means through which that happens. And we
will have that conversation in private if you would like, if
you would like to pursue it, but let me get back to this.
Mr. Weicher, you have let them run your interference for
you, and I don't mean that in any negative sense. But it is
your statement that was the statement that we started with, and
your statement on Page 2 says--describes the President's order
of December 12, Executive Order 13279, that sets out clear
principles, and I am quoting, ``Ensuring that all eligible
social service organizations are able to compete on an equal
footing for Federal financial assistance.'' and then the next
paragraph, you say, ``HUD is simply''--well, you say, ``HUD''--
I am quoting, ``HUD is actively implementing the order to
ensure that our policies and programs create a level playing
field for faith-based organizations.
Now, I take it that a level playing field would be a
playing field that either allows discrimination or doesn't
allow discrimination, Habitat for Humanity, none of the
501(c)(3)organizations have the ability to discriminate on the
basis of race. How is it that giving churches, who are grant
recipients, the right to discriminate on the basis of race or
religion creates some level playing field? There is something
unequal about that as far as I am concerned.
If I set up a 501(c)(3) organization, I am bound by the
civil rights laws of this country. I can't discriminate on the
basis of race or religion.
Mr. Renzi. Yes, you can. Sorry to interrupt you, sir. Yes,
you can, but that is the point, under Title VII, you can
discriminate.
Chairman Ney. Would the gentleman like to yield or not?
Mr. Watt. Why don't I just ask my questions to Mr. Renzi,
since he knows so damn much about this. And I wouldn't like to
be interrupted either.
Chairman Ney. You can continue.
Mr. Watt. Now, churches have the right to discriminate in
their religious activities, 501(c)(3) organizations do not. Is
that correct or not correct, Mr. Weicher?
Mr. Weicher. Mr. Watt, as I was saying to Mr. Frank, I am
not a lawyer, and I am not an expert.
Mr. Watt. Why did they send you over here to deliver this?
Mr. Frank. Will the gentleman yield? I can answer that.
Because when we wrote the letter, we said that we would
want someone at the assistant-secretary level or above, and Mr.
Weicher seemed to be the only assistant secretary in town
today.
Mr. Watt. Okay. At least there is some rational
explanation.
Mr. Frank. If the gentleman would let me yield further.
And they think the Administration was not interested in
giving answers to some of these questions at a level where they
might sort of have trouble backing away later.
Mr. Watt. All right, Mr. Jimenez.
Chairman Ney. Would the gentleman yield?
Go ahead.
Mr. Watt. I am stuck with you, although I can't get an
answer out of anybody on this panel. I am just trying to get an
answer. I am not adverse to you.
Mr. Jimenez. The question again is----
Mr. Watt. How does this create a level playing field, I
guess, is the question that I started off asking, before I was
so generously interrupted by my colleague.
Chairman Ney. We will generously give you some overtime.
Mr. Jimenez. The Administration feels strongly that faith-
based organizations should have the same access to HUD grants.
Mr. Watt. As do I.
Mr. Jimenez. Except that before this rule, faith-based
organizations had to jump through hoops that secular
organizations didn't have to.
Mr. Watt. And I don't think they should either, Mr.
Jimenez. We are on the same side of that issue.
But the issue that we don't seem to be on the same side of
is whether there can be discrimination in employment based on
religion or--and, therefore, as a substitute based on race--in
the use of Federal funds, not the--not in the pulpit.
I am the staunchest supporter you would like to have to not
putting a Baptist minister in a Jewish synagogue. I mean, I
wouldn't think of anything that ridiculous, which is why the
religious exemption is in Title VII, but it never was in Title
VII to allow churches to deliver services that are basically
governmental services, social services, into the community:
Housing, after school programs.
And for this Administration to somehow take the silence of
Congress on that as a license to go into the community and tell
churches that you can discriminate, is just unforgivable in my
opinion.
Mr. Jimenez. Sir, I think I can answer your question.
It is not just the religious services that faith-based
organizations provide. In 1972, Congress expanded the religious
hiring freedom that faith-based organizations enjoy under Title
VII. And they extended it to all employees of the faith-based
organization, whether or not they perform inherently religious
functions. And it was that expanded freedom that the Supreme
Court upheld unanimously in 1987.
I might also add that Charitable Choice has been on the
books since 1996 and it governs----
Mr. Watt. I am sure this is in response to a question I
asked, Mr. Jimenez. I can't get a damn thing out of you all
when I ask you a question, and you keep trying to give me stuff
when I don't ask you a question. Everybody keeps trying to give
me information when I don't ask a question. I can't get any
answers out of anybody when I ask a question. I mean, I am
disturbed by that.
If this Administration would send somebody over here who
can answer the questions and stand up for the Administration
and say what their policy is, which is that they intend to
encourage religious discrimination in these programs, which is
very apparent from the three gentlemen that they sent over
here, I think is an abomination. And I think it is going to
backfire on you. I think it is going to backfire on you from a
social perspective, and all of this stuff that you were doing
in the community in advance of finalizing the regulations,
which is just politics, trying to get into every black church
in the country, that is going to backfire on you, too.
I yield back. I yield the rest of my time to Mr. Renzi.
Chairman Ney. And I will answer any question if you ask me
one.
Mr. Renzi. Thank you, Mr. Watt.
Chairman Ney. Anybody else have any desire to ask a
question?
Mr. Watt. I don't want to beat them up. I would like to get
some answers.
Mr. Jimenez. I would be happy to answer a question.
Mr. Frank. One statement.
Mr. Jimenez mentioned the 1972 Amendments, which did extend
the freedom from religion. But those who cite that cite, to
quote from Sam Ervin at the time, in which he says, ``The hands
of Caesar have no place in the institution of God.'' Well, we
are in a situation where the hands of Caesar are carrying
money, and it is qualitatively different. It may be right or
wrong.
But, in fact, to invoke Sam Ervin's quote when he said,
``The hands of Caesar have no place in the institution of
God,'' when we have now decided that we are going to provide
Federal money to carry out Federal purposes to these
institutions, it is clearly not an automatic extension.
So I would say that the invocation of the `72 Act does not
meet the arguments that my colleague raised. And again the very
justification that I see, citing Sam Ervin, it is a little bit
different, I think a lot different, because once you have
said--it is one thing to say we are doing this to give complete
independence in the Federal Government. It is another to say,
well, now the Federal Government is giving us money to tell us
how to spend it.
Mr. Jimenez. This would not be the first time, sir.
Mr. Frank. I am talking about the `72 Act. One thing on the
`96, yes, that is true, that was done as part of the Welfare
Bill. The Welfare Bill was very controversial. But it is also
the case that when Bill Clinton signed it, he announced he was
not going to enforce it. So it was not something that has, in
fact, been in effect for very much time.
Chairman Ney. Any other questions of the witness?
I want to thank, again, the members for coming. And thank
the witnesses for their interest and for coming here to the
hearing today.
[Whereupon, at 5:15 p.m., the subcommittee was adjourned.]
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