[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
 FAITH-BASED INITIATIVES: RECOMMENDATIONS OF THE PRESIDENT'S ADVISORY 
  COUNCIL ON FAITH-BASED AND COMMUNITY PARTNERSHIPS AND OTHER CURRENT 
                                 ISSUES 

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                           NOVEMBER 18, 2010

                               __________

                           Serial No. 111-156

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                        COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel





























                            C O N T E N T S

                              ----------                              

                           NOVEMBER 18, 2010

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     4
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Member, Subcommittee 
  on the Constitution, Civil Rights, and Civil Liberties.........     6

                               WITNESSES

Ms. Melissa Rogers, Director, Center for Religion and Public 
  Affairs, Wake Forest University Divinity School
  Oral Testimony.................................................     9
  Prepared Statement.............................................    12
Mr. Douglas Laycock, Armistead M. Dobie Professor of Law, Horace 
  W. Goldsmith Research Professor of Law, Professor of Religious 
  Studies, University of Virginia School of Law
  Oral Testimony.................................................    34
  Prepared Statement.............................................    36
Reverend Barry W. Lynn, Executive Director, Americans United for 
  Separation of Church and State
  Oral Testimony.................................................    53
  Prepared Statement.............................................    55

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Member, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................   163
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Member, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................   169
Addendum to the Prepared Statement of the Reverend Barry W. Lynn, 
  Executive Director, Americans United for Separation of Church 
  and State......................................................   173
Post-Hearing Questions and Responses of Melissa Rogers, Director, 
  Center for Religion and Public Affairs, Wake Forest University 
  Divinity School................................................   178
Post-Hearing Questions and Responses of Douglas Laycock, 
  Armistead M. Dobie Professor of Law, Horace W. Goldsmith 
  Research Professor of Law, Professor of Religious Studies, 
  University of Virginia School of Law...........................   193
Post-Hearing Questions and Responses of Reverend Barry W. Lynn, 
  Executive Director, Americans United for Separation of Church 
  and State......................................................   203
Letter from C. Welton Gaddy, President, Interfaith Alliance......   216
Letter from Jon O'Brien, President, Catholics for Choice.........   218
Letter from the Reverend J. Brent Walker, Executive Director, and 
  K. Hollyn Hollman, General Counsel, the Baptist Joint Committee 
  for Religious Liberty..........................................   220
Prepared Statement of Alan Yorker, MA, LMFT......................   226


 FAITH-BASED INITIATIVES: RECOMMENDATIONS OF THE PRESIDENT'S ADVISORY 
  COUNCIL ON FAITH-BASED AND COMMUNITY PARTNERSHIPS AND OTHER CURRENT 
                                 ISSUES

                              ----------                              


                      THURSDAY, NOVEMBER 18, 2010

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:39 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Conyers, Watt, Scott, 
Johnson, Jackson Lee, Sensenbrenner, King and Franks.
    Staff present: (Majority) David Lachmann, Subcommittee 
Chief of Staff; Heather Sawyer, Counsel; and Paul Taylor, 
Minority Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order. I will first recognize myself for an opening statement.
    Today's hearing examines the current status of the faith-
based and community partnerships, and particularly the report 
of the President's Advisory Council. Although I was gratified 
by the President's decision to take a fresh look at this 
important but difficult issue and was especially appreciative 
of the outstanding work done by members--by the members of the 
Advisory Council, I, like many of my colleagues, remain 
frustrated by the glacial pace of reforms.
    Today's hearing is timely. Just yesterday the 
Administration finally issued its revision of Executive Order 
13279, setting out ``fundamental principles and policy-making 
criteria for partnerships with faith-based and other 
neighborhood organizations.'' It has been long anticipated and 
it contains some very important reforms.
    I am glad that we have with us this distinguished panel, 
which I hope will be able to provide this Subcommittee with 
their thoughts on the new Executive order.
    Difficult issues remain. What has been especially 
frustrating since President Bush first launched the initiative 
is that so many of the problems that the initiative sought to 
address simply never existed in the first place.
    I don't think any Member of Congress, or indeed, anyone 
involved in the delivery of social services from the 
neighborhood level on up minimizes the critical contributions 
made by people of faith and by social service providers that 
have a religious affiliation, nor is there any question that 
these organizations have long worked with government and 
administered publicly-funded programs in ways that have done a 
great deal of good for the communities we represent and for the 
Nation as a whole. And it is also without question that these 
partnerships existed and thrived long before the faith-based 
and community initiative.
    Despite some grandiose, if specious, claims to the 
contrary, these organizations were not barred from receiving 
public funding simply because of a religious affiliation or 
because they had a religious name in their title. Every Member 
of this Committee has, no doubt, worked with many religiously-
affiliated organizations in their districts and has helped get 
funding for such organizations to deliver all manner of social 
services, senior housing, and the like.
    But if the faith-based and community initiative was a 
solution in search of a problem it brought with it a host of 
real problems, many of which pose a real threat to the 
religious liberties of program participants and employees. 
Promises that have been made about providing participants with 
secular or other religiously-appropriate alternatives have gone 
unfulfilled. Without these alternatives the patina of respect 
for the religious rights of those most in need--not to mention 
the legal pretense of constitutionality--is stripped away.
    Furthermore, the promise that this initiative would 
mobilize the armies of compassion has been broken precisely 
because some of the initiative's most vocal supporters have 
also been the first to cut off that army supply line by 
slashing funding for those very programs.
    As David Kuo--I hope I am pronouncing that right--the 
deputy director of the White House Office of Faith-Based and 
Community Initiatives in the Bush administration, wrote, ``The 
achievements of the Bush faith-based initiative are a whisper 
of what was promised. Irony of ironies, it leaves the faith-
based initiative specifically, and compassionate conservatism 
in general, at precisely the place Governor Bush pledged it 
would not go. It has done the work of praising and informing 
but it has not been given the resources to change lives. In 
short, like the hurting charities it is trying to help, the 
initiative has been forced to, quote--`make bricks without 
straw.' '' And that is the end of the quote from Mr. Kuo.
    It is no secret that I have been disappointed with this 
Administration's handling of these difficult issues, not to 
mention with the previous Administration's handling of these 
difficult issues. On the matter of ending employment 
discrimination in federally-funded programs, about which the 
President was so eloquent in 2008, we have heard nothing. We 
haven't even been able to find out, for example, whether the 
Office of Legal Counsel memo asserting that the Religious 
Freedom Restoration Act creates a free exercise right to 
discriminate in employment in federally-funded programs is 
under review, much less what might be done with it.
    I realize that the employment issue is not within the 
Advisory Commission's mandate, but it is still of pressing 
importance to the Members of this Committee.
    I regret the Administration was unable to provide a witness 
today who might be able to answer our questions about the 
Executive order and about the Administration's progress on 
related issues. Nonetheless, I am pleased to welcome our panel 
today, and I look forward to their testimony. They are 
certainly no strangers to this Committee, and I have, over the 
years, had the privilege of working with each of them on many 
projects, starting with the Religious Freedom Restoration Act, 
which we passed the year I first joined this House a while ago.
    I look forward to their testimony, and I yield back the 
balance of my time.
    The Chair now recognizes the distinguished Ranking Member 
for an opening statement.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    President George W. Bush began a faith-based initiative 
designed to grant faith-based organizations equal access to 
competitions for the administration of Federal social service 
programs. Part of the effort resulted in the legal memo from 
the White House Office of Legal Counsel issued on June 29, 
2007.
    That memo protects the right of faith-based organizations 
to take part in such program while staffing their organizations 
on a religious basis, allowing them to preserve their religious 
character. The memo remains in force today.
    Under a properly implemented faith-based program, programs 
must be administered to beneficiaries without regard to 
religious, but the organizations doing the administering can 
themselves be religious, and that is in accordance with said 
law. Nothing in the Civil Rights Act of 1964 says a religious 
organization loses its right to staff on a religious basis when 
it uses Federal funds. Indeed, when it enacted Title 7 in 1964 
Congress was well aware that religious institutions of higher 
education that staffed on a religious basis were receiving 
federally-funded grants and student aid, and under the G.I. 
bill established in 1944 military veterans were able to attend 
religious colleges and universities of their choice and the 
tuition costs were either offset or fully covered through a 
Federal voucher payment sent to the selected school.
    So Congress was well aware when it enacted religious 
exemptions in Title 7 that Federal funds would be going to 
religious organizations that made staffing decisions based upon 
religion. Members of faith-based organizations should enjoy the 
same rights to associate with others who share their unique 
vision that other non-religious groups enjoy. To deny them the 
same right would be to discriminate against people on the basis 
that they are religious and have a religious rather than purely 
secular way of looking at the world.
    For example, Planned Parenthood may refuse to hire those 
who don't share its views on abortion, but equal treatment 
requires the churches, mosques, and synagogues to have the same 
right to staff their organization with like-minded individuals.
    Earlier this year the Government Accountability Office 
issued a report finding that between 2002 and 2009 Planned 
Parenthood received $657 million in taxpayer dollars while it 
continued to staff its organization with like-minded people. If 
Planned Parenthood can receive Federal funds and continue to 
staff based upon ideological views regarding abortion, and if 
religion is to be treated equally, religious organizations 
should also retain their ability to staff on a religious basis 
when they receive Federal funds.
    If churches cannot continue to hire and staff on a 
religious basis they no longer remain churches while joining 
Federal social service efforts. Indeed, insofar as the courts 
have had to determine whether or not an organization is a 
church for tax purposes it has looked to whether it is a 
coherent group of individuals and families that join together 
to accomplish the religious purposes of mutually-held beliefs.
    If churches, as churches, are to be invited to join Federal 
social service efforts, their ability to remain a coherent 
group of individuals that join together to accomplish the 
religious purposes of mutually-held beliefs must be protected.
    President Clinton recognized that many years ago when he 
signed into law four congressional acts that explicitly allow 
religious organizations to retain the right to staff on a 
religious basis when they receive Federal funds. These laws are 
the Substance Abuse and Mental Health Services Act, the 
Community Services Block Grant Act of 1998, the Welfare Reform 
Act of 1996, and the Community Renewal Tax Relief Act of 2000.
    Even the Washington Post recognizes that protecting the 
staffing rights of religious organizations is not radical. In a 
May 2003 editorial the Post stated, ``The House of 
Representatives passed a bill last week that would allow faith-
based organizations that provide federally-funded training to 
discriminate in the hiring on the basis of religion.'' The 
change in the Workforce Investment Act is not radical.
    Religious groups, including many religious universities 
that receive Federal money, are generally exempt from Federal 
laws against religious discrimination and hiring. And the 1996 
welfare reform bill allowed faith-based groups access to other 
social service funds without their forfeiting this exemption.
    Protections that preserve a religious organization's right 
to remain religious while neutrally administering Federal 
social services have long been accepted on a bipartisan basis, 
and so it is no surprise to me that the current Administration 
has not denied them.
    Thank you.
    Mr. Nadler. Thank you.
    I now recognize the distinguished Chairman of the full 
Committee for an opening statement.
    Mr. Conyers. I just said no. I was kidding.
    Thank you very much, Mr. Chairman, for allowing me to make 
a comment or two. I have never said no before, so I just wanted 
to see what it--how you would react to it. You didn't 
disappoint me.
    This is a very timely hearing. The Executive order comes 
out yesterday, and we have a hearing--whose brilliant foresight 
do we give credit to that?
    Mr. Nadler. I don't entirely discount the possibility that 
the timing of the hearing may have had some effect on the 
timing of the issuance of the Executive order.
    Mr. Sensenbrenner. The gentleman will yield, I concede that 
point.
    Mr. Conyers. Well, interesting question. Now, I am so glad 
that our former Chairman, Jim Sensenbrenner, is here for this 
important hearing, and I am not surprised that he believes that 
the previous Administration's position that religious 
organizations are exempt from the commitment to equal 
opportunity in federally-funded employment and that they can 
discriminate based on religion. That doesn't surprise me at 
all.
    But what does surprise me is that here, the day after an 
Executive order is issued, we cannot get a representative from 
the present Administration to attend the hearing. And so I 
would like to get the approval of the Chair and the Ranking 
Member and our Subcommittee Chairman on Crime, Bobby Scott, to 
be able to communicate to the White House that they ought to 
get someone over here right away before the lame duck session 
ends.
    Mr. Sensenbrenner. Will the gentleman yield again?
    Mr. Conyers. With pleasure.
    Mr. Sensenbrenner. I would be happy to cosign a letter and 
will await your co-signature of letters after January 3, when 
we are trying to get Administration witnesses over here.
    Mr. Conyers. Well, I try to interpret that as, that after 
January 5, my weight in letters of this kind will become more 
important, not less important. So I thank you for joining us.
    The whole idea that we can hold this hearing after knowing 
and receiving information that the President has explicitly 
sought from the council members an agreement not to deal with 
employment discrimination needs to be explained further. And 
there are ways that we can get people from the White House over 
here, and I don't think that in the 21st century and in the 
wake of this Administration that we need to wait to see what 
more reporting and findings and recommendations come down.
    I would like to know now, while you are the Chairman and I 
am the Chairman, the way the 111th is proceeding we may have 
plenty of time for such a hearing. And so I am glad that I have 
gotten your agreement and approval to take such action.
    This is no way for us to try to do business, and so I am 
impressed that we have not one but two members of the council 
with us today.
    Reverend Lynn and Professor Rogers, we welcome you because 
this isn't a matter of one branch of government drawing a bill 
over a subject of this immediate importance and we have to 
guess or try to figure out what and why and when something 
further is coming. The President explicitly campaigned and has 
made many remarks about this, not only as a candidate but as a 
senator. And we don't propose to wait any longer, and I look 
forward to your comments and participation in the hearing.
    Thank you, Chairman Nadler.
    Mr. Nadler. Thank you.
    And I now recognize the distinguished gentleman from 
Virginia for an opening statement.
    Mr. Scott. Thank you, Mr. Chairman. And I would like to 
thank you for convening this important hearing as well as 
thanking our witnesses for being with us today.
    And I would like to commend the members of the Advisory 
Council on Faith-Based and Neighborhood Partnerships and the 
members of the council's task force for their work. Their 
recommendations find common ground on which to lay a foundation 
for strengthening the constitutional and legal partnerships 
between the government and non-governmental social service 
providers, as well as provide clarity and transparency in the 
provision of these services, while all the time protecting our 
Nation's commitment to religious freedom.
    Unfortunately, their work is far from done. The most 
egregious aspect of the so-called faith-based initiative, the 
right of religious social service providers to discriminate in 
employment with government funds, remains unresolved.
    One of the founding principles of our great Nation is the 
freedom to worship or not worship as one chooses. Faith plays a 
central role in the lives of many Americans and our communities 
benefit from the countless acts of justice and mercy that faith 
inspires people to commit.
    Faith-based organizations are all part of the front lines 
of meeting challenges like homelessness, youth violence, and 
other social programs. At the same time, the history of our 
Nation and its First Amendment protections do not and should 
not allow public funds to be used to proselytize or 
discriminate.
    In the 1960's several civil rights acts were passed in 
order to end the Nation's sorry history of racial bigotry. 
Since that time it has been illegal to discriminate in 
employment against protected classes and make job decisions 
based on race or religion.
    Now, I mention protected classes, and I would like to 
respond to the gentleman from--the Ranking Member from 
Wisconsin, who mentioned the Planned Parenthood example that is 
frequently used. Position on abortion is not a protected class. 
There is a difference between Planned Parenthood hiring people 
based on their position on some social issue as opposed to, 
``We don't hire Blacks,'' or, ``We don't hire Jews.'' Race and 
religion are protected classes, and that is what is protected 
in our civil rights laws.
    One exemption exists for religious organizations but that 
discrimination is allowed in the context of a religious 
organization using its own money.
    Long before that the country recognized the disgusting 
practice of discrimination in employment while using Federal 
funds.
    Almost 70 years ago--1941--President Franklin Roosevelt 
issued an Executive order prohibiting discrimination by all 
defense contractors. In other words, the U.S. government said 
that even if you can build a cheaper and better rifle we are 
not going to buy it from you if you discriminate in your 
employment. In 1965, President Johnson expanded that policy in 
an Executive order banning discrimination in all government 
contracts.
    No discrimination with Federal funds has been the policy of 
this government for decades, at least until the so-called 
faith-based initiative. Under traditional laws many religious 
organizations have been sponsoring federally-funded social 
service programs for over a century. Until recently, they were 
funded like all other private organizations are funded. They 
are to use the funds for the purpose for which they were 
appropriated; they were prohibited from using taxpayers' money 
to advance their religious beliefs; and they were subject to 
laws that prohibit discrimination in employment.
    Let's be clear. Religious organizations can still 
discriminate in positions paid for with their own money, just 
not those paid for with Federal funds. And many religiously-
affiliated organizations, such as Catholic Charities, Lutheran 
Services of American, Jewish Social Services, have been 
receiving funds--millions and even billions of dollars--for 
decades.
    Incredibly, the idea of charitable choice in President 
Bush's so-called faith-based initiative came about because some 
people insist on discriminating in employment and therefore 
were barred from Federal contracts. They now believe that the 
prohibition against discrimination with Federal funds 
constituted a barrier that needed to be removed.
    Unfortunately, the faith-based initiative specifically 
removed that so-called barrier, and as a result, religiously-
sponsored--religious sponsors of federally-funded programs are 
now allowed to discriminate in employment with Federal dollars 
on the basis of religion. That means that a person applying for 
a job paid for with Federal money can be ineligible for 
consideration for that job solely based on religion.
    And if this bigotry based on religion is tolerated, racial 
and sexual discrimination disguised as religious discrimination 
certainly follows. It doesn't take a rocket scientist to figure 
out that if you get a pass on religion it will be impossible to 
enforce nondiscrimination laws based on race.
    Dr. King once said that 11 o'clock on Sunday was the most 
segregated hour of America, and that is still true today. And 
so if you discriminate based on religion, based on which church 
you go to, that has racial implications.
    Religious discrimination is also a proxy for discrimination 
based on sex, based on things like single motherhood, or 
divorce, or premarital sex. It is shocking that we would even 
be having a discussion about whether or not civil rights 
practices are to apply to programs run with Federal dollars.
    For decades, when funds were raised from all taxpayers it 
has been and should continue to be illegal for sponsors to 
reject applicants solely because of their religion. There is no 
justification for having to--restoring a practice where you can 
tell job applicants that, ``We don't hire your kind.''
    The so-called faith-based initiative represented a profound 
change in policy. Since 1965, if an employer had a problem 
hiring the best-qualified applicant because of discrimination 
based on race or religion that employer had a problem because 
the weight of the Federal Government was behind the victim of 
discrimination. But with the faith-based initiative, we shifted 
the weight of the Federal Government to support--from 
supporting the victim to supporting the employer's right to 
discriminate. This is a profound change in civil rights 
protections.
    And if we don't enforce discrimination laws in Federal 
contracts in secular programs, where is our moral authority to 
tell a private employer, who may be devoutly religious, what he 
can and can't do with his own private money. A policy of 
religious discrimination in employment is wrong in the private 
sector and it is certainly wrong with Federal funds.
    We need to be--unfortunately the Executive order did not 
address this profound issue. It failed to address the 
employment issue, and we are disappointed that they failed to 
present a witness so we can inquire why that was done.
    Mr. Chairman, I would like to insert to the record the rest 
of my statement----
    Mr. Nadler. Without objection.
    Mr. Scott [continuing]. And I look forward to the testimony 
of the witnesses, particularly in light of the question that we 
will have on employment discrimination. And I will yield to the 
Chairman of the Committee.
    Mr. Conyers. Thank you. I merely want to associate myself 
with an excellent statement. I yield back.
    Mr. Scott. I yield back.
    Mr. Nadler. I thank the gentleman.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record. 
Without objection, the Chair will be authorized to declare a 
recess of the hearing, which we will do in the event of votes 
on the floor, but only in such an event.
    We will now turn to our panel of witnesses. As we ask 
questions of our witnesses the Chair will recognize Members in 
the order of their seniority and in the usual order--usual 
procedure of this Committee.
    I will now introduce the witnesses. Melissa Rogers serves 
as the director of the Wake Forest University School of 
Divinity Center for Religion and Public Affairs and as a 
nonresident senior fellow at the governance program of the 
Brookings Institution. In 2009 President Barack Obama appointed 
her to his Advisory Council on Faith-Based and Neighborhood 
Partnerships. There she chaired the task force on the reform of 
the office of faith-based and neighborhood partnerships, whose 
recommendations we will be discussing today.
    Professor Rogers previously served as the executive 
director of the Pew Forum on Religion and Public Life. Prior to 
her leadership at the Pew Forum Professor Rogers served as 
general counsel of the Baptists Joint Committee on Religious 
Liberty, based in Washington, D.C. She earned her B.A. from 
Baylor University and her J.D. from the University of 
Pennsylvania Law School.
    Douglas Laycock is a professor of law and of religious 
studies at the University of Virginia. He is a fellow of the 
American Academy of Arts and Sciences and the vice president of 
the American Law Institute.
    Before joining UVA's faculty in 2010 Professor Laycock 
served as the Yale Kamisar Collegiate Professor of Law at the 
University of Michigan Law School. Prior to that he taught for 
25 years at the University of Texas and for 5 years at the 
University of Chicago. Professor Laycock earned his B.A. from 
Michigan State University and his J.D. from the University of 
Chicago Law School.
    Reverend Barry Lynn is an ordained minister in the United 
Church of Christ and has served as the executive director of 
Americans United for Separation of Church and State since 1992. 
Along with Professor Rogers, he served on the task force on the 
reform of the office of faith-based and neighborhood 
partnerships.
    Reverend Lynn began his career working at the national 
office of the United Church of Christ, including a 2-year stint 
as legislative counsel for the church's office of church and 
society, in Washington. From 1984 to 1991 he was legislative 
counsel for the Washington office of the American Civil 
Liberties Union. Reverend Lynn earned his law degree from 
Georgetown University Law Center and received his theology 
degree from Boston University School of Theology in 1973.
    I am pleased to welcome all of you. Your written statements 
in their entirety will be made part of the record.
    I would ask you to summarize your testimony in 5 minutes or 
less. To help you stay within that time there is a timing light 
at your table. You have all testified here before; you know 
what the light means. When 1 minute remains the light will 
switch from green to yellow, and then to red when the time is 
up.
    Before we begin it is customary for the Committee to swear 
in its witnesses. If you would please stand and raise your 
right hands to take the oath?
    Let the record reflect that the witnesses answered in the 
affirmative.
    You may be seated. Thank you very much.
    I will now recognize Professor Rogers.
    Use your mike and speak into it. A little closer to the 
mike.
    Ms. Rogers. Pull it a little closer, is that better?
    Mr. Nadler. That is better.

TESTIMONY OF MELISSA ROGERS, DIRECTOR, CENTER FOR RELIGION AND 
     PUBLIC AFFAIRS, WAKE FOREST UNIVERSITY DIVINITY SCHOOL

    Ms. Rogers. Okay. Thank you.
    Thank you, Chairman Nadler, and thanks also to Ranking 
Member Sensenbrenner, Chairman Conyers, Representative Scott, 
Representative Watt, and the other Members of this 
Subcommittee. I appreciate the invitation to be here with you 
today and I appreciate your interest in the work of the 
Advisory Council.
    And I am also grateful for our partnership in years past on 
free exercise matters like the Religious Freedom Restoration 
Act. It has been wonderful to work with you.
    Let me say that I don't speak today for the full Advisory 
Council or any of the organizations with which I am affiliated, 
but I do speak as one who has long worked on issues related to 
partnerships between the government and nonprofits, both 
religious and secular. I also speak as a lifelong Baptist and, 
as a Baptist, I believe that the mandates to care for our 
neighbors and to provide religious freedom for all people are 
not only legal, policy, and ethical matters, they are also 
scriptural imperatives.
    In March the Advisory Council urged President Obama to take 
a wide range of actions to strengthen the constitutional and 
legal footing of the partnerships that it forms with nonprofits 
to serve people in need. And those involved in the council 
process have some serious differences on church-state matters, 
yet through some painstaking and long periods of work we were 
able to reach consensus on some key recommendations.
    As you have already noted, yesterday President Obama signed 
an Executive order that implemented many of these 
recommendations. This order is a major step forward in our 
efforts to create more clarity, transparency, accountability, 
and constitutional compliance in these partnerships.
    Let me just quickly mention, if I could, six of the changes 
the Executive order makes. First, the new order says that 
beneficiaries have the right to an alternative provider if they 
object to their provider's religious character, and the 
beneficiaries have to receive written notice of this and other 
rights at the outset.
    Second, the new order clarifies some fuzzy rules about uses 
of direct government aid, making it clear that such aid can't 
be used for explicitly religious activities, meaning activities 
that contain overt religious content, like prayer, worship, and 
proselytizing. The new order also directs an interagency 
working group to provide regulations and guidance on the need 
to cleanly separate any privately-funded religious activities 
from programs that are subsidized by direct government aid. At 
the same time, the order makes it clear that religious 
providers can retain a religious name and religious symbols in 
their building.
    Third, the order says government-funded programs have to be 
monitored to ensure that church-state rules and other rules are 
being followed, but the government must do so in ways that 
don't create excessive church-state entanglement.
    Fourth, the new Executive order says that the government 
must post things like grant and guidance documents on the Web, 
as well as lists of nonprofits that receive Federal social 
service funds.
    Fifth, the order says that decisions about awards of 
Federal social service funds must be free of even the 
appearance of political interference, and that those decisions 
have to be made on the basis of merit and not on religious 
affiliation or lack thereof.
    And sixth, as I have already mentioned, the order creates 
what I think is the first interagency working group to create 
uniform policies around these and other issues.
    Now, the new order doesn't call for churches to form 
separate corporations if they wish to receive direct government 
aid, and that is a change that 13 council members, including 
me, advocated as a way of insulating churches from government 
oversight. Also, as you have already noted in your remarks, one 
important issue--the employment issue--was put outside the 
council's charge.
    But the order adopts key consensus recommendations of the 
council, and I believe it is a great achievement, not only 
because it does so much to bring these efforts into line with 
religious liberty principles, but also because it does so with 
the backing of people who have been divided over these issues 
for a very long time. As you know, about 15 years ago some 
controversial policies started popping up in this area and we 
have been fighting ever since; but now we have got some common 
ground policies--not on everything, but on some important 
matters--and that is an important advance.
    As you know, in my written testimony I have addressed the 
issue of religion-based decision-making by faith-based groups 
in government-funded jobs. As I have already noted, the White 
House instructed the council not to address this issue, and it 
has said that it is dealing with the issue through a separate 
process, one that is not connected to the council process.
    It is critical to note that this debate about government-
funded--is about government-funded jobs, not privately-funded 
jobs. I fully support the ability of all religious 
organizations to make decisions on the basis of religion 
regarding jobs that they fund themselves. My Baptist church, or 
course, should be able to call a Baptist preacher; and a 
synagogue, of course, should be able to call a Rabbi.
    But subsidizing jobs with government money changes the 
calculus. We have a longstanding tradition--something that has 
already been mentioned--of equal opportunity in federally-
funded employment, and I believe that is a tradition that we 
should continue.
    In my view, it is wrong to allow any religious group, 
including my own, to place a religious test on a job that is 
funded by a government grant. Because current rules and 
policies permit this in some instances I believe this matter 
must be addressed. So I want to thank you for the opportunity 
to be with you, and I look forward to our discussion.
    [The prepared statement of Ms. Rogers follows:]
                  Prepared Statement of Melissa Rogers

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                               __________
    Mr. Nadler. Thank you.
    Professor Laycock?
    I think you were better off a moment ago, but maybe not 
close enough to the mike. Is the light on?

 TESTIMONY OF DOUGLAS LAYCOCK, ARMISTEAD M. DOBIE PROFESSOR OF 
 LAW, HORACE W. GOLDSMITH RESEARCH PROFESSOR OF LAW, PROFESSOR 
   OF RELIGIOUS STUDIES, UNIVERSITY OF VIRGINIA SCHOOL OF LAW

    Mr. Laycock. The green light? There we go. Well, it was on 
but it wasn't on brightly enough, turns out to be the answer.
    Thank you, Mr. Chairman. It is good to be back before this 
Committee.
    Let me begin by saying that I am a firm supporter of 
separation of church and state, but separation is not an end in 
itself; it has an underlying purpose. Separation is not about 
aesthetics or mechanics for their own sake; it is not about 
taking pictures off the walls or making sure that no government 
dollar ever touches anything religious. It is far more 
important than that.
    The purpose of separation of church and state is to 
separate the religious choices and commitments of the American 
people from the overriding power and influence of government, 
to ensure that Americans and their voluntary associations can 
act on their faith or on their lack of faith without government 
interfering and trying to persuade them or coerce them to 
change their faith commitments or the way they carry out those 
faith commitments.
    So how do we provide that protection in the context of 
charitable choice? As several of the Committee Members 
mentioned, government has used grants and contracts to the 
private sector for a very long time; it has used both religious 
and secular providers for a very long time.
    But before the first charitable choice legislation in 1996 
there was very little in the way of visible rules to protect 
religious liberty. Some government officials liked religious 
providers and some didn't, and many of them felt free to act on 
those preferences, to discriminate in favor of religion or 
against religion.
    The charitable choice provisions of the Welfare Reform Act 
enacted clear religious liberty principles for the first time. 
I can't speak to what the political motivations of the sponsors 
were, but the substance of that act stated some very important 
religious principles--religious liberty principles--no 
discrimination between religious and secular providers, no 
surrender of religious identity for the religious providers, no 
discrimination on the basis of religion against the recipients 
of the services, no coercion to participate in religious 
activities, the guarantee of an alternative secular provider to 
any recipient who asks for one, audit of the government money 
only, as long as it was segregated from the religious 
provider's money, no use of government funds to support the 
religious activities. Much of that was being written down for 
the first time.
    The Bush administration Executive orders that expanded 
these programs were much less explicit about many of those 
protections. Some of them were simply omitted.
    President Obama's Executive order yesterday, as Professor 
Rogers just summarized, makes the rules explicit for all 
programs and it creates a task force to work on further 
implementation issues, which is where the real difficult 
problems often occur. And that leaves employment as the 
principal disputed issue.
    The 1996 legislation says, the President's Advisory Council 
says, the President's Executive order says religious 
organizations with government grants and contracts need not 
surrender their religious identity. Nothing--nothing--is more 
important to religious identity than the ability to hire 
employees who actually support the religious mission and will 
faithfully execute it, and if you want to take that away you 
are saying the groups--the religious groups that participate in 
these programs have to secularize themselves in a very dramatic 
way. It uses the coercive power of the purse to force religious 
social service providers to become much more secular than they 
were.
    And we have a longstanding commitment in this country 
against invidious discrimination. Mr. Scott called it bigotry, 
and that is right. It is against the irrational exclusion of 
racial and religious minorities, and people on the basis of sex 
in contexts where those criteria are simply not relevant.
    If you are a religious organization, religious affiliation 
is relevant. It is not about bigotry; it is not about 
irrational exclusion. It is about the First Amendment. It is 
about assembling a group of like-minded people in pursuit of a 
common religious mission and a common activity.
    Religion is a protected class but it was never intended to 
protect--to make religion irrelevant in religious contexts. 
That doesn't protect religion; that doesn't protect religious 
minorities. It forces any religious organization, majority or 
minority, that participates in these programs to abandon an 
essential part of its mission.
    The government says, ``Here is a large pot of money. If you 
run good programs you can win grants, you can expand your 
operation, you can help more people in need, but if and only if 
you surrender your right to hire people who support your 
mission.'' That violates the fundamental purpose of separation 
of church and state.
    It uses the power of the purse to coerce religious 
organizations to become less religious and more secular, and 
that would be a fundamental policy mistake. This Committee 
should not try to force the Administration into doing that.
    One reason that separationists have historically opposed 
government funding of religious organizations is the fear that 
regulation and conditions will come with the money and the 
religious organization will be corrupted. There is no clearer 
example of that sort of corruption than forbidding these 
organizations to hire people who actually support their 
mission. I think the Administration's failure to act on the 
hiring issue is well advised.
    [The prepared statement of Mr. Laycock follows:]
                 Prepared Statement of Douglas Laycock

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                               __________
    Mr. Nadler. I thank the witness.
    Reverend Lynn?

   TESTIMONY OF BARRY W. LYNN, EXECUTIVE DIRECTOR, AMERICANS 
           UNITED FOR SEPARATION OF CHURCH AND STATE

    Rev. Lynn. [Off mike.]--the single most important action 
that remains is to undo President Bush's Executive orders and 
regulations that permit a religious entity that receives a 
government grant or contract to make hiring decisions for the 
very programs that are federally funded on the basis of 
religion. This is sometimes referred to as preferential hiring, 
but it is more accurately labeled simply as discrimination and 
it is ethically and legally wrong.
    President Obama knew this when he spoke as a candidate in 
2008 and affirmed that you can't use grant money to 
discriminate against the people you hire on the basis of their 
religion, and I would say the American people know it as well 
and that is why 73 percent of Americans polled that same year 
said that a religious group that wanted to engage in 
discriminatory hiring should not get tax dollars at all. It is 
terribly wrong to reject the best-qualified person for a 
secular job at a faith-based institution because he or she does 
not pass a religious litmus test.
    In my experience a Baptist does not ladle out rice in a 
soup kitchen differently than does a Buddhist. A Catholic does 
not tuck in the sheets at a homeless shelter in a way that 
differs from how it would be done by a Quaker.
    Some who lead religious organizations wouldn't call what 
they want to do unethical or illegal, or even wrong. They 
simply say they are more comfortable working with people who 
believe as they do--people like themselves.
    Many of us have heard all that before. We heard it about 
race; we heard it about gender. But level of comfort is not a 
constitutionally permissible basis for selecting what job 
another person can seek.
    Discriminatory hiring has very real consequences. Saad 
Mohammad Ali, a refugee from Iraq, had volunteered for 6 months 
at the charity World Relief up in Seattle. A coworker suggested 
he apply for a paid position as an Arabic-speaking caseworker. 
Just days later he was called and told not to bother applying 
because he was, after all, a Muslim and not a Christian.
    If World Relief were funded entirely with private dollars 
it would be allowed to make such judgments under Title 7 of the 
Civil Rights Act. Many of us might not like that but that is 
what the law permits.
    But when a religious entity gets dollars from taxpayers--
the taxpayers whose beliefs range from atheism to 
Zoroastrianism, from A to Z--the calculus quite properly 
changes. The civil rights framework of our country comes into 
play and such discrimination must be legally impermissible.
    I don't want to impair the religious character of any 
church, or temple, or synagogue, or charitable group. But the 
free exercise of religion is not burdened when a group 
voluntarily accepts government funds knowing that it contains 
constraints on certain religiously-motivated conduct like 
hiring only your own followers.
    The First Amendment to the United States Constitution is 
not an excuse to refuse to play by American rules when you are 
playing with Americans' dollars. And the rules at the Federal 
level do matter all over this country.
    A state-funded Methodist social service agency in Georgia 
felt that it had the right to deny a man named Alan Yorker a 
job as a psychologist. What had he done? He filled in his job 
application with the name of his Rabbi and his synagogue in the 
spaces marked ``pastor'' and ``church'' and then was told, ``We 
don't hire people of your faith.''
    Mr. Yorker filed a lawsuit. It has been settled in his 
favor.
    Some members of the President's Advisory Council claim that 
if we ``burden religious providers with hiring rules they will 
not accept government funds and this will reduce their ability 
to help people in need.'' This sometimes, to me at least, 
sounds more like a threat than it does a moral rationale.
    Indeed, if World Vision, which refuses to hire non-
Christians, refused to take the $343 million worth of 
government grants it receives there are dozens of other 
charities, religious and secular, eager to apply for those 
grants. Most religious charities have always hired the best 
people they could find to work out their social missions 
without asking them to swear allegiance to any specific 
religious creed and they would continue to do so.
    Prohibiting discrimination on the basis of religion 
requires relatively simple action. Congress can do it with a 
few lines of statute or the President with a short Executive 
order undoing that wrong initiated less than a decade ago.
    This is not hard. It is not reform of the health care 
system. It is not extricating the United States from 
Afghanistan.
    It is, Mr. Scott, not rocket science.
    It is simple justice. Thank you.
    [The prepared statement of Rev. Lynn follows:]
                    Prepared Statement of Barry Lynn

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                               __________

    Mr. Nadler. I thank you, Reverend Lynn.
    We have two votes on the floor. We have 4 minutes and 28 
seconds remaining but that is congressional time; we will have 
a little more time than that.
    So there is about 5 minutes remaining on this vote, 5 
minutes on the next vote, and then I ask the Members of the 
Committee to return as soon as possible after that second vote. 
And meanwhile, I will declare the hearing in recess.
    [Recess.]
    Mr. Nadler. The hearing will reconvene and I apologize to 
everyone for that delay. Hopefully it won't occur again, but it 
might.
    I will begin the questions by recognizing myself for 5 
minutes.
    First, for Professor Rogers, you testified that the Supreme 
Court has never interpreted the free exercise clause to prevent 
the government from placing nondiscrimination conditions on 
grants to or contracts with religious organizations, including 
the requirement that providers abide by longstanding 
commitments to equal opportunity in federally-funded jobs. 
Professor Laycock and the Office of Legal Counsel contend that 
the Religious Freedom Restoration Act, RFRA, compels a 
different result.
    Congress was very clear that the purpose of RFRA was to 
restore the pre-Smith application of--that is--I don't think I 
have to explain to this audience what Smith was--the pre-Smith 
application of strict scrutiny to free exercise claims. If, 
under the pre-Smith application of strict scrutiny restored by 
RFRA, the government could place a nondiscrimination condition 
on grants how is it possible that RFRA compels a different 
result?
    And let me add that many of us have urged the Obama 
administration to review the OLC opinion on this. When they do 
so, do you see any grounds for them to uphold that opinion or 
should it be revised or withdrawn?
    Ms. Rogers. Yes, Chairman Nadler. Thank you for that 
question.
    I believe that the opinion--the World Vision opinion--that 
the Department of Justice----
    Mr. Nadler. Would you speak closer to your mike?
    Ms. Rogers. Sure--that the Department of Justice offered 
should be reconsidered, and in my view it should be withdrawn 
because in my view it incorrectly interprets the burden prong 
of the Religious Freedom Restoration Act, finding that the 
requirement that a nondiscrimination provision in the RFRA--in 
the actual grant cannot flow, or cannot be placed on the 
recipient because of RFRA. The opinion says that that is a 
substantial burden, and I just think they got that wrong.
    Mr. Nadler. You think that is not a substantial burden?
    Ms. Rogers. I think it is not a substantial burden. It is a 
government grant that applies to--the nondiscrimination clause 
applies to positions that would be within the government 
program, but it doesn't apply to positions that would be 
outside the government program and privately funded, so there 
is certainly a lot of latitude there. And it is something that 
an organization could take the grant or not take the grant. 
They are under no duress to take the grant and if they don't 
agree----
    Mr. Nadler. And the necessity not to take the grant would 
not be a substantial burden?
    Ms. Rogers. Not taking the grant would not be a substantial 
burden, yes. I agree with that.
    So my view is that that opinion incorrectly interpreted the 
burden analysis, and so I do hope that the Department of 
Justice will reconsider that opinion and withdraw that 
particular opinion.
    Mr. Nadler. And the first part of my question, which was 
the--that under pre-Smith application of strict scrutiny 
restored by RFRA it was always assumed at that time that the 
government could place nondiscrimination conditions on grants. 
How can RFRA compel a different result?
    Ms. Rogers. I don't believe that RFRA does compel a 
different result, and Chairman Nadler, you were a leading 
Member and very active in the RFRA debate, and I think what was 
true of that coalition that passed RFRA, which was so broad, is 
that there were different opinions about matters like these 
that we had to say, I think, that these matters would be 
unaffected by RFRA.
    Mr. Nadler. I agree. I should say the legislative intent 
has sometimes--I once lost a lawsuit in the New York State 
courts on the legislative intent of a statute that I was one of 
the principal authors of, so you never know.
    Professor Laycock, you testified that protecting the right 
of program beneficiaries by the guarantee of a secular 
alternative to religious providers is fundamental to these 
programs. I think that is a direct quote from your testimony.
    Does that requirement have constitutional dimensions? That 
is, is it required by the free exercise or establishment 
clause, in your opinion?
    Mr. Laycock. There is not a Supreme Court case directly on 
point, but yes, I think the requirement of a secular 
alternative is of constitutional dimension. The government 
cannot force recipients into a religious alternative as the 
only alternative available.
    Mr. Nadler. So you think it is of constitutional--so your 
answer is yes?
    Mr. Laycock. My answer is yes.
    Mr. Nadler. And what are or should be the consequences if 
we cannot ensure alternatives in that case?
    Mr. Laycock. Well, I mean, the premise of that question is 
ensuring the secular alternative is difficult. It takes some 
money and it takes some planning. And if you have a beneficiary 
request a secular alternative and doesn't get it you have got a 
constitutional violation.
    Well, then what is the remedy for that violation? I don't 
think it is to shut down the entire program. I think you have 
to have a remedy focused on that individual--on that 
individual----
    Mr. Nadler. Well, what would be the remedy? Not to shut 
down the entire program--is there a different remedy?
    I mean, we are in a situation where obviously funding is 
tight; it is going to be tighter in the next few years or 
decades. So what would be the remedy if it is unconstitutional 
not to have a secular alternative?
    Mr. Laycock. The remedy is for the court to order the 
agency to fund a secular alternative, and if that turns out to 
be flatly impossible on the ground then I don't know where we 
are. But the remedy is to create the secular alternative.
    Mr. Nadler. Which, yes, okay. So, in other words----
    Mr. Laycock. And I would think, sir, in an individual case 
it is always going to be possible. What is difficult is to do 
it in a structural manner so that we can be confident it is 
always going to be there for any beneficiary in the----
    Mr. Nadler. All right. Now, in effect you are saying that 
one solution is to--to concerns about religious discrimination 
in federally-funded jobs is simply to fund a diverse range of 
employers. Some will discriminate based on religion, some will 
not, so there is an alternative available.
    Setting aside other possible objections, how do we square 
this with the consensus position taken, I believe, by everyone 
in the witness table today, by the Bush administration, by the 
Advisory Council, and by the new Executive order, that the 
government absolutely should not consider religious affiliation 
or lack of affiliation when making grants and distributing 
funds? Doesn't this solution actually require consideration of 
affiliation and beliefs in order to make sure they have some 
with and some without?
    Mr. Laycock. No, I don't believe it does. I think 
connection runs the other way, that when the government says, 
``You have to secularize your hiring in order to be eligible,'' 
that is very similar to saying, ``We only consider secular 
providers.'' And I think the logic of these programs is, you 
know, award the grants without regard to religion and on the 
basis of the merit of the programs. The distribution of the 
grants won't be perfectly even but it will be----
    Mr. Nadler. But how do you--what I don't understand is how 
do you figure out that some of the groups that you are going to 
be funding are not going to discriminate so that you have 
alternatives, knowing that some will, if you don't ask and if 
it is impermissible to ask?
    Mr. Laycock. The premise of the program is you award the 
grants on the basis of merit, and you assume that in the real 
world that will result in some kind of a distribution, that it 
is not going to be the same group getting the grant every time. 
And if it is then we want to check whether the funding agency 
is really awarding on the basis of merit or whether----
    Mr. Nadler. Some group may really be meritorious--others.
    Mr. Laycock. Pardon?
    Mr. Nadler. It is always possible that some group really is 
so meritorious that it gets all the grants.
    Mr. Laycock. It is possible. It is possible. But I think 
our experience has been that generally you get a distribution.
    Mr. Nadler. Well, let me ask you one last question. Would 
the unavailability of nondiscriminating employers or the lack 
of jobs at those employers change the results? And do 
prospective employers have to relocate or take lower-paying 
jobs and would this violate the principle of alternative 
employers?
    Should I repeat that?
    Mr. Laycock. Well, I think we have moved from the principle 
of alternative providers for beneficiaries to alternative 
employers for job seekers, and----
    Mr. Nadler. I thought we were talking about that.
    Mr. Laycock. Well, let's review the bidding and make sure 
we haven't missed any---- [Laughter.]
    I said I think it is a matter of constitutional principle 
that the beneficiaries of this program, the recipients of the 
services, have a secular alternative----
    Mr. Nadler. Yes, okay.
    Mr. Laycock [continuing]. Available so that they are not 
forced into a religious provider against their will.
    With respect to employment----
    Mr. Nadler. It is a different question.
    Mr. Laycock.--I don't think they are guaranteed a 
federally-funded secular employer of their choice. I think as a 
practical matter if we award the grants and the contracts on 
the basis of merit there will be a diversity of federally-
funded private sector employers out there. But I don't think 
that job seekers get guarantees in the way that the 
beneficiaries----
    Mr. Nadler. Thank you. My time is long expired.
    I now recognize the Chairman of the full Committee. Oh, 
Chairman defers. I will recognize the gentleman from Virginia, 
Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    You know, one of the things that is confusing me on this 
secular alternative is what is going on in the program that 
requires an alternative?
    Reverend Lynn?
    Rev. Lynn. I think that is an excellent point. One of the 
things that I disagree about in regard to the Executive order 
yesterday was the determination that religious icons and 
symbols do not need to be removed from the wall. On the other 
hand--on a wall where a federally-funded service is being 
provided.
    I just find it unusual that you cannot, under the 
regulations--presumably if they will be promulgated after the 
Executive order--that you cannot use these government funds to 
proselytize or to evangelize but it is perfectly acceptable to 
have them occur, whether that is a counseling session or a 
hunger program, in a place that contains the very symbols, 
icons, and statements of the faith. I mean, what could be more 
of an evangelistic opportunity than to put up a quote from the 
Christian Bible suggesting that Jesus is the only way to 
salvation, and to have that appear on the walls of a federally-
subsidized program of any kind?
    I think that is a fundamental problem. If you have a person 
who does not want to have a religious provider then it seems to 
me that you must guarantee, and there has to----
    Mr. Scott. If the provider happens to be of a certain 
religion and the beneficiary just doesn't like that religion 
and it is a secular program can he say, ``Well, I don't like 
that provider's religion. I don't want somebody of that faith 
counseling me on my drug problem. I want somebody of another 
faith''? Is that a legitimate complaint?
    Rev. Lynn. I think it is a legitimate complaint, and I 
think it is even more legitimate----
    Mr. Scott. I mean, this doesn't have anything to do with 
faith-based; I just don't like the man's religion.
    Rev. Lynn. Well, but I think that the----
    Mr. Scott. Secular program, right?
    Rev. Lynn. Yes, but the beneficiary may well understand, 
particularly if he or she is in a room----
    Mr. Scott. Well, you are talking about is it--I mean, if it 
is a secular program and it is run as a secular program and you 
just don't happen to like--you just found out the guy's 
religion is one you don't agree with, ``I want someone of 
another religion.'' I mean, there used to be a time when 
hospitals, you know, ``I don't want a doctor of that race.''
    You know, what I mean, is this--if it is a secular program 
run appropriately--Professor Laycock, if you have got a secular 
program run appropriately without the proselytizing what is the 
complaint?
    Mr. Laycock. Well, if you wholly secularize the religious 
providers then I think----
    Mr. Scott. No, the program, not the provider. I mean, 
people have--people will come in with their religion. You have 
a program that is a secular program if you are suggesting that 
things are going on that are actually proselytizing then you 
have got another problem. Not just the alternative, you have 
got another problem.
    Mr. Laycock. As I understood the idea for these programs 
back in the beginning--and there has been some substantial 
evolution since 1996--but as I understood the point back in 
1996 the program had to provide the secular service that the 
government was willing to pay for and had to provide it----
    Mr. Scott. Well, let me tell you, back in 1976 the bill--
the original bill--allowed the program to require, as a 
condition to participation, that you take Communion and come to 
Wednesday night prayer sessions.
    Mr. Laycock. But you got that fixed before it was enacted.
    Mr. Scott. Okay, well yes. That is right. And we think we 
got it fixed so that there is no proselytization.
    Mr. Laycock. But what it said was, ``Government funds 
cannot be used to pay for proselytization.''
    Mr. Scott. Okay.
    Mr. Laycock. And one form of implementation that would have 
been consistent with that 1996 legislation would have been to 
say, ``The secular part of the program is paid for with 
government money; religious add-ons to the program were paid on 
with--paid for with private money, but they don't have to be 
cleanly separated.''
    Mr. Scott. Well, yes they do--well, when we passed 
legislation out of this Committee it did have to be cleanly 
separated so that you could participate in the government-
funded programs without any proselytizing added on, because as 
a matter of fact, the concern was the original bill said ``paid 
for with government money,'' which opened the opportunity for 
the youth choir director to come in and--volunteer to come in 
and lead the group in praise and prayer. We made sure that that 
was not possible. The program had to be secular.
    Mr. Laycock. I understand that. In the intervening years we 
have added the separation requirement that any religious add-
ons have to be separate in time or separate in space. That may 
well have been a mistake, but that is what we have done.
    Mr. Nadler. Excuse me. That add-on may have been a mistake 
or the original may have been a mistake?
    Mr. Laycock. The requirement of separation may have been a 
mistake, but that is the direction we have gone in. And that 
does reduce the need for the secular alternative. I don't think 
it eliminates.
    If we can still have religious art on the walls--and I 
don't think we should take it down--then the beneficiaries have 
a reasonable religious objection to that. They can still be 
invited to the separate program that is going to occur later in 
the day and they may not want to deal with that, but you are 
right. The more we secularize the program the less----
    Mr. Scott. So your assumption is that--your assumption is 
that there is still some proselytization going on in some of 
these programs for which you need an alternative.
    Mr. Laycock. Well, there may be some proselytization going 
on----
    Mr. Scott. Let me get on another question because--let me 
get on another question.
    Reverend Lynn, you mentioned Dr. Yorker, the psychologist 
who couldn't get a job at a program because of his religion. It 
is my understanding that the faith-based office is treating 
discrimination cases on what they call a case-by-case basis, 
whatever that means.
    Can you explain how a--there is only one drug counseling 
program in the area; it is run by a faith-based organization 
that is discriminating. How does Dr. Yorker get a job as a drug 
counselor anywhere in the county? Or does his religion 
essentially eliminate any possibility of employment in a drug 
program?
    Rev. Lynn. I think the answer is that he is unlikely to 
find any job in that county----
    Mr. Scott. Because of his religion?
    Rev. Lynn [continuing]. Because of his religion. And this 
could be a county-wide phenomenon or in entire states one could 
imagine a condition where he could not find a reasonable job if 
those would-be employers, including the religiously-based ones, 
are allowed to discriminate on the basis of religion.
    As far as the case-by-case review, we have repeatedly asked 
the Administration, the Justice Department, to explain what 
this case-by-case review is. But a case-by-case review that 
results in permitting discrimination in some cases but not 
others--if that is happening we have no standards, there are no 
written documents, there are no rules about how this is being 
applied. I don't think you can have a case-by-case evaluation 
if some cases lead to saying no on the basis of religion to 
that job seeker.
    Mr. Scott. And, Mr. Chairman, if I can just get one thing 
on the record from Ms. Rogers--Professor Rogers, prior to 2001 
or late 2001 the Bush Executive order, which changed the 
Johnson Executive order, that constituted a change. Is it true 
that before then if you get a Federal contract you could not 
discriminate based on religion?
    Ms. Rogers. Yes. That was the 1965 Lyndon B. Johnson 
Executive order that related to contracts and was amended by 
the Bush 2002 Executive order.
    Mr. Scott. After 2002, if a faith-based organization is 
running a program, what legal prohibition is there against 
discriminating openly and notoriously on the basis of a 
person's religion?
    Ms. Rogers. Well, for that you would have to look at the 
program at issue because there are different statutes. For 
example, a charitable choice statute would allow that----
    Mr. Scott. If there is no specific prohibition against 
discrimination in the program----
    Ms. Rogers. No overarching prohibition against 
discrimination? In some programs there are conditions that are 
like the one that is at issue in the World Vision case where 
the Justice Department issued a memo. There was a 
nondiscrimination provision that related to employment in that 
particular program. But other programs contain charitable 
choice provisions that would allow the discrimination and so we 
have----
    Mr. Scott. Or they are silent.
    Ms. Rogers. Or they are silent, yes.
    Mr. Scott. And in that case a program can have a practice 
of discriminating against persons in employment solely based on 
religion?
    Ms. Rogers. Yes. In those cases where it is, you know--
there is a charitable choice statute, for example, they could.
    Mr. Scott. Or if there is no specific prohibition?
    Ms. Rogers. Well, I suppose that you would have to take a 
look at regulations and see what is there, but it is 
conceivable that that might be the case.
    Mr. Scott. And so a person applying for a job paid for with 
Federal money can be told, ``We don't hire people of your 
faith,'' just like Mr. Yorker was told. That would be legal in 
those programs?
    Ms. Rogers. If it was a religious group and they had the 
clearance--the charitable choice-type language--then they would 
be able to make those decisions on the basis of religion with 
regard to federally-funded jobs.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    I now yield 5 minutes to the gentleman from Arizona.
    Mr. Franks. Well, thank you, Mr. Chairman.
    And thank you all for being here.
    Mr. Chairman, I think one of the challenges we have in a 
situation like this is that there are organizations out there 
that seem genuinely committed to trying to erase any sort of 
religious expression from American life, and I am not going to 
try to make that case here this morning but I believe it is 
part of the issue. I wrote a bill here about 15 years ago that 
passed in the Arizona legislature that simply allowed people--
private individuals on a voluntary basis--to contribute to a 
scholarship fund for children to go to a school of their 
parents' choice. And that is private dollars that never touched 
the public coffers whatsoever.
    And the rub came in when some of those parents chose a 
religious school for their child. And of course, the ACLU, and 
Mr. Lynn, and others sued us in the Federal courts for the last 
15 years--last 12 years. And oral arguments were heard in the 
U.S. Supreme Court here about 2, 2\1/2\ weeks ago.
    And I think the Supreme Court will uphold the Arizona 
provision because otherwise they would be saying that every 
dollar in everyone's pocket is public money. That is exactly 
what the ACLU is arguing, that that is public money simply 
because it is subject to a tax credit.
    I am wondering how long it will be before the ACLU argues 
that money given to a church, because there is special tax 
treatment involved there, that it is deductible, that that 
money is also public money and that the church, if you are a 
Jewish synagogue, that you have to hire a Baptist to be your 
counselor for young marrieds. I mean, it just--the 
possibilities are endless.
    And as we all know by now, that yesterday President Obama 
issues a new Executive order dealing with the White House 
office of faith-based and neighborhood partnerships, but it was 
silent as to the degree to which religious entities could 
continue to enjoy the freedom of association through hiring. 
Now, the order's lack of clarity has breathed a new life into 
what was once an otherwise long-settled question of whether 
grant recipients can hire and fire based on religious 
association.
    For 50 years our courts have said yes, but our current 
Administration officials have said that those questions will be 
answered on an ad hoc basis. I don't know how a religious 
entity can possibly know what is permissible and what is not 
permissible under the Administration's ad hoc approach.
    I mean, ad hoc is sort of synonymous with ``making it up as 
you go,'' and I think this violates the basic notions of due 
process. I mean, King George was famous for his ad hoc approach 
to almost everything.
    So I guess, Mr. Laycock, my first question here, before I 
get too exercised, is, is the Administration's ad hoc policy a 
clear victory for those, if there are such groups, that would 
seek to deny religious entities the right to associate with or 
employ only those who share their religious beliefs? I mean, do 
you think that is a victory for those groups that want to 
remove that liberty to religious groups?
    Mr. Laycock. No. I think it is postponing the issue. And 
none of the three witnesses like case-by-case or ad hoc, all 
right? Professor Rogers and Reverend Lynn would say you can 
never hire on the basis of religion if you have a Federal 
grant, and I would say you can.
    There is some room for case-by-case. There may be some jobs 
where, you know, where this is a determining issue, where it 
doesn't really look like a burden, but I think most of the 
three of us believe--all three of us believe that in most cases 
there is a clear rule one way or the other, and the 
Administration's case-by-case approach seems to be a way of not 
having to make that hard choice.
    Mr. Franks. Yes. Well, obviously I couldn't agree with you 
more, and it frightens me to death that there is a consensus on 
this point, but I am grateful.
    I guess my last thought, Mr. Chairman, is that this is a 
pretty important area that we are dealing with, and it is my 
judgment that the ability to have a private donor intervene in 
the protocol here is the best approach--in other words, 
allowing individuals to give to these things and then get an 
even more powerful tax advantage than just deduction because 
this takes these burdens off of government and puts them in a 
situation where private individuals can vet these groups much 
better than government seems to.
    And I think that it kind of builds a firewall here that 
would probably make both sides a lot happier. Now, it depends 
on how the Supreme Court comes down on this case from Arizona, 
but I think that might be some--I don't know, you know, I don't 
know if I dare think that the ACLU would be happy with that 
since they are suing us in Federal court right now on it, but I 
think that we have to do something like this because otherwise 
we are going to say that, you know, anything that--within the 
shadow of the American flag can't be religious, and I think 
that that would undermine everything that the country--at least 
the ideals that catalyzed it in the first place.
    My last thought, then, Mr. Laycock. Don't you think that if 
this ad hoc approach happens that there are going to be a lot 
of litigation and arguments over it because of the lack of 
clarity, and how will the cost of litigation be borne, and 
would those principles be--would some forebear on those 
principles until it was decided in court, and wouldn't this be 
a pretty serious chill on the basic freedom of association for 
religious entities that couldn't find the financial ability to 
fight the Obama administration to protect their rights?
    Mr. Laycock. Well, the litigation would most commonly come 
in the form of an employee suing a religious agency for not 
hiring them or not promoting them and if the employee wins the 
agency has to pay the employee's attorneys fees. There has been 
remarkably little of that litigation.
    Folks who don't get hired tend to go on to the next job and 
not to file lawsuits so that most employment discrimination 
litigation is about promotions and discharges or pay rather 
than about hiring. So, so far the litigation burden has not 
been bad.
    Mr. Franks. Well, Mr. Chairman, I think that is great but I 
think that the ad hoc rule of the Administration is an open 
invitation for everybody just to sue because it is Friday. And 
so with that, I will yield back.
    Mr. Nadler. I thank the gentleman.
    I now recognize the gentleman from North Carolina.
    Mr. Watt. Thank you, Mr. Chairman.
    I think Mr. Franks and I have found some common ground 
here--maybe not in the consequences of what this rule will lead 
to. Our concern is that it will lead people to--groups to 
discriminate and take their chances because, as has been 
indicated, seldom do even--do people file lawsuits.
    They, in most cases, don't even know they have been 
discriminated against. They don't find out. It is not 
articulated as clearly as the case the Reverend Lynn described.
    So I am with you on that. I think all three witnesses seem 
to be with you on that. It seems to be delaying a very 
difficult choice for the Administration, and I want to come 
back to that.
    But first of all, I want to welcome Professor Rogers. Not 
that I don't welcome the other two gentlemen also, but 
Professor Rogers is from Wake Forest University Divinity 
School, and at least a part of Wake Forest University is in my 
congressional district--not all of it. I am not sure where the 
divinity school is located so I am not sure whether you are in 
my district or not in my district, but since all politics is 
local, I want to make sure I welcome either my constituent or 
my near-constituent.
    Ms. Rogers. Well, thank you. I can solve this because I 
actually live in Falls Church, Virginia, but teach classes that 
meet in Washington and in North Carolina.
    Mr. Watt. So she is not my constituent. I take back my---- 
[Laughter.]
    Ms. Rogers. I appreciate your welcome nonetheless and will 
bring it back to my----
    Mr. Watt [continuing]. Take back my special welcome and 
welcome all three of you on an equal footing in that case.
    But I do appreciate you extending your wisdom to Wake 
Forest, and I am sure the folks at Wake Forest University 
appreciate it.
    Let me come back to this issue, because Professor Laycock 
actually said the Administration seems to be avoiding a 
difficult decision. It went out of its way, apparently, to take 
this issue of employment out of the jurisdiction of the 
commission that was set up.
    Professor Rogers, you are on that commission. Am I missing 
something here? I mean, what is up with the Administration 
delaying a difficult decision? I mean, either you can 
discriminate or you can't discriminate, and I don't know that 
allowing it to happen on a case-by-case basis or evaluating it 
on a case-by-case basis--I am with Mr. Franks on that.
    What was the rationale for taking that part of this from 
the commission's portfolio?
    Ms. Rogers. Well, there wasn't a lot of discussion about 
it, but--from the Administration to us--but they were aware, of 
course, of, you know, a lot of the law in this area and felt 
that it was important for them to make this----
    Mr. Watt. Okay. Well, now, this Administration has been in 
power now for 2 years. Is there any indication of when they 
will make this decision? You know, I am----
    Ms. Rogers. I have no information on that.
    Mr. Watt. Okay.
    Ms. Rogers. No more than you do. I will say that people on 
the council--there were some of us who really wanted to address 
this issue within the context of the council; there were other 
council members who didn't want to, and some in between. So 
there were different feelings about that, but the 
Administration decided it would handle it through this separate 
process, and I don't have more----
    Mr. Watt. What is the separate process?
    Ms. Rogers. I have no information.
    Mr. Watt. Does anybody on this panel know what the separate 
process is?
    Reverend Lynn?
    Rev. Lynn. We, along with 57 other groups, have written to 
the attorney general that followed up on this question of when 
this policy will be discussed, when this Office of Legal 
Opinion memorandum will be reviewed, and I hope repealed, and 
we have had no luck whatsoever in moving them forward toward an 
answer, much less a change in the policy. And it is deeply 
disappointing.
    Mr. Watt. Okay. Well----
    Ms. Rogers. Representative Watt, I was just going to say 
that, if I may, that issue is very important in my mind, and 
obviously in yours as well. I do believe, though, that the 
Executive order and the recommendations that the council did 
make on a range of other issues are very important----
    Mr. Watt. Oh, yes. I am not diminishing the value of the 
commission's work. I am just----
    Ms. Rogers. I didn't think you were, but I just wanted to 
raise those again because that was quite a bit of work and kept 
us very busy and was something that we feel very strongly 
about, these other issues. Now, the council itself--the 
membership of the council--would divide on the employment 
issue----
    Mr. Watt. Now, am I clear, Professor Laycock, that you are 
in a different position on how that issue ought to be resolved 
from the other two members of this panel?
    Mr. Laycock. Yes, sir.
    Mr. Watt. You believe that, using government money, a 
religious institution should be able to discriminate based on 
religion.
    Mr. Laycock. Yes. Yes, I believe we should not use the 
government money to force the religious organization to change 
its----
    Mr. Watt. So if the objective of an afterschool program is 
to get kids to perform better and there are two applicants, one 
of whom is clearly superior to--in achieving that objective--a 
teacher, long experienced in achieving that objective--the 
other one has no experience but happens to be a member of the 
particular faith, you think it is fine for that employer to 
select the person based on that person's faith?
    Mr. Laycock. Well, in that example it probably isn't. 
Recall the----
    Mr. Watt. Well, you know, either--we got a black or white 
rule here. That is what all of us have been advocating for a 
rule----
    Mr. Laycock. More than one rule.
    Mr. Watt [continuing]. And I agree we need a rule. You 
can't have it both ways. You can either discriminate or you 
can't discriminate.
    Mr. Laycock. You can discriminate, but the----
    Mr. Watt. You said you believe that they ought to be able 
to discriminate.
    Mr. Laycock. The organization also has to win the grant on 
the merits. It has to be the best at delivering the services. 
And if it is hiring unqualified people it is not likely to win 
many grants.
    So the realistic comparison we are talking about for 
groups----
    Mr. Watt. So you would take a----
    Mr. Laycock [continuing]. A few relatively qualified 
people, one of whom also supports the mission and----
    Mr. Watt. Let's change the equation, make sure that it is 
clear. This person has no qualifications but happens to be a 
Baptist or--and this is a Baptist program--Baptist-run program. 
You think the--using Federal dollars we ought to support 
allowing them to use Federal dollars for that purpose?
    Mr. Laycock. Yes, but only so long as they are the best at 
providing the service. And your hypothetical doesn't exist in 
the real world. They are not going to be the best----
    Mr. Watt. That is not a trick question. I am just----
    Mr. Laycock. I understand.
    Mr. Watt [continuing]. Just trying to be clear on--either 
one of the other two witnesses agree with that?
    Rev. Lynn. I certainly don't agree with that----
    Mr. Watt. Okay. I think I got that from your testimony.
    What about you, Ms. Rogers? You equivocated a little bit 
more than Reverend Lynn did. What about you, Professor Rogers?
    Ms. Rogers. Yes, I disagree. I believe that when it is 
involving private money--the religious organization's own money 
given by tithes and gifts of the people that subscribe to that 
faith--then there should be full freedom to make religion--
religious calls on who is hired. Of course, Baptist churches 
should be able to hire Baptist preachers, as I said at the 
outset. But the money--direct government aid--changes the 
calculus.
    Mr. Watt. Okay. All right.
    Again, I am not--you know, I am just trying to make sure we 
get the record----
    Ms. Rogers. Right. And I would say that also that 
positions--an organization--a religious organization could 
receive a government grant and I think it should not be able to 
make religious calls on the positions that are subsidized by 
that grant money, but it is positions that are outside, that 
are privately funded, then they should be able to make 
religious calls on those positions even though they are still 
getting a government grant. I just wanted to----
    Mr. Watt. I don't know how you are going to do that, but--I 
mean, money is fungible, and unless you set up two separate 
organizations I don't think you can do that. But, you know, 
again, this is not intended to create an overarching debate. I 
am just trying to get this specific principle and where these 
three witnesses come out on this.
    And so my time has long since expired so I will----
    Mr. Laycock. If I might add, sir, very briefly, it is also 
fairly common to have employees who are paid 50 percent on the 
grant and 50 percent with other funds.
    Mr. Watt. So you would allow them to discriminate 50 
percent of the time, or----
    Mr. Laycock. I would allow them to hire people who support 
their mission and preserve their religious identity.
    Mr. Watt. You sound as wishy-washy as the Administration on 
this.
    Mr. Laycock. I would allow them to hire. You call that 
discrimination, I call that--that is what religious 
organizations do.
    Mr. Watt. Yes. Well, I agree. They do, and I actually 
sanction them doing it with their own money. I just can't 
sanction them doing it with taxpayer money, so that is the 
divide. I mean, we are not--we are all adults here.
    I yield back.
    Mr. Nadler. Thank you.
    I just observed that with what Professor Laycock just said, 
then you have not the 50-50 situations but the round situation, 
for instance, where 950 employees were paid 95 percent with 
Federal money and 5 percent with non-federal money, which 
perhaps presents a different aspect of the case.
    That concludes our----
    Mr. Conyers. I don't think so.
    Mr. Nadler. I am sorry, I didn't--the Chairman of the full 
Committee.
    Mr. Conyers. Thank you very much.
    I wanted to ask Chairman Bobby Scott if he had an 
observation that he wanted to weigh in on before I began.
    Mr. Scott. Do we have a definition--is there somewhere 
where there is a definition of what faith-based means? I mean, 
you kind of know it when you see it if it is a church, but if 
you just have a bunch of people who declare themselves to be 
religious are they exempt from civil rights laws under this 
theory?
    Rev. Lynn. In general, if one declares oneself to be a 
church, for example, you are presumed to be a charitable 
501(c)(3) organization, and many churches never strictly apply 
for that; they are----
    Mr. Scott. Well, I mean, for the purpose of this law, if a 
bunch of us get together, happen to be the same religion, can 
we declare ourselves a religious organization and therefore 
exempt because we just feel so strongly--we just don't want to 
hire people of that religion?
    Rev. Lynn. I think that is perfectly permissible under the 
rules that are still in effect from the last Administration, 
unchanged by this one.
    Mr. Scott. Okay. The other question is, can you tell--just 
for the record, what is the law--present law on direct 
contracting with religious organizations and how it differs in 
this context with a voucher situation?
    Can the Federal Government contract with a church to 
provide services, and has that always been the case or has 
there been an evolving standard? And does the fact that it is a 
voucher where the beneficiary is actually making the choice 
make a difference in the proselytization that is going on in 
what would essentially be a federally-funded, or at least 
partially federally-funded, program?
    Ms. Rogers. Congressman Scott, that was one issue that we 
asked in the Executive order. We asked the Administration to 
opine on because we couldn't agree, in the Advisory Council, 
about that. Some in the Advisory Council would cite the school 
voucher decision--the Zelman decision from 2002 that upheld the 
fact that there can be some programs that include religious 
schools in them where people can use the voucher at the 
religious school----
    Mr. Scott. But the choice is the parents'; it is not the 
state's.
    Ms. Rogers. Right. That that breaks the circuit in the 
Supreme Court's view between the connection between church and 
state and thus makes it permissible in their view. Some believe 
that that decision applies and makes it so that you could take 
a social service voucher to a drug rehabilitation program and 
allow--that program could include, you know, part of the way 
you get off drugs is to accept our ideas about Jesus Christ and 
what he can mean for your life----
    Mr. Scott. And that is with a voucher. But can you have a 
direct funding of a religious organization directly----
    Ms. Rogers. With that type of content you could not. Now, 
let me say that some of us would disagree with that reading, or 
at least question the indirect application in the social 
service voucher context, that there might be some differences 
between the school voucher context and the social service 
voucher context.
    When it comes to direct aid what we have said--what the 
Administration has said in the Executive order and what we said 
in our recommendations was that programs that are funded by 
direct aid cannot have religious content. That is, they cannot 
include worship, prayer, religious instruction, any of that----
    Mr. Scott. Or anything that would provoke someone from 
wanting an alternative service?
    Ms. Rogers. Well, your question earlier, I think, that it 
is clear in the Executive order that that program that is 
funded by direct aid has to be free of explicit religious 
content, but a beneficiary might feel that if they don't want 
to enter a church for some religious reason, or perhaps for a 
non--you know, they just object to having to go to a church, or 
to go into a room, or go into a building that has religious 
symbols and the like, so we wanted to make sure that we 
provided that notice of that right for that kind of person, 
even if there isn't religious content in the direct--the 
program that is funded by direct aid, that they would have a 
secular alternative if they want one.
    Mr. Conyers. Thank you. I am so sorry that my colleague 
from Arizona isn't with us, Trent Franks, but he will, of 
course, hear about this. But his claim that for 50 years the 
courts have said religious organizations can discriminate in 
employment based on religious stands a little bit closer 
scrutiny.
    As a matter of fact, the only way that could possibly apply 
is to privately-funded religious activities. But that does not 
apply when you are talking about taxpayer-funded activity.
    Do you agree, Reverend Lynn?
    Rev. Lynn. I certainly do. I have no idea what cases you 
could cite over a 50-year period that reached the conclusion 
that Congressman Franks has reached. And in fact, there is very 
little hard, black-letter law on this matter, very few cases. 
There is certainly not 50 years in the direction that Mr. 
Franks has discussed. It simply is not there.
    Mr. Conyers. And I wanted to welcome you. I noticed my 
colleague, Mr. Watt, welcomed Professor Rogers. I would like to 
welcome you, only the law school you went to isn't anywhere 
remotely near my congressional district, but I do it anyway.
    Rev. Lynn. Well, I appreciate that. I have spoken at law 
schools in your district.
    Mr. Conyers. That is pretty close.
    Do you agree with this discussion, Ms. Rogers?
    Ms. Rogers. Yes. I don't know what his citation to a 50-
year precedent is--I am sorry he is not here to answer that 
question. I don't know what he was referring to.
    I think we do have this long tradition that many of you 
have referenced starting, I think, with FDR in the 1940's about 
equal opportunities in government-funded--in federally-funded 
employment, and that is a precedent that has been longstanding 
that I am quite familiar with. So I don't understand the 
reference that he made.
    Mr. Conyers. And, Professor Laycock, may I be bold enough 
to solicit your agreement in this discussion?
    Mr. Laycock. Sure. I assume he must have been referring to 
the 702 exemption in Title 7, but as all three witnesses have 
said, you know, the whole point of dispute is whether that 
applies when the position is government funded in whole or in 
part, and that certainly is not settled. There are very few 
cases, they go both ways.
    We will just figure the Executive order, which has now been 
amended--even when the Executive order said no discrimination 
on the basis of religion there would have been a question about 
the priority of the statute and of the Executive order, and 
which was more specific as applied to this issue. So I think it 
is unsettled. But he must have been thinking about the 
exemption in Title 7.
    Mr. Conyers. Let's give him the benefit of the doubt. I 
will see him later on today, or not later than Monday, anyway, 
and we will continue this discussion.
    Now I come to one of your positions, Professor Laycock, 
that I would like to put under the microscope for a little more 
scrutiny.
    And again, I will start with Reverend Attorney Lynn and 
ask, isn't there some restriction that privately-funded 
religious activities be separated from government-funded 
secular services? Is there some policy that makes that a pretty 
standard practice or, as Professor Laycock asserts, it doesn't 
matter whether it is government funded or not?
    Rev. Lynn. I think it makes all the difference in the 
world. And in fact, in the Civil Rights Act, as amended in 
1972, if you look at the record in this body and in the Senate 
there is discussion about how organizations ought to be able to 
hire and they consistently refer to private dollars.
    Senator Ervin, who was cited in Professor Rogers' 
testimony, said that. He said that all the time, including on 
the floor. No one seriously was proposing in 1972 that with 
Federal dollars comes an exemption from the otherwise 
applicable civil rights principles of the country. It simply is 
not there.
    Mr. Conyers. Professor Rogers, can you weigh in on this 
before----
    Ms. Rogers. Yes.
    Mr. Conyers.--I turn to----
    Ms. Rogers. There is an article that I wrote, and in 
preparation for writing it I looked back at the 1972 history 
and found that the prime cosponsors--and this includes Sam 
Ervin--when he was making the case for the broadening of the 
702 exemption he would cite institutions which he emphasized 
were supported solely by private money to make the case for 
that broadening of the exemption that happened in 1972, and 
also Senator Allen made similar types of statements citing that 
as part of his case for broadening the exemption.
    So if you are interested in that, there is more about that 
in the article that I wrote a few years ago.
    Mr. Conyers. Mr. Chairman, can I have enough time to have 
Professor Laycock respond?
    Mr. Nadler. Without objection.
    Mr. Conyers. Professor Laycock, you have been outvoted but 
that doesn't mean anything around here. What say you?
    Mr. Laycock. If I understood your question you initially 
asked about the requirement that the--any religious part of a 
program that is privately funded be separated in time and space 
from any secular part, and that is required by the Executive 
order; it is required by regulations that were in place before 
yesterday; and it seems to be settled about these programs. I 
suggest in my written testimony it may not be constitutionally 
required, but it is certainly required by regulation.
    You know, the current state of the law is--on the hiring 
issue, I think, is simply up in the air. Whatever people said 
in the legislative history, you have got a clear exemption of 
the statutory text of Title 7. The Bush people amended the 60-
year Executive order--the new Executive order from the Obama 
people doesn't address it. The cases go both ways. So the 
hiring issue I don't think there is any clear law in place.
    Mr. Conyers. Well, we have made far more progress than I 
had expected. I am happy to hear you agree that funding--
private money and government money should be generally be 
separated in time and location.
    Ms. Rogers. Yes, and one of the interesting things, 
Chairman Conyers, is that people who disagree about the 
employment issue on the council were able to come together, and 
all of us agreed that as to religious activities that were 
privately funded those should be cleanly and carefully 
separated from a program funded by direct government aid. So 
even those who have differences over the employment issue on 
the council were able to come together on that point.
    And that is a very important point, because as we were 
discussing earlier, some earlier statutes did not make this as 
clear as it should be. So I am very pleased that the council 
recommendation that does, I hope, drive the point home was made 
a part of the Executive order and that there is a very high 
degree of consensus on those issues at the present time.
    Mr. Conyers. Well, that is encouraging.
    Do you feel any better about that, Professor Laycock?
    Mr. Laycock. I think that is a done deal. If the executive 
and Congress have come to agreement on that----
    Mr. Conyers. And you.
    Mr. Laycock. I am not sure we needed to go that way, but we 
have gone that way.
    Mr. Conyers. All right. Reluctance doesn't change--it is 
like the way we vote sometimes here. You hold your nose and 
vote that way. It is reluctant; it is not with enthusiasm. So 
you remind me of the way some of our colleagues, including 
myself, have to vote sometimes.
    Ms. Rogers. Chairman Conyers, another point I would make 
about that. As a religious person I am pleased that that 
requirement is there because I don't want government meddling 
in religion. I don't want it to tell a religious organization 
what they can and can't say about religion, about matters of 
faith.
    So if the religious activities are privately funded and 
cleanly separated from the government program, then the 
religious organization is in charge of that, and as long as all 
the other things are observed, then that keeps the government 
out of meddling in the religious sphere. And I definitely, as a 
religious person myself, do not want the government meddling in 
the religious sphere.
    Mr. Conyers. Thank you, Chairman Nadler.
    Mr. Nadler. Thank you.
    The gentleman from Georgia?
    Mr. Johnson. Thank you, Mr. Chairman.
    Do the panelists agree or disagree that a person--a citizen 
in the United States--has a right to be free from religion?
    Ms. Rogers. They have----
    Mr. Johnson. Is there a right to be free from religion?
    Mr. Laycock. Absolutely.
    Ms. Rogers. I would put it differently. I would put it they 
have a right to be free from government establishments of 
religion, and so they should be free not to have the government 
pressure them in any way on religious matters, but they are not 
free from just encountering religion in the public square, 
where religion plays such a robust role. And I think that is 
appropriate.
    We don't want the government playing that role; we want it 
to ensure that it does not pressure people along religious 
lines. That is an inappropriate role for government.
    Rev. Lynn. I would just take one step further and suggest, 
Congressman Johnson, that one thing that people who do not 
choose to be religious also have a right to expect is that 
their tax dollars will not be subsidizing the religion of other 
people--any of them or all of them. I think that is a core 
principle as well.
    Mr. Nadler. Excuse me. We are going to have to--there is an 
immediate vote in the Democratic caucus, so we are going to 
have to recess the hearing, not for too long I hope.
    This hearing----
    Mr. Laycock. Mr. Chairman, I apologize but I have a flight 
and I am going to have to leave at this recess.
    Mr. Johnson [continuing]. To explain why the government 
shouldn't put up crosses----
    Mr. Nadler. Then let me thank you for your attendance 
here----
    Mr. Johnson. Well, if I might, Mr. Chairman, we were just 
getting ready to get into some good----
    Mr. Nadler. Well----
    Mr. Johnson. But only thing I want to say is I know that 
the witnesses have been here this morning, and I appreciate you 
being here. I look forward to hosting you again to answer some 
of the questions that I have. But I will yield and let the 
hearing be brought----
    Mr. Nadler. I appreciate the gentleman's actions. Let me 
say that----
    Mr. Laycock. Sir, I would be happy to answer in writing if 
you had a question you wanted to ask and didn't get a chance.
    Mr. Johnson. Thank you.
    Mr. Nadler. Thank you.
    We will conclude the, but before we conclude I just wanted 
to claim a point of personal privilege. This may be the 
Subcommittee's last meeting of this Congress. It has been an 
honor to have been able to serve as the Chair. Our jurisdiction 
gives us the responsibility of protecting the fundamental 
rights of this country.
    I want to thank the Members of this Subcommittee, 
especially our distinguished Ranking Member, the gentleman from 
Wisconsin, for their hard work and for the dedication they have 
always brought to this task. I want to thank the Committee 
staff, the Subcommittee staff. Most people never know just how 
hard they work behind the scenes, how dedicated they are, how 
talented each of them is.
    I wanted to thank our counsels, Heather Sawyer, Keenan 
Keller, Kanya Bennett on the Democratic side; Paul Taylor on 
the Republic side; Matthew Morgan, our clerk, without whom the 
Subcommittee could not function; and our chief of staff, David 
Lachmann. Many more people have also contributed to our work 
over the years--too many to mention, but we all--I and my 
colleagues genuinely appreciate their service.
    And the usual boilerplate language: All Members will have 5 
legislative days to submit to the Chair additional question. We 
ask that--witnesses to respond as promptly as they can.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record. 
Again, I thank everyone. I thank our witnesses; I thank the 
staff; I thank the Members.
    With that, this hearing is adjourned.
    [Whereupon, at 12:54 p.m., the Subcommittee was adjourned.]



















                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

   Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

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 Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a 
   Representative in Congress from the State of Georgia, and Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

   Addendum to the Prepared Statement of the Reverend Barry W. Lynn, 
Executive Director, Americans United for Separation of Church and State

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

   Post-Hearing Questions and Responses of Melissa Rogers, Director, 
Center for Religion and Public Affairs, Wake Forest University Divinity 
                                 School

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 Post-Hearing Questions and Responses of Douglas Laycock, Armistead M. 
Dobie Professor of Law, Horace W. Goldsmith Research Professor of Law, 
  Professor of Religious Studies, University of Virginia School of Law

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Post-Hearing Questions and Responses of Reverend Barry W. Lynn, 
Executive Director, Americans United for Separation of Church and State

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

      Letter from C. Welton Gaddy, President, Interfaith Alliance

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Letter from Jon O'Brien, President, Catholics for Choice

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

 Letter from the Reverend J. Brent Walker, Executive Director, and K. 
   Hollyn Hollman, General Counsel, the Baptist Joint Committee for 
                           Religious Liberty

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              Prepared Statement of Alan Yorker, MA, LMFT

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